THE BURDEN OF PROOF IN CRIMINAL JUSTICE1

• Citation: (1992) 4 SAcLJ 267
• Published date: 01 December 1992
• Date: 01 December 1992

1 The Sense of Proof Beyond Reasonable Doubt

Whatever is thought to be the purposes of criminal punishment, one fundamental principle seems to have evolved in the jurisprudence of the common law legal tradition; that, before an accused person can be convicted of a crime, his guilt must be proved beyond reasonable doubt. Perhaps the most eloquent statement of reason for this is to be found in the opinion of Brennan J in the United States Supreme Court decision in Re Winship:2

The accused during a criminal prosecution has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatised by the conviction … Moreover use of the reasonable doubt standard is indispensable to command the respect and confidence of the community. It is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned.

The first reason is drawn from the perspective of the accused person and is a moral one. Before the community may visit the severe consequences of a conviction on an accused person, its courts must be morally certain of his guilt. Absolute certainty is almost always impossible in the judicial fact-finding process. The standard which the common law tradition has developed is, however, one which requires the court to consider and reject all reasonable doubt or explanation before it convicts.3 It should, in Singapore, be added that the accused person stands to lose more than his liberty: he may be subjected to corporal punishment and, in a significant number of prosecutions, he may lose his life.4 In the language of rights, it

may be said that the accused person has the right not to be convicted unless his guilt has been demonstrated beyond reasonable doubt.

The second reason emphasises the interest of the community in maintaining the reasonable doubt standard. The criminal law exists to protect the members of the community from activity which injures them without justifiable cause in some way or other. If conviction and punishment follow from evidence which leaves a reasonable doubt as to guilt, there is a reasonable possibility that an innocent man is being punished. If this possibility turns out to be true, as it will in a significant number of cases if conviction is possible notwithstanding reasonable doubt, the criminal law is self-defeating. The courts, police force and prison officials will be no different from any other criminal who injure the members of the community, except that these institutions are far more powerful than the average criminal. The criminal law will do the very thing it sets out to prevent. Right thinking members of this community would then, justifiably, withdraw their trust and confidence in the criminal law. Their peace of mind in the assurance that only the guilty will be punished, and not the innocent, will be destroyed. The moral force of the criminal law will be undermined.

It is for these two compelling reasons that the law of criminal evidence has placed particular importance in the need to protect the innocent from conviction.5 We see it operating prominently at the stage of admissibility of evidence: elaborate rules are designed to exclude potentially unreliable evidence and evidence which might give rise to a high level of prejudice. We see it finally at the stage of evaluation of evidence where all reasonable doubt and explanation must be rejected before a finding of guilt.6

The existence of the principle of proof beyond reasonable doubt is unchallenged in the common law world. In the English common law, it was elegantly affirmed by the House of Lords in the celebrated judgement of Viscount Sankey in DPP v. Woolmington.7 The United States Supreme

Court in Re Winship8 has held that the reasonable doubt rule has constitutional force under the Due Process provisions of the United States Constitution. The Supreme Court of Canada in R v. Oakes9 has decided that it is embodied in the protection of the presumption of innocence under the Charter of Rights and Freedoms. The Court of Appeal of Hong Kong came to a similar decision under their recently enacted Bill of Rights in The Queen v. Sin Yau-Ming.10 Provisions protecting the presumption of innocence is found, outside the common law world, in Article 6(2) of the European Convention on Human Rights and Article 11(1) of the Universal Declaration of Human Rights.

