GENERAL PRINCIPLES IN CRIMINAL TRIALS

It is a cardinal principle of criminal law that all accused persons are presumed innocent unless
proven (in a court of law) guilty.

What this means is that notwithstanding how much evidence exits outside a court of competent
jurisdiction or, notwithstanding how much a person “knows” that an accused is guilty as charged,
unless evidence is tendered in court which proves a defendant’s guilt in accordance with the
burden of proof required in criminal trials (to be discussed below), then such accused person will
walk free.

The type of trial an accused is subject to and the type of court an accused’s matter is brought
before is largely dependent on the type of offence he/she is charged with. As a result even before
we start to analyse the types of trials in existence and the key “players” in same,(namely: the
judge, the resident magistrate, the jury,) we must first have a proper understanding of the types
of offences which exist in criminal law and how this classification affects the type of trial an
accused is subject to.

Offences may be classified either by mode of trial or by category of offence:

Offences by Mode of Trial may be:

(i) Summary
(ii) Indictable
(iii) Hybrid

Summary Trials are trials held before Resident Magistrates who are given the jurisdiction to
hear these trials under the Judicature Resident Magistrates Act or by Justices of the Peace who
are given jurisdiction under various Acts to hear matters.

Summary Trials take place where the accused is charged with a summary offence, which is
generally deemed to be a minor offence OR the accused is charged with a hybrid offence, i.e. an
offence triable either way and summary trial is elected by either the magistrate or the
prosecution as the case may be.

Where the offence is a hybrid offence by virtue of it being a Scheduled offence; i.e an offence
noted in the Schedule of the Act which created the offence, Resident Magistrates are given the
jurisdiction to hear the matter summarily if, in his/her determination, the punishment that the
court has the power to inflict would be adequate and the circumstances of the case do not make
the offence one of a serious character requiring trial on indictment. In these circumstances, the
Magistrate may elect to try the offence summarily.

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Note however, where this is done, the Magistrate must explain his/her decision to try the matter
summarily to the accused and he must obtain the consent of the accused to proceed in this
manner. Failure to obtain the consent of accused to hear the matter summarily when this is
required by statute, will result in any ensuing trial being a nullity.

Note outside of scheduled offences which a Magistrate may determine is suitable for trial
summarily, statute creating particular offences may sometimes stipulate that the person found
guilty may “on summary conviction” be liable to a particular sentence and alternatively “on
indictable conviction” may be liable to a different sentence. In these instances it is obvious that
provision has been made to try the offences “either way”. In these instances, the prosecution
makes the decision whether to proceed summarily or on indictment.

Summary trials are commenced by the prosecution presenting to the Magistrate a complaint, or
information (as it is called in some jurisdictions) alleging that the person named has committed
some specific offence. If the complaint is not initially in writing, it should be reduced to writing.
The complaint must specify the statement of the offence , i.e. the name of the offence and
sufficient particulars to substantiate the laying of the complaint. The particulars noted in the
complaint will usually include the date and place of the alleged offence as well as the act
complained of in succinct terms.

Where a statute creates a summary offence and does not specifically confer jurisdiction on a
R.M., a person charged with such an offence is tried in a court of Petty Sessions by a Justice of
the Peace.

Either the accused or the prosecutor may appeal to the Circuit court of the parish in which the
case was tried, or to a judge of the Supreme Court.

Where however, special statutory summary jurisdiction is conferred on the R.M., the accused is
tried in the R.M. Court. If convicted, the accused may appeal to the Court of Appeal.

A further appeal lies to her Majesty in Council at the instance of, either the accused, or the
prosecutor.

Note: a “Court of summary jurisdiction” is defined by section 3 of the Interpretation Act, as:
(a) any justice(s) of the peace to whom jurisdiction is given by any Act, or any Resident
magistrate sitting either alone or with other justices in a court of petty sessions;
(b) a Resident magistrate exercising special statutory summary jurisdiction.
-

Summary Trials are therefore:

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 (a) Trials on Information/Complaint
(b) Used to try minor offences generally
(c) Used to try some serious offences
(d) Used to try “triable either way offences”
(e) Can be heard by either Resident Magistrates or Justices of the Peace

Indictable Trials

Trials on indictment are trials heard in the Supreme Court of Judicature and generally refer to
trials held with respect to more serious offences.

