Chapter 8
Burden of proof

Imposing a burden of proof on defendants

8.13Occasionally in the law, a burden of proof is imposed on a person who is defending proceedings. The circumstances in which that occurs are constrained, because it departs from the general principle noted at [8.2] above, that the person who brings proceedings, and who seeks to move the court in his or her favour, should bear the burden of establishing what he or she seeks to prove. Particularly in the criminal sphere, imposing a burden on defendants should, as a general rule, be done rarely and only in circumstances where that is a reasonable and justified limit on the defendant’s criminal law right to be presumed innocent until proven guilty. In New Zealand, the defendant’s right to be presumed innocent of a criminal offence is protected by section 25(c) of the New Zealand Bill of Rights Act 1990.

8.14As we note in Chapter 6, the extent to which section 25 – which safeguards the procedural rights of those “charged with an offence” – should be applied to defendants to a pecuniary penalty is not clear. However, we also suggest that statutes should generally take a protective approach towards the rights of defendants to pecuniary penalties. As we note in that chapter, this approach reflects best legislative practice, and it also serves to minimise litigation risk. In our view, it follows that pecuniary penalty provisions should only impose the burden of proof on defendants in rare circumstances. Not only does this follow generally from our approach in Chapter 6, but, where reversals of the burden of proof specifically are concerned, it is reinforced by the fact that pecuniary penalties are imposed on the balance of probabilities. This means that where a burden is imposed on the defendant, the onus on the enforcement body to establish its case is particularly low. It is objectionable, in principle, for such substantial State penalties to be able to be imposed in this manner without strong and genuine justification.

8.15In the Law Commission’s view this strengthens the argument that section 5 of the New Zealand Bill of Rights Act should be used as the benchmark where reversals of the burden of proof are concerned. Pecuniary penalty provisions should impose a burden of proof on defendants only in reasonable and demonstrably justifiable circumstances. We describe what some of these circumstances might be, below.