The common law retains a role in interpreting the Code: see The Queen v LK (2010) 241 CLR 177 at [107]. Many parts of the Code were derived from the common law, and codification “does not mean that all preceding court-made law will be irrelevant to interpretation of the Code”: Explanatory Memorandum to the Criminal Code Bill 1994 (Cth) at 2. Resort to the common law is required:

In The Queen v Barlow (1997) 188 CLR 1, Kirby J set out principles relevant to the construction of a code (although dealing with the Criminal Code Act 1899 (Qld), these principles also apply to the Code) at 31–32, including:

Where the ordinary meaning of a code’s terms is clear, the common law will likely prove irrelevant: Pickett v Western Australia (2020) 270 CLR 323 at [92] (in relation to the Criminal Code Act Compilation Act 1913 (WA), though it also applies to the Code).

The same conduct may constitute both Commonwealth and State offences. For instance, certain fraud offences have both Commonwealth and State counterparts and there is overlap in drug supply and possession offences: R v Liang (1995) 82 A Crim R 39; Pantazis v R (2012) 38 VR 446; Momcilovic v The Queen (2011) 245 CLR 1; Buckman v R [2013] NSWCCA 258. Section 4C(2) of the Crimes Act ensures an offender is not punished for a Commonwealth offence if they have already been prosecuted under equivalent State laws. The effect of s 4C(2) is to “roll-back” or “withdraw pro tanto” the Commonwealth criminal law to avoid the injustice of double punishment where a single act involves the commission of both Commonwealth and State crimes: Momcilovic v The Queen at [254].

The federal judicial system with respect to criminal matters relies on State and Territory courts, which are given federal jurisdiction, as permitted under s 77(iii) of the Constitution and conferred under ss 39 and 68(2) Judiciary Act 1903 (Cth) (the Judiciary Act). Pursuant to s 68(2), NSW courts exercising jurisdiction with respect to summary convictions, committals, trials and convictions on indictment and related appeals for NSW offences have like jurisdiction for Commonwealth offences. When exercising “like jurisdiction”, the Court applies the relevant procedural laws of the State “by analogy”: see Williams v The King (No 2) (1934) 50 CLR 551 at 561; Peel v R (1971) 125 CLR 447 at 469; Solomons v District Court of NSW (2002) 211 CLR 119 at [99]; Attorney-General (Cth) v Huynh (2023) 280 CLR 341 at [45], [61].

Trials of Commonwealth indictable offences are constitutionally mandated to be held in the State where the offence was committed: the Constitution, s 80. Section 70 of the Judiciary Act enables trials of offences committed across States or Territories to be tried in either jurisdiction: see also the Constitution, s 80. Section 70A permits trials of indictable Commonwealth offences which are not committed in any State, but rather in the “extended geographical jurisdiction” (see [9-220]), to be held in any Australian State or Territory.

Note: The Federal Court has limited original jurisdiction to hear Commonwealth criminal matters, primarily for offences listed in s 67G Judiciary Act, including offences relating to bribery of foreign public officials, forgery, identity crime, money laundering, computer crime, financial information and accounting records in the Code.

The administration of Commonwealth criminal law is organised on a State-by-State basis: Leeth v Commonwealth of Australia (1992) 174 CLR 455 at 467. A Commonwealth offence prosecuted in NSW will apply the Criminal Procedure Act 1986 (NSW) and the Evidence Act 1995 (NSW). This is subject to two exceptions: where there are inconsistent Commonwealth laws (see [9-030.20]) and inconsistent constitutional requirements (see [9-040]).

The Judiciary Act, particularly ss 68(2) and 79, provides the mechanism by which NSW law applies to the administration of Commonwealth criminal law. Its purpose includes “ensuring that accused persons in each State are … the subject of incidents of a criminal trial which are the same for Commonwealth offences as they are for State offences”: R v JS [2007] NSWCCA 272 at [115]. Both the Judiciary Act and the Commonwealth’s use of State courts reflect an intention to have procedural uniformity when dealing with both State and Federal offences: Williams v The King (No 2) (1934) 50 CLR 551 at 558, 560; The Queen v Gee (2003) 212 CLR 230 at [7].

