Law of Evidence & Proof

Question 1

The Woolmington Principle

The burden of proof

Answer 1

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 Woolmington 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.

Question 2

The Woolmington Principle

Practical Obligation on the Defence

If the prosecution proves facts…..

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.

Question 3

Evidential Burden on Defence

Overview - of note

Answer 3

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?”

Question 4

Exceptions to the Woolmington Principle

Answer 4

There are exceptions to the Woolmington principle in which the legal burden of proof is placed on the defendant.

• Defence of Insanity (s23(1) of the Crimes Act 1961)
• Specific statutory exceptions exist (“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.)
• Public welfare regulatory, or ‘strict liability’ offences (prove actus reus only)

Question 5

Discharging burden of proof

Level of proof for prosecution/defence

Answer 5

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”.

Question 6

Beyond Reasonable Doubt

R v Wanhalla

Answer 6

R v Wanhalla

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”

Question 7

Presumption of Innocence

R v Wanhalla

Answer 7

R v Wanhalla

“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 presumption of innocence means that the accused does not have to give or call any evidence and does not have to establish his or her innocence.

Question 8

Balance of Probabilities

Answer 8

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