PRIMA FACIE

Prima facie is a Latin expression meaning on its first encounter, first blush, or at first sight. The literal translation would be "at first face" or "at first appearance", from the feminine form of primus ("first") and facies ("face"), both in the ablative case. It is used in modern legal English to signify that on first examination, a matter appears to be self-evident from the facts. In common law jurisdictions, prima facie denotes evidence that – unless rebutted – would be sufficient to prove a particular proposition or fact. The term is used similarly in academic philosophy. Most legal proceedings require a prima facie case to exist, following which proceedings may then commence to test it, and create a ruling.

Legal burden of proof

In most legal proceedings, one party has a burden of proof, which requires it to present prima facie evidence for all of the essential facts in its case. If they cannot, its claim may be dismissed without any need for a response by other parties. A prima facie case might not stand or fall on its own; if an opposing party introduces other evidence or asserts an affirmative defense it can only be reconciled with a full trial. Sometimes the introduction of prima facie evidence is informally called making a case or building a case.

For example, in a trial under criminal law the prosecution has the burden of presenting prima facie evidence of each element of the crime charged against the defendant. In a murder case, this would include evidence that the victim was in fact dead, that the defendant's act caused the death, and evidence that the defendant acted with malice aforethought. If no party introduces new evidence the case stands or falls just by the prima facie evidence or lack thereof.

Prima facie evidence need not be conclusive or irrefutable: At this stage, evidence rebutting the case is not considered, only whether any party's case has enough merit to take it to a full trial.

In some jurisdictions such as the United Kingdom, the prosecution in a criminal trial must disclose all evidence to the defense. This includes the prima facie evidence.

An aim of the doctrine of prima facie is to prevent litigants from bringing spurious charges which simply waste all other parties' time.

Res ipsa loquitur

Prima facie is often confused with res ipsa loquitur (literally, "the thing speaks for itself"), the common law doctrine that when the facts make it self-evident that negligence or other responsibility lies with a party, it is not necessary to provide extraneous details, since any reasonable person would immediately find the facts of the case.

The difference between the two is that prima facie is a term meaning there is enough evidence for there to be a case to answer. Res ipsa loquitur means that because the facts are so obvious, a party need explain no more. For example: "There is a prima facie case that the defendant is liable. They controlled the pump. The pump was left on and flooded the plaintiff's house. The plaintiff was away and had left the house in the control of the defendant. Res ipsa loquitur."

Other uses and references

The phrase prima facie is sometimes misspelled prima facia in the mistaken belief that facia is the actual Latin word; however, the word is in fact faciēs (fifth declension), of which faciē is the ablative.

The phrase is very commonly used in academic philosophy, in exactly the same sense used by lawyers. Among its most notable uses is in the theory of ethics first proposed by W. D. Ross, often called the Ethic of Prima Facie Duties, as well as in epistemology, as used, for example, by Robert Audi. It is generally used in reference to an obligation. "I have a prima facie obligation to keep my promise and meet my friend" means that I am under an obligation, but this may yield to a more pressing duty. A more modern usage prefers the title pro tanto obligation: an obligation that may be later overruled by another more pressing one; it exists only pro tempore.

In policy debate theory, prima facie is used to describe the mandates or planks of an affirmative case (or, in some rare cases, a negative counterplan). When the negative team appeals to prima facie, it appeals to the fact that the affirmative team cannot add or amend anything in its plan after being stated in the first affirmative constructive.

A common usage of the phrase is the concept of a "prima facie speed limit", which has been used in Australia and the United States. A prima facie speed limit is a default speed limit that applies when no other specific speed limit is posted, and which may be exceeded by a driver. However, if the driver is detected and cited by police for exceeding the limit, the onus of proof is on the driver to show that the speed at which the driver was travelling was safe under the circumstances. In most jurisdictions, this type of speed limit has been replaced by absolute speed limits.

Prima Facie In Malaysia

Since Malaysia does not enact the definition of the words “prima facie” in any Act including Criminal Procedure Code, the judge normally define the “prima facie” according to the dictionary.

According to law dictionary , Prima facie means of first appearance; on the face of it,based on a 1st impression. A prima facie case is one in which the evidence in favour of a party is sufficient to call for an answer from his opponent

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Besides that, judicial dictionary also define that prima facie means not only that the plaintifs evidence would reasonably allow conclusion plaintiff seeks but also that plaintiff’s evidence compels such a conclusion if the defendant produces no evidence to rebut it.

