This Article documents the increasing range of instances in which the presumption of innocence has been abrogated by legislation. Legislatures are responding to fears around terrorism and general community anxiety about law and order issues by increasing resort to reverse onus provisions. While the right of the legislature to enact laws thought to further public safety is acknowledged, the presumption of innocence is a long-standing, fundamental due process right. This Article specifically considers the extent to which reverse onus provisions are constitutionally valid in a range of jurisdictions considered comparable. It finds that the approach in use in some jurisdictions studied, testing the constitutionality of reverse onus provisions on the basis of whether they practically permit an accused to be found guilty although there is reasonable doubt about their guilt, has much to commend it. However, this is part-solution only, since legislatures may then be driven to redefine crimes to seek to effectively cast the burden of proof onto an accused by redefining what is in substance an element of a defense. Thus, it favors a substantive approach to determining what the prosecutor must show to obtain a conviction, utilizing concepts such as moral blameworthiness and actus reus/mens rea.
The Presumption of Innocence Under Attack
Anthony Gray is Professor of Law at the University of Southern Queensland, Australia. He received his Bachelor and Masters law degree from Queensland University of Technology, and his PhD from the University of New South Wales, Australia. His research interests centre on constitutional law, including human rights, and comparative law. University of Southern Queensland—Law, Sinnathamby Boulevard, Springfield Qld 4300, Brisbane 4300, AUSTRALIA, email@example.com.
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Anthony Davidson Gray; The Presumption of Innocence Under Attack. New Criminal Law Review 1 November 2017; 20 (4): 569–615. doi: https://doi.org/10.1525/nclr.2017.20.4.569
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