Burden and Standard of Proof Burden (onus) of proof
generally rests on the party asserting a matter
burden of proof has two aspects: legal (ultimate) and evidential.

legal:

the level of persuasion that the evidence adduced by a party must reach in order for it to succeed in its case, governed by the standard.
evidential:
lower than legal, it is the level of proof that must be established in order for the relevant matter to be left to the jury.
e.g before it is open to a jury to make a finding of self-defence, the defendant must first show some evidence that they felt threatened by the victim.

Standard of proof
civil proceedings (legal burden):
balance of probabilities, 50% +. supposedly the same in all civil matters, the greater the consequence of the finding, the higher the standard will be: s 140; Briginshaw v Briginshaw per Dixon J: reasonable satisfaction is not a state of mind that is attained independently of the nature and consequence of the facts to be proved. The seriousness, unlikelihood, gravity of consequence are considerations which affect whether an issue has been proved with reasonable satisfaction.

criminal cases (legal burden):
prosecution must prove matter beyond reasonable doubt
where the legal burden rests on the accused, the standard is lower (balance of probabilities). rare for onus to be on accused, e.g., if pleading guilty on the grounds of mental impairment.
meaning of beyond reasonable doubt-
courts consistently refuse to elaborate on meaning, author argues with no apparent logical basis: should establish a percentage?

admissibility of evidence:
where a matter related to admissibility the standard is on the balance of probabilities.

evidentiary burden:
no universal formulation, but lower than the standard of probabilities. All that is required is that if viewed in most favourable light, it would establish a prima facie case.

	Created by Esther McIntyre about 9 years ago

university Evidence Law (1: Overview, Intro to UEAct, Overarching Concepts ) Note on Chapter 2: Overarching Concepts , created by Esther McIntyre on 12/07/2015.

Chapter 2: Overarching Concepts