R v Compton

Case •

[2013] SASCFC 134

•

9 December 2013

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v COMPTON AND BARRATT

[2013] SASCFC 134

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Stanley)

9 December 2013

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION

CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - DIRECTION TO JURY - REASONABLE DOUBT - GENERALLY

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL ALLOWED

CRIMINAL LAW - EVIDENCE - CREDIBILITY - GENERALLY

CRIMINAL LAW - EVIDENCE - MISCELLANEOUS MATTERS - OTHER CASES

Following a trial by jury, both of the appellants were convicted of two counts of rape.  Each of the appellants appeal against conviction, arguing that (1) the judge erred in directing the jury that “Absolute certainty of guilt is not required.  The prosecution does not have to prove guilt beyond all doubt”; and (2) the verdicts are unsafe and unsatisfactory and cannot be supported having regard to the evidence.  The Court granted permission to appeal on the first ground and referred the application for permission to appeal on the second ground to the Court of Criminal Appeal. 

The prosecution case at trial was that the complainant attended at a house where the two appellants resided together with two other persons.  The appellants were in a sexual relationship and shared a bedroom at the premises.  At the relevant time the complainant, a 14-year-old male, also resided in Whyalla with his grandmother and mother.  On the afternoon or evening of the alleged offending the complainant attended at the appellants’ house.  At the house the complainant consumed alcohol and smoked cannabis. 

The prosecution case was that, on the evening of the alleged offending, another resident of the house approached the complainant, threatened him with a knife, and forced him to enter the bedroom where the appellants were waiting.  The complainant alleges he was knocked onto the bed and restrained by the appellant Compton while the appellant Barratt anally raped him with his penis.  The complainant alleges the appellant Barratt then struck him and restrained him while the appellant Compton in turn anally raped him with his penis. 

The two counts of rape were alleged on the basis of a joint enterprise between the appellants. 

The reliability and credibility of the complainant was central to the prosecution case. 

There were significant inconsistencies in the complainant’s evidence in relation to matters which were central rather than peripheral to the alleged offending by the appellants. At trial, the complainant was cross-examined about symptoms of mental illness he was suffering around the time of the alleged offences and which resulted in him being hospitalised twice, as well as his conduct in setting fire to a church, breaking into a business, stealing from his grandmother and making threats over the telephone. 

All of these matters were brought to the attention of the jury in the course of the Judge’s summing up and were the subject of the address of the appellant Compton’s counsel at trial.

No evidence was called by the defence.

Held (Peek J, Kourakis CJ agreeing, as to ground 1, allowing the appeal):

(1) The rule of absention, affirmed in numerous cases in each Australian jurisdiction, is that judges should 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 and, except in special circumstances, no attempt should be made to explain or define reasonable doubt (Kourakis CJ at [7]-[10]; Peek J at [80]-[85], [92]).

(2) The trial Judge’s direction, even taken in the context of his other directions, constituted a misdirection which requires there to be a retrial.  The direction contained two propositions: (1) that the prosecution has to prove guilt beyond reasonable doubt to obtain a conviction, and (2) that the prosecution does not have to prove guilt beyond all doubt to obtain a conviction.  The combination of these two propositions may have led the jury to understand that they could hold some doubt that does not amount to reasonable doubt and will not prevent a conviction. This produced an unacceptable risk that the jury may have considered that they were to analyse their mental process to determine if a doubt they held was a reasonable one. The Judge’s later direction that whether there exists a reasonable doubt is a question for them alone is none to the point; the jury should not have been required to undertake a process of examination of a doubt at all (Kourakis CJ at [20]-[22]; Peek J at [98]-[114]).

(Stanley J, dissenting, as to ground 1):

The trial Judge’s directions, read as a whole, could not have failed to convey to the jury that the accused were to be given the benefit of any doubt which the jury considered to be reasonable doubt.  In the circumstances, there has been no miscarriage of justice (at [143]-[146]).

Held (Stanley J, Kourakis CJ and Peek J agreeing, as to ground 2):

(1) The issues surrounding the reliability of the complainant’s evidence were not sufficient to preclude satisfaction of the appellants’ guilt to the requisite standard (at [160]-[162]).

(2) It is the jury which is the body entrusted with the primary responsibility of determining guilt or innocence, and it has had the benefit of having seen and heard the witnesses.  An invitation to this Court to view the video recording of the complainant’s evidence and substitute its own assessment of the reliability and credibility of the complainant based on his demeanour, for that of the jury, threatens the constitutional role of the jury (at [156]-[158]).

(3) Permission to appeal on the ground that the verdicts were unsafe and unsatisfactory granted, however this ground of appeal is rejected (at [163]-[164]).

