Supreme Court dismisses appeal regarding burden of proof for self-defence in criminal cases.

An Chúirt Uachtarach

The Supreme Court

O’Donnell J

Clarke J

MacMenamin J

Laffoy J

Dunne J

Charleton J

O’Malley J

Supreme Court appeal number: 2016 no 000003

[2016] IESC 000

Court of Appeal record number: 2013 no 165

[2015] IECA 310

Central Criminal Court: Bill no …..

Between

The People (at the suit of the Director of Public Prosecutions)

Prosecutor/Respondent

- and -

Joseph Heffernan

Appellant

Judgment of Mr Justice Peter Charleton delivered on Tuesday 7th of February 2017

1. In concurring with the principal judgment, that of O’Malley J, some brief observations may be appropriate.

2. The defence of diminished responsibility emerged as a common law development in Scotland. Its elements were first clarified in the

case of HM Advocate v Savage [1923] JC 49. In reading the judgment of the Lord Justice Clerk in that case it is clear that a defence

akin to insanity had evolved over time through prior decisions made by trial judges in charging a jury on a murder case. This new

defence served to reduce a conviction from murder to manslaughter. It emerged in part as a matter of fairness to an accused who

was not, as might be colloquially said, entirely responsible for his actions but was, instead, suffering from a substantial mental

impairment, and partly also to avoid the death penalty for those considered insufficiently deserving of that ultimate punishment. In

addressing the jury in that case, Lord Alness outlined that for diminished responsibility to operate, to reduce a potential murder

conviction to manslaughter, more than the mere clouding of reason and restraint, there through drink and drugs, was required.

Instead the accused must demonstrate a genuine and serious effect on the balance of the mind:

Formerly there were only two classes of prisoner—those who were completely responsible and those who were completely

irresponsible. Our law has now come to recognise in murder cases a third class, the class which I have described, namely

those who, while they may not merit the description of being insane, are nevertheless in such a condition as to reduce

the quality of their act from murder to culpable homicide. … To say that a man, who takes drink and while under its

influence commits a crime, is to be excused from the penalty of the crime merely because he made himself drunk would of

course be a most perilous doctrine. And it is not the law of Scotland. The man himself is responsible for getting drunk, and

the mere fact that he has taken drink, and while under its influence committed a crime, is not sufficient to excuse him

from the consequences of his crime. On the other hand … the state of mind of the prisoner may be such, short of

insanity, as to reduce the quality of his act from murder to culpable homicide. …[T]here must be aberration or weakness

of mind; that there must be some form of mental unsoundness; that there must be a state of mind which is bordering on,

though not amounting to, insanity; that there must be a mind so affected that responsibility is diminished from full

responsibility to partial responsibility—in other words, the prisoner in question must be only partially accountable for his

actions. And I think one can see running through the cases that there is implied … that there must be some form of

mental disease. Well, ladies and gentlemen of the jury, that is a very difficult region of law. I have told you the kind of

thing that is necessary. Aberration or weakness of mind; mental unsoundness; a state of mind bordering on insanity

although not reaching it; a mind affected so that the responsibility is diminished from full responsibility to partial

responsibility. That is the sort of thing that must be proved in order to establish that the crime which would otherwise be

murder is only culpable homicide … Here again the burden of proof is upon the accused. … You will consider whether from

first to last … the prisoner has proved to your satisfaction that on that night, and in particular at the hour when this

incident occurred, his mental state was unsound, that he was in a state of mental aberration, and not fully responsible for

his actions. You will consider whether the evidence does not point the other way. That is for you, not for me.

