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Ong, Kuan Chung --- "Statutory Reversals of Proof: Justifying Reversals and the Impact of Human Rights" [2013] UTasLawRw 14; (2013) 32(2) University of Tasmania Law Review 247


Statutory Reversals of Proof: Justifying Reversals and the Impact of Human Rights

KUAN CHUNG ONG [∗]

Abstract

This article examines statutory reversals of the onus of proof in criminal offences, and critically analyses the justifications for such provisions in light of the importance of the presumption of innocence. The focus of this article centres on the principle of proportionality, and seeks to develop and clarify the operation of the principle in determining when a reverse onus is justifiable. Also relevant is the emergence of human rights in Australia and its impact on the interpretation of statutory reversals of proof. This article argues that international human rights principles are especially pertinent to the interpretation of reverse burdens, and naturally require stricter standards to be fulfilled before a reverse burden can be upheld. If Australia is to establish a human rights based approach with respect to criminal justice, addressing the current arbitrariness of statutory reversals of the onus of proof would be a crucial step forward in that direction.

I INTRODUCTION

A defendant’s right to be presumed innocent until proven guilty is a central tenet of our criminal justice system. This necessarily means that the prosecution bears the onus of proving a defendant’s guilt. Statutory reversals of the onus of proof arguably undermine that principle. The purpose of this article is to examine reversals in the onus of proof, and the extent to which they are consistent with the presumption of innocence. In this regard, it analyses the justifications for these statutory exceptions and how Australian courts should approach them. This article also considers the impact of international and Australian human rights instruments on reversals of the onus of proof.

The first part of this article discusses the importance of the presumption of innocence. This sets the scene for the following sections and provides the theoretical and human rights basis for imposing the burden of proof on the prosecution in criminal cases. The second part of the article discusses current justifications for reversing the onus of proof and evaluates whether they satisfy the principle of proportionality. The paper then proposes the appropriate approach courts should take in deciding if a reverse burden is compatible with the presumption of innocence. The final part of the article considers reversals of the onus of proof against the backdrop of Australian and international human rights instruments. It considers the way that the English and Strasbourg courts have dealt with reversals of the onus of proof and whether Australia might or should adopt a similar approach. This paper argues that reversals of the onus of proof should have a very limited role in our criminal justice system. This is because derogation from the presumption of innocence is contrary to fundamental human rights and can only be supported by the most compelling of reasons.

II THE IMPORTANCE OF PROTECTING THE PRESUMPTION OF INNOCENCE

The presumption of innocence and reversals of the onus of proof are fundamentally inconsistent, as the former requires the prosecution to prove guilt beyond reasonable doubt, while the latter requires the defendant to prove his or her innocence on the balance of probabilities.[1] Nevertheless, certain reversals in the onus of proof have been upheld as compatible with the presumption of innocence. In determining whether a reversal of the onus of proof is justifiable, it is crucial to consider first the presumption of innocence and its importance in the criminal justice system. The more important the presumption, the less leeway should be given for reverse onus provisions to function. This section begins by explaining the presumption of innocence and its effect. It then analyses four key grounds on which the presumption of innocence has been defended.

A Defining the Presumption of Innocence

The presumption of innocence is the principle that an individual is always considered innocent until proven guilty. This places the onus of proof on the prosecution to prove the defendant’s guilt beyond reasonable doubt. The importance of the presumption of innocence was highlighted in the seminal House of Lords decision, Woolmington v DPP, where Lord Sankey referred to the presumption as the ‘golden thread’ running through criminal law and that ‘no attempt to whittle it down can be entertained’.[2]

The presumption of innocence does not have the same effect as other presumptions in criminal law. While other presumptions generally deal with the alleviation of proof, the presumption of innocence does not. There is no burden per se that is lifted from the defendant. Thus the presumption of innocence does not have the effect of shifting the burden of proof to the prosecution. Rather, the burden begins with the prosecution. Accordingly, the presumption of innocence is akin to the maintenance of the status quo for the defendant. It provides the rationales as to why criminal trials are not a ‘cooperative endeavour’ and why it is the State who ultimately bears the legal burden of proof in establishing the defendant’s guilt beyond reasonable doubt.[3]

B Defending the Presumption of Innocence

The presumption of innocence has early support from English jurist, William Blackstone, who stated that it is ‘better that ten guilty persons escape than that one innocent suffer’.[4] The ‘10:1’ ratio provides a simplification of the idea that ensuring innocent people are not wrongly convicted outweighs the need to prosecute criminals successfully.[5] This article addresses four key underpinnings of the presumption, namely the relationship between the State and the defendant, the consequences of wrongful convictions, the risk of error at trial and the relationship between the presumption of innocence and other rights.

1 Relationship Between State and Defendant

The relationship between the State and defendant should reflect the values fundamental to a liberal, democratic society. The State possesses far-reaching powers to investigate and prosecute crime and to try and sentence defendants. In a democratic society, it is expected that those powers will be exercised in a manner that does not interfere unnecessarily with the rights of citizens. The presumption of innocence is a ‘moral and political principle’ which directs how a democratic system should exercise its coercive and punitive powers.[6] The lack of a working presumption of innocence is associated with an era of ‘show trials’ and ‘kangaroo courts’, something vastly inconsistent with our democratic system.[7]

In the context of a criminal trial, this necessarily translates into the prosecution bearing the legal burden of proof, as no person should be required to disprove an offence alleged against him or her.[8] Although this paper is mainly concerned with the legal burden of proof, the presumption of innocence also has a broader limiting effect on State powers of detention, investigation and prosecution.[9]

Another relevant characteristic of the State-defendant relationship is the gross power imbalance between the parties due to the large disparity in their resources. This imbalance has been described as an unfair ‘adversarial deficit’ that may lead to wrongful convictions.[10] In order to redress this power imbalance, it is crucial to preserve the presumption of innocence by placing the burden on the prosecution to prove defendants’ guilt.

2 Consequences of Conviction

Conviction for a criminal offence generally involves the imposition of some form of punishment upon the defendant. Such sanctions inevitably encroach on fundamental rights, for example, the right to personal property (fines), the right to liberty (imprisonment), and the right to respect for private life (community sentence, imprisonment).[11] In addition, a convicted individual is exposed to potentially severe castigation by the public.[12] If the State is to curtail an individual’s fundamental rights, it follows that any conviction must result from a fair trial. This is consistent with various human rights instruments, such as Article 14.1 of the International Covenant on Civil and Political Rights (‘the ICCPR’), to which Australia has been a signatory since August 1980. The presumption of innocence and the location of the burden of proof on the prosecution are central components of a fair trial and therefore its protection is paramount if we are to uphold the fundamental rights of individuals.

3 Risk of Error at Trial

Dworkin describes being wrongfully convicted as a ‘deep injustice and a substantial moral harm’.[13] Yet it is impossible to guarantee unequivocal accuracy in fact-finding.[14] The question then is whether the prosecution or the defendant should bear the risk of error in fact-finding. If we accept that it is a fundamental right of an individual not to be wrongly convicted, it naturally follows that the protection of the innocent should be favoured. Roberts has described this as ‘principle asymmetry’, whereby the potential seriousness of injustice caused by a wrongful conviction should necessarily require the criminal justice system to maximise the chances of acquittal of the innocent instead of convicting the guilty.[15] This means that the presumption of innocence, which places the legal burden of proof on the prosecution, is crucial in the allocation of risk in criminal trials.

4 Presumption of Innocence and Other Defendant Rights

The presumption of innocence, although a right per se, technically belongs under the general umbrella of the right to a fair trial. The right to a fair trial is best described as a bundle of different rights, which include the right to silence, the right to equality before the law and the right to be tried without undue delay.[16] The importance of the presumption is highlighted by the support it provides to other rights in this bundle.