On top of that, The encyclopedic law dictionary also define that prima facie means at 1st sight; on the 1st appearance; on the face of it; so far as can be judged from the 1st disclosure; presumably; a fact presumed to be true unless disproved by some evidence to the contrary. This definition is deprived from the case of State ex rel. Harbert V. Whims . In that case, the definition of prima facie is on face of it; at first sight; arising at 1st sight; based on the 1st impression.

In Malaysia, the judge may refer to law dictionary to define the definition of prima facie. For example, in Arulpragasan a/l sandaraju v Public Prosecutor , the judge refer to dictionary to define it as “at 1st sight” or “on the face of it”. In conclusion, for my understanding of the word “prima facie”, it should be defined as “at 1st sight” or “on the face of it”.

The question how to determine the degree of proof required to establish a prima facie case has been discussed since Malaysia independent. The history of development of the degree of proof required to establish a prima facie case can be divided into 3 parts. The 1st part is before the case of Haw Tua Tau v Public Prosecutor . The second part is at the time of the case of Haw Tua Tau V Public Prosecutor. The 3rd part is after the case of Haw Tua Tau v Public Prosecutor.

Before the case of Haw Tua Tau, Malaysia court applies the degree of proof as maximum evaluation to establish a prima facie case at the close of prosecution’s case. However, once the case of Haw Tua Tau inserted the concept of minimum evaluation to establish a prima facie at the close of prosecution’s case, Malaysia court was undecided to determine which degree of proof should be required to establish a prima facie case at the close of prosecution’s case. In the year of 1997, the case of Arulpragasan a/l Sandaraju v Public Prosecutor put a stop to the dispute of the concept of minimum evaluation and maximum evaluation at the close of prosecution’s case. In this case, the federal court judge decide the maximum evaluation should be applied and the degree of proof required to establish a prima facie case should be beyond the reasonable doubt at the close of prosecution case. After the case of Arulpragasan a/l Sandaraju v Public Prosecutor, the degree of proof required to establish a prima facie case is basically tended to maximum evaluation based the degree of proof reasonable doubt at the close of prosecution’s case. However, there is some dispute between the standard of proof whether maximum evaluation at the close of prosecution’s case or beyond reasonable doubt at the close of prosecution’s case from the year of 1997 until the year of 2010.

In the case of Chian Swee Ong v Public Prosecutor , the judge say to establish a prima facie case, the judge must have carefully considered the evidence adduced by the prosecution and the submissions made by the parties to the present case in order to lead the judge to the only irresistible conclusion.

In the case of Mohd Khirudin bin Yaakub v Public Prosecutor, the judge say he must have regard to the evidence as a whole in this case to find that the learned trial judge was justified in concluding that there is a prima facie case against the appellant at the end of the prosecution’s case. The judge agrees the learned judge has given a maximum evaluation of the evidence before him before he called the appellant to enter his defence.

In the case of Looi Kow Chai & Anor v Public Prosecutor , the judge say that subjecting the evidence of the prosecution to maximum evaluation to determine if the defence was to be called did not mean that the prosecution had to prove its case beyong aresonable doubt at this intermediate stage.

In the case of Deputy Public Prosecutor v Peter ak Merupi @ Mansor bin Abdullah , the judge say the court is bound to apply a maximum evaluation of the prosecution’s evidence to determine whether a prima facie case had been made out against the accused. Applying maximum evaluation means applying the beyond reasonable doubt test.

In the case of Public Prosecutor v Ramanathan a/l Chelliah , the judge agree to invoke the then s 173(f) of the CPC where the language of “if unrebutted warrants a conviction” had been found it to it being a “beyond reasonable doubt” standard of proof after a maximum evaluation of the prosecution evidence. Thus, the judge agrees the correct standard of proof is undertaking not minimum but a maximum evaluation of the evidence at the close of the prosecution’s case.

In the case of Ahmad Najib Bin Aris v Public Prosecutor , the High Court had relied on the maximum evaluation principle in the case of Looi Kow Chai & Anor v Public Prosecutor .

In conclusion, the latest development of degree of proof required to establish prima facie can be divided into 2 views. 1st view is that the degree of proof at the close of prosecution’s case is the maximum evaluation which stated in the case of Looi Kow Chai & Anor v Public Prosecutor. Another view is that the degree of proof at the end of close of prosecutor’s case is that applying the maximum evaluation means applying the beyond reasonable doubt test at the close of prosecution’s case.

