Grounds 1 and 2
27 By Grounds 1 and 2 the applicant contends that the Tribunal misapplied the analysis explained in Deledio. This contention was put primarily on the basis that the Tribunal conflated the analytical tasks required in the staged approach mandated in Deledio. In particular, the applicant contends that the Tribunal engaged in an assessment of the evidentiary support for the hypothesis at the third stage, thereby impermissibly accelerating that consideration to the third stage. The applicant contends that the effect of accelerating the evidentiary assessment to stage 3 was to deprive him of the benefit of the negative onus in accordance with s 120(1) of the VE Act at stage 4 of the analysis.
28 The applicant provided examples of the Tribunal impermissibly accelerating the evidentiary analysis to stage 3. These included:
(1) The Tribunal's statement at [70] that the historical materials "do not point to him being put in a life threatening situation", and by placing "more weight on the stronger objective evidence contained within the historical documents". These findings were said to constitute an impermissible weighing of the historical material against the oral evidence of the applicant.
(2) The Tribunal's application at [71] of the judgment of Tamberlin J in Borrett v Repatriation Commission [2000] FCA 1829, where the Tribunal stated that "[t]he evidence does not point to [the applicant's] war service as an operative cause of his excessive drinking, nor does it 'forcefully point to a conclusion of a connection'" (emphasis in original). The applicant contends that the Tribunal misapplied what was said in Borrett, and in particular that the above underlined passage taken from Borrett at [35] was said in connection with the analysis in stage 4.
(3) The Tribunal's conclusion at [73], as extracted above, that "[t]he whole of the material before me does not point to a discernible pattern of increased alcohol consumption" was characterised as a rejection of the applicant's evidence before the Tribunal, or the impermissible assessment of its weight having regard to other evidence, for example the applicant's consumption questionnaire, during stage 3.
29 The respondent submitted that the Tribunal had not impermissibly engaged in a weighing exercise in stage 3, but had rather examined the 'causal link' between the operational service and the cirrhosis. The respondent contended this analysis was both permissible and required in stage 3 in order to determine whether the hypothesis was reasonable.
30 The respondent relied upon what was said in Collins v Administrative Appeals Tribunal (2007) 163 FCR 35; FCAFC 111; 46 AAR 56; 96 ALD 536 by Allsop J (as His Honour then was) at [48]:
(a) The Tribunal must consider the whole of the material before it: s 120(3).
(b) The Tribunal is to form an opinion whether the material raises a reasonable hypothesis connecting the injury, disease or death with the circumstances of service: s 120(3).
(c) The formation of that opinion involves consideration as to whether a relevant SoP upholds the hypothesis: s 120A(3).
(d) At the stage of formation of the opinion in (b), involving the consideration in (c), no question of fact finding arises: Deledio 83 FCR at 97.
(e) The formation of the opinion involves the reaching of a factual conclusion: Bull [v Repatriation Commission [2001] FCR 1832; 188 ALR 756] at 760-62 [17] to [25] and involves the assessment of all the material before the Tribunal, but not the finding of facts or rejecting material: Bull 188 ALR at 761 [22].
31 The respondent emphasised that although the task of assessment of the reasonableness of a hypothesis does not involve fact finding, it "necessarily involves some level of factual assessment" (citing Forrester v Repatriation Commission [2013] FCA 898 at [29] per Mortimer J).
32 The respondent submitted that the Tribunal's assessment of the applicant's case was an example of this testing reasonableness, not weighing evidence. The respondent's written submissions state that the Tribunal's statement at [70] "does not indicate that the Tribunal rejected the Applicant's evidence. Rather, the Tribunal considered the Applicant's evidence in the context of the evidence as a whole. That was a necessary part of the task of determining whether the evidence as a whole "raised" the hypothesis advanced by the Applicant." Hence, it is said, this did not involve findings of fact.
33 The respondent put similar submissions in relation to the Tribunal's reasoning in paragraphs [71] and [73], contending that the reasoning entailed a permissible assessment of the connection between the injury and the operational service, to assess the reasonableness of that hypothetical.
