Where evidence raises the defence of involuntary act due to momentary sleep under s 23(1)(a) Criminal Code 1899 (Qld), a trial judge must not direct the jury to first determine whether the inference of sleep is reasonably open before considering whether the prosecution has negatived the defence beyond reasonable doubt. Once the sleep issue is raised by the evidence, the prosecution bears the burden of negativing it without any additional evidentiary onus on the accused. A direction that frames the sleep defence as contingent on the jury first being 'satisfied' or 'prepared to draw' the inference of sleep effectively reverses the onus of proof and constitutes a material misdirection.
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