Dalam kes Letchumanan Chettiar Alagappan @ L Allagappan (as executor to SL Alameloo Achi alias Sona Lena Alamelo Acho, deceased) & Anor (supra) misalnya, Jeffrey Tan FCJ yang menyampaikan keputusan Mahkamah Persekutuan telah memutuskan bahawa – “[49] The expression ‘onus of proof’ does not appear in the Evidence Act. Only the expression ‘burden of proof’ appears in ss 101-103 of the Evidence Act. But there is a difference between the sense of the expression ‘burden of proof’ in s 101 and the sense of that same expression in s 102. [50] In International Times & Ors v Leong Ho Yuen [1980] 2 MLJ 86, Salleh Abas FCJ (as he then was), delivering the judgment of the court, said that the first sense of the expression ‘burden of proof’ in s 101 is the burden to establish the case which rests throughout on the party who asserts the affirmative of the issue, while the second sense of the expression ‘burden of proof’ in s 102 is the burden to adduce evidence: For the purpose of this appeal it is necessary to bear in mind the distinction between the two senses in which the expressions burden of proof and onus of proof are used (Nanji & Co v Jatashankar Dossa & Ors AIR 1961 SC 1474 1748 and Raghavamma v Chenchamma AIR 1964 SC 136-143). The first sense, signified by the expression burden of proof such as referred to in s 101 of the Evidence Act is the burden of establishing a case and this rests throughout the trial on the party who asserts the affirmative of the issue. The appellants in the present appeal relied on justification and fair comment. Therefore, the burden of proving these defences rests entirely upon them (Gatley on Libel and Slander 7th Ed, paras 351 and 354). The second sense referred to as onus of proof, on the other hand, relates to the responsibility of adducing evidence in order to discharge the burden S/N OQNv3keyUanvi7R32rA of proof. The onus as opposed to burden is not stable and constantly shifts during the trial from one side to the other according to the scale of evidence and other preponderates. Such shifting is one continuous process in the evaluation of evidence. According to ss 102 and 103 of the Evidence Act, if the party with whom this onus lies whether initially or subsequently as a result of its shifting does not give any or further evidence or gives evidence which is not sufficient, such party must fail. It is this onus that we are concerned with in the present appeal. [51] ‘There is an essential distinction between burden of proof and onus of proof, burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts’ (Addagada Raghavamma And Anr v Addagada Chenchamma And Anr 1964 SCR (2) 933). [52] The ‘burden of proof’ in s 101 is the burden to establish a case which rests throughout on the party who asserts the affirmative of the issue. The ‘burden of proof’ in s 102 is the burden to adduce evidence, to make out or rebut the claim. The ‘burden of proof’ in s 102 shifts from one side to the other according to the weight of the evidence. To differentiate the sense used, the ‘burden of proof’ in s 101 is ‘burden of proof’, while the ‘burden of proof’ in ss 102 and 103 is dubbed ‘onus of proof’. In some jurisdictions, the s 101 ‘burden of proof’ is labelled ‘legal burden’ while the s 102 burden of proof’ is referred to as ‘evidential burden’. [53] In Ranchhodbhai Somabhai And Anr v Babubhai Bhailalbhai And Ors AIR 1982 Guj 308, P Desai and S Majmudar thus illustrated the ‘burden of proof’ to establish the case which never shifts and the shifting burden to adduce evidence in the context of ss 101 and 102 of the Indian Evidence Act which are identical to ss 101 and 102 of the Evidence Act: S/N OQNv3keyUanvi7R32rA It is also well to bear in mind that there is an essential distinction between ‘burden of proof’ and ‘onus of proof’; burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence (see Raghavamma v Chenchamma AIR 1964 SC 136). Burden of proof has two distinct meanings, namely, (i) the burden of proof as a matter of law and pleadings, and (ii) the burden of proof as a matter of adducing evidence. Section 101 of the Evidence Act deals with the former and Section 102 of the Evidence Act with the latter. The first remains constant but the second shifts. In a claim application, therefore, the burden of proof, in the first sense, certainly lies on the claimant. If he examines himself and his witness, if any, and if the evidence, tested in the light of the principles set out above, is found to be acceptable, the onus shifts on the tortfeasor to prove those circumstances, if any, which dislodge the assertions of the claimants. If the tortfeasor fails to prove before the Court any fact or circumstance which tends to affect the evidence led by the claimant, the claimant would be entitled to ask the Court to hold that he has established