Rebuttable Presumptions in Victoria
What is a rebuttable presumption?
A rebuttable presumption is an assumption made by a Court about a particular set of facts, until such time as the evidence suggests otherwise. Within criminal law there are a number of rebuttable presumptions, some working in favour of the accused and some working against.
Presumption of Innocence
The most well-known rebuttable presumption in criminal law is the presumption of innocence. The corner stone 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 in fact 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.
Doli Incapax is a rebuttable presumption which applies to children between the ages of 10 and 14 years. In essence, this presumption specifies that children between the ages of 10 and 14 years are incapable of committing a crime due the presumed deficiency in their ability to form mens rea. 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.
In RP v The Queen  HCA 53, High Court Justices Kiefel, Bell, Keane and Gordon noted that this presumption may be rebutted. To rebut this presumption, evidence must be provided that demonstrates that the child understood that it was morally wrong to engage in the criminal behaviour.
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.
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 which 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 knows that A is related to 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
- S50C sexual penetration of a child or lineal descendant
- S50D sexual penetration of a stepchild
- S50E sexual penetration of a parent, lineal ancestor or stepparent
- S50F sexual penetration of a sibling or half-sibling
Section 73(1)(b) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) 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.
Section 73(2) of the same Act contains a rebuttable presumption. That being where a person has in their possession a quantity of a drug that is not less than the 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 Act, the accused can be required to give evidence during their plea to rebut this presumption.
The traffickable quantity of various drugs can be found in Schedule 11 of the Drugs, Poisons and Controlled Substances 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, 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.