R v Dookheea
[2017] HCATrans 132
[2017] HCATrans 132
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M159 of 2016
B e t w e e n -
THE QUEEN
Appellant
and
KRITSINGH DOOKHEEA
Respondent
KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
EDELMAN J
TRANSCRIPT OF PROCEEDINGS
AT ADELAIDE ON MONDAY, 19 JUNE 2017, AT 2.16 PM
Copyright in the High Court of Australia
MR G.J.C. SILBERT, QC: May it please the Court, I appear with my learned friend, MR B.L. SONNET, for the appellant. (instructed by Office of Public Prosecutions (Vic))
MR O.P. HOLDENSON, QC: May it please the Court, I appear with my learned friend, MS C.A. BOSTON, for the respondent. (instructed by Stary Norton Halphen)
KIEFEL CJ: Yes, Mr Silbert.
MR SILBERT: If the Court pleases. This is an appeal from an order of the Court of Appeal of the Supreme Court of Victoria allowing an appeal against a conviction for murder returned after a 10‑day trial in the Supreme Court of Victoria quashing the conviction and directing a new trial. The matter comes before this Court pursuant to a grant of special leave on 18 November last and the grounds of appeal technically are two to be found at page 323 of the appeal book. Ground 1:
The Court of Appeal erred in concluding that the trial judge, in her charge to the jury, erred in directing that the prosecution has to prove an element of a crime “not beyond any doubt, but beyond reasonable doubt”.
Ground 2:
The Court of Appeal erred in concluding that a direction that the prosecution has to prove an element of a crime “not beyond any doubt, but beyond reasonable doubt” occasioned a substantial miscarriage of justice in all the circumstances.
We adopt our submissions dated 13 February 2017. Effectively three cases, La Fontaine, Neilan and Ladd, would be sufficient, it is submitted, on their own to dispose of this appeal. However, I shall briefly make oral submissions in accordance with the outline that the Court should have and I will adhere to that order.
The onus of proof and standard of proof are foundations of the criminal trial. Any interference with either concept is prohibited and for this reason any attempt to explain or analyse the standard of proof has been discouraged since the Court’s decision in Green, which is No 1 on our list of authorities, perhaps slightly modified by La Fontaine, where the major judgment also was by then Chief Justice Barwick dealing with affrays “beyond any doubt” used by the trial judge in that case.
Indeed, it is instructive to note that in La Fontaine (1976) 136 CLR 62 – No 2 on our list ‑ looking at the judgment of Chief Justice Barwick at pages 70 and 71 of the report, at the foot of page 70, the second‑last paragraph:
As a result, a further ground for seeking special leave was notified, namely, that the learned trial judge failed to direct the jury or, alternatively, misdirected the jury as to the onus of proof and, in particular, as to the meaning of the words “reasonable doubt”.
His Honour the Chief Justice at the top of page 71 then goes on to cite the trial judge’s direction:
The relevant passage of the summing up, actually recorded on the second page of the typescript record, is as follows:
“The Crown, of course, has to establish its case beyond reasonable doubt. As you were told by the prosecutor himself, that does not mean beyond any doubt at all -
So this phrase keeps creeping in and keeps being deprecated. It does seem to creep in and in comes into La Fontaine where it was not the basis for the allowing of the appeal in that case. The jurisprudence surrounding this seems to have developed since Green and La Fontaine, in fact by the combination of both, boiling down to a question of what the overall effect of the judge’s charge is and, as we have said in paragraph 2 of our speaking notes, authority dictates ‑ ‑ ‑
KIEFEL CJ: I am sorry, in La Fontaine that was not considered to be problematic, although the Court did not actually endorse it.
MR SILBERT: No, the courts never endorsed it, always said that it is better not to be used but it does not seem to have disturbed any conviction where it has crept in as a one‑liner amidst a whole series of proper directions as to proof beyond reasonable doubt.
KIEFEL CJ: Mr Silbert, is it any part of your submissions that the Court should reconsider whether Green should be modified in any way?
MR SILBERT: It is not, your Honour. We do submit that La Fontaine perhaps does modify Green to an extent and that the two should be read together but that when they are read together we submit that the current state of the law is as has been applied effectively ever since then.
NETTLE J: Meaning that, whilst it is not an error to direct not beyond all doubt, it is not a problem when that is directed.
MR SILBERT: It depends on the circumstances, your Honour. I cannot say a blanket yes to that. It could be a problem if the overall tenor of the judge’s charge left the jury with any impression other than the fact that the Crown has to prove its case beyond reasonable doubt.
NETTLE J: Yes.
