Burdens + Standards of proof

Question 1

Where in the constitution is an accuseds’ constitutional safeguard and what does it guarantee?

Answer 1

right to a criminal trial in due course of law
right to fair procedures
article 38.1

Question 2

What does ‘in due course of law’. mean according to O’Higgins CJ in The State (Healy) v Donoghue [1976] IR 325

Answer 2

The words ‘… make it mandatory that every criminal trial shall be conducted in accordance with concepts of justice, that the procedures applied shall be fair, and that the person accused will be afforded every opportunity to defend himself’.

Question 3

What is the importance of Viscount Sankey’s statement in Woolmington v DPP [1935] AC 462?

Answer 3

He declared that ‘the golden thread is always to be seen…that runs through criminal law is that the prosecution must prove the guilt of the prisoner’

Question 4

What did Costello J specifically say in O’Leary v AG [1993] 1 IR 102 in relation to the presumption of innocence in Art 38.1?

Answer 4

Costello J held that a criminal trial held otherwise than in accordance with the presumption of innocence as guaranteed in art 38.1 would, prima facie, be one which was not held in due course of law.

Question 5

What is the role of the ECHR in the constitutional protection of the presumption of innocence?

Answer 5

The presumption of innocence is also protected in Article 6[2] of the ECHR Act

Question 6

What are the 2 kinds of burdens of proof and what do they mean?

Answer 6

Legal Burden of proof = this is the burden of proving a fact in issue which is borne on prosecution
Evidential Burden of Proof = burden of proving that there is some evidence of a fact in issue

Question 7

In relation to defences, what is the significance of Egan J comment in Hardy v Ireland [1994] 2 IR 550?

Answer 7

Egan J referred to defences being ‘offered by the prosecution or the defence’.
this basically means that it does not matter which side raises a possible defence - it always rests on the prosecution

Question 8

Can the legal burden of proof shift to the accused and if so, how?

Answer 8

it can shift under common law and legislation

• Common law = self-defence; insane automatism; duress and; res ipsa loquitor
• Legislation = diminished responsibility; O’Leary v AG 1993/5 and; Hardy v Ireland 1994

Question 9

Discuss the legal burden of proof for self-defence as a common-law defence

Answer 9

It springs from common law
The People (DPP) v Barnes [2007] 3 IR 130 CCA, Hardiman J - burglar - 'the burglar has placed himself in the position where he has *exclusive knowledge* of the cause of the householder's death'

Question 10

What is the position of Duress in relation to the legal burden of proof?

Answer 10

the general rule about the burden of proving a defence applies to duress
- the accused does not bear the burden of proving the defence but rather the prosecution

Question 11

What does res ipsa loquitur mean?

Answer 11

“the thing speaks for itself.”

Question 12

Discuss Costello J’s judgment in O’Leary v AG 1 IR 102 [1993], [1995] 1 IR 254

Answer 12

• X challenged section 24 of the OASA 1939 Act
• He argued that the words “…unless the contrary is proved..” suggests that X must prove his innocence = that he wasn’t a member of an unlawful organization thus = violation of Art 38.1
• Costello J - (i) if the effect of the statute is that the court must convict if X does not produce exculpatory evidence then it does shift the B.O.P. -BUT- (ii) if its effect is that he MAY be acquitted if he calls no evidence because the statute didn’t discharge the prosecution from establishing the accused’s guilt BRD then no constitutional issue arises
  (ii) prevailed and the SC agreed.

Question 13

Discuss O’Flaherty judgment in O’Leary v AG 1 IR 102 [1993], [1995] 1 IR 254

Answer 13

• rejected X submissions
• the words mean that a burden is imposed on X to prove that he wasn’t a member which means that the burden is thrown on him to prove his isn’t not guilty of the offence
  “it is clear that such possession is to amount to evidence only”
  “it is not to be taken as proof”

Question 14

What is the significance of Hardy v Ireland [1994] 2 IR 550?

Answer 14

S4(1) Explosives Substances Act 1883… “unless he can show that…”
- X argued that the words amounted to a violation of Art 38.1
- SC = this is not unconstitutional - judges each came to different opinions
Hederman J = there is an onus on the prosecution to prove that the accused could not show that he had it in his possession for a lawful object
Egan J = The onus lies fairly and squarely on the State
Murphy J = there is no inconsistency between trial in due course of law and a statutory provision which affords X with a particular defense and if he wishes to avail of it then he must prove the material facts on the balance of probabilities

Question 15

What is the evidential burden of proof?

Answer 15

It is the burden of proving that there is some evidence of a fact in issue.

Question 16

What were Walsh J comments in The People (AG) v Quinn [1965] IR 366 in relation to self-defence (defences generally)

Answer 16

• where the evidence in a case discloses a possible defence of self-defence, the onus remains upon the prosecution to establish that X is guilty of the offence
• the offence is never upon X to raise a doubt in the minds of the jury
• there must be some evidence which the jury is entitled to find in favour of the appellant

Question 17

Distinguish between a legal + evidential burden of proof according to Charlton J judgment in The People (DPP) v Smyth [2010] 3 IR 688 CCA

Answer 17

• In criminal trials, the burden is on the prosecution in terms of all issues except those cast on X by statute
• the accused must engage with the evidence -> where X is defending, provoked, or in an autonomous state, he has the burden of adducing evidence on these issues
• the legal burden is different as it places on the party an obligation the prove the issue that he must prove [usually on the prosecution]

Question 18

What are the standards of proof for criminal and civil law?

Answer 18

Criminal law = beyond reasonable doubt

Civil - the balance of probabilities

Question 19

What is the standard of proof for the accused if the shift of the legal burden occurs?

Answer 19

balance of probabilities

Question 20

What happens if a judge misdirects the jury in terms of the S.O.P’s?

Answer 20

• A misdirection can undermine a subsequent conviction
• Miller v Minister for Pensions [1947] 2 All ER 372 = “Proof beyond a reasonable doubt is not proof beyond a shadow of a doubt”