evidence-burden of proof

Burden of Proof(Beban bukti)

The phrase burden of proof has 2 distinct meanings:

the burden of introducing evidence

establishing a case

BURDEN OF PROOF: DEFINITION

Burden of proof(Beban bukti)

First: Evidential burden

(Beban keterangan)

Second: Legal burden

(Beban undang - undang)

Evidential burden

Legal burden

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

Per Salleh Abas FJ in International Times v Leong Ho Yuen [1980] 2 MLJ 86 states “For the purpose of this appeal it is necessary to bear in mind the distinction between the 2 senses in which the expressions burden of proof and onus of proof are used (Nanji & Co. v. Jatashankar Dossa & Ors. AIR 1961 SC 1474, 1478 and Raghavamma v. Chenchamma AIR 1964 SC 136, 143).


The first sense, signified by the expression burden of proof such as referred to in s. 101 of the Evidence Act 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 (Gatley on Libel and Slander, 7th Edn. paras. 351 and 354).


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 the 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 ss. 102 and 103 of the Evidence Act, if the party with whom this onus lies whether initially or subsequently as a result of its shifting does not give any or further evidence or gives evidence which is not sufficient, such party must fail.


First: Evidential burden(Beban keterangan)

An evidential burden/ Beban keterangan

burden of leading evidence or lighter burden

an obligation that shifts between parties over the course of the hearing or trial. A party may submit evidence that the court will consider prima facie proof of some state of affairs. This creates an evidentiary burden upon the opposing party to present evidence to refute the presumption.

BURDEN OF PROOF: EVIDENTIAL BURDEN

In criminal cases, the evidential burden of proof is often on the prosecutor –

sometimes referred to by the latin legal expression “ei incumbit probatio qui dicit, non que negat” (the burden of proof rests on who asserts, not on who denies).


In civil law cases, the burden of proof requires the plaintiff to convince whether judge or jury over the plaintiff’s entitlement to the relief sought. This means that the plaintiff must prove each element of the claim, or cause of action, in order to recover.


Second:Legal burden

(Beban undang - undang)

A legal burden (Beban undang – undang) or a burden of persuasion or heavier burden

obligation that remains on a single party for the duration of the claim.

Once the burden has been entirely discharged to the satisfaction of the trier of fact, the party carrying the burden will succeed in its claim.

BURDEN OF PROOF: LEGAL BURDEN

The criminal standard of proof on the prosecution is proof beyond all reasonable doubt, which means proof to a high degree of probability but not proof beyond a shadow of a doubt.

But the criminal standard of proof on a defendant is the same as the civil standard, i.e., proof on the balance of probabilities.


In civil action, the standard of proof on both parties is proof on the balance of probabilities, i.e., that an allegation is more probable than not.


Section 101: Legal burden/burden of proof/burden of persuasion/burden of establishing the case

Section 101 of EA 1950 provides for Burden of proof. (Beban bukti). (1) Whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist. (Barang sesiapa berkehendakkan mahkamah memberi panghakiman tentang apa-apa hak atau liability di sisi undang –undang, dengan bergantung pada adanya fakta-fakta yang ditegaskan olehnya, mestilah membuktikan bahawa fakta-fakta itu ada).

(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. (apabila seseorang terikat untuk membuktikan adanya sesuatu fakta, maka adalah dikatakan bahawa beban bukti terletak pada orang itu)

LEGAL BURDEN: S. 101 OF EA 1950

Burden of proof rest upon the party who desires any court to give judgment. Per Low Hop Bing J in Tenaga Nasional Bhd v Perwaja Steel Sdn Bhd [1995] 4 MLJ 673 states “Section 101(1): the plaintiff must prove such facts as the plaintiff 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 of proof is on the plaintiff: Section 101 (2). In order to succeed here, the plaintiff must prove its claim affirmatively”.


The shifting of the burden: Here the burden of proof rest throughout the trial on the party on whom the burden lies. Where a party on whom the burden of proof has discharged it, then the evidential burden shifts to the other party. If the party on whom the burden lies fails to discharge it, the other party need not call any evidence. Per Augustine Paul J in Tan Kim Khuan v Tan Kee Kiat (M) Sdn Bhd [1998] 1 MLJ 697 states “It is settled law that the burden of proof rest 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 other party…what is shifts is the responsibility of adducing evidence to discharge the burden”. (See also UN Pandey v Hotel Marco Polo Pte Ltd [1980] 1 MLJ 4).


