‘Burden
of proof’ and ‘onus of proof’
The
burden of proof refers to the duty or obligation to prove or establish the
case.
Although
these sections have all used the expressions “burden of proof”, there is a
difference between the sense of expression “burden of proof” in section 101 and the sense of that same
expression in section 102.
While
the expressions “burden of proof” and “onus of proof” had been used
interchangeably by the judges in many cases, there is a fundamental difference
between them.
According
to Jeffrey Tan FCJ in the Federal
Court case of Letchumanan Chettiar Alagappan
(As Executer to SL Alameloo Achi (Deceased)) & Anor v Secure Planation Sdn
Bhd [2017], in some jurisdiction, ‘burden of proof’ is labelled as ‘legal
burden’ while ‘onus of proof’ is referred as ‘evidential burden’.
Jeffrey Tan FCJ in the Federal Court case
of Letchumanan Chettiar Alagappan (As
Executer to SL Alameloo Achi (Deceased)) & Anor v Secure Planation Sdn Bhd
[2017] had extensively discussed the “burden of proof” based on section 101 – 103 Evidence Act 1950 and
made reference to the decision of Salleh
Abas FJ in one earlier Federal Court case of International Times & Ors v Leong Ho Yuen [1980].
According
to Jeffrey Tan FCJ in Letchumanan Chettiar Alagappan (As Executer
to SL Alameloo Achi (Deceased)) & Anor v Secure Planation Sdn Bhd
[2017] and Salleh Abas FJ in International Times & Ors v Leong
Ho Yuen
[1980], while the expressions “burden of proof” in section 101 is the burden of establishing a case and this rests
throughout the trial on the party who asserts the affirmative of the issue, the
expressions “burden of proof” in section
102 and section 103 is actually
referring to the “onus of proof”, which is the responsibility of adducing
evidence to make out or rebut the claim.
While the “burden of proof” lies upon
the person who has to prove a fact and it never shits, the “onus of proof” is
not stable and constantly shifts during the trial from one side to the other
according to the scale of evidence and other preponderates. Such
shifting is one continuous process in the evaluation of evidence.
In
the Privy Council case of Jayasena v R
[1970], Lord Devlin states that it
is confusing to call “onus of proof” a burden of proof. In fact, it is
misleading to call it a burden, whether described as legal or evidential or by
any other adjective, when it can be discharged by the production of evidence
that falls short of proof.
By
virtue of section 101, the legal
burden to establish the case rest throughout on the party who asserts the
affirmative of the issue.
Following
the Federal Court decision, section 102
should be read “onus of proof” in a suit or proceeding lies on that person who
would fail if no evidence at all were given on either side.
The initial onus of proving the case
is always on the plaintiff. The plaintiff, at the start of the of the
plaintiff’s case, has the legal burden of proving the existence of any relevant
fact and the evidential burden of the existence of such fact. The evidential
burden is necessary in assisting the plaintiff in establishing a prima facie
case, as section 102 provides that
the plaintiff “would fail if no evidence at all were given on either side”.
When the plaintiffs have gave enough evidence to support a prima facie case, the onus shifts to the defendant, to adduce rebutting evidence to meet the case made out by the plaintiff. As the case continues to develop, the onus may shift back again to the plaintiff.
---------------------- THE WALLY EFFECT http://thewallyeffect.blogspot.com/ ----------------------
Criminal
case
In criminal cases, the prosecution
has the legal burden to prove the case throughout the trial, pursuant to section 101 and its illustration (a).
At common law, it is well established
that it is for the prosecution to prove the case beyond reasonable doubt at
every stage of the proceedings to press for conviction (per Viscount Sankey LC in Woolmington v DPP [1935]).
In the Privy Council case PP v Yuvaraj [1968] Lord Diplock considered the definitions
of “proved”, “disproved” and “not proved” under section 3 of the Evidence
Ordinance and held that “the requirement of the section is satisfied if,
and only if, after considering the matters before it the Court either believes
that it does not exist or considers its non-existence so probable that a
prudent man ought, under the circumstances of the particular case, to act upon
the supposition that it does not exist”.
The degree of probability depends
upon the nature of the proceedings and what will be the consequence in those
proceedings of a finding that a fact is “proved” or “disproved”. If
that consequence will be the determination of a civil suit in favour of one
party a balance of probabilities is all that is necessary. It is sufficient
that upon the evidence the Court considers that it is more likely than not that
the fact exists or does not exist. In criminal proceedings on
the other hand, by an exception to the general rule founded upon considerations
of public policy, if the consequence of a finding that a particular fact is
proved will be the conviction of the defendant the degree of probability must be
so high as to exclude any reasonable doubt that that fact exists.
Lord Diplock held that although section 3 of the Evidence Ordinance applies to civil and criminal proceedings alike
and draw no explicit distinction between facts required to be proved by the
prosecution in criminal proceedings and facts required to be proved by a successful
party to civil proceedings, it cannot be supposed that the Evidence Ordinance has intended to abolish the historic
distinction fundamental to the administration of justice under the common law,
between the burden which lies upon the prosecution in criminal proceedings to
prove the facts which constitute an offence beyond all reasonable doubt
and the burden which lies upon a party in a civil suit to prove the facts which
constitute his cause of action or defence upon a balance of probabilities.
In Mohamad Radhi bin Yaakob v PP [1991] the Supreme Court held that
the general burden of proof lays throughout the trial on the prosecution to
prove beyond reasonable doubt the guilt of the accused for the offence
with which he is charged. There is no similar burden placed on the accused to
prove his innocence. He is presumed innocent until proven guilty. He is not
required to prove his innocence beyond reasonable doubt. To earn an acquittal
at the close for the prosecution case under section 173(f) and section
180 of the Criminal Procedure Code,
a prima facie case is made out if the
court is satisfied that no case against the accused has been made out which if
unrebutted would warrant his conviction. If defence is called, the duty of the
accused is only to cast a reasonable doubt in the prosecution case. He is not
required to prove his innocence beyond reasonable doubt.
In the Federal Court case of PP v Gan Boon Aun [2017], Jeffrey Tan FCJ states that the
prosecution has the legal burden to prove the guilt of an accused beyond
all reasonable doubt. Generally the prosecution has the duty to prove the
guilt of an accused, and the accused, on the other hand, does not have any duty
to prove anything. In order to earn an acquittal, the accused merely need to cast
a reasonable doubt over the prosecution’s case, in the event that a prima facie case has been made out.
While it is the prosecution’s duty to
prove the case beyond a reasonable doubt, the accused has to merely cast a
reasonable doubt: Shah Rehan Abdul
Rahman v PP [2015]
Criminal case - The
meaning of ‘beyond reasonable doubt’
In relation to what amount to a
“reasonable doubt”, Denning J (as he
then was) in Miller v Minister of
Pensions [1947] observed that:
“The degree is well settled. It need
not reach certainty, but it must carry a high degree of probability. Proof
beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law
would fail to protect the community if it admitted fanciful possibilities to
deflect the course of justice. If the evidence is so strong against a man as to
leave only a remote possibility in his favour which can be dismissed with the
sentence' of course it is possible, but not in the least probable' the case is
proved beyond reasonable doubt, but nothing short of that will suffice.”
Denning J went on to say that:
“That evidence that is in the least
probable must be evidence that is credible, plausible or logical such that a
reasonable person, having regard to the ordinary course of nature or natural
events, human conduct, and in the particular circumstances of the particular
case, would accept it as to act upon it as having occurred, or as truthful or
accurate; and not a doubt that could, with the application of some ingenuity,
be conjured up, envisioned or visualised in a story.”
Miller v
Minister of Pensions [1947] has been referred by Thomson CJ in Liew Kaling
& Ors v PP [1960], where he stated that,
“…the standard which a prudent man
will apply to the question of whether he should take a box of chocolates home
to his wife is something different from the standard he will apply to the
question of whether he should take the good lady a valuable diamond ring. He
will apply a different standard to the question of whether his butler has
helped himself to a little of his whisky than he will to the question of
whether his wife has been seduced by his gamekeeper. In other words the standard
which the prudent man will apply to any question which confronts him will vary
according to the importance of the question itself.”
