BURDEN OF PROOF22.09.2010

1

S. 3 EA• PROVED• DISPROVED• NOT PROVED• Sarkar: the words proved, disproved and not proved

are actually different degrees of certainty, which the court has to decide on before giving judgment.

• 2 types of burden:– Persuasive burden (legal burden) – Evidentiary burden

• International Times & Ors v Leong Ho Yuen [1980] 2 MLJ 86 (burden of proof has 2 meanings)– The burden of establishing a case (s.101 EA)– The burden of introducing evidence (s.102 EA)

2

International Times & Ors v Leong Ho Yuen [1980] 2 MLJ 86

• Salleh Abas FJ : For the purpose of this appeal, it is necessary to bear in mind the distinction between the two senses in which the expressions burden of proof and onus of proof are used.

• The first sense, signified by the expression burden of proof such as referred to in S. 101 of the EA is the burden of establishing a case and this rests throughout the trial on the party who asserts the affirmative of the issue. The appellants in the present appeal relied on justification and fair comment. Therefore, the burden of proving these defences rests entirely upon them

International Times & Ors v Leong Ho Yuen [1980] 2 MLJ 86

• The second sense referred to as onus of proof, on the other hand, relates to the responsibility of adducing evidence in order to discharge the burden of proof.

• The onus as opposed to burden is not stable and constantly shifts during trial from one side to the other according to the scale of evidence and other preponderates.

• Such shifting is one continuous process in the evaluation of evidence

• According to S. 102 & 103 of EA, if the party with whom this onus lies whether initially or subsequently as a result of its shifting does not give any further evidence or gives evidence which is not sufficient, such party must fail

Legal Burden

• A burden of persuasion / heavier burden• An obligation that remains on a single party

throughout the claim• Once the burden has been entirely discharges

to the satisfaction of the trier of fact, the party carrying the burden will succeed in its claim

s. 101 EA

• He who alleges must prove• Persuasive burden• Criminal case: beyond reasonable doubt– Proof to a high degree of probability but not proof

beyond a shadow of a doubt

• Civil case: balance of probabilities– That an allegation is more probable than not

6

Tenaga Nasional Berhad v Perwaja Steel Sdn Bhd [1995] 4 MLJ 673

• The plaintiff must prove such facts as the plaintiffs desires the court to give judgment as to its right to claim against the defendant or the defendant’s liability to pay the plaintiff.

• The burden is on the plaintiff, in order to succeed here, the plaintiff must prove its claim affirmatively

Wong Sieng Ping v. PP [1967] 1 MLJ 56

• Charged with cheating and Magistrate held : I am satisfied beyond reasonable doubt that accused failed to establish a case which at least would raise doubt as to his guilt and entitle him to an acquittal.

• Contention : it was wrong to say the burden of proof had shifted to the appellant

• Legal Burden never shift to the accused • The onus of proving everything essential to the establishment

of the charge against the accused lies upon the prosecution who must prove the charge substantially as laid.

• The onus never change to the accused ‘to give an explanation’ or ‘to establish a case’ which would be inconsistent with the presumption of innocence

Burden of Proof in criminal cases

• Mat v PP [1963] MLJ 263 : The general rule is that the prosecution bears the legal burden of proof

• Choy Hon Song v PP [1967] 1 MLJ 210 : The accused generally has only the evidential burden of raising a reasonable doubt in the mind of the trial court

• Woolmington v DPP [1935] AC 462 : The burden of proof on the prosecution to prove guilt, no such burden laid on the accused to prove his innocence, sufficient to raise doubt as to his guilt

9

CRIMINAL CASES

• Haw Tua Tau v PP [1981] 1 MLJ 49• Nadaraso v PP [1972] 2 MLJ 47• A Ragunathan v PP [1982] 1 MLJ 139• Munusamay v PP [1987] 1 MLJ 492• Dato Mokhtar Hashim & Anor v PP [1983] 2

MLJ 232• PP v Lee Poh Chye & Anor [1997] 4 MLJ 578• Aziz Muhamad Din v PP [1997] 1 CLJ 523

10

Evidential Burden

• Burden of leading evidence / lighter burden• An obligation that shifts between parties over

the course of the hearing / trial• A party may submit evidence that the court

will consider prima facie proof of some state of affairs

• This create an evidentiary burden upon the opposing party to present evidence to refute the presumption

Evidential Burden

• Criminal – the evidential burden of proof is often on the prosecutor to prove each essential elements of the offence

• Civil – the burden requires the plaintiff to convince the judge that he is entitled to the relief sought

• Ei incumbit probatio qui dicit, non que negat : the burden of proof rests on who asserts, not on who denies

s. 102 EA

• Burden of proof lies on a person who should fail if no evidence were given : Evidential burden

• Establishing prima facie case – if the judge is convinced that there is some evidence (not inherently incredible) if he were to accept it as accurate, would establish each essential ingredient of the offence. If these evidences are not rebutted – the accused is guilty (convicted)

13

Aziz bin Muhamad Din v PP [1996] 5 MLJ 473

• The burden of establishing a case must be contrasted with the burden of introducing evidence (the evidential burden)

• The former is governed by S. 101 and the latter by S. 102 EA

• The burden of establishing a case rests throughout the trial on the party who asserts the affirmative

• However, the burden of introducing evidence in a case shifts constantly as evidence is introduced by one side or the other

Tan Kim Khuan v Tan Kee Kiat (M) Sdn Bhd [1998] 1 MLJ 697, at 706

• The burden of proof rests throughout the trial on the party on whom the burden lies.

