A key foundation of the criminal legal system is the presumption of innocence. Under common law, the where a person is charged with a criminal offence, they have the right to be presumed innocent until they are proved guilty.[1] This presumption has also been codified under section 25(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic).

The presumption of innocence ties into the concept of ‘onus of proof’. Except for the limited circumstances in which statutory exceptions apply, the onus of proving the accused’s guilt rests with the prosecution. In other words, the accused does not need to prove their innocence[2].

However, it is important to understand that the onus of proof not only applies to offences but also applies to defences. Unless otherwise provided by statute, the prosecution bears the onus of disproving defences that become issues at trial.[3]

In the context of a charge of murder, the prosecution may therefore (among other things) need to prove that the accused’s actions were not:

  • accidental[4];
  • involuntary due to a state of sane automatism[5];
  • a result of duress[6];
  • committed in self-defence[7].

Standard of proof – ‘beyond reasonable doubt’

Section 141(1) of the Evidence Act 2008 provides that if the prosecution bears the onus of proof, the court must not find the prosecution’s case to be proved unless it is satisfied that it has been proved beyond reasonable doubt. This is in contrast where the accused bears the onus of proof, in which case the standard of proof is only on the balance of probabilities[8]. Section 141 of the Evidence Act 2008 reflects the position at common law[9].

It is important to understand that ‘beyond reasonable doubt’ does not merely require that accused may have committed the offence or is more likely than not to have committed the offence[10]. To better understand the meaning of ‘beyond reasonable doubt’ requires further examination.

The phrase ‘beyond reasonable doubt’ is a composite expression that cannot be broken down into its component parts for analysis. In other words, it is not possible to define each of the three component words separately as the phrase means more than the sum of its parts.[11]

The jury is tasked with determining what a reasonable doubt is according to their own standards.[12] However, in determining what is reasonable in the circumstances, a jury must be properly aware of its responsibilities – this includes heeding the judge’s directions, carefully considering the evidence, and disregarding fanciful or unreal possibilities[13].

While in England the standard of “beyond reasonable doubt” is seen to be synonymous with the term “sure”[14], this is not the case in Australia[15]. Further, in Australia, proof ‘beyond reasonable doubt’ cannot be expressed mathematically (for example. as a 99% certainty)[16]. This is because mathematical approaches encourage juries to disregard any doubts that exist once an arbitrary percentage is reached.

Why is reasonable doubt required?

  • Talk about punishment being so severe that a high standard of proof is required. What is the punishment – section 3 of the Crimes Act 1958.
  • Each element of the offence of murder therefore needs to be proved beyond reasonable doubt


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