Section 68(1) provides that NSW laws concerning procedure apply to persons charged with Commonwealth offences in respect of whom jurisdiction is conferred on NSW courts. Such laws do not apply of their own force in NSW courts exercising Commonwealth jurisdiction. rather, they are “picked up” and applied by virtue of s 68(1) as Commonwealth laws.

In Attorney-General (Cth) v Huynh (2023) 280 CLR 341, a High Court majority held that provisions of the Crimes (Appeal and Review) Act 2001 (NSW) relating to holding an inquiry into a conviction or sentence could be picked up and applied as federal laws under s 68(1) to operate in relation to Commonwealth offences.

In McGregor v R (2024) 116 NSWLR 81 at [61], a five-judge bench summarised propositions emerging from Attorney-General (Cth) v Huynh as follows:

Although, generally, NSW procedural and evidentiary laws apply by virtue of the Judiciary Act , this is subject to other inconsistent Commonwealth laws: s 109, the Constitution.

Inconsistency, for the purposes of s 109, only arises if the Commonwealth law “covers the field” to the exclusion of the NSW law, but not where the Commonwealth law was intended to be supplementary to or cumulative upon the NSW law. Inconsistency does not lie in the mere co-existence of two laws which are susceptive to simultaneous obedience, but rather, an intention of the Commonwealth Parliament to completely, exhaustively, or exclusively express what shall be the law: Ex parte McLean (1930) 43 CLR 472 at 483.

The Evidence Act 1995 (Cth) does not purport to cover the field, as s 4(1) makes express that it only applies to proceedings in a federal court or ACT court. Therefore, despite the existence of the Commonwealth version, the NSW equivalent applies (thought it makes little practical difference since they are essentially identical). However, the Evidence Act 1995 (Cth) contains several provisions which can apply in addition to the NSW Act: see, for example, ss 150, 153–155A, 157–159 relating to the admissibility of Commonwealth records and documents.

In addition, the Crimes Act contains some provisions dealing with summary offences and the disposal of indictable offences triable summarily: see, for example, ss 4J, 4JA. These will apply in place of any inconsistent provisions of the Criminal Procedure Act 1986.

Further, the Commonwealth has its own evidentiary rules relating to vulnerable witnesses in Commonwealth criminal proceedings, contained in Pt IAD Crimes Act: see at [1-378].

The Commonwealth also has its own scheme for sentencing Commonwealth offences. See the Sentencing Bench Book at [16-000]ff.

Section 80 of the Constitution provides for trial by jury for any indictable offence against any Commonwealth law. Section 68 of the Judiciary Act vests State courts with jurisdiction to run trials for Commonwealth offences but is limited to “trial … by jury”.

The provisions of the Criminal Procedure Act 1986 (NSW) which provide for judge alone trials have been held to be inconsistent with s 80 of the Constitution. Therefore, trials on indictment for offences against Commonwealth law can only be by jury: Alqudsi v The Queen (2016) 258 CLR 203 at [82]–[83]; [146]; [210]–[212], [221]; see also Cheng v The Queen (2000) 203 CLR 248; Brown v The Queen (1986) 160 CLR 171.

Section 80 is not applicable to summary offences: Kingswell v The Queen (1985) 159 CLR 264.

Offences punishable by imprisonment for a period exceeding 1 year are indictable offences, unless the contrary intention appears: s 4G, Crimes Act. However, indictable offences may be dealt with summarily if punishable by imprisonment for a period not exceeding 10 years, or where punishable by fine only, unless contrary intention appears: ss 4J(1), 4JA(1), Crimes Act.