34 The question of whether there is a reasonable hypothesis for the purpose of s 120(3) is a question of fact. However, in reaching a conclusion about whether the material establishes a reasonable hypothesis, the Tribunal is not permitted to make antecedent findings of fact in the sense of making findings about a particular matter: East v Repatriation Commission (1987) FCR 517; Dixon v Repatriation Commission [1999] FCA 582; Bull v Repatriation Commission [2001] FCA 1832; Repatriation Commission v Patterson [2006] FCAFC 165; (2006) 94 ALD 66; Collins. The Tribunal must engage in a process of considering the whole of the material before it to ascertain whether it supports or points to the hypothesis, without finding that particular facts exist or not.
35 The applicant's hypothesis is that as a result of his operational service, his consumption of alcohol increased to a level that met the applicable Statement of Principles, and that this increase in consumption caused his cirrhosis. There was evidence before the Tribunal of each of the necessary factual elements required to support the hypothesis. Some of the evidence was contested, as set out above. However, it is not permissible at stage 3 of the Deledio analysis to determine disputed facts or to prefer one characterisation of the evidence to another.
36 In my view the Tribunal erred at stage 3 of the Deledio analysis by expressly making relevant factual findings based upon its assessment of the weight of the evidence before it at that stage of the analysis. In the written submissions on behalf of the applicant (at [18] and [19]) it was submitted:
At [71] the Tribunal found "[t]he evidence does not point to [the veteran's] war service as an operative cause of his excessive drinking, nor does it 'forcefully point to a conclusion of a connection." The italicised quotation was taken from Borrett v Repatriation Commission [2000] FCA 1829 at [35], a point in the judgment of Tamberlin J in which His Honour found that the Tribunal erred at step 4 of the Deledio process by failing to properly consider conflicting evidence when it came to making a determination on the question beyond reasonable doubt. The Tribunal's reliance on Tamberlin J's observation underscores its misunderstanding of its task at step 3 of the Deledio process which was to assess all the material before it but not to find facts or reject material. In finding that the evidence before it did not point to an increase in alcohol consumption in response to either general or specific stressors, the Tribunal necessarily rejected Mr Bailey's evidence that his rate of drinking increased considerably during the first tour as a result of stressors he experienced during his first tour and his anxiety about the threat from Indonesian aircraft and ships.
The foundation of the Tribunal's finding that the material did not point to increased alcohol consumption related to operational service was a rejection at [70] of Mr Bailey's evidence as to the nature of certain stressors and a rejection at [71] of his evidence of his increased drinking as a result of stressors experienced on the first tour. It is evident from its reasoning that the Tribunal rejected the hypothesis not on the facts raised by the material, but on the facts as found by the Tribunal.
37 The process of fact finding based upon a cogent assessment of the relative weight to be given to evidence before the trier of fact would not normally be a ground for complaint, much less amount to an analytical or legal error. On the contrary, analysis of the evidence and the weight to be given to aspects of the evidence relative to other evidence, tested and assessed against contextual or background facts is the essential craft of the primary trier of fact. It therefore seems incongruous to find error arising from the Tribunal undertaking that very task. However, the apparent incongruity evaporates once it is understood that the staged process mandated in Deledio is an astutely designed analytical guide to ensure that the ultimate question of whether the injury to the veteran was war-caused is not precipitated before giving the veteran the benefit of applying the beneficial standard in s 120(1) of the VE Act.
38 This section is often referred to as a 'reverse criminal onus'. That shorthand expression may be apt to a degree, but not entirely. The applicant does not bear an onus and neither does the respondent. And it is only the "reverse" of the criminal standard of proof in that the Tribunal is required to be satisfied of the negative, namely that the injury was not war caused. The requirement that the Tribunal be satisfied of that negative upon the criminal standard of proof beyond reasonable doubt requires the Tribunal to affirmatively determine at the fourth stage, assuming it reaches that point, that the injury was not war caused.
