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-
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...
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