13 / 2 / 2023

'Beyond Reasonable Doubt'

‘Beyond reasonable doubt’ refers to the legal standard of proof required to substantiate criminal allegations in an adversarial legal system. When charged with an offence by the police, the prosecution must prove all elements of the alleged offence ‘beyond reasonable doubt’ before securing a conviction. This is known as the standard of proof, whereas the responsibility of the prosecution to substantiate the allegations is referred to as the onus of proof. It is not necessary for the defendant to prove or disprove anything in order to acquitted of an offence, if the prosecution fails to adequately prove its case.


In his seminal work ‘Commentaries on the Laws of England’ published originally in 1765, English Judge Sir William Blackstone formulated what is now referred to as ‘Blackstone’s Ratio’, proclaiming “for the law holds, that it is better that ten guilty persons escape than one innocent suffer”. This principle has reverberated throughout history with Maimonides pondering ‘it is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent one to death”. Voltaire wrote in 1749 “that generous Maxim, that ’tis much more Prudence to acquit two Persons, tho’ actually guilty, than to pass Sentence of Condemnation on one that is virtuous and innocent”, and Benjamin Franklin elaborating in 1785 “it is better 100 guilty Persons should escape than that one innocent Person should suffer”.

This idea is so pervasive that it can even be found in the Bible, appearing in the Old Testament narrative of the Cities of the Plain found in Genesis 18:23-32:

(23) Then Abraham approached him and said: “Will you sweep away the righteous with the wicked? (24) What if there are fifty righteous people in the city? Will you really sweep it away and not spare the place for the sake of the fifty righteous people in it? (25) Far be it from you to do such a thing—to kill the righteous with the wicked, treating the righteous and the wicked alike. Far be it from you! Will not the Judge of all the earth do, right?”

(26) The Lord said, “If I find fifty righteous people in the city of Sodom, I will spare the whole place for their sake.”

Blackstone’s principle remains influential in modern jurisprudence and is considered the foundation for the contemporary burden of proof in criminal law developed during the nineteenth-century, placing the onus on the prosecution to prove or substantiate its allegations ‘beyond a reasonable doubt’. In NSW this standard is codified in Section 141(1) of the Evidence Act 1995 (NSW), stipulating that “In a criminal proceeding, the court must not find the case of the prosecution proved unless it is satisfied that it has been proved beyond reasonable doubt”. In the ACT, an analogous and identically worded provision can be found in Section 141(1) of the Evidence Act 2011 (ACT).


The requirement that the prosecution demonstrate the guilt of the accused beyond reasonable doubt reflects the key tenant of Australia’s judicial system – the presumption of innocence. The phrase ‘innocent until proven guilty’ was first coined by English Barrister Sir William Garrow, and alongside the burden of proof has since become known as the ‘golden thread’. In doing so, this presumption places the onus on those levying accusations to prove their veracity, rather than upon the defendant to demonstrate their innocence. This doctrine has its origin in the justice system of the Ancient Roman’s, who employed the maxim ei incumbit probatio qui dicit, non qui negat, translating to “proof lies on him who says, not on him who denies”.

The standard of proof in criminal trials is made higher than civil trials, wherein the standard is merely ‘on the balance of probabilities’, in order to reflect and subsequently rectify the substantial power imbalance between the individual and the state. At the same time, this standard also echoes the reverence for ‘liberty’ pervasive in modern societies across the globe, as evidenced by its prominence in the US Declaration of Independence, authored by Thomas Jefferson – “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness”. Depriving an individual of their liberty is deemed far graver and far more serious than the monetary/financial punishments dispensed at the conclusion of a civil trial.

Importantly, this standard of proof does not merely reflect the foundations on which our justice system is based, but also Australia’s international obligations. The presumption of innocence has been enshrined in international law under Article 14 of the International Covenant on Civil and Political Rights enacted by the United Nations. Again, this is why when raising a positive case for their defence, even in criminal trials, the standard of proof for the defendant is ‘on the balance of probabilities’, whereas the prosecution standard remains ‘beyond reasonable doubt’.

Who Determines whether this burden has been surpassed?

The person or persons responsible for determining whether the prosecution has successfully discharged its onus and proven all of the elements of the crime beyond a reasonable doubt are known as the trier of fact. Who is responsible for making this determination depends on the alleged crime itself, the circumstances of the offending, as well as a variety of other factors.

Summary offences refer to more minor offences that are dealt with in lower courts of jurisdiction. In the ACT, these cases are presided over by a Magistrate in the ACT Magistrates Court. In NSW they are dealt with exclusively by Magistrates in the Local Court. Particular indictable offences may also be dealt with in the lower courts. In these cases, the Magistrate serves as the decision-maker for both questions of fact and questions of law. This means that the Magistrate will determine whether or not the prosecution was able to substantiate their allegations beyond reasonable doubt and find a defendant guilty of an offence.

Charges that are often more serious are known as indictable offences. These offences can be dealt with in either the lower Magistrates or Local Courts or in the more serious NSW District Court or ACT Supreme Court. Cases heard in superior courts will typically consist of a judge, who presides over questions of law, and usually a jury who adopt the role of decision-makers regarding questions of fact. This means that the jury is responsible, based on the evidence, for determining whether the prosecution has successfully proven its case beyond reasonable doubt. During these trials, the presiding judge will carefully instruct the jury to ensure that they correctly apply these principles.

In some rare instances, a defendant may forego their right to a jury trial and elect that their indictable charges be heard before a judge-alone trial. If this occurs, the presiding judge adopts the role of decision-maker for both questions of law and questions of fact similar to a Magistrate and is responsible for determining whether the prosecution has adequately proven its case beyond reasonable doubt.

What is Beyond Reasonable Doubt?

In order to dispense of this burden and prove the defendant’s guilt beyond reasonable doubt, the prosecution must present evidence that negates a reasonable possibility consistent with innocence. Reasonable doubt may arise in the mind of the decision-maker from insufficient or inconsistent evidence. However, doubts that are frivolous, hypothetical, or not logically linked to the evidence presented must be ignored.

Reasonable minds of course may differ as to what really is beyond reasonable doubt. Both the legislature and judiciary do not further elaborate or provide a clear codified test or quantifiable criteria. This, the judiciary makes clear is intentional, instead preferring to rely on the natural and ordinary meaning of the phrase. In the case of R v GWB [2000] NSWCCA 410, Justice Newman said that “judges should not depart from the time-honoured formula that the words ‘beyond reasonable doubt’ are words in the ordinary English usage and mean exactly what they say”. This means that for a person to be convicted, the relevant decision-maker must be certain they committed the crime. It is insufficient for them to merely believe it is probable or likely that the alleged offence occurred. In Keely v Brooking (1979) 143 CLR 162, Chief Justice Barwick held that “To be satisfied beyond all reasonable doubt is, for the purposes of the law, to be certain”. This is the closest the courts have come to affirming a quantifiable or concrete criteria.

This perceived unwillingness to impose a concrete or quantifiable benchmark stands in direct juxtaposition with the ‘balance of probabilities’ standard present in civil cases, which might be construed as meaning above 50%. An unwillingness to elaborate on the meaning of ‘beyond reasonable doubt’ is widespread amongst legal scholars, judicial officers, and academics, who are all equally careful to avoid quantifying the meaning of the phrase. Instead, the consensus remains that ‘beyond reasonable doubt’ should maintain its ordinary meaning and should be interpreted based on the unique facts and circumstances of each individual case and whether the prosecution has sufficiently proven the defendant’s guilt.

Sam Hines