Attorney-General George Brandis’ Foreign Fighters Bill 2014, introduced to the Senate this week, includes provisions that make it an offence to enter, or remain in, certain regions, such as parts of Iraq, without being able to prove involvement in certain activities such as journalism or aid work. Does this reverse the “onus of proof”?

The short answer is no. A fundamental feature of our system of justice is the right to be presumed innocent until proven guilty. The presumption of innocence imposes on the prosecution the burden of proving all elements of an offence beyond a reasonable doubt.

According to the Criminal Code Act 1995, the prosecution bears the legal burden of proving guilt, and the burden of proof must be beyond a reasonable doubt. However, like many other crimes where the law allows a defendant to assert a positive defence (for example, provocation, duress, self-defence, automatism, and honest and reasonable mistake), the provisions in the Foreign Fighters Bill cast an “evidential burden” on a defendant to establish the ground of defence relied upon. For example, the defendant may plead and seek to demonstrate by evidence that he or she has entered, or remained in, the area solely for a “legitimate purpose” — such as for providing humanitarian aid, reporting news or current affairs, participating in legal proceedings, or for the purpose of family or domestic concern, or for official government or international organisation duty.

An evidential burden means the burden of producing evidence that suggests a reasonable possibility that a matter exists or does not exist. If a law imposes a burden of proof on a defendant, section 13.3 of the Criminal Code provides that the burden of proof is an evidential burden only, unless the law explicitly specifies otherwise. The burden in the case of the current proposed offence is an evidential one, as there is no express specification of a legal burden.

Once the defendant has met the evidential burden, i.e. demonstrated on the balance of probabilities a reasonable possibility that the matter relied upon exists, then the prosecution bears the legal burden of refuting the defence and proving all elements of the offence beyond reasonable doubt. The question whether the evidential burden has been discharged is a question of law for the trial judge.

Imposing an evidential burden on the defendant for the proposed entering, or remaining in, an area offence is not without precedent. A similar burden is imposed in cases such as treason; espionage; possessing things connected with terrorist acts; collecting or making documents likely to facilitate terrorist acts; training a terrorist organisation or receiving training from a terrorist organisation; and associating with terrorist organisations.

Generally, a matter should only be identified as a defence requiring the defendant to discharge an evidential burden where: a matter is peculiarly within the defendant’s knowledge and not available to the prosecution (such as why the defendant was in a place); the matter in question is not “central” to the question of criminal culpability for the offence; the offence carries a relatively low penalty; or the conduct proscribed by the offence poses a grave danger to public health or safety.

The extent to which these criteria are or are not fulfilled, to justify the placement of an evidential burden on a defendant in the present case, will no doubt be a matter of inquiry for the Parliamentary Joint Committee on Intelligence and Security.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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