Burden of Proof in Criminal Actions

Introduction:

This note will discuss the burden of proof on parties in a criminal action. Specifically, the following will be discussed:

1. The general nature of a criminal action;

2. The cardinal rule that the burden of proof is on the prosecution unless shifted after the establishment of a prima facie case;

3. The standard of proof on the prosecution as being beyond reasonable doubt;

4. Circumstances under which the burden of proof will shift to the accused;

5. The standard of proof on the accused when he bears the burden of proof; and

6. Three exceptions to the general rule that the burden of proof is on the prosecution.

General Nature of Criminal Actions:

In a criminal action, a person suspected of committing an offence, known as the accused, is brought before a court of competent jurisdiction to pronounce him guilty and punish him in accordance with the law.

Usually, the prosecution (the Republic) has reason to believe the accused actually committed the offence and is, thus, guilty of the offence. On the other hand, the accused often denies committing the offence and will plead not guilty. Based on these contrary positions on the guilt of the accused, the facts in issue often revolve around:

1. Whether or not the accused committed the actus reus; and

2. Whether or not the accused had the requisite mens rea (save for strict liability offences).

The essential question is, which party has the burden of proving the above? The answer to this question is discussed below.

The Fundamental Rule on the Burden of Proof in Criminal Actions:

In direct response to the question above, a fundamental rule in criminal actions is that the guilt of the accused has to be proved by the prosecution.

This rule has been severally held to be of paramount importance. In the often-cited case of Woolmington v DPP (1935) AC 462, Lord Sankey succinctly captured the rule as follows:

Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt…No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.

This exposition was cited with approval in the Ghanaian case of Commissioner of Police v. Isaac Antwi [1961] GLR 408, where the Supreme Court added “the fundamental principles underlying the rule of law that the burden of proof remains throughout on the prosecution…”

Also, in the case of Asare v. The Republic [1978] GLR 193-199 , the Court of Appeal held that

As a general rule there is no burden on the accused; that he is presumed innocent until his guilt is established beyond reasonable doubt; that the burden is rather on the prosecution to prove the charge against him beyond reasonable doubt.

Finally, in the case of Gligah & Atiso v The Republic [2010]. SCGLR 870 , the Supreme Court, again, noted that:

It is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt in all criminal cases.

The rule that the prosecution bears the burden of proving the guilt of an accused person finds its basis in Articles 19(2) and (10) of the 1992 Constitution which reads:

19(2) A person charged with a criminal offence shall-

(c) be presumed to be innocent until he is proved or has pleaded guilty;

…

19(10) No person who is tried for a criminal offence shall he compelled to give evidence at the trial.

By the phrase “until he is proved…guilty”, implies that he has to be shown to be guilty. It does not imply that he has to be shown to be innocent.

This constitutional principle on the presumption of innocence has been enacted in Section 15(1) of NRCD 323, which reads:

Unless and until it is shifted, the party claiming that a person is guilty of crime or wrongdoing has the burden of persuasion on that issue.

Since it is often the prosecution that claims that a person is guilty of a crime, it has the burden of persuasion, which it can discharge by producing evidence of such quantum and quality as to convince the court that the accused is guilty.

The duty of showing the guilt of an accused is on the prosecution, and the effect of this duty is that

1. The prosecution has the evidential burden; and

2. The prosecution has the legal burden.

These burdens are now discussed.

1. The Evidential Burden of the Prosecution in a Criminal Action:

The evidential burden, also known as the burden of producing evidence, is defined in Section 11(1) of the Evidence Act, 1975 (NRCD 323) as follows:

For the purposes of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue.

Given that in a criminal action the prosecution alleges that the accused committed the actus reus with the requisite mens rea, all or part of which is denied by the accused, the prosecution has the obligation to do the following:

A. Introduce sufficient evidence to avoid a ruling against him on the issue of whether the accused committed the actus reus or caused the prohibited event.

