TOPIC 5 : BURDEN AND STANDARD OF PROOF

CT's decision depends on whether the parties have satisfied

their bop and sop
Two aspects of this topic: (1) who bears the bop; and (2) to
what degree must that fact be proved (sop)
ONUS PROBANDI (BOP)
- Whose duty is it to prove the fact that he alleged in the court
proceeding?
- BOP
- When one talks about BOP: two things come to mind: (1) legal
burden to establish a fact; and (2) evidential burden to prove
the existence of a fact
LEGAL BURDEN
-

burden of establishing a case/proving FII

FII concerns the liability or non-liability of the parties
Concerns with the elements of the crime or civil wrong as well
as the defences relied on by the Accused
The FII is determined by the substantive law and pleadings
Rests on the party that asserts the fact in issue
Semper necessitas probandi incumbit ei qui agit (the
necessity of proof always lies with the person who lays the
charges)
In Criminal case: the one who lays the charges is the
prosecutor; while in civil case its the plaintif
Characteristics of Legal Burden
I. Burden of establishing a case; II. a matter of law and
pleading; III. to prove fii; IV. rests upon the party who asserts
in the affirmative of the issue; fixed burden on one party and
never shifts; makes itself felt at later stage, when all evidence
was produced by the parties

On whom does it lie?

- S 101 EA
- Whoever desires any court to give a judgment as to any right
or liability, depenedent on the existence of facts which he
asserts, must prove those facts exist
- When a person is bound to prove the existence of any fact, it
is said that the burden of proof lies on that person
- This section embodies Legal Burden
- Oriif ub Crunubak cases:
1. Common law
Woolmington v DPP
Was charged with the murder of his wife. Wife left him and
stayed with the uncle. He went there to persuade her but
ended up killing her with a shotgun
His defence was that the gun went off accidentally. The trial
court held that the accused had failed to prove that the

TOPIC 5 : BURDEN AND STANDARD OF PROOF

gun went off accidentally
On appeal, the court held that it was not the accuseds bop
that the gun was shot accidentally. And this can be clearly
seen in the judgment of Viscount Sankey LC
Throughout the web of the English criminal law one golden

thread is always to be seen - that it is the duty of the

prosecution to prove the prisoner's guilt subject to what I have
already said as to the defence of insanity and subject also to any
statutory exception... No matter what the charge or where the
trial, the principle that the prosecution must prove the guilt of
the prisoner is part of the common law of England and no
attempt to whittle it down can be entertained.

However, we follow the provision of EA. S 101 of the EA

MAT V PP (1963)
as the onus of proving his guilt lies throughout on the
prosecution.

However, the judge in Woolmington did mention that there

are some exceptions
(1) when the Statute imposes B on the accused (the reversal
of onus provision); and (2) when the Acc relies on the plea of
insanity

DEFENCE OF INSANITY
- The accused relies on the defence of insanity also has the
duty to prove that he was not of sound mind
- R v Podola
The Acc relied on the defence of insanity also has the duty to
prove that he was not of sound mind
REVERSE ONUS CLAUSE/PROVISION
- sometimes the statute raises a presumption. And this
presumption can be rebutted
- provided that or unless proven to the contrary
- MACCA if a person pays money to a gov officer, the money is
deemed to be given corruptly
- R v Carr-Briant (1943)
LEGAL BURDEN IN CIVIL CASES
- legal burden lies on the plaintiff as decided in Miller v
Minister of Pensions
- in Malaysia, this authority is derived from S 101 of EA
- If the plaintif desires the court to give judgment in his favour
and find the def liable dependent on the existence of duty of
care and the breach of that duty of care which he asserts that
the def had committed, he must prove the defendant was
negligent
- Nuri Asia Sdn Bhd v Fosis Corp
As per Low Hop Bing J :

TOPIC 5 : BURDEN AND STANDARD OF PROOF

As the plaintiff desires this court to give judgment as to the
legal right or liability, dependent on the existence of facts
which he asserts in relation to the existence

EVIDENTIAL BURDEN
-

burden of adducing evidence

aka burden of leading evidence
Obligations of producing sufficient evidence t justify the judge
to allow the hearing to continue during various stages of the
trial
Unstable and may shift constantly throughout the trial:i. First lies on the party who would fail; if not evidence is given
on either side;
ii. Shift as soon as he produces evidence which prima facie
gave rise in his favour;
iii.shift back to him when the opposing party rebutted
produced by him
Makes itself felt at early stage and throughout the proceeding

