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1) Introduction
- In criminal appeal, there are 90% of it will relates to the issue of prima facie.
- Burden and standard of proof includes prima facie.
- Definition of Prima facie
- Prima facie case: Of first appearance; on the face of it. Based on the 1st impression
(literal meaning for prima facie is on the face of it)
- A prima facie case is one in which the evidence in favour of a party is sufficient to
call for an answer from his opponent.
- Establish prima facie case: given enough evidence to justify hearing other side to give
his defence.
- Sarkar Volumn 1: prima facie is just a grounds for proceeding, it is not the same as
proof, it is not conclusive. (standard definition for prima facie)
- General Definition: Prima Facie: On the face of it, one party has given enough
evidence to justify the other party to answer the allegation against him. Is not the
same as proving and it is not conclusive. It is simply a grounds to proceeds to move
from one stage of trial to another stage. It is also not beyond reasonable doubt.
2) When?
- When does the issue of ‘prima facie’ arise?
- Ans: at the end of the prosecution’s case in a criminal trial.
- The terms refers to what the Prosecution must establish at the end of its case before
the Judge decides on whether the Accused has a case to answer and is called to enter
his defence. (refer to what must the prosecution establish before the judge will order
the accused to enter his defence and answer the charge)
- It is a technical terms used to describe how much evidence must the Prosecution
adduce before the defence can be called. (what must the PP must achieve before
defence be called)
- Once prosecution closed his case, at that point, the judge have to decide have the
prosecution establish a prima facie case. If yes, then will call the Accused to give
defence. If no, then he must acquit and discharge the accused. (usually, the defence
lawyer want it to end at the prima facie stage. So will attack the prosecution’s case so
that the judge concludes that there is no prima facie case.)
- The issue arises at the end of the Prosecution’s case
- Question: what is the correct test to determine if the Accused has a case to answer?
- Answer: When Prosecution achieve prima facie case.
- Prosecution’s case End of prosecution’s case, judge must decide if there is a prima
facie case. if yes, then is the time for Defence’s case. if got beyond reasonable
doubt, then verdict guilty.
a) Common law
- Not equated to beyond reasonable doubt
- On the face of it there is some evidence of all the elements of the crime which is not
inherently incredible.
- Minimum evaluation ( yes there is evidence but the court has not considered its
credibility and weight) (Common law are saying that the credibility and weight have
to do it at the end of the trial, not during the trial ie during the prima facie stage)
b) Malaysia
- Question: What must the Prosecution establish at the end of its case before the judge
decides on whether the Accused has a case to answer and is called to enter his
defence?
- Answer: A prima facie case
- Question: Where do you find the law?
- Note: the terms is not found in the EA 1950.
- The terms is found in CPC.
- In CPC:
Summary Trials : s.173 (f) and (h) CPC
High Court Trials: s.180 CPC
(in exam, if is a problematic question, need to discuss the issue of prima facie is
that the HC trials (s.180) or magistrate court or session court (s.173)
- Choo Han Teck, in his article ‘ Haw Tua Tau – The Aftermath (Have We No Case to
Answer)’
‘…with the approach in Haw Tua Tau v PP, if the accused remains silent when there
is some evidence against him (which does not amount to proof beyond reasonable
doubt) he will be acquitted after the court reconsiders the evidence…..With the
approach in Haw Tua Tau v PP, the defence may be called if there is some evidence
(but not enough to prove the prosecution’s case BRD) against the accused.
Nevertheless the accused may still be acquitted at the end of the trail even if he did
not give evidence himself…’
- The test in Haw Tua Tau requires a minimum evaluation of the evidence at the close
of the prosecution’s case to ensure that it is not inherently incredible.
- Lord Diplock
- Ragunathan (1982) FC
Condemn the old interpretation in previous cases. The judge forget the terminology
that used in out CPC. ‘case that warrant a conviction unrebutted’
Wrongly follow the privy council.
However, lower court follow the decision.
- A scrutiny of the reasoning of both Justice Mohd Azmi in Tan Boon Kean v PP and
Justice Edgar Joseph Jr in Arulpragasan will reveal that there is no difference in
substance between the two approaches. Both judges had agreed that what the
prosecution had to adduce at the end of its case was evidence that so strong, that in
the event the defence was in fact called but chose to remain silent, he would be
convicted.
- The difference, if any, between the two approaches is that while Justice Edgar Joseph
Jr employed the term ‘beyond reasonable doubt’ to indicate what the prosecution had
to adduce at the end of its case, Justice Mohd Azmi preferred the expression prima
facie.
- Miss Mages say she totally disagree with HTT. She agree with Edgar Joseph position
in Arulpragasan to the extent that is maximum evaluation, it must be a case that
capable of being proven beyond reasonable doubt. But to call it beyond reasonable
doubt at this point, meaning it already convicting the accused, which is wrong. She
agree with Mohd Azmi in Tan Boon Kean and Munusamy where it should be
hypothetical beyond reasonable doubt. Terminology is important.
- Balachandran v PP
Augustine Paul: even though an accused can be convicted on prima facie evidence, it
must have reached a standard which is capable of supporting a conviction
beyond reasonable doubt, which cannot, at that stage, be properly described as a
case that has been proved beyond reasonable doubt.
Proof beyond reasonable doubt involves two aspects: 1) the legal burden on the
prosecution to prove its case beyond reasonable doubt; and 2) the evidential burden
on the accused to raise a reasonable doubt. Both these burdens can only be fully
discharged at the end of the whole case when the defence has closed its case.
Thus, a case can only be said to be proved BRD at the conclusion of the trial
upon a consideration of all the evidence adduced.
However, where an accused has not given evidence and remained silent, there is no
necessity to re-evaluate the evidence in order to determine whether there is
reasonable doubt in the absence of any further evidence for such a consideration. The
prima facie evidence capable of supporting a conviction BRD will constitute proof
BRD.
Case law
- Balachandran v PP
Augustine Paul.
At the close of Prosecution’s case = prima facie = maximum evaluation
Evidence capable of sustaining a conviction = evidence capable of proving a case
beyond reasonable doubt but is not call as beyond reasonable doubt.
- Losali v PP
- Magendran Mohan v PP
Following the amendment, the current position of CPC, prima facie go back to what
is decided in Balakchandran and Looi Kow Chai.
Is maximum evaluation
Is a case that warrant a conviction if unrebutted
Is not HTT
The law is clear for now.