Area of Law – Sexual Offences
An Article about Sexual penetration charge – burden of proof
Sex cases – Burden of proof in sexual penetration of child under 16
The burden of proof in sexual penetration cases has been a vexed issue and as with so much of the law is more complex than you would expect.
Any sex case is a very serious charge and is likely to carry gaol on a finding of guilt.
We have successfully defended many sex cases at both committal and at trial.
Once the defence discharge the onus of raising a reasonable belief on a balance of probabilities then it is for Crown to negate beyond reasonable doubt
The confusion lay in the fact that the line of cases which follow the Douglas case are wrong. Douglas was decided in period when the case He Kaw Teh had been heard but the decision not delivered by High Court. He Kaw Teh and Zecevic are correct in that once the defence discharge the onus of raising a reasonable belief on a balance of probabilities then it is for Crown to negate beyond reasonable doubt
What this means is that if the defence can raise enough evidence of a reasonable belief then it is for the Crown to negate that belief beyond reasonable doubt. The defendant does not have to prove the reasonable belief further than that.
Like any sex charges they need a lot of preparation and the stakes are very high for an accused person.