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RESUMPTIONS IN CRIMINAL TRIALS PLACE ONUS OF PROOF ON AN ACCUSED

by

Hlako Jacob Choma ^*

INTRODUCTION

While reading through recent Malaysian court decisions I came across a criminal appeal case of PP v Tan Tatt Eek. I concurred with the meticulous and fascinating decision delivered by the Court of Appeal. Based on the same factual and legal circumstances of this case the decision would be the same in South Africa particularly prior 1993 and/or before the inception of the interim and final Constitution.

It is unfortunate that section 35(3)(h) of the South African Constitution through the Constitutional Court decisions invalidated legislative provisions placing the onus of proof on an accused to discharge certain allegations for example S v Zuma 1995(2) SA 642; 1995(4) BCLR 401(cc) and S v Bhulwana; S v Gwadiso 1995(12) BCLR 1579; 1996(1) SA 338(cc).

It would appear that the presumption of possession and knowledge under section 37(d) could be relied on to presumed that accused was trafficking in dangerous drugs under section 37(da)(iiia). It is clear that presumptions place the onus of proof on an accused.

In PP v Tan Tatt Eek¹, the question in this case was, whether presumption of possession and knowledge under section 37(d) could be relied on to presume that accused was trafficking under section 39B.

It was undisputed that Respondent was carrying a pink granular and powdery substance in a sealed clear plastic bag wrapped in newspaper. The question is whether he knew the nature of the substance as a dangerous drug. Since it was not a small amount of 15 grams content of dangerous drugs that the Act itself employs for the presumption of trafficking, the Court drew the inference that he knew the nature of what he was carrying and that he was carrying it in the course of trafficking.

It is a normal practice in South Africa that the burden of proof always lies with the State and/or Prosecution to discharge beyond a reasonable doubt². This refers to the criminal trials, where the State / Prosecution bears the burden of proof. The burden of proof does not shift from the State to the accused. The presumptions in law suggest that the accused bears the evidentiary burden to answer the allegations leveled against him/her. It used to be the position in the South African law prior the adoption of the Constitution³.

Section 35(1) of the Constitution provides that “everyone who is arrested for allegedly committing an offence has the right to remain silent”. The right to remain silent is a constitutional right in South Africa and it is coupled with the right against self-incrimination⁴. The presumption under section 37(d) generally calls for the accused to answer allegations against him. In the light of the South African Constitution, particularly section 35(1) thereof, the accused has a right not to testify against himself. A number of constitutional cases have considered the provision of section 35(3)(h) of the Constitution in relation to legislative provisions placing the onus of proof on an accused to disprove certain allegations against him/her. The Court in S v Bhulwana and S v Gwadiso⁵held that the legislative provisions placing the onus of proof on the accused to disprove certain allegations are unconstitutional since they violate the accused’s rights to remain silent and also his/her right against self-incrimination.

The Court of Appeal in Tan Tatt Eek⁶’s case correctly dismissed the findings of the court a quo that the respondent had knowledge of the drugs by way of inferences. The Court of Appeal further held that there was no factual matrix adduced by the prosecution to infer that the respondent had knowledge of the nature of the drugs in the plastic bag. There is nothing wrong with the Court a quo to draw inferences and decide a case based on circumstantial evidence. Circumstantial evidence requires that inference should be drawn and further that the inference drawn must be the only inference to be drawn, that is, there must be no other inference to be drawn in the same set of facts⁷.

There was no factual matrix on which the trial judge could have inferred that the accused had knowledge of the nature of the dangerous drugs. All that was proved was that he had control and custody of the bag and the packages of the impure drugs. Under section 37(d) the presumption could have been invoked for knowledge of the nature of the drugs⁸. The Court a quo misdirected itself in relying on actual custody of the drugs in the Accused and his knowledge of the nature of the dangerous drugs without resort to the presumption of section 37(d) possession of the drugs in the Accused.

It must be reiterated that there was no factual matrix for the trial judge to draw the inference of such knowledge. The learned trial judge further erred in invoking the presumption under section 37(a) on the basis of proved possession. It is common cause that if knowledge of the drugs was not proved, it must further be understood that the proof for possession cannot be sustained. The invoking of the presumption under section 37(da) was a misdirection on the part of the learned trial judge⁹.

In S v Bhulwana; S v Gwadiso¹⁰, in convicting an accused of dealing in drugs the trial Court had relied on the provision of section 21(1) (b) of the Drug Trafficking Act¹¹. The Act provided that “if in the prosecution of any person for an offence…” including a contravention of section 5(b) it is provided:

(i)    That dagga plants was in the possession of the accused and further  that the accused was aware or could reasonably be expected to have  been aware of the existence of dagga.

(ii)    That the accused was on a particular day in charge of the place/and  where it was found it shall be presumed, until the contrary is proved, that the accused dealt in such dagga plant¹².