3. In the later case of HM Advocate v Braithwaite [1945] JC 55, the Lord Justice Clerk added that the defence involved a finding of

“weakness of intellect, aberration of mind, mental unsoundness, partial insanity, great peculiarity of mind and the like”. It was not,

Lord Cooper said, enough to demonstrate “that an accused person has a very short temper, or is unusually excitable and lacking in

self control.” The defence did not, in other words, embrace the extreme emotions which may happen at times of family or other

relationship stress, but which the law requires be controlled or diverted. Instead, diminished responsibility was described in a way akin

to a state of insanity, though not reaching the extreme polarity of lack of comprehension or control of impulse which that complete

defence requires; and see Carraher v HM Advocate [1946] JC 108. In Ireland, the introduction of the defence came about by statute.

4. Under the Criminal Law (Insanity) Act 2006, for diminished responsibility to operate as a defence to murder, the conditions set out

in s. 6 must be fulfilled. These require the prosecution to prove that the accused perpetrated the external element of the killing of

another person, intending to kill that person or cause that person “serious injury”, as s. 4 of the Criminal Justice Act 1964 requires.

Hence, the prosecution must prove murder. The essential elements of what makes a killing unlawful remain as a burden to be proved

beyond reasonable doubt by the prosecution. For the accused to have this defence, he or she must demonstrate a “mental disorder”,

which in s. 1 of the 2006 Act “includes mental illness, mental disability, dementia or any disease of the mind”, but specifically “does

not include intoxication”. Under s. 6(1)(c), that mental disorder need not be “such as to justify finding him or her not guilty by reason

of insanity” but the accused must demonstrate that his or her mental disorder “was such as to diminish substantially his or her

responsibility for the act”. Insanity and diminished responsibility both involve some aberration of the mind which, in the one case

removes, and in the other reduces, the accused’s responsibility for a crime. The defences differ, however, in terms of the state of

mind of the accused as to the degree of responsibility that can be ascribed for the wrongful action. In raising the defence of insanity,

the accused is essentially required to demonstrate that, when carrying out the crime, he or she did not know what he or she was

doing, or in older language did not understand the nature and quality of the action. They must, otherwise, demonstrate that they

could not comprehend that what they were doing was wrong, meaning morally and not simply legally wrong. Alternatively, they may

demonstrate that they were entirely carried out of the realm of self restraint by an irresistible impulse. These principles are

reproduced in s. 5 of the 2006 Act not knowing “the nature and quality of the act”, or not knowing “that what he or she was doing

was wrong”, or that the person “was unable to refrain from committing the act” In the case of diminished responsibility, by contrast,

the accused understands the nature of the crime they have committed, but makes the case that their mind was disordered through

illness, disability, dementia or disease such that their criminal responsibility is substantially diminished.

5. The application of the generally available defence of insanity entitles an accused to an acquittal, though subject to compulsory

medical treatment in the Central Medical Hospital in virtually every case. The defence of diminished responsibility operates to reduce

murder to manslaughter, with the sentence at the discretion of the trial judge. In the application of either defence, it has always

been understood that the accused bears more than an evidential burden, that of adducing through defence evidence or of pointing to

prosecution testimony which enables an issue to be left to the jury by the trial judge. Both defences carry a persuasive burden. The

accused carries the burden of proving the defence. Insanity and diminished responsibility both emerged as defences through judicial

development of the law and, as such, reversed the usual burden on the prosecution of disproving all defences of which the evidential

burden had been met by the accused. Rather, over centuries, when the defences of insanity or diminished responsibility were raised,

the approach of the courts has been that the accused is required to clearly demonstrate that he or she, though ostensibly completing

every element of the crime, suffered from mental infirmity in sufficient degree.

