This paper discusses the meaning of “burden of proof” and “standard of proof” and will also explain the direction of the Judge given to the jurors in the given set of facts.
1. BURDEN OF PROOF
It is derived from the Latin expression onus probandi. The burden of proof or onus of proof refers to the obligation on a party to satisfy the court to a specified standard of proof that certain facts are true. The facts for this particular purpose are facts in issue.
1 Burden of proof is closely associated with the Latin maxim semper necessistas probandi incumbit ei qui agit which means the necessity of proof always lies with the person who lays the charge.
2 The general rule is that the burden lies on a party who asserts in the affirmative.
In the case of ROBINS v NATIONAL TRUST COMPANY3, the House of Lords stated, inter alia, that “In the nature of things, the negative is more difficult to prove than the positive. It is an ancient rule founded on consideration of good sense and should not be departed from without strict reason.”
Burden of proof has two distinct meanings, namely; legal burden and evidential burden.
1.1 Legal burden
This is the burden of proof that is discharged by pleadings. The burden of proof in this sense rests on the party, whether plaintiff or defendant who substantially asserts in the affirmative of the issue. It is fixed by either substantive law or pleading at the beginning of the trial by the state of pleadings and it remains unchanged throughout the trial.
1.2 Evidential burden
This is the burden of adducing evidence that a party has. It may shift constantly according as one scale of evidence or other preponderance. The onus in this case rests on the party who would fail if no evidence at all or no more evidence is called on the other side.
A. BURDEN OF PROOF IN CRIMINAL CASES
In criminal cases, the burden of proof rests entirely with the prosecution. The defence is not required to prove innocence as there exists a presumption of innocence. Article 18 (2) (a) of the Constitution4 provides as follows:- “(2) Every person who is charged with a criminal offence- (a)shall be presumed to be innocent until he is proved or has pleaded guilty;”
Where the accused introduces new things in his defence such as self-defence, automatism and provocation, the burden does not shift to the accused. It is up to the prosecution to disprove the defence raised.
In the case of MWEWA MURONO v THE PEOPLE5, wherein the Appellant was convicted of murder contrary to Section 200 of the Penal Code, Cap 87 of the Laws of Zambia and was sentenced to suffer death. It was alleged that on 19th July 2003 at Mansa he did murder one Francis Mwewa. He appealed against both conviction and sentence. The Supreme Court held, inter alia, that in criminal cases, the rule is that the legal burden of proving every element of the offence charged, and consequently the quilt of the accused, lies from beginning to end , on the prosecution.
Similarly, in the case of R. v JOHN KAHYATA6 it was held that: “An incriminating statement by an accused will be excluded from evidence if it was induced by a person in authority. ‘Induced’ is broadly defined, and may include prolonged questioning as well as threats or promises. The burden of proving that a confession is voluntary is on the prosecution. The strict application of the law against coerced confessions is constitutionally important.”
BLAGDEN, C.J. (as he then was) in the case of THE PEOPLE v NJOVU7 where the accused, James Fuleshala Njovu, aged fifty-nine years, was charged with the murder of his wife, Tilabilenji Njovu, on 26th May, 1968, at Chipata said as follows:- “The burden of proof is on the prosecution to establish that charge against the accused, and the standard of proof which must be attained before there can be a conviction is such a standard as satisfies me of the accused’s guilt beyond all reasonable doubt, so that I can be sure that he did murder Tilabilenji Njovu…
Let me stress at once that where, as here, the issue of provocation is raised, there is no burden on the accused to establish it; the burden is on the prosecution to negative it and moreover to negative it so convincingly that I can be sure beyond all reasonable doubt that the accused was not provoked in the manner or to the extent specified in sections 182 and 183 of the Penal Code, to which I have just referred…”
The evidential burden is satisfied by establishing a prima facie case against the accused. If no evidence is called by the accused, the judge should satisfy himself or herself that the prosecution has proved its case beyond reasonable doubt. This is at the stage of submissions on a case to answer.
8 B. BURDEN OF PROOF IN CIVIL CASES
In civil cases, the burden of proof lies on the Plaintiff to prove the facts in issue. In the event that the Defendant has a counter-claim then the burden of proof lies on the Defendant in relation to the counter-claim.
