The Distinct of

Legal Burden
and Evidential
Burden
PRESENTED BY: TAN YONG
HAO
Burden of Proof
Duty or obligation to prove or establish the case, whilst the standard of proof refers to the extent
or quantum of proof.
The person who alleges must prove the allegation.

Section 101 of Evidence Act: 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.
Although there is no reference made to “legal burden of prove” and “evidential burden of
proof” in Evidence Act, there is a tendency to employ these terms.
Legal Burden v Evidential Burden

1. Refers to the positive duty to prove.

Legal Burden 2. In relation to a matter, means the burden of proving the
existence of the matter.
Legal Burden v Evidential Burden

Evidential 1. Refers to the burden of introducing evidence.

2. In relation to a matter, means the burden of adducing
Burden or pointing to evidence that suggests a reasonable
possibility that the matter exists or does not exist.
Case Law
Lord Justice Mustill in Brady (Inspector of Texas) v Group Lotus Car Cos plc & Anor explained
the expression “evidential burden”: Although this tern is widely used, it has often been pointed
out that it simply expresses a notion of practical common sense and is not a principal of
substantive or procedural law. It means no more than this-that during the trial of an issue of fact
there will often arrive one or more occasions when, if the judge were to take stock of the
evidence so far adduced, he would conclude that, if there were to be no more evidence, a
particular party will win.
Case Law
Refer to the case of R v DPP ; Ex parte Kebilene [2000] 2 AC 326.

The court held that a ‘persuasive’ legal burden of proof requires the accused to prove, on a
balance of probabilities, a fact which is essential to the determination of his guilt or innocence. It
reverses the burden of proof by removing it from the prosecution and transferring it to the
accused. An ‘evidential’ burden requires only that the accused must adduce sufficient evidence to
raise an issue before it has to be determined as one of the facts in the case. The prosecution does
not need to lead any evidence about it, so the accused needs to do this if he wishes to put the
point in issue. But if it is put in issue, the burden of proof remains with the prosecution. The
accused need only raise a reasonable doubt about his guilt.
The End

Thank You for paying attention.