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Thursday, 31 May 1928


Mr BRENNAN (Batman) .- The proposed new section is an extension of a somewhat extraordinary and, in my opinion, vicious principle, whereby the burden of proof is placed upon the defendant. For the purpose of illustration only, I refer honorable members to the provisions of section 215, in which it is laid down that the averments of the prosecutor contained in the information or complaint shall be deemed to be proved in the absence of evidence to the contrary. This proposed new section provides that the placing of a mark by a presiding officer on the certified list of voters, or the receipt by the divisional returning officer of an envelope bearing an absent voter's declaration made pursuant to the provisions of section 121, or a postal vote certificate duly signed by an elector and attested by a presiding officer or an authorized witness, shall in any prosecution of an elector for voting more than once at an election be prima facie evidence that the elector has so voted. I consider that it is proceeding too far along the wrong road to say that the burden of proof resting on the prosecution shall be discharged in respect of an allegation of the kind referred to, by the production of a list showing merely that a presiding officer has placed a mark alongside a particular name as an indication that the person concerned had voted at an election. I suppose that there is nothing simpler in the world than for a presiding officer, in all good faith, to place erroneously a mark alongside the name of an elector to indicate that he has voted at an election. I suggest, therefore, that it is a very serious thing to lay an information against a person on such slender material as the absence of such a mark, and then to shift the burden of proof upon him.


Mr E RILEY (SOUTH SYDNEY, NEW SOUTH WALES) - And he would have to provide the evidence at his own expense.


Mr BRENNAN - As the honorable member for South Sydney has observed, action against an elector might involve him in certain expenditure to defend himself against a criminal charge. It is not fair to put the defendant in that position. In moreserious criminal offences the burden of proof rests upon the Crown. Not only is tie Crown bound to make out a prima facie case, but it is bound also to- make a conclusive case before the accused or the defendant is called to account. As I have said this principle is laid down in other Commonwealth legislation. I criticized it as strongly as I could in connexion with the War Precautions Act, and in other measures in which ' it was felt that stern action was necessary at the instance of the Crown, especially in war time. On more than one occasion I have emphasized that there has been a grave departure from wellestablished principles and practice that have been regarded, probably for centuries, as being important to the point of being sacred. We departed from this principle during the war, but since we are now in a time of peace I submit that it is unfair toembody such a drastic proposal as this in the bill now under consideration.







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