WHAT IS THE BURDEN OF PROOF?

The burden of proving that the Defendant has benefitted from crime, and the amount of the benefit is borne by the Prosecution. The balance of proof that of “the balance of probabilities.” This is a particular onus on the Prosecution but the onus shifts in the following way. There are, in certain circumstances, Assumptions made. The first assumption is that any property transferred to the Defendant within the six year period preceding the start of the proceedings was obtained as a result of his general criminal conduct. The second assumption is that property held by the Defendant at any time after conviction was obtained as a result of his general criminal conduct. The penultimate assumption concerns expenditure at any time after the start of the six year period, and finally the assumption that property held is held by the Defendant alone. These assumptions are very onerous as the burden has in effect shifted to the Defendant to prove otherwise. This is not always easy, particularly with the passage of time. The Defendant must prove otherwise “on the balance of probabilities.

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