Failed at every turn on her home soil - Opinion - smh.com.au

This is a very indirect comment to the Corby case and the only reason I'm doing this is because of a personal request. Plus the fact that it's going to be a good way of getting readers more acquainted with the law.

Anyway, going to do two things. First, explain the distinction between crminal and civil cases and their implications. Second, a comment about drug laws in this region.

1. Distinction between criminal and civil cases and the burden of proof.

The basic distinction is that in a criminal case, the state prosecutes you on behalf of the wider public (public interest) while a civil case is what we call 'party-initiated' i.e. if you feel your legal rights have been infringed upon, you go and sue the other party.

Fundamentally, the burden of proof is premised on the idea of he who asserts must prove. So if you wish to assert your legal rights and demonstrate how it is that there is a particular fact pattern that shows that they have indeed been infringed on, you need to prove it. Conversely, assuming that this can be done but you, as the defendant want to show how you have a defence (say you were bumped and hence you in turn bumped the plaintiff who fell into the pool) then you must prove it in turn.

The standard of this burden varies depending on whether you are involved in a criminal or civil suit. Because of the higher stakes involved in a criminal trial (deprivation of life, liberty or a criminal record which could kill your future), and the greater resources that the state can level against you, the standard for the prosecution is a lot higher than in a civil case (where a loss means mere monetary damages). Hence the phrase 'beyond a reasonable doubt' comes in. The state must prove beyond a reasonable doubt the charges it levers against the accused.

Life is slightly easier for the defendant because all he needs to do if to show a reasonable doubt. This, however only applies if you are denying the charge i.e. 'denial of offence element' whether the actus reus (criminal act) or the mens rea (guilty mind).

If, however, you want to raise a defence i.e. you admit to the crime but say you ought to be excused or exculpated, then you will need to demonstrate on a balance of probabilities/preponderance of evidence/'more-likely-than-not' that the facts you assert existed. So this in a murder case would include things like intoxication, unsoundness of mind (insanity), diminished responsibility, provocation or self-defence. In a case of statutory rape, the only defence available would be one of a mistake made in good faith (one made with due diligence), where you honestly though and were not careless in finding out/knowing that the girl was above the age of 16.

In a civil case, you simply need to demonstrate on a balance of probabilities than your rights have been infringed etc.

2. The use of legal presumptions in drug laws.

Here is the sticky point. Legal presumptions basically reverses the burden of proof. So for a charge of possession/trafficking, you are assumed to be guilty by mere virtue of possession unless you can satisfy the court otherwise e.g. you were innocent or that it was for private consumption.

The traditional reason why this was implemented was because it was pretty hard for the prosecution to prove trafficking (beyond possession). However, even accepting this, is this necessarily fair? Should not their job be difficult considering that a life is at stake. After all, this is a victimless crime in the sense that it does not directly lead to any deaths (especially for soft drugs). This is so especially when one considers that this form of legal presumption is NOT used in cases of culpable homicide/muder.

This point is given somewhat more extensive treatment in a commentary on the death penalty.

Peace