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onus of proof criminal law HELP!!

Posted: Tue Feb 03, 2015 3:55 pm
by amylouisekatie
Section 40 of the HSW Act where there is a duty of care to do something 'so far as is reasonably practicable' or 'so far as is practicable' or 'use the best practicable means'. the onus of proof to the accused to show that there was no better way to discharge his/her duty under the Act. However, when this burden of proof is placed on the accused, they only need to satisfy the court on the balance of probabilities that what they are trying to prove has been done.

I am struggling to understand what this mean :-/ any input would be greatly appreciated.

thanks Amy


Re: onus of proof criminal law HELP!!

Posted: Tue Feb 03, 2015 4:14 pm
by amw
From what I understand (and I stand corrected if someone comes with another answer :lol: ) is that the balance of probability means that a court is satisfied that something occurred or an event happened if the event was more likely than not. So you have to prove that all the facts you have given are 'probably true'.

For example if someone said that they had an inspection at half hourly intervals to ensure that the accident did not happen but they kept no records - they would probably decide that this was improbable but would more believe if someone was to say they had inspections at weekly intervals but no records were kept.

Also the more improbable the event, then the stronger the evidence must be that it did occur.

Think thats right but let someone else have a read through and come back to you too :D

Re: onus of proof criminal law HELP!!

Posted: Wed Feb 04, 2015 1:26 pm
by sharprc
Hey Amy, Welcome to the forums.

The way I understand this is as follows:

Let's say we have an accident where there is an unguarded machine, an employee traps their hand in it and we are charged with negligence. The court would most likely find the duty holder negligent due to the probability of this incident occuring. This is due to us failing to realise the probable risks associated with this machine, and implementing appropriate control measures.

However, let's say that we have a similar accident where there is a guarded and interlocked machine, but the employee removes the guards and disables the interlocks and traps their hand in it. The court would most likely accept these controls, based on the balance of probabilities. This is because we thought it probable that this incident would happen and put things in place.

Where there is clear cut evidence that there was a failure in duty (ie an injury or an incident), then the defendant must show that based on the probability of the incident occurring, that they did everything required of them by law to comply.

I hope this helps,