Law of Evidence - Burden and standard of proof

Burden of proof

The obligation to establish a case or facts upon a particular issue.

Kinds of burden in law

The legal burden and the evidential burden.

"He who alleges must prove"

The principle that the party who asserts a claim must establish it.

Who bears the burden of proof?

The party who asserts, in both criminal and civil cases.

Alternative names for the legal burden

The persuasive burden or the risk of non-persuasion.

Consequence of failing to discharge the legal burden

The party bearing the burden will lose on that issue if not discharged to the required standard of proof.

Woolmington v DPP [1935]

In criminal cases, the obligation to prove the allegation remains on the prosecution for the entire case.

Facts of Woolmington v DPP

the defendant was charged with the murder of his wife from whom he was separated. He gave evidence to the effect that whilst endeavouring to induce her to return to live with him by threatening to shoot himself, he had shot and killed her accidentally.

What was the jury directed to in Woolmington v DPP ?

once it was proved that the defendant shot his wife it was for him to prove the abscence of malice although malice was an essential element for the charge of murder

Does the prisoner have the burden to prove his innocence?

No, he is not bound to satisfy the jury of his innocence; it is sufficient for him to raise a doubt as to his guilt.

R v Hepworth & Fearnley

No particular formula of words is required when directing a jury in a criminal case, provided they are told the onus is on the prosecution and must feel sure of guilt.

Lord Goddard CJ on jury direction

The jury should be directed first that the onus is always on the prosecution, and secondly that before they convict they must feel sure of the accused's guilt.

State v Hansrai Ori & Tulsie Persaud

Defendants were found guilty of acting in concert and wounding Bhagwan Singh with intent.

Tulsie's conviction on appeal in State v Hansrai Ori & Tulsie Persaud

Quashed due to no evidence showing he acted in concert with Hansraj.

Hansraj Ori's defence in State v Hansrai Ori & Tulsie Persaud

Raised an alibi; the jury rejected it and found him guilty.

Holding on burden of proof direction in State v Hansrai Ori & Tulsie Persaud

the direction of the burden of proof was so causal that the circumstances called for a further direction or reminder on the burden of proof

Crane JA on Alibi and Burden of Proof

If a jury rejects or disbelieves an alibi, they must still satisfy themselves that the prosecution has discharged the burden of proof by proving all necessary ingredients of the charge.

automatism

Automatism is the performance of actions without conscious will, purpose, or reasoned intention, where the body moves without the mind directing it.

R v Burns: Burden of proof for insanity vs. non-insane automatism

The accused bears the legal burden of proving insanity, but only the evidential burden with respect to non-insane automatism.

Summing-up when both insanity and automatism arise

The summing-up must distinguish between the two issues, particularly with regard to the burden of proof.

Factors operating upon a disease of the mind (e.g., drink or drugs) and the possibility that the defendant did not appreciate the effect they would have on his mind

A direction should be given that the burden lies on the prosecution to negative a defence of automatism.

Baptiste v The State - Pleas raised

Self-defence, accident, and provocation in reply to a murder charge.

Baptiste v The State - Judge's error on self-defence

The judge repeatedly referred to matters as 'defences' and failed to make clear that self-defence had actually arisen.

Baptiste v The State - Judge's error on provocation

The judge failed to clarify that a plea of provocation might succeed even had the appellant formed an intention to kill or to inflict grievous bodily harm.

Baptiste v The State - Appeal Outcome

The appeal was allowed and a retrial was ordered.

Baptiste v The State - Special direction requirement

Judge must give a special direction that the prosecution bears a further burden to negate beyond reasonable doubt pleas of self-defence, provocation, or accident.

Baptiste v The State - Consequences in murder trials

If the onus to negate the pleas is not discharged by the prosecution the accused must be acquitted (self-defence or accident) or convicted of manslaughter (provocation).

Ry Johnson on alibi and self-defence burden

"If a man puts forward an answer in the shape of an alibi, as in the shape of self-defence, he does not in law thereby assume any burden of proving that answer."

Ry Johnson on trial judge's direction regarding defences

A Trial judge must direct the jury that there is a burden on the prosecution to negate beyond reasonable doubt defences raised by the defence.

Burden of proof in civil cases

Rests upon the party, whether plaintiff or defendant, who substantially asserts the affirmative of the issue.

How is the burden of proof settled in civil cases?

Formed at the beginning by the state of the pleadings, remaining unchanged throughout the trial and never shifting.

