In his book The Concept of Mind, Gilbert Ryle spoke of ‘category mistakes’ – representing the facts of mental life as if they belonged to one logical type or category, when they actually belong to another.  The idea was quite a hit in the Philosophy Department of Melbourne University in the sixties, although Ryle may have done little more than to warn us about comparing apples with oranges. 

If you are calling a cricket game, you don’t use concepts from rules of other games.  You don’t say ‘Mid-on is off-side.’  If you are calling a snooker game, you don’t say ‘He has missed the fairway.’  If you are calling a fencing match, you don’t say ‘she landed a right cross.’

Under our law –  the common law as affected by statute –  a person is not to be convicted of a criminal offence except by ‘due process’ of the law.  The accuser must prove the facts that constitute the offence.  Until that happens, the accused is said to have the benefit of the presumption of innocence. 

That is the law on who has the onus of proof.  What is the standard of proof in crime?  Beyond reasonable doubt.  And judges must not flirt with that long held formula.

In civil claims, the complainant has the onus, but the standard of proof  is different.  The case does not have to be proved beyond reasonable doubt, but just on what is called ‘the balance of probabilities’.  The judge or jury must find that the case of the plaintiff is more likely than not.

Well, that is fine if you allege that the lady negligently drove into the back of you, or that your tenant refuses to pay the rent.  But what if you allege  that your doctor assaulted you, or that  your lawyer defrauded you, or that the man next door boasted that he had killed his wife?  What if you allege that someone has committed a serious crime, and that allegation can ruin their life?

Does the law have a third or intermediate standard of proof? 

Lawyers here speak of a case called Briginshaw v Briginshaw (1938) 60 CLR 336.  That was case in the High Court a long time ago about the effect of state law on an allegation of adultery.  As such, it is hardly a binding authority on any point of law now.   But the judgments are taken to stand for two propositions.

First, even on the civil standard on the balance of probabilities, proof means proof.  The tribunal must feel an actual persuasion that the allegation has been made out.  Mere suspicion is not enough.

Secondly,  what may constitute ‘reasonable satisfaction’ (the language of the relevant statute) in any given case cannot be the subject of any general rule – it will depend as a matter of common sense, and doubtless common fairness, upon the nature and importance of the allegation sought to be proved in each case considered on its own evidence. Sir Owen Dixon said that ‘at common law no third standard of persuasion was definitely developed.’  There cannot be one general exception, because the court held that what is sufficient in any one case depends on all the circumstances of that case – the standard is variable.

It is not therefore correct to say that  a ‘comfortable’ or ‘reasonable’ ‘satisfaction’ refers to some different standard of proof that can be ascertained by applying established criteria.  Saying that there is a uniform standard for ‘satisfaction’ is like saying that there is a uniform standard for ‘negligence.’  The question, like so many in our law, is one of degree – and common sense; or, if you prefer, simply a matter for the jury.

Well, that is how lawyers and judges seek to resolve issues of fact or law in court.  Is it appropriate for people to seek to act that way outside court?  Even though they have no training or experience in applying these procedures?

May I offer some examples?

Parents of young children are looking for a babysitter.  John is recommended.  But then they find that John was faced with serious charges of sexual assault on children.  The case collapsed when the two alleged victims were killed in an accident.  John says he is entitled to the presumption of innocence.

Bob applies for a job in trust accounts in your law firm.  You find that he has been convicted of offences of fraud.  Bob says that could not be alleged against him if he was charged with defrauding you.

Bert applies for the same job.  Then the Police tell you that Bert associates with known criminals.  The lawyers tell you that that  evidence  would not be admissible  against him on an issue of character.

Someone is nominated for a place on the nation’s highest court.  A woman alleges that the nominee raped her.  She is very credible when grilled in public, but the nominee angrily denies the charge.  It all becomes very public and very political.  People back the version of the party on their side of politics.  The nominee says he is entitled to the presumption of innocence.  There can be no criminal prosecution to try the issue.  It will stay unresolved for the duration of the tenure.

Many women have alleged sexual offences  against a former president.  Then a jury finds that he did sexually assault the complainant who is  before the court.  They do so on the civil standard, after the defendant does not appear in court, or go into the witness box.  He says that there is no criminal conviction, and that people should ignore this verdict when assessing his fitness for office as president.

A bishop is informed of serious allegations of sexual abuse against three priests in his diocese involving  young persons whose souls he has in his care.  He says he cannot or should not take steps adversely to their interests because they are entitled to the presumption of innocence.

