BURDEN AND STANDARD OF PROOF

BURDEN AND STANDARD OF PROOF

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  Nur Aliah (2021) 1 Lawof Evidence II – Burden and Standard of Proof A. Burden of Proof Definition Obligation which is imposed on a party, to adduce sufficient evidence in support of his vital contention for overall success in his case. Two distinct meanings in the Law of Evidence a) Burden of establishing a case; and b) Burden of introducing evidence (evidential burden) The burden of establishing a case in a criminal trial always remain with the prosecution and in civil case subject to certain exceptions always remains with the Plaintiff. Evidential burden is the burden of adducing sufficient evidence on any given issue, to justify a favourable finding of fact on that issue. It shifts from one party to another throughout the course of the case. However, the legal burden asserting the affirmative proposition does not shift. The test who bears the evidential burden is determined by the fact which party would be likely to fail in his submission about that particular issue, if not further evidence were adduced. Example: A sues B for money on a loan deed. B says that the note was obtained by fraud. A denies that. If B does not adduce evidence to substantiate his allegation fraud, A will win the case. B has to adduce sufficient evidence to convince the Court to dismiss A’s claim. Jayasena v R (1970) AC, Lord Devlin Lord Devlin rejected the phrase ‘evidential burden of proof’ and said that it is a contradiction in terms. He stated that ‘evidential burden’ is only the burden of adducing evidence. For example, raising a doubt where, there is no duty to prove, whereas ‘legal burden’ is the burden of proving a case, by convincing the Court to believe in the existence or non-existence of a fact. Notwithstanding Lord Devlin’s rejection, this phrase is often used in judgements and by leading authors.
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  Nur Aliah (2021) 2 Relationshipbetween ‘fact in issue’ and ‘burden of proof’ Facts in issues are vital issues central to the allegation of the party and failure by him to adduce sufficient evidence in support of a fact in issue means that he has failed to discharge the legal burden and thus he will fail in overall contention. Woolmington v DPP (1935) AC 462 Facts Woolmington was charged with murder. The trial judge directed the jury that once the prosecution had proved the killing, they should presume it to be murder unless the defendant proved facts justifying a verdict of manslaughter or an acquittal on the ground of accident. The defendant appealed to the House of Lords arguing a mis-direction on the burden of proof. Held The appeal was successful and the conviction was quashed. Lord Sankey LC observed: It is not for the prisoner to establish his innocence but for the prosecution to establish his guilt. Manchi v DPP (HL) (1942) ACI Held Accused had to discharge the evidential burden relating to a charge of provocation before the prosecution was put to the legal burden of negativing the defence. R V Gill (1963) 2 A11 ER 688 If a defendant wishes to raise a particular defence to a charge, then he must raise the defence. Once he has succeeded in doing this then it is for the Crown to destroy that defence in such manner as to leave in the jury’s mind no reasonable doubt that the accused cannot be absolved on the grounds of the alleged defence. R v Bone The judge failed to direct the jury that it was for the prosecution to negative the defence of duress which the defendant had raised to a charge of housebreaking and larceny. Held Where the judge fails to direct the jury in this respect the conviction will be quashed.
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  Nur Aliah (2021) 3 B.Standard of Proof Definition Degree required to discharge a burden. Miller v Minister of Pensions (1974) 2 A11 ER 372, Denning J “It need not reach certainty, but it must carry a high degree of probability proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community of it admitted fanciful possibilities to deflect the court of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence, ‘of course it is possible, but not in the least probable,’ the case is proved beyond reasonable doubt, but nothing short of that will suffice. R v Summers 36 Cr App. R14, Lord Godard CJ “If a jury is told that it is their duty to regard the evidence and see that it satisfies them so that they can feel sure when they return a verdict of guilty, that is must better than using the expression ‘reasonable doubt’ and I hope in future that will be done.” Ferguson v R [1979] IWLR 94 Beyond reasonable doubt is when defendant’s guilt was generally upheld as safe and sufficient. R v Ching [1976] 63 Cr. App R 7 “We point out and emphasize that if judges stopped trying to define that which is almost impossible to define there would be fewer appeals.” R v Carr-Briant [1943] KB 607 Standard of proof required by the defence is not higher than the burden which rests upon a plaintiff or a defendant in civil proceedings. Bater v Bater [1950] 2 A 11 ER 458, Denning LJ In proportion as the crime is, so ought the proof to be clear. Blyth v Blyth [1966] 1 A 11 ER 524, Lord Denning The degree of probability depends on the subject matter in proportion. As the offence is grave, so ought the proof to be clear. R v Hampshire Country Council ex parte Ellorton [1985] IWLR O’, Connor LJ “The general rule is that in criminal cases the criminal standard of proof beyond reasonable doubt is required, while in civil cases the civil standard of proof on the balance of probabilities is sufficient. Sometimes, the same facts can give rise to criminal and civil liability. Hornal v Neuberger Products Ltd [1956] 3 A11 ER 970 The more serious the allegation the higher the degree of probability that is required.