Law of Evidence – written notes – Emily Law

Topic 3: Burden of Proof

 Burden of proof = duty to prove/establish a case

a) Legal burden of proof – duty to satisfy the court the existence of fact according to
the standard of proof set by law (BRD/BOP)
b) Evidential burden of proof – duty to adduce some evidences, not necessary to
satisfy any standard of proof; only to cast a reasonable doubt
 In our Evidence Act, ‘burden of proof’ is not defined.
 S. 3 only defined ‘proof’, ‘not proved’ & ‘disproved’

2 approaches of ‘burden of proof’

A. Lord Devlin – ‘burden of proof’ = legal burden of proof

 R v Jayasena
 Fact: the accused was charged with murder and he raised the defence of self-
defence. The prosecution argued that the defence carries both legal and evidential
burden of proof whereas the defence argued that the defence only carries evidential
burden of proof.
 Held: the judge applied s. 3 ‘proved’ to interpret s. 105. The burden of proof in EA
is legal burden of proof and not evidential burden of proof.

B. Augustine Paul – ‘burden of proof’ = legal and evidential burden of proof

 S. 101 refers to legal burden of proof
 S. 102 refers to evidential burden of proof
 International Times v Leong Ho Yuen (Supreme Court)
 According to s. 101, the burden of establishing a case rests on the party who asserts
it. (it suggests that s. 101 refers to the legal burden of proof)
 According to s. 102 & 103, if the party with whom the onus lies does not given any
evidence/insufficient evidence, such party must fail. (it suggests that s. 102 & s.
103 refers to the evidential burden of proof)

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Law of Evidence – written notes – Emily Law

Types of defence

 R v Chanderasekara
 There is a need to distinguish between 2 types of defences, namely:
a) Defence which attack the elements of prosecution’s case
b) Defence which are independent from prosecution’s case

A.Defence which attack the elements of prosecution’s case

 = Deny the charge
 Eg: alibi, accident (attack the AR & MR)
 Eg: when accused relies on the defence of accident, he is disputing the MR in the
prosecution’s case, claiming that he was not intentional. In this situation, the accused only
need to cast a reasonable doubt as to whether his act was really intentional. He does not
need to prove positively that his act was accidental. The accused succeeds in his defence
not because he had established his defence but because by doubting the essential element
(MR), he had shown to the court that the prosecution had failed to establish its case BRD.
 Therefore, according to R v Chanderasekara, if the defence only attacks AR & MR, the
accused only bears evidential burden of proof.
 Nagappan v PP – if the accused did not raise any specific defence but only attack
prosecution, the accused only bears evidential burden of proof.

Type of Defences
Defences which attack elements of Defences which are independent
the prosecution’s case (AR+ MR) from the prosecution’s case
Eg: Defence of Alibi, Accident Eg: Provocation, Self Defence
Affect AR + MR Does not affect AR + MR
No Crime / Denial Justification / Excuse
Augustine Paul’s Approach Lord Devlin’s Approach

B.Defence which are independent from prosecution’s case

 = Admitted the charge but trying to justify himself
 Eg: provocation
 Eg: when an accused raised defence of provocation, he actually admitted the case that he
was responsible for the death of deceased. However, he tries to bring in evidence of
circumstances which excuse himself. In this situation, there is a legal burden on the accused
to convince the judge on the BOP. Otherwise, his defence of provocation would be rejected.
 Therefore, in this kind of defence, the accused bears legal burden of proof.

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Law of Evidence – written notes – Emily Law

Burden of Proof in Criminal Case

Prosecution

 S. 101 – he who asserts must prove

 Generally, the burden of proof in a criminal case is on the prosecution.

 Woolmington v DPP
 Fact: the accused was charged with murder of his life by shooting her with a gun.
The accused pleaded accident that the gun went off accidentally & killed his wife.
The prosecution could not prove the malicious intention whereas the accused could
not establish the defence of accident.
 Held (HOL): Prosecution hold legal burden of proof and it is the prosecution that
needs to prove the case BRD and the accused has to merely cast a doubt on balance
of probabilities.

 Mat v PP (HC, Justice Suffian)

 If you are satisfied BRD as to the accused’s guilt, convict;
 If you accept/believe the accused’s explanation, acquit;
 If you do not accept/believe the accused’s explanation, do not convict but consider
the steps below;
 If you do not accept/believe the accused’s explanation & that explanation does not
raise a reasonable doubt to you, convict;
 If you do not accept/believe the accused’s explanation but it raises reasonable doubt
to you, acquit.

