What is factum probandum and example of it?

In a criminal case the ultimate proposition to be proved, thefactum probandum, is the guilt of the accused. Where the case is one depending upon circumstantial evidence, the factum probandum is established as a matter of inference from the proved facts, the facta probantia. But a factum probans may itself be a proposition to be proved by way of inference from other facts.

In considering whether the factum probandumhas been established in a criminal case depending upon circumstantial evidence, the trier of fact must decide two questions:

• whether the inference of guilt can on the proved facts logically be drawn; and
• whether guilt has been proved beyond a reasonable doubt.

The latter requirement does not necessarily mean that every factor bearing on the question of guilt must be treated as if it were a separate issue to which the test of reasonable doubt must be distinctly applied.

In order to apply the second rule, the trier of fact must consider what other possible inferences can be drawn from the proved facts. If any of them is a reasonable inference, then the inference sought to be drawn cannot validly be drawn.

This does not mean, as has sometimes been suggested, that the trier of fact is entitled to speculate as to the possible existence of facts which, together with the proved facts, would justify a conclusion that the accused may be innocent.

Maintain a reasoned but firm warning against improper speculation and guidance as to how a court must deal with a situation where the circumstances called for an explanation from an accused person and the explanation is not satisfactory.