In Australia the Court’s when deciding the outcome of a matter (depending on if the case before them if of a civil or a criminal nature) are required to set a benchmark in which a party must be able to reach in terms of ultimately deciding whether or not that particular party is successful or not. This is commonly referred to the ‘Standard of Proof”. Irrespective of the Court or Tribunal in which a matter is brought before, generally all forums must apply the appropriate standard of proof when deciding the outcome of a matter. The overarching goal being the Court/Tribunal to come to a decision about the “likelihood” of one version of events being more probable than an alternative version of events put forward.

Governed by the section 140 of the Evidence Act 2008[1]. Under section 140 it is stated that a case is proven, if the court is satisfied that the facts of the matter have been proved on the balance of probabilities. To some extent the Act goes one step further to providing a framework in which gives light to required considerations the court may consider in becoming “satisfied”, namely;

1. The nature of the cause of action or defence; and
2. The nature of the subject matter of the proceedings; and
3. The gravity of the matters alleged.

How to “satisfy” the Court:

Given that there is a framework which has to be applied pursuant to section 140 of the Act, there is still a substantial amount of room not only for discretion, but the amount of weight a court will apply to each consideration, or alternatively lack of weight.  

As the Act stipulates, it is highly contingent on the actual subject matter before the court. Which essentially allows for a sliding scale to be implemented which works off the nature of the proceedings. The more serious the matter of facts are the more that the scale shifts accordingly. Similarly, the less serious the matter of facts are the more that scale may slid the other way.

In addition to the legislation which stipulates a framework as to how one meets the threshold on the balance of probabilities, there is also a substantial amount of case law in which is used not only to supplement the legislation, but provide further clarification as to how one goes about satisfying this threshold.

In the matter of NOM v DPP 2012[2] the Court of Appeal noted that;

“The standard of proof must be responsive to the gravity of the facts in issue and the consequences of the ultimate decision”

Furthermore, in the case of Briginshaw v Briginshaw[3], two very important consideration have been established in order to assist the court and individuals in determining what surpasses or ultimately fails to reach this standard of proof, namely that;

“a court or tribunal must be satisfied of the matters before it on the balance of probabilities, to a comfortable degree, which is based on very clear and cogent evidence” 

It is this notion that guides the courts on how best to apply this threshold, however it should be noted that on numerous occasions courts have warned against a strict mathematical approach on applying not only the principles of Brigingshaw but how best this particular standard of proof (on the balance of probabilities) is best determined. It should not be viewed as simply a 1 vs 1 approach on both arguments put to the court, but a holistic approach instead. A court should not just simply “weigh-up” the argument of party “A” against the alternative argument put forward by party “B” and come to a determination based on how likely it is that argument “A” is more likely to have occurred than argument “B”, such approach would be flawed from the very onset as although the eventual outcome would be justified, it is a very narrow and limited way of assessing this standard of proof. In addition to the “likelihood” of argument “A” being more likely to have occurred and bringing the court back to section 140 of the Evidence Act, it is imperative that sufficient evidence is then provided to affirm the arguments made out to the court in order to satisfy the court that on the balance of probabilities that the said argument is not only more likely to have occurred in direct comparison to the alternative argument, but that there is a foundation for the argument which presents evidence to this effect.

It is important to note that while the overall argument may be more likely to have occurred, in the absence of evidence to support the argument, the court may have difficulties in applying the wide considerations that must be applied. In a nutshell it is very much a situation that a sufficient argument + sufficient foundation evidence = a stronger likelihood that the threshold will be met.

In conclusion, this notion and standard of proof is one that can be widely interpreted in many ways by each and every single court, which in essence comes to the heart of our adversarial system. Entrenched in our system is the opportunity for each party to put forward their version of events/facts and for the court to apply the law. The most well-known example of this is the prominent figure of Lady Justice, holding and “weighing up” two side of the scales. In its simplest form, should the court deem that a version of events is 51% more likely to have occurred than the alternative argument/facts, then based on this calculation the argument which is 51% more likely to have occurred has met the threshold and be proven in the court to have occurred on “the balance of probabilities”. A notion that is on face-value, simple to understand. Upon further examination, much more complicated to establish in court ultimately ever changing, however is widely accepted as a fundamental part of our adversarial system.

---

[1] Section 140, Evidence Act 2008

[2] NOM v DPP [2012] VSCA 198

[3] Briginshaw v Briginshaw (1930) 60 CLR 336