The Cheryl Lacey Show
Where curiosity meets courage. The Cheryl Lacey Show. When truth matters share it.
The Cheryl Lacey Show
TALK ABOUT JUSTICE: Know the law before it's used against you
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Beyond reasonable doubt. On the balance of probabilities. Two standards of proof that underpin law, order and justice. Or do they?
With two court systems, two standards of proof, One Evidence Act and whole lot of words with different interpretation, it's fair to say most of us know very little about the law.
As the conversation unfolds, there is a moment - four words worth noting - "codified across the states."
What does it mean? A key piece of the injustice puzzle that almost slipped past?
Post recording, and a little more curiosity, another question came to mind. When parliament codifies evidence rules, does it hand significant power to the legislature to define what can and cannot be heard or admitted in court?
And, another, 'If yes, is it fair to say that evidence is doctored?'
A conversation that courageously flows into must-know territory and your own questions about the law.
Good morning and welcome to the Cheryl Lacey Show, where curiosity meets courage. Starting off our show this morning is James Glisson, former police officer and now prosecutor in New South Wales. And James is going to be talking to us about the balance of probabilities, a little bit different to beyond reasonable doubt. The balance of probabilities is something that we've heard more recently in cases like the Ben Roberts Smith defamation trial and other defamation trials that have been hitting the headlines in Australia. So it's going to be terrific to find out a little bit more about that. James, welcome to the show.
SPEAKER_00Thank you, Cheryl. It's always a pleasure to be on.
SPEAKER_01Indeed. James, it's really quite an interesting topic, balance of probabilities, and I know that we could go into the history of that. We might be able to touch on that as we as we uh have this conversation as to how it unfolded. But essentially it's and I have to say I've been guilty of this. I've been explaining to people now and then that my understanding is that it's uh sort of a bit of that whole 50% plus one. So it only needs one percent of uh you 1% over the half to actually have a decision made. But it's a little more uh definitive than that, isn't it? Can you give us a bit of an overview of what balance of probabilities is?
SPEAKER_00Yeah, absolutely. So the balance of probabilities is basically how courts outside of the criminal sphere make decisions when they can't be certain. So it's less about percentages and it's more about the court preferring one version of events over another because it fits the evidence better.
SPEAKER_01So when we say fitting the evidence, that's quite interesting because both parties, the prosecution and the defense, present their evidence and that evidence has to essentially be proof or the truth. Is that the best way to put it? How would you describe the way two parties provide evidence and yet neither of them are necessarily uh the s uh number one the same, nor actually leaning towards the outcome in the end?
SPEAKER_00Right. So it's really more about counting the pieces of evidence instead of hitting a percentage. So when we're talking about, you know, the parties bringing their own evidence in relation to one question, it's about which explanation being the evidence makes the most sense when answering that question. So I think the really important thing to remember is we're talking about probabilities versus possibility. And I think that's where people get the 51% from.
SPEAKER_01So it's highly probable or highly likely rather than possible.
SPEAKER_00Yeah, that's right.
SPEAKER_01Isn't it interesting because words make such a difference, don't they? And uh just those two words alone, probable and possible, but then also you've got things like uh whether or not someone is satisfied. Satisfied, you I think that might even include beyond a reasonable doubt when we look at that. Does satisfied come into the balance of probabilities?
SPEAKER_00It definitely does. So we're talking about um anything really outside of the criminal sphere. So that could be anything from an insurance case to defamation, uh, which obviously was the case with Ben Robert Smith and now apparently Reba Wilson, that's come back. And realistically, it's not always the same standard. So it's the same test, it has to be on balance of probabilities. But the more serious the allegation, the more proof, the more evidence you need to convince the court of one or rather of the I guess the prosecution or the complainant's version against the defendant.
SPEAKER_01So when you say a lower standard, the criminal cases heard actually need that beyond a reasonable doubt, whereas civil cases have that lower standard. It must be very difficult when it comes to things like family law because you've got uh you know, two parties, you know, husband and wife, for instance, who are separating or going through custody issues, they become parties. So they're fighting over the same thing, but one is you know, the the prosecution and one is a defense, or it's probably not the same sort of language, but they're fighting against each other, and it must be really, really difficult to really find that uh reasonable outcome.
SPEAKER_00Yeah, I mean, I'm gonna say something that might sound a bit controversial coming from a criminal background, but family law is one of those things that I'm very passionate about, and the reason's very simple. You know, I so I so I like to say I recently became a dad. It's been three years, but it still feels recently to me.
SPEAKER_01Congratulations, yes, it always will.
