Legal Burden and Evidential Burden

Legal Burden and Evidential Burden

There is no reference made to such terms in the Evidence Act. However, the meaning of the words ‘proved’, ‘disproved’ and ‘not proved’ are defined in s. 3 of the Evidence Act. Under s. 3 of the Evidence Act 1950:-

Proved Disproved Not 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. A fact is said to be “disproved” when, after considering the matters before it, the court either believes that it does not exist or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. A fact is said to be “not proved” when it is neither proved nor disproved.

Jayasena v R

As per Lord Devlin’s dicta:- “… it is confusing to call it [the evidential burden] a burden of proof. Further it is misleading to call it a burden of proof, whether described as lega or evidential or by any other adjective, when it can be discharged by the production of evidence that falls short of proof.

It is therefore accepted that the phrases “burden to prove” and “burden of proof” referred to in the Evidence Act must necessarily refer to the “legal burden of proof”.