Академический Документы
Профессиональный Документы
Культура Документы
Evidential
Burden
2) Evidence Act
- B.O.P - not defined in EA Section on statutory defences:
- Legal burden & Evidential burden - S 105 EA - Burden of proving that
not found in EA case of accused comes within
- S 3 EA exceptions
i. Proved - When a person is accused of any
ii. Disproved ofence, the burden of proving the
iii. Not proved existence of circumstances bringing
the case within any of the general
exceptions in the Penal Code
Approaches (statutory defence), or within any
special exception or proviso
i. Lord Devlin in Jayasena v R contained in any other part of the
- only refer to legal burden of same Code, or in any law defining
proof the ofence, is upon him, and the
court shall presume the absence of
ii. Agustine Paul those circumstances.
- refer to both legal burden of - refers to legal burden
proof & evidential burden
S 3 EA
- proved: a fact is said to be
1) Lord Devlin
proved when, after considering the
matters before it, the court either
Jayasena v R - Devlin did not
believes it to exist or considers its
accept the phrase evidential existence so probable that a prudent
burden of proof man ought, under the circumstances of
- they accept in trial that a party may the particular case, to act upon the
be required to adduce some evidence supposition that it exists;
- how much ? Depends on the nature
of the requirement - disproved: a fact is said to be
- Ct states it is undoubtedly disproved when, after considering the
permissible to describe the matters before it, the court either
requirement to adduce evidence as a believes that it does not exist or
burden and it may be convenient to considers its non-existence so probable
call it an evidential burden that a prudent man ought, under the
circumstances of the particular case, to
act upon the supposition that it does
not exist;
Kenneth Fook
N
PP V Hoo Chee Keong (1997) 4 MLJ 451
Accused was found in possession of fake creadit
cards.
MR: knowledge
Lower Ct: Prosecution must prove accused has
knowledge. As prosecution failed, Accused not
guilty
HC: Burden not on Procection, accused must
prove