What Is the Standard of Proof in Criminal Law? (Australia 2023 Guide) 

What Is the Standard of Proof in Criminal Law?The “standard of proof” in a legal matter is the amount of evidence required to return a verdict in favour of the plaintiff or, in a criminal case, the prosecution. It is not possible to be 100% sure that a verdict should be in favour of one party or the other, so standards of proof set out a minimum level of confidence that a judge or jury must have to decide in favour of the plaintiff. In criminal law, that standard is “beyond a reasonable doubt.” It is the highest standard of proof in legal cases today.

The prosecution in a criminal case has the “burden of proof.” This requirement means that they must prove their case—not that the accused must prove that they are innocent. The prosecution must prove each element of the crime (not just the crime as a whole) beyond a reasonable doubt to obtain a guilty verdict. In addition, they must also disprove any potential defence. It is a very high burden that recognizes the significance of a criminal conviction on any individual’s life.

Given the high stakes involved in criminal cases, understanding and navigating the nuances of 'beyond a reasonable doubt' is crucial. For expert guidance in such matters, consider consulting a Melbourne criminal defence lawyer.

What Does Legal Burden Mean?

In general, when a party has the legal burden, they must prove the existence of a matter. In a criminal case, the prosecution bears the legal burden—they must produce enough evidence to convince a judge or jury that each element of a crime is met to obtain a conviction.

In some situations, the legal burden can shift from one party to another. For example, the prosecution may need to prove the initial elements of a crime, but it is the defendant’s responsibility to prove any potential defences they raise. Then, the burden shifts again to the prosecution to disprove the existence of the elements of any defence asserted.

“Beyond a Reasonable Doubt” in Action: Defences Using The Standard of Proof

In some criminal cases, the prosecution will attempt to prove a case based on circumstantial evidence. Circumstantial evidence is any evidence that is indirect or not drawn from direct observation. It does not prove a fact in and of itself, but it leads one to assume a fact.

Consider An Example…

For instance, imagine someone found a gun in a closet in your apartment. Someone might assume that the gun belongs to you because you rent the apartment. There is no direct evidence it belongs to you, but because it was somewhere you control, it is assumed it belongs to you.

However, you could rebut that circumstantial evidence with the fact that someone else rents that particular room, and all of his other belongings are in that closet. The standard of proof will help a defendant in that situation. If you show the gun is likely a roommate’s gun based on additional circumstantial evidence, it is unlikely that the possession charge will rise to “beyond a reasonable doubt.”

Circumstantial Evidence And The Burden of Proof

Ultimately, the higher standard of proof makes it more difficult to use circumstantial evidence to prove a conviction. While enough circumstantial evidence can lead to a conviction, a higher burden of proof generally makes the prosecution’s job of proving their case even more difficult.

Complications With The “Beyond Reasonable Doubt” Standard

The 'beyond reasonable doubt' standard, while fundamental in ensuring fairness, can present challenges in cases with limited tangible evidence. Take, for example, allegations of someone threatening to kill another person. Such serious claims often hinge on the victim's testimony, lacking physical evidence like written or recorded threats. This situation underscores a delicate balance in the legal system - addressing potentially dangerous threats while upholding the rigorous proof standard. For more insights on this topic, you can read another article we wrote about whether or not someone can go to jail for threatening to kill someone.

Other Standards Of Proof: Balance Of Probabilities

The criminal standard of proof is perhaps the most well-known because it is the highest standard. However, civil cases use a standard of proof called “balance of probabilities.”

The standard of proof in civil cases is less burdensome compared to criminal cases. The lower standard makes sense simply because the stakes of winning or losing the trial are lower. In most civil cases, the plaintiff is requesting a monetary award to compensate them for their damages.

Consider An Example…

For example, in a slip and fall case, one individual might sue a business owner for a fall caused by their failure to upkeep their sidewalk. As part of that suit, they request reimbursement for lost wages or medical expenses. While those items are important, they are not as critical as potentially losing liberty and freedom by being detained as a result of a criminal conviction.

Balance of Probabilities: More Likely Than Not

The balance of the probabilities essentially requires that the evidence show that one result is more likely than not. The lower standard is in place, in part, because it is assumed that both parties in a civil case are on relatively equal footing, which is not the case in a criminal case when it is the government against an individual.


The standard or burden of proof in criminal law in Australia is “beyond a reasonable doubt.” It is a high standard that recognizes the seriousness of any criminal charge and is much higher than the civil burden of proof, “balance of probabilities.” While the standard is higher, that does not mean that individuals charged with a crime should try to defend themselves in most cases. Talking to a criminal lawyer can be very helpful to get a favourable result in a criminal case.

Resources and Further Reading

  1. https://www.ag.gov.au/crime/publications/commonwealth-criminal-code-guide-practitioners-draft/part-26-proof-criminal-responsibility/division-13/131-legal-burden-proof-prosecution#:~:text=Overview,excuse%2C%20justification%2C%20or%20qualification.
  2. http://classic.austlii.edu.au/au/legis/vic/consol_act/ea200880/s141.html
June Duncan

June Duncan

June has been writing about legal matters for law firms for over a decade. She is a licensed lawyer and currently practices law full-time. She writes in her spare time because she enjoys helping others decode the complexities of legal jargon so they can understand and assert their legal rights.

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