Law of Evidence and Proof - Burden of Proof

Question 1

What is the woolmington principle?

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Answer 1

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.

Question 2

What is the practical obligation of a presumption of innocence?

Answer 2

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.

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Question 3

Whaty is the “evidential burden”?

Answer 3

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?”

Question 4

Are there exceptions to the woolmington principle?

Answer 4

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

Question 5

Provide an example of an exception to the woolmington principle?

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Answer 5

• 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.

Question 6

Are there any other exceptions to the woolmington principle?

Answer 6

Public welfare offences 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.