Tutorial Question - Burden & Standard of Proof

LAW578/591 – LAW OF EVIDENCE II

TUTORIAL QUESTIONS
TOPIC 5 – BURDEN AND STANDARD OF PROOF

1. Man and Said were charged with jointly trafficking in drugs. The evidence adduced by
the prosecution was that a police party saw two males cycling together into the
compound of the Seremban Hospital, where one of them handed two plastic bags to
the other. The police closed in to arrest the two persons. The police were able to
arrest Man who immediately dropped both bags. The other suspect then snatched
one of the bags, fled and escaped.

Subsequently, some five months later, Said was arrested when he came to the
Seremban Magistrate Court in connection with some traffic offence. He was identified
by ASP Mogan and one other member of the police party who was present in the
Seremban Hospital compound incident.
Said's defence was an alibi. He claimed to be in Padang Besar, on the day of the
above mentioned incident and in support he produced a border pass, the
genuineness of the contents of which was challenged by the prosecution. The
learned trial judge found both the accused guilty.
Said appealed to the High Court. At the appeal, it was argued that the learned judge
had erred in law on the issue of burden and standard of proof regarding the defence
of alibi raised by Said. In his judgment the learned judge had stated that "the onus is
on the defence to prove alibi on the balance of probability."
Examine the law on burden and standard of proof with respect to an alibi defence and
consider if Said would succeed in his contention.
2. Alex was charged with causing grievous hurt to one Alan pursuant to Section 322 of
the Penal Code. Alex admitted to causing the hurt but his defence was that he, at the
material time was intoxicated through drinks that he did not know what he was doing
and therefore lacked the necessary mens rea for the offence. At the end of the trial
the Sessions Court judge ruled as follows:
i) that the Prosecution bears the burden of proving beyond a reasonable that not
only the accused committed the offence but he did so with the requisite mens rea.
ii) that the accused has raised sufficient evidence to show that his intoxication level
was such as to cast a reasonable doubt and that he possessed the necessary
mental capacity to commit the crime and it is therefore incumbent on the
Prosecution to rebut the evidence beyond a reasonable doubt.
With reference to the relevant statutory provisions and case law consider if the above
ruling represents the correct legal position with regards to the burden and standard of
proof.
3. Consider the burden and standard of proof in the following situation:
Mazlina Mahali
Senior Lecturer
Faculty of Law, UiTM
September 2019
a. ABC Sdn Bhd is a property development company. Ah Chong, the managing
director of the company, colluding with the seller, bought on behalf of the
company a piece of land for development for RMlmillion ringgit when the
actual market value was only RM300,000. Ah Chong is alleged to have
received a 'kick back' in the amount of RM200,000 from the seller. ABC Sdn
Bhd has now commenced an action against Ah Chong claiming damages on
the grounds of fraud and criminal breach of trust. Ah Chong's defence is a
bare denial of the allegations.
b. Samy has commenced an action against Fred seeking a declaration that he is

the rightful owner of a piece of land in Damansara. In his claim he alleges that
Fred had forged his (Samy's) signature in the memorandum of transfer and
thereby procured the registration of the land in his (Fred's) name. Fred in his
defence denies Samy's allegations and asserts that the signature in the
Memorandum of Transfer is the genuine signature of Samy's.
4. Cool was charged for theft. At the close of the case for the prosecution, his counsel
submitted that there was no case to answer. The Magistrate called upon the defence.
Cool remain silent and did not offer any defence. The Magistrate acquitted the
accused, stating, "... from the evidence produced before the court, I find that it is not
strong enough to record a conviction although it is highly suspicious against the
accused. I accordingly acquit the accused." The prosecutor appealed. The issue
before the appellate court was whether the prosecution had successfully discharged
his duty at the end of his case.
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.
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.
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.
Mazlina Mahali
Senior Lecturer
Faculty of Law, UiTM
September 2019

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LAW578/591 – LAW OF EVIDENCE II

3. Consider the burden and standard of proof in the following situation:

b. Samy has commenced an action against Fred seeking a declaration that he is

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