Section 102 provide for “On whom burden of proof lies” (Pada siapa terletaknya beban bukti) which states “The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side” (Beban bukti di dalam sesuatu guaman atau prosiding terletak pada orang yang mungkin gagal sekiranya tidak ada langsung keterangan diberi oleh mana – mana pihak)

EVIDENTIAL BURDEN: S. 102 OF EA 1950

The burden of proof referred to in section 102 is the burden of introducing evidence. Per Augustine Paul JC in Aziz Bin Muhamad Din v PP [1996] 5 MLJ 473 states “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 of the Evidence Act 1950. The latter is governed by s. 102 of the Evidence Act 1950 which states that “The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. 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”.


The shifting of the burden of introducing evidence: The burden of establishing a case (section 101) rests throughout the trial on the party who asserts the affirmative. However, the burden of introducing evidence in a case (section 102) shifts constantly as evidence is introduced by one side or the other. Refer to the judgment made by Lee Hun Hoe J in Wong Sieng Ping v PP [1967] 1 MLJ 56.


Standard/Quantum of Proof(Taraf bukti/ Bukti standard/

Standard Pembuktian)

Standard of proof(standard pembuktian)

Balance of probabilities(Imbangan

kebarangkalian)

Beyond reasonable doubt(Di luar keraguan

munasabah)

Balance of Probabilities

Balance of probabilities also known as the preponderance of the evidence, is the standard required in most civil cases.

The standard is met if the proposition is more likely to be true than not true. Effectively, the standard is satisfied if there is greater than 50 percent chance that the proposition is true. Lord Denning, in Miller v. Minister of Pensions, [1947] 2 All ER 372 described it simply as “more probable than not”.

It is settled law in Malaysia that the standard of proof in civil cases is the preponderance of probabilities. The more serious the allegation, the heavier is the balance of probabilities required.

Beyond reasonable doubt

Beyond reasonable doubt this is the standard required by the prosecution in most criminal cases within an adversarial system and is the highest level of burden of persuasion.

This means that the proposition being presented by the government must be proven to the extent that there is no “reasonable doubt” in the mind of a reasonable person that the defendant is guilty.

There can still be a doubt, but only to the extent that it would not affect a “reasonable person’s” belief that the defendant is guilty. If the doubt that is raised does affect a “reasonable person’s” belief that the defendant is guilty, the jury is not satisfied beyond a “reasonable doubt”. The precise meaning of words such as “reasonable” and “doubt” are usually defined within jurisprudence of the applicable country.

The standard of proof imposed on the prosecution in Malaysia, is the quantum laid down in the case of Woolmington v. DPP [1935] AC 462, i.e. proof beyond a reasonable doubt.

Miller v Minister of Pension [1947] 2 All ER 372, “That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt”.

PP v Yuvaraj [1969] 2 MLJ 89: Where the burden of proving a defence or rebutting a presumption is on the accused, the burden on him is the same as that applied in civil proceedings, i.e. on a balance of probabilities”.

Standard of proof: Allegation of election offence?

This relates to bribery and corrupt practices in the running of elections as covered by the Election Offences Act 1954 (Act 5). What is the quantum by the unsuccessful candidates? Based on the title of the Act, “Offences” it must be of a criminal standard. In Wong Sing Nang v Tiong Thai King [1996] 4MLJ 461, Charles Ho J stated that “It is quite clear from the authorities cited that because an allegation of corrupt practice is of a quasi criminal nature in as much as a finding of corrupt practice entails penal consequences, such allegation must be proved by the petitioner beyond reasonable doubt”.

In Re Pengkalan Kota Bye-Election [1981] 1 MLJ 265 at p 267 Abdoolcader J (as he then was) said: The corrupt practice of bribery which is a criminal offence by statute must be strictly proved beyond all reasonable doubt by clear and unequivocal evidence, and the inducement to vote or refrain from voting must be exercised upon one or more electors or voters who must be identified as the objects to whom it was made or addressed.

Standard of proof: When the case is depends wholly or substantially on circumstantial evidence?

In McGreevy v DPP [1973] 1 W.L.R. 276, the Court of Criminal Appeal of Northern Ireland said: “Whether at a criminal trial with a jury, in which the case against the accused depends wholly or substantially on circumstantial evidence, it is the duty of the trial judge not only to tell the jury generally that they must be satisfied of the guilt of the accused beyond reasonable doubt…”

In Dato Mokhtar Bin Hashim v PP [1983] 2 MLJ 232, Abdoolcader FJJ said: “Where circumstantial evidence is the basis of the prosecution case the evidence proved must irresistibly point to one and only one conclusion, the guilt of the accused, but in a case tried without a jury the failure by the court to expressly state this is not a fatal and it would suffice if it merely says that it is satisfied as to the guilt of the accused beyond reasonable doubt…”

In Chang Kim Siong v PP [1968] 1 MLJ 36, the appellant appealed against his conviction for murder. The evidence against the appellant was circumstantial and Pike CJ held: “The onus of the prosecution where the evidence is of a circumstantial nature is a very heavy one and that evidence must point irresistibly to the conclusion of the guilt of the accused.”

