Online Reporter
Trust Maanda
Legal Position
EVERY suspect or accused person has the right to be presumed innocent until they are proven guilty.
This means that no matter how a person looks guilty on what any person thinks about him or her, that does not translate into the guilty of the person accused or suspected.
Until that person is proven guilty and convicted by the courts of law, that person, no matter what evidence is against him/her, is presumed to be innocent.
This then requires that if you catch a thief or any person in the process of committing the offence, you do not presume them guilty until they are proven innocent. The law presumes them innocent until evidence is led against them and they are convicted by a court of law.
This right takes away the meting out of instant justice or mob justice.
A person caught in the very act of the commission of the offence must be arrested, even by citizens and brought to the police who do their investigations. Instead of meting instant justice, those who catch the suspect in suspected commission of a crime must offer themselves as witnesses to testify against the person they saw committing the offence.
Those who will testify against the suspect are the State witnesses who should then prove that the accused indeed is guilty of what they saw him/her doing.
The accused has no onus to prove himself or herself innocent.
The accused is already presumed innocent, but those that accuse him/her bear the duty to prove him or her of what they testify against him or her. Accused bears no onus.
The burden or onus of proof to prove the accused guilty is on the State through its witnesses.
The witnesses have an obligation 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 the party making the allegation that bears the onus of proof.
The prosecution has the onus of proving, though its witnesses, the accused’s guilty beyond any reasonable doubt.
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 is because of this presumption that the duty to prove an accused guilty lies with the prosecutor.
In Member Jenami Versus The State HCH24/23 it was said: “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.
As earlier stated, 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”.
Because of the presumption of innocence, the accused has another right, which is the right to silence.
This right entails that the accused person is not obliged to give his or her side of the story. The accused may remain silent. Silence is not admission. Quiescence is not acquiescence.
The proper test is that an accused should be convicted if the evidence establishes his/her guilty beyond reasonable doubt, and he/she must be acquitted if it is reasonably possible that he might be innocent.
The burden remains upon the prosecution to prove beyond a reasonable doubt that the defence does not apply, unless the accused himself or herself has pleaded guilty and the court is satisfied that the plea is properly entered.
It is not always the case that accused are acquitted because of complete lack of evidence, but because the evidence was not enough for the State to discharge the onus of proving the accused person beyond reasonable doubt. Before they are convicted. The right to presumption of innocence is the cornerstone upon which bail pending trial is granted. The accused must not lightly suffer pretrial incarceration
TRUST MAANDA is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263772432646
