9.1        In criminal trials, the prosecution bears the burden of proof. This has been called ‘the golden thread of English criminal law’[1] and, in Australia, ‘a cardinal principle of our system of justice’.[2] The High Court of Australia observed in 2014 that

[o]ur system of criminal justice reflects a balance struck between the power of the State to prosecute and the position of an individual who stands accused. The principle of the common law is that the prosecution is to prove the guilt of an accused person.[3]

9.2        This principle and the related principle that guilt must be proved beyond reasonable doubt are fundamental to the presumption of innocence.[4] Reversing the burden of proof may be justified in some circumstances, including where the reversal relates to an exception to criminal responsibility, or to an issue that is peculiarly within the knowledge of the accused.

9.3        This Inquiry has focused on the burden of proof in criminal, rather than civil, law, and considers examples of criminal laws that reverse the legal burden of proof. Reversals of the onus of proof in civil matters that may be considered criminal in nature are also briefly discussed.

9.4        A number of Commonwealth laws reverse the legal burden of proof on some elements of a criminal offence and may be seen as interfering with the principle that a person is presumed innocent until proved guilty according to law.

9.5        Reversal of the legal burden of proof on an issue essential to culpability in an offence arguably provides the greatest interference with the presumption of innocence, and its necessity requires the strongest justification.

9.6        Further review of the reversals of the legal burden of proof in these laws may be warranted. Laws that may merit further review include deeming provisions in relation to the requisite intention or belief for serious drug offences, and directors’ liability for taxation offences committed by a corporation. Any such review should consider whether placing an evidential rather than legal burden on the defendant would be sufficient to balance the presumption of innocence with the legitimate objectives pursued by these laws.

9.7        There can be a blurring of distinctions between criminal and civil penalties, such that some civil laws may effectively be criminal in nature. Reversals of the burden of proof in such laws merit careful scrutiny.