Per Suffian LP in Jayaraman & Ors v PP [1982] 2 MLJ 306 (FC) “When the prosecution relies wholly on circumstantial evidence, the quantum of proof is that of proof beyond reasonable doubt and not that of irresistible conclusion.”

Conclusion: Jayaraman and Dato Mokhtar Hashim v PP [1983] 2 MLJ 232 are clearly influenced by McGreevy. It is clear from the above that the quantum of proof in a case involving circumstantial evidence is still proof beyond reasonable doubt. The Federal Court in Jayaraman concluded that the so-called ‘irresistible conclusion test” is merely another way of saying proof beyond reasonable doubt. It is noted the later decisions did not attempt to show that the learned Suffian LP was wrong in Jayaraman’s case. The courts seem to have accepted that the irresistible conclusion test is just another way of finding proof beyond a reasonable doubt. Therefore, it is submitted that the quantum in cases where the prosecution relies entirely on circumstantial evidence is still the same as the quantum imposed on the prosecution in criminal cases, i.e. proof beyond a reasonable doubt. (See Gopal Sri Ram’s JCA decision on the “irresistible conclusion test” in Juraimi bin Husin v PP [1998] 1 MLJ 537 and Visu Sinnandurai J view on the same matter in Malkit Singh v PP. It appears that the present judges still use the irresistible conclusion test. See also PP v Syed Muhamad Faysal Bin Syed Ibrahim [2004] 6 MLJ 302

STANDARD OF PROOF: WHEN THE CASE IS DEPENDS WHOLLY OR SUBSTANTIALLY ON CIRCUMSTANTIAL

EVIDENCE?

Standard of proof: Contempt of court?

Lord Denning MR in In re Bramblevale Ltd. [1970] Ch. 128. The Master of the Rolls there said (at p. 137) “ A contempt of Court is an offence of a criminal character. A man may be sent to prison for it. It must be satisfactorily proved. To use the time honoured phrase, it must be proved beyond reasonable doubt. It is not proved by showing that, when the man was asked about it, he told lies. There must be some further evidence to incriminate him. Once some evidence is given, then his lies can be thrown into the scale against him”. See Lee Lim Huat v Yusuf Khan [1997] 2 MLJ 473, 485.

Standard of proof: Fraud?

In Ang Hiok Seng v Yim Yut Kiu [1997] 2 MLJ 45 Azmi FCJ. Stated “Where the allegation of fraud in civil proceedings concerns criminal fraud such as conspiracy to defraud, or misappropriation of money or criminal breach of trust, it is settled law that the burden of proof is the criminal standard of proof beyond reasonable doubt, and not on a balance of probabilities. However, where the allegation is entirely founded on a civil fraud and not on a criminal conduct or offence, the civil burden is applicable”.

In Saminathan v Pappa [1981] 1 MLJ 121 where Suffian LP in FC cited Lord Atkin in Narayanan Chettyar v Official Assignee, Rangoon AIR [1941] PC 93, 95 for the proposition that the defendant must prove fraud not on the balance of probabilities but beyond reasonable doubt for the purpose of proving the plaintiff’s name as registered owner under s 340 of the National Land Code 1965. The criminal standard, ie proof beyond reasonable doubt, was also applied by the PC in Datuk Joginder Singh & Ors v Tara Rajaratnam [1986] 1 MLJ 105. There the fraud was based on CBT and undue influence in the transfer by the plaintiff’s land.

Fraud smells of crime, so how come you divide it as civil and criminal. There is a problem to distinguish it. In Eric Chan Thiam Soon v Sarawak Securities Sdn Bhd. [2000] 4 CLJ 464, per Ian HC Chin J: “The distinction between civil fraud and criminal fraud cannot hold. It is an attempt at distinguishing the undistinguishable. “Fraud” has the same meaning whether in criminal or civil cases. In this case, the standard of proof must be proof beyond reasonable doubt”.

Current position: It is now settled law that the standard of proof required for an allegation of fraud in civil proceedings must be one of beyond reasonable doubt and not on balance of probabilities. (See: Asean Security Papers Mills Sdn Bhd v. CGU Insurance Bhd [2007] 2 CLJ 1 (Federal Court); and Yong Tim v. Hoo Kok Chong & Anor [2005] 3 CLJ 229 (Federal Court).

