PRESUMPTIONS

Amirul Iman Bin Anuar LEB 090005

MEANING OF PRESUMPTION

The Concise Oxford Dictionary

of Law defines a presumption as

“a supposition that the law allows

or requires to be made”.

PURPOSE OF PRESUMPTIONS

Certain facts are presumed by law as a matter of

common sense or policy and the purpose of presumptions

is to determine who bears the burden of proof and

standard of proof to presume or to rebut such facts.

However, it should be noted that certain presumptions

are irrebuttable by law eg a child below 10 years old is

incapable of committing a crime (doli incapax)

Generally, the law does not allow a presumption to be

based on another presumption ie no double presumption.

EFFECT ON THE BURDEN AND STANDARD OF PROOF

The party who relies on the presumption has the legal burden to

prove that certain basic facts exist before such presumption may be

invoked.

Then the other party has the legal burden to rebut the presumption.

The standard of proof depends on whether the party is (PP v Yuvaraj

[1969]; Mohd Radhi bin Yaakob v PP [1991] ) –• In criminal cases: (i) the prosecution – beyond a reasonable doubt (ii) the accused – on a balance of probabilities• In civil cases: Plaintiff or defendant – on a balance of probabilities.

EFFECT ON THE BURDEN AND STANDARD OF PROOF

For example, to rely on the presumption of drug

trafficking, the prosecution has the legal burden to

prove beyond reasonable doubt that the accused

was found in possession of a specified weight of

the scheduled drug. The accused then has the

legal burden to rebut the presumption on a

balance of probabilities.

TYPES OF PRESUMPTIONS

Presumptions may be group into –

(i) Presumption of fact – s.4 (1) EA 1950;

(ii) Presumption of law – s.4 (2) EA 1950;

(iii) Irrebuttable presumption of law –

s.4(3) EA 1950.

PRESUMPTIONS GENERAL IN NATURE

S.114 EA 1950 – The court may presume the existence of any

fact which it thinks it 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.

The presumptions are given in Illustrations (a) – (i) which are

not exhaustive as held in PP v Krishna Rao A/L Gurumuthi.

The court shall also have regard to the facts given in (i) – (ix) in

relation to the illustrations.