In criminal law, there are several legal devises designed to protect the accused, one of which is the presumption of innocence, or the traditional rule that all suspects are treated as innocent until proven guilty.

Yen Hoang

Tute # 4

27/5/2004

In criminal law, there are several legal devises designed to protect the accused, one of which is the presumption of innocence, or the traditional rule that all suspects are treated as innocent until proven guilty. Among other ends, the presumption of innocence embodies society’s commitment to the notion that, until the matter is settled in the court of law, an accused is just as entitled to the rights afforded by the law to legal persons as is his accuser. In this sense, the presumption of innocence has several consequences. In forcing jurors and others members of the court to suspend their judgment until all the evidence have been heard and all arguments have been made, the presumption of innocence ensures that all criminal trials are taken seriously. Furthermore, as soon as a person is cast the role of the accused, he is put in a situation of a suspicious nature. Thus, it may be unavoidable that some jurors will enter his trial with some bias as to his innocence, and that some jurors will engage in estimating his probable guilt during the course of the trial. For these circumstances, the presumption of innocence is a reminder to all members of the court that this is not how a criminal procedure ought to be.

Even though its value to the legal process as introduced seems to be a very normative one, the presumption of innocence is also of great practical importance in structuring the procedure of a trial – more specifically, in allocating the burden of proof.

It is a general rule in criminal law that, while the accused is presumed to be innocent, the prosecution bears the legal burden of proving guilt. In this sense, the presumption of innocence expresses the incidence of the prosecution’s burden of proof, his obligation to establish his case, the defendant’s guilt, beyond a reasonable doubt. To say that an accused is presumed to be innocent is to effectively say that the prosecution must prove his guilt. It is important to note that, while the term presumption can refer to a “conclusion that may or must be drawn if another fact is proved,” the presumption of innocence has no factual effect; it is not a separate piece of evidence, an item itself that must be put to the jury. To treat the presumption of innocence in such a way is to propose that it states some intrinsically likely proposition, which it certainly does not. Rather, the only tangible effect of the presumption of innocence is the allocation of the burden of proof.

Before we explore how the force of the presumption of innocence is delivered through the allocation of proof, however, it is helpful to look at an instance where the court refuses to apply a common law presumption to cast a legal burden of proof on the accused. According to Cross and Tapper, there are two senses of burden, the burden of proving facts or the prosecution’s legal burden, and the burden of adducing evidence or evidential burden. Woolmington v DPP demonstrates well the relationship between legal and evidential burden, or rather the court’s insistence on the distinction between them, using the terminology of presumption. In rejecting the trial judge’s direction to the jury that killing is presumed to be murder unless proven otherwise and that it is the defendant’s burden to prove his claim of self-defense, provocation, or accident, and in asserting that except for insanity and statutory defense, “there was no burden laid on the prisoner to prove his innocence and that it was sufficient for him to raise a doubt as to his guilt,” the House of Lords in Woolmington rejects the old notion that the presumption of intention applies until it is proven otherwise, and moreover, specifies where the burden of proof lies. But even though Woolmington rejects the application of the presumption of intention for the purpose of allocating burden, or more specifically, to cast a legal burden on the accused, it does this in the service of the presumption of innocence. In this sense, we can see how the effect of the presumption of innocence is the allocation of proof.

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In addition to stating that it is the prosecution’s burden to prove guilt, to prove beyond a reasonable doubt that the killing was intentional and unprovoked, Woolmington also makes it clear that this does not mean that it is also the prosecution’s burden to bring before the jury issues like self-defense and provocation. Rather, if there is to be hope of an acquittal, it is the defendant’s evidential burden to adduce evidence supporting the existence of these issues, so that doubt as to his guilt is raised. Thus, although it seems that the burden is heavier on the prosecution, having to bear both the legal and evidential burden, the defendant is definitely an active part of the trial. But his participation only extends to bearing evidential burden, and even then, it is only for the defense to raise the issue so that jury may need direction upon it. It is then left for the prosecution to disprove the existence of whatever that issue maybe. Contrary to the suggestion made by Judge Swift in Woolmington, the legal burden of disproving intention, even if the killing is admitted, never shifts to the accused.

