1. Introduction: The Enduring Significance of Briginshaw in Contemporary Civil Litigation
The Full Court's decision in Roberts-Smith v Fairfax Media Publications Pty Limited (Appeal) [2025] FCAFC 67 represents a watershed moment in the application of the standard of proof to grave civil allegations. This case provides essential guidance on how courts approach allegations of criminal conduct within civil proceedings, particularly where such allegations involve matters of profound public interest and severe reputational consequences.
The decision's significance extends beyond defamation law, offering critical insights into:
The practical application of s 140(2) of the Evidence Act 1995 (Cth)
The contemporary relevance of Briginshaw v Briginshaw (1938) 60 CLR 336
The interplay between the presumption of innocence and civil burden of proof
The assessment of evidence quality when determining serious allegations
This analysis examines how the Court navigated the delicate balance between maintaining the civil standard of proof whilst ensuring appropriate rigour when adjudicating allegations of war crimes—arguably among the most serious allegations possible in civil proceedings.
2. The Evolution of Legal Principles: From Briginshaw to Section 140
2.1 The Foundation: Briginshaw v Briginshaw
The High Court's decision in Briginshaw v Briginshaw (1938) 60 CLR 336 established the fundamental principle that whilst the civil standard remains the balance of probabilities, the degree of satisfaction required varies with the gravity of the allegation. Dixon J articulated this principle at 361-362:
"The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found... reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved."
This formulation introduced three critical considerations:
The seriousness of the allegation made
The inherent unlikelihood of an occurrence
The gravity of the consequences flowing from a finding
2.2 Subsequent Development
The principle evolved through several key decisions:
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449: The High Court confirmed that "clear, or cogent or strict proof is necessary where so serious a matter as fraud is to be found" (at 450). This decision emphasised that the quality of evidence, not merely its quantity, determines whether the requisite satisfaction is achieved.
Qantas Airways Limited v Gama (2008) 167 FCR 537: The Full Federal Court clarified that Briginshaw does not create a third standard of proof but rather informs the application of the existing civil standard (at [139]).
2.3 Statutory Codification: Section 140
The Evidence Act 1995 (Cth) codified these principles:
140 Civil proceedings: standard of proof
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence; and (b) the nature of the subject-matter of the proceeding; and (c) the gravity of the matters alleged.
This provision explicitly requires courts to consider the gravity of allegations when determining whether the balance of probabilities is satisfied, effectively incorporating the Briginshaw principle into statute.
3. The Roberts-Smith Litigation: Factual Matrix and Procedural History
3.1 The Parties and Claims
Appellant: Ben Roberts-Smith VC, MG, a decorated former member of the Special Air Service Regiment (SASR), recipient of the Victoria Cross and Medal for Gallantry.
Respondents: Fairfax Media Publications Pty Limited, The Age Company Pty Ltd, The Sydney Morning Herald, and journalists Nick McKenzie, Chris Masters, and David Wroe.
3.2 The Publications and Imputations
The proceedings arose from articles published in June 2018 alleging various acts of misconduct during the appellant's service in Afghanistan. The defamatory imputations, as found by the primary judge, included that the appellant:
Whiskey 108 (2009): Murdered an unarmed Afghan civilian by kicking him off a cliff and procuring soldiers to shoot him (J[5])
Darwan (2012): Murdered an unarmed Afghan by machine gun fire (J[6])
Chinartu (2012): Committed murder by pressuring a subordinate soldier to execute an elderly, unarmed Afghan (J[7])
Engaged in domestic violence against his mistress (J[8])
Bullied and threatened fellow soldiers (J[9])
3.3 The Defence of Truth
The respondents pleaded substantial truth under s 25 of the Defamation Act 2005 (NSW), contending that the imputations conveyed by the articles were substantially true (J[1]). This defence required them to prove, on the balance of probabilities, that the appellant had committed the alleged acts.
