J’accuse: but to the civil standard of proof

Most people – and hopefully all lawyers – will be familiar with the idea that criminal allegations must (ordinarily) be proved beyond reasonable doubt, whereas matters in a civil dispute need only be proved on the balance of probabilities.

But what about cases which are not criminal, but involve serious allegations of wrongdoing? This often arises in the context of disciplinary tribunals, whose work tends to gain a lot of public attention. Disciplinary tribunals work in a variety of contexts, for example:

A similar context for the making of allegations of serious wrongdoing is the civil penalty prosecution of regulators in the courts (eg the Australian Competition and Consumer Commission applying to the Federal Court for penalties and injunctions in respect of alleged cartel conduct).

It can also arise in ordinary civil disputes (eg where a plaintiff accuses a defendant of fraud).

In a criminal context, the accused is innocent until proven guilty beyond reasonable doubt and may remain silent at all times.

In an ordinary civil dispute, the plaintiff has the burden of proving its allegations entitling it to relief, but the defendant’s silence can, to some extent, be used against the defendant: Jones v Dunkel (1959) 101 CLR 298.

A disciplinary proceeding is of course the domain of civil, not criminal, disputes. But it is also an accusatorial environment, where there is a limited right to silence. (See for example the VCAT President’s short judgment about the issue in Legal Services Commissioner v Spaulding [2015] VCAT 292.)

So how is the standard of proof reconciled with the context of accusations of serious wrongdoing made in a civil dispute?

In Briginshaw v Briginshaw (1938) 60 CLR 336, Dixon J said:

The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.

Further illustrating the point somewhat, his Honour later said with respect to the central allegation in Briginshaw:

Upon an issue of adultery in a matrimonial cause the importance and gravity of the question make it impossible to be reasonably satisfied of the truth of the allegation without the exercise of caution and unless the proofs survive a careful scrutiny and appear precise and not loose and inexact. Further, circumstantial evidence cannot satisfy a sound judgment of a state of facts if it is susceptible of some other not improbable explanation. But if the proofs adduced, when subjected to these tests, satisfy the tribunal of fact that the adultery alleged was committed, it should so find.

Some points to be taken from all that:

  1. There is no third standard between the criminal standard and the civil standard (at least at common law).
  2. The civil standard of proof requires the tribunal of fact to be actually persuaded to its reasonable satisfaction.
  3. Reasonable satisfaction can be reached only if the evidence in support of the allegation is sufficiently cogent and commensurate with the seriousness, inherent unlikelihood, consequences etc of the allegation.

Briginshaw is still good law and is routinely referred to in the cases. Section 140 of the Evidence Act 2008 (Victoria’s iteration of the uniform evidence legislation) also reflects Dixon J’s dicta:

(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account—

(a) the nature of the cause of action or defence; and

(b) the nature of the subject-matter of the proceeding; and

(c) the gravity of the matters alleged.

Interestingly, in the Court of Arbitration for Sport’s decision in the matter of the 34 Essendon players, the panel said ([104]):

The burden of proving such use by an athlete of a prohibited substances lies upon WADA. The standard of proof is comfortable satisfaction, a term of art, in so far as deployed in sports law derived from the decision of a CAS ad hoc panel at the Atlanta Games in 1996, at a time when the [World Anti-Doping Code] did not exist, and is being regularly applied by CAS panels since then ….. Article 3.1 of the 2009 [World Anti-Doping Code] (and Clause 15.1 of the 2010 AFL Anti-Doping Code) provides: “This standard of proof in all cases is greater than a mere balance of probability but less than proof beyond a reasonable doubt.

This seems to be a reconceptualization of the same issue articulated by Dixon J all those years ago in Briginshaw, but as a third standard.

So, whether you are before VCAT with an allegation of professional misconduct or in the County Court with a debt claim, the civil standard is the same. What will differ, however, is the cogency of the evidence required to persuade the tribunal of fact that it is more probable than not that the fact alleged is true.

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