Where a burden is placed upon the accused by statute

Those cases in which a burden of proof is placed on an accused person by statute must be distinguished from (a) those cases where the burden to prove the existence of circumstances bringing the case within an exception, etc., and (b) those cases where the burden of proving any fact within the knowledge of an accused is upon him. In statutory burden cases, s.111 is not applicable.

The basic East African authority for this proposition is Ali Ahmed Saleh Amgara v.

R., [1959] E.a. 654 (C.A), in which the appellant had been convicted on two counts of importing restricted goods, contrary to para. (a)(ii) of s.147 of the East African Customs Management Act, 1952. Under s.167(b) of the Act, the onus of proving that those goods, gold, were imported lawfully, that is to say that since the gold was unlicensed it was in transit and that there was no intention to dispose of it in Kenya, was placed on the accused.

On appeal Counsel argued that there had been a misdirection in the Supreme Court, and that the onus on an accused person under s.105 I.E.A. and s.167 of the Customs Act was no more than to raise a reasonable doubt. The Court of Appeal said on

p.658:-“Where, as in the instate case, there is a specific provision in a statute placing the burden of proof regarding a particular matter on the person accused, there is no need for the prosecution to rely upon s.105.... and we think that the application of that section must be excluded, even though it would otherwise have been applicable, and that the principles of English law would apply. Nevertheless, even if it might be thought that by analogy the degree of the burden on the accused should be drawn from s.105, we do not think that there is any material difference between s.105 of the Evidence Act and the English Law on the point. The position under English Law is stated in PHIPSON ON EVIDENCE (9th edn) at .38 as follows.

“When, however, the burden of an issue is upon the accused, he is not, in general, called on to prove it beyond a reasonable doubt or in default to incur a verdict of guilty; it is sufficient if he succeed in proving a prima facie case, for then the burden is shifted to the prosecution, which has still to discharge

its original onus that never shifts, i.e. that of establishing, on the whole case, guilt beyond a reasonable doubt.

We accept that statement of the law. In R. v. Carr-Briant, [1943] K.B. 607, which is one of the cases cited in PHIPSON in support of the proposition just stated (and is also cited in the commentary on s.105 of the Indian Evidence Act in SARKAR ON EVIDENCE (4th Edn.) ag p. 698) the Court of Criminal Appeal said, at p.612:

“In our jugement, in any case where, either by statute or at common law, some matter is presumed against an accused person `unless the contrary is proved’, the jury should be directed that it is for them to decide whether the contrary is proved, that the burden of proof required is less than that required at the hands of the prosecution in proving the case beyond a reasonable doubt, and that the burden may be discharged by evidence satisfying the jury of the probability of that which the accused is called upon to establish”.

...It still, of course, remains for the court to be satisfied beyond reasonable doubt as to the guilt of the accused on the whole of the evidence and this, in substance, is all that is enacted by the second proviso to s.105...”.

Amgara’s case has been quoted in extenso and its principles applied in R. v.

Mohanlal Ramji Popat, [1961] E.A. 263 (C.A.) a case under s.137(1)(t) of the Bankruptcy Ordinance (Cap.30) of Kenya, which throws on a debtor the burden of showing that at the time he contracted a debt he had reasonable or probable grounds of expectation of being able to pay it; quoted and discussed, contrasting application of the rule with s.105 in Omparkash Ghandi v. R., [1961] E.A. 643 (K); and quoted and applied in Chebusit A’Kalia v. R., [1963] E.A. 448, 453 (K) in a case involving stock theft (see below).

The burden of proof in these statutory burden cases is a persuasive burden, as distinguished from an evidential burden. See Omparkash Ghandi’s case, p.650 and

discussion below. The burden upon the accused must be satisfied to the extent of showing a balance of probability, as in cases of insanity.

