BURDEN & STANDARD OF PROOF

In criminal law, the presumption of innocence is a fundamental safeguard against injustice. An accused person must not be found guilty of an offence unless the prosecution satisfies the jury or, in the absence of a jury, the magistrate or judge, that the accused is guilty beyond reasonable doubt.

This principle is codified in statute under section 141(1) of the Evidence Act 1995 (NSW), which provides that in criminal proceedings, the court must not find the prosecution’s case proven unless it is satisfied that the case has been established beyond reasonable doubt.

The enduring common law authority of Woolmington v DPP reinforced that the burden rests with the Crown to prove the case beyond reasonable doubt. The High Court of Australia has affirmed that this phrase is of general application and does not require further judicial elaboration.

In Darkan v R, the High Court reiterated its opposition to judicial attempts to explain the concept of reasonable doubt to a jury, describing such attempts as “extreme and exceptional” and likely to exacerbate uncertainty rather than resolve it. Similarly, in R v Dookheea, the Court held that it was not erroneous for a trial judge to contrast “reasonable doubt” with “any doubt,” although such language may risk confusing the jury. The Court endorsed the practice of contrasting the criminal standard with the civil standard of proof ‘on the balance of probabilities’ to clarify the distinction.

The Crown bears the responsibility of proving each element of the offence. The accused is under no obligation to disprove the prosecution’s case or offer any evidence in rebuttal. To be acquitted, it is sufficient that the accused raises a reasonable doubt regarding the prosecution’s case.

While the burden generally remains with the Crown, there are limited exceptions. In certain circumstances, the accused may be required to establish a defence, such as:

• Mental illness
• Substantial impairment due to an abnormality of mind
• Statutory provisions that explicitly place an evidentiary burden on the accused

In these instances, the accused need only prove the defence ‘on the balance of probabilities’, as provided under section 141(2) of the Evidence Act 1995 (NSW).

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Mark Racca

Principal Solicitor & Director
LLB, GradDipLegPrac, MPA

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