For example, the presumption of innocence provides the basis for a defendant to remain silent and enjoy the privilege against self-incrimination. As with the presumption of innocence, the right to silence is a procedural protection designed to preserve citizens from excesses in exercises of State power.[17] It also provides the fundamental base for the ‘common law rules governing the admissibility ... of confessional evidence’.[18] If we were to remove the presumption of innocence from the equation, it would result in what Henchliffe describes as ‘compulsory interrogation’.[19] Although the right to silence is undoubtedly a fundamental right, the presumption of innocence arguably ranks as a more important right within the bundle of fair trial rights. While the two rights complement each other, the presumption should be seen as supporting the right to silence and not the other way around.[20] If the right to silence were removed, the presumption of innocence would not be undermined to the extent that the right to silence would be if the presumption did not exist. While the right to silence draws its rationale from the presumption of innocence, the presumption of innocence is based on the more fundamental right of an individual not to be wrongly convicted.

The presumption of innocence is also intrinsically linked with other central human rights, such as the right to liberty. For example, the presumption in favour of bail is a manifestation not only of the right to liberty but also of the presumption of innocence.[21] As Cussen J stated in Sefton, the presumption in favour of bail arises because an accused is presumed innocent until proven guilty, and therefore the accused ‘should have his [or her] liberty...unless the public interest requires the contrary’.[22] Its interaction with other rights in this way supports the argument that the presumption of innocence goes beyond being just a component of the right to a fair trial, and is instead an independent human right.

C The Importance of the Presumption of Innocence

The analysis of the presumption of innocence here suggests that it is not only a pillar of the right to a fair trial but also a fundamental right in itself. It supports other rights such as the right to silence and is a concomitant of the right to liberty. The presumption of innocence also plays a crucial role in balancing the superior power and means of the State against those of ordinary citizens. It acts as a counterweight to the risk of error by fact finders during trials. Most importantly, the presumption of innocence safeguards the right of an individual not to be wrongfully convicted. Taking into account all these justifications, this paper submits that the presumption of innocence is of immense importance in a liberal, democratic society like Australia. In the following section, this paper will consider why courts have upheld reversals of the onus of proof despite the fact that they breach the presumption of innocence. It will examine whether such decisions are justified in view of the importance of the presumption of innocence.

III REVERSALS OF PROOF AND THE PROPORTIONALITY PRINCIPLE

Whilst the presumption of innocence is a fundamental cornerstone of our criminal justice system, it is undermined by reversals in the onus of proof. Although Lord Sankey in Woolmington noted that the presumption is subject to statutory exception, it is unlikely that his Lordship contemplated the prosecutorial burden of proof being defeated by extensive statutory exceptions with application to a broad range of offences. Thus, it is important to identify and evaluate the rationales for placing the legal burden of proof on a defendant.

Reversals of the onus of proof are generally classified as either placing a legal (balance of probabilities) or an evidentiary (production of evidence) burden on the defendant. They may be created expressly by statutory provision,[23] by implication as a result of the particular wording of an offence,[24] by ‘deeming’ provisions that locate proof of a particular fact on a defendant,[25] or by adopting a narrow interpretation of the presumption of innocence.[26]

English courts have found evidentiary reversals of the onus of proof to be compatible with the presumption of innocence because the defendant is only required to raise exculpatory evidence, leaving the prosecution with the ultimate burden of proving the defendant’s guilt beyond reasonable doubt.[27] Legal reversals of the onus of proof, however, require the defendant to prove his or her innocence on the balance of probabilities. Accordingly, they encroach more significantly on the presumption of innocence than their evidentiary counterpart. Hence, this paper focuses on legal reversals of the onus of proof and how to distinguish between those that are and those that are not compatible with the presumption of innocence.

This section begins by examining the effect of legal reversals of the onus of proof. The justifications for reversing the onus of proof are then assessed against the principle of proportionality. This necessitates the provision of an explanation of the principle of proportionality and why it constitutes a suitable yardstick for evaluating the human rights compatibility of reversals in the onus of proof. Three major justifications have been offered for reverse burdens, namely, the degree of seriousness of the offence, difficulties of proof and whether the burden of proof applies to the gravamen of the offence or to an incidental matter.

A Effect of Reversals of the Onus of Proof

A key characteristic of the presumption of innocence is to place the legal burden of proof on the prosecution. Reversals of the onus of proof relieve the prosecution of this burden and place it on the defendant on the balance of probabilities. Because the standard of proof borne by the defendant is the balance of probabilities, a defendant may be convicted even if he or she could raise a reasonable doubt. As a result, defendants lose the benefit of any residual doubt that would otherwise arise from the prosecution’s case, thus allowing the conviction of defendants where the presumption of innocence would otherwise have protected them. This clearly undermines the extent to which defendants are protected by the presumption of innocence.

B Principle of Proportionality

Following the leading decision of Salabiaku v France,[28] European courts have recognised that the presumption of innocence is not absolute. The Strasbourg Court accepted that reversals of the onus of proof may be justified and compatible with the presumption of innocence if they are proportionate and ‘confined within reasonable limits’.[29] Accordingly, it is the position of this paper that reversals in the burden of proof must satisfy the test of proportionality in order to achieve compatibility with the presumption of innocence. The mere existence of an identified justification for reversing the burden (for example difficulties of proof) is insufficient to justify derogation from the presumption of innocence. Accordingly, this section seeks to improve judicial predictability and clarify existing rationales by measuring the various justifications put forward by the courts in what has been described as a ‘blizzard of single instances’[30] against the single yardstick of proportionality.

The principle of proportionality is proposed here as the appropriate yardstick for determining if reversals of the onus of proof are compatible with the presumption of innocence on a number of grounds. It is a developed doctrine in human rights jurisprudence, which has a high level of international recognition and agreement about its constituent elements.[31] It therefore enables incursions on human rights to be scrutinised according to identified and generally agreed criteria. It does not prohibit incursions on most rights absolutely but ensures that any incursions are strictly ‘necessary to accomplish the objective of the statute’.[32] Accordingly, it does not prescribe an absolute implementation of the presumption of innocence where to do so would be impractical and would unjustifiably hinder law enforcement and the prosecution of certain offences.

In this context, the principle of proportionality operates by requiring consideration of whether the reverse burden is ‘strictly necessary’ or whether other less intrusive means are available to achieve a similar outcome, and the extent to which the reverse burden undermines a defendant’s rights and the presumption of innocence.[33] For example, legal reverse burdens are not proportionate where an evidentiary burden is capable of achieving the same goal.[34] Essentially, the reverse burden cannot be unjust, arbitrary or irrational in its operation and must not go beyond what is necessary to achieve its legislative purpose.[35]

C Justifications for Reversing the Legal Burden of Proof

The principal justifications for reversals of the onus of proof are the degree of seriousness of an offence, difficulties of proof and whether it applies to the gravamen of an offence or to an incidental matter. Essentially, the justifications offered for reverse burdens derive from the desire to achieve a ‘fair balance between the general interest of the community and the personal rights of the individual’,[36] specifically, the community’s interest in successful law enforcement and the defendant’s right not to be wrongly convicted.[37]

1 Seriousness of an Offence

There is a direct correlation between a defendant’s right not to be wrongfully convicted and the seriousness of an offence. This is because the degree of punishment and stigma attached to an offence varies according to its seriousness, which in turn corresponds to the level of injustice that might flow from a wrongful conviction. Generally, three factors are relevant in determining the seriousness of an offence: the punishment for it; the stigma attached to it; and the consequences of the offence for victims and for society.

The clearest cases where reversals of the onus of proof have been upheld have involved offences of a low level of seriousness, that is, where the prescribed penalty, the stigma attached to a conviction and the harm resulting to the community or to victims from the offence is not severe. These are characteristics of many regulatory offences whose primary purpose is the efficient operation of matters within the public sphere, such as transport, traffic, manufacturing, environmental protection, control of domestic animals and consumer relations.[38] In this respect, regulatory offences are often viewed as ‘quasi-criminal’ rather than ‘truly criminal’.[39] Custodial sentences are often not prescribed for regulatory offences and they carry little stigma. In other words, the degree of injustice flowing from a wrongful conviction is diminished by the relatively less serious consequences attached to a breach of a regulatory offence, thus providing possible justification for the operation of a reverse burden. In Sheldrake[40], the House of Lords upheld a reversal of the onus of proof in relation to the offence of ‘being drunk in charge’ of a motor vehicle under s 5(1)(b) of the Road Traffic Act 1988 (UK) on the basis that, inter alia, it was not a serious offence.[41] Their Lordships viewed it as merely a traffic offence directed to the regulation of a driver’s preparatory conduct prior to driving. Also, the offence carried little stigma and a low prescribed penalty.[42]

If a low degree of seriousness provides justification for upholding a reverse burden, logically reverse burdens should not be applied or upheld where an offence is serious. However, legislators and courts have not exhibited a consistent approach in this regard. For example, the UK Parliament has at times legislated reversals of the onus of proof for serious offences, such as terrorism and drug offences, on the grounds that their commission has severe consequences for society.[43] The UK courts, however, have not accepted this reasoning because it does not account for the usually severe penalties and stigma that attach to conviction for such offences. Instead, courts have adopted the opposite approach and relied upon severe penalties and stigmatisation as reasons not to apply reverse burdens.