 PP v Saimin (HC)
 Held:
o It is the duty of prosecution to prove the charge BRD.
o Falsify of the defence does not relieve the prosecution from proving its case
BRD.
o Reasonable doubt is the doubt which makes one hesitates as to the
correctness of the conclusion… a doubt so solemn & substantial which
produce uncertainty as to the verdict to be given. A reasonable doubt must
be a doubt arising from evidence and cannot be an imaginary doubt.

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Law of Evidence – written notes – Emily Law

Accused

s. 103

 S. 103 – the burden of proof of any particular fact lies on the person who wishes court to
believe it.
 Note: this section applies to both criminal & civil cases
 S. 103: illustration (b) – B wishes the court to believe that at the time in question, he was
elsewhere. He must prove it. (alibi)
 Note: alibi is a common law defence, not a statutory defence; hence, s. 105 is not applicable.

 S. 11: relevancy of fact – illustration (a) – the question is whether A committed a crime at
KL on certain day. The fact that on the day, A was at Taiping is relevant.
 S. 402A CPC – provides for alibi.
 S.402A(1) – the court shall inform the accused to his right to put forward a defence
of alibi at the time the accused was being charged.
 S.402A(2) – where the accused put forward defence of alibi, he shall put forward a
notice of his alibi during the case management process.
 S.402A(3) – the accused may adduce evidence I support of alibi at any time during
the trial with 2 conditions:
a) The accused must give written notice of alibi to PP; and
b) The PP is given reasonable time to investigate the alibi before such evidence
can be adduced.

 Dato Mokhtar Hashim v PP (FC)

 Fact: the accused was charged with murder & raised the defence of alibi.
Prosecution argued that the defence of alibi not only must bear evidential burden
of proof but also legal burden on BOP.
 Held:
o By referring to s. 402A of CPC, the accused person bears the legal burden
of proving his alibi.
o *The burden of proving an alibi lies on the accused setting up the defence
but even so the burden of proof as to the guilt of the accused always remains
on the prosecution irrespective of whether or not the accused had made a
plausible defence.
 Note: this is based on the argument whereby s. 103 must be interpreted via s. 3
‘proved’. The ‘proved’ in s. 3 means legal burden of proof.

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Law of Evidence – written notes – Emily Law

 Yau Heng Fang v PP (Supreme Court)

 Court decided that accused only bears evidential burden when claiming an alibi
defense.
 This means that all the accused has to do is to adduce some evidence of his alibi.
 Critic: in prescribing the evidential burden, the judge did not refer to s. 103 of EA.

 Illian v PP
 Fact: the accused were charged for drug-trafficking, where one of them raised the
defence of alibi. The evidential burden was imposed on the accused.
 Held: in the defence of alibi, all the accused needs to do is to cast a reasonable
doubt that he was not the person at the crime scene. In another word, the accused
only bears the evidential burden of proof.

s. 105

 S. 105 – when an accused raises any defences, the burden of proof is on him. This section
only apply to statutory defence; either in Penal Code, proviso of Penal Code & any other
statute defining the offence.
 Note: the word ‘prove’ in s. 105 is interpreted in s.3 to mean legal burden of proof. Hence,
the accused has the legal burden to prove statutory defences on BOP.

 R v Jayasena
 Fact: the accused was charged with murder and he raised the defence of self-
defence. The prosecution argued that the defence carries both legal and evidential
burden of proof whereas the defence argued that the defence only carries evidential
burden of proof.
 Held: the judge applied s. 3 ‘proved’ to interpret s. 105. The burden of proof in EA
is legal burden of proof and not evidential burden of proof.

 Ikau anak Mail v PP

 The accused had the burden to prove his defence of provocation on BOP.

 PP v Kenneth Fook
 The burden of establishing insanity is on the accused & that there was no obligation
on prosecution to adduce evidence to show that the accused was sane at the time
when he commits the offence.

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Law of Evidence – written notes – Emily Law

**Issue arises: whether the accused should be convicted if he fails to prove his defence on BOP.

Answer: no, there are exceptions.

