How does Briginshaw vs Briginshaw affect the balance of probabilities?

Jill McMahon - Tuesday, October 29, 2013


Last week, I looked at how the 1938 divorce case of Briginshaw vs. Briginshaw has significant impact on workplace investigations today. This week, I look at the importance of the balance of probabilities and applying Briginshaw in practice.

The balance of probabilities

Usually the role of an investigator is to determine whether alleged events occurred.  To do this, the investigator needs to determine whether there is a sufficient amount of evidence to prove allegations. The amount of evidence required is known as the “standard of proof”.

The standard of proof differs between civil and criminal matters. Case law has established that in civil matters, the standard is the “balance of probabilities”. This is a lesser standard than the proof required for criminal matters. (Criminal allegations must be proven “beyond reasonable doubt”).

But in Briginshaw v Briginshaw (1938) 60 CLR 336, the High Court cautioned against a purely mechanical comparison of mathematical probabilities and stated at pages 361–2 that the balance of probabilities test requires the tribunal to:

"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 … [A]t common law … it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal."

Applying Briginshaw in practice

Subsequent cases have applied the Briginshaw principle when, depending on the nature of the allegation, the strength of the evidence required to meet the standard of proof in civil cases may change. However, the civil standard of proof is always the balance of probabilities (see the joint judgment of Mason CJ, Brennan, Deane and Gaudron JJ in Neat Holdings Pty Ltd v Carajan Holdings Pty Ltd  (1992) 67 ALJR 170 at 170 – 171).

De Plevitz (2003) categorises the types of cases where the Briginshaw principle has been applied as follows:
1.    where there are allegations of serious misconduct including:

  • sexual abuse of children
  • contested wills where it is alleged that one party who stood to inherit under the will had murdered the deceased person
  • gross medical negligence
  • fraud and
  • serious and willful misconduct warranting dismissal from employment.

2.    where the outcome of the decision may be irreversible including:

  • decisions by mental health tribunals which could result in a loss of personal liberty
  • sterilization decisions
  • determinations of whether a person is Aboriginal and thereby entitled to stand as  a candidate for election to the (now defunct) Regional Council of the Aboriginal and Torres Strait Islander Commission (ATSIC)
  • striking off doctors or lawyers from their professional rolls

De Plevitz notes that the Briginshaw “standard of proof” has been adopted by all Australian anti-discrimination jurisdictions, based on the general belief that any allegation of discrimination or harassment is a “serious matter”.

However she cautions that this approach is not warranted in every discrimination case. When deciding whether to apply Briginshaw, investigators should take the two-step approach of the Equal Opportunities Division of the New South Wales Administrative Decisions Tribunal in the unreported decision of Dutt v Central Coast Area Health Service [2002] NSWADT 133 (6 August 2002) as follows:

  1. Look at the nature of each allegation and asked whether it would have reasonably foreseeable adverse consequences for the livelihood or reputation of the respondent?
  2. If so, then and only then, apply the Briginshaw test.

Where allegations could have serious consequences for the alleged perpetrator, the question of the strength of the evidence required will depend on the facts of each investigation. However, as a rule of thumb for investigators, circumstantial or uncorroborated evidence warrants a closer look at all the facts to determine if there is anything else to substantiate the allegations.

De Plevitz, L., (2003). 'The Briginshaw 'Standard of Proof' in Anti-discrimination law: Pointing with a wavering finger' Melbourn University Law Review 13

Demystifying the balance of probabilities and the rule in Briginshaw

- Tuesday, October 22, 2013

What relevance does the 1938 divorce case Briginshaw versus Briginshaw have, seven decades after the fact, to workplace investigations in the 21st century? Find out in a two part series on WISE Workplace’s blogs.

Briginshaw v Briginshaw comes up a lot where workplace investigations concern matters which could involve criminal or other moral wrong doing; especially in the context of whether the “standard of the evidence” is sufficient, on the balance of probabilities, to substantiate the allegations.

