THE BURDEN AND STANDARD OF PROOF

This is the most important principle in the law of evidence, especially in criminal trials. See sections
10-17 of the Decree. When we say burden of proof, we will be looking at section 10 of the Decree and
partially sections 11, 12, 13, and 14. Section 10(1) states: “for the purposes of this decree, the burden
of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact
in the mind of a tribunal of fact or the court”. Subsection 2 says the burden of persuasion may require
a party to raise reasonable doubt concerning the existence or non existence of a fact, by the
preponderance of probability, or proof beyond a reasonable doubt.
In every case or context someone will have to prove something. E.g. a criminal case; a charge is raised
against an accused person: the maxim that runs through the issue of burden of proof arises. (ei
incumbit probatio qui dicit non qui negat). This says he who asserts must prove not he who denies. In
our case above, assuming the accused is arrested by a person for stealing, the police will be asserting
that he has stolen so the police must prove that he stole the money. It is not for the accused to prove
that he stole the money. The police and the complainant or prosecution must prove and not the accused.
The phrase “burden of persuasion” is equal to what is called the “legal burden”.
In any given case there must be someone who bears the burden of persuasion, there must be someone
who bears the legal burden. However the phrase “legal burden” would be preferred because in a
criminal trial the burden on the whole case is on the prosecution. It never shifts! In this situation the
word “persuasion” will not be preferred because of the locus classicus case of WOOLMINGTON V.
DPP (1935) AC 462 per Lord Sankey’s dictum. E.g. in a trial of stealing, if the accused person is
called upon to give evidence, there is no burden on him because the statue which created the offence
puts no such burden on him. In a situation where the statute creating the offence puts the burden on the
accused person, the burden will be put on the accused person to prove that he did not commit the
offence. E.g. in a narcotics case the prosecution will have to prove that narcotics were found in the
possession of the accused person. Once they do this, that burden will have been discharged, but if for
e.g. the statute creating the offence says that without lawful authority a person commits an offence if
found with narcotics, proof of which would be on the accused person, if the accused person cannot
prove that lawful authority, the prosecution would have succeeded in their case.
Before the introduction of the statutory provisions, the only exceptions to the burden on the
prosecution are what are found in section 15(3) of the Decree dealing with proof of insanity. Here one
will see that if one says that one is insane, the burden of proof will fall on that person to prove that
particular issue but that does not prevent the prosecution from first establishing its case by leading
evidence in an attempt to prove that the insanity does not exist. (See section 27 of the Criminal Code
which refers to section 137 of the CPC). Once the evidence has been led on that particular issue by the
prosecution, the burden of proof shifts on to the accused person. (See article 19(16) of the
Constitution). But for this article, it would have been unconstitutional to ask an accused person to
prove his insanity.
NB! In Ghana, there is no presumption of sanity under our law. There is nothing saying that every
person is presumed to be sane until the contrary is proved. The guilt of an accused must be proved as
if there was no knowledge of his insanity. That is why there is no plea of “guilty but insane” in Ghana.
Again if there was presumption of a person’s sanity, there would have been no need for the provisions
of section 11.
 In some jurisdictions there are provisions in the criminal code that a person is presumed to be innocent
until the contrary is proved. These provisions can be compared with section 15(3) of the Decree. This
says unless and until it is shifted the person who is asserting that he is insane has the burden of proving
it. If the explanation is accepted, it would mean that the prosecution would be unable to prove their
case. Thus the crucial moment to be taken into consideration is the time of the commission of the
offence.
See also section 42 of the Decree. This says a person is presumed to be of full age and sound body.
Section 10 of the Decree: subsection 1 talks about the requisite degree of proof. In criminal cases the
legal burden of persuasion on the whole case rests with the prosecution. The question is to what
degree? The degree is beyond reasonable doubt. The prosecution must establish its case beyond
reasonable doubt against the accused person. That is the standard.
Where a person puts up the defense or an explanation which to some extent negatives the prosecution’s
case on a particular issue, it means that the defense has succeeded on that issue and therefore the
prosecution has failed to establish its case beyond reasonable doubt. See also section 64 of the
Criminal Code.
The burden of persuasion may require a party to raise a reasonable doubt concerning the existence or
non-existence of a fact or that he establishes the existence or non existence of a fact by preponderance
of probabilities or proof beyond a reasonable doubt. (Section 10(2) of the Decree. Thus there are 3
standards enumerated in every case. These are:
Proof beyond reasonable doubt: this is the standard which the prosecution must achieve in all criminal cases. They
must prove the guilt of the accused person beyond reasonable doubt. This standard relates to the commission of
a crime. Any one accused of having committed a crime, the accuser must prove that allegation to the standard of
proof beyond a reasonable doubt. This is not restricted stricto senso to criminal trials, but it applies when
someone even in a civil proceeding is accused of the commission of a crime. That allegation must be proved
beyond reasonable doubt. E.g. in a civil case relating to someone’s will, the will is purported to be drawn up in
accordance with the Wills Act. In the process an issue is raised as to the genuiness of the Will. Evidence is there
to show that that will is a forgery. Here there is an allegation of a crime. So whether the Will is indeed a forgery or
genuine, the standard of proof there will be proof beyond a reasonable doubt even though the trial is not a
criminal trial. So also is the present position of cases under the Matrimonial Causes Act where adultery is alleged.
Formerly there were items that had to be proved to nullify a marriage. E.g. cruelty. Cruelty will involve so many
things. For example, it was cruelty to demand sex more than reasonably necessary even under the native
customary law; it was also cruelty to beat one’s wife. It was also cruelty to have sex coitus artego with one’s wife.
If a woman alleges adultery as ground for dissolution of marriage, it must be proved beyond a reasonable doubt.
See section 13 of the Decree: in any action whether civil or criminal, where a crime is alleged, the standard of
proof is beyond reasonable doubt. Where there is anything to do with crime, he who asserts must prove that
assertion beyond reasonable doubt.
Proof by preponderance of probabilities: That is the standard required in all civil cases and also in
criminal cases where the statute or the common law places the onus of proof on a particular point on
the accused person.
Proof by raising reasonable doubt: since the prosecution must prove beyond a reasonable doubt in a
criminal case, the accused must raise a reasonable doubt which is to make the prosecution’s proof
beyond a reasonable doubt more difficult. Here the burden or onus rests on the accused after the court
finds that he has a case to answer.

