ABSTRACT
Chapter Five focusses on the first aspect of the presumption of innocence: the procedural aspect. This aspect is a mandatory rebuttable legal presumption that acts as an instruction to the fact-finder. The chapter starts by discussing the presumption of innocence as a presumption. It then turns to the idea that the presumption is mandatory. That the presumption of innocence is mandatory describes the relationship between the presumption and the burden of proof. It is argued that the presumption of innocence requires the burden of proof to lie with someone other than the accused person. Within this section, affirmative defences, judicial notice, and the right to silence and adverse inferences are discussed. It is argued that these ideas can be compatible with the presumption of innocence under very specific conditions. The next section examines how the presumption of innocence is rebuttable, which describes the relationship between the presumption and the standard of proof. Here it is argued that the presumption of innocence requires a finding of not guilty unless the standard of proof is overcome during trial. Within this section, in dubio pro reo and strict liability are evaluated. The chapter concludes by discussing waiver. The presumption of innocence can be waived by a guilty plea. Once this occurs, both aspects of the presumption of innocence have been waived.