What were the facts of Briginshaw?
Briginshaw was a divorce case in the days before no-fault divorce. The applicant husband sought a divorce and had to prove “grounds”. In this case, he claimed his wife had committed adultery.

But the only evidence the husband could produce was Mrs Briginshaw's admission that she had kissed the co-respondent, and hearsay evidence that the co-respondent had told a friend of Mr Briginshaw's sister in confidence, that he and Mrs Briginshaw had sexual intercourse. The judge refused to grant a divorce, because he was not satisfied “beyond a reasonable doubt” that the wife had committed adultery.

The husband then appealed on the basis, amongst other things, that the judge had maintained wrongly that the husband had to prove his wife's adultery beyond reasonable doubt.  On appeal, the High Court of Australia decision set a precedent about the standard of proof required in civil cases of this nature.

The High Court decision
The High Court held that although the criminal standard of proof did not apply, a finding of adultery would have grave consequences for the wife; “a loss of status” (remember of course that this case was heard in 1938!). So the evidence against her had to be closely scrutinized to ensure it was clear and compelling. On that test, the High Court held that the evidence lacked cogency and they rejected the husband's application.

On the issue of the civil standard of proof, Judge Dixon held (in a frequently cited statement):

Fortunately ... 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 cases such as this, Judge Dixon maintained that that the standard of proof should not be satisfied by “inexact proofs, indefinite testimony, or indirect references.”

Whilst the facts of Briginshaw are somewhat outdated given the introduction of no-fault divorce in 1975, its principles have withstood the test of time and are now enacted in state and federal legislation (see for example section 140(2) of the Evidence Act 1995 (Cth)).

What about workplace investigations and the standard of evidence?
Whilst the strict rules of evidence do not normally apply to workplace investigations, investigators have adopted the standard practice of applying civil rules of evidence.

This is because workplace investigation findings usually form the basis of subsequent employer decisions concerning the employee(s) under investigation; such as terminating his or her employment contract.

If the employee disputes this decision, he or she may seek to legally challenge it. This type of challenge is a civil action (as opposed to a criminal one) and will ultimately be determined according to the rules of evidence that apply to civil matters.

If investigators use the same rules a court or tribunal, it is likely that the factual findings will be similar and withstand scrutiny. This practice gives employers a sound basis to rely on the investigation findings to make any subsequent decisions.

Check back with Harriet Stacey’s WISE Workplace blog next week to find out about how Briginshaw vs Briginshaw affects the balance of probabilities and some interesting case studies.

Spotting the difference between flirtatious behaviour and criminal sexual conduct at work

- Tuesday, October 15, 2013

What is “sexting”?

“Sexting”, (the creation, possession and transmission of sexually suggestive or explicit messages or images), is all the rage with seemingly even the most conservative of your employees potentially drawn into seductive messaging over their phones.

However, employers who employ young people may need to consider the potential criminal ramifications when they are handling sexual harassment complaints or managing inter employee relationships.

Across Australia, the general age of consent for sexual activity is 16 years old, in some circumstances, and in relation to child pornography, that age is 18.

Grooming, which could include “sexting”, is behaviour that might be viewed as just flirting between colleagues, but may actually mask predatory sexual activity that constitutes a serious risk to employers and young employees.

If you employ young people or children under the age of 18, or have children in your workplace, you might want to watch out for potential grooming behaviour or child pornography offenses, to keep these young people safe.

With the everyday use of mobile devices to communicate, and with ready access to photo apps, the temptation for young people to send off a suggestive image, seems too great for some.

However the definition of child pornography incorporates material that depicts a person who is, or appears to be, under 18 years old in any images of sexual organs, including breasts in a sexual pose or sexual activity.

An offence can also be committed, for example, if a 19-year-old texts an image of her naked breasts to her boyfriend, where the girl’s 16-year-old sister sits next to her.

The criminal law relating to “sexting” was reviewed in 2012 by the Victorian Law reform committee.

This review considered the application of recently introduced Commonwealth legislation into the use of carriage devices (phone and computers, tablets etc.) to send or possess child pornography.  Similar legislation exists in each state making it a crime to use a carriage device to send or possess pornographic images or for the purpose of grooming.

What is grooming?

Grooming is used to describe any behaviour used by an adult for the purpose of developing a sexual relationship or engaging in sexual acts with, or in the presence of a child, or other children.

Typical behaviour includes giving special gifts or paying undue attention to a child or young person. This behaviour doesn't need to happen whilst the two are in each other's company; Facebook, chat rooms and email all are fertile ground for flirtatious behaviour and the gentle introduction of sexual conversations – “sexting”.

If two young people are close in age, but straddle the adult/child legal definition with no special relationship, there may be less concern for such conduct where both parties appear to consent. But employers and parents should be aware of possible criminal and manipulative nature of this behaviour.

Where the age gap widens, where the adult repeats the behaviour with a number of children, or there is a special relationship at play, the conduct has serious criminal ramifications: the criminal charges of grooming can result in 15 years imprisonment!

How can grooming affect you?

If your workplace deals with children’s issues, you will be familiar with the issue of grooming, but have you considered that employees could be guilty of grooming other staff members, not just the children they are employed to look after?

Grooming can be committed by any adult against any person under the age of 16 years, 18 if there is a special relationship between the two such as teacher/ pupil, client/counselor, manager/trainee etc.

**In August this year, the NSW ombudsman updated the definitions of reportable conduct (conduct reportable to the Ombudsman where the offender is in child-related employment).


Using ‘Tendency’ Evidence in Sexual Harassment Matters

- Tuesday, September 17, 2013


By ALISON PAGE, Legal Counsel

Often it’s not a one-off event; investigations into alleged sexual harassment frequently reveal that on previous occasions the respondent has faced other accusations of inappropriate conduct against fellow employees. This evidence is traditionally known as “similar fact evidence” or “tendency evidence”.

When the investigator considers each alleged incident in isolation, he or she may find insufficient evidence to establish sexual harassment. However, when these events are considered as a series, it may establish a pattern of sexual harassment.

This poses the question: should the investigator use these other incidents to decide whether there is sufficient evidence to establish a tendency by the respondent to engage in the alleged conduct?

For the first time, a recent interlocutory decision in the Federal Court Robinson v Goodman has set a precedent, by establishing judicial guidance about the admissibility of this contested “tendency evidence”. It’s guidance that can also help workplace investigators.

In this case, the owner of a well-known clothing brand was responding to allegations of sexual harassment under the Sex Discrimination Act 1984 (Cth). The respondent was also facing similar allegations in other proceedings, brought by a former employee.

The respondent admitted that certain events did occur, but disputed that the acts were sexual in nature. Justice Mortimer maintained the respondent’s behaviour towards the former employee applicant and a further former employee, established a tendency to “engage in a calculated pattern of sexual pressure and harassment”.

Although Justice Mortimer accepted that criminal cases concerning sexual offences may assist to decide whether tendency evidence is admissible, ultimately the question must be determined on the civil standard, based on the words of section 97 of the Evidence Act 1995 (Cth).

According to Justice Mortimer, section 97 requires a two step process:
1. Is the evidence relevant? This requires consideration and identification of:
a. what facts are disputed about the alleged misconduct of the respondent.
b. the precise details of the tendency evidence.
c. whether the tendency evidence is capable of proving a tendency to behave in the alleged manner.

2. Does the evidence have “significant probative value”?
Probative value” is defined in the Act as “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”.  To answer this question, one must weigh up the impact that the tendency evidence could have on the existence or non-existence of the facts in issue.

The following factors may also be considered:
a. the cogency of the tendency evidence
b. the strength of inferences drawn from the tendency evidence as to the tendency of the respondent to act, speak or think in a particular way,
c. the extent to which the tendency evidence increases the likelihood that that a fact in issue did occur.

