IGH COURT ] Maritime Ltd (2003) 124 LGERA MAY O'SULLIVAN
COMPLAINANT,
ON APPEAL FROM THE SUPREME COURT OF Criminal law-Evidence-Burden of proof-Onus on prosecution from first to last
to establish guilt beyond reasonable doubt-Prima facie case made by prosecution- Onus on prosecution notwithstanding--No burden of disproof cast upon accused. ADELAIDE, June 14
In criminal cases, when the prosecution has made out a prima facie case, the burden of proof does not in the absence of some statutory provision on MELBOURNE,
the subject shift to the accused with the consequence that, if he fails to displace July 18.
the prima facie case by denial or explanation, he ought to be convicted. The burden of proving guilt beyond reasonable doubt rests on the prosecution
A finding that a prima facie case has been made out is a finding of law that on the evidence as it stands the defendant could lawfully be convicted of the offence charged. Whether he ought to be convicted depends upon the tribunal being satisfied beyond reasonable doubt on the whole of the evidence before it that the defendant is guilty. This question of fact must be decided, whether or not the defendant has given evidence, upon the basis that the prosecution throughout carries the onus of proving guilt beyond reasonable doubt, even though in some cases it may be legitimate to have regard to the fact that the defendant has not given evidence as a consideration making the inference of guilt from the evidence for the prosecution less unsafe than it might otherwise possibly appear.
R. v. Lovett (1908) 1 Cr. App. R. 111; Wilson v. Buttery (1926) S.A.S.R. 150 O'Halloran v. Crafter.(1940) S.A.S.R. 29 and Giles v. Dodd (1943) S.A.S.R. 132,
APPLICATION for special leave to appeal from the Supreme Court of South Australia.
Francis Charles May was charged, before a court of summary jurisdiction at Adelaide, with (i) unlawfully carrying on the business of a bookmaker otherwise than in accordance with Pt. IV of the Lottery and Gaming Act 1936-1950 (S.A.) contrary to sub-s. 1 (a) of S. 42a of that Act, and (ii) being in a public place, namely, the Thistle Hotel, Waymouth Street, Adelaide, for the purpose of betting otherwise than by means of a totalisator duly licensed under the Lottery and Gaming Act 1936-1950 (S.A.), contrary to S. 62 of that Act. He was convicted on both counts.
An appeal by May to the Supreme Court of South Australia (Abbott J.) was dismissed.
May sought special leave to appeal to the High Court. H. G. Alderman Q.C. (with him R. C. Ward), for the appellant. The idea has become prevalent in South Australian courts that, if a prima facie case is made out, then some sort of an onus is imposed on an accused person, to raise a reasonable doubt in his own favour. It is suggested that the mistaken idea referred to arose from a misinterpretation of R. v. Lovett (1) and from observa- tions…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
May v O'Sullivan [1955] HCA 38
Case
[1955] HCA 38
Decision Date
CaseChat Overview and Summary
The case of *May v O'Sullivan* concerned an appeal by Francis Charles May, who had been convicted in a South Australian court of summary jurisdiction on two charges relating to the unlawful carrying on of a bookmaking business and betting in a public place. May's appeal to the Supreme Court of South Australia was dismissed, and he sought special leave to appeal to the High Court of Australia.
The central legal issue before the High Court was whether, in criminal proceedings, the burden of proof shifts to the accused once the prosecution has established a prima facie case. The appellant argued that a misconception had arisen in South Australian courts, suggesting that if a prima facie case is made out, an onus is imposed on the accused to raise a reasonable doubt, contrary to the fundamental principle that guilt must be proven beyond reasonable doubt by the prosecution.
The High Court, in delivering its judgment, clarified that the burden of proving guilt beyond reasonable doubt rests on the prosecution from the outset and does not shift to the accused, even if a prima facie case is established. The Court noted that while a finding of a prima facie case means the defendant could lawfully be convicted on the evidence presented, the ultimate question of whether the defendant ought to be convicted depends on the tribunal being satisfied beyond reasonable doubt on the whole of the evidence. The Court expressed concern that certain observations in previous South Australian cases, particularly *R. v. Lovett*, *Wilson v. Buttery*, and *O'Halloran v. Crafter*, might have been misinterpreted as suggesting a shift in the onus of proof. While acknowledging that a defendant's failure to give evidence could be a legitimate consideration in assessing the weight of the prosecution's evidence, the Court emphasised that this did not equate to a shift in the burden of proof.
Despite making these important observations on the burden of proof in criminal cases, the High Court ultimately refused special leave to appeal. The Court found that the decision of the magistrate in the present case was not open to attack on the ground of any misapprehension as to the burden of proof, and therefore, the appeal to the High Court was dismissed.