The number of jurors in a criminal trial is determined by s 19 Jury Act 1977 (NSW). Subject to s 22 of that Act, the jury is to consist of 12 persons, or 12 persons with additional jurors as ordered by the court under s 19(2): s 19(1). The court may order up to three additional jurors be selected if:

Such an order is only available where the court is satisfied the selection of additional jurors is an appropriate means of ensuring there will be sufficient jurors remaining when they are required to consider their verdict and appropriate facilities are available to accommodate them: s 19(3). Section 19 applies to the trial of Commonwealth offences: Ng v The Queen (2003) 217 CLR 521.

The number of jurors can be reduced in accordance with s 22. That section also applies to a trial of Commonwealth offences: Brownlee v The Queen (2001) 201 CLR 278; Petroulias v R (2007) 73 NSWLR 134. In Brownlee v The Queen, the High Court held that a jury constituted of 10 members in accordance with NSW law (s 22(a)(i) Jury Act), did not infringe s 80 of the Constitution as the number of jurors was not an “essential feature” of “trial … by jury”. However, in obiter, Gaudron, Gummow and Hayne JJ indicated that legislation authorising trials with fewer than 10 jurors may be constitutionally invalid: see at [71]–[73]. In Ng v The Queen (2003) 217 CLR 521, the High Court held the essential features of a jury trial are to be ascertained by considering the purpose s 80 was intended to serve and the constant evolution of the characteristics of a jury trial: see also [36]–[38] for a list of essential and non-essential features of trial by jury.

The following is based upon the assumption that there is more than one accused.

If there is still no likelihood of agreement, then, and only then, following R v Tangye (unrep, 10/4/1997, NSWCCA), and in accordance with s 56 Jury Act 1977, one or more jurors (usually the foreperson) must be examined on oath or affirmation to establish that fact before the jury can be discharged. This process is done in the presence of all jurors.

The juror (foreperson) must be informed that nothing should be said which would disclose the voting figures or the reasons for the absence of agreement.

After ascertaining the fact that agreement had not so far been reached, an inquiry may be made, if thought to be appropriate, as to whether there is any further assistance which could be given — by way of explaining the law to be applied or the factual issues to be decided — which might bring about an agreement. If the answer is still in the negative, the jury must then be discharged.

A suggested script for this process is as follows:

Given there is no inconsistency with the Constitution, the Jury Act applies to such trials, particularly Pts 6, 7 and 8 which govern rights to challenge and discharge jurors (s 53B) and discharge a jury (s 53C). A Court, presiding over a trial by jury for a Commonwealth offence, can discharge a juror and proceed to verdict with less than 12 members of the jury. It is desirable that a judge makes two separate and explicit orders: one relating to the issue of discharging a juror, and one relating to the issue of whether the trial should proceed with the remaining jurors: Wu v The Queen (1999) 199 CLR 99 at [8], [103].

Section 80 has also been interpreted as requiring verdicts for Commonwealth offences to be unanimous: s 55F(4), Jury Act 1977 (NSW) (“Jury Act”); s 80; Cheatle v The Queen (1993) 177 CLR 541 at 562; Brownlee v The Queen (2001) 207 CLR 278 at [5]. Majority verdicts are not available.

See [9-050.50] Suggested (Black) direction — Commonwealth offences — unanimity required.

Recommended steps

After receiving a message that the jury is ready to deliver the results of its deliberation, direct the reassembly of the court, ensuring that the accused is available. The accused should always be brought in before, rather than after, the jury. It is not essential to await the attendance of counsel who have chosen to depart the court area of their own volition, and it is not desirable to undertake to counsel that you will communicate with them. Remember that the jury, at this stage, will probably have been confined to the jury room for many hours and their convenience and comfort should be given every consideration. Also remember there may well be other members of the public waiting.

1. Re-enter the court

Direct that the accused be brought into the court. In appropriate cases, ensure that general security is in order. Direct the jury to enter (it is not necessary to call the roll of the jury).

