CORROBORATION

The essence of corroboration evidence is that one credible item or evidence confirms another
credible item or evidence. Corroboration is confirmation.

It is a cautionary approach to guard against fabricated evidence or non-credible evidence. The

court out of experience has to be on its guard against a suspect witness or a dishonourable
citizen or any suspect evidence.

R v. Baskerville [1916] 2 KB 658

The court said that, “we hold that evidence in corroboration must be independent
testimony which affects the accused by connecting or tending to connect with the crime. It
must be evidence that implicates him, evidence which confirms in sum material not only
that the crime has been committed but that the accused committed it.”

The broad categories of cases that require corroboration fall under suspect evidence adduced
by a suspect witness by virtue of circumstances and interests in the matter. In our law there
are occasions were corroboration is required by statute and this includes cases involving
accomplice evidence, perjury and treason. The Criminal Procedure and Evidence Act
makes specific reference to the need of corroboration. (Section 270)

On the other hand besides statutory provisions, the courts out of experience have come to
insist on corroboration in certain other situations which fall outside statutory provisions e.g.
evidence of young children, evidence involving sexual matters, evidence of prostitutes in
matters dealing with their sexual exploits.

The case of S v. Mupfudza 1982 (1) ZLR 271 which used to be the locus classicus of
corroboration in sexual matters established a two-pronged approach to corroboration.

1. Is the witness credible? If not the question of corroboration falls away.

2. If the witness is credible the court is compelled to look for corroboration to eliminate
the possibility of being misled by an honest witness who made an honest mistake.

NB: With sexual cases, corroboration is no longer a requirement as long as the witness is
telling the truth.

The Mupfudza case tells us why the courts are always on their guard in relation to sexual
cases.

1. Complainant can easily fantasise and mislead the court.

2. In rape cases a complainant might cry rape in order to disguise that she consented to
hide the shame that she was caught.
 3. Children are easily suggestible and can drum up a story in their minds and believe it.
They can be manipulated.

4. A single witness who might have observed events incorrectly or is biased has a
greater potential of misleading the court so a cautious approach should be taken.

Evidence of young children

By way of tradition and common law principles the courts must be on their guard where the
evidence in question is that of a young child. The trend nowadays, however, is to assess the
credibility of the child witness and then ask itself the question whether or not it is safe to
convict on the uncorroborated evidence of the child.

S v. Ponder SC 35-99

The court made the following observation, “There is no rigid requirement in our law that a
child’s evidence must be corroborated. Where the court believes the child and applies its
mind to the dangers inherent in finding a conviction upon the child’s uncorroborated
evidence, the court may nonetheless convict.”

The main purpose of applying the cautionary rules is to guard against fabrication or invention
that might come about as a result of the child witness’ manipulability. In R v. J 1958 (3) SA
700 SR the court noted that corroboration of evidence of children of tender years is not
required by any positive provisions of the law but their evidence must nevertheless be treated
with caution.

R v. Dossi 1918 AC 158

The accused was charged with indecent assault on his admission that he had accidentally
fondled the child. The admission was held to be corroborative evidence.

R v. J 1966 (1) SA 88

A girl of 10 years who gave evidence that a man she knew very well had raped he, she
immediately made a complaint to her mother, the material evidence left no doubt that she had
been sexually molested and the material issue that remained outstanding related to identity.
The court held that in the circumstances of the case it was highly unlikely that the little girl
who was genuinely distressed would falsely accuse a man whom she knew so well as a wrong
doer. The court found that there was no motive for false incrimination and that the
information was not forced out of the girl. The appeal court presided over by McDonald J
was satisfied that the decision of the court a quo was justified in the absence of corroborative
evidence.

A child can falsely accuse someone he knows very well. It must be satisfied that the child is
telling the truth. (Section 269 of the Criminal Procedure and Evidence Act)
Single Witness

It is traditionally said that testis uris testis nullis (one witness is no witness at all) but it has
been abandoned. This is a precautionary rule. The witness might be credible but out of
mistake might give false evidence. Evidence can be admitted provided that it is satisfactory in
all material respects. (See S v. Shonhiwa)

Evidence of Prostitutes

Generally there is no requirement for corroboration and precautionary rule, however, where
the matter under investigation involves the prostitutes’ own exploits it will be useful and
helpful for the court to be on its guard because prostitution involves deception. A prostitute
might easily cry rape when in actual fact the act would be very well consensual and might cry
rape for one reason or the other (lack of payment). There are people unlikely to tell the truth
in so far as their sexual activities are concerned.

Police Traps

The police have an interest in the matter and that leaves the evidence subject to fabrication.
They will have a bias against the accused. There are some politically motivated
manipulations.

