13.3 Evidential burden of proof - defence

Section 13.3 opens with a declaration that the “burden of proof that a law imposes on a defendant is an evidential burden only”, unless s13.4 Legal burden of proof, applies. That section sets out three statutory formulae by means of which the legal burden may be imposed on the defendant. The opening provision in s13.3(1) adds a measure of reinforcement to the requirement that a reversal of the legal burden requires express language.

Section 13.3(4) restates common law in its declaration that the evidence which supports a defence or exception may derive from the prosecution case or as a consequence of intervention by the court. For example, evidence adduced by the prosecution to support a charge of causing serious harm to another may suggest the “reasonable possibility” [s13.3(6)] that the harm  was done in self defence.

Section 13.3(2) makes an exception for the s7.3 defence of mental impairment in its statement of general principle. The reason for the exception is that mental impairment, alone among the defences in Part 2.3 - Circumstances in which there is no criminal responsibility, may be alleged by either the prosecution or defendant.  If the prosecution proposes a special verdict of  not guilty on grounds of mental impairment, as an alternative to conviction, the prosecution bears both the evidential and persuasive burdens of proving absence of criminal responsibility on this ground. If the accused seeks a special verdict, the accused bears both burdens. There is a second, implied, exception to the general rule. In earlier sections of the commentary, it was suggested that s9.1 Mistake or ignorance of fact (fault elements other than negligence) is not in fact a defence at all. The provision, which was included in Chapter 2 from an abundance of caution, merely declares that the fault elements of intention, knowledge and recklessness may be defeated by evidence that the accused was unreasonably mistaken or ignorant in some pertinent respect. Since the prosecution bears the legal and evidential burden of proving fault elements [s13.1 Legal burden of proof – prosecution] the defendant does not bear an evidential burden when mistake or ignorance   are in issue. The rule in s13.2(2) is subject to a similar exception in some circumstances when s9.5 Claim of right is in issue. When claim of right amounts to no more than denial of the fault element required for an offence of dishonesty the prosecution, not the defendant, bears the evidentiary burden of proving fault.

Section 13.3(3) parallels the rule that the defendant bears the evidentiary burden when Chapter 2 defences in Part 2.3 Circumstances in which there is no criminal responsibility are in issue. The references to “excuse” and “justification” can be taken to apply to specialised defences found in particular chapters of the Code. For example, the defendant is required to bear the evidential burden when relying on “reasonable excuse”, a defence frequently employed in federal legislation.³⁹⁸ In general, excuses and justifications are readily recognisable. That cannot be said of exceptions, exemptions and qualifications. Though the distinction drawn in the Code between “elements” and matters of defence or exception parallels a familiar common law distinction,³⁹⁹ the criteria which govern its application are not apparent in Chapter 2 itself.  In practice, a measure of certainty has   been achieved by adopting standardised drafting techniques in framing offences, which distinguish between elements and matters of defence or exception.

The ambiguity inherent in references to “elements of an offence” was the subject of discussion earlier in this commentary: see 3.1 Elements. It  is  quite clear that reliance on one of the “defences” in Part 2.3 - Circumstances in which there is no criminal responsibility does not involve any denial of the “elements of the offence.” It is equally clear that defences elsewhere in the Code or federal statutes do not involve any denial of the elements of the offence. The status of “exceptions, exemptions, excuses, qualifications and justifications”, to which Chapter 2 refers, is far less certain.⁴⁰⁰ When criminal liability is imposed for breach of a statutory obligation, it is often possible    to conclude that a statutory exception to liability defines the content of the obligation and, hence, defines the physical elements of the offence. Absence of an exception may, in this way, be characterised as an element of the offence. For example, legislation which prohibited television advertisements for cigarettes made an exception for accidental or merely incidental appearances of material advertising cigarettes. In DPP v United Telecasters,⁴⁰¹ the High Court held that this was a “qualification, exception or proviso” which defined or formed a “part of the total statement of the obligation”. The prosecution was therefore required to bear both the evidential and legal burdens of proving that the exception did not apply.⁴⁰² If one puts this in the language of the Code, the physical elements of the offence of advertising would be taken to include absence of accidental or merely incidental transmission. At common law, the distinction between exceptions which relate to an element of the offence and exceptions which do not requires an interpretive characterisation of the provision. Though the Code provisions provide no more guidance than the common law on the characterisation issue, the area of dispute has been reduced:

• Unlike common law, the Chapter 2 requires specific provision before the legal burden of proof relating to an exception is shifted
• In practice, Commonwealth legislative drafting conventions will often provide a reliable indication of the occasions when “the law creating the offence” shifts the evidential burden relating to an exception from the prosecution to the defendant: see discussion box. It is apparent, however,  that adherence to the conventions  to signal the existence of a matter of exception is not invariable.

