R v Chatzidimitriou
[2000] VSCA 91
•25 May 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No.145 of 1999
| THE QUEEN |
| v |
| EMMANUEL CHATZIDIMITRIOU |
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JUDGES: | PHILLIPS and CALLAWAY, JJ.A. and CUMMINS, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 22 February 2000 | |
DATE OF JUDGMENT: | 25 May 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 91 | |
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Criminal law – Murder – Proof beyond reasonable doubt – Charge unexceptionable – Jury question about meaning of standard – Dictionary made available without comment – Whether verdict assailable – Whether sentence of 22 years’ imprisonment, with minimum of 17 years, manifestly excessive.
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Mr. G.R. Flatman, Q.C., D.P.P. | P.C. Wood, Solicitor for Public Prosecutions |
| For the Applicant | Mr. O.P. Holdenson, Q.C. with Mr. A.J. Palmer | Lethbridges |
PHILLIPS, J.A.:
I agree with Cummins, A.J.A. that these two applications should be dismissed, and I agree with what his Honour has said about them. However, I wish to say something for myself about the added ground 2 of the application for leave to appeal against conviction, which turns on the jury’s having been provided with a dictionary.
There is no need for me to set out the facts which are relevant to ground 2; they are within fairly small compass and are to be found in the judgment of Cummins, A.J.A. But I note the following. First, no exception was taken below to the judge’s charge - nor could it have been. During his charge, the judge made a number of references to the need for proof “beyond reasonable doubt” and applicant’s counsel referred us to eleven examples. When the jury retired, they must have been very familiar with the expression.
Next, on the second day of their deliberations the jury asked the judge to define “doubt”, “reasonable doubt” and “beyond reasonable doubt”. The trial judge responded as described by Cummins, A.J.A. in paragraph [34] and applicant’s counsel makes no complaint with respect to what was said then: as he put it, “what was said by the learned trial judge is in accordance with the law”. In the course of this supplemental direction, the judge said of doubt, reasonable doubt and beyond reasonable doubt -
“ … those are very plain English words and ought to be interpreted by the jury to mean exactly what they say, namely beyond reasonable doubt. It is impossible to put another definition on them."
After attempting some elaboration, the judge concluded by saying “that it does not assist juries to try to interpret those words any more than by what I have said to you”. No issue is taken thus far.
After giving a further direction on corroboration, there was then some discussion in the presence of the jury (and again it is set out in paragraph [34]). It was in the course of that subsequent discussion that the judge apparently turned to the jury and gave them a further direction about proof beyond reasonable doubt, saying:
"I have told you previously that if you consider this question of proof that the Crown bears beyond reasonable doubt, of course if you have a reasonable doubt about any of the elements that constitute the crime .... if you have a reasonable doubt about any of those matters of course the benefit of that doubt must be given to the accused, you must acquit.
On the other hand, if you don’t have a reasonable doubt and you’re satisfied of all the elements, then of course it’s your duty to convict, so I assume you understood that.”
Again no complaint is made in respect of this direction. The jury then withdrew to continue their deliberations and it was only after that that, through their foremen and without returning to the court room, they made the request for a dictionary.
The test of reasonable doubt
In his charge to the jury, as well as in the further direction which I have just set out, the judge addressed the jury in terms of their entertaining “a reasonable doubt”, and that is in accordance with the law. It is not any doubt at all; it is “a reasonable doubt” - and that is the first point that I would emphasise. It was submitted to us, in reliance upon Green v. R.[1] and R. v. Pahuja[2], that a reasonable doubt was nowadays no more and no less than a doubt which the jury entertained at the end of the day. But if by this is meant that it is no longer proper or appropriate to direct the jury in terms of their entertaining a "reasonable doubt" then, as I apprehend it, that is not the law. This was made very plain by the Appeal Division in R. v. Neilan[3] and it may be helpful now to refer to that decision in some detail.
[1](1971) 126 C.L.R. 28
[2](1987) 49 S.A.S.R. 191
[3][1992] 1 V.R. 57
In the joint judgment, the problem was identified thus[4] (and in setting this out I break it up to show the quotation from the judge's charge):-
[4][1992] 1 V.R. at 69
"There was, however, another objection to his Honour’s charge concerning the standard of proof which was subsumed under this ground of appeal. It was that the judge on more than one occasion told the jury that ‘beyond reasonable doubt’ meant proof beyond a doubt which they, as a collective unit, considered reasonable. This meant, it was submitted, that the jury were told that if they had a doubt at the end of their deliberations then they should analyse that doubt to see whether it was a reasonable one. What the learned judge said was:
‘Now, the law tells me as a judge not to explain beyond reasonable doubt too fully to a jury, because a jury, having the corporate knowledge of men and women of the community, knows what is reasonable or not. You don’t need any education or instruction as to what it is. But beyond reasonable doubt is not no doubt, but reasonable doubt. If you have a doubt, which in your mind is reasonable in the circumstances, then indeed it must be resolved in favour of the accused man. I don’t intend to amplify the concept of reasonable doubt beyond that, except to say to distinguish it from the concept of the balance of probabilities.’
His Honour later repeated on two occasions in effect:
‘If you have a doubt and you consider that doubt to be a reasonable one, it must be resolved in favour of the accused man.’”
The submission that the judge had thereby improperly invited the jury to analyse their doubt was rested by counsel in large part on Pahuja. Their Honours said[5] (and again I break it up to indicate what is being quoted):-
[5][1992] 1 V.R. at 69-70
"Mr. Winneke relied in particular on the view expressed by the majority of the Supreme Court of South Australia in R. v. Pahuja (1987) 49 S.A.S.R. 191. It should be observed at the outset that the directions complained of in Pahuja were very different from those the subject of the present criticisms. There the trial judge had spoken in terms of ‘some real doubt’ and of ‘some stupid or fanciful or unreal doubt’ and of ‘any purely fanciful possibilities’ and of ‘a point of moral certainty’. It was in the course of a redirection that his Honour had told the jury that if at the end of their deliberations they were left with any doubt it was for them to decide whether that was a reasonable doubt. It was held by King C.J. and Johnston J. that the directions as a whole were erroneous. Cox J. dissented. The learned Chief Justice said, at p.195:
'Jurors are presumed to be reasonable persons. The test of reasonableness of a doubt is that the jury, properly aware of its responsibilities, is prepared to entertain it at the end of its deliberations. To direct or even invite a jury to subject a doubt which it entertains after deliberating upon the case, to a process of analysis or evaluation in order to determine whether it is reasonable, is an error of law.’