Furthermore, Sharma J in PP v Saimin [1971]
observed that:
“It is not mere possible doubt,
because everything relating to human affairs and depending upon moral evidence
is open to some possible or imaginary doubt. It is that state of the case which
after the entire comparison and consideration of all the evidence leaves the
minds of the jurors in that condition that they cannot say they feel an abiding
conviction to a moral certainty of the truth of the charge.”
In PP v Datuk Haji Harun bin Haji Idris & Ors [1977], Abdoolcader J (as he then was)
explained that:
“It is not necessary for the defence
to prove anything and all that is necessary for the accused to do is to give an
explanation that is reasonable and throws a reasonable doubt on the case made
out for the prosecution. It cannot be a fanciful or whimsical or imaginary
doubt, and in considering the question as to whether a reasonable doubt has
been raised, the evidence adduced by and the case for the defence must be
viewed in at least some amount of light, not necessarily bright sunlight, but
certainly not against the dark shadows of the night.”
It can be summarised therefore that
the phrase “reasonable doubt” excludes fanciful or imaginary doubts or stories
that are so obviously conjured up so as not to be in accord with the ordinary
course of nature or human conduct when viewed and appraised from the test of
reasonableness. The foregoing of course, are only guidelines and the court must
apply these according to all the circumstances of the case.
Criminal case - At the
conclusion of the trial
For the purpose of the prosecutorial
legal burden, a distinction must be made between a prima facie case (at the end of the prosecution case) and a case
beyond reasonable doubt (at the conclusion of the trial).
At the conclusion of the trial, the
Court shall consider all the evidence adduced before it and shall decide
whether the prosecution has proved its case beyond reasonable doubt: section 173(m) & 182A Criminal Procedure Code
In Mat v PP [1963], Suffian J
(as his Lordship then was) gave some guidelines relating to Woolmington test to
Magistrate to deal with the burden at the end of the defence case. According to
Suffian J, even if the judge does
not believe or is unwilling to accept the explanation given by the accused, there
is a duty incumbent upon him to consider whether the defence has somehow raised
a reasonable doubt over the prosecution case. That is to say, the judge is
bound to acquit the accused if the explanation raises a reasonable doubt as to
his guilt.
“The position may be conveniently
stated as follows:
(a) If you are satisfied beyond
reasonable doubt as to the accused's guilt: Convict.
(b) If you accept or believe the
accused's explanation: Acquit.
(c) If you do not accept or believe
the accused's explanation: Do not convict but consider the next steps below.
(d) If you do not accept or believe
the accused's explanation and that explanation does not raise in your mind a
reasonable doubt as to his guilt: Convict.
(e) If you do not accept or believe
the accused's explanation but nevertheless it raises in your mind a reasonable
doubt as to his guilt: Acquit.”
The approach in Mat v PP [1963] was
judicially endorsed by the Federal Court as being the correct one to adopt when
evaluating the evidence of the defence case in PP v Mohd Radzi Bin Abu Bakar [2006].
In Prasit Punyang v PP [2014], it was held that the emphasis must be
on the word “all” employed in section
182A.
In Md Zainudin bin Raujan v PP [2013], the Federal Court states that section 182A imposes a duty on the
trial court, at the conclusion of the trial, to consider all the evidence
adduced before it and to decide whether the prosecution has proved its case beyond
reasonable doubt. The defence of the accused must be considered in the totality
of the evidence adduced by the prosecution, and the judge must decide whether
it has cast a reasonable doubt as to his guilt.
Criminal case - Prima
facie case
The term “prima facie” refers to that stage of the trial which marks the end
of the prosecution’s case. Defence would be called once the court is persuaded
that there is a prima facie case.
Mozley and
Whiteley’s Law Dictionary defines prima facie
case as:
“A litigating party is said to have a
prima facie case when the evidence in his favour is sufficiently strong for his
opponent to be called on to answer it. A prima facie case then is one which is
established by sufficient evidence, and can be overthrown only by rebutting
evidence adduced by the other side.”
This definition has been preferred and
relied on by the courts.
Prior to the amendment in 1997, section 173(f) and section 180 of the Criminal
Procedure Code contained the expression “if unrebutted would warrant his
conviction”.
In PP v Chin Yoke [1939], it was held that the court must necessarily
accept the whole of the evidence for the prosecution at its face value. The
accused would be called upon to answer the prima
facie case if the Court is satisfied with the prosecution case to the
extent that, if unrebutted, would warrant the accused’s conviction.
In the Court of Appeal case of Soo Sing & Ors v PP [1951], it was
held that it is the duty of the court at the close for the prosecution case, to
determine whether or not the evidence tendered on behalf of the prosecution, if
unrebutted, has established the case against the accused beyond reasonable
doubt.
In the Singapore Court of Appeal case
of Ong Kiang Kek v PP [1970], Wee Chong Jin CJ held that the law
imposes a duty on the court, to consider at the close of the case for the
prosecution whether or not a case has been made out against the accused which “if
unrebutted would warrant his conviction”. The court is obliged to acquit an
accused if at the close for the prosecution case the court is satisfied beyond
a reasonable doubt that these facts tendered by the prosecution had proved
that the accused should not have called upon the accused for his defence.
In PP v Saimin & Ors [1971], Sharma
J held that the Magistrate has a duty to acquit and discharge the accused
at the close for the prosecution case, if he is not satisfied with the
prosecution case beyond reasonable doubt.
However, in the Privy Council case of
Haw Tua Tau v PP [1987], having
regard to section 188(1) of the
Singapore Code, which also contained the expression “if unrebutted would
warrant his conviction”, Lord Diplock
observed that for reasons that are inherent in the adversarial character of
criminal trials under the common law system, it does not place upon the court a
positive obligation to make up its mind at that stage of the proceedings
whether the evidence adduced by the prosecution has by then already satisfied
it beyond reasonable doubt that the accused is guilty. He went on to mention
that it would run counter to the concept of what is a fair trial under that
system to require the court to do so.
According to Lord Diplock, for the purpose of determining whether there is a prima facie case, the court must act on
the presumption:
(a) That all such evidence of primary
fact is true, unless it is inherently so incredible that no reasonable person
would accept it as being true;
(b) That there will be nothing to
displace those inferences as to further facts or to the state of mind of the
accused which would reasonably be drawn from the primary facts in the absence
of any further explanation.
In other words, there is a prima facie case if the primary facts
adduced by the prosecution are not “inherently incredible” and there is no any
further explanation to the said primary facts. The court will undertake a
minimal evaluation of the evidence tendered by the prosecution, in order to
determine whether the prosecution’s evidence is “inherently incredible”. Given
that the expressions “primary facts” are used, the court is merely required to
evaluate the essential element of the alleged offence. “Secondary facts”, on
the other hand, such as the credibility of the prosecution witness, would
remain unchallenged at the prosecution case.
Haw Tua Tau
v PP
[1987] has been applied by the Malaysian Courts in Munusamy v PP [1987] and Junaidi
Abdullah v PP [1993].
However, the Supreme Court in Khoo Hi Chiang v PP [1994] declined to
follow the Haw Tua Tau v PP [1987]
and held that the Privy Council decision on the burden of proof was obiter dicta. Having regard to numerous
pre-Haw Tua Tau authorities, it was
held that at the end of the prosecution case, it is the duty of the prosecution
to undertake a maximum evaluation of the evidence tendered by the
prosecution, to determine whether or not the prosecution has established the
charge against the accused beyond reasonable doubt.
In Tan Boon Kean v PP [1995], the Federal Court held that the duty of
the Court, at the close of case for the prosecution, is to undertake a maximum
evaluation of the evidence tendered by the prosecution. It follows that at
the close of the case for the prosecution, two questions need be addressed,
namely the question of evidence with regard to the requirement of “maximum
evaluation” and the question of law with regard to the requirement of making
out a case against the accused under section
180.
While this so-called ratio of Khoo Hi Chiang v PP [1994] was applied
by the Federal Court, Mohd Azmi FCJ stated held that the interpretation of the
word “case” referred to in section 180
in Khoo Hi Chiang v PP [1994] as an obiter dicta whilst the Court was
dealing with the principal issue of maximum evaluation of the evidence. It was
held that the duty of the prosecution at the end of the prosecution case, under
section 180 of the Criminal Procedure Code, is to prove a
“prima facie case”, and the threshold
for “prima facie case” is a case “which
if unrebutted would warrant his conviction”, and not “a beyond reasonable doubt
case”.
