Week 2 - The Burden of Proof 2015-16

8/19/2019 Week 2 - The Burden of Proof 2015-16

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The Chinese University of Hong Kong

Faculty of Law

Evidence

The Burden and Standard of Proof

Burden of Proof

2!"#!$

%r &rthur 'c(nnis


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(ntroduction

• & Legal Burden is a )urden of *roof+ i,e, to *rovea fact

• (f on the *rosecution+ the standard is beyond

reasonable doubt • (f on the defence+ the standard is on a balance of

probabilities

• &n Evidential Burden is an o)ligation to adduceso-e evidence so as to raise an issue for thecourt.s consideration


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Burden of Proof in Cri-inal Cases

• /eneral rule0

The *rosecution )ears the legal )urden of

*roving all the ele-ents of an offence1Woolmington v, DPP !34"5 &C 6$27


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Burden of Proof in Cri-inal Cases

• The *resu-*tion of innocence0

Basic Law &rt, 89 : HKB;


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E=ce*tions to the rule

!, The defence of insanity

• % )ears the legal )urden 1on a )alance of

*ro)a)ilities0 McNaghten 1!8647 ! Cl : F 2


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E=ce*tions to the rule

2, E=*ress statutory e=ce*tions

• E,g, s,4127 Ho-icide ;rdinance 1Ca* 44370 “it

shall be for the defence to prove that the person

charged is… not liable to be convicted ofmurder

4, (-*lied statutory e=ce*tions


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(-*lied Statutory E=ce*tions

• >here a statute does not e=*ressly *lace a

legal )urden on %+ it -ay+ u*on a true

construction+ i-*ly to that effect

• This is so where statutes are drafted such that

offences involve ?ualifications+ e=ce*tions+

e=e-*tions+ *roviso or li-itations on the

e=tent to which conduct is -ade cri-inal


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• @egative aver-ents 1related only to statutoryoffences7• There is a rule at co--on law that if a negative

aver-ent is -ade )y one *arty+ which is *eculiarlywithin the Anowledge of the other+ the )urden of *roofis on the *arty asserting the affir-ative

• Eg !liver !3665 KB $8 1selling sugar without a

licence7• P alleges % does not have a licence+ then % -ust *rove+

on a )alance of *ro)a)ilities+ that he has a licence7


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• This has )een codified0

See S.94A Criminal Procedure Ordinance (Cap 221)

"#$ %or the avoidance of doubt it is hereby declared that in criminal

proceedings& "a$ it is not necessary for the prosecution to negative by evidence

any matter to 'hich this subsection applies( and

"b$ the burden of proving the same lies on the person see)ing toavail himself thereof*

"+$ ,he matters to 'hich subsection "#$ applies are any licence- permit- certificate- authori.ation- permission- la'ful or reasonableauthority- purpose- cause or e/cuse- e/ception- e/emption-0ualification or similar issue*


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• See also The Indictment Rules Rule 4(c) Cap 221C

4. Where the specific offence 'ith 'hich an accused person is

charged in an indictment is one created by or under an !rdinance

or a national la' applying in 1ong 2ong- then- 'ithout pre3udice tothe generality of rule 4…

"c$ it shall not be necessary to specify or negative an e/ception-

e/emption- proviso- e/cuse or 0ualification*


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• The ;nus of Proof • 1unt !3895 &C 4"2

• % was found in *ossession of -or*hine 1a controlleddrug7 -i=ed with two other su)stances

• &ccording to an e=e-*tion in the schedule to the'isuse of %rugs &ct !39!+ if the *ercentage of-or*hine in the su)stance was not -ore than ,2D+it would not )e regarded as controlled drug

• P *roduced no evidence as to the *ro*ortion of-or*hine in the su)stance

• % su)-itted no case to answer )ut failed and thenchanged his *lea to guilty,


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• The ;nus of Proof

• 1unt !3895 &C 4"2• (n the HL Lord /riffiths said that Woolmington v

DPP !34"5 &C 6$2 had not esta)lished a rule thatthe )urden of esta)lishing a statutory defence lay onthe defendant only where the statute e=*ressly so

*rovided,


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• 1unt !3895 &C 4"2 cont5d• Lord /riffiths 1Lord Keith and Lord 'cKay agreeing+ Lord

