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LAW OF EVIDENCETopic 8: Presumption *(presumption + burden of proof + standard of proof)Introduction Presumption = exception to the general rule under s. 101 which states that all facts must be proved by evidence  Presumption = fact which automatically accepted by the court without the need of pro...

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Law of Evidence – written notes – Emily Law

LAW OF EVIDENCE Topic 8: Presumption *(presumption + burden of proof + standard of proof) Introduction  

Presumption = exception to the general rule under s. 101 which states that all facts must be proved by evidence Presumption = fact which automatically accepted by the court without the need of proof. Such fact will be deemed to exist until it is rebutted by the other party. It is a tool to reduce the burden of proof of a party.

Types of Presumption 1. Presumption of law / fact A. Presumption of law = automatic presumption, the court has no discretion to decide whether to accept such presumption or not o 2 types: Rebuttable – eg: s. 112; Not rebuttable – eg: s. 113 B. Presumption of fact = not automatic presumption, the court has discretion to decide whether to accept such presumption or not. o Rebuttable – eg: s. 114 2. Presumption with basic facts / without basic facts A. Presumption without basic facts = not necessary to establish any fact. The court will automatically accept the presumed fact; rebuttable presumptions by evidence to the contrary. (eg: presumption of innocence, presumption of sanity.) B. Presumption with basic facts (refer below) ***Presumption with Basic Facts (our main focus) o Presumption with basic facts = involves the relationship between 2 sets of facts: basic fact and presumed fact. o Basic fact + Presumed fact = Burden shift to the other party to rebut the presumption by evidence to the contrary. o Note: if PP – prove BRD; if defence – prove BOP. o Better understanding – refer s. 4 and s. 114 - illustration (a), (b) & (g) explain below. o S. 4 – Presumption o S. 4(1) – (refer Act) ‘may’ = presumption of fact; shows that court has discretion to decide whether to accept such presumption or not. = rebuttable. (eg: s. 114) o S. 4(1) – (refer Act) ‘shall’ = presumption of law; ‘unless and until it is disproved’ = rebuttable presumption of law. (eg: s. 112) 1

Law of Evidence – written notes – Emily Law

o S. 4(1) – (refer Act) ‘shall’ = presumption of law; ‘shall not allow evidence … of disproving it’ = not rebuttable presumption of law. (eg: s. 113)

**Section 114 EA 

S. 114: (refer Act) ‘may’ = if interpreted by using s. 4(1), it shows that s. 114 = presumption of fact; shows that court has discretion to decide whether to accept such presumption or not. = rebuttable.

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Illustration (a): the court may presume that a man who is in possession of stolen goods soon after the theft is either the thief/ has received the goods knowing them to be stolen, unless he can account for his possession. o ‘possession of stolen goods soon after the theft’ = basic fact o ‘the thief/ has received the goods knowing them to be stolen’ = presumed fact o ‘unless he can account for his possession’ = rebuttable

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Illustration (b): the court may presume that an accomplice (= a person who join another in carrying some plans) is unworthy of credit unless he is corroborated in material particulars. o ‘an accomplice’ = basic fact o ‘is unworthy of credit’ = presumed fact o ‘unless he is corroborated in material particulars’ = rebuttable

***Illustration (g) – (our main focus) 

Illustration (g): the court may presume that evidence which could be and is not produced would if produced be unfavorable to the person who withholds it. o ‘evidence which could be and is not produced’ = basic fact o ‘unfavorable to the person who withholds it’ = presumed fact o Note: the evidence must be material evidence. The wording of illustration (g) suggests that it must not be merely failure to produce but also deliberate withholding such evidence with ulterior motive.

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Note: Illustration (g) is applicable to both civil and criminal cases. Illustration (g) is used to draw the adverse inference that if an evidence/witness which could be tendered/called in court but did not tender/call by the party. Adverse inference is usually drawn by defendant/defence against plaintiff/prosecution to show that plaintiff/prosecution had failed to prove its case.

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Munusamy v PP – adverse inference can only be drawn when: 2

Law of Evidence – written notes – Emily Law

a) The fact is material fact/the witness is material witness b) There must have an act of withholding such fact/witness that is available but not merely a failure to produce/secure the attendance. c) There must have an ulterior motive. Whether or not the adverse inference can be successfully drawn is essentially a question of fact. It is in the discretion of the court to decide. Examples: 

PP v Dato Seri Anwar Ibrahim – the court held that there was no presumption of adverse inference due to failure to call PM as witness as the witness is immaterial & irrelevant to the case. The PP has the discretion whether or not to call a particular witness as long as there is no ulterior motive & there is sufficient evidence to prove its case.

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Azilah Hadri v PP (CA) – the court held that failure of PP to call/offer cross-examination of one material witness (DSP Musa) had triggered the adverse inference under s. 114(g). PP v Azilah Hadri (FC) – the non-calling of witness (DSP Musa) had not caused any unfairness to the other party and the presumption under s. 114(g) was not applicable.

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Application: this shows how a similar case with similar fact yet a complete U-turn at CA & FC. Therefore, Whether or not the presumption of adverse inference can be successfully raised is essentially a question of fact and it is very subjective. It is in the discretion of the court to decide.

For PP:  

Dato Haji Azman – Prosecution must be conducted in a manner to avoid unfairness to the accused and for the greater demands of justice and truth. Namasiyiam – if prosecution had adduced other evidence sufficient to discharge the burden, no adverse inference can be drawn.

