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Part 2.3 Circumstances in which there is no criminal responsibility

Commonwealth Criminal Code: Guide for practitioners

The “circumstances in which there is no criminal liability” are collectively described in the Code as “defences”.136 These include all the defences of general application, ranging from absence of criminal  capacity  to  duress and extraordinary emergency. Defences which are limited in their application to particular areas of law, do not appear in Chapter 2. Self defence takes its place in Chapter 2 as a defence of general application because it is not limited in its applications to offences against the person: 10.4 Self Defence. It extends to excuse the commission of offences against property when the offence was prompted by a perceived necessity for self defence.137 Common to all the general defences is the requirement that the defendant bear an evidential burden: 13.3 Evidential burden of proof - defence. If the defendant cannot produce evidence in support of the defence and nothing appears in the prosecution case to support it, the court will disregard any possible application of the defence. A defendant who seeks to be excused on the ground of mental impairment bears the additional burden of persuading   the court affirmatively, on the balance of probabilities, that mental impairment excuses the offence.138

  1. See “Note” to Ch 2, Part 2.3 and s13.3 - Evidential burden of proof - defence.
  2. Discussed MCC, Ch 4: Damage and Computer Offences, Report (2001), 83-85.
  3. Ch 2, s13.3(2).