Te-*le-an concurring7 wrote that where it was not clear u*onwho- a )urden should lie then when construing a statute

courts should taAe into account0• 1i7 the -ischief at which the &ct is ai-ed

• 1ii7 the difficulty for % to *rove the fact 1in ?uestion7and

• 1iii7 the seriousness of the offence


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• 1unt !3895 &C 4"2 cont5d • Lord /riffiths0 The essence of the offence was having a

*rohi)ited su)stance in ones *ossession, (t was an offence tohave -or*hine in ones *ossession in one for- )ut not to have

it in another for-, The *rosecution therefore had to esta)lishthat it was in the *rohi)ited for- otherwise there was nooffence, &ccordingly+ the )urden had )een on the *rosecutionto esta)lish not only that the *owder in Hunt.s *ossession had

)een -or*hine )ut also that it had not )een -or*hine in thefor- *er-itted )y reg, 61!7 and *ara 4 of Schedule !,

• &s such+ while a legal )urden -ay )e i-*osed on an accusedin certain circu-stances as a -atter of construction it had notin Hunt.s case,

• Hunt.s a**eal was thus allowed and his conviction ?uashed,


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(s a reverse onus of *roof unconstitutionalG @o,

• 6alabia)u v, %rance 1!3887 !4 EH


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(s a reverse onus of *roof unconstitutionalG



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(s a reverse onus of *roof unconstitutionalG



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Case E=a-*les on


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Case E=a-*les on


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Case E=a-*les on


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Case E=a-*les on


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Case E=a-*les on


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Case E=a-*les on


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Case E=a-*les on


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Case E=a-*les on


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Case E=a-*le on @o


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Case E=a-*le on @o


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Case E=a-*le on @o


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Case E=a-*le on @o ere we entitled to )e satisfied that the statutory defence contained

within s " 127 of the


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Case E=a-*le on @o


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Case E=a-*le on @o


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Case E=a-*le on @o


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Case E=a-*les of Burden onProsecution


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Case E=a-*les of Burden on

Prosecution

• 1unt !3895 &C 4"2 a)ove

• Held0

• @otwithstanding the use of the words e=e-*tion and

e=ce*tion in the statute+ and the fact that thee=e-*tion was only in a schedule to the &ct+ *roof that

the su)stance contained -ore than ,2D of -or*hine

was an essential ele-ent of the offence and hence for P

to *rove,


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Prosecution

• Lam >u) %ai v, 12678 2$5 2 HKL


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Prosecution

• Lam >u) %ai v, 12678 2$5 2 HKL


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Prosecution

• ,ong >iu Wah v, 12678 295 4 HKL


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Prosecution

• ,ong >iu Wah v, 12678 295 4 HKL


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Prosecution

• See also 7< of 1ong 2ong v* Lee 2'ong 2ut !3345&C 3"!• The Privy Council held that a statute containing an offence

of *ossessing anything reasona)ly sus*ected of )eing

stolen without giving a satisfactory e=*lanation to the-agistrate+ violated &rt, !!1!7 )ecause it *laced a legal )urden on % to *rove the Aey ingredient of the offence


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Evidential Burden in Cri-inal Cases


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Evidential Burden in Cri-inal Cases

• /eneral rule0The *arty who )ears the legal )urden on a *articular issue will also )ear the evidential )urden on that issue

•

% -ust adduce so-e evidence 1discharge an evidential )urden7 inorder to raise a defence

• ;nce evidence of a defence is raised+ P -ust negative the defence )eyond reasona)le dou)t

• &n evidential )urden is re?uired for the defences of *rovocation+self#defence+ duress and non#insane auto-atis-,


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Conclusion on Burden of Proof


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Conclusion

• The general rule is that the P )ears the legal )urden of *rovingall the ele-ents of an offence

• (f an offence contains e=e-*tions+ *ro*erly construe it to

ascertain whether the )urden of *roof re-ains on the P+ orwhether a *ersuasive 1legal7 )urden is i-*osed on the %

• (f the *rovision i-*oses a legal )urden on the %+ considerwhether it -ay violate the Basic Law and Bill of


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Conclusion

• The -odern a**roach on this ?uestion is to construe the *rovision to see whether it -ay *ro*erly i-*ose a legal )urden on an accused or whether it -ust-ight )e readdown

•

Week 2 - The Burden of Proof 2015-16

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