A common law principle

9.8        The presumption of innocence has been recognised since ‘at latest, the early 19th Century’.[5] In 1935, the House of Lords said the presumption of innocence principle was so ironclad that ‘no attempt to whittle it down can be entertained’.[6] In 2005, the House of Lords said that the underlying rationale for the presumption of innocence is that to place the burden of proof on a defendant is ‘repugnant to ordinary notions of fairness’.[7]

9.9        Professor Andrew Ashworth has expanded on the rationale for the presumption of innocence:

the presumption is inherent in a proper relationship between State and citizen, because there is a considerable imbalance of resources between the State and the defendant, because the trial system is known to be fallible, and, above all, because conviction and punishment constitute official censure of a citizen for certain conduct and respect for individual dignity and autonomy requires that proper measures are taken to ensure that such censure does not fall on the innocent.[8]

9.10     In the High Court of Australia, French CJ called the presumption of innocence ‘an important incident of the liberty of the subject’.[9]

9.11     However, the principle that the accused does not bear a legal burden of proof has not been treated as unqualified. The legal burden of proving the defence of insanity rests on the party that raises it. Additionally, Parliament may reverse the onus of proof.[10] In 2014, the High Court noted that

[i]t has long been established that it is within the competence of the legislature to regulate the incidence of the burden of proof.[11]

Legal and evidential burdens

9.12     There is a distinction between a legal and an evidential burden of proof. These terms are defined in sch 1 of the Criminal Code Act 1995 (Cth) (Criminal Code):

legal burden, in relation to a matter, means the burden of proving the existence of the matter.[12]

evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.[13]

9.13     Generally, the prosecution will bear both the legal and evidential burdens of proof.[14] However, an offence may be drafted so that the accused bears either the evidential or legal burden, or both, on some issues.[15] Lord Hope in the House of Lords has explained what it means for the accused to bear either the legal or evidential burden of proof on an issue:

A ‘persuasive’ [legal] burden of proof requires the accused to prove, on a balance of probabilities, a fact which is essential to the determination of his guilt or innocence. It reverses the burden of proof by removing it from the prosecution and transferring it to the accused. An ‘evidential’ burden requires only that the accused must adduce sufficient evidence to raise an issue before it has to be determined as one of the facts in the case. The prosecution does not need to lead any evidence about it, so the accused needs to do this if he wishes to put the point in issue. But if it is put in issue, the burden of proof remains with the prosecution. The accused need only raise a reasonable doubt about his guilt.[16]

9.14     The placement of the burden of proof may also be expressed in the language of a ‘presumption’. A presumption that a matter exists unless the contrary is proved places a legal burden on the defendant.[17] A defendant must rebut such a presumption on the balance of probabilities.

9.15     The Guide to Framing Commonwealth Offences states that ‘placing a legal burden of proof on a defendant should be kept to a minimum’.[18] This principle is also reflected in the Criminal Code, which provides that, where the law imposes a burden of proof on the defendant, it is an evidential burden, unless the law expresses otherwise.[19]

9.16     This chapter is concerned with laws that reverse the legal burden of proof, rather than the evidential burden of proof. In other jurisdictions, an evidential burden of proof is not generally considered to offend the presumption of innocence.[20] For example, in R v DPP; Ex parte Kebilene, Lord Hope said:

Statutory presumptions which place an ‘evidential’ burden on the accused, requiring the accused to do no more than raise a reasonable doubt on the matter with which they deal, do not breach the presumption of innocence.[21]

9.17     Accordingly, this Inquiry has not considered whether particular reversals of the evidential burden of proof are justified. However, Professor Jeremy Gans submitted that placing an evidential burden on an accused can be problematic, ‘especially where the reversal applies to a key culpability element of a serious criminal offence’.[22]

Essential elements of offence

9.18     It is possible to distinguish between the defining elements of an offence (its physical and mental—or ‘fault’[23]—elements) and an exception, exemption, excuse, qualification or justification to it (often referred to as defences).[24] Such defences include, for example, self-defence or duress.

9.19     Generally, the prosecution bears the legal burden of proving the defining elements of an offence, as well as the absence of any defence. However, the accused will generally bear an evidential burden of proof in relation to defences. This is reflected in s 13.3(3) of the Criminal Code, which provides:

A defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence bears an evidential burden in relation to that matter. The exception, exemption, excuse, qualification or justification need not accompany the description of the offence.

9.20     Part 2.3 of the Criminal Code contains the generally available defences, and s 13.3(2) of the Criminal Code provides that the defendant bears the evidential burden of those defences.