SPEAKER_00Thank you. Yeah, I hope so. So family law is where the courts have to make really life-changing decisions and on incomplete and often conflicting evidence. Now, you're right, the balance of probability uh test applies to family law, but the reason I feel so strongly about it is there's something that not a lot of people realise when it comes to family law, and this is the same across the country because it's a federal system. It actually doesn't, as in the family law process does not apply the Evidence Act. So all of the rules and protections that we've developed over hundreds of years and have then been codified through legislation to make sure that the evidence getting before a judge or before a court passes certain thresholds, that doesn't apply in family law. So it makes the balance of probabilities even more controversial in many ways.
SPEAKER_01So when you say more controversial, can you just elaborate a little more on that?
SPEAKER_00Yeah, so when we're talking about the balance of probabilities, that standard of proof, already there's a bit of distrust often between people who are before the court and the court itself, because they think, well, you know, this really affects my life, it affects how often I see my kids, often it affects the asset distribution, which usually both parties have contributed to, at least in modern society. Um so already people feel as if they've been a little bit wronged because this should be to a higher standard of proof, more than what people believe is 51%. But then where the really controversial part comes in, at least from my perspective, is not only does the lower standard, the civil standard apply, but there's a lot of room for evidence that would never see the light of day in a criminal court or in fact a civil court, um, whether that be because it falls afoul of objections such as hearsay, which I know everybody's heard a million times on TV. Uh those objections and those exclusions don't apply in the family law court because the evidence act doesn't apply. So not only do you have this lower standard, which already feels a little bit unfair to the people who are in front of the court, but then all sorts of evidence which in other courts simply wouldn't be allowed in is accepted and then balanced.
SPEAKER_01Now, when you're talking about the Evidence Act, when you say the Evidence Act doesn't apply, let's jump across to the criminal so that we can make that comparison with what you've just said in in in civil cases.
unknownSure.
SPEAKER_01So the Evidence Act in a criminal case, an example would be what?
SPEAKER_00Uh well, the Evidence Act in New South Wales, it's codified across the states, so it's largely the same, if not identical, uh, has different rules for civil and criminal matters. Now the objections still apply, so you can have things like hearsay, which means that if the person who's giving the evidence is repeating somebody else's words, that's not allowed in if they're trying to establish that those words are true. Uh you have tendency rules which say that unless you meet a very specific set of circumstances, you can't rely on past conduct to prove future conduct. Uh, and then you have document rules. So if you receive an email or a text or written communication, it has to meet a certain amount of proof. There have to be certain checks before that evidence is allowed in front of the court. Now, in a criminal matter, that's super important, right? Because you've got the much higher standard beyond a reasonable doubt, and then on top of that, to make the the process as impartial and as fair as possible, you have the role the rules of evidence to make sure that not everything gets in. Only stuff, only evidence that is really persuasive that that it can be proven to have come from a reliable source can get in. Now, to compare that to what we were just talking about with family law, you don't have that high standard. It's not beyond a reasonable doubt, it's on the balance of probabilities, and the evidence that can be allowed in is much, much, much more wide reaching. So it's not excluded by these additional rules.
SPEAKER_01Now that's quite interesting because we often find, particularly now with uh family violence and the way that's been, if I could use the word marketed in many respects, we have the partners who have separated or going through these custody issues are essentially competing against one another and and pointing fingers. So what you're saying is is that there is an opportunity for a lot of evidence, alleged evidence, to to come to hand that wouldn't otherwise be the case in a criminal uh case. If the evidence provided was quite clear that there was a wrongful action by one of those parties, can it then become a criminal case?
SPEAKER_00It can be. Uh generally speaking the courts try and be quite separate in that regard, but what we've seen over the last certainly the last few years, and for people who've been in practice longer than me, they've confirmed this over even a longer period of time, ten or fifteen years, what happens is these days when there's a family law proceeding, whether that be parenting or property, there is almost always an AVO that is taken out at the exact same time, if not a little bit before. Because even though they're separate proceedings, they do influence each other.
SPEAKER_01And what about uh yes, that's the the AVO with family violence. What if it is found that the there has been family violence and there are quite a number of character uh characteristics there or different elements of family violence, but let's say physical for the sake of the argument, and there's evidence of you know bruising or you know other other sorts of physical um you know, assaults that have occurred. Can does it require that victim in the civil case to press charges, or can it automatically become charges laid based on the evidence found in civil court?
SPEAKER_00Realistically, in a very practical sense, it would require the person to make the complaint to police. Uh it would be a very rare set of circumstances where it's referred either by the family court or by lawyers without consent of of their client, in this case, let's say it's the complainant, it would be a very, very rare case, and there would need to be very extreme circumstances for them to do that by themselves. Um more often than not, I would say 99% of the time, it would require that that person to go to the police.
