Journal of Islamic Law Review, Vol. 7, No. 1, June 2011, pp.

1-35
* Dean and Professor, Ahmad Ibrahim Kulliyyah of Laws, International Islamic
University Malaysia.
E-mail: akram@iiu.edu.my.
The writer acknowledges with
humility in benefiting immensely from the scholarly comments, criticism and
improvements on the part of the article on circumstantial evidence under Islamic
law to my colleague Dr. Zulfakar Ramlee from the same faculty.
QUANTUM OF PROOF WHEN CASE FOR THE
PROSECUTION
DEPENDS SUBSTANTIALLY OR WHOLLY ON
CIRCUMSTANTIAL EVIDENCE: IRRESISTIBLE
CONCLUSION
TEST OR REASONABLE BEYOND A DOUBT TEST?
Mohd. Akram bin Shair Mohamed
There seems to be apparent judicial conflict as to the quantum of
evidence required when the case for the prosecution is based wholly or
substantially on circumstantial evidence. The traditional preponderant
view is that to succeed, the prosecution must show that the
circumstantial evidence must be irresistibly consistent with the guilt of
the accused and inconsistent with his innocence the so called
irresistible conclusion test. The other view is that the usual test applies
in a criminal case i.e. that the prosecution must prove his case beyond
a reasonable doubt suffices. This apparent difference of judicial views
is seen in Malaysia, Australia, New Zealand and India, all countries
whose legal systems, rooted in history, is based on the common law
adversarial system. The paper addresses this conflict, with a view to
suggesting how such a conflict can be resolved. Some insights from the
Islamic law position on circumstantial evidence are also examined with
a view to resolving the lingering conflict of opinions among the common
law jurisdictions.
INTRODUCTION
One of the predominant methods of settling dispute is by litigation.
Here, lawyers for the disputants will present a variety of evidence
before a trial judge to persuade him to give a decision in his favour.
To prove their allegations the party alleging has to prove them by
evidence and according to a certain standard of proof. This depends
whether the allegations are criminal or civil. If the allegation is that
the defendant has committed a crime, then the prosecution bears a
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Mohd. Akram bin Shair Mohamed
high burden of proof to succeed. It must prove its case beyond a
reasonable doubt. On the other hand, in a civil case for example,
where one party alleges a breach of contract or negligence against
the alleged wrongdoer, the plaintiff or claimant must prove his
allegations on a balance of probabilities to succeed.
In criminal prosecution, there are instances where the case may
depend substantially or wholly on circumstantial evidence. In this
kind of circumstances, the judge is usually at a dilemma either to
adopt the irresistible conclusion test or beyond reasonable doubt test.
Different common law jurisdictions have handed down various
judgments on this issue, and this has generated a plethora of judicial
views. This paper examines the nature of circumstantial evidence in
line with some relevant
locus classici
as well as the quantum of
evidence required to succeed where the prosecutions case depends
wholly or substantially on circumstantial evidence. The traditional
view favours the position where the prosecution must prove that the
circumstances are conclusive enough to leave the court with a moral
certainty and such evidence must be consistent with the defendants
guilt and inconsistent with his innocence. This traditional view is
known as the irresistible conclusion test. However, along the line,
certain judicial trends emerged which favour the quantum of proof
required for direct evidence and they sought to extend the rule to
cases which are either wholly or substantially dependent on
circumstantial evidence. Consequently, the quantum of proof of
beyond reasonable doubt was adopted in such cases; hence, the
beyond reasonable doubt test.
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These conflicting judicial views are examined in the light of
judicial practices in a number of countries whose legal systems are
rooted in the common law adversarial system such as Malaysia,
India, Australia, and New Zealand. Of course, the Islamic law
position on the quantum of proof required in criminal cases when
the prosecution case is wholly or substantially premised on
circumstantial evidence is examined with a view to suggesting how
the conflict of judicial opinions and practices with regard to
circumstantial evidence can be better resolved. This unsettling
paradox in the use of circumstantial evidence in criminal trials and
the quantum of proof required by the prosecution is closely
examined in this paper.
