Evidential burden of proof – defence
43BU Evidential burden of proof – defence
Subject to section 43BV, a burden of proof that a law imposes on a defendant is an evidential burden only.
A defendant who wishes to deny criminal responsibility by relying on a provision of Division 3 or Part IIA bears an evidential burden in relation to that matter.
A defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence (whether or not it accompanies the description of the offence) bears an evidential burden in relation to the matter.
The defendant no longer bears the evidential burden in relation to a matter if evidence sufficient to discharge the burden is adduced by the prosecution or by the court.
The question whether an evidential burden has been discharged is a question of law.
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