5.

With reference to statutory provisions and judicial precedents, state on whom lies the
burden and the standard of proof in the following cases:

a. Mokh was charged and convicted for murder and he appeal against the
conviction. It was alleged at the trial that he together with two other persons,
in furtherance of their common intention did commit murder by causing the
death of one Tahu. One of the defence was that the accused alleged that he
was somewhere else and not at the scene of the crime when the crime was
alleged to have been committed. On appeal he argued that the trial judge had
erred in law for imposing the burden to proof that he was elsewhere was on
him.

ANSWER:

1. Issue:

The issue is whether the burden of proof is on Mokh in proving the truthfulness of his alibi.

2. Law:

Burden of Proof refers to the duty of a party in a criminal or civil litigation to prove a
fact or facts in issue. Generally, the burden of proof falls upon the party who substantially
asserts the truth of the facts in issue. In a criminal trial, the prosecution will bear the burden
of proving the accused’s guilt. While standard of proof refers to the degree of proof required
for ant fact in issue in a litigation, which is established by assessing the evidence relevant to
it. Section 101 and 102 of the Evidence Act provides for the principle of burden of proof.

Section 101(1) of the Evidence Act provides that whoever desires any court to give
judgement as to any legal right or liability, dependant on the existence of facts which he
asserts, must prove that those facts exist. Section 101(2) provides that when a person is
bound to prove the existence of any fact, it is said that the burden of proof lies on that
person. While section 102 provides 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. The application for
the above-mentioned provisions can be seen in the case of MGI Securities v Teong Teck
Leng. Here, the court held that sections 101 and 102 require that whosoever desires any
court to give judgement as to any legal right or liability dependent on the existence of facts
which he asserts must prove those facts do exist.

Section 101 deals with legal burden while section 102 deals with evidential burden. In
the case of Aziz bin Muhamad Din v PP, the court affirmed that section 101 deals with the
burden of establishing a case (legal burden). It rests throughout the trial on the party who
asserts the affirmative of the issue. However, a burden of introducing evidence in a case
(section 102) shifts constantly as evidence is introduced by one side or the other. Therefore,
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 discharged it, then the evidential burden shifts to
the other party.

In criminal cases, the general rule is that an accused is presumed to be innocent until
he is proven guilty. There are two stages in criminal prosecution which are the prosecution
stage and the defence stage. At the prosecution stage, the prosecution has a duty in
establishing both the actus reus and mens rea of the crime. This burden lies on the
prosecution until the end of the defence’s case in respect of the facts in issue.

The accused generally only need to cast a reasonable doubt on the prosecution’s
case. In the case of Mohammaed Radhi bin Yaakob v PP, the court held that the accused
bears no legal burden at all to prove his innocence. There are exceptions for the general rule
of burden of proof for an accused person in a criminal case. One of the exceptions is
“proving particular facts.”

Section 103 provides that the burden of proof as to any particular fact lies on that
person who wishes the court to believe in its existence, unless it is provided by any law that
the proof of fact shall lie on any particular person. Illustration (b) to section 103 provides
that “B wishes the court to believe that at the time in question he was somewhere else. He
must prove it.” In relation to the burden of proving alibi, in the case of Jayasena v R and
Dato’ Mokhtar Hashim v PP provides that the legal burden should be imposed on the
accused to establish the existence of the alibi.

However, in the case of Yau Heng Fang v PP, the court held that section 103 merely
cast an evidential burden on the part of the accused. There is no burden placed on the
accused to prove his innocence. Defences such as alibi place merely an evidential burden of
introducing some evidence enough to create a reasonable doubt that when the crime took
place, the accused was not at the crime scene and thus, it is improbable (though not
impossible) for him to commit the offence. However, the court inn Jaferi Bin Ipee v PP
states that “it is no doubt, an accused person need not have proven anything, but “a mere
denial without other proof to reasonably dislodge the prosecution’s evidence is not
sufficient”.” Here, the court held that the appellant must adduce evidence as to his
whereabouts at the time when the crime took place in order to rebut the fact that he did not
commit the offence.

In Ku Lip See v PP, the court stated that “evidence in support of alibi” means an
evidence tending to show that by reason of the presence of the defendant at the particular
place or in a particular area at a particular time, he was not, or was unlikely to have been, at
the place where the offence is alleged to have been committed at the time of its alleged
commission.

3. Application:

In current case, Mokh alleged that at the time of crime been committed, he was not at
the at the same of the crime and at somewhere else. On appeal he argued that the trial
judge had erred in law for imposing the burden to proof that he was elsewhere was on him.
As a general rule, in criminal cases, the burden of proof lies on the prosecution. Thus, Mokh
is only required by the law to cast a reasonable doubt in the prosecution case in order to be
acquitted from his charged. However, there are exceptions to the general rule as provided
under section 103. In particular illustration (b) to section 103 explicitly provides that it on the
accused person to prove his defence of alibi. Thus, Mokh has a burden to prove that he was
indeed not present at the crime scene during the offence was committed. By virtue of the
case Jaferi Bin Ipee v PP, if Mokh merely assert that he was not present at the crime scene
at the time of the crime been committed without producing any evidence to support his
contention, it is without doubt that the court shall merely treat Mokh’s contention as a mere
denial. Furthermore, by virtue of the case Ku Lip See v PP, Mokh need to produce evidence
which shows that at the particular time of the crime been committed, he was absolutely and
very unlikely present at the crime scene.

