Editing Burden of proof (law) (section)

== Standards of proof in Australia ==
In Australia, two standards of proof are applied at common law: the criminal standard and the civil standard.<ref>{{cite book |author=Nyman Gibson Miralis: Dennis Miralis & Phillip Gibson |title=International Comparative Legal Guides - Cartels & Leniency 2020: A practical cross-border insight into cartels & leniency |date=2019 |publisher=Glg global legal group |location=London |isbn=9781839180088 |edition=13th |chapter-url=https://ngm.com.au/wp-content/uploads/2019/11/CAR20_Chapter-4_Australia.pdf |access-date=12 July 2023 |chapter=Chapter 4: Australia |page=17}}</ref> It is possible for other standards of proof to be applied where required by law.{{Citation needed|date=July 2023}}

=== Criminal standard ===
The criminal standard in Australia is 'beyond reasonable doubt'.<ref name=":4">{{Cite web |title=Onus and standard of proof |url=https://www.judcom.nsw.gov.au/publications/benchbks/criminal/onus_and_standard_of_proof.html |access-date=2023-07-11 |website=www.judcom.nsw.gov.au |quote=Proving the accused's guilt beyond reasonable doubt is the standard of proof the Crown must achieve before you can convict [him/her] and the words mean exactly what they say — proof beyond reasonable doubt. When you finish considering the evidence in the trial and the submissions made by the parties you must ask yourself whether the Crown has established the accused's guilt beyond reasonable doubt.}}</ref> An offence against a Commonwealth law, with a term of imprisonment in excess of 12 months is an 'indictable offence';<ref>{{Cite book |url=https://www.legislation.gov.au/C1914A00012/latest/text |title=Crimes Act 1914 (Cth.) |date=8 January 2024 |publisher=Commonwealth of Australia - Attorney General's Department |edition=153 |location=Australia |publication-date=18 January 2024 |at=s4G |language=en-au}}</ref> and is constitutionally required to be tried before jury of 12 people.<ref>{{Cite web |title=Commonwealth Criminal Offences |url=https://www.sladesparsons.com.au/commonwealth-criminal-offences/ |access-date=2023-07-05 |website=Slades & Parsons |language=en-US |quote=Offences under commonwealth law will either be: A summary offence, punishable by up to 12 months in prison An indictable offence, punishable by more than 12 months in prison.}}</ref><ref>{{cite web |title=Local Court Bench Book — Commonwealth Offences |url=https://www.judcom.nsw.gov.au/publications/benchbks/local/commonwealth_offences.html |access-date=9 July 2023 |website=Judicial Commission of New South Wales}}</ref> Offences that do not carry a term of imprisonment  exceeding 12 months are called 'Summary Offences'. Some offences (with a term of imprisonment <10 years) may be heard by a court of summary jurisdiction, ''a.k.a.'' Magistrates Court with the consent of all parties; however the court may not impose a sentence greater than 12 months. Juries are required to make findings of guilt 'beyond reasonable doubt' for criminal matters.<ref name=":4" /> 

The Australian constitution does not expressly provide that criminal trials must be 'fair', nor does it set out the elements of a fair trial, but it may by implication protect other attributes.<ref>{{Cite web |title=Protections from statutory encroachment |url=https://www.alrc.gov.au/publication/traditional-rights-and-freedoms-encroachments-by-commonwealth-laws-alrc-report-129/8-fair-trial-2/protections-from-statutory-encroachment-27/ |access-date=2023-07-11 |website=ALRC |language=en-AU |quote=8.30     The Australian Constitution does not expressly provide that criminal trials must be 'fair', nor does it set out the elements of a fair trial, but it does protect many attributes of a fair trial and may by implication be found to protect other attributes.}}</ref> The High Court has moved toward, but not yet, entrenched procedural fairness as a constitutional right. If it did so, this would have the potential to constitutionalise the 'beyond reasonable doubt' standard in criminal proceedings.<ref>{{Cite web |title=Protections from statutory encroachment |url=https://www.alrc.gov.au/publication/traditional-rights-and-freedoms-encroachments-by-commonwealth-laws-alrc-report-129/8-fair-trial-2/protections-from-statutory-encroachment-27/ |access-date=2023-07-11 |website=ALRC |language=en-AU |quote=8.36     The High Court may have moved towards—but stopped short of—entrenching procedural fairness as a constitutional right.[43] If procedural fairness were considered an essential characteristic of a court, this might have the potential, among other things, to constitutionalise "the presumption of innocence, the 'beyond reasonable doubt' standard of proof in criminal proceedings, the privilege against self-incrimination, limitations on the use of secret evidence, limitations on ex parte proceedings, limitations on any power to continue proceedings in the face of an unrepresented party, limitations on courts' jurisdiction to make an adverse finding on law or fact that has not been put to the parties, and limitations on the power of a court or a judge to proceed where proceedings may be affected by actual or apprehended bias".}}</ref>