BURDEN AND STANDARD OF PROOF

When dealing with burden and standard of proof the vital question that arises in criminal and civil
cases (while our courts would follow the adversary system) and on which the final verdict in a final
trial may depend is the question of the party on whom the burden of proof of the whole case or of a
particular issue lies. This is because if a party who bears the burden of proof fails to discharge that
burden judgment may on that account go against him. Furthermore, any misdirection as to the
distribution of the burden of proof on the whole case or a particular issue may prove vital to the
judgment on appeal. See the provisions of section 16 of the Decree. For instance in the case of
COMMISSIONER OF POLICE V. ISAAC ANTWI (1961) 1 GLR 408; the appellant was convicted of
stealing by means of his employment. See section 13 of the Decree. This case supports the proposition
that in a criminal case the burden of proof that is the burden of persuasion as contained in section 11 of
the Decree rests with the prosecution and never shifts because the prosecution has to establish all the
ingredients of the offence.
Even though part 2 of the Decree, that is sections 10-17 is headed burden of proof, the commentary on
sections 10 and 11 states that the term “burden of proof is avoided in the Decree as it has been used
ambiguously in the past to describe both the burden and standard of proof”.
According to the commentators, the ambiguity stems from the use of the word proof to mean either
evidence or evidence which convinces the tribunal of fact. It appears from the provisions of the Decree
that the burden of proof may refer to
1. The ultimate burden of establishing a case either by the preponderance of evidence as in civil
cases and in criminal cases where the burden is on the accused person or beyond reasonable doubt as in
criminal cases. See section 10(2) of the Decree.
2. The burden of producing evidence whether at the beginning of a case or in the course of the trial,
i.e. the burden of proof in the sense of introducing evidence in proof of certain facts. See section 11(1) and (2) of
the Decree.
Whatever nomenclature might have been used in the decree to describe the burden or onus of proof, be
it the general or legal or burden of persuasion on the one hand and the evidential or the burden of
producing evidence in different situations does not change the distribution of the various burdens in a
trial of a case and the legal principles governing the discharge of the various burdens.

BURDEN OF PERSUASION
Section 10 of the Decree: this burden has variously been referred to as the legal burden, probative
burden, the general burden, the ultimate of establishing a case, i.e. the ultimate burden of establishing a
case and the burden of proof on the pleadings, etc. Phibson uses the phrase “persuasive burden” which
was first used by Prof Glanville Williams. (See Glanville Williams: Criminal Law, The General Part
(1st edition 1953). As seen in section 10, the burden of persuasion or legal burden may shortly be
defined as the obligation imposed on a party by a rule of law to prove a fact in issue or to prove its
case. Whether a party has discharged this burden is decided by a trier of fact at the close of the entire
evidence. Furthermore, the standard of proof required in establishing this burden of proof will depend
upon whether the proceedings before the court are criminal or civil. By the provisions of section 10(2)
of the Decree, where the proceedings are criminal the standard required to establish guilt of the
accused is proof beyond reasonable doubt. This is also the case where the commission of a crime is
alleged in a civil case. See section 13(1) of the Decree.
In civil cases however the standard required is “on the balance of probabilities” or preponderance of
the probabilities as is sometimes stated. The same standard i.e. balance or preponderance of
probabilities is required when the burden of persuasion is on the accused in cases of insanity as a
defense (section 15(3) of the Decree); Or where statute either expressly or impliedly casts the burden
of persuasion on the accused. See for instance section 152 of the Criminal Code, 1960 Act 29.

THE INCIDENCE OF THE LEGAL OR PERSUASIVE BURDEN

Which party bears the legal or persuasive burden or the ultimate burden is determined by the rules of
substantive law set out in judicial precedents and in the Decree. So far as the legal or persuasive burden
is concerned, Wigmore has said that “these are merely specific rules for specific classes of case resting
for their ultimate basis upon broad reasons of expedience and fairness”. But this does not often lead to
difficulty in determining the party upon whom the burden rests for it is a fundamental requirement of
any judicial system that the person who desires the court to take action must prove his case to its
satisfaction. See Dickenson v. Minister of Pensions (1953) 1 QB 228. See also CONSTANTINE LINE
v. IMPERIAL SMELTING CORPORATION (1942) AC 154@174 per Lord Maugham. This means
that as a matter of common sense the legal or persuasive burden of proving all the facts essential to his
claim rests upon the plaintiff in a civil case or the prosecution in criminal proceedings. This sometimes
is expressed in terms of the Latin maxim as “ei incumbit probatio qui dicit non qui negat” and “omnia
praesumutur pro negante” meaning he who asserts must prove and not he who denies. But as pointed
out by Prof. Rupert Cross in his book on evidence, (Cross on Evidence 6th edn 113), this must not be
taken to mean that the onus of proof cannot lie upon a party who makes a negative allegation for if this
were so the application of the rule could be made to depend upon the language in which the case
happened to be pleaded. For instance, a claim for damages for breach of covenant to keep a house in
repair may be stated in a negative by saying either that the defendant did not repair the house or that
the defendant allowed the house to become dilapidated. But the situation is that the legal or persuasive
burden as expressed in section 10 of the DECREE is borne by the plaintiff (in civil cases) or the
prosecution (criminal trials save where an exception is made by a statute or defence of insanity raised)
however the claim is stated.
There are numerous instances in which the plaintiff or the prosecution assumes the legal or persuasive
burden in proving a negative. For instance, in a rape case, lack of consent must always be proved by
the prosecution and where lack of consent or want of due notice of a particular fact is alleged in a civil
action, these matters must be proved by the plaintiff. Thus, in a leading case of ABRATH v. NORTH
EASTERN RAILWAY COMPANY (1888) 11 QBD 440@457; which decided that the legal burden of
proving absence of reasonable and probable cause rests on the plaintiff in an action for malicious
prosecution. Bowen LJ said “ if the assertion of a negative is an essential part of the plaintiff’s case,
the proof of the assertion still rests on the plaintiff”.
Still on the maxim ei incumbit probatio qui dicit non qui negat , in a case of WAKELIN v.
SOUTHWESTERN RAILWAY (1886) 12 AC 41, a widow brought an action in negligence under the
fatal accidents Act 1846. the only evidence available was that her husband had been found dead near a
level crossing at the sight of the railway line. Lord Halsbury LC held that the widow bore the burden of
proving that her husband’s death had been caused by the defendant’s negligence. If she could not
discharge that burden she failed. Even assuming that the husband had been knocked down by a train
while on the crossing, the evidence adduced was as capable of leading to the conclusion that the
husband was negligent as it was the defendant’s negligence and accordingly the defendant’s negligence
was not proved.
It is settled law that the persuasive or legal burden remains stable throughout the trial in both criminal
and civil proceedings and unlike the evidential burden or the burden of producing evidence which may
shift constantly according as one scale of evidence or other preponderates. PICKUP V. THAMES
INSURANCE COMPANY (1878) 3 QBD 597. See also Wakelin v. LONDON AND
SOUTHWESTERN RAILWAYS.

