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Enquiry, we were not bound by strict rules of evidence. Throughout the Enquiry,
we sought to investigate carefully, diligently, patiently and thoroughly.
(ii) Approach to Conflicts in Evidence
1.14.
Conflicts and discrepancies in evidence are commonplace in
proceedings of a legal nature. This Commission of Enquiry was no different. In
dealing with conflicting evidence among witnesses, we adopted the approach
well-known to judges and adumbrated by
Harrison JA
in
R. v. Carletto
Linton, Omar Neil and Roger Reynolds (Cr.Appeals Nos.3, 4, 5 of 2000)
.
First, we sought to determine whether the discrepancy was major and went to
the root of an issue. If in our view it was not major, we did not pay it any
particular attention. Secondly, if we considered that the discrepancy was major,
we sought to find whether there was a satisfactory explanation for it. Thirdly,
where there was no or no credible explanation, we determined whether we could
accept the evidence of the witness on the point or at all.
(
iii) Standard of Proof Applied
1.15.
Notwithstanding the gravity of certain allegations made during the
Enquiry and the gravity of certain consequences, we applied the civil standard of
proof i.e. proof on a balance of probabilities, in finding facts. We were not
constituted as a Commission of Enquiry to try a case or charge a person with any
offence. Our ultimate purpose is to inform the Governor-General and the public
of the facts concerning the several matters which we were mandated to enquire
into.
1.16.
Our application of civil standard of proof to this Commission of
Enquiry is supported by the approach of other Commissions of Enquiry or
Tribunals in the Commonwealth Caribbean, as well as House of Lords authority in
Re: D [2008] 1 WLR 1499, Re: B [2008] 4 All ER 1and Lawlor v Tribunal
of Inquiry [2008] IEHC 282
.In accordance with the principles set out in