Onus and Standard of Proof PDF

Preview

Summary

Onus and Standard of Proof...

Description

1.7 - Onus and Standard of Proof1 1.7.1 - Bench Notes Summary of Uniform Evidence Act Provisions Section 141(1) provides that the court is not to find the case of the prosecution proved unless it is satisfied that it has been proved beyond reasonable doubt. Section 141(2) provides that the court is to find the case of a defendant proved if it is satisfied that the case has been proved on the balance of probabilities. Change and Continuity The UEA adopts the common law rules in respect of the standard of proof in criminal proceedings. The UEA does not affect the law in respect of the presumption of innocence or onus of proof.

Presumption of Innocence 1.

At common law, a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law (Woolmington v DPP [1935] AC 462; Howe v R (1980) 32 ALR 478).

2.

The presumption is not that the accused is not guilty. It is that the accused is innocent (R v Palmer (1992) 64 A Crim R 1).

3.

The presumption of innocence has been enshrined in s25(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic).

4.

The presumption of innocence is only relevant to the accused. It is a misdirection to tell the jury that witnesses are presumed to be innocent (Howe v R (1980) 32 ALR 478).

Onus of Proof Offences 5.

Except for limited statutory exceptions, in criminal trials the onus of proving the accused’s guilt always lies on the prosecution. Accused people do not need to prove their innocence (Woolmington v DPP [1935] AC 462; He Kaw Teh v R (1985) 157 CLR 523; Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249).

6.

If a statute is silent as to who bears the onus of proving an offence, it is presumed that it will be the prosecution (Chugg v Pacific Dunlop

1

This document was last updated on 1 July 2013.

1

Ltd (1990) 170 CLR 249; Stingel v R (1990) 171 CLR 312; Czerwinski v Hayes (1987) 26 A Crim R 213).

Defences 7.

Unless the onus is placed on the accused by statute, the prosecution will also bear the onus of disproving any defences that arise as issues in a trial (R v Youssef (1990) 59 A Crim R 1; Zecevic v DPP (1987) 162 CLR 645).2

8.

Where relevant, the prosecution must therefore prove that the accused’s actions were not:

9.



Accidental (Woolmington v DPP [1935] AC 462; Griffiths v R (1994) 125 ALR 545);



Involuntary as a result of a state of sane automatism (Bratty v AG for Northern Ireland [1963] AC 386; Ryan v R (1967) 121 CLR 205; R v Falconer (1990) 171 CLR 30);



A result of duress (R v Bone (1968) 52 Cr App R 546; R v Gill [1963] 1 WLR 841; R v Lawrence [1980] 1 NSWLR 122; Van den Hoek v R (1986) 161 CLR 158);



Formed without the required state of mind due to intoxication (R v O'Connor (1980) 146 CLR 64; R v Coleman (1990) 19 NSWLR 467);



Provoked (Stingel v R (1990) 171 CLR 312; Moffa v R (1977) 138 CLR 601);3



Committed in self-defence (Viro v R (1978) 141 CLR 88; Zecevic v DPP (1987) 162 CLR 645);



Done in an honest and reasonable belief in the existence of a state of affairs which, had it existed, would have made the acts innocent (He Kaw Teh v R (1985) 157 CLR 523).

The prosecution only needs to disprove a defence if there is evidence, or other relevant material, which gives rise to that defence (R v Lobell [1957] 1 QB 547; Bullard v R [1957] AC 635; R v Howe (1958) 100 CLR 448; Bratty v AG for Northern Ireland [1963] AC 386; Spautz v Williams [1983] 2 NSWLR 506).

2

The one exception to this rule at common law is the defence of “insanity”, which the accused is required to prove on the balance of probabilities (M’Naghten’s Case (1843) 8 ER 718; Sodeman v R (1936) 55 CLR 192). In Victoria, the defence of insanity was abrogated by the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, and replaced with the statutory defence of mental impairment. See Mental Impairment: Bench Notes for further information. 3

Provocation is no longer a partial defence to murder (Crimes Act 1958 s3B). This provision applies to offences committed on or after 23 November 2005.

2

10. The prosecution will need to disprove a defence if there is evidence on which a reasonable jury could decide the issue favourably to the accused, no matter how weak or tenuous the judge considers that evidence to be (R v Youssef (1990) 50 A Crim R 1; Zecevic v DPP (1987) 162 CLR 645; R v Kear [1997] 2 VR 555). 11. The evidence that raises a defence need not have been given by the defence. It is possible for the prosecution evidence to disclose facts which might give rise to a defence (see, e.g., R v Bonnick (1977) 66 Cr App R 266; R v McDonald [1991] Crim LR 122). 12. If the evidence discloses the possibility of a defence, the judge must instruct the jury that the prosecution needs to disprove that defence, whether or not the defence was raised by the accused (Zecevic v DPP (1987) 162 CLR 645).

