The civil standard of proof and the "test" in Briginshaw: Is there a neurobiological basis to being "comfortably satisfied"?
Hayley Bennett and G A (Tony) Broe
(2012) 86(4) The Australian Law Journal 258-276
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The High Court decision of Briginshaw v Briginshaw (1938) 60 CLR 336 is understood to lay down certain principles in relation to the civil standard of proof, that is, that the facts in issue must be proved to the satisfaction of the decision maker on the balance of probabilities. One of those principles relates to the state of mind of the decision maker and to the nature and quality of the decision-making process leading to the obtaining of the requisite satisfaction. In Briginshaw, the judges held that, in cases where serious and grave allegations had been made, a "reasonable satisfaction" of mind will not be achieved unless the decision maker "feels an actual persuasion", feels "comfortably satisfied", and is not "oppressed" with reasonable doubt. With this, the judges have suggested that what a judge feels and somatically experiences contributes to, and in fact may be decisive of, the decision-making outcome. These judicial insights from 1938 are intriguing from a neurobiological perspectives, given what is currently known about this participation of mental processes and somatic sensations in decision making. This article will review the decision in Briginshaw and the principles discussed therein. In particular however, the aim is to examine the decision-making processes described by the judges in order to determine whether the processes outlines are consistent with what is scientifically known today about decision-making processes and their neurobiological underpinnings.