Victorian Consolidated Legislation

Magistrates' Court Act 1989 - SECT 130

Evidential burden on defendant for exceptions etc.

130. Evidential burden on defendant for exceptions etc.



(1) If-

   (a)  an Act or subordinate instrument creates an offence and provides any
        exception, exemption, proviso, excuse or qualification, whether it
        does or does not accompany the description of the offence; and

   (b)  the defendant wishes to rely on the exception, exemption, proviso,
        excuse or qualification-

the defendant must present or point to evidence that suggests a reasonable
possibility of the existence of facts that, if they existed, would establish
the exception, exemption, proviso, excuse or qualification.

(2) Any exception, exemption, proviso, excuse or qualification need not be
specified or negatived in the charge.

(3) No proof in relation to an exception, exemption, proviso, excuse or
qualification is required on the part of the informant unless the defendant
has presented or pointed to evidence in accordance with subsection (1).

(4) The Court may, if satisfied that it is in the interests of justice to do
so, allow the prosecutor or, if the informant is appearing in person, the
informant to re-open the case for the prosecution in order to adduce evidence
in rebuttal of evidence presented or pointed to by the defendant in accordance
with subsection (1).