S 10 burden of persuasion means obligation of party to establish a requisite degree of belief concerning fact in mind of court, requiring one to 1-raise a reasonable doubt, or 2-establish fact by preponderance of probabilities or 3-by proof beyond reasonable doubt. S 11 burden of producing evidence(BOPE) means obligation to introduce sufficient evidence to avoid ruling against him on an issue.
Per Sumaila v Adamu Date-Baah JSC there are two kinds of burden of proof recognized by common law as Legal Burden of Proof and Evidential Burden of Proof and same provided by Act 323 as Burden of Persuasion per s 10 and Burden of Production Evidence per s 11. Ordinarily, the burden of persuasion always lies on the one having the burden of producing evidence, however based on the pleadings or admitted facts, evidential burden may move to D or A whilst the burden of persuasion still rests with P.
Gen rule is one who asserts must prove that assertion , per Ollenu J in Majolagbe v Larbi proof in law is establishment of fact by admissible evidence, not by going into the witness-box and repeating averments on oath which has been denied but as corroborative evidence must exist, court expect party to call such corroborative evidence in support or as per Khoury v Ritcher call in some positive way by producing other evidence of facts and circumstances, docs, description, etc. which proves averment and not repeating averments from witness-box.
Per Zabram v Segbedzi the principle in Majolagbe case is an unruly horse and must be restricted to its facts and not be universally applied as the one doesn’t discharge burden unless he leads credible evidence from which facts can be properly inferred.
Ackah v Pergah Transport basic principle that person who bears burden of proof is to produce required evidence for reasonable mind to conclude that the existence of the fact is more probable that its non-existence without which he might not succeed.S 17 BOPE is initially with party with BOP, except law provides BOPE is on party against whom a finding of the fact would be required in absence of further proof.
Per Patrick Barkers v Nana Fitz where trial court arrives at a conclusion based on advantage of seeing and hearing witnesses, appellate court should be very slow to form a contrary view even if it can logically reach a different conclusion on the evidence as this isn’t a basis for reversing trial judge’s findings of fact because trial court is presumed to have made correct findings where the evidence leads to two or more plausible conclusions, trite law that appellate court when reviewing exercise of lower court’s discretion should not interfere unless wrong principles applied, excluded relevant matters, or came to a conclusion no court properly instructing itself on law could reach.
Gligah v Republic principle of material witness in the success of one’s case isn’t the quantity of witnesses that a party calls but the quality of the said witness in proving the ingredients required, Dotse JSCcorroborative evidence like circumstantial may be series of pieces of evidence put together to make a strong case.
In Criminal Cases
S 13 in civil or criminal action the burden of proof of crime is proof beyond reasonable doubt and burden of persuasion when on A is to raise a reasonable doubt as to guilt.
Ghana position is that proof beyond reasonable doubt is assessed only after trial of entire case, thus both prosecution and accused present cases before court per Tsikata v Republic on submission of no case per Prof Ocran JSC how can we talk of proof beyond reasonable doubt after case of prosecution and its witnesses without allowing accused to punch holes into its case by calling his witnesses, it is after that PBRD can be inferred.
Per State v Sowah to say to jury that before accused’s case, they must be satisfied that prosecution has proved its case is unwarranted, PBRD can only be reached after considering case for defence. The above position is contradicted by JSC Brobbey in Amaning alias Tagor v Republic that accused entitled to remain silent and not to give any info to court and up to prosecution to prove guilt which may be decided when to the mind a requisite standard of conviction is induced which calls for accused to prove innocence, if not accused must be acquitted, a miscarriage of justice to call on accused to defend when prosecution is unable to establish all the ingredients of the offence charged.
COP v Isaac Antwi fundamental principle in criminal cases that burden of proof remains throughout on prosecution and evidential burden shifts to accused only if at end of prosecution’s case an explanation of circumstances peculiar within accused’s knowledge is called for, accused not to prove anything unless statute throws a burden on him, if he can merely raise a reasonable doubt as to his guilt he must be acquitted, appeal court bound by record of proceedings and can’t conjecture.