MR SILBERT: The authorities that are referred to in our list and that are referred to effectively talk about considering the charge as a whole and seeing what the ultimate impression left with the jury is. If it was beyond any doubt, full stop, then it clearly would be a problem.
KIEFEL CJ: The summing‑up in La Fontaine in the passage you have taken us to also uses the comparator of the onus of proof in civil cases.
MR SILBERT: Yes.
KIEFEL CJ: Which is a common feature of some other jurisdictions.
MR SILBERT: Yes, it is.
KIEFEL CJ: In the jurisprudence that you referred us to in England and elsewhere the other description that seems to be employed is a discussion of there being no certainty, no absolute certainty.
MR SILBERT: Yes.
KIEFEL CJ: That seems common. Australia seems the most stringent in its lack of expression compared with those other jurisdictions.
MR SILBERT: Yes, we would agree with that, your Honour, and it is common, certainly in Australia, as we understand it, that the comparison with the civil standard is used in order to explain to a jury the difference and the height of the standard of proof in a criminal trial, compared with proof on the balance of probabilities.
KIEFEL CJ: Does that rather assume that a jury understands what balance of probability is?
MR SILBERT: It is often explained to them, your Honour, that in the form of a car accident and one version being more likely than another, probably without an explanation one would be presuming that it was understood but it is frequently, and I do not think it is unorthodox to explain to them by way of comparison the civil standard with some explication as to what the civil standard actually entails.
KIEFEL CJ: Here, the position was not reached where the statutory provisions with respect to giving further explanation was invoked.
MR SILBERT: No, it was not.
KIEFEL CJ: Is it often invoked, though? I am not asking you statistically to suggest this but ‑ ‑ ‑
MR SILBERT: I am not sure it has been in force long enough to provide a definitive answer to that. That came in in the initial Act of 2013, which was re‑enacted some time later. It appears to be invoked from time to time because juries often ask for an explanation and always have asked for an explanation of “beyond reasonable doubt”.
KIEFEL CJ: Yes.
MR SILBERT: The statutory provision empowers the judge to at least give some sort of explication, which would have been forbidden effectively prior to the statutory modification.
EDELMAN J: In a sense, the statements made to the jury about contrasting “beyond reasonable doubt” with “the balance of probabilities” themselves explicate “beyond reasonable doubt” to some extent. It is just at the other extreme where “beyond reasonable doubt” is to be compared with a standard that is higher rather than lower is where the difficulties seem to arise.
MR SILBERT: Yes, your Honour.
EDELMAN J: But as a matter of principle, is there any principal difference between an explanation at one extreme rather than the other?
MR SILBERT: We go from principle to logic and probably logically there is not but it has always been considered sacrosanct that no explanation be given of “beyond reasonable doubt” other than the contrast of the civil standard. Now, it may well be time, with changing social trends and increased education and different juries, perceptions, to perhaps provide something further. But up until this point in time it has been considered proper to only explain it at the end that your Honour Justice Edelman has referred to and not go to the other end at all.
GAGELER J: In some early cases in this Court “beyond reasonable doubt” has been equated with “moral certainty”. Now, would it be erroneous in 2017 to equate “beyond reasonable doubt” with “moral certainty”?
MR SILBERT: In a formulaic sense it might be. In a philosophical discussion it might not be as long as there is some exposition of what “moral certainty” means because one then gets into the question of what moral certainty is.
GAGELER J: But meaning subjective belief to a certain degree.
MR SILBERT: Amongst lawyers no. Whether that will wash with a lay jury as far as getting into the area of – you are getting into the area of ethics, I suppose, logical ethics and there are great expositions on what that means. Whether one is going to over refine it to the point of over‑explaining it and making it even more complicated than it is, I am not here to say. It is certainly possible that that could happen.
GAGELER J: While I have detained you, you have given us a reference to the position in other countries – New Zealand and I think Canada.
MR SILBERT: Yes, I have.
GAGELER J: What do you want us to take from that?
MR SILBERT: It is just by way of example, your Honour, that the position is probably more stringent in this country than it is in other countries and it is just by way of explanation. Ultimately the Court of Appeal here went with a line of South Australian authority that probably was not followed anywhere else other than in South Australia. It was even higher than that prevailing everywhere else. So it is just by way of comparison.
The point arguing this appeal effectively is that the slip in relation to beyond doubt, staying with La Fontaine, Justice Gibbs at the foot of page 81:
Many charges when subjected to close scrutiny will be found to contain misstatements which are corrected elsewhere in the charge. Notwithstanding the criticisms levelled at the charge in the present case I am satisfied that, taken as a whole, it was fair and sufficient.