CRIMINAL CASES
Reference should first be made to article 19(2)(c ) of the 1992 constitution of the republic of Ghana which provides
that:

A person charged with a criminal offence shall be presumed to be innocent until he is proved or has
pleaded guilty.
This is a substantive legal provision of our constitution which guarantees the fundamental right of all
manner of persons who appear before any duly and legally constituted court in Ghana on a criminal
charge. The presumption of innocence has been the bedrock of all accusatorial or adversary system of
criminal jurisprudence. Generally speaking, the persuasive or legal burden of proving any fact or
ingredient essential to the prosecution’s case rests upon the prosecution and as said before, remains
with the prosecution throughout the trial. This is so whether such ingredients are couched in positive or
negative averments. See SALIFU v. THE REPUBLIC (1974) 2 GLR 291, and whether or not the
accused person denies all or any of them. In the locus classicus of WOOLMINGTON v. DPP (1935)
AC 462; where the accused was charged with the murder of his wife, the accused put up the defence of
accident. The judge a quo directed the jury that once it was proved that the accused shot his wife, the
accused bore the burden of disproving malice aforethought (the requisite mens rea in murder cases).
On appeal, the House of Lords held this to be a misdirection and allowed the appeal. It is in that case
that Viscount SANKEY LC made the following famous pronouncements on the obligation which rests
on the prosecution to prove the guilt of the accused person. He said inter alia:
“throughout the work of the English criminal law, one golden thread is always to be seen, that it is the
duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the
defence of insanity and subject also to any statutory exception….no matter what the charge or where
the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common
law of England and no attempt to whittle it down can be entertained.
…. It is not the law of England to say as was said in the summing up in the present case “if the crown
satisfies you that this woman died at the prisoner’s hands then he has to show that there are
circumstances to be found in the evidence which has been given from the witness box in this case which
alleviates the crime so that it is only manslaughter or which excludes the homicide altogether by
showing it was a pure accident…”. See also THE STATE V. AFENUVOR (1961) 2 GLR 655 SC.
Perhaps it should be noted at this stage that there is a distinction between the phrase “burden of proof”
which is used to describe the duty which lies on one or other party to establish a case or to establish the
facts upon a particular issue and the phrase “standard of proof” which is used to describe the degree to
which the proof must be established. In the case of WOOLMINGTON V. DPP, Lord Sankey in a
speech with which Lords Atkin, Heward and Tomlin and Wright concurred, expressly approved the
direction to a jury that prosecution must prove the case i.e. the accuseds’ guilt beyond reasonable
doubt.
This common law principle has been applied by our courts. Therefore it could fairly be said that the
provisions of section 13(1) of the Decree which state that “in any civil or criminal action the burden of
persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond
reasonable doubt as to guilt” is nothing but the codification of the common law.
The same comment can be made on section 16 of the Decree which states that :
The Court on all proper occasions can instruct the jury as to which party bears the burden of
persuasion on each issue and as to whether the burden requires that the party raised reasonable doubt
concerning the existence or non existence of a fact or that he established the existence or non existence
of a fact by a preponderance of the probabilities or by proof beyond reasonable doubt.
The corollary to the principle that in criminal cases except where a statute expressly places the legal or
persuasive burden on the accused, the prosecution bears the onus of proving the accused’s guilt beyond
reasonable doubt is that since the accused bears no onus to convince the trial court of his innocence or
even of the truth of any explanations he gives if he gives an explanation, even if that explanation is
improbable, the court is not entitled to convict unless the trier of fact is satisfied not only that the
explanation is improbable but beyond reasonable doubt that it is false. Therefore if there is any
reasonable possibility of his explanation being true then he is entitled to an acquittal.

The rule enunciated by Lord Sankey is subject to 3 exceptions:

A. where a statute expressly places the legal or persuasive burden on the

defence.

B. where a statute impliedly places the legal or persuasive burden on the defence

C. where the accused raises the defence of insanity.

Before examining these three exceptions to the rule that the persuasive or legal
burden in any criminal trial rests on the prosecution throughout and never shifts,
and having regard to the provisions of article 19 (2) ( c) of the constitution with
regard to presumption of innocence, it could fairly be said that unless expressly
provided under the constitution any Act of Parliament which derogates from or
attempts to whittle down this cardinal rule will certainly be declared ultra vires
the constitution and pro tanto void.

The rule enunciated by Lord Sankey in WOOLMINGTON’S CASE went further to

state that:

“If at the end of the whole case there is reasonable doubt created by the
evidence given by either the prosecution or the defence as to whether the
prisoner killed the deceased with malicious intent the prosecution has not made
out a case and the prisoner is entitled to be acquitted”. See also section 11 (3) of
the Decree: “In a criminal action the burden of producing evidence, when it is on
the accused as to any fact the converse of which is essential to guilt, requires the
accused to produce sufficient evidence so that on all the evidence a reasonable
mind could have a reasonable doubt as to guilt”.

It is quite clear from this same principle that it is incumbent upon the prosecution
to prove every ingredient of the offence charged in order to succeed against the
accused. The standard of proof required in respect of each ingredient is “beyond
reasonable doubt”. For example, section 47 of the Criminal Code 1960 which
defines the crime of murder provides inter alia that “whoever intentionally causes
the death of another person by an unlawful harm is guilty of murder…”

On the proper construction of the section, in order to succeed against the accused
the ingredients which the prosecution has to prove beyond reasonable doubt are :

A person (deceased) is dead;

His death resulted from harm inflicted upon him;

The harm was unlawful;

The harm was intentionally inflicted;

It was the accused who intentionally inflicted the harm upon him.

The section also presupposes that generally and except where an acquittal has
been entered on a success of the submission of no case (see sections 173 of the
CPC for summary trials and 271 for trials on indictment) a verdict cannot be
entered on the prosecution’s case only but only after the entire case made up of
both the prosecution’s case and the defence’ case. Whether or not a prima facie
case has been established at the conclusion of the prosecution’s case is a
question of law to be determined by the judge and not the jury or trier of fact.

The determination to the effect that a prima facie case has been established
creates only a rebuttable presumption (See section 19 of the Decree: “An
enactment providing that a fact or group of facts is prima facie evidence of
another fact creates a rebuttal presumption). See also section 121 of the CPC for
such rebuttable presumptions) and throws the burden of proving the evidence on
the rebuttal on the accused. By section 11 (3) of the Decree, in a criminal action,
this burden of producing evidence when it is on the accused as to any fact the
converse of which is essential to guilt requires the accused to produce sufficient
evidence so that on all the evidence a reasonable mind could have a reasonable
doubt as to his guilt. In short, the obligation if any, which rests on the accused at
his trial is to create reasonable doubt in the prosecution’s case. this was aptly put
by Korsah CJ in the case of COMMISSIONER OF POLICE V. ANTWI (1961) GLR 408
in the following words:

“The law is well settled that there is no burden on the accused. If there is any
burden at all on the accused, it is not to prove anything but to raise a reasonable
doubt. If the accused can raise a reasonable doubt he must be acquitted”. (see
page 412 of the report).

See also the following cases:

CHAN KAU (ALIAS CHAN KAI v THE QUEEN (1952) AC 206.

JOHN BROWN AKOSAH V. COMMISSIONER OF POLICE (1959) 13 WACA 43.

R V. OJOJO (1959) GLR 207

GEORGE KWAKU DANSO ANT THEODORE PHILIP WHENTON V. THE KING (1950) 13
WACA 16 @18.

R V. HEPWORTH (1955) 2 QB 600.

Reference may also be made to buttress this fact to the following passage at
page 371 paragraph 1001 of Archbold’s Criminal Pleadings, 34 th edition:

Where the prosecution gives prima facie evidence from which the guilt of the
prisoner might be presumed, and which, therefore, calls for an explanation by the
prisoner and no answer or explanation is given, the presumption is raised which
the jury may be justified in returning a verdict of guilt. But if an explanation is
given by or on behalf of the prisoner which raises in the mind of the jury a
reasonable doubt as to his guilt, he is entitled to be acquitted because if upon the
whole of the evidence in the case the jury are left in a real state of doubt the
prosecution has failed to satisfy the onus of proof which lies upon them.

