Beyond Reasonable Doubt | Balance Of Probabilities

Before we move on to your Local Court defended hearing, we’ll discuss who has to prove what, and to what extent.

It is the “golden thread” of criminal law that the State must prove each element of the offence “beyond reasonable doubt”. It is not the job of defence to prove, for example, that you were not present at the scene, but the police must prove that you were.

In law there are always exceptions, but generally, when the defence must prove something, it is to the level of “the balance of probabilities”. This is simply a matter of “more probable than not”, or if you prefer figures, say 51% or greater.

“Beyond reasonable doubt” is completely different. Many Judges over the years have caused mistrials by attempting to explain to the jury what that term means. You cannot use figures to determine this level. The phrase is to be given it’s ordinary everyday meaning. Simply put, if there is a doubt in your mind, and that doubt is reasonable, the accused must not be convicted.

We will discuss defences later, but if you are accused of assault, and your defence is “self defence”, the police must prove the assault beyond reasonable doubt, and the defence must prove that the act was done in self defence “on the balance of probabilities”. Although this sounds like defence have an easier job than the police, in practice this is not always so.

If you tried to put a mathematical formula to “beyond reasonable doubt”, it can have dangerous results.

Let’s suppose for example, a jury had to decide if the accused had the state of mind needed to cause the death of the victim. If the victim was killed by a gun with six barrels, and only one of them had a bullet, you would be hard pressed to argue that because there was only a one in six chance of being killed, that the accused should walk free. Mathematically, there is a five from six chance that pulling the trigger would not harm the victim. Luckily, maths does not play a large role in criminal trials.

Now we know to what level you have to be proven guilty, so next week we will look the process leading up to a Local Court defended hearing.

If you have any questions you would like answered either confidentially or via this medium, please email us at

This is intended for general information and does not constitute legal advice and should not be relied upon as such. Formal legal advice should be sought.

On February 16th, 2011, posted in: Know the Law by
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