We do not think that his Honour intended in this passage to convey that a doubt in any sense which a jury entertained at the end of its deliberations is necessarily a reasonable doubt and we would read the words ‘properly aware of its responsibilities’ as presupposing that the jury had in the course of the charge been properly instructed as to the need to be satisfied beyond reasonable doubt and were approaching the question of satisfaction with this instruction in mind. At pp.220-1, Johnston J. said:
‘I think that if the jury, having considered the directions on the law given to them by the trial judge, and having considered the evidence, entertain a doubt, then the accused is entitled to a verdict of not guilty. The doubt so entertained is a reasonable doubt by definition, because it is entertained by the body of the jury which, in our constitutional concept and tradition, is the embodiment of the reasonableness of the members of the society whom the jury represent. A reasonable doubt is not subject to some arithmetical test or weighed on the scale against some given counterweight. It is a doubt which a reasonable person can entertain; undoubtedly reasonable people will not necessarily agree as to whether in a given case proof has been provided beyond reasonable doubt, or to put it another way whether there remains a reasonable doubt as to whether the facts which the Crown must establish have been established. But the fact that the body of the jury entertain a doubt is the ultimate certificate for the purposes of the criminal law of the reasonableness of the doubt.’
Properly understood, this passage in our view similarly means no more than this: the jury will be instructed that guilt must be proved beyond reasonable doubt and it is for them to say whether the Crown has done this.” [Emphasis added]
From this it appears that, whatever was said in Pahuja in favour of the view that any doubt which the jury entertains after due deliberation must be by definition a reasonable doubt, it is still correct, at least in Victoria, to direct the jury in terms of reasonable doubt; and if that is so it must follow that the jury can determine for itself what is doubt which is reasonable. This was the point made by Cox, J. in Pahuja, as their Honours in Neilan went on to observe[6]:
"As Cox J. observed in his dissenting judgment, it cannot be the law that a reasonable doubt is any doubt which a jury or a juror is prepared to entertain at any stage of the deliberations. At p.210, his Honour said:
‘The criminal standard of proof implies that there may be in any given case an uncertainty, objectively speaking, called a doubt, about the guilt of the accused. The jury is required to find the accused not guilty if, but only if, it considers that doubt to be a reasonable doubt. A degree of analysis and evaluation in this respect – Is this a reasonable doubt? – is inseparable, to my mind, from the test. Of course, as the High Court pointed out, juries are not accustomed to the analysing of their mental processes in this deliberate and systematic fashion, and, understandably, it was held to be confusing, as well as unnecessary and undesirable, to invite them expressly to go through such an exercise, but that is another matter. Determining whether there is a reasonable doubt on the evidence requires the making of a judgment, and perhaps the discounting of perceived unreasonable doubts, even if it is all done unconsciously.'”
[6][1992] 1 V.R. at 70-71
But, of course, the jury must be left to itself to determine what is a reasonable doubt. The law is not that the jury must not consider what is or is not reasonable; the law is that the jury must alone be the arbiter of the issue. It is error on the part of the trial judge to intrude upon the jury's function in this respect. It is for that reason that the judge must not define the word "reasonable"; nor, it may be added, should the judge invite the jury to analyse their own mental processes too finely. The latter, however, does not mean that deciding what is reasonable is to be removed from the jury's province; quite the contrary. Thus, in Neilan their Honours proceeded[7]:-
"In the case in which it was laid down by Windeyer J. that it is not the jury’s task to analyse their own mental processes, (Thomas v. R. (1960) 102 C.L.R. 584, at p.606) it was also said by Kitto J., at p.595, that one should not obscure ‘the vital point that the accused must be given the benefit of any doubt which the jury considers reasonable’. This passage from the judgment of Kitto J. was indeed cited with approval by the High Court in Green v. R. (1971) 126 C.L.R. 28, at p.32, that being the decision upon which reliance was placed by the majority in Pahuja. A little later, at p.34, the court in Green spoke of ‘the jury’s proper sense of reluctance to act whilst what they might consider a reasonable doubt had not been removed’. The charge in Green was not one in which the judge had simply told the jury that guilt must be proved beyond reasonable doubt and that a reasonable doubt was one which they considered reasonable: the charge was one which not only spoke of ‘a rational doubt’; ‘a really sensible doubt’ and ‘a fantastic sort of doubt’ but also went on to suggest to the jury that satisfaction beyond reasonable doubt meant that comfortable satisfaction felt by persons who had done their best. This passage does appear in the joint judgment, at pp.32-3: ‘A reasonable doubt is a doubt which the particular jury entertain in the circumstances. Jurymen themselves set the standard of what is reasonable in the circumstances.’ But this cannot mean that a reasonable doubt is anything other than a doubt, to use the language of Kitto J. which had been approved a little earlier, ‘which the jury considers reasonable’. The court is saying that the jurors set the standard of what is reasonable. To the references given by Cox J. in Pahuja to judicial recognitions of the fact that juries may entertain doubts which they should not characterise as reasonable it will be sufficient to add a reference to what is said in the judgments in Chamberlain v. R. (No.2) (1984) 153 C.L.R. 521.” {Emphasis added]
[7][1992] 1 V.R. at 71
In Neilan, their Honours then concluded as follows[8]:-
"The present case is yet another illustration of the undesirability, in general at all events, of seeking to explain to a jury what is meant by the phrase ‘beyond reasonable doubt’ except by way of contrasting it with the standard of proof in civil proceedings. It is unfortunate that the observations now complained of were made by the learned judge. In a sense it was not wrong to tell the jury that a reasonable doubt was a doubt which they considered reasonable. Had the jury asked his Honour what ‘reasonable’ meant, it would have been correct to reply that a reasonable doubt was a doubt which the jury considered reasonable. In the absence of any request from the jury for elucidation, it is, however, undesirable for a judge to tell the jury that they should first consider whether they have a doubt and then consider whether that doubt is a reasonable one. His Honour did not, however, invite the jury to approach their task in this two stage way. It is, in general at all events, undesirable for a judge even, instead of using the composite phrase ‘a reasonable doubt’ or ‘beyond reasonable doubt’, to distinguish between the doubt and its reasonableness. But we do not think that in the present case, whether one has regard only to the impugned passages or to the charge read as a whole, the jury would have regarded themselves as being directed or invited to analyse their mental processes as opposed to being told that they should consider whether the Crown had proved guilt beyond reasonable doubt.”
