Contents

Chapter 8
Burden of proof

Justifications for imposing a burden of proof on defendants

8.16A number of policy reasons have been put forward as justification for legislation departing from the “golden thread” of the criminal law, and purporting to impose a burden of proof on defendants, whether legal or evidential.139 We discuss the justifications generally and then go on to discuss the legal and evidential burdens specifically.

8.17One is that it is justified to impose a burden on the defendant where the conduct in question is “regulatory” in nature. While it is rarely stated explicitly, based on our assessment and understanding of the regimes in question, “regulatory” conduct in that context seems to mean the following:

8.18In such circumstances, it is thought appropriate to impose a burden on the whole industry to demonstrate it is meeting the required standard.

8.19For example, advice to the Attorney-General on strict liability offences in the Building Amendment Bill (No 3) 2010 (253–1) states that:140

Strict liability offences were chosen to achieve the objectives of the Act because of a desire to ensure participants involved in building design and construction take responsibility for their own work. The offences place the burden on participants in the building industry to keep records verifying their compliance with the Act and to give these records to Building Consent Authorities.

8.20A similar justification was given for offences in the Food Bill 2010 (160-1) that reversed the burden of proof, as follows “Those who choose to participate in regulated industries should be expected to meet certain expectations of care and accept the enhanced standards of behaviour required of them.”141

8.21These arguments rest on a number of implicit assumptions that must be worked through for each regime. For instance, the standards imposed must be clear and well-known to the regulated actors for the incentives to be successful. Simply stating that the target conduct is “regulatory” in nature is not sufficient policy justification for reversing the burden of proof. Rather, policymakers should carefully consider whether the characteristics in [8.17] are truly present and, in addition, whether it will achieve the proposed Act’s objectives to place the burden on the industry participants themselves.

8.22Another circumstance in which imposing a burden on defendants is said to be justified is where it is substantially easier or more convenient for a defendant to prove the matter in issue, or where the defendant has “peculiar knowledge” of the matter. A commonly cited example is where a defendant must have a licence or certificate as evidence of their status or entitlement to carry out a particular activity. The argument is that since the defendant can produce the licence relatively easily, the burden should be on the defendant to produce it to the court.

8.23For instance, an amendment to the Citizenship Act 1977 required a person to return a certificate of New Zealand citizenship to the authorities.142 They would be criminally liable if they failed to do so knowingly and without reasonable excuse.143 Advice to the Attorney-General on the amending Bill’s compliance with the New Zealand Bill of Rights Act 1990 was that the provision imposed a burden on defendants by requiring them to show the existence of a reasonable excuse, but that it was justified because:144

In such cases, it is easier for the defendant to explain why he or she took (or failed to take) a particular course of action than it is for the Crown to prove the opposite. In the present case, there could be genuine reasons why the citizenship certificate was not returned such as the person being sick or being overseas. The defendant is best placed to show why he or she did not return the certificate.

8.24On its own, the fact that matters are said to be within the “peculiar knowledge” of the defendant is not sufficient justification for imposing a burden of proof on defendants. Facts relevant to many criminal defences are often peculiarly within the knowledge of the defendant (such as facts going to self-defence), but the legal burden of disproving them still rests on the prosecution. The English Court of Appeal in R v Spurge145 noted that there is no general rule that, where facts are peculiarly within the knowledge of the defendant, the burden of establishing them shifts to the defendant. Rather, policymakers should consider whether it would be significantly more difficult and costly for the enforcement body to disprove the matter than for the defendant to establish it. These circumstances are likely to be exceptional where pecuniary penalties are concerned because the enforcement agency needs to establish its case on the balance of probabilities rather than to the criminal standard. Enforcement agencies are further assisted because of the powers they have to gather the evidence required to enforce the regime. It may also be counter-productive to place the burden on the defendant because if the enforcement agency is under no obligation to check the appropriate records before bringing the enforcement action, time and expense may be spent on bringing unnecessary proceedings. And if the licence is administered by the State, it may be assumed that the State would have ready access to those records. These points were made by the Australian Senate Standing Committee:146

[T]he evidential burden in respect of issues which can be relatively easily proved or ascertained, such as licensing matters, should rest on the Crown. In an age where the storing and processing of records and other data can be greatly simplified by computers, the argument for saddling the defendant with an evidential burden in such matters is very weak. There are obvious advantages to the individual, as well as to society, in reducing to a minimum the possibility of unnecessary or unwarranted legal proceedings …

8.25While the Committee refers specifically to an evidential burden here, its critique of the justification for reversing the burden applies whether that burden is an evidential or a legal one.

