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Burden of Proof Meaning of B.O.

Definition 1) Common Law

- Duty of a party to prove the a) Legal burden of proof
existence or non existence of a fact (Beban undang-undang)
asserted or denied - obligation to satisfy the court of
- Duty of a party in a criminal/civil the existence of a fact according to
litigation to prove a fact or facts in the standard of proof set by law
issue - duty not only to adduce evidence
- Party who asserts a certain fact but to adduce enough evidence to
must also prove them reach the standard of proof
required by law
-/- - standard of proof required by
law ?
Standard of proof - degree of i. Beyond reasonable doubt (BRD) -
proof required for any fact in issue prosecution in criminal case
in a litigation ii. Balance of probabilities (BOP) - civil
cases & accused in a criminal case
General Rule - heavy burden
he who assert must prove
- Reflected in S. 101 EA
b) Evidential burden (Casting a
- BOP lies on the person who has to
doubt) (Beban keterangan)
prove a fact and never shifts
- duty to adduce some evidence but
- Ex: In criminal - B.O.P lies on
not necessary to satisfy any
standards of proof
In civil - B.O.P lies on plaintif
- Ex: Defence of alibi
- lower burden
Why important?
i. To determine which party
assumes the burden of proof
* Must proof evidential burden before
ii. What standard of proof the party
the legal burden
needs to prove its case
iii. Wtr party concerned has
satisfied the particular burden
and standard of proof that have
been imposed upon him

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;

- not proved: a fact is said to be

not proved when it is neither proved
nor disproved;

Kenneth Fook

Ikau Anak Mail

affirmative of the issue. The
2) A. Paul appellants in the present appeal
relied on justification and fair
S 101 EA - Burden of Proof comment. Therefore, the burden of
(1) Whoever desires any court to give proving these defences rests
judgment as to any legal right or entirely upon them (legal burden)
liability, dependent on the existence of
facts which he asserts, must prove
that those facts exist.
(2) When a person is bound to prove The second sense referred to as
the existence of any fact, it is said that onus of proof, on the other hand,
the burden of proof lies on that relates to the responsibility of
person. adducing evidence in order to
- refers to legal burden of proof discharge the burden of proof.
The onus as opposed to burden is
S 102 EA - On whom burden of not stable and constantly shifts
proof lies during the trial from one side to
- The burden of proof in a suit or the other according to the scale
proceeding lies on that person who of evidence and other
would fail if no evidence at all were preponderates. Such shifting is
given on either side one continuous process in the
- Illustration (a) A sues B for land of evaluation of evidence. According to
which B is in possession, and which, as s. 102 and 103 of the Evidence
A asserts, was left to A by the will of C, Act, if the party with whom this
Bs father. If no evidence were given onus lies whether initially or
on either side (means A also did not subsequently as a result of its
give evidence), B would be entitled to shifting does not give any or further
his possession. evidence or gives evidence which is
Therefore the burden of proof is on A. not sufficient, such party must fail
- refers to evidential burden (evidential burden)

