Burden of Proof

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Burden of Proof

ACSL welcomes The Hon. Duncan Kerr, Former Federal Judge, and Dr Pat Mullins, Partner at Mullins Lawyers, to discuss balance of probabilities and moral certainty.

Recorded on 25 October 2024
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The Hon. Kerr was a Judge of the Federal Court of Australia from 2012 to February 2022. He served as President of the Administrative Appeals Tribunal concurrently from 2012 to 2017. Prior to his appointment to the Federal Court of Australia he practised as a barrister specialising in public law, constitutional and administrative law, refugee and human rights law and appellate work.

Dr Mullins is a Partner at Mullins Lawyers, he is Australia's only canon lawyer who simultaneously practices as a common lawyer. Pat has an understanding of the Church which equips him to act for Roman Catholic authorities in matters involving both common law and canon law. Pat’s recently awarded doctorate from the Faculty of Canon Law at KU Leuven in Belgium demonstrates his continuing commitment to active engagement as a layperson in the Church.
Within the professional standards and safeguarding spaces investigations are undertaken to determine whether an allegation(s) are substantiated or not. In the Catholic Church allegations are often required to be considered against two different burden's of proof:
  • The civil burden of proof, being the 'balance of probabilities', and
  • The canonical burden of proof, being 'moral certainty'.

These two burden's of proof can cause challenges for those in this space, particularly given the differing regulatory requirements (and recommendation of the Royal Commission) and the canonical requirements to impose any canonical sanctions.
This session focuses on the definitions and applications of both 'balance of probabilities' and 'moral certainty', and open discussions around how these two principles operate and coexists.