In addition to the criteria that Woolmington v DDP sets out for applying presumptions to the allocation of proof, we see another criterion of a similar purpose in Dillon v R. In rejecting the trial court’s and the appellate court’s holding that the prosecution can rely on the “presumption of the lawfulness of official action” to make its case, the Privy Council in Dillon v R rules that the court cannot presume the “existence of facts which are central to the offense” (pg. 5), and that such a presumption must not be used to place the burden of proof on the accused. Such a use would: 1) require of the accused the “notoriously difficult” task of proving a negative; 2) violate the general rule that it is for the prosecution to prove the existence of facts which are central to the offense; and 3) ultimately infringes upon the presumption of innocence.

Even though it is established through Woolmington v DPP and Dillon v R that the legal burden of disproving intention is with the prosecution, and does not shift to the accused, there are exceptions to this rule. Insanity and statutory exceptions, for example, do allow for this “shift”, or rather reversal, in onus in which the defense actually bears the legal burden. A critique for the insanity exception is that it is anomalous and that since all accused merely bears the burden of adducing evidence sufficient to raise a particular defense, there is no reason why someone who pleads insanity should be any worse off. Furthermore, in statutory exceptions where it is explicitly or implicitly directed that the legal burden resides with the accused, the presumption of innocence is clearly breached. This, according to the Canadian Supreme Court, can be justified if the statute serves a social purpose that is valuable enough to override a fundamental right. In Whyte v R, the court finds that the statute in question infringes on the presumption of innocence by requiring the accused to disprove an essential element of his alleged offense – care and control of the car in which he was found while intoxicated. However, because the statute is also found to have an important objective, and that, among other things, in carrying out this objective “it impairs rights and freedom as little as possible” (pg. 14), it is constitutionally valid. One might be worried, however, that if an exception to the strict principle of presumption of innocence, and hence the general rule that the prosecution always bears the burden of proof, can be justified by policy considerations which are based on what seems to be rather vague criteria, then there might be a danger that future legislations will be examined with less scrutiny for how they might infringe defendants’ rights. This analysis of statutory presumption in Whyte v R not only indicates a possible point in law where a departure from the presumption of innocence can be valid, but it also specifies more clearly what constitutes the prosecution’s legal burden. Particularly, it is the prosecution’s duty to prove beyond a reasonable doubt the existence of essential elements of the alleged offense. Since the existence of an essential element points to guilt, requiring the accused to disprove it would effectively require him to disprove his guilt – a blatant infringement of the presumption of innocence.

The fact that this whole analysis is necessary, however, points us to the lack of guidance that surrounds implicit allocation of the burden of proof by statutory provision. Unlike the Ceylon Evidence Ordinance relied on by Jayasena v. Reginam, where the statute explicitly casts a burden of proof on the accused, this casting is only performed implicitly in s. 237(1)(a) of the Criminal Code as cited by Whyte v R. That is, by allowing the “trier of fact to accept as proven that an accused had care or control of a vehicle, an essential element of the offense” (pg.2), the statute implicitly requires the accused to prove the fact that he did not have care or control on the balance of probabilities to avoid conviction. The concern is whether statutes like this one are “capable of being construed as casting the burden upon the accused.” Whyte v R sets some criteria as to how a statute can undermine the presumption of innocence and still be constitutionally valid, but from the cases I have been exposed to, there seems to be little guidance regarding the technicalities as well as the circumstances in English law for implicit allocation of the burden of proof by statutory provision.