the case and, on that basis, to make a just award it would thus appear, that though the legal burden — the burden as a matter of law and pleadings — remains constant on the claimant, the burden as a matter of adducing evidence changes often times as the trial of the claim petition progresses. [54] Section 101(1) provides that ‘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’. ‘Section 101 states that the initial burden of proving a prima facie case in his favour is cast on the plaintiff …’ (Woodroffe and Amir Ali, Law of Evidence (19th Ed Vol 3) at p 3194). Illustration (b) to s 101 puts it beyond doubt that the ‘burden of proof’ rests throughout on the plaintiff. Section 102 provides that ‘The burden of proof in a suit or proceeding lies on that S/N OQNv3keyUanvi7R32rA person who would fail if no evidence at all were given on either side’. ‘The initial onus of proving the case is always on the plaintiff’ (Sarkar Law of Evidence 16th Ed at p 1593). Illustration (a) to s 102 puts it beyond doubt that a plaintiff has the initial onus of proof. [55] But ‘when (the plaintiff) gives such evidence as will support a prima facie case, the onus shifts on to the defendant, to adduce rebutting evidence to meet the case made out by the plaintiff. As the case continues to develop, the onus may shift back again to the plaintiff. It is not easy to decide at what particular stage, in the course of the evidence, the onus shifts from one side to the other. When after the entire evidence has been adduced, the tribunal feels it cannot make up its mind as to which of the versions is true, it will hold that the party on whom the burden lies has not discharged the burden, but if it has, on the evidence, no difficulty arriving at a definite conclusion, then the burden of proof on the pleading recedes into the background’ (Woodroffe and Amir Ali, at p 3194; see also Abrath v The North Eastern Railway Company at p 452). ‘… the onus of proof may shift … but the question must ultimately arise whether the person who is bound to prove the affirmative of the issue … has discharged … that burden’ (Jane Wakelin v The London and South Western Railway Company (1886) 12 App Cas 41 per Lord Halsbury LC) or proved ‘his case sufficiently to justify a judgment in his favour’ (Stoney v Eastbourne Rural District Council [1927] 1 Ch 367 at p 397 per Lord Hanworth MR). [56] Thus, a plaintiff has both the burden of proof as well as the initial onus of proof. In Britestone Pte Ltd v Smith & Associates Far East, Ltd [2007] 4 SLR 855, the Singapore Court of Appeal per VK Rajah JCA, delivering the judgment of the court, explained that at the start of the plaintiff’s case the burden of proof and the onus of proof coincide: … at the start of the plaintiff’s case, the legal burden of proving the existence of any relevant fact that the plaintiff must prove and the S/N OQNv3keyUanvi7R32rA evidential burden of some (not inherently incredible) evidence of the existence of such fact coincide. Upon adduction of that evidence, the evidential burden shifts to the defendant, as the case may be, to adduce some evidence in rebuttal. If no evidence in rebuttal is adduced, the court may conclude from the evidence of the defendant. If, on the other hand, evidence in rebuttal is adduced, the evidential burden shifts back to the plaintiff. If, ultimately, the evidential burden comes to rest on the defendant, the legal burden of proof of the relevant fact would have been discharged by the plaintiff. The legal burden of proof — a permanent and enduring burden — does not shift. A party who has the legal burden of proof on any issue must discharge it throughout. Sometimes, the legal burden is spoken of, inaccurately, as ‘shifting’; but what is truly meant is that another issue has been engaged, on which the opposite party hears the legal burden of proof. [57] The rule is that ‘the onus of proof of any particular fact lies on the party who alleges it, not on him who denies it; et incumbit probation qui decit, non qui negat, Actori incibit probation … The plaintiff is bound in the first instance, to show a prima facie case, and if he leaves it imperfect, the court will not assist him. Hence the maxim Potior est condition defendantis. A plaintiff cannot obviously advantage himself by the weakness of the defence. A plaintiff’s case must stand or fall upon the evidence adduced by him. When, however, the defendant, or either litigant party, instead of denying what is alleged against him, relies on some new matter which, if true, is an answer to it, the burden of proof changes sides; and he, in his turn, is bound to show a prima facie case at least and, if he leaves it imperfect, the court will not assist him. Reus excipendo fit actor’ (Woodroffe and Amir Ali, Vol 3 at pp 3190-3191).”. [Penekanan ditambah]