2. Court officer asks foreperson to rise

3. Enquires of foreperson

Clerk of Arraigns or judge then inquires of the foreperson — “Have you agreed on your verdict(s)?”

Upon receipt of an affirmative answer, the Clerk of Arraigns then questions the foreperson — “How say you, is the accused guilty or not?”; or “How say you, on the first count, is the accused guilty or not?”

The question is then repeated, corresponding to the number of counts committed to the jury. In the case of multiple defendants, the question is — “How say you, is the first accused [name accused, for example, John Smith] guilty or not?”

The question is then repeated for each of the other accused. In the case of multiple defendants and multiple counts the question is — “How say you, on the first count, is the first accused [name accused, for example, John Smith] guilty or not?”

The question on the first count is then repeated for each of the other accused. The question is then posed on the second count for each of the accused.

Note: It is critical to receive a distinct verdict in respect of each accused on each separate count. Also, in cases where an alternative or lesser charge is available if there is a verdict of “not guilty” on the substantive charge, it must not be forgotten to put forward the alternative charge and take a verdict on it.

After the foreperson has announced the verdict(s), the associate or judge then interrogates the whole jury as follows.

4. Receipt of verdict

If a verdict of “guilty” — “Your foreperson has said that the (first) accused is guilty of the (first) count as charged (or not guilty as charged but guilty of the alternative charge of …). So says your foreperson, so say you all?”

The above should then be repeated in respect of all accused.

If a verdict of “not guilty”, follow the above with the substitution of “not guilty” for “guilty”.

Note: Questions as to the basis of the verdict

Although the trial judge has power to question the jury as to the basis of their verdict(s), that power should not be exercised save in exceptional circumstances: R v Isaacs (1997) 41 NSWLR 374 at 377; 379–380. The High Court has said, “The course of seeking such elucidation is fraught with danger and the discretion to seek it should be exercised sparingly and with care”: Mourani v Jeldi Manufacturing Pty Ltd (1983) 57 ALJR 825 at 826. This approach is consistent with the well established principle that a jury should not be asked to disclose their reasoning process, nor are they bound to disclose it if asked: Mourani v Jeldi Manufacturing Pty Ltd at 826.

To this must be added the observation by the High Court in Kingswell v The Queen (1985) 159 CLR 264 at 283 that “… there is strong support for the view that a jury, once it has returned a verdict, has discharged its duties and has no further function to perform.” Thus, a trial judge would need convincing circumstances before they would question the jury as to the basis of a verdict(s). It is acknowledged, however, that difficulties will arise where, for example, a jury returns a verdict which logically cannot stand with another verdict. Examples include the case where the jury has returned verdicts of “guilty” for both an attempt to commit an offence and the completed offence: MacKenzie v The Queen (1996) 190 CLR 348 at 366.

5. Discharge of jury

Upon delivery of the verdict, s 55E Jury Act 1977 requires the immediate discharge of the jury. This is usually done by expressing the appreciation of the court for the jury’s service to the community, telling them that they are discharged from further service and informing them (if necessary) of the provision for payment of their jury fees.

The judge has discretion, after a lengthy trial, to excuse the jurors from being selected for jury service for a specified period then ensuing: s 39(1) Jury Act 1977. Sometimes there are members of the jury who do not wish to be so excused, in which case they should be given the opportunity to serve further. The comment is therefore suggested:

The trial judge is required by s 39(2) to notify the Sheriff of any direction given under s 39(1)). Section 55E(2) expressly provides that any members of the jury may remain in court as ordinary members of the public after being discharged.

6. Verdict of “Not Guilty”

Upon receipt of a verdict of “not guilty” on the only charge, or if more than one, all charges, the trial judge should then enquire of the Crown Prosecutor if there is any reason why the accused should be further detained. If the answer is in the negative, the accused should be discharged immediately from custody and allowed to depart, should they so wish, even before the jury is formally discharged. If the answer is in the affirmative, then the reason must be sought. Should the accused be in custody as a result only of a refusal of bail, it is open to the judge to entertain a bail application (assuming jurisdiction), but it may be undesirable to entertain the application in the absence of the file and witnesses relevant to “bail refused” matter(s).

