by Ganesh Sahathevan
Justice Mark Weinberg.
In deciding against George Pell in Pell v R Chief Justice Anne Ferguson and President Of The Court Of Appeal (Vic) Christopher Maxwell agreed that “it can be said with confidence that no advance in technology can ever replicate the unique features of jury deliberation and decision-making”.
While it is true that advances in machine learning and artificial intelligence are not yet able to fully replicate human reasoning, this does not mean that there are not means and methods which provide frameworks to rigorously analyse evidence and hence the reasonableness of any human decision.
The dissenting judgement by Mark Weinberg, the junior judge in the panel, continues to command attention and dominate discussion, and commentators (lay and expert) seem drawn by the fact that it is rigorous.
Weinberg has, in an informal sense, applied what has become known as the Dempster–Shafer theory or method to evaluating and combining data that is subject to disbelief.
It has been around for more than 50 years and has found application in a number of areas including oil and gas exploration (where this writer, among others has used to it to assess the presence of oil,gas and uranium) and importantly in legal reasoning, particularly evidence.
The Dempster Shafer method is one of many formal methods for evaluating evidence and lends itself readily to the analysis of the reasonableness of a decision.
Consequently while no one is suggesting that Ferguson CJ subject her decisions to some computer program or iPhone app, she is wrong in her refusal to accept an appeal based on the reasonableness (or lack thereof ) of a jury decision on the basis that, as she asserts," it can be said with confidence that no advance in technology can ever replicate the unique features of jury deliberation and decision-making”.
The days when judges could determine matters by reliance on the "in light of all of the facts and circumstances of this case" heuristic are long gone.