A Barrister's Blog

My curiosity was recently piqued by a 2018 article by Gaegler J called “Truth and justice, and sheep“. It is actually quite a serious article about the inter-relationship of truth and justice. So what have sheep got to do this topic? His Honour uses three sheep stories (he thought about calling them parables) as the basis for his discussion.

The first story is about a prosecution for sheep stealing, colloquially known as ‘sheep-duffing’, tried before a local jury in western Queensland. At the conclusion of the trial, the judge asked the jury the customary question, ‘How do you find the accused?’ The response of the jury, delivered through its foreman, was ‘Not guilty your Honour — provided he gives back the sheep’.

The second story came from an 1887 case in Michigan where a Mr Dunbar alleged that his 34 sheep had become mingled with a larger flock of sheep belonging to a Mr McGill. The trial judge directed the civil jury that the question was whether there was more evidence to show that 34 of the sheep were Dunbars than there was to show that they were not Dunbar’s. The appellate court said that was the wrong question with the correct one being: whether there was sufficient evidence to satisfy the jury that the (34) were Dunbar’s sheep.

The third story was about a partnership dispute between two Greek farmers (who were cousins). One cousin alleged that 227 sheep were a partnership asset and the other denied it. After 19 days of trial, McInerney J delivered a judgment in the following terms:

1. On the Plaintiff’s Claim, I am not satisfied to the civil standard of balance of probabilities that the sheep existed. Claim dismissed with costs.
2. On the Defendant’s Counterclaim, I am not satisfied to the civil standard of balance of probabilities that the sheep did not exist. Counterclaim dismissed with costs.

His Honour says that these stories show that:

• our concept of justice is reliant on our concept of truth;
• our concept of truth is not absolute but a matter of degree. Truth for us is relative; 
• true or untrue is proven or unproven; and
• proven or unproven is ultimately believed or not believed with the requisite degree of intensity.

There is also a very interesting discussion about fact finding and the development of the common law system of justice over the last 8 centuries. We’ve all heard of trial by ordeal but I didn’t know about trial by compurgation (you’ll have to google it or read the paper). Also as a fun fact I was surprised to find out that trial by battle was only abolished by statute in 1819 after the last gauntlet was thrown down the year before.

Creative commons acknowledgment for the photograph.