Talk:Burden of proof (law)

Gibberish

I think it is possible to conclude - beyond reasonable doubt - that this article is pitifully weak. It is obscure in expression, and (as far as one can tell given how badly written it is) inaccurate. Burraron (talk) 13:10, 24 May 2021 (UTC)

“Standard of proof” versus “burden of proof”

These are different things and I think should be treated separately, though perhaps in the same article. The terms are not interchangeable. The present article is largely about the standard of proof. It talks a bit about the burden of proof towards the end

The standard of proof is the degree of certainty with which a proposition must be demonstrated: how certain it must be. The burden of proof is the question of who must adduce evidence of the relevant proposition to the relevant standard.

In most cases the burden falls on the prosecution or plaintiff - being the person making the existential claim. But there are circumstances where it may shift to the defendant.

For example, the case of the duck-shooting accident: it can be established beyond reasonable doubt that each of Person A and Person B discharged a gun in the direction of Victim X, believing him to be a duck. Victim X was hit once. It is found, beyond reasonable doubt that one of Person A or Person B was responsible, but as the bullet was not recovered, and there is no evidence as to which of the shooters it was.

A conventional analysis would say that neither shooter can be proved beyond reasonable doubt (or even more likely than not) to have fired the accurate bullet, and that both should be acquitted. I believe the court here may reverse the usual burden of proof and invite each defendant to prove — to what standard it is not clear — it was not her. If neither can, then both will be convicted. ElectricRay (talk) 18:12, 7 August 2021 (UTC)

Full view of the subject

Hello User:Melbguy05. In what way do you think the section discussing the Australian civil proof standard does not provide a full view of the subject? What suggestions for improvement do you have? Jack4576 (talk) 14:54, 5 July 2023 (UTC)

@Jack4576: For starters, the introduction has no information on the balance of probabilities. The introduction should say in Australia the standard of proof is the balance of probabilities. Quote Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66 "The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities."

The section incorrectly states that "in Australia, the terms Briginshaw standard, civil standard, and balance of probabilities all refer to the same thing". From the Federal Court of Australia - Full Court "The so-called Briginshaw test does not create any third standard of proof between the civil and the criminal. The standard of proof remains the same, that is proof on the balance of probabilities." a quote from Qantas Airways Limited v Gama [2008] FCAFC 69. Melbguy05 (talk) 10:45, 8 July 2023 (UTC)

Yes. -because- the Briginshaw standard is -synonymous- with the balance of probabilities; when judges discuss the ‘briginshaw standard’ they are not discussing a this standard, they are discussing the balance of probabilities/civil standard/Briginshaw standard

Is this clear? Jack4576 (talk) 12:54, 8 July 2023 (UTC)

@Jack4576 and @Melbguy05 what’s going on here? Can I help? — MaxnaCarta  ( 💬 • 📝 ) 06:05, 9 July 2023 (UTC)

@Jack4576 I actually have no idea what’s going on in this article and haven’t reviewed the history properly. I can see you and MG are reverting each other. I’m not an admin and have no authority over anyone but I’d encourage both of you to stop editing this for a bit and let’s work out the issue together so as not to cause an edit war. — MaxnaCarta  ( 💬 • 📝 ) 06:07, 9 July 2023 (UTC)

I'd appreciate your third opinion here User:MaxnaCarta

My view is that because Wikipedia has an international audience, the term 'balance of probabilities' runs the risk of misleading international readers, as it has a different meaning in Australia as in other countries such as the USA and the UK. Its therefore essential to an explanation of the Australian balance of probabilities that it include a discussion of the Briginshaw standard and how it affects the way 'balance of probabilities' is interpreted as the Australian civil standard. Many sources and judgements use the term 'briginshaw standard' interchangeably synonymously with BoP and the civil standard; in cases where the civil allegations are relatively serious.

For context, part of the reason for this dispute is because its wikilinked from Ben Roberts-Smith. Some editors are unhappy with the way 'balance of probabilities' has been qualified in that article by an attendant explanation of the Briginshaw standard. It also used to wikilink to the USA explanation of the civil standard, which for various reasons would mislead a reader as to the standard that would have applied in the BRS case.

I attempted to rectify this by writing this section on Australian civil standards of proof; with the prose above explaining the BoP standard; and that Briginshaw is not seen as a 'third standard' of proof in Australia, and instead being incorporated within the BoP standard. My view is that the prose is fine as drafted. It seems to me that User:Melbguy05 sees Briginshaw as a separate standard of proof (please correct me if I'm wrong Melbguy05); I'm not of that view, and I think the sources establish the faults of that view. I think its important that international readers appreciate the particularities of civil proof in Australia, as its quite different to the USA and UK (it has some similarities in operation with Canada, I intend to add that in future but haven't gotten round to it yet.)

Jack4576 (talk) 06:15, 9 July 2023 (UTC)

@Melbguy05 please review if what Jack said is accurate. If not, what you disagree with and desired outcome. I’ll then assess both sides and provide my opinion. — MaxnaCarta  ( 💬 • 📝 ) 09:42, 9 July 2023 (UTC)

@Jack4576 As written, your contributions look good to me. However, I believe that you need to improve in one particular area, namely the frequency with which you write factually accurate contributions without citing a trustworthy secondary source. EG: The criminal burden of proof in Australia is BRD. True, but this needs an appropriate source. Statutory provisions are primary sources, and citing them is interpretative and original research. There are different standards here compared to law school or practice. I'm not sure if you are working as a lawyer, but if so, the client pays us to interpret the law and write advice. They don't need secondary sources; they just want a clear answer. I see you providing that. Here, though, you need to add a secondary source. Otherwise, people will tag your contributions with a CN template or even remove them. @Melbguy05 That's my opinion on this; ping me if you have further issues. — MaxnaCarta  ( 💬 • 📝 ) 00:48, 10 July 2023 (UTC)

Maxna I respectfully disagree with the notion that BRD needs a source as it’s a fact that’s about as well known as water being wet. If another editor wants to add one though of course I wouldn’t object.

Regarding primary sources, let’s have that discussion another time. I think the core issue of avoiding WP:OR has been avoided, which is always the attendant danger of primary sources. Jack4576 (talk) 00:57, 10 July 2023 (UTC)

I’m not removing the contributions. I’m also not telling you what to do as I’m not in authority over anyone. What I’m saying is that by following guidelines to the letter you’ll leave people less willing and able to challenge your contributions. — MaxnaCarta  ( 💬 • 📝 ) 09:04, 10 July 2023 (UTC)

Yes don’t worry I know I know.

I don’t follow guidelines ‘to the letter’ I read them in conjunction with the 5 pillars. People will always challenge regardless, and that’s their prerogative. Jack4576 (talk) 09:17, 10 July 2023 (UTC)

Appreciate you stepping in here Maxna, thank you Jack4576 (talk) 09:18, 10 July 2023 (UTC)