9.21 The Australian Constitution does not expressly protect the principle that the burden of proof in a criminal trial should be borne by the prosecution. The text and structure of Ch III of the Constitution implies that Parliament cannot make a law which ‘requires or authorizes the courts in which the judicial power of the Commonwealth is exclusively vested to exercise judicial power in a manner which is inconsistent with the essential character of a court or with the nature of judicial power’.
9.22 It has been held that Commonwealth laws which reverse the traditional onus of proof on some elements of an offence do not contravene Ch III of the Constitution. However, a presumption that has the effect of usurping judicial power would be constitutionally invalid. Brennan CJ provided an example of such a law in Nicholas v The Queen: ‘If a court could be directed by the legislature to find that an accused, being found in possession of stolen goods, had stolen them, the legislature would have reduced the judicial function of fact finding to the merest formality’.
9.23 As French CJ explained in International Finance Trust Company Ltd v New South Wales Crime Commission, the Parliament cannot direct courts exercising federal jurisdiction as to the outcome of the exercise of that jurisdiction. Further, in International Finance, this principle was applied by French CJ, Gummow, Heydon, and Bell JJ, as an aspect of the Kable doctrine, to the exercise of non-federal jurisdiction.
9.24 It has been suggested that the principle that the prosecution bear the burden of proof is implicit in any constitutional protection of fair trial rights. An important feature of the Australian criminal justice system, according to Kirby J in Carr v Western Australia,is that ‘[v]alid legislation apart, it is usually essential to the proper conduct of a criminal trial that the prosecution prove the guilt of the accused and do so by admissible evidence’. Kirby J further observed that this feature of the criminal justice system is ‘deeply embedded in the procedures of criminal justice in Australia, inherited from England. It may even be implied in the assumption about fair trial in the federal Constitution’.
Principle of legality
9.25 The principle of legality provides some protection for the principle that the prosecution should bear the burden of proof in criminal proceedings. In Momcilovic v The Queen (Momcilovic),French CJ held that
[t]he principle of legality will afford … [the presumption of innocence] such protection, in the interpretation of statutes which may affect it, as the language of the statute will allow. A statute, which on one construction would encroach upon the presumption of innocence, is to be construed, if an alternative construction be available, so as to avoid or mitigate that encroachment. On that basis, a statute which could be construed as imposing either a legal burden or an evidential burden upon an accused person in criminal proceedings will ordinarily be construed as imposing the evidential burden.
9.26 However, the principle cannot be used to override the clear and unequivocal language of a section. It does not ‘constrain legislative power’.
9.27 Momcilovic concerned the construction of s 5 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic), which deemed a person to be in possession of a substance based upon occupancy of premises in which drugs are present, unless the person satisfies the court to the contrary. The question in Momcilovic was whether s 5 imposed a legal burden or an evidentiary burden on the defendant.
9.28 In Momcilovic, the High Court confirmed that the section placed a legal burden on the accused. French CJ remarked that ‘[o]n their face the words of the section defeat any attempt by applying common law principles of interpretation to read down the legal burden thus created’.
9.29 The International Covenant on Civil and Political Rights (ICCPR) protects the presumption of innocence:
Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.
9.30 The protection of the presumption of innocence is provided in the same terms in art 11.1 of the Universal Declaration of Human Rights.
9.31 International instruments cannot be used to ‘override clear and valid provisions of Australian national law’. However, where a statute is ambiguous, courts will generally favour a construction that accords with Australia’s international obligations.
Bills of rights
9.32 In other countries, bills of rights or human rights statutes provide some protection to certain rights and freedoms. The Fifth and 14th Amendments to the United States Constitution guarantee a right not to be deprived of life, liberty or property without due process of law and have been interpreted by the US Supreme Court as including a presumption of innocence.
9.33 The Canadian Charter of Rights and Freedoms provides that any person charged with an offence has the right to be presumed innocent until proved guilty. The New Zealand Bill of Rights Act 1990 (NZ) contains a similar provision.
9.34 In Australia, the Charter of Human Rights and Responsibilities Act 2006 (Vic) and the Human Rights Act 2004 (ACT) both provide that a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law.
9.35 The English common law has long stressed the ‘duty of the prosecution to prove the prisoner’s guilt’—indeed, this has been described as the ‘governing principle of English criminal law’. Additionally, since its enactment, the Human Rights Act 1998 (UK) requires that, so far as it is possible, legislation must be read and given effect in a way that is compatible with the European Convention for the Protection of Human Rights and Fundamental Freedoms—including the protection of the presumption of innocence in art 6(2). It has been noted that this has ‘had a major impact on the law relating to the burden of proof’.
Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1, 27 (Brennan, Deane and Dawson JJ).
Nicholas v The Queen (1998) 193 CLR 173, –.
Suri Ratnapala and Jonathan Crowe, Australian Constitutional Law: Foundations and Theory (Oxford University Press, 3rd ed, 2012) 202–204.
Nicholas v The Queen (1998) 193 CLR 173, . In the same case, Gummow J stated that a law that deemed to exist, or to have been proved to the satisfaction of the tribunal of fact, any ultimate fact, being an element of the offences with which the accused is charged … might well usurp the constitutionally mandated exercise of the judicial power for the determination of criminal guilt’: .
International Finance Trust Co Ltd v NSW Crime Commission (2009) 240 CLR 319, –.
Kable v DPP (NSW) (1996) 189 CLR 51. In Kable, the High Court held that state parliaments may not confer functions on state courts incompatible with the exercise of federal judicial power under Ch III of the Constitution.
The right to a fair trial is considered in detail in Ch 8.
Carr v Western Australia (2007) 232 CLR 138, .
Ibid . See further, Anthony Gray, ‘Constitutionally Protecting the Presumption of Innocence’ (2012) 31 University of Tasmania Law Review 132; Dietrich v The Queen (1992) 177 CLR 292, 326 (Deane J), 362 (Gaudron J); Fiona Wheeler, ‘The Doctrine of Separation of Powers and Constitutionally Entrenched Due Process in Australia’ (1997) 23 Monash University Law Review 248, 248.
The principle of legality is discussed more generally in Ch 2.
Momcilovic v The Queen (2011) 245 CLR 1,  (French CJ).
Ibid  (French CJ). See also Ibid  (Crennan and Kiefel JJ).
Momcilovic v The Queen (2011) 245 CLR 1,  (French CJ), – (Heydon J), ,  (Crennan and Kiefel JJ), –,  (Bell J).
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 14.2.
Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd Sess, 183rd Plen Mtg, UN Doc A/810 (10 December 1948).
Minister for Immigration v B (2004) 219 CLR 365, 425  (Kirby J).
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 287 (Mason CJ and Deane J). The relevance of international law is discussed more generally in Ch 2.
The protection provided by bills of rights and human rights statutes is discussed more generally in Ch 2.
United States Constitution amend V, XIV.
Re Winship  397 US 358 (1970).
Canada Act 1982 c 11 s 11(d).
New Zealand Bill of Rights Act 1990 (NZ) s 25(c).
Charter of Human Rights and Responsibilities Act 2006 (Vic) s 25(1); Human Rights Act 2004 (ACT) s 22(1).
Woolmington v DPP  AC 462, 481 (Viscount Sankey LC).
Attorney General’s Reference No 4 of 2002; Sheldrake v DPP  1 AC 264,  (Lord Bingham).
Human Rights Act 1998 (UK) c 42, s 3(1). UK jurisprudence on the presumption of innocence is discussed further below.
Richard Glover and Peter Murphy, Murphy on Evidence (OUP Oxford, 2013) 11.