There is yet another illuminative pronouncement by Korsah CJ in ANTES case

already referred to on the point in issue which must not escape notice. Korsah CJ
said at page 12 of the Report :

the fundamental principles underlying the rule of law that the burden of proof
remains throughout on the prosecution and that the evidential burden rests on
the accused where at the end of the case for the prosecution an explanation is
required of him are illustrated by a series of cases. Burden of proof in this context
is used in two senses; it may mean the burden of establishing a case or it may
mean the burden of introducing evidence. In the first sense, it always rests on the
prosecution to prove the guilt of the accused beyond reasonable doubt. But the
burden of proof of introducing evidence rests on the prosecution in the first
instance but may subsequently shift to the defence especially where the subject
matter is peculiarly within the accused’s knowledge and the circumstances are
such as to call for some explanation”. (SEE SALIFU V. THE REPUBLIC (SUPRA).

Even though the Decree uses the “reasonable doubt” formula which has become
traditional in all parts of the world where the COMMON LAW is accepted, including
the UNITED STATES OF AMERICA, in describing various standards of proof required
in criminal cases, no definition of the expression has been given. The best effort
at explanation was that made by LORD DENNING when a judge of first instance in
the case of MILLER V. MINISTER OF PENSIONS (1947) ALL ER 372 when he
said:

“The degree of cogency 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 a doubt. The law would fail to protect the community if it admitted
fanciful possibilities to affect 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 a 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”.

Before dealing with the statutory exceptions and the issue of insanity to the
general principle that the onus of proof i.e. the persuasive burden rests on the
prosecution to prove the accused person’s guilt beyond reasonable doubt and
that that onus never shifts we must look at the burden of adducing evidence in
criminal trials. This burden is also referred to as “the duty of passing the judge”.
In the Decree, this is termed the “burden of producing evidence” which is
sometimes referred to as evidential burden.
The burden of producing evidence or the evidential burden is covered by section
11 of the Decree. Section 11 (1) of the Decree states for the purposes of this
Decree, the burden of producing evidence means the obligation of a party to
introduce sufficient evidence to avoid a ruling against him on the issue.

By this definition a party is obliged to adduce sufficient evidence to leave an issue

before a tribunal of fact (jury). It is important to note that whether a party has
discharged this burden is decided only once in the course of the trial and by the
judge as opposed to the tribunal of fact (jury). The burden is discharged when
there is sufficient evidence to justify, as a possibility, a favourable finding by a
tribunal of fact. This is an example of the judge’s function in respect of mixed law
and fact.

In a criminal trial for instance the prosecution must adduce sufficient evidence to
prevent the judge from withdrawing an issue from the jury. (See section 271 of
the CPC). (See also section 154 of the CPC).

Thus an issue or a charge of an offence may be withdrawn and substituted with a

lesser offence as under section 154 of the CPC.

It must be emphasized that if the prosecution discharge the evidential burden, it

does not necessarily mean that they will succeed on the issue in question. The
accused will not necessarily lose on that issue although he takes that risk.
However, if the prosecution also bear the legal or persuasive burden on the same
issue, and fail to discharge the burden of producing evidence or the evidential
burden, they necessarily fail on that issue since the judge will refuse to let the
issue go before the jury.

However it does not follow that a discharge of evidential burden necessarily

results in the discharge of the burden of persuasion or legal burden for the jury
may or may not find in favour of the prosecution on that issue.
Normally the party bearing the persuasive or legal burden in relation to a
particular fact at the commencement of the proceedings also bears the evidential
burden or the burden of producing evidence in relation to the same fact.

But this is not always the case for instance, in R v. LOBELL (1957) 1 QB 547.

Although the prosecution bears the persuasive or legal burden of negativing the
defence of self defence on a charge of wounding with intent to do grievous bodily
harm, the issue will not be put before the jury unless the accused has discharged
the onus of producing evidence i.e. the evidential burden relating to the defence
of self defence.

In other words, the issue must be raised on the evidence. Once the accused has
discharged the evidential burden, the prosecution bears the legal or persuasive
burden in relation to that issue which on the whole case the prosecution must
prove beyond reasonable doubt. Hence it is said that the evidential burden unlike
the legal or persuasive burden keeps on shifting as the case progresses and as
and when the issues are raised. Hence it is said that the evidential burden may
be said to shift on the operation of a rebuttable presumption of law.

Evidential burden operates on the basis of renvoi.

Where a party discharges the evidential burden borne by him in relation to a

particular fact or issue, his adversary would be under an obligation to adduce
counter evidence to convince the jury or trier of fact in his favour. If he chooses
not to produce such counter evidence, he runs the risk of a finding on that issue
in favour of the other party. See section 11(1) of the DECREE.

Under those circumstances also, the evidential burden is said to be shifting. In

practice however, the discharge of the evidential burden is considered only on
two occasions:

At the beginning of a trial to determine the party who begins and

When during the trial, the judge determines whether sufficient evidence has been
adduced to leave an issue before the tribunal of fact.

If the judge decides that insufficient evidence has been adduced, the issue could
be withdrawn from the tribunal of fact, thus rendering further consideration of the
evidential burden otiose.

Where however further consideration of the evidential burden becomes

necessary and the judge allows the case to go to the tribunal of fact, the
evidential burden is said to have shifted to the opponent at that stage. It could
fairly be said that since in any trial a party has adduced all his evidence e.g. in
criminal cases the prosecution and in civil cases the plaintiff or the defendant as
the case may be, before the accused or the defendant, depending on the ruling at
the close of the prosecution or plaintiff’s case, the evidential burden requires no
further consideration at the close of the entire case and the only burden left is the
legal burden or persuasive burden i.e. the burden of persuasion on the whole
case.

It has already been said that other than in exceptional cases, the accused does
not bear a persuasive or legal burden of proof. He does not have to prove his
innocence. It is sufficient if either as a result of the prosecution’s evidence or the
defence’s evidence or a combination of both the adjudicating tribunal is not
satisfied of his guilt beyond a reasonable doubt. Where the accused has the
persuasive or legal burden of proof in respect of a particular issue the standard of
proof required of him is less than that required at the hands of the prosecution
and it must be fairly stated as not being higher than the burden which rests upon
a plaintiff or defendant in civil proceedings and in civil proceedings the
“preponderance of probabilities” may constitute sufficient ground for a verdict.
(See sections 10(2) and 12(1) of the Decree. By section 16 of the Decree the jury
should be clearly directed as to this standard of the burden on the defence when
the onus shifts. See:
R v. SODEMAN (1936) 2 ALL ER 1138

R v. CARR-BRIANT (1943) KB 607

R v. BROWN (1971) 55 CAR ( for direction held to be incomplete).

BURDEN OF PROOF IN CIVIL CASES

Just as in criminal cases, the phrase “burden of proof” as applied to judicial

proceedings has two distinct and frequently confused meanings:

The burden of proof as a matter of law and pleading i.e. the burden of
establishing a case whether by preponderance of the evidence or beyond
reasonable doubt.

The burden of proof in the sense of adducing evidence.

