On 20/05/2013,
you requested for the version in force on 20/05/2013
incorporating all amendments published on or before 20/05/2013.
The closest version currently available is that of 01/08/2012.
Burden of proof
103.
—(1) Whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
Illustration
(a)
A desires a court to give judgment that B shall be punished for a crime which A says B has committed.
A must prove that B has committed the crime.
(b)
A desires a court to give judgment that he is entitled to certain land in the possession of B by reason of facts which he asserts and which B denies to be true.
A must prove the existence of those facts.
104. 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.
Illustration
(a)
A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C, B’s father.
If no evidence were given on either side, B would be entitled to his possession.
Therefore the burden of proof is on A.
(b)
A sues B for money due on a bond.
The execution of the bond is admitted, but B says that it was obtained by fraud, which A denies.
If no evidence were given on either side, A would succeed as the bond is not disputed and the fraud is not proved.
Therefore the burden of proof is on B.
105. 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 that fact shall lie on any particular person.
Illustration
(a)
A prosecutes B for theft and wishes the court to believe that B admitted the theft to C. A must prove the admission.
(b)
B wishes the court to believe that at the time in question he was elsewhere. He must prove it.
106. The burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence.
Illustration
(a)
A wishes to prove a dying declaration by B. A must prove B’s death.
(b)
A wishes to prove by secondary evidence the contents of a lost document.
A must prove that the document has been lost.
107. 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 (Cap. 224), or within any special exception or proviso contained in any other part of the Penal Code, or in any law defining the offence, is upon him, and the court shall presume the absence of such circumstances.
Illustration
(a)
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.
(b)
A accused of murder alleges that by grave and sudden provocation he was deprived of the power of self-control.
The burden of proof is on A.
(c)
Section 325 of the Penal Code provides that whoever, except in the case provided for by section 335, voluntarily causes grievous hurt shall be subject to certain punishments.
A is charged with voluntarily causing grievous hurt under section 325.
The burden of proving the circumstances, bringing the case under section 335, lies on A.
108. When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
Illustration
(a)
When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.
(b)
A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him.
109. When the question is whether a man is alive or dead, and it is shown that he was alive within 30 years, the burden of proving that he is dead is on the person who affirms it.
110. When the question is whether a man is alive or dead, and it is proved that he has not been heard of for 7 years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it.
Burden of proof as to relationship in the cases of partners, landlord and tenant, principal and agent
111. When the question is whether persons are partners, landlord and tenant, or principal and agent, and it has been shown that they have been acting as such, the burden of proving that they do not stand, or have ceased to stand to each other in those relationships respectively, is on the person who affirms it.
112. When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.
113. Where there is a question as to the good faith of a transaction between parties, one of whom stands to the other in a position of active confidence, the burden of proving the good faith of the transaction is on the party who is in a position of active confidence.
Illustration
(a)
The good faith of a sale by a client to an attorney is in question in a suit brought by the client. The burden of proving the good faith of the transaction is on the attorney.
(b)
The good faith of a sale by a son just come of age to a father is in question in a suit brought by the son. The burden of proving the good faith of the transaction is on the father.
114. The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within 280 days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.
115. [Act 8/96]
116. The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case.
Illustration
The court may presume —
(a)
that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession;
(b)
that an accomplice is unworthy of credit and his evidence needs to be treated with caution;
(c)
that a bill of exchange accepted or endorsed was accepted or endorsed for good consideration;
(d)
that a thing or state of things which has been shown to be in existence within a period shorter than that within which such things or states of things usually cease to exist is still in existence;
(e)
that judicial and official acts have been regularly performed;
(f)
that the common course of business has been followed in particular cases;
(g)
that evidence which could be and is not produced would if produced be unfavourable to the person who withholds it;
(h)
that if a man refuses to answer a question which he is not compelled to answer by law, the answer if given would be unfavourable to him;
(i)
that when a document creating an obligation is in the hands of the obligor the obligation has been discharged.
