In addition to stating that it is the prosecution's burden to prove guilt, to prove beyond a reasonable doubt that the killing was intentional and unprovoked, Woolmington also makes it clear that this does not mean that it is also the prosecution's burden to bring before the jury issues like self-defense and provocation. Rather, if there is to be hope of an acquittal, it is the defendant's evidential burden to adduce evidence supporting the existence of these issues, so that doubt as to his guilt is raised.
Thus, although it seems that the burden is heavier on the prosecution, having to bear both the legal and evidential burden, the defendant is definitely an active part of the trial. But his participation only extends to bearing evidential burden, and even then, it is only for the defense to raise the issue so that jury may need direction upon it. It is then left for the prosecution to disprove the existence of whatever that issue maybe. Contrary to the suggestion made by Judge Swift in Woolmington, the legal burden of disproving intention, even if the killing is admitted, never shifts to the accused.
In addition to the criteria that Woolmington v DDP sets out for applying presumptions to the allocation of proof, we see another criterion of a similar purpose in Dillon v R. In rejecting the trial court's and the appellate court's holding that the prosecution can rely on the "presumption of the lawfulness of official action"3 to make its case, the Privy Council in Dillon v R rules that the court cannot presume the "existence of facts which are central to the offense" (pg. 5), and that such a presumption must not be used to place the burden of proof on the accused.
Such a use would: 1) require of the accused the "notoriously difficult" task of proving a negative; 2) violate the general rule that it is for the prosecution to prove the existence of facts which are central to the offense; and 3) ultimately infringes upon the presumption of innocence. Even though it is established through Woolmington v DPP and Dillon v R that the legal burden of disproving intention is with the prosecution, and does not shift to the accused, there are exceptions to this rule.
Insanity and statutory exceptions, for example, do allow for this "shift", or rather reversal, in onus in which the defense actually bears the legal burden. A critique for the insanity exception is that it is anomalous and that since all accused merely bears the burden of adducing evidence sufficient to raise a particular defense, there is no reason why someone who pleads insanity should be any worse off. Furthermore, in statutory exceptions where it is explicitly or implicitly directed that the legal burden resides with the accused, the presumption of innocence is clearly breached.
This, according to the Canadian Supreme Court, can be justified if the statute serves a social purpose that is valuable enough to override a fundamental right. In Whyte v R, the court finds that the statute in question infringes on the presumption of innocence by requiring the accused to disprove an essential element of his alleged offense – care and control of the car in which he was found while intoxicated. However, because the statute is also found to have an important objective, and that, among other things, in carrying out this objective "it impairs rights and freedom as little as possible" (pg.14), it is constitutionally valid.
One might be worried, however, that if an exception to the strict principle of presumption of innocence, and hence the general rule that the prosecution always bears the burden of proof, can be justified by policy considerations which are based on what seems to be rather vague criteria, then there might be a danger that future legislations will be examined with less scrutiny for how they might infringe defendants' rights.
This analysis of statutory presumption in Whyte v R not only indicates a possible point in law where a departure from the presumption of innocence can be valid, but it also specifies more clearly what constitutes the prosecution's legal burden. Particularly, it is the prosecution's duty to prove beyond a reasonable doubt the existence of essential elements of the alleged offense. Since the existence of an essential element points to guilt, requiring the accused to disprove it would effectively require him to disprove his guilt – a blatant infringement of the presumption of innocence.
The fact that this whole analysis is necessary, however, points us to the lack of guidance that surrounds implicit allocation of the burden of proof by statutory provision. Unlike the Ceylon Evidence Ordinance relied on by Jayasena v. Reginam, where the statute explicitly casts a burden of proof on the accused, this casting is only performed implicitly in s. 237(1)(a) of the Criminal Code as cited by Whyte v R. That is, by allowing the "trier of fact to accept as proven that an accused had care or control of a vehicle, an essential element of the offense" (pg.2), the statute implicitly requires the accused to prove the fact that he did not have care or control on the balance of probabilities to avoid conviction.
The concern is whether statutes like this one are "capable of being construed as casting the burden upon the accused. "4 Whyte v R sets some criteria as to how a statute can undermine the presumption of innocence and still be constitutionally valid, but from the cases I have been exposed to, there seems to be little guidance regarding the technicalities as well as the circumstances in English law for implicit allocation of the burden of proof by statutory provision.
Another instance of a departure from Woolmington's set up of the onus of proof can be found in Jayasena v Reginam, an appellate decision primarily concerned with the burden that the accused bears to prove the fact of self-defense. The court interprets section 105 of the Ceylon Evidence Ordinance, which says that, "When a person is accused of any offense, the burden of proving (my bold) the existence of circumstances bringing the case within any of the general exceptions in the Penal Code, is upon him…
", to mean that the statue imposes on accused the burden of proof for self defense. In order to discharge this burden, the defense must present "such evidence, as if believed, and if left uncontradicted and unexplained, could be accepted by the jury as proof" (pg. 5) Unlike Woolmington, the proof for the defense in this context means proof beyond a reasonable doubt.
The Ceylon Court uses such a definition when it refers to the defense's burden of proving in the terminology of proving facts: "a fact is said to be proved when, after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists" (pg. 3). Unlike the Woolmington decision, where the proving of a fact is the burden of the prosecution, the Ceylon court interprets this to be of the defendant's, who can discharge it by citing "enough evidence to suggest a reasonable possibility" (pg.3).
The standard here is a possibility of the defense, not a balance of probabilities – which would leave "a reasonable doubt on the mind of the fact as to the guilt of the accused. "5 Woolmington, furthermore, is marked by a change of English common law regarding the burden of proof from old authorities, while the statute law on which Jayasena is based is deeply embodied in these same old authorities. This is the basis for their distinction.