A man is prosecuted for murder of someone who left $50,000,000 to him under a will that the accused procured the deceased to execute.  He is acquitted.  The executors refuse to implement a gift which they allege he has forfeited the right to receive by his crime.   They say they will prove the crime  to have been committed on the civil standard.  He says he has been cleared of the charge and that he is ready, willing and able to laugh all the way to the bank.

A one-time war hero is found by a judge in a libel action to be a murderer, and a liar, after the longest libel action in the nation’s history.  Some say that others – like those in charge of the War Memorial or, apparently, future employers – should not be moved by this finding unless the former hero  is successfully prosecuted  under the criminal standard – even though his reputation is in fact ruined.

These examples show in my view that people are likely to engage in serious category mistakes by seeking to apply outside the court the processes that lawyers and judges apply inside court. 

The  games are all so very different.  We are speaking not of forensic inquires but of prudential, management, or policy issues.  We speak not of issues crystallized for curial decision, but issues involving communities, families, businesses, politics and positions of trust. 

A CEO of a public company who dismissed reports of an imminent recession as hearsay would be in mortal breach of his or her obligations to the company. Counsel don’t ask their solicitor to pass the forceps, and the surgeon doesn’t tell the theatre nurse she is estopped from saying what she did. 

There is a different standard in court because the stakes are so often so different in criminal cases and civil cases.  It is just common sense that you might require more evidence to hang someone on than to give them a parking ticket for, or find that the tenant has not paid the rent.  We acknowledge that we would rather have some who are ‘guilty’ go free, than jail someone who is not guilty.  (And we have just been reminded of the fearful shame we feel when someone has been jailed on a process that now looks so deficient.)

The same imperative does not apply in civil claims.  And  in family, business or government affairs, other imperatives intrude.  It would be absurd to suggest that the affairs of a school, a cricket club, post office, or government treasury could only be conducted on the basis of facts proved beyond reasonable doubt – and in whose judgment?

Outside court, there are the interests of third parties, or the public interest, to be considered.  If you look at the examples, you will see in each case that the interests of people other than two main parties, or the public interest, suggest that it would be foolish to allow some notion of legal process to stand in the way of a fair and sensible solution.  You can see the need to protect potential victims or to prevent people profiting from crime, or the need to preserve public trust in those in high office.  The ‘presumption of innocence’ runs smack into the doctrine of Caesar’s wife – although Caesar may have taken a different approach had he seen the Law of Suspects in the Reign of Terror.  And it is absurd to suggest that the bishop may be excused for failing to fulfil his duty of care by purporting to apply a presumption.

If the doctor tells you that if you continue to smoke, you will probably not live for as long as you might wish, you don’t ask him if he can say that he has no reasonable doubt about that.  And that reminds us that so much of what we do is based on trying to predict what may happen in the future – and there can be no certainty there.  Seeking certainty where you cannot expect it is a mark of immaturity or insecurity.

Look at the cases about those seeking a position.  If you had two candidates of equal standing but for the shadow cast upon them, which would you or the public prefer?

Outside court, if not inside it, we can give full play to the observation of the U S jurist Professor J H Wigmore that ‘Presumptions may be looked on as the bats of the law, flitting in the twilight but disappearing in the sunshine of actual facts.’  (Cited in Carkeek v Tate-Jones [1971] 691.)

( A Preliminary Treatise on the Law of Evidence at the Common Law by  Professor J B Thayer of Harvard University is also highly respected. [It was cited with approval in the Victorian case above.]  Thayer thought that ‘presumptions’ should not  be regarded as part of the law of evidence, but as part of the rules of legal reasoning – and of course the law has no monopoly of logic.  Thayer regretted the ‘extent to which the presumption of innocence has been overdone in our hysterical American fashion of defending accused persons.’  He reviewed English practice and concluded that the presumption played a very small part in English practice – except to the extent that the law said that in a criminal prosecution, the accused must be proved guilty beyond reasonable doubt.  And that if the jury is left with a reasonable doubt, it must give the accused the benefit of such a doubt and acquit.  [See above, Little Brown & Co, 1898, 314, 553-555.]  The position is of course different in civil trials, and much more different in inquiries conducted outside the courts.)

Where someone is found guilty of conduct that puts them in breach of some public trust, the public has an interest in the consequences of that breach. If someone entrusted with my uniform or my colours betrays either, they betray me, and I have an interest in seeing how we as a community respond to that breach of trust.

No one in public life in this country could sustain any reputation at all in light of the findings of the Federal Court made  against Roberts-Smith.  Short of putting Roberts-Smith in jail, other federal agencies should be able to act on the evidence before the Federal Court, and the findings and judgment of that court.  The failure of the relevant  government officers to react appropriately is very unsettling. 

They are not playing the right game.

Roberts-Smith – the presumption of innocence – logic – common sense.