According to Mohd Azmi FCJ, in an adversarial system of criminal justice, the
final decision on whether the accused is beyond reasonable doubt guilty of the
offence with which he is charged must remain an open question until the end of
the trial. To require a “beyond reasonable doubt” to be proved even at the
close of the case for the prosecution, would render the words “if unrebutted”
and “would warrant his conviction” in section
180 meaningless and redundant.
Subsequently, in the Federal Court
case of Arulpragasan Sandaraju v PP
[1996], there were differences of opinion amongst the judges themselves.
According to the majority (5-2) decision, the prosecution has the burden
throughout the case in any criminal trial to prove the charge
against the accused beyond reasonable doubt. The same burden of proof applies
at the close of the prosecution case. Consequently the Court is required to
undertake a maximum evaluation of the evidence at the close for the
prosecution.
Mohd Azmi
FCJ, in
dissenting, adheres to his view as expressed in the previous case, and went
further to say that the test of prima
facie case is a hypothetical one. Given that at end of the prosecution case
the credibility of witness need not be conclusive as it is evaluated on the
assumption that no further evidence is forthcoming. As
such, the Court must keep an open mind on the question of guilt until the
conclusion of the trial. Therefore, the determination of prima facie case under section
180 is quite different and distinct from the process of finding the accused
guilty beyond reasonable doubt under section
183.
The Criminal Procedure (Amendment) Act 1997 has, inter alia, amended section
173 and section 180. After the
amendment in 1997, section 173(f)
and section 180 contain the
expression “prima facie case”.
Section
173(f)
now reads:
(i)
When the case for the prosecution is concluded the Court
shall consider whether the prosecution has made out a prima facie case against the accused.
(ii)
If the Court finds that the prosecution has not made out a
prima facie case against the accused, the Court shall record an order of
acquittal.
Section 180 now reads:
(1)
When the case for the prosecution is concluded, the Court
shall consider whether the prosecution has made out a prima facie case against the accused.
(2)
If the Court finds that the prosecution has not made out a prima facie case against the accused,
the Court shall record an order of acquittal.
(3)
If the Court finds that a prima
facie case has been made out against the accused on the offence charged the
Court shall call upon the accused to enter on his defence.
After the amendment of the Criminal
Procedure Code, the statutory test had been changed. The court is then required
to determine if there is a prima facie
case at the close for the prosecution case.
In PP v Dato’ Seri Anwar bin Ibrahim (No. 3) [1999], Augustine Paul J held that under the
amended section 180, a prima facie case arises when the
evidence in favour of a party is sufficiently strong for the opposing party to
be called on to answer. For there to be a prima
facie case, the prosecution must persuade the court to believe the
existence of the facts in the charge or to consider its existence so probable
that a prudent man ought to act upon the supposition that those facts existed
or did happen. As this exercise cannot be postponed to
the end of the trial, a maximum evaluation of the credibility of witness
must be done at the close of the case for the prosecution before the court can
rule that a prima facie case has been made out in order to call for the
defence. Although a maximum evaluation of the credibility of witnesses must be
done at the close of the case for the prosecution before the court can rule
that a prima facie case has been made
out, this does not mean that the prosecution, at that stage, must prove the
case beyond reasonable doubt.
In the Court of Appeal case Looi Kow Chai & Anor v PP [2003], Gopal Sri Ram JCA held that pursuant to
the amended section 180, at the
close of the case for the prosecution, in determining whether there is a prima facie case against the accused,
the judge must subject the evidence of the prosecution to a maximum
evaluation and then ask himself this question: If I decide to call upon the
accused to enter his defence, and he elects to remain silent, am I prepared to
convict him on the totality of the evidence contained in the prosecution’s
case. If the answer is in the negative, then no prima facie case has been made
out, and the accused is entitled to an acquittal. It was also duly noted that
subjecting the prosecution’s evidence to a maximum evaluation to determine if
the defence is to be called does not mean that the prosecution has to prove
its case beyond a reasonable doubt at that intermediate stage.
In the Federal Court case Balachandran v PP [2005], Augustine Paul JCA explained the different standards of proof. While section 180 makes it clear that the standard of proof on the prosecution at the close of its case to make out a prima facie case, section 182A enunciates that at the conclusion of the trial the court shall consider all the evidence adduced and decide whether the prosecution has proved its case beyond reasonable doubt. A prima facie case is one that is sufficient for the accused to be called upon to answer. The test at the close of the case for the prosecution would therefore be: Is the evidence sufficient to convict the accused if he elects to remain silent? If the answer is in the affirmative then a prima facie case has been made out. Furthermore, in determining whether there is a prima facie case, the court must at the close of the case of prosecution, undertake a positive evaluation of the credibility and reliability of all the evidence adduced so as to determine whether the elements of the offence have been established.
More importantly, Augustine Paul JCA also mentioned that
while the accused can be convicted on the prima facie stage
(therefore it must have reached a standard which is capable of supporting a
conviction beyond reasonable doubt), it is inappropriate to describe it as a case
that has been proved beyond reasonable doubt. Proof beyond reasonable
doubt involves two aspects. While one is the legal burden on the prosecution to
prove its case beyond reasonable doubt the other is the evidential burden on
the accused to raise a reasonable doubt. Both these burdens can only be fully
discharged at the end of the whole case when the defence has closed its case.
Therefore a case can be said to have been proved beyond reasonable doubt only
at the conclusion of the trial upon a consideration of all the evidence adduced
as provided by section 182A(1) of
the Criminal Procedure Code. That
would normally be the position where the accused has given evidence. However,
where the accused remains silent there will be no necessity to re-evaluate the
evidence in order to determine whether there is a reasonable doubt in the
absence of any further evidence for such a consideration. The prima facie evidence which was capable
of supporting a conviction beyond reasonable doubt will constitute proof beyond
reasonable doubt.
In the Federal Court case PP v Mohd Radzi bin Abu Bakar [2006] Gopal Sri Ram JCA held that after the
amendments to section 173(f) and section 180, the court is required to
call for the defence when it is satisfied that a prima facie case has been made out at the close of the prosecution
case. This requires the court to undertake a maximum evaluation of the
prosecution evidence when deciding whether to call on the accused to enter
upon his or her defence. It involves an assessment of the credibility of the
witnesses called by the prosecution and the drawing of inferences admitted
by the prosecution evidence. Thus, if the prosecution's evidence
admits of two or more inferences, one of which is in the accused's favour, then
it is the duty of the court to draw the inference that is favourable to the
accused.
If the court, upon a maximum
evaluation of the evidence placed before it at the close of the prosecution
case, comes to the conclusion that a prima
facie case has not been made out, it should acquit the accused. If, on the
other hand, the court after conducting a maximum evaluation of the evidence
comes to the conclusion that a prima
facie case has been made out, it must call for the defence. If the accused
then elects to remain silent, the court must proceed to convict him. It is not
open to the court to then re-assess the evidence and to determine whether the
prosecution had established its case beyond a reasonable doubt. The absence of
any evidence from the accused that casts a reasonable doubt on the
prosecution's case renders the prima facie case one that is established beyond
a reasonable doubt.
The Criminal Procedure Code (Amendment) Act 2006 has, inter alia, amended section 173 and section 180.
This amendment took effect on 7 September 2007.
Section
173(h)(iii) now reads:
“For the purpose for 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.”
Section
180(4)
now reads:
“For the purpose of this section, 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.”
It appears that the amended sections
bring no changes to the application of law. Post-amendment cases have
constantly taking the abovementioned pre-amendment cases as the authorities in
determining whether there has been prima
facie case.
In the Court of Appeal case Losali v PP [2012], having regard to section 180(4) and the abovementioned
authorities, it was held that in determining whether there is a prima facie case at the close for the
prosecution’s case, the evidence led by the prosecution in the course of the
prosecution's case must be evaluated at a maximum level. The purpose of undertaking
such a maximum evaluation is to test the credibility of the prosecution's
witnesses and at the same time to ensure that all the requisite ingredients of
the offence have been made out. In addition, the Court of Appeal held that a bare
denial is insufficient to cast a reasonable doubt.
