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Summary

Law of EvidencePrima Facie (Standard of Proof Part II)Prima Facie means on the surface where it refers to the first impression of its first appearance. In law, 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. According to Sak...

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Law of Evidence Prima Facie (Standard of Proof Part II)

Prima Facie means on the surface where it refers to the first impression of its first appearance. In law, 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. According to Sakar Volume 1, prima facie is not the same as proof, it is not conclusive. A prima facie is proven enough for others to enter defence, which can be rebutted. The criminal trial process can be summarized as this:

Prosecution’s case

At the end of p’s case, the judge must decided if there is a prima facie face. If no = Acquittal

Defence’s case. -offers no evidence (kept silent. -offers evidence (witness box or from dock or other witness)

Verdict of guilty/not guilty (beyond reasonable doubt)

Therefore, it can be seen that the issue of “prima facie” arise at the end of the prosecution’s case in a criminal trial. The term refers to what the prosecution must establish at the end of its case before the judge decides on whether the accused has a case to answer and is called to enter his defence. It is a technical term used to describe how much evidence must the prosecution to adduce before the defence can be called. The test to determine if the accused has a case to answer would be the test of prima facie. If there is no prima facie case, the accused will be acquitted and there is not need for defence. However, if there is a prima facie case and the accused kept quiet, he will be convicted because if there is nothing to rebut, it makes the prima facie case proved beyond reasonable doubt.

Legal meaning of prima facie

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Common Law

-Prima facie is not equated to beyond reasonable doubt. -On the face of it, there is some evidence of all the elements of the crime which is not inherently incredible. -Minimum evaluation. (although there is evidence but the court has not considered its credibility & weight).

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Malaysia

What must the prosecution establish at the end of its case before the judge decides on whether the accused has a case to answer and it called to enter his defence? In Malaysia, the Evidence Act does not provide for prima facie. However, it can be found in the Criminal Procedure Code.

Meaning of ‘prima facie’

Summary Trials

High Court Trials

-Section 173(f)&(h)

-Section 180

*If high court, s.180 is to be referred. Lower than that would be s.173.

In Malaysia, the meaning of prima facie has 3 stages of changes. i. ii. iii.

Before 1997 (original version of CPC) Position 1 31.1.1997 – 6.9.2007 (2nd version) Position 2 Current provision (7.9.2007 – to present) Position 3

 Position 1 Section 173(f) CPC provides: “If upon taking all the evidence…the court finds that no case against the accused has been made out which if unrebutted would warrant a conviction, the court shall record an order of acquittal.” It shall be noted that the term ‘prima facie’ is not used in the provision. Besides, by looking at the provision, it would mean that the prosecution has to prove beyond reasonable doubt which is of maximum evaluation. The position have been consistent with some cases.

Man bin Abas v PP Issue: Whether the magistrate had erred when he had acquitted the accused who, after his defence was called, had remained silent. Held: …the action of the magistrate in acquitting the accused after the judgment appears to be inconsistent. By calling on the accused to enter upon his defence, the magistrate showed that he believed the evidence for the prosecution, and yet he acquitted the accused. (remained silent means unrebutted and should be convicted according to s.173(f))

Public Prosecutor v Saimin Held: It was held that it is the duty of the prosecution to prove the charge against the accused beyond all reasonable doubt…The burden of proof remains on the prosecution throughout the trial. If the learned magistrate was not satisfied with the case of the prosecution it was his duty to acquit and discharge the accused at the close of the prosecution case…evidence discloses a prima facie case when it is such that if uncontradicted and if believed it will be sufficient to prove the case against the accused.

The interpretation gathered from both cases appeared to be that to establish a prima facie case, the prosecution must have adduced evidence so strong that if the defence was entered into defence but remained silent it would amount to a conviction. Thus at the end of prosecution’s case, the judge had to undertake a maximum evaluation of the evidence. Therefore, it would require a proof of beyond reasonable doubt.