Exceptions and Provisos 13. Some statutory offences are stated to be subject to certain qualifications. Whether the onus is on the accused to prove facts that would bring his or her case within the scope of such a qualification, or on the prosecution to disprove the existence of such facts, will depend on how the provision is construed: 

If the qualification is part of the definition of the grounds of liability (known as a “proviso”), the onus of proof will be on the prosecution to prove that the proviso does not apply.



If the qualification is a new matter, which does not form part of the primary grounds of liability, but is a special exception or condition defeating or answering liability that otherwise exists (known as an “exception”), the onus of proof will be on the party seeking to prove the exception (Darling Island Stevedoring & Lighterage Co Ltd v Jacobsen (1945) 70 CLR 635; Barritt v Baker (1948) VLR 491; Dowling v Bowie (1952) 86 CLR 136; Vines v Djordjevitch (1955) 91 CLR 512).

14. Although not determinative, the form of the provision is an important consideration in deciding whether an offence is subject to a “proviso” or an “exception”, and who bears the onus of proof: 

If the qualification exists in a single proposition with the definition of the grounds of liability, it is likely that it is a “proviso”, and that the onus of proof will be on the prosecution;



If the qualification exists in a distinct provision from that which defines the grounds of the liability, it is likely that it is an “exception”, and that the onus of proof will be on the accused (Darling Island Stevedoring & Lighterage Co Ltd v Jacobsen (1945) 70 CLR 635; Dowling v Bowie (1952) 86 CLR 136; Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249).

15. However, while the form of the language may provide assistance,

3

ultimately the question is to be determined upon considerations of substance rather than form (Dowling v Bowie (1952) 86 CLR 136; Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249). 16. The question is whether it is possible to discern a legislative intention to impose upon the accused the ultimate burden of bringing his or her case within the scope of the qualification (DPP v United Telecasters Sydney Ltd (1990) 168 CLR 594; Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249). 17. This intention may be discerned from express words or by implication (Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249; R v Edwards [1975] QB 27; R v Hunt [1987] AC 352). 18. It may be possible to discern an intention to impose the onus on the accused if legislation prohibits an act from being done unless it is: 

Committed in specified circumstances; or



Committed by people of a specified class or with specified qualifications; or



Committed with the licence or permission of specified authorities (Darling Island Stevedoring & Lighterage Co Ltd v Jacobsen (1945) 70 CLR 635; R v Edwards [1975] QB 27; R v Hunt [1987] AC 352; Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249).

19. If the qualification relates to a matter that is peculiarly within the knowledge of the accused, that provides a strong indication that it is an exception which the accused will bear the onus of proving (Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249; Darling Island Stevedoring & Lighterage Co Ltd v Jacobsen (1945) 70 CLR 635; DPP v United Telecasters Sydney Ltd (1990) 168 CLR 594; R v Douglas [1985] VR 721).

Standard of Proof 20. If the onus of proof is on the prosecution, the court is not to find the prosecution case proved unless it is satisfied that it has been proved beyond reasonable doubt (Evidence Act 2008 s141(1)). 21. If the onus of proof is on the accused, the court is to find the case of an accused proved if it is satisfied that the case has been proved on the balance of probabilities (Evidence Act 2008 s141(2)). 22. Section 141 preserves the position at common law (see, e.g., Woolmington v DPP [1935] AC 462; Thomas v R (1960) 102 CLR 584; La Fontaine v R (1976) 135 CLR 625; Chamberlain v R (No 2) (1984) 153 CLR 521; Hoch v R (1988) 165 CLR 292; R v Falconer (1990) 171 CLR 30).

4

Proof Beyond Reasonable Doubt 23. The standard of “proof beyond reasonable doubt” can be compared with proof on the “balance of probabilities”, which is the standard of proof that applies in: 

Civil cases (Miller v Minister of Pensions [1947] 2 All ER 372; Malec v JC Hutton Pty Ltd (1990) 169 CLR 638);



Cases in which the onus is placed on the accused (Evidence Act 2008 s141(2); Sodeman v R (1936) 55 CLR 192); and



Determining the jurisdiction of the court (Thompson v R (1989) 169 CLR 1; Ahern v R (1988) 165 CLR 87).

