When a person is bound to prove the existence or non-existence of any fact, then it is said that the burden of proof lies on that person. Burden of proof can be defined as the obligation, which is imposed on a party to adduce sufficient evidence in support of his vital contention to result in overall success by him in his case. The relationship between 'fact in issue' and 'burden of proof' is that, facts in issue are vital issues central to the allegation of the party and failure by him to adduce sufficient evidence in support of a fact in issue means that he has failed to discharge the legal burden and thus he will fail in his overall contention. Thus, it can be said that proof of 'fact in issue' is the sine qua non for establishing legal burden. The phrase 'burden of proof' has two distinct meanings in the law of evidence as follows: (a) burden of establishing a case; and (b) burden of introducing evidence as illustrated in s 101 of Evidence Act 1950. For example,

      (a)   In Public Prosecutor v Yuvaraj, the Privy Council, in relation to burden of proof as per statue, distinguished the leading case of Woolmington v DPP and stated:

Wolmington v DPP is not in their Lordships' view germane to the present appeal. It was concerned with an offence at common law, not with an offence as to which there is an express statutory provision altering the ordinary onus of proof which in a criminal case lies upon the prosecution and imposing upon the defendant the burden of proving the existence or non-existence of a particular fact by way of defence.

         (b)   In Mat v Public Prosecutor [1963] MLJ 263, Suffian J (as His Lordship then was) observed:

The correct law of Magistrates to apply is as follows. If you accept the explanation given by or on behalf of the accused, you must of course acquit. But this does not entitle you to convict if you do not believe that explanation, for he is still entitled to an acquittal if it raises in your mind a reasonable doubt as to his guilt, as the onus of proving his guilt lies throughout on the prosecution. If upon the whole evidence you are left in a real state of doubt, the prosecution has failed to satisfy the onus of proof which lies upon it.

       (c)   In Saminathan v Public Prosecutor [1955] 21 MLJ 121, the court among other things considered the rules of evidence with regard to burden of proof in civil and criminal cases. Buhagiar J observed:

Submissions are frequently made in criminal trials to the effect that there is a fundamental difference in the law of evidence in criminal and in civil cases and that in criminal cases the burden of proof on the prosecution is different from that on the defence. In civil cases, it is said, a preponderance of probabilities is sufficient but in criminal cases the prisoner's guilt must be proved beyond reasonable doubt; with regard to the defence in criminal cases it is said the burden of proof is not as high as that of the prosecution and that if the defence raises a reasonable doubt or if there is a preponderance of probabilities in favour of the accused, the accused is entitled to an acquittal.

        (d)   In Dalip Bhagwan Singh v PP [1998] 1 MLJ 1, the Federal Court stated:

Moreover, although the Criminal Procedure Code has been amended to include the test of prima facie case, the amendment would apply only to an act or omission constituting a criminal offence committed on or after 31 January 1997, and not to any such act or omission before 31 January 1997. For such act or omission committed before 31 January 1997, the test as laid down in Arulpragasan, i.e. that of proof beyond a reasonable doubt at the close of the prosecution's case, would still apply because the amendment is not couched in terms, either expressly or by necessary implication, which would make it retrospective in operation.

                The latest development is that in Public Prosecutor v Mohd Aszzid Abdullah [2008] 1 MLJ 281, it held that all the above cases and many more now must be read in the light of Balachandran v Public Prosecutor [2005] 2 MLJ 301. The burden of establishing a case in a criminal trial always remains with the prosecution and in a civil case, subject to certain exceptions, always remains with the plaintiff. However, the burden of introducing evidence may shift. Burden of introducing evidence is often called evidential burden. For example, A says that B has committed the murder. Here the burden of proof is on A to prove that B has committed the murder. The legal burden always rests on A to prove his case. If B relies on the defence of provocation then B has the evidential burden to adduce evidence to that effect before the prosecution is put to the legal burden of negativing the defence.

Prepared by Kang Khai Lun A130454

12/13/2012 10:28:26 pm

I agree with the illustrations made as to the burden of proof and I also belief that the legal burden is always on the prosecution as it encompasses the proof of whole circumstances of the case involved in convicting the accused. However, the only burden that shifts would be the evidential burden that lies upon the defense.


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