Defence of factual dispute and concept of beyond reasonable doub...

Once the prosecution establish they have sufficient evidence, and there is a public interest in charging an individual with a criminal offence, they must adduce evidence that is relevant to each and every element of the subject offence. They must establish facts relevant to each element of the criminal offence beyond reasonable doubt. Where there is any disagreement between defence and prosecution about the failure of the prosecution to prove an alleged fact beyond reasonable doubt, the defendant has a defence to the charge. For example, the offence of recklessly cause injury comprises the elements of:

1. An unlawful assault; and

2. The unlawful assault resulted in injury to the victim.

If the prosecution cannot prove beyond reasonable doubt, that an injury resulted from the assault, the defendant must be acquitted of the charge. The Court of Appeal in R v Cavkic, Athanasi & Clarke (No.2) [2009] VSCA 53 (16th March 2009), stated in the context of a Judge directing a jury as to its use, that the Judge should not try to define the phrase, and go no further than telling the jury that 'reasonable doubt' is a doubt which they as ordinary people may be prepared to entertain.

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