In the case of R v. Yeboah [1974] 1 GLR 26, the accused had led a mob against the victim and shouting “thief! thief!” When the victim was found dead the next day, the accused was charged with murder. However, the prosecution failed to lead sufficient evidence to show that the accused was responsible for the death of the victim, and there was a ruling against him on the issue of causation. The court noted that

Even if it could be conceded that the man after whom the accused led the crowd in hot pursuit, was the same man who was subsequently found unconscious, there was still no evidence connecting the accused with his death. If a crowd of people chased after a man in the belief that he was a thief, and he was battered to death, but there was no evidence which person or persons inflicted the blows or that they were acting in concert, a charge of murder could not hold against any of them

Thus, in the absence of evidence to show that the accused inflicted the blows that caused the death of the accused, the prosecution could not discharge its burden of producing evidence that the accused committed the actus reus of the crime.

B. Secondly, the prosecution must also introduce sufficient evidence to avoid a ruling against him on the issue of whether the accused had the requisite mens rea at the time of causing the prohibited event

Given the general rule that actus non facit reum nisi mens sit rea , which translates as “an act does not render a man guilty of a crime unless his mind is equally guilty,” the prosecution must also introduce sufficient evidence to avoid a ruling against him on the state of mind of the accused. In the case of Odupong v. Republic [1992-93] 3 G B R 1028–1048 C.A. , the prosecution was able to discharge this burden by presenting a gun to the court as the murder weapon, as the court concluded that:

A gun is a lethal instrument which if fired at a person when loaded will most probably bring about the death of the person. The appellant knew it was loaded because it was he who loaded it. When he aimed and fired it, he must be deemed to have known for certain that the inevitable consequence of firing the gun at Asantewaah was to bring about her death.

Thus, by virtue of having the gun admitted into evidence as the murder weapon, the prosecution was held to have produced sufficient evidence to avoid a ruling against it on the state of mind of the accused.

C. Summary:

Note that in most textbooks, points one and two are often summarised as the prosecution proving all the elements of the crime. If it is murder case, the prosecution would have to produce evidence to show that:

1. A person died.

2. That the death was caused by unlawful harm

3. That the unlawful harm was caused by the accused.

4. That in inflicting the unlawful harm, the accused had the intention to kill.

Similarly, in a rape case, the prosecution must produce evidence to show that:

1. A female was carnally known.

2. That she was at least 16 years of age.

3. That she did not consent to being carnally known.

2. The Legal Burden of the Prosecution in a Criminal Action:

The legal burden, also known as the burden of persuasion, is defined in Section 10(1) of NRCD 323 as follows:

For the purposes of this Decree, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court.

The phrase “requisite degree of belief” is referred to as the standard of proof. The essential question is, what is the standard of proof the prosecution must meet?

Per Section 10(2) of NRCD 323, this standard could be:

a. Raising a reasonable doubt

b. Preponderance of the probabilities, or

c. Beyond a reasonable doubt.

In criminal prosecutions or whenever it is alleged that a person has committed a crime, the standard of proof is proof beyond a reasonable doubt . This is provided for in Section 11(2) and 13(1) of NRCD 323 as follows:

11(2) In a criminal action the burden of producing evidence, when it is on the prosecution as to any fact which is essential to guilt, requires the prosecution to produce sufficient evidence so that on all the evidence a reasonable mind could find the existence of the fact beyond a reasonable doubt.

…

13(1) In any civil or criminal action the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond a reasonable doubt.

Thus, in producing evidence in the discharge of the burden of producing evidence and the burden of persuasion, the prosecution produces evidence to satisfy the court that the guilt of the accused is beyond a reasonable doubt .

Also, in the case of Frimpong v. The Republic [2012] GHASC 3 (18 January 2012) ,

As is well known, it is trite law that in criminal cases, the duty on the prosecution is to prove the allegations against the appellant beyond all reasonable doubt. The prosecution have a duty to prove the essential ingredients of the offence with which the appellant and the others have been charged beyond any reasonable doubt.