International Times v Leong Ho MGI Securities SB v Teong Teck

Yuen Leng (2000)
[1980] 2 MLJ 86 / Salleh Abbas KL Rekhraj J
For the purpose of this appeal it is
necessary to bear in mind the S 101 & 102 EA require Whosoever
distinction between the 2 senses in desires any court to give judgment as
which the expressions burden of proof to any legal right or liability, dependent
and onus (standard) of proof are used on the existence of facts which he
The first sense signified by the asserts, must prove that those facts
expression burden of proof such as exist; here the Pf having chosen and
referred to in s. 101 of the elected not to lead the evidence of
Evidence Act is the burden of the oral agreements through its
establishing a case and this witnesses, the court could only hold
rests throughout the trial on that there was no evidence of the
the party who asserts the Pfs before the court to adjudicate upon
and accordingly to dismiss the pfs throughout the trial on the party
claim with costs who asserts the affirmative.
However, the burden of introducing
Kam Pau Siong v Wilayah evidence in a case shifts
Fabrication SB constantly as evidence is
Mohd Ghazali Yusof JCA introduced by one side or the
I: Wtr the receivers and managers were other
properly appointed pursuant to the
deed of debenture Brady v Group Lotus Cat Cos
H: The legal burden of establishing that LJ Mustil
circumstances had arisen which would Expression of evidential burden: If the
entitle the 3rd R to appoint the receiver other party wished to escape defeat,
and managers, lies on the 3rd R..need to he must call sufficient evidence
show there was crystallization and the and this application may change .
receivers and managers were properly B.O.P in the strict sense will remain
appointed. Since no evidence before us, on the same party throughout, which
3rd fail to prove will almost always mean that party
who relies on a particular fact in
Tan Kim Khuan v Tan Kee Kiat (M) support of his case must prove it
Sdn Bhd
[1998] 1 MLJ 697 Augustine Paul J
It is settled law that the burden of
proof rest throughout the trial on the
party on whom the burden lies.
Where a party on whom the burden of
proof lies has discharged it, then the
evidential burden shifts to other Golden thread
partywhat is shifts is the
responsibility of adducing evidence - Lord Sankey in DPP v
to discharge the burden Woolmington made his famous
"Golden thread" speech:
Aziz Bin Muhamad Din v PP "Throughout the web of the English
[1996] 5 MLJ 473 Per Augustine Criminal Law one golden thread
Paul JC is always to be seen that it is
The burden of establishing a case the duty of the prosecution to
must be contrasted with the burden of prove the prisoner's guilt
introducing evidence (the evidential subject to... the defence of
burden). insanity and subject also to any
- The former is governed by s. 101 statutory exception. If, at the end of
of the Evidence Act 1950. The latter and on the whole of the case, there
is governed by s. 102 of the is a reasonable doubt, created by
Evidence Act 1950 - The burden of the evidence given by either the
proof in a suit or proceeding lies on that prosecution or the prisoner... the
person who would fail if no evidence at prosecution has not made out
all were given on either side. The the case and the prisoner is
burden of establishing a case rests entitled to an acquittal. No
matter what the charge or where burden on him - BOP
the trial, the principle that the
prosecution must prove the guilt of Why?
the prisoner is part of the common Not all defences are statutory
law of England and no attempt to defences
whittle it down can be entertained." Eg: Alibi - CL defence & did not fall
under S 105
- Murder Defences
- Prosecution
- 1/7/2016 Defences which Defences which
- 6 pm attack the element are independent
- MMU Melaka of prosecutions from prosecutions
case case
Who must proof ? Prosecution Attack AR + MR Does not attack AR
(Siapa yang membawa kes?) + MR
- S 101 EA + BRD Alibi Self defence
Accident Provocation
Who defence the allegation? No Crime/ Denial Justification/Excus
Defence counsel e
(Siapa yang membela pertuduhan?)
Alibi R v Chanderasekara
- S 102 EA
2 types of defences :
1) afect elements of case for P i.e.
defence of accident
- A is disputing element of mens rea in
P's case and may be acquitted if he is
able to cast a reasonable doubt that his
act was not intentional
Who is right ? 2) doesn't afect elements of P i.e.
Both - when A pleads provocation, he
Distinction important ? Yes concedes to elements of P's case that
defences in criminal cases he was responsible for death of the
Devlin S 105 + S 3 EA + Jayasena deceased
= Legal burden of proof Nagappan Kuppusamy v PP
A. Paul For whole of EA If did not raise defence, accused may
only cast a doubt to be acquitted -
S105 EA
i. Deals with defences in criminal evidential burden
ii. Applies only to statutory defences A )Burden of Proof in Criminal
- if accused relying on statutory
