Presumption

- Presumption is a fact assumed to be true under the law.

- It describes the process whereby, upon the proof of one fact (basis fact) another fact
(presumed fact) is deemed to have been proven.
Burden of proof:
- Legal burden: The burden of establishing a case (Sec. 101)
- It remains upon a single party until the end of the proceeding (does not shift)
- Civil case: The plaintiff has the legal burden of convincing the judge that he is
entitled to the relief sought for.
- A plaintiff must prove each element of the claim or cause of action in
order to discharge the burden.
- Criminal case: The burden of proof rests on the one who asserts, not the one
who denies (Woolmington v DPP)
- It is for the prosecution to discharge his legal burden in proving that the
accused is guilty for the crime charged, not for the accused to prove
that he is innocent.
- Woolmington v DPP: An accused is innocent until proven guilty.

- Evidentiary burden: The burden of producing evidence (Sec. 102)

- Evidentiary burden shifts between parties over the course of the proceeding.
- Criminal case: The prosecution bears the evidentiary burden to produce
evidence in order to prove the elements of the crime until a prima facie case
is established. Upon establishing a prima facie case, the evidentiary burden
shifts to the accused to produce evidence in order to cast doubt on the
prosecution’s case.

- Standard of proof:
- Civil case: On the balance of probabilities
- The standard is met if there is a chance greater than 50% for the
proposition to be true.
- Criminal case: Beyond reasonable doubt
- The allegation must be proven to an extent that there is no reasonable
doubt in the mind of a reasonable man that the accused is guilty.
The effect of invoking a presumption is that it reverses the evidential burden of proving
certain facts.
- A presumption should only be raised after consideration of whether there are
adequate grounds that would justify it being raised.
- However, the court still has the power to exercise its discretion of whether or
not to allow the presumption to be raised (Sec. 136(1))
- The existence of a presumption will cause the evidentiary burden to shift to the other
party in order for the presumption to be rebutted.
 - In any case, once a presumption is raised, the other party must rebut the presumption
on a balance of probabilities (PP v Yuvaraj).
Types of presumption:
Presumption of fact (Sec. 4(1)):
- A presumption made of the existence of a certain fact.
- The court has the discretion to presume the fact or not.
- Where the court decides to presume the fact, upon doing so, the other party
must rebut the presumption.
- Where the court decides to not presume the fact, it may direct the party that
raised the presumption to prove the fact.
- A presumption of fact is always rebuttable.

- The court may make a presumption as to:

- Sec. 86: Certified copies of foreign judicial records
- Sec. 87: Books, maps and charts
- Sec. 88: Telegraphic messages
- Sec. 90: 20 year old documents
- Sec. 114: General presumption of facts

- Sec. 114(b): An accomplice is unworthy of credit unless he is corroborated in material

particulars
- R v Mullins: An accomplice is a person who has concurred (given his
acceptance) in the commission of an offence
- An accomplice is different from a co-accused, as an accomplice may be
called in as a witness (without being charged or after he has been
charged and convicted), whereas a co-accused indicates that the
person has been charged.

- The law requires for evidence provided by an accomplice to be corroborated

by other evidence as it is presumed to be not credible whereby there is a high
possibility of the accomplice minimising his role and maximising his partner’s
role in the crime (shifting the guilt towards his partner).

- The provision should be read together with Sec. 133: An accomplice is a

competent witness against an accused, and a conviction is not illegal where it
is made on the basis of an uncorroborated testimony of an accomplice.
- Where the presumption that an accomplice is unworthy of credit is rebuttable,
the court may decide that an accomplice is worthy of credit and admit his
uncorroborated testimony.
- However, reading the provisions together, the court is still required to treat
accomplices with suspicion and reflect on the danger in convicting an accused
based on the uncorroborated testimony of an accomplice (PP v Sarjeet Singh)
 - Sec. 114(g): Evidence which could be produced, but is not, would be detrimental to
the person withholding it if it was produced.
- The court would draw an adverse (unfavourable) inference upon a party who
intentionally chooses to withhold a certain piece of evidence for the reason
that it would be detrimental to his case.
- Munusamy v PP: An adverse inference can only be drawn under the provision
if there is a withholding of evidence, and not merely a failure to obtain
evidence.
- PP v Dato’ Seri Anwar Ibrahim: No adverse inference can be imposed on the
prosecution for its failure to call a particular witness, or to produce a particular
document, where there is already sufficient evidence to prove its case.

- Sec. 114A: Presumption of fact in publication

- The provision provides for the presumption of evidence that would facilitate
the proving of a cyber-crime, or any other crime to which the evidence relates.
Rebuttable presumption of law (Sec. 4(2)):
- The court shall presume that a fact is proved, unless and until it is disproved.
- Such presumptions do not provide the court with a discretion, instead the court is
bound to assume that the fact is proved.
- The court will presume that a fact is proved in situations concerning:
- Sec. 107: Presumption of life
- Sec. 108: Presumption of death
- Sec. 112: Presumption of legitimacy
- Thus, any party alleging otherwise has the burden of proving so.
Irrebuttable presumption of law (Sec. 4(3)):
- The court shall not allow any evidence to be tendered in order to disprove a presumed
fact.
- Sec. 41(2): A fact is presumed (and cannot be rebutted) as a result of a
judgment, order or decree made in matters concerning probate, matrimonial,
admiralty or bankruptcy.
- Sec. 113: An irrebuttable presumption of law is that a boy under the age of
thirteen is incapable of committing rape.