[8][1992] 1 V.R. at 71
All this, quoted no doubt at too great a length, demonstrates two things: that the jury has the task of determining what is reasonable doubt and can properly be so instructed; and that what is a reasonable doubt must be left to the jury to be determined according to the standard which the jurors themselves adopt. I do not refer to Neilan in order to articulate the fashion in which a jury should be directed; I refer to Neilan to demonstrate that, at least in this State, the test remains one of reasonable doubt, not of any doubt at all; and that the jury's function includes determining what is reasonable doubt - or to put that in more concrete fashion, whether the doubt which is left (if any) is reasonable doubt or not.
The function of judge and jury
As I apprehend it, that is in substance what the judge told the jury in this instance and told them very plainly. As I see it, the only question that arises is whether by subsequently allowing the jury a dictionary the judge has in some way usurped the jury’s function or interfered with the jury’s discharging of its function. Applicant’s counsel submitted that what the judge had done, in giving the jury a dictionary upon request, amounted to “a constructive misdirection”, but it seems to me difficult in the first place to characterise it as a direction at all. That is the point made by Cummins, A.J.A. and I agree.
In the light of all the warnings that have been given in this area by courts of authority, I should have thought it undesirable, if I may say so with respect, to have acceded to the jury’s request for a dictionary. Perhaps it is unwise for any jury to seek to explore the separate meaning of each of the three words “beyond”, “reasonable” and “doubt” if, as the courts have said, the expression “beyond reasonable doubt” is a composite one; but we do not know if that was the intent here. It should be remembered that it in this regard that the jury did not ask the judge to define "doubt", "reasonable" and "beyond"; they were seeking, rather, to have some clarification of doubt, reasonable doubt and beyond reasonable doubt. Now, if it be correct that the jury’s task is to consider whether they have, at the end of the day, a reasonable doubt – in the sense that they entertain a doubt which they consider reasonable – it cannot be the law that the jury should not contemplate what is meant by the word “reasonable” as an ordinary English word. If the jury is to be directed still in terms of “reasonable doubt”, it cannot be error, in my view, for the jurors to consider, for themselves, what is “reasonable”. And to give them a dictionary is, on one view, to let the jurors do by reading what any competent English teacher might be able to do by recollection.
The critical distinction is always between the jury’s function and the judge’s function. As was accepted in Neilan[9], it is for the jury to set the standard of what is reasonable - and the judge must not attempt to do that for them. Applicant’s counsel relied heavily, of course, upon those cases which have proscribed directions in terms of what is or what is not a reasonable doubt, but such directions plainly trespassed upon the jury’s function. Directions that the doubt must be a substantial one[10], a real one[11], and so on[12], are all proscribed; and so too is a direction that the doubt must be “founded upon reason” or “rational”.[13] And that, I think, was the crux of the applicant’s argument. As I apprehended it, the argument came down to this: by recourse to the dictionary the jury might have been led to select, for example, "not irrational" as the meaning of the word “reasonable”; that was a meaning which the judge, according to authority, was not permitted to convey to the jury; ergo it was error to allow the jury to have the dictionary. To that argument this answer may be given: that what is proscribed is not that meaning of the word "reasonable", but the attribution of that meaning to the word by the judge. To attribute meaning to "reasonable" is no part of the judge's function; that lies wholly within the province of the jury. In this instance the judge did not transgress in that fashion; for he did no more than comply with the jury's request that a dictionary be supplied. The judge gave no direction; he said nothing further about the meaning of any word; the jury were not even present in the court room when the request was made and acceded to. The judge simply allowed that a dictionary might be provided and left the jury to its task.
[9][1992] 1 V.R. at 71
[10]Burrows v. R. (1937) 58 C.L.R. 249 at 256, R. v. Thompson [1960] V.R. 523
[11]R. v. Pahuja (1987) 49 S.A.S.R. 191 at 194-5
[12]for example, Thomas v. R.(1960) 102 C.L.R. 584 ("comfortable satisfaction"); R. v. Hildebrandt (1963) W.N. (Pt 1) (N.S.W.) 143 ("to a point of reasonable certainty"), R. v. Wilson, Tchorz & Young (1986) 42 S.A.S.R. 204 ("doubt beyond reason"), Peter McLay Chedzey (1987) 30 A.Crim.R. 451 (C.C.A., W.A.) ("beyond any skerrick of doubt") and Samuel Michael Condo (1992) 62 A.Crim.R. 11 (C.C.A., W.A.).
[13]Green v. R. (1971) 126 C.L.R. 28
To sum up: it seems to me that so long as the jury itself must be the arbiter of what is reasonable, it cannot be the law that the jury must not consider, at all, what is meant by the word “reasonable”. The jury can scarcely consider what is reasonable without knowing what the word means. The courts proscribe any attempt by the judge to define the word “reasonable” for the jury; for the judge to attempt such a definition is to trespass on the jury’s function. That is why this case seems to me to depend upon the proper division of function between judge and jury. It is the jury’s task to decide whether at the end of the day the jurors entertain a doubt which they consider reasonable; it is for the judge to give them a direction to that effect without, at the same time, inviting them to analyse too carefully their mental processes.