 R v Chanderasekara – if the defence only attacks AR & MR, the accused only
bears evidential burden of proof.
 Nagappan v PP – s. 105 should not be read in isolation but must be read in relation
to EA as a whole, particularly s. 101 & s. 102. In criminal trial, it is for the
prosecution to prove the guilt of accused BRD. Therefore, if the accused did not
raise any specific defence but only attack prosecution, the accused only bears
evidential burden of proof.

s. 106

 S. 106 – imposes the burden of proof on the person who has special knowledge of a fact.
 S.106 illustration (b) – if a person is charged with travelling on railway without a ticket,
the burden of proving that he had ticket is upon him.
 R v Turner
 Fact: the accused was charged with hunting without lawful authority.
 Held: the burden of proving whether the accused has authority is on the accused as
it is the fact especially within his knowledge.

 PP v Hoo Chee Keong

 Fact: the accused was found in possession of fake credit card. The requisite MR of
such offence is knowledge.
 Held:
o S. 106 is an exception to s. 101 which designed to meet certain exceptional
cases where it would be difficult for prosecution to establish the facts which
are ‘especially’ within the knowledge of accused.
o Whether or not the accused has the knowledge that the credit cards are fake
is a matter especially within his knowledge.
o Therefore, it is for him to prove such fact under s. 106.

 Lee Chin Hock v PP

 Fact: the accused was charged under Internal Security Act for having possession
of prohibited documents without lawful excuse.
 Held: if the accused has a lawful excuse, that fact would be especially within his
knowledge. Therefore, the burden to prove such fact is on the accused.

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Law of Evidence – written notes – Emily Law

*Note: s. 106 is only applies to negative averment, eg: without license, without lawful
authority; but not applies to positive averment, eg: with intention, with knowledge

 Attygalle v The King

 Issue: whether the burden of proving MR can be shifted to accused.
 Held: s. 106 cannot be used in proving MR as MR is a positive averment.

 Ghanasegaran v PP
 Prosecution cannot be expected to prove a negative averment. That burden is on the
accused as it is especially within the knowledge of accused.

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Burden of Proof in Civil Case

 S. 101 – he who asserts must prove

 Note: s. 101 applies to both criminal & civil case
 Tenaga Nasional Bhd v Perwaja Steel Sdn Bhd
Held : Plaintiff must prove such facts as the plaintiff desires the court to give judgment as
to its right to claim against the defendant. The burden of proof is on the Plaintiff.

Exception:

A. S. 103
 S. 103 – burden of proving a particular fact is on person who wishes the court to believe.
 Eg: if an accused raises a defence, he is said to ‘assert a fact’. Therefore, s. 103 becomes
applicable. The standard of proof = BOP.
 Eg of civil defence: consent, contributory negligence, frustration

**Note: s. 104 – preconditions is applicable to both criminal & civil case.

**Note: s. 105 is not applicable to civil case, only criminal case.

B. S. 106
 Apply to civil cases based on the principle of res ipsa loquitur (the occurrence of an
accident implies negligence / presumption of negligence)
 The impact of s. 106 to civil case: it shifts the burden to prove negligence from plaintiff to
defendant who must now rebut negligence on BOP.

 David Chelliah v Monorail Malaysia (2009)

 Fact: Plaintiff was standing at a road divider below a monorail track, waiting to
cross the road. A monorail train was passing by on a test run. As it passed, a wheel
from the train fell on the plaintiff, causing him to suffer serious injuries.

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Law of Evidence – written notes – Emily Law

 Issue: whether the plaintiff is entitled to rely on the maxim of res ipsa loquitur that
plaintiff had established a prima facie negligence & shift the burden of proof to
defendants to prove that they were not negligent.
 Held: From the results of investigations, it was found that the bolts from the wheel
could have been unscrewed & causing the wheel to fell off. Logically, this could
not have happened if the bolts had been tightened properly.
 A plaintiff prima facie establishes negligence where:
a) it is impossible for him to prove precisely what was the relevant act/
omission which cause the accident; and
b) on the evidence, it is more likely that the cause of the accident was due to
the act/omission of the defendant
 Here, the court held that plaintiff had established a prima facie case of negligence
against the defendants & the onus had shifted to defendant to show that the incident
occurred without negligence on their part.
 As the defendants had failed to do so, the court held that defendants were
negligence & liable to the plaintiff for damages & costs.

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Issue: whether in civil case involving criminal allegation, the burden of proof is criminal standard
BRD/ civil standard of BOP

Common Law:

 Hornal v Neuberger
 In criminal allegations in a civil case, the standard of proof will be the civil standard
of balance of probabilities.
 However the more serious the allegation the higher the degree of probabilities
which will be required, but it need not reach the criminal standard.

