142. Admissibility of evidence - standard of proof

142. Admissibility of evidence - standard of proof

(1) Except as otherwise provided by this Act, in any proceeding the court is to find that the facts necessary for deciding-

(a) a question whether evidence should be admitted or not admitted, whether in the exercise of a discretion or not; or

(b) any other question arising under this Act-

have been proved if it is satisfied that they have been proved on the balance of probabilities.

(2) In determining whether it is so satisfied, the matters that the court musttake into account include-

(a) the importance of the evidence in the proceeding; and

(b) the gravity of the matters alleged in relation to the question.

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141. Criminal proceedings - standard of proof

141. Criminal proceedings - standard of proof

(1) In a criminal proceeding, the court is not to find the case of the prosecution proved unless it is satisfied that it has been proved beyond reasonable doubt.

(2) In a criminal proceeding, the court is to find the case of a defendant proved if it is satisfied that the case has been proved on the balance of probabilities.

In Green v The Queen (1971) 126 CLR 28 the High Court discussed some of these earlier failed attempts to define the term beyond reasonable doubt and concluded [at 15]: “Jurymen themselves set the standard of what is reasonable in the circumstances.”

The Victorian Court of Appeal ruled in R v Cavkic, Athanasi & Clarke [2005] VSCA 182 the jury in that case should have been told that they must not approach their task by reference to the calculation of percentages, and that it would be completely wrong for them to do so.

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140. Civil proceedings - standard of proof

140. Civil proceedings - standard of proof

(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2) Without limiting the matters that the court may take into account in
deciding whether it is so satisfied, it is to take into account-

(a) the nature of the cause of action or defence; and

(b) the nature of the subject-matter of the proceeding; and

(c) the gravity of the matters alleged.

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