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The overwhelming majority of our decisions are based not on demonstrable certainties but on an estimate of probabilities. Judges, for instance, often remind juries that they should find the prisoner guilty if his guilt has been established “beyond all reasonable doubt” and they distinguish between “beyond all reasonable doubt” and “beyond all possible doubt.” If, for instance, Ned Kelly is stopped by a policeman within a hundred yards of a house, subsequently proved to have been burgled, and if Kelly’s bag contains jewellery subsequently identified as the jewellery missing from the burgled house, the prosecution would not be expected to demonstrate the physical and logical impossibility of Kelly’s defence that the bag had been dropped by the real burglar, who had taken fright and run, and that Kelly had picked it up with a view to taking it to the nearest police station. Kelly would be convicted in spite of the fact that no coercive disproof of his story was possible. He would be convicted because on the balance of probabilities the case for the prosecution was incomparably more plausible than the case for the defence.

Arnold Lunn

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