BURDEN OF PROOF

Question 1

What is proof?

Answer 1

It is the effect that the evidence has on the minds of the trier of facts and the conclusion from the evidence before him. It was defined by Ollenu in Majolagbe v Larbi as:
“the establishment of fact by proper legal means’ in other words, the establishment of an averment by admissible evidence”
In a broad sense, proof is the establishment or ascertainment of the truth in a case.**

Question 2

What Is the burden of proof

Answer 2

When a person is bound to prove the existence of any fact, it is the obligation to prove the fact in issue is placed on that person.
NRCD 323, S. 17 states that “ Except as otherwise provided by law, the burden of producing evidence of a particular fact is on the party against whom a finding on that fact would be required in the absence of further evidence.”

Question 3

What is the standard of proof?

Answer 3

It is the degree of cogency/persuasiveness required of the evidence in order to discharge the burden i.e. the threshold against which the question of whether or not a particular burden has been discharged

Question 4

Legal burden (burden of persuasion) and evidential burden

Answer 4

The burden of proof may either be the legal burden and/or the evidential burden. The legal burden is the obligation to conclusively prove a particular fact (“the obligation on a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court” ) whiles the evidential burden is the obligation to adduce sufficient evidence concerning a fact so as to make conclusive proof of that fact a possibility.

Question 5

Question on whether the evidential burden has been discharged.

Answer 5

Whiles the question on whether the evidential burden has been discharged may be examined in the course of the trial, the question on whether the legal burden has been discharged can only come to be considered properly at the end of the trial, when the ultimate question of guilt or innocence is determined. The question on whether the evidential burden has been discharged is a question of law reserved for the tribunal of law i.e. the judge or magistrate. The factual question on whether the legal burden has been discharged is reserved for the tribunal of fact.

Question 6

The legal/persuasive burden
Who does the legal burden rests on?
Woolmington v DPP

Answer 6

Lord Sankey stated inter alia that “no matter what the charge or where the trial the principle that the prosecution must proof the guilt of the prisoner is part of the common law of England”. This position is provided for in section 14 NRCD 323 which provides that: “Except as otherwise provided by law , unless it is shifted a party has the burden of persuasion as to each fact the existence or no-existence of which is essential to the claim or defence he is asserting.

Question 7

Who does the legal burden rests on?
Section 15(1) of NRCD 323

Answer 7

‘unless and until is shifted, the party claiming that a person is guilty of crime or wrongdoing has the burden of persuasion on that issue” in other words he who avers must prove and given that it is the prosecution who avers in criminal matters then the prosecution must prove.

Question 8

Who does the legal burden rests on?

COP v Antwi

Answer 8

The court held that the burden of proof (persuasion) remains throughout on the prosecution and the evidential burden shifts to the accused only if at the end of the case for the prosecution an explanation of circumstances peculiarly within the knowledge of the accused is called for.

Question 9

Legal/persuasion burden in criminal matters and the presumption of innocence

Answer 9

Proof of the essential ingredients of an offence rests entirely with the prosecution and the accused bears no burden in respect of the essential ingredients of an offence. Article 19(2) of the 1992 constitution provides as follows:
“a person charged with a criminal offence shall be given a fair hearing and shall be presumed innocent until he is proved or has pleaded guilty”
This provision affirms the point that unless a person’s pleads guilty his guilt must be proven by the prosecution

Question 10

When would the burden of persuasion on an issue shift to an accused?

Answer 10

a. Express statutory exceptions: e.g. include section 148 Act 29- having possession of stolen property, Section 206 Act 29- possession of an offensive weapon in a public place, Section 244 Act 29- acceptance of bribe by a public officer, section 274 Act 29- association with a prostitute.

Question 11

When would the burden of persuasion on an issue shift to an accused?

Answer 11

b. Implied statutory exceptions: Section 101 Magistrates court act provides that “
“where the defendant to an information or complainant relies for his defence on any exception, exemption, proviso, excuse or qualification, whether or not it accompanies the description of the offence or matter of complaint in the enactment creating the offence or which the complaint is founded, the burden of proving the exception, exemption, proviso or qualification shall be on him; and this notwithstanding that the information or complaint contains allegation negating the exception. Exemption, proviso, excuse or qualification”.

Question 12

When would the burden of persuasion on an issue shift to an accused?