defences (provocation/self defence) , I-PROSECUTION
Prosecution Accused be
S 101 EA - Legal S 102, S103 EA -
burden of proof Evidential burden
+ proof particular Mat v PP Justice Suffian - provides
fact guidelines for judges
Diferent btwn S 101 & S 103 EA = i. If satisfied BRD - convict
S 101 - deals with many facts ii. If accept or believe accused
- prosecution must submit numbers of explanation - acquit
facts to establish the case iii. If do not accept accused
explanation , do not convict follow
S 103 - deals with particular facts next step
iv. If do not accept accused
- defence must assert on a particular
explanation as it does not raise
facts to defence himself
reasonable doubt - convict
S 102 EA - S 105 EA -
v. If do not accept accuded
Evidential burden statutory defence
explanation but it raises reasonable
S 106 EA - fact
doubt - acquit
especially within
Woolmington v DPP
Beyond Need not proof his
reasonable doubt innocence, he only Woolmingtons wife left him and went
needs to cast a to live with her mother. He stole a
BRD not define in doubt as a general double-barreled shotgun and cartridges
EA - but may refer rule
from his employer, sawed of the
to S 3 EA definition
of prove PP v Saimin - barrel, throwing it into a brook, and
prudent man define reasonable then bicycled over to his mother-in-
- Liew Kaling v PP - doubt law's house where he accidentally shot
...the standard reasonable doubt and killed his wife Violet. He was
which the prudent is a doubt which arrested and charged with the willful
man will apply to makes one
murder of his wife.
any question hesitate as to th
which confronts correctness of the Trial Judge: once the prosecution has
him will vary conclusion that established that Accused killed his
according to the one reaches..it
wife , then it will be presumed to be
importance of the must be a doubt
question itself... so solemn and murder (denied presumption of
substantial as to innocence) unless Accused can
- standard that the produce in the satisfy the court (legal burden) that
prudent man minds of the jurors it was an accident
applies in criminal some uncertainty
cases is higher as to the verdict Q: Is this correct or is it a misdirection?
than the standard given. Reasonable - Miscarriage of justice !
expects in a civil doubt must be a
cases doubt arising from
Throughout the web of the English Criminal PP v Saimin
Law one golden thread is always to be seen, that Magistrate ruled :That court is partially satisfied
it is the duty of the prosecution to prove the that the charge has been proved since the A has
prisoner's guilt subject to what I have already not given any reasonable explanation.
said as to the defence of insanity and subject also
to any statutory exception. If, at the end of and on
the whole of the case, there is a reasonable Mohd Radhi Yaakob v PP
doubt, created by the evidence given by either the S 37(d) DDA - any person who is found to
prosecution or the prisoner, as to whether the have had in his custody or under his
prisoner killed the deceased with a malicious control anything whatsoever containing any
intention, the prosecution has not made out the dangerous drug shall, until the contrary is
case and the prisoner is entitled to an acquittal. proved, be deemed to have been in
No matter what the charge or where the trial, the possession of such drug and shall, until the
principle that the prosecution must prove the contrary is proved, be deemed to have
guilt of the prisoner is part of the common law known the nature of such drug;
of England and no attempt to whittle it down can
S 37(da) of the DDA - any person who
be entertained.
is found in possession
of...otherwise than in accordance
Mat v PP with the authority of this Act or any
Suffian J other written law, shall be
presumed, until the contrary is
Magistrate: on the whole he was unable to proved, to be trafficking in the
believe the defence - miscarriage of justice
said drug;
COA: The correct law of Magistrates to apply is
Where the prosecution relies on available
as follows. If you accept the explanation given by
statutory presumptions to prove one or more of
or on behalf of the accused, you must of course
the essential ingredients of the charge, the
acquit. But this does not entitle you to convict if
particular burden of proof, as opposed to the
you do not believe that explanation, for he is
general burden, shifts to the defence to rebut
still entitled to an acquittal if it raises in your
such presumptions on the balance of
mind a reasonable doubt as to his guilt, as the
probabilities which from the defence point of
onus of proving his guilt lies throughout on the
view is heavier than the burden of casting a
prosecution. If upon the whole evidence you are
reasonable doubt but it is certainly lighter than
left in a real state of doubt, the prosecution has
the burden of the prosecution to prove beyond
failed to satisfy the onus of proof which lies
reasonable doubt.
upon it.

