The Burden of Proof

Question 1

3 categories

Answer 1

1. overall burden
2. particular fact
3. specific contexts governed by special rules

Question 2

1. Overrall Burden of Proof

section

Answer 2

101

judgement deped on the existence of fatcs - prove those facts exist

when a person is bound to prove any fact - the burden of proof lies on that person

Question 3

terminology burden of proof

Wigmore
Williams
Denning

G.L.Peris

Answer 3

risk of non-persuasion
persuasive burden
legal burden

the overall burden of establishing the totallity of the facts demonstrating the responsibility of the accussed for the offence committed remains constantly with the prosecutor throughout the trial and is unaffected by the burden occassionally cast on the accused to prove particular facts.

Question 4

illustrations of the overall burden

Karunaratne v State

Answer 4

so you have to now decide whether you are accepting the 1st accused, 2nd accused or N’s evidence
both accused denied the charge and said the deceased was alive when they left her

1. there was a burden on the accused to prove on a balance of probability their denial of charges
2. there was a burden on the accused to show how the deceased came by her death

Question 5

proof of negative averments as part of the overall burden

Balakiriya

(363) rape - without consent (2nd limb)

Answer 5

prosecution has to prove that the victim did not consent

Question 6

Costa v Gordon

341 crminal force

Answer 6

whoever, intentionall uses force to any person without that person’s consent to commit an offence
intending or knowing by use of force illegally cause injury, fear or annoyance to the person to whom the force is used

former - prosecution has to prove the lack of consent

latter - consent is a general exception for the accused

Question 7

Devolution of the Overall burden

Section

Answer 7

102

the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side

Question 8

burden of proof as to a particular fact

Section

Answer 8

103

the burden of proof to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person

Question 9

Batcho

G.L. Peries

Answer 9

Exception 1 to Section 294 - Grave and Sudden Provocation
voluntarily provoked

the proof of particular facts supplies only the groundwork for discharge of the overall burden.
the inference drawn by proving one particular fact may later be displaced by proving of another particular fact. (Advantage may be tentative)

Question 10

Section 104

Answer 10

the burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence