REVERSE ONUS OF PROOF

Reverse onus of proof

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REVERSE ONUS OF PROOF

Reverse onus of proof

In legal proceedings, the burden of proof always shifts between the applicant and
the defendant from time to time. The duty placed upon either of the parties to approve
or disapprove a fact before the court constitutes the burden of proof. The burden of
proof dictates the party charged with the burden of proof. In criminal proceedings, there
is always an assumption of innocence until such one is proven to be guilty. This is
conventionally places the proof onus on the applicant (Twining & Stein, 1992). However,
in some cases the defendant has the burden of proving or disapproving various facts
which give rise to some defense, for instance, in cases of insanity plea. Similarly, in civil
cases, while the plaintiff is often charged with the proof burden, there are instances
where the defendant may be required to establish his/her defenses giving rise to the
principle of reverse onus of proof.
A statutory provision which moves the burden of proof to the defendant to have to
disapprove some facts results in what is known as the reverse onus of proof.
Conventionally, such a provision mat shift the proof burden to a defendant in a criminal
or a tort litigations. It arises under criminal codes which require the person accused to
disprove the assumption imposed by virtue of him/her being accused of committing
something. However, such provisions have given rise to serious issues in the recent
past wit human rights bodies claiming that it takes away the popular provisions where
the accused is presumed innocent has guilt is proven (Twining & Stein, 1992). To an
extent, this claim is true; such a clause reverses the innocence provision to read guilty
until one proves he/she is innocent.
In a case presented before the Canadian court, the respondent named, David
Edwin Oakes, faced charges of being in illegal possession of narcotics for trafficking

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purposes and hence contravening section 4(2) of Canadian Narcotics Control Act.
During the trials, Oakes chose to be tried by a magistrate instead of a jury. The crown
availed evidence to affirm that Oakes was in possession of 8-one gram cannabis resin
vials which mimicked hashish oil. A further $619.45 was found with Oakes upon
reaching the police station. He duly informed the authorities that he had purchased ten
hashish oil vials at $150 for personal use and that the $619.45 found in his possession
was part of a workers compensation cheque. He chose not to call in other evidence
than his statement in relation to the case. Based on provisions of section 8 of section 8
of Narcotic Controls Act, trial judge went ahead finding him guilty arguing that the case
had been proven beyond reasonable doubt.
Mr. Oakes however brought forward a motion challenging Constitutions section 8
validity maintaining that it unfairly transferred the burden of proof to the accused
persons. At this point, the case raised an important question. While it had been proved
that Oakes was in possession of Narcotics, who should have bore the burden of proof
that the narcotics in his possession were for trafficking. In his submission, Oakes
argued that this part of the constitution stripped him of his right for presumption of
innocence until proved guilty.
In the consequent, Supreme Court ruling, it was held that although drugs are
illegal and unacceptable, section 8 of the constitution which transfers the burden of
proof to the accused goes against the spirit of the human rights section of the
constitution which gives an individual the right to enjoy innocence status until the
individual is proven guilty.
In general, reverse onus of proof results into a limitation of the right and freedom
one should enjoy in a free society. It is therefore important that prior to such a move

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being imposed on the defendant, the applicant should first meet the legal criteria
requiring proof of adequate importance for justification of the need to suppress the
accused right to remain innocent until his/her innocence is proven. Such concern must
display urgency and be realistic. Additionally, the criterion used to arrive at such a
decision should be reasonable and rational. The measures for approval of the same
should also not be arbitrary, irrational or unfair in any way. In the afore-described case,
the Supreme Court ruled that section 8 was not sufficient to meet the criteria for creating
rational connection between being in possession of narcotic and trafficking of the same
(Scheibe, 2003). The ruling in essence emphasizes the importance of human rights
before reverse onus of proof is allowed to prevail.
Typically, the onus of proof is succinctly affirmed as the primary obligation placed
on the applicant. He/she is expected to prove its case to an acceptable degree of
uncertainty. This is the legal and ultimate burden of proof in litigations. However, in
litigations, this burden may switch although reasonably. Nonetheless, although the law
does not impose an obligation for the defendant call witness or evidence, such a move
have consequences.
The principle presuming that an accused person remains presumed innocent
until he/she is proven guilty is a basic procedural fairness principle in criminal litigations.
This protects the accused persons from falling victims of erroneous judgments of the
powers wielded by the state. The opposite of this where one is guilty until proven
innocent puts an unfair burden on the accused and supplants the presumption of
innocence clause. However, there are some instances where the clause has proved
useful to the victim.