For example in AG Ref 04/2002,[44] the legal burden was deliberately reversed by Parliament in relation to the legislated defence for a terrorism offence. Despite the serious threat posed by terrorism, the court held that the reverse burden was disproportionate because of the severity of the potential penalty (ten years imprisonment) and the significant stigma that would result from a conviction for this offence.[45] Accordingly, courts have generally been hesitant to uphold reverse burdens based on the consequences for victims or threats to society posed by an offence where the consequences of conviction for a defendant are serious.

(a) Seriousness of an Offence and Proportionality

Prima facie, the low degree of seriousness of an offence provides a valid justification for reversing the onus of proof. However, careful consideration of this justification suggests that it may not satisfy the principle of proportionality. As noted earlier, proportionality is not established if an evidentiary burden is capable of achieving a similar outcome to a legal reverse burden. This means that even if a legal reverse burden applies to a non-serious offence, it will not be proportionate if it is not absolutely necessary.[46] In other words, the non-seriousness of an offence should play no role if the question whether a legal reverse burden is necessary is answered in the negative.

However, at the other end of the scale, the seriousness of an offence may assume a crucial role in determining if a reverse burden is proportionate. Then, the question of what is at stake for the defendant rather than the threat the offence creates for the community will govern how courts approach the issue of seriousness and proportionality. Courts have generally taken the view that the more serious the consequences for a defendant in terms of severity of sentence and degree of stigmatisation, the less likely a reverse burden is to be proportionate despite the threat posed to society by the offence.

For example in Lambert,[47] the defendant was charged with possession of drugs with intent to supply.[48] The issue before the House of Lords was whether the legal reverse burden contained in s 28 of the Misuse of Drugs Act 1971 (UK) was proportionate in the circumstances. In this regard, Lord Steyn gave weight to the maximum prescribed punishment for the offence, which was life imprisonment.[49] It was held that s 28 did not meet the proportionality principle because a legal reversal here could potentially result in a defendant being sentenced to life imprisonment despite there being a reasonable possibility that he or she came into possession of the drugs unknowingly (e.g. tricked, planted etc.).[50] Lambert suggests that when the severity of the punishment is of a high degree, reversals of the onus of proof are unlikely to meet the proportionality test in spite of the fact that the commission of the offence may cause serious and widespread harm to the community. Similarly, if the stigma and opprobrium attached to an offence is high, it is unlikely that proportionality will be met.[51]

2 Difficulties of Proof

In determining if a legal reverse burden is compatible with the presumption of innocence, a court may take into account the degree of proof imbalance between the prosecution and defendant. In this regard it will consider the degree of difficulty faced by the prosecution in proving a defendant’s guilt beyond reasonable doubt. Conversely, if the defendant has little difficulty in proving his or her innocence, a proof imbalance will also exist. Imbalances of this kind support reverse burdens based on the public’s interest in successful prosecutions of the guilty. The most important factor in deciding if a proof imbalance associated with an offence supports a reversal of the legal burden of proof is the degree of the burden placed on the prosecution. The starting point is undoubtedly the presumption of innocence, which already places a heavy burden of proof on the prosecution to prove a defendant’s guilt beyond reasonable doubt. Thus, in order for a reversal of the legal burden of proof to be supported, the proof imbalance between prosecution and defendant must go beyond that of the ordinary criminal standard of proof. This paper considers the two major instances of proof imbalance that may attract support for a reversal of the legal burden of proof, namely, the prosecution having to prove a negative and the prosecution having to prove knowledge peculiar to the defendant.

(a) Proving a Negative

Proving a negative does not refer to the proof of an omission as opposed to a positive act. Rather, as Saunders explains, proving a negative relates to situations where the prosecution must prove a ‘universal claim’ as opposed to the defendant having to prove only an ‘existential claim’.[52] A universal claim is one requiring proof of an entire set of propositions, whereas proof of a single proposition is sufficient to satisfy an existential claim. If the prosecution would be required to prove a universal claim in order to establish a defendant’s guilt, that potentially supports the compatibility of a reversal of the legal burden of proof with the presumption of innocence. A classic example is the case of Turner.[53] Here, the defendant was charged with having game in his possession without the proper qualification. There were ten different heads of qualification under which an individual might lawfully kill game. In this instance, having to disprove all ten heads of qualification is a universal claim and having to prove only one head of qualification is an existential claim. Ultimately, Lord Ellenborough held that it would place too heavy a burden on the prosecution if they were required to disprove all ten heads of qualification.[54] Instead, a reversal of the legal burden of proof was utilised to require the defendant to establish a relevant qualification in order to escape conviction.

(b) Knowledge Peculiar to the Defendant

Another situation of proof imbalance is when a matter required to be proved constitutes knowledge peculiar to the defendant. This difficulty is sometimes coupled with proving a negative, as was the case in Turner[55]. It could be argued that in Turner, whether the defendant had the requisite qualification for possessing game was a matter known only to him. Another example is the case of Sheldrake. Here, the House of Lords upheld a reversal of the legal burden of proof on the grounds that it was easier for the defendant to establish that he was unlikely to drive a motor vehicle while intoxicated as it was ‘so closely conditioned by his own knowledge and state of mind at the material time’.[56] The prosecution, on the other hand, had a much more difficult task in proving the contrary.

(c) Difficulties of Proof and Proportionality

This paper submits that difficulties of proof as a justification for reversing the onus of proof may not satisfy the principle of proportionality.[57]

The difficulties of ‘proving a negative’ may not justify a reversal of the legal burden of proof if they can be addressed adequately by simply shifting the evidentiary onus.[58] As Williams points out, ‘when the accused has particularised the issue by giving reasonable evidence of a particular excuse, there is no reason for shifting the risk of non-persuasion’.[59] If we were to reconsider Turner, an evidentiary burden placed on the defendant to adduce evidence as to his having the proper qualification would have obviated the need for displacement of the legal burden, as the prosecution would still not be required to disprove all ten heads of qualification. Consequently, proving a negative can only be used as a supporting factor to justify a reverse burden and not as its sole justification.

Similarly, the difficulty of proving peculiar knowledge does not necessarily support reversal of the legal burden of proof. Knowledge peculiar to the defendant is often directly related to the defendant’s state of mind at the time of the offence (mens rea).[60] As established in Woolmington, mens rea is an element that the prosecution must generally prove beyond reasonable doubt.[61] Proving knowledge peculiar to the defendant may not, therefore, constitute an unusual difficulty beyond what is otherwise required of the prosecution in proving its case. In proving mens rea, the prosecution may be required to provide evidence that may give rise to inferences of knowledge peculiar to the defendant. For example, if the defendant stood to benefit from his or her actions, objective inferences may be drawn about the reason why he or she committed the offence and therefore about any knowledge peculiar to him or her. Further, if a defendant refuses to explain his or her actions, it may result in an adverse inference concerning matters peculiarly within his or her knowledge.[62]

This point is supported by Lambert, where the House of Lords held that reversal of the legal burden of proof was disproportionate in addressing any proof imbalance in relation to whether the defendant had knowledge that there were drugs in the bag that he was carrying. The majority of the House of Lords held that a jury could reasonably infer that the defendant knew he had the drugs from their mere presence among his possessions.[63] Furthermore, any claim that the defendant lacked this knowledge would be unlikely to hold weight in the absence of any further explanation for his ignorance as such an excuse is self-serving in nature. With these considerations in mind, the House of Lords held that imposition of an evidentiary burden on the defendant was sufficient to address the proof imbalance in this case.