Evidence Act 1929 (SA) s 13C, referred to.
R v Pahuja (1987) 49 SASR 191; R v Wilson, Tchorz and Young (1986) 42 SASR 203; M v The Queen (1994) 181 CLR 487; SKA v The Queen (2011) 243 CLR 400; Green v The Queen (1971) 126 CLR 28; R v Britten (1988) 51 SASR 567; R v Dam Thi Kim Chi (1986) 43 SASR 422; R v El Moustafa [2010] VSCA 40, applied.
R v Wanganeen (2006) 95 SASR 226; R v Clothier [2002] SASC 9; R v Fouyaxis (2007) 99 SASR 233; Ladd v R (2009) 157 NTR 29; R v Nielan (1991) 52 A Crim R 303; R v Chatzidimitriou (2000) 1 VR 493; R v Forrest (2004) 236 LSJS 265; Brown v The Queen (1913) 17 CLR 570; Conley v The Queen (1982) 30 SASR 226; Thomas v The Queen (1960) 102 CLR 584; Barr v The Queen (2004) 14 NTLR 164; R v Krasniqi (1993) 61 SASR 360; R v McNamara [1998] QCA 405; Libke v The Queen (2007) 230 CLR 559; In re Winship 397 U.S 358 (1970), discussed.
Burrows v The King (1937) 58 CLR 249; Ladd v The Queen [2010] HCA Trans 046; R v Bentley [2001] 1 CR App R 21; R v Wanhalla [2007] 2 NZLR 573; R v Lifchus [1997] 3 SCR 320; R v Lavery (2013) 116 SASR 242; Dawson v The Queen (1961) 106 CLR 1; La Fontaine v The Queen (1976) 136 CLR 62; Keil v The Queen (1979) 53 ALJR 525; R v Costi (1987) 48 SASR 269; R v Weetra (1996) 187 LSJS 317; R v ALJ (2000) 211 LSJS 449; R v Hildebrandt (1963) 81 WN 143; R v McKenna [1964-65] NSWLR 433; R v Vassiliev (1967) 68 SR (NSW) 74; R v Patonek [1968] 3 NSWLR 433; R v Lazarevich (Unreported, New South Wales Court of Criminal Appeal, Street CJ, Nagle CJ at CL and Fisher J, 10 December 1979); R v Esposito (Unreported, New South Wales Court of Criminal Appeal, Street CJ, Reynolds and Brownie JJ, 21 November 1986); R v Flesch (1987) 7 NSWLR 554; R v Blanch (Unreported, New South Wales Court of Criminal Appeal, Roden, Allen and Mathews JJ, 17 August 1988); R v Solomon (Unreported, New South Wales Court of Criminal Appeal, Carruthers, Finlay and McInerney JJ, 15 November 1989); R v Henning  (1990) (Unreported, New South Wales Court of Criminal Appeal, Gleeson CJ, Campbell and Mathews JJ, 11 May 1990); R v Reeves (1992) 29 NSWLR 109; The Queen v GWB [2000] NSWCCA 410; Ho v The Queen (2002) 130 A Crim R 545; R v Li (2003) 140 A Crim R 288; R v Southammavong; R v Sihavong [2003] NSWCCA 312; R v Chami [2004] NSWCCA 36; RWB v The Queen (2010) 202 A Crim R 209; FP v The Queen [2012] NSWCCA 182; R v Collins [1999] QCA 27; Graham v The Queen (2000) 116 A Crim R 108; W v The Queen (2006) 162 A Crim R 264; Jovanovic v The Queen (2007) 172 A Crim R 518; R v Thompson [1960] VR 523; R v Neilan [1992] 1 VR 57; R v Lancefield [1999] VSCA 176; R v Cavkic (2005) 12 VR 136; R v Hettiarachchi [2009] VSCA 270 ; R v Condo (1992) 62 A Crim R 11; Goncalves v The Queen (1997) 99 A Crim R 193; Boonudnoon v The Queen (2002) 135 A Crim R 271; Pryor v The Queen (1969) 43 ALJR 388, considered.

WORDS AND PHRASES CONSIDERED/DEFINED

"standard of proof", "beyond reasonable doubt", "reasonable", "doubt", "reasonable doubt", "absolute certainty of guilt", "beyond all doubt", "moral certainty", "absolute metaphysical and demonstrative"

R v COMPTON AND BARRATT
[2013] SASCFC 134

Court of Criminal Appeal:  Kourakis CJ, Peek and Stanley JJ

  1. KOURAKIS CJ:   I would allow the appeals of both appellants on the ground that the Judge misdirected the jury on the onus of proof.  I would allow their appeals, set aside the convictions and order that the matter be remitted to the District Court for retrial.  I agree with the reasons given by Peek J.

  2. It is accepted by the whole Court that it was an error of law to direct the jury that “absolute certainty” was not required and that the prosecution did “not have to prove guilt beyond all doubt”.   The direction necessarily demanded of a juror who had a doubt that he or she pause and ask, “Am I unnecessarily seeking absolute certainty?” or “Is the doubt I have one that need not be negatived?”. 

  3. All members of the Court join in deprecating any explication of the terms “proof beyond reasonable doubt”. The point of difference between us is only as to the ameliorative effect of the Judge’s later orthodox direction that “a reasonable doubt is simply a doubt which you, as … reasonable jurors are prepared to entertain”.  In my view it was an ineffective antidote, because it failed to disestablish the false dichotomy between “reasonable doubt” on the one hand and “certainty” or “all doubt” on the other.  The later orthodox direction still left to each juror the task of determining whether his or her doubt was a doubt that a reasonable juror would hold and therefore whether it was a doubt which the prosecution needed to negative. 

  4. Before turning to the South Australian decisions which clearly hold that a direction which invites jurors to analyse doubts they hold to determine their reasonableness is wrong in law, it is useful to briefly touch on the historical development of the formulation of the modern criminal onus.  That history shows, as Isaacs and Powers JJ observed in Brown v The King,[1] that proof beyond reasonable doubt is “the same conception from the negative standpoint” of the idea of satisfaction to a degree of “moral certainty”. 

    [1] (1913) 17 CLR 570, 585.

  5. There is a useful discussion of the historical development of the modern criminal standard of proof in Wigmore on Evidence (Wigmore).[2]  Wigmore reveals that the standard was not expressed as proof beyond a reasonable doubt until the end of the 18th century and that it was first applied only in capital cases.  According to Wigmore, the beyond reasonable doubt standard developed out of earlier weaker statements such as “a clear impression”, “upon clear grounds”, and “satisfied”.  From those expressions a negative form of the standard in terms of “rational doubt”, “rational and well grounded doubt”, “beyond the probability of doubt” and “reasonable doubt” came to be used.

    [2]    9 Wigmore, Evidence 2497 (Chadbourn rev. 1981).

  6. Wigmore identifies Starkie’s A Practical Treatise of the Law of Evidence[3] as the origin of the high modern standard and, in particular, the direction which was to be given for many years thereafter that proof to the degree of “moral certainty, to the exclusion of all reasonable doubt” was required for a guilty verdict.  Nonetheless, as Wigmore observes, the statement of the standard in those terms was subjected to substantial criticism in the United States.  In the article ‘Some Rules of Evidence: Reasonable Doubt in Civil and Criminal Cases’[4] May CJ acknowledged the reasons of common humanity which drove lawyers to accept a high standard of criminal proof but, nonetheless, criticised the term “moral certainty” for its inherent uncertainty.

    [3]    Thomas Starkie, A Practical Treatise of the Law of Evidence (T & JW Johnson & Co, 10th ed, 1876), 864.

    [4]    May, Some Rules of Evidence: Reasonable Doubt in Civil and Criminal Cases, 10 A.M. L:Rev 642, (1876).

  7. In my view, the words “proof beyond reasonable doubt” are insusceptible of any further explication because fundamentally the criminal standard entails a value judgment about the degree of proof which is necessary before the infliction of punishment by the State is acceptable to the community.  For serious charges, that judgment is generally entrusted to a jury to make on behalf of the community.  Even though the direction “moral certainty” is no longer useful in explaining that high standard, it provides an apt allusion to the community standard inherent in the determination of the guilt or innocence of an accused.  As Johnston J explained in R v Pahuja:[5]

    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.