For defence: 

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Goh Ah Yew – no adverse inference can be drawn against the accused if the accused failed to call any witness as the accused has no burden of proof/ duty to call evidence. Cf: Baharom v PP  Fact: accused relied on the defence of insanity. The judge opined that the accused should have called the prison medical officer to testify as to his state of mind.  Held: failure to produce such evidence entitled adverse inference to be drawn against accused by virtue of illustration (g) to s. 114. 3

Law of Evidence – written notes – Emily Law

 Application: this case illustrates that adverse inference to be drawn against the accused only when the accused has burden of proof in a particular issue. 

Civil case: Selvaduray – Generally, adverse inference cannot be drawn against defendant.

Section 114A 

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S. 114A(1): (refer Act) o ‘name, photograph/ pseudonym appears on any publication depicting himself as the owner, host, administrator, editor/ sub-editor, or who … facilitates to publish … the publication’ = basic fact o ‘to have published … the contents of the publication’ = presumed fact o ‘unless the contrary is proved’ = rebuttable S. 114A(2): (refer Act) o ‘ registered with a network service provider as a subscriber of a network service on which any publication originates from’ = basic fact o ‘to be the person who published or re-published the publication’ = presumed fact o ‘unless the contrary is proved’ = rebuttable S. 114A(3): (refer Act) o ‘his custody or control any computer on which any publication originates from is presumed to have published … the content of the publication’ = presumed fact o ‘unless the contrary is proved’ = rebuttable o Note: applies to both civil and criminal cases. Note: this presumption applies more to publication on internet Note: the presumption s rebuttable by evidence to the contrary. Burden of proof = BOP.

Issue: whether presumption in s. 114A is automatically invoked.     

The word ‘is presumed’ in s. 114A seems to suggest that it is a presumption of law. However, the heading of s. 114A stated ‘presumption of fact in publication’. Presumption of fact gives the court the discretion to decide whether or not to invoke such presumption. Such discretion is based on facts and circumstances of each case. Therefore, it could be argued that the presumption is not automatic. On a side note, s. 114A is no doubt a rebuttable presumption as we can see from the phrase ‘unless the contrary is proved’.

**Issue: whether s. 114A whittled down the presumption of innocence? (answer: YES) 1) S. 114A(1): (refer Act) o The impact is that a person is deemed to have published anything posted if that posting is published under his name. 4

Law of Evidence – written notes – Emily Law

o This provision can affect internet intermediaries/ individuals who provide spaces for online community forums/discussion. o The word ‘facilitate’ in s. 114A(1) is very wide. It captures persons who may not even have any specific knowledge to the contents of the publication. 2) S. 114A(2): (refer Act) o The impact is that if a posting originates from a person’s account with a network service provider, he is deemed to be the publisher unless the contrary is proved. o This provision can affect restaurant operators who commonly provide free wifi services. If someone accesses these wifi services and post comments, the restaurant operator is deemed to be the publisher. o It must be noted that sometimes, one does not even have to be in the restaurant itself to access to such wifi services. o Thus, it attracts ‘piggy-back rider’ (those who gain access to computer by ‘riding’ on the password of authorised user). If those ‘piggy-back rider’ post offensive comments, the subscriber of account is presumed to be the publisher. 3) S. 114A(3): (refer Act) o The word ‘computer’ in s. 114A(3) is defined in s. 3. The definition of computer is so wide that even text messages sent from cell-phone is regarded as publication originates from computer. o The phrase ‘custody or control’ does not need to be exclusive. It means that one does not necessarily be the computer owner to be deemed as the publisher originates from the computer. 4) Other points: o First, the provisions stated that ‘unless the contrary is proved’. The question is what constitutes evidence to the contrary? o Second, s. 114A favour more to prosecution. This is because prosecution, with full recourses of the state is easier to prove a publication compared to a private citizen who must establish a case on BOP. 5) The impact of s. 114A in civil cases is graver. o Under s. 114A, it generally imply that ‘he who asserts just needs to assert’ but not ‘he who asserts must prove’ o Eg: Joshua Benjamin (a Singapore opposition leader), was sued by Lee Kuan Yew & co for defamation until he was declared bankrupt and could no longer be a politician. This shows how defamation suit can ‘shut people’s mouth’ and make people lost their right to speech. o Eg: Tan Seok Kan 5

Law of Evidence – written notes – Emily Law

 Fact: P sued D for cyberspace defamation. The D raised the defence that the blogs did not belong to him and he did not publish such thing.  Held: the service provider, Telekom Malaysia provided proof that the D was the registered subscriber of the blog. Hence, it automatically kicked in the presumption under s. 114A(2) which has retrospective effect.  Means: one can sue for a matter happened before s. 114A come into force o Eg: Ahmad Jalil – s. 114A can be applied to Facebook posting. Presumption under DDA 

S. 37(d) – any person who is found to have had in his custody/under his control anything containing dangerous drug shall, until the contrary is proved, be deemed to have been in possession of such drug and shall, until the contrary is proved, be deemed to have known the nature of such drug. o ‘in his custody/under his control’ = basic fact o ‘deemed to have been in possession’ = presumed fact o ‘until the contrary is proved’ = rebuttable

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S. 37(da) – any person who is found in possession of ‘any drugs above certain weight’ shall be deemed, until the contrary is proved, to be trafficking the drug. o ‘in possession of ‘any drugs above certain weight’’ = presumed fact o ‘to be trafficking the drug’ = presumed fact o ‘until the contrary is proved’ = rebuttable

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Mohammad Hanafi – there can be no double statutory presumptions under s. 37(d) & (da). Means: either to charge the accused for s. 37(d) or (da), cannot charge both.

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↓ (however, this must be read in the light of the newly inserted s. 37A) 

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New S. 37A – notwithstanding anything under any written law, a presumption may be applied under this Part in addition with any other presumption provided under this Part or other written law. Means: there can be double presumption now.

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Note: Mohamad Hanafi – s. 37A does not apply retrospectively.

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Law of Evidence – written notes – Emily Law

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