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

Section 6 deals with relevancy of facts. They describe the various ways in which facts though not in issue are so related to each other as to form part components of the principal fact. There are facts which are related to each other as to form components of the principal fact. There are facts which are so closely or inseparately connected with the facts in issue they may be said to form part of the same transaction. Although the word gestae is not stated in section 6, the courts in Malaysia have applied this term and principle in our local cases. 

            In PP v Ahmad bin Ibrahim 2011 MLJU 921, it held that a transaction may constitute a single incident occupying a few moments or it may be spread over a variety of acts, declarations, occupying a much longer time and occurring on different occasions. They may also occur at the same place or different places. All these constituent incidents which though not strictly constituting a fact in issue, accompany and tend to explain and qualify the fact in issue. They form a chain as it were encircling the fact in issue. All the these facts are relevant to the fact in issue and therefore admissible in evidence. They are evidentially facts which render the existence or non-existence of a fact in issue highly probable.

            It is important to bear in mind that what is admissible under section 6 are facts which are connected with the fact in issue as “part of transaction” under investigation. In order that different acts may constitute the same transaction, they must be connected by proximity of time, place, continuity of action and community of purpose and design. Whether the connection is sufficient to make a fact/facts part of the transaction or is too remote must always depend on the circumstances of the case.

            The rule formulated in section 6 is expounded and illustrated in section 7, section 8 and section 9 of the Evidence Act 1950 and they should be read together. Relevancy has been described and Stephen says section 6 until section 11 are by far the most important and original part of the Act as they affirm positively what facts may be proved, where English Law assumes this to be known, and merely declares negatively that certain facts shall not proved. In testifying to the matters in issue, therefore witnesses must state them not in their barest possible form, but with a reasonable fitness of details and circumstances. These constituents or accompanying incidents are said to be admissible and forming part of the res gestae.

Prepared by Kang Khai Lun

The answer is affirmative. As in Kartigeyan A/l Krishnan v Pendakwa Raya [2012] MLJU 589, Syed Ahmad Helmy Syed Ahmad JCA held that it was not in dispute that the prosecution's case regarding to the charges of rape and murder in that case rests entirely on circumstantial evidence. At this juncture it was appropriate to recapitulate the three tests applicable in relation to circumstantial evidence as propounded by the Supreme Court of India in Chandmal & Anor v State of Rajasthan AIR [1970] SC 917 and approved by our Federal Court in Magendran Mohan v PP [2011] 1 CLJ 805 at page 815 namely:-

"Firstly, the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established. 

Secondly those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused. 

Thirdly, the circumstances taken cumulatively, should form a chain to complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and no one else. That is to say the circumstances should be incapable of explanation on any reasonable hypothesis save that of the accused's guilt."

            In evaluating the circumstantial evidence of the case the judge will took into consideration the circumstances prior and post the crime. In Kartigeyan A/l Krishnan v Pendakwa Raya [2012] MLJU 589 where charges of rape and murder involved, the court had relied on the evidences given by the forensic pathologist, the person who last saw the accused and alive deceased together, the DNA evidences produced by the chemist and other relevant circumstantial evidence to convict the accused for the offences of rape and murder. The forensic pathologist who examined the deceased in that case gave testimony as to the injuries inflicted, the cause of death and also the estimation as to the time of death. The injuries and the cause of death were vital to establish the guilt of the accused where actus reus and mens rea of the accused may be formulated. From the evidences given by the forensic pathologist, the injuries were caused by a human being conduct e.g bite marks on the victim tongue, injury to genitalia and multiple soft tissues on the body with pattern consistent with that due to direct blow impact occasioned by the usage of heavy and hard object which leaded to the cause of death - head injury due to blunt trauma. The time which the person who last saw the accused and the deceased together was jibe with the estimation as to the time of death estimated by the forensic pathologist. The inference would be that the accused was the only person with the deceased when the deceased was assaulted until her death. On the other hand, the chemist found semen belonged to the accused in the deceased vagina through the DNA test. This would infer to us that there was sexual intercourse occurred between the accused and the deceased and the injury to the genitalia would infer to us that the sexual intercourse was done without consent. Moreover, the time where the other body part injuries inflicted was jibe with the time where the injury to the genitalia inflicted. 

            Hence, based on the injuries inflicted and the cause of death of the deceased and any other relevant circumstantial evidences, the court had found that there was beyond reasonable doubt that the accused had raped the deceased and murdered her and upheld the conviction and sentence.

                                                                                                               by        KANG KHAI LUN  A130454

law of evidence