    [5] (1987) 49 SASR 191, 220-221.

  8. Wigmore identified the fundamental difficulty in an elaboration of the concept of beyond reasonable doubt when he said:

    The truth is that no one has yet invented or discovered a mode of measurement for the intensity of human belief.  Hence there can be yet no successful method of communicating intelligibly to a jury a sound method of self analysis for one’s belief.  If this truth be appreciated, courts will cease to treat any particular form of words as necessary or decisive in the law for that purpose; for the law cannot expect to do what logic and psychology have not yet done.[6]

    [6]    See a similar observation made by Cox J in R v Pahuja (1987) 49 SASR 191, 204.

  9. In the Supreme Court of the United States, Justice Harlan explained the relationship between the degree of certainty required by the criminal standard and the competing risk that an innocent person might be wrongly imprisoned on the one hand, and that an offender might be released into the community on the other:[7]

    First, in a judicial proceeding in which there is a dispute about the facts of some earlier event, the fact finder cannot acquire unassailably accurate knowledge of what happened.  Instead, all the fact finder can acquire is a belief of what probably happened.  The intensity of this belief – the degree to which a fact finder is convinced that a given act actually occurred – can, of course, vary.  In this regard, a standard of proof represents an attempt to instruct the fact finder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.  Although the phrases “preponderance of the evidence” and “proof beyond a reasonable doubt’ are quantitavely imprecise they do communicate to the finder of fact different notions concerning the degree of confidence he is expected to have in the correctness of his factual conclusion … the standard of proof influences the relative frequency of these two types of erroneous outcomes.  If, for example, the standard of proof for a criminal trial where a preponderance of the evidence rather than proof beyond a reasonable doubt, there would be a smaller risk of factual errors that result in freeing guilty persons, but a far greater risk of factual errors that result in convicting the innocent.  Because the standard of proof affects the comparative frequency of these two types of erroneous outcomes, the choice of the standard to be applied in a particular kind of litigation should, in a rational world, reflect an assessment of the comparative social disutility of each.

    When one makes such an assessment the reason for different standards of proof in civil as opposed to criminal litigation becomes apparent.  In a civil suit between two private parties for money damages, for example, we view it as no more serious in general for there to be an erroneous verdict in the defendant’s favour than for there to be an erroneous verdict in the plaintiff’s favour.  A preponderance of the evidence standard therefore seems peculiarly appropriate for, as explained most sensibly, it simply requires the tryer of fact “to believe that the existence of a fact is more probable than it’s non-existence before [he] may find in favour of the party who has the burden to persuade the [Judge] of the facts existence”.

    In a criminal case, on the other hand, we do not view the social disutility of convicting an innocent man as equivalent to the disutility of acquitting someone who is guilty.  …  In this context, I view the requirement of proof beyond a reasonable doubt in a criminal case as bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.

    [7]    In re Winship 397 U.S 358 (1970).

  10. The phrase proof beyond reasonable doubt is well known by the Australian community.  It is understood to embody the high degree of proof which our society demands as a condition of the exercise of the judicial power to punish.  I acknowledge that jurors regularly ask for further directions on the standard of proof, but the phrase does not require any exegesis.  It is natural enough that trial judges, when asked for assistance, will be tempted to elaborate on the standard direction but the temptation should be resisted for at least two reasons.  First, no one has yet formulated anything more helpful to say and probably never will for the reasons stated in paragraphs [7] and [8].  Secondly, I suspect that often the reason for the request is that there is a difference of opinion within the jury as to whether the criminal onus has been discharged precisely because they have different positions on the stringency of the community standard.   That difference must be resolved in the jury room, in accordance with the jurors’ collective formulation of the community standard.  Before a verdict is reached, unanimously or by majority, each of the jurors joining in it, will have all decided that they either do or do not have a doubt.  At that point, the state of mind of each and all of them is a reasonable one.  A direction which calls on a juror to measure the doubt which he or she may have against an indeterminate external standard denies the jury its adjudicative function.

    A juror’s doubt is a reasonable doubt 

  11. I gratefully adopt the survey assayed by Peek J in [49]-[55] of his reasons of the decisions of the High Court, which explain that it is not the task of the jurors “to analyse their own mental processes”.[8] 

    [8]    Thomas v The Queen (1960) CLR 584, 604-606 (Windeyer J).

  12. Those authoritative statements were applied in this Court in R v Wilson (Wilson),[9] and R v Pahuja (Pahuja).[10]

    [9] (1986) 42 SASR 203.

    [10] (1987) 49 SASR 191, 194-195.

  1. In Wilson, the trial Judge directed the jury that “if you think there is a doubt but that is merely a fanciful doubt, you will still convict because it is not a reasonable doubt”.  King CJ, with whom Johnston J agreed, held that the direction was wrong in law and that other correct directions in the body of the summing up did not cure the error because those directions were themselves tainted by the misdirection.[11] 

    [11] (1986) 42 SASR 203, 207.

  2. In Wilson, King CJ contrasted directions which warned juries against being influenced by fanciful possibilities on the one hand and directions which invite jurors to subject their doubts to analysis on the other.  I am not wholly persuaded by that distinction.  It seems to me that “a possibility consistent with innocence” and a “reasonable doubt” are two sides of the same coin.  To my mind a direction to exclude fanciful possibilities invites a similar form of self-analysis as a direction to exclude fanciful doubts.  Be that as it may, there is well-accepted authority that a direction to a jury to ignore fanciful possibilities and doubts is not a misdirection.[12]  I respectfully agree with Peek J, that the propriety of that direction is best justified on the basis that its meaning is that a fanciful doubt is no doubt at all, in the sense that it is imagined, rather than arising from the jury’s application of its commonsense understanding of the world to the evidence before it.  It is in the evaluation of the credibility of testimony and the inherent probabilities and improbabilities of the evidence that the jury should take a realistic and not fanciful view of the evidence.  Even then, and again with respect to others who take a different view, I would suggest that that direction is best not given.

    [12]   See discussion of Cox J in R v Pahuja (1987) 49 SASR 191.