Also, in the case of Oteng v. The State [1966] GLR 352 , the Supreme Court, speaking through Ollennu JSC, advanced that:

One significant respect in which our criminal law differs from our civil law is, that while in civil law a plaintiff may win on balance of probabilities, in a criminal case the prosecution cannot obtain convictions upon mere probabilities...the citizen too is entitled to protection against the State and that our law is that a person accused of a crime is presumed to be innocent until his guilt is proved beyond reasonable doubt as distinct from fanciful doubt.

The question is, what does the phrase “proof beyond reasonable doubt” even mean? This is now discussed.

Proof Beyond Reasonable Doubt:

A. What it does not Mean:

The courts have severally clarified the phrase “proof beyond reasonable doubt.” First, the courts have held that it does not mean beyond a shadow of doubt or fanciful doubt.

In the case of Miller v Minister of Pensions [1947] 2 All ER 372 , Lord Denning, in explaining the standard of proof beyond reasonable doubt, said

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 a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is strong against a man as to leave a remote possibility in his favour which can be dismissed in a sentence of course it is possible but not the least probable, the case is proved beyond reasonable doubt, but nothing short will suffice

Thus, proof beyond reasonable doubt does not mean one must be absolutely certain, without even the tiniest possibility of doubt, that the accused committed the offence. For example, in a murder trial, there is CCTV footage showing the accused pointing a gun at the deceased and pulling the trigger. The victim was later found dead at the same spot shown in the footage. While there is a remote possibility that the gun had no bullet and the victim was actually hit by a sniper several miles away, such a possibility is far-fetched and highly improbable. A rational person, considering the evidence, would conclude that the accused's action of pulling the trigger directly caused the victim's death.

B. What it Means:

In the case of Gligah & Atiso v The Republic (supra) , the Supreme Court characterised this phrase as follows:

What “beyond a reasonable doubt” means is that, the prosecution must overcome all reasonable inferences favouring innocence of the accused. Discharging this burden is a serious business and should not be taken lightly. The doubts that must be resolved in favour of the accused must be based on the evidence, in other words, the prosecution should not be called upon to disprove all imaginary explanations that established the innocence of the accused. The rule beyond a reasonable doubt, can thus be formulated thus:-

“An accused person in a criminal trial or action, is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt, he is entitled to a verdict of not guilty.”

…

This presumption therefore places upon the prosecution the burden of proving accused/appellant guilty beyond a reasonable doubt. Reasonable doubt is not a mere possible doubt, because everything relating to human affairs and depending on moral evidence, is open to some possible or imaginary doubt.

Also, in the case of Asare v. The Republic (supra), the Court of Appeal held that

the burden is rather on the prosecution to prove the charge against him beyond reasonable doubt, i.e. the jury must be satisfied upon the evidence so that they feel sure of the guilt of the accused, and that if they are left in doubt whether the accused is guilty or not guilty, then the prosecution have failed to prove the case against him and he is entitled as of right to a verdict of not guilty.

In the case of Akilu v. Republic [2017] GHASC 11 (5 July 2017) , the Supreme Court, speaking though Appau JSC, explained proof beyond reasonable doubt as follows:

We want to lay emphasis on the principle in criminal trials that; all reasonable doubts that make the mind of the court uncertain about the guilt of the accused are always resolved in favour of the accused. By reasonable doubt is not meant mere shadow of doubt. Where, from the totality of the evidence before a trial court, a soliloquy of; ‘should I convict’, or ‘should I acquit’ takes control of the mind of the court, then a reasonable doubt has been raised about the guilt of the accused. The appropriate thing to do, in such a situation, is to acquit, as required by law.

Thus, if a court remains unsure whether to convict or acquit the accused, the doubt and uncertainty is resolved in favour of the accused.

C. When Proof Beyond Reasonable Doubt is Determined:

Whether or not the prosecution has proved the guilt of the accused beyond reasonable doubt is decided in two instances:

i. At the end of the case of the prosecution if the accused does not produce any evidence(he can do this because there he assumes no burden of proving his innocence, and Article 19(10) of the 1992 Constitution expressly provides that no one shall be compelled to give evidence in a criminal trial).

ii. At the end of the case of the prosecution and the case of the accused where the accused produces evidence intended to raise reasonable doubt as to his guilt.