6. As of 1922, the laws carried over by Article 50.1 of the Constitution as continuing in “full force and effect” are those “not

inconsistent” with our basic law. Authoritatively, the criminal law is that stated in the 26th edition of Archbold’s Pleading, Evidence

and Practice in Criminal Cases (London, 1922, Roome and Ross editors). The fundamental presumption of law is that stated on page

13 which is that: “Every person at the age of discretion is, unless the contrary is proved, presumed by law to be sane, and to be

accountable for his actions.” A perusal of that edition demonstrates that, at the time of the criminal trial in R v McNaughten (1843) 4

St Tr (NS) 847, the burden and standard of proof was not as completely worked out as it later became in consequence of the

decision in Woolmington v DPP [1935] AC 462, whereby it was unequivocally recognised that it is the “duty of the prosecution to

prove the prisoner’s guilt.” Even there, the exception of insanity was recognised as placing a burden of proof to the standard of

probability on the accused asserting that defence. The second answer of the judges when House of Lords set down in the

McNaughten Rules required that “to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the

committing of the act, the accused” was insane. That must be “clearly proved” to the jury by the accused.

7. The 2006 Act demonstrates a degree of influence by the judge-made Scottish precedent which first recognised diminished

responsibility as a defence ameliorating murder to manslaughter. Section 6(2) provides that “it shall be for the defence to establish

that the person is, by virtue of [diminished responsibility], not liable to be convicted of that offence”. Certainly, there have been well-

reasoned calls for the insanity defence to be treated in the same way as all other defences, specifically requiring the prosecution to

disprove the application of the defence once the accused has adduced sufficient testimony for the evidential burden to be met.

O’Connor and Fairall in Criminal Defences (3rd edition, Sydney, 1996) at para. 13.7 argue thus:

It is perhaps surprising that the rule has survived to the modern day. It has been criticised by academic writers and

judges. It is of questionable pedigree. Neither M’Naughten (an advisory opinion) nor Viscount Sankey’s endorsement [in

Woolmington] (mere obiter dicta) is authoritative. Criticism can easily be directed towards the practical difficulties and

absurdities thrown up by the divergent rules. The point should also be made that the rule constitutes blatant

discrimination against those suffering from mental illness. Forensic psychiatry has advanced beyond the ‘wild beast’ test

of the eighteenth century and this archaic rule should be buried as well. But the rule is so firmly entrenched that it would

take statutory intervention to change it. Recent reviews of the criminal law have endorsed the rule and occasional calls

for legislative reform have not been heard, or if heard, have not been acted upon.

8. This criticism is, however, misplaced. O’Malley J correctly warns against any analysis which enables a burden in relation to a

defence to be placed on an accused but would prohibit the disproof by the accused of any element of the crime. The interaction

between the elements of a criminal offence and the defences to that crime has been formulated from instance to instance over

centuries, but always on the basis of experience. Generally speaking, criminal defences proceed on the basis that the accused must

meet an evidential burden in raising a defence on some credible basis; enough that there may be a reasonable doubt. Then the

prosecution must demonstrate that, on the totality of the evidence at the trial, this defence not be found by the jury to raise a

doubt in their minds. Once the possibility of such a defence has been validly raised, the evidential burden, it is for the prosecution to

prove beyond reasonable doubt that its application has been negatived; The People (AG) v Quinn [1965] IR 366. Within the defences

to criminal responsibility, there are strong divergent elements which could be argued, on the basis of logic alone, to lead to divergent

results. For instance, the defence of entrapment is so closely rooted in considerations of the proper ordering of society and the

adherence to basic standards by law enforcement officers that it seems to be the strict view of the reasonable person which the

accused must meet to avail of it. Similarly with self-defence in terms of both the proportionality of response to force and the

circumstances justifying defensive violence the objective standard is dominant. With murder, the moral culpability intrinsic to that

crime has enabled a special reductive defence applicable only to murder whereby the use of too much force enables a jury to bring in

a manslaughter verdict; The People (AG) v Dwyer [1972] IR 416. With provocation, a defence which similarly reduces murder to

manslaughter and which is designed around avoiding the ultimate opprobrium that a murder conviction represents, subjective factors

govern whether the accused, while intending to kill, should be granted a concession based on the human frailty of emotion in the face

of insult. This subjective assessment, judged from inside the mind of the accused, though external fact remains relevant, has not met

favour in other jurisdictions. More problematic even than that is the resort within this defence to the proportion of response to insult

from the internal workings of the accused’s emotion-fuelled state; The People (DPP) v MacEoin [1978] IR 27 and see the review by

O’Donnell J of the problems associated with this defence in The People (DPP) v Curran [2011] IECCA 95. It may be appropriate in due

course to consider the elements of that defence afresh.