  3. In the following year, the decision in Wilson was emphatically applied in Pahuja.  Both decisions continue to bind this Court.  In Pahuja, the Full Court again allowed the appeal brought on the grounds that the trial Judge’s summing up had invited the jurors to analyse their own doubts.   In summing up to the jury in Pahuja the trial Judge equated “a reasonable doubt” with a “real doubt”, and contrasted both expressions with “some stupid or fanciful or unreal doubt”.  Later in a redirection, which was prompted by the prosecution bringing the decision in Wilson to the trial Judge’s attention, his Honour directed the jury:

    If at the end of your deliberations you are left with any doubt, it is for you to decide whether there is a reasonable doubt, if you decide there is a reasonable doubt, of course, the Crown has not proved their case.

  4. The whole Court in Pahuja, King CJ, Cox and Johnston JJ, held that the redirection was wrong in law because it invited the jury to analyse its own doubts.  King CJ also expressed misgiving about the use of the words “real doubt”, in the body of the charge, but accepted that the contrast with “stupid or fanciful or unreal doubts” was not, in itself, a misdirection.  Cox J, on the other hand, held positively that the initial directions were not erroneous.  Johnston J expressed no opinion on that question.

  5. The conclusion reached by Cox J, on the first of the directions given in Pahuja, was strongly influenced by his Honour’s semantic analysis of the phrase “beyond reasonable doubt”.  Cox J forcefully put in Pahuja that it is inherent in that phrase that there are unreasonable doubts;  the word “reasonable” is one of limitation, and a contrary construction would leave it with no work to do.[13]  However, that purely textual analysis does not take into account the historical development, and continuing purpose, of the formulation, which is to encapsulate, by way of a composite direction,[14] a high level of conviction which the jury must hold that the accused committed the offence before it can return a verdict of guilty.

    [13] (1987) 49 SASR 191, 210-211.

    [14] (1987) 49 SASR 191, 194-195.

  6. Cox J also relied on the natural process of evaluating evidence and arriving at findings of fact by postulating possibilities which are, after due consideration, accepted or rejected.[15]  I respectfully agree that some factual scenarios which might at first appear to be open will, on further reflection, be rejected.  That process is a dynamic one in which the jury assesses the credibility of the witnesses, and measures the likelihood of the events they describe, against the jury’s knowledge of the world.  It is in the course of that process that fanciful views of the ways of the world must be eschewed.  At the conclusion of that evaluation each of the jurors must ask themselves, and debate, the ultimate question:  “Am I left in doubt about the guilt of the accused?”  In answering that question there is no cause to juxtapose the juror’s doubt with a reasonable doubt.

    [15] (1987) 49 SASR 191, 210-211.

  7. Finally, Cox J distinguished between the doubt of the jury as a whole and the doubts of individual jurors.  Cox J opined that the reference in Green to “a reasonable doubt is a doubt which the particular jury entertains in the circumstances”, was a reference to the jury as a whole.  The point made by Cox J is that individual jurors may have unreasonable doubts, and that it is only their collective doubt, if they are left with one, which is reasonable.  I can understand how in one sense, it might be said that the doubt formerly held by a juror who has a change of mind as a result of the jury room debate and joins in a verdict of guilty was an unreasonable doubt, and that the doubt of a minority which refuses to join in a verdict of guilty, is also unreasonable.  However, the better view is simply that the juror who later joins in the guilty verdict no longer has a doubt and that the doubts of the minority jurors are simply of no effect because the statutory rules which allow a guilty verdict by majority on charges of State offences.  Differences over whether the prosecution proof is sufficient is a matter for the jurors themselves to resolve internally.  References to an external standard of reasonableness which, as the passages I cited at the commencement of these reasons show, can have no useful content, will not assist the jury in their deliberations.  It is their judgment on the evidence, as representatives of the community, which is required, and not their judgment on whether their doubt is one which falls outside some other conception of what is reasonable.

    The direction in this case

  8. Unlike the directions in Wilson and Pahuja, the Judge in this case did not expressly invite the jurors to scrutinise any doubt they held for signs of unreasonableness.  However, the direction had the same practical effect.

  9. Certainty means having no doubt.  If a judge directs a jury, as a matter of law, that an offence can be proved to the criminal standard, even if the proof is not certain and therefore open to doubt, a juror who has a doubt is bound to ask whether his or her doubt is of a kind which still allows a guilty verdict to be returned.  The same can be said of the direction that the prosecution need not prove guilt beyond all doubt.  

  10. I accept that the direction upheld in Ladd v The Queen[16] is on all fours with the direction given in this case other than for the immaterial distinction that it was a further direction given in response to a jury question.  So too is the direction upheld that was considered by the Victorian Court of Appeal in Neilan v R.[17]  Both decisions rely heavily on the insistence in the reasons of Cox J in Pahuja.  In my respectful opinion, the application of the reasoning of King CJ and Johnston J to this case requires the conviction to be set aside.

    [16] (2009) 157 NTR 29.

    [17] [1992] 1 VR 57.

  11. I would allow the appeal and quash the conviction.

  12. For the reasons given by Stanley J, I agree that the verdict was not unsafe.  I would therefore order a retrial.

  13. PEEK J.   Appeal against conviction for rape.

  14. I have had the benefit of reading the judgment of Stanley J.  I gratefully adopt his summary of the facts.  I agree with his Honour’s reasons for rejecting ground 2 of appeal (which asserts that the verdicts were unreasonable).

  15. However, I have a different view as to ground 1, which in essence complains of the trial Judge’s direction: “Absolute certainty of guilt is not required.  The prosecution does not have to prove guilt beyond all doubt”.  I consider that that direction, even taken in the context of his Honour’s other directions, constituted a misdirection which requires that there be a re-trial. 

    Overview ─ A doubt is a doubt is a doubt

  16. Most would readily agree that it is unacceptable to convict a person of a serious criminal offence provided that there is “only a little doubt about his guilt”.  The mind recoils from such a proposition, and perhaps because one instinctively considers that the central premise of the criminal justice system is much better conveyed by the aphorism “the accused person is entitled to the benefit of the doubt”.  Put in that way, one readily accepts that there is to be no slicing and dicing of a “doubt”; if a jury considers that a doubt exists, the accused is entitled to it.

  17. In a criminal case, the primary focus should always remain squarely on the prosecution evidence.  The critical question for the jury is: “Has the prosecution proven the guilt of the accused of the particular charge beyond reasonable doubt?”.[18]  However, in the present case the learned Judge sent the jury on the course of their deliberations down a road signposted by his directions: “Absolute certainty of guilt is not required” and “The prosecution does not have to prove guilt beyond all doubt”.

    [18]   Cf R v Lavery (2013) 116 SASR 242.

