Farshchi v The King
[2025] HCATrans 51
[2025] HCATrans 051
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M20 of 2025
B e t w e e n -
SEYYED ABDOLZADEH FARSHCHI
Appellant
and
THE KING
Respondent
GAGELER CJ
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J
BEECH‑JONES J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 5 AUGUST 2025, AT 9.59 AM
Copyright in the High Court of Australia
MR D.D. GURVICH, KC: May it please the Court, I appear with my learned friends MR M.D. STANTON, SC, MR P.J. SMALLWOOD and MS K.E. BROWN for the appellant. (instructed by Galbally & O’Bryan Lawyers)
MS R.J. SHARP, KC: May it please the Court, I appear with my learned friends MR T.M. WOOD and MS J.R. WANG for the respondent. (instructed by Director of Public Prosecutions (Cth))
MR A.D. POUND, SC, Solicitor-General for the State of Victoria: May it please the Court, I appear on behalf of the Attorney‑General for the State of Victoria, intervening, with my learned friends MS E.H. RUDDLE, KC and MR J.R. MURPHY. (instructed by Victorian Government Solicitor)
GAGELER CJ: Thank you, Mr Solicitor. Mr Gurvich.
MR GURVICH: If it is convenient to the Court, I will address the Court on ground 1 and my learned friend Mr Stanton will address the Court on ground 2.
GAGELER CJ: Certainly.
MR GURVICH: The Jury Directions Act in section 63 provides that:
The trial judge must –
explain:
“proof beyond reasonable doubt” unless there are good reasons for not doing so.
Section 64 of the Jury Directions Act provides how the explanation may be given, in particular, in subsection (1)(e):
the trial judge may—
. . .
(e)indicate that a reasonable doubt is not an imaginary or fanciful doubt or an unrealistic possibility.
And it is the latter part of that direction that is impugned and what we have referred to as “the direction”.
BEECH‑JONES J: To comply with that, does the trial judge need to state the whole thing? That is, imaginary, fanciful or unrealistic?
MR GURVICH: No, your Honour – one part or the other could be done.
GORDON J: Where does that come from? Is that as a matter of construction, or as a matter of authority, or both?
MR GURVICH: As a matter of construction, it is open to the trial judge to give an explanation which may include any of those parts within subsection (1).
GORDON J: Subsection (e). The question is not just (a), (b), (c), (d) or (e), because they are alternatives, it is a question of whether or not (e) is a composite phrase.
MR GURVICH: Yes. In our submission, it is a composite phrase, but it is not indivisible. It is possible for a trial judge to divide it, although we are not suggestion that that ought be done in any given case.
STEWARD J: Is that because of the word “or”?
MR GURVICH: It is because of the word “or”.
STEWARD J: Yes, I see. And the word “may”?
MR GURVICH: Yes, your Honour.
BEECH‑JONES J: I see.
MR GURVICH: Our primary submission is that that direction – that is, that a reasonable doubt is not an unrealistic possibility – diminishes the criminal standard of proof; the direction is inconsistent with section 13.2 of the Criminal Code and section 80 of the Constitution; the direction is not picked up by section 68 of the Judiciary Act and as a result of the direction there has been a substantial miscarriage of justice.
In terms of the structure of that analysis, we submit that the inconsistency is to be determined on the face of the statutes. We accept that jury directions are to be assessed in light of the charge as a whole, consistently with Dookheea, La Fontaine and those authorities that preceded those cases and followed, but those cases did not concern a section 68(1) Judiciary Act inconsistency.
In our submission, the proper approach here is to ask first: is the direction picked up by section 68? And question two: if not, what is the effect of the direction at the trial? The approach to inconsistency under section 68(1), in our submission, is to be determined in a like way to determining a section 109 inconsistency, the question being whether the State law impairs, alters or detracts from the Commonwealth law.
GAGELER CJ: Is that proposition controversial?
MR GURVICH: We do not understand it to be controversial, your Honour. We understand that the approach to the structure of this question – of this analysis is controversial, but not that part of the analysis. So, the starting point is the Commonwealth law, section 13.2 of the Code:
A legal burden of proof on the prosecution must be discharged beyond reasonable doubt.
Section 64(1), paragraph (e) of the Jury Directions Act is then assessed – how the “beyond reasonable doubt” standard is explained to jurors. If that “beyond reasonable doubt” explanation given to jurors conveys a lesser standard of proof than “beyond reasonable doubt”, then the prosecution has not discharged the legal burden beyond reasonable doubt.
GLEESON J: You are not saying that all unrealistic possibilities give rise to a reasonable doubt; are you just saying that there are certain unrealistic possibilities that can give rise to a reasonable doubt?
MR GURVICH: We do say that.
GLEESON J: And will you give some examples?
MR GURVICH: We can give some examples.
EDELMAN J: Why do you say “lesser”? Why do you say that the inconsistency has to arise from a burden that is less than beyond reasonable doubt? So if, for example, “imaginary” on your submission, which can be given as a direction separately from “unrealistic possibility” – if, for example, an imaginary possibility was something that imposed a greater burden than beyond reasonable doubt, would that not give rise to an inconsistency?
MR GURVICH: It is a question of whether it answered that description of impairing, altering or detracting from the Commonwealth law. It would not in those circumstances, in our submission, have that effect.
GORDON J: Why is that so, Mr Gurvich?
MR GURVICH: The ultimate direction given by the trial judge would still require proof to the criminal standard.
EDELMAN J: Except, on your approach, it would require more than proof to the standard of beyond reasonable doubt if an imaginary possibility was a higher standard.
MR GURVICH: If it were on its own, yes.
BEECH‑JONES J: It just would not help you on your appeal, because you would not get up on your appeal against your conviction, would you? It would be hard to show that, effectively, you were prejudiced at the trial when you were convicted by the judge saying something beyond reasonable doubt. Would that not be where we get to?
MR GURVICH: As to a substantial miscarriage of justice?
BEECH‑JONES J: Yes.
MR GURVICH: Yes, that would be so, your Honour.
GORDON J: The other way of putting it is that because the standard is greater, you have had the benefit of a higher standard, so that you never actually get to the question that ‑ ‑ ‑
MR GURVICH: Yes.
GORDON J: Yes.
MR GURVICH: Yes, that is the ultimate pathway to failure, yes. Here, the impugned direction does answer that description of undermining, impairing or detracting, and therefore is inconsistent.
GAGELER CJ: When you are using this description, “impugned direction”, you are actually referring to the statutory provision, are you not?
MR GURVICH: We are referring only to the second part of paragraph (e).
GAGELER CJ: Yes.
MR GURVICH: So, when we say the “impugned direction” or “the direction”, we are talking about the words:
an unrealistic possibility.
GAGELER CJ: So, at the stage of your argument that we are now dealing with is the question of whether the provision – or part of the provision – is picked up by section 68.
MR GURVICH: We are, indeed, your Honour. Yes, we are.
BEECH-JONES J: And the premise of that is that (e) is divisible, so that it is authorising a direction which could be either imaginary or fanciful or – as opposed to a direction that says “imaginary” – tell the jury that a reasonable doubt is not imaginary or fanciful or an unrealistic possibility. In other words, what is the construction of (1)(e) that engages or does not engage 68?
GLEESON J: It has to be either, because we are dealing with the very words in 64(1)(e) in the direction in this case.
MR GURVICH: Yes. We say it makes no difference if the full version of paragraph (e) is part of the charge to the jury or only the second part, if it is divided by the trial judge for some reason, which would be ‑ ‑ ‑
EDELMAN J: But on your section 68 submission, your section 68 submission, as I understand it – divorced from what actually happened in the trial – is that section 64(1)(e) contemplates perhaps eight or 12 different possible direction. So, there could be a direction that reasonable doubt is not an imaginary possibility or another direction that it is not a fanciful doubt or another direction that it is not an unrealistic possibility or another direction that it is not an imaginary or a fanciful doubt, or any combination of those, rather than a single direction that it is contemplating in terms of the compound phrase.
MR GURVICH: Whichever version of those combinations is given, so long as it contains that expression that proof beyond reasonable doubt is not an unrealistic possibility, that is sufficient, in our submission, to engage this process of inconsistency ‑ ‑ ‑
GAGELER CJ: It does not matter to your argument, does it, whether the whole of paragraph (e) is not picked up or just two words of paragraph (e) is not picked up?
MR GURVICH: It does not matter, no. That is accurate, your Honour, with respect, yes. That has always been our position since the trial was conducted.
GORDON J: It may matter for this way, though. You accepted at the start, properly I think, that it is a composite phrase, so that if it is given as a composite phrase, the words “unrealistic possibility” may very well be read and be interpreted differently both by the court and by a jury if it is read as a composite phrase rather than separated out. Do you accept that?
MR GURVICH: We do accept that. The question really is how it would be interpreted by a jury. But the ‑ ‑ ‑
GORDON J: I think if that is right then, as I understand your argument on section 68 and construction, you would have to put it on a number of bases. You would have to put it on the basis that it is a composite phrase, given it is a composite direction, and then separately if it is given just in the – picking up just the last two words.
MR GURVICH: We do say whichever way it is given ‑ ‑ ‑
GORDON J: I know, but I think the argument may very well be different.
MR GURVICH: We would focus those questions on the second part of this analysis, being the substantial miscarriage of justice aspect. Our position is that in whatever combination a jury is directed as a matter of law by the trial judge that:
a reasonable doubt is not . . . an unrealistic possibility –
is immediately inconsistent with the requirement in section 13.2 of the Code.
EDELMAN J: At the moment, the difficulty that I have – that submission may be right, but the difficulty that I am having at the moment is that it does appear that a direction that just referred to “unrealistic possibility” may involve a different standard from a direction which referred to “imaginary or fanciful doubt or an unrealistic possibility”. The earlier words colour and shade the later words. In ordinary discourse, referring to something as an unrealistic possibility and referring to something as imaginary may be taken quite differently. So, there are actually two different submissions you are making on the section 68 point.
MR GURVICH: We submit it is not artificial to draw a line, where the word “or” appears, that a jury would understand that the trial judge is instructing them that you may consider on the one hand, imaginary doubts or fanciful doubts – so, have a think about those – or consider unrealistic possibilities, as a separate issue. That is how a juror, in our submission, would understand the direction, and would have in this case and in any case in which a direction, in whatever combination, is given.
STEWARD J: Can I ask you a question. Do you say that the words “imaginary” and then “fanciful” and then “unrealistic possibility” refer to different concepts, or are they just different ways of describing the same degree of improbability that Parliament wishes to express as excluded from “reasonable doubt”?
MR GURVICH: Both, because we have first the question of “imaginary or fanciful” doubts, so the question is doubts, and there is a degree of certainty or lack of certainty associated with those expressions attached to the word “doubt”; and then on the other we have “unrealistic” connected to “possibility”, which is potentially a different concept, depending upon ‑ ‑ ‑
STEWARD J: Is that not also describing a quality about a doubt that is held?
MR GURVICH: It is.
STEWARD J: And so, what is – and this is really the meat of the matter – what is the qualitative difference between the degree of improbability captured by the words “imaginary” and “fanciful” as against “unrealistic possibility”?
MR GURVICH: Yes.
STEWARD J: If you want to address this later on, that is fine.
MR GURVICH: Yes, I do want to address it ‑ ‑ ‑
STEWARD J: Because – you are probably going to come it.
MR GURVICH: We are certainly coming to it. We will just finish off, your Honour Justice Steward ‑ ‑ ‑
STEWARD J: Yes, of course.
MR GURVICH: ‑ ‑ ‑ with this approach that we are urging on the Court, because the respondent takes the approach or advances the approach that other directions given in the trial might remedy, cure or shed further light on the direction that is given and therefore make it acceptable in a given trial.
Our response to that is in two parts. One, the direction is definitional. It is controlling, given as a direction of law to the jury. But second, and perhaps more fundamentally, that question of inconsistency is anterior – logically anterior – to a consideration of any other directions that are given in a particular trial. That is the approach required by section 68. And that is sensible, in our submission, for these reasons.
EDELMAN J: Except that there is the word “may” there. So, it may be logically anterior for the purposes of section 68, but the word “may” means you do not need to use it in every single trial.
MR GURVICH: Yes, but there is the capacity to give it, and that is enough, in our submission.
EDELMAN J: The capacity to give it if it is appropriate to do so.
MR GURVICH: Yes, if it is appropriate, and ‑ ‑ ‑
GLEESON J: The classic example of that is the Green Case, where it is responsive to some kind of case that is suggested by the accused that is imaginary or fanciful – or unreal.
MR GURVICH: Yes. So, Green – that is, with respect, quite right, but Green is distinguishable on the basis that it was addressing the question of “unreal possibilities” and that it was, as your Honour Justice Gleeson pointed out, only given or only required when defence counsel advanced what we would call the “moon is made of blue cheese” example.
GLEESON J: “Unreal possibility” is an oxymoron. The concept of an oxymoron may become relevant when the accused puts a case that is so untenable that it might be accurately described in terms of an oxymoron.
MR GURVICH: Yes, and the judge would then be required to restore the balance but do no more than restore it for “unreal possibilities”, which we say is quite different, to come back to your Honour Justice Steward’s question, to an “unrealistic possibility” as a jury would understand it. But just coming back to ‑ ‑ ‑
GORDON J: The question which arises is this: if you accept that one has an anterior question, which is abstracted from the trial that was had – which is what you are asking us to do at the first limb – that is one possibility. The second is by reference to the structure of the Act itself – that is, Division 1 of Part 7 – I think this is what Justice Edelman is putting to you – that it is apparent that it is not an abstract question and never can be an abstract question, because the circumstances in which it arises are dictated by what actually happened at the trial.
So, that is the difficulty, where – and it is because of the nature of the subject matter we are dealing with, and one sees that reinforced, really, by section 61, which tells you what are the only things that can be subject of “beyond reasonable doubt”; section 63, which says:
The trial judge must –
explain it:
unless there are good reasons for not doing so.
And must do so:
before any evidence is adduced in the trial –
so that one is seeing it, that it is actually in the context of the trial itself. And only then, if it is necessary or appropriate – “may”, not “must” – do they give this kind of explanation.
MR GURVICH: All of those factors are at play in any given trial, we accept all of that, but that does not detract from this submission that the first question is the question I am picking up, because it would be unworkable that the direction may or may not be picked up depending on other directions given in a trial. It would be unsatisfactory that the direction is picked up on the basis that the problems it causes are assessed at the end of the trial in light of other directions that might be given under 64(1)(e) or otherwise.
It would be contrary to the interest of the administration of criminal justice to adopt that course that is urged by the respondent – it would cause unnecessary appeals and uncertainty. And ultimately, in our submission, once it is accepted that some kind of remedy is required to address – fix – the problem caused by the direction, the conclusion is inescapable that the direction does impair, detract or undermine from section 13.2.
JAGOT J: Do you accept “unreal possibility” does not have that effect? You say they are quite different.
MR GURVICH: We do.
JAGOT J: “‑istic” is just a suffix that you add to “real” or “unreal” to describe the character of the thing. So, “real” and then you put “‑istic” on the end, it just means having the character of being real. Unreal ‑ ‑ ‑
MR GURVICH: It is a suffix that changes significantly the meaning of the word as it would be understood by a juror.