 Position 2 Until 1981, a prima facie case was associated with a case that was proved beyond reasonable doubt. However, at that year, in the case of Haw Tua Tau v PP, Lord Diplock introduced a different approach to establish prima facie. According to him, at the end of prosecution’s case, the court had to first act on two presumptions, namely that: “The crucial words in section 188(1) are the words "if unrebutted", which make the question that the court has to ask itself a purely hypothetical one. The prosecution makes out a case against the accused by adducing evidence of primary facts. It is to such evidence that the words "if unrebutted" refer. What they mean is that for the purpose of reaching the decision called for by section 188(1) the court must act on the presumptions (a) All the evidence of primary fact is true, unless it is inherently so incredible that no reasonable person will accept it as being true. (minimum evaluation, no need brd) (b) There will be nothing to displace those inferences as to further facts or the state of mind of the accused which will reasonable be drawn from the primary facts in the absence of any further explanation.” Held: Section 188(1) does not place upon the court a positive obligation to make up its mind at that stage of the proceedings whether the evidence adduced by the prosecution has by then already satisfied it beyond reasonable doubt that the accused is guilty. If there is no evidence (or only evidence that is so inherently incredible that no reasonable person could accept it as being true) to prove any one or more of those essential elements, it is the judge's duty to direct an acquittal, for it is only upon evidence that juries are entitled to convict; but, if there is some evidence, the judge must let the case go on (even some evidence also can call upon accused to enter defence, no need brd). The Court of Criminal Appeal of Singapore in the case of Ong Kiang Kek v Public Prosecutor suggest that unless at the end of the prosecution's case the evidence adduced has already satisfied the judge beyond a reasonable doubt that the accused is guilty, the judge must order his acquittal. But this can hardly have been what that court intended, for it ignores the presence in the section of the crucial words "if unrebutted". * Therefore, in the decision of Haw Tua Tau, the accused can still be called to enter defence even when the prosecution did not prove its case beyond reasonable doubt. Nevertheless. The accused may still be acquitted even if he did not give evidence. Therefore, minimum evaluation is required in the case.

A Ragunathan v Public Prosecutor Facts: The applicant applied to the Federal Court to refer a question of law where he was charged under PSTA:What ingredients must the respondent prove to establish a prima facie case in a prosecution against a defendant on a charge the Public Service Tribunal Act, 1977? Held: The court referred to Haw Tua Tau v PP and said: “Applying that principle, the learned Magistrate at the close of the prosecution's case had to determine as a question of law whether on the evidence as adduced, and unrebutted, the applicant could lawfully be convicted, that is to say, whether there was with respect to every element in the charge some evidence which, if accepted, would either prove the element directly or enable its existence to be reasonably inferred. That is the question raised in the appeal. It must be distinguished from the question of fact for ultimate decision, which is whether on the evidence as a whole (including accused’s) the prosecution has proved to the satisfaction of the court, as a tribunal of fact, that the applicant is guilty as charged.” *It must be noted that the judge only referred to Lord Diplock and not the Act itself. Therefore, this decision is inconsistent with the Act.

Pavone v Public Prosecutor Held: Edgar Jospeh J noted that A. Ragunatan bound him in the High Court. According to his lordship, the sole question at the close of the case of the prosecution is whether or not prima facie case has been made out, that is to say, whether there is some evidence which if believed, establishes the essential elements of the offfence charged. If there is such evidence, then the defence must be called. However, if the accused elects to remain silent and calls no evidence, the judge opined that there is nothing illegal if magistrate, upon prima facie evidence being adduced and then acquit the accused even though the accused elects to remain silent, under the condition that the judge not satisfied that the charge has been established by the prosecution beyond reasonable doubt. (shows how important for p to prove brd). Edgar reluctantly apply the principle in HTT because it was a precedent binding him to follow.

However, there are also cases which did not follow HTT. Khoo Hi Chiang v Public Prosecutor Held: Before the decision in Haw Tua Tau, there had been a consistent current of judicial opinion in this country that at the close of the case for the prosecution, the onus imposed upon the prosecution, by s. 180, 173(f)190 and s. 214 was to tender evidence, which if unrebutted, would warrant, a conviction and that only evidence beyond all reasonable doubt was of that nature.