But the court shall also have regard to such facts as the following in considering whether such maxims do or do not apply to the particular case before it:
as to illustration (a)—a shop-keeper has in his till a marked dollar soon after it was stolen and cannot account for its possession specifically but is continually receiving dollars in the course of his business:
as to illustration (b)— A, a person of the highest character is tried for causing a man’s death by an act of negligence in arranging certain machinery. B, a person of equally good character, who also took part in the arrangement, describes precisely what was done and admits and explains the common carelessness of A and himself:
as to illustration (b)—a crime is committed by several persons. A, B and C, 3 of the criminals, are captured on the spot and kept apart from each other. Each gives an account of the crime implicating D, and the accounts corroborate each other in such a manner as to render previous concert highly improbable:
as to illustration (c)— A, the drawer of a bill of exchange, was a man of business. B, the acceptor, was a young and ignorant person completely under A’s influence:
as to illustration (d)—it is proved that a river ran in a certain course 5 years ago, but it is known that there have been floods since that time which might change its course:
as to illustration (e)—a judicial act, the regularity of which is in question, was performed under exceptional circumstances:
as to illustration (f)—the question is whether a letter was received. It is shown to have posted, but the usual course of the post was interrupted by disturbances:
as to illustration (g)—a man refuses to produce a document which would bear on a contract of small importance on which he is sued, but which might also injure the feeling and reputation of his family:
as to illustration (h)—a man refuses to answer a question which he is not compelled by law to answer, but the answer to it might cause loss to him in matters unconnected with the matter in relation to which it is asked:
as to illustration (i)—a bond is in possession of the obligor, but the circumstances of the case are such that he may have stolen it.
116A.
—(1) Unless evidence sufficient to raise doubt about the presumption is adduced, where a device or process is one that, or is of a kind that, if properly used, ordinarily produces or accurately communicates an electronic record, the court shall presume that in producing or communicating that electronic record on the occasion in question, the device or process produced or accurately communicated the electronic record.
Illustration
A seeks to adduce evidence in the form of an electronic record or document produced by an electronic device or process. A proves that the electronic device or process in question is one that, or is of a kind that, if properly used, ordinarily produces that electronic record or document. This is a relevant fact for the court to presume that in producing the electronic record or document on the occasion in question, the electronic device or process produced the electronic record or document which A seeks to adduce.
(2) Unless evidence to the contrary is adduced, the court shall presume that any electronic record generated, recorded or stored is authentic if it is established that the electronic record was generated, recorded or stored in the usual and ordinary course of business by a person who was not a party to the proceedings on the occasion in question and who did not generate, record or store it under the control of the party seeking to introduce the electronic record.
Illustration
A seeks to adduce evidence against B in the form of an electronic record. The fact that the electronic record was generated, recorded or stored in the usual and ordinary course of business by C, a neutral third party, is a relevant fact for the court to presume that the electronic record is authentic.
(3) Unless evidence to the contrary is adduced, where an electronic record was generated, recorded or stored by a party who is adverse in interest to the party seeking to adduce the evidence, the court shall presume that the electronic record is authentic in relation to the authentication issues arising from the generation, recording or storage of that electronic record.
Illustration
A seeks to adduce evidence against B in the form of an electronic record. The fact that the electronic record was generated, recorded or stored by B, who opposes the relevance of the evidence, is a relevant fact for the court to presume that the electronic record is authentic.
(4) For the purposes of subsection (2), in criminal proceedings a party to the proceedings shall include —
(a)
the police officer or other officer of a law enforcement agency who was involved in the investigation of offences allegedly committed by the accused person; or
(b)
an accomplice of the accused person even though he is not charged with an offence in the same proceedings.
(5) The Minister may make regulations providing for a process by which a document may be recorded or stored through the use of an imaging system, including providing for the appointment of one or more persons or organisations to certify these systems and their use, and for any matters incidental thereto, and an “approved process” in subsection (6) means a process that has been approved in accordance with the provisions of such regulations.
(6) Where an electronic record was recorded or stored from a document produced pursuant to an approved process, the court shall presume, unless evidence to the contrary is adduced, that the electronic record accurately reproduces that document.
(7) The matters referred to in this section may be established by an affidavit given to the best of the deponent’s knowledge and belief.