3.4 The Primary Judgment
Following a 110-day trial involving 44 witnesses (J[32]), Besanko J delivered judgment on 1 June 2023. His Honour found:
The articles conveyed defamatory imputations about the appellant
The defence of substantial truth succeeded for the murder allegations at Whiskey 108, Darwan, and Chinartu
The defence failed for certain other imputations, including allegations concerning missions at Fasil and allegations of domestic violence
Critically, the primary judge made express findings that:
At Whiskey 108: EKIA56 was executed by Person 4 on the appellant's direction, and EKIA57 was murdered by the appellant with machine gun fire (J[5])
At Darwan: The appellant murdered Ali Jan with machine gun fire (J[6])
At Chinartu: The appellant directed Person 4 to execute an elderly, unarmed Afghan (J[7])
3.5 The Appeal
The appellant advanced 41 grounds of appeal (J[13]), including challenges to:
The application of s 140 and Briginshaw principles (Ground 19)
Specific factual findings regarding each incident
The primary judge's assessment of witness credibility
The admission and use of tendency evidence
4. The Court's Analysis: Applying Briginshaw in Practice
4.1 The Standard Articulated
The Full Court (Allsop CJ, Besanko and Lee JJ) began by reaffirming fundamental principles:
The standard remains civil: Despite the criminal nature of the allegations, "the standard of proof is the balance of probabilities, not the criminal standard" (J[16])
No intermediate standard exists: There is "no shifting standard of proof" or "third standard" between civil and criminal (J[17])
Quality of evidence varies: The Briginshaw principle affects "the strength or cogency of the evidence necessary to establish a fact on the balance of probabilities" (J[18])
4.2 The Primary Judge's Approach
The Court found that Besanko J had correctly applied these principles:
"The primary judge discussed the law at some length... He repeatedly reminded himself of those principles. We are satisfied that the primary judge was acutely conscious of the seriousness of the findings the respondents called upon him to make and of the necessity that he be reasonably satisfied that the imputations were substantially true without resorting to inexact proofs, indefinite testimony or indirect inferences." (J[23])
4.3 Practical Application to Evidence
The Court identified several examples demonstrating the primary judge's rigorous approach:
Fasil Mission: Despite evidence from an SASR member about misconduct, the primary judge declined to find this imputation true because identification evidence was not "sufficiently clear and cogent" (J[24]-[25])
Person 17 Assault: Evidence of an alleged assault was rejected as insufficiently reliable given the gravity of the allegation (J[26])
Reliance on Eyewitness Testimony: Where findings were made, they were "largely relied on eyewitness accounts" rather than inference or speculation (J[23])
4.4 The Presumption of Innocence
The Court addressed the appellant's argument regarding the presumption of innocence:
The presumption operates as a factor influencing the required cogency of evidence (J[19])
The primary judge explicitly considered this presumption (J[23], citing J[114] of the primary judgment)
The presumption does not create a different standard but informs the assessment of whether evidence is sufficiently cogent
4.5 Credibility Findings and Appellate Restraint
The Court emphasised the "natural limitations" on appellate review of credibility findings (J[32]), particularly where:
The trial extended over 110 days
The primary judge observed 44 witnesses
Credibility assessments were central to the factual findings
The appellant's credibility was comprehensively rejected
5. Quantification and Assessment: The Judicial Calculus
5.1 The Nature of Assessment
The assessment required under s 140 and Briginshaw is not mathematical but qualitative. The Court explicitly noted that the primary judge "did not engage in any mechanical comparison of probabilities divorced from a belief in the occurrence or existence of the matters in dispute" (J[24]).