4. Conclusion:

In conclusion, the burden of prove lies on Mokh to produce evidence in support of his
alibi as it falls under exception to the general rule of burden of proof.

Tak letak what standard(alibi) balance of probabilities.

Application: repeating the law.

b. Gumi was convicted for murder of Manis with whom he cohabited for a
number of years. It was alleged that Manis went to Kampar with another man
and check-in into a lodging house. Gumi followed them to the lodging house
and was showed the room by the owner of the lodging house where Manis
stayed. He knocked at the door which was open and he went in and found
Manis and the other man partially undressed and lying on the bed together.
The man rushed out of the room. Gumi remonstrated with Manis but she said
she could do what she liked and hit him on the head with a teapot. After that
he did not know what happened. His defence was grave and sudden
provocation.
ANSWER:

c. Fritz Erwin was charged of murder. His counsel raised a preliminary issue
whether he was fit to plead to the charge, it being his case that he was
suffering from hysterical amnesia and had completely lost his memory for all
the events of the murder.

ANSWER:

1. Issue:

The issue is whether the burden of proof on whether Fritz Erwin is fit to plead to the charge
of murder is on Fritz Erwin.

2. Law:

In criminal cases, the general rule is that an accused is presumed to be innocent until
he is proven guilty. There are two stages in criminal prosecution which are the prosecution
stage and the defence stage. At the prosecution stage, the prosecution has a duty in
establishing both the actus reus and mens rea of the crime. This burden lies on the
prosecution until the end of the defence’s case in respect of the facts in issue.

The accused generally only need to cast a reasonable doubt on the prosecution’s
case. In the case of Mohammaed Radhi bin Yaakob v PP, the court held that the accused
bears no legal burden at all to prove his innocence. There are exceptions for the general rule
of burden of proof for an accused person in a criminal case. The exception is proving
defence.
 Section 105 provides 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 or proviso contained in any
other part of the same Code, or in any law defining the offence, is upon him, and the court
shall presume the absence of those circumstances. The provision states that the accused
who relies on any statutory defence would have the legal burden to prove such a defence.
Here, it can be seen that the evidential burden shifts to the defence as he claims innocence
by virtue of a defence. The burden should be proved on the standard of balance of
probabilities as by virtue of the case Ikau anak Mail v PP. In addition, in the case of PP v
Kenneth Fook Mun Lee (No. 2), the court held that the burden of establishing evidence of
insanity was on the accused and there was no obligation on the prosecution to adduce
evidence to show that the accused was sane at the time of the commission of the offence.

On the issue as to whether section 105 casts a legal burden or only an evidential
burden upon the accused person to prove his defence. In Jayasena v R, the privy council
held that where the accused relied on private defence and the court dismissed the argument
that proof could be established through the mere adduction of evidence and emphasised
that the Evidence Act 1950 only contemplates a single burden, which is the legal burden.
Thus, if the accused want to use statutory defences or exceptions, a legal burden is imposed
on him to prove that such fact does exists.

However, in R v Chandrasekara, the states that there is a need to distinguish

between two types of defences, which are, firstly, those who affect some elements of the
prosecution’s case (eg accident, insanity, intoxication); and secondly, those that do not (eg
provocation or private defence). For the first type, need only to cast reasonable doubt (ie the
evidential burden is cast on the accused). While for the second type, need to impose legal
burden to prove the defence.

The wording in Section 105 clearly shows that the burden of proving the defence lies
on the accused means a legal burden. this is because it includes all type of defences which
includes accident and insanity. Illustration (a) to section 105 which provides that “A
accused of murder alleges that by reason of unsoundness of mind he did not know the
nature of the act. The burden of proof is on A,” shows that there is no differentiation is made
on the types of defence as stated in the case of R v Chandrasekara.

3. Application:

To apply, generally the burden of prove is on the prosecution to proof the offence.
However, under Sec 105, the burden of proof is shifted towards Fritz Erwin. This is also
accordance with the case of PP V Kenneth Fook Mun Lee, where the court he isheld that the
burden of proof of insanity was on the accused. As Fritz claimed that he has hysteria and
completely lost the memory of the event, it can be consider as insanity as he was not in his
right mind.

For standard of prove, as in the case of Ikau Anak Mail, the accused, Fritz only need
to prove his defence on balance of probabilities rather than beyond reasonable doubt by
virtue of the case of Ikau Anak Mail v PP.
4. Conclusion:

To conclude, the burden of prove and the standard of prove is lies on Fritz to show that he is
not competent to plead, and the standard is on balance of probabilities.

Start 101 n 102, alternative argument; s.103. sebab dia tak guna defend he may not competent to
plead at all.

Explanation on how no competent to plead to prove, Ie panggil psychiatrist.