JAGOT J: How can that be if all it means is having the character of or being? “‑istic” is just a suffix meaning being of that nature; being of the nature real, being of the nature unreal.
MR GURVICH: Yes. “Unreal” meaning does not exist in reality, “unreal possibility” meaning not a real possibility, an impossibility, fanciful, fantastic, imaginary.
JAGOT J: Not a realistic possibility, you could say, and that would be not a real possibility. Not a realistic, not an unreal possibility, not an unrealistic ‑ ‑ ‑
MR GURVICH: There could be overlap, but they are quite different concepts, in our submission. So, with unreal possibility ‑ ‑ ‑
JAGOT J: Where are you getting that from, that they are quite different just by putting an “‑istic” on the end, that somehow that materially changes the meaning?
MR GURVICH: Well, if we commence with the dictionary definitions or the definitions given by the Court of Appeal in this case, which is at core appeal book page 217, Justice Priest at paragraph 40 prefaced this:
As a matter of ordinary language, a possibility is something that may be true, or something that may exist (or happen). An unrealistic possibility is one that is unreasonable, irrational, illogical, improbable –
which we do fasten on and rely on:
foolish or similar; and an unreal possibility — as contemplated in Green — is one that is absurd, bizarre, fanciful, fantastic, illusory, non-sensical, preposterous or similar.
JAGOT J: It does go on, though, to doubt any semantic difference, and say “it is finely nuanced”; little practical difference. I mean, where has he got his list from, his adjectival list? That is just from his own – I mean, that is just an ending.
MR GURVICH: It is not clear where his Honour has derived those ‑ ‑ ‑
STEWARD J: It was not the product of submissions from ‑ ‑ ‑
MR GURVICH: It was the product of the submissions and dictionary definition submissions.
STEWARD J: I see.
MR GURVICH: So, it broadly corresponds to those, but all the same, there is no clear footnote as to where.
STEWARD J: You emphasise the word “improbable”.
MR GURVICH: “Improbable”, we do.
STEWARD J: But it needs to be read in the sense, in that list, of referring to a degree of improbability. Not just any degree of improbability, but one that would be “irrational, illogical,” or “foolish or similar”, surely.
MR GURVICH: It does take its meaning from all of those synonyms, but our key point is this: that an unreal possibility does not give rise to a reasonable doubt – we accept that – but “unrealistic” carries a different meaning. It is unlikely to happen in reality, even highly unlikely to happen in reality – it is unrealistic. An unrealistic possibility is something unlikely to be expected, or even highly unlikely to be expected, but some chance of happening. Improbable things happen and unrealistic things happen. In our submission, the test is not – for a jury – an objective one, but is a question of belief with a requisite degree of intensity.
STEWARD J: If the word “improbable” had not appeared, if the meaning of “unrealistic possibility” was confined to unreasonable, irrational, illogical, foolish or similar, would you have the same complaint?
MR GURVICH: We would not have it – certainly not to the same degree. So, we would not have the same complaint.
STEWARD J: Given that the jury were not given those words but simply the direction in accordance with the Jury Directions Act, where does your problem lie?
MR GURVICH: Because “unrealistic” does incorporate the question of improbability.
STEWARD J: So, you would suggest that is what a jury would think, if met?
MR GURVICH: A jury would think that an improbable event could not give rise to a reasonable doubt, and that is the vice.
JAGOT J: But, “unreal” must include – I am just struggling with the logic of your acceptance, that you must, of “unreal” but then putting an ending on it somehow radically transforms its meaning. They both contain an element of improbability – high improbability. Just because 40 says this, does not – I mean, those words were not used. It was unrealistic as per the statute and your whole case depends upon there being a material difference by putting the suffix “‑istic” on the end, and that materially changes a meaning.
MR GURVICH: There need not be a gulf of difference but a material difference between ‑ ‑ ‑
JAGOT J: It has to be material, otherwise we are just ‑ ‑ ‑
MR GURVICH: A material difference. The words are plainly different, notwithstanding that it is a number of letters added to the word ‑ ‑ ‑
JAGOT J: It is not just the number of letters, it is a common English language device, of which there are multiples to, I guess, change a noun to a kind of adjectival form, I guess. It is just a grammatical technique that English uses: “‑ed” for past events, “esses” for continuing or plural – it is just one of thousands, probably. I am just struggling with why “‑istic” somehow effects the material change of meaning.
MR GURVICH: Any material difference between those expressions – “unreal possibility” and “unrealistic possibility” – would be enough, in our submission, to create the inconsistency with section 13.2. What those words do, in our submission, is to “water down” – to adopt the language of Justice Fullagar in Thomas’ Case:
It tends to water down and qualify the plain rule that what is required to justify a conviction is proof beyond reasonable doubt.
That was in the context of authorities which we were discussing with your Honour Justice Gleeson a while ago, about unreal possibilities are “chimeras of doubt”, as it was referred to by Justice Windeyer in Thomas, and the blue cheese planet example adopted by the United States Supreme Court in Victor v Nebraska.
What was also stated in that authority of Victor v Nebraska, which is at the joint book of authorities, volume 7, at 2046, by first of all Justice O’Connor that:
A fanciful doubt is not a reasonable doubt.
And there is no issue with that:
“Anything can be possible . . . . [A] planet could be made out of blue cheese . . . everything “is open to some possible or imaginary doubt.”
So, we do not take issue with those concepts, but at 2058 in the albeit dissenting judgment of Justices Blackmun and Souter, these are the important concepts that are at stake:
To be a meaningful safeguard, the reasonable‑doubt standard must have a tangible meaning that is capable of being understood by those who are required to apply it. It must be stated accurately and with the precision owed to those whose liberty or life is at risk. Because of the extraordinarily high stakes in criminal trials, “[i]t is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men –
as it was put:
are being condemned.”
GLEESON J: But do you accept that the purpose of this direction – it is not dealing with the problem of dilution; it is dealing with the problem of a jury adopting a standard that is too high, an absolute certainty test. That is why it is expressed in the negative. So, its intention is to avoid a standard that is too high, is it not?
MR GURVICH: We do not say that is necessarily the intention, given the preceding paragraphs.
GLEESON J: Well, if a jury relied on an imaginary doubt to acquit an accused, then they would be adopting a standard that is too high. If they relied on a fanciful doubt, that would be similarly defective.
MR GURVICH: Yes.
GLEESON J: And you are saying, to the contrary of the intent to avoid an acquittal on the basis of an unrealistic possibility, it is not only not exceeding beyond reasonable doubt, but it is somehow diluting the standard.
MR GURVICH: Diluting it by suggesting an improperly low degree of certainty for conviction, and that is a continuation of what I was citing from Victor v Nebraska, that any jury instruction defining “reasonable doubt” that suggests either an improperly high degree of doubt for acquittal, or an improperly low degree of certainty for conviction, offends due process.
GORDON J: Is that any different from what the Court said in Dookheea about the question that was to be asked? That is:
whether the words spoken in terms of the record of the summing up are such that the jury would have derived a false perception of the basis for deciding whether the Crown has proved its case.
That is at paragraph 37.
MR GURVICH: Yes, that is the question, and Dookheea made clear, with respect, that yes, there is a difference between reasonable doubt and any doubt, but caution must be exercised in giving any explanation, even of that kind where the difference is clear because of the risk of diluting the standard of proof, obfuscating the task of the jury and the very reasons that have been emphasised, at least since Thomas’ Case, that there are dangers:
in venturing upon a novel elucidation of this principle of the criminal law.
That is Justice McTiernan in Thomas, at joint book ‑ ‑ ‑
STEWARD J: But you do not complain about the fact that the Jury Directions Act says you may give an explanation of what reasonable doubt means. My problem is that abstract concepts like those from Victor v Nebraska do not nail, at the moment, the qualitative difference between the word “unreal” and the word “unrealistic”, because I have no doubt that Ms Sharp and the Solicitor‑General will embrace what is said by Justice Blackmun and say that is exactly what the Jury Directions Act does. So, we need to focus on the qualitive difference between “unreal”, which you say is okay, and “unrealistic”.
GAGELER CJ: Mr Gurvich, can I perhaps ask the same question another way. We hear at the first stage of your argument we are looking at section 68(1) of the Judiciary Act and we are asking whether it picks up section 64(1)(e) of the Jury Directions Act, you say it does not pick up the last two words. You say that is because there is an inconsistency with section 13(2) of the Criminal Code.
As I understand the essence of your argument, you are saying that the inconsistency arises because the words “unrealistic possibility” leave the jury with an impression that an improbable event could not give rise to a reasonable doubt. Is that the essence of it?
MR GURVICH: It is, your Honour.
GAGELER CJ: That proposition is either right or wrong linguistically, grammatically, as a matter of common understanding. If it is wrong, then your entire case falls way. Both limbs of it; the section 68 limb and the section 80 limb, I think.
MR GURVICH: They follow, yes. They are based on the same premise, we accept that.
GAGELER CJ: All right. There is, of course, the question of what the difference is between “unreal” and “unrealistic”, but the ultimate point you have to convince us of is that words “unrealistic possibility” will leave that impression.
MR GURVICH: Yes. So, if we can put it this way: the question is not so much the comparison between “unrealistic” and “unreal”, the question is whether the standard of proof is diminished by the words “unrealistic possibility”. Yes.
EDELMAN J: There is another construction issue, I think, that is related to that, and that is whether or not the word “is” in section 64(1)(e) is really trying to define “reasonable doubt” – which is, I think, what your submission is assuming – or whether what it is doing is saying these are things that will not be part of the concept of reasonable doubt without giving a synonym or a definition for “reasonable doubt”.
In other words, the alternative would be you read section 64(1)(e) as saying that the trial judge may indicate that reasonable doubt is a doubt that is reasonably experienced and the following things will not fall within that concept, rather than saying this is the meaning of what “reasonable doubt” is. In order to ask whether you have a reasonable doubt, you need to ask yourself whether you have an imaginary doubt.
MR GURVICH: Yes, we understand that there are ways that it can be interpreted. We have used the term “definitional”, and from time to time “controlling the meaning”, and we do not want to be restricted to issues of nuanced statutory interpretation because it is a question of a jury’s understanding of those terms. As our learned friend the Solicitor‑General points out, a jury is entitled to some explanation of the meaning of reasonable doubt – proof beyond reasonable doubt – and interest is high when those directions are given.
Whether it is given at the very end of that explanation or anywhere within it, it is quite clear, in our submission, the jury would fasten on that expression of “unrealistic possibility” and consider in a given case what is or is not an unrealistic possibility, which in itself lowers the standard of proof – which is our primary submission – but also has the allied problem of obfuscating the task of the jury.
EDELMAN J: What I am putting to you – and it does seem to be what the trial judge has done – is that if these phrases are not definitional of reasonable doubt, then what the Jury Direction Act is saying is that trial judges should direct juries and say you need to find beyond a reasonable doubt, but here are some instances of things that are – in Justice Gleeson’s language – sufficiently extreme that they will not constitute beyond a reasonable doubt.
MR GURVICH: Yes.
EDELMAN J: And particularly if you read them together– “imaginary or fanciful doubt” – that then starts to colour what is an unrealistic possibility.
MR GURVICH: It may colour it, but it is a separate and distinct concept. Whether it be characterised as explanatory, assisting or definitional is not so much to the point. It is a direction of law and it takes the jury down a path that is quite different to a Green path where only in response to a fanciful, far‑fetched proposition ought a direction of that kind be given. Can we just advance that a little bit, by ‑ ‑ ‑
JAGOT J: Could I just clarify one – sorry to interrupt, I just want to clarify, because I think, to me, there is some kind of confusion between step one and step two in your argument. You say, in step one, it was: what would a jury make of it? But in my mind, in step one, if it is purely statutory, it is just what the court thinks they mean.
It is not what the jury might, in a particular context or in some decontextualised way, make of it. It has to be what the court thinks these words mean. I mean, maybe you could somehow get a jury in there, if you were saying the jury necessarily would always understand these words, in every possible case, irrespective of any context, necessarily to mean something lesser than “beyond reasonable doubt”.
sThat is the only way, in my mind, you can get any concept of a jury into step one, but it seems to me that is so out there that, really, you just stick with: step one, what does the court think that these mean, are they inconsistent in the sense of there is some kind of meaningful diminution of the standard, yes or no; and then, in step two, you might look at the particular direction that was given, in context, and say it either did or did not work a material miscarriage. I just do not think you can get the jury legally into step one.
MR GURVICH: First of all, we are not so concerned about the way we get to the ultimate result, but we say that, logically, this Court should determine that inconsistency by considering that term ‑ ‑ ‑
JAGOT J: No, I understand that is what you are – all I am saying is, you keep referring to how the jury would, and I think in step one that is just nothing to do with it. For my part, I do not ‑ ‑ ‑
MR GURVICH: Yes, but because it is a jury direction ‑ ‑ ‑
JAGOT J: No, but you are relying on a statutory inconsistency.
MR GURVICH: Yes.
JAGOT J: So, the court just does its job.
MR GURVICH: Yes, but through the prism of a jury direction and a charge to a jury, how it would be understood, in the similar vein to the way it was interpreted in Green, Thomas and Dookheea, but not quite getting to the substantial ‑ ‑ ‑
JAGOT J: These are actual directions we are talking about.
MR GURVICH: Yes
JAGOT J: There is a difference between an actual direction in the specific context of a particular trial and what your step one is – just take one Act in one hand and the other Act in the other hand. To me – I know the context is it is a jury direction, but it is for the court to determine, in context, whether you are right or wrong.
MR GURVICH: Yes. We wanted ‑ ‑ ‑
JAGOT J: And as the court, you just do not sort of put the jury into – put them in as some sort of interpretative medium between you and the meaning of the word.
MR GURVICH: Whether or not we argue it through a jury’s interpretation or the common understanding of those words, or as a matter of statutory interpretation, we want to make clear that those terms, those words “an unrealistic possibility” in themselves ‑ ‑ ‑
JAGOT J: No, I get that. All I am saying is I think, in step one, it is only the statutory interpretation issue.
MR GURVICH: Yes, your Honour.
JAGOT J: To my mind anyway, it has nothing to with juries or anything else.
MR GURVICH: I understand. Can we just ‑ ‑ ‑
BEECH-JONES J: But does it rise to the point of saying there is no possible circumstance in which a trial judge could ever exercise the power to tell a jury that it is an unrealistic possibility? That has to be the constructional question, does it not? Because once you allow even – dare I say it – a realistic possibility that a judge could do that, we are into ground 2.
MR GURVICH: Part 2?
BEECH-JONES J: Your argument.
MR GURVICH: Yes.
BEECH-JONES J: That is, whether this particular direction was a substantial miscarriage. But at the first point, it has to be: there could not be any trial where a trial judge could say to the jury, “unrealistic possibility”.
MR GURVICH: Yes, we do say that in every case, that direction leads the jury to misapprehend the proper standard of proof – we do state that.
BEECH-JONES J: I understand.
MR GURVICH: That is the first step. And then if, hypothetically, a direction could be cured – if directions could be given that cured the problem, the vice cause by the impugned direction – that would not mean that the direction was picked up, it would just mean that, in that particular case, there was no substantial miscarriage of justice.