9. The Law Reform Commission, reporting on Defences in Criminal Law (LRC 95-2009) call for the restatement of all defences in

objective terms at paragraph 1.29:

Judges and legislators have repeatedly applied restricting requirements and conditions to the defences and, as Ashworth

has noted, there are strong social arguments for such restrictions [Ashworth Principles of Criminal Law (4th edition,

Oxford, 2003) at p. 250]. Subjective principles have their foundation in the principle of individual autonomy, and its

emphasis on choice, control and fair warning. However, modern liberal philosophy also emphasises that individuals should

be viewed as members of society with mutual obligations rather than abstracted and isolated individuals [Ashworth, at p

251]. On this basis individuals have a duty to acquaint themselves with the limits of the law.

10. It can perhaps be argued that the reformulation of all defences in terms of the view of the reasonable person, albeit with a

measure of appreciation to those facing situations where the calm application of reason is difficult, is a sensible approach and one

most likely to produce a just result. An argument could also be mounted that the defences which serve to reduce murder to

manslaughter should also apply to serious assault. But again, experience does not demonstrate any compelling reason based on the

application of fundamental justice why the law should be forced in that direction. Again, in analysing any defence, experience is

shown to be the driving force. Insanity as a finding generally results in treatment for what, by reason of the definition of the defence,

must necessarily be a major mental illness or a physical infirmity undermining mental soundness; s. 5(2) of the 2006 Act enables the

person found not guilty by reason of insanity to be committed to “a designated centre”, or for a temporary committal of up to 6

months to enable a report. Insanity is available as a defence to all offences but rarely used outside murder. The circumscription of its

elements make it an unlikely resort for those accused of shop-lifting or drug-pushing. Since the likely result of an insanity finding is

incarceration in a psychiatric hospital, perhaps over decades, only the charge of murder makes calling it in aid attractive to one

accused of crime. As Oliver Holmes wrote: “The law embodies the story of a nation’s development through many centuries, and it

cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics”; The Common Law (1881) at page 1.

At the time in England and Wales when a conviction for murder led to judicial execution by hanging, the standard rule applied, as it

does now, that insanity must be clearly demonstrated by the accused. Glanville Williams in Proof of Guilt: A Study of the English

Criminal Trial (London, 1963) records that where there were cases in which the persuasive burden was not achieved by the accused

but, nonetheless, there remained some question as to his or her sanity at the time of striking the blow, the executive would act

appropriately. He records that problem as one capable of resolution by practical measures at page 130:

In insanity cases, common sense has triumphed and the jury have not been allowed to be the final arbiter. Even if, on a

charge of capital murder, the jury convict of the murder and refuse to find insanity or diminished responsibility, the Home

Secretary [executive branch of government] will, if there is any doubt, take the advice of medical experts, and if they

report that the prisoner is insane, the death sentence will not be carried out and he will be transferred to a Broadmoor

institution. This enlightened practice has survived strong opposition.

11. There is no death penalty in Ireland; Article 15.5.2° provides: “The Oireachtas shall not enact any law providing for the imposition

of the death penalty.” Where the jury rejects the accused’s plea of insanity and find him or her guilty, the result will be a life

sentence. By contrast, where the jury accept that the persuasive burden has been met on the part of the accused and the defence

of insanity has been successfully raised, the accused will be deemed not guilty of murder but will generally undergo compulsory

psychiatric treatment in the designated mental hospital. Treatment for a mental illness is not necessarily verdict dependent; many

prisoners sentenced to terms in an ordinary jail may, by executive decision, spend some time in a secure mental hospital. On this

appeal, the argument advanced is similar to that advanced on the basis of the guarantee of the presumption of innocence in the