[5]             Attorney General’s Reference No 4 of 2002; Sheldrake v DPP [2005] 1 AC 264, [9] (Lord Bingham).

[6]             Woolmington v DPP [1935] AC 462, [7].

[7]             Attorney General’s Reference No 4 of 2002; Sheldrake v DPP [2005] 1 AC 264, [9] (Lord Bingham).

[8]             Andrew Ashworth, ‘Four Threats to the Presumption of Innocence’ (2006) 10 International Journal of Evidence and Proof 241, 251.

[9]             Momcilovic v The Queen (2011) 245 CLR 1, [44].

[10]           In Woolmington v DPP, Viscount Sankey noted that that the ‘golden thread’ of the  burden of proof lying with the prosecution was subject to an exception for proof of insanity as well as ‘any statutory exception’:  Woolmington v DPP [1935] AC 462, 481. 

[11]           Kuczborski v Queensland [2014] HCA 46 [240] (Crennan, Kiefel, Gageler and Keane JJ). The majority of the High Court was relying on the decision in Commonwealth v Melbourne Harbour Trust Commissioners (1922) 31 CLR 1, 12, 17–18. See also Attorney General’s Reference No 4 of 2002; Sheldrake v DPP [2005] 1 AC 264, [9] (Lord Bingham).

[12]           Criminal Code s 13.1(3). The legal burden is sometimes called the persuasive burden. Cross on Evidence describes the legal burden as ‘the obligation of a party to meet the requirement of a rule of law that a fact in issue must be proved (or disproved) either by a preponderance of the evidence or beyond reasonable doubt, as the case may be’: Heydon, above n 1, [7010].

[13]           Criminal Code s 13.3(6). Cross on Evidence states that the evidential burden is ‘the obligation to show, if called upon to do so, that there is sufficient evidence to raise the existence of a fact in issue, due regard being had to the standard of proof demanded of the party under such obligation’: Heydon, above n 1, [7015].

[14]           Where the prosecution bears the legal burden, the standard of proof is beyond reasonable doubt, unless another standard of proof is specified: Criminal Code s 13.2.

[15]           Where the defendant bears the legal burden, the standard of proof is the balance of probabilities: Ibid s 13.5.

[16]           R v DPP; Ex parte Kebilene [2000] 2 AC 326, 378–79.

[17]           Criminal Code s 13.4(c). In Telstra Corporation Ltd v Phone Directories Company Pty Ltd, Perram J commented on the meaning of unless the contrary is ‘established’, stating:  ‘That word does not refer to an attempt at proof, or the presence of prima facie evidence; rather, it refers to a fact as having been proven “on the balance of probabilities”’:  Telstra Corporation Limited v Phone Directories Company Pty Ltd (2010) 194 FCR 142, [122].

[18]           Attorney-General’s Department (Cth), A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (2011) 51.

[19]           Criminal Code ss 13.3(1), 13.4. Section 13.4 provides that a defendant will only bear a legal burden if the law expressly specifies that the burden of proof is a legal burden; or requires the defendant to prove the matter; or creates a presumption that the matter exists unless the contrary is proved.

[20]           Ian Dennis, ‘Reverse Onuses and the Presumption of Innocence: In Search of Principle’ [2005] Criminal Law Review 901, 904.

[21]           R v DPP; Ex parte Kebilene [2000] 2 AC 326, 379. See also Dennis, above n 20, 904.

[22]           J Gans, Submission 2. The Corporations Committee of the Business Law Section of the Law Council of Australia also contended that ‘reversing the evidential burden of proof to place the burden on the accused can and does bear significant consequences’: Corporations Committee, Business Law Section, Law Council of Australia, Submission 124. See also Parliamentary Joint Committee on Human Rights, Parliament of Australia, Examination of Legislation in Accordance with the Human Rights (Parliamentary Scrutiny) Act 2011, 14th Report of the 44th Parliament (2014) 37.

[23]           Criminal Code pt 2.2 div 5.

[24]           Jeremy Gans et al, Criminal Process and Human Rights (Federation Press, 2011) 464. Jeremy Gans has noted that ‘[t]he term defences, while ubiquitous in criminal law, is imprecise’: Jeremy Gans, Modern Criminal Law of Australia (Cambridge University Press, 2012) 287. The distinction between defining elements and defences can be difficult to draw: see, eg, Glanville Williams, ‘Offences and Defences’ (1982) 2 Legal Studies 233, 256. This is considered further below when discussing justifications for reversing the burden of proof.