In the Court of Appeal case Ekene Boniface Ochiada v PP [2017], it was held that at the conclusion of the prosecution's case it would be incumbent on the part of the learned trial judge to undertake a maximum evaluation of all evidence adduced by the prosecution including all assumptions or inferences which arose from the evidence of the prosecution's witnesses.
---------------------- THE WALLY EFFECT http://thewallyeffect.blogspot.com/ ----------------------
Direct
evidence and circumstantial evidence
All judicial evidence is either
direct or circumstantial evidence. Direct evidence is evidence that is attested
directly by witnesses, things or documents. Direct evidence is evidence
purportedly showing the existence or non-existence of fact in issue, without
the need of reasoning and inference.
To all other forms of evidence, the
term ‘circumstantial evidence’ is employed. Circumstantial evidence is evidence
of relevant facts from which the existence or non-existence of facts in issue
may be inferred indirectly.
In PP v Sarjit Kaur Najar Singh [1998], the accused was charged for
the murder of her husband, who was found dead in their house with slash wounds
on his neck. The prosecution sought to prove its case solely by way of
circumstantial evidence, and adduced evidence inter alia suggested that the
accused was an unfaithful wife, that she had been ill-treated by her husband,
and that she stood to benefit financially from her husband’s death. It was held
that the prosecution had failed to establish a prima facie case.
In PP v Hanif Basree Abdul Rahman [2008], the accused was charged for
the murder of his intimate friend. The deceased body was found by her apartment
mate and roommate. She was found facing downwards on the mattress on the
floor of her room. Her head was inside a tied pillow case and her mouth was stuffed
with two face towels. Her hands were tied behind her with a black brassiere.
Her legs were also tied but with a black electrical cord. Wet tissue papers
were recovered from a waste paper basket in the deceased's room. She was
completely naked but the body was covered with a comforter when she was first
seen.
The chemist report showed that the
DNA profile of the accused was found in the deceased’s vagina and on several
items in her room. However, the chemist report also showed the existence of
another DNA profile of an “Unknown Male 1” in the deceased’s vagina and anus
and on several items in her rooms like the tissues paper, face towel, bolster,
black brassiere, the fingernails of the deceased's
left hand and the strands of hairs recovered from
the deceased's comforter and bedsheet. It was submitted that the deceased and
the accused and the “Unknown Male 1” had had sexual intercourse
with the deceased within 72 hours of her death. The expert could not with
certainty say that the accused was the last person to have had sexual
intercourse with the deceased.
In spite of such facts, the Federal
Court held that there were too many doubts in the prosecution’s case and that
the inferences made, rendered an appearance more favourable to the accused. The
prosecution had, therefore, failed to establish a prima facie case.
In the Federal Court case Sunny Ang v PP [1966], the accused was
charged for the murder of his girlfriend Jenny. The evidence relied upon by the
prosecution was wholly circumstantial. This case marked the first time the
prosecution had won a case that was based entirely on circumstantial evidence.
The accused was one of the last murderers to be sent to the gallows by a jury;
Singapore abolished jury trials in 1969.
It was submitted that the victim
disappeared during a diving trip near the Sisters’ Islands, just a few month
after they met. The accused hired a boatman Yusof, who had taken both the
accused and the victim to a place between the two islands where Yusof dropped
the anchor. The accused assisted the victim to put on the diving equipment
which had been brought in the sampan and allowed the victim, a novice diver, to
go down alone, wearing a flipper which had previously been cut, into waters
which he knew were dangerous and hazardous with the result that she met her
death. The accused did not go down into the water himself even after the victim
had failed to come to the surface. According to Yusof, the accused acted
“normal” even though he was faced with the prospect that his girlfriend may
have died.
Her body was never found. All that
remained was a single flipper worn by her. The flipper was found somewhere near
to the place she had gone into the water. It had been severed cleanly at the
top and bottom, likely by a sharp instrument such as a knife or razor blade.
According to an expert witness, the loss of a flipper would have resulted in a
diver’s loss of equilibrium and affected the person's mobility. The victim, an
inexperienced diver, would have panicked and inevitably drowned in the strong
currents swirling around the islands.
The victim was a waitress. She was
paid $90 a month and her main source of income the $10 she earned
each day in tips from customers. When the victim disappeared, her accident
coverage amounted to $400,000. Three weeks before she disappeared, the accused
took the victim to make a will leaving her entire estate to his mother, whom
she hardly knew. A day before her disappearance, one of her policies expired.
Three hours before the diving trip, the accused extended that policy for just
five days. It was submitted that the accused was bankrupt at the date of the
accident. He was in need of money and that could be a motive for
the crime.
One of the matters relied on at the
hearing of the appeal was that the learned trial Judge had erred in law in
failing adequately to direct the jury on the danger of convicting an accused
person upon circumstantial evidence.
There are two passages in the summing-up
which are relevant in this connection. The first passage, which comes after the
direction in which the learned trial Judge deals with what he refers to as the
first question of the cumulative effect of circumstantial evidence, is as
follows:-
“The second question to which I must
draw your attention is that the question in this case, depending as it does on
circumstantial evidence, is whether the cumulative effect of all the evidence
leads you to the irresistible conclusion that it was the accused who committed
this crime. Or is the resome reasonably possible explanation such, for example
- 'Was it an accident?'.”
The second passage is as follows:
“Now, as I told you earlier on, one
of the points about circumstantial evidence is its cumulative effect. Any one
of these points taken alone might, you may think, be capable of explanation.
The question for you is: where does the totality of them, the total effect of
them, all lead you to? Adding them together, considering them, not merely each
one in itself, but altogether, does it or does it not lead you to the
irresistible inference and conclusion that the accused committed this crime? Or
in there some other reasonably possible explanation of those facts?
The prosecution case is that the
effect of all this evidence drives you inevitably and inexorably to the one
conclusion and one conclusion only: that it was the accused who intentionally
caused the death of this young girl.”
The Federal Court held that these directions
are perfectly adequate in a case where the prosecution is relying on
circumstantial evidence. Although Jenny's body has never been found, the
Federal Court held that there is overwhelming evidence on the record that the
appellant murdered her.
In Juraimi bin Hussin & 2 Ors v PP [1998] the three appellants
were jointly charged for the murder of Dato Mazlan, a member of the Legislative
Assembly of the State of Pahang. The body of Dato Mazlan was recovered. It had
been decapitated and cut into 18 pieces. It was found buried in premises
occupied by the appellants. The Court of Appeal summarised the circumstantial
evidences as follow:
First, there is the fact, already
alluded to, that the decapitated body of Dato Mazlan was recovered from the
house at Ulu Dong occupied by the three accused. Second, it was proved that
Dato Mazlan's death was caused by the severance of his head by a weapon similar
to the axe (exh P14) recovered at the same premises. Third, on 2 July 1993,
Dato Mazlan withdrew about RM300,000 from his bank accounts. Fourth, he was
last seen alive in his car with the second accused, heading in the direction of
the house occupied by the accused persons. Fifth, at about 1am on 3 July 1993,
PW5 heard Dato Mazlan's car leaving the house at Ulu Dong. At about 3am on the
same morning, the second accused and one other person checked into the Plaza
Hotel at Kuala Lumpur. Sixth, between 3 July 1993 and 18 July 1993, the second
and third accused embarked on a spending spree. During this period, they spent
more than RM200,000. Of this sum, about RM160,000 was spent on the morning of 3
July 1993. Payments by the second and third accused were made in RM1000 notes,
which is the same denomination in which Dato Mazlan had earlier withdrawn his
money. Seventh, the second accused was with Dato Mazlan shortly after the
latter had made the withdrawal from his banks and shortly before he
disappeared. Eighth, there is no quarrel that Dato Mazlan met his death in the
hands of the first accused in the late hours of 2 July 1993 at the house
occupied by the three accused persons. Ninth, the second and third accused
persons were in financial straits before 3 July 1993. The second and third
accused claimed that they had sold to Dato Mazlan a walking stick, songkok and
talisman alleged to possess magical powers for a sum of
RM2,000,000. They also claimed that they had earlier received RM500,000 from
Dato Mazlan as part payment for this sale. If these allegations were true, the
question arises as to why the second and third accused did not go on a spending
spree earlier than 3 July 1993. Tenth, the second accused had Dato Mazlan's
identity card or NRIC in his possession. He gave this card to PW39 on 9 July
1993 for the purpose of selling Dato Mazlan's car. Eleventh, the third accused
was in possession of Dato Mazlan's watch, which she gave to her brother (PW28)
on 5 July 1997. Twelfth, the first and second accused checked out of Plaza
Hotel on 4 July 1997 and on the same day checked into Park Royal Hotel.