5.2 Factors in the Assessment Matrix
The following factors influence the required cogency of evidence:
A. Intrinsic Factors
Gravity of Allegation: Murder allegations require the highest degree of cogency
Consequences: Reputational destruction, criminal investigation, loss of honours
Inherent Probability: Courts must consider whether the alleged conduct is inherently unlikely
B. Evidence Quality Indicators
Directness: Eyewitness testimony preferred over circumstantial evidence
Consistency: Internal consistency and consistency with objective facts
Corroboration: Multiple independent sources strengthening the evidence
Contemporaneity: Evidence closer in time to events generally more reliable
Credibility: Honesty and reliability of witnesses
C. Contextual Considerations
Documentary Support: Contemporaneous documents enhancing reliability
Motive to Fabricate: Absence of apparent bias or interest
Opportunity to Observe: Witness proximity and capacity to perceive events
5.3 The Sliding Scale in Practice
The required cogency operates on a sliding scale that increases with the severity of the allegation. Understanding this progression helps practitioners calibrate their evidence gathering and assessment strategies.
At the lower end of the spectrum, minor civil wrongs require only standard civil evidence meeting the basic balance of probabilities test. These might include simple contractual breaches or minor negligence claims where no serious moral culpability is alleged.
Moving up the scale, professional misconduct allegations demand clear and convincing evidence. In the Roberts-Smith case, the bullying allegations against fellow soldiers fell into this category. The evidence needed to be more than merely probable; it needed to be clear and persuasive given the professional consequences such findings would entail.
Fraud and dishonesty allegations require clear, cogent, and strict proof. This elevated standard reflects both the moral opprobrium attached to findings of dishonesty and the severe consequences for professional and personal reputation. In Roberts-Smith, allegations that the appellant gave false evidence to investigations would fall within this category, demanding evidence of particularly high quality.
At the apex of the scale, criminal conduct allegations—particularly serious crimes—require highly cogent and compelling evidence. The murder allegations in Roberts-Smith exemplified this highest category. The evidence needed to be of such quality that it could produce reasonable satisfaction despite the inherent improbability of a decorated soldier committing war crimes and the devastating consequences of such findings.
5.4 Practical Application in Roberts-Smith
The Court's analysis reveals how this assessment operated:
Multiple Witnesses: The murder findings relied on testimony from multiple SASR members who were present at the incidents
Consistency on Core Facts: Whilst witnesses differed on peripheral details, their accounts were consistent on central allegations
Absence of Contamination: The primary judge considered but rejected arguments of collusion or contamination
Credibility Differential: The comprehensive rejection of the appellant's credibility contrasted with acceptance of key prosecution witnesses
6. Worked Example: Practical Application in Commercial Fraud Litigation
Consider a civil claim where Company B alleges Company A engaged in systematic fraud through financial statement manipulation, causing $50 million in losses.
6.1 Company B's Perspective (Plaintiff/Alleging Party)
Strategic Considerations:
Fraud carries severe reputational consequences requiring cogent evidence
Must overcome inherent improbability of established company committing fraud
Need evidence of both falsity and intention
Evidence Assembly:
Documentary Foundation
Forensic accounting analysis showing systematic discrepancies
Email communications indicating knowledge of falsity
Board minutes revealing awareness of issues
Whistleblower statements with contemporaneous notes
Witness Evidence
Former CFO willing to testify about pressure to manipulate figures
Independent auditor identifying red flags ignored by management
Multiple employees corroborating culture of deception
Pattern Evidence
Demonstration of repeated conduct over multiple reporting periods
Evidence of cover-up attempts when questions arose
Correlation between misstatements and executive bonuses
Argument Structure:
"Whilst we acknowledge fraud is a serious allegation requiring cogent proof, the evidence surpasses this threshold. We present not mere suspicion but a compelling mosaic: forensic analysis revealing systematic manipulation, contemporaneous documents showing intent, and consistent testimony from multiple independent witnesses. This is not inexact proof or indefinite testimony—it is clear, cogent evidence establishing deliberate deception."