The question raised by this application is whether the judge went further than was permissible and in some way usurped the jury’s function, by providing the jury with a dictionary. The judge attempted no definition, and whether the jury got any assistance from the dictionary is something that we cannot know. It was anyway entirely a matter for them; the judge did not usurp the jury’s function by simply providing the dictionary. He did not say anything about it at all. It is consistent with this that there was no objection formally taken by defence counsel at trial. Indeed the provision of the dictionary did not even form a ground of this application until seven months after notice was first given; it was included only by amendment, and then by late amendment.
In my opinion, the judge did not trespass upon the jury’s function in what he did and that being so the verdict is not assailable by reason of what was done. For these reasons I agree with Cummins A.J.A. that ground 2 fails.
CALLAWAY, J.A.:
In Green v. R.[14] Barwick, C.J., McTiernan and Owen, JJ. said:
"In the second place, the direction was in our opinion fundamentally erroneous. A reasonable doubt is a doubt which the particular jury entertain in the circumstances. Jurymen themselves set the standard of what is reasonable in the circumstances. It is that ability which is attributed to them which is one of the virtues of our mode of trial: to their task of deciding facts they bring to bear their experience and judgment. They are both unaccustomed and not required to submit their processes of mind to objective analysis of the kind proposed in the language of the judge in this case. 'It is not their task to analyse their own mental processes': Windeyer J., Thomas v. The Queen [(1960) 102 C.L.R. 584 at 606]. A reasonable doubt which a jury may entertain is not to be confined to a 'rational doubt', or a 'doubt founded on reason' in the analytical sense or by such detailed processes as those proposed by the passage we have quoted from the summing up. Yet that is what they were directed to do in this case." (Emphasis added.)
[14](1971) 126 C.L.R. 28 at 32-33.
The two italicized passages encapsulate the two main arguments for the applicant. The first alerts us to the danger that the course followed at the trial obscured the duty of the jury to acquit the accused if they themselves, as reasonable persons, entertained a doubt about his guilt. The second alerts us to the danger that the jury may have selected one or more inappropriate definitions from the dictionary with which they were supplied.
The jury question was, "Define 'doubt', define 'reasonable doubt', define 'beyond reasonable doubt'." The form of the question showed that the jury had not appreciated that "beyond reasonable doubt" was a composite expression, not intended to be broken into its component parts or analyzed, but designed to convey an accurate impression of the high standard of proof that the Crown was required to satisfy. As Cox, J. said in R. v. Pahuja[15]:
"The phrase 'beyond reasonable doubt' is made up of three common English words. It would not be enough, however, even if possible, to define each word, because the phrase obviously means more in this context than the mere sum of its parts."[16]
[15](1987) 49 S.A.S.R. 191 at 205.
[16]See also 194 per King, C.J. and compare R. v. Reeves (1992) 29 N.S.W.L.R. 109 at 116-117.
The learned judge answered the question in terms of which no complaint is made. The jury then remained in court whilst discussion took place between Bar and Bench. Counsel for the applicant was asked whether there was anything else he would like his Honour to say. The next page of transcript reads:
"MR O'DOHERTY: Yes, Your Honour, I thought the first part of the first question was a request of you to define doubt. I didn't write it all down, but I thought that was the first - - -
HIS HONOUR: Doubt?
MR O'DOHERTY: Yes, and I take it that that's rolled up in the question of reasonable doubt.
HIS HONOUR: The way the question is put by the jury is that the request is to define doubt, reasonable doubt and beyond reasonable doubt, which becomes a compendious process.
MR O'DOHERTY: Yes. Does Your Honour intend to say anything about that, that first part?
HIS HONOUR: I don't think so, Mr O'Doherty, I think that – I take the question to refer to the onus of proof which the Crown bears beyond reasonable doubt, and those are simply the words in that phrase, and I doubt very much whether one can go any further than what I'm permitted by the authorities to do.
MR O'DOHERTY: Yes, and of course it follows that if a doubt does exist and persists, then obviously the jury is to acquit.
HIS HONOUR: I have said this to the jury and I assume that the jury remember that. I have told you previously that if you consider this question of proof that the Crown bears beyond reasonable doubt, of course if you have a reasonable doubt about any of the elements that constitute the crime – in this case whether it was in fact murder as distinct from suicide or some other event, and whether it was the accused who committed the murder, if it was a murder – if you have a reasonable doubt about any of those matters of course the benefit of that doubt must be given to the accused, you must acquit.
On the other hand, if you don't have a reasonable doubt and you're satisfied of all the elements, then of course it's your duty to convict, so I assume you understood that." (Emphasis added.)
The jury retired further to consider their verdict.
The phrase "beyond reasonable doubt" does have a meaning. The word "reasonable" is not otiose. The phrase does not mean any doubt that the jury entertain, but the practical consequence of requiring the Crown to prove its case beyond reasonable doubt is that a reasonable doubt is a doubt which the particular jury entertain in the circumstances. That presupposes that they heed the judge's directions, carefully consider the evidence and eschew fanciful or unreal possibilities but, as the High Court said, they set the standard. Setting the standard of what is reasonable in the circumstances is not the same as defining, or assigning a meaning to, the word "reasonable". As counsel said, it "follows" that if a doubt exists and persists the jury should acquit. As King, C.J. explained in R. v. Wilson[17]:
"It is clear from the passages cited above that the High Court in Green's Case set about discouraging judges from qualifying the direction as to onus of proof beyond reasonable doubt by references to fanciful or unreasonable doubts except in cases in which that was considered to be rendered necessary by the arguments of counsel. Where the judge considers such a qualification to be necessary, it is essential that he frame the qualification in terms which do not diminish the jury's sense of their obligation not to convict upon supposed proofs about which they, as reasonable persons, feel a doubt. The qualification, when made, should be in terms, such as those suggested by the passage cited above from Green's Case, which caution the jury against regarding possibilities which are in truth fantastic or completely unreal as affording a reason for doubt, or in terms, often used, which remind the jury of the capacity of the human mind to conjure up fanciful, nervous or unreasonable misgivings about matters which are not in reality in doubt. It is permissible, if thought necessary, to warn a jury against unreasonable mental processes, but it is not permissible to suggest that they should disregard a doubt which, at the end of their deliberations, they think to exist, or that they are required to subject such a doubt to a process of analysis in order to determine its quality. If at the end of their deliberations, the jury have a doubt, that doubt is ipso facto, as Green's Case establishes, a reasonable doubt.
