Presentation Transcript

1. RECAP We have looked at the types of evidence as well as the rules governing such evidence Concept of admissibility Evidence= Judge=Decision: the concept of admissibility is wide governing means by which evidence adduced by a party may be accepted by the judge in deciding the fact in issue. The rules illustrate whether a particular piece of evidence may be used to make a fact requiring proof more or less probable. Admissibility is affected by (1) Relevance (2) weight (3) Prejudicial effect (4) Unfairness and (5) exclusionary rules of evidence.

2. The burden of proof

3. BURDEN OF PROOF: AN INTRODUCTION The topic considers who must prove the fact in issue How does the one that has the burden of proof win the case i.e. To what standard must they prove What is the role of the other party i.e. The party that does not bear the legal burden of proof: distinguishing between a legal and evidential burden of proof
4. Burden of proof When one talks about the burden of proof, they may be referring to either one of these two i.e. Legal burden of proof: this is also known as the persuasive burden. This is the burden that must be discharged by the party bearing it to the required standard for them to win their case. It is the burden of proving the existence or none existence of a fact in issue. Evidential burden of proof: this is the burden of merely putting an issue forward for the judge to consider the issue. It is termed by Wigmore to be the burden of ‘going forward’.
5. Evidential and legal burden examples Murder: Legal burden, rests on the prosecution. They must prove the fact in issue (killing of a person in being with malice aforethought) beyond a reasonable doubt (being the standard in criminal cases) to win their case Evidential burden this will rest on both the prosecution and accused person. For instance the defence of provocation. An accused person need only provide some evidence to push the issue of provocation forward, once this burden is satisfied then the issue will be put across. The prosecution must still prove beyond a reasonable doubt that X killed Y.
6. Evidential and Legal burden distinguishing Lord Delvin in Hill v Baxter: Refers to the legal burden as the heavier burden and the evidential burden as the lighter version. Thayer: the legal burden once discharged will mean that the party bearing it has one their case. The evidential burden proves nothing as stated by Lord Ackner in R v Hunt. Legal burden must be proved to win your case, evidential burden merely puts an issue forward. Legal burden will rest on one party from beginning to end (e.g. Criminal cases on prosecution in most instances) whilst evidential burden may rest on both parties.
7. Does the burden of proof shift The court stated in DPP v Morgan that the burden of proof does not shift. It is decided on whom it rests at the beginning and is discharged at the end. When people talk of the burden shifting they are merely referring to a tactical burden. Where one party may be required to provide some evidence to tip the scale or rather balance in their favour. For example where one is found with stolen goods, they are to give an explanation as to how they came to be in possession of those goods. This is merely a tactical burden, in the absence of any explanation the judge may decide in favour of the prosecution. They will thus have to provide an explanation to tip the balance in their favour. See Chisha v The people 1968 See also Mwelwa Murono v The people, the court stated: ‘In criminal cases, the rule is that the legal burden of proving every element of the offence charged, and consequently the guilt of the accused, lies from beginning to end, on the prosecution. The standard of proof is high. The case must be proved beyond all reasonable doubt. The accused bears the burden of adducing evidence in support of any defence that would be open to him when he is put on this defence after he has been found with a case to answer.’
8. Legal Burden of proof: Civil cases The general rule is he who asserts must prove The legal burden of proof in civil cases will lie on the party that alleges, it matters not that their are stating this in the positive or negative, if you want the court to find for you on a given proposition or issue, you must provide evidence to the required standard. See Soward v Legatt: ‘We should consider what is the substantive fact to be made out, and on whom it lies to make it out. It is not so much the form of the issue which ought to be considered, as the substance and effect on it.’