The indictment is a printed copy of the crime/crimes made at the suit of the state which sets out
clearly what the accused is charged with and what he is called to answer. If the officer of the
court designated by statute does not sign the indictment, it will be invalid, and no proper trial can
emanate from such an indictment:

Before a person charged with an indictable offence, he is taken before a Resident magistrate. If
the offence charged is within the jurisdiction of the Resident Magistrate, an order is made by the
Resident Magistrate for the trial of the accused on indictment in the R.M. Court. Persons
separately indicted may not be tried together – R v. Bushel.

Where the offence charged is outside the jurisdiction of the R.M., an order is made by the R.M.
for a preliminary inquiry to be held by him, with a view to committing the accused to stand trial
at the Circuit Court.

Only if the prosecution makes out a prima facie case, can the accused be committed for trial.
Otherwise, the accused must be discharged.

Indictable trial are heard before a jury save and except those related to gun matters which are
heard in Gun Court before a Judge alone pursuant to the provisions of the Gun Court Act which
speaks to all matters being heard in camera; i.e. in private with a Judge as opposed to in open
court.

Where an accused has been convicted on trial on indictment, he may appeal to the Court of
Appeal and from there a further appeal lies to her Majesty in Council, at the instance of either the
accused or the prosecutor.

Indictable Trials are therefore:

(a) Trial are heard on Indictment in the Supreme Court as opposed to the Resident
Magistrate’s Court
(b) Used to try all common law offences
(c) Used to try all statutory offences unless statute provides otherwise
(d) Used to try generally more serious offences
(e) Generally heard by jury

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Trial re: Hybrid Offences:

As noted above, Hybrid Offences are offences which may be tried either way; i.e they may be
tried summarily or on indictment as provided for in the particular statute (either in the Schedule
of the Act or in the Act itself) (Note information above)

Offences broken down by category relate to:

(i) Treason
(ii) Felonies
(iii) Misdemeanours
(iv) “Arrestable” or “non-arrestable”

Treason

Treason is the crime that covers some of the more serious acts of betrayal of one's sovereign or
nation. It was thought to be one of the greatest crimes a person could commit at common law.

Felonies and misdemeanours

Serious offences created by judges from the twelfth to the fourteen century were called felonies.
They were thought to be less serious than treason but more serious than a misdemeanour.

The principal original felonies were homicide, rape, theft, robbery, burglary and arson. Important
consequences flowed from the characterization of an offence as a felony or a misdemenour. For
example only in the case of a felony was there a general power to arrest without a warrant.
Similarly it was an offence to conceal a felony but not an offence to conceal a misdemeanor.

Sometimes the felonious status of the offence may be determined by reviewing the definition in
the statute or by assessing the severity of the penalty. Note however, that while this is usually a
useful benchmark, it is not always the best guide as in some instances, crimes of great gravity are
deemed misdemeanours and crimes which are seemingly small in comparison with others are
deemed felonies. For example: perjury is a misdemeanor whereas simple larceny is a felony.

Some procedural differences between felonies and misdemeanours

Procedural differences

(i) During trials for felonies the accused must be present throughout the proceedings
unless their presence retards proceeding or the accused is voluntarily absent e.g.

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 absconding. However for trials on misdemeanours the accused’s presence is strongly
recommended but not required.

(ii) The rules as to parties are different. While felonies may involve principals in the 1st,
2nd degree etc., an accessory before and after the fact, in the case of a misdemeanour,
there are no accessories or parties called principals; there is only one accused. Note
however that aiding & abetting is now extended to misdemeanours i.e. accessory
before the fact.

(iii) Offences of misprision and compounding a felony do not extend to a misdemeanour.

Misprision being in concealment of knowledge of a felon and Compounding being
entering into an agreement for valuable consideration, not to prosecute for a felony.
NB: These two offences themselves are misdemeanours

(iv) The rule in Smith v. Selwyn: an action for damages based upon a felonious act on the
part of the defendant, committed against the plaintiff, is not maintainable so long as
the defendant has not been prosecuted or a reasonable excuse shown for his not
having been prosecuted. The proper course for a court to adopt in such a case is to
stay further proceedings in the action until the defendant has been prosecuted. NB:
This is no longer an absolute rule. The court is now required to balance justice
between all the parties and consider all the circumstances.

(v) Powers of Arrest without warrant are wider in respect of felonies than
misdemeanours. Based on principles in the case of R v. Owen Sampson, a constable
has power at common law, to arrest without warrant on reasonable suspicion of a
felony having been committed; but he has no power to arrest for a misdemeanour,
unless a breach of the peace has been committed in his presence or there is reasonable
ground for supposing that a breach of the peace is about to be committed or renewed
in his presence. Note: Under s. 18 of the JA Constabulary Force Law, Cap 129, if a
person is found committing an offence punishable on summary conviction the police
has the power to arrest.

