Presumption of innocence

Public sector guidance sheet

Disclaimer
This material is provided to persons who have a role in Commonwealth legislation, policy and programs as general guidance only and is not to be relied upon as legal advice. Commonwealth agencies subject to the Legal Services Directions 2005 requiring legal advice in relation to matters raised in this Guidance Sheet must seek that advice in accordance with the Directions.

What is the presumption of innocence?

The presumption of innocence imposes on the prosecution the burden of proving the charge and guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt.

Where does the presumption of innocence come from?

Australia is a party to seven core international human rights treaties. The presumption of innocence is contained in article 14(2) of the International Covenant on Civil and Political Rights (ICCPR).

The right to the presumption of innocence is one of the guarantees in relation to legal proceedings contained in article 14. The other guarantees are the right to a fair trial and fair hearing, and minimum guarantees in criminal proceedings, such as the right to counsel and not to be compelled to self-incriminate. For more information on these rights see the Guidance Sheets on Fair trial and fair hearing rightsand Minimum guarantees in criminal proceedings.

See also article 40 of the Convention on the Rights of the Child (CRC).

When do I need to consider the presumption of innocence?

You will need to consider the right to the presumption of innocence when you are working on legislation, a policy or a program that:

  • creates an offence that requires the accused to prove or establish the absence of an element of an offence or requires the accused to establish an exception, exemption, excuse or other defence
  • creates an offence that contains a presumption and puts an evidential burden on the accused to rebut the presumption
  • creates an offence that contains a presumption operating against an accused that cannot be displaced
  • creates an offence that imposes criminal liability on an officer of a corporation solely by reference to the officer's position, and requires the officer to make out a defence
  • relates to comment by a public official or by the media on the guilt of persons who have been charged
  • relates to the manner of presentation of accused persons in court, for instance in shackles, or
  • provides international legal assistance or cooperation, including development of legislation or strengthening criminal justice systems.

This list should not be regarded as exhaustive.

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What is the scope of the right to the presumption of innocence?

The presumption of innocence is a fundamental principle of the common law.

The UN Human Rights Committee has stated that the presumption of innocence imposes on the prosecution the burden of proving the charge and guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt.

The Committee has also stated that public authorities should refrain from prejudging the outcome of a trial by making public statements affirming the guilt of the accused, and that the media should avoid news coverage undermining the presumption of innocence.

Finally, the Committee has stated that defendants should normally not be shackled or confined in an enclosure during trials or otherwise presented to the court in a manner indicating that they may be dangerous criminals.

Some laws, commonly called reverse onus provisions, shift the burden of proof to the accused or apply a presumption of fact or law operating against the accused. Under international human rights law, a reverse onus provision will not necessarily violate the presumption of innocence provided that the law is not unreasonable in the circumstances and maintains the rights of the accused. The purpose of the reverse onus provision would be important in determining its justification. Such a provision may be justified if the nature of the offence makes it very difficult for the prosecution to prove each element, or if it is clearly more practical for the accused to prove a fact than for the prosecution to disprove it.

Can the right to the presumption of innocence be limited?

Derogation

Under article 4 of the ICCPR, countries may take measures derogating from certain of their obligations under the Covenant, including the right to the presumption of innocence'in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed'. Such measures may only be taken 'to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin'.

The UN Human Rights Committee has indicated that strict limitations would apply to any derogation under article 14, specifying that they must be exceptional and temporary.

Limitation

As indicated above, so-called reverse onus provisions can be considered a limitation on the presumption of innocence.

Which domestic laws relate to the presumption of innocence?

Part 2.6 of the Criminal Code Act 1995 contains provisions regarding proof of criminal responsibility. In particular, section 13.1 provides that the prosecution bears a legal burden of proving every element of an offence relevant to the guilt of the person charged. A legal burden means the burden of proving the existence of a particular matter. Section 13.2 provides that a legal burden of proof on the prosecution must be discharged beyond reasonable doubt.

If a law imposes a burden of proof on the defendant (a so-called 'reverse onus' provision), section 13.3 of the Criminal Code provides that the burden of proof is an evidential burden only, unless the law specifies otherwise. An evidential burden means the burden of adducing evidence that suggests a reasonable possibility that a matter exists or does not exist. A law may only impose on the defendant a legal burden if the law expressly specifies it, or requires the defendant to prove the matter, or creates a presumption that the matter exists unless the contrary is proved. A legal burden of proof on the defendant in such case must be discharged on the balance of probabilities. An example of a law imposing a legal burden on the defendant appears in section 72.16 of the Criminal Code, which provides that, in relation to a charge of trafficking, importing or exporting, manufacturing or possessing a plastic explosive that breaches a particular marking requirement, the defendant bears a legal burden of proving that he or she had no reasonable grounds for suspecting that the explosive breached the marking requirement.

Section 141 of the Evidence Act 1995 provides that in a criminal proceeding, the court is not to find the case of the prosecution proved unless it is satisfied that it has been proved beyond reasonable doubt. In contrast, section 141 provides that the defendant's case is proven on the balance of probabilities.

What other rights and freedoms relate to the presumption of innocence?

The right to the presumption of innocence may also be relevant to the other rights in relation to legal proceedings contained in article 14 of the ICCPR, namely the right to a fair trial and fair hearing, and minimum guarantees in criminal proceedings, such as the right to counsel and not to be compelled to self-incriminate.

The right may also be relevant to:

  • the right to be free from arbitrary arrest and detention in article 9 of the ICCPR
  • the right of the media to freedom of expression in article 19 of the ICCPR.

Articles from relevant Conventions

International Covenant on Civil and Political Rights

Article 14(2)

Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

See also: CRC article 40.

Where can I read more about the presumption of innocence?

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