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Burden and Standards of Proof in the Australian Legal System

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In the Australian legal system, burdens and standards of proof play a critical role in determining the outcome of a case. Burden of proof refers to the obligation of a party to prove a disputed fact or issue in court, while standard of proof refers to the degree of certainty required to establish that fact or issue. These concepts are fundamental to the criminal and civil justice system in Australia.

The legal system in Australia has specific rules and guidelines that dictate how burdens and standards of proof are applied, depending on whether the legal matter is part of `which helps to ensure fair and just outcomes. Understanding these principles is essential for anyone involved in the Australian legal system, whether as a lawyer, defendant, or plaintiff.

Standard of Proof

‘The standard of proof’ refers to the responsibility of a party to prove the truth of their claim or assertion in a legal system. Proof standards differ between civil and criminal systems.

Burden and standard of proof in criminal law System

In the criminal law system, the concept of ‘reasonable doubt’ exists as the the standard of proof. The prosecution must prove the accused’s guilt beyond a reasonable doubt, which means that there should be no reasonable doubt in the mind of a reasonable person that the accused committed the offense. The burden and standard of proof in criminal law thus is high. If the prosecution cannot meet it, the accused will be acquitted. This exists because the penalties for criminal cases are often time far more severe.

The concept of ‘reasonable doubt’ itself can be somewhat vague and difficult to pin down. That is, to some extent, the intent of the court! As the High Court illustrated in Green v R (1971):

“A reasonable doubt is a doubt which the particular jury entertain in the circumstances. Jurymen themselves set the standard of what is reasonable in the circumstances.”

Thus, we can see that the burden of proof is relative to the certain circumstances in question. As such, consulting a legal professional on what your circumstances may result in is of pertinent importance. Reach out to one of our expert criminal lawyers at Jameson today for a free consultation.

Burden and Standard of Proof in the Civil Law System

In Australia’s civil legal system, the burden of proof rests on the plaintiff or claimant in civil law cases. However, the standard of proof is different than in criminal cases. In civil law cases, the plaintiff must prove their case on the balance of probabilities, meaning it is more likely than not that their claim is true.

This standard of proof is lower than the standard required in criminal law cases, which is “beyond a reasonable doubt.” In civil law, the burden of proof is on the party making the claim, and they must present evidence to support their case. If they fail to meet this burden, their claim may be dismissed.

The Presumption of Innocence

Within Australian criminal cases, the courts operate with a principle known as the ‘Presumption of Innocence.’ According to the Attorney General of Australia’s Department, ‘The presumption of innocence imposes on the prosecution the burden of proving the charge and guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt.” This stems from the fact that Australia is party to several international human rights treaties. Most pertinently, the presumption of innocence is contained in article 14(2) of the International Covenant on Civil and Political Rights (ICCPR).

As the Attorney General highlights, there are certain circumstances where the presumption of notice would need to be considered. Some examples are : in any legislation, policy, or program that creates an offense, contains a presumption, imposes criminal liability on an officer, relates to comments by public officials or media, the presentation of accused persons in court, or provides international legal assistance or cooperation.

Thus, we know that in criminal trials, for the prosecution to ascertain the defendant’s guilt, they must adduce sufficient evidence at a high standard. This ensures a fair trial for all those who are party to the Australian criminal justice system.

The scope of the presumption of innocence

The presumption of innocence is a fundamental principle of the common law. In criminal trials, the principle, generally speaking, is extremely strong. Until the point where the accused has been proven guilty, in a criminal case during the court proceedings the prosecution or public officials should act in a way that avoids preconcieving the verdict of the case by not publicly declaring the culpability of the defendant.

Furthermore, the defendants should not be shackled, restrained, or treated in a way by police officers that may indicate that they are dangerous criminals. Both of these points were outlined by the UN Commission on Human Rights.

The only derogation from this principle that is permitted are laws that are known as ‘reverse onus provisions.’ These provisions can place the burden of proof on the accused. Here, the prosecution bears no evidential burden, but rather that the accused bears the responsibility to produce evidence. Such a case is rare, but may apply to instances of terrorism, drug offences or child sex abuse. Further information by the Australian Law Reform Commission can be found here.

These provisions may not breach the presumption of innocence under international human rights law, as long as they are reasonable and protect the rights of the accused. The justification for a reverse onus provision depends on the offense and may be appropriate if it is difficult for the prosecution to prove or if it is easier for the accused to prove a fact than for the prosecution to disprove.

Laws for the presumption of innocence in Australia

The Criminal Code Act 1995 mandates that the prosecution must prove every element of an offense beyond reasonable doubt. Section 13.2 of the Act requires that the prosecution discharge its legal burden beyond reasonable doubt. Additionally, section 13.3 specifies that the burden of proof on the defendant is an evidential one unless the law states otherwise. The defendant may only bear a legal burden if it is specified by law or if a presumption is created. By carefully outlining the legal and evidential burdens of proof, the Criminal Code Act 1995 ensures that the right to the presumption of innocence is protected.


In Australia, the burden of proof is generally on the prosecution in criminal cases and on the plaintiff in civil cases. This means that it is up to the prosecution or plaintiff to present evidence that proves their case "beyond reasonable doubt" in criminal cases or "on the balance of probabilities" in civil cases.

The standard of proof "beyond reasonable doubt" is a high standard that requires the prosecution to prove their case to a degree of moral certainty. In contrast, the standard of proof "on the balance of probabilities" requires the plaintiff to show that it is more likely than not that their version of events is true.
The burden of proof and the standard of proof are related but distinct legal concepts. The burden of proof refers to the responsibility that a party in a legal case has to prove their case.

In other words, it is the obligation of a party to provide evidence that supports their position. The burden of proof can shift during a trial depending on the stage of the case and the evidence presented.

The standard of proof, on the other hand, refers to the degree of certainty that must be established to meet the burden of proof. It sets the level of evidence required for a judge or jury to find in favor of one party or the other. The standard of proof may vary depending on the type of case and the specific legal issue involved.
In the Australian legal system, the standard of proof varies depending on the type of case and the specific legal issue involved. Generally, there are two standards of proof that apply in different types of cases:

    1. Criminal Cases: In criminal cases, the standard of proof is "beyond reasonable doubt." This means that the prosecution must prove its case to a degree of moral certainty that leaves no reasonable doubt in the mind of the judge or jury. The accused is presumed innocent until proven guilty beyond reasonable doubt.

    2. Civil Cases: In civil cases, the standard of proof is "on the balance of probabilities." This means that the plaintiff must prove its case to a degree of likelihood that exceeds 50%. This standard requires the plaintiff to establish that it is more likely than not that its version of events is true.

It's important to note that the standard of proof may also vary depending on the specific legal issue involved. Contact one our legal professionals today if you need any help with a pending legal case.

In criminal law NSW, the burden of proof is on the prosecution to prove the guilt of the accused beyond reasonable doubt, and the standard of proof is also "beyond reasonable doubt."


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