The burden of proof is a term that is used often in relation to court proceedings, but difficult to understand in practice. There are different standards, methods of reversing the burden of proof, and requirements placed upon parties to establish their case. It can get terribly confusing for a first-time participant, or self-represented person, in the court system.

Civil law

In civil law, which includes Restraining Orders, the Applicant, or Plaintiff, carries the onus of proving their case to the standard of the balance of probabilities.

This means that the Magistrate, Judge or other judicial officer must find that the Applicant’s case is more likely than not to be the correct finding. If the Respondent or Defendant raises a defence, or makes a cross-claim against the Applicant, the standard is the same.

The civil standard can be difficult to interpret and apply, as there is extensive legislation, case law and legal principles which come to bear on any situation. At the end of the day, the Judge’s role is to determine which side is in the right, and which is in the wrong – whose version of events is more likely than not to have been true.

Criminal Law

In criminal law, the burden of proof of proof is that of beyond a reasonable doubt. The onus of proof is on the prosecution, except in very limited circumstances.

In practice, this means that the prosecution, whether the Police or the Officer of the Director of Public Prosecutions (“ODPP”) are required to prove their case, and all the elements of each criminal offence, beyond a reasonable doubt.

In the lower courts, for summary offences, this means that a Magistrate, in the course of a trial, must find that the Prosecution have discharged their onus beyond a reasonable doubt.

In the higher courts, to establish a finding of guilt on a charge, it is a Jury of 12 men or women who must each find that the charge/s have been established beyond a reasonable doubt. In some circumstances, this can be reduced to 11 out of 12 being required to be satisfied beyond a reasonable doubt.

If an accused raised what is called a positive defence, which means, simply put, they are saying ‘yes I did it but I am not legally responsible for my actions due to….’ Defences of this nature include provocation, or self-defence. When this occurs, the accused is required to provide sufficient evidence to show that the defence is viable. The prosecution carries the burden of disproving or nullifying the defence, beyond a reasonable doubt.

In some limited circumstances, the onus of proof can be reversed, such as in situations where there is a ‘presumption’ at law. For example, some large quantities of drugs being found on an accused gives rise to a presumption it was for sale and supply. The reasoning behind the presumption is that the quantities are considered far too high to be for mere personal use. In these cases, if a defence is raised, the accused carries the burden of disproving the presumption. The standard of proof is that of the balance of probabilities.

Conclusion

It is important to note that the onus and standard of proof can be a high bar to meet and establish, particularly in Criminal proceedings. In criminal matters, it is also important to note that an accused has the right to silence at all times, and is not required to take the stand at all to speak to their innocence (see our previous article which addresses the right to silence https://fraserlaw.com.au/news/rights-and-obligations-police-investigations/). This is important in considering the onus and standard of proof, as the Prosecution in a criminal case still bears the onus of proof even if the Accused leads no evidence in their own defence. This is called ‘putting the Prosecution to proof’.

If you have an upcoming civil or criminal trial, and are unsure about what you do and do not need to prove, get in touch with us today for an obligation free first confidential discussion about how we can help.