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Burden of Proof

Burden of proof: The duty or obligation to prove or establish the


case.
Standard of proof: Extent/degree of quantum of proof

General rule
1. Section 101 (Burden throughout the case)
Whoever desires any court to give judgement as to any legal right or liability,
dependent on the existence of facts which he asserts, must prove that those facts exist.
2. Section 102
The burden of proof in a suit or proceeding lies on that person who would fail if no
evidence at all were given on either side.

Legal burden vs Evidential Burden


Jayasena v R
Legal burden is the burden of proving a case, of convincing the court to believe in the
existence or non-existence of a fact. In contrast, evidential burden is only the burden of
adducing evidefnce
Aziz bin Muhammad Din v PP [1996] 5 MLJ 473
The burden of establishing a case (Section 101) rests throughout the trial on the party who
asserts the affirmative. However, the burden of introducing evidence in a case (Section 102)
shifts constantly as evidence is introduced by one side or the other.
Tan Kim Khuan v Tan Kee Kiat [1998]1 MLJ 697
It is well settled law that the burden of proof in civil cases rests throughout the trial on the
plaintiff.

Criminal Cases
Burden of proof:
1. The general rule is that an accused is presumed to be innocent until he is proven
guilty.
2. In criminal cases, prosecution has the legal burden to prove the case and this burden
remains on him throughout the trial in respect of the facts in issue.
3. The accused on the other hand, has the evidential burden to weaken the effect of the
prosecutions case either by cross-examination, or if he is called to present his case,
by adducing evidence himself and through his witnesses.
4. The accused has to merely cast a reasonable doubt.
Standard of proof:
1. In criminal cases, the burden is on the prosecution, throughout, to prove the case
beyond reasonable doubt.
2. Prudent man under Section 3
3. Section 3 Proved
after considering the matters before it, the court either believes it to exist or
considers its existence so probable that a prudent man, ought under the
circumstances of the particular case, to act upon the supposition that it exists.

Prosecutions burden and standard of proof


General Rule: Section 101 and section 102
Nagappan v PP [1988] 2 MLJ 53 Supreme Court
In criminal case, the general rule is that the prosecution bears the legal burden to prove the
guilt of the accused beyond reasonable doubt. From the beginning to the end, the burden
remains on the prosecution to prove the guilt of the accused.
Mohamad Radhi bin Yaakob v PP [1991] 3 MLJ 169 Supreme Court
It is settled law that in criminal cases, the prosecution must prove the charge beyond all
reasonable doubt.
Liew Kaling v PP [1960] 1 MLJ 306 Court of Appeal
The standard which the prudent man will apply to any question which confronts him will
vary according to the importance of the question itself.
This means that the standard that the prudent man applies to a criminal case must
necessarily be higher than the standard he expects in a civil trial. This is the basis of
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the different standard of proof namely beyond reasonable doubt and balance of
probabilities.
PP v Yuvaraj [1969] 2 MLJ 89

It made a distinction between the standard in civil and criminal cases.

Criminal Proceeding- beyond reasonable doubt


Civil- balance of probabilities

Meaning of Beyond reasonable doubt

Miller v Minister of Pensions

The degree of beyond reasonable doubt is well settled. It need not reach certainty but
it must carry a high degree of probability.
While the prosecutions duty is to prove the case beyond reasonable doubt, the
accused has to merely cast a reasonable doubt.

PP v Saimin[1971] 2 MLJ 16 Justice Sarma

Reasonable doubt is a doubt which makes one hesitates as to the correctness of the
conclusion that one reaches. It must be a doubt so solemn and substantial as to
produce in the minds of the jurors some uncertainty as to the verdict to be given.
A reasonable doubt must be a doubt arising from the evidence or want of evidence
and cannot be an imaginary doubt or conjecture unrelated to evidence.

In reaching a decision, guidelines should be followed from the case of


Mat v PP [1963] 1 MLJ 263 High Court
(a) If you are satisfied BRD, convict;
(b) If you accept or believe the accuseds explanation, acquit;
(c) If you do not accept or believe the accuseds explanation, do not convict but consider
the next steps;
(d) If you do no accept or believe the accuseds explanation and that explanation does not
raise in your mind a reasonable doubt, convict
(e) If you do not accept or believe the accuseds explanation but it raises a reasonable
doubt, acquit.