As was stressed in Green's Case, judges have been admonished time and time again to adhere to the conventional formula that the burden is on the prosecution to prove the charge and each ingredient of the charge beyond reasonable doubt. No attempt should be made to explain or define reasonable doubt. If amplification is desired it should go no further than to tell the jury that a reasonable doubt is one which they, as reasonable persons, are prepared to entertain. The judge may, in an appropriate case, warn the jury against resorting to fanciful or unreasonable possibilities as affording reasons for doubt, but if he does so, he should be careful, in my opinion, to add that if the jurors, at the end of their deliberations, as reasonable persons are in doubt about the guilt of the accused, the charge has not been proved beyond reasonable doubt." (Footnotes omitted.)
[17](1986) 42 S.A.S.R. 203 at 206-207.
Although the judge said to counsel, "I have said this to the jury and I assume that the jury remember that", his Honour then turned to the jury and directed them in terms which, with respect, were calculated to obscure the truth of what counsel had just submitted. They were told, in effect, that it was not enough that a doubt existed and persisted in their minds. They were told twice that it had to be a reasonable doubt and once that, if they did not have a reasonable doubt, it was their duty to convict.
The jury then requested a dictionary. Although the Director contended that they might have wished to look up some other word such as "corroboration", it was apparent to everyone at the trial, and is reflected in the judge's report, that the request related to the phrase "beyond reasonable doubt". It is equally apparent, at least on appeal, that the jury were still under the impression that, if they entertained a doubt, they needed to ask the further question whether it was a "reasonable" doubt. The authorities to which I have already referred suggest that that was a misapprehension.[18] The jury had heard the applicant give evidence. It may well be that that evidence had engendered a doubt in the mind or minds of one or more of their number. There is no reason to think that they sought further guidance from the judge, or desired the provision of a dictionary, solely to dispel fantastic or timorous misgivings.
[18]See also and compare R. v. Dam (1986) 43 S.A.S.R. 422 at 429-30; R. v. Pahuja at 194-195, 219-221; R. v. Neilan [1992] 1 V.R. 57 at 71; Krasniqi v. R. (1993) 61 S.A.S.R. 366 at 367, 371-375 and R. v. Lancefield [1999] VSCA 176 at [1], [24], [35].
I find it unnecessary to consider in any detail the various meanings that the jury might have applied to the words "reasonable" and "doubt". Quite apart from the difference between setting a standard and defining a word[19], it was a misconception to break the phrase into its component parts in the first place. Accordingly, in my view, it is not to the point that one or more of the jurors might have remembered the meaning of the individual words or consulted a dictionary at home. Those considerations would be more relevant to an indecent assault case where a jury was troubled by the meaning of the single word "indecent".
[19]See the fifth sentence of [22].
Reading the transcript as I do, the jury had misunderstood the message that the phrase "beyond reasonable doubt" was designed to convey. They believed that a doubt that they entertained had to be subjected to a further test. The provision of a dictionary, if it did not positively confirm that belief, at least enabled them to carry it into effect. The mere request for a dictionary, in the context in which it occurred, revealed that the jury had misunderstood the customary direction about the standard of proof. For those reasons I would decide this case the same way even if I directed myself only by reference to Green's Case and R. v. Neilan, without consideration of the South Australian cases[20] or their apparent approval by this Court in R. v. Lancefield. With great respect to the learned and very experienced judge, I consider that the trial fundamentally miscarried. The golden thread[21] became tangled. There is accordingly no question of applying the proviso to s.568(1) of the Crimes Act 1958. The application for leave to appeal against conviction should succeed.
[20]R. v. Pahuja was considered in Neilan's Case at 69-71 but not R. v. Wilson.
[21]Woolmington v. Director of Public Prosecutions [1935] A.C. 462 at 481.
I mention two matters in conclusion. First, the Crown case was a strong one and it may be thought an intolerable miscarriage of justice that there should be another trial; but it must be steadily borne in mind that, until the applicant is duly convicted, he is entitled to the presumption of innocence. As Kirby, J. said in Wu v. R.[22]:
"There is nothing that teaches the lessons of the law so well as an affirmative judicial order upholding an argument that has been made good by reference to established legal principles. Of course, there is
then a cost and inconvenience. But that is the price of the rule of law. It is a comparatively small price." (Footnote omitted.)
[22](1999) 73 A.L.J.R. 1497 at [82]. His Honour was in dissent, but few judges would differ from the sentiments expressed in the passage I am about to quote.
Secondly, juries do from time to time ask for further guidance as to the
meaning of the phrase "beyond reasonable doubt". It would, I think, be possible to give such guidance, when and if pressed, without infringing the essential point made in Green's Case. The judge might, for example, repeat the direction earlier given, stressing that "beyond reasonable doubt" has its ordinary English meaning and is not a technical term, but might add that, because juries are presumed to be made up of reasonable people, they should acquit the accused if they themselves are still in doubt after carefully considering the evidence. The judge might also, in an appropriate case, warn them against entertaining fanciful or unreal possibilities.[23][23]Compare the passage from R. v. Wilson set out in [22].
Because of the difference of opinion on the Court, this case is not a suitable vehicle to consider such a direction further, to identify its deficiencies and correct them[24] or to decide whether it is only the High Court that could authorize trial judges to offer that kind of guidance in the exceptional case where the jury are clearly troubled and press the judge for elucidation.
CUMMINS, A.J.A.:
[24]As at present advised, for the reasons set out in [22], I prefer what I have written to telling the jury that a reasonable doubt is a doubt that they consider reasonable, but see Green's Case at 34 lines 8-9 and Neilan's Case at 71, especially but not only lines 37-39.
