'The word 'rationally' is significant in this context. In order to establish relevance, it is necessary to point to a process of reasoning by which the information in question could affect the jury's assessment of the probability of the existence of a fact in issue at the trial.'
[24] Whether an inference is reasonably open, in the sense of being logically available, involves an evaluative judgment, which is to be assessed by the court exercising appellate or supervisory jurisdiction.
102 In respect of inferences drawn from facts as found, the position is as described by Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356; [1990] HCA 33:
… at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference — in other words, the particular inference is reasonably open — even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place. (Emphasis in original.)
103 The applicant does not otherwise contend that any of the Commission's ultimate decisions could be characterised as illogical or irrational (other than by ground of review 12). Nor does she contend that in determining the facts, by way of primary findings and the drawing of inferences, the Commission's reasoning process was flawed as illogical or irrational (cf the discussion in D'Amore at [227]–[231]).
104 Accordingly, the findings addressed below on the "no evidence" ground are:
- that Ms Berejiklian had a private interest in, and was influenced by a desire of, maintaining or advancing her close personal relationship with Mr Maguire; and
- that Ms Berejiklian engaged in partial conduct influenced by the existence of that relationship, and did so for her own private benefit, which she deliberately preferred over her public duty.
The respective arguments
105 It is not contested that the applicant and Mr Maguire were in a "close personal relationship". However, it is said that evidence beyond the mere existence of the relationship was required to support the "grave" finding that the applicant's exercise of public functions was influenced by that relationship, or a desire to maintain or advance it. The applicant asserts that there is no such evidence.
106 It is submitted that only the presence of an "existential threat" to the relationship could "logically" justify a finding that the applicant was influenced by a desire to "maintain" that relationship. Such a broad statement as to likely human behaviour cannot be accepted as true. As a matter of common sense and experience, people in personal relationships act towards each other for all manner of reasons, including because what they do might be well-received by, or please, the other party, and in that respect be