Canadian Charter of Rights and Freedoms by the Supreme Court of Canada in R v Chaulk [1990] 3 SCR 1303. The reasoning in that

case, however, derived from a precedent based on the presumption of care by the driver of an automobile on a finding of occupancy

of the driver’s seat in R v Whyte [1988] 2 SCR 3. The identified principle was that if the “final effect of a provision” requiring the

accused to “prove some fact on the balance of probabilities to avoid conviction” this would have the result of violating “the

presumption of innocence because it permits a conviction in spite of a reasonable doubt in the mind of the trier of fact as to the guilt

of the accused.”

12. Insanity and diminished responsibility both require an accused to have been mentally infirm at the moment of striking the fatal

blow; the calm planning associated with poisoning or organising a contract killer would seem outruled. Prior behaviour leading to a

crime, the presence or absence of motive and the conduct of the accused in concealing or otherwise responding to the

circumstances he or she has brought about can be useful as a guide to the workings of the accused’s mind as may psychiatric

opinion. The circumstances of the crime and the analysis of the accused’s mind are both relevant to the resolution of whether the

accused has clearly demonstrated that either the test for insanity or that for diminished responsibility has been met. This is a

persuasive burden. Insanity is a special defence in enabling a form of treatment order by a court where the accused has been proven

to have killed the victim but where that accused may not have intended to kill the victim or cause the victim serious injury. It might

be argued, as a matter of logic, that someone who does not understand the nature and quality of their actions cannot have fulfilled

the mental element of the crime. But what normally would apply in the need for the prosecution to meet proof on the basis of external

event and mental culpability is circumscribed by the insanity defence. An accused that kills another, operating under the insane

delusion that he is in a battle with evil and non-human forces, for instance, cannot seek an acquittal outside the insanity defence. If

that is the state of mind of the accused, society is to be protected by the special verdict applicable to insanity; R v S [1979] 2

NSWLR 1. If an accused person is mentally ill and in consequence has a substantial diminution in the understanding relevant to a

situation of homicide or a substantial diminution of control, under the former law up to the reform brought about by the 2006 Act, an

accused would have been culpable for not calling such control and understanding as he or she had in aid of not killing the victim. That

was the case even if the accused had only a small share of the control or understanding of a person unafflicted by mental infirmity.

Since the 2006 Act, a concession has been made. Not, as in the defence of excessive self defence or provocation, to human frailty,

but rather to the effects of illness.

13. The condition for this is that the accused carries a persuasive burden and thus the applicability of the defence must be clearly

demonstrated. This carries consequences. Unlike circumstances where the accused must solely meet an evidential burden, it may not

be enough for the accused to simply test the prosecution evidence and to probe potential weaknesses, thus leaving the task of

persuading the jury that a particular defence is inapplicable to the prosecution. Instead, the accused would be wise to actually

participate in the trial and in advocating the case for the applicability of the defence or carry the consequences. That is perhaps

demonstrated on the facts of this case, where psychiatric evidence was available to the accused but a decision was made not to call

it but to rely exclusively on testing the prosecution testimony.

14. If the burden on the defence was merely of persuading the jury that there was a reasonable doubt, how would that work

practically? This, after all, was the logic of the decision in The People (DPP) v Smyth [2010] 3 IR 688. There, for the accused to have

to demonstrate a probability that he did not know what was in the package taken in care by him in suspicious circumstances was a

controlled drug, may have resulted in a conviction where reasonable people would doubt that he ever truly had criminal intent. While

that decision that the persuasive burden on the accused was of proving a reasonable doubt of lack of knowledge or suspicion that

the package contained prohibited drugs, is the foundation of the argument on behalf of the accused in this case, what is involved

here is different. By the 2006 Act, the Oireachtas has conceded a limited defence that those who are demonstrably mentally ill to the

degree that they have substantially diminished capacity in control or understanding should not be convicted of murder. What is not

required is an absence of understanding or control as in the case of pleading insanity as a defence. But, in both, the result is likely to

be committal for treatment. Where a jury find insanity, such a result is almost invariable. Where diminished responsibility results in a

manslaughter conviction, the jury verdict demonstrates that an assessment should be made by the executive as to whether more

than merely imprisonment is needed.