  18. The jury thence proceeded with the understanding that they could hold some doubt and still convict the appellants.  This inevitably follows from a combination of two propositions.  The first proposition is that the prosecution has to prove guilt beyond reasonable doubt to obtain a conviction.  The second proposition is that the prosecution does not have to prove guilt beyond all doubt to obtain a conviction.  Accordingly, there must be some doubt that does not amount to reasonable doubt and will not prevent a conviction.

  19. If the jury did entertain ‘some’ doubt as to guilt by the time of reaching their destination of the end of deliberations, they were then confronted with a final signpost with twin questions upon it: “How uncertain may we be and still convict the accused?” and “How much doubt may we have and still convict the accused?”.

  20. The Judge gave further directions as to the ability of the jury to decide what constituted a reasonable doubt[19] but the combined effect of all directions was that if the jury did actually hold some doubt, it would then have to perform the very task that the law clearly proscribes ─ the analysis of its own thought processes.  They would have to determine whether the doubt they actually held was a reasonable doubt (which would prevent conviction) or was some lesser doubt of the type that the Judge had directed one could hold but which would not prevent conviction (this being the direct consequence of the direction: “[t]he prosecution does not have to prove guilt beyond all doubt”.)

    [19]   These directions are reproduced below.

  21. The jury should never have been sent down this road at all.  If “the jury have a doubt, that doubt is ipso facto, as Green’s case establishes, a reasonable doubt”.[20]  Decisions such as Green v The Queen,[21] R v Wilson, Tchorz and Young[22] (R v Wilson), R v Pahuja,[23] R v Britten[24] and R v Krasniqi[25] dictate that the appeal must be allowed. 

    [20]   R v Wilson, Tchorz and Young (1986) 42 SASR 203, 206 (King CJ).

    [21] (1971) 126 CLR 28.

    [22] (1986) 42 SASR 203.

    [23] (1987) 49 SASR 191.

    [24] (1988) 51 SASR 567.

    [25] (1993) 61 SASR 360.

    Introduction

  22. For as long as people commit crimes, and later deny having done so, there will be need for a criminal justice system to adjudicate whether in a particular case it is proven to a requisite degree of proof that an accused person is guilty of the crime alleged.  One moves relatively easily to the proposition that the requisite degree of proof should be higher than upon the balance of probabilities but as to the precise level above that there will always be difficulties.

  23. An aphorism previously often heard, but now out of fashion, was that: “It is better that ‘x’ guilty men go free than one innocent man be convicted”.  Of course, in the place of ‘x’ is to be inserted a suitably impressive number which differs according to the occasion and precise version of the aphorism being adopted.  But whatever the number inserted, be it ten, one hundred or another number, the problem will always be where to stop.

  24. It has to be accepted that in any criminal justice system there will always be some risk of wrongful conviction; a requirement of proof of “absolute, metaphysical and demonstrative” certainty might be sufficient to eliminate that risk but it would also almost eliminate the possibility of most guilty persons being convicted.  Of course, the problem is hardly new.  I might refer in this regard to the following statement in 1876 in A Practical Treatise of the Law of Evidence:[26]

    What circumstances will amount to proof can never be matter of general definition; ...  On the one hand, absolute, metaphysical and demonstrative certainty is not essential to proof by circumstances.  It is sufficient if they produce moral certainty to the exclusion of every reasonable doubt; ...  On the other hand, a juror ought not to condemn unless the evidence exclude from his mind all reasonable doubt as to the guilt of the accused, and, as has been well observed, unless he be so convinced by the evidence that he would venture to act upon that conviction in matters of the highest concern and importance to his own interest; and in no case, as it seems, ought the force of circumstantial evidence sufficient to warrant conviction, to be inferior to that which is derived from the testimony of a single witness, the lowest degree of direct evidence.                   

    (Emphasis added)

    [26]   Thomas Starkie, A Practical Treatise of the Law of Evidence (T & JW Johnson & Co, 10th ed, 1876) 864.

  25. What is here being compared is the very high level of certainty (“moral certainty to the exclusion of every reasonable doubt”) which is required for a conviction with a rather more theoretical level of absolute certainty (“absolute, metaphysical and demonstrative”) which is not required for a conviction.  “Moral certainty to the exclusion of every reasonable doubt” expresses the same criminal onus of proof which we now usually express in the shorter form, “proof beyond reasonable doubt”.

  26. Thus, in Brown v The Queen,[27] Barton ACJ expressed the criminal onus of proof as: “the persuasion of guilt ought to amount to a moral certainty; or, as an eminent Judge expressed it, ‘such a moral certainty as convinces the minds of the tribunal, as reasonable men, beyond all reasonable doubt’”.

    [27] (1913) 17 CLR 570, 585.

  27. To exactly the same effect, Isaacs J and Powers J stated that, “[t]he law is that there must be moral certainty of guilt, which in itself involves the absence of reasonable doubt”.[28]  Their Honours eschewed definition by reference to one’s most important personal affairs and explained:[29]

    … It is simpler to ask for moral certainty—a term of clear conception—with reference to the circumstances of the particular case.  And in referring to the necessary absence of reasonable doubt—which is a view of the same conception from the negative standpoint—reference should preferably be similarly confined to the circumstances of the case in hand, which include, of course, the common elements of human nature.  …

    [28]   Brown v The Queen (1913) 17 CLR 570, 595.

    [29]   Brown v The Queen (1913) 17 CLR 570, 596.

  28. There followed the formulation of the criminal onus of proof by their Honours which is as correct in 2013 as it was in 1913:[30]

    … The substance of the matter seems to us to stand thus:—Where a jury, with minds directed to the single object of performing their duty by arriving at a true verdict, and unswayed by any ulterior consideration which might divert them from the truth, investigate and weigh all the circumstances of the case fully and fairly, and, after doing so, find that notwithstanding any possible balance of their opinion against the accused there nevertheless exists in their minds a residuum of doubt as to his guilt—not a mere conjectural, visionary doubt, or a doubt arising from the bare possibility of his innocence, but a real doubt created by the operation of the circumstances before them upon their reason and common sense,—then their doubt is a reasonable doubt within the meaning of the rule.  If such a doubt exists, they have not that moral certainty which is the correlative of the expression, and which the law requires to overcome the initial presumption of innocence; and in that case they should acquit.

    [30]   Brown v The Queen (1913) 17 CLR 570, 596.