Assessing the facts before her, Justice Mortimer said it was important to look at similarities in the overall circumstances, when deciding whether to admit tendency evidence. She identified the following broad similarities:

  • Both cases involved employees.
  • The respondent was their boss, the company owner and controlled business operations.
  • Both cases involved attractive females.
  • Both cases involved similar events (e.g. buying trips, fit sessions, photo shoots).

Justice Mortimer maintained that much of the evidence was admissible, although conduct too far in the past, which was not similar enough to the allegations or too general was not admissible.

As a closing word of caution, in accepting tendency evidence, investigators must also apply principles of procedural fairness; such as giving the respondent an opportunity to respond to adverse information that is credible, relevant and significant to the ultimate determination of the investigation. Otherwise, they may risk prejudice arising from their decision (Lohse v Arthur (No 3) [2009] FCA 1118)

Investigation reports – Ten Key Ingredients for successful reports into workplace issues.

- Tuesday, September 10, 2013

Whether you contract an external investigator or conduct an investigation yourself, you need to record the process, document the evidence you gathered and articulate the evaluation you applied to make the findings. The Investigation Report needs to provide the decision-maker with all the relevant information to make fast, reliable decisions that won’t lead them into a court room without passing “GO”.

Effective decision making - as a result of any investigation process - depends on the quality of the investigative work and how it’s effectively communicated to the decision maker.

Whilst there is no one, perfect report design that fits all cases, developing a standardised report format can be helpful. This enables you to keep all relevant information in the same spot, so the reader will know where to find things relevant to their decision.

Having a range of two or three different report formats gives you the flexibility to fit most cases into a standardised layout.

Key points to remember as the writer:

  1. Write the report for the purpose intended.  If the report is going to the CEO for a decision on misconduct or to the complainant, you should consider the reader and purpose in every word and sentence you write. If there is likely to be solicitors involved or people who don’t know the business, your background section will need to layout clearly the case’s environment, the nature of people’s roles and any industry-specific background required to understand the facts reported later in the report.
  2. Address the terms of reference; before starting your report, make sure your report will answer the questions asked in that document. Providing a copy of the TOR is critical to understanding the report.
  3. Clearly layout the methodology used to gather the information relied upon in the report. Do this early on, before the analysis of evidence.  At a minimum, this section should layout who you spoke to and who provided which documents. List and annex any electronic evidence or computer analysis and social media searches. 
  4. Write in short sentences, using simple language. If you can say something in five rather than nine words, do it. 
  5. Use easy-to-understand tables to present key findings, where relevant. 
  6. When presenting the evidence and your analysis, consider how the reader will understand this without repetition. If you have clear allegations, consider presenting only evidence relevant to each allegation, together with an analysis. Then lead the reader to the finding which should flow logically from the evidence. 
  7. Make sure you present all relevant evidence in the report. Investigator Bias could lead you to omit certain pieces of evidence to persuade the reader to agree with your finding. This is a sure way to end up in court, with poor decisions based on a deficient report. 
  8. Images and diagrams can communicate more than a thousand words. But make sure it’s clear what they represent, where they were taken, by whom, to ensure the basic chain of evidence is maintained.
  9. Summarising large volumes of digital data can be a challenge; whilst you can provide original digital evidence on external hard drives, some sort of summary document will allow the reader to determine if they need to review that evidence personally.
  10. Don’t neglect to reiterate definitions and legislation if relevant to your report’s findings. Don’t assume that every reader will have an accurate knowledge of the relevant law in each case; a refresher helps everyone and saves them having to look things up independently.


Lessons for employers about bullying dismissals

- Tuesday, August 27, 2013

A recent case determined by the Fair Work Commission provides some important lessons for employers about bullying dismissals. 

In Harris v Workpac Pty Ltd [2013] FWC 4111 the Commission found in favour of the applicant and determined that her dismissal for gross misconduct for bullying a co-worker was unfair.

