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Part 2.6 Proof of criminal responsibility

Commonwealth Criminal Code: Guide for practitioners

Section 3.2 of Chapter 2 opens with the statement that conviction of an offence requires proof of both physical elements and fault elements, if fault  is required for guilt. This restates, in statutory form, the fundamental principle declared by Lord Sankey in Woolmington v Director of Public Prosecutions,390 that the obligation cast on the prosecution to prove guilt is “the golden thread always to be seen throughout the web of the English criminal law.” Part 2.6 – Proof of Criminal Responsibility, articulates the rules which give content to that general principle. In the absence of specific provision to the contrary, the prosecution must persuade the jury or judicial fact finder beyond reasonable doubt of the existence of each element of the offence charged. The obligation to persuade the fact finder is conventionally described as the “legal burden” of proof: s13.1(3). It is apparent that the prosecution also bears the burden of adducing evidence of the existence of each element of the offence, though that requirement is left unstated and arises by necessary implication. Failure to adduce evidence which would justify conviction results in a ruling that the defendant has no case to answer.391 The allocation of the burdens of proof is different when defences to criminal liability are in issue; the legal and evidential burdens are usually divided between the prosecution and the defence. One who relies on a defence to criminal liability does not deny an element of the offence.392 Defences only come into contention when the prosecution can prove the elements of the offence. A defendant who wishes to rely on a defence must raise the issue in the first place by adducing or pointing393 to evidence in support of the defence. If there is evidence for the defence, the prosecution must take up the legal burden and persuade the jury or judicial fact finder beyond reasonable doubt that the defence is unfounded in law or fact. Imposition of the evidential burden on the defendant is not restricted to the recognised defences.  The defendant is also required to bear the burden  of adducing evidence of any “exception, exemption, excuse, qualification or justification” which would reduce or avoid liability for the offence: s13.3(3).

  1.  (1935) AC 462.

  2. For a useful discussion, followed by a direction to acquit on the ground that the evidence could not sustain a conviction of murder, see Jamie Norman Smith (1993) 117 A Crim R 298.

  3. Ch 2, Part 2.2-The Elements of an Offence.

  4. The party who bears the evidential burden when a defence is in issue may meet that requirement by eliciting testimony or adducing other evidence in support of the defence. It is also possible to carry the evidential burden by pointing to material in the prosecution case which supports the defence: on adducing evidence and pointing to evidence, see s13.3(6).