SINGAPORE — The recently passed Environmental Public Health (Amendment) Bill has drawn some attention because it enacts what some are calling a “guilty until proven innocent” provision.

Specifically, the Bill, which was passed in Parliament in February, adds a new section to the Environmental Public Health Act 1987 that creates a rebuttable presumption that “killer litter” thrown from a high-rise flat is the fault of the flat’s owner or tenant.

However, it is not accurate to think of this as “guilty until proven innocent”. The prosecution still would need to prove the offence beyond reasonable doubt.

Understanding how this works requires unpacking the concept of a presumption.

BURDEN AND STANDARDS OF PROOF

Claims in law generally need to be proved. This is a matter of producing appropriate evidence from which a court can draw the conclusion that the claim is true.

There are two key concepts to bear in mind.

First, who is required to prove the claim? This is called the “Burden of Proof”. Generally, the party making the claim has to prove it.

In criminal law, the prosecution brings a charge against the accused person, so the prosecution bears the burden of proof. In civil law, the claimant brings a claim against the defendant (for example, for negligence) and therefore the claimant bears the burden of proof.

Beyond this overall burden of proof in a case, each specific fact alleged also has its own burden of proof. Generally, the party making the claim bears the burden of proving it.

For example, in a criminal case, although the prosecution bears the overall burden of proving the offence, if the accused person raises a specific fact in his defence (saying he was not present at the time of the offence, for example), then the burden of proving that specific fact is on him.

Second, the issue is then to what extent does the claim need to be proved? This is called the “standard of proof”.

There are two main standards of proof in legal proceedings: “Beyond reasonable doubt” and “on balance of probabilities”.

“Beyond reasonable doubt” means that the claim must be proved to the point where there can be no reasonable doubt that it is true.

This does not require that there be no doubt at all, since it is always possible to raise an unreasonable doubt (for example, claiming that an identical imposter committed the offence and not the accused). This is the standard generally used in criminal proceedings.

“On balance of probabilities” means that the claim is found to be more likely to be true than not. This is the standard generally used in civil proceedings.

PRESUMPTIONS

The effect of a rebuttable presumption is to reverse the burden of proof for a specific fact within a case, not the burden of proof for the case as a whole.

The Misuse of Drugs Act 1973 contains several presumptions. For example, under Section 17, any person caught in possession of a certain amount of controlled drugs (such as opium, cannabis or cocaine) may be presumed to be in possession for the purposes of trafficking those drugs.

Under Section 18, a person caught in possession of controlled drugs is presumed to have known the nature of those drugs.

The effect of these rebuttable presumptions is that the burden is on the accused to show that he was not trafficking those drugs, or that he did not know the nature of the drugs.

Generally, the accused need only prove this on the balance of probabilities.

The prosecution still bears the overall burden of proving the case and will have to prove the facts that give rise to the presumption.

For example, in a drug trafficking case, before the presumption of trafficking can arise, the prosecution must prove that the accused was in possession of the required amount of controlled drugs.

Similarly, in the case of the new “killer litter” presumptions, the effect is not to create a “guilty until proven innocent” regime.

The prosecution still needs to first prove that “killer litter” was really dropped from a specific flat and it must do so beyond reasonable doubt.

Only once this is done does the presumption kick in — the burden then shifts to the accused person to prove, likely on balance of probabilities, that either he was not present at the time of the offence, someone else committed the offence, or that he had provided the details of the suspected offender to the authorities.

PRESUMPTIONS AS POLICY

Presumptions are created as a matter of policy. They can be used where it would be unreasonable or unworkable to expect the normal rules of proof to apply. 

This general policy is expressed in Section 108 of the Evidence Act 1893, which puts the burden of proving facts within the special knowledge of a person on that particular person.

For example, illustration (b) to that section states, “A is charged with travelling on a railway without a ticket. The burden of proving that A had a ticket is on him or her.”

Here, it would be unreasonable to expect the prosecution to prove a negative.

Presumptions can also sometimes be used for convenience. For example, Section 114(1)(a) of the Evidence Act 1893 creates a presumption that a child born during the course of a valid marriage is the legitimate child of the husband.

Similarly, if a person has not been heard of for seven years by those who ought naturally to have heard from him, then he is presumed to be dead under Section 110 of the Evidence Act 1893.

One major presumption that must not be overlooked is the presumption of innocence.

This means that a person is presumed to be innocent until proven, beyond reasonable doubt before a court of law, to be guilty of a crime. This presumption applies automatically to all criminal proceedings.

Other presumptions that shift the burden of proof of one element of an offence do not contradict this principle, since the overall burden of proving the case still falls on the prosecution.

Only where a presumption effectively shifts the burden of proof for the entire case to the accused will there be a legal issue, which is not the case in relation to the killer litter provision under the Environmental Public Health Act.

The courts have said that no presumption should have the effect of forcing an accused person to prove his innocence.

ABOUT THE AUTHOR:

Alexander Woon is a lecturer at Singapore University of Social Sciences’ School of Law and is a lawyer at RHTLaw Asia. He was a deputy public prosecutor at the Attorney-General's Chambers.