STANDARD OF PROOF
Degree of proof required to discharge the burden of proof
that is to convince the court that a proposition is true
Degree of proof required depends on the circumstances of
the proporsition
The criminal relates to level (degree) of poof to
convince the court to find the accused guilty
Civil cases level of proof to find judgment in favour of
the plaintiff or the defendant
Criminal: beyond reasonable doubt
Highest burden
Proven to the extent that there is no reasonable doubt in
mind of reasonable man that the accused is guilty
There can still be a doubt but only to the extent that it
would not affect reasonable persons belief that the
accused is guilty
(the analogy of a seasaw three possibilities for
everything. Kemungkinan kecil dia melakukan. But if it
goes to the level of being possible, then there may be
a reasonable doubt)
Not beyond the shadow of doubt (the strictest standard
of proof) where there is no doubt as to the issue an
impossible standard

TOPIC 5 : BURDEN AND STANDARD OF PROOF

Civil

i.

: Balance of probabilities
Aka preponderance of evidence
The yardstick is on the likelihood
Court being satisfied that an event occurred if it believes
that on the evidence, the occurrence of the event is
more likely than not
ii.
It does not require a Court to be certain that the event
did occur
Miller v Minister of Pensions
Nuri Asia Sdn Bhd v Fosis Corp

PRIMA FACIE CASES

At the end of the case, the court has to find a prima facie case. The
question here is; what is the standard of proof for the court to apply
that the court has found a prima facie case
Prior to 1997 amendment
Before Haw Tua Taw v PP
Post Haw TT v PP
Position with amendment in 1997 to CPC
Position with amendment in 2006
1. POSITION PRIOR TO 1997
A. BEFORE HTT V PP
CPC provided two specific provisions as to the standard of proof
1. S 173 of CPC Summary trial
2. S 180 of CPC High Court
S 173 (f) If upon taking all the evidence herein before referred to
the court finds that no case against the accusedunrebutted
S 180 when the case for the prosecution is concluded, the court, if
it finds that no case against the accused has been made out which if
unrebutted would warrant his conviction, shall record an order of
acquittal or .
End of the Prosecutions case
Beyond reasonable doubt because of the word unrebutted
PP v Man bin Abbas
The Court held that in a prima facie case, the duty to produce
evidence is beyond reasonable doubt
When the court called the accused to enter his defence, this showed
that in the opinion of the court, a prima facie case had been made
against the accused. If no case agants the accused had been made

TOPIC 5 : BURDEN AND STANDARD OF PROOF

out which if unrebutted would warrant his convictiion, he would
have acquitted the accused at that stage
PP v Goo Kian
The word of unrebutted attracts the standard of proof of beyond
reasonable doubt
B. AFTER HTT V PP
Haw Tua Tau v PP [1981] 2 MLJ 49
The Court asks on the presumption
i. The prosecutor must bring evidence to prove each element of
the offence.
ii.
Evidence which is inherently credible
This case suggested a standard other than the one prior to this
case: a conflict between two standards. So the court was divided
into two
a. Maximum evaluation (Beyond reasonable doubt)
b. Minimum evaluation (prima facie)
Prove elements of the crime with evidence which is inherently
credible
Whether the court in Malaysia needs to follow the change
Minimum evaluation
A Ragunathan v PP
With respect toe very element in the charge some evidence which if
accepted would either prove the elements directly on enabling its
existence to be reasonably inferred
Munusamy v PP
It is obvious that there is nothing in HTT to suggest that the prima
facie case approach is wrong in principle. On the contrary that
case re-establishes once and for all that there is no duty cast on the
prosecution to actually prove their case beyond reasonable doubt as
to the guilt of the accused
Khoo Hi Chiang v PP (Supreme Council)
Minimum evaluation (prima facie)
Tan Boon Kean v PP
Maximum Evaluation
Arulpragasan Sandaraju v PP (Federal Court) [1997]
Beyond reasonable doubt
The first question concerns a hypothetical answer only (satu soalan
andaian)
Can I convict the accused with the evidence put forth by the
prosecution?

