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Exceptions Greater Than the Rule: the Not-So-Innocent Development of the Rule in DPP v Woolmington

Exceptions Greater Than the Rule: the Not-So-Innocent Development of the Rule in DPP v Woolmington

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An essay for the 2011 Undergraduate Awards (Ireland) Competition by James Dalton. Originally submitted for Bachelor of Business and Legal Studies at University College Dublin, with lecturer Dr Thomas Mohr in the category of Law
An essay for the 2011 Undergraduate Awards (Ireland) Competition by James Dalton. Originally submitted for Bachelor of Business and Legal Studies at University College Dublin, with lecturer Dr Thomas Mohr in the category of Law

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Published by: Undergraduate Awards on Aug 31, 2012
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07/29/2014

 
 
EXCEPTIONS GREATER THAN THE RULE
The Not-So-Innocent Development of the Rule in DPP v Woolmington
DESCRIPTION
Woolmington – Exception - Presumption of Innocence
ABSTRACT
For such an integral constitutional tenet in this jurisdiction, the presumption of innocencehas been treated with a certain level of disdain, particular in the United Kingdom. Irishcourts have demonstrated a lackadaisical approach in the search for legal certainty. Allthat can be said with assuredness is that the allocation of the burden of proof on theprosecution can be easily displaced in exceptions created by statute, the constitutionalityof which can then be challenged. A divergence between Canadian and American courtsleaves no definite course to be furrowed by the judiciary in this country in the future.
INTRODUCTION
The widely-quoted legal aphorism that an accused person is “innocent until provenguilty” is not necessarily the truism that many people would believe. Nor is its moredetailed accomplice- that the burden of proof in a criminal case rests always on theprosecution- beyond question. This essay will explore the constitutional validity of lawsthat place the burden of proof on the accused party in a criminal case; and, where theburden of proof is characterised as “legal”, whether this shift in the legal burden of proof can be justified.
 
While the focus of this piece will be to look at these issues in an Irish context,developments in other jurisdictions such as Canada, the United States of America and theUnited Kingdom will also be analysed in the hope that they may offer someunderstanding and guidance on the test for validity.
THE RULE IN WOOLMINGTON
The case of 
 DPP v Woolmington
1
, and, more particularly, the following dictum of SankeyLC, has been eulogised for its endorsement of the general rule regarding the burden of proof in criminal cases:
‘Throughout the web of the English Criminal Law one golden thread is always tobe seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to anystatutory exception. … No matter what the charge or where the trial the principlethat the prosecution must prove the guilt of the prisoner is part of the commonlaw of England and no attempt to whittle it down can be entertained.’
The judgment should be lauded for the clarity which it instilled in the common law, but ithas generated a great deal of discussion about the validity of the “statutory exception” inIreland and abroad.
THE BURDENS OF PROOF
A burden of proof is a duty placed on either party in civil or criminal proceedings toprove or disprove a disputed fact
2
. It is important to understand that “the burden of proof”encompasses two discrete concepts
3
, “the legal burden” and “the burden to adduceevidence.”
1
[1935] AC 462
2
Heffernan, L.
 Evidence: Cases and Materials
, Thomson Round Hall 2005
3
McGrath, D.
 Evidence
, Thomson Round Hall 2005
 
 The legal burden of proof places responsibility on a party to persuade the court of theexistence or non-existence of a particular fact beyond reasonable doubt. In criminal cases,the general rule is that this legal burden is borne by the prosecution in proving every factnecessary to establish the guilt of the accused
4
. On the other hand, the burden to adduceevidence simply places responsibility on a party to
raise an issue
as to the existence ornon-existence of a fact in issue. The burden to adduce evidence can rest on either theprosecution or the accused.The premise for this categorisation is based largely on courtroom economics. Forinstance, the prosecution may bear the legal burden throughout proceedings, but they alsobear the burden to adduce evidence at the outset to demonstrate to the judge that this caseis worthy of the court’s time. The accused will have the burden to adduce evidence inrespect of defences such as self-defence. This also makes intuitive sense: it would beimpracticable for the prosecution to disprove every putative defence
5
. Once the accusedhas satisfied the burden to adduce evidence however, the prosecution then bears theburden of disproving it beyond reasonable doubt.The distinction between the legal burden of proof and the duty to adduce evidence hasgained currency in Ireland, notably in the judgment of Costello J in
O’Leary v. AttorneyGeneral
(discussed below). In particular, the trial judge held that it was the placement of the
legal
burden of proof on the accused, and not the burden to adduce evidence, thatinvolved the potential infringement of constitutional rights. It would appear, therefore,that statutory provisions which place the burden to adduce evidence on the accused aresafe from constitutional repugnancy.
4
McGrath, supra
5
Ní Raifeartaigh, U.
 Reversing the Burden of Proof in a Criminal Trial: Canadian and Irish Perspectiveson the Presumption of Innocence
(1995) 5(2) ICLJ 135
6
[1995] 2 ILRM 259

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