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13.4 Legal burden of proof - defence

Commonwealth Criminal Code: Guide for practitioners

13.4 Legal burden of proof - defence

A burden of proof that a law imposes on the defendant is a legal burden if and only if the law expressly:

  1. (a) specifies that the burden of proof in relation to the matter in question is a legal burden; or
  2. (b) requires the defendant to prove the matter; or
  3. (c) creates a presumption that the matter exists unless the contrary is proved.


Exceptions to the Woolmington principle that the prosecution must prove guilt beyond reasonable doubt are comparatively rare in Commonwealth law. The Code has, indeed, strengthened the presumption of innocence in s13.4 and extended its operation by requiring the prosecution to disprove exceptions, exemptions and qualifications: s13.3 Evidential burden of proof – defence.

The Code requires an express declaration in legislation creating an offence before the legal burden is shifted from the prosecution. A legislative provision that the defendant bears “the burden of proof ” of a matter is not sufficient to shift the legal burden; it will be taken to mean the defendant bears the evidential burden: ss13.3(1); 13.4.