Passing bull 177 – Loose language

 

The White House says there is ‘no direct evidence’ linking the Saudi Crown Prince to the murder of a declared enemy of the Crown Prince.  What does that phrase mean?  It is not a term known to the law.  It is a phrase made up by spin doctors to enable the U S to prefer money to morals under that silly phrase ‘America First.’

Most people looking at the matter objectively are comfortably satisfied that the Crown Prince was actively involved in the murder.  They have reached that satisfaction based on what we describe as circumstantial evidence, and by the consciousness of guilt revealed by the stream of lies after the event in all of which the Crown Prince participated and for which on any view he is responsible.  Any doubt that anyone may have had was obliterated by the high fives the Crown Prince exchanged with another serial killer, Vladimir Putin.  That was a brazen insult to the whole world.  Anything goes for really bad people while the White House is as it is.  Now after a briefing from the FBI, which the President had denied to Congress, a Republican senator says that if the Crown Prince went before a jury he would be convicted.  Presumably the senator thinks that the evidence establishes the guilt of the Crown Prince of murder beyond reasonable doubt.

The evasion of the White House does raise the question of what standard of proof is appropriate for decisions taken by governments.  Our law knows three standards.  In civil disputes it is the balance of probabilities.  The person complaining wins if the court thinks that on balance their version is more likely than that of the other side – 51 to 49 will do.  In criminal proceedings the case must be proved beyond reasonable doubt – and judges are strictly enjoined not to flirt with that wording that they think is well understood by members of a jury.

Occasionally you will find an intermediate standard in civil cases.  If there is a very strong allegation – of say dishonesty- the court may hold that a standard somewhere between the two may be required.  In the proceedings against the Essendon footballers, the CAS expressed the standard as one requiring ‘comfortable satisfaction.’  In nearly fifty years of trying to apply this learning, I don’t think I have ever been happy with my grasp of the issue – to me it savours of like being a little bit pregnant – and nothing about the CAS decision enlightened or encouraged me.

Perhaps none of these standards is appropriate when looking at decisions taken by governments.  The very notion of onus of proof may not be suitable in looking at administrative decisions.  It may be a serious allegation to make that a foreign power is meaning to attack you, but it would be absurd to suggest that any finding higher than one on the balance of probabilities was required before you took steps to meet that threat.

For that matter, I don’t know whether this issue is canvassed by test umpires in rugby or cricket.  I suspect that as matter of fact rather than law or the rules of the game, the standard may depend on the gravity of the consequences.  Giving someone a red card may require more satisfaction than putting down a scrum after a finding of off side.  In the leading case on this subject, the then Chief Justice made one of the few statements on this point that I can follow.  He said that as a matter of common sense you might require more to convict someone of murder than you would to give him a parking ticket.

That discussion is enough to demonstrate the silliness statement of the White House about the guilt of the Crown Prince.

Another silly statement comes from those holding back on dealing with climate change.  They are past denial as such but not past calling scientists ‘alarmist’.  What’s wrong with being alarmed – as most of us are each morning in order to get us up to go to work on time?  Lincoln was alarmed at the threat to the United States and died holding them together.  Ghandi was alarmed at the continuance of the Empire in India and died seeking the release of his nation.  Churchill was alarmed at the rise of Hitler and lost the election after being the prime instrument of his defeat.  Mandela was alarmed at the sheer injustice of apartheid, and now the former terrorist is revered as a secular saint around the world.  And I may add that each of these heroes signalled fair bit of virtue on their way.

The bullshit in some of our press is alarming.

4 thoughts on “Passing bull 177 – Loose language

  1. That is very interesting.
    I remember being intrigued in one of the books I have read about Churchill, that he asked a trial Judge to assess the evidence to advise whether or not he thought the Germans were doing a particular thing (I cannot remember the details). It seemed to be a concession that what we do is of practical use and that assessing evidence and working out whether one ought be satisfied of something is a learned skill.
    If we only ever acted on “direct evidence” not a lot would happen.

    Charles Shaw
    Barrister
    Level 26 | Chancery Chambers | 200 Queen Street | Melbourne Vic | 3000
    T +613 8600 1771 | F +613 8600 1770 | M 0401 148 974 | E shaw@chancery.com.au
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  2. Another wonderful blog, Geoffrey.
    Re your comments on CAS. 51% – 49& odds? How about being as low as 20%?
    Please check this out.

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