TOPIC 11 BURDEN AND DEGREE OF PROOF

MEANING OF BURDEN & DEGREE OF PROOF

Burden of proof refers to the duty of a party in a criminal or civil litigation to prove a fact or facts in
issue.

Generally, the burden pf proof falls upon the party who substantially asserts the truth of the facts in
issue.

Degree of proof refers to the standard of proof required to establish a certain act, which is involved
assessing the evidence relevant to it.

GENERAL RULE :

 Criminal trial= the prosecution bears the burden of proving the accused’s guilt
 Civil trial= it depends on which party that makes the allegation. Normally, Pf bears the burden of
proving his case against Df. Df will bear the burden in the event of counterclaim.

BURDEN OF PROOF

Referred to in S.101 and 102 EA. These two provision reflect the burden of proof based on the principle
that he who asserts must prove.

S.101(1) : Whosoever desires the court -> must prove those facts -> burden of proof lies on that
person.

S.102: The burden of proof lies on that person who would fail if no evidence at all were given on either
side.

Case: MGI Securities v Teong Teck Leng

Where the court held that S.101 and 102 require whosoever desires any court to give judgement as to
any legal right or liability dependent on the existence of facts which he asserts must prove those facts
do exist. In this case, the Pf had chosen not to lead any evidence of the oral agreements through
witnesses, the court held that there was no evidence on behalf of the Pf to be adjudicated upon. Thus,
the Pf’s claim must be dismissed.

Case: Kam Pau Siong & Anor v Wilayah Fabrication Sdn Bhd

The appellant was a judgement creditor of the 1st respondent and commenced a proceeding against the
2nd respondent as the 2nd respondent was indebted to the 1st respondent. The registrar refused to make
the order and gave priority to the 3rd respondent who had debenture with the 1st R. The 3rd R had
appointed receivers and managers under the debenture. The appellant contended the receivers and
managers were not properly appointed. The burden of proof lies on the 3rd R to show that the receivers
and the managers were properly appointed. But, failed to adduce any evidence to show that. Hence,
court held the receivers and managers were not properly appointed.
LEGAL BURDEN VS EVIDENTIAL BURDEN

LEGAL BURDEN (S.101) EVIDENTIAL BURDEN (S.102)

Burden of establishing a case Burden of adducing evidence

 Case : Aziz bin Muhammad Din v PP

The court made a clear distinction between legal burden and evidential burden.
 Burden to establish a case.  Responsibility of adducing evidence in
order to discharge burden of proof.

 Rests throughout the trial on the party  Constantly shifts and changes throughout
who asserts the facts. the trial.

 Example: Defamation Case

Statement by the respondent/accused caused harm to the victim and victim suffered damage from
the harm.
 Legal burden on the Pf/prosecution to  Evidential burden on the Pf/Prosecution
prove the wrong. to adduce all evidences

Felt at later stage after all evidence comes in. Felt early when prima facie is established.

Convincing the court to believe the existence Only to create reasonable doubt in prosecution’s
/non-existence of certain fact case / tilt the balance of probabilities for civil
cases.
How to discharge Evidential Burden?
1. Cross-examining witness on whom the
burden of proof lies
2. Calling own witnesses
3. Giving any other evidence
4. Combination of the different methods
The burden of proof rests throughout the trial on the party who whom the burden lies.
Where a party on whom the burden of proof lies has discharged it, then the evidential burden shifts
to the other party.
If a party on whom the burden lies fails to discharge it, the other party need not call any evidence.
This is because if the party does not adduce evidence when the burden shifted to him, he will fail.

Case: Tan Kim Khuan v Tan Tee Kiat (M) Sdn Bhd
The respondent seized an air-conditioning unit under a writ of seizure and sale against the appellant.
The appellant brought an interpleader summons as Pf and claimed the AC unit was purchased by her.
The respondent did not call any evidence on this issue. The Session Court judge decided that the
appellant had failed to establish her title to the AC unit and dismissed her claim. The appellant
appealed on the ground that the respondent is obliged to give evidence that the goods seized was
theirs. In this appeal, the appellant had failed to discharge the burden on her , and there was no onus
on the respondent to lead any evidence.
BURDEN AND DEGREE OF PROOF IN CRIMINAL CASES

GR= an accused is presumed to be innocent until he is proved guilty.

The general rule is established in the case of Woolmington v PP.