GAGELER CJ: Mr Gurvich, treating your ground 1 as a question of statutory interpretation, is there anything that we gain from looking at the extrinsic material?
MR GURVICH: The extrinsic material – there is some in the extrinsic material, and the genesis is the Canadian decision of Lifchus, which was given some prominence in that material. So, perhaps, if I can answer that by going to Lifchus first, which is at joint book of authority volume 7, at 1953 to 1954. That direction was and is that:
A reasonable doubt is not an imaginary or frivolous doubt.
In our submission, “imaginary” corresponds with the direction; “frivolous” is a different term to “fanciful” but carries the meaning of silly, of little or no weight, or not at all important; but the words “unrealistic possibility” do not appear and they are novel, in our submission, in the common law world. They are quite different to the Canadian position, the New Zealand position, and the United States, and England and Wales positions.
BEECH-JONES J: England do not use the phrase “beyond reasonable doubt” anymore. I understand ‑ ‑ ‑
MR GURVICH: The word “sure”?
BEECH-JONES J: Yes, you have your “sure”.
MR GURVICH: The word “sure”, yes.
BEECH-JONES J: So, it is not that anomalous.
MR GURVICH: I am sorry?
BEECH-JONES J: What is being done here is not that out of the ordinary, is it?
MR GURVICH: In our submission, to be satisfied ‑ ‑ ‑
BEECH-JONES J: To be “sure”.
MR GURVICH: To be sure is quite different to allowing for unrealistic possibilities to not be the source of reasonable doubt.
GORDON J: Do you accept that these legislative changes were brought in as a result of recognition both by judges and by others outside of the judiciary that some explanation was necessary?
MR GURVICH: We do.
GORDON J: But there has been a shift. There have been inquiries and reports done into juries and how they understand it, and that is why, when one looks at this Division 1 of Part 7, one can see, consistent with the reports undertaken in Victoria, what is sought to be done; that is, to identify what is to be the subject of proof beyond reasonable doubt and what the judge is to do to assist that process.
MR GURVICH: Yes, we do not have any difficulty with the laudable intent and, as a result of Dookheea, that was encouraged up to a point, which ‑ ‑ ‑
GORDON J: The reason why I ask is because the passage you have taken us to in Lifchus identifies, as you pointed out, that it is:
is not an imaginary or frivolous doubt –
but it goes on, as you point out, to explain that:
A reasonable doubt is a doubt based on reason and common sense which must logically be derived from the evidence or absence of evidence.
MR GURVICH: Yes, which is consistent with the reasoning in Dookheea that it is a matter for the jury – a reasonable jury – to determine what amounts to proof beyond reasonable doubt and, once explanations are given, there is a risk that there will be a lowering of that standard and those warnings that were sounded by Chief Justice Dixon and others in Dawson v The Queen and Green do not mean that you cannot have any explanation at all.
Dookheea made clear that it is sensible to contrast the civil standard with the criminal standard – and we do not cavil with the directions in the Jury Directions Act leading up to paragraph (e), they are, with respect, helpful and explanatory. But the bridge too far is allowing jurors to achieve a level of certainty that is less, necessarily less, than one of “beyond reasonable doubt”.
GAGELER CJ: Now, you have referred to a number of cases in paragraph 6 of your outline, and you have referred extensively to Dookheea. Was there anything else in any of those cases you wanted to take us to?
MR GURVICH: No, there is not, your Honour.
GAGELER CJ: All right.
MR GURVICH: We will just return, if we may, to that comparison between “unreal” and “unrealistic”, which is of some assistance in the analysis. We mentioned the question of the subjective attitude that is required in the belief with the requisite degree of intensity, and all we really wish to convey at this point is that “unrealistic possibility” may give rise to a reasonable doubt in a quite different way to the proposition or, contrary to the proposition, that an unreal possibility might give rise to a reasonable doubt.
It does not, we accept that, but an unrealistic possibility may, and that is part of the human cost, the social cost, the factoring in of the cost of error and that what is suggested improperly lowers that degree of certainly for conviction to something less than beyond reasonable doubt.
GAGELER CJ: But that is all because you equate an unrealistic possibility with an improbable event.
MR GURVICH: It is not all because of that. It is a question of what a jury understands by the meaning which incorporates improbable events. It carries within its meaning events that are improbable, unlikely or even highly unlikely to happen but may happen and may be not uncommon in the sphere of criminal justice and jury trials.
Can we address now, your Honours, the aspect of the direction controlling the meaning of the term “proof beyond a reasonable doubt” in the context of a direction – not necessarily this trial, but in a judge’s charge. Our position is that the direction is definitional, it is part of that explanation in section 64(1). Its very purpose is to define or explain as a direction of law, which may, of course, be delivered in different ways. In Thomas, the direction was held to purport to be an exposition or explanation of what is meant when it is said that:
the accused is entitled to the benefit of any reasonable doubt –
In Green, it was held by the Court that references to “beyond reasonable doubt” were:
controlled by the definition of that expression –
which is quite different to the position in La Fontaine, where the impugned direction was given in the context of a circumstantial evidence direction which was not apt for the case, and there would have been no misapprehension held by the jury.
We turn next to the allied problem of the obfuscation that would be suffered by the jury that was referred to Dookheea in the context of the distinction between “reasonable doubt” and “any doubt”, where it was held that the risk of:
obfuscating the jury’s understanding of their task.
Was present, that it is generally undesirable to give ‑ ‑ ‑
GAGELER CJ: What do you mean by “obfuscation”? I understand what you say is the content of this expression “unrealistic possibility”, but is there something else to the word “obfuscation”?
MR GURVICH: No. As I recall, your Honour the Chief Justice put to me the question of whether a jury would derive a false perception of the basis for deciding whether the prosecution had proved its case. That is what we mean.
GORDON J: That is the question in Dookheea.
MR GURVICH: Yes. That is the Dookheea question, your Honour, yes. And that, although the respondent argues that the obfuscation point was distinguished in Dookheea or overruled in Dookheea, the proposition remains the same as it was in Green’s Case, that the risk of obfuscation is real and the obscuring is of:
the vital point that the accused must be given the benefit of any doubt which the jury considers reasonable.”
That is where the risk of obfuscation or obscuring arises, and that is consistent with the Court in Dookheea pointing out that:
it is generally . . . undesirable . . . to contrast –
even:
reasonable doubt with any doubt.
Let alone propose that an unrealistic possibility cannot be the source of a reasonable doubt, because it obscures the jury’s task of determining what the jury considers to be a reasonable doubt. It encourages them to search for possibilities, to analyse whether those possibilities are unrealistic or realistic, whether or not unrealistic possibilities have been advanced during the course of a trial.
So, it is no answer, in our submission, to posit that, well, in this particular case, no unrealistic possibilities were advanced, because the jury is inscrutable and it is the jury’s determination of whether, on their analysis of the elements of the offence, there are unrealistic possibilities that constitute reasonable doubt in their perception.
Your Honour Justice Gleeson asked some time ago about examples of instances where there in an unrealistic possibility as opposed to an unreal possibility. An example may be a confession – a false confession – made by a suspect in circumstances where that may be considered unrealistic but not unreal.
There are cases involving DNA analysis of secondary transfer or tertiary transfer that may give rise to unrealistic possibilities that amount to reasonable doubt on the elements of the offence. Events that are not properly characterised as fanciful or imaginary but may well be understood as unrealistic possibilities that in fact happened.
Can we turn now to this question of substantial miscarriage. The jury was not properly directed as to the standard of proof. In our submission, that constitutes a serious departure from proper trial process, whether or not that impact can be determined in the particular case. To adopt the words used by this Court in Baini v The Queen:
Nothing short of . . . beyond reasonable doubt will do –
And, because of the direction given, the status falls short of that requirement. In our submission, the error is one that is fundamental. Serious departure from proper trial process is so as necessarily to have resulted in a substantial miscarriage of justice in this case.
BEECH‑JONES J: And this is because we take the words “unrealistic possibility” – which I think was used once in the summing‑up, is that right?
MR GURVICH: Yes.
BEECH‑JONES J: And say that governs every other reference to “beyond reasonable doubt” that the trial judge gave throughout the course of the summing‑up. Is that how we get there? Before we get to substantial miscarriage we have to say, well, they were distracted; their premise is “unrealistic possibility” is too low. The next premise is that affected the whole meaning of the summing‑up, so far as it concerns standard of proof.
MR GURVICH: Yes. The term “beyond reasonable doubt” was used numerous times – there is no issue about that – but the question of its meaning was only addressed in that passage, given at a critical time of the judge’s charge. That is the intent of the Jury Directions Act, and that is what the jury is required to act upon.
EDELMAN J: This comes back to a question I asked you earlier. I am not sure at that passage the trial judge really is addressing its meaning in the strict sense. One reading of what the trial judge is saying is that he is just addressing things that reasonable doubt does not denote. So, he is excluding things from the edges of “beyond reasonable doubt” – but “beyond reasonable doubt” still, consistently with the rest of his direction, controls the question.
GORDON J: Just to add to that, I think that is reinforced if you to the passage at the core appeal book at pages 22 to 24 which contains what you describe as the impugned direction. The trial judge immediately says:
I mentioned to you at the beginning of the trial that these words ‘proof beyond reasonable doubt’ mean exactly what they say, proof beyond reasonable doubt.
And then goes on to explain and move to the elements. If you – as we all know – break up these charges into chapters, you are right that, I think, I identified 10 chapters – “beyond reasonable doubt” is addressed multiple times throughout it, including – and we do not have this in the core appeal book – before the evidence was given. It appears the trial judge directed in relation to “beyond reasonable doubt” twice. They say in their summing‑up that that is what they have done.
MR GURVICH: Yes, so the judge did not give this impugned direction ‑ ‑ ‑
GORDON J: I accept that, but what is important is that at the outset it was not given as part of the way the trial was going to be conducted. It appears – we do have it, but obviously a direction was given about “beyond reasonable doubt” at the outset, the trial is run, and we are now at the summing‑up stage. So, it sits in a history in the way in which the trial was conducted from outset. As I said, we do not have what was given at the outset, but they have mentioned it twice.
GLEESON J: Is there not also the question about the possibility that your client lost the benefit of, as a result of this direction? What is the doubt that the jury did not give your client the benefit of, here?
MR GURVICH: That is the inscrutability of the jury’s function. It cannot be determined what a jury may consider to be an unrealistic possibility. So, for example, in this case ‑ ‑ ‑
GLEESON J: It was not something that you put to the jury?
MR GURVICH: No. So, in a Green case, where something unreal is put, then the judge will restore that balance. Nothing of that kind was put, which makes it even more important that a direction of this kind not be given. A jury may have, for example, considered the element relating to forced labour, remaining in forced labour here, that:
if, because of the use of coercion, threat or deception, a reasonable person in the –
complainant’s position:
would not consider himself or herself to be free:
(a)to cease providing the labour or services –
For example, we could take that element. Although the defence argued that that was not made out, a jury may have considered that it was an unrealistic possibility that the complainant was not free to leave, but we have been directed that unrealistic possibilities cannot be the source of reasonable doubt, therefore, we must not convict. That is why we maintain the premise that the direction, once it lowers the degree of certainty, that is enough to engage the inconsistency, and then the question of substantial miscarriage of justice follows.
Your Honour Justice Gordon was addressing me on the charge at core appeal book pages 22 and 23, where this direction was given. His Honour effectively follows the provision, section 64(1), with some slight variations, but the only – it is one thing to refer to the standard “beyond reasonable doubt”, it is quite another to give it content, and the only time it is given content is in those passages at pages 22 and 23. Otherwise, it is simply a reference to reasonable doubt.
GORDON J: I only raise three points with you. First, that it was not part of the direction given, as I understand it, at the commencement of the trial – and I do not know what it was, but it clearly was not.
MR GURVICH: Yes.
GORDON J: Second, it is apparent, in my view, that when you look at the whole of the charge, the concept of “beyond reasonable doubt” is explained, as you say, in that passage, but explained by addressing what it is and what it is not. Third, the structure of the charge follows, in a sense, the Act – it explains what must be proved, so one can see the judge going through sections 61, 63, 64.
MR GURVICH: Yes. No, we accept each of those propositions. We do.
EDELMAN J: The second proposition that you accept – just so I am clear – that is an acceptance of the proposition that that part of the direction on page 23 is not defining “a reasonable doubt”. It is not providing synonyms for “a reasonable doubt”, it is just excluding things from the content of reasonable doubt.
MR GURVICH: We characterise it as definitional. It does both of those things. It certainly does the latter. We say it also constitutes a definition of “a reasonable doubt”.
EDELMAN J: A definition in the sense of a synonym.
MR GURVICH: In terms of the term “unrealistic possibility”?
EDELMAN J: That if you are satisfied that this is an unrealistic possibility, you must therefore also be satisfied that this is beyond reasonable doubt.
MR GURVICH: Yes. The trial judge was defining the meaning of “reasonable doubt” by those parameters.
EDELMAN J: So, reasonable doubt equals realistic possibility.
MR GURVICH: Not unrealistic possibility, which carries the risk of a jury treating it as a realistic possibility.
GORDON J: Can I just take one issue up with you and then I will stop asking questions. At core appeal book 43 at line 20, the trial judge does say:
You may only convict the accused if you are satisfied that his or her guilt is the only reasonable conclusion to be drawn from the whole of the evidence, both direct and indirect.
Et cetera, but do you say that does not address at that point in time what is to be done and how it is to be done? I just want to make sure I understand the earlier submission, Mr Gurvich.
MR GURVICH: That does not rectify the problem. That direction – the only reasonable conclusion is referrable to the question of the meaning of “reasonable doubt” that was explained 20 pages earlier.
GORDON J: So, the passage I am particularly referring you to is core appeal book 43, line 20 through to 44, line 7. I am not saying that is all of them, but that is a passage where, on one view of its reading, it is the trial judge explaining in another form what is the task of the jury. You do not take issue with that passage?
MR GURVICH: No, his Honour there was referring to direct and indirect evidence, and a reasonable view consistent with his innocence will not satisfy proof beyond reasonable doubt. We do not take issue with that. It is a question of what constitutes that reasonable doubt which picks up the impugned direction, otherwise it does no work.
GAGELER CJ: Mr Gurvich, have we reached the conclusion of your part of the argument?
MR GURVICH: Yes, we have, your Honour.
GAGELER CJ: Well, we will take the morning adjournment.
AT 11.14 AM SHORT ADJOURNMENT
UPON RESUMING AT 11.29AM:
GAGELER CJ: Mr Stanton.
MR STANTON: If the Court pleases. Your Honours, moving to ground 2 paragraph 9 of our outline, we acknowledge at the outset that ground 1 could be dispositive of this appeal, however, in our submission, ground 2 should be substantively considered. We are not - - -
GAGELER CJ: Mr Stanton, if you win ground 1, you do not need ground 2 to get the order that you seek, that is correct.
MR STANTON: That is true, your Honour.
GAGELER CJ: And if you lose ground 1, you cannot possibly win ground 2, because of the premises of your argument is the correctness of the core proposition on which ground 1 relies.