Similarly in Tasmania, Tasmanian courts since Brown[64] have interpreted the defence of honest and reasonable mistake in s 14 of the Tasmanian Criminal Code as shifting the evidentiary burden instead of the legal burden. The decision in Brown overturned the earlier approach in Martin[65] that had imposed a legal burden on the defendant with respect to the defence of mistake under s 14. The defence of mistake essentially operates on a defendant’s state of mind at the time of commission of an offence and therefore constitutes knowledge peculiar to him or her. However, this proof imbalance was insufficient for the court in Brown to uphold a legal reversal of the onus of proof. In reaching this decision, Neasey J relied on the fact that shifting the evidentiary burden was sufficient because the prosecution is capable of eliciting sufficient evidence to displace the defence by way of ‘cross-examination or otherwise’.[66]

In summary, it is unlikely that the mere existence of either the requirement to prove a negative or knowledge peculiar to a defendant is sufficient to justify a reversal of the legal burden of proof when judged according to the principle of proportionality. This is because if an imbalance in proof can be addressed by placing an evidentiary burden on the defendant, then a reversal of the legal burden of proof will fail the proportionality test.

3 Gravamen of an Offence

Proponents of certain reverse burdens may seek to justify them on the basis that they do not relate to the gravamen of the offence. The gravamen of an offence relates to its essential or central substance. In contrast, non-essential matters are considered ‘incidental’ to the offence. Whether a reversal of the legal burden of proof may be justified, may hinge upon whether the reversal relates to the gravamen of the offence or a non-essential matter. The rationale for this justification is that even though reversing the onus of proof increases the chance of a defendant being wrongly convicted, the fact that the reversal only relates to a matter that is incidental to the offence means that any potential injustice is not as severe as it would be if the reverse burden operated on the gravamen of the offence.[67]

The question is then how to differentiate between elements and/or defences that go to the gravamen of the offence and those that do not. In response, commentators such as Fletcher and Stein have drawn a distinction between circumstances that justify a defendant’s actions, as opposed to circumstances that merely excuse a defendant’s actions.[68] One example that illustrates this distinction is the offence of murder, more specifically the element of causing a victim’s death. There is no doubt that causing the victim’s death goes to the gravamen of the offence, as it is the very essence of murder. If we were to impose a reverse burden in relation to this element, the courts would be highly likely to reject it. There is an unacceptably high risk of injustice to a defendant resulting from displacement of the legal burden of proof in relation to such a matter. It would increase the possibility of fact-finding error and therefore of a defendant, who had nothing to do with the murder, being severely punished. In the context of the distinction between ‘justifications’ and ‘excuses’, failure to prove a primary element of murder would be considered a justification for acquittal because it is not established that the defendant’s conduct comprises an element of the offence, thus absolving him of any guilt.

In contrast, if a reverse burden is imposed on the defence of insanity in a murder case, the level of potential injustice is much less as there is no issue about the defendant actually committing the offence. This is because insanity goes less to the gravamen of the offence, and more to the appropriate way in which the defendant should be dealt with.[69] In essence, the defence of insanity merely acts as an excuse for the offence and therefore does not go to the gravamen of the offence. This results in the defendant receiving a ‘not guilty by reason of insanity’ verdict or ‘guilty but insane’ verdict, and being liable to committal to a mental institution. Especially in cases where a defendant is charged with a serious offence, it may not make too big a difference whether the defence of insanity is upheld or not, as the defendant will still be subject to incarceration and censure.[70] The reversal of the legal burden of proof attached to the defence of insanity has thus long been supported and recognised as being a valid exception to the presumption of innocence.[71]

(a) Gravamen of the Offence and Proportionality

In applying this justification, courts have generally been consistent in upholding reverse burdens where they do not operate on the gravamen of an offence.[72] This is because if the reverse burden does not operate on the gravamen of an offence, the potential injustice that flows from a wrongful conviction is diminished. Conversely, if the reverse burden operates on the gravamen of an offence, it is unlikely that a reverse burden will be proportionate. However, there have been instances where courts have held that where a reverse burden operates on the gravamen of the offence, the proportionality principle may be satisfied if the offence is ‘less serious’. For example in Sheldrake (in the Divisional Court), Clarke LJ held that the reverse burden was invalid as it operated on the gravamen of a traffic offence.[73] However the House of Lords overturned this decision and upheld the reverse burden.[74] Similarly, Hamer argues that a reverse burden for driving without a license is justifiable even though the gravamen of the offence is not having a license, as this is not a serious offence and it is in the public interest to regulate driving.[75]

This paper submits that it is unlikely that any reverse burden operating on the gravamen of an offence, regardless of the seriousness of the offence, will be proportionate. If we were to consider Hamer’s example, an evidentiary burden requiring the defendant to adduce evidence of being licensed would equally be capable of achieving the legislative intent of the offence without impinging on the presumption of innocence. Accordingly, this paper submits that the principle of proportionality cannot be satisfied by this justification alone. This is because proportionality is not met if the legal reverse burden is not necessary, regardless of whether it operates on the gravamen of an offence or not and regardless of whether the offence is serious. This paper therefore argues that this justification should only be considered if a legal reverse burden is also supported by some other justification.

D Reconsidering the Defence of Insanity

It has long been accepted that it is legitimate for the defendant to bear the onus of proof in relation to the defence of insanity. This is because the reverse burden for insanity does not apply to the gravamen of an offence and also because the defence gives rise to a prima facie proof imbalance because it essentially involves knowledge peculiar to a defendant. However, this section’s discussion of these justifications begs the question whether this long-standing reversal should remain unchallenged.

The essential question is whether the proof imbalance is of such a high degree that it cannot be dealt with by requiring the defendant to discharge an evidentiary rather than a legal burden in relation to the defence. As pointed out earlier, the imbalance of proof in relation to peculiar knowledge may often be more apparent than real. In relation to insanity, the defendant’s conduct might raise inferences about whether he or she suffers from a mental illness. For example, if a defendant’s actions demonstrate a clear thought process directed at a self-serving interest, the logical inference might be that his or her conduct was not generated by mental illness.[76] Conversely, patently irrational behaviour may indicate mental illness.[77] Nevertheless, in both situations, requiring the defendant to discharge an evidentiary onus in relation to the defence of insanity might arguably suffice in overcoming any proof imbalance intrinsic to this defence.

Essentially, this would require the defendant to lay an evidentiary foundation for the defence, but once that were done, the prosecution would be required to disprove it beyond reasonable doubt. The type of evidence necessary to lay a proper evidentiary foundation would vary depending on the nature of the disorder relied upon and the extent to which the defendant’s own conduct was revelatory of his or her mental condition. For example, if a defendant acted in an apparently rational manner, but was in fact driven by ‘voices’ in his or her head[78] this would affect the level and nature of the evidence that he or she would need to adduce in order to establish a sufficient evidentiary foundation to impose a burden of proof in relation to the defence on the prosecution. Difficulties that the prosecution might face in this regard might be overcome by procedural rules that enable the State to require defendants relying on insanity to undergo mental health assessment by State appointed psychiatrists.

Thus, there is an in-principle argument for imposing the legal burden of proof on the Crown, even in relation to the defence on insanity. In practical terms however, this might result in little real change for defendants. The evidentiary standard they may have to meet in laying an evidentiary foundation for the defence might ultimately be little different to bearing the legal burden for the defence on the balance of probabilities. This might change if future medical advances enable a more accurate examination of the human mind such as to effectively eliminate any proof imbalance in relation to mental illness and insanity. Such developments would, of course, support this paper’s argument that a legal reverse burden in relation to the defence of insanity may not satisfy the principle of proportionality because it is not absolutely necessary.

E Satisfying the Principle of Proportionality

In seeking to clarify existing principles, this section has considered the various justifications relied upon by courts in determining if a reversal of the onus of proof is consistent with the presumption of innocence. As demonstrated above, not all justifications satisfy the principle of proportionality. This is because the principle of proportionality essentially allows a reversal of the legal burden of proof only where it is absolutely necessary. Many of the cases discussed show that shifting the evidentiary burden can be sufficient to achieve the intent of the legislation.

