RECAP

We have looked at the types of evidence as well as the rules

governing such evidence
• Concept of admissibility
Evidence= Judge=Decision: the concept of admissibility is
wide governing means by which evidence adduced by a
party may be accepted by the judge in deciding the fact in
issue. The rules illustrate whether a particular piece of
evidence may be used to make a fact requiring proof more
or less probable. Admissibility is affected by (1) Relevance
(2) weight (3) Prejudicial effect (4) Unfairness and (5)
exclusionary rules of evidence.
The burden of proof
 BURDEN OF PROOF: AN INTRODUCTION

• The topic considers who must prove the fact in

issue
• How does the one that has the burden of proof
win the case i.e. To what standard must they
prove
• What is the role of the other party i.e. The party
that does not bear the legal burden of proof:
distinguishing between a legal and evidential
burden of proof
 Burden of proof
• When one talks about the burden of proof, they may be
referring to either one of these two i.e.
1. Legal burden of proof: this is also known as the
persuasive burden. This is the burden that must be
discharged by the party bearing it to the required
standard for them to win their case. It is the burden of
proving the existence or none existence of a fact in issue.
2. Evidential burden of proof: this is the burden of merely
putting an issue forward for the judge to consider the
issue. It is termed by Wigmore to be the burden of ‘going
forward’.
 Evidential and legal burden examples
Murder:

Legal burden, rests on the prosecution. They must prove the fact in
issue (killing of a person in being with malice aforethought)
beyond a reasonable doubt (being the standard in criminal cases)
to win their case
Evidential burden this will rest on both the prosecution and
accused person. For instance the defence of provocation. An
accused person need only provide some evidence to push the
issue of provocation forward, once this burden is satisfied then
the issue will be put across. The prosecution must still prove
beyond a reasonable doubt that X killed Y.
Evidential and Legal burden distinguishing
• Lord Delvin in Hill v Baxter: Refers to the legal burden as the
heavier burden and the evidential burden as the lighter
version.
• Thayer: the legal burden once discharged will mean that the
party bearing it has one their case. The evidential burden
proves nothing as stated by Lord Ackner in R v Hunt.
• Legal burden must be proved to win your case, evidential
burden merely puts an issue forward.
• Legal burden will rest on one party from beginning to end
(e.g. Criminal cases on prosecution in most instances) whilst
evidential burden may rest on both parties.
 Does the burden of proof shift
The court stated in DPP v Morgan that the burden of proof does not shift. It is
decided on whom it rests at the beginning and is discharged at the end. When
people talk of the burden shifting they are merely referring to a tactical burden.
Where one party may be required to provide some evidence to tip the scale or
rather balance in their favour.
For example where one is found with stolen goods, they are to give an explanation as
to how they came to be in possession of those goods. This is merely a tactical
burden, in the absence of any explanation the judge may decide in favour of the
prosecution. They will thus have to provide an explanation to tip the balance in
their favour. See Chisha v The people 1968
See also Mwelwa Murono v The people, the court stated: ‘In criminal cases, the rule
is that the legal burden of proving every element of the offence charged, and
consequently the guilt of the accused, lies from beginning to end, on the
prosecution. The standard of proof is high. The case must be proved beyond all
reasonable doubt. The accused bears the burden of adducing evidence in support
of any defence that would be open to him when he is put on this defence after he
has been found with a case to answer.’
 Legal Burden of proof: Civil cases
• The general rule is he who asserts must prove
• The legal burden of proof in civil cases will lie on the
party that alleges, it matters not that their are stating
this in the positive or negative, if you want the court to
find for you on a given proposition or issue, you must
provide evidence to the required standard. See Soward
v Legatt: ‘We should consider what is the substantive
fact to be made out, and on whom it lies to make it out.
It is not so much the form of the issue which ought to be
considered, as the substance and effect on it.’
 Legal Burden Civil cases: examples
Negligence: they must show on the balance of probability
1. Duty
2. Breach
3. Causation
4. Damages
Contributory negligence: the other party will now be claiming that the plaintiff was also
negligent they must prove the above four elements
Frustration: it is the party claiming breach as opposed to frustration that must prove that the
contract was breached. Krell v Henry see also Joseph Constantine Stempship Line Ltd v
Imperial Smelting Corp
Undue influence: It is the party claiming that they entered the contract as a result of duress
although in cases of presumed undue influence, the party merely needs to provide some
evidence to raise the presumption, then the burden (legal) lies on the party to illustrate
that the plaintiff freely entered into the contract see Royal bank of Scotland v Etridge.
Constitutional rights: Kachasu case
Divorce: C and C v H
 Criminal Cases: Legal Burden
• In criminal cases the legal burden will as a general
rule rest on the prosecution. This flows from the
constitutional guarantee (art 18(2)that states that
every person is presumed innocent until proven
guilty. The presumption of innocence determines
that the burden of proof rests on the prosecution.
• Exceptions:
Woolmington v Dpp: Lord Sankey the golden thred
 Lord Sankey: Woolmington v DPP
• Woolmington v DPP: the accused was charged with murder of his wife by
shooting, he claimed accident, at first instance the judge had ruled that after
the crown or prosecution had proved actus reus, it was left to the defence to
prove lack of malice aforethought.
• This was overruled and Lord Sankey noted: ‘through out the web of English
criminal law one golden thread is always to be seen that is it is for the
prosecution to prove the prisoners guilt. Subject to this he noted was the
common law defences of insanity, statutory exceptions.’

