Tuvalu Island Courts Bench Book - Federal Court of Australia

Commentary
For any charge under this section:
Burden and standard of proof
The prosecution must prove all the elements beyond reasonable
doubt. If the defence establishes to your satisfaction that there is a
reasonable doubt, then the prosecution has failed.
Identification
In Court, the prosecution should identify the person charged by
clearly pointing out that person in Court.
The prosecution must provide evidence to prove that it was the
accused who stole, damaged or destroyed the plant, etc.
Plant, etc did not belong to them
The prosecution must provide evidence of the plant, etc and prove
the owner of it. See the definition of “owner” in s251(2)(c).
Place
The prosecution must prove that the plant, etc, was growing in a
garden, orchard, pleasure ground, green-house, conservatory or on
any land.
Use of plant, etc
The prosecution must prove that the plant, etc, was used:
• for the food of man or beast; or
• for medicine; or
• for distilling; or
• for dyeing; or
• for or in the course of any manufacture.
Fraudulently and without claim of right in good faith
The accused must have had an intention to defraud, steal, destroy or
damage, and no good claim to the plant, etc. Consider why did the
accused take, destroy or damage it? Was there an honest intention?
If the accused puts forward an explanation to show he or she
honestly believed in their right to take or destroy the plant, etc, does
their explanation have merit? Is their belief reasonable?
Owner did not consent
The prosecution must prove that the owner did not consent to the
plant, etc, being taken or destroyed. This will be quite easy and is
usually done by evidence from the owner of the plant, etc.
Tuvalu Island Courts Bench Book June 2004