"It is better that ten guilty persons escape than one innocent suffer.

" Sir William

Blackstone, Commentaries on the Laws of England, 1765 - 1769.

Bincangkan petikan di atas dalam konteks piawai beban pembuktian yang terpakai dalam
kes-kes jenayah di Malaysia.

"It is better that ten guilty persons escape than one innocent suffer." Sir William
Blackstone, Commentaries on the Laws of England, 1765 - 1769.

- it was said to be better to save several guilty men, than to condemn a single innocent
man.
- There are many others quotes from various country that have the same meaning. For
example British scholar, Thomas Starkie, insisted "that it is better that ninety-nine
offenders shall escape than that one innocent man be condemned.
- The reason is in order to fix and justify the correct ratio of false acquittals of the guilty to
false convictions of the innocent
- basic concept of the presumption of innocence
- presumption of innocence, of being innocent until proven guilty, is a fundamental right
every accused has in criminal trials.
- Article 11 of the Universal Declaration of Human Rights states: Everyone charged with
a penal offence has the right to be presumed innocent until proven guilty according to law
in a public trial at which they have had all the guarantees necessary for their defence.
- The burden of proof is thus on the prosecution, which has to collect and present enough compelling
evidence to convince the judge, who in turn is restrained by law to consider only evidence and testimony
that is legally admissible, to come to a conclusion that the accused is guilty beyond a reasonable doubt.

In other words, where there is a reasonable doubt as to the accuseds guilt, the accused must be
acquitted.
- In 2009, Azilah Hadri and Sirul Azhar Umar were convicted by the High
Court of the murder of Altantuya Shaaribuu but later on they were freed.
how the two accused could come into possession of the explosives used in
the murder, since the type of explosives used were not found in the police
armoury. Most importantly, the Court of Appeal held that the failure of the
prosecution to call a material witness was essential. This material witness,
the Court of Appeal held, should have been called to unfold the narrative
which the prosecution's case was based on. Court of Appeal is saying is
that the evidence presented at trial is not enough to prove, beyond
reasonable doubt, that the two accused are guilty. Thus, because there is
not enough to prove, the decision of the High Court judge to convict the
two is wrong and should be overturned.
-

KONTEKS PIAWAI BEBAN PEMBUKTIAN YANG TERPAKAI DALAM KES-KES

JENAYAH DI MALAYSIA.

a. S.101: 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.

b. It means that the courts decision in every case will depend on whether the party has
satisfied the particular burden and standard of proof that has been imposed on him.
(Nanyang Development Sdn Bhd v How Swee Poh)

c. Burden of proof has 2 distinct meaning burden of establishing a case ( legal

burden)and the burden of introducing evidence ( evidential burden)

d. Salleh Abbas FJ International Times v Leong Ho Yuen

i. Legal Burden - the prosecution in a criminal case to prove the facts which
constitute the offence
ii. A matter of law: must prove every essential elements of the crime. Wong
Sieng Ping v PP
iii. to rebut the presumption of innocence- (rebuttable presumption of law
everyone is presumed innocent unless proven guilty)
iv. Evidential Burden - Ei incumbit probatio qui dicit, non que negat : the burden
of proof rests on who asserts, not on who denies
v. The prosecution will need to adduce evidence of relevant facts to establish the
facts in issue/ responsibility of adducing evidence in order to discharge the
burden of proof. ( may shift constanstly as evidence Aziz bin Muhammad
Din v PP)
vi. In Aziz Bin Muhamad Din v PP,the accused and the victim spent the night in a house
owed by A. A went out on the night where the rape was alleged been taken place,
and when A came back on the following morning, the victim and the accused already
wake up and was having breakfast. The situation clearly afforded an opportunity for a
rape case to occurred However, the court held that although it constitutes evidence
of opportunity, it is setted law that evidence of mere opportunity, without more, cannot
amount to corroboration. There is uncertainty and doubts in the medical evidence. 2
different medical evidences show that (i) the victim had old multiple tears in her
hymen and it was one week old, (ii) the old tear in the hymen was between 48 hours-
3 months old. Augustine Paul JC stated the medical evidence which corroborates the
evidence of the complainant would have constituted supplementary evidence. But, in
this case, the only available evidence is that of mere opportunity which cannot
 amount to corroboration of the evidence of the victim. Therefore the accused was
accquited.
vii. (eg. To prove relevant facts- motive, the other party will adduce evidence to
rebut motive- always shifting )

