This is a simple but important question.
Where to Begin?
Judge Malcolm Simmons explained that the starting point is to determine what facts are agreed. Agreed facts form the basis from which to establish the truth between conflicting events. Agreed facts will assist the judge by establishing the margin of dispute and the materiality of the evidence.
Assertions of fact are not evidence unless admitted or supported by evidence.
Inferences of fact may properly be drawn from findings of fact. For example, the absence, without proper explanation, of a document usually available to a party to prove a contested matter would create a legitimate adverse inference.
How to Assess Facts and Evidence
When assessing facts or evidence that are in dispute Judge Malcolm Simmons said that most judges will consider the following:
1. Is there contemporaneous documentary evidence available (the provenance or reliability of which is not in issue) that is of assistance?
2. Is there primary evidence of witnesses of fact?
3. Is the documentary evidence consistent with the documentary evidence?
4. If the two are not consistent which is to be preferred and why?
5. Is there secondary evidence available that is consistent with the primary evidence?
6. Is there secondary evidence to which the court might attach some weight?
7. Is the intended finding consistent with undisputed findings or agreed facts?
8. Is the cumulative result correct?
The judge will adopt the same process when considering other disputed facts.
Judge Malcolm Simmons’ training Experience
Judge Malcolm Simmons has over 18 years experience training judges and prosecutors and has presented seminars on judicial reasoning to judges around the world.