Standard of proof: Forgery?

For forgery in bank charges, the Supreme Court in applying the civil burden of proof held in United Asian bank Bhd v Tai Soon Heng Construction Sdn Bhd [1993] 1 MLJ 182, following Sykt Islamiyah v Bank Bumiputra Malaysia Bhd [1988] 3 MLJ 218 “The standard of proof required in a case of forgery on the facts of such a case as the one before the Court is not that of beyond reasonable doubt, but of a balance of probabilities”.

In Boonsoom Boonyanit v Adorna Properties Sdn. Bhd. [1997] 3 CLJ 17, Gopal Sri Ram JCA held that it is a general rule of the common law that, in the absence of a statutory provision to the contrary, proof in civil proceedings of facts, amounting to a crime need only be on a balance of probability.

The general rule finds expression in the judgment of the High Court of Australia in Rejfek v McElroy [1965] 112 CLR. The proof of forgery in civil proceedings, unlike fraud, comes within the general rule earlier adverted to. That it need only be established on a balance of probabilities was laid down as long ago as 1855 by the Privy Council in Doe D. Devine v. Wilson [1855] 14 ER 581.

Standard of proof: Alibi?

The court held in Jayasena case that if there is an allegation on a particular fact, to rebut that fact the quantum of proof is on a balance of probability.

This was also held in Dato Mokhtar Hashim & Anor v PP [1983] 2 MLJ 232 (FC), where the accused relies on the defence of alibi, then he has the legal burden to prove his defence.

ALIBI (SECTION 103 OF EA):

Standard of proof: Self defense?

The Privy Council in this Ceylonese case has ruled that the burden of proving accident, provocation, or self-defence rested upon the accused and could not be construed in the light of a decision in Woolmington v Director of Public Prosecutions [1935] AC 462 (i.e. evidential burden/ beyond reasonable doubt) that had changed the English law.

In the Federation we have been following the decision in Woolmington's case as is apparent in the judgment of the Court of Appeal (as it was then known) in the case of Looi Wooi Saik v Public Prosecutor [1962] MLJ 337. The provision of section 105 of the Evidence Ordinance of Ceylon is similar to our section 105. Looi Wooi Saik’s case would, therefore, appear to have been overruled. In the Federal Court cases of Lee Chin Hock v PP [1972] 2 MLJ 30 and Lee Thian Beng v PP [1972] 2 MLJ 248 where it was held that the burden of proving the circumstances in section 105 is on accused. It is settled law that in criminal proceedings where there is a burden on the accused it is no higher than that of a party in a civil proceeding, that is to say on the balance of probabilities. See also Ikau Anak Mail v PP [1973] 2 MLJ 153.

JAYASENA V REGINAM [1970] AC 618, [1970] 1 ALL ER 219

Standard of proof: Matrimonial offences?

• The petitioner, a Singapore staff nurse, and the respondent, a Malaysian dental surgeon, were married in 1977 in the civil marriage registry in Seremban. After their marriage and honeymoon, they were supposed to set up matrimornal home in Bahau, Negeri Sembilan. As events turned out, they never really set up any proper matrimonial home in Malaysia or Singapore. She continued to work as a staff nurse in Singapore and he a dental surgeon in Negeri Sembilan and they met and had marital intercourse on weekends and holidays on both sides of the Johore Causeway. This arrangement appeared workable till the respondent was transferred to the Government dental clinic in Seremban, when the petitioner became suspicious of his relationship with two staff nurses, the co-respondents. After signing a separation agreement, the couple decided to live apart. The petitioner then filed her petition seeking dissolution of the marriage based on the sole ground of the respondent's adultery with the co-respondents. The evidence in support was not direct but circumstantial. In his answer, the respondent counter-charged desertion and cruelty on the petitioner's part and sought divorce on those grounds.

• Held: (1) adultery, cruelty, and desertion are serious matrimonial offences and require proof beyond reasonable doubt. See also Ng v. Lim [1969] 1 MLJ 139 & Wee Hock Guan v. Chia Chit Neo & Anor [1964] MLJ 217.

LIM NYUN YIN V GAN KIM BIOW & ORS. [1982] 2 MLJ 68

Standardof

proof

Electionoffences

Circumstantialevidence

Contemptof

courtFraud Forgery Alibi Self-

defenseMatrimonial

offences

Beyondreasonable

doubt

Beyondreasonable

Doubt/Irresistibleconclusion

test

Beyondreasonable

doubt

Beyondreasonable

doubt

Balance of

probabilities

Balance of

probabilities

Balance of

probabilities

Beyondreasonable

doubt

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EXAMINATION OF

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