For example in Keogh,[79] the Court of Appeal on appeal from a ruling given at a preparatory hearing, held that the defences provided under s 2(3) and s 3(4) of the Official Secrets Act if conventionally construed, would impose a legal burden upon the defendant. However, it was ultimately held that the reverse burden amounted to a significant infringement of the presumption of innocence, and should be read down to impose an evidentiary burden only. The court’s decision was heavily influenced by a variety of factors, such as, the gravamen of the offence and the ability of the prosecution to prove the offence without the reversal of proof. But most importantly, the decisive factor was whether imposing a reverse legal burden in this case was necessary to ensure that the offences remained practicable. Ultimately, the court concluded that the section remained workable even in the absence of a reverse legal burden, and thus accordingly deemed the imposition of a reverse legal burden not proportionate or justified.

This paper therefore recommends that it should be presumed that all reversals of the onus of proof shift only the evidentiary burden, even where the offence is non-serious and the reverse burden does not operate on the gravamen of the offence. There are various advantages to implementing this presumption. First, it would create uniformity for all offences and thus improve the certainty of the law. Second, the presumption would ensure that all statutory reversals of the onus of proof prima facie satisfy the principle of proportionality as they shift only the evidentiary burden. Essentially, the only time a legal reverse burden would survive would be when there was proof of its absolute necessity. However, as explained above, situations where a legal reverse burden is absolutely necessary are rare.

In order to determine whether the presumption suggested here might be rebutted, it would be appropriate to refer to the justifications for reverse burdens in a set order, according to the degree to which they deal with any potential injustice to the defendant that might flow from the reverse burden. The primary justification for a reverse burden is whether the consequences of a conviction for the defendant are or are not severe, as this has the most impact on a defendant’s rights. This is followed by reverse burdens operating on the gravamen of an offence, as they increase the possibility of wrongful convictions. Difficulties of proof are considered last, because they focus more on the community’s interests than on a defendant’s rights.

In conclusion, this paper submits that employing a presumption that any shift in the burden of proof places only an evidentiary burden on the defendant is the appropriate approach as it preserves the presumption of innocence and a defendant’s rights. In the following section, this paper considers the impact of human rights instruments and how they strengthen the approach taken to reverse burdens advocated in this section.

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IV THE IMPACT OF HUMAN RIGHTS INSTRUMENTS ON REVERSALS OF THE ONUS OF PROOF

International and national human rights instruments have had a significant impact on the way courts view reversals of the onus of proof. Ratification of the European Convention on Human Rights (‘the ECHR’) caused a dramatic shift in European courts’ approach towards reverse burdens. Similarly, following the enactment of the Human Rights Act 1998 (UK), English courts have avoided applying reversals in the legal burden of proof, preferring to interpret reverse burdens as imposing only an evidentiary burden on defendants.[80]

This section examines the impact of human rights instruments on reversals of the onus of proof in Australia. It begins by considering whether taking a human rights perspective in relation to reversals of the onus of proof is the correct approach or whether other theories, such as utilitarianism, should apply. Next, this section analyses the impact of human rights instruments on the presumption of innocence and reversals of the onus of proof. Because of the limitations imposed by the word count for this paper, this section focuses on decisions of the Strasbourg and UK courts following the introduction of the ECHR and the Human Rights Act 1998 (UK), which comprise a particularly strongly developed body of law on reversals of the onus of proof.[81] As noted by Gans et al[82] and evidenced by the approach of the Victorian Court of Criminal Appeal in R v Momcilovic,[83] decisions of the Strasbourg and UK courts are a potentially rich source of human rights principles for Australian courts. Decisional law of other jurisdictions is cited where relevant. The third and final part of this section considers the future of reversals of the onus of proof in Australia given the recent enactment of human rights instruments in Victoria and the ACT.

A Individual Human Rights vs. The Public Good

This paper has taken a human rights perspective in its discussion thus far by focusing primarily on the importance of the presumption of innocence and a defendant’s right not to be wrongly convicted. However, other theories such as utilitarianism offer an alternative perspective from which to view reversals of the onus of proof. Where a human rights perspective dictates emphasis on the individual, utilitarianism argues for the greater good. This raises the questions whether there is a conflict between individual human rights and utilitarianism and why reverse burdens should be construed in favour of individuals rather than the public at large.

Utilitarianism is a form of consequentialism that determines the worth of an action by calculating its total benefit for society as a whole.[84] The most common utilitarian critique of human rights is that resources are scarce and they should therefore be allocated in a manner that promotes the greater good.[85] This perspective inherently supports reversals of the onus of proof, as reverse burdens seek to increase the rate of successful prosecutions while reducing the resources expended on them. It may even be argued that utilitarianism is consistent with democracy because democracy is a majority rule theorem.[86] If Parliament enacts a reverse onus provision, then it necessarily follows that the majority of people have consented to an increase in the odds of their being wrongly convicted.[87] The effect of applying utilitarianism to reverse burdens would see a complete reversal in the application of justifications to reverse burdens as discussed in the previous section. The primary concern would then be the degree of threat to society posed by particular conduct as opposed to the seriousness of the consequences of a conviction for a defendant or the necessity of the reverse burden.

Although utilitarianism apparently supports reversals of the onus of proof, this paper submits that utilitarianism can be reconciled with human rights and, in fact, supports the argument that reverse burdens should be construed in favour of defendants. The fact is that human rights seek to protect individuals universally. In other words, the presumption of innocence aims to protect all individuals from being wrongfully convicted. If one person can be wrongfully convicted, it follows that anyone might be wrongly convicted. Accordingly, it is not just in an individual’s interest, but also in the public’s interest to promote the presumption of innocence. This is consistent with utilitarianism, where achieving the greatest ‘happiness’ for the greatest number is the ultimate goal.[88]

Therefore, construing reversals of the onus of proof in favour of a defendant is consistent not only with human rights, but also with utilitarianism and with the public good. This means that a defendant’s rights should be the paramount concern when judging reverse burdens no matter which theoretical perspective is adopted as any breach of those rights has the potential to affect not only the individual, but also society as a whole.

B Impact of Human Rights Instruments

The presumption of innocence appears in Article 14(2) of the ICCPR, Article 11 of the Universal Declaration of Human Rights, and Article 6(2) of the ECHR.[89] Whenever courts and human rights committees required to apply these instruments consider a reversal of the onus of proof, they must consider whether the presumption of innocence has been contravened. European and UK jurisprudence exemplifies the results of this approach.[90] The clearest trend to emerge from decisions of the Strasbourg court is that a reversal of the legal burden of proof is prima facie incompatible with the presumption of innocence under Article 6(2) of the ECHR.[91] Similarly, the requirement to interpret legislation in a manner consistent with human rights under s 3(1) of the Human Rights Act 1998 (UK) and the application of the test of proportionality has resulted in UK courts reading down reverse burden provisions as merely shifting the evidentiary onus. This trend has become so prominent in recent decisions that it may eventually lead to the death of legal reverse burdens in the UK.[92]

C Human Rights and Reverse Burdens in Australia

Even though Australia has agreed to be bound by various international human rights treaties, such as the ICCPR, these instruments have no binding authority or effect on domestic law unless incorporated through legislation.[93] However, that is not to say that such international instruments have no influence in the development of Australian law, especially in relation to the right to a fair trial. For example, the High Court has referred to the approach taken by the Strasbourg Court in relation to Article 6 (right to a fair trial) of the ECHR in cases such as Mallard v The Queen,[94] Antoun v The Queen[95] and Strong v The Queen.[96] Notably in Dietrich v The Queen,[97] the High Court relied on the approach of the European Court of Human Rights, and held that ‘that approach is similar to the approach which ... the Australian common law must now take’[98] in relation to the incidents of a fair trial.[99]

Nevertheless, there have been strong views expressed by some Australian judges that reading the Australian Constitution in conformity with the rules of international law is ‘heretical’.[100] For example, Heydon J in Roach stated that international instruments played no part in the framing of the Constitution and Australian law does not ‘permit recourse to these materials’.[101] However, as the Honourable Michael Kirby argues, the judicial limitations placed upon the usage of international instruments in Australia can still be respected while considering the approach taken overseas.[102] Moreover, Victoria and the ACT have enacted human rights legislation,[103] which requires courts in those jurisdictions to interpret legislation in compliance with human rights.