Quantum of Proof when Case for the Prosecution Depends...
/3
THE NATURE OF CIRCUMSTANTIAL EVIDENCE
An Insight into Circumstantial Evidence
In both criminal and civil cases the prosecutor or the plaintiff
respectively must prove his case according to the requisite standards
of proof by evidence. The evidence may consist of direct evidence,
i.e. evidence of witness who has perceived the facts that form the
subject matter of the dispute, given on oath or affirmation in open
court; documentary evidence, produced for the inspection of the court;
real evidence, such as material objects produced for inspection in
order that the court may draw an inference from its own observation
as to the existence, condition or value of the object in question. Other
examples of real evidence include the physical appearance of persons
and animals, demeanour of witness, intonation of voices on tape
recording, views, inspections out of court of the
locus in quo
or some
object which it is impossible or highly inconvenient to bring to court,
or even out of court demonstration or re-enactments of acts or events
into which the court is enquiring.
2
Another type of evidence,
particularly important in criminal cases is circumstantial evidence.
Its nature is best explained by contrasting it with direct evidence
3
.
Direct evidence is evidence which requires no mental reasoning by
the court to draw the conclusion sought by the prosecutor tendering
evidence, other than the acceptance itself.
4
Circumstantial Evidence is the evidence from which the desired
conclusion may be drawn, but which requires the court not only to
accept the evidence presented but also to draw a conclusion from it
5
.
If D is charged with the robbery of a bank and is seen by W, running
from the bank clutching a wad of banknotes, Ws evidence is direct
evidence that D was running away from the bank, and circumstantial
evidence that D committed the robbery. To come to the latter
conclusion, the court must draw certain inferences from the facts
perceived by W.
In
R v. Taylor, Weaver and Donovan
6
, it was observed that: It is
no derogation of evidence to say that it is circumstantial. Its value
lie in its potential for proving a variety of relevant facts all of which
point to the same conclusion as when it is sought to establish that an
accused committed murder by evidence of his preparation, motive
or opportunity for its commission, together with the discovery of the
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Mohd. Akram bin Shair Mohamed
murder weapon, capable of having caused the injuries sustained by
the victim, buried in the accuseds backyard and bearing his finger-
prints. Circumstantial evidence, it has been said, works by
cumulatively in geometric progression, eliminating other
possibilities
7
. It has been likened to a rope comprised of several
cords: One strand of the cord might be insufficient to sustain the
weight, but three stranded together may be quite of sufficient strength.
Thus, it may be in circumstantial evidence one may have a
combination of circumstances, no one of which would raise a
reasonable conviction, or more than a mere suspicion
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; but the whole
taken together, may create a strong conclusion of guilt, that is, with
as much certainty as human affairs can require or admit of
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. The
legend has been that [although] circumstantial evidence may
sometimes be conclusive, but it must always be narrowly examined,
if only because evidence of this kind may be fabricated to cast
suspicion on another.... It is also necessary before drawing the
inference of the accuseds guilt from circumstantial evidence to be
sure that there are no other co-existing circumstances which would
weaken or destroy the inference
10
. This principle is encapsulated in
a direction given to the jury by Alderso B. in the legendary case of
Reg v. Hodge
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. The accused was charged with murder. Alderson B.
told the jury that the case was made up of circumstantial entirely
that where the case against the defendant consists of circumstantial
evidence, the jury must be satisfied that Not only that the
circumstances were consistent with the defendant having committed
the act, but they must also be satisfied that the facts were such as to
be inconsistent with any other rational conclusion than that the
defendant was the guilty person. The implication of this direction is
that the jury must be totally convinced by the circumstantial evidence
presented by the prosecution that the accused person, and no other
person, committed the crime. The inference of the judge or jury is
important in this regard to ascertain whether a conviction can be made
solely on such evidence of facts.
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