That probably sums up the law in this country at the present time in relation to the tension that has arisen between contrasting the civil standard and explaining the moral certitude of proof beyond reasonable doubt. Again, La Fontaine takes us back to 1976 and it may well be that things have advanced since then.
At 4 of our speaking notes we say it is because each charge is subject to an evaluative process that different outcomes emerge from different cases dependent on an overall assessment of a particular charge and decisions on standard of proof have proved a fertile ground for appellate review. The major cases are reviewed in 6.22 to 6.88 of our submissions, which your Honour Justice Gageler has referred to. I do not propose to go through them other than to say that they are simply there for comparison. If the Court is considering that it is time to review Green and La Fontaine and to mould them into something more user‑friendly for the 21st century, then those decisions are simply there for that purpose.
BELL J: What would be more user‑friendly? If one were to instruct the jury that it is necessary to be sure of the guilt of the accused, no doubt in a difficult case where jurors were mindful of their solemn responsibility they might want some assistance about what it meant to be sure.
MR SILBERT: Yes.
BELL J: Is there – apart from your contention that the statement that her Honour made did not amount to a miscarriage of justice having regard to La Fontaine does the prosecution submit that there is a preferable formulation?
MR SILBERT: I am not sure that we do, on our feet, your Honour. I think we are maintaining the status quo and I was going to come to your Honour’s treatment of the whole of the topic in a case called Ho where your Honour went through all the authorities back in 2002. Our primary submission is – as a whole, an overview reveals that when one considers the charge, the ultimate test at the present stage, without a more user‑friendly formulation, is whether the jury is left in any doubt as to exactly what the meaning and what the standard of proof is.
If on a reading of the charge as a whole the jury is left in no doubt that “proof beyond reasonable doubt” means well, we are finding synonyms for it, almost certainty, almost moral certainty, then if the effect of the charge is to leave them in no doubt that it is a very high standard of proof, then the submission is that there is absolutely nothing wrong with the charge on the law as it stands.
As I say, your Honour in Dat Quoc Ho (2002) 130 A Crim R 545 at paragraphs 32 to 41, goes through all the authorities effectively and it effectively constitutes a compendium of the received wisdom of learning on it as it is at the present time. I do not know that there is any need to take your Honours through that. We simply say that the task has been done before and the law is certainly well established. Whether the law needs revising or updating is another matter. But on present authorities, we say that there is no infraction in the judge’s charge in this particular case.
Our criticism of the Court of Appeal is that it failed to undertake an evaluation of the trial judge’s charge as a whole and erred in finding that the statement, “and the Crown has to be satisfied – has to have satisfied you of this not beyond any doubt but beyond reasonable doubt” constituted appealable error. This was one slip which appears in the charge at the appeal book in page 210. In fact, it starts at 209 at line 25:
The question you have to ask yourselves is “has the Crown established beyond reasonable doubt that at the time Mr Dookheea committed the relevant act or acts that caused Mr Zazai’s death, he intended to kill Mr Zazai or cause him really serious injury?” As a corollary you might ask, “do I hold a reasonable doubt that at the time he committed the relevant act or acts that caused Mr Zazai’s death, Mr Dookheea intended to kill Mr Zazai or cause him really serious injury?” In other words, you do not have to work out definitively what Mr Dookheea’s state of mind was when he caused the injuries that killed Mr Zazai. You have to consider whether the Crown has satisfied you that Mr Dookheea had the intention that is required.
These are the offending words:
And the Crown has to have satisfied you of this not beyond any doubt, but beyond reasonable doubt.
It is on that basis that the Court of Appeal squashed this conviction.
NETTLE J: But you accept that that was an error, do you? I am sorry to be churlish about this.
MR SILBERT: No.
NETTLE J: I would just like to know, is it contended that it is still to be regarded an error to put those words in?
MR SILBERT: No, it is not, your Honour. We do not contend that that is an error. It strays from the traditional formulation but it is submitted that it is not an error.
KEANE J: It is actually just the truth, is it not?
MR SILBERT: Yes, your Honour.
KEANE J: It is actually just an accurate statement of the law.
MR SILBERT: It is. It is. It is simply a reformulation of the traditional formula, effectively.
KEANE J: If the jury were to say, what is a reasonable doubt and the judge were to say it is a reasonable doubt and was to sort of stand pat on that and just say it was a reasonable doubt, the jury could not but understand that to mean that a reasonable doubt is something other than any doubt.
MR SILBERT: Yes, your Honour. It does not stray into the heresy of explaining “reasonable”. It does not stray into the old heresy of explaining that it has to be assessed in accordance with their reasonable expectations. It does not go in to any explication other than to reformulate, as your Honour Justice Keane says.
