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Standards of Proof

Rules of Evidence

Civil Proceedings

Section 140 re-affirms the common law position that a court must find a civil law claim proven if it is satisfied that the case has been proven on the balance of probabilities. However, it then lists points that a court must take into account when deciding whether it is satisfied as to such proof. These include, but are not limited to, the nature of the plaintiff’s claim and the defence, the gravity of the alleged breaches of law, and the nature of the factual subject matter. This has the effect of altering the standard of proof in practice, if not in name. A higher performance on the part of the plaintiff is required in terms of the evidence gathered, as well as in terms of the arguments put to the court. The basis of this is that findings of serious criminal conduct should not be arrived at lightly by a civil court when sued as civil breaches. This does not mean, however, that a civil law claim would ever be decided on anything other than the balance of probabilities.


Criminal Proceedings

Section 141 re-affirms the common law standard for criminal cases that the prosecution must prove their case beyond reasonable doubt to succeed. It also re-affirms that where a defendant is required to prove some point or another, they need only prove such on the balance of probabilities.


The meaning of ‘beyond reasonable doubt’ is a matter for juries, or for whoever makes findings as to case facts. Each juror is to determine for themselves whether any doubt as to the guilt of the defendant is reasonable or not. There is no singular definition; it is to be taken simply as read.


Civil versus Criminal Standards of Proof

The differing standards of proof between the criminal and civil jurisdictions may create some interesting dynamics in the legal life cycle of the one matter. For example, a matter formerly subject to an unsuccessful prosecution may become the subject of an insurance investigation on grounds of unlawful use of the subject property as a breach of the insurance policy. The mere fact that the policy holder was acquitted in a criminal court does not mean that the same crime will not be proven on the same evidence in a civil court. A criminal acquittal merely means that reasonable doubt existed in the mind of as few as one juror only. Therefore the only court outcome that really goes to show innocence is a successful defence in a civil court with a competent plaintiff lawyer. A worthwhile caveat on this, however, is that because allegations of criminal conduct are serious, the plaintiff still has substantial work to do to ensure victory.




[1] Judicial College of Victoria, Uniform Evidence Manual, s141 – Criminal proceedings: standard of proof. Sourced online at on 27 December 2014.

All statutory sections from unspecified Acts, are sections from a model Act of the Commonwealth Parliament as described on the first page of this chapter, and should be replicated as described in each of the related Acts of each State and Territory. (Jurisdiction to regulate the rules of evidence exists in the States and Territories and not in the Commonwealth).

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