Circumstantial Evidence (Inferring from the facts)


Standard where the prosecution relies on circumstantial evidence
1. Direct evidence is evidence that is attested directly by witnesses, things or documents.
To all other forms of evidence, the term circumstantial evidence is employed.
2. Circumstantial evidence is evidence of relevant facts from which the existence or nonexistence of facts in issue may be inferred. [ PP v Sarjit Kaur Najar Singh]
Circumstantial evidence strong(Conviction)
Sunny Ang v PP
The facts adduced by the prosecution were so
compelling that the court reached the
irresistible conclusion that the appellant had
murdered the deceased.
The appellant was declared a
bankrupt a year earlier
The deceased was insured against
accidents with several companies
Despite the fact that the deceased was
a novice diver, the appellant had
allowed her to dive in dangerous
waters
Less than 24 hours after her
disappearance, the appellant made a
formal claim.
The law is not in Sunny Ang. It is landmark
for the facts not for the law.
Juraimi bin Hussin v PP (COA)
A murder case which was convicted based on
circumstantial evidence.
The decapitated body of the deceased
was recovered from the house
occupied by the 3 appellants
The day before his death, the
deceased withdrew RM 300,000 from
his bank accounts and subsequent to
his death, the second and third
appellants embarked on a spending
spree,
spending
more
than
RM200,000 payments being made in
RM1000 notes which were in the
same denomination of notes in which
the deceased had earlier withdrawn.
The body was buried in a hole in the

Circumstantial evidence not strong (Acquit)


PP v Sarjit Kaur Najar Singh
The accused was charged with the murder of
her husband. The prosecution relied solely on
circumstantial evidence in attempting to
establish the case.
H: the prosecution had failed to establish a
prima facie case. Each of the strands of
circumstantial evidence adduced are so brittle
that even when tied together they are not
strong enough for the prosecution to hold on
to.

PP v Hanif Basree Abdul Rahman


Accused was charged with murder of the
deceased, the prosecution relied on the
following facts:
No sign any break-in into the
deceaseds house suggesting that her
killer was someone known her.
The accused had an intimate
relationship with the deceased
Accused was the last person seen with
the deceased and last person to have
had sexual intercourse with her
DNA was present in the face towel
Accuseds height suggested that he
was able to climb over the wall at the
back of condominium
H: There were too many doubts in the
prosecutions case and that the inference
made, rendered an appearance more
favourable to the accused.
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ground soon after he was killed. This


meant that the hole must have been
dug earlier, leading to the inference
that there was a pre-arranged plan.

Standard of Proof for circumstantial evidence


Kartar Sing v R[1952] 1 MLJ 85
The circumstantial evidence must be such that, if it is believed, there is no reasonable
alternative to the guilt of the accused. If it is anything less than this, it is no case at all.
Lim Hean Chong v PP (COA)

It is well settled that when a case rests entirely on circumstantial evidence, such evidence
must satisfy three tests.
i.
ii.
iii.

The circumstance from which an inference of guilt is sought to be drawn, must be


cogently and firmly established.
Those circumstances should be of a definite tendency unerringly pointing towards
the guilt of the accused
The circumstances taken cumulatively should form a chain so complete that there
is no escape from the conclusion that within all human probability the crime was
committed by the accused and no one else.

Jayaraman v PP [Lord President Suffian] [1982] 2 MLJ 306 Federal Court


The irresistible conclusion test was synonymous with the standard of proof beyond
reasonable doubt. It only seems to place on the prosecution a higher burden of proof than in a
case where it depends on direct evidence. The use of irresistible conclusion test was merely
a play of words.
Juraimi bin Hussin v PP [1998] 1 MLJ 537 Court of Appeal followed Jayaraman
Justice Gopal Sri Ram:
Circumstantial evidence must when taken together, irresistibly lead to the conclusion that the
accused committed the offence is merely another way of saying that the prosecution must
prove its case beyond a reasonable doubt.

Accuseds burden and standard of proof


General Rule: Needs to cast a reasonable doubt on the prosecutions case.
Mohamad Radhi bin Yaakob v PP
The accused bears no legal burden at all to prove his innocence. The onus of proof is
generally on the prosecution, and not the accused, to disprove the accuseds version of the
events.