Key Submissions on Standard:
Acknowledge the Briginshaw requirement explicitly
Demonstrate how evidence meets the "clear and cogent" threshold
Address each element of fraud with specific, compelling evidence
Emphasise multiple independent sources of verification
6.2 Company A's Perspective (Defendant/Responding Party)
Strategic Considerations:
Emphasise gravity of fraud allegation and required proof standard
Challenge evidence quality rather than quantity
Provide innocent explanations for suspicious circumstances
Defensive Evidence:
Alternative Explanations
Expert evidence on accounting judgment legitimacy
Industry practice evidence supporting interpretations
Documentation of good faith decision-making processes
Credibility Challenges
Motivation of whistleblowers (dismissed employees)
Inconsistencies in witness accounts
Lack of contemporaneous complaint
Systemic Defences
Robust internal controls and audit processes
Clean regulatory history
Professional advice supporting accounting treatments
Argument Structure:
"The plaintiff bears the burden of proving fraud—an allegation of utmost gravity requiring the clearest and most cogent evidence. What they present falls materially short: disgruntled former employees with axes to grind, accounting disagreements recharacterised as deception, and a presumption of guilt from legitimate business difficulties. The evidence lacks the clarity, cogency and compelling nature required by Briginshaw for such devastating allegations."
Key Submissions on Standard:
Emphasise that suspicion, however grave, is insufficient
Highlight gaps, inconsistencies and alternative explanations
Invoke presumption of innocence as interpretive principle
Demonstrate failure to meet Briginshaw threshold
7. Practitioner's Guide: Step-by-Step Approach
7.1 Initial Case Assessment
Step 1: Categorise the Allegations
Identify all serious allegations (criminal conduct, fraud, professional misconduct)
Assess reputational and legal consequences of adverse findings
Determine applicable Briginshaw considerations
Step 2: Evidence Audit
Catalogue available evidence by type and quality
Assess cogency against Briginshaw requirements
Identify evidence gaps requiring attention
Step 3: Strategic Planning
Determine whether evidence meets required threshold
Identify additional evidence needed
Consider alternative causes of action with lower thresholds
7.2 Pleading Considerations
For Plaintiffs:
Plead serious allegations with precision and particularity
Ensure factual foundation for each element
Consider whether lesser allegations might achieve client objectives
For Defendants:
Challenge adequacy of particulars for serious allegations
Reserve position on standard of proof arguments
Consider strategic admissions on less serious matters
7.3 Evidence Gathering Phase
Documentary Evidence:
Prioritise contemporaneous documents
Seek corroborating documentation
Preserve metadata and chain of custody
Witness Evidence:
Identify witnesses with direct knowledge
Assess credibility and potential bias
Obtain signed statements early
Consider expert evidence on industry standards
Strategic Considerations:
Focus resources on evidence meeting cogency requirements
Consider cost-benefit of pursuing marginal evidence
Maintain evidence integrity throughout process
7.4 Pre-Trial Preparation
Witness Preparation:
Explain significance of serious allegations
Emphasise importance of clarity and precision
Address potential credibility challenges
Prepare for rigorous cross-examination
Expert Evidence:
Ensure experts understand Briginshaw requirements
Focus opinions on clear, demonstrable conclusions
Avoid speculation or equivocation
7.5 Trial Strategy
Opening Submissions:
Address standard of proof explicitly
Preview evidence meeting Briginshaw requirements
Frame case theory consistent with required cogency
Evidence Presentation:
Lead with strongest, most direct evidence
Build corroboration systematically
Address credibility proactively
Cross-Examination:
Target evidence quality, not just contradictions
Explore bias and motivation
Test reliability of observations
Highlight absence of corroboration
Closing Submissions:
Synthesise evidence against Briginshaw standard
Address each serious allegation systematically
Emphasise cumulative effect of cogent evidence (if plaintiff)
Highlight evidential deficiencies (if defendant)
8. Evidence and Arguments: Detailed Strategic Analysis
8.1 For Parties Making Serious Allegations
Essential Evidence Components:
Primary Evidence
Direct witness testimony from participants
Contemporaneous documents showing intent
Admissions or inconsistent statements
Expert analysis of objective facts
Corroborative Evidence
Multiple independent witnesses
