Exceptions
to the General Rule on Burden of Proof in Criminal Cases
Although, the burden of
proof of the guilt of the accused, as a general rule, lies on the prosecution,
there are few exceptional cases where the accused bears the burden of
establishing certain specific defences. These defences are statutorily provided
in the Evidence Act or other legislations.
This burden of proof on
the accused person to establish certain specific defences is evidential burden
because the legal burden of proof in criminal cases constitutionally and
statutorily, lies on the prosecution. The imposition of evidential burden on
the accused in these limited exceptional cases is not inconsistent with the
constitutional presumption of innocence. Indeed, section 36(5) of the 1999 Constitution which provides for the
presumption of innocence further states that “nothing in the provision of the
subsection shall invalidate any law by reason on that the law imposes upon any
accused person the burden of proving particular fact.”
The following are the
exceptional cases in which the burden of proving particular facts is thrown
upon the accused.
(a)
Burden
of Proving Defence of Intoxication or Insanity
By section 141(3)(c) of the old Evidence Act, now section 139(3)(c) of the Evidence Act, 2011, the burden of proving
intoxication and insanity is imposed on the accused person. The reason for this
provision is not far fetched. There is a presumption of sanity in favour of
every person. Thus, if an accused person says he was insane at the time of
commission of the offence for which he is standing trial, or that he was so
intoxicated to such an extent that he was not the master of his senses at the
time he committed the offence, the onus of proving these defences is on him.
Nevertheless, the onus can be discharged by the accused by evidence supplied by
him or by the prosecution.
It is instructive and
germane to note that in proving insanity, it is a question of law and the
responsibility of the judge to decide whether a person is sane or insane in the
legal sense. The case of Attorney
General of Western Nigeria v Uptire (1964) NMLR 25 is instructive and relevant.
(b) Burden of Proving Facts within the
Knowledge of the Accused
The burden of proving
facts especially within the knowledge of the accused is on the accused person.
This is consistent with the provisions of section
142 of the old Evidence Act, now
section 140 of the Evidence Act, 2011
which stipulates that when any fact is especially within the knowledge of any
person the burden of providing that fact is upon him. Accordingly, in criminal
cases, an accused person bears the onus of proving any issue material to the
case; but which is ‘especially within his knowledge’.
In Christopher Otti V IGP (1959)
NRNLR 1, on a charge of carrying on business as a money-lender without
being in possession of a valid lender’s permit contrary to section 56 of the Money Lenders Act; it was held that the burden of
proving that the accused had a licence was on him, being a fact peculiarly
within his knowledge. However, an accused can of course elicit from the
prosecution’s witnesses materials in proof of matters peculiarly within his
knowledge, but, if he is unable to do this, then the burden of proving such
matters must rest with him.
Finally, where the
facts are peculiarly within the knowledge of the accused and the prosecution or
where the charge gives rise to facts which are peculiarly within the knowledge
of the accused person and the prosecution, it is the prosecution that bears the
burden of proving the facts. In other words, the burden of proof in such cases
is on the prosecution. See the case of Kolade Joseph v IGP (1957) NRNLR 170 where the court held,
on a charge of unlawful procession without a police permit, that if the
possession was without the police permit, it is something that the police
should know because it is the police that issued the permit and they are
supposed to know if they had issued one.
(c)
Burden
of Proving the Defence of Alibi
“Alibi” simply means “I
was not there.” The legal burden of proving the defence of “Alibi” is not on
the accused. However, the evidential burden of proving the defence is on the
accused.
(d) Burden of Proving Special Pleas at
the Bar
By special pleas at the
Bar, we mean the plea of autrefois acquit
or autrefois convict. Where in a
criminal trial, the defence raises either a plea of autrefois acquit or autrefois
convict, the burden of establishing the plea is on the accused. In such a
case, the defence starts first.
(e)
Burden
of Proving Exemption, Exception or Qualification
As a general rule, the
burden of proving the existence of circumstances, bringing the accused’s case
within any exception or exemption from or qualification to the operation of the
law creating the offence with which the accused is charged lies with the
accused. This is in tandem with the provisions of section 141(1) of the old Evidence Act, now section 141 of the Evidence Act, 2011. The section is to the effect
that if any statute creates an exception, exemption or qualification to any
offence it provides for or creates, the burden is on the accused to prove that
his case falls withing such exemption, exception or qualification.
For instance, if any
criminal statute prohibits possession of alcohol ‘without lawful excuse’, the
burden of proving lawful excuse will be on the accused who is found in
possession of alcohol. In IGP v Anozie
(1954) 21 NLR 29, the accused was charged under section 51(2) of the Criminal Code with possession of seditious
publication ‘without lawful excuse’. The trial Magistrate in acquitting the
accused held that the case of the prosecution failed because it failed to prove
that the accused person had no lawful authority. On appeal, it was held that
the onus of proving lawful excuse was on the accused and not on the
prosecution.
In Johnson v COP (1960) WNLR 118, the appellant was
charged and convicted of driving without licence. She held a learner’s permit
and she had passed her driving test, but had not obtained her driving licence.
She was found driving a car without a driver sitting beside her. Her case
therefore came within a proviso to section
7(1) of the Road Traffic Act under which she was charged. The burden of
proving that she comes within the legal exception was on her. She however,
failed to prove this and was convicted. It was held on appeal that the onus of
proof that the appellant’s case came within the proviso was on her.
Thus, the case explains the principle that if a
person comes within the exception in any law creating the offence with which
such a person is charged, he should prove it, since the burden is on him to do
same.