between the two in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 referring to Jones v Great Western Railway Co (1930) 144 LT 194 at 202 per Lord Macmillan; Carr v Baker (1936) 36 SR (NSW) 301 (Carr v Baker); and Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 at 169 per Lord Wright. Sir Frederick Jordan in Carr v Baker said (at 306):
The existence of a fact may be inferred from other facts when those facts make it reasonably probable that it exists; if they go no further than to show that it is possible that it may exist, then its existence does not go beyond mere conjecture. Conjecture may range from the barely possible to the quite possible.
170 I must bear in mind, of course, that in deciding what, if any, inferences should be drawn, proper regard must be had to the effect of s 140 of the Evidence Act as described above and other evidentiary principles that may be relevant in the particular circumstances such as those in Jones v Dunkel.
Demeanour of Witnesses
171 In Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 (Fox v Percy), Gleeson CJ, Gummow and Kirby JJ said the following (at [30]– [31]):
30 It is true, as McHugh J has pointed out, that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses. Thus, in 1924 Atkin LJ observed in Société d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The "Palitana"):
"… I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour."
31 Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical.
(Footnotes omitted; see also Gautam v Health Care Complaints Commission at [25] per Leeming JA.)
172 In a handful of cases on each side, the party made an express submission that a witness was impressive. Otherwise, in addressing the evidence of a witness, the parties proceeded by
