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Chapter 4: Proof of Issues

Table Of Contents

[4.0] Onus & Standard Of Proof 

[4.0.1] Introduction 

In Woolmington v Director of Public Prosecutions (1935) 25 CrAppR 72; [1935] AC 462 Viscount Sankey LC stated at pages 95 and 481 – 482 respectively: 

'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 be 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.' (emphasis added) 

In Mancini v Director of Public Prosecutions (1941) 28 CrAppR 65; [1942] AC 1 Viscount Simon LC stated at pages 76 and 11 respectively:

'Woolmington's case is concerned with explaining and reinforcing the rule that the prosecution must prove the charge it makes beyond reasonable doubt, and, consequently, that if, on the material before the jury, there is a reasonable doubt, the prisoner should have the benefit of it. The rule is of general application in all charges under the criminal law. The only exceptions arise, as explained in Woolmington's case, in the defence of insanity and in offences where onus of proof is specially dealt with by statute.' (emphasis added) 

In Jayasena v R [1970] AC 618 the Privy Council in commenting upon Woolmington's case stated at page 623: 

'The House laid it down that, save in the case of insanity or of a statutory defence, there was no burden laid on the prisoner to prove his innocence and that it was sufficient for him to raise a doubt as to his guilt.' 

In R v Hunt (1987) 84 CrAppR 163 [[1987] AC 352; [1987] 1 AllER1; [1987] CrimLR 263] Lord Griffiths, with whom Lord Keith of Kinkel & Lord Mackay of Clashfern concurred, stated at page 174: 

'I would summarise the position thus far by saying that Woolmington v DPP (supra) did not lay down a rule that the burden of proving a statutory defence only lay upon the defendant if the statute specifically so provided; that a statute can, on its true construction, place a burden of proof on the defendant although it does not do so expressly; that if a burden of proof is placed on the defendant it is the same burden whether the case be tried summarily or on indictment, namely, a burden that has to be discharged on the balance of probabilities.' (emphasis added) 

Whilst there is no rule of law or practice that a Court must specifically direct itself as to the onus and standard of proof of either the prosecution or defence, it is helpful and desirable that it does, see Director of Public Prosecutions v Haikui [1984] SILR 155 at pages 157 – 158. 

In R v Badash (1917) 13 CrAppR 17 Darling J, delivering the judgment of the Court, stated at pages 19 – 20: 

'The truth is that it is always for the prosecution to satisfy the jury by proof that the prisoner is guilty. It is never (with certain statutory exceptions) for the prisoner to prove that he is innocent; the onus of proof remains on the prosecution. The prisoner may often in setting up a defence fail to convince the jury, and the jury may even think that his story is wholly untrue; if that is so, it is a great prejudice to him; but it will not do to tell the jury that if they do not believe the prisoner they must convict him, because that leaves out of account the question of the burden of proof.' 

As regards the term 'reasonable doubt', see R v Summers (1952) 36 CrAppR 14, per Lord Goddard at page 15; R v Head & Warren (1961) 45 CrAppR 225 & R v Ching (1976) 63 CrAppR 7. 

See also: R v Oliver (1962) 46 CrAppR 241; R v Attfield (1961) 45 CrAppR 309; R v Bradbury (1969) 53 CrAppR 217; R v Slinger (1962) 46 CrAppR 244 & R v Sparrow & Friend (1962) 46 CrAppR 288. 

[4.0.2] Prosecution 

The prosecution bears: 

[i] the 'onus' of proving each and every element of a charge to the 'standard of proof' which is 'beyond reasonable doubt'. 

In R v Wilson Iroi (Unrep. Criminal Case No. 17 of 1991) Muria J stated at page 3: 

'I remind myself that the burden is on the prosecution throughout to satisfy the Court beyond reasonable doubt of the guilt of the accused. If there is doubt, slight though it might be, the accused must be given the benefit of that doubt. The overriding guiding principle in all criminal trials must be that a person charged with a criminal offence must be presumed to be innocent until proved guilty or has pleaded guilty. That principle is enshrined in section 10(2)(a) of the Constitution […].' 