9. Legal Burden Civil cases: examples Negligence: they must show on the balance of probability Duty Breach Causation Damages Contributory negligence: the other party will now be claiming that the plaintiff was also negligent they must prove the above four elements Frustration: it is the party claiming breach as opposed to frustration that must prove that the contract was breached. Krell v Henry see also Joseph Constantine Stempship Line Ltd v Imperial Smelting Corp Undue influence: It is the party claiming that they entered the contract as a result of duress although in cases of presumed undue influence, the party merely needs to provide some evidence to raise the presumption, then the burden (legal) lies on the party to illustrate that the plaintiff freely entered into the contract see Royal bank of Scotland v Etridge. Constitutional rights: Kachasu case Divorce: C and C v H
10. Criminal Cases: Legal Burden In criminal cases the legal burden will as a general rule rest on the prosecution. This flows from the constitutional guarantee (art 18(2)that states that every person is presumed innocent until proven guilty. The presumption of innocence determines that the burden of proof rests on the prosecution. Exceptions: Woolmington v Dpp: Lord Sankey the golden thred
11. Lord Sankey: Woolmington v DPP Woolmington v DPP: the accused was charged with murder of his wife by shooting, he claimed accident, at first instance the judge had ruled that after the crown or prosecution had proved actusreus, it was left to the defence to prove lack of malice aforethought. This was overruled and Lord Sankey noted: ‘through out the web of English criminal law one golden thread is always to be seen that is it is for the prosecution to prove the prisoners guilt. Subject to this he noted was the common law defences of insanity, statutory exceptions.’ This case identifies two exceptions to the rule that the legal burden of proof will rest on the prosecution being: The defence of insanity Statutory exceptions
12. Insanity S12 of the Penal code outlines that every person is presumed to be sane, the presumption of sanity determines that the burden of proof in proving the same on a balance of probability rests on the defendant. Case law Whenever a person seeks to rely on the M’Naghten rules the burden of proof will rest on them. Bratty v Attorney-General for Northern Ireland In this case the accused was charged with murder of a young girl, he sought to rely on a defence of some psychomotor epilepsy. His defences included one of insanity and one of non-insane automatism. There was no evidence adduced to prove the latter only the psychomotor epilepsy intended to establish insanity. The legal burden laying on him, he failed to discharge it. See also JOSEPH MUTABA TOBO v THE PEOPLE (1991) S.J. (S.C.): here it was held that there was sufficient evidence to prove insanity at the time of the offence, the accused was found not guilty by reason of insanity See also KhupeKafunda v The People: in this case the court emphasised that where one raises a defence of insanity, the burden to prove the same on a balance of probabilities lies on them. Katundu v The People: intoxicated offenders The accused attempted to rely on s14(1) of the Penal Code as a defence to a charge of rape. The court held that where the case relied on is insanity, including insanity by intoxication, it is true that the onus is on the accused person to show on the balance of probabilities that at the time he committed the offence he: suffering from a disease affecting his mind which rendered him incapable of understanding what he was doing or alternatively of knowing that he ought not to do it (s13 of the Penal Code)
13. Statutory exceptions Lord Sankey merely stated statutory exceptions however this has been expanded by later authourities to mean: Express Statutory exceptions and Implied Statutory exceptions
14. Express Statutory exceptions A statute may expressly impose the burden of proof on the defendant see for example: ATTORNEY GENERAL v LYAMPALI & LISO In this case the responds left the car they were driving in and proceeded to assault political opponents who were gathered at a meeting. They were charged with possession of offensive weapons. The statute stated ‘any person who without lawful authority or reasonable excuse, the proof whereof shall lie upon him, has with him in any public place an offensive weapon shall be guilty of a misdemeanour.’ To prove a contravention of section 72A (1) of the penal code it was necessary for the prosecution to establish, They had with them offensive weapons In a public place The onus of proving the above lay on the prosecution but after this was proved, the burden of proving that they had lawful authority or reasonable excuse for having these offensive weapons with them at the time and place lay on the respondents. It was held that the respondents in this case failed to prove on a balance of probabilities any of the requirements under the act.
15. Express statutory exceptions Patel v The people 1969 132 In the case before me there is an express statutory reversal of the burden of proof in that section 4 (2) of the Exchange Control Act provides as follows: "Any person charged with any act or omission which is an offence under this Act if the act is done or omitted to be done without permit, exemption, permission or other authorisation, shall be presumed unless and until the contrary is proved by the accuse person to have done or to have omitted to do such act without such permit, exemption, permission or other authorisation as the case may be, when he performed or omitted to perform the act in question". See also the customs and excise act no 2 of 2008. ‘Where an entry is made on the basis of an advance tariff ruling issued by the Commissioner-General under this Act, and a question arises concerning the tariff classification of the goods, the burden of proof shall be on the person claiming that the advance tariff ruling was made by the Commissioner-General.’ See also : THE PEOPLE V ROSS MORE ERNEST AND HASSEL SHAMALINE (2008)
16. Implied statutory exceptions A statute may impliedly impose the burden of proof on the accused person. Where for example one seeks to rely on a proviso or an exception specified in the statute, they must prove on a balance of probability that they fit that exception or proviso. See R v Edwards D was charged with selling alcohol without a license under s160 of the licensing Act of 1964. The prosecution did not call evidence that the appellant did not hold a licence leaving the appellant to show that he did in fact posses one. The conviction was upheld and two issues were brought the relevant issue being: The scope of the principle of the MCA 1980, and whether it only applied to a turner situation i.e. if the knowledge was peculiar to D or did it apply outside that situation i.e. when ever D seeks to rely on an exception, exemption, proviso, qualification or excuse. It was held that in that case though the information was not peculiar to the knowledge of D as the police could easily check the records to see if D had a license, the burden nevertheless rested on D as the reverse onus only apply outside the turner situation. Lawton LJ stated that it would depend on the linguistic structure of the statute ‘whenever the prosecution seeks to rely on this exception (of reversing the burden) the court must construe the true construction of the statute. If the statute prohibits the doing of acts save subject to proviso, exemptions and the like then the prosecution can rely on the exception.