7. Verdict of “Guilty”

A conviction only occurs when the court does some act which indicates that it has determined guilt, or, which is the same thing, that it has accepted that the accused is criminally responsible for the offence in question, for example, by the imposition of punishment; discharging a prisoner on their own recognisance; by release on parole; or even, perhaps, adjourning proceedings for sentence hearing: Maxwell v The Queen (1995) 184 CLR 501 at 531.

A conviction may be recorded by formally calling up the prisoner for sentence, the address of which is known as the allocutus and is in the following terms:

At common law, the allocutus was a necessary part of a trial where the accused had been convicted of treason or a felony: R v Rear [1965] 2 QB 290 at 292.

The allocutus gives the accused the opportunity of raising any legal matter against conviction and in the absence of there being any such legal matter or any realistic possibility of the application of s 10 Crimes (Sentencing Procedure) Act 1999 or s 19B Crimes Act (Cth), allowing the entry of a judgment of conviction (which is recorded on the back of the indictment), thus publicly and formally recording a conviction, so as to put the matter beyond doubt.

In the absence of such formality, difficult and important questions can arise as to whether, and if so, when, the accused has been convicted. Of particular importance, for example, may be “the day of conviction” within the meaning of s 30 Proceeds of Crime Act 1987 (Cth). This question was discussed in Della Patrona v Director of Public Prosecutions (Cth) [No 2] (1995) 38 NSWLR 257. However, that case must now be considered in the light of the various judgments of the High Court in Maxwell v The Queen.

The question of whether there has been a conviction is also of importance for the purposes of a plea of autrefois acquit or autrefois convict. Although the use of the allocutus has, in recent years, fallen somewhat into disuse, recent cases demonstrate the advisability of returning to its regular use to avoid unnecessary disputes regarding whether, and if so, when, the accused has been convicted both with regard to verdicts of guilty, as well as pleas of guilty.

On the question of whether there has been a conviction or not, see DPP (Cth) v Webb [1999] NSWSC 405 and R v Holton [2002] NSWSC 775.

Alternatively, the judge should expressly indicate (publicly and formally) that the accused is convicted and make the appropriate entry on the back of the indictment. Indeed, in every case, whether the allocutus is given or not, the conviction should be recorded on the back on the indictment.

While vulnerable persons in Commonwealth proceedings are permitted to have support persons present when they are giving evidence, there is no statutory requirement for a jury direction or warning to be given regarding this measure in the way it is required for “vulnerable persons” under the Criminal Procedure Act 1986 (NSW).

For consistency and to avoid jury speculation, it may be considered appropriate to adapt a direction in such cases that corresponds with the suggested direction for “vulnerable persons” — children and cognitively impaired persons in NSW proceedings at [1-400].

Part 1AD Crimes Act places constraints on the cross-examination of certain witnesses by a self-represented accused. The Part applies to various offences, including child sex tourism, slavery, sexual servitude and human trafficking: s 15Y(1). Under ss 15YF–15YFA, a self-represented accused is prohibited from cross-examining a child complainant in a child proceeding or vulnerable adult complainant in a vulnerable adult proceeding, and a person appointed by the court is to ask the complainant any questions sought to be put by the accused.

Part IAD does not require a direction to be given to the jury regarding the appointment of persons to ask questions on behalf of a self-represented accused. However, it would be prudent to adapt the suggested direction at [1-405] for relevant Commonwealth proceedings.