Usually, an accused in a criminal trial would also produce evidence intended to raise certain doubts on his guilt. This is because once he raises those reasonable doubts, the prosecution would have automatically failed to prove the guilt of the accused “beyond reasonable doubt” (as there is reasonable doubt introduced by the case of the accused).

In light of the above explanation that an accused in a criminal trial may also produce evidence, the courts have severally held that the determination of whether or not the prosecution has proved the guilt of the accused beyond reasonable doubt is done after the evidence of both the prosecution and the accused have been considered. In the case of Tsatsu Tsikata v. The Republic [2003-2004] SCGLR 1068 , the Supreme Court of Ghana rhetorically asked that:

how could one seriously speak of proof beyond doubt when the defence has not had a full chance of punching holes in the prosecution’s case to possibly raise doubt in the minds of the trier of facts, by calling its own witnesses and presenting the counsel’s address?

Thus, it is only after the accused has finished “punching holes” into the case and evidence of the prosecution that the court can determine whether the prosecution’s case remains proved beyond reasonable doubt in spite of the holes (in the nature of doubts) punched by the accused.

Also, in the case of The State V. Sowah and Essel [1961] GLR 743-747 , the Supreme Court stated that:

In a criminal case, except in the instance of sanity, and matters expressly thrown on the accused by statute, there is in general no presumption against an accused person, and an accused person is not bound to give evidence. It is wrong therefore to presume the guilt of an accused merely from the facts proved by the prosecution . The case for the prosecution only provides prima facie evidence from which the guilt of the accused may be presumed , and which, therefore, calls for explanation by the accused.

Thus, no matter how brilliant and strong the case of the prosecution is on the guilt of the accused, that case is merely a prima facie case that gives rise to a presumption of guilt. This presumption can be displaced if the accused raises a reasonable doubt, hence the need to consider the case of the accused before finally concluding on whether the guilt of the accused has been proved beyond reasonable doubt. In considering the case of the accused, the case of Lutterodt v. Commissioner of Police [1963] 2 GLR 429 provides the court with the following guide:

(1) Firstly it should consider whether the explanation of the defence is acceptable, if it is, that provides complete answer, and the court should acquit the defendant;

(2) If the court should find itself unable to accept, or if it should consider the explanation to be not true, it should then proceed to consider whether the explanation is nevertheless reasonably probable, if it should find it to be, the court should acquit the defendant; and

(3) Finally quite apart from the defendant's explanation or the defence taken by itself, the court should consider the defence such as it is together with the whole case, i.e., prosecution and defence together, and be satisfied of the guilt of the defendant beyond reasonable doubt before it should convict, if not, it should acquit.

However, if the accused fails to or refuses to provide an explanation, the case of the prosecution must still be considered to determine if it proved the guilt of the accused beyond reasonable doubt.

When the Burden of Proof will Shift to the Accused in Criminal Actions :

Although it has been stressed that the prosecution has the burden of proof at the start of a criminal action, this burden may shift to the accused at some point. It shifts after the prosecution has made a prima facie case , which then calls for a response or an explanation from the accused. In the case of The State V. Sowah and Essel (supra), the court acknowledged that:

The case for the prosecution only provides prima facie evidence from which the guilt of the accused may be presumed, and which, therefore, calls for explanation by the accused.

Also, in the case of Frimpong v. The Republic [2012] GHASC 3 (18 January 2012) , the Supreme Court stated that:

The burden of proof remains on the prosecution throughout and it is only after a prima facie case has been established i.e. a story sufficient enough to link the appellant and the others to the commissioning of the offences charged that the appellant, therein accused is called upon to give his side of the story.

Also, in Commissioner of Police v. Isaac Antwi (supra) , the Supreme Court stated that:

…the burden of proof of introducing evidence rests on the prosecution in the first instance but may subsequently shift to the defence, especially where the subject-matter is peculiarly within the accused’s knowledge and the circumstances are such as to call for some explanation.

