What Is The Onus Of Proof?


The onus of proof means the prosecution must prove an accused is guilty of the offence “beyond reasonable doubt”. The burden of proving an accused’s guilt beyond reasonable doubt lies with the prosecution. This means the prosecution has the onus of proving that an accused is guilty of a criminal offence beyond a reasonable doubt. An accused does not need to prove anything- they do not need to prove they are innocent.

Tied in with the onus of proof resting with the prosecution is “the presumption of innocence”. The presumption of innocence means the prosecution must prove the charge against an accused. It means an accused is innocent, and guilt cannot be presumed until, and if the prosecution has proved the charge “beyond reasonable doubt”. Until the prosecution evidence satisfies a Magistrate or Jury of an accused’s guilt beyond reasonable doubt, the presumption of innocence remains. The presumption guarantees an accused a fair trial. If there is any reasonable doubt in the mind of the Magistrate or Jury, an accused must be acquitted of the offence they are charged with.  


What Standard of Proof Must The Prosecution Meet?


Having established the prosecution bears the onus of proof in proving the accused committed a criminal offence, what standard must they meet? As we have alluded to above, the standard of proof in criminal cases in Queensland is “beyond a reasonable doubt”. The highest legal standard of proof is beyond a reasonable doubt. This is unlike the civil standard of proof, which is on the balance of probabilities (i.e. is it more likely than not?). There is an excellent reason the standard of proof in a criminal trial is so high. This is because innocent people are accused of criminal offences all the time. The standard of proof upholds the presumption of innocence of an accused.   


Evidential Onus


In Queensland, the general rule is an accused does not need to prove or disprove anything. This rule applies from when police charge the person to the end of the matter. But, like many things, there are usually exceptions to rules. Suppose an accused wants to raise a defence. In that case, they may have an evidential onus to produce evidence to substantiate their defence.


For example, persons who wish to raise defences or excuses such as the following will bear the evidential onus of raising the defence or excuse: 


  1. Accident (s23 Criminal Code). 
  2. Mistake of fact (s24 Criminal Code). 
  3. Extraordinary emergency (s25 Criminal Code). 
  4. Provocation (s268 Criminal Code).
  5. Self-defence (ss271 and 272 Criminal Code).

The evidential onus rests on the accused unless the prosecution produces evidence to raise the above defences or excuses. Once an accused raises a defence or excuse, the onus is on the prosecution to negative (disprove) it beyond a reasonable doubt.  


A common situation where an excuse of mistake under section 24 of the Criminal Code is often raised is in rape and sexual assault cases. For example, an accused may say they believed the complainant was consenting to the sexual act. The evidential onus is on the accused to produce evidence to the court to prove they held the belief to raise the excuse. A common way this is achieved is by the accused giving evidence at their trial about the circumstances causing them to believe the complainant was consenting. Once the excuse is raised, the prosecution must prove beyond reasonable doubt the accused did not honestly or reasonably hold a belief the complainant was consenting to the sexual act.


Criminal Lawyers Brisbane Group, The Experts

If police charge you with a criminal offence, the best thing you can do is arm yourself with a criminal defence lawyer. But not any criminal lawyer. You need the best Brisbane criminal lawyers if you want the best result. Contact the Criminal Lawyers Brisbane Group today for confidential expert advice. We represent clients throughout South-East Queensland. No matter where your criminal charge is, our criminal lawyers can help you.

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