A self-represented accused must not cross-examine a vulnerable person unless the court grants leave: s 15YG(1). Section 15YG(1A) defines a vulnerable person to include a child witness (other than a child complainant) for a child proceeding (as defined in s 15YA). The court must not grant leave “unless satisfied that the vulnerable person’s ability to testify under cross-examination will not be adversely affected”: s 15YG(2). In applying this test, the court is to consider “any trauma that could be caused if the defendant conducts the cross-examination”: s 15YG(3). The Commonwealth legislation does not specifically require a warning in the terms of ss 294A(7) or 306ZI(4) Criminal Procedure Act 1986 (NSW), although it may be prudent to give a warning in such terms for these matters: see [1-850] Suggested information and advice to accused in respect of a “prescribed sexual offence”.

The option of receiving evidence via audio visual link from outside Australia under s 5B extends to proceedings for Commonwealth offences and does not constitute a breach of s 80 of the Constitution: R v Wilkie (2005) 64 NSWLR 125.

Where the law creating the offence does not specify a fault element for a physical element (and does not specify that there is no fault element), s 5.6 provides a default fault element, which is:

See Li v Chief of Army (2013) 250 CLR 328 at [20]–[22].

Where no fault element is stated for any of the physical elements of the offence, the offence is one of strict liability (s 6.1) or absolute liability (s 6.2). In either case, the prosecution is not required to prove a fault element in relation to the physical element/s in question.

For strict liability offences, the defence of mistake of fact under s 9.2 is available: s 6.1(1)(b). For absolute liability offences, no such defence applies; once the proscribed physical element is proved beyond reasonable doubt, guilt is established: s 6.2(1)(b).

A person has intention with respect to:

Where the physical element is the existence of a state of affairs, knowledge or belief may be relevant to intention: The Queen v Tang (2008) 237 CLR 1 at [47]; He Kaw Teh v The Queen (1985) 157 CLR 523 at 568.

A jury may be directed that the Crown may establish intent by inferential reasoning: R v Saengsai-Or (2004) 61 NSWLR 135 at [74]; Smith v The Queen (2017) 259 CLR 291 at [61], [85]. Applying Kural v The Queen (1987) 162 CLR 502 at 504–505, the High Court in Smith v The Queen at [64] confirmed that where a criminal act is done in circumstances where it appears beyond reasonable doubt that the accused knew or was aware of the likelihood, in the sense that there was a significant or real chance, that their conduct involved that act, and nevertheless persisted in that conduct, the jury may infer intent, although the phrase “nevertheless persisted” is not utilised by the High Court in the suggested directions in Smith v The Queen at [69].

Directions should, where possible, reflect the statutory definition of intent in s 5.2, and be tailored to the issues, facts and circumstances of the case: Smith v The Queen at [68]; R v Saengsai-Or at [74]. The jury must be directed that to draw an inference of intent they must be satisfied beyond reasonable doubt of the facts and circumstances from which the inference is drawn, and that the inference of intent is the only reasonable inference open on those facts. Further, that an awareness of a real and significant chance that the conduct involved the importation of the substance would not of itself be sufficient to draw the necessary inference but that it must also be proved beyond reasonable doubt that the accused nevertheless persisted with the conduct notwithstanding the awareness or belief : Ko v R [2025] NSWCCA 129 at [125]–[126] (note: special leave to appeal to the High Court was granted on 4 December 2025: The King v Ko [2025] HCADisp 305).

See suggested directions in Smith v The Queen at [69].

A person has knowledge of a circumstance or a result if they are aware that it exists or will exist in the ordinary course of events: s 5.3.

A person is reckless with respect to a circumstance or result if:

Whether taking a risk is unjustifiable is a question of fact and requires an assessment of the likelihood of the risk eventuating according to its nature and in the circumstances, if the act is done, and whether the risk is one that should have been taken: s 5.4(3); Lustig v R [2009] NSWCCA 143 at [74]. Such an inquiry calls for a “moral or value judgment concerning the accused’s advertent disregard of the risk”: R v Saengsai-Or (2004) 61 NSWLR 135 at [70]; Lustig v R at [74].

