The partial defence of diminished responsibility (which is available in four Australian jurisdictions, including the Northern Territory, although not in Victoria), like provocation, reduces murder to manslaughter, but unlike provocation, the onus of proof is placed on the defence on the balance of probabilities.
Given that the prosecution is rarely in a position to contest the defendant's version of events, as the only other witness has been killed by the defendant, this is a strong justification for reversing the onus of proof upon a defendant raising the partial defence of provocation.
Finally, the least preferred option is the retention of the partial defence of provocation, but with an objective test only, with a narrowing of the definition of provocation, and with the onus of proof placed on the defence on the balance of probabilities.
71) Queensland has been ranked higher than the Northern Territory because the Queensland Government introduced legislation in November 2010 to place the onus of proof on a defendant who raises the partial defence of provocation.
124) Instead, it is contended that the very low evidential bar for the admission of the defence of provocation should be substantially raised by reversing the onus of proof.
135) Thirdly, the defence should bear the legal onus of proof.
What is the rationale for a reversal of the onus of proof and what justification is there for the State placing a legal burden of proof on the defendant?
Recommendations of contention include a diminished right of entry for unions, the possibility that health and safety representatives (HSRs) will need professional indemnity insurance to carry out their duties, the loss of union's right to prosecute on behalf of workers, and the reversal of onus of proof
from the employer to the employee (ie.