PP v Yuvaraj [1969] 2 MLJ 89 Privy Council


The accused generally has only the evidential burden of raising a reasonable doubt in the
mind of the trial court.
Attan bin Abdullah v PP [2013] 2 MLJ 676 Court of Appeal
Mere denial or presenting a bare story of innocence cannot amount to reasonable doubt. The
courts acceptance of the explanation must be based upon reason and common sense, and
cannot be illogical or irrational. The existence of reasonable doubt is dependent upon the
totality of the evidence and on an examination of all the evidence in a fair and reasonable
manner and not in isolation.

Exceptions where the accused has burden of proof


1. Proving particular facts
If the accused wishes the court to believe in the existence of a particular fact, he will have
the burden to prove that fact.
Section 103 + Illustration (b)
Alibi
An alibi is a common law defence that places the defendant at the relevant time of the
crime in a different place than the scene involved. This logically renders it impossible for
him to be the guilty party.
Dato Mokhar bin Hashim v PP [1983] 2 MLJ 232 Federal Court
When the accused relies on a defence of alibi, then he has the legal burden to prove his
defence.
Yau Heng Fang v PP [1985] 2 MLJ 335 Supreme Court
The defence of alibi does not place a burden on the accused to prove his innocence; it
merely places on the accused an evidentiary burden of introducing some evidence enough
to create a reasonable doubt. The rationale is that in all criminal trials, the accused is
deemed to be innocent until proven guilty by the prosecution. There is no burden placed
on the accused to prove his innocence.
Illian v PP [1988] 1 MLJ 421 Supreme Court
As regards to the defence of alibi, all the accused person needs to do is to raise a
reasonable doubt that he was not the person at the scene of the crime. Then the proper
approach is for the judge to consider, at the close of defence case, whether the accused
had succeeded in doing so.
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Jaferi bin Ipee v PP [2013] 3 MLJ 467


No doubt an accused person need not have proven anything, but a mere denial without
other proof to reasonably dislodge the prosecutions evidence is not sufficient.
Ku Lip See v PP [1982] 1 MLJ 194 Federal Court
Evidence in support of alibi entails a consideration whether the evidence shows or tends
to show that by reason of the presence of the accused at some particular place or area at a
particular time he cannot be or is unlikely to be at the place where the offence is
committed.
Arumugam Mothiyah v PP [1995] 1 CLJ 58
Evidential burden is imposed on the accused in the situation where he relies on alibi. The
accused merely need only to raise a reasonable doubt in order to earn an acquittal.
Magendran Mohan v PP [2010] 6 MLJ 619
The defence of alibi was insufficient to rebut the prosecutions case against him. The
standard is still on the balance of probabilities cast any doubt on the prosecutions case.
Annuar Ibrahim v PP (Sodomy 2)
The appellants initial defence was alibi and when the defence was called, the appellant
chose not to call any of his alibi witnesses. The prosecution argued that the failure by the
appellant to provide the explanation for the abandonment of his alibi defence warranted
an adverse inference under s114 (g).
Held
Applied the principle in Goh Ah Yew v PP [1949] MLJ 150 where no such inference can
be drawn against an accused person in a criminal trial. There is no duty upon an accused
person to call any evidence. He is at liberty to offer evidence
Short Conclusion for alibi- evidential burden to raise reasonable doubt.
An alibi is such that it involves an element of the prosecutions case and therefore the
accused is entitled to an acquittal if his defence of alibi, taken together with other
evidence that may be adduced, cast a reasonable doubt on an essential element of the
prosecutions case, namely the presence of the accused person at the scene of the offence.

2. Proving defences
If the accused relies on statutory defence, reference should be made to Sec 105
Section 105

When a person is accused of any offence, the burden of proving the existence of
circumstances bringing the case within any of the general exceptions in the Penal Code or
within any exception or proviso contained in any other part of the same Code, or in any
law defining the offence is upon him, and the court shall presume the absence of those
circumstances.
The accused has the legal burden to prove statutory defence on a balance of probabilities.
Ikau Anak Mail v PP [1973] 2 MLJ 153 Federal Court
The accused had the burden to prove his defence of provocation on a balance of
probabilities. In other words, the accused has the legal burden to prove the defence he
raises within any of the general or special exception or the provisos in the Penal Code.
PP v Kenneth Fook Mun Lee(No 1) [2003] 3 MLJ 581
The burden of establishing evidence of insanity was on the accused and there was no
obligation on the prosecution to adduce evidence to show that the accused was sane at the
time of the commission of the offence.
PP v Wong Haur Wei [2008] 1 MLJ 670
The accused was charged under s55B(1) of the Immigration Act for employing three
foreign workers without valid passes. The magistrate acquitted the accused on the ground
that he had a good defence under s79 of the Penal Code that he had used and paid the
service of an agent where he thought that all the 3 workers possessed valid passes. The
magistrate court held that the burden of proof remained on the prosecution and the
accused did not have to prove that he was cheated by his agent.
HC: s105 dictated that the burden of proof be cast upon the accused to prove his defence
under s79 on a balance of probabilities.