In the more recent case of Asante (No.1) v. The Republic (No.1) [2017-2020] I SCGLR 132 , the Supreme Court clarified all that has been discussed so far on the burden of the prosecution in a criminal action, and circumstances under which the accused may have a burden of proof:

Our law is that when a person is charged with a criminal offence it shall be the duty of the prosecution to prove his guilt beyond reasonable doubt, meaning the prosecution has the burden to lead sufficient admissible evidence such that on an assessment of the totality of the evidence adduced in court, including that led by the accused person, the court would believe beyond a reasonable doubt that the offence has been committed and that it was the accused person who committed it. Apart from specific cases of strict liability offences, the general rule is that throughout a criminal trial the burden of proving the guilt of the accused person remains with the prosecution. Therefore, though the accused person may testify and call witnesses to explain his side of the case where at the close of the case of the prosecution a prima facie case is made against him , he is generally not required by the law to prove anything. He is only to raise a reasonable doubt in the mind of the court as to his commission of the offence and his complicity in it except where he relies on a statutory or special defence.

When the accused is required to explain his side of the case and he produces evidence to support his explanation, the evidence only need to raise a reasonable doubt as to his guilt. Put differently, the standard of proof the accused must meet, if it eventually shifts to him, is proof by reasonable doubt. This is provided for in Sections 11(3) , 13(2) and 22 of NRCD 323 as follows:

11(3) In a criminal action the burden of producing evidence, when it is on the accused as to any fact the converse of which is essential to guilt, requires the accused to produce sufficient evidence so that on all the evidence a reasonable mind could have a reasonable doubt as to guilt.

…

13(2) Except as provided in section 15 (3), in a criminal action the burden of persuasion, when it is on the accused as to any fact the converse of which is essential to guilt, requires only that the accused raise a reasonable doubt as to guilt.

…

22. In a criminal action a presumption operates against the accused as to a fact which is essential to guilt only if the existence of the basic facts that give rise to the presumption are found or otherwise established beyond a reasonable doubt, and thereupon, in the case of a rebuttable presumption, the accused need only raise a reasonable doubt as to the existence of the presumed fact .

By the omission of the word “beyond,” the accused has a lower standard of proof. He only needs to raise a reasonable doubt to be acquitted.

When the Accused will have the Burden of Proof at the Start of a Criminal Trial:

There are instances where an accused person will have the burden of proving that he is not guilty. These instances are exceptions to the general rule that in a criminal trial, the prosecution has the burden (which may eventually shift to the accused after the establishment of a prima facie case). The exceptions may be grouped as follows:

a. Where a criminal statute directly places the burden of proof on the accused.

b. Where the accused raises the defence of insanity.

c. Where there are facts particularly within the knowledge of the accused.

These are now discussed:

A. First Exception: Where a criminal statute directly places the burden of proof on the accused:

For certain crimes, a statute may place the burden of proof on the accused. In Section 154 of the Criminal Offences Act, 1960 (Act 29), for instance, it is provided that:

A person who has, without lawful excuse, the proof of which lies on that person , the possession of a tool or an implement adapted or intended for use in unlawfully entering a building commits a misdemeanour.

Also, in Section 165 of Act 29, it is provided that:

A person who without lawful excuse, the proof of which lies on that person, has in possession an instrument or a thing specially contrived or adapted for the purposes of forgery commits a misdemeanour.

In both provisions, the phrase “the proof of which lies on that person” places the burden on the accused to prove that he has a lawful excuse for possessing a tool adapted to be used in unlawfully entering a building or an instrument adapted for forgery. Thus, the prosecution does not have the burden of proving that the accused did not have a lawful excuse, as these provisions place the burden of proving the existence of the lawful excuse on the accused.