  29. It is true that the term “moral certainty” is seldom heard now, although we do know that it was used in South Australia as late as the trial of Conley in 1982 where the trial Judge had directed:[31]

    In this court, the general rule is that in every criminal case it is not for the accused to prove his innocence, but it is for the Crown to prove his guilt.  Every accused person is deemed to be innocent unless and until the evidence establishes his guilt.  Furthermore, the Crown must prove his guilt beyond reasonable doubt.  And if the Crown is to prove his guilt, it must establish beyond reasonable doubt every essential element of the offence charged against him.  It is not enough for the Crown to show a mere suspicion of guilt, to show that the accused is probably guilty.  Circumstances of suspicion, by themselves, are not sufficient to justify a conviction, even though an accused person may offer no satisfactory or sufficient explanation of them.  To enable a conviction to be sustained, the Crown must satisfy you of the accused’s guilt beyond reasonable doubt, and you cannot convict unless you are convinced to a degree of moral certainty about his guilt.

    (Emphasis added)

    [31]   Conley v The Queen(1982) 30 SASR 226, 231-232 (quoted by King CJ).

  30. Now, it is quite clear that the trial Judge was there seeking to emphasise the height of the hurdle of proof beyond reasonable doubt rather than to in any way derogate from it.  However, on appeal, counsel for the appellant argued that “this direction was vitiated by the reference to moral certainty which he said was a watering-down of the notion of ‘beyond reasonable doubt’”.  Thus, it was argued that the question that arose was as to whether the jury may have misinterpreted what his Honour intended to convey by the words “moral certainty”, particularly having regard to the possibility that those words may now convey a popular meaning somewhat different to their original meaning.

  31. The Court roundly rejected that contention.  King CJ noted that when the term “moral certainty” was in legal vogue, the term was understood to connote a very high or absolute level of conviction.  His Honour stated:[32]

    The expression “moral certainty” has been sanctioned by long-standing usage in the criminal courts as synonymous with the expression “beyond reasonable doubt”.  Authority for its use is to be found in Brown v The King, per Barton ACJ at p 586 and per Isaacs and Powers JJ at p 595, and in Thomas v The Queen, per Windeyer J at p 605. My personal view is that it is better to adhere to the expression “beyond reasonable doubt” and to avoid alternative expressions. The expression “moral certainty” is not now used in common speech and writing as perhaps it was in former times and its meaning may not be apparent to jurors. If the expression “moral certainty” is used, I think that it is desirable to explain to the jury that it is used as another way of expressing the notion of satisfaction beyond reasonable doubt. … The expression “moral certainty”, however, is not a watering-down or qualification of the “beyond reasonable doubt” standard, and it would be impossible on the authorities to hold that the use of the expression “moral certainty” in conjunction with the expression “beyond reasonable doubt” amounts to a misdirection.[33]

    [Footnote omitted]

    [32]   Conley v The Queen (1982) 30 SASR 226, 232.

    [33]   With respect, I entirely agree.  I simply add that in R v Pahuja (1987) 49 SASR 191, 205-206, Cox J agreed with the view of King CJ in Conley v The Queen (1982) 30 SASR 226 that there may have been a change in the popular meaning of “moral certainty”. Cox J noted a difference between the traditional Oxford English Dictionary’s definition and the more recent Macquarie Dictionary definition: “The Oxford English Dictionary’s definition of “moral certainty” is “a practical certainty resulting from moral evidence; a degree of probability so great as to admit of no reasonable doubt; also, something which is morally certain”. (Compare the Macquarie Dictionary: “resting upon convincing grounds of probability.)”

    Striking a balance

  1. With respect, I find the exposition by Windeyer J in Thomas v The Queen,[34] to be of great assistance in this area.  His Honour there observed:[35]

    I would add, although it does not arise from any omission by the learned judge in this case, that, in my view, it is not desirable that the time-honoured expression “satisfied beyond reasonable doubt” should be omitted and some substitute adopted.  It is said that it was “invented by the common-law judges for the very reason that it was capable of being understood and applied by men in the jury box” (quoted in Wigmore on Evidence 3rd ed vol IX, § 2497, p 323).  The expression proof beyond a doubt conveys a meaning without lawyers' elaborations.  Othello’s meaning was clear enough: “ ... so prove it, that the probation bear no hinge nor loop to hang a doubt on”.  For generations jurymen have been directed in terms of “reasonable doubt”, “moral certainty” and “the benefit of the doubt”.  …  And in Mancini’s Case the House of Lords referred to what Finlay J said in the first trial in Woolmington’s Case as “a good example of the proper direction”.  The passage, quoted in counsel’s argument on the appeal in the second trial, ran: “Consider whether you entertain the slightest doubt that this was a deliberate killing.  If you have no doubt, it is your duty to convict.  ... If the result of a dispassionate survey is to leave a reasonable doubt in your minds, then your duty as well as your pleasure is to acquit”.

    Of course, if the trial judge thinks that, influenced by advocacy or for some other reason, the jury may conjure up mere chimeras of doubt, he may well emphasize that for a doubt to stand in the way of a conviction of guilt it must be a real doubt and a reasonable doubt—a doubt which after a full and fair consideration of the evidence the jury really on reasonable grounds entertain.  The task of the jury in a criminal case is to examine the evidence, bearing in mind that they must be satisfied beyond reasonable doubt—that they cannot be so satisfied if there be still open some reasonable hypothesis compatible with innocence.  But it is not their task to analyse their own mental processes.

    (Emphasis added, Footnotes omitted)

    [34] (1959-60) 102 CLR 584, 604-606.

    [35]   Thomas v The Queen (1960) 102 CLR 584.

  2. As the words in emphasis show, if the jury has the “slightest doubt” of guilt then it is not satisfied beyond reasonable doubt and must acquit; if it has “no doubt” it has a duty to convict.

  3. The opposite side of the coin, as Windeyer J also demonstrates, is that it is important that juries do not consider themselves to be prevented from convicting by the conjuring up of mere chimeras of doubt .[36]  This term was no doubt very carefully chosen by his Honour; it well conveys that what is to be rejected is an aberrant mental process infected by something that is in truth not a real doubt at all.[37]  The term “chimeras of doubt” makes clear, indeed governs, what his Honour says immediately thereafter – “that it must be a real doubt and a reasonable doubt”.  His Honour was here not using the words “real” and “reasonable” in a quantitative way to diminish the required quantum of proof but in a qualitative way in order to emphasise that a doubt must in fact really exist, albeit ever so slight.