SHIFTING THE BURDENS OF PROOF: COMMON DRAFTING CONVENTIONS
Provisions in the Migration Act 1958 (Cth) as amended by the Migration Legislation Amendment (Application of Criminal Code) Act 2001, provide a useful parade of examples in which drafting conventions are employed to distinguish among elements, defences and exceptions and to allocate burdens of proof. These drafting conventions give content to the Code declaration that “the law creating the offence” determines whether a requirement for guilt is an element of the offence, a defence or an exception. Common practice, widespread in Commonwealth law since the Criminal Code Act 1995 was proclaimed to come into operation on 1 January 1997, is to make use of interpretive notes, appended to the prohibitions.⁴⁰³ The offences in s21 Failure to comply with a s18 notice, s229 Carriage of non citizens to Australia without documentation and s230 Carriage of concealed persons to Australia, provide a typical conspectus of drafting techniques:

1. Notes indicating defences: s21(1A) provides defences of reasonable excuse and incapacity for compliance. The provision is followed  by the note:  “A  defendant bears an evidential burden in relation  to the matters in subsection [(2) or (2A)] (see subsection 13.3(3)  of the Criminal Code).”
2. Notes indicating exceptions: See the exceptions to liability in s230(2) and (2A), which are followed by a note in the same form as the preceding one.
3. Absence of a note is an indication, which is not conclusive, that a requirement for guilt is an element, not an exception: Section 229(1) opens with the declaration that the master, owner, charterer and operator of a vessel which brings a non-citizen into Australia is guilty special categories. Though the provision takes the grammatical form of an exception, it is arguable that it was intended to spell  out the elements of the offence. If so, it is for the prosecution to bear both the evidential and legal burdens of proof that the non- citizen does not fall within any of the categories of exemption.⁴⁰⁴ However, the contrary view is also arguable.
4. Specific legislative language is necessary to shift the legal burden: Section 229(5) provides a range of “defences” for the master, owner, charterer and operator of a vessel which brings non-citizens into Australia. These are followed by the declaration, in ss(6), that “a defendant bears a legal burden in relation to the matters in subsection (5)”.

Section 13.3(4), coupled with the definition of “evidential” burden in ss(6) sets a standard of “reasonable possibility” for the defendant when matters of defence or exception are in issue. This proposition is complementary to the definition of the legal burden which rests on the prosecution to disprove a defence or exception: s13.1(2). If there is evidence suggesting a reasonable possibility of a defence or exception, the prosecution must prove beyond reasonable doubt that the defence or exception has no application. It is uncertain whether the same standard of reasonable possibility is meant to apply when it is the prosecution which bears the evidential burden.⁴⁰⁵

Section 13.3(5) restates common law. There are two issues for the trial court. The first is whether the evidence can provides a sufficient legal foundation for the defence. The second is whether there is a reasonable possibility that the factual foundation for the defence is true. So, for example, s9.2 Mistake of fact (strict liability) has no legal basis unless there is evidence of a mistake: ignorance, however reasonable, is not enough and the defence will be withheld from the jury. Even if there is evidence of a mistake a court might rule that any jury would be certain to conclude that the mistake was utterly unreasonable. In that event the defence is once again withheld from the jury.

398. See, for examples, Australian Trade Commission Act 1985 (Cth), as amended by Foreign Affairs And Trade Legislation Amendment (Application Of Criminal Code) Act 2001 (Cth), Schedule 1—Amend- ment of Acts.

399. Baronianv Potter Constructions (1979) 22 SASR 215; Phillips v Cassar [1979] 2 NSWLR 430; Macarone v McKone, ex parte Macarone [1986] 1 Qd R 284; DPP v United Telecasters Sydney Ltd (1990) 168 CLR 594; Sheehan (1999) QCA

400. Ch 2, s13.3(3). See too s11.6 and corresponding provisions in the sections which follow, which refer to “limitations and qualifying provisions.”

401. DPP v United Telecasters Sydney Ltd (1990) 168 CLR 594; Sheehan (1999) QCA

402. Ibid.

403. See Acts Interpretation Act 1901 (Cth) ss13 and s15AB Use of extrinsic material in the interpretation of an Act. Section 15AB(1) and (2)(a) permit reference to marginal and other notes to resolve ambiguity.

404. Absolute liability is imposed with respect to these elements of the offence: s229(3) Migration Act 1958 (Cth) as amended by the Migration Legislation Amendment (Application of Criminal Code) Act 2001.

405. Chapter 2 contains no definition of “evidential burden” in relation to proof of elements of the offence by the prosecution. Section 13.3(6) defines “evidential burden” in relation to “matters”, not “ele- ments” and it occurs in a section which is specifically directed to the evidential burden resting on the defence. Compare s13.1(3) which is similarly limited to the legal burden on the prosecution of disproving a “matter”, rather than an “element”.