8.26It is also often argued that if the penalty in question is low, imposing a burden of proof on defendants is more justifiable.147 However, we think that the fact that a penalty is low is not sufficient justification for departing from the basic principle that the burden of establishing the case rests on the person who initiates proceedings. As we note in Chapter 5, the fact that a policy decision can be justified is not the same as making a principled argument in its favour.

8.27In summary, there is no particular category of conduct for which it is always appropriate to impose a burden of proof on the defendant. The decision should be made on a case-by-case basis. Considerations of justice and fairness must be weighed in the balance, as well as the public interest objectives of the regulatory regime.

8.28As a starting point, we suggest that the range of circumstances when it is appropriate to impose a burden of proof on a defendant is limited. Examples may be where:

8.29The need to do justice and fairness towards defendants must always be taken into account alongside the public interest objectives of the regulatory regime. It may be easier to justify imposing a legal burden on defendants where:

8.30If it is decided that it is necessary to impose a burden of proving a matter on a defendant, that decision must adequately be justified and explained with reference to the particular policy context. Policy papers may need to outline the hypothetical factual scenarios that could arise and the difficult investigatory hurdles likely to be faced by the enforcement agency. They should explain, making reference to the wider regulatory context, why it is appropriate that the burden of demonstrating compliance should be shifted onto the regulated community.

8.31This guidance applies equally for questions about the burden of proof in criminal offences.

Evidential or legal burden

8.32If a burden is imposed on the defendant, the next question is whether it is necessary for that to be a legal burden of proof or whether an evidential burden would suffice. The point has been made that the same regulatory objectives can be achieved by requiring the defendant to produce sufficient evidence that rebuts the matter alleged (in other words, imposing an evidential burden). This intrudes less on a defendant’s right to be presumed innocent.148 A defendant’s relative ease of access to the means of proof does not necessarily mean that a legal burden should be imposed on him or her. Requiring the defendant to raise evidence necessary to make the issue triable (an evidential burden) might be enough to overcome difficulties of access to proof. If an evidential burden is imposed, the defendant will still be required to show some evidence that discharges that burden.

8.33Generally, if good reasons exist for imposing a burden of proof on a defendant, policymakers should always consider whether the desired regulatory outcome can be achieved by requiring defendants to make the matter a triable issue, rather than imposing a legal burden on them. A legal burden should only be imposed if it is clear that the desired regulatory outcome cannot be achieved by imposing only an evidential burden.

139This section draws on departmental advice to the Attorney-General on legislative provisions that may infringe s 25(c) of the New Zealand Bill of Rights Act 1990, background policy papers of legislative regimes containing provisions that reverse the burden of proof, and the LAC Guidelines on when it may be appropriate to reverse the burden of proof.
140Ministry of Justice Legal Advice: Consistency with the New Zealand Bill of Rights Act 1990: Building Amendment Bill (No 3) (12 November 2010).
141Ministry of Justice Legal Advice: Consistency with the New Zealand Bill of Rights Act 1990: Food Bill (25 March 2010). See also Crown Law Office Aviation Security Legislation Bill: Consistency with the New Zealand Bill of Rights Act 1990 (5 March 2007) at [4.1]: “It is accepted that voluntary participation in a sensitive and closely regulated activity, such as travel by air, entails a reduced expectation of privacy among participants”.
142Citizenship Amendment Bill 2010 (226-1), cl 15.
143Clause 16.
144Ministry of Justice Legal Advice: Consistency with the New Zealand Bill of Rights Act 1990: Citizenship Amendment Bill (21 September 2010).
145R v Spurge [1961] 2 QB 205 (CA).
146Senate Standing Committee on Constitutional and Legal Affairs, above n 131, at [6.1.2].
147See for example Ministry of Justice Legal Advice: Consistency with the New Zealand Bill of Rights Act 1990: Biofuel Bill (14 August 2007); Ministry of Justice Legal Advice: Consistency with the New Zealand Bill of Rights Act 1990: Animal Welfare Amendment Bill (12 April 2013); Ministry of Justice Legal Advice: Consistency with the New Zealand Bill of Rights Act 1990: Biosecurity Law Reform Bill (15 November 2010); and Ministry of Justice Legal Advice: Consistency with the New Zealand Bill of Rights Act 1990: Climate Change Response (Emissions Trading) Amendment Bill (9 November 2007).
148Charles, Cromwell and Jobson, above n 132, at 196.