However, they left Dato Mazlan's car in the basement car park of the Plaza
Hotel. It certainly suggests an attempt on their part to distance themselves
from the disappearance of Dato Mazlan. But there was no explanation from either
accused for this act of abandonment. Thirteenth, on 8 July 1993, the second and
third accused together with PW28 proceeded to the house at Ulu Dong in a
limousine hired by the second accused and driven by PW39. At Ulu Dong, the
second accused told PW39 that he had bought the land on which the house stood
in order to develop it into a resort. The third accused then informed PW28 that
she and the second accused had recently purchased the land. These two
statements were far removed from the truth, which was that the land in question
belonged to Dato Mazlan. Fourteenth, on the return journey from Ulu Dong to
Kuala Lumpur, the second accused, in the presence of the third accused and
PW28, asked PW39 of the possibility of selling a car which belonged to a
friend, a Dato, who had lost heavily at the gaming tables. The second accused
went on to say that the Dato in question had borrowed money from him (the
second accused) and wished to repay it by selling his car. On the following
day, that is to say, 9 July 1993, the second accused, the third accused and
PW39 were in Room 2005 at the Park Royal Hotel. That room was, at that time,
under occupation by the second and the third accused. The second accused then
informed PW39 that the Dato earlier refused to meet anyone concerning the sale
of his car because he was ashamed at having lost his fortune at gambling. All
these statements were false because the car in question belonged to Dato Mazlan
who was already dead. Fifteenth, the body of Dato Mazlan was buried in a hole
in the ground soon after he was killed. The hole must have already been dug
earlier because it is highly improbable that a hole so large was dug up after
the deed had been done. This goes to support the prosecution's contention that
there was a pre-arranged plan on the part of the three accused to kill Dato
Mazlan. Sixteenth, there is evidence that Dato Mazlan's shoes were found in the
first accused's bedroom. No explanation was given as to how they came to be
there. Seventeenth, there is evidence that some time after the murder had been
committed, Mazlan's cousin visited the house at Ulu Dong. Only the first
accused was there. The other two accused persons were in Kuala Lumpur. On being
questioned by the cousin, the first accused falsely denied any knowledge of
Dato Mazlan's whereabouts. Soon after this visit, the first accused admittedly
concealed the axe (exh P14) and burnt Dato Mazlan's sarong and trousers. The
first accused then proceeded to Kuala Lumpur in search
of the second and third accused. Lastly, examination showed no defensive
injuries on the body of Dato Mazlan, indicating that he had not put up a
struggle of any sort. The fair inference that a reasonable jury would draw from
this evidence is that a savage attack took place upon an unsuspecting victim.
Based on the circumstantial
evidences, the three appellants were found guilty and sentenced to death.
Standard
of proof with regards to circumstantial evidence
In Kartar Singh v PP [1952] Murray-Aynsley
J observed that:
“…it is necessary to distinguish
between the effect of direct and of circumstantial evidence. Where there is
direct evidence, however, slight, the jury are entitled to accept it and the
case should be left to them to decide. In the case of circumstantial evidence
the position is different. Here the evidence must be such that, if it is
believed, there is no reasonable alternative to the guilt of the accused. If it
is anything less than this it is no case at all.”
In Idris v PP [1960] Lords Cairns’ statement in Belhaven
& Stenton Peerage [1875] was used:
“My Lords, in dealing with
circumstantial evidence we have to consider the weight which is to be given to
the united force of all the circumstances put together. You may have a ray of
light so feeble that by itself it will do little to elucidate a dark corner.
But on the other hand you may have a number of rays, each of them insufficient
but all converging and brought to bear upon the same point and when united,
producing a body of illumination which will clear away the darkness which you
are endeavouring to dispel.
In other words circumstantial
evidence consists of this: that when you look at all the surrounding
circumstances, you find such a series of undesigned, unexpected coincidences
that, as a reasonable person, you find your judgment is compelled to one
conclusion. If the circumstantial evidence is such as to fall short of that
standard, if it does not satisfy that test. If it leaves gaps then it is of no
use at all.”
In Chan Chwen Kong v PP [1962] Thomson
CJ observed that:
“…where the evidence is wholly
circumstantial what has to be considered is not only the strength of each
individual strand of evidence but also the combined strength of these strands
when twisted together to make a rope.”
In Sunny Ang v PP [1965] the direction given by the trial court, which
Tan Ah Tah CJ found to be perfectly
adequate in a case where the prosecution are relying on circumstantial
evidence, as mentioned above.
In the Federal Court case Karam Singh v PP [1967] Ong Hock Thye FJ observed that:
“In a case where the prosecution
relies on circumstantial evidence, such evidence must be inconsistent with any
other hypothesis than that of the guilt of the accused.”
In the Federal Court case Chang Kim Siong v PP [1967] Pike CJ observed that:
“The onus on the prosecution when the
evidence is of a 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.”
In Mohd Khayry Ismail v PP [2014] Hamid Sultan Bin Abu Backer JCA summarised the test as follow:
“In essence, though the prosecution
case was based on circumstantial evidence, the narrative was such that any
reasonable tribunal properly appraised will have no reasonable alternative to
the guilt of the accused.”
In Lim Hean Chong v PP [2012] the Court of Appeal referred to the
Indian case of Chandmal
& Anor v State of Rajasthan [1970], where a three-step test was prescribed for the
admissibility of circumstantial evidence:
“It is well settled that when a case
rests entirely on circumstantial evidence, such evidence must satisfy three
tests. 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 so 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.”
It follows the circumstantial
evidence adduced by the prosecution must point irresistibly to the conclusion
of the guilt of the accused. The accused shall be acquitted if there were gaps in
the prosecution’s case.
In McGreevy v DPP [1973] the House of Lords held that in cases in
which the prosecution's case is based on circumstantial evidence and the accused
is proved to be guilty beyond reasonable doubt, there is no need for a special
direction of the irresistible conclusion test. The House of Lords decision has
been applied by the Federal Court in Jayaraman
& Ors v PP [1982].
In Jayaraman & Ors v PP [1982] Suffian LP observed that:
“Where circumstantial evidence is the
basis of the prosecution case, the evidence proved must irresistibly point to
one and only conclusion, the guilt of the accused, but in the case tried
without a jury the failure by the court to expressly state this is not fatal
and it would suffice if it merely says that it is satisfied as to the guilt of
the accused beyond reasonable doubt.”
According to the Federal Court, the
irresistible conclusion test is another way of saying that the prosecution must
prove the guilt of the accused beyond reasonable doubt. It does not place on
the prosecution a higher burden of proof, and Suffian LP agreed with Syed
Othman FJ that it is only a
“play on words”.
This has been applied by the Federal
Court in the cases of Dato’ Mokhtar
Hashim & Anor v PP [1983] and PP
v Hanif Basree Abdul Rahim [2004].
In Yeap Boon Hai v PP [2009] the Court of Appeal applied Jayaraman & Ors v PP [1982] and held that In
a case depending on circumstantial evidence, it is enough if the court merely
says that it is satisfied of the accused's guilt beyond reasonable doubt,
without further saying that the facts proved irresistibly point to one and only
one conclusion, namely the accused's guilt.
In addition, where a
conviction was to be based on circumstantial evidence, motive behind the crime
was a significant consideration as was laid down in PP v Hanif Basree Abdul Rahim [2004] as follows:
“It is not incumbent upon the
prosecution to prove the motive for a crime. However if the crime is alleged to
have been committed for a particular motive, as is the case here, it is
relevant to inquire whether the pattern of the crime fits in with the alleged
motive. Where a case is based on circumstantial evidence the motive for
committing that crime assumes greater importance. It is certainly an important
strand of circumstantial evidence to impute the accused's guilt…”
Proving
particular facts (i.e. the defence of alibi)
Section 103 requires a defence of
alibi to be proved by the accused, while section
402A(2) of the Criminal Procedure
Code deals with the procedure to be followed when the defence of alibi is
introduced.