Two stages in criminal prosecution:

1. The prosecution stage

- Duty of prosecution to prove its case by establishing both actus reus and mens rea of the
crime.
- At the end of prosecution stage, the prosecutor has to discharge the burden of a prima facie
standard before the defence is called.

2. The defence stage

- Upon defence being called, the prosecution has a burden to prove the case on a standard of
beyond reasonable doubt at the end of defence stage to secure the accused’s conviction.

PRIMA FACIE CASE

 On the face of it
 means = sufficient evidence to be called upon to answer
 evidence by the prosecution is so convincing that it could only be defeated by hearing
rebuttal evidence by the accused
 question: how can the accused do this? What options does he have?
 Before the court allowed to call the accused to enter his defence, the prosecution must have
adduced evidence which is so strong that if the defence is in fact called but the accused
elects to not to give or lead any evidence, it will result in conviction.
 Case: Balachandran v PP = test for prima facie
1) A prima facie case is established where there is sufficient evidence to be called upon to
answer and evidence adduced by the prosecution must be such that it can only be apply
be defeated upon hearing evidence of rebuttal by the defence to the prosecution case.
2) The force of the evidence adduced must be so probable that a prudent man ought to act
upon the supposition that those facts that exists does not happen.
3) A prima facie case is not made out if there is no material evidence.
4) The court must undertake a positive evaluation of the credibility and reliability of all the
evidence adduced have been established.
5) Once a prima facie is established and the accused elects to remain silent, he must be
convicted.
6) As the accused can be convicted on the prima facie evidence, it must have reached a
standard which capable of supporting a conviction beyond reasonable doubt.
 Case: Man bin Abbas v PP ; at the end of prosecution case, the prosecutor has to prove its
case beyond reasonable doubt since only a case that is proved beyond doubt can warrant a
conviction, if unrebutted.
BEYOND REASONABLE DOUBT (BRD)
 Means = no other logical explanation except that the accused committed the offence
 The evidence presented must establish a point of moral certainty that it is beyond dispute that
any other alternative is possible
 Case: Miller v Minister of Pensions
The court held that the term BRD is not the same as BSD(beyond shadow of doubt). Although it
is a high degree of probability, it need not reach certainty. The question of whether the charges
made against the accused have been proved beyond reasonable doubt must depend upon facts
and circumstances of the case. While it is prosecution duty to prove the case BRD , the accused
has to merely cast a RD.
 Before reaching decision, judge should mindful of what was stated in MAT V PP:
If satisfied BRD as to the accused’s guilt Convict
If accept/believe the accused’s explanation Acquit
If do not accept/believe the accused’s explanation Do not convict, but consider
steps below
If do not accept/believe the accused’s explanation, but Convict
that explanation does not raise RD as to his guilt
If do not accept/believe the accused’s explanation, but Acquit
explanation raises RD as to his guilt.

IF PROSECUTION RELIES ONLY ON CIRCUMSTANTIAL EVIDENCE

 Inference of fact gathered from the evidences

 CE: indirect evidence of relevant facts from which the existence or non-existence of facts in
issue may be inferred.
 No direct evidence
 Convictions may still be secured where the prosecution case relied solely on circumstantial
evidences
 Kartar Singh v R: prosecution had to comply with “irresistable conclusion test” if relied solely on
wholly or substantially circumstantial evidences
 Jayaraman v PP: Irresistible conclusion test = degree of proof BRD
 Case: PP v Hanif Basree Abdul Rahman
The DNA of unknown male 1 was found in several samples taken from the deceased. Some of
these unknown DNA mixed with the deceased and accused’s DNA. The Federal Court confirmed
that the accused’s DNA found in this case may have created suspicion of his guilt but not enough
to prove his guilt. The existence of the DNA belonging to the unknown male 1 resulted in this
case which was based on circumstantial evidence failed to point to one conclusion that the
accused murdered the deceased.
 Case: Sunny Ang v PP
Where the accused was charged and convicted of the murder of his gf despite the body of the
deceased was never discovered. The facts adduced by the prosecution were so compelling that
the court reached the irresistible conclusion that the accused had killed his gf.
BURDEN OF PROOF FOR THE ACCUSED
 Only need to cast reasonable doubt on the prosecution’s case
 Mohamad Radhi Yaakob V PP
- Accused bears no legal burden to prove his innocence
- Onus has always been on the prosecution, not the accused
 The accused has to merely cast a RD reflects the presumption if innocence.
 Categories of burden of proof for the accused:
i) Exception – proving particular facts
- S.103 EA , Illustration b
- Case: Jaferi bin Ipee v PP
The learned DPP submitted that the denial as to the appellant’s presence at the
scene of the crime was a defence of alibi could not be accepted. The court held that
the appellant must adduce evidence as to his whereabouts at the time when the
crime took place in order to rebut the fact that he did not commit the offence.