MR STANTON: Yes, we accept that if your Honours were to find that the impugned direction does diminish the criminal standard of proof, then there would be no work for section 80.
GAGELER CJ: So, you want an advisory opinion, do you?
MR STANTON: Our submission is that it is not an advisory opinion, insofar as it could still substantively determine the appellant’s rights. It may lead to the same outcome in terms of orders, if there was to be a retrial, but in relation to the certainty that it would provide to the appellant, and for the reasons that we set out in paragraph 10 and 11 of our outline, in our submission, there are good reasons for considering the substance of ground 2. With respect, we accept the framing that if we fail in relation to the diminishing of the criminal standard point, then we could not succeed on ground 2.
EDELMAN J: We are in the universe of what pragmatic considerations are sufficient to engage with a constitutional issue that may be unnecessary to decide the appeal.
MR STANTON: Yes, and so that is why, in our outline, we have set out principles. Of course, the principles set out by this Court in Zhang’s Case at paragraph 22 and then, of course, the guiding statements of principle of this Court in Mineralogy, the plurality judgment at paragraphs 56 to 60.
It is significant, in our submission, though, that the rule or the principle can yield to special circumstances, and there will be a type of case where even if the matter could be decided on a narrower ground, sometimes leaving the issue unresolved is not best, as your Honour the Chief Justice – in a different context, we accept – said in Private R v Cowen. So, in our submission there are ‑ ‑ ‑
BEECH-JONES J: Is it a matter of being could be or in fact has to be decided? We do not – we cannot get to ground 2 without going to ground 1, and in your answer to the Chief Justice, if we go through ground 1, we do not get to ground 2?
MR STANTON: The issue is whether or not the impugned direction diminishes the criminal standard, and if it does, then there are two pathways which we accept would lead to, on our submission, the same orders – a retrial – which is either there is the inconsistency framework, or there is the section 80 avenue.
Those are two avenues that both rest on, it is accepted, the same principle issue, but they are two different avenues of getting to the same result, although, plainly, if this Court was to find that the appellant’s conviction was unconstitutional, that would give him a level of certainty that deciding the matter on ground 1 would not.
GORDON J: Your best point is what is set out in paragraph 11 of your outline. That is, you say, the grounds overlap and it is best determined “in its full constitutional context”.
MR STANTON: Yes, that is certainly that ‑ ‑ ‑
GORDON J: Is that the high point?
MR STANTON: The high point, in our submission, is – there is another high point in our submission, which is the first principle, which is this: we are now in a situation where the Jury Directions Act in Victoria is unique, that the directions, and particularly the impugned direction has, as we understand it, no lineage, it is novel, this – we are, as your Honour referred to this morning, in an era of a changing tide in terms of the giving of these kinds of directions.
So, in that context, the potential engagement of such directions with section 80 is a matter of real public importance. So, in our submission, that is our primary submission, buttressed by the necessity to do justice in the case in circumstances where, unlike a scenario such as in Clubb, the argument was not relied upon by the appellant in that case but, nevertheless, this Court still considered there were good reasons for considering the issue.
This issue has been squarely pressed since the appellant’s trial. It has been the subject of robust submissions and, in our submission, in that context, there are truly good reasons to decide it – as is the last point, which is, if it be the case, which is put against us as a reason to not deal with the ground, Justice Stellios’ remarks that:
a broad cohesive vision of s80 continues to elude the High Court.
If that be so then, in our submission, that fortifies the public interest in determining the ground and, potentially, providing a more cohesive vision of section 80.
EDELMAN J: This is not really about the cohesive nature of a vision of section 80, it is about the applied content of section 80. It is how much more does section 80 encompass than the content that Cheatle recognised?
MR STANTON: Yes, that is so. It would be, in our submission, a significant elucidation of the protective function of section 80, noting there are competing purposes of section 80, but if this Court was to find that the criminal standard of proof was, indeed, an essential feature of trial by jury – particularly, given those passages that are referred to later in the oral outline in relation to the justification for unanimity, the unanimity as a means to achieving an end of protecting the criminal standard of proof.
In that sense, giving substance or, perhaps, greater substance to the content of section 80 would be highly significant and it would also contain within it a cohesive vision of what section 80 protects, going back to the division of this Court from Archdall through to Lowenstein, and there have been very strong differences of opinion about how far section 80 goes.
GAGELER CJ: Mr Stanton, you may actually have a stronger point in the context of this case for pressing your section 80 argument, and that is that ground 1 is sought to be met at some level by your opponent saying: well, even if you are right and there is an inconsistency, there is no substantial miscarriage in the context of the directions given by the trial judge as a whole.
So, you might be right, as a matter of law, but you do not get the order you seek in the present case. If you are right about section 80, there is a much more fundamental problem with the trial, and that might give you the substantial miscarriage even if the jury directions, read as a whole, are sufficient to meet ground 1.
MR STANTON: Certainly, an unconstitutional conviction could not be remedied by that section of the Criminal Procedure Act (Vic). So, we did not understand ‑ ‑ ‑
BEECH-JONES J: But why would it be unconstitutional in that circumstance?
MR STANTON: Because it rested upon a foundation where the jury was misdirected as to the criminal standard of proof, which, on our case ‑ ‑ ‑
BEECH-JONES J: Which is the substantial miscarriage point.
MR STANTON: Yes, but, the ‑ ‑ ‑
EDELMAN J: The Constitution would not operate on the conviction; the Constitution would operate on the Jury Directions Act.
MR STANTON: Yes. A consequence, though, is that – and I am adopting the language of Cheatle – the consequence would be that the conviction would be unconstitutional. That is the way it is described in Cheatle’s Case, as a result of that, and it would then go, plainly, to the – it would be the kind of error that could not be remedied. Although we did not understand that our friends were raising, in the shorthand, it been referred to as the proviso, section 276 of the Criminal Procedure Act, in terms of substantial miscarriage. That has not been pleaded squarely in the respondent’s submissions.
Reading the submissions, there was an issue of: are they – is the submission that there is an issue in terms of materiality here because, seen in light of all the other directions, it does not get to a level of constituting error? We did not understand, unlike what was pressed below, in the Court of Appeal, that there was no substantial miscarriage of justice which would enliven Baini considerations, inevitability of conviction and those kinds of issues. So, it had not – that is not a case that we anticipated having to meet.
BEECH-JONES J: Maybe I am wrong, but I do understand there is a proposition that – it is not a submission on inevitability of conviction – that even if section 64(1)(e) was not picked up, the summing up as a whole did not mislead the jury as to the appropriate standard of proof. That is not an inevitability of conviction point, that is a no substantial miscarriage because of that – as I understand it, I may be wrong about that.
MR STANTON: The way that we understood it – and, of course, perhaps we understood incorrectly – is that it is put against us that if it diminishes the criminal standard then you do not get to ground 2, because at that point, we, speaking for the Director, accept that the trial has miscarried and there be a retrial. But it had not been put squarely against us through the prism of section 276 of the Criminal Procedure Act that there was no substantial miscarriage.
It was about determining whether or not the criminal standard was, itself, diminished, and the way it was put, as we understood it, was it is not being diminished because of the other protective directions given in the charge. So we understood. But if it is put against us that there was no substantial miscarriage of justice through the Baini lens then in that sense that does, with respect, provide a significant reason to deal with ground 2 as your Honour the Chief Justice has remarked.
So, for that reason, if it could be dealt with through that prism, then, in our submission, there is another good reason for dealing with ground 2 substantively.
GAGELER CJ: So, you have come to your substantive argument?
MR STANTON: Yes, your Honour. So, your Honour, moving to paragraph 12 of the outline, your Honours will see that we have framed our submissions in terms of history, principle and authority, picking up the language from Cheatle.
We of course accept that the meaning of section 80 of the Constitution is not frozen in time, that – as is clear from this Court’s judgment in Brownlee – there are changes that can be made to the institution of trial by jury that do not diminish its essential character, such as being able to have verdicts from 10 as opposed to 12 jurors. So, in that sense, we understand that Cheatle and the principles from Cheatle also need to be seen in the context of the purposive analysis undertaken by this Court in Brownlee.
So, we do focus upon paragraph 21 of Brownlee in relation to that approach, the judgment of Chief Justice Gleeson and Justice McHugh, and where their Honours held that:
The function of jury trial is not such as to make it essential that the common law rule be preserved in its full rigour.
Their Honours then cited the Supreme Court of the United States case of Williams v Florida, and appeared to accept the proposition that:
“the purpose of the jury trial . . . is to prevent oppression by the Government . . . Given this purpose, the essential feature of a jury obviously lies in the interposition between the accused and his accuser of the commonsense judgment of a group of laymen, and in the community participation and shared responsibility that results from that group’s determination of guilt or innocence.
We also point to paragraph 54 of Brownlee, the joint judgment of Justices Gaudron, Gummow and Hayne, where their Honours noted:
This distinction between the essential and the inessential has been drawn by Cheatle into the constitutional doctrine respecting s 80 of the Constitution.
Particularly, at the end of that paragraph 54 of Brownlee that:
Classification as an essential feature or fundamental of the institution of trial by jury involves an appreciation of the objectives that institution advances or achieves.
So, it will come as little surprise, then, that our submission is that the criminal standard of proof serves a foundational, fundamental, essential purpose in relation to the institution of trial by jury and what trial by jury intends to advance or achieve as an institution.
GAGELER CJ: That has certainly been the general understanding since Woolmington [1935].
MR STANTON: Yes.
GAGELER CJ: Are you taking it back earlier? Is it necessary to take it back earlier for your argument?
MR STANTON: We, of course, do not take an originalist position. We accept though that history is relevant, and this Court in a series of judgments has, of course, considered the history at the time of Federation as being significant.
EDELMAN J: You do, you have to take an – Cheatle is an originalist case. When Cheatle is taking about the essential meaning, it is absolutely explicit, it is the essential meaning at 1901.
MR STANTON: It is a combination of history, principle and authority, and accepting that the institution can, as part of a living constitution, change over time, provided that it is in a manner that does not derogate from the essential features of the institution.
EDELMAN J: Yes, but your submission is that this is one of the essential features ‑ ‑ ‑
MR STANTON: It is.
EDELMAN J: ‑ ‑ ‑ that has always existed since 1901, and the concept in section 80 of a trial by jury.
MR STANTON: Yes.
EDELMAN J: Were there any exceptions in 1901 where a standard different from the standard of beyond reasonable doubt was applied?
MR STANTON: There were certainly reverse onuses placed upon accused ‑ ‑ ‑
EDELMAN J: That is not the ultimate standard.
MR STANTON: No.
GAGELER CJ: Do we see “beyond reasonable doubt” in Sir Samuel Griffith’s Criminal Code?
MR STANTON: Sorry, your Honour, I do not know the answer to that.
BEECH‑JONES J: There was a history of it in Dookheea, was there not?
MR STANTON: Yes. We have endeavoured to set out the history through Dookheea at paragraphs 30 to 34 that shows that “beyond reasonable doubt” was – or perhaps if your Honours go to Dookheea at paragraph 30, and particularly the end of paragraph 30 of the plurality’s judgment:
it appears most likely that the test of beyond reasonable doubt was introduced in the mid‑18th century simply as a means of expressing more clearly the then well‑settled test of satisfaction as a matter of conscience or moral certainty.
There, this Court goes on to consider:
Jurors were not initially directed as to the standard of proof they were required to apply; the standard was left to each juror’s own conscience. But, in an age of strong Christian belief and adherence, it was understood that to convict an accused despite lingering doubts was a violation of the juror’s oath, and that to convict an innocent man was a mortal sin that would result in damnation.
GORDON J: The best point where it is summarised, I think, is at page 421 to 422, halfway through paragraph 33:
Thus, from about the mid‑18th century . . . judges began to employ the expression “beyond reasonable doubt” as, it appears, a means of explaining to juries –
MR STANTON: Yes, your Honour.
GORDON J: And what is interesting:
At the start of that process, all three expressions – “satisfied in conscience”, “moral certainty” and “beyond reasonable doubt” – were used together and all three meant the same.
Then they go on to explain how that history changes.
MR STANTON: Yes, and it appears at the time of Federation, “beyond reasonable doubt” was regarded as being that the standard of proof that was required in a jury trial. We rely upon Woods, A History of Criminal Law in New South Wales, which is at volume 9 of the joint book of authorities at page 2882, at page 4, the summary provided there. I do not know if your Honours have that.
EDELMAN J: But putting aside questions of onuses, you have not identified any instance, certainly by the end of the 19th century or the start of the 20th century, where the ultimate burden was one that was less than beyond reasonable doubt.
MR STANTON: From going through the authorities, Williamson v Ah On, Orient Steam – those cases – it is clear that there could be matters, usually matters that were typically in the mind of an accused person and suffered from what would be seen as potential difficulties, of proof. Or, of course, there is the issue of assuming a homicide was committed with malice or the doctrine of recent possession in terms of – so, there were elements that were certainly where there were reverse onuses placed on the defence which we say still can be consistent with the criminal standard.
But in those cases, there are still elements, to our understanding, that still needed to be proven beyond reasonable doubt. The overarching – as is said in Woolmington, that the jury is always told – and, with respect, it coheres with our experience in the courts – that across Australia every day jurors are told about the criminal standard of proof as really an essential feature of the trial by jury without – there may be a reverse onus for a particular element which the jury is directed about, but the overarching criminal standard applies.
BEECH-JONES J: Does any part of your argument involve dictating what things Parliament can prescribe must be proved beyond reasonable doubt and what things can be the subject of reverse onus, so that whether it is theoretically possible to have an offence where all but the most perfunctory fact is presumed against the accused? Do you grapple with that, or do you say: I do not need to worry about that because we know what the elements are here?
MR STANTON: Certainly, we would say that, but I do not want to avoid your Honour’s question either, which is certainly Parliament has not decided to reverse any of the onuses in this case. Was Parliament to take an approach that all elements were reversed on an accused person, that, in our submission, would raise the kind of issues that are flagged in Kuczborski’s Case, for example, of a reasonableness of that approach.
It may involve Chapter III issues about whether that, in itself, is an abrogation of judicial power but that is not – your Honour is right – this case, and we have not argued this through the prism of Chapter III, because our argument is squarely framed in terms of section 80.
GAGELER CJ: Am I right in understanding your section 80 case to really say that the statement that you draw from Woolmington, in paragraph 17 of your outline, is a requirement of trial by jury in accordance with section 80?
MR STANTON: Yes, insofar as I could not envisage a case where the jury would not be told, in an overarching sense, that the prosecution must prove its case beyond reasonable doubt, subject to exceptions.
EDELMAN J: You would have to say for an indictable offence.
MR STANTON: For an indictable offence.
EDELMAN J: Because Parliament could in almost all circumstances, would it not, legislate to the effect that whatever offence it is concerned with is summary rather than indictable. That is the prevailing doctrine of this Court.
MR STANTON: Yes, and that, of course, returns to the debate of Archdall and Lowenstein. The point, in our submission, is that once it does apply on indictment – as it did in this case – then it applies as Chief Justice French said – except in dissent, but not on this point, in Alqudsi – it applies with an iron grip. So, there is that issue of Parliament can choose to deem murder a summary offence. There was confidence at the time of the conventions that Parliament would not see fit to – there was trust in the legislature not to engage in that process from Justice Isaacs, as a delegate.