Although, in Singapore and Malaysia, the law of evidence is governed principally by the Evidence Act,11 the principle of proof beyond reasonable doubt seems to apply with equal force. S. 103 illustration (a) makes it clear that the prosecution must prove that the accused committed the crime for which he is charged. In an appeal from the Federal Court of Malaysia in PP v. Yuvaraj,12 Lord Diplock ruled that “prove” in this provision of the evidence Act must mean proof beyond all reasonable doubt. This was felt to be “historic” and “fundamental to the administration of the justice under the common law” and was not altered by the Evidence Act. Lord Diplock went further in Ong Ah Chuan v. PP,13 an appeal from the Court of Criminal Appeal of Singapore, to hold that the principle is a fundamental rule of natural justice constitutionally protected in Singapore by Article 9 and Article 1214:

One of the fundamental rules of natural justice in the field of criminal law is that a person should not be punished for an offence unless it has

been established to the satisfaction of an independent and unbiased tribunal that he committed it. This involves the tribunal’s being satisfied that all the physical and mental elements of the offence with which he is charged…were present on the part of the accused.

2 Examining the Exceptions: a Constitutional Dimension and an Exercise in Statutory Interpretation

One may be tempted to conclude that, with its impressive legal pedigree and supported by such rhetoric, the principle of proof beyond reasonable doubt is alive and well and little more need be said of it. Unfortunately, this is not so and the principle has been severely eroded and is in danger of being crippled beyond recognition by what may sometimes appear to be a concerted action of both the Legislature and the Judiciary. The makers and interpreters of our law seem bent on the creation of exceptions to the principle of proof beyond reasonable doubt for a host of insubstantial and unsubstantiated reasons. Exceptions, we are led to believe, are to be found in no less than five situations: when the accused wishes to rely on a proviso or exception in the Penal Code, when he relies on a proviso or exception in any law defining an offence, when a fact is especially within the knowledge of the accused, when the accused wishes to raise an alibi and when there is a statutory presumption. This is not to say that all our judges have been insensitive to this unsavoury trend. Indeed pockets of judicial rebellion are the only silver lining to this very dark cloud.

2.1 A Constitutional Dimension

The rationale for each of these exceptions will, in the course of this discussion, be scrutinised in some detail. It is nevertheless useful to make a prognosis, as it were, of any attempt to justify a compromise to the principle of proof beyond reasonable doubt. If any justification is to be convincing in the least, it must be clearly demonstrated that such a compromise is necessitated by a public interest which is sufficient to override the very strong and historic public interest in the protection of the innocent from conviction. This kind of analysis holds not merely a jurisprudential interest. We have seen that the cumulative effect of Ong Ah Chuan and Yuvaraj is that the principle of proof beyond reasonable doubt, or its proxy, the presumption of innocence, is constitutionally protected in Singapore and Malaysia. However, as with most fundamental liberties, it may theoretically be overtaken if a clearly demonstrated public interest of surpassing importance is at stake. Thus the jurisprudential enquiry dovetails with constitutional scrutiny. The constitutional dimension to the principle of proof beyond reasonable doubt is no stranger to courts within and without the common law world. Judicial review of exceptions to the principle of proof beyond reasonable doubt occurred in

Ong Ah Chuan, and is most clearly seen in pronouncements of the Canadian Supreme Court interpreting their Charter of Rights and Freedoms, and more recently of The European Court of Human Rights under the European Convention on Human Rights.15

2.2 An Exercise in Statutory Interpretation

This discussion has another level which is logically prior to the constitutional question. This is the stage of statutory interpretation. Ought a particular statutory provision be interpreted so as to create an exception to the principle of proof beyond reasonable doubt? First, there are those provisions which are comparatively more recent. These normally expressly place the burden of proof of particular facts on the accused person upon proof of other facts. Here it is crucial to bear in mind the principle of strict construction against derogation from an important constitutional right or value.16 Although it is perhaps of more significance in England where there is no enforceable Bill of Rights, it does have the purpose in Singapore of allowing the judiciary to prevent the violation of fundamental liberties without having to expressly strike a statute down. This has obvious political advantages. There is, secondly, the provisions of the Evidence Act. The same principle of strict construction applies with full force. But there is one other consideration. The Evidence Act is a statutory provision of some antiquity17 drafted as a comprehensive Code, or nearly so.18 This means that it has to be treated with some degree of sensitivity...