Unit 1 - Burden and standard of proof (BSB 11)

Question 1

Legal Burden

Answer 1

A burden of proof, the requirement to
prove an element of your case to a
prescribed standard. Standard varies
between prosecution and defence

Question 2

Standard of Proof

Answer 2

The degree to which proof must established
by a party bearing a burden of proof.

Question 3

Standard to discharge legal burden:

a) Where prosecution bears legal
burden =

Answer 3

 beyond reasonable
doubt;

Question 4

Standard to discharge legal burden:

b) Where accused bears legal burden =

Answer 4

balance of probs.

Question 5

In every case if you have a legal burden to prove a fact in issue you have the evidential
burden of “passing the judge” with the same evidence

Answer 5

(EXCEPT SELF-DEFENCE –LEGAL + EVIDENTIAL BURDEN detach from each other)

Question 6

If the evidential burden on a particular issue is borne by the prosecution =

Answer 6

it is discharged by the adduction of sufficient evidence to justify as a possibility a finding by the tribunal of fact that the legal burden on the same issue has been discharged, in other words ‘such evidence as, if believed and if left uncontradicted and unexplained, could be accepted by the jury as proof’

Question 7

Evidential burden is discharged by adduction of sufficient evidence to justify as a possibility a finding by the tribunal of fact that the legal burden on the same issue has been discharged

(i.e.: such evidence as, if believed and if left uncontradicted & unexplained, could be accepted by the jury as proof).

Answer 7

If evidential burden is discharged = tribunal of fact will determine if legal burden discharged; OR

If evidential burden not discharged = will fail on that issue, judge will withdraw issue from the jury.

Question 8

If the accused bears both the evidential and the legal burden on a particular issue, for example, insanity, the evidential burden is discharged by the adduction of such evidence as might satisfy the jury on the probability of that which the accused is called upon to establis

Answer 8

• If the accused bears the evidential but not the legal burden on a particular issue, for example, self-defence, the evidential burden is discharged by the adduction of such evidence as ‘might leave a jury in reasonable doubt’

Question 9

Incidence of Legal Burden: General rule

Answer 9

the prosecution bear the legal burden of proving all the elements in the offence necessary to establish guilt

Question 10

Does P bear all elements of the legal burden, even if this involves proving negative averments?

Answer 10

Yes

The prosecution bear the burden of proving all the elements in the offence, even if this involves proving negative averments. Thus, in a case of rape the prosecution bear the burden of proving that the complainant did not consent (Horn (1912) 7 Cr App R 200).

Similarly, the prosecution bear the burden of proving absence of consent on a charge of assault

Question 11

General rule about P having the legal burden: There are only three categories of exception to the general rule as laid down in Woolmington v DPP [1935] AC 462:

Answer 11

(a) insanity;
(b) express statutory exceptions; and
(c) implied statutory exceptions

Question 12

Exception in Case of Defence of Insanity

Answer 12

If the accused raises the defence of insanity, the accused will bear the burden of proving it (on a balance of probabilities)

Question 13

Criminal Procedure (Insanity)
Act 1964, s6

Answer 13

Insanity

If accused is charged with murder,
and raises one of two issues:

(a) Insanity; OR

(b) Diminished Responsibility

P can adduce evidence to disprove
either contention but must do so
BRD

D only needs to prove either on BOP

Question 14

Insanity: If an accused is alleged to be under a disability rendering the accused unfit to plead and stand trial on indictment, the issue may be raised by either the prosecution or defence

Answer 14

P contends accused is under
disability and this is disputed by D
then it must be proved BRD by P

D contends accused is under
disability and this is disputed by P
then it must be proved on BOP by D

Question 15

Express Statutory Exceptions
(Diminished Responsibility)

Answer 15

the onus is on the defence to prove it on a balance of probabilities

Question 16

Express Statutory Exceptions
(Diminished Responsibility)L who should rais this?

Answer 16

• Section 2(2) leaves it to the defence to decide whether the issue of diminished responsibility should be raised; if, therefore, the judge detects evidence of diminished responsibility but the defence do not raise the issue, the judge is not bound to direct the jury to consider the matter, but, at most, should in the absence of the jury draw the matter to the attention of the defence so that they may decide whether they wish the issue to be considered by the jury

Question 17

impact of Human Rights Act 1998 on burden of proof

Answer 17

Any reverse onus provision is open to challenge on the basis of incompatibility with the ECHR, Article 6(2), which provides that ‘everyone charged with a criminal offence shall be presumed innocent until proved guilty according to the law’

Question 18

impact of Human Rights Act 1998 on burden of proof

Relevant principles, Lord Bingham

Answer 18

The overriding concern = a trial should be fair, including fundamental right of presumption of innocence.

*the court should focus on the particular circumstances of the case and strike a reasonable balance between the general interest of the community and the protection of the fundamental rights of the individual. *

The effect of any presumption adverse to D must be
i. Reasonable; and
ii. Proportionate

Question 19

impact of Human Rights Act 1998 on burden of proof

‘Proportionality’/reasonableness must be considered. Will include factors:

Answer 19

a) the opportunity given to D to rebut the presumption;
b) maintenance of the rights of the defence;
c) flexibility in application of the presumption;
d) retention by court of a power to assess the evidence;
e) importance of what is at stake;
f) the difficulty which a prosecutor may face in the absence of a
presumption

Question 20

In relation to numerous common-law and statutory defences, however, the evidential burden is on the defence, and, if it is discharged so that the defence in question is put before the jury, the legal burden is then on the prosecution to disprove such defence.

Answer 20

Although it is said in these cases that the evidential burden is on the defence, that burden will be discharged whenever there is sufficient evidence in relation to the defence to leave it to the jury; the evidence may be adduced by the defence (or elicited by them in cross-examination), or it may be given by a prosecution witness (or a co-accused) giving evidence-in-chief or it may be given in any other way

Question 21

Duress

Answer 21

• The Crown are not called upon to anticipate a defence of duress and disprove it in advance, but if the accused places before the court such material as makes duress a live issue, fit and proper to be left to the jury, it is for the Crown to disprove that defence in such a manner as to leave in the jury’s mind no reasonable doubt that the accused cannot be absolved on the grounds of the alleged compulsion

Question 22

Alibi

Answer 22

It is for the prosecution to negative the alibi, it is the clear duty of the judge to give such a direction if there is a danger of the jury thinking that an alibi, because it is called a defence, raises some burden on the defence to establish it

• It is a common and good practice to give such a specific and additional direction in any event
• In Mussell [1995], it was held that a special direction is necessary if the nature of the alibi is that the accused was at a specific place elsewhere, raising the question why the accused did not call witnesses in support, but is unnecessary if the evidence amounts to little more than a denial that the accused committed the crime.

Question 23

Standard of proof

Answer 23

means the degree to which proof must be established by a party bearing a burden of proof.

Question 24

Standard of proof - The standard required

Answer 24

The standard required of the prosecution before the tribunal of fact can find the accused guilty is proof such that the jury are sure of the accused’s guilt.

• This means that the jury must be sure on all the evidence and does not mean that a single item of evidence will not be admissible unless it is capable, by itself, of proving the case against the accused

Question 25

Standard of proof - duty of the judge

Answer 25

• It is the duty of the judge in the summing-up to make it clear to the jury what standard of proof the prosecution are required to meet.

Question 26

definition of proof on a ‘balance of probabilities’

Answer 26

‘If the evidence is such that the tribunal can say: “We think it more probable than not”, the burden is discharged, but, if the probabilities are equal, it is not