There are some very important and fundamental differences in the way that the law treats criminal cases in contrast to civil cases. In particular, there is a stark difference to the burden (or onus) of proof and the standard of proof, that must be met.
The burden of proof, or the onus of proof, simply refers to which person holds responsibility for proving a particular fact or issue that may arise during the case. In most cases, the responsibility for proving a particular fact lies with whomever alleges the fact. However, it isn’t always the case and the law provides a number of ‘presumptions‘ which might reverse the responsibility onto the other party, such that they must disprove the presumption the law holds against them.
The standard of proof refers to the level to which a particular fact or issue that may arise during a case has to proved. Generally, the greater the consequence, the higher the level.
So, in criminal cases (where a person faces possible imprisonment) the standard of proof is referred to as “beyond reasonable doubt” which is, appropriately, a high bar to reach given the possibility a person may lose their freedom if the fact is accepted as true.
In civil cases, the standard of proof is referred to as on the “balance of probabilities” which is a much lower threshold to reach, given the consequence of accepting a fact as true, is generally only monetary.
As with all legal work, lawyers turn a plethora of case law and common law principles into a handy phrase that can only be understood by lawyers (and sometimes not). So what does balance of probabilities actually mean?
One issue most lawyers might agree on is that there is no single accepted definition of what balance of probabilities actually means.
It has been referred to in a simple mathematical sense of proving something 51% over 49%. It has been referred to as being able to say that the alleged fact is ‘more probable than not‘ to have occurred. It has been referred to as something that ‘is more likely than not‘ to have occurred. It has also simply been referred to as proving a fact to the ‘satisfaction‘ or ‘reasonable satisfaction‘ of the decision maker.
However, in Australia, caution has been raised about any mechanical analysis of probabilities of a fact being true or not. The case of Briginshaw v Briginshaw  HCA 34 is often cited as providing the proposition that the balance of probabilities is not an exact science or arbitrary formula to apply. It is more fluid than that and depends upon the particular fact being proved, its seriousness and the consequences that might flow from a finding that it is true.
In short, stronger evidence ought to be provided the more serious the allegation made (in particular, fraud, misconduct and dishonesty).
For instance, to prove a particular person transferred money to a bank account might be done by merely placing their bank statement into evidence, which might suffice. But to prove a person transferred money in pursuit of a fraud will require strong evidence of intent and not rely on inference or conjecture to be persuasive enough to reach the standard of proof.
In criminal cases, an accused is not required to prove anything and not required to say anything in their defence. They may remain silent all the way up to and through their trial, solely relying on the failure of the prosecution to make their case and reach their high standard of proof.
In civil cases, in contrast, a defendant must respond to a claim against them by filing a defence and admitting or denying the facts alleged against them and go further and allege facts that would disprove the plaintiff’s case. For more on what needs to be alleged in a claim of defence see our dedicated civil litigation page.
Further, all parties to a civil litigation must disclose all of their relevant documents that they may wish to rely upon at the trial. Therefore, at trial there will not be any surprises or ‘smoking guns’ for any party and no documents can be hidden away.
A plaintiff holds the burden of proving the facts against the defendant that are not admitted by the defendant. The defendant has the burden of proving its own facts alleged against the plaintiff in its defence, which are not admitted by the plaintiff.
So, in civil cases, you must defend yourself and introduce evidence to prove your version of events. It is usually not enough to rely upon a failure of the plaintiff to meet the standard of proof because whilst you might be able to pick holes in the allegation, if no viable alternate explanation is offered (with evidence) then it is likely an undefended fact will be accepted by the decision maker.
It’s quite simple, the more good, verifiable and independent evidence you have to prove a fact, the more likely it is than not that the Judge or Magistrate will be reasonably satisfied that the fact you allege is probably true.
If you can prove all of the facts required to be proved to meet the elements of your particular claim or defence, then you will be successful.
We only deal with civil claims and therefore deal with proving cases on the balance of probabilities day in day out. Before you get embroiled in litigation, you may want us to assess the evidence you have to make your claim or defend yourself and provide an advice on your prospects of success.
DISCLAIMER: The above article was written at a specific point in time in the past and is provided as general guidance only. It is not intended to be specific legal advice to any person’s particular circumstances who may be reading it. We do not recommend you use this article as a replacement for obtaining proper legal advice on your issue and encourage anyone reading the article to obtain legal advice to ensure the above information and guidance remains valid and suits your particular circumstance. In our experience, there is no ‘one size fits all’ to legal problems!