Law of Evidence & Proof Flashcards
Woolmington principle: presumption of innocence
The burden of proof lies with the prosecution in relation to all of the elements of the offence. 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, or Woolmington 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. 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.
“Evidential burden” on 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.
- Exceptions
There are exceptions to the Woolmington principle.
- Insanity
- 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
- Woolmington may not apply: “Public welfare offences”
“strict liability” offences, which may be seen as sitting outside the Woolmington principle, as opposed to a true exception. 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.
- Discharging burden of proof
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
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”
“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 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.
Balance of Probabilities
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.