Whether s105 casts a legal burden or only an evidential burden upon the accused
person to prove his defence?
R v Chandrasekara (1942) 44 NLR 97
There are two types of defences namely those who affect some elements of the
prosecutions case (accident, insanity, intoxication) and those that do not (provocation or
private defence). For the first type, it is enough for the accused to adduce evidence merely
to cast a reasonable doubt. For second type, the legal burden is imposed on the accused
person.

i.

ii.

Rationale for first type: when accused relies on defence which affect some
elements of the prosecution case, he is in fact disputing the element of actus rea or
mens rea in the prosecution case. In such case, the accused may be entitled to an
acquittal if he casts a doubt that his act was intentional. If he succeed, it is not
because he has established his defence, but because placing the essential element
of prosecutions case in doubt.
Rational for second type: For instance if accused pleads the defence of
provocation, he is in actual fact, conceding to the elements of the prosecution case
and he then brings evidence to excuse him. In such instance where the statute lays
down that there is a legal burden on the accused, he may be said to bear the full
risk of non-persuasion. A failure to convince the judge on a balance of
probabilities, it may result in the defence being rejected.

Nagappa v PP [1988] 2 MLJ 53 Supreme Court


Section 105 should not be read in isolation but must be read in relation to Section 101 and
Section 102 which applies to criminal trial, means that it is still for the prosecution to
prove the guilt of the accused beyond reasonable doubt.

3. Proving facts within knowledge


Section 106 imposes the burden of proof on the person who has special knowledge of a fact.
Section 106: when any fact is especially within the knowledge of any person, the burden of
proving that fact is upon him.
PP v Hoo Chee Keong [1997] 4 MLJ 451
Justice Augustine Paul:
Section 106 is an exception to section 101. Section 106 is not intended to relieve the burden
on the prosecution but is designed to meet certain exceptional cases in which it would be
impossible to establish facts which are especially within the knowledge of the accused and
which he could prove without difficulty or inconvenience.
PP v Ang Ah Hoe [2010] 7 MLJ 722
It was held that the accused had the burden of proving that he had firearms licence, a fact
peculiarly within his knowledge.
PP v Lim Kwai Thean [1959] MLJ 179
The word especially does not say exclusively or solely within the knowledge of any
person. The effect of the word especially is that if it is an easy matter for the person the proof
of which by the prosecution would present the prosecution with inordinate difficulties, then
ordinary common sense demands that the balance of convenience should be in favour of the
prosecution.
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Lee Chin Hock v PP [1972] 2 MLJ 30 Federal Court


The words without lawful excuse place the onus on the accused to prove the existence of a
lawful excuse, as it would be a fact especially within his knowledge.

Civil cases
General Rule
1. Section 101 provides that he who alleges must prove whereas Section 103 is a test to
identify the party who has the burden of proof.
2. Plaintiff has the legal burden to prove the case on a balance of probabilities while the
Defendant assumes the evidential burden to raise sufficient evidence.
3. Balance of probabilities is a probability which is not so high as required in a criminal
case, more probable than notbut if he probabilities are equal, it is not discharged.
John v Dharmaratnam [1962] MLJ 187 Court of Appeal

