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Report No. 69

Chapter 46

Burden of Proof

Exceptions to Criminal Liability-Section 105

I. Introductory

46.1. Section 105-and exceptions to criminal liability.-

Under section 105, the burden of proof of defences recognised by the criminal law is on he accused. That, of course, is not the text of the section, but fairly represents its gist. In India, exceptions to criminal liability are principally contained in Chapter 4 of the Indian Penal Code, and there are special exceptions contained in particular sections of the Coda-e.g., section 499, T.P.C.-or in special laws.

46.2. Ordinarily, section 105 is taken to mean that the burden of .persuading the court about the existence of facts giving rise to the defence is on the accused, so that-as the section itself says,-"the court shall presume the absence of such circumstances". The section is an important qualification of the general rule that, in criminal trials, the onus of proving everything essential to the establishment of the charge against the accused lies upon the prosecution.

46.3. It should be noted that the previous law on the subject was different. It required the prosecution to prove the absence of circumstances constituting special exceptions..-2 Section 105 effected an alteration in the previous law.

1. Code of Criminal Procedure (25 of 1861), sections 235, 236 and 237.

2. The Evidence Act expressly repealed section 237 of the 1861 Code; the whole of the Code was subsequently repealed by Act 10 of 1872.

46.4. In England, a distinction is made, in this context. as to legal and evidentiary burden1 In regard to indictable offences, it is for the prosecution to negative any exception favourable to the defendant which is engrafted in the definition of an offence, except-(a) regards the defence of insanity, and (b) as regards statutory provisions constituting a reversal of onus.

1. See also discussion as to sections 101-104.

46.5. In Woolmington' case1 throughout his speech Lord Sankey was at pains to stress the fact that it is the duty of the prosecution to prove the guilt of the accused in every case, although special rules govern the question of onus under some statutes, and, so far as the defence of insanity is concerned, at common law. Hence with these exceptions (statutory exceptions and common law rule as to insanity), the legal burden of establishing every issue rests at the outset upon the Crown in all criminal cases, although the accused starts with an evidential burden so far as such matters as non-insane automatism,2 provocation,3 self-defence4 and duress5 are concerned.

1. Woolmington v. D.P.P., 1935 AC 463 (HL).

2. Bratty v. A.G. for Northern Ireland, 1963 AC 386: (1961) 3 All ER 523 (non-insane automatism).

3. Chan Kau v. R., 1955 AC 206: (1955) 1 All ER 266 (self-defence and provocation).

4. R. v. Lobe!!, (1957) 1 QB 547: (1957) 1 All ER 734 (self-defence).

5. R v. Gill, (1963) 2 All ER 688 (duress).

46.6. As to the defence of insanity, though the judicial dicta in England are to the effect that the burden of proof is on the accused, yet it has been argued by several writers,1 that the burden (in the sense of the burden of persuasion), is on the prosecution, and that the only burden on the accused is the burden of introducing of evidence in the first instance. This aspect will be examined in detail later.

1. Williams Criminal Law, (1961), pp. 519-520, para. 165.

II. Two Kinds of Burden

46.7. Two kinds of burdens-persuasive and evidentiary.-

Writers on the law of evidence generally distinguish between the persuasive burden of proof and the evidentiary burden of proof. The "persuasive" burden of proof-which is the one usually meant in the discussion-is the task of persuading the court that the facts are as the party carrying the burden asserts.1 We have already mentioned this while discussing the earlier sections.2 Usually, in a criminal case, the prosecution has this burden, and it must persuade the court beyond reasonable doubt of the truth of the accusation.

The "evidentiary burden", on the other hand, means that whichever party asserts a proposition, carries the burden of demonstrating that there is evidence in support of that proposition. Generally, the persuasive burden; but the effect of the evidentiary burden being on the accused in respect of particular facts, is that he cannot raise frivolous defences. This burden does not indicate any particular quantum of proof, but the accused has to produce or point to the evidence which bears the construction that he wishes to put upon it.

1. Howard Australian Criminal Law, (1965), p. 18.

2. Discussion as to sections 101-104.

46.8. Three different possible categories.-

With reference to the question of burden of proof that may be made to rest on the accused, three different possible categories could be contemplated.

