381926 3.STD OF Proof 2021 PDF

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LAW OF EVIDENCE I TOPIC 3: STANDARD OF PROOF A.INTRODUCTION 1. Where a party to a proceeding has a legal burden of proof, that party is under a legal obligation to satisfy the court of the existence of a fact according to the standard of proof set by law. 2. There are only 2 standards of proof which, are recognised by law: a. Beyond Reasonable Doubt (BRD) (The standard imposed on the Prosecution in criminal cases) b. Balance of Probabilities (BOP) (The standard imposed on parties in Civil Cases and on the Accused in a Criminal Cases when a defence is raised) 3. These 2 terms are not found in the Evidence Act 1950 and are not defined in s.3 of the Act . S.3 only refers to the term “proved” "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” 4. As the Evidence Act 1950 does not expressly provide for standard of proof reference is made to the common law for guidance. 5.Note : CPC does refer to the duty of P to prove BRD See : s.182A CPC and s.173(m)CPC 6. Case Law: •

WOOLMINGTON V DPP[1935]AC 462

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MAT V PP[1963]MLJ 263

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PP V SAIMIN [1971] 2 MLJ 16

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MOHD RADHI YAAKOB V PP[1991] 3 MLJ 169

7. What does it mean?? MILLER V MINISTER OF PENSIONS [1947] 2 AER 37 Denning .J: “proof beyond reasonable doubt does not mean proof beyond a shadow of doubt….If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence ‘of course it is possible but not in the least probable, the case is proved beyond reasonable doubt’ but nothing short of that will suffice.” “The degree of cogency which is required to discharge a burden in a civil case is well settled .It must carry a reasonable degree of probability but not so high as is required in a criminal cases .If the evidence is such that the tribunal can say:’ We think it more probable than not” the burden is discharged, but if the probabilities are equal, it is not

8. R V CARR-BRIANT (1943) Held: where accused has a legal burden it has to be discharged on the balance of probabilities •

PP V YUVARAJ

B. CIRCUMSTANTIAL EVIDENCE 1. Circumstantial evidence refers evidence of fact relevant to the fact in issue. Circumstantial evidence if accepted by the court will allow the court draw inferences as to the existence or nonexistence of the fact in issue. Note: Q.1.Can the accused be convicted purely on circumstantial evidence?

Note: Q. 2.Is there a higher standard of proof on the Prosecution where the evidence against the accused is purely circumstantial? 3.R V HODGE (1936) 168 ER 1136 HELD: where the evidence against the accused is purely circumstantial the court must be satisfied, not only that those circumstances are consistent with his guilt but those facts are such that there is no other resistible conclusion but the prisoner’s guilt.

(Irresistible conclusion test)

Q. Does this give rise to a standard of proof which is higher than beyond reasonable doubt?

4. Case Law: CHAN CHWEN KONG V PP [1962] MLJ 307 SUNNY ANG V PP [1966] 2 MLJ 195 JURAIMI BIN HUSIN V PP [1998] 1 MLJ 537 KARTAR SINGH V R (1952) MLJ 85 KARAM SINGH V PP (1967) 2MLJ 25 MCGREEVY V DPP (1973) 1AER 543 ENG SIN V PP (1974) 2 MLJ 168 JAYARAMAN V PP (1982) DATO MOKTHAR HASHIM VPP (1983) 2 MLJ 232 SARJIT KAUR V PP [1998] 3 CLJ 184 PP V HANIF BASRI BIN ABDUL RAHMAN [2008]4 AMR 806 SINNAIYAH & SONS SDN BHD v. DAMAI SETIA BHD[2015] 7 CLJ 584 ,FC C .CORPUS DELICTI (BODY OF CRIME) 1. Before the P can prove the Accused has committed the crime, it must first establish that the crime has been committed. 2. CASE LAW : SUNNY ANG V PP (1966)2 MLJ 195 PP v. PATHMANABHAN NALLIANNEN & ORS [2013] 5 CLJ 1025

D. TEXT / READING LIST 1. Augustine Paul, Evidence Practice and Procedure (4th edn, LexisNexis 2010), Chapter VII. 2. Hamid Sultan Abu Bakar , Janab’s Key To The Law of Evidence (4th edn, Janab 2014) pg 112- 115 & Chapter VII. 3. Mariette Peters, Law of Evidence in Malaysia (LexisNexis, Malaysia, 2013), Chapter 2.

E. e-LEARNING ACTIVITY 1. Students to read online news report on the Becky Watts case on and identify circumstantial evidence. 2. Students to read on line case report on PP v. PATHMANABHAN NALLIANNEN & ORS [2013] 5 CLJ 1025 3. Students to read on line article on prima facie: “Is It Wrong To Be Silent?: Comparative Legal Positions In Malaysia And New Zealand On The Right To Silence” Mohd Munzil Bin Muhamad. [2013] 1 MLJ lx 4. Students to read ABDULLAH ATAN v. PP & OTHER APPEALS [2020] 9 CLJ 151, FC 5.Students to read PP v. DATO' SRI MOHD NAJIB HJ ABD RAZAK [2020] 8 CLJ 39, HC...