In Gamalieri Mubito v. R., [1961] E.A. 244, 247 (C.A.) under the Game (Preservation and Control) Ordinance, 1959 wherein s.23 placed upon an accused charged with being in possession of, selling, etc. trophies obtained in contravention of the Ordinance, the burden of proving that the trophy was lawfully obtained, the Court indicated that the accused need only put forward an explanation which might reasonably be true. Another phrasing of the standard of proof required is R. v. Bashir Ahmed, (1945), 21 K.L.R.(2) 29 where the Native Liquor (Amendment) Ordinance, 1941, s.4 had placed upon an accused the onus to prove that liquor was in his possession without his knowledge once possession had been proved. Here the Court held that the onus on the accused is not as heavy as that resting on the prosecution in ordinary criminal cases and would be sufficiently discharged if the evidence, taken as a whole, established that the lack of knowledge on the part of the accused was so probable that a prudent man ought, under the circumstances, to believe that fact, citing s.3 I.E.A.; see also R. v. Dewji Pragji Mehta, (1946), 13 E.A.C.A. 80, possession of diamonds, also under s.3. For other examples of instances placing a burden on the accused by law see: R. v. Ramathan Jabi; (1948), 23 K.L.R. (1) 81, charge of unlawful possession of Crown Land; Mohamed Hussein v The Price Controller, (1941), 10 E.A.C.A. 72, Defence (Price of Goods) Regulation, 1941, giving false information in answer to request of Price Controller, burden of proving that accused neither a wholesaler nor retailer on him.

Cases dealing with possession of stolen goods, s.324(2) P.C. will be found under the subject of presumption, s.119K.E.A., infra.

In Ouko v R., [1966] E.A. 286 (K), where the accused was charged under s.3(1) of the Prevention of Corruption Act (Cap.65) and the accused’s defence was that the case had been fabricated against him, it was held a misdirection for the Magistate to hoel that all that was necessary for the accused to succeed was to show on the balance of probabilities that the case was a fabrication; the Court noted that this was not one of the special cases

where the Legislature had “with deliberation and in set terms thrown the burden of proof upon the accused”.

Immigration cases raising questions of unlawful entry through misrepresentation, etc. and the onus resting on an accused are discussed in Attorney General v Govindji H.N.

Shah, [1961] E.A. 110 (C.A.) at pp. 117-118. The trial Judge had said:

“I am satisfied that once it is established or admitted that the plaintiff duly reported to the immigration officer and was permitted by him to enter ... the onus upon the plaintiff of proving that he is not a prohibited immigrant has been prima facie discharged and that thereafter the onus of establishing that the case comes within the provisions of s.8 of the Immigration Ordinance lies upon theperson who asserts that this is so, at least to the extent of

raising a prima facie case”.

The court said:

“That may well be correct in a case where no misrepresentation has been proved to have been made: Bhanabhai’s case. (Ex parte Bhagubhai Bhanabhai, (1954), 27 K.L.R. 134). It is correct that, in such a case, the provisional burden of proof depending on the state of the evidence, which LORD DENNING, in Huyton-with-Roby U.D.C v Hunter, [1955] 2 ALL E.R. 398; and Dunn v Dunn, [1946] 2All E.R. 822, distinguished from the legal burden of proof, is shifted by showing that the immigration officer at the port of entry was satisfied that the immigrant’s entry was lawful. That would not shift the legal burden of proving that the immigrant was not a prohibited immigrant at the time of first entry which, under s.18(2) of the Ordinance, remains upon the immigrant and does not shift, so that at the end of the case it would be the duty of the judge to ask himself: `Has that burden been discharged?’ Dunn v Dunn. In Bhanabhai’s case it was held that it had been discharged. But, where it is proved that there has been a prior material misrepresentation ot the Immigration Department .... not even the provisional burden of proof is shifted: the burden of proof that the immigrant is not, or was not when he entered, a prohibited

immigrant and that his entry and presence in the Colony was and is lawful, rests squarely upon the immigrant under s.18(2) of the Ordinance: Ramji’s case (Hirji Devchand Ramji v.

Attorney General for Kenya, (1956), 23 E.A.C.A. 20) and Chimanlal’s case. (Chimanlal Motibhas Hira Patel v The Attorney General, [1960] E.A. 388 (C.A.).”

Other cases, for example Mandhan Devraj v. R., (1955), 22 E.A.C.A 488 have been decided on the basis of s.105 I.E.A. or equivalents, see below. See also Abdillahi Jama Awaleh v. R., [1958] E.A. 20, 27 (C.A.).

(Note: s.15 of the Immigration Act, 1967 (No.25 of 1967)

reads:-15. Whenever in any legal proceedings under or for any of the purposes of this Act