It is not, however, sufficient for the circumstances to give rise to conflicting inferences of equal degrees of probability where one of those inferences does not involve the existence of any arrangement or understanding. The inference that an arrangement or understanding has been made or arrived at must be the more probable inference.
Reasonable satisfaction, in that context, “should not be produced by inexact proofs, indefinite testimony, or indirect inferences”: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 at 362 (Dixon J).
Moreover, in determining whether the existence of an unlawful arrangement or understanding can be inferred on the balance of probabilities, it is necessary to take into account the gravity of the allegation: s 140(2)(c) of the Evidence Act 1995 (Cth). The Court must be reasonably satisfied that the inference can and should be drawn.