The first situation is described in section 10 of the Decree as the burden of

persuasion and the second situation, as the burden of producing evidence as
defined in section 11 of the Decree. This description is in accord with what was
said by DENNING L.J. in his article “THE BURDEN OF PROOF ON THE PLEADINGS”
is variously described as “the legal burden” or the “persuasive burden”.

As a general rule, in civil action the burden of proof on the pleadings rests upon
the party whether plaintiff or defendant who substantially asserts the affirmative.
The persuasive burden is fixed at the beginning of the trial by the state of the
pleadings and it is settled as a question of law remaining unchanged throughout
the trial. It remains exactly where the pleadings place it and never shifting in any
circumstances whatever. If therefore when all the evidence by whomsoever
introduced is in, the party who has the burden of persuasion has not discharged
it, the decision in the case must go against him. So just as in ordinary criminal
cases even where the minor burden i.e. the evidential burden or the burden of
introducing evidence is cast or shifted onto the accused, the major one i.e. the
burden of persuasion or the legal burden of satisfying the jury of the accused’s
guilt beyond reasonable doubt is always upon the prosecution and never changes
and if on the whole case the jury or trier of fact has such a doubt, the accused as
pointed out is entitled to the benefit of that doubt and must be acquitted.
MANSINI V. DPP [1942] AC 1. SEE ALSO WOOLMINGTON V. DPP [1935] AC 462. SEE
ALSO CHAN KAU V. R [1955] AC 206 SEE ALSO R V. LOVELL [1957] 1 QB 547.

In his book on evidence 12th edition, Phibson stated that in deciding which party
asserts the affirmative regard must be had to the substance of the issue and not
merely to its grammatical form which latter the pleader can frequently vary at
will.

Moreover a negative allegation must not be confounded with a mere traverse of

an affirmative one. According to the true meaning of the rule, where a given
allegation whether affirmative or negative forms an essential part of a party’s
case, the proof of such allegation rests on him. SEE ABRATH V. NORTH EASTERN
RAILWAY [1883] 11 QBD 457 particularly per Bowen LJ. For example, in an action
against a tenant for not repairing in terms of the covenant, proof of that
allegation is on the plaintiff. SEE SOWARD V. LEGGATT 7 C&P 613.

In an action for malicious prosecution, it is upon the plaintiff to show not only that
the defendant prosecuted him unsuccessfully, but also the absence of a
reasonable and probable cause. (SEE THE ABRATH CASE SUPRA. See ALSO COX V.
ENGLISH BANK [1905] AC 168) while in an action for false imprisonment, proof of
the existence of reasonable cause is upon the defendant since arrest unlike
prosecution is prima facie a tort and demands justification. LIVERSIDGE V.
ANDERSON [1942] AC 206.
In bailment cases the onus lies on the bailee to prove that the goods were lost
without his fault. COLDMAN V. HILL [1919] 1 KB 443.

Similarly the burden of proving a change of domicile rests upon the party
asserting it. SEE GULBENKLAN V. GULBENKLAN [1937] 4 ALL ER 618.

In all but the simplest cases the burden on the issues is divided; each party
having one or more cast upon him. Thus in an action for breach of contract, proof
of the contract, performance of the condition precedent, breach and damages are
all issues upon the plaintiff while the defendant has the onus of facts pleaded in
confession and avoidance e.g. infancy, release, rescission, accord and
satisfaction, fraud etc.

In an action in negligence, proof of negligence is on the plaintiff but contributory

negligence is on the defendant. SEE WAKELIN V. LONDON AND SOUTHWESTERN
RAILWAY 12 [AC] 41. SEE ESSO PETROLEUM COMPANY LTD. V. SOUTHPORT
CORPORATION [1956] AC 218. [Sometimes the burden of proof is tied up with the
right to begin].

THE RIGHT TO BEGIN

Generally, the burden of proof is tied up with the right to begin adducing
evidence. This is determined by the incidence of evidential burden or the burden
of producing evidence as stated in section 11 of the Decree. As a general rule, the
plaintiff has the right to begin adducing evidence in civil proceedings. He has the
right to adduce his evidence first unless the defendant bears the evidential
burden of proof on every issue. MERCER V. WHALL [1844] 14 LJ QB 267.

In this country and as far as civil proceedings are concerned the rule is to be
found in Order 36 rule 21 of the High Court (Civil Procedure ) Rules 1954 LN 140A.

[In criminal cases whatever be the situation it is for the prosecution to open their
case and adduce evidence. They have the right to begin]
THE STANDARD OF PROOF IN CIVIL CASES

Section 10(2) of the Decree provides (quote): the burden of persuasion may
require a party to raise a reasonable doubt concerning the existence or non
existence of a fact. NB! One leads evidence to raise a reasonable doubt not to
prove a reasonable doubt! (SEE SECTION 11(3) of the Decree). Quote:

It is quite clear from the above provisions that three degrees of proof are set out
which must be discharged at an appropriate time:

by raising reasonable doubt

by a preponderance of the probabilities

by proof beyond reasonable doubt

In terms of sections 13(2) and 11(3) of the Decree, except in criminal cases,
where the defence of insanity is put up by the defence, the burden of raising a
reasonable doubt is that burden which rests on the accused in criminal cases.

SEE R V. OJOJO [1959] GLR 207.

Except where a statute places the onus of proof of a particular fact on an accused
person and in cases of insanity the onus if any which rests on the accused person
would be to adduce evidence to raise a reasonable doubt in the mind of the trier
of fact. This would mean that the prosecution has not proved its case beyond
reasonable doubt and would have failed pro tanto that particular issue.

The burden of proving a fact by the preponderance of the probabilities is a

general standard imposed in civil actions. This standard of proof i.e.
preponderance of the probabilities is sometimes referred to as the “balance of
probabilities” or “preponderance of the evidence”. It might be argued however
that the last of these two i.e. preponderance of the evidence seems to involve no
more than the preponderance of the evidence adduced by the proponent of an
issue over that adduced by the opponent. See HICKMAN V. PEACEY [1945] AC 304
@ 318.

See also LORD REID IN S V. S [1972] AC 24 @ 41.

Section 12(1) of the Decree provides (quote) except as otherwise provided by law,
the burden of persuasion requires proof by a preponderance of the probabilities.
In section 12(2) the expression “preponderance of the probabilities” is defined to
mean “a degree of certainty of belief in the mind of the tribunal of fact or the
court by which it is convinced that the existence of a fact is more probable than
its non-existence”. This definition accord with the view held in the USA that “to
establish by a preponderance of evidence means to prove that something is more
likely so than not so”. SEE DEVITT V. BLACKMAN : FEDERAL JURY PRACTICE AND
INSTRUCTIONS (3RD EDITION 1977) Paragraph 71: 14.

To the general rule that in civil proceedings the standard of proof required to be
met under the Decree by either party seeking to discharge the persuasive burden
of proof is on the preponderance of probabilities (see section 12(1) of the Decree)
is subject to one clearly defined exception i.e. the allegation of a commission of a
crime in civil proceedings. It is arguable that there are others in miscellany of
cases not covered by the Decree for example, the standard of proof in
matrimonial causes.