17. Civil Cases Evidential burden Who ever bears a legal burden will also bear an evidential burden of proof. Whenever the defendant raises a defence they must provide evidence to put it across e.g. Illegality, misrepresentation, undue influence etc.
18. Criminal cases Prosecution bears an evidential burden at the beginning to provide sufficient evidence to put the accused on a case to answer. An evidential burden is borne by the defence at the close of the prosecution’s case, to put forward some evidence to raise doubt in the minds of the jury. An evidential burden will fall on the accused where the legal burden of proof is reversed, in cases where the accused is seeking to rely on the common law defence of insanity or where there is an express or implied statutory reversal of the burden of proof. The evidential burden can be placed on the accused where more than a mere denial is expected from the accused person i.e. where the defence raised is not an ingredient of the crime but rather falls outside this, so that where the accused seeks to rely on the defence of automatism, or lack of capacity due to intoxication he must put some prima facie evidence or lay a proper foundation. This was extended to apply to defences of drunkenness, provocation and self defence in Bratty.
19. Prosecution: case to answer stage After presentation of the prosecution case, the court must acquit an accused where: The prosecution have not provided sufficient evidence to prove an essential element of the offence or The evidence provided has been discredited after cross examination The court has held that where there is not sufficient evidence on which the a judge can properly convict in the absence of evidence to the contrary, the judge according to s206 of the CPC must acquit the accused person.
20. Accused: evidential burden Where an accused seeks to put across a defence of provocation, self defence, accident or as the case may be, they must provide sufficient evidence to put the issue across otherwise the prosecution need not rebut or even consider any of these defences. As emphasised by Lord Denning in Bratty the presumption of capacity places an evidential burden of proof on the accused see: Bratty v the Attorney General: accused relied on defences of non insane and insane automatism. He provided no evidence to put across the defence of none insane automatism, the court held the prosecution need not rebut all defences beyond a reasonable doubt, it is only those that have been properly brought before the jury. Mwelwa v the people 1965: in relying on the defence of skid or mechanical defence the court held that some evidence (beyond a mere explanation) must be brought forward by the defendant.
21. In the case of Sibadev the people on a charge of defilementthe court held that a claim that the parties (claimed to be married to a 15 year old under customary law) were married under customary law was insufficient to bring the issue into consideration, the defence was supposed to give more than a mere statement. The onus was on the prosecution to establish that they were not married however; it was insufficient to put this issue across by reiterating that ‘we are married.’ He must provide an explanation as to why their union is a marriage at customary law. Mutambo v the people ‘no burden rested on the accused to establish their defence. The burden was on the prosecution to negate it. But it was of course for the accused to raise the defence in some way, either through evidence or argument or both. Without this there would be nothing for the prosecution to satisfy the court beyond reasonable doubt.’ Kazembe & Zebron v the people Established that to rely on automatism the accused must provide sufficient evidence to put the issue across Citing Bratty the court held that where the defence is one of insanity the burden lays on the defence to establish this on the balance of probabilities. However in relation to the defence of automatism, not being caused by a disease of the mind (falling under the M’Naghten rules) it was held that the accused will merely have an evidential burden to provide more than a mere explanation, for the defence to be put across, whereupon the prosecution will have the burden to disprove the defence beyond all reasonable doubt. It was stated that stating simply ‘I had a black out’ is insufficient for blackout is ‘one of the first refuges of a guilty conscience and a popular excuse’. The court held that the accused had failed to lay a proper foundation to bring the defence of negotiation to the table; therefore the prosecution had no duty to negative the defence.
22. Standard of proof: evidential burden Standard of Proof This is the level of probability that determines proof. In civil cases this is the balance of probability and in criminal case being beyond all reasonable doubt.
23. Discharge of evidential burden in criminal cases The prosecution must lay sufficient evidence to put the accused on defence, termed prima facie evidence. There must be evidence sufficient enough to convict at the close of the prosecutions case in the absence of evidence produced to the contrary. Failure to provide such evidence will lead to an acquittal i.e. the accused is found with no case to answer.
24. Criminal cases: evidential burden, standard The people v WynterMakowela 1979 and The people v Japau 1967 The court must not convict until it has heard both parties however in accordance with s206 n 207 of the CPC, before the accused is put on his defence the prosecution must provide prima facie evidence known as the case to answer. Where there is failure to provide sufficient evidence the accused is acquitted at case to answer stage the same will be found if: There is insufficient evidence to prove an element of teh offence The evidence led has been discredited after cross examination or is otherwise found unreliable The court is to put the accused on his defence if there is sufficient evidence (prima facie evidence) on which a judge can properly convict on in absence of evidence to the contrary.