A maximum evaluation of all the evidence at the close of the prosecution's case is needed to ensure that on that evidence standing alone, the Court would be prepared, then and there, to convict the accused (without the accused having to say anything) before the accused can be called to enter upon his defence. This is in accordance with our Penal Code and pre - Haw Tua Tau virus. Therefore, the duty of the Court, at the close of the case for the prosecution, is to undertake, not a minimal evaluation of the evidence tendered by the prosecution, but a maximum evaluation of such evidence, to determine whether or not the prosecution has established the charge against the accused beyond all reasonable doubt. With considerable regret, therefore, the Court must decline to follow Haw Tua Tau

Arulpragasan Sandaraju v PP Held: Per Edgar Joseph Jr FCJ (majority decision) The statutory formula in s. 180 of the CPCis apt to describe the 'beyond all reasonable doubt' standard of proof Haw Tua Tau v. PP had erred in treating the phrase 'if unrebutted', as if it meant 'if it were to be accepted as accurate'. The phrase 'if unrebutted' in s. 180 of the CPC means 'if uncontradicted,' or 'if unexplained,' or 'if unrefuted'. In the context of s. 180 of the CPC, rebuttal evidence can only have reference to the evidence to be adduced by the defence, if any. The word 'if' imports a condition precedent or imposes a contingency on the fulfilment of which the legal consequences therein, laid down, to wit, 'would warrant a conviction,' must follow. The ratio decidendi of the unanimous decision of the Supreme Court in Khoo Hi Chiang v. PP was: that the standard of proof required of the prosecution at the close of its case, in a nonjury trial in Malaysia is, having regard to s. 180 of the CPC, the usual criminal standard of proof, to wit, the 'beyond all reasonable doubt' standard; and that this 'beyond all reasonable doubt' standard of proof, which calls for a maximum evaluation of the evidence tendered by the prosecution, ie, a more vigorous test of credibility, is to be applied instead of the prima facie test which calls for a minimum evaluation - thereby overruling Haw Tua Tau v. PP on that point. Azmi SCJ dissenting: (not BRD, but a hypothetical BRD: prima facie) [2] Khoo Hi Chiang v. PP had not succeeded in abolishing the prima facie test under s. 180 of the CPC; for to have replaced it with the 'guilty beyond reasonable doubt' test, the Supreme Court must have discussed, which it did not, how such a drastic legal proposition could be reconciled with the cardinal principles of criminal law, namely: (i) that the general burden of proof on the guilt of an accused is always on the prosecution throughout the whole trial and that it never shifts; (ii) that the presumption of innocence hitherto enjoyed by the accused is an essential ingredient of fair trials in our adversarial system of criminal justice; and (iii) the two-tier structure of our criminal trials, as embodied in ss. 180and 183 of the CPC.

[7] Consequently, it is wrong to whittle down the cardinal principle of our criminal law on the presumption of innocence by interpreting s. 180 of the CPC in such a way that it imposes a duty on the trial Judge to find the accused guilty beyond reasonable doubt prematurely at the close of the prosecution, as well as a heavier burden on the accused to rebut the prosecution's case, when in law, the defence's duty is merely to raise a reasonable doubt to earn an acquittal.The prima facie interpretation of s. 180 of the CPCis, thus, more consistent with the concept of fair trial under natural justice and the principles of criminal law, and must, therefore, be preserved as an indispensable requirement of justice. [8] For the purpose of establishing a prima facie case under s. 180 of the CPC, the Court should not accept any evidence as credible unless they are 'beyond reasonable doubt' evidence. However, such acceptance need not be conclusive on the guilt of the accused but should only be on the hypothetical basis that no further evidence is forthcoming .As such, the Court must keep an open mind on the question of guilt until the conclusion of the trial. This is, therefore, quite different and distinct from the process of finding the accused guilty beyond reasonable doubt under s. 183 of the CPC. It is grievously fatal to ignore the hypothetical nature of s. 180 of the CPC.

