Law of Evidence and Proof Flashcards
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.
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……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
The defendant may wish to put up a defence to a charge. In presenting it’s case, the prosecution is under no obligation to negate all the possible defences that might be available to a defendant. Once the basic elements of the charge have been proved, it is up to the defendant to point to some evidence that suggests an explanation, eg self-defence in assault cases. Where the defendant wishes to put up a defence to the charge, it is not just a “Practical Obligation” …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. Once something has been made a live issue by defence, it is on the prosecution to destroy the defence because the burden of proof remains where that case puts it - with the prosecution. The ultimate question for the Judge or Jury is always, has the prosecution proved its case?
Exceptions
There are exceptions to the Woolmington Principle in which the burden of proof is placed on the defendant. The most common example is the defence of insanity. sec.23(1) 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:
sec.202A(4)(b) of the Crimes Act 1961 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 occasion 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, sec.45 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 tendancy 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.