REVERSE ONUS OF PROOF

This principal is largely applied in industrial tribunal litigations. In a number of

limited circumstances such as when the case is subject to provisions of s. 783 of Fair
Work Act which addresses the issue of unlawful termination, reverse onus of proof
comes into effect. For instance, where the person who is allegedly victimized and
he/she satisfies the description of cases handled by Fair Work Act, the reverse onus of
proof is applied on the employer who has to satisfy the board that the mentioned
employee was not wrongfully terminated rather than the employee proving he/she was
wrongfully terminated.
However, it is important to point out that in criminal proceedings, the case is
significantly different and hence reasonable double standard should be accorded to the
accused party. Federal juries are known to emphasize that the requirement for proof
beyond reasonable doubt by according standard reasonable doubt as to the guilt of the
defendant, on basis of the available evidence Sheldrake v. DPP [2002]. This standard
reasonable doubt is a remind to the judges of the hardships that trials impose on the
accused including public humiliation, temporary incarceration, heavy fines, and at times,
forfeiture of property and hence reasonable doubt is the highest proof standard
necessary for any judicial proceeding. Under the common law, the popular
Woolmington [1935] endorsed the importance of observing the innocence presumption.
Nonetheless, it cannot be ignored that there are a number of exceptions where the
defendant is required to disapprove one or a number of evidence presented against
him/her.
Saunders, Young, & Burton (2010) in reviewing the Woolmington v DPP case
states that,

REVERSE ONUS OF PROOF

No matter what the charge or where the trial, the principle that the
prosecution must prove the guilt of the prisoner is part of the common law
of England and no attempt to whittle it down can be entertained (p. 10).
The statement amounts to common laws objection to attempts aimed at
reversing the proof onus. However, in the ruling, Lord Sankey pointed out that this
principle although enshrined within the common law is subject to statutory exceptions.
Saunders, Young, & Burton (2010) however go a step further to emphasize the under
the common law, the reverse onus of proof never compels a defendant to offer proof of
an issue beyond reasonable doubt but rather at most based on a balance of
probabilities (p. 11). Saunders, Young, & Burton (2010) further go ahead to raise an
important aspect in relation to reverse onus of proof citing the European Court of
Human Rights ruling which stated that reverse onuses were not necessarily a violation
of the Convention. In relating this to ruling within the English law, Saunders, Young, &
Burton (2010) states that,
Following this ruling (reverse onuses non-violation of convention), House
of Lords in Lambert stated that Art 6(2) permits a statute to place a burden of
proof on a defendant, if that burden is proportionate to the aim being pursued,
which must itself be legitimate (p. 11).
However, the authors note that in determination of this issue, the court has to
take into account factors such as conduct gravity, the jurisdiction placing such burden,
and the difficulty level within which the burden can be discharged. Additionally, it is
noted that each case must be independently reviewed to establish whether or not
reverse onus of proof is applicable. In essence, while the English law offers room for

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reversal of onus of proof, it goes a step further to note that there are instances where
such a case is permissible and applicable within the English law jurisdiction.
In general, the presumption of innocence remains a fundamental trial element,
and legal/ultimate proof burden is on prosecution to prove the accuseds guilt. The
prosecution therefore has an obligation to offer proof of concurrence between mens rea
and actus reus to levels beyond reasonable doubt to discharge its burden.

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References
Scheibe, B. D. (2003). "Claim of Reverse Engineering Doesn't Alter Burden of Proof."
The Los Angeles Daily Journal 116 (October 2).
Sheldrake v. DPP; A-Gs Reference (No. 4 of 2002) [2004] UKHL 43, [2005] 1 AC 264,
[2004] 3 WLR 976, [2005] 1 All ER 237
Twining, W. & Stein, A. (1992). Evidence and Proof. New York: New York University
Press.
Woolmington v DPP [1935] AC 462 at 4812.
Saunders, A. Young, R. & Burton, M. (2010). Criminal Justice. London: OUP Oxford