State offences are not subject to the constitution's section 80 requirement for a jury. However, the case of ''[[Kirk v Industrial Relations Commission of New South Wales|Kirk]]'' constrains the way that State courts may operate during criminal trials per the ''[[Kable v Director of Public Prosecutions (NSW)|Kable Doctrine]].''<ref>{{Cite journal |last=LACEY |first=WENDY |title=Lacey, Wendy --- "Kirk v Industrial Court of New South Wales: Breathing Life into Kable" [2010] MelbULawRw 21; (2010) 34(2) Melbourne University Law Review 641 |url=http://classic.austlii.edu.au/au/journals/MelbULawRw/2010/21.html |journal=Melbourne University Law Review |date=2010 |volume=34 |issue=2 |quote=In the plurality judgment, the error committed by the Industrial Court was adjudged to mean that the Court conducted a trial that was not in accordance with the laws of evidence. Accordingly, the Industrial Court acted 'in breach of the limits on its power to try charges of a criminal offence' and 'misapprehended a limit on its powers'. |via=Austlii}}</ref>

=== Civil standard ===
In Australia, the civil standard is termed the 'balance of probabilities'.<ref name="dePlevitz">{{cite journal |last1=de Plevitz |first1=Loretta |title=Briginshaw 'Standard of Proof' in Anti-Discrimination Law: 'Pointing with a Wavering Finger |journal=Melbourne University Law Review |date=2003 |volume=27 |issue=2 |url=https://www.austlii.edu.au/au/journals/MelbULawRw/2003/13 |via=Austlii |access-date=10 July 2023}}</ref> In Australia, the 'balance of probabilities' involves considerations that the evidence required to establish a fact at the civil standard will vary with the seriousness of what is being alleged.<ref name=":3">{{cite AustLII|HCA|66|1992|parallelcite={{no wrap|110 [[Commonwealth Law Reports|CLR]] 445}} at p 449-50|litigants=Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd|courtname=[[High Court of Australia|High Court]]}}.</ref> Although it has been noted a similar approach is taken in Canada.<ref>[https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWCA/Civ/2005/1605.html&query=(Briginshaw)+AND+(v)+AND+(briginshaw) ''An, R (on the application of) & Anor v Secretary of State for the Home Department & Ors''] [2005] EWCA Civ 1605 (21 December 2005). See: paragraph 32</ref><ref>{{Cite web |title=An, R (on the application of) & Anor v Secretary of State for the Home Department & Ors [2005] EWCA Civ 1605 (21 December 2005) |url=https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWCA/Civ/2005/1605.html&query=(Briginshaw)+AND+(v)+AND+(Briginshaw) |access-date=2023-07-05 |website=www.bailii.org |quote=Paragraph 32.}}</ref> In the United Kingdom the evidential requirements of the civil standard of proof don't vary with the seriousness of an allegation.<ref name=":0" />

The case law that establishes this is ''[[Briginshaw v Briginshaw]]'', which is the fifth most cited decision of Australia's High Court.<ref name=":023">Note: LawCite citation statistics track the written judgements of courts, journal articles, and tribunals. (both in Australia and overseas) https://www.austlii.edu.au/cgi-bin/LawCite?cit=&party1=&party2=&court=High%2BCourt%2Bof%2BAustralia&juris=&article=&author=&year1=&year2=&synonyms=on&filter=on&cases-cited=&legis-cited=&section=&large-search-ok=1&sort-order=cited</ref> The case has since been incorporated into the uniform evidence law.<ref name=":02">{{Cite web |date=2019-11-12 |title=Still unsure about Briginshaw? |url=https://mccabecurwood.com.au/still-unsure-briginshaw/ |access-date=2020-09-19 |website=McCabe Curwood |language=en-AU}}</ref> The ''Briginshaw'' principle was articulated by Dixon in that case in these terms:<ref name="CLR p 362">{{cite AustLII|HCA|34|193|litigants=Briginshaw v Briginshaw|parallelcite={{no wrap|[http://www.austlii.edu.au/au/cases/cth/HCA/1938/34.pdf 60 {{abbr|CLR|Commonwealth Law Reports}} 336] at p 362 [[Owen Dixon|Dixon J]]}}}}.</ref>
<blockquote>...it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency</blockquote>