• This case identifies two exceptions to the rule that the legal burden of proof
will rest on the prosecution being:
•  
• The defence of insanity
• Statutory exceptions
 Insanity
• S12 of the Penal code outlines that every person is presumed to be sane, the presumption of sanity determines that the burden
of proof in proving the same on a balance of probability rests on the defendant.
Case law
Whenever a person seeks to rely on the M’Naghten rules the burden of proof will rest on them.
• Bratty v Attorney-General for Northern Ireland
•  
• In this case the accused was charged with murder of a young girl, he sought to rely on a defence of some psychomotor epilepsy.
His defences included one of insanity and one of non-insane automatism. There was no evidence adduced to prove the latter
only the psychomotor epilepsy intended to establish insanity. The legal burden laying on him, he failed to discharge it.
See also
JOSEPH MUTABA TOBO v THE PEOPLE (1991) S.J. (S.C.): here it was held that there was sufficient evidence to prove insanity at
the time of the offence, the accused was found not guilty by reason of insanity
See also Khupe Kafunda v The People: in this case the court emphasised that where one raises a defence of insanity, the burden
to prove the same on a balance of probabilities lies on them.

• Katundu v The People: intoxicated offenders

•  
• The accused attempted to rely on s14(1) of the Penal Code as a defence to a charge of rape. The court held that where the case
relied on is insanity, including insanity by intoxication, it is true that the onus is on the accused person to show on the balance of
probabilities that at the time he committed the offence he:
• suffering from a disease affecting his mind which
• rendered him incapable of understanding what he was doing or alternatively of knowing that he ought not to do it (s13 of the
Penal Code)
 Statutory exceptions
• Lord Sankey merely stated statutory
exceptions however this has been expanded
by later authourities to mean:
1. Express Statutory exceptions and
2. Implied Statutory exceptions
 Express Statutory exceptions
• A statute may expressly impose the burden of proof on the defendant see for example:
• ATTORNEY GENERAL v LYAMPALI & LISO
•  
• In this case the responds left the car they were driving in and proceeded to assault political opponents who were
gathered at a meeting. They were charged with possession of offensive weapons. The statute stated ‘any person
who without lawful authority or reasonable excuse, the proof whereof shall lie upon him, has with him in any
public place an offensive weapon shall be guilty of a misdemeanour.’
•  
• To prove a contravention of section 72A (1) of the penal code it was necessary for the prosecution to establish,
• They had with them offensive weapons
• In a public place
•  
• The onus of proving the above lay on the prosecution but after this was proved, the burden of proving that they
had lawful authority or reasonable excuse for having these offensive weapons with them at the time and place
lay on the respondents. It was held that the respondents in this case failed to prove on a balance of probabilities
any of the requirements under the act.
•  
•  
 Express statutory exceptions
• 
• Patel v The people 1969 132
• 
• In the case before me there is an express statutory reversal of the burden of proof in that section 4 (2) of
the Exchange Control Act provides as follows:
• 
• "Any person charged with any act or omission which is an offence under this Act if the act is done or
omitted to be done without permit, exemption, permission or other authorisation, shall be presumed
unless and until the contrary is proved by the accuse person to have done or to have omitted to do such
act without such permit, exemption, permission or other authorisation as the case may be, when he
performed or omitted to perform the act in question".