Mrs Harris was dismissed on 20 December 2012 with five weeks pay for gross misconduct for bullying a co-worker.  She was dismissed after a co worker resigned and made complaints of persistent bullying and humiliation against Mrs Harris during an exit interview. 

The complaints were investigated although no evidence of the investigation or the decision making process was provided to the Commission. Similarly no evidence was provided by the co worker to support her claims of bullying, aside from a statement containing general comments of how the applicant made her feel.

Mrs Harris was notified by email of the allegations just a couple of hours before being interviewed and despite disputing the allegations, she was dismissed the same day for gross misconduct.

Significantly, despite the employer conducting a quick investigation and finding that the behaviour complained of had occurred over a prolonged period of time, the employer failed to provide any evidence about the investigation or their reasoning for dismissing Mrs Harris.

The complainant’s allegations were vague and disputed and the Commissioner cited a lack of evidence from either party as a barrier to his decision making.

The complainant stated she previously complained at the time of the incidents but the employer did not produce evidence that any action had been taken in relation to these earlier complaints, nor any evidence that the complaints were investigated following the resignation of the co worker.

The Commissioner stated:
"while the Commissioner does not and should not endorse the view that "anything goes" at the workplace, it is also important not to confirm as bullying and gross misconduct behaviour, as in this case, which is not pursued with vigour and related to incidents which occurred some time ago. In my view the Commission should guard against creating a workplace environment of excessive sensitivity to every misplaced word or conduct. The workplace comprises of persons of different ages, workplace experience and personalities not divine angels employers are required to pursue inappropriate behaviour but need to be mindful that every employee who claims to have been hurt, embarrassed or humiliated does not automatically mean the offending employee is "guilty of bullying" and "gross misconduct".

The Commission also criticised the employer for failing to take into account that the majority of incidents complained about occurred when Mrs Harris’ husband was in a coma and subsequently died.  The Commission stated that this was a period of recognised stress and should have been considered in the determination of the dismissal.

Lessons for employers to take away from this case include:
  • The importance of line managers responding to complaints at the time they occur;
  • The need for the complainant to particularise the complaints - general statements going only to the impact of the behaviour are insufficient;
  • Do not assume that the level of harm is directly proportionate to the poor behaviour. 
  • The need for employers to document the investigation AND the decision making process related to disciplinary action;
  • Take into account circumstances that may mitigate against the behaviour.


For guidance on responding to complaints WISE Workplace has prepared a free e-book:

Stepping out the process – Responding to workplace bullying

- Tuesday, August 13, 2013

Does your team know the difference between workplace bullying and reasonable management action?

Do your policies and procedures reflect the new draft Code of Practice for Preventing and Responding to Workplace Bullying?

When an employee makes a complaint of workplace bullying, will your staff know how to respond, come January 2014?

Ensure you are not on the back foot, trying to pick up the pieces, when the Fair Work Commission steps in to protect one of your employees from ongoing bullying.

There many ways of breaking down information into bite-sized, memorable pieces, such as “top 3 tips for….”, “five ways to….”

The draft Code of Practice for Preventing and Responding to Workplace Bullying has nine principles of responding, three levels of response and 10 steps in the investigative process to investigate workplace bullying:

1.  Receiving the complaint
2.  Interviewing the complainant/target
3.  Plan your response – notifications/plan/TOR
4.  Interview witnesses
5.  Collect other evidence
6.  Draft allegations to the respondent
7.  Interview the respondent
8.  Evaluate the evidence
9.  Make the decision on fact
10. Report the findings

WISE has produced an easy-to-read, desktop reference, to help you respond to workplace bullying.

From the award-winning author, Harriet Stacey, this FREE eBook draws on the key points of the draft Code of Practice, covers the 10 steps of the investigation process and provides a SAMPLE REPORT for workplace bullying investigations.