Failure to discharge the burden of proof

If, when all the evidence, by whomsoever introduced, is in, the party who has this burden has not discharged it, the decision must be against him.

Proof of essential allegations

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, and the plaintiff must prove his cause of action.

Wisher v Essex Area Health Authority Facts

The plaintiff claimed damages from the defendant health authority for the negligent medical treatment he had received in their special care baby unit.

Wisher v Essex Area Health Authority - Trial & Court of Appeal Result

The defendants were held liable for failing to prove the plaintiff's condition was not caused by negligence, and the Court of Appeal dismissed their appeal.

Wisher v Essex Area Health Authority - House of Lords Onus of Proof

The House of Lords held that the onus of proving causation lies on the pursuer or plaintiff in civil cases

Wisher v Essex Area Health Authority - Order for Retrial

Causation must be retried before another judge due to conflicting expert evidence and the trial judge's failure to make relevant findings of fact.

Joseph Constantine Steamship Line Ltd v Imperial Smelting Corp Ltd

A landmark case establishing that a promisor relying on frustration does not have to prove absence of neglect.

Facts of Joseph Constantine Steamship Line Ltd v Imperial Smelting Corp Ltd

Charterers claimed damages for failure to load cargo; ship owners pleaded frustration due to an explosion of unascertained cause.

Burden of proof in contract frustration

The promisor who relies on frustration is not bound to prove affirmatively that the destruction was not brought about by his neglect or default.

Who must prove neglect or default in contract frustration?

It is for the promisee who seeks to avoid the legal result of the frustration to establish that the destruction was due to the neglect or default of the promisor.

Exceptions to the general rule in Woolmington v DPP [1935] AC 462

Insanity, express statutory exceptions, and implied statutory exceptions.

Burden of proof in insanity

A legal burden of proof may lie on the accused in criminal cases on a specific issue only, within a case.

Bratty v AG of Northern Ireland (1963) AC 386 Facts

the accused was charged with the murder of a girl by strangulation. He raised the defence, inter alia, of insanity. He was convicted.

Rules of the insanity defence from Bratty v AG of Northern Ireland (1963) AC 386 Facts

The accused must prove on a balance of probabilities a defect of reason from a disease of the mind, and ignorance of the nature and quality of actions; if raised unsuccessfully, there is no room for automatism.

R v Edwards (1975) QB 48 - Facts

The defendant was convicted of selling intoxicating liquor without a justices' licence contrary to the Licensing Act.

R v Edwards (1975) QB 48 - Ground of appeal

The defendant appealed on the ground that the prosecution should have proved there was no justices' licence in force because they had access to the register.

R v Edwards (1975) QB 48 - Holding

The court found that on the construction of the statute, it was for the defendant to prove they held a justices' licence, not on the prosecution to prove they did not.

Muneem v Williams 4 WIR 153

There was no onus on the prosecution to prove that the vehicle was not licensed as a hire car, and the onus was on the accused to prove that a policy of insurance covered the user of the vehicle on the particular occasion.

R v Ewens (1967) 1 QB 322

D found to be in possession of a drug contrary to the drug act. Once prosecution proved possession, the onus of establishing the statutory defence lay on the defendant.

Rv Hunt (1987) 1 AER 1 - Facts

The accused was convicted of unlawful possession of morphine, but the prosecution called no evidence stipulating the amount of morphine in the white powder found at his home.

Rv Hunt (1987) 1 AER 1 - Holding

The House of Lords found that possession of a powder containing no more than 0.2% of morphine did not contravene the section; proof of possession alone was not enough, and the amount must also be proved.

Evidential burden in criminal cases

A duty to call evidence on a particular issue; this is not a burden of proving.

Who usually bears the evidential burden in criminal cases?

The party who has to prove the case legally (the legal burden).

Evidential burden exception in criminal matters

The defence must "raise" the issue in criminal cases.

R v Gill on evidential burden on criminal cases Facts

Defendant charged with conspiracy and larceny relied on duress, claiming threats of violence to himself and his wife by co-conspirators if he did not carry out the plan.

Burden of proof for duress from R v Gill

The legal burden to disprove duress remains on the prosecution, but the evidential burden to raise the defence by sufficient evidence is on the accused.

DPP v Bailer [1995] 1 Cr App R 257:

a police officer was charged with murder after shooting the deceased the day after having an altercation with him. He put forward the defence of provocation and also that the gun went off after a struggle. The judge did not leave the defence of self-defence to the jury.

