Rebuttable Presumptions in Victoria
What is a rebuttable presumption?
A rebuttable presumption is a presumption that will be assumed until such time as the evidence suggests otherwise. Within the criminal law there are a number of rebuttable presumptions, some where the onus falls upon the accused and some where the onus falls on the prosecution.
Presumption of Innocence
The most well-known rebuttable presumption in criminal law is the presumption of innocence. The cornerstone of our justice system is that an accused must be considered innocent until such time that the prosecution satisfy the court beyond a reasonable doubt that they are guilty. This is an important feature of the judicial system.
It is not the defendant’s role to prove their innocence, it is the prosecution’s role to prove the defendant’s guilt beyond a reasonable doubt. Failure to do so must always result in a not guilty verdict. Until this occurs, the accused must be presumed innocent. The problem with this principle is that it is slowly being eroded.
A perfect example is found when dealing with intervention orders. Here, police or self-represented applicants can apply to the court for an interim order which puts all the ramifications of a final order in play. This can be very difficult for someone who has not done what is being alleged and it can sometimes be months, even years, before they get their day in court.
Doli Incapax
Doli Incapax is a rebuttable presumption that applies to children between the ages of 10 and 14 years. This presumption works on the basis that children between the ages of 10 and 13 years do not possess the ability to form a criminal intent as prescribed by the criminal law. The reasoning for this presumption is that children of that age are not considered sufficiently intellectually and morally developed to understand the difference between right and wrong. It should be noted that children under the age of 10 cannot be charged in relation to committing a crime.
In RP v The Queen [2016] HCA 53, High Court Justices Kiefel, Bell, Keane and Gordon noted that this presumption may be rebutted. To rebut this presumption, the prosecution must provide evidence that demonstrates that the child understood that it was morally wrong to engage in the criminal behaviour. It is a common error made by defence lawyers in seeking a report. This can sometimes work against the accused. If there is no evidence that the prosecution can point to in establishing criminal intent, then a report may not be necessary.
Knowledge of the moral wrongness of this behaviour has to be distinguished from a child’s awareness that the behaviour was merely naughty or mischievous. This distinction may be found by demonstrating that the child knew the conduct was ‘seriously’ or ‘gravely’ wrong.
Any consideration of how to approach a doli incapax submission should always be done in consultation with an experienced criminal defence lawyer.
Rebuttable Presumption in Relation to Bail
There are also rebuttable presumptions which apply in regard to whether a defendant should be granted bail.
Section 4 of the Bail Act 1977 (Vic) outlines the presumption that a person accused of an offence and being held in custody has an entitlement to bail except in the circumstances listed in this Act.
There are two exceptions to this presumption:
- Firstly, if the accused is charged with an offence that requires the bail decision maker to refuse bail unless there are ‘exceptional circumstances’ justifying the grant of bail. Offences of this kind are listed in Schedule 1 of the Bail Act and include serious offences such as treason, murder or aggravated home invasions. More broadly, the ‘exceptional circumstances’ test also applies to persons accused of crimes with terrorism records or persons accused of crimes they have committed whilst on bail.
- Secondly, if the accused is charged with an offence which requires the accused to show ‘compelling reasons’ that justify granting bail. Offences of this kind are listed in Schedule 2 of the Bail Act and are slightly less serious than that which require the ‘exceptional circumstances’ test.
If the bail decision maker is satisfied that ‘exceptional circumstances’ or ‘compelling reasons’ exist justifying the grant of bail for an accused, the bail decision maker must apply the ‘unacceptable risk’ test although it is incumbent on the prosecution to establish this and it is not a presumption against the accused person like it is in relation to ‘exceptional circumstances’ and show ‘compelling reasons’ thresholds.
A bail decision maker must refuse bail for a person accused of an offence if the bail decision maker is satisfied that –
- There is a risk the accused would endanger the safety or welfare of any person;
- Commit an offence;
- Interfere with a witness; or
- Fail to surrender in custody.
For more on bail in Victoria, follow the link.
Rebuttable Presumption regarding Sex Offences and Incest Charges
Section 50B of the Crimes Act 1958 (Vic) outlines that for an offence against a provision found in subdivision 8C, there is a rebuttable presumption that –
- A person (A) knows that A is related to another person (B) in the way alleged; and
- People who are reported to be related to each other in a particular way are in fact related in that way.
Offences found in subdivision 8C include
Possession Offences & Trafficking
Section 73(2) of the Drugs Act contains a rebuttable presumption. That being where a person has in their possession a quantity of a drug that is not less than a ‘traffickable quantity’ of that drug, the person will be found to be trafficking the drug unless they can prove otherwise. Subsequently, if the magistrate or judge is concerned in relation to s73(2) of the Drugs Act, the accused can be required to give evidence during their plea to rebut this presumption.
Section 73(1)(b) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) (the Drugs Act) outlines that where a court is satisfied on the balance of probabilities that a possession offence was not committed for any purpose relating to trafficking in that drug of dependence, the accused is subject to a penalty of not more than 30 penalty units, 1-year maximum imprisonment or both.
The traffickable quantity of various drugs can be found in Schedule 11 of the Drugs Act. However, some common drugs and the respective traffickable quantities include –
- Cannabis – 250.0 grams or 10 plants
- Amphetamine, Cocaine, Heroin, and Methylamphetamine – 3.0 grams.
It should also be noted, aside from rebuttable presumptions, that when clients are found with a prima facie traffickable quantity of drugs, police will often charge them with drug trafficking, notwithstanding there is no other evidence. It is always an error for police to proceed in this way as it is easy for a skilled criminal lawyer to make out the inherent flaws in this type of prosecution.