In the case of JOSEPH CONSTANTINE STEAMSHIP LINE LIMITED v IMPERIAL SMELTING CORPORATION9, a ship was chartered to load a cargo, but on the day before she should have preceded to her berth an explosion occurred in the auxiliary boiler, which made it impossible for her to undertake the voyage. The cause of the explosion could not be definitely ascertained, and, of three possible explanations, only one would have imported negligence on the part of the ship-owners. The charterers claimed damages from the ship-owners for failure to load a cargo.
At the time of the accident, the ship was not an “arrived” ship, and, therefore, neither the express warranties nor the exceptions clauses in the charter party had attached. The question thus arose whether, on a plea of frustration of the contract, the party setting up the plea had to prove that the frustration was not due to his negligence or whether the party denying the frustration must affirmatively prove negligence on the part of the party setting up the plea. It was held that the burden of proving their claim was upon the claimants, and this burden they had failed to discharge, with the result that the claim had to be dismissed.
The Supreme Court in the case of KHALID MOHAMED v ATTORNEY GENERAL10 held that the Plaintiff must prove his claim and cannot automatically succeed even when a defence fails. The Court said the following: “A plaintiff must prove his case and if he fails to do so the mere failure of the opponent’s defence does not entitle him to judgment. I would not accept a proposition that even if a plaintiff’s case has collapsed of its inertia or for some reason or other, judgment should nevertheless be given to him on that a defence set up by the opponent has also collapsed.
Quite clearly a defendant in such circumstances would not even need a defence.” In the same way, in NETWORK CONSULTANTS v YETI MOTORS11, the Court stated that; “In respect of a counter-claim, the Defendant is the Plaintiff and must prove any allegation made. The Defendant’s counter-claim should not be allowed as the Defendant did not adduce any evidence at trial to prove its claim. The Defendant’s counter-claim cannot stand simply for the reason that the Plaintiff did not challenge the counter-claim at the trial or in its submissions.”
C. INCIDENCE ON THE BURDEN OF PROOF
The burden of proof as discussed above may be affected by statute in the following instances: (i) Where statute creates offences of strict liability.
12 (ii) Where, in criminal cases, statute shifts the burden of proof to the defence. For example, when the accused raises the defence of diminished responsibility, it is the accused that must prove the defence as it arises from facts within the accused’s peculiar knowledge.
Section 12A(3) of the Penal Code13 reads as follows:- “(3) On a charge of murder, it shall be for the defence to prove the defence of diminished responsibility and the burden of proof shall be on a balance of probabilities.”
(iii) Article 18(12)(a) of the Constitution14 states as follows:- “(12) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of- (a)paragraph (a) of clause (2) to the extent that it is shown that the law inquestion imposes upon any person charged with a criminal offence theburden of proving particular facts;”
The above stated provision means that the presumption of innocence is subject to any law which imposes upon any person charged with a criminal offence the burden of proving particular facts.
In the case of ATTORNEY-GENERAL OF NORTHERN RHODESIA v SMART LYAMPALI AND EDWARD MUNGONI LISO15, where the two respondents to the appeal had been convicted inter alia in the magistrate’s court of the possession of offensive weapons in a public place contrary to section 72A (1) of the Penal Code, that is a bow and arrow and a bicycle chain. The Supreme Court in interpreting Section 72A (1) said as follows:- “In order to prove the offence charged against the respondents it was for the Crown to establish that each of them had with him in a public place an offensive weapon. When this burden had been discharged, the respondents would be guilty of the offence unless they were able to satisfy the court, on a balance of probabilities, that they had either a lawful authority or a reasonable excuse for having the weapons with them.”
2. STANDARD OF PROOF
The standard of proof is the extent to which a party discharges burden of proof. It asks to how convinced the trier of fact must be of the facts in issue. There exists no absolute standard of proof but varying degrees.16
A. STANDARD OF PROOF IN CRIMINAL CASES
The standard of proof is ‘proof beyond reasonable doubt’. The landmark case of WOOLMINGTON v DPP17 expounded the standard of proof in criminal cases and upheld the principle that the burden of proof is upon the prosecution. Proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. It means that the proposition being presented by the prosecution must be proven to the extent that there could be no reasonable doubt in the mind of a reasonable person that the accused is guilty of the charge.