But, in our submission, there is the fact that the weakness – if it would be a weakness – of section 80, through the ability of Parliament to determine which matters are indictable and which matters are not, does not alter the iron grip of what are the essential features of a trial that is held on indictment. That is our case, that there was an indictment and accordingly, irrespective of whether there may be brittleness or weakness in terms of section 80 because of that Archdall issue, once it applies, it applies with full vigour, in our submission. That includes a protection subject to reasonable limits of the criminal standard of proof. That is our overarching submission.
In our submission, that approach is consistent with the approach taken by this Court in Cheatle and Brownlee when considering the issue of unanimity. That is a matter of real significant in our submission. If I can perhaps take your Honours to ‑ ‑ ‑
GAGELER CJ: Before you do, you introduced a qualification – I think you said subject to reasonable limits, is that right?
MR STANTON: Reverse onuses, your Honour, yes.
GAGELER CJ: All right.
MR STANTON: In our submission, “beyond reasonable doubt”, particularly the prosecution must prove the case beyond reasonable doubt, has to be seen in the context of it is within the power of Parliament to impose a reverse onus for an element of an offence, or to impose a particular standard of proof to establish a ‑ ‑ ‑
GAGELER CJ: It is very difficult if you are framing your case in terms of the essential attributes of a trial, or the essential nature of the trial by jury, which is at some level descriptive as well as normative to introduce this qualification subject to reasonable limits. It just does not seem to me to gel particularly well with the principal proposition.
MR STANTON: We accept that reverse onuses create a tension. We submit that ‑ ‑ ‑
BEECH‑JONES J: Sorry, I thought your point was your essential notion was directed to where – can bite on prosecution elements, and the case does not raise in a different – a case where Parliament did reverse the onus of proof, which is not this case, there may be that tension that I think you are about to outline, and that may be either a section 80 issue or a Chapter III issue, but that is not this case because this case is predicated on that essential notion when applied to what the prosecution has to prove. Is that right?
MR STANTON: Yes, it is right.
BEECH‑JONES J: Sorry, I did not mean to cut off your answer.
GORDON J: Just so I understand it, the answer is section 80 in its terms says trial by indictment for a Commonwealth offence “shall be by jury”, and you say an essential element of that provision is proof beyond reasonable doubt.
MR STANTON: Yes, as the prosecution must prove its case to the criminal standard.
GORDON J: Beyond reasonable doubt. And that in another case, not this case, someone might have to consider a statutory alteration to some of that, whether by way of reversal of onus on elements or diminishing proof of one element.
MR STANTON: Yes.
GORDON J: But that is not this case.
MR STANTON: Yes.
GORDON J: And you do not seek to have us answer that case.
MR STANTON: No, but this Court has recognised, in relation to those kinds of cases, there is a limit beyond which it is certainly arguable that Parliament cannot go. But, as your Honours have observed, that is not this case. It does not derogate from the essential nature of trial of criminal standard of proof, again returning to Woolmington.
The fact that a jury in every trial, to our knowledge, is invariably directed about the criminal standard – the importance of the criminal standard in the criminal justice process – and the fact that there can be reverse onuses, is able to still cohere with the essential nature of the institution of trial by jury, within which contains the essential characteristic of the prosecution and, I think, the onus of having to prove its case to the criminal standard. That is our submission.
BEECH-JONES J: So, when you say “its case”, are you saying where the onus is on the prosecution, that is its case; where there is a reverse onus, that is not its case that is an accused case?
MR STANTON: Yes.
EDELMAN J: I am not sure if you are going to take us to Cheatle, but in Cheatle the Court says that in the course of finding that an essential feature of the criminal trial of 1901 was unanimity for an indictable offence:
the common law’s insistence upon unanimity reflects a fundamental thesis of our criminal law, namely, that a person accused of a crime should be given the benefit of any reasonable doubt.
MR STANTON: That is an absolutely core aspect of our ground 2. The recognition of unanimity as an essential feature serves what could be seen as higher purpose, which is the protection of the criminal standard. In fact, the Court repeats that principle. It is both at page 553, in the passage that your Honour has just – or perhaps before I move to where they repeat it, it is important to put that passage in its context, as well, where the Court cites Sir James Stephen’s writing in 1883, that:
“The justification of the rule, now that the character of the jury has changed from that of witnesses to that of judges of fact, seems to me to be that it is a direct consequence of the principle that no one is to be convicted of a crime unless his guilt is proved beyond all reasonable doubt. How can it be alleged that this condition has been fulfilled so long as some of the judged by whom the matter is to be determined do in fact doubt?”
So, they are inextricably linked – the criminal standard and unanimity, in our submission. When one considers the institutional purpose of and objectives of – we comprehend and understand that the trial by jury has a significant democratic purpose, as well, in terms of the history that your Honour the Chief Justice sets out in Alqudsi, particularly in relation to the campaign by emancipists to be able to sit on juries.
We accept that there is a strong democratic function of trial by jury, but there is also a strong liberty protective purpose of trial by jury, and that is in part achieved through unanimity achieving the end of protecting the criminal standard of proof, in our submission. So, just returning to where the Court repeats that issue at page 561, halfway down the page – page 561 – the principle is repeated:
As has been seen, the requirement of unanimity in the case of a criminal jury conforms with the fundamental thesis of the criminal law that a person should not be convicted of a criminal offence if there is any reasonable doubt of his or her guilt.
So, the principle is important enough for it to be repeated in short time in that judgment. Then in Brownlee, when the Court came to consider whether or not a statutory provision reducing the number of jurors required unanimously to return a verdict of guilt was consistent or inconsistent with the institution of trial by jury, again that is done through the prism of the criminal standard of proof.
EDELMAN J: In other words, your submission is really that the essential feature of unanimity is itself derived from an even more fundamental feature, which is the beyond reasonable doubt.
MR STANTON: Yes, and when one considers potential legislative amendments that may be in tension with that principle of unanimity, the prism through which this Court has considered it is whether or not – well, perhaps I will take your Honours to paragraph 22 of Brownlee, Chief Justice Gleeson and Justice McHugh, where their Honours consider a verdict to be able to be given by the remaining 10 jurors and conclude that:
Such a system is not inconsistent with the purposes of trial by jury. In particular, it is not inconsistent with the objectives of independence, representativeness and randomness of selection, or with the need to maintain the prosecution's obligation to prove its case beyond reasonable doubt.
GORDON J: That is again predicated on the sentence before by unanimity.
MR STANTON: Yes, but unanimity as a means to an end of arguably achieving an even higher purpose, which is protecting the criminal standard. If there is to be a derogation from unanimity or an arguable derogation from unanimity, does that affect an essential feature of trial by jury which will – will this diminish the jury determining guilt to the criminal standard? In Brownlee the Court says, well, no, the system can accommodate that, but of course there may be levels beyond which Parliament cannot go, such as below 10 jurors. So, the criminal standard an unanimity are entwined in the key authorities, in our submission.
Your Honours, there are many references to the fundamental importance of the criminal standard. At paragraph 16 of our outline, we have referred to two: Azzopardi, paragraph 34, which at turn adopts what was set in RPS; and also Lee, which I will come to shortly. This is a situation in our submission where perhaps a statement that the criminal standard of proof is of fundamental importance has perhaps been said too many times to be doubted, in our submission. So, we rely on our submissions.
There are other examples – Caltex, for example – but it has been repeated, and repeated often as a fundamental importance, which takes us to Lee. I will seek to take your Honours to paragraph 177 of Lee. Justice Kiefel – as her Honour then was – accepting that ‑ ‑ ‑
GAGELER CJ: What is the Commonwealth Law Report reference to Lee?
MR STANTON: Sorry, your Honour, Lee (2013) 251 CLR 196.
BEECH-JONES J: I am sorry what paragraph did you want us to go to?
MR STANTON: Paragraph 177. Of course, Justice Kiefel was in dissent in terms of the result in Lee prior to – of course, Lee (No 2) in that series of judgments, from X7 to Lee to Lee (No 2), but in our submission, paragraph 177 is significant in terms of the potential framing of section 80. So, her Honour notes that:
Trials upon indictable offences take place before a jury, the function of which is to determine whether the prosecution has proved beyond a reasonable doubt that the accused committed the offence in question.
So, a statement of, again, the centrality of the criminal standard. Then there is a reference made to the judgment in R v Snow of Chief Justice Griffith in relation to construing of section 80, which we also rely upon. Then her Honour goes on at the end of that paragraph:
It is therefore possible that a derogation, in a fundamental respect, from such a trial may raise a constitutional question. It is not necessary to further consider that possibility in this case.
But, in our submission, this is such a case. Your Honours, I am moving to paragraph 17 of our outline, on reverse onuses. I do not wish to repeat what has already been submitted, but our overarching submission is that the existence of reverse onuses at the time of Federation or now does not diminish the essential characteristic.
Our submission is that it is the case that juries are always told that the prosecution has to prove its case beyond reasonable doubt. We accept, of course, that Woolmington was decided after Federation, but that reflects a position that, we submit, history demonstrates was the case at the time of Federation. Our ultimate submission is that the core function of section 80 is the provision of a robust community interposition between the individual and the State, and that protects both liberty and the constitutional relationship between the individual and the State.
It encompasses, also, those democratic considerations that I submitted earlier, and there is no incoherence, in our submission, with the notion that that function can tolerate reverse onus provisions in relation to the element of the offence. What it cannot tolerate, taking an essential approach, is a wholesale reduction of the standard of proof.
In our submissions, for the reasons advanced by Mr Gurvich, the unrealistic possibility direction does result in a diminishing of the standard of proof. So, that is not a decision made by Parliament that in a particular category of offence, where there may be a particular element within the knowledge of an accused, there has not been a legislative choice to reverse an onus. There has rather been a direction that if our primary submission is correct, runs the risk of jurors reasoning in terms of: that is just unrealistic, that defence was just unrealistic, the defence has not raised a realistic case. That is something that section 80 cannot tolerate, in our submission.
The last point in the outline is societal values. Really, this responds to our learned friend the Solicitor-General for the State of Victoria in terms of arguments in relation to adjustments made to, effectively, the calculus of conviction of the guilty at the risk of the erroneous conviction of the innocent. In our submission, it is worth emphasising that given the essential nature of the criminal standard, the fundamental foundation or nature of the criminal standard, arguments of convenience or practical utility cannot justify a weakening of an essential feature.
We there emphasise an argument that we accept is a different argument, but an argument that was made that echoes similar submissions in relation to unanimity not being an essential feature of trial by jury. So, in Cheatle at page 561, the Court deals with what is described as the argument or convenience, where it was submitted:
that there are powerful practical considerations favouring the acceptance of majority verdicts in criminal trials in contemporary Australia.
Of course, there the Court says:
It is a matter for the people of Australia for whose protection the guarantee, including the requirement of unanimity, was adopted.
As an essential feature, and:
Secondly, it is not, in any event, apparent that considerations of contemporary convenience or practical utility favour an abandonment of the requirement of unanimity in the case of a criminal jury. To the contrary, one can point to strong support for the view that the requirement of unanimity of a criminal jury is, on balance, in the public interest in this country.
And we would make the same submission in relation to the criminal standard of proof, that it serves an individual protective function, but also serves a utilitarian function in relation to the type of society that we wish to live in. That is why, in our submission, section 80 survived in its current form through the convention debates and, in our submission, it is a logical approach in light of the judgments of Cheatle and Brownlee to hold that the criminal standard of proof is itself an essential feature.
It cannot be suggested that, well, it really should just be a matter for Parliament, a given Parliament, to decide whether or not we wish to change the calculus in relation to conviction rates or lowering the standard of proof. If it be a guarantee, then they are other mechanisms upon which the guarantee could potentially be altered, but it does not lose its protected status because of arguments of utility in our submission.
So, for that reason we return to where we commenced our submissions, and also on that page of Cheatle, that, in our submission history, principle and authority combined to compel the conclusion that section 80 encompasses not only unanimity but also protection of the criminal standard of proof.
EDELMAN J: Mr Stanton, just before you conclude, the repeated passage in Cheatle that you took us to, do you say that is an essential part of the Court’s reasoning towards its conclusion that unanimity is an essential feature of a jury trial for an indictable offence?
MR STANTON: We do not submit that. It is certainly an important factor in the Court’s reasoning in terms of analysis of the values and purposes of the institution of trial by jury. It is put against it that we elevate it to the level of being ratio in that case. In our submission, it is difficult when one is considering a multiplicity of factors that lead the Court to a conclusion that unanimity is an essential feature.
In our submission, at minimum, it is certainly highly significant and a very, with respect, persuasive account of the purpose of unanimity achieving that, whether it was necessary or not for the Court to decide that unanimity is an essential feature, may be contestable, but in our submission, it ‑ ‑ ‑
EDELMAN J: Well, I think it is practically an important question, because if that is an essential part of the reasoning, then the respondents have to reopen Cheatle, do they not?
MR STANTON: Yes.
EDELMAN J: What is your submission on that? Do you say that it was an important part of the reasoning or do you say that the conclusion of the Court in Cheatle about unanimity was dependant upon their reasoning about “beyond reasonable doubt”?
MR STANTON: We say that it was an important part of the reasoning.
GAGELER CJ: Does that conclude your argument, Mr Stanton?
MR STANTON: Yes, your Honours.
GAGELER CJ: Thank you. Ms Sharp.
MS SHARP: May it please the Court. We set out in paragraph 1 of our oral outline the proposition, which we understand our learned friends have now accepted, that both grounds of appeal depend on the proposition, and the singular proposition, that if the impugned explanation – called simply “the direction” by our learned friends – that is, the words:
“a reasonable doubt is not . . . an unrealistic possibility” –
as they appear in section 64(1)(e) of the Jury Directions Act, if those words, when given to a jury, mean that the jury will – will – derive a false perception of the basis for deciding whether the Crown has proved its case, and that is irrespective of the context in which the explanation is or may be given.
JAGOT J: Meaning necessarily will?
MS SHARP: Necessarily will, yes, your Honour. And as your Honour Justice Jagot identified in the two steps ‑ ‑ ‑
JAGOT J: Or must, I suppose.
MS SHARP: Must, yes. And, in our submission, that proposition is clear from the grounds of appeal, which we find in core appeal book at page 238, and inform both how the arguments have flowed this morning, but also the concession that we have made in writing, which I will take the Court to. But if I can go briefly to the grounds of appeal in the core appeal book at page 238, the Court will see there that both grounds depend on the section 68 question:
Ground one: the Court below erred in holding that there is no inconsistency –
and concluded by saying that that is because no inconsistency with section 80 or:
s 13.2 of the Criminal Code (Cth), with the consequence that s 64(1)(e) is picked up in its entirety by s 68(1) –
Similarly, ground 2 depends on the question of whether it is picked up, based on an inconsistency argument. If that inconsistency point is correct, if our friends are correct that the words – the direction, as defined by our learned friend, the impugned explanation, as we have called it – if it is correct that those words necessarily diminish the burden, then that is the case, they are inconsistent and they would not be picked up. And if they necessarily diminish – sorry, not the burden, the standard of proof. If they necessarily diminish the standard of proof, then there will have been a substantial miscarriage and there is no course to consider the entirety of the direction as a whole.