Documentary trails supporting testimony
Circumstantial evidence forming coherent pattern
Post-incident conduct suggesting guilt
Credibility Enhancement
Evidence of witness independence
Absence of motive to fabricate
Consistency with objective facts
Prior consistent statements
Argument Framework:
Acknowledge gravity of allegations upfront
Demonstrate evidence exceeds Briginshaw threshold
Address each element with specific, cogent proof
Emphasise multiple sources of verification
Distinguish from criminal standard whilst meeting civil requirements
8.2 For Parties Defending Serious Allegations
Defensive Evidence Strategy:
Direct Contradiction
Witness testimony refuting allegations
Documentary evidence disproving claims
Expert evidence challenging interpretations
Alibi or impossibility evidence
Credibility Attacks
Evidence of bias or motive
Prior inconsistent statements
Collusion or contamination
Memory reliability challenges
Alternative Narratives
Innocent explanations for suspicious facts
Industry practice evidence
Contextual evidence changing interpretation
Good character evidence (where admissible)
Argument Framework:
Emphasise exceptional gravity requiring exceptional proof
Systematically identify evidential deficiencies
Challenge quality, not just quantity of evidence
Invoke presumption of innocence
Demonstrate reasonable alternative explanations
9. Key Practice Points: Lessons from Roberts-Smith
9.1 For Litigation Strategy
Evidence Quality Paramount: Multiple weak sources cannot substitute for cogent proof
Credibility Crucial: Adverse credibility findings can be case-determinative
Details Matter: Minor inconsistencies in serious allegations can be fatal
Context Essential: Understanding operational/industry context affects assessment
9.2 For Evidence Management
Preserve Contemporaneous Records: These carry exceptional weight
Witness Statements Early: Memory degradation affects cogency
Expert Evidence Carefully: Must be clear and compelling, not equivocal
Corroboration Systematically: Build mutually reinforcing evidence
9.3 For Client Management
Realistic Assessment: Clients must understand heightened proof requirements
Cost Implications: Proving serious allegations requires substantial resources
Risk Analysis: Consider reputational damage even if successful
Alternative Strategies: Lesser allegations might achieve objectives
9.4 For Procedural Management
Pleadings Precision: Particulars crucial for serious allegations
Discovery Breadth: Cast wide net for corroborative evidence
Witness Management: Credibility preparation essential
Appeal Prospects: Credibility findings create high appellate barrier
10. Conclusion: The Enduring Relevance of Principled Analysis
Roberts-Smith v Fairfax Media Publications Pty Limited (Appeal) demonstrates that the Briginshaw principle remains vital in contemporary litigation. The decision confirms that courts can and will make findings of the most serious nature in civil proceedings where evidence meets the required standard of cogency.
The case establishes several enduring principles:
No Sliding Scale of Standards: The civil standard remains constant; only evidence quality requirements vary
Gravity Demands Cogency: The more serious the allegation, the more compelling the evidence must be
Judicial Method Matters: Courts must explicitly consider gravity when assessing evidence
Credibility is Central: In serious matters, credibility findings often determine outcomes
Appellate Deference Applies: Factual findings based on credibility assessment face high appellate barriers
For practitioners, Roberts-Smith provides both cautionary lessons and practical guidance. Those making serious allegations must assemble evidence of exceptional quality, whilst those defending such allegations can invoke Briginshaw to challenge evidential sufficiency.
Ultimately, the decision reaffirms that civil justice can address the most serious allegations whilst maintaining principled distinctions between civil and criminal standards. The Briginshaw principle, now embodied in s 140 of the Evidence Act, ensures that grave allegations receive appropriately rigorous scrutiny without abandoning the fundamental civil standard of proof.
This balance—between accessibility of civil justice and protection against unfounded serious allegations—remains essential to the integrity of our civil justice system. Roberts-Smith demonstrates that this balance, whilst delicate, can be maintained through rigorous judicial method and careful attention to evidence quality.
Note: This analysis is based on the reported decision and is intended for educational and professional development purposes. Practitioners should consult primary sources and seek specific advice for particular matters.