In KAMPAFWILE v THE PEOPLE18 the appellant was convicted of burglary and theft, contrary to sections 271 (1) and 243 of the Penal Code and was consequently sentenced to two years’ imprisonment with hard labour and an order of deportation to his home district, namely Mporokoso, was made against him. The Court stated, inter alia, that; “It is trite law that in a criminal prosecution when a prisoner pleads not guilty he thereby puts the prosecution to prove all the essential ingredients of the charge. Such proof should be beyond reasonable doubt.” As the prosecution had not proved the charge beyond reasonable doubt, the Court allowed the appeal and set aside the sentence.
B. STANDARD OF PROOF IN CIVIL CASES
The standard of proof in civil cases is on the balance of probabilities. Lord Nicholls in the case of RE H (MINORS)19 explained it as follows:- “The balance of probabilities standard means that a Court is satisfied that an event occurred if the Court considers that, on the evidence, the occurrence of the event was more likely than not.”
In the case of LISWANISO SITALI AND OTHERS v MOPANI COPPER MINES PLC20, the Supreme Court inter alia reiterated the principle that in a civil case the standard of proof is proof on a preponderance of probabilities.
In the case of Bater v Bater21, Lord Denning stated as follows: “It is true that by our law there is a higher standard of proof in criminal cases than in civil cases, but this is subject to the qualification that there is no absolute standard in either case. In criminal cases the charge must be proved beyond reasonable doubt, but there may be degrees of proof within that standard. Many great judges have said that, in proportion as the crime is enormous, so ought the proof to be clear. So also in civil cases. The case may be proved by a preponderance of probability, but there may be degrees of probability within that standard.
The degree depends on the subject-matter. A civil court, when considering a charge of fraud, will naturally require a higher degree of probability than that which it would require if considering whether negligence were established. It does not adopt so high a degree as a criminal court, even when it is considering a charge of a criminal nature, but still it does require a degree of probability which is commensurate with the occasion. Likewise, a divorce court should require a degree of probability which is proportionate to the subject-matter.”
The Supreme Court of Zambia has agreed with Lord Denning’s remarks made in Bater v Bater. In the case of AKASHAMBATWA MBIKUSITA LEWANIKA AND OTHERS v FREDERICK JACOB TITUS CHILUBA22 the Supreme Court stated, inter alia, that “Parliamentary election petitions were required to be proved to a standard higher than on a mere balance of probability and therefore in this, where the petition had been brought under constitutional provisions and would impact upon the governance of the nation and deployment of constitutional power, no less a standard of proof was required. Furthermore the issues raised were required to be established to a fairly high degree of convincing clarity.”
The Supreme Court reaffirmed this position in the case of ANDERSON KAMBELA MAZOKA AND OTHERS v LEVY PATRICK MWANAWASA, THE ELECTORAL COMMISSION OF ZAMBIA, THE ATTORNEY GENERAL23 that in election petitions the standard of proof is higher than a mere balance of probability; and that averments in a petition have to be proved to a convincing degree of clarity.
The degree of probability varies from case to case. For instance, a higher standard involved on allegation of fraud. Allegations of fraud even in a civil case must be proved on a higher standard than balance of probabilities because they are of criminal nature as held by the Supreme Court in the case of SABLEHAND ZAMBIA LIMITED v ZAMBIA REVENUE AUTHORITY24.
In C v C AND H25 it was held that proof of allegations of adultery should be on a balance of probabilities but higher standard though not criminal standard. In HOWARD v HOWARD26 the Court upheld the decision in Bater v Bater and stated that “Cruelty is a serious charge to make and the law requires that it should be proved beyond reasonable doubt. That involves that each of the ingredients of the offence must be proved beyond reasonable doubt.”
3. DIRECTION OF THE JUDGE TO THE JURORS
The Judge was directing the jurors to follow the principles laid down in Woolmington v DPP as stated above. This being a criminal case the burden of proof is upon the prosecution. It is the responsibility of the prosecution to prove all the elements of the charge of theft. It is not for the accused, C, to prove that he is innocent. There exists the presumption of innocence as recognised by Article 18 (2) of the Constitution. The standard of proof in criminal cases is beyond reasonable doubt. If the members of the jury have any reasonable doubts that C stole the thing he is has been accused of then they must not convict him. If the jurors have no reasonable doubt that C committed theft then they should find him guilty.