Arrestable and Non- Arrestable Offences

Some jurisdictions have reclassified felonies and misdemeanours into “arrestable” and “non-
arrestable” offences. An arrestable offence is one where penalty is imprisonment for at least 5

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years or there is a fixed, mandatory term of imprisonment whereas “non-arrestable” offences, as
the term implies, are those offences which do not fall under the former category.

In territories which have classified crimes along these lines, a private citizen may arrest without
warrant anyone whom he suspects is in the act of committing an arrestable offence or has
committed a particular arrestable offence.

The delineation between “arrestable” and “non-arrestable” offences therefore much like felonies
and misdemeanors centre around the apparent gravity of the crime.

Note: In Jamaica the distinction is made between felonies and misdemenaours.

TYPES OF CRIMINAL TRIALS

From the above therefore, one should get a sense that they are various degrees of gravity where
crimes are concerned. Serious offences are called felonies or arrestable offences, whereas less
serious matters are called misdemeanors or non-arrestable offences.

As a general rule of thumb, serious cases are heard on indictment, less serious matters are heard
summarily. In those instances where offences can be properly classified as “hybrid” or “triable
either way” these offences may be heard summarily or on indictment.

As it relates to criminal trials, there are three major “players” involved. These being:

(i) The Judge

(ii) The Jury

(iii) Resident Magistrates

Role of the Judge in Criminal Proceedings – that is Trials on Indictments

(a) In trial by jury; that is trials on indictment, Judges are largely referred to as the arbitrators
of law. This means that their major function is interpret the law; that is both case law and
statute and to direct the jury on it. (N.B. (c) below)

(b) The judge should be present at every stage of a trial. During the trial, the judge has a
limited right to call witnesses himself. This is a right that is rarely exercised, but if it is, it
should be done so as to assist the prosecution’s case: R v. Tregear. The chief determinant
is whether this course is necessary in the interests of justice. Where the judge takes such a
course, he should allow both sides to cross-examine the witness if the witness gives

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 evidence that is adverse to one party. The judge may also question any witness called by
either side.

(c) Judges should take notes of evidence even though this duty may not be incorporated in
statute. Note the case of Williams where the English Court of Appeal considered an
appeal which had to be conducted without any transcript of the relevant evidence or
‘more importantly the judge’s summing up’. It appeared that the tapes which had been
used to record the evidence and the summing up had been lost. The court expressed
concern for the absence of transcripts, but felt that the very clear handwritten notes made
by the judge provided sufficient information on the facts of that case to enable it to reach
a proper decision.

(d) The judge must sum up the trial by addressing the jury in open court. In his summation,
the judge must give directions in law and analyse the evidence, if necessary. A summing
up does not need to follow a prescribed format once overall it is fair to the defence: In the
case of Walters v. R.it was held that by the time he sums up, the judge will have had an
opportunity of observing the jurors and it is best left to his discretion to choose the most
appropriate set of words to make that jury understand that they must not return a verdict
against a defendant unless they are sure of his guilt. It is the overall effect of the summing
up which matters.

(e) In summing up judges should outline the respective roles of judge and jury, in particular
at that stage in the trial. A judge should make it clear to the jury they must take the law
as he directs and apply it to the facts as they find them.

(f) A judge must tell the jury that it is for the prosecution in a criminal trial to prove the case
and that they must do so beyond a reasonable doubt. Failure to give these essential
directions on the burden and standard of proof in a criminal trial will almost always
result in the quashing of any ensuing conviction.

(g) The judge is required to direct the jury on the elements of the offence or offences
charged. He must explain what the prosecution must prove in order to establish a case
against the defendant

(h) The judge should always ensure that he puts the defence to the jury fairly and
adequately, however weak it may appear: David Watkins v. R. It is relevant to note
that it is usual for the judge to ask counsel at the end of his summing up if there is
anything they wish him to add or clarify. If there is any error in the summing up, the law
or analysis of fact, the prosecutor has a duty to assist the judge in this regard: R v. McVey.
At the end of the summing up, the trial judge will give specific directions on the verdict
or possible verdicts in this matter.

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 (i) Where cases are heard by judge alone, for example: Gun Court, judges must determine
both the questions of law and facts and arrive at a verdict.

(j) Judges must also ensure that the trial is conducted according to the Rules of Procedure
and Evidence.

