Burden & Standard of Proof

- In any case, the decision of the court depends on whether the parties have satisfied
their burden and standard of proof:
- Who bears the burden
- What is the standard
Burden of Proof (onus probandi)
Legal burden:
- Burden of proving facts in issue or establishing a case
- Concerns the liability or non-liability of the parties

- A burden to prove the elements of a crime or a civil wrong, and defences that may be
relied upon by the defendants.
- It is fixed on one party and never shifts to the other

- Rests on the party that asserts the fact in issue

- The necessity of proof (in a criminal case) always lies with the person who lays
the charges
Sec. 101: On whom the legal burden lies:
- Proof in criminal cases:
- Woolmington v DPP: Where the accused was charged for the murder of his
wife, the trial court held that the accused failed to prove that the gun went off
accidentally. On appeal, the court held that the trial court had erred in its
judgment as it is upon the prosecution to prove that the accused had the
intention to kill his wife.
- Viscount Shankey: It is the duty of the prosecution to prove the
prisoner’s guilt.

- Mat v PP: The onus of proving the accused’s guilt lies throughout the case on
the prosecution.

- Exceptions:
- Where the accused also bears the legal burden
- Reverse onus provision: Imposes upon the accused the burden
of proving a particular fact when a statute assumes the
existence of a certain fact
- R v Carr-Briant: Accused was charged under the Prevention of
Corruption Act. The Act states that a person who is seeking a
government contract, and pays money to a public officer, is
deemed to have given or received it corruptly, and is guilty,
unless the contrary is proven. Thus, the accused has the burden
of proving the contrary.
 - Where the accused relies on the defence of insanity
- R v Podola: An accused that relies on the defence of insanity
also has a duty to prove that he is of unsound mind.

- Even where the accused is unable to raise doubt as to his guilt, the legal burden
remains with the prosecution.

- Proof in civil cases:

- The legal burden in civil cases lies with the plaintiff
- Miller v Minister of Pensions: If the plaintiff desires for the court to give
judgment in his favour, he must prove that the defendant was negligent
- Nuri Asia Sdn Bhd v Fosis Corp Sdn Bhd: The plaintiff must prove the facts which
he asserts in accordance with Sec. 101.

Evidential burden:
- Burden of adducing sufficient evidence
- It lies on the party who would fail if no evidence is given on either side
- It shifts as soon as evidence of a prima facie case is produced, and shifts back when
the opposing party rebuts.

- Sec. 102: The evidential burden lies on both parties to a case, whether criminal or civil.
- E.g: In a criminal case, the prosecution will first adduce evidence to prove the
elements of an offence. Once a prima facie case is established, the burden
shifts to the accused to adduce opposing evidence.
Standard of Proof
In a criminal case, the standard of proof is beyond reasonable doubt:
- It is the highest level of burden
- There can be no reasonable doubt in the mind of a reasonable man that the accused
is guilty.
- Where there is reasonable doubt, it can only be to such an extent that it would not
affect the reasonable man’s belief that the accused is guilty.
- Only to a certain ‘likelihood’, and not to a level of ‘possibility’

- The standard is not ‘beyond a shadow of doubt’ (where there is no doubt as to the
fact in issue) which is the most strict standard of proof and is impossible to attain:
- Miller v Minister of Pensions: The phrase ‘beyond reasonable doubt’ should not
be confused with ‘beyond a shadow of doubt.’ Although ‘beyond reasonable
doubt’ is a high degree of probability, it need not reach certainty.

- Where the prosecution relies on circumstantial evidence: All circumstantial evidence

tendered must be capable of leading to one irresistible conclusion.
 - Sunny Ang v PP: Where the accused was charged and convicted of the murder
of his girlfriend despite the fact that the body of the deceased was never
discovered.
- The irresistible conclusion test is where no other conclusion can be
arrived at despite there only being circumstantial evidence.

