Onus & Burden of Proof

In a criminal trial, the burden of proof of guilt of the accused is placed on the Crown. That onus rests upon the Crown in respect of every element of the charges. There is no onus of proof on the accused at all. It is not for the accused to prove his or her innocence, but for the Crown to prove the guilt of the accused and to prove it beyond reasonable doubt.

It is and always has been, a critical part of our system of justice that persons tried in this Court are presumed to be innocent, unless and until they are proved guilty beyond reasonable doubt. This is known as the “presumption of innocence”. This expression “proved beyond reasonable doubt” is an ancient one. It has been deeply ingrained in the criminal law of the state of New South Wales for almost two hundred years and it needs no explanation from trial judges.

The words “beyond reasonable doubt” are ordinary English words and they are given their ordinary English meaning. The collective wisdom developed over the centuries is that further explanation is neither necessary nor desirable. However, it is very important to remember that suspicion, not even the gravest of suspicion can be a substitute for proof beyond reasonable doubt. The standard of beyond reasonable doubt is the highest standard of proof known to the law.

The Crown must prove the accused’s guilt beyond reasonable doubt. That is a high standard of proof that the Crown must achieve before a jury can convict the accused. At the end of the jury’s consideration of the evidence in the trial and the submissions made by the parties, members of the jury must ask whether the Crown has established the accused’s guilt beyond reasonable doubt. In other words members of the jury should ask themselves “is there any reasonable possibility that the accused is not guilty?”

The Crown does not have to prove, however, every single fact in the case beyond reasonable doubt. The onus which rests upon the Crown is to prove the elements of the charges beyond reasonable doubt.

In a criminal trial there is only one ultimate issue. Has the Crown proved the guilt of the accused beyond reasonable doubt? If the answer is “Yes”, the appropriate verdict is “Guilty”. If the answer is “No”, the verdict must be “Not Guilty”.

The contents of this article are general in nature. For advice specific to your circumstances, please contact your legal practitioner.

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