Evidence (Topic-2) Burden of Proof PDF

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Topic 3: Burden of Proof Burden of proof = duty to prove/establish a case a) Legal burden of proof – duty to satisfy the court the existence of fact according to the standard of proof set by law (BRD/BOP) b) Evidential burden of proof – duty to adduce some evidences, not necessary to satisfy any st...

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Law of Evidence – written notes – Emily Law

Topic 3: Burden of Proof 

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Burden of proof = duty to prove/establish a case a) Legal burden of proof – duty to satisfy the court the existence of fact according to the standard of proof set by law (BRD/BOP) b) Evidential burden of proof – duty to adduce some evidences, not necessary to satisfy any standard of proof; only to cast a reasonable doubt In our Evidence Act, ‘burden of proof’ is not defined. S. 3 only defined ‘proof’, ‘not proved’ & ‘disproved’

2 approaches of ‘burden of proof’ A. Lord Devlin – ‘burden of proof’ = legal burden of proof  R v Jayasena (1970) 1 All ER 219  Fact: the accused was charged with murder and he raised the defence of selfdefence. The prosecution argued that the defence carries both legal and evidential burden of proof whereas the defence argued that the defence only carries evidential burden of proof.  Held: the judge applied Section 3 of Evidence Act ‘proved’ to interpret Section 105 of Evidence Act. The burden of proof in EA is legal burden of proof and not evidential burden of proof. B.   

Augustine Paul – ‘burden of proof’ = legal and evidential burden of proof S. 101 refers to legal burden of proof S. 102 refers to evidential burden of proof International Times v Leong Ho Yuen (1980) 2 MLJ 86  According to Section 101 of Evidence Act, the burden of establishing a case rests on the party who asserts it. (it refers to the legal burden of proof)  According to Section 102 & 103 of Evidence Act, if the party with whom the onus lies does not given any evidence/insufficient evidence, such party must fail. (it refers to the evidential burden of proof)

Types of defence 

R v Chanderasekara (1942) NLR 97  There is a need to distinguish between 2 types of defences, namely: a) Defence which attack the elements of prosecution’s case b) Defence which are independent from prosecution’s case

A. Defence which attack the elements of prosecution’s case  = Deny the charge  Eg: alibi, accident (attack the AR & MR) 1

Law of Evidence – written notes – Emily Law

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B.   

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Eg: when accused relies on the defence of accident, he is disputing the MR in the prosecution’s case, claiming that he was not intentional. In this situation, the accused only need to cast a reasonable doubt as to whether his act was really intentional. He does not need to prove positively that his act was accidental. The accused succeeds in his defence not because he had established his defence but because by doubting the essential element (MR), he had shown to the court that the prosecution had failed to establish its case BRD. Therefore, according to R v Chanderasekara, if the defence only attacks AR & MR, the accused only bears evidential burden of proof. Nagappan v PP – if the accused did not raise any specific defence but only attack prosecution, the accused only bears evidential burden of proof. Defence which are independent from prosecution’s case = Admitted the charge but trying to justify himself Eg: provocation Eg: when an accused raised defence of provocation, he actually admitted the case that he was responsible for the death of deceased. However, he tries to bring in evidence of circumstances which excuse himself. In this situation, there is a legal burden on the accused to convince the judge on the BOP. Otherwise, his defence of provocation would be rejected. Therefore, in this kind of defence, the accused bears legal burden of proof.

Burden of Proof in Criminal Case Prosecution  

Section 101 of Evidence Act – he who asserts must prove Generally, the burden of proof in a criminal case is on the prosecution.

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Woolmington v DPP(1935) UKHL 1  Fact: the accused was charged with murder of his wife by shooting her with a gun. The accused pleaded accident that the gun went off accidentally & killed his wife. The prosecution could not prove the malicious intention whereas the accused could not establish the defence of accident.  Held (HOL): the prosecution not only must prove the guilt of the accused BRD, it must also prove the MR for the offence. If at the end of the case, there is a reasonable doubt as to whether the accused killed the deceased with malicious intention, the accused must be acquitted.

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Mat v PP (1963) MLJ 263, Justice Suffian: 2

Law of Evidence – written notes – Emily Law

 If you are satisfied BRD as to the accused’s guilt, convict;  If you accept/believe the accused’s explanation, acquit;  If you do not accept/believe the accused’s explanation, do not convict but consider the steps below;  If you do not accept/believe the accused’s explanation & that explanation does not raise a reasonable doubt to you, convict;  If you do not accept/believe the accused’s explanation but it raises reasonable doubt to you, acquit. 

