Prima facie is a Latin expression meaning on its first encounter, first blush, or at first sight. The literal translation would be "at first face" or "at first appearance", from the feminine form of primus ("first") and facies ("face"). Osborne’s Concise Law Dictionary defines prima facie case as follows:
“ A case in which there is some evidence in support of the charge or allegation made in it, and which will stand unless it is displaced. In a case which is being heard in court, the party starting, that it upon whom the burden of proof rests, must make out a prima facie case, or else the other party will be able to submit that there is no case to answer, and the case will have to be dismissed.”
Based on the definition, prosecution (represent the state) holds the legal burden of proving the facts in issue beyond reasonable doubt as opposed to the accused to raise the doubt. In order to prove the requisite burden of proof in a case, a prosecutor will seek out prima facie evidence that supports conviction and upholds that each required element of a crime did occur. The elements requiring prima facie evidence to support a given criminal case will widely vary based on the nature and type of criminal charge.
Privy Council in Haw Tua Tau (1981) 2 MLJ 49 set out the criteria which need to be satisfied for the finding of a ‘prima facie case’, as observed by Lord Diplock:
“…The prosecution makes out case against the accused by adducing evidence of primary facts. It is to such evidence that the word ‘if unrebutted’ refer. What they mean is that for the purpose of reaching the decision called for by section 188(1) the court must act on the presumptions (a) that all such evidence of primary fact is true, unless it is inherently incredible that no reasonable person would accept it as being true; and (b) that there will be nothing to displace those inferences as to further facts or to the state mind of the accused which would be reasonably be drawn from the primary facts in the absence of any further explanation… At the conclusion of the prosecution’s case what had to be decided remains a question of law only. As decider of law, the judge must consider whether there is some evidence (not inherently incredible) which, if he were to accept it as accurate, would establish each essential element in the alleged offence. If such evidence as respects any of those essential element lacking, then, and then only, is he justified in finding ‘that no case against the accused had been made out which if unrebutted would warrant his conviction’, within the meaning of section 188(1)…”
In Malaysia, the relevant statutory provision which sets out in what circumstances defence is to be called after the close of prosecution case, as follows:
i. Evidence Act 1950, Chapter VII sets out the rule in respect of Burden of Proof. Section 103
particularly states;
“ The burden of proof lies on that person who wishes the court to believe in its existence, unless
it is provided by any law that the proof of the fact shall lie on any particular person.”
ii. For Summary Trial before Magistrate, section 173 (f) (h) and (j) of Criminal Procedure Code (CPC);
and
iii. For Trial before a Judge, section 180 CPC.
In practice, any criminal proceeding against a defendant will require sufficient proof to proceed any further past the original arrest on grounds of probable cause. Without sufficient evidence, the prosecutor cannot bring any viable charges against a defendant. Typically, with this information in mind, the courts will dismiss any charges sought by prosecutors without sufficient prima facie evidence. This is under the assumption that without any prima facie evidence to support a case now, the prosecution will not be able to do so during a later trial. Therefore, holding a defendant would also be illegal.
- PETEI ANAK KANAI A127897
“ A case in which there is some evidence in support of the charge or allegation made in it, and which will stand unless it is displaced. In a case which is being heard in court, the party starting, that it upon whom the burden of proof rests, must make out a prima facie case, or else the other party will be able to submit that there is no case to answer, and the case will have to be dismissed.”
Based on the definition, prosecution (represent the state) holds the legal burden of proving the facts in issue beyond reasonable doubt as opposed to the accused to raise the doubt. In order to prove the requisite burden of proof in a case, a prosecutor will seek out prima facie evidence that supports conviction and upholds that each required element of a crime did occur. The elements requiring prima facie evidence to support a given criminal case will widely vary based on the nature and type of criminal charge.
Privy Council in Haw Tua Tau (1981) 2 MLJ 49 set out the criteria which need to be satisfied for the finding of a ‘prima facie case’, as observed by Lord Diplock:
“…The prosecution makes out case against the accused by adducing evidence of primary facts. It is to such evidence that the word ‘if unrebutted’ refer. What they mean is that for the purpose of reaching the decision called for by section 188(1) the court must act on the presumptions (a) that all such evidence of primary fact is true, unless it is inherently incredible that no reasonable person would accept it as being true; and (b) that there will be nothing to displace those inferences as to further facts or to the state mind of the accused which would be reasonably be drawn from the primary facts in the absence of any further explanation… At the conclusion of the prosecution’s case what had to be decided remains a question of law only. As decider of law, the judge must consider whether there is some evidence (not inherently incredible) which, if he were to accept it as accurate, would establish each essential element in the alleged offence. If such evidence as respects any of those essential element lacking, then, and then only, is he justified in finding ‘that no case against the accused had been made out which if unrebutted would warrant his conviction’, within the meaning of section 188(1)…”
In Malaysia, the relevant statutory provision which sets out in what circumstances defence is to be called after the close of prosecution case, as follows:
i. Evidence Act 1950, Chapter VII sets out the rule in respect of Burden of Proof. Section 103
particularly states;
“ The burden of proof lies on that person who wishes the court to believe in its existence, unless
it is provided by any law that the proof of the fact shall lie on any particular person.”
ii. For Summary Trial before Magistrate, section 173 (f) (h) and (j) of Criminal Procedure Code (CPC);
and
iii. For Trial before a Judge, section 180 CPC.
In practice, any criminal proceeding against a defendant will require sufficient proof to proceed any further past the original arrest on grounds of probable cause. Without sufficient evidence, the prosecutor cannot bring any viable charges against a defendant. Typically, with this information in mind, the courts will dismiss any charges sought by prosecutors without sufficient prima facie evidence. This is under the assumption that without any prima facie evidence to support a case now, the prosecution will not be able to do so during a later trial. Therefore, holding a defendant would also be illegal.
- PETEI ANAK KANAI A127897
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