whether or not the tribunal of fact could be satisfied of the fact alleged (at 347 per Latham CJ; 350 per Rich J; 353 per Starke J; and 372 per McTiernan J).
103 None of this is inconsistent with what I said in Kumova v Davison (No 2) (at [262]), where I noted "the focus on the gravity of the finding is linked to the notion that the Court takes into account the inherent unlikelihood of alleged misconduct". They are linked in that both the inherent unlikelihood of the alleged occurrence and the gravity of the consequences each require consideration.
104 An allegation of rape ranks high in the calendar of criminal conduct, and, at the risk of repetition, the allegation needs to be approached with "much care and caution" and with "weight being given to the presumption of innocence and exactness of proof expected": Briginshaw (at 347 per Latham CJ; 363 per Dixon J). Further, a finding of rape would, needless to say, be seriously damaging to Mr Lehrmann's reputation and this consequence properly gives one pause before making it: Ashby v Slipper [2014] FCAFC 15; (2014) 219 FCR 322 (at 345–346 [68]–[69] per Mansfield and Gilmour JJ).
E.3The Practical Difference Between the Civil and Criminal Standard
105 Although I will explain below why the allegations to be proved in making out the truth defence and the allegations to be made out by the Crown in the criminal proceeding are not identical, this is an example where the same essential wrongdoing is to be assessed by reference to both the criminal and the civil standard. Such cases are not common, and they bring into sharp focus cardinal aspects of our legal system.
106 Most first-year law students are introduced to the possibility of error of wrongful convictions and erroneous acquittals. They are (or at least were) made aware of what is often referred to as "Blackstone's ratio", being the fourth of five discussions of policy by Sir William Blackstone in his 1765 treatise Commentaries on the Laws of England, vol IV, ch 27 (Oxford University Press, 2016) (at 352) that "all presumptive evidence of felony should be admitted cautiously: for the law holds, that it is better that ten guilty persons escape, than that one innocent suffer". I digress to note that this notion is ancient: the idea it is better to allow some guilty to escape rather than punish an innocent has Biblical origins (Genesis, 18:23–32) and later was the subject of discussion by Talmudic scholars (see Maimonides, The Commandments, Commandment No 290 (Charles B. Chavel, trans. 1967) (at 270)). Indeed, sixteen years before Blackstone, the concept had been expressed by Voltaire – albeit in a
