F3.37 Flashcards
Generally speaking, a party bearing the legal burden on a particular issue will also bear an evidential burden on that issue.
(i) Following this general rule, who will usually bear the legal and evidential burden in relation to all the elements of an offence necessary to establish guilt?
(ii) where the defence bear the legal burden of proving insanity or, BY VIRTUE OF AN EXPRESS OR IMPLIED STATUTORY EXCEPTION, some other issue, who will bear the evidential burden in that regard?
(i) the prosecution.
(ii) the defence.
(although, concerning insanity, in rare and exceptional cases the judge may of his or her own motion raise the issue and leave it to the jury: Thomas [1995] Crim LR 314).
(i) In relation to numerous COMMON LAW defences, where the evidential burden is discharged by the defence, who has the legal burden?
(ii) how may the evidence be adduced to discharge the evidential burden?
(i) On the prosecution to disprove such defence.
(ii) Although it is said in these cases that the evidential burden is on the defence, the evidence may be adduced by the defence (or elicited by them in cross-examination), or it may be given by a prosecution witness (or a co-accused) giving evidence-in-chief or it may be given in any other way (Bullard v The Queen [1957] AC 635).
Where such a defence arises upon the evidence called by any party, then whether or not it has been mentioned by the defence, the judge must leave it to the jury (Palmer v The Queen [1971] AC 814 at p. 823).
What happens where there is no evidence to support the defence on which the accused seeks to rely?
Even where there is no evidence, what must the judge be sure to do (reference to Watson [1992])?
The judge is entitled to withdraw it from the jury.
However, in Watson [1992] Crim LR 434, where D was acquitted of rape, the defence being consent, but convicted of buggery, which he denied, an appeal against conviction was allowed on the grounds that the judge had omitted to direct the jury that accidental penetration would not suffice, notwithstanding that there was no evidence that the penetration, if it had occurred, was accidental. The defences to which the foregoing principles relate are as follows.
