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Criminal Q&A: Burden and standard of proof



Key Issues

  • The principle from Woolmington v Director of Public Prosecutions is that the burden of proof is on the prosecution to prove the accused’s guilt beyond a reasonable doubt.
  • There is an exception to this principle created by strict liability offences, in which the defendant must prove total absence of fault on the balance of probabilities.
  • There is a presumption that mens rea is required to be proved.
  • This presumption can be rebutted by the wording of the statute, the subject-matter of the enactment, the penalty and stigma of the offence, and judicial precedent.

Common Pitfalls

  • Remember to note the shifting burden and standard of proof, depending on which category a particular offence falls into.
  • It is easy to confuse strict liability offences with implied mens rea offences. Remember that the difference is that, with implied mens rea offences, the defence has an evidential burden only to raise evidence that suggests the absence of mens rea; in strict liability offences, the defence has the burden of proving that they acted without fault.
  • The terms “strict liability” and “absolute liability” were used interchangeably in New Zealand until approximately 1983. In some jurisdictions, such as England, they still are. Many offences combine different kinds of liability — for example, strict liability as to some elements of the actus reus, and absolute liability as to others; or mens rea as to some, and strict or absolute liability as to others: Police v Starkey [1989] 2 NZLR 373.
  • The defence of honest and reasonable mistake only applies to strict liability offences. For mens rea offences, an honest mistake of fact can mean there is no mens rea present. In these cases, the mistake does not need to be a reasonable one.

Question 1

On 1 January 2010, police executed a search warrant on George at his residential premises at 3 Bust Street, Hamilton. As a result of that search, the police found 53 grams of cannabis plant. George was charged with dealing in controlled drugs, contrary to s 6 of the Misuse of Drugs Act 1975. The Crown specifically alleges that George has contravened s 6(1)(f) of the Act, by possessing the drug for supply. The relevant parts of s 6 are as follows:

(1)Except as provided in section 8 of this Act, or pursuant to a licence under this Act, or as otherwise permitted by regulations made under this Act, no person shall —

(d) Supply or administer, or offer to supply or administer, any Class C controlled drug to a person under 18 years of age; or
(e) Sell, or offer to sell, any Class C controlled drug to a person of or over 18 years of age; or
(f) Have any controlled drug in his possession for any of the purposes set out in paragraphs (c), (d), or (e) of this subsection.

(6) For the purposes of subsection (1)(f), a person is presumed until the contrary is proved to be in possession of a controlled drug for any of the purposes in subsection (1) (c), (d), or (e) if he or she is in possession of the controlled drug in an amount, level, or quantity at or over which the controlled drug is presumed to be for supply (see section 2(1A)).

Cannabis plant is a Class C controlled drug. In relation to the facts of this problem, identify:

  • each burden of proof that arises;
  • the party upon whom it rests; and
  • the applicable standard of proof.

Answer plan

You will need to consider the following in your answer:

  • burden of proof; and
  • standard of proof.

Question 2

In a strict liability offence:

  • What is the burden and standard of proof for the prosecution?
  • What is the burden and standard of proof for the defence?

Answer Plan

You will need to consider the following in your answer:

  • burden of proof;
  • standard of proof; and
  • relevant case law.


For the full sample answers and more see Midson Questions and Answers: Criminal (LexisNexis, Wellington) 2014.