Section 25 - The right to be presumed innocent

(1) A person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law..

Sub-section (1) of s. 25 protects the presumption of innocence in criminal proceedings. The presumption of innocence is a well-recognised civil and political right and a fundamental principle of common law.


More generally, s. 25 is concerned with rights in criminal proceedings. This provision is modelled on articles 14(2), 14(3), 14(4) and 14(5) of the ICCPR.

Note that by virtue of s. 49(2) of the Charter (transitional provisions), the rights in s. 25 will not affect any proceedings concluded or commenced before 1 January 2007. (Thus, if a person has been convicted of a reverse onus offence before 1 January 2007, his or her conviction will not be affected by s. 25.)


When does section 25(1) apply?

Section 25(1) covers persons charged with an offence, whether it is an indictable or a summary offence.


In Victoria, typically a person is charged with an offence when the charge is filed in the Magistrates’ Court on a charge sheet that alleges the person has committed an indictable or summary offence. A person will either be arrested and charged or a summons to answer the charge will be issued. The infringement notice system (discussed on page 157) provides an alternative means of dealing with allegations.


What does it mean?

The right to be presumed innocent until proven guilty is a fundamental common law principle. It requires that the prosecution has the burden of proving that the accused committed the charged offence. The prosecution must prove the guilt of the accused beyond reasonable doubt.228 This means that the prosecution must prove all elements of a criminal offence.


A law that shifts the burden of proof to the accused or applies a presumption of fact or law operating against an accused may breach this provision. Both are commonly called reverse onus provisions.


Reverse onus offences


Reverse onus offences are offences that impose a legal (persuasive) burden on the accused by requiring the accused to prove, on the balance of probabilities, a fact that is essential to the determination of guilt or innocence.


Some offences impose an evidential burden on the accused by requiring the accused to present or point to evidence to raise an issue. In such offences, the prosecution bears the legal burden of disproving the issue beyond reasonable doubt. These offences may also limit the presumption of innocence.


Reverse onus offences may undermine the presumption of innocence because there is a risk that an accused can be convicted despite reasonable doubt of his or her guilt. However, in international human rights law, reverse onus provisions do not necessarily violate the presumption of innocence as long as they are ‘within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence’.229


Reverse onus offences should be examined carefully to determine if they breach s. 25(1). 230 If so, the provision may still be compatible with the Charter if it can be justified under s. 7. It must be a reasonable limitation that can be demonstrably justified in a free and democratic society. For more information, refer to the discussion in these Charter Guidelines on s. 7.

The more serious the reverse onus offence, and the higher the penalty the courts can impose for the offence, the more likely it is that s. 25(1) has been breached. In assessing the seriousness of an offence (including the seriousness of the consequence for a convicted person), consider the purpose for which the offence was created and whether the offence has an element of moral fault. If the nature of the offence makes it very difficult for the prosecution to prove each element of the offence, a reverse onus provision may be acceptable. Similarly, if it is clearly easier and more practical for an accused to prove a fact than for the prosecution to disprove it, a reverse onus provision may be justifiable.

 

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228 UN Human Rights Committee, General Comment 13, Article 14 (Twenty-first session, 1984), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc.
HRI/GEN/1/Rev.6 at 135 (2003) [7].

229 Salabiaku v. France (1988) 141 Eur Court HR (ser A); (1991) 13 EHRR 379.


230 See for example R v. Lambert [2002] 2 AC 545 and R v. Oakes [1986] 1 SCR 103.