Burdens of Proof

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This article deals with the various burdens of proof required in law:


Persuasive Burden of Proof

This is the normal 'burden of proof' in criminal law, thus usually referred to as just 'burden of proof. It requires the persuasion of the jury to believe the allegation beyond all reasonable doubt.[1]

It has been repeatedly stressed that a judge cannot attempt to explain to the jury what 'beyond a reasonable doubt it' is - it means exactly that.[2] A trial where a judge attempted to further explain to the jury what beyond reasonable doubt means will be a miscarriage of justice.

Evidentiary Burden of Proof

An evidentiary burden of proof is a duty to show that there is sufficient evidence to raise an issue. It is not a full burden of proof like a persuasive burden of proof (general 'burden of proof') is - it is merely a burden to produce some evidence which might dispute a presumption the court is under.

The defendant usually has such an evidentiary burden for things like an HRMF - merely to bring some evidence which suggests there might have been HRMF.

  • Whether an evidentiary burden of proof has been satisfied is determined by the judge.
  • After such a determination, the prosecution will have a persuasive burden of proof to refute the contention (ie, beyond all reasonable doubt).[3]

The Criminal Code (Cth) defines an evidentiary burden as:

  • 'The burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist': s 13.3 (6).

Balance of Probabilities

Proving something on the balance of probabilities means to prove that it is more likely to have happened than not (ie, a 51% chance).

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  1. The [Criminal Code (Cth)], s 13.1 (3); 13.2 (1)
  2. Thomas (1960) 102 CLR 584; Dawson (1961) 106 CLR 1.
  3. Australia, Senate Standing Committee on Constitutional and Legal Affairs, The Burden of Proof in Criminal Proceedings, Parliamentary Paper 319/1982 in Criminal Law 1 Textbook, pp. 402-4.
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