General Principles in Criminal Law

There are four important principles of the criminal law. These principles are set out briefly here and
discussed mo later in this topic and in Court - Criminal Matters.
Innocent until proven guilty (the presumption of innocence)
The basis of our system of criminal justice is that a person, although charged with an offence, is
considered innocent until proved guilty of the offence. The magistrate, judge or jury, as the case may be,
must be satisfied beyond a reasonable doubt that the person is guilty. Where there is a reasonable doubt,
the person must beacquitted (that is, found to be not guilty of the offence).
The fact that a person has been charged does not mean that she or he is guilty, and any discussion of the
charge should make it clear that at this stage the offence is only alleged.
Burden of proof
The prosecution have the task of proving the guilt of the person who is charged with an offence (the
defendant). For the defendant to be found guilty of an offence, it must be proved beyond reasonable
doubt. It is not up to the defendant to establish her or his innocence.
This rule applies in all criminal trials, although sometimes is up to the defendant to give evidence of a
certain point in the defence case. For example, in those offences which prohibit a certain act 'without
reasonable excuse', the defendant must explain her or his excuse, although it is up to the prosecution to
prove that the excuse is not reasonable.
In some cases the burden of proof of a particular defence (such as insanity) may be on the defendant, but
then the defence need only be proved on the balance of probabilities,and not beyond a reasonable doubt,
as the prosecution must do.
Right to remain silent
Generally a person is not required to answer police questions. However, there are some exceptions to
this rule. The main exception is that a police officer can request the name and address of a person found
committing an offence, or who the police officer has reasonable cause to suspect has committed, or is
about to commit, an offence or of a person who may be able to assist in the investigation of an offence or
suspected offence [Summary Offences Act 1953 s 74A]. In these circumstances a person who refuses to
give her or his name and address, or who gives a false name and address, commits an offence. Drivers
of motor vehicles are also required to give their name and address, and that of the owner of the car,
see : arrest and questioning.
Double jeopardy
The principle of criminal law called the double jeopardy rule is that no person should be punished more
than once for the same offence and that no person ought to be placed twice in jeopardy (at risk) of being
convicted. This means that a person who has been charged, tried and acquitted cannot be charged again
for the same matter. However, often a new trial is ordered where for example, an appeal court overturns a
conviction or where the first trial resulted in a hung jury or a mistrial.
Changes to the Criminal Law Consolidation Act 1935 (SA) [ss 331-338] mean that double jeopardy no
longer applies for serious offences such as murder, manslaughter and aggravated rape, provided certain
circumstances are met. There are two situations in which a person can be re-tried for an offence for which
they have previously been acquitted:

Where fresh and compelling evidence not provided at the original trial is produced. This evidence
must be reliable and substantial [s 337]; or

Where the acquittal is shown to be a tainted acquittal. A tainted acquittal occurs where a person
was not convicted of an offence because an administration of justice offence was committed
(offences ofperjury, fabrication or concealment of evidence, bribery, witness or juror intimidation or
attempting to pervert the course of justice). Charges can be laid against the acquitted person if it is
more likely than not that they would have been convicted but for the administration of justice offence
[s 336].

What is a Crime?
A crime is an offence that merits community condemnation and punishment, usually by way of fine or
imprisonment. This is different from a civil wrong (a tort), which is an action against an individual that
requires compensation or restitution.
Criminal offences are normally prosecuted by the State or the Commonwealth, whereas it is usually up to
the individual concerned to take a civil action to court. Whilst it is also possible for an individual to begin
criminal proceedings, this is very rare.
Some matters, such as assault, can be both crimes and civil wrongs at the same time. The police can
prosecute the wrongdoer for assault and the victim can take civil action to recover money (or some other
kind of compensation) for any injury suffered.
It is not always easy to tell when something is a crime. A person who takes money without permission
commits a criminal offence, whereas a person who fails to pay back money commits a civil wrong (not a
crime). Although a civil action can be commenced to recover the money, the borrower can only be
prosecuted for a criminal offence if fraud is involved.
Whether or not the police decide to charge a wrongdoer with a criminal offence is entirely their decision. A
victim of crime cannot force the police to prosecute an offender, but it is possible, although not common,
to mount a private prosecution. It is advisable to get legal advice if you are considering this.
There is a range of sources of law which establish the existence of crimes.
Some crimes exist under Commonwealth Acts, such as the Crimes Act 1914 (Cth) and the Customs Act
1901(Cth). Many crimes, such as conspiracy, exist only at common law.
Most criminal offences in South Australia are found in the Criminal Law Consolidation Act 1935 (SA) and
the Summary Offences Act 1953 (SA).