    [36]   The Shorter Oxford English Dictionary gives as the ordinary modern use of chimera: “a mere wild fancy; an unfounded conception”.

    [37]   See R v Wilson (1986) 42 SASR 203, 207 (King CJ).

    Proof beyond reasonable doubt – a composite expression

  4. The term “reasonable doubt” is “a composite expression used in a Court of law to convey a particular meaning, namely a doubt which would be entertained by a reasonable person in the circumstances”.[38]  That meaning is to be accepted and is not to be whittled down by reference to linguistic or semantic considerations that might apply to the word “reasonable” taken separately or might apply to the word “doubt” taken separately.  The word “reasonable” is not otiose.  “Reasonable” is used in a qualitative sense and its very real function is to supply half of the composite expression “reasonable doubt” which expression has a meaning different to the sum of the two words if taken individually.

    [38]   R v Pahuja (1987) 49 SASR 191, 194 (King CJ).

  5. These matters were emphasised by King CJ in R v Wilson[39] and again in R v Pahuja where his Honour stated: [40]

    The expression “reasonable doubt” is a composite expression meaning a doubt which would be entertained by a reasonable person in the circumstances … if a doubt exists, it can hardly be said to be other than a real doubt.  …  I repeat what I emphasised in Wilson, namely that the adjective “reasonable” in the expression “reasonable doubt” does not denote any particular degree of strength of the doubt.  It is qualitative, not quantitative, in meaning.  …  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.

    (Emphasis added)

    [39] (1986) 42 SASR 203.

    [40] (1987) 49 SASR 191, 194-195. See also R v Lazarevich (Unreported, New South Wales Court of Criminal Appeal, Street CJ, Nagle CJ at CL and Fisher J, 10 December 1979) 7 where Street CJ (with whom Nagle CJ at CL and Fisher J concurred) stated: “It has been made clear by the High Court that an analytical approach to the concept of reasonable doubt is erroneous.  The jury’s consideration is to be directed to the single composite concept of proof beyond reasonable doubt”.

    The jury must not be invited to analyse a doubt that it holds

  6. The common law has performed the exercise of balancing the need to avoid wrongful convictions with the need to convict guilty persons.  It has determined that the onus of proof is on the prosecution and that the degree of proof is a high level of proof currently expressed in Australia as proof beyond reasonable doubt.  The balancing process has been performed once and for all; the jury must accept the Judge’s direction that the standard to be applied is proof beyond reasonable doubt and is not to perform their own balancing process in each individual case so as to determine the standard of proof that they will apply.

  7. However, in applying the standard of proof beyond reasonable doubt, it is the jury who determine what is a reasonable doubt in a particular case.  It is an important part of our system that reasonable doubt is no more, and no less, than a doubt that the jury is prepared to entertain.  It follows that the jury must not be invited to subject a doubt that they actually hold to further scrutiny to determine whether it is a reasonable doubt or some lesser doubt.

  8. This was emphasised by the High Court in Green v The Queen.[41]  The trial Judge there had given relatively lengthy directions suggesting how the jury should analyse their thought processes and determine whether they held a reasonable doubt or something less.  The Judge’s exposition was confusing but, of present importance, the Court held that independently of such confusion it was defective for a more fundamental reason.  Barwick CJ, McTiernan and Owen JJ stated:[42]

    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.  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.

    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.  … 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 …  

    [Footnotes omitted]

    [41] (1971) 126 CLR 28.

    [42] (1971) 126 CLR 28, 32-33.

  9. The courts in South Australia have taken a firm view of the above matters.  In R v Wilson[43] the trial Judge had directed “If you think there is a doubt but that it is merely a fanciful doubt, you will still convict because that is not a reasonable doubt”.[44]  King CJ (with whom Johnston J concurred) found this to be radical error.  His Honour stated:[45]

    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.   …

    … Proof beyond reasonable doubt requires that doubts, irrespective of degree of strength which they attain, be given effect to if the jurors, as reasonable persons, are prepared to entertain them.

    (Emphasis added, Footnotes omitted)

    [43] (1986) 42 SASR 203.

    [44]   R v Wilson (1986) 42 SASR 203, 205 (quoted by King CJ).

    [45]   R v Wilson (1986) 42 SASR 203, 206-207.

  10. In the later decision in R v Pahuja, King CJ further elucidated this matter: [46]

    … The law does not require a jury to subject its mental states to a process of analysis or evaluation for the purpose of determining their quality.  Mental philosophers, psychiatrists, psychologists and lawyers subject mental states to analysis and evaluation, but ordinary jurors are unlikely to be accustomed to doing so.  Green (at 33), makes it clear that it is not part of the task of a jury to do so. 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.  …  

    (Emphasis added)

    [46] (1987) 49 SASR 191, 195.

  11. Johnston J concurred with King CJ in a separate judgment.  His Honour’s words are equally emphatic:[47]

    … 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 to be weighed on a 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.

    [47]   R v Pahuja (1987) 49 SASR 191, 220-221. Cox J, although agreeing that the appeal should be allowed, took a different approach to which I refer below.

  12. Cox J delivered a separate judgment in which his Honour joined in the order allowing the appeal but expressed a minority view differing with the views of King CJ and Johnston J.  In South Australia, it is the majority view of King CJ and Johnston J that is to be applied, as was indeed accepted by the South Australian Court of Criminal Appeal in the case of R v Dam Thi Kim Chi[48] decided shortly after R v Wilson.[49]  I should add that, in any event, I prefer the views of King CJ and Johnston J to those of Cox J.[50]

    [48] (1986) 43 SASR 422.

    [49] (1986) 42 SASR 203.

    [50]   I note that the respondent seeks to rely on the judgment of Martin CJ in Ladd v The Queen (2009) 157 NTR 29 in which his Honour expressed a preference for the minority view of Cox J. There, the jury had asked the trial Judge: “The jury would like to know the legal definition of the word ‘reasonable’ in the context of reasonable doubt”. In answering that question the trial Judge had stated inter alia: “… If you have a reasonable doubt – I should say first it is not required of the Crown to prove its case beyond all doubt.  So you’re looking at what is a reasonable doubt and what is a reasonable doubt, is for you to determine.  If you have a reasonable doubt, then of course the accused man is entitled to get the benefit of that”.