• Where a party on whom the burden of proof lies has discharged it, then the evidential burden shifts to the other party

• What shifts is the responsibility of adducing evidence to discharge the burden

• If he does not adduce any evidence when the burden has shifted to him, he will fail

Selvaduray v Chinniah [1939] MLJ 253

• Plf was a clerk working for the Def• Plf claimed for arrears in salary but Def contended

that Plf came to him to study where he provide for food, shelter, cloth with no agreement as to salary

• Ct : The burden of proof never shift to the Plf, the onus is on him to prove his case

• If the position at the conclusion of the trial is exactly even, then Plf’s action must fail because he has not discharge the onus which is on him

s. 103 EA

• The burden of proof in a fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person

• When a person on whom a burden lies fails to discharge it, there is no burden on the opposing party to disprove it

17

s. 103 EA• Eastern Enterprise Ltd v Ong Choo Kim

[1969] 1 MLJ 236 : Plf has not proved his case against Def, thus no burden shifts to Def to prove the premise being used for immoral purpose. Def would not have to disprove something which has not been proved against him

• Tan Kim Khuan v. Tan Kee Kiat (M) Sdn Bhd [1998] 1 MLJ 697 : WSS filed by Resp vs prop of App but no evidence adduced to prove ownership. App must show that he is the lawful owner of the property at time of attachment. The burden of proof was thus on the App but he had failed to discharge that burden. In such circumstances, there is no onus on the Resp to lead any evidence.

Scope of S. 103

• Burden of proof as to a particular fact lies on that person who wishes the court to believe in its existence

• Karam Singh v. PP [1967] 2 MLJ 25 : A murder charge in a fighting over the use of stand pipe in hospital quarters. Threats were uttered in the presence and hearing of 30 – 40 persons but none was called by prosecution.

19

Scope of S. 103• Burden of proof prescribed by law to lie on a particular

person• Eg : to rebut the presumption of trafficking under S. 39B

DDA 1952• Mohamad Radhi Yaakob v. PP [1991] 3 MLJ 169 :

In the course of the prosecution case, the prosecution may of course rely on available statutory presumptions to prove one or more of the essential ingredients of the charge. When that occurs, the particular burden of proof as opposed to the general burden, shifts to the defence to rebut such presumptions on the balance of probabilities which from the defence point of view is heavier than the burden of casting a reasonable doubt, but it is certainly lighter than the burden of the prosecution to prove beyond reasonable doubt.

Scope of S. 103

• Manner of discharging a burden placed on any person by law – PP v. Mohamed Noor Jantan [1979] 2 MLJ 80 : the

burden is only a light one and this can be discharged by evidence of witnesses for the prosecution and defence

• Duty of a party alleging a fact– Juahir bin Sadikon v. Perbadanan Kemajuan

Ekonomi Negeri Johor [1996] 3 MLJ 627 : The party who alleged a fact must produce the necessary evidence in proof of it

Scope of S. 103• Alibi (illustration b) – the burden of proof in a

defence of alibi is on the person who relies on such defence

• cr Sec 11 and Sec 402A CPC• Yau Heng Fang v. PP [1985] 2 CLJ 22 : the

words “establishing his alibi” in s. 402A(1) CPC means a statutory burden placed on the accused to prove his alibi on the balance of probabilities. What the learned Judge should consider is whether the evidence adduced by the appellant for the purpose of establishing his alibi had raised a reasonable doubt in the prosecution case, and not whether such evidence had created a reasonable doubt as to the appellant's innocence.

s. 104 EA

• Burden of proving fact to be proved to make evidence admissible

• Prior facts (contingent fact)• A wishes to prove a dying declaration made by

B. A must prove B’s death• Cr 136 (2) EA

23

s. 105 EA• 2 parts :– Burden of proving that case of accused comes

within exceptions– Presumption by the court of the absence of the

circumstances• Applies only in criminal cases• Accused must prove the existence of circumstances bringing the case

within any of the general exceptions in the Penal Code• Court will presume the non-existence of the said circumstances bringing

the case within an exception (once prosecution successfully proved accused person is guilty, it is presumed that he has no defence)

• If the accused wants to, he must rebut the presumption on the balance of probabilities

24

s. 105 EA • Ikau anak Mail v PP (1973) 2 MLJ 153 – Defence of provocation in murder trial and ct held the

burden of proving accident, provocation, or self-defence rested upon the accused to prove on the balance of probabilities

• N Govindasamy v PP (1976) 2 MLJ 49– Defence of provocation in murder trial– The burden of proof on the issue of grave and sudden

provocation was the burden in civil cases on a balance of probability. The burden of proof is governed by s. 105

25

s. 106 EA• Burden of proving fact especially within knowledge• Exception to s 101 • If the matter is within the knowledge of the accused –

he must prove it – the burden is on him to prove.• Illus (b) : only he knows wt he has a ticket or not• PP Hoo Chee Keong [1997] 4 MLJ 451 : It is designed

to meet certain exceptional cases in which it would be impossible or disproportionately difficult for the prosecution to establish facts which are especially within the knowledge of the accused and which he could prove without difficulty or inconvenience

26

s. 106 EA

• PP v. Lim Kwai Thean [1959] MLJ 179 : an offence of having in possession prohibited documents without lawful excuse / authority. If he had a lawful excuse, that fact would be especially within his knowledge.

• Re Tan Kheng Cheng [1962] MLJ 310 : an offence of carrying goods without haulage permit and valid certificate of insurance. Although the fact that the vehicle is insured, is in the knowledge of the defendant or his employer and therefore s. 106 applies