From time to time I come across a quote that expresses a point perfectly, but I know it will never see the light of day again. Even though it is a High Court decision, it’s a throwaway remark from a dissenting judge which does nothing but re-state the existing law.
This is the case with the following statement from AK v The State of Western Australia  HCA 8 in the joint judgment of Gleeson CJ and Keiffel J:
Circumstantial evidence is sometimes spoken of as though it were inherently less compelling than direct testimony. Often, especially in identification cases, the truth is the opposite. Undisputed objective circumstances may be more reliable than direct testimony.
In the criminal jurisdiction in particular, we always hunger for an eyewitness. We love to hear a vivid description of events from someone who was there – or watch that same account being cut to ribbons in skilled cross-examination. It makes for a more exciting spectacle than, say, the methodical presentation of phone records.
But it is not always more probative.
The case of Hathaway v The State of NSW is a perfect example. The case, which was a civil suit, essentially boiled down to the conflicting stories of two men. One must have been lying; the other telling the truth. Each had every reason to lie. Both men had been charged with assaulting the other and given evidence against the other at trial. Both had been acquitted as the matter against them had been not proven beyond reasonable doubt. As one of the men was a police officer, both had also given evidence at a Police Integrity Commission inquiry.
On a civil action, a judge sitting alone doesn’t have the luxury of retreating into reasonable doubt. She or he has to make a finding on the balance of probabilities, and unlike a jury is required to state the lawful, logical process used to arrive at their conclusion. Some presumptions will run the plaintiff’s way, others in the defendant’s. The judge is required to make findings that they know will greatly displease one of the parties, and potentially have far-reaching consequences.
Faced with the only relevant witnesses having given and re-given their evidence a number of times, Simpson J was obliged to discard virtually any inference that could be drawn from the presentation of their evidence. Instead, she turned her attention to the objective, undeniable facts of the case and systematically drew from them what inferences she could.
If you have the time, I highly recommend the case. The way it is told makes it a page-turner. While the conclusions Simpson J reaches are uncomfortable, it would be hard to argue that she did not make the correct decision.