time being whether an accidental killing might be manslaughter. We are simply making the point about the need for the actus reus and the mens rea to coincide.
3.2 Strict liability
Contrast strict liability offences where prosecution does not need to establish
the mens rea.
2
It is often present in food and public type safety offences; or
Where it may be very difficult to prove knowledge in relation to mental
intent e.g. underage sex offences in some circumstances.
4. Proving criminal liability
4.1 The presumption of innocence
It is a fundamental principle, although subject to certain exceptions as set out below, that a defendant is innocent until proven guilty: Woolmington v DPP.
3
In this case Reginald Woolmington was a farm laborer. His wife had left him and moved in with his mother. The defendant took a shotgun with him to visit his wife,
alleging that he was going to threaten to commit suicide as a means of getting her to come back to him. According to the defendant, the gun went off accidentally
killing his wife.
The trial judge ruled that is was incumbent on the defendant to prove in the circumstances that the death was an accident. In other words, that he was presumed
to be guilty of murder unless he could establish this. On appeal to the Court of Criminal Appeal the decision of the trial judge was upheld. The defendant appealed
to the House of Lords which reversed the decision of the Court of Criminal Appeal and quashed the conviction.
Viscount Sankey delivering the unanimous decision of their Lordships stated at 481-482 that:
Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoners guilt subject to
2
Michael Jackson, Criminal Law in Hong Kong Hong Kong: Hong Kong University Press 2006 4.
3
[1935] AC 462.
3
what I have already said as to the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a
reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention,
the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the
prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.
The common law presumption of innocence in Hong Kong has been confirmed by the Privy Council in Kwan Ping-bong.
4
4.2 The Prosecution’s burden of proof