Tan Book Kean v Public Prosecutor Moh Azmi SCJ who was dissenting in arulpragasan case had held that prima facie case is only a hypothetical BRD. The words "if unrebutted" and "would" in s. 180 of Criminal Procedure Code have consistently been interpreted by our Courts as imposing on the prosecution to establish a "prime facie case”… by virtue of s. 180, the accused is entitled to an acquittal at close of prosecution case in the absence of a prima facie case being established. Under s. 180, a prima facie case is one which is established by sufficient beyond reasonable doubt evidence and can be overthrown only by rebutting evidence adduced by the other side. The only reasonable interpretation as consistently interpreted by the Courts in the past is that s. 180 requires "a prima facie case" to be established by the prosecution before the accused could be called to enter his defence. The word "would" under s. 180 should not be interpreted in isolation. As stated earlier on, what is important as a matter of interpretation, is to interpret the nature of the case "which if unrebutted would warrant his conviction." In our respectful view, the phrase obviously refers to a prima facie case and not a beyond reasonable doubt case...it would be intolerable if the trial Court were required to find the accused actually guilty beyond reasonable doubt twice. On the proven factual situation of the case, we are also satisfied that he must have carried out the maximum evaluation of the evidence when he concluded that he believed the testimony of the witnesses called by the prosecution

 Position 3 This position concerned on post-Haw Tua Tau. There was an amendment on the Act after an outcry of the decision in Arulpragasan Sandaraju where the they contended that BRD is too high to prove for prosecution. The amendment now can be referred as our current position. In Section 173 (i) CPC provides that (i) 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. (ii) 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. Therefore, the impact of this amendment is that “case that warrants a conviction if unrebutted” has been deleted and replace by “prima facie” which intended to lower down the standard of proof to be of minimal evaluation. However, the judiciary have been avoiding the section and do their best to maintain the position of ‘maximum evaluation’. This can be seen in the case of Dalip Bhagwan Singh v Public Prosecutor where it was held that: The amendments made by the Criminal Procedure Code (Amendment) Act 1997 to ss. 173(f)and 180 of the Criminal Procedure Code apply only to offence committed on or after 31 January 1997. The amendments are not retrospective in operation. In respect of an act or omission committed before 31 January 1997, the standard of proof required of the prosecution at the close of its case is still the 'beyond reasonable doubt' standard as promulgated in Arulpragasan Sandaraju v. PP. Bahruni Ismail v Pendakwa Raya has also followed the same approach as above and held: The amendment to s. 180 Criminal Procedure Code providing for a prima facie standard of proof at the close of the case for the prosecution has no retrospective effect. Therefore, the amendment, having been gazetted on 30 January 1997, would for all practical purposes come into effect only on 31 January 1997... In all cases before 31 January 1997, the beyond reasonable doubt standard of proof must apply.

Subsequently, after 1997, the case of PP v Dato Seri Anward Ibrahim (No.3) comes in to deal with the interpretation of s.180. At the close of the case for the prosecution, the defence raised, the issues: (i) that the standard of proof on the prosecution at the close of its case was beyond reasonable doubt and that the phrase 'prima facie' in s 180 of the CPC meant 'beyond reasonable doubt'. The court held: A prima facie case arises when the evidence in favour of a party is sufficiently strong for the opposing party to be called on to answer…the force of the evidence must be such that, if unrebutted, it is sufficient to induce the court to believe in the existence of the facts stated

in the charge. As this exercise cannot be postponed to the end of the trial, a maximum evaluation of the credibility of witnesses must be done at the close of the case for the prosecution before the court can rule that a prima facie case has been made out in order to call for the defence. Be that as it may, I am unable to agree with the defence submission that this means that the prosecution must prove its case beyond reasonable doubt at that stage… Thus, a prima facie case as prescribed by the new s 180(1) of the Criminal Procedure Code must mean a case which if unrebutted would warrant a conviction. *It can be seen that in contrary to what is provided in the amendment “prima facie”, the court still hold otherwise.

Balachandra v PP Facts: This was an appeal against the Court of Appeal affirming the decision of the High Court convicting the appellant of an offence under the Dangerous Drugs Act 1952. The appellant argued that the conviction was unsustainable as the prosecution, It was further argued that the trial was flawed as the learned judge, at the end of the prosecution case, was bound to apply but had not applied the "beyond reasonable doubt" standard of proof to the evidence before him. Questions arose as to (iii) whether the learned trial judge could be faulted for employing the "prima facie" standard of proof at the end of the prosecution case. Held: The result is that the force of the evidence adduced...