39 The significant benefit of s 120(1) to the veteran is demonstrated if it is compared to the position of a claimant in a civil case. The claimant must establish the claim albeit on the lesser civil standard. If the claimant's causation hypothesis fails then the claim fails, notwithstanding that the defendant's alternative causal hypothesis is also rejected. In Rhesa Shipping Co SA v Edmunds and Another: The Popi M [1985] 2 All ER 712 the ship owner's claim under policies of insurance for the total loss of their vessel, the Popi M, was rejected by the House of Lords because it had failed to prove that the vessel was lost due to a risk covered by the insurance. Lord Brandon of Oakbrook, with whom their Lordships unanimously agreed said (at 718):
My Lords, the late Sir Arthur Conan Doyle in his book The Sign of Four, describes his hero, Mr. Sherlock Holmes, as saying to the latter's friend, Dr Watson: "How often have I said to you that, when you have eliminated the impossible, whatever remains, however improbable, must be the truth?" It is, no doubt, on the basis of this well-known but unjudicial dictum that Bingham J decided to accept the shipowners' submarine theory, even though he regarded it, for seven cogent reasons, as extremely improbable.
In my view there are three reasons why it is inappropriate to apply the dictum of Mr Sherlock Holmes, to which I have just referred, to the process of fact-finding which a judge of first instance has to perform at the conclusion of a case of the kind here concerned.
The first reason is one which I have already sought to emphasise as being of great importance, namely, that the judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties. He has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden. No judge likes to decide cases on burden of proof if he can legitimately avoid having to do so. There are cases, however, in which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course for him to take.
The second reason is that the dictum can only apply when all relevant facts are known, so that all possible explanations, except a single extremely improbable one, can properly be eliminated. That state of affairs does not exist in the present case: to take but one example, the ship sank in such deep water that a diver's examination of the nature of the aperture, which might well have thrown light on its cause, could not be carried out.
The third reason is that the legal concept of proof of a case on a balance of probabilities must be applied with common sense. It requires a judge of first instance, before he finds that a particular event occurred, to be satisfied on the evidence that it is more likely to have occurred than not. If such a judge concludes, on a whole series of cogent grounds, that the occurrence of an event is extremely improbable, a finding by him that it is nevertheless more likely to have occurred than not, does not accord with common sense. This is especially so when it is open to the judge to say simply that the evidence leaves him in doubt whether the event occurred or not, and that the party on whom the burden of proving that the event occurred lies has therefore failed to discharge such burden.
In my opinion Bingham J adopted an erroneous approach to this case by regarding himself as compelled to choose between two theories, both of which he regarded as extremely improbable, or one of which he regarded as extremely improbable and the other of which he regarded as virtually impossible. He should have borne in mind, and considered carefully in his judgment, the third alternative which was open to him, namely, that the evidence left him in doubt as to the cause of the aperture in the ship's hull, and that, in these circumstances, the shipowners had failed to discharge the burden of proof which was on them.
If ever a case asked to be treated as coming within the dictum with regard to burden of proof of Scrutton LJ in Cia Compania Martiartu v Royal Exchange Assurance Corporation [1923] 1 KB 650 at 657, this was it. The shipowners failed to establish that the ship was seaworthy, and they only put forward an extremely improbable cause of her loss. In these circumstances the judge should have found that the true cause of the loss was in doubt, and that the shipowners had failed to discharge the burden of proof which was on them.
(emphasis added)
40 Unlike the usual civil claim, the Tribunal was required, if it reached the fourth stage, to eliminate war as a cause, not to the degree of finding it impossible as described by Mr Sherlock Holmes, but to the criminal standard of satisfaction beyond reasonable doubt. The third alternative referred to by Lord Brandon of finding that the party who bears the onus of proof has failed to discharge the onus is not open to the Tribunal, if stages 1, 2 and 3 are satisfied and if in stage 4 it is not able to conclude beyond reasonable doubt that the injury was not war caused. This is plainly intended to confer a significant evidentiary and forensic benefit upon a veteran in the proof of causation; quite literally the benefit of the doubt, save in cases where it may be concluded beyond reasonable doubt that there is no causal connection between the war service and the injury.
41 The Tribunal at [70] to [73] expressly adverted to conflicts in evidence. In finding that the hypothesis was unreasonable it implicitly resolved those conflicts against the applicant. In assessing at paragraph [70] whether the applicant's version of the stressors were present during his service in connection with the Indonesia-confrontation, the Tribunal implicitly rejected the applicant's evidence.
42 For the reasons discussed above, this was impermissible at the third stage. The Tribunal therefore erred in its consideration of the application, and the matter must be remitted to the Tribunal for reconsideration.