The offence was alleged to have been committed on the 20^th January 1997. The final Constitution commenced on the 4^th February 1997. In June 1997 the Natal Provincial Division in dealing with this case on review declared that the provisions of section 21(1)(b) the Drug and Drug Trafficking Act was inconsistent with the Constitution and therefore invalid. The reviewing Court referred its order and/or judgment to the Constitutional court for confirmation and ordered that the accused be released pending Constitutional Court decision¹³.

As to the declaration of validity, there was no doubt that such finding was correct. Section 21(1)(b) of the Drug and Drug Trafficking Act¹⁴ was a statutory instruction to infer guilt from circumstances that did not necessarily support such inference. It interfered with the ordinary processes of inferential reasoning entailing a risk of conviction despite the existence of a reasonable doubt as to guilt in the mind of the trial court. For the same reasons that had been expounded in S v Julies¹⁵, the provisions of section 21(1)(b) of the Drug and Drug Trafficking Act were inconsistent with the presumption of innocence contained in section 35(3)(h) of the Constitution. The Court held that no compelling societal interest justified this erosion of this fundamental right so as to save these provisions from invalidation¹⁶. The Court a quo had correctly found that these provisions were invalid.

The presumption of innocence is an established principle of South African law, which places the burden of proof squarely on the prosecution. The entrenchment of the presumption of innocence in Chapter 3 of the Constitution must be interpreted in this context. It requires that the prosecution bears the burden of providing all elements of criminal charges¹⁷.

In S v Bhulwana¹⁸, the Constitutional Court held that the presumption in section 21(10)(a) of the Drug and Drug Trafficking Act was in conflict with the Constitution. This section provides that if it is proved that the accused was found in possession of more than 115g of dagga it shall be presumed, until the contrary is proved, that the accused deals in such a dagga. The Constitutional Court ordered that the declaration of invalidity would invalidate any application of the particular section in any criminal trial in which the verdict of the trial court had been entered after the Constitution came into force, and in which, as at the date of the judgment of the Constitutional Court, either an appeal or review was pending of the time for the noting of an appeal had not yet expired. The Constitutional Court held that the presumptions that place the onus of proof on the accused should be declared unconstitutional and invalid. 

Footnotes

*  Advocate, Senior lecturer at the University of Venda in South Africa and Head of the Department of Public and International Law. The author visited Singapore and Malaysia between the 6^th and 16^th February 2006 and spent most of his time at the National University of Singapore Law Library, conducting research in recent legal developments.

1 [2005] 4 CLJ 460: [Criminal Appeal No: 05-04-2002 (W)] 18 October 2005

2    In the Constitution the right against self-incrimination is guaranteed in section 35(3)(j) while the right “to adduce and challenge evidence” is entrenched in section 35(3)(i)

3    Act 108 of 1996 as adopted on 8 May 1996 and amended on 11 October 1996 by the Constitutional Assembly.

4    See S v Zuma 1995 (2) SA 642; 1995 (4) BCLR 401

5    1995(12) BCLR 1579; 1996(1) SA 338 (cc). See also Murray v United Kingdom decision of 8 February 1996 of the European Court of Human Rights, Miranda v Arizona 384 US 436(1966) (United States) R v Hebert (1990) 57 CCC (3d) 1 (SCC) (Canada)

6    Referred to above

7    The right to remain silent at the pre-trial stage would be illusory if at the trial a negative inference could be drawn from its exercise; See Doyle v Ohio 426 Us 610 (1976). Any limitation of the right, such as was attempted in Northern Ireland, would be prima facie unconstitutional.

8    Muhammed bin Hassan v PP (1998) 2MLJ 273, the Court referred to this decision in that the prosecution cannot and in Tan Tatt Eek the trial judge could not have relied on the presumption under section 37(d) to presume that the Accused was trafficking in the dangerous drugs under section 37(da)(iiia).

9    Abdullah Zawawi bin Yussoff v Public Prosecutor (1993) 4 CLJ 1. The Court held that the accused was clearly caught by surprise. The reaction of shock and the dropping of the bag exhibited by a person caught by surprise does not unequivocally show guilt. No firm inference can be drawn on the basis of such insufficient evidence.

10    1995 (12) BCLR 1579, 1996 (1) SA 338 (CC)

11    140 of 1992

12    See Vlandis v Klinc 412 US 441 and 87 Harv. L. Review 130

13    S v Meaker 1998(8) BCLR 1038 (CC)

14    Referred to above

15    1996 (7) BCLR 899

16    S V Mbatha 1996(3) BCLR 293 (CC)

17    S v Majola 1975(2) SA 727 the Court held that the presumption of innocence and right not to testify during proceeding under section 35(3)(h) of the Constitution reserved the onus provisions provided in section 21(1)(b) of Act 140 of 1992.

18    1995 (12) BCLR 1579; 1996(1) SA 338 (CC)