It is for that reason that the Crown accepted that if the appellants made good step one, as your Honour Justice Jagot has described, or the proposition, as we have described it, in paragraph 1, we accept that there has been a substantial miscarriage. Of course, in our submission, they have not made good that proposition, for a range of reasons which we have set out in writing and which I will seek to take the Court through now.
Really, the question then is whether the example explanation in paragraph 64(1)(e) of the Jury Directions Act necessarily diminishes the standard. In our submission, it does not. The task that we are engaged in at this point is one of statutory construction. Do the words in 64(1)(e) disclose or provide for an explanation that is inconsistent with section 13.2 of the Code?
I am putting to one side ground 2, section 80. On our submission, if it inconsistent with 13.2, that answers ground 1, our learned friends do not need ground 2, and if it is inconsistent and was not picked up, then our learned friends are successful and, similarly, ground 2 is not necessary to answer.
BEECH-JONES J: Ms Sharp, I think the question I asked of your opponent I will ask you. Is that 64(1)(e) referring to a singular direction or a composite one – “not imaginary”, “fanciful” or “unrealistic” – or is it authorising, I think, as Justice Edelman would put it, a combination of perhaps up to 12?
MS SHARP: There is a nuanced answer to that question. As drafted, it is a composite direction, one whole phrase. However, it does not seek to bind a trial judge in the directions that are given. The trial judge has a discretion to say, within the context of the law, as we all understand it, practically anything in a direction.
As we understand it, what section 64(1) is doing is giving judges an example of what may be provided as an explanation for what “beyond reasonable doubt” – how the jury can understand “beyond reasonable doubt”, and these are, as each of paragraphs (b) through to (e) confirm, by their introductory words, they are indications, this is what a judge can indicate to the jury.
Really, the purpose of the crafting of paragraph (e) in toto, really, is giving trial judges comfort to know that, if they were to use those string of words in that form, then they could not be said to have said anything that is inappropriate, because it has been endorsed by Parliament, as it were.
EDELMAN J: So, when – you say the example that has been provided is an example of a single, composite direction?
MS SHARP: Yes, your Honour, and it is that example, the proposition in paragraph 1 of our written outline, that our learned friends seek to really attack, and we submit that it should be considered in toto, together.
BEECH-JONES J: And if a trial judge just did pick out one phrase, then the question would be, well, it could be said there is no comfort for that course under 64(1)(e), but whether it is ultimately a substantial miscarriage is a different question.
MS SHARP: That is correct, your Honour.
BEECH‑JONES J: And look at the summing up as a whole, for example.
MS SHARP: Yes. So, our learned friends’ case depends on the proposition, as your Honour Justice Jagot identified, that these words will necessarily, in every case, diminish the standard.
EDELMAN J: And that is because of the “may”, is it?
MS SHARP: No, that is simply their argument. I am sorry, your Honour, I am misunderstanding your Honour’s question.
EDELMAN J: Yes, I appreciate you say that comes from their notice of appeal, but as a matter of statutory interpretation, is that because of the word “may”? Because the trial judge may give the direction – it means that it would only be if in every case that direction were flawed that the provision would not be able to be picked up by section 68.
MS SHARP: Yes, it is an absolutist point: if that is the string of words and it is inconsistent, then it cannot be picked up.
BEECH-JONES J: And the string of words is all the words.
MS SHARP: All the words in subparagraph (e).
BEECH‑JONES J: Yes.
MS SHARP: So, on the case before us and on our argument, it is subparagraph (e) that is sought to be impugned, even though there are many words in that Part, and as we know and as we will see, when I take the Court to the directions that were actually given in this case, the judge did not read subsection 64(1) verbatim, word for word; there were other concepts interposed and he changed the order.
JAGOT J: But paragraph 3 of your outline suggests that even if it is not a composite phrase, it does not matter.
MS SHARP: That is correct.
JAGOT J: You say it is?
MS SHARP: It is a composite phrase, but in any event ‑ ‑ ‑
JAGOT J: If they want to pick up part of (e), they should be picking up the whole, but even if they did not, paragraph 3 kills it off anyway.
MS SHARP: Even if – that is correct, your Honour.
JAGOT J: Yes.
GORDON J: Can I just understand that answer to that question. I had understood your response to Justice Beech-Jones to mean that if it had been picked up in part, it was a separate question about whether or not there was a substantial miscarriage of justice, having regard to the direction as a whole, the summing up as a whole. Is that a different answer to that you just gave Justice Jagot?
MS SHARP: Can I nuance my response by saying the “unrealistic possibility” is not so distinct from an unreal possibility that using that as a form of explanation does not necessarily, in and of itself, diminish the standard. That is divorced from context.
GORDON J: Thank you.
MS SHARP: I cannot say that these words as they appear in 64(1)(e), would, whether they are given in combination or individually, one cannot say that a particular word or words would never be productive of a substantial miscarriage, because that is a question that will depend on the trial that was had and the direction that was given as a whole.
GORDON J: I put to your opponents that there are really three questions. One is the question of construction, that is, the criticism that might be made of their argument was that they had excised these words from the balance of the totality of the provision. That is your first argument?
MS SHARP: Yes.
GORDON J: And then the second, as I now understand it, is that even if they have excised them and one takes the appellant’s argument on its face, it fails for the reasons you have just put.
MS SHARP: Yes, your Honour.
GORDON J: And then third is the separate question of substantial miscarriage of justice in the context of the direction as a whole.
MS SHARP: Yes, but we conceded that if, as I have outlined, if our opponents are correct, then that necessarily answers the substantive miscarriage question because it necessarily diminishes the standard. For example, if the words were, for example, you can explain to a jury and say, beyond reasonable doubt is the balance of probabilities, if you are 51 per cent satisfied, that is enough, those words do diminish the standard and would be productive of a substantial miscarriage. That would not be picked up and, when given, they would provide evidence of a substantial miscarriage.
GORDON J: Even if that had been corrected later on? I am sorry, I made a fundamental error here and I want you to disregard all of it, and what I am about to say to you now is to be the guiding principle of law that you are to apply?
MS SHARP: If it was then said that “beyond reasonable doubt” means those words mean what they say – I would like to adopt your Honour’s observation, but can I come back to your Honour in response to that question?
GORDON J: Yes, please.
MS SHARP: I do not wish to overstate the position on that.
JAGOT J: You must be able to correct an error in the context of a particular trial, provided you do it well enough. But you could not have in a statute, (e) as you can say, you may say beyond reasonable doubt is satisfied by anything over 50 per cent. If you had that ‑ ‑ ‑
MS SHARP: It would not be picked up.
JAGOT J: ‑ ‑ ‑ then there is not be a lot of statutory interpretation needed, it is clearly diminishing.
MS SHARP: Thank you, your Honour Justice Jagot.
JAGOT J: ‑ ‑ ‑ and then the consequences of that then would follow ‑ ‑ ‑
MS SHARP: Yes, I accept that.
JAGOT J: ‑ ‑ ‑ but we are a long way from that.
MS SHARP: Yes, we are. I am sorry, Justice Gordon. I hope that answers your Honour’s question.
GORDON J: Thank you.
GLEESON J: Ms Sharp, when you answered Justice Beech‑Jones’ question, you seemed to suggest that when we got into the case of a judge directing only on “unrealistic possibility”, we would be in the substantial miscarriage of justice territory. I may have misunderstood you, but section 63 imposes the duty on the trial judge to give an explanation.
MS SHARP: Yes.
GLEESON J: Are you saying that the trial judge is confined by section 64 as to the nature of the explanation?
MS SHARP: No, your Honour, and I apologise if I was not clear. There is the obligation to give an explanation, and then in section 64 we find an example of explanations that may be given. If a trial judge gives an explanation consistent with the example, then the trial judge could take some comfort from that in saying, I have not strayed outside the boundaries, this explanation has been endorsed by Parliament.
If a trial judge chooses a different formulation or chooses to modify the explanation – which is in their discretion, it is only an example explanation – then the question would not be – then you could not meet an argument that there was a substantial miscarriage by saying the direction is consistent with 64(1)(e), you would have to meet it by saying, in the context of the direction it is not productive of a substantial miscarriage.
We have addressed in writing in our oral outline what we say is the non‑distinction between the concepts of an “unreal possibility” and an “unrealistic possibility”. In our submission, there is no material difference, there is no real difference between those two terms such that if it is accepted, as it is by our learned friends, that addressing the jury that what is not a reasonable doubt is an unreal possibility is appropriate and acceptable, then, similarly, addressing it by reference to an unrealistic possibility is similarly appropriate.
STEWARD J: Can I ask, do you endorse or agree with the definition of “unrealistic” in Justice Priest’s judgement? In particular, the use of the word “improbable” – and how do you construe that word?
MS SHARP: Your Honour it is – excuse me, my iPad has just decided it does not want to recognise me.
STEWARD J: So, paragraph 40.
MS SHARP: I can see it, I just wanted to have the words in – I can see it in my mind’s eye. Your Honour, in our submission, it is not a matter of – well, for the statutory construction point, perhaps I do need to accept a particular definition. There were dictionary definitions before the Court of Appeal, and his Honour has identified a number of words that are synonyms with what is “unrealistic” in that context, and other words as contemplated by Green in relation to “unreal”.
What I would say about that is the ultimate conclusion, we absolutely adopt, that while there may be semantic differences between the two and English dictionaries are replete with multiple synonyms for words, the point is that there is no practical difference between them, and a jury, who are not told that an unreal possibility is okay but an unrealistic possibility is not – remembering the jury only receive the instructions from the trial judge – in the context in which it appears in 64(1)(e), that unrealistic possibility does not, in our submission ‑ ‑ ‑
STEWARD J: But I think it is important for your opponent’s case. He submitted that a jury would always construe the words “unrealistic possibility” as including improbable possibilities. My question to you is, what do you say about that?
MS SHARP: Our learned friends’ case is quite – they adopt quite a large proposition to say what a jury of 12 people who are unidentified, whose knowledge, experience, education is not known, to say that they necessarily must construe a particular word to mean that particular factor. I do not resile from “improbable”, it is the definition that Justice Priest used. I do not submit that it is problematic in any way, if that is the definition of “unrealistic”.
STEWARD J: So, do you say “improbable” should be given its ordinary meaning here?
MS SHARP: Yes, your Honour. Could your Honour just give me a moment – would your Honours excuse me for one moment?
STEWARD J: Of course, yes.
MS SHARP: Can I apologise to the Court, I am being reminded – and I thank my learned juniors – we did submit in the Court of Appeal that “improbable” was not part of the definition of “unrealistic”, that they were not synonyms, so I apologise and withdraw those submissions.
GLEESON J: Does not “unrealistic” have a kind of qualitative connotation, in addition to that kind of quantitative language?
MS SHARP: It is adjectival. It is describing the nature of the possibility. There is still a possibility, it is just one that is considered or might be considered to be unrealistic.
STEWARD J: Sorry, Madam Director, does that mean you disagree with the word “improbable” being in that list?
MS SHARP: Yes, your Honour.
STEWARD J: Okay. All right.
MS SHARP: We have not put a notice of contention on it, but yes. I am being assisted by the submission that was made below. We submitted clearly that, below, the appellant sought to equate “unrealistic” with “improbable” to make his point, but in our submission, the words are not synonymous.
GORDON J: The point made by Justice Priest, though, is a bit more nuanced. He, in effect, as I understand it, adopted the various dictionary definitions both parties put forward and said: listen, I can accept all of them, they are all nuanced, they all have grades and degrees in the sense that the differences between them are semantic, marginal nuances. I mean, he is not saying any more than that, is he?
MS SHARP: No, your Honour. That is why I would return to the final sentence of paragraph 40, which is the real point that his Honour was seeking to make there, that whilst they may be semantic differences, there may be grammatical differences as to why you would include the suffix on the adjectival – on the use of “unreal” as an adjective, “unrealistic” as opposed to “unreal” – the real question is whether there is a practical difference between them and whether, when given to a jury in the context of the example explanation in 64(1)(e), that diminishes the standard of proof.
JAGOT J: One point is, the jurors are not given: and by the way, “foolish” means this, and “real” means that and “unrealistic” means that. I mean, we lawyers, we look at words and “improbable” probably leaps out at us because we think, balance of probabilities equals civil, and that is not criminal, but if you look at “realistic”, it is “bizarre” – “bizarre” is one of the words – and in ordinary parlance, you know, people are saying things are bizarre all the time. You would think that a bizarre possibility, as a lay person – why is that not equally offensive to the appellant as improbable? It is not because, basically, you are saying that they are just shades of meaning but they are really the same thing.
MS SHARP: Yes, your Honour.
JAGOT J: I suppose it comes back to my point that “‑istic” is just an ending describing a quality, the ending is not “‑ish” – it is not “real‑ish” or “unreal‑ish”, it is quite a different ending.
MS SHARP: With respect, your Honour, we would agree with those observations. Whilst we are on the language of “probable”, can I actually just take the Court to the example explanation, section 64(1), because the concept of “probable” is contained there, in subparagraph (1)(b). So, one of the explanations that a judge may give, which our learned friend agrees is an appropriate explanation to give, is that the judge should:
indicate that it is not enough for the prosecution to persuade the jury that the accused is probably guilty or very likely to be guilty –
So, here, we have the distinction between “probable” in the context of “beyond reasonable doubt” being something more than “probably guilty or very likely to be guilty”.
JAGOT J: That is probably a relevant construction, is it not, because it indicates what Parliament thought it was saying when it said “unrealistic”.
MS SHARP: Yes, your Honour.
GORDON J: Can I add to that? We keep not taking the whole of (e). When one looks at the whole of (e) and one looks at the phrase, it is:
not an imaginary or fanciful doubt or an unrealistic possibility –
Is that not another indicator of what Parliament was doing? Do not those words which are the subject of challenge take their colour from what has gone before them?
MS SHARP: Yes, your Honour. So, on the statutory construction point – the first point, which I had not yet made, was the “unrealistic possibility” should be construed in context of 64(1)(e) but also in the context of the provision in which it appears as a whole – that is, the whole of section 64(1).
EDELMAN J: And in light of the whole of section 64(1), do you say that section 64(1)(e) is definitional, in the sense – is it trying to do anything more than, for example, 64(1)(b), to say this is not enough for “beyond reasonable doubt”? The flipside of that would be, in 64(1)(e), to say: whatever “reasonable doubt” is, we are not trying to define it, but it is not – you do not have to show – “imaginary or fanciful doubt” or “unrealistic possibility”.
MS SHARP: We agree with that, your Honour. It is not a definitional phrase in the sense that it is defining what “beyond reasonable doubt” does or does not mean. It is providing an explanation, an indication, to the jury to assist them in making their decision as to what is beyond reasonable doubt in this case. Because, as we will see, juries are generally also directed that “beyond reasonable doubt” – the words mean what they say, and so it is in that context that an explanation about “beyond reasonable doubt” is also given.
I would add that the words in 64(1)(e) are supported by the legislative history, the reports, the interviews with jurors and the discussions with judges about the challenges facing jurors in the modern age. It is also consistent with the Canadian case of Lifchus, which is in the materials and which was the subject of some discussion this morning in terms of the imaginary or fanciful.
