Noticeboard
| Published date | 01 July 2002 |
| Date | 01 July 2002 |
| DOI | 10.1177/136571270200600304 |
| Subject Matter | Noticeboard |
Notices should be sent to Mike Redmayne, London School
of
Economics, Houghton
Street, London
WC2
2AE. E-mail: M.Redmayne@lse.ac.uk
Canada4vidential burden
When a defendant wishes to rely on an affirmative defence, he is typically required
to discharge an evidential burden. The evidential burden is often regarded as an
unproblematic notion, yet in
R
v
Cinous
(2002)
SCC
29
the question of just what
this burden is split the Supreme Court, which delivered a lengthy judgment on
the topic. At trial, the defendant had raised a claim of self defence to a charge of
murder. The majority held that this defence need not have been left to the jury,
because the defendant had not discharged the evidential burden on one of the
elements of selfdefence: the question whether he had reasonable grounds to
believe that he could not otherwise preserve himself from death
or
serious bodily
harm. According to the majority, there was no evidence from which the jury
could reasonably infer that the defendant had such grounds. It is not easy to
pinpoint the minority’s grounds for disagreement with this conclusion. Arbour
J’s
judgment argues that the majority goes beyond the minimal task required
when assessing the evidential burden-which is simply to ensure that there is
some evidence on which a reasonable jury could decide for the defendant on the
issue-and engages in illicit weighing of the evidence. Majority and minority agree,
however, that in cases involving purely circumstantial evidence the resort to
‘limited weighing’ of the evidence will be legitimate. One point of disagreement,
then, is whether the process of deciding whether the defendant’s belief was
reasonable involves inference from circumstantial evidence
or
whether it is simply
a matter of judgment.
For
the minority, it is the latter. Provided, therefore, that
the accused has given some explanation of his state of mind as regards alternatives
to using violence, the defence of selfdefence must be left to the jury.
United Kingdom-effect
of
delay
In
Promrator
Fiscal, Linlithgow
v
Watson
and
Burrows
the Privy Council considered
an appeal from the Scottish High Court ofJusticiary which raised questions about
the effect of delay on criminal proceedings. Article
6
of the European Convention
188
THE INTERNATIONAL JOURNAL
OF
EVIDENCE
&
PROOF
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