- Dato Mokhtar Hashim v PP: The test of beyond reasonable doubt is equivalent
to that of the irresistible conclusion.
- Where the circumstantial evidence, when looked at as a whole, can
only produce one conclusion, thus the accused has been proven to be
guilty beyond reasonable doubt.

- Juraimi Hussin v PP: The proposition that 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 reasonable doubt.
- Any gap in the circumstances relied upon or inconsistent with the guilt
of the accused would result in the prosecution not having proven its
case beyond reasonable doubt.
In a civil case, the standard of proof is on a balance of probabilities:
- Preponderance of evidence
- An event is said to have occurred (e.g: a tortious act) if the court believes that
on the evidence, the occurrence is more likely than not.
- It does not require the court to be certain.
- Miller v Minister of Pensions: The term balance of probabilities means a
probability which is not so high as required in a criminal case, that is where it
is more probable than not, but if the probabilities are equal, the standard is
not discharged.

- Where there exists a criminal allegation (e.g: adultery, forgery, misrepresentation,

fraud) in a civil case:
- Common Law position: Depends on the seriousness of the allegation.
- Malaysian position:
- Ang Hiok Seng v Yim Yut Kiu: Where an allegation in a civil proceeding concerns
criminal fraud, the standard of proof is the criminal standard of proof, namely
beyond reasonable doubt. However, if it does not concern criminal fraud, but
only civil fraud, whereby it is not based on a criminal conduct or offence, the
civil standard applies, namely on a balance of probabilities.
- Thus, this case established three standards of proof:
- Criminal standard: Beyond reasonable doubt
- Civil standard: Balance of probabilities
- Civil case involving allegation of an act which is criminal in
nature: Beyond reasonable doubt
 - Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd: The court in this case
overruled Ang Hiok Seng by emphasising that there only exists two standards
of proof and that there is no third standard.
- Even if fraud is the subject in a civil claim, the standard is on a balance
of probabilities.
- The civil standard applies to all other allegations in civil claims.
Standard of proof at the end of the prosecution’s case:
The position prior to Haw Tua Tau v PP:
- Sec. 173(f) & Sec. 180, CPC prior to the 1997 amendment: “…where no case against
the accused has been made out, which if unrebutted would warrant the accused’s
conviction, the court shall record an order of acquittal.”
- Thus, the court must be satisfied that a case against the accused has been established
before he can be called to enter his defence.

- The phrase “which if unrebutted would warrant his conviction” means that the
prosecution must prove its case against the accused beyond reasonable doubt.
- If the prosecution had produced evidence against the accused beyond
reasonable doubt, then the accused can be convicted.
- If no other evidence is brought to rebut the prosecution’s evidence, the
accused should be convicted.

- PP v Man Abas: When the court called the accused to enter his defence, this shows
that the court was of the opinion that a prima facie case had been made out against
the accused. If the court found that no case against the accused had been made out
“which if unrebutted would warrant his conviction”, it would have acquitted the
accused at the end of the prosecution’s case.
- The court in this case equated the standard of beyond reasonable doubt with
that of establishing a prima facie case.

- PP v Saimin: Evidence against the accused discloses a prima facie case when it is such
that if unrebutted and if believed it will be sufficient to prove the case against him.
Therefore if the learned magistrate was not satisfied with the case of the prosecution
it was his duty to acquit and discharge the accused at the close of the prosecution’s
case.
The position of Haw Tua Tau v PP:
- A prima facie case means that a prosecutor must bring evidence to prove elements of
the crime through evidence which is inherently credible, or else it would be illogical,
unreliable, or logically relevant.

- The court established two standards of proof:

- Maximum evaluation: Beyond reasonable doubt
 - Minimum evaluation: A prima facie case
- The court only required the minimum evaluation, namely for the
prosecution to prove elements of the crime with evidence which is
inherently credible at the close of the prosecution’s case.
The position after Haw Tua Tau v PP:
- Munusamy v PP (followed the minimum evaluation in Haw Tua Tau): It is only a
hypothetical beyond reasonable doubt as to the guilt of the accused at the close of
the prosecution’s case (the standard is only assumed). The test for a judge is “if I were
to accept the prosecution’s evidence as accurate, would it establish the case against
the accused beyond reasonable doubt.”

