13.1 Legal burden of proof - prosecution

The provision implies that the prosecution bears the evidential as well as    the legal burden of proof of the elements of the offence charged. Elements are distinguished from defences, exceptions, exemptions, excuses, qualifications and justifications on which a defendant may rely to avoid criminal responsibility. A defendant who seeks to rely on a defence or exception bears the evidential burden.

Section 13.1(2) refers implicitly to the provisions of s13.3 Evidential burden of proof – defence. These provisions require the defendant to bear the evidential burden in relation to defences, exceptions, exemptions, excuses, qualifications and justifications [hereafter “defences or exceptions”]. Once the evidential burden is discharged, however, the prosecution must prove beyond reasonable doubt that the accused is not entitled to the defence or exception. So far as defences are concerned, Chapter 2 merely restates common law. But Chapter 2 has taken a significant step beyond the common law in relieving the accused of the legal burden of establishing the existence of “exceptions, exemptions and qualifications”. In He Kaw Teh³⁹⁴ the High Court overturned caselaw which held that the accused must prove a defence of reasonable mistake on the balance of probabilities. It left intact, however, a common law exception to the Woolmington principle which permitted courts to impose both evidential and legal burdens on the accused when an exception, exemption  or qualification was in issue.³⁹⁵ The Code curtails the power of courts to fashion exceptions to Woolmington in this way. A legislature may, of course, decide to impose the legal burden on an accused and require proof, on the balance of probabilities, of a defence or exception. To achieve that effect, however, the legislation must be specific in terminology and intention: see s13.3(1).

394. (1985) 15 A Crim R 203

395. DPP v United Telecasters Sydney Ltd (1990) 168 CLR 594. The common law exception to Woolmington was paralleled by ss14 & 15D of the Crimes Act 1914 (Cth), which imposed the legal burden of proof of an “exception, exemption, proviso, excuse, or qualification” on the defendant in summary trials and, in all trials for offences against Commonwealth law, the legal burden of proof of “lawful authority or excuse… permission.” The provisions are repealed by the Law and Justice Legisla- tion Amendment (Application of Criminal Code) Act 2001 (No. 24, 2001) Schedule 1. From 24 May 2001 the provisions have no application to offences to which Chapter 2 applies: see item 1 of schedule 1, item 4 of schedule 51 and subsections 2(2) and (3) of Act 24 of 2001.