Burden of Proof in Criminal Law
Burden of Proof in Criminal Law
Burden of Proof in Criminal Law
QUESTION:
DOES THE BURDEN OF PROOF IN CRIMINAL CASES
SHIFT TO THE ACCUSED?
According to Osborns concise Law Dictionary,1 The team Burden of
proof can be defined as the evidence, which satisfies the court as to the
truth of a fact. This simply means what the court has to look at and be
convinced that an act was committed or not. It can also be further
defined according to H.H Denis2, as the legal obligation on a party to
satisfy the fact finder (who happens to be a judge, jury, or magistrate) on
a specified standard of proof that certain facts are true.
Generally speaking in criminal law the burden of proof lies on the
prosecution and the prosecutor in this case holds the burden of proving
the guilt of an accused beyond reasonable doubt, and if there are left any
doubts in the mind of the judge, jury or magistrate then the court will
have no other option but to acquit the offender. The fact that the
prosecution holds the burden of proving the guilt of a person is further
brought about by the fact underlined in the constitution of this country. It
should be noted that Article 28 subsection 3, part (a) of the constitution of
Uganda 3 states that: Every personWho is charged with a criminal offence be presumed to be
innocentuntil proved guilty or until that person has pleaded guilty.
Again this under scores the fact that the prosecution holds the onus of
thereof;
To further drive the point home, I yet have another case to discuss, this
issue, its the one of OKEITH OKALE and others Vs. REPUBLIC5. In
this case, 4 appellants were convicted of murder, and the issue before
court was identification and the prosecution case consisted of evidence
from the widow of the deceased, and that of dying declaration. In this
case the Judge held a prosecution case, and then cast on the appellants the
burden of disproving it or raising doubts about it. It was held, the burden
of proof in criminal proceedings is throughout on the prosecution, and its
duty of the trial Judge to look at the evidence as a whole, so the appeal
5[1965] E.A Pg. 555
was allowed conviction squashed and death sentences set aside. The
point to note here is that the right decision should be that the burden of
proof should lie on the prosecution and not on the accused. Its the
prosecution who have the burden of proving the guilt beyond reasonable
doubt.
Further still we yet still have another case supporting the fact that the
burden of proof shifts on the prosecution, its the case of SEKITOLEKO
Vs. UGANDA6. In this case the appellant was charged with robbery
contrary to section 272 and punishable under section 273 of the penal
code7. His defence was Alibi8. Alibi according to dictionary of Law,
This is evidence tending to show that by reason of the presence of the
accused at a particular or in a particular area at a particular time he
was not or was unlikely to have been at the place where the offence is
alleged to have committed at the time of the alleged commission. In the
course of his Judgement the learned magistrate said that the burden of
proving Alibi lay on the appellant, he was convicted and sentenced to 3
years imprisonment, he appealed and it was held that as general rule of
law the burden on the prosecution of proving the guilt of a person beyond
reasonable doubt never shifts whether the defence set up an Alibi or
something else. It was further held that the burden of proving and Alibi
doesnt lie on the prisoner and the trial magistrate had misdirected
himself. So the appeal was allowed and conviction and sentence
squashed. This again casts a very fine picture of the fact in Alibi cases;
the burden of proof falls on the prosecution.
6 (1967) EAR 531
7 Section 272 and 273 of the penal code of Uganda, Laws of Uganda. Cap. 106
8 Dictionary of Law 6th Edition Pg. 18
Whereas its a rule that the prosecution must prove the accused guilt,
beyond reasonable doubt, this has been watered down by the fact that in
many offences, the accused has the burden of proving something,
although his defence when he holds the burden is lighter than that borne
by the prosecution in proving guilt, for he as the accused only proves the
facts on the balance of probabilities and not beyond reasonable doubt.
An accused to begin with, according to Roger Bird9, is one charged with
an offence, and here discussed below are some of the instances when the
burden of proof shifts to the accused.
The Burden of proof will shift to the accused when a person pleads a
defence of insanity. The correct definition of the term insanity is base
upon the rules base in MNAUGHTONs case10, the case provides that a
defendant must establish that one is suffering a defeat of wisdom arising
from a disease of mind, resulting in the defendant being unaware of the
nature and quantity of his act. The leading statement was brought forth in
the MNAUGHTONs case that everyone is proved sane until the
centrally is proved to be the satisfaction of the Jury or the court. This
MNAUGHTONs rule is incorporated in section 1111 and section 1212 of
he penal code;
Every person is presumed to be of sound mind, and to have been
of sound mind at any time which comes in question until the
contrary is proved.