By virtue of section 103, if the accused wishes the court to believe in the
existence of a particular fact, he will have the burden to prove that fact.
Illustration
(b) to section 103 specifically requires B,
who "wishes the court to believe that at the time in question he was
elsewhere", to prove it.
There is no statutory definition of
“alibi”. However it is a Latin adverb which means “elsewhere at another place”.
Section 402A of the Criminal Procedure Code provides that
any evidence in support for a defence of alibi shall not be admitted unless the
accused has given a written notice of the alibi to the Public
Prosecutor.
Section 402A of the Criminal Procedure Code requires the
accused to give ten days' notice of their intention to raise a defence
of alibi (now during the case management process), and section 402A(2) requires the accused “to include particulars of the
place where the accused claims to have been at for the purpose of
establishing his alibi”. The same provisions of then section 402A(2) can still be found in section 402A(4) now.
In the Federal Court case Dato’ Mokhtar Hashim & Anor v PP
[1983], Eusoffe Abdoolcader FJ
explained that in light of the amendment of CPC, the concluding words of section 402A(2) “for the purpose of
establishing his alibi” are significant and would seemingly put a probative
burden on an accused. Consequently the accused assume a legal burden to
prove his defence of alibi on balance of probabilities by raising the defence.
The Federal Court decision has been applied by the Court of Appeal in Empati Mat v PP [2010].
However the Federal Court decision
was not followed by the Supreme Court in Yau
Heng Fang v PP [1985]. According to Mohamed
Azmi SCJ, the object of section 402A
provides nothing more than the procedural rules to be complied with in
order to raise the defence of alibi in trial. In enacting section 402A in Criminal
Procedure Code, the legislature did not intend to introduce a new legal
burden on the accused to establish his defence of alibi. The accused only
assume an evidential burden to cast a reasonable doubt by raising the
defence of alibi.
In Illian v PP [1988], the Supreme Court confirmed its earlier
decision in Yau Heng Fang v PP
[1985] and held that in raising the defence of alibi the accused only need to raise
a reasonable doubt in the prosecution's evidence.
According to the Court of Appeal in Dato’ Seri Anwar Ibrahim v PP & Another
Appeal [2003], given that it was the defence that wanted the trial judge to
accept the fact the defence of alibi prevailed, it should therefore be for
the defence to establish it so as to cast reasonable doubt on the
prosecution’s case and not for the prosecution to disprove once a mere
assertion has been made.
In Duis Akim & Ors v PP [2013], the Federal Court had considered
numerous authorities on the defence of alibi and held that once an accused
pleads an alibi he does not assume the burden to prove it is true. The
onus is on the prosecution to prove by evidence the alibi is false and to place
the accused squarely at the scene of crime. The evidence of his alibi need only
raise a reasonable doubt that he committed the crime.
In PP v Azilah Hadri & Anor [2015], the Federal Court held that if
the prosecution fails to establish a prima
facie case then the need by the accused person to prove his alibi defence
does not arise; but once the prosecution discharges his prosecutorial burden of
proof that led to the establishment of the prima
facie case, it then becomes incumbent upon the accused person to cast a
reasonable doubt that he was elsewhere. This is a heavy burden on the
accused and that burden flows from section
103.
The decisions of Duis Akim & Ors v PP [2013] and PP v Azilah Hadri & Anor [2015] have been confirmed and applied
recently in the Federal Court case of Pathmanabhan
Nalliannen v PP & Other Appeals [2017].
In a nutshell, while the wordings of section 103 of the Evidence Act 1950 and section
402A of the CPC appear to place
the legal burden of proof on the accused to prove his defence of alibi, the
accused is in fact only required to discharge his evidential burden of casting
a reasonable doubt on the prosecution case.
According to Mariette Peter, it is necessary to examine the nature of the
defence, as the defence of alibi involves an element of the prosecution’s case,
in which the existence of alibi itself would negate the actus reus of most of the criminal offences and thereby casting a
reasonable doubt on the prosecution’s case.
On the other hand, in light of the
Federal Court decision Letchumanan
Chettiar Alagappan (As Executer to SL Alameloo Achi (Deceased)) & Anor v
Secure Planation Sdn Bhd [2017], in which Jeffrey Tan FCJ stated that the expressions ‘burden of proof’ in section 103 is actually referring to
the ‘onus of proof’ or ‘evidential burden’, it can be safely concluded that the
accused merely assume an evidential burden to cast a reasonable doubt on the
prosecution case upon raising the defence of alibi.
Statutory
defence
Once the prosecution has made out a prima facie case, and if the accused
want to rely on a statutory defence, the accused has the legal burden to prove
statutory defences, pursuant to section
105.
Section 105 provides that ‘when a
person is accused of any offence, the burden of proving the existence of
circumstances bringing the case within any of the general exceptions in
the Penal Code, or within any special exception or proviso
contained in any other part of the same Code, or in any law defining
the offence, is upon him, and the court shall presume the absence of those
circumstances’.
The position is well-illustrated in
the illustrations to section 105.
This has been confirmed by the Courts
in Jayasena v R [1970], Lee Chin Hock v PP [1972] and Abdul Razak Dalek v PP [2010].
The standard of proof is on a balance
of probabilities: Ikau Anak Mail v
PP [1973] and Enthiran Rajoo v PP
[2015].
General exceptions in the Penal Code include:
(a) Section 79 mistake
(b) Section 80 accident or misfortune: Abdul
Aziz Miew Yiong v PP [2014]
(c) Section 84 unsound mind i.e. insanity: Jayasena v R [1970] Ikau Anak
Mail v PP [1973], Sum Yat Loy v PP [2012],
Enthiran Rajoo v PP [2015] and Kenneth Fook Mun Lee v PP [2006]
(d) Section 85 intoxication: Chan
Kwee Fong v PP [2010]
(e) Section 96 – 106 private defence: Jayasena
v R [1970]
Special exceptions in the Penal Code include:
(a)
Grave and sudden provocation: Chan Kwee Fong v PP [2010]
(b)
Sudden fight: Abdul
Razak Dalek v PP [2010]
(c)
Consent
Section 105 has been held to also
apply to the common law defence of automatism. Although the defence is
not a statutory one, it was held in the Court of Appeal in PP v Kenneth Fook Mun Lee (No. 1) [2010] and in the Federal Court
in Abdul Razak Dalek v PP [2010]
that automatism is covered by the defence of insanity and therefore falls
within the purview of section 105.
In PP v Yuvaraj [1968], the Privy Council held that the accused has a
legal burden of proving the statutory exception under the Prevention of Corruption Act 1961 on balance of probabilities.
In Lee Chin Hock v PP [1972], the Federal Court held that the legal
burden of proving the statutory exception under the Internal Security Act 1960 lies on the accused.
Ms. Mariette
Peter
argued that section 105 should not
be read in isolation but must be read in relation to the Evidence Act 1950 as a whole, in particular section 101 and section 102,
as explained by the Supreme Court in Nagappan
a/l Kuppusamy v PP [1988]. The consequence of reading section 105 in isolation would undermine the well-established
principle that the prosecution has the legal burden to prove the guilt of the
accused beyond reasonable doubt.
In R v Chanderasekara [1942] it was held that a distinction should
made between two types of defences, namely, those that affect the elements of
the case for the prosecution and those that do not.
An example of the former is the
defence of accident. When the accused relies on the defence of accident, he is
in fact disputing the element of mens rea
in the prosecution’s case. As such, it can be said that the accused is entitled
to an acquittal as long as he has cast a reasonable doubt on the prosecution
case, as a prima facie case has not
been made out in the absence of the essential element of intention. Logically
speaking, it is not even necessary for him to prove the defence of accident on
balance of probabilities.
An example of the second type of
defence is provocation. When an accused person pleads the defence of
provocation, he is in actual fact, conceding to the elements of the
prosecution’s case, that is, he was responsible for the death of the deceased.
