13.2 Standard of proof - prosecution

Commonwealth Criminal Code: Guide for practitioners

13.2 Standard of proof - prosecution

(1) A legal burden of proof on the prosecution must be discharged beyond reasonable doubt.

(2) Subsection (1) does not apply if the law creating the offence specifies a different standard of proof.

Overview

The standard of proof required of the prosecution, both when elements of  an offence must be established and when the prosecution bears the burden  of disproving defences or exceptions to liability, is proof beyond reasonable doubt. That demanding standard should neither be explained nor defined when instructions are given to a jury396 though paraphrase is permissible.397

  1. Green (1971) 126 CLR 28. For a recent discussion, see ALJ (2000) 117 A Crim R 370.

  2. See, for example, Burrows (1937) 58 CLR 249 at 256, per Latham CJ: a reasonable doubt is “a doubt such as would be entertained by reasonable men [and women], recognising their responsibility to the accused and the law.”