Malaysia:

 Boonsom Boonyanit v Adorna Properties

 In an allegation of forgery in a civil case, the standard of proof will be the civil
standard of BOP.

 Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd

 There are only 2 standard of proof: criminal standard of BRD & civil standard of
BOP.
 In allegation of fraud in civil case, the standard of proof = civil standard of BOP.
 The more serious it is such as tilting towards criminal liability the higher degree of
probability is required before it can be said that the standard of proof on the balance
of probabilities has been satisfied.
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Law of Evidence – written notes – Emily Law

Standard of Proof

 In criminal cases, for prosecution – BRD

 In civil case/accused in criminal case – BOP
 Note: Evidence Act does not define BRD/BOP, it only defines ‘proved’, ‘not proved’ &
‘disproved’ in s. 3 of EA

Criminal cases
 Woolmington v PP
Prosecution = BRD ; Accused = Merely cast a doubt on BOP.

- Ikau Anak Mail v PP

Held : Accused only has the burden to prove his defence of provocation on BOP.

- PP v Yuvaraj
Where the burden of proving a defence or rebutting a presumption is on the accused, the
burden on him is the same as applied in civil proceedings, ie on balance of probabilities.

Civil cases
- In re B (Children) – English Case
In that case the House of Lords held that there is "only one civil standard of proof and that
is proof that the fact in issue more probably occurred than not". The "range of
circumstances which have to be weighed when deciding as to the balance of probabilities".

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Circumstantial Evidence

Ques: Can the accused be convicted purely on circumstantial evidence? Ans: YES

 Chan Chwen Kong v PP (FC)

 Fact: the appellant appealed against his conviction for murder. The evidence
against the appellant was all circumstantial.
 Held:
o Pike CJ: The onus of the prosecution where the evidence is of the
circumstantial nature is a very heavy one and that evidence must point
irresistibly to the conclusion of the guilt of the accused. If there are gaps in
it, then it is not sufficient.
o When evidence was entirely circumstantial … no single piece of that
evidence is strong enough to sustain conviction. That is very true… Where
the evidence is wholly circumstantial what has to be considered is not only
of each individual strand of evidence but also the combined strength of these

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Law of Evidence – written notes – Emily Law

strands when twisted together to form a rope. ( = suggest that an accused

can be convicted based purely on circumstantial evidence)
o The real question is: is that rope strong enough to hang the prisoner?

Cases – accused were convicted based purely on circumstantial evidence

 Sunny Ang v PP
 Fact: the accused was charged & convicted of the murder of his girlfriend.
However, the body of deceased was never discovered.
 Held: although no direct evidence the circumstantial evidences/facts adduced by
the prosecution were so compelling that the court reached the irresistible conclusion
that the appellant had murdered the deceased.
 Some of the facts are:
o The appellant had bought deceased insurance against accidents & he named
his mother as beneficiary.
o Deceased did not know how to dive but appellant allowed her to dive in
dangerous water.
o The appellant did not go down to the waters himself when deceased failed
to resurface.
o Flippers were found which had been cut in 2 places
o Less than 24 hours after deceased’s disappearance, the appellant made he
insurance claim.

Cases – accused were not convicted based purely on circumstantial evidence

 PP v Sarjit Kaur
 Fact: the accused was charged with the murder of her husband. The prosecution
relied solely on circumstantial evidence in trying to establish its case.
 Some facts adduced were:
o The accused was an unfaithful wife
o The accused was ill-treated
o Traces of blood strains were found on accused’s dress
o The accused insisted her maids & children to go to bed earlier than usual
 Held:
o the prosecution had failed to establish a prima facie case
o each strand of the circumstantial evidence are so brittle that even when tied
together, they are not strong enough to convict the accused

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Law of Evidence – written notes – Emily Law

Ques: if there is a higher standard of proof on the prosecution where the evidence against the
accused is only purely circumstantial? Ans: Irresistible Conclusion Test (ICT)

 R v Hodge
 Held: Where the evidence against the accused is purely circumstantial, the court
must be satisfied that there is no other resistible conclusion but the prisoner’s guilt.

 Jayaraman v PP
 The ‘ICT’ is similar with the standard of proof of BRD. The use of ICT is merely
‘a play of words’.
 In fact, to apply the ICT is another way of saying that the prosecution must prove
the guilt of the accused BRD.

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