A “substantial risk” is an awareness of a real and substantial possibility, chance or likelihood of a fact: Hann v DPP (Cth) (2004) 88 SASR 99 at 107.

The accused must be aware of the substantial risk at the time of the conduct, that is, there must be a consciousness of the risk at the moment of the alleged offence: Hann v DPP (Cth) at 107; R v Hanna [2019] QCA 274 at [10].

Where recklessness is a fault element, proof of intention or knowledge will also satisfy that fault element: s 5.4(4); see Ansari v The Queen (2010) 241 CLR 299 at [59], the reason being that intention and / or knowledge are more serious fault levels and if it was possible to make out either of those more serious levels, it follows that recklessness would also be made out.

A person is negligent with respect to a physical element if their conduct involves such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and such a high risk that the physical element exists or will exist; that the conduct merits criminal punishment: s 5.5.

Proof of negligence requires an overall assessment, not a separate analysis of distinct elements, though regard must be had to the whole description of negligence: White v Patterson [2009] QCA 320 at [31].

A person is not criminally responsible if their conduct constituting the offence was the result of intoxication that was not self-induced: s 8.5.

Intoxication is self-induced unless it came about involuntarily or as a result of fraud, sudden or extraordinary emergency, accident, reasonable mistake, duress or force: s 8.1. Evidence of self-induced intoxication cannot be considered in determining whether a fault element of basic intent existed, that is, intention for a physical element consisting only of conduct: ss 8.2(1)–(2). Such evidence may be relevant for determining whether the conduct was accidental (s 8.2(3)) or whether the accused held a mistaken belief of fact (s 8.2(4)).

A person is not criminally responsible for an offence with a fault element (other than negligence) if:

The belief must be honest: R v Navarolli [2010] Qd R 27 at [73].

A person is not criminally responsible for a strict liability offence if:

The mistake must amount to an affirmative belief as to the relevant fact; mere inadvertence or failure to turn one’s mind to the issue is insufficient: Mei Ying Su v Australian Fisheries Management Authority (No 2) [2008] FCA 1485 at [98].

Mistake as to, or ignorance of, the law creating an offence does not negate criminal liability, unless that law expressly provides otherwise: ss 9.3, 9.4.

A person is not criminally responsible for an offence (other than offences relating to the use of force against a person) in certain circumstances where there is a mistaken belief as to a proprietary or possessory right: s 9.5.

A person is not criminally responsible for an offence if:

The prosecution bears a legal burden of proof, which requires it to:

A legal burden of proof must be discharged beyond reasonable doubt, unless the law creating the offence states otherwise: s 13.2.

In the exercise of federal jurisdiction conferred by s 68(2), Judiciary Act 1903 (Cth), the laws of a State respecting procedure for trial and conviction on indictment may be picked up and applied to Commonwealth offences pursuant to s 68(1)(c), provided they are not inconsistent with Commonwealth law. Where a State procedural law merely provides for the standard of proof beyond reasonable doubt to be explained, such as by permitting a direction that a reasonable doubt is not “an imaginary or fanciful doubt or an unrealistic possibility”: (Jury Directions Act 2015 (Vic), ss 63(1), 64(1)(e)), it is not inconsistent with s 13.2 because it explains, rather than alters or diminishes, the criminal standard of proof: Farshchi v The King [2025] HCA 46 at [15]; [28]–[31].

Subject to s 13.4, a burden of proof that a law imposes on a defendant is an evidential burden only: s 13.3(1). The evidential burden may be discharged so long as a defendant provides “no more than slender evidence” suggesting a reasonable possibility that a matter exists or does not exist: s 13.3(6); The Queen v Khazaal (2012) 217 CLR 96 at [74]; Mirzazadeh v R (2016) 312 FLR 1 at [70].

Care should be taken to ensure a provision actually engages s 13.3 and places an evidential burden on a defendant: see Jones v R [2025] NSWCCA 38 at [49]–[50], [60], where the relevant provision was not a defence but rather a means of proof for the Crown.