the facts is true. The point to this is to determine in Step 3 whether the
prosecution or the plaintiff has made out their case.
#
Step 3 Standard of Truth. Having determined as best it can the
probability that each version of the facts is true, the court has to face the final
question: has the prosecution or plaintiff established their case according to
the required degree or standard of probability, called the standard or proof, as
stipulated by the applicable rules? At common law, the standard of proof for a
criminal prosecution is proof beyond reasonable doubt while the standard in
civil matters is proof on the balance of probabilities.
Transactions
Establishing facts in a transaction is generally much simpler than doing so in
litigation. In a transaction, it is normally not necessary to prove past facts as
happens with litigation, but instead to create facts in present time by following
stipulated processes. In the model, Processes 1-n are the processes that will
create Facts 1-n.
To furnish an example, frequently a process will require a party to fill in and
possibly sign some form. To comply with this requirement, the party either
composes the form in the stipulated way, or they obtain a template for it, fill in
the required details and sign the completed form. To emphasise the point,
these processes are usually within the complete control of the party, so that a
successful outcome for a transaction is commonly assured.
Interpreting Law
An issue of law can arise in the legal rule that creates the cause of action (or
the transaction) or in legal rule performing ancillary or adjectival functions in
relation to the matter. The most obvious examples of these are disputes over
the interpretation of rules concerning jurisdiction or procedure.
An issue of law can be framed by reference to the model for litigation.
543
It is
resolved by the model for interpreting law, which is part of the model for
forming law. This has already been discussed.
544
Exercising Discretions
A legal rule may authorise a court (or a tribunal or an official) to exercise a
discretion where they
choose between two or more options for making a
decision.
545
543
Chapter 18 Model for Litigation
544
Chapters 4-16
545
Chapter 26 Model for Exercising Discretions
 |
 |
 |