The applicant, Emmanuel Chatzidimitriou, was convicted in the Supreme Court at Bendigo of the murder near Castlemaine on 28 November 1996 of Ian Freeman. The prosecution case was that the applicant himself killed the deceased and was retained to do so by the wife of the deceased, Susan Freeman, for financial reward. Both the applicant and Mrs Freeman were charged as principals with the murder. They were jointly presented. The learned trial judge directed that each be
tried separately. The learned judge so directed essentially because he found that the admissible prosecution evidence against each respective accused was significantly different, as contemplated by R v Darby[25]. In the event the applicant was tried at Bendigo in September 1998. He was convicted by a jury of murder. Sentence was deferred. Mrs Freeman was tried in Melbourne in April 1999. She also was convicted by a jury of murder. After pleas, each was sentenced to 22 years' imprisonment with a direction that a minimum period of 17 years' imprisonment be served before eligibility for parole. Each has applied (on different grounds) for leave to appeal against conviction. The applications, as with the trials, were heard separately.[25](1982) 148 CLR 668.
The applicant Mr Chatzidimitriou has applied for leave to appeal against conviction on two grounds: first, that the verdict was unsafe and unsatisfactory; and second (added seven months later by leave of the Registrar), that the learned trial judge erred in having a dictionary provided to the jury during its deliberations in response to the jury's request for a dictionary. The circumstances of that request and provision are set out below.
Submissions on behalf of the applicant were confined to the dictionary ground. The ground that the verdict was unsafe and unsatisfactory, sensibly, was not argued.
The Dictionary
The trial of the applicant Mr Chatzidimitriou was held at the sittings of the Court at Bendigo. The trial occupied 17 days. Fifty-six witnesses were called by the prosecution. The applicant and two other witnesses for the defence gave evidence. Essentially the defence was that the applicant did not kill the deceased and that a prosecution witness, one Ian Richard Brown, did. Final addresses of counsel occupied three days. The learned judge's charge to the jury occupied some four and a half hours over two days. No complaint is made concerning His Honour's charge nor could there be. His Honour at the outset of his charge and at its end correctly directed the jury as to the criminal standard of proof. The jury was segregated and retired to consider its verdict at 12.30 pm on Tuesday 29 September 1998. At 5.30 pm its deliberations were suspended until the next morning. The jury recommenced its deliberations at 9.30 am on Wednesday 30 September. At 10.00 am through its foreman the jury made a request (in writing) for a further direction of law (on corroboration), for a further summary of evidence (the re-examination) of one witness and for the following: "Define 'doubt', define 'reasonable doubt', define 'beyond reasonable doubt'." On its face, each request was intelligently directed by the jury. The requested evidence related to the movements of the applicant on the fatal night, the requested direction of law related to corroboration of the central prosecution witness (and the true killer according to this applicant's defence), and the requested further direction of law concerning the expression "beyond reasonable doubt" showed the jury's application of mind to its function.
The jury returned into court and the learned judge dealt with the jury's request for evidence and for legal direction on corroboration correctly and no complaint is made as to that. His Honour then continued:
"Now, the last matter, members of the jury, is the explanation of doubt, reasonable doubt and beyond reasonable doubt. In that I can give you less assistance really because the law has always taken the view that those are very plain English words and ought to be interpreted by the jury to mean exactly what they say, namely beyond reasonable doubt. It is impossible to put another definition on them.
The only thing one can say about it, and you have heard this said, is that it is a very high standard of proof which the Crown bears because it makes the accusation in a very, very serious matter, criminal accusation, and therefore it has this very high onus placed upon it by the law of proving the allegation of the crime beyond reasonable doubt.
By contrast, in a civil case, disputes between citizens about various things, business matters or whatever, damages claims, those sort of cases which are not criminal cases, they're civil cases which are involved with compensation. There the standard is on a balance of probabilities. In other words, what is more probable than not is enough. You tip the scales one way if the plaintiff can prove his case on a balance of probabilities, well, the plaintiff wins, in a civil case.
That is not sufficient in a criminal case. In a criminal case the Crown must go much further and prove its case beyond reasonable doubt. It is a high standard of proof in which probabilities and possibilities are not sufficient.
I do not think I can do any better than that for you. In fact, that is – the courts have over and over said that it does not assist juries to try to interpret those words any more than by what I have said to you."
His Honour, in the presence of the jury, then enquired of counsel whether counsel sought any further direction. The prosecutor sought a further direction on corroboration, which was given and of which no complaint is made and which is presently immaterial. His Honour then addressed defence counsel and the following occurred (still in the presence of the jury):
"HIS HONOUR: Mr O'Doherty, is there anything else you'd like me to …
MR O'DOHERTY: Yes, Your Honour, I thought the first part of the first question was a request of you to define doubt. I didn't write it all down, but I thought that was the first . . .
HIS HONOUR: Doubt?
MR O'DOHERTY: Yes, and I take it that that's rolled up in the question of reasonable doubt.
HIS HONOUR: The way the question is put by the jury is that the request is to define doubt, reasonable doubt and beyond reasonable doubt, which becomes a compendious process.
MR O'DOHERTY: Yes. Does Your Honour intend to say anything about that, that first part?
HIS HONOUR: I don't think so, Mr O'Doherty, I think that I take the question to refer to the onus of proof which the Crown bears beyond reasonable doubt, and those are simply the words in that phrase, and I doubt very much whether one can go any further than what I'm permitted by the authorities to do.
MR DOHERTY: Yes, and of course it follows that if a doubt does exist and persists, then obviously the jury is to acquit.
HIS HONOUR: I have said this to the jury and I assume that the jury remember that. I have told you previously that if you consider this question of proof that the Crown bears beyond reasonable doubt, of course if you have a reasonable doubt about any of the elements that constitute the crime – in this case whether it was in fact murder as distinct from suicide or some other event, and whether it was the accused who committed the murder, if it was a murder – if you have a reasonable doubt about any of those matters of course the benefit of that doubt must be given to the accused, you must acquit.
On the other hand, if you don't have a reasonable doubt and you're satisfied of all the elements, then of course it's your duty to convict, so I assume you understood that.
Yes, thank you, you may now retire."
The jury then retired, further to consider its verdict.