Fraud and Corruption in the News

- Tuesday, August 06, 2013


Fraud and corruption were top of mind last week, and not just because the NSW’s Independent Commission Against Corruption handed down its findings in the Eddie Obeid investigation, while Greg Pearce, former NSW state Minister for the Illawarra, was stood down for corruption allegations.

At the same time, I joined some of the country’s top law enforcement and anti-corruption investigators at the Third Annual National Public Sector Fraud and Corruption Congress (hosted by Intrepid Minds) in Melbourne.

At the congress, the nation’s leaders in this field discussed recent cases of fraud, the challenges of public sector procurement, managing errant behaviour at a time of budget constraints and the new opportunities presented by social media.

One thing that stood out for me at the congress was the need for organisations to be alert to the early warning signs of corruption; their capacity to investigate even minor breaches of policy in a holistic fashion, and to ensure minor misdemeanours don't develop into major corruption networks.

An increasing number of professional standards officers are charged with employee misconduct in addition to corruption. The fact that Greg Rolph, APM, director of the NSW Police Professional Standards Command, observed at the conference, that he spends more time dealing with poor behaviour between police officers than cases of corrupt conduct, indicates a swing in this field.

Constant vigilance and action are required to manage fraud and corruption in our public service. Organisations can reduce their risk with these simple measures:

  • Identify those people or positions in the organisation with the opportunity/access to funds, banking and invoicing.
  • Review anti-fraud measures and accountability procedures. Ensure adequate procedures are in place.
  • Conduct audits to ensure procedures are followed throughout the organisation and regularly ask questions.
  • Educate staff and managers about appropriate and inappropriate spending.
  • When you find discrepancy, act. Nothing sends a clearer message about appropriate conduct than a case example.

Investigation ‘bungled’ in sexual harassment case

- Thursday, August 01, 2013


By ALISON PAGE, Legal Counsel -

Earlier this year, the Queensland Civil and Administrative Tribunal determined a sexual harassment case in which the Tribunal member described the employer’s initial investigation as ‘bungled’.*

The Tribunal accepted that the HR department was hard pressed, understaffed and overworked. However, the cautionary tale from this case is that this will be no excuse for failing to conduct proper workplace investigations.

This article considers the employer’s mistakes with its investigation to help you avoid having your workplace dirty laundry aired publicly before courts and tribunals and attracting negative publicity.

The complainant had worked for a number of years running the buffet at a resort in Queensland. The respondent was a chef at the resort.

In early March 2010 the resort was preparing to host a golf tournament. It was a particularly busy time for the buffet and the kitchen.

The inappropriate conduct
The Tribunal found that the respondent sexually harassed the complainant over a period of three days during various incidents including:

  • Sniffing the air in the vicinity of the complainant
  • Commenting that she smelt like “Old Spice”
  • Commenting that he recognized the scent of “Old Spice” as his grandfather gave him some
  • Asking if anyone else could smell “Old Spice”
  • Referring to the complainant as a cougar and making growling noises
  • Leaning close to the complainant when sniffing the air and growling in her ear and around her neck
  • Asking her for one last growl before she left

The Tribunal found that the complainant did not encourage this behaviour. At first she put up with it. She ignored the respondent and tried to get on with her work. She believed she demonstrated her discomfort with the respondent’s remarks. However, the respondent was ‘insensitive to her reaction’. Eventually, the complainant berated and admonished the respondent in front of other work colleagues. She told him that what he was doing was unnatural and disgusting. However, the respondent continued to harass her. Finally, the complainant told the respondent that he was an arsehole and that he should “f-off”.

The Tribunal also found that the respondent’s conduct described above amounted to:

  • sex discrimination because the respondent would not have treated a man the same way;
  • age discrimination because the respondent would not have treated a younger women the same way.

The facts in this matter constituted a clear case on inappropriate workplace behaviour. These complaints should have been dealt with internally without the need for the complainant to seek legal redress.

So what went wrong? And why did this matter end up before the Tribunal?