• See also the customs and excise act no 2 of 2008. ‘Where an entry is made on the basis of an advance
tariff ruling issued by the Commissioner-General under this Act, and a question arises concerning the tariff
classification of the goods, the burden of proof shall be on the person claiming that the advance tariff
ruling was made by the Commissioner-General.’

• See also :
THE PEOPLE V ROSS MORE ERNEST AND HASSEL SHAMALINE (2008)
 Implied statutory exceptions
• A statute may impliedly impose the burden of proof on the accused person. Where for example one seeks to rely
on a proviso or an exception specified in the statute, they must prove on a balance of probability that they fit that
exception or proviso.
See
•  
• R v Edwards
•  
• D was charged with selling alcohol without a license under s160 of the licensing Act of 1964. The prosecution did
not call evidence that the appellant did not hold a licence leaving the appellant to show that he did in fact posses
one. The conviction was upheld and two issues were brought the relevant issue being:
•  
• The scope of the principle of the MCA 1980, and whether it only applied to a turner situation i.e. if the knowledge
was peculiar to D or did it apply outside that situation i.e. when ever D seeks to rely on an exception, exemption,
proviso, qualification or excuse. It was held that in that case though the information was not peculiar to the
knowledge of D as the police could easily check the records to see if D had a license, the burden nevertheless
rested on D as the reverse onus only apply outside the turner situation. Lawton LJ stated that it would depend on
the linguistic structure of the statute ‘whenever the prosecution seeks to rely on this exception (of reversing the
burden) the court must construe the true construction of the statute. If the statute prohibits the doing of acts
save subject to proviso, exemptions and the like then the prosecution can rely on the exception.
 Civil Cases Evidential burden
• Who ever bears a legal burden will also bear
an evidential burden of proof.
• Whenever the defendant raises a defence
they must provide evidence to put it across
e.g. Illegality, misrepresentation, undue
influence etc.
 Criminal cases
• Prosecution bears an evidential burden at the beginning to provide sufficient
evidence to put the accused on a case to answer.
• An evidential burden is borne by the defence at the close of the prosecution’s case,
to put forward some evidence to raise doubt in the minds of the jury.
• An evidential burden will fall on the accused where the legal burden of proof is
reversed, in cases where the accused is seeking to rely on the common law defence
of insanity or where there is an express or implied statutory reversal of the burden of
proof.
• The evidential burden can be placed on the accused where more than a mere denial
is expected from the accused person i.e. where the defence raised is not an
ingredient of the crime but rather falls outside this, so that where the accused seeks
to rely on the defence of automatism, or lack of capacity due to intoxication he must
put some prima facie evidence or lay a proper foundation. This was extended to
apply to defences of drunkenness, provocation and self defence in Bratty.
•  
 Prosecution: case to answer stage
• After presentation of the prosecution case, the court must
acquit an accused where:
1. The prosecution have not provided sufficient evidence to
prove an essential element of the offence or
2. The evidence provided has been discredited after cross
examination
The court has held that where there is not sufficient
evidence on which the a judge can properly convict in the
absence of evidence to the contrary, the judge according
to s206 of the CPC must acquit the accused person.
 Accused: evidential burden
• Where an accused seeks to put across a defence of provocation, self
defence, accident or as the case may be, they must provide sufficient
evidence to put the issue across otherwise the prosecution need not rebut
or even consider any of these defences. As emphasised by Lord Denning in
Bratty the presumption of capacity places an evidential burden of proof on
the accused see:
Bratty v the Attorney General: accused relied on defences of non insane and
insane automatism. He provided no evidence to put across the defence of
none insane automatism, the court held the prosecution need not rebut all
defences beyond a reasonable doubt, it is only those that have been
properly brought before the jury.
Mwelwa v the people 1965: in relying on the defence of skid or mechanical
defence the court held that some evidence (beyond a mere explanation)
must be brought forward by the defendant.
• In the case of Sibade v the people on a charge of defilement the court held that a claim that the parties (claimed
to be married to a 15 year old under customary law) were married under customary law was insufficient to bring
the issue into consideration, the defence was supposed to give more than a mere statement. The onus was on the
prosecution to establish that they were not married however; it was insufficient to put this issue across by
reiterating that ‘we are married.’ He must provide an explanation as to why their union is a marriage at customary
law. 
Mutambo v the people 
• ‘no burden rested on the accused to establish their defence. The burden was on the prosecution to negate it. But it
was of course for the accused to raise the defence in some way, either through evidence or argument or both.
Without this there would be nothing for the prosecution to satisfy the court beyond reasonable doubt.’ 
Kazembe & Zebron v the people
Established that to rely on automatism the accused must provide sufficient evidence to put the issue across
Citing Bratty the court held that where the defence is one of insanity the burden lays on the defence to establish this on
the balance of probabilities. However in relation to the defence of automatism, not being caused by a disease of
the mind (falling under the M’Naghten rules) it was held that the accused will merely have an evidential burden to
provide more than a mere explanation, for the defence to be put across, whereupon the prosecution will have the
burden to disprove the defence beyond all reasonable doubt. It was stated that stating simply ‘I had a black out’ is
insufficient for blackout is ‘one of the first refuges of a guilty conscience and a popular excuse’. The court held that
the accused had failed to lay a proper foundation to bring the defence of negotiation to the table; therefore the
prosecution had no duty to negative the defence.
 Standard of proof: evidential burden