Accused generally needs to cast a

reasonable doubt on the
prosecutions case defining the offence, is upon him,
and the court shall presume the
PP v Saimin absence of those circumstances.
reasonable doubt is a doubt which
makes one hesitate as to th correctness
of the conclusion that one reaches..it
must be a doubt so solemn and
substantial as to produce in the minds The burden of proof for statutory
of the jurors some uncertainty as to the defences in criminal cases is
verdict given. Reasonable doubt must determined by s.105 EA.
be a doubt arising from What type of defences?
evidence...cannot be imaginary doubt i) general & special exceptions in Penal
S 103 EA - The burden of proof as to ii) proviso in Penal Code
any particular fact lies on that iii) any exceptions in any law defining
person who wishes the court to the ofence ( other statutes)
believe in its existence, unless it is
provided by any law that the proof If an Accused is relying on a
of that fact shall lie on any statutory defence ,what is the
particular person. burden of proof on him?
- Illustartion (b) = B wishes the court Legal burden of proof
to believe that at the time in question
he was What is the standard of proof
elsewhere. He must prove it (alibi) required to discharge that burden?
Balance of Probabilities
Although it is the Prosecutor who - Why ? S.3 EA 1950 + Lord Devlin
will bear the legal burden of proof in Jayasena = Legal Burden of Proof
as a general rule ,in certain on the Balance of Probabilities
exceptional situations the legal
burden on particular facts can PP v Kenneth Fook Mun Lee (No 1)
shift to the accused The burden to prove his defence lay
- Example: where A raises a defence on the accused no obligation on the
(he asserts a fact) prosecution to adduce evidence to
a) S 105 EA - Statutory Defence
Burden of proving that case of Ikau anak Mail v PP
accused comes within exceptions The accused has a burden to prove his
- When a person is accused of any defence of provocation on a balance of
ofence, the burden of proving the probabilities.
existence of circumstances bringing
the case within any of the general
exceptions in the Penal Code, or b) S 103 EA - Non-statutory
within any special exception or Defence
proviso contained in any other part Burden of proof as to particular fact.
of the same Code, or in any law The burden of proof as to any
particular fact lies on that person who was committed, which would render it
wishes the court to believe in its highly improbable, though not
existence, unless it is provided by any impossible, that he committed it is
law that the proof of that fact shall lie relevant.
on any particular person.
S 402A CPC - Procedure for the
- Not all defences are statutory . defence of Alibi
- Example : Alibi is not a statutory (1) The court shall, at the time the
defence, therefore S 105 does not accused is being charged, inform the
apply to Alibi accused as to his right to put forward a
- Alibi is governed by S 103 EA 1950 defence of alibi
(2) Assused shall put forward a notice
S 101 S 103
B.O.P to facts B.O.P of a
particular fact
Definition of Alibi Applied by Applied by
prosecution accused
assertion made by the Accused in a of his alibi during the case
criminal case or by a Defendant in a management process
civil case that he was elsewhere at
or about the time of the
ofence/incident Dato Mokhtar Hashim & Anor V PP
[1983] FC
- in Latin = elsewhere at another
place F: Murder the speaker of state
S 11 EA - When facts not otherwise - where the accused relies on the
relevant become relevant defence of alibi, therefore he has the
Facts not otherwise relevant are legal burden to prove his defence.
relevant - Reference was made to S 402A CPC
(a) if they are inconsistent with any for the purpose of establishing his
fact in issue or relevant fact; alibi
(b) if by themselves or in connection
with other facts they make the ...apabila tetuduh bergantung kepada
existence or non-existence of any keterangan alibi untuk pembelaanya
fact in issue or relevant fact highly maka ia adalah beban sah (legal
probable or improbable. burden/ BOP) atau beban probative
untuk membuktikan pembelaannya.
Illustration (a) - The question is Mahkamah mengambil kira seksen
whether A committed a crime at Kuala 402A(2) CPC yang berbunyi for the
Lumpur on a certain day. The fact that puspose of establishing his alibi
on that day A was at Taiping is (untuk tujuan membuktikan alibinya)
relevant. The fact that near the time sebagai cukup untuk membuktikan
when the crime was committed A was beban sah atau beban probative
at a distance from the place where it terhadap tertuduh. Mahkamah telah
merujuk kepada kes Gurcharan Singh 103
