Beyond Reasonable Doubt (Criminal) vs. Balance of Probabilities (Civil)

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Doogue + GeorgeThe article Beyond Reasonable Doubt (Criminal) vs. Balance of Probabilities (Civil) is written by Doogue + George Defence Lawyers.

Doogue + George are experts in criminal law and have been involved in thousands of criminal matters and defended clients in hundreds of jury trials and thousands of other criminal cases. Our experienced lawyers have unparalleled experience in criminal law.

ImprisonmentWhen a person is charged with a criminal offence, they are only guilty if the prosecution can prove their guilt beyond reasonable doubt. This is known as the “criminal standard of proof.” It is a different standard than in civil law—where a plaintiff sues a defendant. In civil cases, the plaintiff must prove their case on the balance of probabilities. There are good reasons for the difference between these two thresholds. The criminal standard is one of the key protections available for individuals who have been accused of a crime but maintain their innocence.

In a criminal trial, the dispute before the court involves the state on one side and an individual on the other. The state includes the police with various specialised units, access to experts and special powers to gather evidence. The individual is someone with limited (or no) money, maybe they have mental health problems, they face stigma and shame just by virtue of being accused, and their access to resources to defend themselves is limited. They might already be in jail before trial. There is a significant power differential between the two sides.

And the stakes are high. When the state brings an action against an individual, that individual may well lose their liberty. They may lose it completely, if they are sent to prison; or partially if they are sentenced to a Corrections Order. Even if they get a lower sentence, they still may be burdened with a criminal record.

The protections built into the criminal justice system acknowledge the vulnerability of an accused person standing trial. They also reflect the great value that we put on liberty. We believe that every person is inherently free, and only in the most extreme cases should the state be allowed to remove a person’s liberty.

Requiring the state to prove their case beyond reasonable doubt is an important protection for an accused person. It means that a jury or a magistrate must be certain that the person committed the crime before they can find them guilty. A person cannot be found guilty if it is probable or likely or seems reasonable that they committed the offence. If there is any reasonable niggle of uncertainty—a reasonable possibility of a doubt—then the person must be acquitted. The fact-finder can’t just believe the state or the police. They need to be sure enough that any other conclusion would seem far-fetched or unreasonable.

A civil standard – balance of probabilities – is different. If a person trips and falls at a shopping centre, and they sue the shopping centre for negligence, then the case is between two legal persons. One person decides to sue the other. Even if one has more resources than the other, the law perceives them to be on equal footing.

In a civil dispute, each side has to build their case. Each side has to produce evidence. And the court has to decide which side is right. The plaintiff doesn’t have to prove their case beyond reasonable doubt, but it has to be more likely than not that their position is made out. But in this case, nobody’s liberty is at stake.

There is one area of law that presents an exception to these principles. That is in the area of post-sentence detention or supervision orders. The Victorian and Federal Governments have become increasingly enthusiastic about legislation designed to keep people in prison beyond the end of their sentence. These unfortunate souls are not imprisoned because the state has proven beyond reasonable doubt that they committed an offence. Rather, they are imprisoned because the state decides that on the balance of probabilities they may commit an offence in the future.

Some people may think that it is okay to imprison a person to avoid the risk of them committing an offence in the future. But others find it deeply concerning that the state has given itself the power to deprive vulnerable individuals of liberty on such a precarious and ultimately uncertain basis.
Date Published: 18 November 2022

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