And section 12; A person is not criminally responsible for an act or
omission if at a time of doing the act or making the omission, he is
through any disease affecting his mind, incapable of under standing what
he is doing, or of knowing that he ought not to do the act or make the
9 Roger Bird; Oborns concise Law dictionary.
10 (1843) 8 E.R. Pg. 718.
11 section 11 of the penal code cap. 106 Laws of Uganda.
12 Ibid, section 12.
omission but a person may be criminally responsible for an act or
omission, although his mind is affected by disease if such disease does
not in fact produce upon his mind one or other of the affects afore
mentioned in reference to that act or omission.
It should be noted that under section 12 of the penal code, its the accused
to set up a defence of insanity, the prosecution is not allowed to state that
the
murder of another and the court is satisfied that he was suffering
from
such abnormality of mind. (Whether arising from a condition of
arrested
or retorted development of mind or any inherent causes or induced
by
disease or injury) as substantially impaired his mental
responsibility for his
acts and omissions in during or being a party to the murder, the
court shall make a special finding to the effect that the accused was
guilty of murder but with diminished responsibility.
The principle discussed in the case of R Vs. BYNE15 where the appellant
admitted struggling a girl and mutilating her dead body, it was discovered
by medical evidence that the killing was under sexual desire, he would
suffer from violent sexual desire finding it hard to control his lust and yet
when not under the influence of the perverted sexual desire he would be a
normal person. It was noted that at the time the accused killed the girl, he
was suffering from perverted sexual desire. It was considered that though
he was considered that he was not insane in sexual technical terms of
insanity as laid down in the MNAUGHTONs rule case, the issue was
that at the time of killing was he suffering from any abnormality of mind?
14 Section 188 (4) (1) of the penal code, cap. 106 Laws of Uganda.
15 (1960) 2 ALL ERI (1960) 3 ALL ERI
The holding was that the verdict of murder be reduced to manslaughter.
Here again we see a typical example of when the burden shifts to the
accused to prove basing on balance of probability that he can commit the
felony in his rightful mind.
Another major area of concern when the burden of proof shifts to the
accused is in the case of when one pleads intoxication. However it
should be noted that under section 3 (1) of the penal code, laws of
Uganda, says;
Save as provided in this section, intoxication shall not constitute a
defence to any criminal charge.
Except, as indicated in part 2;
Intoxication shall be a defence to any criminal charge if by reason
there
of the person charged at the time of the act or omission complained
of did not know that such act or omission was wrong or did not know
what he
was doing and ..
This means that intoxication is not a defence but only when the
intoxication or drunkenness is involuntary, when one becomes insane due
to drunkenness or when one does not know if he is doing wrong in
drinking, and lastly when the mensrea has been affected by the
drunkenness. It should be noted however that a person can become
intoxicated, either through his own voluntary intake of drugs, or being
forced either by trickery in taking of drugs or alcohol.
When relying on the defence of intoxication, its paramount that one has
to prove to court that he was incapable of forming a specific intent and
did not so because of the alcohol or even though capable of forming the
method of intent did not do so before intoxication, so here again we see
the onus is on the accused to prove based on the balance of probability.
In the case of MANTARA Vs. R16, it was argued as follows;
Its of course correct that if the accused seeks to set up a defence
of insanity by reason of intoxication the burden of establishing that
defence rests upon hi in that he must at least demonstrate the
probability of what he seeds to prove, but if the plea is really that
the accused was by reason of intoxication incapable of forming the
specific intention required to constitute the offence charged, its a
misdirection of forming the specific intention required to constitute
the offence charged, it a misdirection if the court lays the onus of
establishing this upon he accused.
This can further be supported with the case of HILL Vs.
BAXTER17, where Lord Deblin said In any crime involving
mensrea,
the prosecution must prove guilty intent but if the defence
suggests
drunkardness they must offer evidence of it, indeed didnt
have to prove it .
Again this under scores the very basic idea of the burden of proof shifting
to the accused in case of intoxication.
Another case to drive the point further is that of CHEMININGWA Vs.
R18, here again it was categorically stated that;
the accused seeks to set up a defence if insanity by reason of
holding, the Mnaughtons rules should be applied and if its found that
the accused was in such a state that he did not know, the nature and
quality of the act or that the act was wrongful, his act would be excusable
on the ground of insanity and a special verdict of guilty but insane
recorded. there was no evidence that the accused was too drunk to
19 [1920] A.C 494
form the intent of committing rape. Under these circumstances, it was
proved that death was caused by an act of violence done in furtherance of
the felony of rape. Such a killing amounted to murder therefore the
appeal by the DPP was allowed and a conviction of murder restored
Further more, we can also cite the case of WREH (or DEE) Vs R20. In
this case the appellant was charged with murder, for stubbing and killing
the deceased after he intervened in a quarrel between himself and another
person. However prier to the incident the defendant had been drinking
and actually spoke rationally to the police after being arrested, and
showed no signs of intoxication when examine by a doctor a few hours
later. He however said he was so drunk at the time of the incident, and by
next morning he couldnt remember what had happened. It was held in
this case;
Drunkardness will not amount to the defence unless there is
evidence
that renders the accused incapable of forming specific intent,
necessary to constitute the offence charged and rebults the
presumption that the man intends the natural consequences of his
acts.