He then brings in evidence of circumstances which excuses them. As such, it is
logical to require the accused to prove his defence of provocation on balance
of probabilities.
---------------------- THE WALLY EFFECT http://thewallyeffect.blogspot.com/ ----------------------
Proving
facts especially within knowledge
Section 106 provides that when any
fact is especially within the knowledge of any person, the burden of proving
that fact is upon him.
Following illustration (b) to section
106, if a person is charged with travelling on a railway without a ticket,
the burden of proving that he had a ticket is upon him.
According to Augustine Paul J (as then he was) in PP v Hoo Chee Keong [1997], section
106 is designed to meet certain exceptional cases in which it would be
impossible, or at any rate disproportionately difficult, for the prosecution to
establish facts which are "especially" within the knowledge of the
accused and which he could prove without difficulty or inconvenience.
In relation to the expression
“especially”, Good J in PP v Lim Kwai Thean [1959], it does not
mean "exclusively" or "solely" within the
knowledge of any person. It falls within the ambit of section 106 if it is an easy matter for the person the proof of
which by the prosecution would present the prosecution with inordinate
difficulties. The ordinary common sense therefore demands the balance of
convenience should be in favour of the prosecution. Consequently, the accused
who was asked to produce his identity by a police officer as it was a fact
especially within his knowledge and the burden of proof that fact was upon him
pursuant to section 106.
In the Federal Court case of PP v Gan Boon Aun [2017], Jeffrey Tan FCJ in illustrating section 106 makes reference to the Mary Ng v PP [1958] and PP v Chee Cheong Hin Constance [2006]. According to him, section 106 is intended to address exceptional
circumstances in which it would not be possible or particularly difficult for a
party ('the first party') to prove a fact which is only known to the other
party ('the second party'), or which can be accessed by the second party with
relative ease but cannot be accessed by the first party without considerable
difficulty. The court shall bear in mind that the accused is not required to
disprove the elements of the offence on the basis that he is in a better
position to know about the circumstances.
In Mary Ng v R [1958], the accused was charged for attempting to
cheat, the main ingredient of the offence being dishonesty. The Privy Council held
that it was not for the appellant to prove that she had not acted deceitfully;
rather it was for the prosecution to prove that she had so acted.
In PP v Chee Cheong Hin Constance [2006], it was held that section 108 (which is equipollent to section 106) does not impose any burden
on the accused to prove that no Crime was committed and cannot relieve the
prosecution from its burden of proof. Section
108 can only be invoked in certain exceptional cases where it would be
impossible or at any rate disproportionately difficult for the prosecution to
establish facts which are 'especially' or 'particularly' within the knowledge
of the accused which an accused can prove without difficulty or inconvenience.
Before section 108 comes into
operation, it must be shown that the facts are 'especially within the knowledge
of any person'. This may be clear from the evidence before the court. However
if the issue of knowledge of the facts is in dispute, the party wish to invoke section 108 must establish prima facie
that the facts were especially within the knowledge of the other party.
In PP v Hoo Chee Keong [1997], the accused was charged for forgery of
credits cards. It was held that if the accused did not have knowledge that they
were forged or that he had intended to use them as genuine, then it was a
matter especially within his knowledge and it was for him to prove such fact
under section 106.
In PP v Ang Ah Hoe [2010], it was held that the accused had the burden
of proving that he had a firearm’s licence, a fact peculiarly within his
knowledge.
Civil
Case
In civil cases, the plaintiffs
have the burden of proof to prove its case, pursuant to section 101 and its illustration (b).
According to Denning J (as then he was) in Miller
v Minister of Pensions [1947], the standard of proof in civil cases is that
the plaintiff must prove its case on balance of probabilities. It must
carry a reasonable degree of probability. The burden is discharged if the court
is persuaded that the fact in issue is ‘more probable than not’. If the
probabilities are equal, the burden is not charged.
In the Court of Appeal case Tenaga Nasional Bhd v Perwaja Steel Sdn Bhd
[1998], Low Hop Bing J (as he then was)
explained the application of the provision of section 101:
“Under section 101(1) of the Evidence
Act 1950, whoever desires the court to give judgment as to any legal right
or liability, dependent on the existence of facts which he asserts, must prove
that those facts exist. In other words, the plaintiff must prove such facts as
the plaintiff desires the court to give judgment as to its right to claim
against the defendant or the defendant's liability to pay the plaintiff. The
burden of proof is on the plaintiff: section
101(2). In order to succeed here, the plaintiff must prove its claim
affirmatively.”
Miller v
Minister of Pensions [1947] has been applied by the Federal Court in Inas Faiqah Mohd Helmi (A child suing
through her father and next friend; Mohd Helmi Abdul Aziz) v Kerajaan Malaysia
& Ors [2016].
According to Jeffrey Tan FCJ in Letchumanan
Chettiar Alagappan (As Executer to SL Alameloo Achi (Deceased)) & Anor v
Secure Planation Sdn Bhd [2017], in the civil proceedings, the plaintiffs
have both the burden of proof and initial onus of proof.
It is trite law that unless and until
the Plaintiff has discharged her evidential burden of establishing a prima facie case, there is no burden on
the Defendant to prove his defence, no matter how weak or unbelievable his
defence might have been: Johara Bi binti
Abdul Kadir Merican v Lawrence Lam Kwok Fon [1981]
Proving
particular facts
Section 103 provides that ‘the burden
of proof as to any particular fact lies on that person who wishes the court to
believe in its existence, unless it is provided by any law that the proof of
that fact shall lie on any particular person.’
Hence, if the plaintiff sues the
defendant for negligence, the plaintiff has the burden to prove the elements of
negligence. However if the defendant raises contributory negligence, he will
now have the legal burden to prove it on balance of probabilities, as it is a
fact that the defendant wants the court to believe in.
An issue that arises revolves around
the standard of proof required where there is a criminal allegation, for
example, the use of premises for immoral purposes, assault, adultery, cruelty
and desertion in matrimonial proceedings and fabrication of evidence.
In Eastern Enterprises v Ong Choo Kim [1969] the defendant was accused
of using or permitting the use of premises for illegal or immoral purposes. Winslow J held that the civil standard
of proof on a balance of probabilities should apply, but “subject to the qualification
that in tilting the balance against the defendant, they must attain a higher
degree of probability than is required in an ordinary case of civil negligence
though not the very high standard of the criminal law”.
Thus, while the standard of proving a
criminal allegation in a civil case remained that of the civil standard of
balance of probabilities, the degree of that standard may vary according to the
gravity of the allegation.
In Lim Nyun Yin v Gan Kim Biow & Ors [1982] it was recognised that
although under Malaysian law adultery is not a criminal offence, but it is
certainly a serious matrimonial offence. The court relied on the English
authority Blyth v Blyth [1966] and
held that the allegation must be proved beyond reasonable doubt.
Lim Nyun Yin
v Gan Kim Biow & Ors [1982] was quoted with approval by the court in John Bosco Fernandez v Thmil Selvi Ramasamy
& Anor [2012].
In Borhan Hj Daud & Ors v Abd Malek Hussin [2010] the High Court decision, that ‘the respondent had proved on balance of probabilities that he was assaulted in the manner he described, remains unchallenged on appeal.
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Fraud
Prior to the 2015 Federal Court
decisions, there have been three approaches as to the standard of proof when
allegation of fraud is made in civil case.
The first approach was the civil
standard of balance of probabilities, albeit the degree is a higher one.
In Lau Kee Ko v Paw Ngi Siu [1973] Raja Azlan Shah J (as HRH then was) in the Federal
Court observed that:
“It is a wholesome rule of our law
that where a plaintiff alleges fraud, he must do more than establish the
allegation on the basis of probabilities. While the degree of certainty
applicable to a criminal case is not required, there must, in order to succeed,
be a very high degree of probability in the allegation.”
In Lee You Sin v Chong Hgo Khoon [1982] Lee Hun Joe CJ applied the English decision Bater v Bater [1950] and held that the civil standard of
proof, namely on the balance of probabilities, should apply. However the court
imposed the requirement of a higher degree of probability for a serious
allegation of fraud. Surprisingly, this case was decided a year later which the
second approach was propounded by the Privy Council.
