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1. Nur Aliah (2021)
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Law of Evidence II – Burden and Standard of Proof
A. Burden of Proof
Definition Obligation which is imposed on a party, to
adduce sufficient evidence in support of his
vital contention for overall success in his
case.
Two distinct meanings in the Law of
Evidence
a) Burden of establishing a case; and
b) Burden of introducing evidence
(evidential burden)
The burden of establishing a case in a
criminal trial always remain with the
prosecution and in civil case subject to
certain exceptions always remains with the
Plaintiff.
Evidential burden is the burden of adducing
sufficient evidence on any given issue, to
justify a favourable finding of fact on that
issue. It shifts from one party to another
throughout the course of the case. However,
the legal burden asserting the affirmative
proposition does not shift. The test who
bears the evidential burden is determined by
the fact which party would be likely to fail in
his submission about that particular issue, if
not further evidence were adduced.
Example:
A sues B for money on a loan deed.
B says that the note was obtained by fraud.
A denies that.
If B does not adduce evidence to
substantiate his allegation fraud, A will win
the case.
B has to adduce sufficient evidence to
convince the Court to dismiss A’s claim.
Jayasena v R (1970) AC, Lord Devlin Lord Devlin rejected the phrase ‘evidential
burden of proof’ and said that it is a
contradiction in terms. He stated that
‘evidential burden’ is only the burden of
adducing evidence. For example, raising a
doubt where, there is no duty to prove,
whereas ‘legal burden’ is the burden of
proving a case, by convincing the Court to
believe in the existence or non-existence of
a fact. Notwithstanding Lord Devlin’s
rejection, this phrase is often used in
judgements and by leading authors.

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Relationship between ‘fact in issue’ and
‘burden of proof’
Facts in issues are vital issues central to the
allegation of the party and failure by him to
adduce sufficient evidence in support of a
fact in issue means that he has failed to
discharge the legal burden and thus he will
fail in overall contention.
Woolmington v DPP (1935) AC 462 Facts
Woolmington was charged with murder. The
trial judge directed the jury that once the
prosecution had proved the killing, they
should presume it to be murder unless the
defendant proved facts justifying a verdict of
manslaughter or an acquittal on the ground
of accident. The defendant appealed to the
House of Lords arguing a mis-direction on
the burden of proof.
Held
The appeal was successful and the
conviction was quashed.
Lord Sankey LC observed:
It is not for the prisoner to establish his
innocence but for the prosecution to
establish his guilt.
Manchi v DPP (HL) (1942) ACI Held
Accused had to discharge the evidential
burden relating to a charge of provocation
before the prosecution was put to the legal
burden of negativing the defence.
R V Gill (1963) 2 A11 ER 688 If a defendant wishes to raise a particular
defence to a charge, then he must raise the
defence. Once he has succeeded in doing
this then it is for the Crown to destroy that
defence in such manner as to leave in the
jury’s mind no reasonable doubt that the
accused cannot be absolved on the grounds
of the alleged defence.
R v Bone The judge failed to direct the jury that it was
for the prosecution to negative the defence
of duress which the defendant had raised to
a charge of housebreaking and larceny.
Held
Where the judge fails to direct the jury in this
respect the conviction will be quashed.

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B. Standard of Proof
Definition Degree required to discharge a burden.
Miller v Minister of Pensions (1974) 2
A11 ER 372, Denning J
“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 a doubt. The law
would fail to protect the community of it
admitted fanciful possibilities to deflect the
court 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.
R v Summers 36 Cr App. R14, Lord
Godard CJ
“If a jury is told that it is their duty to regard
the evidence and see that it satisfies them so
that they can feel sure when they return a
verdict of guilty, that is must better than
using the expression ‘reasonable doubt’ and
I hope in future that will be done.”
Ferguson v R [1979] IWLR 94 Beyond reasonable doubt is when
defendant’s guilt was generally upheld as
safe and sufficient.
R v Ching [1976] 63 Cr. App R 7 “We point out and emphasize that if judges
stopped trying to define that which is almost
impossible to define there would be fewer
appeals.”
R v Carr-Briant [1943] KB 607 Standard of proof required by the defence is
not higher than the burden which rests upon
a plaintiff or a defendant in civil proceedings.
Bater v Bater [1950] 2 A 11 ER 458,
Denning LJ
In proportion as the crime is, so ought the
proof to be clear.
Blyth v Blyth [1966] 1 A 11 ER 524, Lord
Denning
The degree of probability depends on the
subject matter in proportion. As the offence
is grave, so ought the proof to be clear.
R v Hampshire Country Council ex parte
Ellorton [1985] IWLR O’, Connor LJ
“The general rule is that in criminal cases the
criminal standard of proof beyond
reasonable doubt is required, while in civil
cases the civil standard of proof on the
balance of probabilities is sufficient.
Sometimes, the same facts can give rise to
criminal and civil liability.
Hornal v Neuberger Products Ltd [1956]
3 A11 ER 970
The more serious the allegation the higher
the degree of probability that is required.