Then one sees, from the extraneous materials, from the report, that the word “frivolous”, which was the Canadian word, was exchanged in the Victorian context for language which was thought to be more readily understood and more appropriate in the Australian context. So, it is not that the Parliament decided that these words – picked these words out of nowhere. They do have a legislative history and a context for inclusion here as a possible explanation for the concept of what a “reasonable doubt” is not.
GAGELER CJ: We were also told that they nevertheless have a novelty. These words do not appear elsewhere in statute or in case law.
MS SHARP: Those words in that string, that is so, your Honour.
GAGELER CJ: The words “unrealistic possibility”.
MS SHARP: “Unrealistic”, yes. “Unreal possibility” is, of course, a concept that is known to the law and is accepted by our friends as being permissible. But the “unrealistic possibility”, that is correct, we were not able to find another example of it, but that is not to say, as I have indicated, it has come out of the blue, without a particular context.
BEECH-JONES J: “Fanciful” is mentioned in Dookheea at paragraph 36.
MS SHARP: Yes, and I think “imaginary” is mentioned in one of the other cases, but I will be assisted by – in Green as well. Can I turn then, briefly, to the point about the reference to an “unrealistic possibility”, erroneously, as our friends submit, invites:
jurors to subject their mental processes to objective analysis –
In our submission, that misunderstands Green and is inconsistent with this Court’s observations in Dookheea. The observations in Green about that were not the central issue in the case. Really, the central issue in Green was about the final concluding observations, when the judge said:
you do need to feel comfortable about it –
as a reference to the state of satisfaction that the jury should come to before they would convict. And as this Court stated in Dookheea, quite emphatically, the line of authority on which our learned friends rely, about subjecting the mental processes to objective analysis, should not be followed.
Can I take the Court to Dookheea in a little detail, to just tease out some of the points I have been seeking to make and will seek to make? Dookheea (2017) 262 CLR 402 is in volume 5 of the joint book of authorities, and if I can commence at paragraph 16, with the impugned direction in that case. The iPad fails me again, I apologise.
GAGELER CJ: It may be a convenient time for us to take the luncheon adjournment.
MS SHARP: Thank you, your Honour.
AT 12.45 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.14 PM:
GAGELER CJ: Ms Sharp.
MS SHARP: Thank you, your Honour. Can I commence again with a slight correction. Immediately before the luncheon break, we were speaking about the term “imaginary”, and I indicated that it came from the case of Green. That is incorrect. It came from the case of Lifchus, the Canadian case, and that can be found at volume 7, tab 44, at paragraph 31. It is referenced in our written submissions at paragraph 35. I apologise for the incorrect reference.
Before lunch, I was at paragraph 5 of our oral outline and on reflection, having considered the submissions that were made this morning and the argument that flowed between the Court and our learned friends, we do not have any further points to make in relation to point 5 other than the points, obviously, that we have made in writing about that.
Turning, then, to point 6 of the outline, this morning there was some brief discussion about the directions that were given in the trial before the evidence was heard and that his Honour had made some directions about “beyond reasonable doubt”. I can make available a copy of that transcript. It was before the Court of Appeal below. I can confirm, in the transcript, that his Honour addressed the “imaginary” or “fanciful” but did not refer to the “unrealistic possibility” part of the direction from 64(1)(e).
GAGELER CJ: Yes, you can provide that after.
MS SHARP: May it please the Court, we will make arrangements for that transcript to be provided.
GAGELER CJ: Thank you.
MS SHARP: In terms of, then, the points that we seek to make, or the points made at paragraph 6 of the oral outline, referencing the trial that was had is not done for any kind of confirmatory process, but really, we would submit that the directions that were given in this trial, whilst not relevant to the strict statutory construction point, do provide a practical example of how the explanation is given in a trial – just to provide an example of how 64(1)(e) reads on the page and how it was constructed or can be constructed in terms of its combination with other directions.
If it assists the Court, having a copy of 64(1)(e) together with that paragraph or that portion of the directions can be of assistance. The relevant portion commences at core appeal book page 22, from line 12. Your Honour Justice Gordon was taking our learned friends through that portion this morning, and that is really the portion of the charge that includes those directions.
As I indicated, or as I submitted, it really shows why our learned friends’ proposition that the words in 64(1)(e), the “unrealistic possibility”, do not always diminish the standard of proof. One can see in practice here, as an example of the use of the words in a direction that was given, in our submission, do not. Now, that is in two parts to that ‑ ‑ ‑
GAGELER CJ: You say that there is nothing wrong with the primary meaning conveyed by those words.
MS SHARP: Correct.
GAGELER CJ: If that is so, why do we need to see them as used in an example?
MS SHARP: There is no absolute requirement for that, your Honour, and I do not seek to put them before the Court to make good the proposition, it is just to provide a practical example of how the words are used in practice. That is all.
GAGELER CJ: Thank you. We have read the direction that has been given.
MS SHARP: Those are the submissions we would seek to make in relation to ground 1. Can I turn briefly, then, to ground 2. As indicated before lunch, both grounds turn on the section 68(1) question, and our case has always been and remains that if the appellant is successful on ground 1, then there is no need to turn to ground 2. If the appellant is unsuccessful on ground 1, the appellant cannot be successful on ground 2.
And so, our primary submission remains it is simply not necessary to determine ground 2 on either resolution of ground 1. Either way, ground 2 does not arise. In explaining the concession that was made this morning, I
sought to clarify why the concession that was made does not open a pathway of reasoning or a need to consider ground 2 in the context of this case.
We have set out at points 8 to 10 of the oral outline the key reasons why these significant and complex issues really should be decided in a case in which it is necessary to decide them in order to determine the outcome of that case and the rights of the parties before the Court in that litigation. As we have submitted, this is not that particular case. Those were the submissions I sought to make on ground 2. We would otherwise seek to rely on our written submissions.
May it please the Court.
GAGELER CJ: Thank you, Ms Sharp. Mr Solicitor for Victoria.
MR POUND: May it please the Court. Our first submission is that the proper focus of analysis for the purposes of section 68(1) of the Judiciary Act is not the meaning of the words “an unrealistic possibility” in isolation, but rather the whole of the relevant statutory context.
Whether the two provisions are inconsistent, and by that, I mean section 64(1)(e) or the particular words about which the appellant complains and the standard of “beyond reasonable doubt” in section 13.2(1) of the Code, whether those two provisions are inconsistent for the purposes of section 68 of the Judiciary Act requires attention to their operation and effect, or as your Honour Justice Gordon said this morning, to the whole structure of the Act.
The operation of section 13.2(1) of the Code is uncontroversial. It sets the standard of proof applicable whenever a legal burden is cast upon the prosecution as being beyond reasonable doubt. The operation of section 64(1)(e) does not directly cut across that. It plainly does not, in terms, purport to impose a different standard of proof. What it does is to provide legislative authority for a trial judge to explain the “beyond reasonable doubt” standard and to do so using the examples provided.
That is illustrated by several features of sections 63 and 64. The first is that those sections are expressly concerned with explaining the standard – they do not purport to modify it. The second is that section 63 creates a presumptive requirement to give an explanation of the standard unless there are “good reasons” not to do so. That is intended to overcome the common law’s traditional reluctance to provide an explanation.
Thirdly, there is no requirement to give each limb of the potential explanations in every case. That follows from the word “may” in the chapeau to section 64(1) and the use of the word “or” after each of the subparagraphs.
Fourthly, no precise form of words is required – that follows from the verbs “refer” and “indicate” in each of the subparagraphs; it follows from the effect of subsections 63(6) and (7), which permit a direction to be repeated if the trial judge considers it necessary to do so, and the trial judge does not have to use the same form of words each time; and it follows from section 6 of the Jury Directions Act, which provides that in giving a direction, no particular form of words is required.
BEECH-JONES J: Do you accept Ms Sharp’s submission that 64(1)(e) is authorising a particular form of composite direction, but the section is not excluding the ability of a trial judge to give some other type of direction, which would be evaluated in the context of the particular trial?
MR POUND: We do, your Honour. We would accept Ms Sharp’s submission, as I think she put it, if the trial judge were to use the form of words provided in the examples, that gives the judge some comfort. That does not constrain the judge using a slightly different form of words, but they might lose the benefit of the legislative authorisation if they do that.
STEWARD J: So, Mr Solicitor, would it follow from that, that if Chief Judge Kidd had used the language of the Canadian case, that would have complied with 64(a) – if he had used the word “frivolous”?
MR POUND: I think it would have, your Honour, yes.
STEWARD J: All right, thank you.
GAGELER CJ: I think there are two points that have perhaps been rolled into one. They might both be good points. One is that 64(1) is not exhaustive, that other directions, in other words, can be given. But the second point that I thought you were making was that the wording of 64(1)(e) is not prescriptive, but rather it is indicative of the substance of what can be said, in other words, so that 64(1)(e) authorises words to the effect, which need not be the exact words. Is that part of your submission?
MR POUND: Yes, your Honour.
GAGELER CJ: Yes.
MR POUND: And an example of the first point your Honour made, which I was going to come to, is the direction given by the trial judge, as I think has already been noted this morning, that the words:
beyond reasonable doubt’ mean exactly what they say –
the trial judge did give that direction.
BEECH-JONES J: But what is being – the words to the effect of in 64(1)(e) is the whole phrase: imaginary or fanciful or unrealistic.
MR POUND: Yes, your Honour, we would say that Parliament has sought to authorise the use of the whole phrase.
GORDON J: And when it does not, when the trial judge decides not to, then that falls within the Director’s submission that one moves to not have the statutory protection of 64(1)(e), but then considers it under the old rubric.
MR POUND: Yes, your Honour. It may not be entirely the old rubric, because section 63 would still have given the trial judge the authorisation to explain the standard.
GORDON J: Yes.
MR POUND: But then whether the explanation resulted in some misdirection might then ‑ ‑ ‑
GORDON J: Thank you.
MR POUND: ‑ ‑ ‑ return to the old standard.
GAGELER CJ: While you are being interrupted, could I just ask you a related question. It is about the way you frame the second sentence of paragraph 2.1 of your submissions, with the word “necessarily” italicised. I saw the same word in the respondent’s submissions. That is not meant to carry some concession that there will be circumstances in which a reference to “unrealistic possibility” in the context of a direction that accords with section 64(1)(e) will diminish the standard of “beyond reasonable doubt”, is it?
MR POUND: No, your Honour, and perhaps looking at this now, we should have used the word “could” instead of “can”.
GAGELER CJ: Yes.
MR POUND: What we were trying to capture there is the point that I think has come out very clearly from the appellant’s submission and the respondent’s submission, is that the case that is put by the appellant is that use of the words “an unrealistic possibility” in the course of any direction ‑ ‑ ‑
GAGELER CJ: Just is inconsistent ‑ ‑ ‑
MR POUND: ‑ ‑ ‑ must necessarily diminish the standard.
EDELMAN J: But everything depends on context. There must be circumstances where “unrealistic”, in context, could diminish the standard. If a trial judge, ridiculously, said: “unrealistic” in the sense of “probably”, that would diminish the standard. I mean, it all depends on the precise context of the directions given.
MR POUND: We accept that, your Honour, yes. Our point is simply that there is no necessary inconsistency between the example explanation given in those words of section 64(1)(e) and the standard of “beyond reasonable doubt”.
JAGOT J: Your point is, in the example Justice Edelman gave, it is not the words “unrealistic possibility” that caused the problem there, it is the “in the sense of” a probability – it is the additional words of trying to explain “unrealistic possibility” as meaning nothing more than a probability that caused the problem there.
MR POUND: Indeed, your Honour.
JAGOT J: So, it is deriving the problem, which obviously would exist, derived from not the words in and of themselves, and that is all the statute says.
MR POUND: Indeed, your Honour.
JAGOT J: Yes.
GAGELER CJ: And the case against you is one of ex facie inconsistency. You take these words, and they are just inconsistent with the criminal standard.
MR POUND: Yes, your Honour. We say that cannot be correct. In our submission, there is no necessary difference between an “unreal possibility”, which the appellant accepts is a permissible explanation, and an “unrealistic possibility”. At most, the words “unrealistic possibility” are capable of shades of meaning, and because they are capable of shades of meaning, how they would be understood by the jury depends upon their context, in particular, it depends upon their context in the whole of paragraph (e), where they are co‑located with a fanciful or imaginary doubt, and it depends upon the other limbs of section 64(1), none of which the appellant complains about.
And indeed, as the Director has pointed out, insofar as the appellant fixes on the word “improbable” in the list of definitions given by Justice Priest in the Court of Appeal, section 64(1)(b) deals with the concept of probability. It would be very difficult to see how the word “unrealistic” would convey mere improbability when the jury are also told that it is “not enough” to be satisfied that an:
accused is probably guilty or very likely to be guilty –
GAGELER CJ: But the jury does not have to be told that.
MR POUND: It does not, your Honour.
GAGELER CJ: So, I just wonder whether you get anything very useful from that context.
MR POUND: We would say, your Honour, that the words in each paragraph of section 64(1) have to be understood in their context.
JAGOT J: That is just your statutory point 1 – statutory interpretation, objective, nothing to do with what a particular jury might think, depending on the context. So, if we are asking ourselves the first question – I think I made this point earlier – it is just a question of statutory interpretation, which is objective and must look at the context: what did Parliament intend, in the relevant sense, (e) to mean in the context of everything else?
MR POUND: Yes, your Honour.
JAGOT J: So, you must be able to go to the others in order to give meaning for the purposes of statutory interpretation.
MR POUND: Yes, your Honour. We would say that the paragraphs are designed to be a cohesive whole. They seek to explain the standard in different ways and – as I think your Honour Justice Gleeson pointed out this morning – that paragraph (e) may in fact be explaining and ensuring that jurors do not apply an impossible standard – that is, the subject of paragraph (d).
JAGOT J: They leave it to the trial judge to work out what is sensible in a particular case, given the nature of what a jury might have asked or the issues, or what might have been put, so you do not have to rote through (a) to (e). You say you have to do the whole of (e), as a matter of interpretation as well, I understand the point, but you are responsive into the particular trial, even though not everything is mandated.
MR POUND: Yes, your Honour. Ultimately, that is why we say if one is concerned with the meaning of the words as understood by the jury, then one must look at the whole of the context of the charge, and that is well illustrated by the charge given by the trial judge in this case. To adapt what the Court said in Dookheea at paragraph 37 – and I do not need to take your Honours to it, but, the question is essentially whether an explanation given in terms which include those authorised by paragraph 64(1)(e), in the context of the whole of the summing up, is such that the jury would necessarily have derived a false perception of the basis for deciding whether the prosecution has proved the elements of the offence. We say that cannot be so simply on the base of the statute.
GORDON J: Do you adopt the submission of the Director about the significance or relevance of that summing‑up in this case – that is, as an example of not to prove the point or reinforce the point on construction, but to provide an indicative example of the way in which it has operated in practice?
MR POUND: Yes, your Honour, it illustrates the point very well. Can I say, then, something about the wider context of sections 63 and 64? We say it is also relevant to the Court to look to that wider context in order to ascertain the meaning of these provisions. The Court in Dookheea at paragraph 27 referred to a number of judicial statements that juries today have difficulty understanding – the “beyond reasonable doubt” standard.