(k) Judges of the Supreme Court go on circuit to parishes and have jurisdiction to try all
treasons, felonies and misdemeanours committed within that parish (s. 29 Judicature
Supreme Court Act - JSCA)

(l) Judges of the Supreme Court include the Chief Justice, Senior Puisne Judge and Puisne
Judge (s. 5(1) JSCA)

(m) The Chief Justice is the president and chief judge of the Court (s. 5(2) JSCA

Role of the Resident Magistrate

(a) Trial of offences summarily in exercise of special statutory summary jurisdiction

(Various statutes will create this jurisdiction)

(b) Trial on indictment of certain indictable offences by virtue of either s. 268 J(RM)A or
the statute creating the indictable offence see DPP v. Sanchez-Burke [1977] 1 W.L.R.
903. Note that this legislation which gives Resident Magistrates the right to try certain
indictable offences indictably is unique to Jamaica. In other territories, although
Magistrates are given the right to try indictable offences, they must do so summarily.

(c) Before trial commences the Resident Magistrate must make enquiry to ascertain
whether or not the offence was committed within his jurisdiction physically and as
prescribed by statute. A Magistrate only has jurisdiction over cases which occur in the
jurisdiction he is sitting in: D’Oliviera, Comptroller of Customs and Excise v Chase
(1964) 7 WIR 18 unless statute provides otherwise. Furthermore, he only has
jurisdiction to hear matters as prescribed by statute. Where a matter exceeds the
jurisdiction as prescribed by statute, the Resident Magistrate may make an order
for Preliminary Enquiry which must be endorsed and signed s. 272 J(RM)A .Note
therefore that all criminal matter, both summary and indictable, are begun in the
Magistrate’s Courts with the laying of information or a complaint as the case may be.

(d) Where an offence is classified as indictable, there must first be a preliminary enquiry in
the Magistrate’s Court in order to determine if the case should go to trial to the High
Court for trial by jury. If no preliminary case is made out against the accused, then the
case against the accused must be dismissed.

(e) Resident Magistrates may order indictment for any offence within his jurisdiction
which is:

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 a) charged in the information;

b) in addition to the charge in the information or

c) in substitution for any offence charged in the information. Counts may therefore be
added to the indictment as necessary See s. 273 J(RM)A.

(f) The magistrate has the power to stay the Preliminary Enquiry and treat matter as one
for trial s. 276 J(RM)A

(g) It should be noted that the Resident Magistrate acts in the capacity of both judge and
jury – therefore he decides questions of law and facts , then applies the law to the facts
of the case to arrive at a verdict.

The Role of the Jury in Criminal Trials and other general information relating to the Jury

(a) While the main function of the judge is to interpret the law, the main function of the jury
is to determine the facts. The main question of fact that the jury must determine is
whether the defendant is guilty or not guilty. It is incumbent on the trial judge never to
seek to usurp this function of the jury by seeking to persuade them to his point of view in
relation to the credibility of witnesses or the defendant. Whether the defendant is to be
found guilty based on the evidence provided is solely a matter for the jury. The jury
is to apply the law to the facts as directed by the judge and from there to arrive at a
verdict either for the offence for which the accused is charged or upon possible verdicts
for other alternative offences that are left to them for their consideration. Example
Manslaughter as opposed to Murder.

(b) In Jamaica a jury comprises 12 jurors in the instances of murder (whether capital or non-
capital) and treason. In all other cases a jury comprises 7 jurors- s. 31(1) & (2) Jury Act.

(c) Both the prosecutor and the defence have the right to challenge prospective jurors called,
before a jury is finally selected. See for e.g.Jamaica s.33 Jury Act.

(d) There are two types of challenges:

Peremptory challenge; and

Challenge for cause.

(e) A peremptory challenge is one for which no reason need be given and is made to the
polls (i.e to the individual juror) as he is about to be sworn. A peremptory challenge
must be made as the juror comes to the book to be sworn and before he begins the
oath, otherwise it will be too late; however Judge has a discretion to allow it after this
time- R v. Harrington et al (1977) 64 Cr. App. R. 1

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 In wholly exceptional cases, the trial judge may permit challenge for cause of all
prospective jurors without laying the foundation of fact individually against each juror.
This may occur where there has been widespread and prejudicial pre-trial publicity
sufficient to establish the probability of prejudice on the part of anyone who had read that
kind of information: R v. Kray. It is the trial judge who makes the determination as to
whether the objection to the juror should be upheld and the prospective juror discharged.