& Anor V State of Punjab
Referred to a wrong statute Rosli Md Idrus v PP 2010
- Follow Empati Mat
Yau Heng Fang v PP [1985] 2 MLJ
335 SC Mohamad Najdi Abdul Halim v PP
Justice Mohd Azmi [2011]
Accused person had to discharge Magendran Mohan v PP [2011] FC
merely an evidential burden of proving
his alibi: ...in all criminal trials, the Alibi = berden required for defence
accused is deemed to be innocent until HC refers to Magendran Mohan - only
proven guilty by the prosecution. There reasonable doubt & only evidential
is no burden placed on the accused to burden
prove his innocence...defences such as
alibi placed merely an evidential Azilah Hadri v PP 2013 CA
burden of introducing some evidence It is trite law that an accused person
enough to create a reasonable doubt on putting forward a defence of alibi
the minds of the jury bears no legal burden to establish
Does not refer to S 103 EA , but it (Yau Heng Fang v. PP [1985] 2 CLJ 22;
only to CL cases such as R v [1985] CLJ (Rep) 350; [1985] 2 MLJ 335;
Johnson & R v Stebbing Illian & Anor v. PP [1988] 1 LNS 139;
[1988] 1 MLJ 421). In this regard, the
Illian & Anor v PP [1988] 1 MLJ 421 learned trial judge had further
(foll. YHF) misdirected himself in making a finding
F: App charged for trafficking drugs, that D428 was not formally proven
and one of them raise the defence of when the finding that ought to have
alibi been made was whether the defence
Trial Ct: Only need evidential burden, had casted a reasonable doubt on
only cating doubt the prosecution's case that the first
appellant was at the scene of the
crime, which the learned trial judge had
Arumugam Mothiyah v PP 1995 HC failed to do.
I: Wtr appellant had proved his defence
of alibi. Appellant testified that he PP v Azilah Hadri 2015 FC
attended a wedding and not in his - Mere assertion of alibi is
house. insufficient to exculpate himself he
SCJ: reject alibi because he fail to to thus must adduce credible
name the bride and groom evidence that can cast a
HC: the fact that a wedding took place reasonable doubt over the
on date and time had cast a reasonable prosecution's case.
doubt therefore evidential burden is - The burden of proving the
sufficient commission of an ofence by an
accused person never shifts away
Empati Mat v PP COA 2010 from the prosecution whilst the burden
Refer to Mokhtar Hashim of establishing that defence of alibi
- to prove alibi must prove BOP - S lies on the accused person.
- As said above, if the prosecution
fails to establish a prima facie case
then the need by the accused person to
prove his alibi defence does not arise; R V Turner 105 ER 1026
but once the prosecution Accused hunting without license
discharges his prosecutorial
P: To proof having such license shift to accused
burden of proof that led to the
as it is within his own knowledge on BOP
establishment of the prima facie
case, it then becomes incumbent
upon the accused person to cast a Mary Ng V R (1958)MLJ 108
reasonable doubt that he was
Attygalle v R (1936) AC 338
elsewhere (Gurcharan Singh & Anor v.
State of Punjab AIR [1956] SC 460; MR Intention
Dato' Mokhtar Hashim & Anor v. Public Q: Who will know whether accused have
Prosecutor [1983] 2 CLJ 10; [1983] CLJ intention, can applu S 106 EA? - NO
(Rep) 101). This is a heavy burden on
the first respondent and that burden - S 106 EA cannot be use to shift MR from
flows from s. 103 of the Evidence Act prosecution to accused even it is within his
1950. knowledge

Lim Kwai Thean V (1959) MLJ 179

c) .S 106 EA - Evidence within
knowledge GR: Obligation to carry IC all the time and police
officer have right to demand IC. However
When any fact is especially within the accused claimed that he is exempted from
knowledge of any person, the burden of carrying IC
proving that fact is upon him.
H: Accused should prove on B.O.P

Exception to the general rule in s.101,

Where it applies the burden of proving a fact Lee Chin Hock V PP( 1972)2 MLJ 30
which is within the special knowledge of the
Accused will shift to him.
When does it apply ?
When a fact is within the special knowledge of
the accused
Where it would be impossible /difficult for the
prosecution to establish a fact which the Accused
can prove without any difficulty /inconvenience Re Tan Kheng Cheng (1969) MLJ 310
- s.106 will be used to shift the burden on that
fact from the Prosecution to the Accused .

PP V Hoo Chee Keong (1997) 4 MLJ 451

PP V Hoo Chee Keong (1997) 4 MLJ 451
Accused was found in possession of fake creadit
MR: knowledge
Lower Ct: Prosecution must prove accused has
knowledge. As prosecution failed, Accused not
HC: Burden not on Procection, accused must

Gnasegaran v PP (1997) 3 MLJ 1