• 3 defences, self defence, duress or sudden and extraordinary emergency
• Applying objective and subjective test to the facts in an intuitive way
• State the law clearly and concisely, make a reasonable conclusion
• Look at what facts help / dont help, balance them and make a conclusion
• Expression of law is important - should be accurate, rely on notes
• Always go to the end of the question
  • If a defence is available, just consider defences
  • If broader, like asking for criminal liability, focus on that offence and raise any relevant defences.
    • REMEMBER - Defence is only relevant if actually committed an offence.

Contesting criminal liability

Defence counsel may run the case:

1. Deny one or more elements of the offence has been proven

• Prosecution cannot prove BRD an element of offence
  • This would be gone through and explained in the analysis
  • Weigh out all the facts in front, conclude whether prosecution or defence would win.

AND/OR

2. Argue if accused can raise some evidence of a formal defence

• If prosecution cannot disprove an element of the defence, accused is free to go.
• They are absolute defences, not partial.
• Even if a defence is raised, legal burden remains on the prosecutor to disprove that defence BRD.

Onus of proof

• Evidential burden of proof is on defence to present evidence that suggests a reasonable possibility of the existence of facts
• Prosecution must disprove, …

233I Onus of Proof

(1) The accused has the evidential onus of raising self-defence, duress, or sudden or extraordinary emergency by presenting or pointing to evidence that suggests a reasonable possibility of the existence of facts that, if they existed, would establish [the relevant defence]… (evidential burden on defence)

(2) If the accused satisfies the evidential onus referred to in subsection (1), the prosecution has the legal onus of proving beyond reasonable doubt that the accused did not carry out the conduct in self-defence, under duress or in circumstances of sudden or extraordinary (legal burden to ‘disprove’ defence on prosecution)

History / reform