(f) In Jamaica- s. 33(1) & (2) Jury Act -each defendant has 7 pre-emptory challenges for
murder/treason and 5 in other cases. The prosecution has 7 or 5 for each defendant as the
case may be

(g) A challenge for cause is one whereby there is some specific reason why either the
defence or the prosecution does not wish the particular party to form part of the jury. The
party who seeks to exercise this type of challenge must first lay the foundation of fact in
support of the ground of his challenge and they must prove it: R v. Chandler.

A juror may be successfully challenges for causes on the basis that:

(i) he is biased, this is sometimes called proper affectum; The test to determine
whether a juror should be discharged on the basis of bias was enunciated in
the case of R v. Gough . In that case, the determination was said to centre
around the question of whether there was a real danger of bias that the
defendant may not have a fair trial as a result of the alleged bias.
(ii) he does not satisfy the qualification requirements, this is sometimes called
proper defectum.

(h) Both the defence and prosecution can make as many such challenges for cause as they
can prove

(i) The grounds for challenges for cause were created at common law and have been given
statutory foundation in some territories. See for e.g. Belize- s. 24(2) and T & T- s.23(A)

(j) In some jurisdictions it may be made either to the array (all jurors called to the jury
box)- See for e.g. Jamaica s. 48 or to the polls (individual jurors)- See for e.g. Jamaica
s.33(4)

(k) Throughout the region matters related to the jury are governed by Jury or Juries Acts

(l) Sec.2(1) Jury Act of Jamaica states: Every person qualifies to serve on a jury if:

(i) He is not less than 18yrs. Old and not more than 65; and

(ii) His name is on the current official list for elections; and

(iii) He resides in Jamaica.

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Sec.2(2) goes on to state: A person is disqualified from serving on a jury if:

(i) He is not a commonwealth citizen; or

(ii) He cannot speak, read and write English; or

(iii) He is at the date of being required to be a juror,

(i) Awaiting trial in Resident Magistrate Court for an indictable offence; or

(ii) A person in respect of whom a preliminary enquiry into an indictable offence is

pending committal or trial.

(iv)A person convicted of treason or any there offence for which he has been sentenced to
imprisonment for more than 6mths unless he has received a pardon.

(m) Obligation to serve on jury

It should be noted that there is general obligation on the part of all Jamaicans to serve on
the Jury if called upon to do so by the Registrar of the Supreme Court. See Sec 2(1) and
2(2) above.

(n) Sec .6(1) of the Jury Act states: No person whose name is on the jury list is entitled to
be excluded from attendance at court on ground of disqualification or exemption, other
than illness, not claimed before final settlement of list. But a Judge, R.M. or coroner may
excuse him if satisfied that:

(a) he is disqualified /exempt under provisions of Act; or

(b) for reasons apparent to judge, person should be excused.

(o) Note Sec.6 (2) of the Act which states: - no verdict /findings in any proceedings will be
invalidated by reason only of fact that person disqualified /exempt from so serving,
served on jury in said proceedings.

(p) As it relates to the empanelling of jurors the following obtains:

a. Each term the Registrar Supreme Court prepares panels of jurors for each circuit
court from the jury list of each parish

b. Registrar issues to Commissioner of Police a Writ of Venire Facias with names of

jurors forming the panel or panels. The jurors for each case are chosen from the
panel

c. The presiding judge may excuse a juror from sitting for good cause e.g. ill health

d. Jurors for a case are chosen at random

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 (q) Where the requisite number of jurors (as outlined by Section 31 of the Jury Act) do not
appear or there is an insufficient number remaining after challenges, the Court is
empowered to add to the jury as many bystanders (talesmen) as necessary. s. 43;

(r) It must be ensured however that these talesmen are not disqualified or exempted by law -
See s. 43

(s) Note as it relates to Items (q) and (r) aforesaid that by common law it is impermissible
to have a jury totally composed of talesmen- R v. Solomon (1958) 42 Cr. App. R. 9

(t) Jurors must elect a foreman and if there is no agreement, the Judge may appoint the
foreman.

THE BURDEN OF PROOF IN CRIMINAL TRIALS

Burden of proof

The burden of proof is borne by the party who asserts in both criminal and civil cases.
Simply put: He who asserts must prove.

The Legal Burden

This burden is the burden of proof which can be defined as the obligation imposed on a party by
a rule of law to prove a fact in issue or the legal obligation imposed on a party to satisfy the
factfinder, to a specified standard of proof that certain facts, that is, the facts in issue, are true.

