Burden of Proof & Standard of Proof

Answer outline

• determine nature of case first - criminal or civil - BRD or balance of prob

• cause of action

• defense

burden and standard to prove elements of cause of action

• on the pros or plaintiff

• BRD [Mat v PP] or on the balance of prob [PP v Yuvaraj]

BOP and SOP in criminal case

• s101 - to prove facts in issue which constitutes the cause of action

• [Mat v PP] - legal burden to prove A’s guilt lies throughout with the prosecution - to prove the elements which constitutes the offence - also to disprove any possible defenses the A might rely on

• [Miller v Minister of Pensions] - need not reach certainty, but must carry a high degree of probability

• Eg: pros to prove ingredients of murder - ascertain actus reus and mens rea - see s101 illus (a)

• SOP - beyond reasonable doubt

• Irresistible conclusion test - circumstances consistent with A having committed the offence - also inconsistent with any other inconsistent conclusion other than that the A is a guilty person

• [PP v Azilah] - circumstances are of conclusive nature in that the chain of evidence is complete so as to exclude any conclusion suggesting the A’s innocence

BOP in civil cases

• s101 - to prove facts in issue which constitutes the cause of action - see illus (b)

• [Letchumanan v Secure Plantation] - burden to prove genuineness of document rests on the party who asserts its validity - regardless of whether he is P or D - s102 - would fail if no evidence given at all - s103 - wishes the court to believe in the validity - prove particular fact

• [Dan Msia v Kwan] - on P but burden shift to D when P has adduced sufficient evidence of probative value which requires to rebut - s102 - if not will fail

• SOP - on the balance of probabilities - [PP v Yuvaraj] - more probable than not - 50/50 - BOP not discharged

BOP and SOP to raise defense

Eg: genuineness of document : BOP on D to prove signature forged - to negate the validity of the contract - to prove negligence to release the loan

• s101 - D to prove the ingredients of defense

• s102 - D would fail if no evidence were given to disprove the P’s evidence - bears BOP

• s103 - D wishes court to believe particular facts - signature forged - negligence - bears BOP

Other instances of A bearing the BOP

• s104 - D seeking to tender evidence - pre-conditions need to be fulfilled for it to be admissible - s104 - BOP on D

• s106 - D wants to prove stg within the knowledge of him - bears BOP

• s114A - D bears the BOP to prove that he is not the publisher - to rebut the presumption - s102 - if not proven would fail

BOP and SOP for defense only for criminal case

• s105 -

  • BOP - relying on defense provided in general exceptions or special exceptions in PC or any law on the defense - A - relying on the defense - will bear the burden

  • SOP - [PP v Yuvaraj] -whenever A bears the burden to prove a fact in issue - on the balance of prob

• If not relying on any general or special exceptions

  • SOP - only has evidential burden to adduce sufficient evidence raise reasonable doubt on the pros case

  • [PP v Saimin] - doubt that makes hesitate as to the correctness of the conclusion you wish to reach

SOP for fraud and forgery

• [Sinnaiyah v Damai Setia] - fraud on the balance of prob

• [Letchumanan v Secure Plantation] - forgery - on the balance of prob

History: fraud

• [Saminathan] - allegation of fraud no matter civil or criminal - BRD

• [Lee You Sin v Chong] - on the balance of prob - but the standard depends on the seriousness of the allegation - the more serious it is - higher degree of probability required before the SOP can be satisfied

• [Ang Hiok Seng v Yim] - civil proceedings concerning criminal fraud - BRD - civil fraud (s17,18 CA50) - on the balance of prob

Rationale behind legislating a principle in law

• to provide certainty - when Parl don’t want to leave stg in the hands of the judiciary - once legislated - can only interpret based on the words of the statute - cannot create

• when case law is conflicting against each other and the courts are unable to address it with sufficient clarity and certainty

s106 - within the knowledge of the person seeking to prove a fact

[PP v Hoo Chee Keong] - designed to meet exceptional cases in which it would be impossible or disproportionately difficult for the pros to establish facts which are especially within the knowledge of the A and which he could prove without difficulty or inconvenience

BOP and SOP in a divorce petition

• s54 - Law Reform (Marriage and Divorce) Act 1976 - sole ground for petition for divorce - marriage has irretrievably broken down - the section provides for fact that may be relied upon to prove such breakdown

• s101 - to prove the fact in issue (fact under s54) of the cause of action

• s102 - if not proven will fail

• SOP - on the balance of prob - civil proceeding

• [Shanmugam] - allegation of adultery has to be proven BRD

In cases where P suing for transfer of a property - wife of D claims contribution

• in family law - if the property is in the wife’s name - presumption that the husband is holding the property on trust for the wife provided the wife is able to prove contribution to purchase price

• husband has to rebut this presumption of gift

• [Nagapushani v Nesaratnam] - when it is not possible to ascertain the exact portion of contribution by each spouse - equity leans towards equality - both spouses will have equal shares

• SOP - on the balance of prob