25. Evidential Standard of proof civil cases A similar situation will occur. The evidential burden of the claimant is satisfied, if at the close of his case and the defence makes a submission of no case, the judge considers the evidence to be sufficient to lead to a conclusion that the legal burden is satisfied i.e. that it has been proved on the balance of probabilities this is discharged.
26. Civil cases: legal standard of proof The standard is on a balance of probabilities. Miller v Minister of Pensions: ‘the degree of cogency required to discharge a burden in a civil case is well settled. It must carry a reasonable degree of probability, but not so high as it is required in a criminal case. If the evidence is such that the tribunal can say: ‘we think it more probable than not’ the burden is discharged, but, if the probabilities are equal it is not.’ LISWANISO SITALI AND OTHERS v MOPANI COPPER MINES PLC (2004) Z.R. 176 (S,C,) However it must be noted that there are different degrees in this standard, it depends on the nature and seriousness of the fact in issue.As Best CJ and many other great judges have said, ‘in proportion as the crime is enormous so ought the proof to be clear. In cases of fraud (misrepresentation for instance) or adultery for instance, although the courts have acknowledged that the standard is not the criminal one, the fact in issue is serious and thus the evidence must be proportionate to the matter requiring proof. Therefore the degree of proof will be higher in these cases.
27. Civil cases: degrees of proof Hornal v Neuberger Products Ltd This was a civil case, a claim for fraudulent misrepresentation. The judge stated that it had been established on a balance of probabilities that fraud had occurred but not beyond all reasonable doubt. Denning J ‘the more serious the allegation the higher the degree of probability that is required. But it need not in a civil case reach the very high standard required by the criminal law.’
28. Civil cases: standard case law ReH(a minor): case was a civil one dealing with welfare (local authorities applied to take kids on grounds that they were sexually abused by step father) court outlined that although this was a civil case, it dealt with serious issues, as such the gravity of the case becomes part of the issues. The degree of proof was thus high. In cases dealing with adultery as well as cruelty the courts have held that the matters being serious the degree of proof although not being the criminal standard is high see C v C and H 1977 Blyth v Blyth See also Re Delow’s will: one of the questions was whether the wife murdered her husband in determining whether she could acquire under her husbands will
29. Contempt cases standard In contempt cases be it criminal (in front of the judge) or civil law (disobedience to a court order), the standard of proof applied is one of proof beyond a reasonable doubt. This is stated to be because although being a civil cases, the contemnor is punished, he may be fined or imprisoned, in which case similar considerations as those taken under criminal law come to play.
30. Criminal Cases: standard of proof Miller v Minister Pensions Lord Denning: the degree of cogency required in a criminal case before an accused person is found guilty is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence ‘of course it is possible, but not in the least probable,’ the case is proved beyond reasonable doubt, but nothing short of that will suffice.’ The standard of beyond a reasonable doubt has been criticised as not always being clear Hepworth argues that it is not the language used but rather directing and understanding that the jury must be sure of the prisoners guilt and that the onus lies on the prosecution.
31. Beyond a reasonable doubt: meaning In Yap ChuanChing, the jury requested for help as to the meaning of the terms. The judge explained what this means: ‘a reasonable doubt, it has been said is a doubt to which you can give a reason as opposed to a mere fanciful sort of speculation such as well nothing in this world is certain, nothing in this world can be proved.’ As I say that is the definition of a reasonable doubt something to which you can assign a reason. It is sometimes said the sort of matter which might influence you if you were to consider some business matter.
32. Defendant; criminal cases See Saluwema v The People This being the standard the prosecution bears to prove the defence, the defendant as established must discharge in cases where the persuasive burden is reversed, on the balance of probabilities.
33. Voire dire, competence and other issues of admissibility Will depend on the case, criminal will entail criminal standards and like wise civil cases The burden will lie on the party seeking to adduce the evidence
34. Questions Questions: A statute states: ‘it is an offence for a pharmacist to sell any medical products on a Sunday except in cases of emergency.’ Soondo is charged with contravening the statute. Upon whom is the burden of proof in this case? Mwansa who is charged with murder states that he remembers nothing of the incident because he was drunk. The trial judge rules that Mwansa has the legal burden of proving that he was intoxicated with the standard of proof being beyond reasonable doubt. Is this ruling correct? Zambian State Insurance Corporation receives a claim under an insurance policy on the life of Manda who was recently found shot dead. The police suspected she was murdered by Tomasai, who was the sole beneficiary under Manda’s will. Tomasi has since committed suicide. The terms of the insurance policy state that the corporation is not liable to pay any of the proceeds of the policy in the event of the insured having been killed by the widow and sole beneficiary under his will, brings an action against the Corporation for the insurance monies. Upon whom is the burden of proof and what is the required standard of proof?