Law of Evidence and Proof Flashcards
The Woolmington Principle
Subject to specific statutory provisions, the burden of proof lies clearly with the prosecution in relation to all of the elements of the offence.
It is the fundamental principle in criminal law. The presumption of innocence.
Practical obligation on the defence
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/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 when the defendant denies doing the act and/or having the necessary mens rea.
It is simply a practical obligation to point to some evidence that casts a REASONABLE DOUBT about the prosecution’s case.
Practical Obligation vs Evidential Burden
“Practical obligation” for situations where the defendant denies doing the actus reus and/or having the necessary mens rea.
“Evidential burden” for where the defendant accepts the facts have been proved but want to use a specific defence. Point to some evidence that provides an explanation.
The prosecution is under no obligation to negate all the possible defences that might be available to a defendant.
Evidential burden re specific defences
Having an evidential burden means that a defence cannot be left to the jury or judge unless it has been made a “live issue” by the defence.
It is not a “burden of proof” and once it has been made a live issue then the prosecution must destroy the defence, because the burden of proof remains with the prosecution.
The ultimate question for the jury is always, “has the prosecution proved its case?”
Exceptions to Woolmington (3)
Exceptions where the legal burden of proof is placed on the defendant, e.g. insanity defence (S23(1) of Crimes Act 1961).
The principle can be overridden by Parliament by express statutory exceptions. Some offence provisions shift the burden of proof for specific offences to the defendant. E.g. S202A(4)(b) - the defendant proves the absence of intent to commit an offence involving bodily injuring.
Occasions when the Evidence Act places the burden of proving a particular issue on one party in relation to the admissibility of evidence. Occasionally this may be the defendant. E.g. S45 re: identification evidence.
Public welfare offences
Woolmington does not apply in public welfare regulatory offences. The purpose of these is to regulate everyday conduct having a tendency to endanger the public.
For these, once the prosecution has proved the actus reus there is no further need to prove mens rea. The burden passes to the defendant to prove a total absence of fault as a defence.
These are “strict liability” offences. They may be seen as sitting outside Woolmington as opposed to a true exception.
Standard of proof
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”
According to the direction from R v Wanhalla
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.”
“Balance of probabilities”
Where the defence is required to prove a particular element 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.