In R v Dudley Pongi (Unrep. Criminal Case No. 40 of 1999) Muria CJ stated at page 1: 

'I remind myself that the onus is on the prosecution to prove its guilt of the accused beyond reasonable doubt on the evidence presented to the Court. If there is doubt as to his guilt, slight though it may be, the accused must be given the benefit of that doubt and he must be acquitted. The accused need not prove anything, in particular, he is never required to prove his innocence.' 

Upon reviewing all the evidence, the prosecution does not have to make the Court feel certain of the defendant's guilt, see Miller v Minister of Pensions [1947] 2 AllER 372, per Denning J at pages 373 – 374. 

In SCR No. 1A of 1981; Re Motor Traffic Act [1982] PNGLR 122 Grenville Smith J stated at page 136: 

'To 'prove' a person to be guilty means to establish or demonstrate the actuality of his guilt of the offence charged. This may be done either upon the person's own plea of guilty or upon evidence from which his guilt may be inferred to the requisite degree of persuasion.' 

Mere suspicion cannot establish proof 'beyond reasonable doubt' in a criminal case, see R v Bartlett, Bradbury & Green (1920) 14 CrAppR 157 at page 158 & Eiserman v Nanatsi [1978] PNGLR 457.

See also: R v Ellison Trinasikwa (Unrep. Criminal Case No. 18 of 1998; Muria CJ); R v John Flyn (Unrep. Criminal Case No. 19 of 1997; Muria CJ; at page 1); R v William Tebounapa (Unrep. Criminal Case No. 33 of 1997; Kubui J); R v Martin Sutarake (Unrep. Criminal Case No. 59 of 1993; Muria CJ; at page 1); R v Gere [1980 - 81] SILR 145 at page 145; R v Head & Warrener (1961) 45 CrAppR 225 & The State v Misari Warun [1988 – 89] PNGLR 327. 

In Namana & Namona v R (Unrep. Criminal Appeal Case No. 1 of 1991) Ward CJ stated at page 2:

'In order to convict, the learned magistrate had to find the case proved beyond all reasonable doubt. To have reached the stage that "on balance" he believed the police evidence, does not discharge the burden on the prosecution. Neither is it a correct test of the defence case to see whether it can cause any doubts about the police evidence. That suggests the court may be looking to the accused to disprove the prosecution case rather than for the prosecution to prove it.' 

See also: Gouwadi v R [1990] SILR 118. 

In John Cornish v Kwago Like [1978] PNGLR Kearney DepCJ, sitting alone, held: 

1. In the trial in all criminal cases in inferior courts, the standard of proof required is that of proof beyond reasonable doubt; in no circumstances is that standard to be lowered because of a poor standard of prosecution, whether through inexperience or other causes. 

2. All such cases should be tried on their own merits. 

and 

[ii] the onus of negativing any defence raised to the standard of proof which is 'beyond reasonable doubt', irrespective whether the defence is raised: 

[a] 'on the balance of probabilities'; or 

[b] 'fairly'. 

See also: R v Bone (1968) 52 CrAppR 546. 

[4.0.3] Defence 

The only onus which a defendant bears is in respect to: 

[i] the defence of 'Insanity' as outlined in the Penal Code (Ch. 26) and the Criminal Procedure Code (Ch. 7) which is to the 'standard of proof' of on the 'balance of probabilities'; and 

[ii] 'negative averments' as referred to in section 202 of the Criminal Procedure Code (Ch. 7) to the 'standard of proof' of on the 'balance of probabilities', see R v Carr – Briant (1943) 29 CrAppR 76, but only after the prosecution having proven that the specified act/s occurred 'beyond reasonable doubt'. The law relating to 'Negative Averments' is examined commencing on page 83. 

If, however, a defendant wishes to raise any other defences then such defences must be 'fairly' raised, ie., a prima facie case, see R v Bonnick (1978) 66 CrAppR 266 at page 269. For a defence to be 'fairly' raised, the prosecution must be made aware of the defence to such a degree which would require it to negative it 'beyond reasonable doubt'. Such defences may be raised: 

·                     in a record of interview by the defendant; or 

·                     in the course of cross – examination of prosecution witnesses. 

See also: Ipao v R [1982] SILR 128 at page 130 & Jimmy Kwai v R (Unrep. Criminal Appeal Case No. 3 of 1991; Court of Appeal; at page 3). 