No complaint is made of His Honour's further direction as to the criminal standard of proof, nor could there be. His Honour's directions were consonant with long-standing authority, both in what he said and what he did not say. His Honour treated the expression "beyond reasonable doubt" holistically. He referred to the jury's tripartite request (define doubt, reasonable doubt, and beyond reasonable doubt) as "a compendious process". He did not in terms direct the jury not to consider the individual words in the expression "beyond reasonable doubt" – a wise reticence – but his direction led the jury's mind to the unity of the expression.
Then, a few minutes later, through its foreman the jury (whilst remaining in the jury room) sent out a request for a dictionary. The following was said (now in the absence of the jury):
"MR O'DOHERTY: Your Honour, obviously – I'm assuming it goes to that non-definition that you've given them about 'reasonable doubt'.
HIS HONOUR: The words 'reasonable doubt', yes.
MR O'DOHERTY: It troubles me to think that a jury are going to – or want to go through a dictionary and we've just briefly had a look at the definition in the dictionary of 'reasonable' – I haven't gone to 'doubt' but it's – in my submission it wouldn't be helpful for them to have a dictionary.
HIS HONOUR: It would.
Mr O'DOHERTY: It would not.
HIS HONOUR: It would not be.
MR O'DOHERTY: No; the authorities say that the court should not define those words, they mean what they say, they have a plain meaning that is comprehended by ordinary people, by juries, and in my submission.
HIS HONOUR: The courts might be wrong, the jury may want to understand the language a bit better by looking at a dictionary.
MR O'DOHERTY: I'm not going to jump up and down about it. All I'm saying, from a tentative view, is that I'm a bit uneasy about them having it but if Your Honour thinks it's going to assist them.
HIS HONOUR: Mr O'Doherty, I know that the courts have taken a very strong view that judges ought not give "beyond reasonable doubt" a legal definition and in fact the only direction that's really permissible is that which I've given they're plain English words and that it connotes a very high standard of proof in the law.
But when one tells lay people that it is a matter of plain language and they want to understand the language better, why should they not have recourse to an authorised dictionary?
It's not a matter of law they're looking at, it's a matter of language."
After brief further discussion His Honour ruled:
"I think that the directions given to juries about the standard of proof which requires that they be told that these are matters of the use of ordinary language which says what it means, does involve the jury tapping its knowledge of language and I see no reason why a reference to a recognised dictionary, if they feel it may assist them, in terms of language rather than any legal principle, I don't see any reason why that shouldn't be allowed and I think I will permit that."
Accordingly the two volume Oxford Shorter English Dictionary (1959) was provided to the jury in the jury room. At 2.25 pm that day the jury returned a verdict of guilty of murder.
What should the learned trial judge have done when the jury requested a dictionary? Presumably the request related to the jury's previous, tripartite request to "define 'doubt', define 'reasonable doubt', define 'beyond reasonable doubt'". Despite the careful, and correct, further direction of law the judge had given the jury – directing as it did the jury towards the unity of the expression "beyond reasonable doubt" – the request for a dictionary inevitably involved the division by the jury, at some point, of that expression into separate, individual words. (That does not mean the jury would not then have proceeded to the unified expression. But it involved its initial breaking up). The applicant submits that the learned judge should have refused the jury's request.
Such a submission offends commonsense and is wrong in law.
First, commonsense. For a refusal to be efficacious (and for it to eradicate now suggested error) the judge would have had to give the following directions of law to the jury. First, that the request is refused. Second, to consider the expression without reference to any knowledge jurors may have of the meaning of the individual words and for jurors to put their knowledge of individual words aside. Third, not to discuss amongst themselves the possible meaning of the individual words. (And if the jury had not been segregated – as most jurys are not, and indeed as Mrs Freeman's Melbourne jury was not – not themselves to consult a dictionary.) Such incongruous corollaries demonstrate the error of the premise the applicant now contends for. Jury deliberation is not an investment in ignorance.
Unless those further directions be given by the judge, the mischief which the applicant now complains of will live in the jury room. It will not be laid to rest. It will haunt judicial consideration of jury deliberation. For it is highly likely that a responsible jury will ask itself, pursued to a greater or lesser degree, the question "What does reasonable mean?" Such an exercise is, properly and by long standing authority, forbidden to judges. The corollary of the applicant's argument is that it should be forbidden to juries. That is not the law.
The risk inherent in the jury having recourse to a dictionary is that the jury having atomised the expression "beyond reasonable doubt" might fail to proceed to consider and apply it holistically. As Keats wrote "philosophy will clip an angel's wings". But that risk always exists, dictionary or not. And the provision of a dictionary – which makes it very likely the jury will atomise the expression by reference to the dictionary - does not make it the more likely the jury will not proceed thereafter to consider and apply the expression holistically. There is no reason at all to suppose the jury would not proceed to the unified expression, having referred to the dictionary as an aid as to its constituent parts.
The dictionary which was provided to the jury defined "reasonable" (omitting irrelevancies) as
". . . 1. Endowed with reason . . .2. Having sound judgment; sensible; sane. Also, not asking for too much. . . . 3. Agreeable to reason; not irrational, absurd or ridiculous. . . 4. Not going beyond the limit assigned by reason; not extravagant or excessive; moderate . . . "
The dictionary defined "doubt" (omitting irrelevancies) as
". . . 1. The (subjective) state of uncertainty as to the truth or reality of anything. With A feeling of uncertainty as to something. B. The condition of being (objectively) uncertain; a state of affairs giving occasion to uncertainty. 2. A doubtful matter or point; a difficulty."
What lies within the dictionary which the jury, unaided by it, would not itself consider, albeit in less formal terms? Any responsible jury, which has not been judicially directed to shroud itself in ignorance (per 39 above) is likely to ask itself: does "reasonable" mean rational? Or not irrational? Does it mean sensible? Does it mean not absurd, excessive or ridiculous? Such perambulations will often occur with juries. Judges, correctly, are forbidden so to perambulate. Juries are not forbidden. Thus the irrelevancy of the applicant's many cited authorities. Responsible citizens have been consulting the Oxford English Dictionary since 1933 (and the New English Dictionary on Historical Principles since 1884), if not the dictionary of Dr. Samuel Johnson (A Dictionary of the English Language) since 1755 or that of Robert Cawdrey (A Table Alphabetical) since 1604. The two volume Shorter Oxford English Dictionary held in the Bendigo Court and provided to this jury was published in 1959 under the general editorship of the distinguished C. T. Onions. It is an authoritative work. Responsible citizens would be affronted to be told that, in the information age, the law forbids them doing as jurors what persons have done since 1933 (or 1884 or earlier) as an aid to understanding language.
