Malaysian Standard & Burden of Proof

A) Standard of Proof

It is important to realise that Courts often consider the sufficiency of evidence presented in a given case for the purpose of ascertaining whether a case has reached a certain standard before the court is able to decide on a particular issue.

In Inas Faiqah Mohd Helmi v Kerajaan Malaysia [2016] 2 CLJ 885, the court explained the threshold of evidence in civil matters

“The standard of proof in civil cases is the legal standard to which a party is required to prove its case, namely on a balance of probabilities. In civil litigation, the question of the probability or improbability of an action occurring is an important consideration to be taken into account in deciding whether that particular event had actually taken place or not.”

Thus, when wanting to succeed in a civil case, it must be proved that on the balance of probabilities, his/her case is true. This means that the court must be satisfied that on the evidence, the occurrence of an event was more likely than not. A party must persuade, through the evidence presented in court, in order to establish a probability is greater than 50 percent.

In Miller v Minister of Pensions [1947] 2 All ER 372 (KB), Lord Denning explained,

“The law concerning standard of proof is well settled. It must carry a reasonable degree of probability and if the evidence permits the tribunal to say: ‘We think it more probable than not,’ the standard has been achieved. Unfortunately, if the probabilities are equal, the standard will not be reached.”

This indicates a very small difference between succeeding on the balance of probabilities and failing on the balance of probabilities. Furthermore, this particular standard does now allow for any guesswork, speculation, surmises or conjecture, which is based on mere possibilities.

B) Burden of Proof

The standard of proof, although related, is not the same as the term burden of proof. The case of Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd, [2015] 5 MLJ 1 acknowledged the difference between the two.

“There is of course a difference between the terms “burden of proof” and “standard of proof”.

Briefly the former relates to the burden or obligation of proving a fact on the party who exerts the existence of any fact in issue and wishes the court to believe in its existence – ss. 102 and 103 of the Evidence Act 1950 (‘the Act’). The latter refers to the degree of persuasion which the tribunal must feel before it decides that the fact in issue did happen.”

In truth, the concept burden of proof associates itself with two different senses. This was pointed out in International Times & Ors v. Leong Ho Yuen [1980] 1 LNS 31

Here, the court differentiated two senses in which the expressions burden of proof and onus of proof are used.

“The first sense, signified by the expression burden of proof such as referred to in s. 101 of the Evidence Act is the burden of establishing a case and this rests throughout the trial on the party who asserts the affirmative of the issue.

The second sense referred to as onus of proof, on the other hand, relates to the responsibility of adducing evidence in order to discharge the burden of proof. The onus as opposed to burden is not stable and constantly shifts during the trial from one side to the other according to the process during the evaluation of evidence. According to ss. 102 and 103 of the Evidence Act, if the party with whom this onus lies whether initially or subsequently as a result of its shifting does not give any or further evidence or gives evidence which is not sufficient, such party must fail.”

The importance of satisfying this burden of proof can be seen in Saminathan & Ors v. PP [1955] 1 LNS 138; [1955] MLJ 121. In this case, the court explained how a prima facie case would be established as a result of ample evidentiary proof. The court held,

“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 sufficiently strong evidence, and can be overthrown only by rebutting evidence adduced by the other side.” The very same essence was reiterated by learned Justice Augustine Paul FCJ in the case of Balachandran a/l Selvaratnam v. PP [2005] 2 MLJ 301”

To this end, it is evident that the term burden of proof plays a vital role in establishing a case, where it would also be possible for that burden to remain on one party in a given case.

Additionally, the concept of burden of proof also has relevance during the whole evidentiary process where parties are constantly trying to pass of the duty of discharging that burden, until one fails to introduce evidence in support of their case.