SPEAKER_01So then in in the case of Ben Robert Smith, for example, we know it's not a a family issue, but family was involved in this instance, and that was referred. So what is the difference? Because they're both civil cases.
SPEAKER_00When when you're talking about the civil case with Fairfax Media and Ben Robert Smith?
SPEAKER_01Uh yes, when that that became a criminal case. So so uh th the other party referred it, is that what you're saying? Not not the outcome of the balance of probabilities, but the other party referred?
SPEAKER_00Unfortunately, it's it's one of those situations where the the public eye really focused a lot of attention on this. So in an ordinary case with ordinary people, when it's not a controversial topic, so for example, the allegations that were ultimately proven to the civil standard with the defamation case between Ben Robert Smith and Fairfax Media, when you get to that level, that's when agencies such as the Commonwealth DPP start paying really close attention, and they may well, as a result of that, when they look through the case, and they look through the evidence that was already presented, start thinking, well, how can we then put together a criminal prosecution case? Because even though it's not the correct way to approach it, if it's been found by a court to the civil standard, maybe there's enough evidence to suggest that we can find it to the criminal standard. And that's where a lot of people aren't sitting very politely with this, and they don't feel very comfortable about it, is because it feels an awful lot like an extension of the first trial, even though it was a civil one. And that's causing a lot of um friction, at least in the legal community, because realistically that is not how it's meant to work. They're meant to be totally separate proceedings, and because the first proceeding was such a media spectacle, it there is a real risk that it will be almost impossible to find people to bring an impartial mind to the criminal standard of beyond reasonable doubt to the criminal trial.
SPEAKER_01Absolutely, that's one of the biggest issues, isn't it? It it's got such media attention, there'd be very yes, you're very, very difficult to find people that don't know enough about or don't know at all about the case to be able to be impartial. You're absolutely correct. Just on that, it really does come down to trust, doesn't it? And how much trust that we have in the systems, but also in in our lives generally. If we have a society that is more trusting, the court processes and and be it civil or criminal, would be far more uh uh appropriate for people to accept the outcomes and also the processes you would think.
SPEAKER_00Yeah, there's been there's been an ever increasing gap between the decisions that are made in the legal sphere and the trust that the public have with the legal sphere. And I think there are a number of factors that really um influence that. The first is that the decisions don't always seem to make sense and they're almost never explained properly. Uh and the second is when events such as Lee's, you know, we're talking about the Ben Robert Smith's criminal case, for instance, when they become such public spectacles and there appears to be so much political involvement in the decision, you know, in relation to charging, how the arrest was conducted, um, that really widens that gap a bit further. So I think there's an awful lot of work to be done to try and bring that gap to a more reasonable distance. You know, I don't think I'm certainly not optimistic enough to say to a point at which it doesn't exist, but just to something that's more palatable.
SPEAKER_01And what about something like you've we've just mentioned the Ben Roberts Smith case? I'm harking back now to the Christian Porter case, where he was uh accused of rape and the alleged victim uh completed suicide and he was trial some thirty years later or twenty-five years later, and that was uh on the balance of probabilities that it had occurred and he therefore uh resigned his position from Parliament and his career was uh essentially over, wasn't it, as a as a uh pol politician. How do you uh try a case that is that old and yet, for example, when it comes to families and finance, documents can be destroyed after five or seven years, therefore it's very difficult to return and have a case unfold where there could be y fraud or theft or that sort of thing happening. How does it actually work?
SPEAKER_00It well, it becomes very, very difficult, and I know that sounds like a reductive answer, but it's true. So you ultimately end up relying on different kinds of evidence. So leaving aside the family court, bearing in mind that the Evidence Act doesn't apply, and I'll get back to it, you are then largely relying on what's called circumstantial evidence. So other pieces of evidence that point to the existence of what you're trying to prove. So let's say it's financial documents. But if they're if they're truly gone, that's when you start needing needing to go into affidavits, statements, trying to support how they disappeared or why they disappeared. Returning to the family sphere, where you're talking about, you know, consent orders or court orders when it comes to parenting, finance, distribution of assets, property, that's where, again, the evidence act not applying. It isn't as difficult because you can point to elements such as hearsay. So in circumstances where you say that, you know, the wife's parents or the husband's parents saw the document and can say that they saw the document and what it said. It's not perfect by any stretch of the imagination. It it may not even be fair, but it's something that the court will then look at and weigh whether or not this was more probable to have existed than not.
