The rules about who must prove what are the same in the District Court as in the National Court. They are also the rules most often misunderstood by unrepresented parties, who assume that being charged means having to prove innocence.
The presumption of innocence
A person charged with an offence shall be presumed innocent until proved guilty according to law, but a law may place upon a person charged with an offence the burden of proving particular facts which are, or would be, peculiarly within his knowledge (s 37(4)(a)).
No person shall be compelled in the trial of an offence to be a witness against himself (s 37(10)).
So the prosecution carries the burden of proving each element of the offence, and the standard is proof beyond reasonable doubt. The defendant may sit silent. Section 60(2) of the Act gives the defendant the right to give evidence, not a duty; section 129(1) contemplates the prosecution calling evidence in reply only “if the defendant has given evidence”.
Exceptions and excuses
(1) Where a person is charged with a simple offence, an exception, exemption, proviso, excuse or qualification, whether it accompanies the description of the offence in the section creating it or not, need not be specified or negatived in the information.
(2) The burden of proof of an exception, exemption, proviso, excuse or qualification referred to in Subsection (1) is on the person alleging it.
This is the District Court’s version of a rule found in most summary jurisdictions. If the offence is “possessing a firearm without a licence”, the prosecution proves possession and the defendant proves the licence. If the offence applies “unless the person has reasonable excuse”, the defendant proves the excuse. Section 2 of the Summary Offences Act says so expressly for that Act: the burden of proving lawful excuse is on the defendant. Constitution section 37(4)(a) permits this because such facts are peculiarly within the defendant’s knowledge.
Where the burden is on the defendant it is discharged on the balance of probabilities, not beyond reasonable doubt. And section 64 applies to simple offences; for Criminal Code offences, including Schedule 2 offences tried summarily, the Code’s own provisions on defences apply, and most Code defences need only be raised on the evidence, after which the prosecution must exclude them beyond reasonable doubt.
Working out the elements
| Element | Who proves it | Standard |
|---|---|---|
| Identity: the defendant was the person | Prosecution | Beyond reasonable doubt |
| The act: e.g. that he struck the complainant | Prosecution | Beyond reasonable doubt |
| Circumstances forming part of the offence: e.g. in a public place | Prosecution | Beyond reasonable doubt |
| Any mental element the section requires | Prosecution | Beyond reasonable doubt |
| Lawful excuse, licence, permit, exemption | Defendant (s 64; SOA s 2) | Balance of probabilities |
| Self-defence or provocation under the Criminal Code | Defendant raises it on the evidence; prosecution then excludes it | Beyond reasonable doubt |
No case to answer
At the close of the prosecution case the defendant may submit that there is no case to answer: that the evidence, taken at its highest, could not support a conviction, or that an essential element has not been proved at all. If the submission succeeds the information is dismissed without the defendant having to call evidence. If it fails, the defendant chooses whether to give evidence. The Magistrates’ Manual treats this as part of the practice imported by section 131 from the National Court.
A different test at committal
None of this applies to a committal, which is not a trial. There the question under sections 95 and 100 is whether the evidence is sufficient to put the defendant on trial, a prima facie case, and the prosecution’s written statements are enough if properly served and admitted. See the test for committal.
Civil cases
In a civil complaint the complainant proves the claim on the balance of probabilities, and the defendant proves any defence raised, including the special defences that require notice under section 153. Section 139 requires the defendant, at the outset, to say whether he admits the complaint and what cause he shows against an order; if he admits it and shows no cause, an order follows on such evidence as the Court thinks fit. See the civil hearing.
What this means for a defendant
First, listen for the element that is missing. Prosecution witnesses in the District Court frequently prove the act but forget the circumstance, such as the place being public, or the identity of the defendant beyond a first name. That gap is a no-case submission. Second, if your defence is a licence, a permit, consent or an excuse, bring the evidence of it, because the law puts the burden on you, and an unsupported assertion from the dock may not discharge it.
The District Courts Act is not on PacLII; it is available on vLex.
Before relying on anything here, read the current text of the District Courts Act (Chapter 40) and check for later amendments. The Act is not on PacLII; the figures and time limits quoted in this series come from the consolidation to No 8 of 2000, and the District Courts (Amendment) Act 2009 changes some of them once it is brought into operation. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.