ALLEGATION OF CRIME IN CIVIL PROCEEDINGS

Before the decision in Hornall v. Neuberger Products Ltd (1957) 1 QB 247 there
appeared to be two schools of thought as to the standard to apply when a party
made an allegation of a crime against another in civil proceedings.

One school of thought held the view that the standard of proof was as high as
that required of the prosecutor in criminal cases i.e. beyond reasonable doubt.
The other school of thought took the view that the standard required was the
normal civil standard i.e. on the balance of probabilities. There are so many
authorities supporting both schools of thought. In Ghana here we actually follow
the first school of thought that once you make an allegation of a crime in a civil
action that particular allegation must be proved beyond reasonable doubt.

Provisions of the Decree:

Section 13(1)(quote) this means we need not look up to the English authorities
since the Decree supports the view that in such a case the proof is beyond
reasonable doubt. See Adjetey v. Adjetey where Sarkodie Addo J gave a decision
supporting the theory of the 2nd school of thought that divorce being a civil case,
it must be decided on the preponderance of probabilities. In that case adultery
was alleged. This meant that the adultery had to be proved. That proof of
adultery under ecclesiastical law happens to be a crime. It was known as criminal
conversation and therefore when alleged in divorce proceedings, the proof was
beyond reasonable doubt. Overall however, the proof of the case i.e. divorce was
breakdown of the marriage beyond reconciliation. This was to be proved on the
balance of probabilities.

(Now there is only one ground for divorce i.e. the petitioner must show that the
marriage has broken down beyond reconciliation).

See also WALLACE JOHNSON V. THE KING 5 WACA 56: where the case which went
all the way to the Privy Council had the dictum of VISCOUNT CALDECOTE’S :

Wallace Johnson had been charged with sedition. The Privy Council per VISCOUNT
CALDECOTE said “the fact remains however that it is the criminal code of the
Gold Coast colony and not in English or Scottish cases that the law of sedition is
to be found. The code was no doubt designed to suit the people of the colony. The
elaborate structure of the section suggests that it was intended to contain as far
as possible……

It must therefore be construed ….(incomplete)

NB! The Ghanaian courts are still bound by the decisions of the WEST AFRICAN
COURT OF APPEAL on appeal cases before independence. The only exception is
where the decision is based on a particular section of a law which has been
repealed in Ghana. Obviously such provisions will not apply in Ghana.

The position of the law in Ghana is stated in section 13(1) of the Decree.

The meaning and object of this section becomes clearer when read with section
11(2) which defines the burden of producing evidence in criminal cases. Section
11(2) provides “in a criminal action, the burden of producing evidence when it is
on the prosecution as to any fact which it is essential to guilt….(quote).

It is clear therefore that 13(1) sets out the usual requirement that guilt of a crime
be proved beyond reasonable doubt by the prosecution. The section is also made
to apply to proof of the commission of crimes in civil cases beyond reasonable
doubt.

The present state of the law of Ghana therefore as regards the standard of proof
of an allegation of a commission of a crime in civil proceedings departs from the
standard of proof on the balance of probabilities set under the English law.

THE BURDEN OF PROOF AND STANDARD OF PROOF IN MATRIMONIAL CAUSES

The Decree does not make any special provision to govern matrimonial causes.
Perhaps this is because matrimonial causes are civil as opposed to criminal
proceedings. Order 1 rule 1 dealing with interpretation of terms used in the High
Court civil proceedings rule 1954, (LN 140A) defines action to mean “a civil
proceeding commenced by writ or in such other manner as may be prescribed by
rules of court but does not include criminal proceeding by the crown. “cause” is
defined to include any action, suit, or other original proceedings between plaintiff
and defendant. It goes on to define matrimonial cause as any action for divorce,
judicial separation, nullity of marriage, jactitation of marriage or restitution of
conjugal rights. The rules governing these matters are set out in order 55 of the
rules and unless where special provisions are made to take the law governing a
particular issue out of the ambit of the provisions of the Decree, the provisions of
the Decree will apply. It has been noted that the burden of persuasion in civil
cases is generally discharged by preponderance of the probabilities or proof on
the balance of probabilities. In Ghana, matrimonial proceedings are covered by
the matrimonial causes Act of 1971. This Act makes the breakdown of the
marriage beyond reconciliation the ONLY ground for divorce and provides in
section 2(3) that:

“Notwithstanding that the court finds the existence of one or more of the facts
specified in subsection 1, the court shall not grant a petition for divorce unless it
is satisfied on all the evidence the marriage has broken down beyond
reconciliation”.

Therefore the present state of the law is that adultery which was regarded by the
Ecclesiastical courts as a quasi-criminal offence is not the only ground upon which
divorce can be decreed. There are other grounds not touching on adultery which if
proved to the satisfaction of the court will support a finding that the marriage has
broken down beyond reconciliation which as pointed out, is now the only ground
for grant of decree for divorce under the matrimonial causes Act 1971 Act 367.

STANDARD OF PROOF IN DIVORCE PROCEEDINGS

It has already been noted that divorce proceedings are civil proceedings and
where no allegation of a crime or wrongdoing is alleged against a party to such
proceedings, the onus of proof which rests on the petitioner is discharged on the
preponderance of the probabilities. The problem arises where adultery forms the
only ground upon which the petitioner is seeking for the dissolution of the
marriage that the marriage has broken down beyond reconciliation.

Section 15(1) of the Decree provides: “Unless and until it is shifted, the party
claiming that a person is guilty of a crime or wrongdoing has the burden of
persuasion on that issue”.
Upon a proper construction of section 15(1) it could be said that the subsection
allocates the burden of persuasion on the issue of a crime or wrongdoing. It deals
not only with issues of crime, but with issues of wrongdoing as well. The
commentary on the Decree which can well be described as the travaux
preparatoires …..

See Adjetey v. Adjetey [1973] 1GLR 216 per Sarkodie Addo. See also QUARTEY V.
QUARTEY [1972] 1 GLR 6 @ 9 per Kingsley Nyinah J.A. SEE ALSO GYINESI V.
GYINESI [1948] P 179. SEE ALSO RAYDON: TREATIES ON DIVORCE 7 TH EDITION PP
133-134 PARA 104:

“The burden of proof is throughout on the person alleging adultery there being a
presumption of innocence. A suit for divorce is a civil and not a criminal
proceeding but the same strict proof is required of adultery as is required in a
criminal case before an accused person is found guilty i.e. the tribunal must be
satisfied on proof beyond all reasonable doubt”.

See also PRESTON- JONES V. PRESTON –JONES [1951] AC 391. SEE THE APPEAL
DECISION OF ADJETEY V. ADJETEY AND THE CRITICISM OF THE DECISION IN
MENSAH V. MENSAH [1972] 2 GLR 198. SEE ALSO KINGLSEY NYINAH’S JUDGMENT
IN QUARTEY V. QUARTEY.