The facts in issue are determined by reference to the substantive law, in criminal law often by
reference to the elements of the offence.

Whether a party has discharged this burden and proved a fact in issue is decided only once, by
the tribunal of fact (i.e. the jury). The standard of proof required depends on whether the
proceedings are criminal or civil.

NB. If one fails to discharge their legal burden to the required standard they will lose on
the question in issue.

The classic example of a legal burden is the rule that in a criminal case the prosecution bears the
burden of proving the elements of the offence charged, to the standard of beyond a reasonable
doubt. If the prosecution fails to persuade the fact finder to this standard of one or more
elements of the offence charged, then the prosecution will have failed to discharge its legal
burden and the fact finder must acquit on the charge.

Legal burdens are allocated by rules of law and do not shift during the course of the trial. In
criminal cases, as noted above, the burden of proving any fact essential to the prosecution’s

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case rest upon the prosecution and remains with the prosecution throughout the trial, this
was sent down in the case of Woolmington v. DPP

In Woolmington v DPP, Woolmington was charged with the murder of his wife, and gave
evidence that he had shot his wife accidentally. The trial judge directed the jury that once it was
proved that the accused had shot his wife he had the burden of disproving malice aforethought.

HELD: The appeal would be successful and the conviction quashed. The direction was wrong. In
that case it was clearly stated that the burden of proving a case in criminal matters rests on
the prosecution.

Per Lord Sankey LC: “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
subject to what I have already said as to the defence of insanity and subject also to any
statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt,
created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner
killed the deceased with a malicious intention, the prosecution has not made out the case and the
prisoner is entitled to an acquittal. 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 burden remains on the prosecution to negative defences in criminal matters.

In cases of automatism, provocation, duress, self defence and accident the burden of proof is on
the prosecution to negative beyond a reasonable doubt once the defence has raised it on a
balance of probabilities. See the cases of Burns, Gomes v. R, Baptiste v. R and The State v.
Guy Simmons.***

***It is important to note that whenever the burden shifts to the accused in criminal matters the
standard of proof is that in civil proceedings. This is seen in the cases of LaSalle, Shah et al v. R,
R v. Carr-Briant, Edwards, R v. Brown and Vasquez v. R

Baptiste v. The State

At the trial of the appellant for murder, he pleaded self-defence, accident and provocation in
reply to the charge. Whilst the trial judge dealt impeccably in his summing-up with the burden
of proof and the standard of proof, he repeatedly referred to the matters pleaded by the appellant
as “defences” and did not make it clear to the jury that the question of self-defence had actually
arisen in the case, nor that a plea of provocation might succeed even had the appellant formed an
intention to kill or to inflict grievous bodily harm. The appellant was convicted of murder and
appealed to the Court of Appeal.

HELD: Allowing the appeal and ordering a retrial.

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It was stated:

In every case where a plea of self-defence, provocation or accident was raised in defence the trial
judge must (in addition to giving general directions as to the onus of proof) give a special
direction that a further burden rested on the prosecution to negate beyond reasonable
doubt the existence of those pleas; if in a trial for murder that onus were not discharged by
the prosecution, the accused must, where he had pleaded self-defence or accident, be
acquitted or, where he had pleaded provocation, be convicted of manslaughter;

It is necessary for the judge to direct the jury on this question in his summing up. See the cases
of The State v. Hansraj Ori and R v. Hepworth and Fearnley.

Note that while there is the general idea that the legal burden rests on the prosecution,
there are some instances in which this burden shifts to the defence. This shifting of the legal
burden arises in three main instances:

(i) where the plea of insanity is raised, the defendant bears the legal burden of proving it. See
the case of Bratty v. AG.

Bratty v. AG

The appellant was convicted of murder in spite of three defences, namely, that at the time
of the killing he was in a state of automatism because suffering an attack of psychomotor
epilepsy, that he was so confused and deficient in reason that he was incapable of forming the
necessary intent, and that he was guilty but insane as he was suffering from a disease of the mind
within the rules in R. v M'Naghten. The judge had put the third defence to the jury, but not the
first or second.