The State v Afenuvor judge in summing-up not only direct jury that they should be satisfied but either satisfied beyond reasonable doubt or completely and entirely satisfied, burden of proof in two sense, burden of establishing case which is always on prosecution and burden of explanation which may shift. Per Richard Banousin v The Republic a corollary to proof beyond reasonable doubt is presumption that accused innocent till proven guilty in court, means prosecution must overcome all reasonable inferences favouring innocence of accused.Darko v Republic judge not entitle to convict accused because it disbelieved the story of the accused as that will be like shifting the burden of proof to accused and relieving prosecution of its duty
Onus reversal statute shifts burden of persuasion on particular issue to accused. Per Art 19(16) (a) nothing under law is inconsistent with accused forced to produce evidence to extent that law puts on person burden to prove a fact. Three types,
1-Insanity per Reg. v M’Naughton the test of insanity in cases of murder onus exceptionally placed upon accused to establish such defence proof of which isn’t as high as that on prosecution to prove guilt and must be pleaded, Bratty v AG of Northern Ireland old notion that only D can raise defence of insanity is bad and prosecution is entitled to raise same.
2-Express by statuteper S 148(1) dishonestly receiving-give account to court’s satisfaction, S 165 forgery-possesses instrument for it without lawful excuse proof lying on person, S 206 Offensive weapon-has in public place without lawful authority proof lying on him or
3-Implied by statute per S 244 act by public officer secretly accepting for personal gain for act, presumed guilty unless contrary proved. Per R v turner if negative averment is made by a party which is peculiar within the knowledge of the other party, the party within whose knowledge it lies and who asserts the affirmative must prove.
R v DPP Ex Parte Kebeline a mere evidential burden doesn’t constrain human right provisions, whether an onus reversal provision contravenes fair trial provision will depend on the following questions 1-what must the prosecution prove to transfer burden? 2-is accused required to prove something difficult or easily within access? 3-what threat to society was provision designed to combat? Dogo Dagarti v State Automatism is proved by accused, intoxication per Ketsiawah v State. Where fact is peculiar within one’s knowledge, as to exhibit of sale of 30 bags of rice in possession on behalf without authority so stealing, the negative averment of its falsity needs not be proved by prosecution but the positive by defence of its authenticity must be proved by accused as he relies thereon.
Art 19(10) no person tried for criminal offence shall be compelled to give evidence. Per Woolmington v DPP Lord Sankey no judge could at any stage of proceeding rule that prosecution has proved its case and onus shifts to prisoner to prove he isn’t guilty else prosecution succeeds since that makes the judge the decider and not the jury, no burden on prisoner to prove innocence, enough to raise doubt as to guilt, if after prosecution’s case jury left in reasonable doubt it is their duty to acquit accused.
R v Brown where pleads guilty but proof of offence is defective accused estopped from challenging conviction is differed from being that the objection in present case isn’t on proof but indictment itself which could be objected any time even before the case is gone into.R v Onufrejczyk proof in purely circumstantial cases beyond reasonable doubt, to exclude the possibility of error. Per Republic v Iddrisuaccused not supposed to prove anything unless burden shifts only when prosecution has discharged the burden of proving guilt, burden of proof or persuasive burden always with prosecution but evidential burden may shift.Miller v AG beyond reasonable doubt doesn’t mean beyond a shadow of doubt, but rather establishment of a prima facie case which defined as a ground for proceeding.
In Civil Cases
S 12 except law provides, burden of persuasion (BOP) is proof by preponderance of probabilities which is the degree of certainty of belief in mind of court as to existence of fact being more probable by its non-existence.S 14 except law provides, unless BOP is shifted party has BOP on the claim he asserts, that one has committed a crime, that one didn’t exercise requisite degree of care, that a person including that party is insane as per S 15.
Legal burden always on P, D might carry burden on issues as claims contribution negligence and other affirmative defences. Per Bank of WA v Ackon, onus of proof in civil cases depends on pleadings, trial judge errs in rejecting secondary evidence not objected to by plaintiff either in trial or appeal.The person bearing the persuasive burden loses where the balancing is equal. Per Serwah v Kesse in declaration of title to land actions, onus of proof always lies on P and never shifts. Sasu Bamfo v Sintim proof of any forgery or criminal act in civil trial was PBRD.