Standard of Proof
•  
• This is the level of probability that
determines proof. In civil cases this is
• the balance of probability and in criminal case
being beyond all reasonable doubt.
•  
Discharge of evidential burden in criminal cases

•  
• The prosecution must lay sufficient evidence to put
the accused on defence, termed prima facie
evidence. There must be evidence sufficient enough
to convict at the close of the prosecutions case in the
absence of evidence produced to the contrary.
Failure to provide such evidence will lead to an
acquittal i.e. the accused is found with no case to
answer.
 
 Criminal cases: evidential burden, standard
• The people v Wynter Makowela 1979 and The people v Japau 1967
The court must not convict until it has heard both parties however in
accordance with s206 n 207 of the CPC, before the accused is put on his
defence the prosecution must provide prima facie evidence known as
the case to answer. Where there is failure to provide sufficient evidence
the accused is acquitted at case to answer stage the same will be found
if:
1. There is insufficient evidence to prove an element of teh offence
2. The evidence led has been discredited after cross examination or is
otherwise found unreliable
The court is to put the accused on his defence if there is sufficient
evidence (prima facie evidence) on which a judge can properly convict
on in absence of evidence to the contrary.
 Evidential Standard of proof civil cases

• A similar situation will occur. The evidential

burden of the claimant is satisfied, if at the
close of his case and the defence makes a
submission of no case, the judge considers the
evidence to be sufficient to lead to a
conclusion that the legal burden is satisfied i.e.
that it has been proved on the balance of
probabilities this is discharged.
•  
 Civil cases: legal standard of proof
• The standard is on a balance of probabilities.
Miller v Minister of Pensions: ‘the degree of cogency required to discharge a burden
in a civil case is well settled. It must carry a reasonable degree of probability, but
not so high as it is required in a criminal case. If the evidence is such that the
tribunal can say: ‘we think it more probable than not’ the burden is discharged,
but, if the probabilities are equal it is not.’
LISWANISO SITALI AND OTHERS v MOPANI COPPER MINES PLC (2004) Z.R. 176 (S,C,)
• However it must be noted that there are different degrees in this standard, it
depends on the nature and seriousness of the fact in issue. As Best CJ and many
other great judges have said, ‘in proportion as the crime is enormous so ought
the proof to be clear.
• In cases of fraud (misrepresentation for instance) or adultery for instance, although
the courts have acknowledged that the standard is not the criminal one, the fact in
issue is serious and thus the evidence must be proportionate to the matter
requiring proof. Therefore the degree of proof will be higher in these cases.
 Civil cases: degrees of proof
• Hornal v Neuberger Products Ltd
•  
• This was a civil case, a claim for fraudulent
misrepresentation. The judge stated that it had been
established on a balance of probabilities that fraud had
occurred but not beyond all reasonable doubt.
• Denning J ‘the more serious the allegation the higher
the degree of probability that is required. But it need
not in a civil case reach the very high standard required
by the criminal law.’
 Civil cases: standard case law
• ReH (a minor): case was a civil one dealing with welfare (local authorities
applied to take kids on grounds that they were sexually abused by step father)
court outlined that although this was a civil case, it dealt with serious issues, as
such the gravity of the case becomes part of the issues. The degree of proof
was thus high.
• In cases dealing with adultery as well as cruelty the courts have held that the
matters being serious the degree of proof although not being the criminal
