The judge merely has to decide whether, as between two competing parties, the party that is advancing a case has discharged the evidential and legal burden upon him if he is to win.
A criminal trial is like a jigsaw. A judge has to piece together the story and attempt, on the basis of all evidence available produced in court, to piece together the story and reach a sound factual conclusion.
The following is an extract from a presentation given by Judge Malcolm Simmons in Belgrade, Serbia in 2018.
“An extremely interesting and enlightening presentation” — District Court Judge
The judge will be faced with subjectivity, chance, perjury, a risk of bias, the danger of false impression, the honest witness who might be frightened or irascible; the false witness who appears credible; the honest but mistaken witness; deal with dead or missing witnesses, missing or destroyed documents.
Article 6 of the ECHR requires the court to give reasons for their rulings and judgments to demonstrate that a fair hearing has been conducted before an independent and impartial tribunal. Hearings should be conducted in public and reasoned decisions given.
Judges assess the credibility and reliability of evidence by asking how probable an account is in light of agreed facts or uncontentious evidence, of contemporary documents and of the evidence of independent witnesses whose impartiality is not in question.
At the outset of the decision-making process the judge must have in mind facts that are agreed and those that are significantly in dispute. The judge must be able to formulate a sufficiently detailed reason for preferring one witness to another.