Chapter 8
Burden of proof

The need for clarity and certainty

8.5We noted in the Issues Paper that some pecuniary penalty provisions are drafted in a way that creates uncertainty about whether the enforcement agency or the defendant has the burden of proving certain matters.134 All submitters who addressed the burden of proof agreed that pecuniary penalty provisions should be drafted in a way that minimises any ambiguity over the allocation of the burden of proof, although one submitter thought that the provisions were already sufficiently clear, so no redrafting was necessary. As one submitter noted, any uncertainty over whether the enforcement body has established all the facts necessary to make out its overall case will make an appeal more likely.

8.6An example of a pecuniary penalty provision that is clear about who must prove what is section 9 of the Unsolicited Electronic Messages Act 2007. It states:

9 Unsolicited commercial electronic messages must not be sent
(1) A person must not send, or cause to be sent, an unsolicited commercial electronic message that has a New Zealand link.
(2) If a recipient uses an unsubscribe facility in accordance with section 11(1)(a), the recipient’s consent to receiving a commercial electronic message from the sender is deemed to have been withdrawn with effect from the day that is 5 working days after the day on which the unsubscribe facility was used.
(3) A person who contends that a recipient consented to receiving a commercial electronic message has the onus of proof in relation to that matter.

8.7Section 9(1) clearly states the basic conditions that must be proved by the enforcement body to establish the defendant’s liability for a penalty:

8.8Section 9(3) is, in effect, a statutory defence of consent: if the defendant wishes to argue consent, he or she has the onus (or burden) of proving it. The effect of section 9(2) is that establishing that an unsubscribe facility has been used is sufficient proof of withdrawal of consent. The defendant would have to rebut evidence of use of an unsubscribe facility in order to succeed on the defence of consent.

8.9In contrast, section 156L of the Telecommunications Act 2001 is an example of a provision that is ambiguous about the burden of proof. This is because the condition of liability for a penalty (failure to comply with an undertaking under Part 2A or Part 4AA) is found in the same sentence of the provision as the exception that exonerates a defendant from liability (having a reasonable excuse for the failure to comply):

156L Pecuniary penalty
(1) The High Court may order a person to pay to the Crown any pecuniary penalty that the court determines to be appropriate if the High Court is satisfied, on the application of the Commission, that—
(a) the person has failed, without reasonable excuse, to comply with an undertaking under Part 2A …
8.10On the face of it, section 156L does not tell us whether the enforcement body bears the burden of proving the absence of a reasonable excuse, or whether the existence of a reasonable excuse is a statutory defence that must be proved by the defendant. We note that the Parliamentary Counsel Office drafting guidelines for statutory provisions recommend that conditions and exceptions should not be placed in the same sentence.135
8.11Policymakers should be alert to the risks created by using imprecise terminology or particular structural conventions that inadvertently create ambiguity around the burden of proof. As we note throughout this Report, pecuniary penalties are a novel and hybrid creation and any statutory ambiguity will put a greater burden on courts to clarify and interpret them. The fixing of the burden of proof by the courts in such circumstances necessarily involves questions of policy.136 It is also unclear whether the courts will or should draw on criminal law jurisprudence relating to burden of proof matters.137
8.12In response to our question about the need for certainty about the allocation of the burden of proof, one submitter suggested that if a legal burden is intended to be imposed, the statute should refer explicitly to the legal burden of proof. At present, pecuniary penalties tend to state that a person must “satisfy” the court of a particular matter or that a person has the “burden” or “onus” of proof on a matter. This is taken to mean that the person referred to has the legal burden of proof.138 Since a change of that nature would need to apply to the statute book as a whole, we make no recommendation on it.
134Law Commission Civil Pecuniary Penalties (NZLC IP33, 2012) [Issues Paper] at [6.45].
135Parliamentary Counsel Office “Principles of clear drafting” <> at [3.10]. Note also that Australian Commonwealth offence guidelines recommend that the defence of “without reasonable excuse” be avoided entirely: Attorney-General’s Department “A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers” (September 2011) at [4.3.3].
136J Stone “Burden of Proof and the Judicial Process: A Commentary on Joseph Constantine Steamship, Ltd v Imperial Smelting Corporation, Ltd” (1944) 60 LQR 262 at 283.
137The courts take into account a range of matters to determine where the burden of proof lies when facing such ambiguities in statutory offences: see for example R v Rangi [1992] 1 NZLR 385 (CA) and Juken Nissho Ltd v Northland RC [2000] 2 NZLR 556 (CA). See the Issues Paper, above n 134, at [6.47].
138Legislation Advisory Committee Guidelines on Process and Content of Legislation (Wellington, 2001) [LAC Guidelines] at [12.3.3]:
The need for clarity suggests that if legislators wish to impose a legal burden on the defendant to establish an exception or defence, words like ‘prove’ or ‘proved’ should be used.
Note, however, that this differs from a statutory formulation where the court is required to be satisfied of a particular matter, which it is said imports no burden of proof: Angland v Payne [1944] NZLR 610 (CA) at 626 and Re Supreme Court Registrar to Alexander Dawson Inc [1976]
1 NZLR 615 (SC) at 627.