1 Momcilovic v The Queen

The recent case of Momcilovic[104] afforded the Victorian Court of Appeal and the High Court the opportunity to consider the influence of human rights legislation on reversals of the onus of proof. The defendant was convicted of trafficking under s 71AC of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) (‘the Drugs Act’). The drugs were found in Ms Momcilovic’s apartment, which she shared with her partner. The prosecution relied on s 5 of the Drugs Act, under which possession is presumed where it is proved that a controlled substance was found on premises occupied by the defendant. On appeal, Ms Momcilovic submitted that s 5 should be interpreted in a manner consistent with human rights pursuant to s 32(1) of the Victorian Charter and therefore the ‘deeming provision’ should be construed as imposing an evidentiary onus rather than a legal onus on the defendant. This, according to the defence, would achieve an interpretation of s 5 consistent with the presumption of innocence under s 25(1) of the Charter.

The Victorian Court of Appeal unanimously upheld the validity of the Victorian Charter and stated that s 32(1) ‘does not create a ‘special’ rule of interpretation, but rather forms part of the body of interpretive rules to be applied at the outset, in ascertaining the meaning of the provision in question’.[105] In interpreting s 5 of the Drugs Act, the Court of Appeal found that it imposed a reversal of the onus of proof that was inconsistent with the presumption of innocence. Authorities from different jurisdictions were considered, and it was concluded that where there exists a risk that a defendant would be convicted despite raising a reasonable doubt about his or her guilt, there would be an infringement of the presumption of innocence.[106] The possibility of reading down s 5 as merely imposing an evidentiary onus on the defendant was rejected because of the clear language of the provision.

This raised the question whether s 5 of the Drugs Act was demonstrably justifiable under s 7(2) of the Victorian Charter. Section 7(2) of the Charter substantially reflects the principle of proportionality applied in this paper in the previous section, especially s 7(2)(e) which imposes a test of reasonable necessity and consideration of whether there are other less intrusive means of achieving the same purpose. The primary justifications relied upon by the Crown in support of the legal reverse burden were the potentially severe consequences of trafficking offences for society and the difficulties of proving these offences.[107] However, the Court of Appeal rejected these justifications. When pressed to justify the legal reverse burden, the Crown acknowledged that a switch from a legal onus to an evidentiary onus would have made no ‘major or demonstrable difference to drug trafficking prosecutions’.[108] This meant that there could be no justification for the legal reversal of proof on the basis of difficulties of proof because of the existence of a less intrusive means of achieving the same objective.

The Court of Appeal also adopted the stance that the more severe the punishment to which the defendant is exposed, the harder it is to justify an infringement of the presumption of innocence. Relying on Johnstone, the court rejected the submission that a maximum penalty of 15 years’ imprisonment is significantly less severe than the penalty for offences carrying life imprisonment. The court held that it does not matter that other offences carry more severe penalties; 15 years’ imprisonment is a ‘most serious consequence’.[109]

The Court of Appeal’s reasoning is on all fours with the preferred approach advocated in the previous section of this paper. It also substantially accords with European and English jurisprudence in its application of the principle of proportionality. In this regard, the Court of Appeal recognised certain discernable principles and trends that clarify how the principle of proportionality should operate. For example, the court recognised that where a legal reverse burden is not necessary to achieve the object of the legislation it necessarily follows that it does not satisfy the principle of proportionality. Also, the court placed great weight on the severe consequences of a conviction for a defendant and did not accord significant weight to the consequences of the offence for society.

Ultimately, this led to the conclusion that s 5 of the Drugs Act was inconsistent with the presumption of innocence and the Court proposed issuing a declaration of inconsistent interpretation under s 36(2) of the Victorian Charter. Unfortunately for students of statutory interpretation (but fortunately for Vera Momcilovic), the High Court did not affirm the Court of Appeal’s decision in its totality but instead quashed Ms Momcilovic’s conviction on the basis that her trial had miscarried as a result of a misreading of s 5 of the Drugs Act.[110] However, the majority did uphold s 32(1) of the Charter as a valid rule of statutory interpretation and held that its operation must include reference to the various factors in s 7(2) (similar to the ‘proportionality principle’).[111] Overall, Momcilovic represents a small step forward for human rights instruments in Australia.

D The Future of Reverse Burdens in Australia

What effect Momcilovic will have on reverse burdens and human rights in Australia is yet to be seen. The fact that the High Court held s 32(1) of the Victorian Charter to be an ordinary rule of interpretation, while a positive step in human rights terms, may mean that the effect of the Charter will be minimal. This is because Victorian courts will not be able to read words in or out of a provision in order to ensure its compliance with Charter rights. In contrast, the House of Lords in Ghaidan was prepared to disregard the clear words of a provision and to read words into it in order to render it compatible with human rights.[112] In Victoria, if the clear words of a statutory provision prevent it being read in compliance with human rights, Victorian courts are limited to making declarations of human rights incompatibility. As Gans points out, such declarations are likely to be of limited utility because the Victorian Government can simply ignore them.[113] For example in 2009, the Victorian Government announced that it would not reform a new random search law despite the fact that it was incompatible with human rights.[114]

At the present time, declarations of incompatibility serve only to subject reverse burdens to curial scrutiny as part of a long-term review of criminal laws in Victoria. They do not endow defendants with the right to have his or her conviction overturned.[115] If Australia is to move towards a more human rights oriented criminal justice system, where legal reverse burdens effectively become a thing of the past, courts must be armed with more intrusive interpretative and declaratory powers. The catalyst for this change might proceed either from all states adopting human rights instruments similar to the Victorian Charter or the Human Rights Act 2004 (ACT) or from Australia adopting a national, constitutionally entrenched bill of rights.

The effect of such a change would provide enforcement and protection of human rights similar to the Canadian Charter of Rights and Freedom (‘the Canadian Charter’).[116] The Canadian Charter is a constitutionally entrenched bill of rights that guarantees the rights of Canadian citizens. Significantly, it allows the Supreme Court of Canada to operate as the ultimate authority on human rights by empowering the court to strike down statutes that are incompatible with the Charter,[117] to exclude evidence that was obtained in contravention of rights guaranteed in the Charter[118] and to read words into provisions to ensure their compliance with human rights.[119] By adopting an entrenched bill of rights in Australia, similar powers could be granted to the High Court of Australia. The impact of this development could be immense, particularly in relation to reversals of the onus of proof. In a situation similar to that of Momcilovic, the Supreme Court of Canada in R v Oakes struck down a ‘deeming’ provision in relation to the possession of drugs, which placed the onus of proof on the defendant, because it violated the presumption of innocence guaranteed under s 11(d) of the Canadian Charter.[120] If such an approach were adopted in Australia, reversals of the onus of proof would come under heavy scrutiny. This might ultimately result in the gradual death of legal reverse onus provisions in criminal statutes throughout Australia.

V CONCLUSIONS

The presumption of innocence is a fundamental right of utmost importance. It safeguards the rights of individuals against the injustice of a wrongful conviction. However, reversals of the onus of proof are a direct breach of this presumption. Reverse burdens have been enacted with increasing frequency in recent decades, often without any clear explanation or rationale being provided.

Australian courts appear to have been largely uncritical when faced with statutory reversals in the burden of proof.[121] This paper has been motivated by this curial attitude and the proliferation in statutory reverse burdens. It has sought to clarify and evaluate the principal justifications identified for reverse burdens by testing them against the principle of proportionality. This principle tends to favour defendants’ rights over the interests of the State. It has been argued that a majority of the justifications considered do not provide sufficiently compelling arguments in support of reversals in the onus of proof. This conclusion is supported by trends in national and international human rights law. Human rights instruments and jurisprudence reaffirm the importance of the right to a fair trial and the presumption of innocence, thus requiring stricter standards to be met before a reverse burden can be upheld.

