1. Parliaments in recent times have legislated to reverse the burden of proof because it is considered reasonable in order to pursue justice. It is considered that people who participate in certain crimes should know that their actions are wrong and should therefore be required to prove that they are innocent.
2. The Drugs, Poisons and Controlled Substances Act 1981 (Vic) places the legal burden of proof on the defendant in relation to possession. Under section 5 of this Act, it is up to the owner of the premises where substances (or drugs) are found to disprove that the drugs are in their possession.
3. Momcilovic was charged with possession of a drug of dependence.
4. Momcilovic claimed that the drugs belonged to her boyfriend (a convicted drug trafficker) and that he had stored them without her knowledge.
5. The Court of Appeal found that that section 5 of the Drugs, Poisons and Controlled Substances Act, which required Momcilovic to prove she did not know the drugs were in her house, was inconsistent with the Victorian Charter of Human Rights and Responsibilities Act 2006 and issued a ‘declaration of inconsistent interpretation’. However, the court refused Momcilovic’sleave to appeal against her conviction.
6. The High Court agreed that the Drugs, Poisons and Controlled Substances Act imposed a legal burden on the accused to disprove the offence on the balance of probabilities, and that this is inconsistent with the right to the presumption of innocence contained in the Victorian Charter. A majority of the High Court upheld Momcilovic’s appeal and her conviction was quashed.
7. Responses will vary. Some advantages of the presumption of innocence include:
- presumption of innocence seeks to remove the risk of incorrectly convicting a person of a crime – no person should be convicted if there is the slightest reasonable doubt about their guilt
- if we did not have presumption of innocence, the police could arrest and imprison a person for no reason – they would only need to think that the person did something wrong and they would arrest them
- we need presumption of innocence to protect us – it is better to let one guilty person go free than to imprison people who are innocent (after all, most people are law-abiding citizens and most people do not break the law)
Some disadvantages of the presumption of innocence include:
- assuming every accused person is innocent is a risk to the country in terms of loss of time and money – allowing every accused person to have time in court clogs up our courts and gives legal people too much work to do
- there is a risk that a person accused of a serious crime might go into hiding or commit another crime
- there is too much protection of people accused of crimes – the police are honest and do a good job, so if they do charge someone with a crime they must be sure that the accused actually did commit the crime and we should do more to help the police deal with trouble-makers, rather than make it easier for criminals to avoid consequences.
8. Responses will vary. Some advantages of the presumption of guilt until proven innocent include:
- the presumption of guilt until proven innocent would reduce time spent by accused people in court and would also reduce the amount of money spent on hearing cases in court
- a person accused of a serious crime wouldprobablyappear in court for a hearing or trial because they would be likely to be held in custody
- make it more difficult for criminals to avoid consequences
Some disadvantages of the presumption of guilt until proven innocent include:
- is likely to result in innocent people being convicted of crimes that they did not commit
- people could be arrested and imprisoned for no reason – the police would only need to think that a person did something wrong and they would arrest them