72. Evidential burden on accused for exceptions etc.

72. Evidential burden on accused 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 accused wishes to rely on the exception, exemption, proviso, excuse or qualification-

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

(3) If satisfied that it is in the interests of justice to do so the Magistrates' Court may allow the prosecutor to re-open the case for the prosecution in order to adduce evidence in rebuttal of evidence presented or pointed to by the accused in accordance with subsection (1).

This section replaces s 130 Magistrates' Court Act 1989 and is drafted in similar terms. The accused is not required to adduce evidence to establish his exception, exemption, poviso, excuse or qualification if s/he is able to point to evidence that forms part of the prosecution case that does this.