After Hunt: The Burden of Proof, Risk of Non‐Persuasion and Judicial Pragmatism
| Date | 01 July 1991 |
| Published date | 01 July 1991 |
| DOI | http://doi.org/10.1111/j.1468-2230.1991.tb00908.x |
| Author | Alex Stein |
lhe
Modern
Law
Review
[Vol.
54
the design is clear. As argucd
Murphy
involved reliance by ABC Homes
on the local authority and their independent contractor whereas
it
is quite clcar that
the majority
in
the Australian decision regarded the absence of any kind of reliance
in
the case before them as crucial. Indeed at one point,” Deane
J
indicates
that
the
rcsult might have bcen different
if
the plaintiffs’ predecessor
in
title had relied on
the local authority. Deane
J
was thus prepared to contemplate reliance by someone
other than the plaintiff as a factor sufficient to establish the required proximity.
Conclusion
Murphy
is
a deeply disappointing decision both
in
rclation
to
the substantive law
on defective premises and
in
its implications for the judicial process.
As
to the lattcr,
it
is worrying that their Lordships failed to consider adequately the conccptual, policy,
and institutional arguments involved. On
a
substantive level, there are good grounds
for concurring
with
the judgment
of
Wilson
J
in
the Supreme Court of Canada when
he spoke of
Aim
.
.
.
a
useful protection
to
the citizen whose ever-increasing reliance on public
officials
seems
to
be
a
feature
of
our
After
Hunt:
The
Burden
of
Proof, Risk of
Non-Persuasion and Judicial Pragmatism
Alex
Stein*
At common law, and under section
101
of the Magistrates’ Courts Act
1980,
when
the accused relies on a defence which constitutes an ‘exception, exemption, proviso,
excuse or qualification’
to
a statutory offence, the accused has to establish
it
on
thc balance of probabilities. Along
with
other exceptions to the general principle
which requires the prosecution to prove its case and disprove any defence put forward
by the accused beyond reasonable doubt,’ this rule (hereafter: section
101)
applies
in
both summary trials and trials on indictment.2 Classification
of
criminal defences
as falling within its ambit by virtue of being ‘exceptions’ etc, has proved to be
70
supra
notes 19-22
and
iiccoiiipanyiiig text.
71
sicprcr
11
63
at
65, 15-20.
72
Ciry
of
Kmiloops
v
Nielseii
(1984)
10
DLK
(4th) 64
I
at
674.
*Departiiient
of
Law,
Brunel
University.
The author is grateful
to
Dr
Keith Smith of Brunel University and
Mr
Adrian Zuckcrnian of University
College Oxford
for
their helpful suggestions.
Apirt
from the exception under consideratioil. this rule is qualified by iiuinerous stalutcs and,
at
colmloli
law.
by the dcfcnce
of
insanity which specifically iniposc the burden
of
persuasion on the accused.
SCC
Wodmi~igfo~~
v
DPP
[
1935)
AC
462; C. ’rapper,
Cross
on
Evidcrrcr, 71h ed, 125-26; 13317
(1990).
I
2
K
v
Hfiflf
119871
I
All
ER
1,
9-10; 14-15.
570
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