The applicant's submission also is wrong in law. The applicant's counsel cited authority after authority establishing that judges should not seek to define or extrapolate the expression "beyond reasonable doubt" in judicial direction to juries. No one suggests otherwise. The learned trial judge did not do so. The numerous authorities cited are beside the point. It is right that judges should not define the expression. The convoluted exegesis given the jury by the learned trial judge in Green v R.[26] demonstrates why. Many like cases demonstrate likewise. The authorities arise because judges in directing juries have erroneously gone to some touchstone other than the words "beyond reasonable doubt". But no authority establishes that juries must not consider the meaning of the expression. Nor is there any authority which establishes that juries must not, in considering the expression, consider its constituent parts. Of course, the jury, thus assisted by its discrete consideration, must return to the holistic expression. There is nothing in the present case which militates or even tends to the jury's not taking that further step.
[26](1971) 126 CLR 28 and cited at 30-31.
There is no authority which establishes that juries are not permitted to define for themselves the expression "beyond reasonable doubt". On the contrary, that is precisely what the authorities say the jurors should do – define it for themselves. As Kitto J observed in Thomas v R.[27] one should not obscure "the vital point that the accused must be given the benefit of any doubt which the jury considers reasonable". His Honour went on (also approved): "Whether a doubt is reasonable is for the jury to say". But that definition is not an exercise in ignorance or blindness or caprice. As the learned trial judge correctly identified: "It is a matter of language". That is what dictionaries are for. If it be not tautologous for it to say so, the definition of dictionary is "a book dealing with the words of a language, so as to set forth their orthography, pronunciation, signification and use . . ." S.O.E.D (1959). For more than a century, judges have had recourse to dictionaries – although that of course does not conclude the separate question whether juries should be permitted (or forbidden) to do so. Lord Coleridge CJ in R v Peters[28] said (for himself and Hawkins, Day and Grantham JJ):
"… it is a well known rule of courts of law that words should be taken to be used in their ordinary sense, and we therefore sent for instructions to these books…"
The word then being considered was "credit". His Lordship consulted Johnson's Dictionary and also Webster. (Two years earlier, the Clarendon Press had published the first section (A-Ant) of J.A.H. Murray's New English Dictionary on Historical Principles (now the Oxford English Dictionary) and under that celebrated editorship continued progressively to publish that dictionary until 1928, Murray having died in 1915).
[27](1960) 102 CLR 584 at 595 (cited with approval by Barwick CJ and McTiernan and Owen JJ in Green at 32).
[28](1886) 16 QBD 636 at 641.
Counsel for the applicant relied upon certain dicta in support of a contention that a jury should not be overly analytical in its processes, such submission being called in aid of judicial refusal of the provision of a dictionary. Preeminently those passages were: "A reasonable doubt is a doubt which the jury entertain in the circumstances"[29]; "If at the end of their deliberations, the jury have a doubt, that doubt is ipso facto, as Green's case establishes, a reasonable doubt"[30]; and "It is not their task to analyse their own mental processes".[31] But those dicta were articulated as part of appellate reasoning as to erroneous directions by trial judges to juries. So much is apparent from the further passage in Green[32]: "A reasonable doubt which a jury may entertain is not to be confined to a 'rational doubt', or a 'doubt founded on reason' in the analytical sense or by such detailed processes as those proposed by the passage we have quoted from the summing up. Yet that is what they were directed to do in this case". Likewise in Wilson and Thomas.
[29]Green at 32-33 per Barwick CJ and McTiernan and Owen JJ.
[30]R v Wilson and ors (1986) SASR 203 at 206 per King CJ.
[31]Thomas at 606 per Windeyer J, cited with approval in Green at 33 per Barwick CJ and McTiernan and Owen JJ.
[32]at 33.
The dicta relied upon by counsel for the applicant, the pre-eminent of which are cited in the previous paragraph, if misapplied to jury consideration (as distinct from judicial definition) result in the adjective "reasonable" in the expression "beyond reasonable doubt" being defined out of existence. That is not the law, nor should it be. The adjective "reasonable" qualifies the noun "doubt". Prospective judicial direction at trial goes to the quality of the doubt, not the quality of the juror. The above appellate dicta relate not to a priori judicial direction to the jury – else the word "reasonable" should be eliminated from judicial direction to the jury – but relate rather to characterisation of the jury process after the jury has been properly instructed (including by the word "reasonable") and after its full and careful deliberation: then, if a doubt persists, the doubt is regarded as reasonable. The dicta are of an operational, reflective nature. They are not prospective. That is clear from the words "at the end of their deliberations".[33]
[33]Wilson at 206 per King CJ.
Counsel for the applicant submitted that, by having a dictionary provided to the jury at its request and thus facilitating the jury's attempting its own definition of "beyond reasonable doubt", the learned trial judge "constructively misdirected" the jury. The provision of the dictionary was not a constructive misdirection. The dictionary at most was an aid to the understanding of individual words. It was not a judicial direction. The submission of counsel involves that jurors should act upon ignorance rather than upon knowledge.
There was no error in the learned trial judge causing the dictionary to be provided to the jury, given His Honour's correct directions to the jury and the jury's request for a dictionary.
The Verdict
The ground that the verdict was unsafe and unsatisfactory, sensibly, was not argued. The prosecution case was strong.
Accordingly I consider the application for leave to appeal against conviction ought be dismissed.
Sentence
The applicant also has applied for leave to appeal against sentence. He contended that the sentence imposed by the learned trial judge was manifestly excessive. It was not. Although the applicant was aged 50 years and had no prior convictions, this was a contract killing done with extensive planning and premeditation, in cold blood, of an innocent citizen and father. The sentence is substantial, but properly so, and well within range.
The application for leave to appeal against sentence ought be dismissed.
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