Standard Of Burden Of Proof Required Law General Essay

Published Date: 02 Nov 2017

First of all, as the saying goes, "innocent until proven guilty," has been heard by almost everyone. This phrase is a basic principal of criminal law which is actually referring to the standard of burden of proof. The burden of proof is a definite responsibility of one party in a case to make sure that the judge or jury is convinced to their version of facts is true. Besides that, the defendant does not have to prove that he is wrong because the burden of proof is on the prosecution. The burden of proof is so much greater in criminal cases than in civil cases. This is because the defendant losses many of his civil liberties and usually faces jail time.

The prosecution must prove that their version of facts is beyond a reasonable doubt when a defendant is facing with criminal charges. It is meant that every concept of the crime that is charged against the defendant must be proved beyond a reasonable doubt. The definition of beyond a reasonable doubt means that to prove his innocence, there should be evidence that he would be willing to depend and act upon without hesitation in his own affairs. And it doesn’t mean an absolute certainty as well. Moreover, it is the prosecution’s duty to prove the case beyond a reasonable doubt and the accused has to merely cast a reasonable doubt. This can be seen in the case of PP v Saimin1, where:

"a ‘reasonable doubt’ is a doubt which makes one hesitate as to the correctness of the conclusion that one reaches ... it is the doubt that settles in one’s judgment and finds a resting place there. Or as sometimes said, it must be a doubt so solemn and substantial as to produce in the minds of the jurors some uncertainty as to the verdict to be given. A reasonable doubt must be a doubt arising from the evidence or want of evidence and cannot be an imaginary doubt or conjecture unrelated to evidence."

There are two types of general elements that the prosecution must prove in a criminal case. The first element will be the criminal act or that the defendant committed the acts that make up the crime in question. These particular acts can be done either knowingly, or purposely, negligently or recklessly. Even more so, in the cause of the event, if the prosecution fails to act, it can also be a crime when there is a duty to do so, for example, when a parent has a duty to protect its child. The other element that the defendant must prove is that whether he acted with a criminal intent or not. The definition of criminal intent greatly relies on the crime charged and that there are some crimes that defeat the need to prove if the defendant had a criminal intent.

Furthermore, there are burden of proving defenses as well. Usually, when there is evidence to support when the defendant raises a defense to the prosecution’s proof, the burden is on the prosecution to contradict it. If the defense were to be a positive defense, for example, entrapment or duress or self-defense, etc, thus the burden is already on the defendant to make supporting evidence to himself.

1 [1971] MLJ 16

Usually a positive defense is one that won’t really challenge the facts which are being presented by the prosecution but more of excuses which are used and it will be deemed unlawful. The burden of proof which is to go forward with a case differs in other type of jurisdictions. For example, in New York, in a positive defense where the defendant has to prove, it should by a ‘preponderance of evidence’2. If it were to be compared with Massachusetts where, after a positive defense has been raised satisfactorily by the defendant, the prosecution must disprove it beyond a reasonable doubt.

In the case of Tan Kim Khuan v Tan Kee Kiat (M) Sdn Bhd3, the burden of proof rests throughout the trial on the party on whom the burden lies. Where a party on whom the burden of proof lies has discharge it, then the evidential burden shifts to the other party. What shifts is the responsibility of adducing evidence to discharge the burden if he does not adduce any evidence when the burden has shifted to him, he will fail.

Whereas in the case of Wong Sieng Ping v PP4, who was charged with cheating. The Magistrate held that:

"I am satisfied beyond reasonable doubt that accused failed to establish a case which at least would raise doubt as to his guilt and entitle him to an acquittal. Contention: it was wrong to say the burden of proof had shifted to the appellant legal burden never shifted to the accused ‘to give an explanation’ or ‘to establish a case’ which would be inconsistent with the presumption of innocence."

There are three other cases which have burden of proof in criminal cases:

Mat v PP5, the general rule is that the prosecution bears the legal burden of proof.

Choy Hon Song v PP6, the accused generally has only the evidential burden of raising reasonable doubt in the mind of the trial court.

Woolmington v DPP7, the burden of proof on the prosecution to prove guilt, no such burden laid on the accused to prove his innocence, sufficient to raise as to his guilt

2 the standard of proof in most civil cases in which the party bearing the burden of proof must present evidence which more credible and convincing than that presented by the other party or which shows that the fact to be proven is more probably than not also

3 [1998] 1 MLJ 697

4 [1967] 1 MLJ 56

5 [1963] MLJ 263

6 [1967] 1 MLJ 210

7 [1935] AC 462