Chapter 8
Burden of proof


8.1The burden of proof determines who is responsible for convincing the court of a matter at issue in a proceeding. Two different burdens of proof are commonly referred to: the legal burden of proof and the evidential burden of proof. The legal burden refers to the need to convince the court of the particular point in issue in order to succeed on that point or on the case overall. If the person who carries the legal burden of the overall case fails to discharge that burden, his or her case will fail. The evidential burden refers to the need to raise sufficient evidence about a matter to make it “live”: that is, a matter the court will need to consider and that the opposing side will need to address. An example is the evidential burden imposed on the defendant in relation to certain criminal defences: the defendant must raise sufficient evidence to make the defence live before the prosecution is required to rebut it as part of its case.

8.2As a general principle, in both the civil and criminal sphere, the party that initiates the proceeding bears the legal burden of proving its case. As observed by the Australian Senate Standing Committee on Constitutional and Legal Affairs, writing on the burden of proof in 1982:131

A civil litigant who invokes the state’s aid through its judicial system, or a prosecutor who has the full resources of the State to press charges against an accused person, should assume the burden of proving what he [or she] alleges.

8.3Special significance attaches to the fact that the legal burden is borne by the prosecution in criminal proceedings. Criminal law theory and jurisprudence maintains that the punitive nature of the criminal law, and the risk of imprisonment and/or stigma, entitles a defendant to a criminal proceeding to be presumed innocent until proven guilty. The presumption of innocence is really another way of expressing the fact that the burden of proof is on the prosecution. It serves at least two important purposes: (1) it curbs the intrusive power of government; and (2) it justifies the use of the state’s coercive powers.132 The presumption of innocence has been described as the “golden thread” of the criminal law.133

8.4The burden of proof is a central matter in pecuniary penalty proceedings, as it is in any legal proceeding. We propose that questions as to how the burden of proof should be addressed in pecuniary penalty provisions be guided by the following principles:

131Senate Standing Committee on Constitutional and Legal Affairs The Burden of Proof in Criminal Proceedings (Canberra, 1982) at [3.1].
132WH Charles, TA Cromwell and KB Jobson Evidence and the Charter of Rights and Freedoms (Butterworths, Canada, 1989) at 152–153.
133Woolmington v DPP [1935] AC 462 (HL) at 481.