General matters and Burden and Standards of Proof

Question 1

All criminal offences start with a first appearance in which court?

Answer 1

Magistrates Court

Question 2

In all criminal cases, who has the burden of proving that a crime has been committed?

Answer 2

Prosecution

Question 3

What is the difference between an evidential burden and a legal burden (in terms of who the burden falls onto)

Answer 3

The evidential burden falls on the party who must raise the elements, whether elements of the offence or defence.

The legal burden falls on the party who must prove those elements.

Question 4

To what standard of proof must the prosecution prove each element of an offence?

Answer 4

beyond reasonable doubt

Question 5

What are three exceptions to the rule that the burden of proof is on the prosecution?

Answer 5

1. Special defences - D must create reasonable doubt e.g. self-defence
2. Other defences - e.g. diminished responsibility, insanity - legal and evidential burden is on D, only to a standard of probabilities
3. Statute - e.g. D carrying an offensive weapon is guilty unless they prove they had lawful authority or a reasonable excuse

Question 6

When would a defendant not have the burden of proving his defence on a balance of probabilities?

Answer 6

Where it would relieve the prosecution of its burden of proving the crime

Question 7

D has the burden of raising certain defences but once raised, the prosecution has the burden of _________ the defence ________ _ ___________ ______

Answer 7

disproving, beyond a reasonable doubt