uniform from jurisdiction to jurisdiction. In some cases within a jurisdiction the
rules have been incorporated into statute with or without modification.
As is indicated below, this chapter restates these rules. Before doing this it is
important to inform the reader of the content of these conventional rules, so a
brief account now follows.
Burden of Proof
The common law rule as to the onus of proof or the burden of proof
determines which party has to prove a case or a particular part of a case such
as a defence.
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The rule has two parts:
(1)
Positive Elements. In both civil and criminal cases the initiator must
prove the positive elements of the case.
(2)
Defences. There are several special rules for proof of defences.
Standard of Proof
The rules as to standard of proof determine the probability to which a party
who initiates litigation or raises a defence must make out their case to the
court. The rule has two parts:
(1)
Positive Elements. There is one standard for criminal cases and another
standard for civil cases
(i)
Criminal Cases: Beyond Reasonable Doubt. The initiator must
prove their case beyond reasonable doubt.
(ii)
Civil Cases: Balance of Probabilities. The initiator must prove
their case according to a standard that is variously called the preponderance of
evidence, the preponderance of probabilities or the balance of probabilities.
(2)
Defences. There are several special rules for proof of defences.
Statutory Actions
The common law rules as to the burden and standard of proof were
formulated
when most criminal and civil actions were based in common law.
Obviously for some time legislatures have been creating statutory actions.
When this happens the question arises as to whether the common law rules for
the burden and standard of proof apply. The answer is that they do apply
unless there is some explicit or implicit intention in the statute that would
modify or displace them.
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The expression onus of proof is sometimes described in a Latin phrase,
onus probandi, which is literally “onus of proof”. The rules as to the onus or burden
of proof has been expressed in a Latin maxim semper necessitas probandi incumbit ei
qui agit. This says that the necessity of proof always lies with the person who
institutes the proceedings."
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