THE INCIDENCE OF THE BURDEN OF PERSUASION OR LEGAL BURDEN –

EXCEPTIONS THERETO

The rule enunciated by Lord Sankey in WOOLMINGTON V. DPP [1935] AC 462 and
adopted by our courts in 1962 or even before then is subject to three known
exceptions. They are:

Where the accused raises the defence of insanity

Where the statute expressly places the legal or persuasive burden on the defence

Where statute impliedly places the persuasive or legal burden on the defence.
It is important to discover the legal basis for throwing the burden of proving
certain facts in a criminal proceeding on the accused person. This is not hard to
find, for article 19 clause 16(a) of the Constitution states “nothing in or done
under the authority of any law shall be held to be inconsistent with or in
contravention of the following provisions-

paragraph c of clause 2 of this article” (article 19) (this deals with the
presumption of innocence).

It is clear from the above constitutional provision that the burden of proof which is
permitted to be cast on the accused in such exceptional cases is not the burden
of proof on THE WHOLE CASE which as we have seen, the prosecution is enjoined
by law to prove beyond reasonable doubt (see SECTION 11(2) OF THE DECREE)
but rather the burden of proof of particular facts or fact in the course of a trial
which the accused is required to prove by raising a reasonable doubt as to guilt or
preponderance of probability.

a. INSANITY

(Section 27 of the criminal code and sections 133-137 of the CPC).

Section 27 of the criminal code provides inter alia that when a person is accused
of crime the special verdict provided by the CPC in the case of insanity shall only
be applicable:

if he was prevented by reason of idiocy, imbecility or any mental derangement or

disease affecting the mind from knowing the nature and consequences of the fact
in respect of which he is accused or;

If he did the act in respect of which he is accused under the influence of an insane
delusion of such a nature as to render him in the opinion of the jury or the court
an unfit subject for punishment of any kind in respect of such act.
Section 137(1) of the CPC stipulates that where an act is charged against any
person as an offence and it is given in evidence in the trial of such person for that
offence that he was insane as not to be responsible as according to sections 27
and 28 of the Criminal Code for his action then if it appears before the court in
which he is tried or it appears to the jury that he did the act but was insane when
he did it, the court or jury shall return a verdict that he was guilty of the act
charged, but was insane when he did the act.

Subsection 2 states inter alia that when the special verdict is found the court shall
forward the court record or a copy thereof to the minister and the accused shall
be kept in custody as a criminal lunatic in such place and in such manner as the
court shall direct until the president’s pleasure shall be known.

It is clear from the combined effect of the above quoted provisions of both the
criminal code and the CPC that in criminal trials where insanity is raised as a
defence:

there is no plea of guilty but insane open to the accused person and that
generally when the defence wants to rely on the defence of insanity, it may be so
indicated in which case the plea of not guilty is entered and the state of mind of
the accused at the time the act was done or commission made by him becomes
the only issue.

That “guilty but insane” is a special verdict based upon facts which a jury or judge
can find upon the whole of the evidence whereas the evidence was led by the
prosecution or by the defence or both.

For (a), see R V. MOSHIE [1959] GLR 343. SEE ALSO KUSASI V. THE REPUBLIC
[1976] 1 GLR 335. @342.

FOR (b) SEE KUSASI V. THE REPUBLIC (SUPRA) @ 345.

that the special verdict of guilty but insane is NOT A CONVICTION OF THE
ACCUSED for which punishment could be inflicted on him for section 27(b) of the
Criminal code expressly states that in such case, the accused person is “an unfit
subject for punishment of any kind in respect of such act”. Therefore it could be
said that the rationale behind the order for his detention as provided for in section
137(1) of the CPC is principally to protect society from experiencing the effect of
the reoccurrence of such unpredictable conduct of persons of unsound mind, the
protection of the accused from doing violence to himself and more importantly,
the medical care which such unfortunate persons obviously need.

NB! Any person against whom such special verdict has been pronounced has no
previous conviction because he has never been convicted. This becomes relevant
when the question arises as to whether the person is known or not.

INSANITY AS A DEFENCE: BURDEN AND STANDARD OF PROOF

It has already been noted that insanity is a defence just as the defence of self-
defence, provocation, accident, etc. perhaps the only difference between insanity
and other defences for our evidential purposes is the standard of proof. Section
15(3) of the Decree provides:

“unless and until it is shifted, the party claiming that any person including himself
is or was insane or of unsound mind has the burden of persuasion on that issue”

The issue referred to in this subsection is the issue as to whether or not the
accused is insane. Therefore, where the defence of insanity is raised by the
accused, the defence of insanity thus raised must be discharged by the accused
or whoever alleges that the accused is insane, i.e. that burden rests on the
defence or the accused. The burden can be discharged by producing evidence to
show the trier of fact that at the time the accused did the act he was by reason of
insanity prevented from knowing the nature or consequences of the act in respect
of which he is charged.

(Section 27 (a) of the Criminal Code).

The standard of proof expected of the defence to prove insanity is merely a
balance of probabilities or preponderance of probabilities as stated under section
12(1) as read with section 10(2) of the Decree, i.e. reasonable people should
believe that his allegation of insanity is more probable than the prosecution’s
assertion that he is sane.

Defences akin to insanity include insane delusions, intoxication producing the

effect of insanity, insane automatism, and hysterical amnesia.

It should be borne in mind that the question of insanity is one of fact for the jury
or a trier of fact.

See the following cases:

KUSASI V. THE REPUBLIC (SUPRA)

THE STATE V. ZAMBRAMA [1960] GLR 205

ASARE V. THE REPUBLIC [1978] 1 GLR 193

DIM V R [1952] 14 WACA 152

SEE ALSO SECTION 28 OF THE CRIMINAL CODE 1960.

BRATTY V. A-G FOR NORTHERN IRELAND [1963] AC 386

R V. PODOLA [1960] 1 QB 325

R V. LOBELL [1957] 1 QB 547

MANSINI V. DPP [1942] AC 1

EXPRESS IMPOSITION OF THE BURDEN ON THE ACCUSED BY STATUTE

It is not uncommon to see that a number of statutes expressly place on the
accused the persuasive burden of proving SPECIFIC ISSUES whiles the persuasive
burden in respect of all other issues is on the prosecution. A few examples may
serve as illustration:

Section 244 of the Criminal Code creating the offence of accepting bribe by a
public officer after the performance of his duties qua public officer provides: “if
after a person has done any act as a public officer, juror, or voter he secretly
accepts or agrees or offers secretly to accept for himself or for any other person,
any valuable consideration on account of such act he shall be presumed until the
contrary is shown to have been guilty of corruption within the meaning of this
chapter in respect of that act, the doing thereof”.

It is clear that under these provisions where the prosecution has led evidence that
a valuable consideration has been secretly accepted, the accused bears the
burden of proving that the money or valuable consideration was not paid or
secretly or corruptly paid or received.

See R V. CARR BRIANT [1943] 2 AER 156.

See R V. PETRIE [1961] I WLR 358

SEE R V. BROWN [1971] 55 CAR 478

It is to be noted that in such cases the accused discharges the burden on him on
a preponderance of probabilities.

Another example can be found in section 206(1) of the Code which stipulates
“any person who without lawful authority the proof whereof shall lie on him has
with him in any public place any offensive weapon shall be guilty of a
misdemeanour”.
In this case too, the prosecution bears the burden of persuasion in relation to all
the other ingredients of the offence except the lawful authority or excuse for the
accused’s possession of the weapon. Here again, the standard of proof required is
on the preponderance of the probabilities.

