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.


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