The absence of a lawful excuse is an element of the offence under s 71D of the Drugs, Poisons and Controlled Substances Act 1981 (Vic), which the prosecution must prove beyond reasonable doubt. The observation in Lipp v The Queen [2013] VSCA 384 that the onus is upon the accused to establish lawful excuse was obiter and does not represent the law. Section 104 of the Act does not reverse the burden of proof in respect of the phrase 'without lawful excuse' in s 71D, as that phrase constitutes an element of the offence rather than a matter of exception, qualification or defence.
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