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Creating criminal offences
This is a single section from Chapter 21. Read the full chapter here.
What defences, if any, are available?
Legislation must identify any specific defences that are available.
When the prosecution is required to prove the mental and physical element of an offence, or disprove the mental element in strict liability offences, the defendant will be entitled to argue in defence that the prosecution has not proven (or disproven) the necessary elements to the requisite standard of proof.
Where particular factors exist that a person should be entitled to rely on in defence to the new criminal offence (other than the general defence above), it may be appropriate to provide specific defences.
These defences might require the defendant to point to enough evidence to raise the defence (such as for the defence against assault in s 48 of the Crimes Act 1961), or they might require the defendant to prove a certain state of affairs. In both cases, the burden will remain on the prosecution to prove beyond reasonable doubt that the defence is not available to the defendant.