HELD: To establish the defence of insanity within the M'Naughten Rules the accused must
prove on the preponderance of probabilities, first a defect of reason from a disease of the
mind, and, secondly, as a consequence of such a defect, ignorance of the nature and quality
(or the wrongfulness) of the acts…I think that the difficulty is to be resolved by
remembering that, whilst the ultimate burden rests on the Crown of proving every element
essential in the crime, nevertheless in order to prove that the act was a voluntary act, the
Crown is entitled to rely on the presumption that every man has sufficient mental capacity
to be responsible for his crimes: and that if the defence wish to displace that presumption
they must give some evidence from which the contrary may reasonably be inferred.So also
it seems to me that a man's act is presumed to be a voluntary act unless there is evidence from
which it can reasonably be inferred that it was involuntary. To use the words of Devlin J., the
defence of automatism "ought not to be considered at all until the defence has produced at
least prima facie evidence," if, however, the defence succeeds in laying such a foundation
then the onus is on the prosecution to prove intent.

Criminal Law Notes: Unit 2; Compiled by Ayisha R. Robb and Kaysha A.C. Franklin
 (ii) By statue: In terms of strict liability offences the burden rest on the accused to show that
they fall under any exception provided by the statute.

For example:

R v. Edwards

D was charged with selling by retail intoxicating liquor without holding a justices' licence
contrary to of the Licensing Act 1964 s. 160(1)(a). The prosecution proved that D had sold
liquor, but brought no evidence that he was not in possession of a justices' licence. D was
convicted. On appeal D contended that as the clerk to the justices had to keep a register of
licences, the matter was not one peculiarly within his own knowledge, and the onus was on the
prosecution to prove absence of a licence.

HELD: There was an exception to the fundamental rule of the criminal law that the prosecution
had to prove every element of the offence charged, which was limited to offences arising under
enactments which prohibited the doing of an act but subject to provisos or exemptions; and that
its application was not dependent upon either the fact, or the presumption, that the defendant had
peculiar knowledge enabling him to prove the positive of a negative averment. That if on the
true construction of an enactment it prohibited the doing of a certain act, save in specified
circumstances, it was not for the prosecution to prove a prima facie case of lack of excuse
or qualification for the onus of proof shifted and it was for the defendant to prove that he
was entitled to do the prohibited act and, accordingly, in the present case the defendant
had to prove that he held a justices' licence.

Also Note: Sec: 22(7) Dangerous Drugs Act , Unlawful Possession of Property of Act which
states:

A person, other than a person lawfully authorized, found in possession of more than-
(a) one-tenth of an ounce of diacetyl-morphine
(heroin);
(b) one-tenth of an ounce of cocaine;
(c) one-tenth of an ounce of morphine;
(d) one ounce of opium; or
(e) eight ounces of ganja,
is deemed to have such drug for the purpose of selling or otherwise dealing therein
unless the contrary is proved by him

Note that this presumption does not always have to be express as in the case of Sec 22 (7) of the
Dangerous Drugs Act, but it may also be implied.

Where on interpreting the statute, it implies that the burden is on the accused by virtue of how
the section is constructed, one can infer that the burden rests with the defence, that is, that the
statute has placed the burden on the defence by necessary implication.

Criminal Law Notes: Unit 2; Compiled by Ayisha R. Robb and Kaysha A.C. Franklin
This is generally the case where the statute is concerned with offences committed by a special
class of persons, or within specified qualifications or with the licence or permission of specified
authorities.

For example: R v Edwards ( 1975) QB 27 and R v Hunt (1987) AC 352 and Sec 20 Firearms
Act – Illegal Possession of a firearm

Sec 20 of the Firearms Act states:

A person shall not

(a) save as authorized by a licence which continues in force by virtue of any

enactment, be in possession of a prohibited weapon; or

(b) subject to subsection (2), be in possession of any other firearm or

ammunition except under and in accordance with the terms and conditions of
a Firearm User’s Licence.

The above provisions imply that if a person were to be charged with being in possession of a
prohibited weapon, the onus, or burden or proof would be on him to show that he was in
possession in accordance with the provisions of the aforesaid Act.

Where it is difficult for the defendant to provide evidence in his defence, or where the offence
alleged is a serious one, the courts will generally take the view that the burden is too onerous,
and it will rest with the prosecution.

(iii) Pleas other than to the issue of guilt: Pleas by an accused other than that of
guilt such autrefois acquit or autrefois convict ***transfer the burden of proof
on the accused. The defendant bears the legal burden on a balance of
probabilities.

*** It is a basic common law principle that a person may not be tried a second time for the same
offence in respect of which he was in jeopardy of being convicted or acquitted on the first trial.
This is sometimes referred to as the rule against double jeopardy, which is fundamental to
English Law and is in accordance with recognized constitutional principles of the right to due
process. A person about to be tried a second time in such circumstances may raise autrefois
acquit of autrefois convict. If he raises autrefois acquit he is alleging he was previously acquitted
on the same charge and if autrefois convict that he was previously convicted on the same charge.

