In the Federal Court decision of Din v Public Prosecutor [1964] MLJ 300, Thomson LP who wrote the leading judgment discussed the necessity of corroboration for the proof of rape. In that discussion, His Lordship wrote the following:
But the desirability for corroboration of the evidence of the prosecurtrix in a rape case (which in any event has not yet crystallized into something approaching a rule of law and which is still a rule of practice and of prudence) springs not from the nature of the witness but from the nature of the offence. Never has it suggested that the evidence of a woman as such invariably calls for corroboration. If a woman says her handbag has been snatched and if she is believed there can be no question of a conviction on such evidence being open to attach for want of corroboration. If, however, she complains of having been raped then both prudence and practice demadn that her evidence should be corroborated.
Here, however, the necessity for corroboration, generally speaking, is not so imperative with regard to the identity of her assailant as to the fact of the offence itself. It is here that there is danger. The temptations of a woman to exaggerate an act of sexual connection are well known and manifold. But though it might be dangerous to find the factum of rape on the uncorroborrated evidence of the prosecurtrix once that factum of rape is established there seems to be nothing left to support the view that her identification of the assailant calls for corroboration any more than it would in relation to any other type of offence.
Thomson LP strikes me as a pretty funny chap.
On the one hand he says that the necessity for corroboration arises from the ‘nature of the crime’ not from the fact that the complainant is a woman. But on the other hand he says that corroboration is necessary because there are well known and manifold temptations for a woman to exaggerate an act of sexual connection. It is unfortunate that his Lordship did not trouble himself to refer to those material and sources that are ‘well known and manifold’. I certainly do not know them and in my humbling experience, it is men that are more likely to exaggerate an act of sexual connection. This is doubly true of Malaysian men and women!
If you thought that the judiciary has moved on with such chauvanist views 45 years hence, I am pleased to inform you that we have not. In the latest Court of Appeal decision of Mohd Yusof Rahmat v PP [2009] 2 CLJ 673 at page 680, paragraph 19 (para C – E), James Foong JCA (as he was then known) relied on the Federal Court decision above and wrote the following, in his discussion on whether there was corroboration of the complainant’s evidence about the rape:
… We must not forget that we are here dealing with the evidence of a child of tender years who is involved in an allegation of rape where even if she is an adult requires corroboration because a woman has a temptation to exaggerate an act of sexual connection, and for a child of tender years for his or her known aptitude to confuse fact with fantasy – see Din v PP [1964] MLJ 300.
I think it disappointing, if not distressing, that judicial knowledge and consideration of the nature and qualities of women has remained stagnant since 1964. The current Chief Justice seems to think that efficiency means justice taking too much to heart that justice delayed is justice denied. Efficiency is but one part of justice. His Lordship forgets that justice hurried is justice buried too.
Wisdom and refinement of one’s understanding of knowledge plays a much larger and important part of justice. Perhaps the Chief Justice should pay some attention to that area, since it has been neglected a fair bit over the last 45 years.
Fahri Azzat practices the dark arts of the law. Although he enjoys writing and reading, he doesn't enjoy writing his own little biographies of himself. Like this one. He wished somebody else would do it for him. He has little taste in writing about himself in third person. He feels weird doing it. But the part he finds most tedious is having to pad up the lack of his accomplishments, or share some interesting facts about his rather uneventful life, as if there were some who found that oh-so-interesting; as if he were some famous person, like Michael Jackson. When he writes these biographies, the thought, 'Wei, Jangan Perasaan- ah!' lights up in his head. So he usually just lists what he got involved with, positions he held and blah, blah. But this time. Right here. Right this very moment. Uhuh. This one. This one right here. He's finally telling it like it is.
Posted on 6 May 2009. You can follow any responses to this entry through the RSS 2.0.
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