Beyond reasonable doubt: the short answer
In an Australian criminal case, the prosecution ordinarily must prove every element of the charged offence beyond reasonable doubt. If the judge, magistrate or jury has a reasonable doubt about an element the prosecution must prove, the accused must not be convicted of that charge.
The expression is deliberately not a mathematical formula. It does not mean 90%, 95% or any other numerical level of certainty.
What the legislation says
Section 141(1) of the Evidence Act 1995 (Cth) says that, in a criminal proceeding to which it applies, the court is not to find the prosecution case proved unless satisfied that it has been proved beyond reasonable doubt.
Section 141(2) deals separately with a legal burden imposed on a defendant and uses the balance of probabilities. Whether a defendant bears any such burden depends on the offence, defence and legislation involved. Several states and territories have equivalent uniform evidence provisions, while other jurisdictions express the criminal standard through their own legislation and common law.
Why there is no percentage
In The Queen v Dookheea [2017] HCA 36, the High Court considered directions given to a jury about the criminal standard. The judgment confirms that the ordinary expression “beyond reasonable doubt” should not be translated into a percentage.
A criminal court assesses all admissible evidence, the reliability and credibility of witnesses, competing explanations and the elements of the offence. A doubt must be reasonable in the context of that evidence; a merely fanciful or speculative possibility is not enough.
Burden of proof and evidential burdens
The prosecution generally carries the legal burden of proving the offence. An accused person is not usually required to prove innocence. However, the law can require an accused to point to evidence supporting a particular issue, and some statutory provisions can impose a legal burden for a specific defence or exception.
That is why broad statements such as “the burden never shifts” can be inaccurate. A lawyer must examine the charge, the applicable Act, the jurisdiction and any defence actually raised.
How the standard is applied
The prosecution must prove each essential element of the offence. Depending on the charge, those elements may include conduct, intention, knowledge, recklessness, identity or a circumstance specified by legislation.
The defence may test whether that proof is reliable by:
- challenging the admissibility or lawfulness of evidence;
- cross-examining witnesses about accuracy, reliability or inconsistency;
- identifying gaps in the prosecution case;
- presenting admissible evidence that supports another reasonable conclusion; and
- making submissions about whether every element has been proved.
Those steps do not guarantee an acquittal. Their relevance depends on the evidence and the law applying to the particular case.
What a not-guilty verdict means
A not-guilty verdict means the prosecution did not prove the charge beyond reasonable doubt. It is not a separate judicial declaration that every allegation was false, nor does it necessarily resolve related civil, disciplinary or regulatory issues, which may involve different questions and standards.
If you have been charged
Keep the charge sheet, police facts, bail documents, interview records and any court notices. Do not miss a court date. Before deciding whether to answer questions, plead guilty or not guilty, or rely on a defence, obtain advice about the actual evidence and the law in your jurisdiction.
Call 1800 577 015 for free general legal information from Jen, Go To Court’s AI assistant. Jen is not a lawyer and does not provide legal advice. If you need advice about your circumstances, you can request a 60-minute consultation with a qualified lawyer; the consultation costs $295 and is subject to a suitable lawyer’s availability.