Answer 12

c. Insanity: an accused who alleges insanity would bear the persuasive burden on his state of mind.

Question 13

When would the burden of persuasion on an issue shift to an accused?

Answer 13

NOTE: when the burden shifts to an accused it does not impose on the accused the ultimate or essential ingredient in the offence hence once the prosecution opens the case and adduces sufficient evidence to establish a prima facie case, it is then the responsibility of the accused to raise enough evidence in support of his/her defence to justify the defence being considered by the jury or trier of fact as the case may be before the prosecution would again assume the legal burden of disproving the accused defence

Question 14

Evidential burden

Answer 14

This arises where a person relies upon a fact or an issue in which case there is an obligation on that party to produce sufficient evidence on that fact or issue. That is the duty that lies on a party to adduce sufficient evidence to support his case regarding an issue at stake in order to avoid a ruling of the court being given against him.

The question on whether the evidential burden has been discharged is determined during the course of the trial and hence a judge may dismiss or withdraw an issue from a jury if a party on who the burden lies fails to adduce sufficient evidence in support of that issue.

Question 15

Evidential burden (cont’d)

Answer 15

When the burden to produce evidence is on the accused in respect of any fact the converse of which is essential to guilt, the accused need only to adduce sufficient evidence so that on all the evidence a reasonable mind could have a reasonable doubt as to guilt. i.e. the preponderance of probability.

Question 16

MATTERS NOT REQUIRING PROOF

Answer 16

While the general principle is that all facts in issue or relevant to the issue in a given case must be proved, certain types of evidence are taken to be established without the necessity to adduce facts to proof them. These include judicial notice, admissions, confessions and statutory exemptions.

Question 17

What is judicial notice?

Answer 17

Recognition without of something as existing or being true. The acceptance by a judicial tribunal of the truth of fact without proof, on the basis that it is within the tribunal’s own knowledge. In essence judicial notice is taken of matters which are so notorious or clearly established that evidence of their existence is unnecessary. E.g. where the date of Ghana’s independent is in issue, a party who wishes to establish the fact need not call a witness to give evidence under oath because this is a matter which judicial notice can be taken of.

Question 18

What can judicial notice be taken of?- Section 9 NRCD 323

Answer 18

Judicial notice can be taken of facts which are
• Generally so known within the territorial jurisdiction of the court (note that this may differ from one region or district or area to the other so that a fact that is notoriously known in Kumasi may not necessarily be known in takoradi)
• so capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned that the fact is not subject to reasonable dispute. (i.e. it should not be a fact that different people share different ideas or notions)

Question 19

Nyarko v Republic

Answer 19

In Nyarko v Republic, another condition was added by the court i.e. the court stated inter alia that where a fact was so notorious that judicial notice could be taken of it, evidence to the contrary could be treated as perjury or palpably false. The case involved judicial notice of the fact that Rothmans cigarettes were not locally manufactured at a time that it was generally known that cigarettes were a foreign commodity.

Question 20

R v Mensa & Others

Answer 20

In R v Mensa & Others, the first appellant was charged with sedition and the 2nd and 3rd appellants with aiding and abetting the commission of sedition. The trial judge took judicial notice of the fact that the economic ills of the country were due to world inflation and consequently held that the document written by J.H. Mensah was seditious. On appeal, the high court per Koranteng J, stated that although world inflation was a matter of public notoriety, the extent to which world inflation affected each country was not a matter of which judicial notice could be taken. One could not make a sweeping statement about world inflation being due to the oil crisis and the extent to which this country has been affected without basing such observation on any evidence.

Question 21

Judicial notice and personal knowledge

Answer 21

The general rule is that a judge is not permitted to rely on personal knowledge of facts even if they are known to him (Republic v Mensah & others) e.g. the fact that a judge has convicted a person of one crime cannot be used by the judge on another day in a second trial of the same accused person especially if the judge would be drawing the conclusion that because of the first offence, the accused committed the second as well.

Question 22

Judicial notice of historical facts and documents

Answer 22

Also in respect of historical facts and documents, judicial notice may be taken of them save for where the facts in the books disputed. In Hilodgie v George, the supreme court ruled that the court of appeal erred in taking judicial notice of facts in a textbook which had been challenged by other authors and traditional rulers.

