Onus

A review of the authorities quoted here provide ample reason to accept the conclusion that any attempt to explain or clarify the onus has only the effect of further muddying the waters.

The direction on the onus that lies on the crown is, on one view, the most fundamental and the most important direction in an entire trial. It sits at the very centre of the jury’s decision on the guilt or innocence of the accused.

Much to the frustration of juries, the authorities repeatedly (and with good reason) counsel against the provision of “needless explanations of the classical statement of the nature of the onus of proof resting on the Crown” (Green v R [1971] HCA 55). A review of the authorities quoted here provide ample reason to accept the conclusion that any attempt to explain or clarify the onus has only the effect of further muddying the waters.

The other issue that has dominated the question of the onus is whether there being no reasonable possibility of innocence is the same as the Crown proving the guilt of the accused beyond reasonable doubt. Whilst that direction is unremarkable in the context of a circumstantial case, the authorities emphasize the importance of ensuring that the giving of that direction does not create an impression that an onus falls on the accused to demonstrate the existence of that reasonable possibility.

Green

Green v R [1971] HCA 55

“Those quotations are but some of many admonitions to judges presiding over criminal trials to adhere to and not to attempt needless explanations of the classical statement of the nature of the onus of proof resting on the Crown.”