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Evidence, balance of probabilities

Sneddon v The Speaker of the Legislative Assembly [2011] NSWSC 508. Price J. 

153 In Nguyen v Cosmopolitan Homes Pty Ltd [2008] NSWCA 246, McDougall J (with whom McColl and Bell JJA agreed) dealt with what is needed to meet the standard of proof on the balance of probabilities in a case where the evidence is circumstantial. His Honour said [at 55]:

"The position may be summarised as follows:

(1) A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;

(2) Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact's existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;

(3) Where circumstantial evidence is relied upon, it is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found; and

(4) A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue."

Ambulance Service of NSW v Anderson [2011] NSWWCCPD 3. O'Grady DP.

In [93]: "In reaching those conclusions I have had regard to that which was stated in Malec v JC Hutton PL [1990] HCA 20; 169 CLR 638 per Deane, Gaudron and McHugh JJ (at 642-643), which had been cited by Keating P in Dept of Education and Training v Ireland [2008] NSWWCCPD 134:

“A common law court determines on the balance of probabilities whether an event has occurred.

"If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred.”

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