Law of Evidence and Proof Flashcards
What is the Woolmington Principle?
The fundamental principle in criminal law is the presumption of innocence, known as the “Woolmington principle” This principle establishes that, subject to specific statutory exceptions, the burden of proof lies clearly with the prosecution in relation to all of the elements of the offence.
The Woolmington principle is subject to a number of limitations in both law and practice. The fact that the prosecution bears the ultimate burden of proving the case beyond reasonable doubt does not mean that the defence need not put forward any sort of case at all. In some cases, the defence will have a practical obligation, evidential burden, the burden of proof may be reversed (exceptions to the Woolmington principle), or Woolmington may be seen simply to not apply.
Practical obligation on the defence when burden of proof met
If the prosecution proves facts from which it can be concluded that the defendant committed the act with the requisite mental element, then the defendant has to produce some story or evidence if he or she wants to suggest the conclusion is wrong.
This is not a burden of proof – the defendant does not have to prove anything. It applies where defendants wish to state that they did not do the act or have the necessary mental element, but where they do not wish to put up a particular defence to the charge. It is simply a practical obligation to point to some evidence that suggests a reasonable doubt about conclusions one would otherwise draw from the prosecution case.
“Evidential burden” on defence overview
The defendant may wish to put up a defence to the charge. In presenting its case, the prosecution is under no obligation to negate all the possible defences that might be available to a defendant. Once the basic elements have been proved, it is up to the defendant to point to some evidence that suggests an explanation, such as, for example, that she was acting in self-defence.
Where the defendant wishes to put up a defence to the charge, it is not just a “practical obligation” as discussed above; rather, there is an “evidential burden” on the defendant.
Having an evidential burden means that a defence cannot be left to the jury or the judge unless it has been made a live issue by the defence. It is not a burden of proof, and once it is made a ‘live issue’ then the prosecution must destroy the defence, because the burden of proof remains where that case puts it – with the prosecution. The ultimate question for the jury is always, “has the prosecution proved its case?”
Exceptions to the Woolmington Principle
There are exceptions to the Woolmington principle in which the legal burden of proof is placed on the defendant. The most common example is the defence of insanity (s23(1) of the Crimes Act 1961).
Furthermore, the principle can be overridden by Parliament by express statutory exceptions. Some offence provisions shift the burden of proof of specific defences to the defendant. For example:
• s202A(4)(b) of the Crimes Act makes it an offence to possess any “offensive weapon … in circumstances that prima facie show an intention to use it to commit an offence involving bodily injury …” and then provides a defence where the defendant can prove the absence of any such intent.
There are also occasions when the Evidence Act 2006 itself places the burden of proving a particular issue on one party in relation to the admissibility of evidence, and occasionally this may be the defendant (see, for example, s45 - regarding identification evidence).
Times the Woolmington Principle may not apply
The law has developed in such a way as to include offences where Woolmington is seen simply to not apply – these are known as public welfare regulatory offences. The purpose of such offences is to regulate everyday conduct having a tendency to endanger the public or sections of the public
For these offences, once the prosecution has proved the actus reus there is no further need to prove mens rea and the burden passes to the defendant to prove a total absence of fault as a defence. These are “strict liability” offences, which may be seen as sitting outside the Woolmington principle, as opposed to a true exception.
Discharging burden of proof
Any party bearing a legal burden of proof must discharge this burden to the standard required. In general, where the legal burden is on the prosecution it must be discharged “beyond reasonable doubt”. Any element which the defence bears the burden of proving need only be proved on the “balance of probabilities”.
Beyond reasonable doubt meaning
The courts have traditionally been reluctant to provide any detailed or precise definition of the meaning of “beyond reasonable doubt”.
However, a majority of the Court of Appeal in R v Wanhalla formulated some assistance to juries after reviewing overseas research and models, concluding that juries should be told that a reasonable doubt is “an honest and reasonable uncertainty left in your mind about the guilt of the defendant after you have given careful and impartial consideration to all of the evidence” [at 49].
What the crown must prove for beyond reasonable doubt
R v Wanhalla
“The starting point is the presumption of innocence. You must treat the accused as innocent until the Crown has proved his or her guilt. The presumption of innocence means that the accused does not have to give or call any evidence and does not have to establish his or her innocence.
The Crown must prove that the accused is guilty beyond reasonable doubt. Proof beyond reasonable doubt is a very high standard of proof which the Crown will have met only if, at the end of the case, you are sure that the accused is guilty.
It is not enough for the Crown to persuade you that the accused is probably guilty or even that he or she is very likely guilty. On the other hand, it is virtually impossible to prove anything to an absolute certainty when dealing with the reconstruction of past events and the Crown does not have to do so.
What then is reasonable doubt? A reasonable doubt is an honest and reasonable uncertainty left in your mind about the guilt of the accused after you have given careful and impartial consideration to all of the evidence.”
In summary, if, after careful and impartial consideration of the evidence, you are sure that the accused is guilty you must find him or her guilty. On the other hand, if you are not sure that the accused is guilty, you must find him or her not guilty. ”
Balance of Probabilities meaning
Where the defence is required to prove a particular element, such as insanity, on the balance of probabilities, it must simply show that it is more probable than not. If the probabilities are equal, the burden is not discharged.
