F3.4 – Discharge of Burdens Borne by the Prosecution

Question 1

How is the evidential burden borne by the prosecution on a particular issue discharged?

Answer 1

By the adduction of sufficient evidence to justify as a possibility a finding by the tribunal of fact that the legal burden on the same issue has been discharged.

i.e. ‘such evidence as, if believed and if left uncontradicted and unexplained, could be accepted by the jury as proof’ (Jayasena v The Queen [1970] AC 618, per Lord Devlin at p. 624).

Question 2

If the prosecution bear the evidential and legal burden on a particular issue and discharge the evidential burden, what happens?

Answer 2

The issue in question will go before the jury for them to determine whether or not the legal burden has been discharged.

Question 3

If the prosecution bear the evidential and legal burden on a particular issue and fail to discharge the evidential burden, what happens?

Answer 3

They will fail on that issue (as the judge will withdraw the issue from the jury).

Question 4

Who questions sufficiency of the evidence adduced by the prosecution?

Answer 4

It may be raised by the judge of his own motion

but

usually arise on a defence submission of no case to answer after the prosecution have closed their case.