Burden of proof

Burden of proof

1. General rule

   • 3 Exceptions:
     • reverse onus --> D bears legal burden of proof --> must prove defense elements (on balance of probabilities)
       • 1. D raise defense of INSANITY
         • McNaghten
           • Believed he was being persecuted by the conservative government. Tried to assassinate Peele, killed secretary.
             • not guilty <-- plea of insanity
             • a person laboring under defect of reason + incapable of determining right/wrong – would not be found guilty by reason of insanity.
               • presumption of sanity: every man possesses a sufficient degree of reason to be responsible for his actions)
                 • UNLESS D proves insanity (on balance of probabilities)
                   • BUT if P is trying to prove insanity, need "beyond reasonable doubt"
                     • Robertson
                       • D suffered from persecution mania against freemasons/unions in America – thought crew members were putting noxious chemical powders on his clothes + crew member attacked him
                         • D killed crew member "in self-defense"
                   • Dunbar
                     • D broke into 82yo deaf woman’s house. D searched for money in her woman, V woke up
                       • D thought she recognized him, attacked her with a lemonade bottle --> V died
                         • Judge told jury they must “be satisfied” of defense (diminished responsibility
                           • D: judge misdirected the jury - burden should be lighter on D (balance of probability only)
       • 2. EXPRESS statutory exceptions
       • 3. IMPLIED statutory exceptions
         • offense contains exemptions (QEEPL) about conduct's criminality
           • true construction -->
             • does burden remain on P?
             • OR legal burden on D?
               • Gatland v Metropolitan Police Commissioner
                 • D delivered a skip, left it on the highway, lorry collided with it.
                   • BUT D had no permission to leave it on the highway
                     • P must prove D left skip in highway + as a result a user of highway was injured/endangered
                     • D must prove a “lawful authority or excuse”
                       • BUT Nagy v Weston: P had to prove absence of "lawful authority/excuse"
               • Salabiaku v France
                 • suitcase full of cannabis
                   • Immigration officer asked if it was his bag, said yes.
                     • Charged with smuggling + possession of narcotics.
                     • burden was put on D
                       • permissible as long as within REASONABLE limits
                         • reverse onus of proof <-- permissible, as long as “within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence”
                           • does the provision unjustifiably infringe the presumption of innocence?
                             • If yes, no legal burden on D
                               • Is it possible to read down the provision?
                                 • Yes --> read down (D discharge mere evidential burden)
                                   • consider policy, fairness, necessity, reasonableness, proportionality
                                   • HKSAR v Hung Chan Wa
                                     • D in possession of a container with DD
                                       • denied knowing it was a DD
                                         • DDO s.47: if in possession of DD, presume you knew the drug's nature - unless contrary is proved
                                           • knowledge is critical aspect of the offense --> imposing legal burden on D for this point would be disproportionate
                                             • read down --> D only has to prove evidential onus (10%)
                                   • AG Reference (2002 no.4)
                                     • offence: “belonging or professing to belong to a proscribed organization”
                                       • UNLESS accused proves defense:
                                         • @ time of membership, organization wasn't proscribed
                                         • AND he didn't partake in activities when organization was proscribed
                                           • provision had "extraordinary breadth" + difficult to prove non-involvement + consequences very severe
                                             • serious risk of unfair conviction --> read down
                                   • HKSAR v Lam Kwong Wai
                                     • D found in possession of an imitation firearm
                                       • possession of imitation firearm = offense
                                         • UNLESS satisfies the magistrate that he was not in possession of the imitation firearms for a purpose DANGEROUS to the public peace, or of committing an OFFENSE
                                           • Presumption of innocence
                                             • UNLESS rational CONNECTION with the pursuit of a legitimate AIM + was no more than NECESSARY for the achievement of that aim
                                               • risk of wrongful conviction --> proportionality test failed --> read down
                                 • No --> declare provision to be unconstitutional
                                   • Lee Kwong Kut
                                     • offence = possessing anything reasonably suspected of being stolen without giving a satisfactory explanation to the magistrate