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In a civil action, the party who makes an allegation bears the burden of proving that
allegation.
International Times v Leong Ho Yuen [1980] 2 MLJ 86 Federal Court
Where the burden is on the defendant to prove his defence and he fails to do so, he will have
to suffer the consequences provided by section 102.
Exceptions to general rule
1. Proof of particular fact
Section 103
The burden of proof as to any particular fact lies on that person who wishes the court to
believe its existence, unless it is provided by any law that the proof of that fact shall lie on
any particular person.
This exception may be used to shift the burden of proof to the defendant where the defendant
puts forward a claim which goes beyond a mere denial of the plaintiffs case and actually
raises new issues which the plaintiff did not raise.
Thus, if the plaintiff sues the defendant for negligence, the plaintiff has the burden to prove
the elements of negligence. However, if the defendant raises contributory negligence, he will
now have the legal burden to prove it on a balance of probabilities, as it is a fact that the
defendant wants the court to believe in.
Fraud
Lee You Sin v Chong Ngo Khoon [1982] 2 MLJ 15 Federal Court
The standard of proof imposed upon the plaintiff in a civil case is that of proof on a balance
of probabilities.

Chu Choon Moi v Ngan Sew Tin [1986] 1 MLJ 34 Supreme Court
Fraud whether made in civil or criminal proceedings must be proved beyond reasonable
doubt and cannot be based on suspicion and conjecture.
Ang Hiok Seng v Yim Yut Kiu [1997] 2 MLJ 45 Federal Court
Justice Mohd Azmi:
Standard of proving fraud would depend on the nature of the fraud alleged. Criminal fraud
should be proved beyond reasonable doubt, only balance of probabilities is expected of civil
fraud.

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Eric Chan Thiam Soon v Sarawak Securities Sdn Bhd [2000] 4 MLJ 399 High Court
Ian Chin J disagreed with the distinction between civil and criminal fraud. It is difficult to
find purely civil fraud since fraud involves dishonesty which forms the basis of many
criminal offences.
Adorna Properties Sdn Bhd v Boonsom Boonyanit [2001] 1 MLJ 241- Forgery cases
The standard of proof required to prove forgery in civil cases is on a balance of probabilities.

The position finally settled in the recent case of


Sinnaiyah v Damai Setia Sdn Bhd [2015] 7 CLJ 584 Federal Court.- fraud cases
Defendant was awarded a contract to upgrade Federal Road into a four-lane road. Defendant
then appointed plaintiff as the project manager of the project. As the project manager the
plaintiff was to manage accounts for the project and make payments to subcontractors for the
project. Defendant opened a current bank account and authorised the plaintiff to make the
necessary payments from time to time from the said account. The plaintiff would be paid
management fees for the services rendered for the duration of the project duration. The
plaintiff sued the unpaid management fees.
Held per Gopal Sri Ram
i.

ii.

Adopted the principle in re B (Children) where the court held that there is only
one civil standard of proof and that is proof that the fact in issue more probably
occurred than not. Now, in the absence of statutory provision to the contrary, proof
in civil proceedings of facts amounting to the commission of a crime need only be
on a balance of probabilities.
The principle pronounced in Ang Hiok Seng and Lee You Sin are no longer the
law.

2. Proving facts especially within knowledge


Section 106:
when any fact is especially within the knowledge of any person, the burden of proving
that fact is upon him.
Res Ipsa Loquitor
This provision had been largely applied in a civil case where the plaintiff seeks to apply
the doctrine of res ipsa loquitor (the thing speaks for itself). This doctrine presupposed
that a party is presumed to be negligent if he had exclusive control of whatever caused the
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injury in an accident case even though there is no specific evidence of an act of


negligence.

MA Clyde v Wong Ah Mei [1970] 2 MLJ 183 Federal Court


The deceased had been knocked down by a car driven by the appellant where the bicyle
was knocked down from behind by the appellants car.
Held:
The onus to explain why and how the collision took place was with the appellant as the
appellant had the special knowledge of that fact. The onus if on the appellant and since
the appellant had chosen not to give evidence, judgement was rightly given against her.
David Chelliah v Monorail Malaysia Techonology Sdn Bhd [2009] 4 MLJ 253
Plaintiff was struck by a safety wheel falling from a monorail train on a test run.
Held: the safety wheel of a monorail train does not in the ordinary course of thins fall and
hit person on the ground below. The plaintiff had made out a prima facie case and the
defendant had the legal burden to rebut the presumption on a balance of probabilities.
Rationale of shifting the burden to the defendant:
It is the defendant who would have known how the accident occurred, since he had
control of the management of the situation. Since the defendant had the special
knowledge and section 106 would be applicable to such situations and the person with
special knowledge of a fact will have a legal burden to prove such fact.

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