The investigation
Regrettably, the employer’s inadequate handling of its own investigation led the complainant to the Tribunal and also caused her to add several counts of victimisation to her claim (although ultimately the victimisation claims were not found).

The complainant initially raised her complaint with her supervisor and then the general manager who in turn, asked the HR manager to investigate the matter. Rather than interview the complainant herself, the HR manager gave the supervisor a statutory declaration form for the complainant to complete. When the supervisor handed this to the complainant, she said words to the effect that the HR Manager wanted to know ‘what she expected to achieve by all of this’.

The complainant and the HR manager met to discuss the matter and how it should proceed. The complainant became very upset when the HR manager denied having heard or witnessed the complainant admonishing the respondent, even though she was present at the time. The complainant accused the HR Manager of covering up for the respondent.

About three days later, the HR manager handed the investigation to head office’s Employee Relations and Remuneration manager who on completing the investigation found that the complaints were not substantiated.

In view of the Tribunal’s decision, the investigation findings are surprising. Indeed, WorkCover was also able to conclude ‘without a doubt’ that the events complained of did occur and caused the complainant injury.

So how could the investigation findings be so wrong?

The investigation was flawed in several areas:

  1. The HR manager did not interview the complainant before asking the respondent to prepare a statutory declaration. Rather, she relied on the barest information about the alleged incidents given to her second hand via the resort’s general manager;
  2. The HR manager believed it was not her role to prompt the respondent with full details of the complaint. The complainant’s complete allegations were never fully put to the respondent for his comments. His statutory declaration only covered what he thought was important. 
  3. It appears that on handing over the matter to head office, the HR manager did not hand over all relevant materials, most importantly her interview notes with the respondent.
  4. Not all witnesses who may have overheard interactions between the respondent and the complainant were interviewed and those that were, were not specifically asked whether the matters complained about had happened.

Following a few basic investigation rules and processes would have avoided these errors (particularly rules of procedural fairness).

* McCauley v Club Resort Holdings Pty Ltd (No 2) [2013] QCAT 243

WISE Resources

How credible is this witness? The only way to know …

- Tuesday, July 23, 2013

As investigators we are often asked to assess the credibility of a witness: it’s the client question I most dislike.

As an investigator with a background in psychology and witness memory, I am far more interested in the reliability of their evidence. It is true, for example, that the drinking habits of a witness may have a bearing on their reliability in some circumstances. The frequency of their contact with police may also influence them in one direction or another.

But the question is hardly ever as simple as it seems. It’s not as if investigators have some special power to determine the reliability of a witness. The only way to come as close to possible to finding the answer is to conduct a thorough investigation.

An investigator needs to assess carefully the possible influences at work on a witness, including social and psychological factors. And there are potentially quite a few of them.

A recent discussion on LinkedIn produced this excellent list of issues to consider when determining the credibility of a witness. I thought it was worthy of sharing in this blog post.

The credibility of a witness is determined in part by:

  • the internal consistency of her/his testimony, and possible self-contradiction, 
  • whether it is true, 
  • the history/reputation/character of the witness, 
  • his/her motivation to lie, 
  • any relation of the witness to the respondent or defendant, 
  • any other conflicts of interest, 
  • whether the person is testifying without duress, 
  • whether the person makes statements against self-interest, 
  • falsifiability of statements, 
  • whether other witness testimony supports the witness's testimony, 
  • the witness's proximity to the alleged event in time and place, 
  • any cognitive impairments,
  • the language ability of the witness, 
  • correct orientation as to time/place/circumstance, 
  • differences and similarities to previous testimony, 
  • rote or repeated nature of testimony to other witness's testimony (which may speak to preparation or advice or coercion by a third party), 
  • is the level of detail provided appropriate to the nature of the circumstances,
  • corroboration of witness testimony,
  • biased statements by the witness.
(Marc Brenman – LinkedIn comments 10 July 2013,

The point is this: assessing witness credibility involves an investigation, and the analysis of a lot of information - and that takes time and effort.