BURDEN AND STANDARD OF PROOF : CRIMINAL CASES & PROVING DEFENCES

BURDEN AND STANDARD OF PROOF

s. 101 Evidence Act 1950

Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.

The burden of proof thus lies on the prosecution in a criminal case whereas the plaintiff would assume the burden of proof in a civil case.

S. 102 Evidence Act 1950

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.

Case : MGI Securities v Teong Teck Leng  & Kam Pau Siong & Anor v Wilayah Fabrication Sdn Bhd & Ors

s. 101 and s. 102 of the Evidence Act 1950 requires “whoever desires any court to give judgement as to any legal right or liability dependent on the existence of fact, which he asserts, must prove those facts do exist.”

The law on the burden of proof is governed by the provisions found in Chapter VII and Part III of the Evidence Act. In accordance with s. 101 of the Evidence Act, the legal burden of establishing that circumstances had arisen which entitle the 3rd respondent to..

CRIMINAL CASES

Prosecution

The prosecution has the burden to prove the case and this burden lies with him throughout in respect of the facts in issue.

Accused

The accused has to weaken the effect of the prosecution’s case either by cross-examination or by adducing evidence himself and through   witnesses, if any.

Burden of Proof on the Prosecution

The standard of proof refers to the quantum of proof which depends on the nature of the case dealt with:-

Criminal Case Beyond Reasonable Doubt

Civil Case Balance of Probabilities

There is no reference to the standard of proof in the Evidence Act. However, an attempt to explain the quantum is made in s. 3 of the Evidence Act where reference is made to a “prudent man” and the standard expected of that “prudent man”.

s. 3 Evidence Act 1950

Proved: A fact is said to be “proved” when, after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.The meaning of “prudent man” is discussed in the following case:-

Liew Kaling v PP

… the standards which the prudent man will apply to any question which confronts him will vary according to the importance of the question itself.

This means that the standard of the “prudent man” which applies in a criminal case if higher than that in a civil case. Hence, the standards of “beyond reasonable doubt” and “balance of probabilities” is justified. These standards remain common law principles and are not founded under the Evidence Act. However:-

PP v Yuvaraj

It could not be supposed that the Evidence Ordinance intended by a provision contained in what purported to be a mere definition to abolish the historic distinction fundamental to the administration of justice under common law, between the burden which lies on the prosecution in criminal proceedings to prove their facts which constitute an offence beyond a reasonable doubt and the burden which lies upon the party in a civil suit to prove the facts which constitute his cause of action or defence on a balance of probabilities.

Miller v Minister of Pensions

The term beyond a reasonable doubt should not be confused with beyond a shadow of doubt. Although it is a high degree of probability, it need not reach certainty. There is no absolute standard of proof in a criminal trial and the question whether the charge made against the accused have been proved beyond all reasonable doubt must depend upon the facts and circumstances of the case and the quality of the evidence adduced in the case and the materials places on record.

It is the prosecution’s duty to prove the case beyond reasonable doubt and the accused has to merely cast a reasonable doubt.

PP v Saimin

A “reasonable doubt” is a doubt which makes one hesitate as to the correctness of the conclusion that one reaches… it is the doubt that settles in one’s judgment and finds a resting place there. Or as sometimes said, it must be a doubt so solemn and substantial as to produce in the minds of the jurors some uncertainty as to the verdict to be given. A reasonable doubt must be a doubt arising from the evidence or want of evidence and cannot be an imaginary doubt or conjecture unrelated to evidence.

BURDEN OF PROOF WHILE PROVING DEFENCES

s. 105 Evidence Act 1950

When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the general exceptions in the Penal Code or within any special exception of proviso contained in any other part of the same Code, or in any law defining the offence upon him, and the court shall presume the absence of those circumstances.

Note:- the words “… accused of any offence…” suggest that this section only applies to Penal Code Offences and other Criminal Offences defined under the Law.

PP v Kenneth Fook Mun Lee (No 1) 

The burden to prove his defence lay on the accused… no obligation on the prosecution to adduce evidence to show…

Ikau anak Mail v PP

The accused has a burden to prove his defence of provocation on a balance of probabilities.