CORE Defence Analytical Framework
The Prosecution Burden Map
A systematic method for mapping prosecution evidence against each element the Crown must prove beyond reasonable doubt. The Burden Map reveals evidentiary gaps, identifies vulnerable elements, and informs defence strategy from brief analysis through to hearing.
The Burden of Proof: Foundational Principles
The presumption of innocence and the prosecution's burden of proof are foundational to criminal justice. In Woolmington v DPP [1935] AC 462, the House of Lords established that the prosecution must prove the guilt of the accused beyond reasonable doubt.
This burden requires proof of every element of the charged offence. If the prosecution fails to adduce evidence capable of proving any single element beyond reasonable doubt, the charge must fail. The Prosecution Burden Map provides a systematic method for identifying such failures.
The Standard of Proof
"Beyond reasonable doubt" does not mean beyond all doubt, nor does it mean the balance of probabilities. It means the tribunal of fact must be satisfied to a high degree of probability that the accused is guilty. If there is a reasonable hypothesis consistent with innocence, the prosecution has not discharged its burden.
Green v The Queen (1971) 126 CLR 28
The Burden Mapping Process
CORE Defence Lawyers applies the Prosecution Burden Map in three stages: element identification, evidence allocation, and gap analysis.
Stage 1: Element Identification
For each charge, identify every element the prosecution must prove. Elements are derived from the statutory provision creating the offence, supplemented by common law interpretation where applicable.
Example: Common Assault (s 61 Crimes Act 1900)
For a charge of common assault, the prosecution must prove:
- 1The accused applied force to the complainant, or caused the complainant to apprehend immediate application of force
- 2The application of force (or apprehension) was without the complainant's consent
- 3The accused acted intentionally or recklessly
- 4The accused's actions were without lawful excuse (no self-defence, lawful correction, etc.)
Stage 2: Evidence Allocation
For each element, identify every piece of prosecution evidence that supports (or could support) that element. Apply the Evidence Continuum to assess the reliability tier of each piece of evidence.
Evidence Allocation Table (Example)
| Element | Evidence | Tier |
|---|---|---|
| Application of force | Complainant statement BWV (shows aftermath only) Photos of redness to cheek | Tier 4 Tier 2 Tier 2 |
| Without consent | Complainant statement | Tier 4 |
| Intention/recklessness | Inference from alleged act | Tier 5 |
| No lawful excuse | Complainant denies provocation Accused exercised right to silence | Tier 4 N/A |
Stage 3: Gap Analysis
Analyse the completed map to identify:
- Unsupported elements - elements with no evidence or only Tier 5 evidence
- Single-source elements - elements supported only by one witness whose credibility can be challenged
- Vulnerable elements - elements supported only by lower-tier evidence that can be challenged on reliability grounds
Element Status Classification
Based on evidence allocation, each element is classified by evidentiary strength:
Multiple pieces of Tier 1-2 evidence supporting element. Challenge likely to focus on interpretation rather than existence of evidence.
Tier 3-4 evidence or single witness testimony. Credibility Assessment Matrix analysis warranted. Cross-examination may undermine support.
No evidence, only Tier 5 evidence, or evidence from witness with High vulnerability on Credibility Matrix. Potential no case submission point.
Strategic Applications of the Burden Map
No Case Submission Assessment
Under Doney v The Queen (1990) 171 CLR 207, a no case submission succeeds if there is no evidence upon which a reasonable tribunal could convict, taking the prosecution evidence at its highest. The Burden Map reveals elements that may support a no case submission.
If any element is classified as "Weakly Supported / Absent," a no case submission should be considered. The submission does not require the defence to assert what happened - only that the prosecution has failed to adduce sufficient evidence on a necessary element.
Cross-Examination Focus
The Burden Map identifies which elements depend on witness testimony that can be challenged. Cross-examination priorities should focus on undermining evidence supporting the weakest elements, potentially creating gaps sufficient for acquittal.
Case Conference Strategy
Knowledge of evidentiary weaknesses informs negotiation strategy. Where prosecution case has significant gaps, defence can negotiate from strength, potentially achieving charge withdrawal or amendment to charges that can be proved.
Closing Submissions Structure
Closing submissions should systematically address each element, identifying for the tribunal where the prosecution has failed to discharge its burden. The Burden Map provides the structure for this analysis.
Illustrative Application: AVO Breach Matter
Consider a charge of contravening an AVO by approaching the protected person, contrary to a condition prohibiting approach within 100 metres.
Burden Map Analysis
AVO on court file, service certificate available. No challenge available.
Accused present at court when AVO made, explanation provided on record.
Protected person's estimate only - no measurement taken. PP stated accused was "about 50 metres away" in statement but "maybe closer" in 000 call. No photos or video. No independent witness. Accused denies being at location.
No direct evidence. Prosecution relies on inference from presence (if proved). Defence available that accused did not know PP was in area.
Strategic Assessment
Element 3 (approach within prohibited distance) is weakly supported. The only evidence is PP's estimate, which is inconsistent between statement and 000 call. No objective evidence of distance. Cross-examination should focus on establishing PP cannot reliably estimate distance, and closing submissions should argue prosecution has not proved this element beyond reasonable doubt.