the key concepts of the burden of proof and the standard of proof in criminal and civil cases

What this dot point is asking

VCAA wants you to define the burden of proof and the standard of proof and to apply them correctly to both criminal and civil cases. These are foundational concepts that appear in short-answer items and underpin almost every Unit 3 question on the justice system. Expect a 2-5 mark response.

The answer

The burden of proof

The burden of proof is the obligation to prove the facts of the case. It tells you which party must convince the court.

Criminal cases. The burden of proof rests on the prosecution. The accused is presumed innocent and does not have to prove anything (Woolmington v DPP [1935] AC 462, the source of the "golden thread" that the prosecution must prove guilt). This flows from the right to silence and the presumption of innocence protected by the Charter of Human Rights and Responsibilities Act 2006 (Vic) s 25(1).

Civil cases. The burden of proof rests on the plaintiff (the party bringing the action), because that party is the one making the claim. Where a defendant raises a defence or counterclaim, the defendant carries the burden of proving that matter.

The standard of proof

The standard of proof is the degree to which a case must be proved. It tells you how convincing the evidence must be.

Criminal cases: beyond reasonable doubt. The prosecution must prove each element of the offence beyond reasonable doubt. This is a high standard, reflecting the serious consequences of a criminal conviction (loss of liberty, criminal record). If the jury or magistrate has a reasonable doubt, the accused must be acquitted.

Civil cases: the balance of probabilities. The plaintiff must prove the case on the balance of probabilities, that is, that it is more likely than not (more than 50 percent likely) that the claim is made out. This is a lower standard than the criminal standard because the consequences (usually money or an order) are less severe. The standard is codified for Victorian civil proceedings in the Evidence Act 2008 (Vic) s 140, which lists matters the court may take into account, including the gravity of the matters alleged.

Why the two standards differ

The criminal standard is higher because a wrongful criminal conviction is a grave injustice: the state is depriving a person of liberty. Society accepts that it is better for some guilty people to go free than for an innocent person to be convicted. The lower civil standard reflects that civil disputes are between private parties over rights and money, where the cost of error is more evenly shared.

Reverse onus and limited exceptions

The burden almost always sits with the prosecution in criminal matters, but parliament can create limited statutory exceptions placing an evidential or legal burden on the accused (for example, certain drug-trafficking presumptions under the Drugs, Poisons and Controlled Substances Act 1981 (Vic)). Such reverse-onus provisions are controversial because they qualify the presumption of innocence and must be read compatibly with the Charter where possible.

Examples in context

Example 1. A theft charge. The prosecution must prove beyond reasonable doubt that the accused appropriated property belonging to another with the intention of permanently depriving the owner. If the jury is left with a reasonable doubt about the intention element, it must acquit, even if it suspects the accused is probably guilty. "Probably" is not enough in a criminal trial.

Example 2. A negligence claim arising from a car accident. The injured plaintiff must prove on the balance of probabilities that the defendant owed a duty of care, breached it, and caused the harm. If the evidence shows it is more likely than not (say 60 percent likely) that the defendant was at fault, the plaintiff succeeds. The same facts that fall short of beyond reasonable doubt in a criminal court can still establish civil liability, which is why a person acquitted of a crime can still be found civilly liable on the same conduct.

Try this

Q1. Define the burden of proof and state which party carries it in a criminal case and in a civil case. [3 marks]

• Cue. Burden of proof is the obligation to prove the case. Criminal: prosecution. Civil: plaintiff.

Q2. Explain why the criminal standard of proof is higher than the civil standard. [3 marks]

• Cue. Criminal conviction risks loss of liberty and a criminal record; the higher standard protects the innocent and reflects the presumption of innocence. Civil consequences (money, orders) are less severe, so the lower balance-of-probabilities standard applies.

Q3. A person is acquitted of assault but is later sued by the victim for the same conduct and found liable. Explain how this is possible. [3 marks]

• Cue. The criminal court required proof beyond reasonable doubt and was not satisfied; the civil court required only the balance of probabilities, a lower standard the plaintiff was able to meet.