The ''Briginshaw'' principle is sometimes incorrectly referred to as the ''Briginshaw'' standard of proof,<ref name="dePlevitz"/> in ''Qantas Airways Limited v. Gama'' Justices French and Jacobson stated the "Briginshaw test does not create any third standard of proof between the civil and the criminal."<ref>{{cite web |title=Qantas Airways Limited v Gama [2008] FCAFC 69 (2 May 2008) |url=http://classic.austlii.edu.au/au/cases/cth/FCAFC/2008/69.html |website=Austlii |access-date=12 July 2023}}</ref>

In the [[High Court of Australia|High Court]] case of ''G v. H'' Justices Deane, Dawson and Gaudron stated "Not every case involves issues of importance and gravity in the ''Briginshaw v. Briginshaw'' sense. The need to proceed with caution is clear if, for example, there is an allegation of fraud or an allegation of criminal or moral wrongdoing..".<ref>{{cite web |title=G v H [1994] HCA 48; (1994) 181 CLR 387; (1994) 124 ALR 353 (19 October 1994) |url=http://classic.austlii.edu.au/au/cases/cth/HCA/1994/48.html |website=Austlii |access-date=12 July 2023}}</ref>

An example of the ''Briginshaw'' principle applied in practice is the case of [[Ben Roberts-Smith]] where, due to the gravity of the allegations, [[Fairfax Media]] was required to rely on stronger proof than in the context of a normal allegation to win their case.<ref name=":2">''[https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2023/2023fca0555 Roberts-Smith v Fairfax Media Publications Pty Limited]'' (No 41) [2023] FCA 555, at paragraph (110); citing ''Seymour v Australian Broadcasting Commission'' (1977) 19 NSWLR 219 per Mahoney JA (at 226)</ref><ref group="Note">The allegations were that the defendant was a murderer and war criminal.</ref> In the end, despite the high burden of proof required, Fairfax won the trial, with Besanko ruling that it was proven he "broke the moral and legal rules of military engagement and is therefore a criminal".<ref name=":03">{{cite web |last1=Doherty |first1=Ben |date=1 June 2023 |title=Ben Roberts-Smith loses defamation case with judge saying newspapers established truth of murders |url=https://www.theguardian.com/australia-news/2023/jun/01/ben-roberts-smith-loses-defamation-case-with-judge-saying-newspapers-established-truth-of-some-murders |url-status=live |archive-url=https://web.archive.org/web/20230601050919/https://www.theguardian.com/australia-news/2023/jun/01/ben-roberts-smith-loses-defamation-case-with-judge-saying-newspapers-established-truth-of-some-murders |archive-date=1 June 2023 |access-date=1 June 2023 |website=The Guardian}}</ref><ref name="Visontay">{{cite news |last1=Visontay |first1=Elias |last2=Doherty |first2=Ben |date=1 June 2023 |title=Ben Roberts-Smith: the murders and war crimes at the heart of a seismic defamation battle |work=[[The Guardian]] |url=https://www.theguardian.com/australia-news/2023/jun/01/ben-roberts-smith-the-murders-and-war-crimes-at-the-heart-of-a-seismic-defamation-battle |url-status=live |access-date=1 June 2023 |archive-url=https://web.archive.org/web/20230601094727/https://www.theguardian.com/australia-news/2023/jun/01/ben-roberts-smith-the-murders-and-war-crimes-at-the-heart-of-a-seismic-defamation-battle |archive-date=1 June 2023}}</ref><ref>[https://www.judgments.fedcourt.gov.au/__data/assets/pdf_file/0004/640057/J230555.pdf Roberts-Smith v Fairfax Media Publications Pty Limited] (No 41)[2023] FCA 555, (at paragraph 11) | ''Quote of imputation that was proven:'' "The applicant broke the moral and legal rules of military engagement and is therefore a criminal."</ref>

[[Melbourne Law School]] professor [[Jeremy Gans]], has noted that for particularly serious allegations, such as sexual assault, "It's hard to see how the ''Briginshaw'' principle is much different to beyond reasonable doubt".<ref name=":1">{{Cite twitter|number=1553642796439191557|user=jeremy_gans|title="Kate Eastman, SC, said the barriers making criminal prosecutions of sexual assault difficult also applied to bringing civil cases." Indeed. It's hard to see how the ''Briginshaw'' principle is much different to beyond reasonable doubt.|first=Jeremy|last=Gans|author-link=Jeremy Gans|date=31 July 2022|access-date=1 July 2023|archive-url=https://web.archive.org/web/20220731072545/https://twitter.com/jeremy_gans/status/1553642796439191557|archive-date=31 July 2022}}</ref> The decision has also been noted for affecting the ability of litigants to seek redress in anti-discrimination lawsuits, due to the seriousness of such allegations.<ref name="dePlevitz"/>