TOPIC 5 : BURDEN AND STANDARD OF PROOF

So, when he answers yes, he gives an opportunity to the defence to
rebut the evidence.
The other argument by the propounder of the maximum evaluation
This is merely a procedure
2. AMENDMENT 1997 SUBSITUTIING PARA (h) OF S173. ALSO
TO S180
a. When the case for the prosecution is concluded, the Court
shall consider whether the prosecution has made out a prima
facie case against the accused
b. If the court finds that the prosecution has not made out a
prima facie case against the accused the court shall record an
order of acquittal
Para (h) of S 173 if the court finds that a prima facie case has
been made out against the accused on the offence charged, the
court shall call upon the accused to enter on his defence
STILL GOT PROBLEMS
- No definition of prima facie
- No retrospective effect. Cases before amendment
PP v DSAI (No. 3)
Confirmed that the standard of proof at the end of the prosecution
case cannot be that of the beyond reasonable test. Reinstated the
position in PP v Chin Yoke
3. AMENDMENT 2006
By inserting after subpara (ii) in para h the following subpara
Iii For the purpose for subpara (i) and (ii), a prima facie case is made
out against the accused where the prosecution has adduced
credible evidence proving each ingredient of the ofence which if
unrebutted or unexplained would warrant a conviction
- the defence can bring evidence in defence
BOP AS TO PARTICULAR FACT
- Section 103 of EA need to prove
- Example: alibi
What is an alibi?
- An alibi is not a defence as a defence is where you admit the
doing of the offence. But an alibi, not!
- Websters New World Law Dictionary:
The fact or state of being somewhere other than the scene of
the crime when the crime was committed
- Section 402A of CPC provides that before the trial begins
and if the accused wants to rely on a alibi, he must serve a
notice of his whereabouts etc
- If the Prosecution decides to proceed, the defence may raise
alibi when called to enter defence

TOPIC 5 : BURDEN AND STANDARD OF PROOF

Is s 103 a legal burden or evidential burden?

EB: Standard ONLY to cast reasonable doubt. Court in doubt as to
the whereabout of the accused at the time when the crime was
committed, he is entitled to an acquittal
LB: MUST make the Court believe that the accused was at another
place
There are a number of cases:
Dato Mokthar Hashim v PP
Dato Mokhtar for the murder of Dato Taha. Dato Mokhtar and the
second accused raised an alibi that they went to a function. The
court held that the burden to prove alibi is one on the legal burden.
But the standard is on the balance of probabilities in taking into
account S 402A of CPC
Yau Heng Fang v PP
J Mohamed Azmi
It is not the intention of the parliament in respect of the requirement
of the written notice to given to impose a legal burden on the
defence. It is nothing more . Not the intention of the legislature to
introduce a new legal burden on the accused to establish his
defence
Iillian v PP
Wan Suleiman SCJ
As regard to the defence of alibi, all that the accused person need to
do is to raise a reasonable doubt that he was not the person at the
scene of the crime, then the proper approach is for the learned trial
judge to consider at the close of the defence case that he had
indeed succeeded in doing so
Arumugam Mothiyah v PP
The accused gave alibi that he went to a wedding ceremony but he
couldnt state the name of the bride and groom. So the judge was
left in doubt.
Held: the accused need only to raise a reasonable doubt in order to
earn an acquittal
Refer illustration (a) & illustration (b) to s 103
Section 105 burden of proving that case of accused comes within
exceptions
- Legal or evidential burden?
- Evidential burden the accused need only to raise reasonable
doubt of the existence of the exceptions
Looi Wooi Saik v PP
Legal burden. Charged with the murder of his girlfriend. He
found his gf with another man in a hotel. He claimed

TOPIC 5 : BURDEN AND STANDARD OF PROOF

Ikau anak Mail v PP
Legal burden. Before the land admin, in a hearing for
distribution of matrimonial pty where he was accused of
cheating, stabbed the wife and the uncle
-

CRIMINAL ALLEGATION IN CIVIL CASES

S 103
Criminal allegation in civil cases such as adultery, forgery,
misrep, fraud
What is the SOP?

Common law position:

Depends on the seriousness of the allegation
Highest among them all is fraud. The standard of proof for
fraud is beyond reasonable doubt
Malaysian Position
Ang Hock Sing v Yim Yut Kiu (Fraud)
Azmi J
Where the allegation of fraud in civil proceedings concerns
criminal fraud such as conspiracy to defraud or
misappropriation of money, the bop is the criminal standard of
proof beyond reasonable doubt
He continued to say that where the allegation of fraud is
entirely founded on a civil fraud, and not on criminal conduct
or offence, the civil burden is applicable
Constructive fraud, innocent misrep then the standard may
be on
But, overturned in the case below
Sinnaiyah v Damai Setia (Fraud) the whole development
of this issue is in this case
Richard Malanjum CJSS
There are only two standards of proof; beyond reasonable
doubt for criminal cases, and on the balance of probabilities
for civil cases. As such, fraud in civil claim is on the balance of
probabilities
Neither the seriousness of the consequences should make any
difference to the standard of proof to be applied in
determining the facts