(1) A statute may conceivably throw the burden of proof of all or some of the ingredients of an offence on the accused. Such a case is outside section 105. Such a case can, of course, constitute an exception to the general rule in sections 101-104. The case put in the illustration to section 106,1 (travelling without a ticket) is one example. In that illustration, the burden of proving that the accused had a ticket is on him, that being a fact "especially" within his knowledge.

(2) A statute may throw on the accused a special burden, not as to the ingredients of the offence, but only as regards the protection given on the assumption of the proof of the said ingredients.2

(3) The statutory provision may relate to an exception and some of the many circumstances required to attract the exception, if proved, may affect the proof of all or some of the ingredients of the offence.3

1. Section 106, Evidence Act.

2. E.g. sections 77, 78, 79, 81 and 88 of the Indian Penal Code.

3. E.g. section 80 of the Indian Penal Code.

III. Insanity

46.9. Some discussion of the position relating to the defence of insanity is required. The defence of insanity (unsoundness of mind), as recognised in the Indian Penal Code,1 consists of two branches:-

(a) that the accused did not know the nature and quality of the act, or

(b) that he did not know that it was wrong or contrary to law. In England also, this defence has two similar branches.

1. Section 84, Indian Penal Code.

46.10. Genesis of test in Mc Naghten.-

The Mc Naghten Rules were a synthesis of (a) Rex v. Arnold, (1724) 16 How St Tr 695; (b) Perrer's case, (1760) 19 How St Tr 895; (c) Hadfield's case, (1800) 27 How St Tr 1282; and (d) Bellingham's case, (1812) in 1 Collinson, A Treatise on the Law Concerning Idiots, Lunatics and Other Persons Non Compotes Mentis 636 (1812). In Perrer's case, (1760) 19 How St Tr 886 (948), the Solicitor General, purporting to summarize Hale, stressed: "a faculty to distinguish the nature of actions; to discern the difference between moral good and evil "In Hadfield's case, (1800) 27 How St Tr 1282, Erskine minimized the 'right and wrong' test and emphasised knowledge of the nature of the act. In Ballingham's case, (1812) it was observed: 'If a man were deprived of all power or reasoning, so as not to be able to distinguish whether it was right or wrong to commit the most wicked transaction, he could not certainly do an act against the law", Treatise on law concerning lunatics 1 Collinson, op. cit. etc. 671. "1

1. Hall Criminal Law and Procedure-Cases & Materials, (1965), p. 470.

46.11. The well known answer in Mc Naghten contains the phrase "such a defect of reason, arising from disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know that what he was doing was wrong". There are certain controversies in England as to the scope of this defence, particularly the meaning of the word "wrong": and it may be that there are differences between the Indian and the English law in matters of detail. But those controversies and differences are not material for the present purpose. Cockbum's argument in defence of Mc Nachten contains an excellent summary of the earlier leading cases and of the medico-legal treatises.1

1. Mc Naghten, 4 St Tr (ns) 872 (892).

46.12. Academic opinion in England.-

So far as the first branch of the defence is concerned, it has been stated by academic writers in England, that since it is intimately connected with mens rea, the burden ought to be on the prosecution. The facts which show insanity, would also negative mens rea. Conversely, facts which show knowledge of the nature of the act, also establish mens rea.

46.13. Even as regards the second branch of the defence of insanity, it has been argued in England that it only means that the accused has to discharge the evidentiary burden of introducing or pointing to some evidence in support of his argument, but no more; because it would be very strange if the onus of proof is on the Crown where the defence is based on the first branch of the defence of insanity, and on the accused where it is based on the second branch of that defence.

46.14. Position in U.S.A.-

It may be noted that in most States in the United States, the tendency is to place the burden of proof (in the true sense) in respect of the defence of insanity upon the prosecution,1 and this is also the rule adopted in the Model Penal Code.2

This, too, is the rule on the Continent.3

1. (a) Glueck Mental Disorder as a Defence in Criminal Law, 41;

(b) Weihofen Insanity as a Defence in Criminal Law, (1954), Chapter 4;

(c) Grunhut Penal Reform, (1948), p. 436;

(d) Reid in 69 Yale LJ 382.

2. Section 402(1), Model Penal Code (American Law Institute).

3. Grunhut Penal Reform, (1948), p. 436.

46.15. It has been stated1 that there are currently two views in the United States as to the party which should bear the burden of proof of the defendant's sanity or insanity. Approximately one half of the states and the federal courts require the prosecution to prove the defendant's sanity beyond a reasonable doubt.