24. The prosecution must prove all of the elements of the offence beyond reasonable doubt (Thomas v R (1960) 102 CLR 584; La Fontaine v R (1976) 135 CLR 62; Van Leeuwen v R (1981) 55 ALJR 726; Chamberlain v R (No 2) (1984) 153 CLR 521; Hoch v R (1988) 165 CLR 292; R v Falconer (1990) 171 CLR 30). 25. The prosecution must also disprove beyond reasonable doubt any defences that are raised as issues in a trial (R v Youssef (1990) 59 A Crim R 1; Zecevic v DPP (1987) 162 CLR 645). 26. The jury does not need to be satisfied beyond reasonable doubt of the existence of each and every fact relied upon to prove an element, or disprove a defence, as long as they are satisfied that the accused’s guilt has been proven beyond reasonable doubt (Shepherd v R (1990) 170 CLR 573 per Dawson J). 27. However, a collateral fact (which is not an element of the crime) will need to be proved beyond reasonable doubt if, without it, the whole prosecution case would fail (R v Dener [1969] NZLR 753). 28. In addition, a jury cannot draw an inference of guilt from a fact unless, at the end of the trial, they are satisfied of the existence of that fact beyond reasonable doubt (Shepherd v R (1990) 170 CLR 573; Chamberlain v R (No 2) (1984) 153 CLR 521; Knight v R (1992) 175 CLR 495; R v Schonewille [1998] 2 VR 625). See Bench Notes: Circumstantial Evidence for further information. 29. It is wrong for the jury to consider each item of evidence separately and eliminate it from consideration unless satisfied beyond reasonable doubt. The evidence must be considered together at the end of the trial. One piece of evidence may resolve the jury’s doubts about another (Chamberlain v R (No 2) (1984) 153 CLR 521). 30. If, upon review of all the evidence, the jury are left in reasonable doubt about whether the prosecution case has been made out, or are satisfied that the accused’s case has been made out, they must acquit (Woolmington v DPP [1935] AC 462).

5

Meaning of “Beyond Reasonable Doubt” 31. “Beyond reasonable doubt” is a composite expression, not intended to be broken into its component parts or analysed. It is designed to convey an accurate impression of the high standard of proof that the prosecution must satisfy. It is not possible to define each of the three words separately, because the phrase means more than the mere sum of its parts (R v Pahuja (1987) 49 SASR 191 per Cox J; R v Chatzidimitriou (2000) 1 VR 493 per Callaway JA). 32. The jury itself has the task of determining what a reasonable doubt is, according to standards which the jurors adopt (R v Chatzidimitriou (2000) 1 VR 493). 33. A reasonable doubt is one that a jury which is properly aware of its responsibilities (i.e. which heeds the judge’s directions, carefully considers the evidence, and eschews fanciful or unreal possibilities) is prepared to entertain at the end of its deliberations. The jury has the task of determining what is reasonable in the circumstances (Green v R (1971) 126 CLR 28; R v Pahuja (1987) 49 SASR 191; R v Neilan [1992] 1 VR 57; R v Chatzidimitriou (2000) 1 VR 493). 34. The test is a subjective one and applies to each individual juror. It is the duty of each juror to make up his or her own mind about whether the evidence that the accused committed the relevant offence is so strong as to convince him or her personally of the accused’s guilt (R v Southammavong; R v Sihavong [2003] NSWCCA 312; Green v R (1971) 126 CLR 28; Thomas v R (1960) 102 CLR 584; Walters v R (1969) 2 AC 26). 35. Although in England the term “beyond reasonable doubt” is seen to be synonymous with the term “sure” (see, e.g., R v Hepworth and Fearnley [1955] 2 QB 600; R v Onufrejczyk [1955] 1 QB 388), this is not the case in Australia (Thomas v R (1960) 102 CLR 584; Dawson v R (1961) 106 CLR 1; R v Punj [2002] QCA 333; R v Cavkic (No 2) [2009] VSCA 43; Benbrika v R [2010] VSCA 281). 36. Proof “beyond reasonable doubt” cannot be expressed mathematically (e.g. as a 99% certainty). Such an approach incorrectly implies that the jury should disregard any doubts that exist once the arbitrarily fixed percentage or rate is reached (R v Cavkic [2005] VSCA 182).

Charging the Jury Requirements 37. In all criminal cases the judge is required to direct the jury, in clear language, that the onus of proof is on the prosecution (Thomas v R (1960) 102 CLR 584; La Fontaine v R (1976) 136 CLR 72; Bartho v R (1978) 19 ALR 418; Van Leeuwen v R (1981) 36 ALR 591; R v Schonewille [1998] 2 VR 625).