In our written submissions, at paragraphs 25 to 40, we have referred to research and reports from various jurisdictions that underscore those concerns. I do not need to take your Honours to those now. It is sufficient to give your Honours two references. The first is to the 2013 report of the Victorian Department of Justice, that can be found at volume 8, tab 57, of the joint book of authorities, beginning at page 2300 and, in particular, at page 2305, your Honours will see the explanation of ‑ ‑ ‑
STEWARD J: Sorry, Mr Solicitor, can you just repeat the tab?
MR POUND: It is tab 57 of volume 8, your Honour.
STEWARD J: And page, again?
MR POUND: Beginning at page 2300.
STEWARD J: Thank you.
MR POUND: And, in particular, at page 2305, there is reference to the intention behind the wording, in particular, of paragraph (e) to modernise the language that is drawn from the Lifchus direction. They give the example of the word “frivolous” being translated into “fanciful” and we would say that another example of that is the word “unreal possibility” from Green being translated into an “unrealistic possibility”.
EDELMAN J: I am not sure this is an area where the intention of the Parliament can add anything, really, to the submission. The submission is about the meaning of words, not what Parliament intended the meaning of words be understood to mean. It is sort of Alice in Wonderland‑like, that.
MR POUND: Yes, there may be two ways to answer that question, your Honour. The first is, as I think Justice Jagot said, if we are just dealing with the statutory question under section 68 of the Jury Directions Act, then we would say that we should go about construing the meaning of each paragraph of section 64(1) in the ordinary way and the extrinsic materials would be relevant to that.
If we are using the meaning of those words in order to assess how the jury would understand them – and I think that is what the appellant is doing when it proffers various dictionary definitions in its submissions – then we would say that the extrinsic materials illustrate that this Act was passed against a background of empirical research that demonstrated a lack of understanding on the part of jurors of the “beyond reasonable doubt” standard and that the purpose of the provisions was to clarify and reinforce that standard. We say that is relevant to understanding or to assessing how jurors would understand the words used.
GAGELER CJ: One way of conceiving it might be that, contextually construed, the words of section 64(1)(e) have the meaning that they would be taken to have by an ordinary lay jury member. That might reconcile the two ways of putting it.
MR POUND: Yes, your Honour, I think that is a very elegant way of putting the point. The second reference I wanted to give your Honours which sets out the concerns about jury understanding is the paper prepared in 2014 by Justice Weinberg. That appears in volume 8, at tab 78 of the joint book of authorities, beginning at page 2822.
BEECH-JONES J: Sorry, what tab was that again?
MR POUND: It was tab 78 of volume 8. The particular pages that we are concerned with are pages 2854 to 2858. I am sorry, apparently it is in volume 9, tab 78 of the joint book.
GORDON J: This is under the heading “Standard of proof”?
MR POUND: Yes, your Honour.
BEECH-JONES J: What was that page number again? Sorry, Mr Solicitor.
MR POUND: It began at 2822, but the particular pages are 2854 to 2858, your Honour. So, the 2013 paper led to the Jury Directions Act 2013 and Justice Weinberg was commenting on that Act in his 2014 paper. Then, a third reference I would give your Honours to the effect of the provisions based upon a study that was done some 10 years afterward, or approaching 10 years afterward, is the Clough report, which can be found at volume 8 tab 56 of the joint book of authorities, beginning at page 2298 – tab 54, I am sorry, your Honours.
Your Honours, in lieu of the time, can I then turn to our third submission, concerning section 80 of the Constitution. We say there are good prudential reasons for the Court not to enter upon ground 2. For the reasons that the Director has explained, ground 2 simply does not arise, the appellant will succeed or fail on ground 1, and ground 2 cannot make a difference to the outcome of the appeal.
If the Court were to enter upon that question, it would clearly have to decide an additional constitutional question of potentially great significance. In order to do so, it would have to consider again the question of the purposes underlying the guarantee in section 80, and we say that there is no reason for the Court to do that in this case.
The applicant says that it would give him certainty. He has that certainty from section 13.2 of the Criminal Code. The applicant also says that in light of the enactment of the Jury Directions Act, the Court’s decision would give some guidance to future parliaments in either amending that Act or parliaments in other jurisdictions. We say, although that might be a question of public importance, the Court’s opinion on that question would be purely advisory and should not be given.
In the event that the Court reaches the constitutional question, we would submit that the “beyond reasonable doubt” standard is not an essential or immutable aspect of a trial by jury for the purposes of section 80 of the Constitution. We rely principally on our written submissions for that.
The only point I wish to make by way of oral submissions is that, even assuming that the two purposes of section 80 articulated in the appellant’s submission – that is, the democratic function and the protection of individual liberty – are the animating purposes of section 80, a legislative provision which diminished the standard of proof, if that is what section 64(1)(e) necessarily does, does not undermine either of those purposes.
Nothing about the standard of proof alters the representative character of the jury. That character is secured by features such as the number of jurors, the manner of their selection and the unanimity of their verdict. It is not affected by the standard of proof. Nothing about the standard of proof alters the nature of the jury’s function as standing between the state and the individual as the ultimate arbiter of the facts of any criminal proceeding.
The appellant’s case on that point seems to be that by lowering the standard, that would undermine, weaken or diminish the protection offered by the institution of trial by jury essentially because it would make it easier to secure a conviction. In our submission, that cannot be the test of what is an essential element for the purposes of section 80.
There are many features of the criminal law in addition to the standard of proof that may affect the manner in which the Crown must prove an offence and the relative ease or difficulty of doing so. They include things like the selection of the elements of the offence, the incidence of the burden of proof and the rules of evidence. None of those things undermine the character or function of the jury as the ultimate finder of fact. We would refer your Honours to ‑ ‑ ‑
EDELMAN J: There is a very fine line, though, between finding the facts and how you find the facts. So, if Parliament provided, for example, that a particular indictable offence based upon certain facts could be found to have occurred by a real chance, a real possibility that the event had occurred, that is very much a blurring of the fact‑finding role and the process of finding facts, is it not?
MR POUND: There are no doubt questions of degree involved, your Honour, but a reverse onus in respect of some elements of an offence then removes the fact‑finding on that element from the jury unless, of course, the defendant proffers evidence. So, we would not say that necessarily altering the standard of proof of a particular fact alters the function of the jury. The jury’s function and character remains the same, it is just that the framework of the law in which it goes about its function has altered.
BEECH-JONES J: What about those passages – I think from Cheatle and Brownlee – which it was said suggested that the need for a unanimous jury is itself reflective or protective of an ultimate objective of having proof for the prosecution case beyond reasonable doubt?
MR POUND: Yes, your Honour. Can I answer that question by going first to a different passage of Cheatle? Cheatle 177 CLR 541 is in volume 3, tab 15 of the joint book. If your Honours have that, you will see in the final paragraph on the page, in the second sentence, the Court says:
The relevant essential ‑ ‑ ‑
BEECH-JONES J: Which page is that, sorry?
MR POUND: Page 560, your Honour.
BEECH-JONES J: Thank you.
MR POUND: In the final paragraph. The second sentence, the Court says:
The relevant essential feature or requirement of the institution was, and is, that the jury be a body of person representative of the wider community.
Unanimity was an essential or immutable feature because it secured that essential feature or requirement of the institution of the jury. So, when on turns back to the passages that our learned friends relied on – in particular, at page 554 of the judgment ‑ ‑ ‑
EDELMAN J: Where the Court say that unanimity secures representativeness?
MR POUND: The Court does not say that, your Honour. The point I am making is that the essential feature of the jury that the Court identified was its representative character.
EDELMAN J: That a different essential feature though. The essential feature of a representative character was responding to the submission that the omission of women or unpropertied people was something that was present in 1901.
MR POUND: Yes, your Honour.
EDELMAN J: And the Court is responding to that by saying, no, at a higher level of generality, in 1901, it is about representativeness.
MR POUND: Yes. I accept that is the context of the statement, your Honour. But even ‑ ‑ ‑
GORDON J: There are two passages. There is 553 and 561, and they are, in very general terms, in terms of the link between unanimity and beyond reasonable doubt.
MR POUND: They are, your Honour, and that is one of the reasons why we say there are good prudential considerations not to venture into this territory in this case, because the link and the precise way in which those two things are related in Cheatle would require a great deal of attention, and that should be reserved to a case where, ultimately, the answer matters to the ultimate outcome. All we would say about the passage at 553, which is in the first full paragraph beginning “Moreover”, what the Court there says is that:
the common law’s insistence upon unanimity reflects a fundamental thesis of our criminal law –
So, the Court is not saying that the “beyond reasonable doubt” standard was necessary to secure either the unanimity of the jury’s verdict or the representative character of the jury, it is simply saying that the essential feature of unanimity reflects that fundamental feature of the law. That is not a statement – and I think my learned friend Mr Stanton accepted this – it is not a statement that the standard of “beyond reasonable doubt” is itself a fundamental or immutable feature of a jury trial.
BEECH-JONES J: But it would be a bit strange though, would it not, if one of the reasons we insist on having unanimous jury verdicts is to reflect the need for this fundamental notion of criminal law, of proof beyond reasonable doubt, but you could nevertheless nibble away at that principle by another means. It would be a rather odd outcome.
MR POUND: Well, we would not say - - -
BEECH-JONES J: I am not saying there is any nibbling, but you could.
MR POUND: Yes, your Honour. In our submission, one has to look at it in terms of what would the standard of “beyond reasonable doubt” be, what would its function or purpose be, or how would it serve the function or purpose of the jury and the function or purpose of section 80 in ensuring that trials of indictable offences against Commonwealth law be conducted by trial by jury.
What the appellant has said is that it secures two purposes, one of which is the protection of individual liberty, which I think is the one we are
talking about now. The fact that the proof of a particular element of the offence might be a somewhat different standard does not affect the role of the jury in protecting individual liberty, because the jury remains the ultimate arbiter of the question of fact that is thrown up by the particular element of the offence.
BEECH-JONES J: But, I mean, in one sense you might say, well, it does affect the jury’s role of protecting liberty, because it affects the way the jury goes about its own deliberations in deciding whether someone loses their liberty by requiring the jury to apply a lower standard on the proof of the prosecution case.
MR POUND: Any alteration of the law in terms of whether an offence is an offence of absolute liability, or strict liability, or whether there is a reverse onus, all of that affects the way the jury goes about determining whether the accused is guilty of the offence charged. All of those things affect the jury’s process of coming to that ultimate conclusion. The standard of proof is just one of them. We say none of those things – and there is authority of this Court to say, at least, reverse onuses do not affect the function of the jury in respect.
Unless your Honours have any further questions, those are our submissions.
GAGELER CJ: Thank you. Mr Gurvich.
MR GURVICH: In undertaking the test for inconsistency, we agree with the learned Solicitor-General that it is necessary to have regard to the purpose and practical operation of the respective provisions where section 13.2 sets the standard, and section 64 in the Jury Directions Act purports to define or explain it, and whilst that may be characterised as an exercise in statutory construction, it is permissible, necessary, essential to have regard to the manner in which jurors understand those words.
It is not a question here of whether the direction is different to the words “unreal possibility”, it is a question is of whether the words used, as your Honour the Chief Justice put it, ex facie create the risk, the tangible risk, that there is a diminution of the standard of proof.
GLEESON J: I am not sure that it is useful to bring in the concept of a juror over and above the ordinary statutory construction exercise of looking at the ordinary meaning of the words. The reason I suggest that is because a juror really only has a role in the context of a particular trial, so the question of what a juror is going to understand is always going to be informed by what they are told.
MR GURVICH: Yes, and that may vary within the terms of section 64(1), and vary given the particular trial that is being conducted, but when regard is had to the direction, the “unrealistic possibility” aspect of it, it is necessary to consider how a juror would understand those words in whatever context they are provided, because it – the Jury Directions Act – is designed to assist jurors, to guide jurors, and is given as a direction of law.
The Solicitor‑General made reference to the extrinsic material and research that had been conducted. Can we refer the Court to our written reply at footnote 9, where we analysed the genesis of the lineage of the terms, and that, indeed, “fanciful” was replaced by or did replace the word “frivolous” from Lifchus, but the words “unrealistic possibility” were not part of that analysis and research, and that, whilst there is a desire to ensure juries do understand the standard, it does not assist jurors if the standard has the potential to reduce a juror’s understanding of the criminal standard.
STEWARD J: Can I ask the same question I asked the Solicitor‑General. If Chief Judge Kidd had used the Canadian language, would that have been inconsistent with section 13.2?
MR GURVICH: No, we do not say it would, but we say that that language is markedly different. Now, we understood the respondent to make the submission that to make good our case, it is necessary to demonstrate that the effect in all cases of the provision of the direction would be to reduce the standard of proof. In our submission, that is not something that is capable of being done, because one could never establish that effect on a jury where the jurors’ decision is inscrutable.
It is sufficient that in every case there is a risk – a real risk, a tangible risk – that there is a diminution of the standard of proof. That is sufficient. Then, following that, the question of substantial miscarriage of justice follows. That, in our submission, is consistent with the reasoning in Dookheea, particularly at paragraph 35, where this Court referred to the knowing observation of Justice Cox in Pahuja that a jury is made up of individual jurors, each to be satisfied of guilt beyond reasonable doubt and each to:
enquire of himself or herself whether he or she entertains a reasonable doubt. In practical reality, each individual juror may at some point –
along the way – paraphrasing:
have a doubt which, upon reflection and evaluation, he or she is disposed to discard as an unreasonable doubt.
Similarly, that may obtain to whether a possibility is realistic or unrealistic. The Solicitor‑General raised the provisions of the Jury Directions Act both in 63 and 64 and in section 6 that the trial judge is not restricted to the use of the words in section 64. That is clearly correct and, indeed, in this trial, as the Director pointed out, the learned trial judge used the first part of 64(1)(e) at the commencement of the trial but not the second part, the impugned direction.
The point we seek to make here is that the words “unrealistic possibility” may convey different meanings, as a matter of evaluation, to different jurors that may include – may well include – the notion of improbability, notwithstanding a direction may be given under paragraph 64(1)(b) about probable guilt, and reference by the learned Solicitor‑General was made to Green’s Case which, it should be remembered, posited the phrase as:
possibilities which are in truth fantastic or completely unreal –
as a contrast to section 64(1)(e). So, as a matter of practicality in the jury room when the false confession case is debated – that jurors may, in that instance, regard the false confession as something not fanciful or far‑fetched but as an unrealistic possibility – it could have happened.
It could have happened, but we have been directed by the trial judge that we are to exclude unrealistic possibilities from our consideration; we consider the false confession thesis to be impracticable; we consider it to be not hard‑headed and not clear‑sighted and, therefore, we must not have a reasonable doubt about it. Therein lies the risk of an improperly low degree of uncertainty for conviction.
Those are the matters in reply, your Honours.
GAGELER CJ: Thank you very much, Mr Gurvich. The Court will consider its decision in this matter and will adjourn until 10.00 am tomorrow.
AT 3.10 PM THE MATTER WAS ADJOURNED
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