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Criminal Law

General Principles

Onus of Proof

The onus of proof is on the prosecution to establish the defendant’s guilt, and there is no onus on the defendant to establish their innocence. The work of the defence is to undermine the prosecution – whether by establishing in evidence a likely alternate account of events, or by exposing flaws in the prosecution’s case. It is important to note that even if the defence fails to achieve at a high level, merely showing the prosecution to be flawed, then that the prosecution fails to fulfil its onus of proof, and the defendant must be acquitted of the charge. It is therefore possible for a defendant to give no evidence whatsoever, neither to the police nor at trial, and yet to be acquitted. This literally could happen as long as the prosecution’s case is weak without the defendant’s evidence. In reality, however, a weak brief of evidence would not be committed for trial.


This gives rise to two points of note. The first is that the job of the defence, if armed with good evidence on all pertinent issues, is quite easy compared with the prosecution. Therefore the prosecution has an uphill battle even in the simplest of cases and the police must always investigate thoroughly. By implication, any civilian agent or enforcer is wise to keep detailed and contemporaneous notes and to cooperate with any investigating authority as fully as possible, and to be pro-active in gathering evidence on the spot, at the time of any incident.


The other point is the acquittal of a defendant has little meaning compared with a finding of guilt. A person may boast that they were acquitted of a charge, but the grounds on which this can occur may be very tenuous and if sued in a civil trial where the standard of proof is simply the balance of probabilities, then they may well have lost. There is a logical basis – though in no way legally recognised – to say that unless the defence was very robust, the mere fact that a charge was laid may mean more from a purely moral perspective. This is especially so when the jury takes a long time to reach an acquittal. (Making this statement public, however, in relation to any individual matter is unwise and defamatory). Another thing to be aware of is that a civil suit in negligence or trespass could follow an acquittal and result even in exemplary damages being awarded – a potentially costly outcome in spite of there being inadequate proof for a criminal conviction.

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