In conclusion, the presumption of innocence remains a fundamental cornerstone and protector of a defendant’s rights, both at common law and in human rights instruments. Consequently, compelling reasons are required before reversals of the onus of proof should be upheld. Various justifications have to be met, most notably a lack of severe consequences for a defendant, the reversal operating on a non-essential part of an offence and difficulties of proof that cannot be resolved with an evidentiary reversal. Adherence to the approach argued for in this article may eventually lead to the extinction of legal reverse burdens, with evidentiary reversals playing a more prominent role in the future. Indeed, that is the dominant trend emerging in decisional law elsewhere and Australia would do well to follow suit if it is to develop a well-established human rights based approach to criminal justice.


[∗] Final-year LLB(Hons I) student at the University of Tasmania. This article is based on the author’s Supervised Research Paper, which was submitted in fulfilment of the requirements for the degree of Bachelor of Laws with First Class Honours at the University of Tasmania. I would like to express my gratitude to Professors Terese Henning and Kate Warner, whose insight and wisdom have contributed immeasurably to the preparation, development and completion of this article. All errors remain my responsibility.

[1] David Hamer, ‘The Presumption of Innocence and Reverse Burdens: A Balancing Act’ (2007) 66 Cambridge Law Journal 142, 142.

[2] [1935] UKHL 1, [7].

[3] Ho Hock Lai, ‘The Presumption of Innocence as a Human Right’ (Paper presented at the Criminal Evidence and Human Rights: Common Law Perspectives, Faculty of Law, University of Nottingham, 9 September 2010).

[4] William Blackstone, Commentaries on the Laws of England (Clarendon Press, 1765) Book IV, Ch 27, 353.

[5] Cathy L. Bosworth, ‘Pre-trial Detainment: The Fruitless Search for the Presumption of Innocence’ (1986) 47 Ohio State Law Journal 277, 278.

[6] Andrew Ashworth, ‘Four Threats to the Presumption of Innocence’ (2006) 10 The International Journal of Evidence and Proof 241, 249.

[7] See generally H.W. Koch, In the Name of the Volk: Political Justice in Hitler’s Germany (I B Tauris, 1997); Simon Sebag Montefiore, Stalin: The Court of the Red Tsar (Vintage, 2007).

[8] See R v Galbraith [1981] 1 WLR 1039.

[9] See Andrew Ashworth and Mike Redmayne, The Criminal Process (Oxford University Press, 3rd ed, 2005) Ch 7.

[10] Paul Roberts and Adrian Zuckerman, Criminal Evidence (Oxford University Press, 2004) 15.

[11] Paul Roberts, ‘Taking the Burden of Proof Seriously’ (1995) Criminal Law Review 783, 785.

[12] For example: sex offender registration, social stigma, disadvantages in employment from having a criminal record.

[13] Ronald Myles Dworkin, ‘Principle, Policy and Procedure’ in Colin Tapper (ed), Crime, Proof and Punishment (Butterworths, 1981).

[14] See generally Mike Redmayne, Expert Evidence and Criminal Justice (Oxford University Press, 2001).

[15] Paul Roberts, ‘Double Jeopardy Law Reform: A Criminal Justice Commentary’ (2002) 65 Modern Law Review 393, 402-4.

[16] Jeremy Gans et al, Criminal Process and Human Rights (The Federation Press, 2011) 379.

[17] See Barton L. Ingraham, ‘The Right of Silence, The Presumption of Innocence, The Burden of Proof, and a Modest Proposal: A Reply to O’Reilly’ (year?) 86 The Journal of Criminal Law and Criminology 559.

[18] Mark Aronson and Jill Hunter, Litigation: Evidence and Procedure (Butterworths, 1995) 326.

[19] Scott Henchliffe, ‘The Silent Accused at Trial - Consequences of an Accused’s Failure to Give Evidence in Australia’ (1996) 19 University of Queensland Law Journal 137.

[20] Barbara Ann Hocking and Laura Leigh Manville, ‘What of the Right to Silence: Still Supporting the Presumption of Innocence, or a Growing Legal Fiction?’ [2001] MqLawJl 3; (2001) 1 Macquarie Law Journal 63.

[21] See, eg, Justices Act 1959 (Tas) ss 34, 35.

[22] R v Sefton [1917] VR 259, 262-3.

[23] See, eg, ss 15, 16 Tasmanian Criminal Code.

[24] See, eg, R v Edwards [1975] QB 27; R v Hunt [1987] AC 352, 374, 382; but see Gerald Orchard, ‘The Golden Thread – Somewhat Frayed’ [1988] OtaLawRw 6; (1988) 6 Otago Law Review 615, 625.

[25] See, eg, Misuse of Drugs Act 2001 (Tas) s 3(3).

[26] See, eg, R v Director of Public Prosecutions; Ex parte Kebilene [1999] UKHL 43; [2000] 2 AC 326; see also Victor Tadros and Stephen Tierney, ‘The Presumption of Innocence and the Human Rights Act(2004) 67 Modern Law Review 402, 406-8; Paul Roberts, ‘The Presumption of Innocence Brought Home? Kebilene Deconstructed’ (2002) 118 Law Quarterly Review 41, 53.

[27] See, eg, R v Director of Public Prosecutions; Ex parte Kebilene [1999] UKHL 43; [2000] 2 AC 326, 379; R v Lambert [2001] UKHL 37, [37].

[28] (1988) 13 EHRR 379; see also R v Lambert [2001] UKHL 37.

[29] See Simon Cooper, ‘Human Rights and the Legal Burden of Proof’ (200)] 3 Web Journal of Current Legal Issues.

[30] Roberts and Zuckerman, above n 10, 281.

[31] Richard Clayton and Hugh Tomlinson, The Law of Human Rights (Oxford University Press, 2008) 323-54.

[32] R v Lambert [2001] UKHL 37, [88].

[33] See also Van Mechelen v Netherlands [1997] ECHR 22; (1997) 25 EHRR 647.

[34] See Collin Tapper, Cross & Tapper on Evidence (Oxford University Press, 2010). (Evidentiary burden is defined as the obligation ‘to show, if called upon to do so, that there is sufficient evidence to raise an issue as to the existence or non-existence of a fact in issue, due regard being had to the standard of proof demanded of the party under such obligation’).

[35] R v Oakes [1986] 1 SCR 103, [70]; see also Ian Dennis, ‘The Human Rights Act and the Law of Criminal Evidence: Ten Years On’ [2011] SydLawRw 16; (2011) 33 Sydney Law Review 333.

[36] Brown v Stott [2003] 1 AC 681, 704.

[37] Hamer, above n 1, 147.

[38] See, eg, R v Roy Clarke [2008] EWCA Crim 893.

[39] See, eg, Sherras v De Rutzen [1895] UKLawRpKQB 77; [1895] 1 QB 918, 922.

[40] Sheldrake v Director of Public Prosecutions [2004] UKHL 43

[41] See Richard Glover, ‘Sheldrake, Regulatory Offences and Reverse Legal Burdens of Proof’ (2006) 4 Web Journal of Current Legal Issues.

[42] Sheldrake v Director of Public Prosecutions [2004] UKHL 43.

[43] See, eg, Misuse of Drugs Act 1971 (UK) s 28; Terrorism Act 2000 (UK) s 11(2).

[44] [2004] UKHL 43, [50], [71].

[45] Ibid [21].

[46] But see Sheldrake v Director of Public Prosecutions [2004] UKHL 43 (legal reverse burden upheld because the offence was not ‘serious’. However, it is important to note that the court did not consider at all whether the legal reverse burden was absolutely necessary for the purposes of overcoming difficulties of proof in that case); see also pp. 15-17 below.

[47] R v Lambert [2001] UKHL 37.

[48] See Misuse of Drugs Act 1971 (UK) s 5(3).

[49] R v Lambert [2001] UKHL 37, [20].

[50] Ibid [38].

[51] See, eg, Attorney’s General Reference No 04/2002 [2004] UKHL 43; R v Hunt [1987] AC 352.

[52] Kevin W. Saunders, ‘The Mythic Difficulty in Proving a Negative’ (1985) 15 Seton Hall Law Review 276, 278-83.

[53] [1816] EngR 587; (1816) 5 M & S 206.