e. Eg. A is tried for the murder of B. S.101 requires the prosecution to prove the
elements of the offence, namely the requisite intention and the actus reus. To prove
these facts in issue the prosecution will adduce evidence that A had a motive to kill,
that A was seen purchasing the knife with which B was killed and that Bs blood was
found on As clothing. (charge)

f. Mat v PP - The general rule is that the prosecution bears the legal burden of proof

g. Choy Hon Song v PP - The accused generally has only the evidential burden of
raising a reasonable doubt in the mind of the trial court

h. Woolmington v DPP - The burden of proof on the prosecution to prove guilt, no

such burden laid on the accused to prove his innocence, sufficient to raise doubt as to
his guilt

i. Shifting of burden Augustine Paul JC Tan Kim Khuan v Tan Kee Kiat
i. It is settled law that the burden of proof rests throughout the trial on the party
on whom the burden lies
ii. Where a party on whom the burden of proof lies has discharged it, then the
evidential burden shifts to the other party.
iii. When the burden shifts to other party, it can be discharged by cross
examination of the witness of the party on whom the burden lies/ by calling
witness / give evidence by himself.
iv. No adverse inference can be drawn against that party for failure to give
evidence himself
v. If he does not adduce any evidence when the burden has shifted to him, he
will fail.
vi. If the party on whom the burden lies fails to discharge it, the other party need
not call any evidence.

j. S 102 : provides that the bop in a suit or proceeding lies on the person who would fail
if no evidence were given on either side.

k. The result of this is that the party ( PP) who asserts a fact must adduce evidence.

l. The asserting party must raise sufficient evidence to prove the fact to the required
standard.
m. The other party (defence) merely has to raise sufficient evidence to ensure that the
asserting party is unable to prove the fact to the required standard.

n. The common law refers to the obligation of the party proving the fact as the legal
burden, whereas the obligation of the opposing party who merely has to raise
sufficient evidence as the evidential burden.

o. Aziz bin Muhammad Din v PP)

i. The burden of establishing a case must be contrasted with the burden of
introducing evidence (the evidential burden)
ii. The burden of establishing a case rests throughout the trial on the party who
asserts the affirmative
iii. However, the burden of introducing evidence in a case shifts constantly as
evidence is introduced by one side or the other

p. Wong Sieng Ping v PP

i. The onus of proving everything essential to the establishment of the charge
against the accused lies upon the prosecution who must prove the charge
substantially as laid.
ii. The onus never change to the accused to give an explanation or to establish
a case which would be inconsistent with the presumption of innocence

q. s. 103 EA - The burden of proof in a fact lies on the person who wishes the court to
believe in its existence, unless it is provided by any law that the proof of that fact shall lie
on any particular person.

r. When a person on whom a burden lies fails to discharge it, there is no burden on the
opposing party to disprove it

s. Scope of S. 103 -Burden of proof as to a particular fact lies on that person who wishes
the court to believe in its existence

t. Karam Singh v. PP - A murder charge in a fighting over the use of stand pipe in
hospital quarters. Threats were uttered in the presence and hearing of 30 40 persons
but none was called by prosecution.
u. Scope of S. 103 - Burden of proof prescribed by law to lie on a particular person

v. Eg : to rebut the presumption of trafficking under S. 39B DDA 1952

w. Mohamad Radhi Yaakob v. PP: In the course of the prosecution case, the
prosecution may of course rely on available statutory presumptions to prove one or
more of the essential ingredients of the charge. When that occurs, the particular
burden of proof as opposed to the general burden, shifts to the defence to rebut such
presumptions on the balance of probabilities which from the defence point of view is
heavier than the burden of casting a reasonable doubt, but it is certainly lighter than
the burden of the prosecution to prove beyond reasonable doubt.