    Martin CJ commenced his exposition in Ladd thus: “First, as a matter of principle, is it correct to say that the Crown is not required to prove its case beyond “all” doubt?  On one view, that statement is literally correct because juries are entitled to put aside “unreasonable” doubts or doubts that would not be entertained by a juror acting reasonably.  On another view, the direction that the Crown is not required to prove its case beyond “all” doubt is not correct because “a” doubt experienced by a jury is, by definition, “a reasonable doubt”.  …  As will be seen from the passages in the judgment of King CJ to which I am about to refer, it appears that his Honour took the view that “a doubt” entertained by a jury of reasonable persons, irrespective of the strength of the doubt, is, ipso facto, a reasonable doubt”.

    Martin CJ referred to various passages in the judgment of King CJ in R v Wilson and in R v Pahuja and then made extensive reference to the judgment of Cox J in R v Pahuja.  I note that he accepted that King CJ in both R v Wilson (Johnston J concurring) and in R v Pahuja (Johnston J concurring in separate reasons) took “the strict view” (at 82 [212]) that a doubt entertained by a jury of reasonable persons, irrespective of the strength of the doubt, is, ipso facto, a reasonable doubt and that in disagreeing with that strict view, Cox J was expressing “a minority view” (at 74 [171]).

    The judgment of Cox J in R v Pahuja

  13. However, I should say something further about the judgment of Cox J as it concerns the redirections given by the trial Judge in R v Pahuja.[51]  Although Cox J differed from the plurality concerning the main directions of the trial Judge, his Honour joined in the order to allow the appeal solely on the basis of the redirections given by the trial Judge which were as follows:[52]

    The first is the question of “beyond reasonable doubt”.  It may be that I left the wrong impression with you at one particular part, so I will now endeavour to clarify it.  The expression “beyond reasonable doubt” is simply a matter, really, of plain common sense.  If at the end of your deliberations you are left with any doubt, it is for you to decide whether that is a reasonable doubt.  If you decide there is a reasonable doubt, then, of course, the Crown have not proved their case.  You do not have to go to consider any other matters in relation to that because when you decide you have a doubt, it is for you to decide whether it is a reasonable doubt and if it is a reasonable doubt then the verdict has to be not guilty.    

    (Emphasis added)

    [51] (1987) 49 SASR 191.

    [52]   R v Pahuja (1987) 49 SASR 191, 203 (quoted by Cox J).

  14. With respect, I consider that the above passage (in emphasis) of itself constitutes clear misdirection requiring the setting aside of the verdict.  But the present important point here is that Cox J also held that view – but only on the basis that such a result was dictated by the doctrine of precedent.  Thus, his Honour stated:[53]

    … If it were not for Wilson — and the decision was followed by another Full Court in R v Dam Thi Kim Chi (1986) 43 SASR 422— I would hold that the error in the learned judge’s redirection was venial and could not possibly have caused a substantial miscarriage of justice. The offending words were unnecessary and undesirable, but they were simply making explicit what any perceptive juror would have realised was necessarily conveyed in the test “beyond reasonable doubt”, anyway, and could not have caused any confusion. However, the condemnation of the impermissible advice as to the jury’s process of reasoning played an important part in the majority decision in Wilson and must be regarded as a part of the ratio decidendi of that case.  The court, basing itself on Green, took a strong view about it.  I think it likely that it would have set aside the convictions for that reason alone.  The decision in Wilson is binding, of course, on this Court.  I am obliged to hold, therefore, that the learned judge’s redirection on the standard of proof contained an appealable error and that, as a result, the verdict must be set aside.

    [53]   R v Pahuja (1987) 49 SASR 191, 212.

  15. Thus, the long and the short of it is that Cox J agreed that the binding effect of R v Wilson,[54] R v Dam Thi Kim Chi[55]and R v Pahuja[56] does require that an appeal be allowed if the Judge directs that, “If at the end of your deliberations you are left with any doubt, it is for you to decide whether that is a reasonable doubt”.  For the reasons expressed elsewhere herein, I consider that that is the exact effect of the directions in the present case.

    [54] (1986) 42 SASR 203.

    [55] (1986) 43 SASR 422.

    [56] (1987) 49 SASR 191.

  16. The later case of R v Britten[57] is also quite helpful in the circumstances of the present case.  The words complained of there were in just as close compass as those in the present case.  The trial Judge had directed the jury: “I suggest you consider the evidence very carefully to see what has been proved beyond reasonable doubt — whether on the evidence there is room for more than a theoretical or fanciful doubt”.[58]

    [57] (1988) 51 SASR 567.

    [58]   R v Britten (1988) 51 SASR 567, 570 (quoted by King CJ) (Emphasis added).

  1. All of these matters were brought to the attention of the jury in the course of the trial judge’s summing up and were the subject of the address of the appellant Compton’s counsel at trial.[159]  The jury were told in no uncertain terms by the trial judge that the complainant had demonstrated that he was prepared to lie to protect his own interests.

    [159] AB 85 – 89 Summing Up, and closing address of Compton’s counsel, T 243 – 250.

  2. There is no reason to conclude that in reaching their verdicts the jury overlooked these matters. 

  3. In my view, the issues surrounding the reliability of the complainant’s evidence were not sufficient to preclude satisfaction of the appellants’ guilt to the requisite standard.  They were matters to be considered in assessing whether the charges had been proved to the requisite standard, but did not per se, preclude a finding of guilt.  Further, the inconsistencies identified on the evidence could all be explained by the complainant’s youth, intoxication at the time, sense of shame, his fear of not being believed, and the nature of the ordeal he had endured as a teenage boy of 14 years of age.  The alleged inconsistency based on the discrepancies between when the complainant dated the offending and the time at which his grandmother and mother dated the occasion when he returned home without his shoes can be explained by the effluxion of time.  The complainant’s mother and grandmother were giving evidence two years after the event surrounding the shoes.  There is no cogent reason to reject the complainant’s evidence on the basis of this discrepancy. 

  4. Accordingly, I reject this ground of appeal.

    Conclusion

  5. I would give permission to appeal on the ground that the verdicts were unsafe and unsatisfactory, but dismiss the appeals. 


Most Recent Citation
Cases Citing This Decision

2

Pickett v Western Australia [2020] HCA 20
Nasrallah v R; R v Nasrallah [2015] NSWCCA 188
Cases Cited

11

Statutory Material Cited

1

Brown v The King [1913] HCA 70
R v White (No 8) [2012] NSWSC 472
Thomas v The Queen [1960] HCA 2