SPEAKER_01It's very complex. Thank goodness uh you've got a policing background. I it must make such a difference for you, James, because you've seen so many situations on the ground and then trying particular cases, your policing skills would certainly be sitting in the background.
SPEAKER_00Yeah, I'm I'm very grateful for the experience that I was able to get. I think it's it's helped me a lot and it it's definitely continuing to do so.
SPEAKER_01And if people are wanting to go into law, there are so many who say, Well, to be a lawyer you have to really enjoy reading because you do so much reading. And uh certainly that would be the case. But what is it that really drives people to get into law and love it as opposed to it just being a job?
SPEAKER_00I think ultimately, if you really enjoy thinking and abstract puzzles and trying to really arrive at a difficult conclusion that involves an awful lot of either inferential reasoning, abstract reasoning, just trying everything you can to come to an answer no matter how hard it is to find, then you'll always love it. But the moment you start to become entirely outcomes focused, or certainly the moment it becomes prideful, that's that's a really slippery slope. Because while it may look glamorous on on TV and shows like suits and all the rest of it, the reality is that it's an awful lot of hard work and it's an awful lot of thinking. So if you don't enjoy that, I'd I'd probably recommend c going into something else. But if you do enjoy it, it's the best job in the world.
SPEAKER_01Excellent, fair point, fair point. Can I just before we wrap up, I we mentioned language before and we talked about, you know, satisfied and we also had the meaning of the fifty percent plus one, etcetera. And then uh we know that there is that phrase beyond reasonable doubt. We know that one. During COVID we had proportionate come in to the equation, and it was a a word that wasn't relatively well or spread out quite well. It it was very much something in the media, and it's something that we all use and continue to hear today. Has that always been uh some a a term that's been used within the legal fraternity or is it something that was I suppose I'm being a bit cheeky here, but that was found among particular acts that that suited the situation?
SPEAKER_00Um it's definitely a word that's been used in in the legal sphere a lot, and now it it's my turn to be a a bit cheeky, but the the definition seems to change, however it's applied. Um so sometimes, you know, we talk about words being important and they most certainly are, especially when it comes to law. But sometimes the law the the words mean things uh in different contexts. So when you're talking about COVID, for example, and they're using the word proportionate, they're referring to a response that had to be appropriate and not excessive compared to the problem it's trying to address. That's a very wide definition. And really it depends on how you define or how you define the scope of the problem it's trying to address. So if you say that the problem is immense and it's a a once-in-a-generation problem, then a proportionate response could be really powerful. Uh if somebody else takes the a very different view for the same problem and they say that the problem is not anywhere near as large as people are saying it is, then the proportionate response would be much smaller. And the real issue people have with it, certainly the real issue, because I was policing during this time, that I saw people have with it and that I had myself with it, was that there was so much ambiguity. in relation to how that word was treated. And it seemed to change on a weekly basis. I think people I think Australians definitely can put up with a lot. I think we're c we're quite tough and we can shoulder a big burden. But one thing that we don't tolerate very well is feeling like the goalposts are constantly moving. And I think that was the first time the Australian public in a very long time has felt just how ambiguous things can be and just how unevenly the law can be applied.
SPEAKER_01Indeed and just one word proportion it did all of that. So it comes back to that other word we used earlier which is trust and the standards that we have in life and trust really do go very much hand in hand with our acceptance and understanding of law.
SPEAKER_00Absolutely.
SPEAKER_01Well I tell you what James you're a breath of fresh air to be able to explain all of this to us and no doubt I'll have some feedback in my emails when I take a look with some people making comment here on this one because you know it is it's you it's so much unpacking to do but the more we have these conversations the more we are being educated. We're educating our listeners but that curiosity starts to unfold even more and it's couldn't be more important as you said in in cases when so much of society is affected. And interestingly we talk about COVID because we all experience it all at once. However the law affects all of us at varying times. So we really do need to be more abreast of it don't we?
SPEAKER_00Absolutely you know I think it's really important. I think there's a difficulty because there's not an awful lot of resources available. There are there's one of two there are either really dry academic texts or really superficial government pamphlets. It's really hard to find that middle ground. But you're absolutely right the the curiosity aspect is probably the most important when it comes to understanding the how the law affects you and how you can assess the law.
SPEAKER_01James thank you very much for being on the show. Always a pleasure looking forward to having you back and uh I can't wait to hear which topic you you might think might be of value for our listeners next time.
SPEAKER_00Absolutely I can't wait.
SPEAKER_01Good on you thanks so much James. Have a great day and God bless. That was James Glisson former police officer and now prosecutor in New South Wales talking about the balance of probabilities and of course we touched on beyond reasonable doubt.