The Presumption of Innocence and Reverse Burdens: A Balancing Act

Cambridge Law Journal, Vol. 66, No. 1, p. 142, 2007

University of Queensland TC Beirne School of Law Research Paper No. 07-08

32 Pages Posted: 9 Aug 2007

See all articles by David A. Hamer

David A. Hamer

The University of Sydney - Faculty of Law

Abstract

Courts have found some reverse burdens compatible with the presumption of innocence, while rejecting others. But the principles distinguishing the compatible from the incompatible have not been clearly stated. This article seeks to bring greater predictability to the law by identifying the relevant factors, and placing them in a principled and clearly structured framework. While shifting the balance, reverse burdens must maintain proportionality between the defendant's right to avoid erroneous conviction and the community's need for law enforcement. The injustice of an erroneous conviction - and the defendant's right to avoid it - is greater for more serious offences and where the reverse burden operates on the gravamen of the offence. Even where an offence poses a severe threat to society, courts will be reluctant to uphold a reverse burden, increasing the risk of erroneous conviction, unless such an error would not inflict too grave an injustice on the defendant. In determining proportionality regard must be had to the ease or difficulty that either side would have in discharging the burden placed upon them, but again, difficulty of prosecutorial proof will not justify a reverse burden where an erroneous conviction would constitute a serious injustice.

Suggested Citation

Hamer, David A., The Presumption of Innocence and Reverse Burdens: A Balancing Act. Cambridge Law Journal, Vol. 66, No. 1, p. 142, 2007, University of Queensland TC Beirne School of Law Research Paper No. 07-08, Available at SSRN: https://ssrn.com/abstract=1005784

David A. Hamer (Contact Author)

The University of Sydney - Faculty of Law ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

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