See also e.g. under section 274 of the Code dealing with persons trading in
prostitution.

SEE THE STATE V. FIADJOE [1961] 2 GLR 416.

SEE COP V. ANTWI [1961] GLR 408

R V. OJOJO [1959] GLR 207

IMPLIED IMPOSITION BY STATUTE

Statutes often define a criminal offence and then using words like “unless”
“provide that” “except” or “other than” proceed to set out an exception thereto.
There is considerable authority for the proposition that at common law, the
persuasive burden of proof is on the accused to prove facts which are peculiarly
within his knowledge.

See R V. EDWARDS [1975] QB 27.

In this case the English court of appeal held that this proposition applied to
charges of selling liquor without a license, practicing as apothecary without a
certificate, selling cocaine without license, driving a vehicle without insurance
certificate, driving a vehicle without license.

See JOHN V. HUMPHREYS [1955] 1 AER 793; selling sugar without a license, R V.
OLIVER [1944] KB 68; possessing drugs without prescription R V. EWENS [1967] 1
QB 322.

11/26/2004 10:09:59 AM
PRESUMPTIONS

Presumptions are devices whereby the courts are entitled to pronounce on an

issue notwithstanding that there is no evidence or sufficient evidence about that
issue. They take effect by way of allocating the burden of proof in relation to that
issue to one party or the other irrespective of which of them bears the general
burden of proof.

Section 18(1) and (2) of the Decree define and distinguish between presumptions
and inferences. Under subsection 1, a presumption is defined as “an assumption
of fact that the law requires to be made from another fact or group of facts found
or otherwise established in the action”.

“An inference” on the other hand is defined in section 18(2) as “a deduction of

fact that may logically and reasonably be drawn from another fact or group of
facts found or otherwise established in the action”.

Section 18(3) of the Decree classifies a presumption into conclusive or rebuttable.

It is clear that not only does the Decree avoid the orthodox classification of
presumptions into presumptions of law and fact which classification has despite
criticisms especially from Lord Denning proved to be convenient. (See 1945 61
LAW QUARTERLY REVIEW P. 379 ESPECIALLY @ 382 FOR DENNING’S ARTICLE ON
THIS. SEE ALSO GLANVILLE WILLIAMS: CRIMINAL LAW 3 RD EDITION PARA 286-289).

Still following the Orthodox method of classification, it must be pointed out that
presumptions of law can be further divided into irrebuttable and rebuttable
presumptions. The finding of a prima facie case is an example of a rebuttable
presumption.

In cases of irrebuttable presumptions, it is the substantive law that creates the

presumption.
Admittedly it is sometimes difficult to distinguish between rebuttable
presumptions of law and presumptions of fact. The following distinction can be
made:

The conditions for the application of a presumption of law are fixed and uniform
and consequently alter the burden of proof of an issue whiles the application of a
presumption of fact is governed by the facts of each case and does not
necessarily alter the burden of proof.

Presumptions of law are drawn by the judge while presumptions of fact are drawn
by the jury or a trier of fact who may refuse to apply a presumption in a particular
case.

A presumption of fact is one which is dependent upon logical reasoning and which
a court is free to draw if it so desires. A presumption of law on the other hand is
one prescribed by law and which must be drawn in the absence of any evidence
to the contrary.

A careful reading of section 18(2) of the Decree appears to support the view that
the definition of “inference” as stated in the subsection is not different from the
definition normally given to “presumption of fact” by most writers. It has often
been stated that a presumption of fact is nothing but the logical inference of the
existence of one fact from the proved existence of other facts. In most cases, it
exists as an example of CIRCUMSTANTIAL EVIDENCE.

One thing is clear, i.e. in most cases of presumptions of fact; the court is free to
draw a particular inference from the proved facts. The court is not however
obliged to draw inferences even though no further evidence in rebuttable is
offered by the party to be affected by the inferences.

Talking about circumstantial evidence and especially in criminal cases, a

presumption from circumstantial evidence should be drawn against the accused
only when that presumption flows irresistibly from the circumstances proved in
the evidence. But in order to justify the inference of guilt, the inculpatory facts
must be incompatible with the innocence of the accused and incapable of
explanation upon any other hypothesis than that of guilt.

This is because a conviction should NOT BE BASED ON PROBABILITIES OR MERE

SUSPICION. INDEED ONE CANNOT MAKE PROOF OUT OF A MULTITUDE OF
SUSPICIONS.

Subsection 2 of section 18 of the Decree in defining “inference” speaks of logic. It

is apt to state that in reasoning by inference there are at least two cardinal rules
of logic which cannot be ignored:

The inference sought to be drawn must be consistent with all the proved facts. If
not the inference cannot be drawn.

That the proved facts should be such that they exclude every reasonable
inference from them save the one sought to be drawn. If they do not exclude
other reasonable inferences, then there must be a doubt whether the inference
sought to be drawn is correct.

Circumstantial evidence is receivable in criminal as well as in civil cases. Indeed,

the necessity of admitting such evidence is more obvious in the formal than the
latter. This is because in criminal cases the possibility of proving the matter
charged by a direct and positive testimony of an eye witness or by a conclusive
document is much more rare than in civil cases; and where such testimony is not
available, the jury are permitted to infer from the facts proved other facts
necessary to complete the element of guilt or establish innocence.

Lord Normand in Teper v. R [1952] AC 480 laid down the rule that “it
(circumstantial evidence) must be narrowly construed or 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 accused’s guilt from
circumstantial evidence, to be sure that there are no other co-existing
circumstances which would weaken or destroy the inference”.

Hale in particular, lays down two most important and necessary rules to be
observed in the application of circumstantial evidence in this respect:

first, never to convict a man for stealing the goods of a person unknown merely
because he will give no account of how he came by them unless an actual felony
be proved of such goods.

Secondly, never to convict any person of murder or manslaughter till at least the
body be found. (However this principle has been watered down by the use or
acceptance of circumstantial evidence). Circumstantial evidence can now be led.
See R v. Smith. This is illustrated in Rex v. Abontendomhene & Apeatu and 7
others who were accused and convicted of the murder of Akyea Mensah ( the Kibi
ritual murder case this can be found in 11 WACA).

(Fill in here..)

However the English Court’s decision in R v. Onufrejczyk [1955] 1 QB 388 ; 39

CAR 1, tended to blunt the incisiveness of the theory that in murder cases the
discovery or production of the corpus dilecti is a sine qua non to a conviction of
the accused. In that case, neither the body of the deceased nor any trace thereof
was found and the accused person had not made any confession of any
participation in the crime. Lord Goddard C.J. said that on a charge of murder, “the
fact of death is provable by circumstantial evidence notwithstanding that neither
the body nor any trace of the body has been found and that the accused has
made no confession of any participation in the crime before he (the accused) can
be convicted, the fact of death should be proved by such circumstances as render
the commission of a crime morally certain and leave no ground for reasonable
doubt:
The circumstantial evidence should be so cogent and compelling as to convince
the jury that no rational hypothesis other than that of murder can the facts be
accounted for”.