Online Reporter
Trust Maanda
Legal Position
IN a court trial there is what is called burden or onus of proof.
This refers to the obligation of a party in a legal case to prove the allegations they assert.
Onus of proof imposes an obligation on a party to present evidence to prove what they assert to support their claims and convince the court of their version of the facts.
It is usually the party making the allegation that bears the onus of proof.
In criminal trials, the prosecution has the onus of proving the accused’s guilt beyond a reasonable doubt.
In civil proceedings a party who makes a positive allegation bears the burden to prove such allegations on a balance of probabilities.
This standard of proof is lower than the criminal trial standard.
Proof on a balance of probabilities means it’s more likely than not that their version of events is true.
In criminal cases, proof beyond reasonable doubt means that the state evidence must eliminate all reasonable doubts that may exist in the mind of the trier of fact.
If there is a reasonable doubt in the matter, the accused gets the benefit of doubt.
It was said by the court in Member Jenami Versus The State HCH24/23: “It follows that, in a Criminal trial, where the presumption of innocence operates in favour of an accused person, until proven guilty, the burden of proving such guilt lies on the State or prosecution. The state is obligated to prove every essential element of the offence against an accused person”.
The state bears the onus of proving the accused guilty by providing evidence through its witnesses to prove its case against the accused.
The accused does not have any onus to prove himself or herself innocent or guilty.
The oft quoted passage on onus is the case of R v Difford 1937 AD in which the court said: , “. . . no onus rests on the accused to convince the court of the truth of any explanations he gives. If he gives an explanation, even if that explanation is improbable, the court is not entitled to convict unless it is satisfied, not only that the explanation is improbable, but beyond reasonable doubt false, if there is any reasonable possibility of his explanation being true, he is entitled to his acquittal.”
That is the test to be applied before the court rejects the explanation given by an accused person.
The accused has no onus to prove his or her innocence, and if he or she gives a version of his or her defence, the court must only convict if it is satisfied not only that the explanation is improbable, but that it is not only false, but false beyond reasonable doubt.
The state bears the onus to prove its case beyond reasonable doubt and discount the defence’s evidence as false beyond reasonable doubt.
If the explanation by the accused has a reasonable possibility of being true, he or she is entitled to a verdict of not guilty and an acquittal.
Once there is some evidence suggesting a defence the court must consider this defence.
The proper test is that an accused should be convicted if the evidence establishes his guilt beyond reasonable doubt, and he must be acquitted if it is reasonably possible that he might be innocent.
S 18(1) of the Criminal Law Code casts on the state the onus to prove all the essential elements of an offence an accused person will be facing, beyond any reasonable doubt.
It reads: Subject to subsection (2), no person shall be held to be guilty of a crime in terms of this Code or any other enactment unless each essential element of the crime is proved beyond a reasonable doubt”.
S18 further provides that once there is some evidence before the court which raises a defence to the charge, whether or not the evidence has been introduced by the accused, the burden shall rest upon the prosecution to prove beyond a reasonable doubt that the defence does not apply.
But there are exceptions. For example, where an accused pleads that, at the time of the commission of a crime, he or she was suffering from a mental disorder or defect or a partial mental disorder or defect or acute mental or emotional stress, the burden shall rest upon the accused to prove, on a balance of probabilities, that he or she was suffering from such mental disorder or defect or acute mental or emotional stress.
Accused persons are not always acquitted because there was no evidence: they are acquitted because the evidence was not enough for the state to discharge the onus of proving the accused person beyond reasonable doubt.
Trust Maanda is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be reached at +263 772432646.