PP v Saimin (1971) 2 MLJ 16 (HC)  Held: o It is the duty of prosecution to prove the charge BRD. o Falsify of the defence does not relieve the prosecution from proving its case BRD. o Reasonable doubt is the doubt which makes one hesitates as to the correctness of the conclusion… a doubt so solemn & substantial which produce uncertainty as to the verdict to be given. A reasonable doubt must be a doubt arising from evidence and cannot be an imaginary doubt.

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Exception: Mohamad Radhi v PP (1991)1 MLJ 169  Fact: the accused was charged with drug-trafficking under Section 37(d) & 37(da) of Dangerous Drug Act.  Section 37(d) of Dangerous Drug Act –any person who is found to have had in his custody or under his control any dangerous drug shall, until the contrary is proved, be deemed to have been in possession of such drug and to have known the nature of such drug  37(da) of Dangerous Drug Act – any person who is found in possession of … xx grams of xx drugs … shall be presumed, until the contrary is proved, to be trafficking in the said drug;  Held: where the prosecution relies on the available statutory presumption in Section 37(d) & 37(da) of Dangerous Drug Act, the burden of proof shifts to the defence to rebut such presumptions on BOP, which is heavier than casting a reasonable doubt but lighter than burden of prosecution to prove BRD.

Accused

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Law of Evidence – written notes – Emily Law

Section 103 of Evidence Act (ALIBI)    

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Section 103 of Evidence Act – the burden of proof of any particular fact lies on the person who wishes court to believe it. Therefore, it is based on balance of probabilities. Note: this section applies to both criminal & civil cases S. 103: illustration (b) – B wishes the court to believe that at the time in question, he was elsewhere. He must prove it. (alibi) Note: alibi is a common law defence, not a statutory defence; hence, s. 105 is not applicable. Section 11 of Evidence Act: illustration (a) – the question is whether A committed a crime at KL on certain day. The fact that on the day, A was at Taiping is relevant. Section 402A of Criminal Procedure Code – provides for alibi.  Section 402A (1) of Criminal Procedure Code – the court shall inform the accused to his right to put forward a defence of alibi at the time the accused was being charged.  Section 402A (2) of Criminal Procedure Code – where the accused put forward defence of alibi, he shall put forward a notice of his alibi during the case management process.  Section 402A (3) of Criminal Procedure Code – the accused may adduce evidence I support of alibi at any time during the trial with 2 conditions: a) The accused must give written notice of alibi to PP; and b) The PP is given reasonable time to investigate the alibi before such evidence can be adduced. Dato Mokhtar Hashim v PP (1983) 2 MLJ 232  Fact: the accused was charged with murder & raised the defence of alibi. Prosecution argued that the defence of alibi not only must bear evidential burden of proof but also legal burden on BOP.  Held: o By referring to Section 402A of Criminal Procedure Code, the accused person bears the legal burden of proving his alibi. o *The burden of proving an alibi lies on the accused setting up the defence but even so the burden of proof as to the guilt of the accused always remains on the prosecution irrespective of whether or not the accused had made a plausible defence.  Note: this is based on the argument whereby s. 103 must be interpreted via s. 3 ‘proved’. The ‘proved’ in s. 3 means legal burden of proof.

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Law of Evidence – written notes – Emily Law

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Yau Heng Fang v PP (1985) 2 MLJ 335 (Supreme Court)  If the learned judge intended to cast a new statutory burden on the appellant in establishing his alibi by virtue of Section 402A of Criminal Procedure Code, then he had misdirected himself in law.  In all criminal trials, the accused is deemed to be innocent until proven guilty. There is no burden placed on the accused to prove his innocence.  Defence such as alibi placed merely an evidential burden of introducing some evidence enough to create a reasonable doubt to the mind of judge.

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Illian v PP (1988) 1 MLJ 421  Fact: the accused were charged for drug-trafficking, where one of them raised the defence of alibi. The evidential burden was imposed on the accused.  Held: in the defence of alibi, all the accused needs to do is to cast a reasonable doubt that he was not the person at the crime scene. In another word, the accused only bears the evidential burden of proof.

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Arumugam Mothiyah v PP (1995) 1 CLJ 58  Fact: the appellant testified that on that fateful day, he attended a wedding reception and was not in his house. His evidence was supported by 4 other witnesses.  Issue: whether the appellant had proved his defence of alibi.  Held (SC): the defence of alibi was rejected on the ground that the witnesses could not name the bride & bridegroom.  Held (HC): the accused was acquitted as the Sessions Court judge had failed to consider the fact that the wedding had in fact taken place on that date & time. In another word, it suggests that the burden of proof for the defence of alibi is evidential burden.

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Empati Mat v PP(2010) 1 CLJ 814 (COA)  Fact: the accused was charged with murder and raised the defence of alibi  Held (trial judge): In proving alibi, the accused bears the legal burden to prove the defence on BOP  Held (CA): the CA agreed with the trial judge but at the same time, the judge held that ‘the defence failed to cast a reasonable doubt’. ‘Cast a reasonable doubt’ refers to evidential burden of proof.  Comment: it is confused whether the judge agreed with legal/evidential burden?

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Rosli Md Idrus v PP(2010) 1 LNS 121 (HC)  The court referred to Dato Mokhtar’s case and Empati Mat’s case  ‘Tahap pembuktian pembelaan alibi adalah atas imbangan kebarangkalian’ 5

Law of Evidence – written notes – Emily Law

 = the burden of proof of the defence of alibi is on the balance of probabilities. In another word, the accused bears the legal burden of proof.

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Magendran Mohan v PP (2011)(FC)  Fact: The appellant was charged with murder of his lover and he raised the defence of alibi. The prosecution's case was based entirely on circumstantial evidence. In FC, the defence counsel submitted that the circumstances relied on by the prosecution did not provide a complete chain to convict the appellant.

 Held: o The appellant's defence was one of alibi. He had given notice under s. 402A of CPC 7 months before the trial. The prosecution had failed to adduce any evidence of rebuttal or challenge it on cross-examination. o The appellant's defence was thus credible or at least raised a reasonable doubt on the prosecution's case. o The court relied on Illian & Anor v. PP held that as regards the defence of alibi, all that an accused person had to do is to raise a reasonable doubt that he was the person at the scene of the crime. ( = evidential burden) 

Mohamad Najidi Abdul Halim v PP (2011) 1 LNS 172 (HC)  Issue: what is the burden required to establish the defence of alibi.  Held: according to the learned counsel, it was erroneous for the trial Magistrate to apply the burden on BOP when considering the appellants' defence of alibi based on Dato' Mokhtar v PP. The correct burden was the usual evidential burden cast upon an accused person, that is, to raise a reasonable doubt citing the Federal Court case of Yau Heng Fang v. PP and the decision of the then Supreme Court case of Illian v PP.  *It can be seen that the decisions of our courts are in conflict on a question of law. That being the case, the later decisions prevail over the earlier decision as the later represent the present state of law.  Our late Augustine Paul, in his book has clearly stated that in a defence of alibi, the burden of proof is the evidential burden cast upon an accused person, that is to say, to raise a reasonable doubt.  Having considered all the relevant authorities including the latest decision of Magendran Mohan, the court held that the onus to establish the defence of alibi is merely to cast a reasonable doubt on the prosecution's case. ( = evidential burden)  As the trial Magistrate has applied the heavier burden to consider the appellants defence of alibi, it resulted in the miscarriage of justice.

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Azilah Hadri v PP (2013)(CA) 6

Law of Evidence – written notes – Emily Law

 An accused who plead the defence of alibi bears no legal burden to establish it

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PP v Azilah Hadri (2015)(FC)  In Malaysia the plea of alibi together with the burden placed on the person who asserts that he was elsewhere, can be found in the EA.  S. 11 provides that ‘facts which are not relevant are relevant : a) If they are inconsistent with any fact in issue or relevant fact b) If such facts make the existence or non-existence of any fact in issue or a relevant fact highly probable or improbable.  Under s. 11 illustration (a), whether A committed a crime on a certain day and the fact that he was somewhere else, is relevant. Therefore if an accused person states that he was not at the scene of crime, that inconsistent fact is relevant.  If the prosecution fails to establish a prima facie case, then the accused does not need to prove his alibi defence at all; but once the prosecution had established the prima facie case, it is then for the accused person to cast a reasonable doubt that he was elsewhere. ( = evidential burden) This is a heavy burden on the accused and that burden flows from s. 103 of EA &  its illustration (b).