These impositions of the burden of proof on the accused by Act 29 finds justification in Article19(16)(a) of the 1992 Constitution which provides that

Nothing in, or done under the authority of, any law shall be held to be inconsistent with, or in contravention of, the following provisions –

a. paragraph (c) of clause (2) of this article, to the extent that the law in question imposes upon a person charged with a criminal offence, the burden of proving particular facts;

Thus, the imposition of the burden of proving the existence of a “lawful” excuse in Sections 154 and 165 of Act 29 does not violate the presumption of innocence in Article 19(2)(c) .

B. Second Exception: Where the accused raises the defence of insanity

Another exception, which is found both in statute and case law, is the case of proving insanity. In Section 15 (3) of NRCD 323, it is provided that:

Unless and until it is shifted, the party claiming that any person, including himself, is or was insane or of unsound mind has the burden of persuasion on that issue

This rule was stated in the case of Bratty v AG of Northern Ireland [1963] AC 386 as follows:

Whilst the ultimate burden rests on the Crown of proving every element essential to the crime, nevertheless, in order to prove that the act was voluntary act, the Crown is entitled to rely on the presumption that every man has a sufficient mental capacity to be responsible for his crimes. And that if the defence wish to displace the presumption, they must give some evidence from which contrary decision reasonably may be inferred.

In producing evidence to prove insanity or other diminished mental state, the standard of proof on the accused is on the preponderance of probabilities. In the case of Asare v. The Republic (supra) , the court noted that

By way of an exception to the general rules above stated, the burden of proving some defences lies on the accused, e.g. insanity, insane delusion, special pleas in bar (e.g. autrefois acquit, autrefois convict and pardon) and where an enactment has imposed the onus of proof of particular defences on the accused. In this exceptional category of cases—and the present case raising the plea of insanity fell into this category—it is mandatory for the trial judge to direct the jury clearly on the standard of proof needed to establish the particular defence relied upon; for, it is settled law that where the law casts the onus of proof on the accused, the burden on him is lighter than that on the prosecutor. The standard of proof required is the balance of probabilities. "[T]he burden in cases in which an accused has to prove insanity may fairly be stated as not being higher than the burden which rests upon a plaintiff or defendant in civil proceedings": see per Lord Hailsham L.C. in Sodeman v. R. [1936] 2 All E.R. 1138 at p. 1140, P.C.; and the local cases of Dabla v. The State [1963] 2 G.L.R. 14 at pp. 18-19, S.C. and Kusasi v. The Republic [1976] 1 G.L.R. 335 at p. 342, C.A.

In proving insanity on the balance of probabilities, which is the same as the preponderance of the probabilities, the accused would have to establish that the existence of his insanity is more probable than its non-existence, per the definition of the phrase in Section 12 of NRCD 323 .

C. Third Exception: Where there are facts particularly within the knowledge of the accused

Beyond proving insanity and factors such as lawful excuse, another exception where the accused will have the burden of proof is facts exclusively within the knowledge of the accused. In the case of Salifu and Another v. The Republic [1974] 2 GLR 291-303, the court explained that:

The law, in cases where knowledge of a fact in issue is peculiarly within the knowledge of the accused, is that the negative is not to be proved by the prosecution, but on the contrary, the affirmative must be proved by the accused as a matter of defence.

Conclusion

This note discussed the burden of proof in criminal actions. As a fundamental rule, the prosecution has the burden of proving the guilt of the accused, and it does this by showing that all the elements of the offence exist. In doing this, the standard of proof is beyond reasonable doubt.

The general rule on the burden of proof is subject to some exceptions which are usually from statute. The first exception is that where a statute directly places the burden on the accused to prove a defence or a particular fact. The second is in the insanity cases where an accused who pleads insanity has the burden of proving same. The third is when certain facts are particularly within the knowledge of the accused. When the burden of proof is on the accused, the applicable standard of proof is preponderance of the probabilities.

Accuracy of Counsel’s Arguments:

Counsel is right in saying that the prosecution has to prove all the elements of the offence. However, he is wrong in saying that the prosecution has to prove that the students were below the age of 18, because this is not an element of the offence and the Private Tutorial Act has expressly placed the burden of proving that the students were above the age of 18 on a person that raises this defence.