A criminal prosecution must prove their case to a high degree of certainty, so that there is no reasonable doubt in the mind of the jury as to the guilt of the accused. This serves as a safeguard against wrongful convictions and ensures that the burden of proof remains on the prosecution throughout a criminal trial.

Burden of proof / standard of proof

Burden of proof and standard of proof are two key concepts in criminal law. The burden of proof refers to the obligation of the prosecution to prove their case against the accused. The standard of proof refers to the level of proof required to establish guilt in a criminal trial.

In Australia, the prosecution bears the burden of proof. It is up to the state to present evidence that is sufficient to convince a jury or judge that the accused committed the crime in question. The accused does not have to prove their innocence.

The standard of proof that the prosecution much reach is very high. Beyond a reasonable doubt requires a very high level of certainty, although not an absolute level of certainty. It is a higher standard of proof than the “balance of probabilities” standard that is used in civil law cases.

Why such a high burden of proof for criminal charges?

The reason the burden of proof rests on the prosecution to such a high standard is to ensure that innocent people are not wrongly convicted of crimes. Criminal convictions can have serious consequences, such as financial penalty or imprisonment, and can have a long-lasting impact on a person’s life. Before imposing such serious consequences, the prosecution must produce evidence that is strong enough to eliminate any reasonable doubt that the accused did not commit the crime.

Elements of a criminal offence

The elements of a criminal offence are the specific components that the prosecution must prove beyond a reasonable doubt in order to obtain a conviction for that offence.

In general, criminal offences are composed of two key components: the physical acts that constitute the offence (the actus reus) and the mental state or intention to commit the act (the mens rea). The prosecution has the burden of proving both the physical acts and intention of each element of a criminal offence beyond reasonable doubt. For example, in a charge of theft, the prosecution must prove that the accused person took someone else’s property without their consent, and that they intended to permanently deprive the owner of that property.

What about strict liability offences?

With certain types of offences, known as strict liability offences, the prosecution does not need to prove intention beyond a reasonable doubt. Strict liability offences are those where the accused person can be convicted based solely on the physical act or conduct that constitutes the offence. In other words, the prosecution does not need to prove that the accused person had the intention or knowledge to commit the offence.

Strict liability offences are typically minor offences, such as traffic violations, and are often designed to protect public safety or to enforce regulatory compliance. Examples include speeding, parking violations, and breaches of certain environmental regulations.

The rationale behind strict liability offences is that these offences do not require proof of intention because they are generally minor offences that do not carry significant penalties or imprisonment. It is important to note that with strict liability offences the accused person may still be able to argue that they did not commit the actual act (or that there was a reasonable excuse or defence for their conduct).


In criminal law, the prosecution must prove their case beyond a reasonable doubt in order to obtain a conviction. However, the accused person is entitled to raise defences to the charges against them. If the defence can raise a reasonable doubt as to any element of the prosecution’s case, the accused person may be acquitted. Some common defences that can raise reasonable doubt in a criminal case include alibi, self-defence, duress, insanity, mistake of fact, and necessity.

It is important to note that the burden of proof still lies with the prosecution, even when the accused person raises a defence. In other words, it is not necessary for the accused person to prove their defence beyond a reasonable doubt; rather, it is up to the prosecution to prove that the defence is not valid.

Case example

One notable case in Australia that illustrates the application of the standard of proof beyond a reasonable doubt is the case of R v. Chamberlain. In this case, a family was camping in Uluru when the mother reported that a dingo had taken their infant daughter from their tent. Despite extensive searches, the baby’s body was not found, and the mother was subsequently charged with murder.

At her trial, the prosecution argued that the mother had killed her child and they presented various pieces of circumstantial evidence to support their case. The defence argued that a dingo had taken the child, and they presented expert evidence to support this theory.

After a lengthy trial, the jury found the mother guilty. This conviction was based overwhelmingly on circumstantial evidence, which the jury considered sufficient to overcome any reasonable doubt. However, six years later, a piece of clothing identified as belonging to the infant was found near a dingo lair, which supported the defence’s theory. The mother’s conviction was subsequently overturned, and she was released from prison, because the existence of the clothing gave rise to a reasonable doubt that had previously not existed.


While the criminal law is in place to protect the community and punish those who commit serious crimes, the system is imperfect and there are measures in place to help ensure those charged with a criminal offence have certain protections. The job of a criminal defence lawyer is to force the prosecution to prove every element of a crime, and to help the court understand the circumstances of a person who has been charged.

If you or someone you know wants more information or needs help or advice, please contact us on (02) 9818 2888 or email [email protected].