From the Courier Mail
Onus Of Proof Is Rarely Reversed
Leading Queensland criminal practice lawyer Bill Potts said secret commissions were one of the most difficult crimes to detect and prosecute.
However, it was one of the few charges under the criminal code that contained a reverse onus of proof.
That meant it was up to Nuttall to prove to a court that, on the balance of probabilities, he did not receive any money, or if he did, it was not for corrupt purposes.
Mr Potts said the easiest way to understand secret commissions was that they were something that had the effect of unbalancing the usual playing field of the market.
It also was doing something that would ensure other people in the market were deprived of doing.
It could be to give a benefit, or make an omission that could benefit the person making the secret commission.
In most criminal trials the Crown has the onus of proof to prove each element of a charge beyond reasonable doubt.
In some trials, like Nuttall’s, the onus is reversed, but the defendant only has to meet the test of “balance of probabilities”.
This needs to be done only after the prosecution has shown a payment of money was made.
The defendant must then show one of two things.
Firstly, they did not receive money or gifts and secondly, if they did it was not for a corrupt or dishonest benefit for the person who gave it.