61What must be proved beyond reasonable doubt

61 What must be proved beyond reasonable doubt

Unless an enactment otherwise provides, the only matters that the trial judge may direct the jury must be proved beyond reasonable doubt are—

(a) the elements of the offence charged or an alternative offence; and

(b) the absence of any relevant defence.

1 If the trial judge directs the jury about a matter referred to in paragraph (a) or (b) in the form of a factual question under section 67(2) or (3), the trial judge must direct the jury that it must be satisfied of that matter beyond reasonable doubt.

Note 2 to s. 61 amended by No. 47/2016 s. 29.

2 Section 46(4)(b) refers to specific matters that must be proved beyond reasonable doubt.

The trial judge may relate the evidence in the trial to directions under section 61 in many different ways, for example—

• when directing the jury that an element must be proved beyond reasonable doubt, the trial judge may refer to the evidence relied on by the prosecution to prove that element and direct the jury that it must be satisfied that that evidence proves that element beyond reasonable doubt; or

• where the only evidence relied on by the prosecution to prove an element is an alleged admission made by the accused, the trial judge may refer to the alleged admission and direct the jury that it must be satisfied that that evidence proves that element beyond reasonable doubt.