standard is high see
• C v C and H 1977
• Blyth v Blyth
• EDNA NYASALU v ATTORNEY-GENERAL (1983) Z.R. 105 (H.C.)
See also
Re Delow’s will: one of the questions was whether the wife murdered her
husband in determining whether she could acquire under her husbands will
 Contempt cases standard
• In contempt cases be it criminal (in front of the
judge) or civil law (disobedience to a court
order), the standard of proof applied is one of
proof beyond a reasonable doubt. This is stated
to be because although being a civil cases, the
contemnor is punished, he may be fined or
imprisoned, in which case similar considerations
as those taken under criminal law come to play.
•  
• Criminal Cases: standard of proof
•  
• Miller v Minister Pensions
•  
• Lord Denning: the degree of cogency required in a criminal case before an accused person
is found guilty is well settled. It need not reach certainty, but it must carry a high degree of
probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of
doubt. The law would fail to protect the community if it admitted fanciful possibilities to
deflect the course of justice. If the evidence is so strong against a man as to leave only a
remote possibility in his favour which can be dismissed with the sentence ‘of course it is
possible, but not in the least probable,’ the case is proved beyond reasonable doubt, but
nothing short of that will suffice.’
• The standard of beyond a reasonable doubt has been criticised as not always being clear
Hepworth argues that it is not the language used but rather directing and understanding
that the jury must be sure of the prisoners guilt and that the onus lies on the prosecution.
•  
 Beyond a reasonable doubt: meaning
• In Yap Chuan Ching, the jury requested for help as to the
meaning of the terms. The judge explained what this means:
• ‘a reasonable doubt, it has been said is a doubt to which
you can give a reason as opposed to a mere fanciful sort of
speculation such as well nothing in this world is certain,
nothing in this world can be proved.’ As I say that is the
definition of a reasonable doubt something to which you
can assign a reason. It is sometimes said the sort of matter
which might influence you if you were to consider some
business matter.
•  
 Defendant; criminal cases
• See Saluwema v The People
•  
• This being the standard the prosecution bears
to prove the defence, the defendant as
established must discharge in cases where the
persuasive burden is reversed, on the balance
of probabilities.
•  
 Voire dire, competence and other issues of
admissibility
• Will depend on the case, criminal will entail
criminal standards and like wise civil cases
• The burden will lie on the party seeking to
adduce the evidence
 Questions
• Questions:

• A statute states: ‘it is an offence for a pharmacist to sell any medical products on a Sunday
except in cases of emergency.’ Soondo is charged with contravening the statute. Upon whom is
the burden of proof in this case?
• Mwansa who is charged with murder states that he remembers nothing of the incident because
he was drunk. The trial judge rules that Mwansa has the legal burden of proving that he was
intoxicated with the standard of proof being beyond reasonable doubt. Is this ruling correct?
• Zambian State Insurance Corporation receives a claim under an insurance policy on the life of
Manda who was recently found shot dead. The police suspected she was murdered by Tomasai,
who was the sole beneficiary under Manda’s will. Tomasi has since committed suicide. The
terms of the insurance policy state that the corporation is not liable to pay any of the proceeds
of the policy in the event of the insured having been killed by the widow and sole beneficiary
under his will, brings an action against the Corporation for the insurance monies. Upon whom is
the burden of proof and what is the required standard of proof?
•