Guilty until proven innocent: is it fair to reverse the onus of proof?

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‘Innocent until proven guilty’ – also known as the ‘presumption of innocence’ – is a cornerstone of our legal system; but did you know that the government has the power to undermine it?

The common law tradition that we inherited from Britain means that a person is presumed innocent in the eyes of the law until and unless the prosecution can prove their guilt.

It has been described as the “golden thread” that any individual could rely on.

The famous case of Woolmington entrenched that principle by stating:

“no matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of common law of England and no attempt to whittle it down can be entertained.”

But this fundamental protection is subject to the power of parliament, and Australian politicians have used this power to chip away at the presumption.

Governments have created offences where, instead of the prosecution having to prove guilt, the person who is accused must prove their innocence.

This is known as “reversing the onus of proof”.

Let’s have a brief look at just a few laws where the onus of proof has been reversed:

Deemed drug supply in NSW

Deemed supply is where person is charged with drug supply simply because of the quantity of drugs found in their possession.

Before this law came into effect, it was often more difficult for the prosecution to prove that a person was supplying drugs rather than just having them in his or her possession for  personal use.

But now, if a person possesses more than the ‘traffickable quantity’ of drugs, they can be charged with drug supply and will need to prove that the drugs were possessed for something other than supply.

The traffickable quantity is not as much as you might think; for example, having more than 0.75 grams of MDMA (ecstacy) in your possession is enough for you to be charged with supply – which can be as few as 2 or 3 tablets.

Goods in custody laws in NSW

If police reasonably suspect that a person’s property is stolen or otherwise unlawfully obtained, the person will then need to prove that it was in fact lawfully derived.

This might be difficult, for example, if the person has not retained the receipt, or if the person who gave them the item is no longer around.

Anyone who cannot prove that the goods were lawfully obtained faces up to 2 years imprisonment.

Travelling to “declared areas” overseas

Under ‘foreign fighters legislation’ that was introduced last year, people who travel to certain areas of Syria and Iraq will now have to prove that they are not involved in terrorist activity.

Unless they can prove their innocence, they will be presumed to be involved in terrorism.

The offence is punishable by a maximum penalty of 10 years imprisonment.

Proposed protesting laws WA

Legislation that has been proposed by the Western Australian government seeks to crack down on protesters who chain themselves to fences or machinery and obstruct workers or management on site from getting their jobs done.

The new offence ‘physically preventing lawful activity’ also comes with a reversed onus of proof meaning that it will be up to those charged to prove they didn’t have the intention of preventing lawful activity.

Valueless cheques in NT

In the Northern Territory, it is an offence to attempt to use a valueless cheque.

Normally, fraud offences require the prosecution to prove an intention to act dishonestly; but for this offence, it is up to the defendant to prove that they had reasonable grounds for believing that the cheque would be paid, and that they had no intention to defraud.

Unexplained wealth laws

These new laws mean that if a law enforcement agency happens to notice a person who appears to live beyond their means, they could be in trouble.

The prosecution does not need to prove that a person obtained their wealth illegally; the accused person must instead show that they acquired their wealth legally.

If not, they may be ordered by the court to pay an amount that is equal to any wealth they own if they can’t prove was obtained legally, and may face harsh criminal penalties.

How are these laws justified?

The main reason for these laws is to make it easier for people to be found guilty of certain crimes. Police argue that without such laws, they would find it more difficult to prosecute people.

The Australian Law Reform Commission believes that reversing the onus of proof is justifiable in some cases, but not all.

On the other hand, many groups including Civil Liberties Australia argue that reversing the onus is dangerous because it leads to more people who are innocent being found guilty – especially those who do not have the money to fight against a well-resourced prosecution.

Such groups say that many will end up pleading guilty because they simply cannot prove their innocence, or cannot afford to prove their innocence, and that the laws give the state too much power.

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About Ugur Nedim

Ugur Nedim is an Accredited Specialist Criminal Lawyer and Principal at Sydney Criminal Lawyers®, Sydney’s Leading Firm of Criminal & Traffic Defence Lawyers.

3 Comments

  1. Debra Engel

    You left one major government rip off of all time.
    Traffic infringements. Greatest money spinner for a private corporation in history.
    Guilty even if you weren’t driving.

  2. kevin

    In Australia, if a child accuses a man of a sexual crime, that man must prove his innocence. Many man rot in jail because of this.

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