Self-defence arising on the facts in DPP v Bailer

If the facts include matter that could raise self-defence, the issue should be left to the jury even if the accused did not formally rely on it. EVEN IN IT WAS NOT RAISED BY THE DEFENCE

Standard of proof

The degree of proof required, meaning evidence placed before the tribunal must offer proof to a certain standard.

Variation in standard of proof

The standard varies in criminal and civil matters.

Criminal standard of proof requirement

"Proof beyond reasonable doubt" is required, as established in Woolmington v DPP.

Purpose of the criminal standard

The standard which the prosecution must achieve in criminal trials to convict the accused.

Meaning of "Beyond reasonable doubt"

It does not mean proof beyond a shadow of a doubt.

Miller v Minister of Pensions (1947) - Facts

An army husband served in the Middle East, developed cancer, and died within one month; the tribunal rejected the widow's higher pension claim.

Miller v Minister of Pensions - Standard of proof ruling

The standard of proof need not reach certainty, but it must carry a high degree of probability.

Miller v Minister of Pensions - Proof beyond reasonable doubt

Does not mean proof beyond a shadow of a doubt, but proof where any remote possibility in favour can be dismissed as 'possible, but not in the least probable'.

Walters v R (1969)

Case where a reasonable doubt was described as a doubt of the quality and mind which, when dealing with matters of importance in your own affairs, you allow to influence you.

Lord Goddard on jurors hesitating in their own affairs

It fails to convey a particular standard because hesitation levels vary subjectively among individual jurors.

Recommended alternatives to 'satisfied' in criminal jury directions

'Satisfied beyond reasonable doubt', 'completely satisfied', or 'feel sure of the prisoner's guilt'.

Civil standard of proof

A balance of probabilities is the standard required.

Hornal v Neuberger Products Ltd (1956) 3 AER 920

An action for damages for breach of warranty or alternatively, for misrepresentation.

Lord Denning on civil standard of proof in Hornal v Neuberger

The balance of probability is the correct standard, but there may be degrees of probabilities within that standard.

Degrees of probability depending on subject matter (Hornal v Neuberger)

A charge of fraud requires a higher degree of probability than that which it would require if negligence were being established.

Blyth v Blyth (1966) 1 AER 524 - Context

A case of divorce proceedings concerning adultery.

Blyth v Blyth (1966) - Standard of proof

Like any civil case, it may be proved by a preponderance of probability, but the degree of probability depends on the subject matter.

Blyth v Blyth (1966) - Gravity of the offence

In proportion to the offence, if grave, so ought the proof to be clear.

La Salle, Shah et al v R (1972) 20 WIR 361

A mutiny occurred in the First Battalion of Trinidad and Tobago which had been organised by the accused. The court held that the standard of proof where the burden is on the accused is proof on a balance of probabilities.

R v Carr-Briant (1943) KB 607

When a matter is presumed against an accused person 'unless the contrary is proved', the accused's burden is less than proof beyond a reasonable doubt and can be discharged on a balance of probabilities.

Issues of law and practice at trial

Determined by the Judge.

Questions of fact at trial

Within the jury's province.

Criminal Trials at Assizes (High Court)

Judge and jury function at trial.

Magistrates' Courts (criminal and civil matters)

Determined solely by the Magistrate with no division of function; the tribunal acts as both judge and jury.

Scope of judge's task in determining issues of law at a jury trial

Hearings and/or rulings on Disclosure, Admissibility of evidence, No Case Submission, and Voir Dire.

Resolution of disclosure issues between parties

Issues of disclosure which cannot be resolved between the parties will be determined by the trial judge.

Director of Public Prosecution's Guidelines on Disclosure (Trinidad and Tobago)

Describes policy on disclosure in criminal proceedings.

Issuance of the 2007 Disclosure Guidelines in Trinidad and Tobago

Issued in December 2007 to prosecutors, members of the Trinidad and Tobago Police service, and members of the Bar.

Effect of the 2007 Disclosure Guidelines

Confirmed what has been the unwritten policy of the Office of the Director of Public Prosecution

R v Epping and Ongar JJ ex p Manby

Nevill v The Fine Art and General Insurance Co. Ltd

Herniman v Smith

Gary Reyes v AG of Trinidad and Tobago

DPP v Chief Magistrate (No 2)

Who determines issues of admissibility?

The Judge.

What branch of law does admissibility relate to?

The Law of Evidence, specifically issues of adjectival law.

Is admissibility an issue of law or fact?

An issue of law.

Henriques and Carr v R

Ajodha v The State

Rv Reynolds

Mohammed v The State