Another instance of a departure from Woolmington’s set up of the onus of proof can be found in Jayasena v Reginam, an appellate decision primarily concerned with the burden that the accused bears to prove the fact of self-defense. The court interprets section 105 of the Ceylon Evidence Ordinance, which says that, “When a person is accused of any offense, the burden of proving (my bold) the existence of circumstances bringing the case within any of the general exceptions in the Penal Code, is upon him…”, to mean that the statue imposes on accused the burden of proof for self defense. In order to discharge this burden, the defense must present “such evidence, as if believed, and if left uncontradicted and unexplained, could be accepted by the jury as proof” (pg. 5) Unlike Woolmington, the proof for the defense in this context means proof beyond a reasonable doubt. The Ceylon Court uses such a definition when it refers to the defense’s burden of proving in the terminology of proving facts: “a fact is said to be proved when, after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists” (pg. 3). Unlike the Woolmington decision, where the proving of a fact is the burden of the prosecution, the Ceylon court interprets this to be of the defendant’s, who can discharge it by citing “enough evidence to suggest a reasonable possibility” (pg. 3). The standard here is a possibility of the defense, not a balance of probabilities – which would leave “a reasonable doubt on the mind of the fact as to the guilt of the accused.” Woolmington, furthermore, is marked by a change of English common law regarding the burden of proof from old authorities, while the statute law on which Jayasena is based is deeply embodied in these same old authorities. This is the basis for their distinction.

So far we have only discussed the relationship between the presumption of innocence and the allocation of burden of proof in criminal law. In the context of civil law, several differences are seen. While the burden of proof is fairly fixed in criminal law, and only reverses with statutory exceptions and insanity, it can shift with greater freedom in civil law. In civil litigation, the burden of proof is initially on the plaintiff. However, there are a number of technical situations in which the burden shifts to the defendant – for example, when the plaintiff has made a prima facie case, the burden shifts to the defendant to rebut the plaintiff's evidence. Thus, as Medawar v Grand Hotel Co. demonstrates, upon whom the onus of proof rests depends on the circumstances of the trial. This shifting to and from is often described as shifting of the burden of proof and so it is, but it is really a shifting of the ultimate burden. The ultimate burden is where the ultimate decision of a case depends on the determination of a number of separate issues, the burden on the ultimate issue need to be distinguished from the burden on the separate issues. The Medawar v Grand Hotel, the ultimate issue is whether the relation between the host and the guest was ever created, and if so, when it ceased. The answer to these questions would determine whether it is the plaintiff or the defendant who must prove his opponent’s negligence and liability.

It is important to remember that even though there is a shifting of burden in civil law, the general principle that “he who asserts must prove” is still followed, so that the formal burden of the plaintiff who claims negligence does not shift. Lord Pearson, in Henderson v Jenkins, through clarifying the distinction between evidential and formal burden, says: “If in the course of the trial, there is a set of fact which raises a prima facie inference that the accident was caused by the negligence on the part of the defendants, the issue will be decided in the plaintiff’s favor unless the defendants by their evidence provide some answer which is adequate to displace the prima facie inference” (pg.6). The defendant’s evidence did not meet this standard and was found to be guilty of negligence.

The above analysis of these cases have shown that the relationship between the presumption of innocence and the burden of proof is one of co-servant, helping each other to serve the general goal of allowing the accused the same right and respect as his accuser and the practical purpose of identifying the evidential obligation of each party in a trial. In spelling out the burden of the prosecution, the court advances the purpose of protecting the accused from impossible evidential requirements. In spelling out the burden of the accused, the court ensures that the prosecution is protected from the impossible requirement of anticipating and disproving all the defenses that might or might not break his case. Some might say that by presuming the innocence of the accused, when this presumption does not reflect any intrinsically likely proposition, and placing the difficult task of proving guilt on the prosecution, the court affords too much protection to possible criminals, and thereby, belittles the suffering of their victims. There might be some sympathy so such an argument, however, there is much more force behind our moral obligation to not wrongly convict innocent people. The presumption of innocence as applied through allocating the burden of proof enforces well this commitment.