In the year of 1981, This question has been discussed in the case of Haw Tua Tau v Public Prosecutor . In Haw Tua Tau case, the judge mentioned that once defence is called but the accused elects to remain silent and offers no evidence, the judge should do the 2nd time evaluation on the evidences adduced at the end of the trial before the judge can convict the accused although the accused elects to remain silent and offers no evidence. In Haw Tua Tau case, the 1st time evaluation on the evidences was made at the close of prosecution’s case. In the year of 1997, this question is discussed again in the case of Arulpragasan a/l Sandaraju v Public Prosecutor . In Arulpragasan a/l sandaraju v Public Prosecutor, the dissenting judgment mentioned that, the trial is accorded to natural justice principle, the judge cannot make maximum evaluation at the close of prosecution’s case and convict him if the accused remain silent and offers no evidence in the middle of the case. It means the accused should given right to be heard to bring to his defence before the judge in order the trial can be completed. After that, the judge can make beyond reasonable test at the end of trial and convict if the accused is unable to offers evidence to rebut it. However, it is dissenting judgment and not majority judgment to support the view in Arulpragasan a/l Sandaraju v Public Prosecutor.

In the year of 2003, the cases Looi Kow Chai & Anor v Public Prosecutor , the judge must make up his mind that whether the judge prepare to convict the accused after the judge decide to call upon the accused to enter the accused’s defence and the accused elects to remain silent. If the answer is in the negative then no prima facie cases has been made out and the accused would be entitled to acquittal although the accused elects silent and offer no evicence.

In the year of 2009, there are cases discussed this question. In Ahmad Najib bin V Public Prosecutor , the judge say the court must find there is no choice but to convict the accused if the accused fail to rebut the evidence adduced by the prosecution. The judge further mentions that an accused person has the right to remain silent, is not at all infringed by the principle of “if unrebutted would warrant a conviction”. The evidence adduced must be such that it would warrant a conviction if unrebutted. If the evidence adduced by the accused which cannot rebut the evidence adduced by prosecution or the accused offer no evidence, the court can be in the circumstances of no other alternative but to convict the accused.

In the case of Public Prosecutor v Kandiah a/l Subramaniam , the judge mentioned that it is a well established principle of Malaysian criminal law that the general burden of proof lies throughout the trial on the prosecution to prove beyond reasonable doubt the guilt of the accused for the offence for which he is charged. There is no similar burden placed on the accused to prove his innocence. He is presumed innocent until proven guilty. To earn an acquittal his duty is merely to cast a reasonable doubt on the prosecution’s case. In the other words, the judge cannot convict the accused although the accused elect silent and offer no rebutted evidence if the accused successfully raise reasonable doubt at the close of prosecution case.

In the case of Lee Kwan Who V Public Prosecutor the judge say the expression law in art 5(1) of the Constitution included written law and the common law of England, ie, the rule of law and all its integral components and in both its procedural and substantive dimensions. Thus, it is settled law that the rule of law has both procedural and substantive dimensions. It is also clear from the authorities that it is a fundamental right guaranteed by art 5(1) that a person’s life or personal liberty may not be deprived save in accordance with state action that is fair both in point of procedure and substance. When this principle is applied to a criminal case it means that the accused has a constitutionally guaranteed right to receive fair trial, which includes his right to make a submission of no case at the close of the prosecution’s case and that he cannot waive this right or be deprived of it. Thus, at the close of the prosecution case, a trial court must invite submissions from the accused and it was then open to the accused to elect to either make a submission or not to, but the court could not deny him the opportunity to make a submission of no case to answer.

In conclusion, the latest outcome of discussion for this question in Malaysia case is the judge should apply the maximum evaluation on the evidence at the close of prosecution and make sure there is no reasonable doubt raise at the close of prosecution before the judge can convict the accused if the accused elect silent and offer no evidence after defence is called.

the court has determined that current legislative amendment above section 173 (f) CPC on prima facie standard of proof at the close of the prosecution’s case does not have retrospective effect. The case of Arulpragasan a/l Sandaraju v PP is landmark case for this principle. In the case of Public Prosecutor v Pasupathy s/o Kanasaby [2001] 2 MLJ 143, per Mokhtar Sidin JCA affirmed this principle in the case of Arulparagasan a/s Sandaraju v PP.

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