The law relating to the defence of 'Insanity' is examined commencing on page 441. 

[4.1] Presumption Of Innocence 

Section 10(2)(a) of the Constitution states: 

'Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved or has pleaded guilty.' (emphasis added)

[4.2] Right To Silence 

In R v Sang (1979) 69 CrAppR 282; [1980] AC 402 [[1979] 3 WLR 263; [1979] 2 AllER 1222; [1979] CrimLR 282] Lord Scarman stated at pages 308 & 455 respectively: 

'[The "right to silence" means] '"No man is to be compelled to incriminate himself; nemo tenetur se ipsum prodere."' [words in brackets added] 

See also: R v Brophy (1981) 73 CrAppR 287, per Lord Fraser at page 291. 

In Kim Kae Jun & the Crew of the Vessel No. 1 New Star v The Director of Public Prosecutions and the Commissioner of Police (Unrep. Civil Case No. 423 of 1999) Palmer J stated at page 4: 

'The right to remain silent is a constitutional right to which everyone in this country is entitled, citizens and non – citizens alike. Section 3 of the Constitution guarantees the protection of the right to life, liberty, security of the person and protection of the law. Although not specifically mentioned, that provision, in its broad application, must accord a right to silence to an accused, detained person or a suspected person who is under investigation. Once such person exercised his or her constitutional right to remain silent he or she cannot be compelled to give his statement to anyone unless otherwise ordered by the Court.'

In Awoda v The State [1984] PNGLR 165 the Supreme Court held: 

In criminal proceedings the court may request but cannot order counsel to disclose his/her defence. 

The law relating to the 'Right To Silence' is also examined at page 71 and commencing on page 163. 

[4.3] Proof Of Elements 

[4.3.1] General Principles 

The prosecution must prove each and every element in order to prove its case 'beyond reasonable doubt', see John Solo v R (Unrep. Criminal Appeal Case No. 89 of 2000; Kabui J; at page 8). 

The failure to elementise every charge will result in charges not being proven to that standard of proof. 

Clearly the prosecution is duty bound to present the strongest possible case and any defence raised must be negatived 'beyond reasonable doubt'. 

Statements must therefore be obtained from all possible witnesses who are able to give evidence capable of proving any of the elements of the offence/s charged. Such statements should include those from witnesses who are able to negative any defence/s raised by the defendant. For example, in an assault case if a defendant claims that he/she was acting in self - defence and there were witnesses who are able to say otherwise then statements from those witnesses must be obtained. Statements of witnesses should be taken as soon as possible after the commission of the offence/s charged because memories of people do obviously fade over time. 

Refer also to the chapters which examine: 

·                     'Criminal Responsibility' commencing on page 428;

·                     'Witnesses' commencing on page 274; and 

·                     'Admissibility Of Evidence' commencing on page 171. 

[4.3.2] Elementising Charges 

For example, if the defendant, Edmon Taro, is charged under the provisions of section 302(b) of the Penal Code (Ch. 26), 

'That Edmon Taro of Kwaibala Village, Malaita Province at Honiara in the Guadalcanal Province on 7th July 2001 was found by night having in his possession without lawful excuse a jack', 

the 'elements' are as follows: 

[i] Edmon Taro 

The prosecution must prove 'beyond reasonable doubt' that Edmon Taro committed the offence. 

[ii] Honiara in the Guadalcanal Province 

The prosecution must prove 'beyond reasonable doubt' that the offence occurred in Honiara. 

[iii] 7th July 2001 

The prosecution must prove 'beyond reasonable doubt' that the offence occurred on 7th July 2001. 

[iv] Found 

The prosecution must prove 'beyond reasonable doubt' that the defendant was found in possession of the jack. 

[v] Night 

The prosecution must prove beyond reasonable doubt that the defendant found in the night in possession of the jack. 

[vi] Possession 

The prosecution must prove beyond reasonable doubt that the defendant was in possession of the jack. 

[vii] Without Lawful Excuse 

The defendant must prove on the 'balance of probabilities' that he had a 'lawful excuse' for being in possession of the jack. 

[viii] Jack 

The prosecution must prove beyond reasonable doubt that the defendant found in the night in possession of the jack. 

The law relating to 'Wording Of Charges' is examined commencing on page 76.