probable.
657
Thus the minimum finishing point is 51% on the initiator’s scale,
which is also 49% on the responder’s scale. This means that the responder
wins the case if the prove their case to a minimum standard of 50%.
Defences
A defendant must prove a defence on the same standard as the initiator, proof
on the preponderance of evidence, the preponderance of probabilities or the
balance of probability. This constitutes proof to 51% on the responder’s
scale, which is also 49% on the initiator’s scale. This means that the initiator
rebuts a defence if they prove their rebuttal to a standard of 50%.
Diagram
To conclude this account the text summarises the rules for proving civil cases
with brief comments and diagrams.
Proof of the Initiator’s Case:
There are two rules:
(1)
Starting Point. The needle starts at 0% on the initiator’s scale and 100%
on the responder’s scale.
(2)
Finishing Point.
(i)
Initiator Wins. The needle must finish at least at 51% on the
initiator’s scale, which is also 49% on the responder’s scale.
(ii)
Responder Wins. The needle must finish at least at 50% on the
responder’s scale, which is also 50% on the initiator’s scale.
This can be represented in the following diagram:
Start
Finis
h
Finish
Initiator’s Scale
0%
50%
51%
60%
80%
100%
100
%
50%
49%
40%
20%
0%
Responder’s
Scale
Total
100%
100%
100%
100%
100%
100%
100%
Total
Figure 25.5 Proof of the Initiator’s Case in Civil Cases
Proof of a Defence
There are two rules:
(1)
Starting Point. The needle starts at 0% on the responder’s scale and
100% on the initiator’s scale.
657
See, for example, Re Winship 397 US 358 (1970), 371–372 (Harlan J); Bradshaw
v McEwans (unreported, High Court of Australia, Dixon, Williams, Webb,
Fullager and Kitto JJ, 27 April 1951), quoted in Holloway v McFeeters (1956) 94 CLR
470, 480–1 (Williams, Webb and Taylor JJ); Davies v Taylor [1974] AC 207, 219 (Lord
Simon).
 |
 |
 |