Section 105 of Evidence Act (STATURORY DEFENCE) 

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Section 105 of Evidence Act – when an accused raises any defences, the burden of proof is on him. This section only apply to statutory defence; either in Penal Code, proviso of Penal Code & any other statute defining the offence. Note: the word ‘prove’ in Section 105 of Evidence Act is interpreted in Section 3 of Evidence Act to mean legal burden of proof. Hence, the accused has the legal burden to prove statutory defences on BOP.

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R v Jayasena (1970) 1 All ER 219  Fact: the accused was charged with murder and he raised the defence of selfdefence. The prosecution argued that the defence carries both legal and evidential burden of proof whereas the defence argued that the defence only carries evidential burden of proof.  Held: the judge applied Section 3 of Evidence Act ‘proved’ to interpret Section 105 of Evidence Act. The burden of proof in EA is legal burden of proof and not evidential burden of proof.

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Ikau anak Mail v PP(1988) 1 MLJ 421 (insanity)  The accused had the burden to prove his defence of provocation on BOP.

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PP v Kenneth Fook Mun Lee (No.1) (2002) 2 MLJ 563 (intoxication) 7

Law of Evidence – written notes – Emily Law

 The burden of establishing insanity is on the accused & that there was no obligation on prosecution to adduce evidence to show that the accused was sane at the time when he commits the offence.

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Murugapillai v PP  The accused had the legal burden to prove his defence of insanity on BOP.

Issue arises: whether the accused should be convicted if he fails to prove his defence on BOP. Answer: no, there are exceptions.  R v Chanderasekara – if the defence only attacks AR & MR, the accused only bears evidential burden of proof.  Nagappan v PP – s. 105 should not be read in isolation but must be read in relation to EA as a whole, particularly s. 101 & s. 102. In criminal trial, it is for the prosecution to prove the guilt of accused BRD. Therefore, if the accused did not raise any specific defence but only attack prosecution, the accused only bears evidential burden of proof. Section 106 of Evidence Act  

Section 106 of Evidence Act – imposes the burden of proof on the person who has special knowledge of a fact. Section 106 of Evidence Act (illustration (b) – if a person is charged with travelling on railway without a ticket, the burden of proving that he had ticket is upon him.

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R v Turner  Fact: the accused was charged with hunting without lawful authority.  Held: the burden of proving whether the accused has authority is on the accused as it is the fact especially within his knowledge.

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PP v Hoo Chee Keong (1997) 4 MLJ 451  Fact: the accused was found in possession of fake credit card. The requisite MR of such offence is knowledge.  Held: o Section 106 of Evidence Act is an exception to s. 101 which designed to meet certain exceptional cases where it would be difficult for prosecution to establish the facts which are ‘especially’ within the knowledge of accused. o Whether or not the accused has the knowledge that the credit cards are fake is a matter especially within his knowledge. 8

Law of Evidence – written notes – Emily Law

o Therefore, it is for him to prove such fact under Section 106 of Evidence Act.

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PP v Lim Kwai Thean  Fact: the accused was charged with failure to produce his identity card when asked for by a police officer. Such failure was an offence under Emergency Regulations 1948.  Held: this was a fact especially within the knowledge of the accused & the burden to prove that fact was upon him.

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Lee Chin Hock v PP (1972) 2 MLJ 30  Fact: the accused was charged under Internal Security Act for having possession of prohibited documents without lawful excuse.  Held: if the accused has a lawful excuse, that fact would be especially within his knowledge. Therefore, the burden to prove such fact is on the accused.

*Note: Section 106 of Evidence Act is only applies to negative averment, eg: without license, without lawful authority; but not applies to positive averment, eg: with intention, with knowledge 

Attygalle v The King (1936) AC 338  Issue: whether the burden of proving MR can be shifted to accused.  Held: Section 106 of Evidence Act cannot be used in proving MR as MR is a positive averment.

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Mary Ng v R  Fact: the accused was charged for attempting to cheat. The main ingredient of the offence is ‘dishonesty’.  Held: it was not for the accused to prove that he had not acted dishonestly but it was for the prosecution to prove that he had acted dishonestly.

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Ghanasegaran v PP  Prosecution cannot be expected to prove a negative averment. That burden is on the accused as it is especially within the knowledge of accused.

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Re Tan Kheng Cheng  S. 106 is imposed on the accused only where the prosecution has proven the case BRD and entitled the court to convict the accused.

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Law of Evidence – written notes – Emily ...