Law of Evidence and Proof Flashcards
Woolmington principle:
presumption of innocence
The fundamental principle in criminal law is the presumption of innocence, known as the “Woolmington 1 .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 Woolmington2 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 Woolmington3 principle), or Woolmington4 may be seen simply to not apply.
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 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
There are exceptions to the Woolmington5 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).
Woolmington may not apply: “Public welfare offences”
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 Woolmington6 principle, as opposed to a true exception.