15. In both of these defences the accused is saying that, despite having perpetrated the external elements of a homicide, he or she

is seriously ill. In insanity, the plea is irresistible compulsion or total absence of reason. This is an illness and it requires therapeutic

intervention. If the illness does not exist, there is nothing to treat. Hence, the special verdict of insanity can only be arrived at where

it is demonstrated clearly on behalf of the accused that his or her condition is one that requires psychiatric intervention; leaving aside

issues as to hypo-glycaemia or other physically driven conditions. Formerly, the position was that if the accused demonstrated even

the slightest amount of self-control when committing a killing, then the full opprobrium of a conviction for murder would be the result.

However, the creation by legislation of the defence of diminished responsibility prays in aid a substantial impairment of understanding

or control or both by reason of mental illness. Again, it is right that the accused should demonstrate that clearly. Whereas it has

memorably been said, by the distinguished forensic psychiatrist Dr Art O’Connor, that killing is normal and while certainly the number

and bestiality of wars that continue to plague mankind evidence this, juries may be tempted to merely doubt sanity through the often

repeated claim that resonates through homicide cases in confession statements or in testimony that the accused’s “mind went blank”.

Killing requires an effort of will to overcome the intra-species instinct to respect one’s own kind, which can be achieved through

planning or through spontaneous decision readily enough, either where pressure is built up over time or in situations of high emotion.

Therefore, in both these defences of insanity and diminished responsibility, experience has not demonstrated any constitutional or

human rights deficit in requiring a real engagement by the accused in setting out the nature of their mental illness and the dynamic of

their impairment as it unfolded in the context of homicide. That is not productive of unjust results. That engagement is only fully

called on where the accused has a persuasive burden. By setting the standard as requiring the accused to clearly demonstrate that

the defence of either insanity or diminished responsibility is applicable, no accused who has brought about the death of another

person may do anything other than fully engage with the trial and demonstrate the reality of his or her case. A persuasive burden of

mere doubt would achieve that. Mere doubt as to someone’s sanity or as to the major handicap of mental illness so severe as to

substantially diminish responsibility for killing another person is not a ground for therapeutic intervention.

16. In the past, it has been said that the satisfaction that a burden of proof has been met could be expressed in percentage terms.

For instance, some might blithely say that if the balance of probabilities is to be met, one must be 51% certain. Such a conception of

law is to be doubted. When dealing with legal and evidential burdens of proof, one cannot reduce the process of determining whether

a burden or threshold has been met to raw percentage terms. Adjudication is a complex process involving reason, intuition and the

application of common sense; a process that cannot sensibly be reduced to a matter of percentages. Probability in a legal context is

the expression of satisfaction that a fact can safely be found. Still less should someone dare to express a reasonable doubt in

percentage terms. Rather, reasonable doubt is the finding that, on the totality of the evidence, a reasonable person would doubt the

guilt of the accused of the crime. The analysis is best left there since formulations calling on certainty or moral certainty have been

demonstrated as confusing, as is resort to the absence of probability in assessing whether there is a reasonable doubt; see the

judgment of Denning J in Miller v. Minister of Pensions [1947] 2 All ER 372. It is fair that someone who claims a mental illness impairing

their understanding or conduct in high degree in the context of homicide should have a defence in the form of diminished

responsibility. But equally fair is the requirement that, in putting forward such a defence, the accused should truly engage with

setting out his or her defence. Justifiably, the burden may be on the accused to bring forward testimony upon which that fact can

safely be found.