provision. Its a common fact for the statute to provide that it shall be for
the defence to prove certain facts, for example in section 285;
1. Where three or more persons are found loitering, wondering,
moving about or concealing them selves, whilst any of them is
armed with an article to which this section applies, with the
intention of committing an offence relating to property or an
offence against the person, every such person shall be guilty of a
felony and shall be liable to imprisonment for seven years.
2. In a prosecution for an offence under this section, proof that the
accused was so found and so armed shall be sufficient evidence
that the accused had an intention to commit an offence relating to
property or an offence against the person unless the accused gives
an explanation of his conduct which satisfies the court that he had
no such intention. Also evidence Act cap 43 section 101 up to
105.
25 (1993) 3 WLR 519
It can be clearly shown from the above that this section of the penal code
casts the legal burden of proof upon the accused. In R Vs.
PATTERSON26. It was held that; It seems to the court that in the first
instance, the prosecution must prove that the prisoner was found in
procession (by night) of either an implement which can properly be
described as one of those specifically named, or or an instrument capable
of in fact being used as house breaking implement from its common
though not exclusive use for that purpose of from a particular
circumstances of the case in question, once possession of such an
implement has been shown the burden shifts to the prisoner to prove on
the balance of probabilities that there was no excuse for his possession of
he implement at the time in question and place. Therefore the legal
burden is placed upon the accused to prove basing on balance of
probabilities.
Further still in the case of D. KAYONGO Vs. UGANDA27, where justice
Phadke clearly state; the burden of proof lay upon the accused to show
lawful excuses for possession of keys found on him. He could fulfil this
burden on the balance of probabilities.
Also section 299 (1) of the penal code act, When any police officer has
stopped, searched or detained any vessel, boat, aircraft, vehicle or person
under he provisions of section 20 of the criminal procedure code or
searched any building, vessel, carriage, box, receptable or a place
pursuant to a search warrant issued under section 69 of the magistrates
court act, 1970, and has seized anything which may reasonably be
suspected of having been stolen or unlawfully obtained, and if the person
26 (1962) 1 ALLER 340
27 CRIMINAL CASE 29 (1971
in whose possession such a thing was found shall not give on account to
the satisfaction of the court of how he came by the same, he shall be
guilty of a misdemeanour.
The above statute also casts a legal burden of proof upon the accused.
Further more automatism as a defence, is also an instance when the
burden of proof shifts to the accused, its a defence if an act or omission
ora given event with which the accused is charged was involuntary. For
enough. Lord Denning is a gain quoted having said that the accusers own
word will rarely be sufficient unless its supported by medical evidence.
It also be noted that Bonafide claim of right instance when the burden of
proof shifts to the accused, this defence is provided for under section 8 of
the penal code A person is not criminally responsible in respect of an
offence relating to
property, if the act done or omitted to be done by him with respect
to the
property was done in the exercise of an honest claim of right and
without intention to defraud.
In this issue the case the case, which may be cited maybe CHIBIJANA
Vs. R31
Another issue to consider in which the burden of proof shifts to the
accused is in the mistake of fact defence, if a person raises the defence of
mistake of fact, if he adduces this evidence, the case will proceed as if the
facts were true, the facts he adduces must convince the court that he acted
honestly and reasonably. Under section 10 of the penal code A person
who does or omits an act under an honest
and reasonable, but mistaken, belief in the existence of any state of
things is not criminally responsible for the act or omission to any
greater extent than if the real state of things had been such as he
believed to exist.
31 12 EACA 104.
Mistake of fact is a defence because it shows luck of mensrea, mistake of
fact means in section 10 that a person dues or omits to do, or when an
of probabilities.
BIBLIOGRAPHY
1. Smith and Hogan; CRIMINAL LAW, 9th Edition, Butter Worths,
London,
Edinburg, Dublin 1999.
2. Penal code of Uganda; cap, 106 Laws of Uganda.
3. Evidence Act cap 43, Laws of Uganda.
4. Roger Bird, Osborns concise law dictionary.
5. H.H. Denis Law of evidence.
6. Criminal cases; 8th Edition Edited by Leshire Rutherford and Sheila.
7. Florence Nakachwa; class room notes.