- Khoo Hi Chiang v PP (followed the maximum evaluation): The court overruled Haw
Tua Tau and Munusamy as the question to be asked at the close of prosecution’s
case is not just a hypothetical question of law, but an actual and quite different
question of law. The comments in Haw Tua Tau on prima facie were purely obiter,
therefore the court must use the maximum evaluation.

- Tan Boon Kean v PP (followed the minimum evaluation in Haw Tua Tau): Although the
court was bound by the ratio in Khoo Hi Chiang, it held that evidence need not be
conclusive of the guilt of the accused, but should be on the hypothetical basis that no
further evidence was forthcoming, and as such, the court must keep an open mind on
the question of the accused’s guilt until the conclusion of the trial.

- Arulpragasan Sandaraju v PP (followed the maximum evaluation): The Federal Court

overruled Tan Boon Kean and held that at the close of prosecution’s case, the court
has to conduct a maximum evaluation of the prosecution’s evidence as tested in cross-
examination and see if the prosecution has made out a case against the accused
beyond reasonable doubt before calling the accused to enter his defence.
1997 amendment of the CPC:
- The phrase ‘prima facie case’ was inserted in Sec. 173(f) & (h), CPC:
- “…made out a prima facie case against the accused...”
- However, no definition of a ‘prima facie case’ was provided.
2006 amendment of the CPC:
- Paragraph (iii) was inserted into Sec. 173(h):
- For the purpose of subparagraphs (i) and (ii), a prima facie case is made out
against the accused where the prosecution has adduced credible evidence
proving each ingredient of the offence which if unrebutted or unexplained
would warrant a conviction.

- Thus, when read as a whole, the court will only convict the accused when there is a
case proven beyond reasonable doubt.
Burden of proof as to a particular fact:
- Sec. 103: The burden lies on the person who wishes the court to believe its existence.
Burden of proof to prove an alibi:
- An alibi is not a defence, but a statement of fact that a person was somewhere else
other than at the scene of the crime.
- It is a particular fact that is required to be proven.

- Dato Mokhtar Hashim v PP: The burden of proving an alibi is only a legal burden and
its standard is only on a balance of probabilities.

- However, in Yau Heng Fang v PP: The burden of proving an alibi is only an evidential
burden. Sec. 402A(1), CPC merely provides that the alibi is a written notice to be given
by the defence to the prosecution. Nothing more should be read into the provision as
it was not the intention of the legislature to introduce a new legal burden.

- Illian v PP: All the accused needs to do is raise a reasonable doubt that he was not at
the scene of the crime. The proper approach is for the learned trial judge to consider,
at the close of the defence’s case, whether he had succeeded in doing so. Where the
court had applied the heavier burden, namely the legal burden upon the accused, it
had indeed misdirected itself.
Burden and standard of proof for defences:
- Sec. 105: The accused has the burden of proving the existence of circumstances
bringing the case within any general or special exception in the Penal Code or any
exception or proviso in any law defining the offence.

- Looi Wooi Saik v PP: The accused is imposed with an evidential burden in that he need
only raise reasonable doubt as to the existence of the exceptions.
- In this case, where the accused sought to rely on the defence of provocation,
the court held that even if the court does not actually believe he was provoked,
the doubt is sufficient to earn him an acquittal.

- However, in Ikau Anak Mail v PP: Where the accused’s wife and uncle had provoked
him to such an extent where he pulled out a knife and stabbed them, the court held:
- The burden imposed on the accused is a legal burden. The defence must prove
that the accused was being provoked, and only if the court believes in such
evidence can the accused then be acquitted. However, the standard of proof
in proving the exception is low where it is only required to be proven on a
balance of probabilities.