In Adorna Properties Sdn Bhd v Boonsom Boonyanit [2001] the Federal Court
held that in civil case, the standard of proof for forgery in a civil case is
that of a balance of probabilities. Surprisingly the Federal Court did not take
the opportunity to clarify the inconsistent authorities that have been put
forward to them. In addition, the Federal Court did not clarify the distinction
between fraud and forgery, as well as the standard of proof that is required.
The second approach requires a
criminal standard of beyond reasonable doubt. The first reported adopted this
approach was the Privy Council decision of Saminathan
v Pappa [1981].
The Privy Council decision has been
applied by the Malaysian court in Chu
Choon Moi v Ngan Sew Tin [1986]. It was re-affirmed by the Privy Council in
Datuk Jagindar Singh & Ors v Tara
Rajaratnam [1983].
The third approach was taken by
Federal Court in Ang Hiok Seng v Yim Yut
Kiu [1997], where it was held that the standard of proving fraud in civil
claim is dependent on the nature of fraud alleged. Mohd Azmi FCJ observed that:
“Where the allegation of fraud in
civil proceedings concerns criminal fraud such as conspiracy to defraud, or
misappropriation of money or criminal breach of trust, it is settled law that
the burden of proof is the criminal standard of proof beyond reasonable doubt,
and not on a balance of probabilities. However, where the allegation is
entirely founded on a civil fraud and not on a criminal conduct or offence, the
civil burden is applicable.”
Where the fraud alleged in civil
proceedings is based on a criminal offence, such as conspiracy to defraud or
misappropriate of money or criminal breach of trust, the standard of proof is
beyond reasonable doubt. Where the alleged fraud is purely civil, the standard
of proof is balance of probabilities.
The case of Ang Hiok Seng v Yim Yut Kiu [1997] was subsequently followed by the
Court of Appeal in Ong Ban Chai v Seah
Siang Mong [1998] and Lembaga
Kemajuan Tanah Persekutuan (FELDA) v Awang Soh bin Mamat [2009].
In Eric Chan Thiam Soon v Sarawak Securities Sdn Bhd [2000] Ian Chin J stated that the distinction
between civil fraud and criminal fraud cannot hold. According to his Lordship,
it is “an attempt to distinguish the indistinguishable”. “Fraud” has the same
meaning whether in criminal or civil cases. Given that fraud is criminal in
nature, he held that the standard of proving fraud shall always be beyond a
reasonable doubt.
However in Yong Tim v Hoo Kok Chong & Anor [2005] the Federal Court relied
on the Privy Council decision of Saminathan
v Pappa [1981] and held that where civil fraud is alleged, the standard of
proof would be beyond reasonable doubt. It shall be noted that the Federal
Court did not consider its earlier decision in Ang Hiok Seng v Yim Yut Kiu [1997].
Federal Court confirmed its decision
two years later in the case of Asean
Securities Paper Mills Sdn Bhd v CGU Insurance Bhd [2007]. The decision was
applied by the court in Lee Way Fay v
Lee Beng Ein [2005] and Elba Spa v
Fiamma Sdn Bhd [2008].
Surprisingly, in Modern Universal Sdn Bhd v MSIG Insurance (Malaysia) Bhd [2014] Prasad Abraham J (as he then was)
referred to the above authorities and held that the applicable law should be
that of Ang Hiok Seng v Yim Yut Kiu
[1997], which was ignored by the Federal Court in its two latter decisions. In
other word, the High Court preferred the “sliding scale” approach.
In Chong Son v Uma Devi V Kandiah [2011] the Court of Appeal held that
the trial court was erred in holding the standard of proof for fraud in civil
case is balance of probabilities. Forgery is a different kettle of fish from
fraud, and therefore a different standard of proof shall apply.
In Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd [2015], the
Federal Court has taken the opportunity to consider the abovementioned
authorities, as well as the common law position. It was held that there are
only two standard of proof, namely beyond reasonable doubt for criminal cases
and on the balance of probabilities for civil cases. As such, even if fraud is
the subject in a civil claim, the standard of proof is on the balance of
probabilities. There is no third standard. The criminal aspect of the
allegation of fraud in civil proceeding is irrelevant to the standard of proof
required.
The Federal Court expressly overruled
its earlier decisions in the cases of Ang
Hiok Seng v Yim Yut Kiu [1997] and Yong
Tim v Hoo Kok Chong & Anor [2005].
NB: It shall be noted that the
decision only applies to future cases and should not be utilized to set aside
or review past decisions involving fraud in civil claim.
The confusion between fraud and
forgery was clarified by Jeffrey Tan FCJ
in the Federal Court case in Letchumanan
Chettiar Alagappan (As Executer to SL Alameloo Achi (Deceased)) & Anor v
Secure Planation Sdn Bhd [2017]. It was held that the standard of proof for
fraud and forgery in a civil proceeding is balance of probabilities.
According to Jeffrey Tan FCJ, O. 18 r. 8(1)
read together with O. 18 r. 12(1)(a)
of the Rules of Court 2012 requires a
specific plead of fraud as well as the particulars of fraud. However, it is not always necessary to plead
the word 'fraud' if the facts which make the conduct fraudulent are pleaded.
'Fraud' is a generic term that covers all manner of cheat, deceit and
dishonesty. The appellant did not plead the word 'fraud' in the generic sense
but pleaded 'fraud' in the specific sense of 'forgery'. Given that 'forgery'
was pleaded, it could not be said that 'fraud' was not pleaded at all.
'Forgery' is a specific method of 'fraud' and is 'fraud' in every sense of the
word. A complaint of forgery is a complaint of fraud.
Inquest
into death
In Teoh Meng Kee v PP [2014], the family of the deceased, Teoh Beng
Hock, being dissatisfied with the verdict of the Magistrate sought
a review of the verdict before the High Court Judge. The High Court Judge was
satisfied that the findings of the Magistrate were correct and he had applied
the correct standard of proof, namely “on a sliding scale”, which was derived
from the High Court of Australia case of Briginshaw v Briginshaw [1938].
The Briginshaw sliding scale does not
mean a scale that slides from proof on a balance of probabilities to proof
beyond reasonable doubt on the highest end of the scale. It
is a scale rooted on the civil standard of balance of probabilities, but the
degree of persuasion needed to convince the court will vary in accordance with
the seriousness or gravity of the allegation. The sliding goes to the weight
and assessment of the evidence required rather than the standard of proof. The
standard of proof remains the same, namely on balance of probabilities.
It is unclear if the standard “on a
sliding scale” is still applicable, in light of the decision of Sinnaiyah & Sons Sdn Bhd v Damai Setia
Sdn Bhd [2015], where the court held that there is only two standard of
proof, namely beyond reasonable doubt for criminal cases and on the balance of
probabilities for civil cases.
Proving
facts especially within knowledge
Section 106 provides that when any fact
is especially within the knowledge of any person, the burden of proving that
fact is upon him.
A rule which may be pleaded in the
context of section 106 is the
doctrine of res ipsa loquitur.
This doctrine is a rule of evidence
that facilitates the burden of proof by invoking the presumption of negligence.
According to Jaafar bin Shaari v Tan Lip Eng [1997] the basic facts that need to
be proved before this presumption can be invoked are:
(a)
The harm would not ordinarily have occurred without negligence;
(b)
The object that caused the harm was under the defendant’s
control; and
(c)
There are no other plausible explanations.
Once the presumption is invoked, the
legal burden then shifts to the defendant to prove that he was not negligent.
In David Chelliah @ Kovilpillai Chelliah David v Monorial Malaysia
Technology Sdn Bhd & Ors
[2009] the plaintiff was struck by a safety wheel falling from a monorial train
on a test run. In invoking the doctrine of res
ipsa loquitur, the court held that the “safety wheel of a monorial train
does not, in the ordinary course of things, fall off and hit persons on the
ground below.” The plaintiff had, therefore, made out a prima facie case of negligence on the part of the first and second
defendants, and the defendants had the legal burden to rebut the presumption on
a balance of probabilities.
Please read the disclaimer (at the top of the page) before proceeding.
Please do not take this note as the sole and only sources to study. It is only a guidance which may assist you in drawing out the full picture of the particular area of law. It is never meant to be a comprehensive text.
Feel free to comment if you find any mistakes, or if you have anything to share.
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