Finding justice in a civil court – Balance of Probabilities Explained

Justice Michael Lee’s recent Federal Court decision in Bruce Lehrmann’s defamation case against Network Ten and journalist Lisa Wilkinson has generated discussion on what is standard of proof. Here we explain the difference between criminal and civil standards of proof in Australia.

Standard of proof explained

You may have heard the terms standard of proof, burden of proof and onus of proof. They generally mean the same thing. But each term has a different standard (or level) of proof, depending on whether a case is heard in a criminal or a civil court in Australia.

Parties to a court case

It helps to understand the language used for parties to a court case. Parties involved in a court case can be an individual, organisation, corporation, or government entity, and include:

• Applicant or plaintiff, who is the person who starts court proceeding (sometimes referred to in criminal cases as ‘the prosecution’)

• Respondent, accused or defendant, who is the person against whom a court proceeding is brought, or who is responding to a claim (sometimes referred to as ‘the defence’)

If a Commonwealth, State or Territory entity is a party to a proceeding (usually a criminal proceeding), they might be referred to as ‘the Crown,’ ‘the Queen’ or ‘the King.’ This can be expressed as ‘R,’ which stands for the Latin term for the Queen (Regina) or King (Rex).

What is standard of proof

The standard of proof refers to the plaintiff’s responsibility  to present evidence to the court, to prove their case. The duty (or responsibility) is on the prosecution to prove that the accused is guilty of whatever action, behaviour, or offence that’s at the heart of the court case. 

The standard of proof differs depending on whether the court case involves civil or criminal law. The standard of proof in criminal law cases is higher than in civil law cases. 

The difference between civil law and criminal law

Broadly speaking, Australia has two types of law – civil law and criminal law. 

Civil law mainly involves resolving private disputes over money or property, where one party has suffered a loss of some kind. Civil law matters can include: 

• Defamation (like Bruce Lehrmann’s case) 

• Personal injury, such as motor vehicle accidents, workers’ compensation, and public liability 

• Breach of contract 

• Class actions 

• Property disputes, including wills and estates 

• Family law proceedings such as divorce and child custody 

Criminal law involves the guilt or innocence (and appropriate punishment) of an accused person for their act or behaviour (an ‘offence’). Criminal law matters can include: 

• Murder and manslaughter 

• Assault, including sexual assault and rape 

• Drink driving and dangerous driving 

• Drug supply 

• Family violence 

• Break and enter 

Standard of proof in civil law cases 

In Australian civil law cases, the standard of proof is on the balance of probabilities. This means that once both parties have presented all their evidence, the court must decide which case is more likely to have happened. Its legislative basis in Australia is the Evidence Act 1995 (Cth).  

Balance of probabilities

As Justice Michael Lee explained in his recent judgement, balance of probabilities “is often misunderstood. It does not mean a simple estimate of probabilities; it requires a subjective belief in a state of facts ... an actual persuasion of its occurrence of existence.” The credibility of witnesses in a case is relevant, as is all available evidence to support each party’s case. 

Standard of proof in criminal law cases

The standard of proof in criminal law cases is beyond reasonable doubt. The purpose of the criminal law system is to: 

• Deter behaviour 

• Punish behaviour 

• Protect the community 

• Rehabilitate or reform offenders 

The prosecution, using evidence presented in court, must prove to the judge or jury beyond reasonable doubt that the offence happened. 

The accused person is presumed to be innocent of the offence they’re charged with and is not required to prove their innocence. 

Beyond reasonable doubt

Judges in Australian criminal court cases aren’t supposed to explain ‘beyond reasonable doubt’ to a jury. The judge or jury must decide whether the prosecution has shown, beyond reasonable doubt, that the accused committed the act in question. It’s not beyond any or possible doubt, or that the judge or jury are 100% sure that the accused did or did not commit the act in question. 

Standard of proof when seeking justice

Bruce Lehrmann’s recent Federal Court action is one example of civil action (for defamation) following accusations of sexual violence that may or may not lead to a criminal trial. It’s not common in Australia for the same act or behaviour to be assessed by both civil and criminal standards of proof.  

Criminal case

Brittany Higgins’ criminal case against Bruce Lehrmann was stayed (or stopped) in the Supreme Court of the Australian Capital Territory due to juror misconduct. In this case, a juror had brought academic information about sexual assault into the jury room. This was despite the judge’s repeated warnings that jurors are not to conduct their own research while a case is being heard. 

At heart in the criminal case was whether there had been sexual intercourse without Ms Higgins’ consent. There are no known plans for a retrial.

Civil case

Bruce Lehrmann brought a civil case to the Federal Court of Australia. He sued Network Ten Pty Limited (the first respondent) and journalist Lisa Wilkinson (the second respondent) for defamation, over content in an episode of the television show The Project. Brittany Higgins was not a party to the case. 

Mr Lehrmann wasn’t named in The Project story. It suggested that Ms Higgins had been raped in Parliament House in 2019. Mr Lehrmann’s civil case argued that the story was defamatory to him as he was identifiable as the alleged rapist. 

Part of Network Ten and Lisa Wilkinson’s defence was that The Project’s story was substantially true. Under the New South Wales Defamation Act 2005, a defence to defamation is if it can be proved that the published imputations are ‘substantially true’.  

Justice Michael Lee found that on the balance of probabilities, Mr Lehrmann raped Ms Higgins. Because of this finding, Network Ten and Lisa Wilkinson successfully defended the defamation case, by providing sufficient evidence of the ‘substantial truth’ of the suggestion of rape. 

What does this mean for finding justice

Because Brittany Higgins’ criminal proceedings were stayed, we don’t know what a judge or jury would have decided on the criminal standard of proof. The recent civil decision on Bruce Lehrmann’s behaviour followed his decision to commence civil proceedings for defamation. It remains to be seen whether civil avenues are an option that sufferers of sexual assault choose to seek justice in Australia. 

If you’ve been sexually assaulted, regardless of whether there’s a criminal case, you could start civil proceedings. This would be for financial compensation for, for example:  

• The cost of your physical and / or psychological treatment after the assault 

• Your ongoing medical costs and / or the cost of necessary domestic care 

• Your loss of earnings or superannuation (if you’re unable to work because of the assault) 

• Pain and suffering (such as from psychological distress) caused by the assault 

Shine Lawyers can help

We recognise the bravery it takes to reach out. Our Abuse Law team has been trained in a trauma-informed approach. Get in touch today to organise an obligation-free appointment with one of our compassionate abuse solicitors. We’ll take the time to listen and understand the circumstances of what happened to you.