ii) Exception – proving defences

- S.105 EA
- The position that the accused in relying on any statutory defence would have the
legal burden to prove such a defence.
- The evidential burden shifts to the defence as he claims innocence by virtue of a
defence.
- Case: PP v Kenneth Fook Mun Lee
The court held that the burden of establishing evidence of insanity was on the
accused and there was obligation on the prosecution to adduce evidence to show
that the accused was sane at the time of the commission of the offence.

iii) Exception – proving particular facts within knowledge

- S.106 EA
- Case: PP v Hoo Chee Keong
In this case, the accused was charged under S.474 PC for using as genuine forged
documents. It was held that the accused did not have any knowledge that they
were forged or that he was intended to use them as genuine. That was a matter
especially within his knowledge and it was for him to prove such fact under S.106
EA.
 BURDEN OF PROOF IN CIVIL CASE
 Standard = balance of probabilities (BOP)
 BOP- a probability which is not so high as required in a criminal case, more probable
than not, but if the probabilities is equal, it is not discharge.
 BOP = standard of proof by preponderance of evidence
 Preponderance of evidence means that if the of proves that he has more credible and
convincing evidence in his favour than the df has, even by the smalles degree, then the
probabilities should be in the pf’s favour.
 Which is more probable than the other?
 Story by plaintiff @ defendant?
 Sections 107 – 110
 The pf will have the legal burden to prove his case against the df
 The df only assumes the evidential burden to raise sufficient evidence when the pf has
successfully discharged his burden.
 If the df merely denies the pf’s assertion, this does not impose burden of proof upon the
df.
 Case; John v Dharmanathan
Where the court held that in an action for damages for pecuniary loss suffered as a
result of libel, it was for the party who brings such action (pf) to prove the damages he
had suffered.
 S.107 -110 EA

STANDARD OF PROOF WHERE THERE IS CRIMINAL ALLEGATION IN CIVIL CASES

Sometimes in civil trial, the party especially the pf may allege a fact against the df in which it may
contain a criminal allegation.

Eg: transfer of land was transferred on a forced signature.

The question arises is whether the party, especially the pf had to conform to the standard of
probabilities or should he prove that the fact on the standard of BRD?

The various criminal allegations that may arise in civil trial are as follow.

a) Fraud
- One of the most popular allegations in civil trial.
- Eg: innocent party may allege that there had been a fraud in a formation of contract thereby
making it voidable at their instance.
- The question is also arises as to whether the party alleging in a civil trial has to conform to the
standard of BRD or meet the civil standard of probabilities.
- Federal court case: Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd
It was held that standard of proof of allegation of fraud in civil cases is on the balance of
probabilities. This case overruled all uncertainty from previous cases.
 b) Forgery
- A party may allege that signatures in an instrument if transfer or in a contract are not a genuine
signature, thus alleging forgery, which is also criminal in nature.
- Standard of proof? BOP or BRD?
- Case: Adorna Properties Sdn Bhd v Boonsom Boonyanit
The respondent claimed that she was the registered proprietor of a piece of land which had
been transferred to the appellant through forgery. The respondent thus applied for the court to
restore her name as the RP. The appellant on the other hand claimed as bona fide purchaser for
valuable consideration and without notice. The FC held that standard of proof required to prove
forgery in civil cases is on balance of probabilities.

DEGREE OF PROOF IN MATRIMONIAL CASES

In a divorce proceeding, a H or W may allege adultery as a ground of divorce.

Standard of proof – BOP or BRD?

Case: Ginesi v Ginesi

The court held in matrimonial cases, the same strict proof of is required for adultery as is required in
criminal case. It must be proved beyond reasonable doubt to the satisfaction of the tribunal of fact.

Followed by Gower v Gower

In this case, a wife had divorced the husband where the H ordered to pay the maintenance of the wife
and their child. The H sought to reduce the amount which he need to pay his wife on the ground of
adultery. H adduced testimonies from various landlords that the wife had been living with another man.
The court held that the adultery must be proved BRD.