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This article was written by Michelle Makela - Legal Practice Director

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

Rebuttable Presumptions (Vic)


A rebuttable presumption is where the law requires a court to presume something to be the case until evidence is adduced that proves the contrary. In criminal law, a rebuttable presumption can work in favour of the accused or against the accused. There are numerous rebuttable presumptions in criminal law. 

Presumption of innocence

The most well-known rebuttable presumption is the presumption of innocence. This presumption continues until the prosecution can prove that the accused committed a crime beyond a reasonable doubt. It is not up to the accused to prove that they are not guilty. If the prosecution cannot rebut the presumption of innocence, the accused must be found not guilty.

Doli incapax

Doli incapax is the rebuttable presumption that a person under 14 is incapable of committing a criminal offence. In Victoria, doli incapax applies to children over 10 and under 14. This presumption is based on the principle that a child younger than of 14 is not mature enough to form an intention to commit a crime.

The prosecution can rebut doli incapax by demonstrating that a child over 10 knew their actions were seriously wrong as opposed to just ‘naughty’. The prosecution case must be clear beyond all doubt to rebut this presumption. The evidence proving the child’s guilty knowledge must not be merely that they did the physical act charged, however obviously wrong they may be. The older the child is, the easier it will be to prove they knew the nature of their actions.

When the prosecution seeks to rebut doli incapax, it may produce evidence such as a psychological assessment, a police interview transcript or recording, the child’s prior criminal history, and evidence from their teachers, parents, psychologists or psychiatrists, as well as evidence of their behaviour before and after the alleged criminal act.

Who bears the burden of proof?

Recent studies of Victorian law suggest that the onus of establishing doli incapax is in practice placed on the defence, which is expected to provide a report (at the cost of the client) to prove the child is doli incapax. Studies of Children’s Court matters show that the defence has to raise the presumption, adduce evidence supporting the presumption of doli incapax and argue that it applies.

By contrast, under Section 4N of the Commonwealth Crimes Act, children between 10 and 14 can be held responsible for an offence only if the prosecution can prove they knew the conduct was wrong. This means that in commonwealth criminal matters, the prosecution bears the burden of rebutting the presumption of doli incapax.

Rebuttable presumptions and bail

Different rebuttable presumptions apply in relation to whether or not a defendant should be granted bail in Victoria. Which presumption applies depends on the offence the person is charged with and their bail history (if they have any).

When a defendant is charged with a minor criminal offence and does not have a history of failing to appear, a rebuttable presumption applies that the person should be released on bail. However, this can be rebutted if there are circumstances that make it inappropriate for the accused to receive bail. The onus is on the prosecution to rebut the presumption.

When a defendant is charged with a serious offence or has a history of failing to appear at court, the rebuttable presumption is that they should not be released on bail. The defence may rebut this presumption if it can show that circumstances exist that make it appropriate to grant bail. 

Reverse onus in certain offences

There are certain criminal offences in Victoria where legislation states that the defendant bears the burden of disproving certain elements of the offence. This is known as a reverse onus and in effect means that the rebuttable presumption of innocence does not apply to these offences. The introduction of these provisions has been controversial as some see them as a denial of a fundamental human right.

Terrorism offences

One example of offences that carry a reverse onus is terrorism offences under the Commonwealth Criminal Code.  When a person is charged with many of these offences, the defendant bears the burden of proving that certain elements did not exist. For example, if a person is charged with entering a ‘declared area’ of a foreign country (Section 119.2 Criminal Code), they bear the burden of proving that the area was entered for a legitimate purpose only. The defence would have to provide evidence that the accused did not enter into or remain in the declared area for an illegitimate purpose.

Drug offences

Where a person is found in possession of a ‘trafficable’ quantity of drugs, the Criminal Code provides that they are presumed to have an intent to traffic the drug. Consequently, they must prove on the balance of probabilities, that they did not have this intent. This can be challenging given that intention is usually inferred from conduct.

Rebuttable presumptions and law reform

Many people believe that a person accused of offences should not be required to rebut a presumption as this goes against the principles of natural justice. It is a significant task rebutting a legal presumption and to understand what is required to do so, particularly when a person is self-represented.

Furthermore, lengthy delays are common during the prosecution of some of the above offences. This may mean that a defendant may not be able to recall or produce evidence from the day of the alleged offending to satisfy this burden. It is a fundamental principle of our judicial system that every allegation must be proved beyond reasonable doubt and many people feel that this burden should not be shifted to the accused.

However, others believe that offences as serious as terrorism justify the curtailment of some natural justice principles.

If you require legal advice or representation in a criminal law matter or in any other legal matter, please contact Armstrong Legal. 

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