Question 23

Judicial notice of Political and administrative matters

Answer 23

Judicial notice may be taken of political matters such as the fact of Ministers, deputy minsters, districts assemblies etc. as matters which can easily be verified from sources which cannot be reasonably questioned.
NB: judicial notice cannot be taken of the economy of another country

Question 24

Judicial notice of Trade and professional practices

Answer 24

Where custom, trade or professional practices have been established in a previous court decision, the court can take judicial notice of the established.

Question 25

What is an admission?

Answer 25

It is voluntary acknowledgement of the existence of facts relevant to an adversary’s case. i.e. the fact or issue have been conceded and hence the court can act on them without proof of the facts constituting the admission. They may be formal (i.e. cannot be contracted by the maker of the admission and are hence conclusive against the person making them) informal admissions (they raise presumptions and hence may be rebutted, contradicted or explained by evidence). Admissions besides being a matter not requiring proof also is an exception to the hearsay rules.

Question 26

Who can make an admission?

Answer 26

• A party himself or by someone in privity of him
• A party against whom it is offered has manifested his adoption of, or his belief in the truth of, the statement
• A party against whom it is offered has authorized the declarant to make a statement concerning the subject matter of the statement.
• The declarant was an agent or employee of the party against whom it is offered and the statement concerns a matter within the scope of the declarant’s agency or employment and was made before the termination of the agency or employment
• The declarant made the statement while participating in a conspiracy to commit a crime or civil wrong and in furtherance of that conspiracy.

Question 27

What is a Confession?

Answer 27

A confession is a statement by a suspect which when taken together with other facts and circumstances constitutes an admission of the commission or participation in the commission of an offense.
It is classified as hearsay evidence admissible under an exception: NRCD 323, s 120.
- It is a variant of admissions.

Question 28

Judicial Confession

Answer 28

Judicial confession is one that is given during judicial proceedings by an accused who pleads guilty. It also includes confession given during committal proceedings which may form part of what are described as statutory statements.

Question 29

Non-judicial confession

Answer 29

Confessions given out-of-court or outside the trials are described as non-judicial confessions. They may take the form of confessions given by suspects during interrogations for suspected crimes and confessions by participant in crimes.

Question 30

Statutory exemptions on requirements of proof

Answer 30

Some statutes provide that certain facts ought to be accepted but the courts and admitted in evidence without the necessity for proof of them, provided some conditions are satisfied. Examples of the statutory exceptions include:
• Official document produced under seal. : where the original or copy of an official document is procured under the seal of that office, the court may admit the document without proof (CI 47 order 38 r 9)
• Deposition offered as evidence, where the deposition signed a judge, magistrate or court officer is tendered as evidence in court, the court is to admit the deposition without proof.
• Statutory statement signed by a magistrate: a statutory statement produced in the course of a voir dire shall be admitted without proof if signed by the magistrate (State v Banful)

Question 31

Judicial notice of the law , statutes, circulars and Gazette notices

Answer 31

Judicial notice of the common law, customary law and statutory provisions may be taken by the court in most cases without any argument. These are habitually brought to the notice of the court by counsel in the proceedings. The judge in such a situation is required to take judicial notice of the laws of the land. Article 11 of the 1992 Constitution provides the sources of law in Ghana, and these include existing laws consistent with the provisions of the Constitution.

The court can take judicial notice of authenticated administrative circulars and gazette notices. Where circulars and gazette notices conflict with the terms of a statute or the Constitution, the latter shall prevail. Where the statute provides that the court has to take into account some documentary evidence, such document may be taken judicial notice of but not necessarily its contents.

Question 32

Proof of Foreign law (Judicial notice)

Answer 32

However, it must be stated that judicial notice may not be taken of the laws of a foreign country. A party who pleads a foreign law must lead evidence to establish that fact. In Davies v Randall, the court held that the party who pleaded the law of Sierra Leone could have proved it as a fact as judicial notice could not be taken of the law of that country.

Foreign law is “presumed to be the same as the laws of Ghana”: see section 40. That is only a presumption which is rebuttable. To decide on proof of foreign law, the relevant statutory provision is section 1(2) of NRCD 323 which provides that : “The determination of the law of an organization of states to the extent that such law is not part of the law of Ghana, or of the law of a foreign state or sub-division of a foreign state is a question of fact , but shall be determined by the court”. the Commentary on the Evidence Act explains this section 1(2) to mean that foreign law has to be proved in court by the person relying on it.