Case study in Malaysia on burden of proof on accused in criminal cases.

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QUESTION 2: State when accused has legal burden in criminal cases.
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. So any party who succeeded in
giving the evidences and proving the existence of such evidence would likely to win the case.
Based on this report, there are basically three issues we would like to discuss. Firstly, which
party would primarily have the legal burden in criminal cases? After that only we would
answer the main issue in this report which is when accused has legal burden in criminal
cases, and lastly discussing on what degree does accused needed to proof when he has the
legal burden to proof.
So, we go with the first issue on which party would primarily have the legal burden in
criminal cases. It must be noted that the phrase 'burden of proof' has two distinct meanings in
the law of evidence which include burden of establishing a case, and also burden of
introducing evidence as illustrated in Section 101 of Evidence Act 1950. As for the first
meaning for phrase ‘burden of proof’, basically the onus to proof is on prosecutor to establish
a case or show prima facie of the case that the accused indeed had committed wrong.
Meanwhile for the second meaning, which is burden of introducing evidence, we can see in
Section 101 of Evidence Act 1950 where it stipulated that;
(1) Whoever desires any court to give judgement as to any legal right or liability,
dependent on the existence of facts which he asserts, must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact, it is said that the burden of
proof lies on that person.
Based on the provision above, in criminal cases, if public prosecutor wants to prove
that an accused has committed any wrong, he must give evidence and prove that the said
accused had committed such offence. So, in answering the first issue, we can see that
primarily it would be the prosecutor who has the legal burden to establish a case and to proof
his case by giving evidences in court that the said accused had committed an offence. So,
accused would not have the legal burden at first to proof his case.

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As for the second issue which is the main issue in this report, when will accused have
legal burden in criminal cases, we can see in Section 102 of Evidence Act 1950. In this
provision, it says that;
The burden of proof in a suit or proceeding lies on that person who would fail if no
evidence at all were given on either side.
Based on provision above, a person would have legal burden when he would lose if
no evidence adduced on either sides. If prosecution has given certain evidences or facts in
showing that accused has committed theft, then the burden shifted on accused to give
evidence that he did not commit theft and if he did not give evidence for his defence then he
would likely to lose the case. In short, the burden shifted on accused once can be seen that he
would certainly fail if no evidence was given. However, it is pertinent to know that the
accused only have burden in proving his defence. In case of Wolmington v DPP, it was held
that the onus of proof which in a criminal case lies upon the prosecution and burden of proof
shall be imposed on accused the existence or non-existence of such fact by way of defence.
So here, basically the prosecution has the burden to prove the case and this burden lies
with him throughout in respect of the facts in issue. Meanwhile the accused has to weaken the
effect of the prosecution’s case either by cross-examination or by adducing evidence himself
and through witnesses, if any. There are few cases showing that accused would have legal
burden once he need to proof his defence or when he would likely lose if no evidence given
to show his innocence. In Mat v Public Prosecutor1, Suffian J observed that if the court
accepts the explanation given by the accused, then accused must be acquitted. But this does
not entitle court to convict accused if judge do not believe his explanation, for he is still
entitled to an acquittal if it raises in judge mind a reasonable doubt as to his guilt, because the
onus of proving his guilt lies throughout on the prosecution. If upon the whole evidence judge
are left in a real state of doubt, the prosecution has failed to satisfy the onus of proof which
lies upon it. In this case, we can see that accused need to cast a doubt in judge’s mind in order
to be acquitted and not necessarily adduced new evidence.
So, accused can be said to have legal burden once he needed to cast a doubt on
judge’s mind because prosecution could only succeed in the case if he can show that accused
1 [1963] MLJ 263

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is guilty beyond reasonable doubt. In case of PP v Saimin2, a “reasonable doubt” is a doubt
which makes one hesitate as to the correctness of the conclusion that one reaches and, it is the
doubt that settles in one’s judgment and finds a resting place there.
In case of Public Prosecutor v Mohd Aszzid Abdullah3, it was held that cases and
must be read in the light of Balachandran v Public Prosecutor4. The burden of establishing
a case in a criminal trial always remains with the prosecution. However, the burden of
introducing evidence may shift. Burden of introducing evidence is often called evidential
burden. Based on this case, it can be said that once prosecution says that accused has
committed the murder, the burden of proof is on prosecution to prove that accused has
committed the murder. The legal burden always rests on prosecution to prove his case.
However, if accused relies on the defence of provocation then accused has the evidential
burden to adduce evidence to that effect before the prosecution is put to the legal burden of
negativing the defence. So here we can see that legal burden may shift depends on who
would probably fail if no evidence given to the court as stated in Section 102 of Evidence Act
1950 like I have mentioned above.
Apart from that, we can also make reference to the case of Miller v Minister of
Pensions5. In this case, it was held that it is the prosecution’s duty to prove the case beyond
reasonable doubt and the accused has to merely cast a reasonable doubt.
Apart from that, we can also make reference to Section 105 Evidence Act 1950
where it stipulates 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 of proviso contained in any other part of the same Code, or in
any law defining the offence upon him, and the court shall presume the absence of those
circumstances.
Based on provision above, the court would presume the absence of evidences in
favour of accused unless it can be shown by accused that such evidence exists. For example if
accused has been accused of murder and he has proof of alibi, then accused need to show
2 [1971] 2 MLJ 16
3 [2008] 1 MLJ 281
4 [2005] 2 MLJ 301
5 [1947] 2 All ER 372

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such evidence to court, otherwise the court would presumed such alibi does not exist. In the
case of PP v Kenneth Fook Mun Lee (No 1)6, it was held that the burden to prove defence
lays on the accused.
Therefore as for the second issue on when accused would have legal burden, we can
see that the accused would have legal burden once he needed to proof his innocence in favour
of his defence. If the accused failed in giving or proving evidences, then the only thing
accused must do to be acquitted is cast a doubt in prosecution case.
As for the third and last issue, what degree of proof needed to be proven by accused
once he has legal burden? As we know, the prosecution need to show the accused is guilty
beyond reasonable doubt. So the degree of prosecution is beyond reasonable doubt. For
accused, there is no provision stated in Evidence Act 1950 regarding accused’s degree of
proof. However we can make reference to few cases. In case of Ikau anak Mail v PP7, the
accused has a burden to prove his defence of provocation on a balance of probabilities8.
In addition to that, in case of Saminathan v Public Prosecutor9, the court among
other things considered the rules of evidence with regard to burden of proof in civil and
criminal cases. Buhagiar J observed that 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. Meanwhile 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 acquittal10.
So, based on the above cases, we can see that accused does not have to proof his
innocence beyond reasonable doubt. In fact if he can show on balance on probabilities or
succeeded in casting a doubt in prosecution case, then accused would be entitled for acquittal.
6 [2002] 2 MLJ 563
7 [1973] 2 MLJ 153
8 http://ohmyevidence.blogspot.my/2012/12/burden-and-standard-of-proof_16.html
9 [1955] 21 MLJ 121
10 http://evidencejournalist.weebly.com/bloggers/burden-of-proof