[54] Ibid.

[55] find citation

[56] Sheldrake v Director of Public Prosecutions [2004] UKHL 43, [41]. See also, L v DPP [2003] QB 137 (legal burden placed on defendant to prove that he had good reason or lawful authority for having a bladed article in a public place upheld on the grounds that the accused had to prove something within his knowledge, and that there was strong public interest in bladed articles not being carried without good reason); R v Johnston [2003] UKHL 28; [2003] 1 WLR 1736 (legal reverse burden upheld on the grounds that the defence is reliant on matters peculiar to defendant’s knowledge, although it was decided in the context of urgent international pressure to restrain fraudulent trading in counterfeit goods).

[57] But see R v Makuwa [2006] EWCA Crim 175.

[58] Hamer, above n 1, 160.

[59] Glanville L. Williams, Criminal Law: The General Part (Stevens, 1961) 898.

[60] See, eg, R v Carass [2001] EWCA Crim 2845 (intention to defraud).

[61] Woolmington v Director of Public Prosecutions [1935] UKHL 1, 7.

[62] See especially Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217; Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285; Azzopardi v R [2001] HCA 25.

[63] R v Lambert [2001] UKHL 37, [38]-[40].

[64] [1990] Tas R 46.

[65] [1963] TASStRp 12; [1963] Tas SR 103.

[66] Attorney-General’s Ref 01/1989, Re Brown [1990] Tas R 46, 55.

[67] Attorney General’s Reference 04/2002 [2004] UKHL 43, [51].

[68] See George P. Fletcher, ‘Two Kinds of Legal Rules: A Comparative Study of Burden-of-Persuasion Practices in Criminal Cases’ (1968) 77 Yale Law Journal 880, 919; Alex Stein, ‘After Hunt: The Burden of Proof, Risk of Non-Persuasion and Judicial Pragmatism’ (1991) 54 Modern Law Review 570.

[69] Timothy Jones, ‘Insanity, Automatism, and the Burden of Proof on the Accused’ (1995) 111 Law Quarterly Review 475, 484-8, 503-7.

[70] Stephen Saltzburg, ‘Burdens of Persuasion in Criminal Cases: Harmonizing the Views of the Justices’ (1983) 20 American Criminal Law Review 393, 410.

[71] Woolmington v Director of Public Prosecutions [1935] AC 462, 481.

[72] See, eg, R v Johnstone [2003] UKHL 28; Attorney General’s Reference 04/2002 [2004] UKHL 43.

[73] [2004] QB 487, [82].

[74] Sheldrake v Director of Public Prosecutions [2004] UKHL 43.

[75] Hamer, above n 1, 155.

[76] See, eg, R v Codere (1916) 12 Cr App R 12.

[77] See, eg, R v Jeffrey (Unreported, Supreme Court of Tasmania, Underwood J, 1991).

[78] See Daniel R. Weinberger and Paul Harrison, Schizophrenia (John Wiley & Sons, 2011).

[79] [2007] EWCA Crim 528

[80] See, eg, R v Lambert [2001] UKHL 37.

[81] See also HKSAR v Hung Chan Wa [2006] HKCFA 85; (2006) 9 HKCFAR 614 (Hong Kong); R v Oakes [1986] 1 SCR 103 (Canada); R v Hansen [2007] NZSC 7 (New Zealand).

[82] Gans et al, above n 16, 11.

[83] [2010] VSCA 50.

[84] See Jeremy Bentham, An Introduction to the Principles of Morals and Legislation (Dover Philosophical Classics) (Dover Publications, 2009).

[85] Andrew Heard, Human Rights: Chimeras in Sheep’s Clothing? The Challenges of Utilitarianism and Relativism (1997) Simon Fraser University <http://www.sfu.ca/~aheard /417/util.html> .

[86] Don A. Habibi, ‘Human Rights and Politicized Human Rights: A Utilitarian Critique’ (2007) 6 Journal of Human Rights 3, 5-6.

[87] Jonathan Riley, ‘Utilitarian Ethics and Democratic Government’ (1990) 100 Ethics 335, 335.

[88] John Stuart Mill, Utilitarianism (University of Chicago Press, 1906) 16.

[89] See also s 11(d) of the Canadian Charter of Rights and Freedoms, s 25(c) of the New Zealand Bill of Rights Act 1990 (NZ) s 35(3)(h) of the Constitution of the Republic of South Africa.

[90] See also HKSAR v Hung Chan Wa [2006] HKCFA 85; (2006) 9 HKCFAR 614 (Hong Kong); R v Oakes [1986] 1 SCR 103 (Canada); R v Hansen [2007] NZSC 7 (New Zealand).

[91] R v Makuwa [2006] EWCA Crim 229; [2006] 2 Cr App R 11 [28].

[92] See, eg, R v Lambert [2001] UKHL 37; Attorney General’s Reference 04/2002 [2004] UKHL 43.

[93] Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273, 286-7.

[94] [2005] HCA 68; (2005) 224 CLR 125, 154-5; citing Edwards v United Kingdom [1992] ECHR 77; (1992) 15 EHRR 417; Fitt v United Kingdom [2000] ECHR 89; (2000) 30 EHRR 480.

[95] (2006) 80 ALJR 479, 506; citing Ferrantellr v Italy (1996) 23 EHRR 266; Inca1 v Turkey (1998) 29 EHRR 221; Stafford v United Kingdom (2002) 35 EHRR 1121; Beaumartin v France [1994] ECHR 40; (1994) 19 EHRR 485.

[96] [2005] HCA 30; (2005) 224 CLR 1, 33; citing Winterwerp v Netherlands [1979] ECHR 4; (1979) 2 EHRR 387; Johnson v United Kingdom (1997) 27 EHRR 296.

[97] [1992] HCA 57; (1992) 177 CLR 292.

[98] Ibid 307.

[99] K.P. Duggan, ‘Reform of the Criminal Law with Fair Trial as the Guiding Star’ (1995) 19 Criminal Law Journal 258, 271.

[100] Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562, 589.

[101] Roach v Electoral Commissioner [2007] HCA 43, [181].

[102] See Michael Kirby, ‘Australia’s Growing Debt to the European Court of Human Rights’ [2008] MonashULawRw 10; (2008) 34 Monash University Law Review 239.

[103] Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘the Victorian Charter’); Human Rights Act 2004 (ACT).

[104] R v Momcilovic [2010] VSCA 50,

[105] R v Momcilovic [2010] VSCA 50, [101].

[106] See R v Momcilovic [2010] VSCA 50, [125]-[136] citing R v Oakes [1986] 1 SCR 103; R v Johnstone [2003] UKHL 28; R v Lambert [2001] UKHL 37; Sheldrake v Director of Public Prosecutions [2004] UKHL 43; [2005] 1 AC 264; R v Hansen [2007] NZSC 7.

[107] See R v Momcilovic [2010] VSCA 50, [140] citing HKSAR v Hung Chan Wa [2006] HKCFA 85; (2006) 9 HKCFAR 614, 646; R v Hansen [2007] NZSC 7, 29-30.

[108] R v Momcilovic [2010] VSCA 50, [145].

[109] Ibid [150].

[110] Momcilovic v The Queen [2011] HCA 34.

[111] Ibid.

[112] Ghaidan v Godin-Mendoza [2004] UKHL 30.

[113] Jeremy Gans, ‘A Reverse Onus Reviled and Retained – R v Momcilovic(2010) 14 The International Journal of Evidence and Proof 253, 258.

[114] Statement of Compatibility, Summary Offences and Control of Weapons Amendment Bill 2009 at Victorian Parliamentary Debates, Legislative Assembly, 12 November 2009, 4022.

[115] Gans, above n 109, 258-9.

[116] Canada Act 1982 (UK) c 11, sch B pt I (‘Canadian Charter of Rights and Freedoms’).

[117] See, eg, R v Morgentaler [1988] 1 SCR 30.

[118] See Canadian Charter of Rights and Freedoms s 24(2).

[119] See, eg, Vriend v Alberta [1988] 1 SCR 493.

[120] R v Oakes [1986] 1 SCR 103.

[121] Contra R v Momcilovic [2010] VSCA 50.


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