                                       • placed a legal burden on D to prove the key ingredient of the offence --> not constitutional
                             • If no, there may be legal burden on D
                               • Look at construction --> is the issue to be proven part of "the law creating the offense"?
                                 • Yes - legal burden on P
                                   • Hunt
                                     • proof that the substance contained more than 0.2% of morphine was an ESSENTIAL element of the offence --> P to prove
                                   • Lam Yuk Fai
                                     • Ds had an agreement to unlawfully transfer diplomatic passports (conspiracy)
                                       • 1. transferred travel document
                                       • 2. have no reasonable excuse
                                         • 2nd limb is not QEEPL = both limbs are "law creating the offense" --> P to prove
                                   • Tong Yiu Wah v HKSAR
                                     • Charge = loitering in the Airport Bylaw Area without reasonable cause
                                       • "without reasonable cause" = part of law creating offense?
                                         • must ascertain the ingredients of the offense
                                           • look at form of provision
                                           • look at substance of language
                                             • "loitering" = "no reasonable cause" = ESSENTIAL ingredient --> P to prove
                                 • No - legal burden on D
                                   • Sheldrake v DPP
                                     • offence = in charge of a motor vehicle in a public place after consuming so much alcohol (failed breathalyzer test)
                                       • UNLESS PROVE: at the time he is alleged to have committed the offence the circumstances were such that there was NO LIKELIHOOD of his driving the vehicle whilst the proportion of alcohol in his breath...remained likely to exceed the prescribed limit
                                         • D was best suited to show there was no likelihood of him driving <-- so closely conditioned by his own knowledge/state of mind at the material time
                                           • + conviction rests on presumption of D being in charge of vehicle while unfit (not likeliness to drive)
                                             • D has a legal burden to prove he would not drive, but overall burden still with P
           • qualifications, exceptions, exemptions, proviso, limitation
             • negative averments
               • If P makes negative averment about something that is peculiarly within D's knowledge --> burden of proof is on D
                 • R v Oliver
                   • Charge: selling sugar without a license
                     • “Subject to any directions given OR except under/in accordance with terms of a license/permit/authority granted by Minister --> no wholesaler shall by way of trade, supply any sugar”
                       • Negative averment = "P: he didn’t have license/permit/authority"
                         • But only D would know whether he had the license/permit/authority which is needed for a D
                           • D must prove this possession
                             • If P had to exclude the possibility that D was in excepted class, there would be many statutory prohibitions that would become incapable of enforcement (Ewens
                 • R v Edwards
                   • D convicted of selling intoxicating liquor by retail, without holding a justices’ license
                     • D: I only must prove if the facts are peculiarly within my own knowledge --> not so here – licensing justices’ clerk also has register of licenses
                       • Court: there is an exception in the law - "peculiar knowledge" doesn't matter
                 • R v Hunt
                   • Charge: possession of substance mixed with a controlled drug (morphine)
                     • BUT morphine would not be "controlled drug" IF <0.2% of mixture
                       • P produced no evidence about % of morphine in mixture
                         • Court: if not clear where burden lies, consider:
                           • 1. seriousness of offense
                           • 2. how difficult it is for D to prove the fact
                             • if easy for D, more likely to justify reverse onus
                           • 3. the mischief at which the statute is aimed
                             • essence of the offence = possess prohibited substance
                               • P needs to prove that it was actually "prohibited" --> P failed
   • Prosecution bears legal + evidential burden of proof --> prove all the elements of an offense
     • Legal burden: burden of proof (to prove a fact)
       • If on P, standard = beyond reasonable doubt
       • if on D, standard = on balance of probabilities
     • Evidential burden: obligation to adduce SOME evidence --> raise an issue for court's consideration
     • Woolmington v DPP
       • Divorced Husband ran after Wife, had shotgun ("only wanted to threaten her")
         • argued --> shotgun went off --> Wife killed, Husband charged with murder
           • Judge: burden on Husband to prove it was an accident
             • Appeal judge: NO - presumption of innocence
               • BL 87, BORO 11(1)