6

38. The judge must instruct the jury that the prosecution has to prove the accused’s guilt beyond reasonable doubt, and that it is for the jury to determine whether this has been done (R v Neilan [1992] 1 VR 57; R v Chatzidimitriou (2000) 1 VR 493). 39. The judge should tell the jury that the way in which the prosecution must prove the accused’s guilt beyond reasonable doubt is by establishing the elements of the offence to that standard. The accused is entitled to the benefit of any reasonable doubt in the juror’s minds (R v Reeves (1992) 29 NSWLR 109; R v McNamara 1/12/1998 Qld CA). 40. The charge must not relieve the prosecution of the burden of proving every element of the offence beyond reasonable doubt. Even if there is no evidence concerning a particular element, and that element is not contested by the defence, the judge must not tell the jury that they do not need to consider that element. Every element must be proven beyond reasonable doubt (Griffiths v R (1994) 125 ALR 545). 41. If the evidence discloses the possibility of a defence, the judge must instruct the jury that the prosecution must also disprove that defence beyond reasonable doubt (Zecevic v DPP (1987) 162 CLR 645). 42. There is no obligation on judges to tell the jury about the “presumption of innocence”, or to use that term in their charge, as long as they give a strong and clear direction about the onus and standard of proof. However, it is preferable to tell the jury about the presumption, as it will assist them to better appreciate the onus which lies upon the prosecution (R v ALP [2002] VSCA 210; R v Henderson [1999] VSCA 125; R v Palmer (1992) 64 A Crim R 1; R v Reeves (1992) 29 NSWLR 109. See also Jury Directions Act 2013 s21).

Conventional Directions Onus on the Prosecution 43. It is best to address the onus and standard of proof at the start of the judge’s summing-up (as well as at the beginning of the trial – see Introduction: Preliminary Directions) (R v Ching [1976] Crim LR 687). 44. It is for the trial judge to select appropriate language to communicate the relevant principles concerning the onus and standard of proof (R v Palmer (1992) 64 A Crim R 1; Walters v R [1969] 2 AC 26; R v Carter [2009] VSCA 272). 45. The nature of the directions to be given about the onus and standard of proof will depend upon the particular circumstances of the case, the evidence relied upon by the prosecution and defence, and the way in which that evidence is discussed and commented upon by the trial judge (Miles v R [2000] WASCA 364 per Murray J; Salmon v R [2001] WASCA 270). 7

46. In most cases, the plainest way to direct the jury about the standard of proof is simply to tell them that they must be satisfied beyond reasonable doubt (Thomas v R (1960) 102 CLR 584; La Fontaine v R (1976) 135 CLR 625). 47. Judges should instruct the jury that they must not search legal dictionaries or texts in an attempt to elaborate the meaning of this phrase (Martin v R [2010] VSCA 153; Juries Act 2000 (Vic) s78A).4 48. It is good practice to also convey to the jury: 

That the criminal standard of proof is the highest standard of proof known to the law;



That the criminal standard of proof can be contrasted with the lower standard of proof applicable in civil proceedings (proof on the balance of probabilities); and



That it is therefore not enough for the prosecution to show that the offence charged might have been committed, or even that it is more likely than not to have been committed. Rather, the prosecution must satisfy the jury of each element of the offence charged beyond reasonable doubt (R v WG [2010] VSCA 34. See also Green v R (1971) 126 CLR 28; La Fontaine v R (1976) 136 CLR 62; Van Leeuwen v R (1981) 55 ALJR 726; R v Neilan [1992] 1 VR 57).5

49. If a defence is in issue, the jury must specifically be told that it must be disproved by the prosecution. It is not sufficient simply to give a general direction about the onus and standard of proof at the beginning of the charge, and not relate it to any defences in issue (R v Bone (1968) 52 Cr App R 546; R v Reeves (1992) 29 NSWLR 109).

Onus on the Accused 50. If the burden of proof lies with the accused, the jury must be told that the standard of proof is proof on the balance of probabilities (Evidence Act 2008 s141(2); Sodeman v R (1936) 55 CLR 192; Taylor v Ellis [1956] VLR 457; R v Hunt [1987] AC 352). 51. In any case where the onus is placed on the accused, the judge should direct the jury that: 

It is for them to decide if the accused has proved the matter;

4

Although judges may not need to give this direction, in Martin v R [2010] VSCA 153 it was held that until the precise scope of Juries Act 2000 s78 has been determined, it would be “wise” to do so. See Bench Notes: Decide Solely on the Evidence for further information concerning Juries Act 2000 (Vic) s78A. 5

While it is good practice to convey these matters to the jury, a departure from that practice will not, of itself, signify a miscarriage of justice (R v Carter [2009] VSCA 272; Anderson v R [2010] VSCA 108; Benbrika v R [2010] VSCA 281).

8



The proof required is less than that required of the prosecution to prove the accused’s guilt (i.e. proof beyond a reasonable doubt); and



The onus may be discharged by evidence which satisfies them, on the balance of probabilities, of that whi...