BURDEN AND STANDARD OF PROOF : SHIFTING THE BURDEN OF PROOF FROM THE PROSECUTION TO THE DEFENDANT

SHIFTING THE BURDEN OF PROOF TO THE FROM THE PROSECUTION TO THE            DEFENDANT

s. 106 Evidence Act 1950

When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. The rational:-

PP v Hoo Chee Keong

Here, the accused had used 3 forged credit cards. It is then up to the accused to prove that he genuinely did not know that the credit cards were forged.

… is an exception to s. 101 of the Evidence Act 1950… designed to meet certain exceptional cases in which it would be impossible, or at any rate 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.

It should be noted that the word “especially” used in s.106 of the Evidence Act 1950 is discussed in the subsequent cases:-

PP v Lim Kwai Thean

“especially” does not say “exclusively” or “solely” within the knowledge of the accused… the effect of the word “especially” is… that if it is an easy matter for the person, the proof of which by the prosecution would present the prosecution with inordinate difficulties, then ordinary common sense demands that the balance of convenience should be in favour of the prosecution.

Lee Chin Hock v PP

The accused was charged under s. 25 of the Internal Security Act (ISA). The words “without lawful excuse” placed the onus on the accused as it would be within the person’s knowledge.

The burden of proof shifts from the prosecution to the accused to proof that it was not his fault. However, s. 106 should not be used arbitrarily to shift the burden of proof to the accused.

Mary Ng v R

The Privy Council held that it was for the prosecution to prove “dishonesty” and that it was not for the accused to she had not acted deceitfully. Refer [Attygalle v The King]

Attygalle v The King [Sri Lankan case]

Viscount Hailsham: “… It is not the law of Ceylon that the burden is case upon an accused person of proving that no crime has been committed…”

s. 106 should not be used to shift the burden of proof. It can only be used when the fact is to the knowledge of the accused.

Re Tan Kheng Cheng

s. 106 is imposed on the accused only where the prosecution has first made out a case which, if unrebutted, would entitle the court to convict. If at the end of the prosecution’s case there is no evidence upon which a court can find that a case which if unrebutted will entitle it to convict, the court should not even call upon the defense.