1. See Peter Clark The Insanity Defence in Pennsylvania, (Fall 1971) 45 Temple Law Quarterly 63, 69.

46.16. Trends in the U.S.A.-

The remainder of the States in the U.S.A., including Pennsylvania, require the defendant to prove his insanity. He has to prove his insanity by a preponderance of evidence.1 The recent trend, however, seems to be towards the former view.2

1. Weihofen Mental Disorder as a Criminal Defence, (1954), pp. 212-213.

2. Weihofen Mental Disorder as a Criminal Defence, (1954) 238: Mc Cormick Evidence, section 321.

46.16A. Those jurisdictions in the U.S.A. which require the prosecution to prove the defendant's sanity beyond a reasonable doubt have adopted the theory that mental capacity is a required element of the crime. The commonly accented rationale underlying this theory is that the defendant cannot have the required criminal intent while insane.1

An alternative theory that has been suggested is that the sanity of the defendant is an element independent of intent, in view of the fact that the essence of a finding of insanity is a verdict of not guilty.2

1. Davis v. United States, 1959 US 469 (1895); People ex rel. Phan v. Dist. Court, (1968) 165 Code 253:439 P 2d 741; Fritz v. State, 178 Ind 463: NE 72 (1912); Bradford v. State, 234 Md 505: 200 A 2d 150 (1964); Ford v. State, 73 Miss 734: 19 So 665 (1896); Adai v. State, 6 Okhla Crim 284: 118 P 416 (1911).

2. Justice Poneroy took this view in Vogal, 440 P. 19-21: 268 A 2d 103-105 discussed in Peter Clark The Insanity Defence in Pennsylvania, (1971) 45 Temple Law Quarterly 63, 69.

46.17. Comment in U.S.A.-

The following comment made by an academic writer1 is of interest as regards the position in the U.S.A.:-

"Although it is arguable that whether or not the defendant argue (that) his acts were wrong, does not go to the element of intent, it does not seem possible, however, under the first aspect of the Mc Naghten Rule, for a defendant not to know what he was doing (and) yet still have the required intent to commit a criminal offence.2 Intent is a required element of all malum prohibition crimes, and the State is required by the due process clause to prove all elements of a crime beyond a reasonable doubt.3

The fact of the defendant's sanity or insanity is a question for the jury as the trier of fact. To be allowed their due freedom to find the facts, the jury must be free to apply whichever aspect of the Mc Naghten Rule they find most applicable to the evidence before them. Thus, due process would seem to require that the state prove beyond a reasonable doubt that the defendant knew the nature and consequences of his act. There are two possible solutions which could reconcile Pensylvania use of the Mc Naghten Rule with due process requirements.

The first is to instruct the jury alternatively that the prosecution must prove beyond a reasonable doubt that the defendant knew the nature and consequences of his acts, and that the defendant must prove by a preponderance of the evidence that he did not know those same acts were wrong. This would require the jury to apply two different standards of proof to the same issue and the same evidence. This would appear to be a hopeless task for the jury to perform accurately. The remaining alternative is to require the prosecution to prove the sanity of the defendant beyond a reasonable doubt under both aspects of Mc Naghten Rule. This seems clearly to be the preferable solution."

1. Peter Clark Insanity Defence in Pennsylvania, (1971 Fall) Temple Law Quarterly 63, 70.

2. F.& State v, Ouigley, 26 RI 263 (58): 1904 A 905, Contra, e.g. Davis v. United States, 160 US 469 (1895).

3. The United States Supreme Court recently held that the Constitution requires the State to prove all elements of a crime beyond a reasonable doubt, Winship (in re:), (1970) 397 US 358.

46.18. Position in Australia.-

In Austraila, the onus of proof of insanity is on the accused. But the onus of the accused (in respect of insanity) is the civil onus, and not the criminal onus: i.e. the accused merely has to establish a balance of probability; and this view of the High Court of Australia was approved on appeal by the Privy Council.1

Thus, in Australia, the quantum of proof required to rebut the presumption of sanity is milder than that required of the prosecution for proving the guilt of the accused.

1. (a) Sodeman v. R., (1936) 55 CLR 192 (228) Affd: (1936) 2 All ER 1138 (PC); (b) Compare Miszi, (1960) 34 Aus Ll 307 (HC).



Indian Evidence Act, 1872 Back




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