Spies and Informers

Their information may be biased or fabricated because they will have a personal interest.
They usually get money or a reward after giving evidence.

Claims against a Deceased’s Estate

There is no rule that requires corroboration but at the same time the other party is not
available. It is prudent that the court look for independent confirmatory evidence that indeed
the claim is genuine e.g. if it is a claim for the transfer of property or evidence of a surviving
spouse or beneficiary.

Wood v. Estate Thompson 1949 (1) SA 607

The court said that there is no rule of law or practice which requires that merely because it is
a claim made against the deceased’s estate that it must be proved by corroboration evidence.
However, the court must examine with a cautious eye for uncorroborated evidence given in
such matters.
Evidence of Identification

As a matter of practice were the conviction of accused depends on evidence of identity, the
court must find it prudent to exercise caution by closely scrutinising the circumstances in
which the identification took place, even if with an identification parade, certain safeguards
are put in place in order to minimise the risk of mistaken identity. In closely scrutinising,
some of the useful questions are

a. How long did the witness have the accused under observation? Was it protracted,
prolonged or momentary?

b. In what light – was it dark, daylight, etc?

c. At what distance?

d. What was the accused wearing?

e. Any pronounced or distinguishing characteristics on the accused that remained

embedded in the witness’ mind?

f. Did the witness have special reasons to remember the accused e.g. voice, complexion,
etc?

(See S v. Mutters SC 66-89)

Accomplice Evidence

It is an area in which corroboration is called for because traditionally accomplices are

regarded as witnesses of uncertain reliability because they generally have something to gain
by falsely implicating the accused or exaggerate the part played by the accused and
minimising their own. (Section 267 & 270 of the Criminal Procedure and Evidence Act)

R v. Ncanana 1948 (4) SA 399

The judge described accomplices as witnesses with a motive to tell lies about the accused
person. The witnesses are peculiarly equipped with inside knowledge of the offence and
can easily lie and an accomplice is a person liable to be prosecuted either of the same
offence or as accessory to such an offence. The question of whether the witness is an
accomplice or not is a factual enquiry to be determined by the court e.g. in a charge of
sodomy the consenting party makes him an accomplice.

R v. Levy 1943 AD 558

In clarifying the operational dynamics of section 270 of the Criminal Procedure and
Evidence Act it said that corroborative evidence need only show that an accomplice is a
reliable witness but not necessarily in every detail but at least in regard to those material
statements the court basis its conviction.
R v. Lakhatula 1919 AD 216

In order to satisfy demands of section 270 there must be other evidence apart from evidence
of the accomplice that the crime was actually committed so that if the court has shown itself
to be fully appreciative of the dangers caused by accomplice evidence and is still satisfied
beyond reasonable doubt that the accused is guilty it may convict.

Sexual Offences

Corroboration is required as a matter of practice and not of any legal imperative. The court
must be on its guard if the evidence is coming from the complainant’s mouth only.
Historically the approach was that there are a variety of reasons as to why the complainant
might want to falsely incriminate the accused. One might be fantasizing, out of malice,
ashamed to admit consent; the wife will want to choose a better person to take care of the
child, etc.

A further reason for corroboration is that sexual allegations are easy to make and difficult to
refute because it happens in private.

With sexual cases in the recent past the approach of Zimbabwe was to follow the two-
pronged approach laid in the Mupfudza case. If the witness is credible and the court is
convinced that the accused is guilty and proved beyond reasonable doubt the court may safely
convict.

S v. Masango SC 08-90

The complainant was a 12 year old girl who testified that one night after retiring to her
sleeping hut with two children, a man forced himself on her and prevented her from
screaming by placing his hand over her mouth and threatened her if she told anyone.
Although she could not see him in the darkness she recognised his voice and did not report
until two weeks after she fell ill from an STI. Earlier in the evening the accused had visited
her home and borrowed a tin guitar from the brother of the complainant. In his defence he
had an alibi and he said he had been at a beer drink elsewhere in the neighbourhood were
traditional rights were being performed. It was then established that this ceremony had only
taken place a week after the alleged rape and that he had deliberately lied (an alibi is a very
difficult defence as the burden of proof will be on the person giving it). The court held that,
“Where evidence of a young person is clear and credible but uncorroborated the court while
in cognisance of the dangers of false incrimination but satisfied such dangers have been
eliminated may convict.”

R v Lucas [1981] QB 720

The court of appeal accepted that in certain situations a lie told in court may be
corroborative if the following requirements are satisfied,

1. It must be a deliberate lie.

2. It must relate to a material issue.

3. Motive to lie must be a realisation of guilt and fear of the truth.

4. The lie must be clearly shown as such.