}
(
---
Special Criminal Court Act 1979, the general proposition of law which emerged from it was that when a presumption of law gave
it violated the rise to
arbitrary and unjust consequence, presumption of innocence. This, I think, was part of Mr. Fung's
a salt of an submission when he dealt with the 0.5 gramme of ester of morphine and especially the 5 packets in S.46; a matter
which I shall deal with in due course.
The Canadian appellate courts have dealt with the presumption of innocence, which is contained in S.11(d) of their Charter and is very similar in wording to S.11(1) of the BORO, in very detailed judgments time and again in a string of cases. These judgments considered the presumption of innocence both generally and specifically in relation to particular statutory
provisions.
I find the Canadian cases of the most help in
coming to my decision on the present issue.
Leaving aside the delicate and engrossing arguments as
to whether the crown needs only to prove the essential elements of an offence or whether it needs to go further and prove the culpability of the accused; the one unanimous view of all the was that if a provision learned judges in the Canadian cases required an accused to disprove on the balance of probabilities the existence of a presumed fact, which is an important element
of the
in offence
presumption of innocence.
question,
that provision
violates
the
I am conscious of the fact that the
Canadian
courts
take
by
far
the strictest
view on
the
interpretation of the presumption of innocence.
This is SO
because by S.1 of their Charter, an infringing provision may be
saved if it was found to be justifiable.
Although there is no
the BORO, this
such or similar general saving provision in
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