17. Finally, O Malley J’s reasoning should be supported that it may not be the case that drawing distinctions between the elements of

an offence and the defences to that particular offence will be productive of an appropriate analysis. The elements of offences are

enacted as the Oireachtas sees the need to penalise conduct. Often, in the current approach to statutory drafting, defences are also

included. Were there a standardised use of common definitions like possession, recklessness, intent and the like, and a common

approach to objective or subjective elements in defined defences, we would quickly move towards a criminal code. That is not done

as yet. The current rules on elements of crimes and defences to crime are in part very old, many have their origin in common law

while some are statutory. In several cases, amendments have been responsive to perceived crises in the application of law. To find

an apparently satisfying classification as to what might happen as to defences as consistent with the presumption of innocence, but

to say that this cannot constitutionally apply to the elements of an offence, might amount to the unpredictable use of rigid

classification on a fragile but well-functioning structure. In criminal law, the construction of offences and the defences to these are

very often mixed up. In Woolmington, Lord Sankey recognised two exceptions to what is described as the “general rule”, namely

insanity and “any statutory exception”; see [1935] AC 462 at 481 and A Kiralfy – The Burden of Proof (Oxford, 1987) at pages 64-77.

A good description of reversed burdens as to the elements of various offences in England and Wales is set out in those pages.

18. There may be circumstances where it is reasonable, and that may be coterminous in many instances with what is constitutionally

permissible, to require the accused to demonstrate something. For instance, it is an offence to remove archeologically significant

artefacts from Ireland without a licence. Consider circumstances where a gang has raided precious material from an offshore 6th

century Christian monastery. It would be unfair for any ensuing prosecution to fail simply because the prosecution could not prove

that perhaps one of the gang’s number had not procured a licence. Perhaps the one who might have the licence might not even have

been charged. There the element of the offence is both the taking of the artefact and the absence of the licence but the proof of

the latter may be on the accused. Where a person is attacked, for that person to strike in defence is regarded as a defence: but in

reality, the victim of crime is not committing an assault at all in responding proportionately to unprovoked violence. Proportionate

defence of the self or of another unlawfully assaulted is not an assault. Defending yourself simply does not meet the definition of a

criminal attack. Yet, there is what is commonly described as the criminal defence of self defence or lawful use of force. Here, as in

other instances, the line between what is an offence and what is the defence to an offence cannot be clearly drawn. The law

categorises an element as part of the proofs in a crime or as a defence to a charge so as to enable a fair means of setting out what

the contest between prosecution and defence may be. In drug cases, it might be remembered that possessing Aspro, a brand of the

drug aspirin, is not an offence. The entire nature of the prohibition on possessing a controlled drug is based on the proof of facts

sufficient to prove control of the substance, either personally or through another, and a mental element of, at least, suspicion as to

the nature of that substance as not being Aspro but as being a prohibited drug. A reasonable person might feel that no criminal

offence would be committed until the prosecution demonstrate that someone has done something wrong in accordance with the

relevant prohibition. In drugs cases it would be possessing controlled drugs, or dealing in such drugs. The unlawful element comes

from the nature of the drug. What is unlawful for cocaine is lawful for aspirin. Yet, in controlled drug trials the accused bears the

burden of disproving suspicion that the drug was the specified, or some other, controlled drug. That is the crucial element of the

crime which draws moral culpability in the first place. It can tentatively be argued that legislation may legitimately distribute a burden

onto the accused where it is necessitated by the nature of the offence and where it does not fundamentally and unnecessarily

undermine the duty of the prosecution to demonstrate culpability. No unified theory, however, prohibiting burdens of proof as to the

elements of offences on constitutional grounds or of enabling a persuasive burden for defences is either predictably grossly unfair as

to the distribution of proof or is necessarily productive of an unavoidably unjust result. Therefore, no such theory is warranted.

19. The appeal should therefore be dismissed.