Criminal Law Notes: Unit 2; Compiled by Ayisha R. Robb and Kaysha A.C. Franklin
The Evidential Burden

This is the burden of adducing evidence. It is the obligation to adduce sufficient evidence to raise
an issue for the court to consider. The evidential burden is below that of the legal burden and the
party who normally bears the legal burden of proving a particular issue also has evidential
burden.

The question of who has an evidential burden on a particular issue is determined like the legal
burden by Substantive Rules.

It is important to note that that the party who has an evidential burden in relation to a particular
issue need not have the legal burden. Example an accused who wants to rely on a particular
offence like provocation or self defence must either produce such evidence or point to some
evidence which raises the defence- that is a reasonable doubt that he killed either under
provocation or in self defence.

Once this evidential burden has been discharged, the prosecutions legal burden comes into play

In criminal cases the defence bears the evidential burden in cases of the defence of
duress, alibi, automatism and etc. See the cases of R v. Gill, R v. Johnson and Moses v. Archer.

STANDARD OF PROOF

This means the degree of proof that is required. The items of evidence placed before the
tribunal must offer proof to a certain standard. The standard varies in criminal and civil matters.
Whether a party to a civil or criminal proceedings has discharged a legal burden borne by him in
relation to a particular issue is decided by the tribunal of fact. How cogent or convincing the
evidence must be depends on the rules regarding the standard of proof.

Criminal standard

In criminal proceedings, the standard required of the prosecution before a jury could
convict is proof beyond a reasonable doubt. This was laid down in the case of Woolmington v.
DPP by Viscount Sankey. See also the case of R v. Ewing.

R v. Ewing

At the trial of the appellant on 24 counts charging theft, forgery of valuable securities and
uttering forged documents, it was disputed that documents bore the appellant's handwriting. The
judge stated that he was satisfied on the balance of probabilities that other documents used by
handwriting experts to compare the handwriting on the disputed documents were written by the
appellant and he ruled that they were admissible in evidence under section 8 of the Criminal
Procedure Act 1865.

Criminal Law Notes: Unit 2; Compiled by Ayisha R. Robb and Kaysha A.C. Franklin
 HELD: Under section 8 of the Criminal Procedure Act 1865, it was the judge who had to be
satisfied that documents had been written by the appellant; that the standard of proof was the
common law standard for a criminal matter and, therefore, the judge had to be satisfied
beyond reasonable doubt that the documents used by the handwriting experts as a
comparison of the handwriting in the disputed documents were written by the appellant;
that, accordingly, the judge in applying the civil standard of proof had erred in law but, if
the judge had correctly directed himself on the standard of proof, the court had no doubt that he
would have been satisfied that it was the appellant's handwriting on the documents.

As it relates to the standard of proof, one must ask what exactly does “proof beyond a reasonable
doubt mean.

This threshold was clarified in the case of Miller v. Minister of Pensions where Justice Denning
stated:

“… the standard of proof required to be met in a criminal case before an accused person may be
found guilty in terms of the evidence must reach the same degree of cogency as is required in a
criminal case before an accused person is found guilty. That degree 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 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 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

While judges must give the jury directions on the standard of proof a particular form of words is
not necessary. This was seen in the case of Walters v. R , which considered the cases of R v.
Kritz, R v. Ramroop and Lesmond v. R .

In Walters v R it was held that it was the effect of the summing-up as a whole that mattered
and not the particular formula of words used by the judge in his direction to the jury.It is
not the particular formula that matters: it is the effect of the summing-up. If the jury are
made to understand that they have to be satisfied and must not return a verdict against a
defendant unless they feel sure, and that the onus is all the time on the prosecution and not
on the defence, then whether the judge uses one form of language or another is neither here
nor there.

In the case of R v. Hepworth and Fearnley Lord Goddard C.J. put it another way. He stated:

"I should be very sorry if it were thought that these cases should depend on the use of a particular
formula or particular word or words. The point is that the jury should be directed, first that
the onus is always on the prosecution; secondly, that before they convict they must feel sure

Criminal Law Notes: Unit 2; Compiled by Ayisha R. Robb and Kaysha A.C. Franklin
of the accused's guilt. If that is done, that will be enough. Another thing that is said in the
present case is that the recorder only used the word "satisfied." That is not enough

***END OF UNIT TWO***

Criminal Law Notes: Unit 2; Compiled by Ayisha R. Robb and Kaysha A.C. Franklin