KEANE J: It is to make the commonplace observation that reasonable doubt is something different from no doubt or any doubt.
MR SILBERT: Absolutely, your Honour. That is why in answer to Justice Nettle we say we do not say that that was an error in the form in which it was delivered. Our criticism is in the course of a 26‑page judgment the Court of Appeal devotes two pages to ground 1 where it concludes that a fundamental misdirection had occurred warranting the quashing of the conviction and warranting an order for a retrial.
It is submitted that there was no analysis of the charge as a whole undertaken by the Court of Appeal and that had such an analysis been conducted, the Court of Appeal could not have reached the conclusion that it reached. At appeal book 293, paragraph 4, the Court of Appeal says:
We have concluded that ground 1 succeeds in part but that the grounds otherwise fail.
At 315 of the appeal book, at paragraph 89, their Honours say:
We have concluded that her Honour did fall into error when she spoke of the Crown having to satisfy the jury ‘not beyond any doubt but beyond reasonable doubt’. The standard of proof being fundamental to a fair trial, the failure to take exception could not stand in the way of the ground succeeding. It was on that basis that we concluded that the appeal must succeed.
The applicant refers to the decision of Ho at No 17 on our list of authorities to which I have referred in a judgment delivered by Justice Bell as a judge of the Supreme Court of New South Wales which effectively is a paradigm of how traditionally these matters have been treated. There is a consideration of the law and it is submitted that that simply exemplifies the sort of analysis that at least should have been undertaken here before the conclusion was reached justifying the quashing of the conviction.
There seems to have been no analysis at all, whatever, of the charge as a whole. Our submission is that any consideration of the charge as a whole would have directed attention to a number of things: firstly, the preliminary directions which appear at appeal book 27, lines 19 to 31 - this, immediately after empanelment of the jury, is where her Honour – introducing the jury to the task they are about to embark on – at 19:
The other important thing for a criminal trial such as this is that the prosecution must prove the offence beyond reasonable doubt.
“Beyond reasonable doubt”. I will not read the rest of that but it goes down to the bottom of the page on appeal book 27, line 31:
If you’re not satisfied beyond reasonable doubt of the elements of the offence, then you should find Mr Dookheea not guilty of that offence.
They are the preliminary directions. Going from there to the charge at appeal book 197 – and, again, we say this is an analysis the Court of Appeal failed to undertake – at page 197, commencing at line 10 – and this is her Honour’s charge:
I want to begin by reminding you of two very important legal principles. You have heard them mentioned several times during the course of the trial, but they are very important and I want to stress them again. They relate to the onus or burden of proof and the standard of proof.
I will not trouble the Court reading the next paragraph, but if I take your Honours down to line 26:
Elements is just a lawyers’ term for the essential ingredients or the essential components of the offence. The prosecution has to prove each of these elements beyond reasonable doubt.
The words “beyond reasonable doubt” are common English words. They mean what they say. Beyond reasonable doubt is not something that is capable of expression on some sort of percentage basis.
Staying on appeal book 198, at line 9:
It is for you as the jury to decide in respect of the elements of murder whether you have a reasonable doubt that an intention to kill or cause really serious injury was present at the time Mr Dookheea killed Mr Zazai.
The rest of that page continues on, down to 17:
I mean the prosecution must establish or prove the thing beyond reasonable doubt. But I am not necessarily going to repeat those words every time or we would be here for longer than we need to. But just understand that that is the burden that is carried by the Crown. That does not mean the Crown has to prove every fact that it puts before you or every fact that it says you should accept. What the prosecution has to prove beyond reasonable doubt are the elements of the crime, that is, the essential ingredients of the offence. I will take you to those in a minute and you will already have I think a pretty clear understanding that three of the elements of murder are not in dispute in this case. There is really only one of the elements and that is intention.
Going on to appeal book 199, third line:
You should have no difficulty in finding these elements proven beyond reasonable doubt. But whether Mr Dookheea intended to kill or cause really serious injury to Mr Zazai remains to be proven by the prosecution beyond reasonable doubt.
We keep seeing “beyond reasonable doubt” at line 9 and at lines 22 and 23. We then go to page 209 of the appeal book at the last paragraph:
“has the Crown established beyond reasonable doubt that at the time Mr Dookheea committed the relevant act or acts that caused Mr Zazai’s death, he intended to kill Mr Zazai or cause him a really serious injury?”
Going over the page is where the complained of – or the impugned direction appears at lines 6 and 7 and then on page – appeal book 211 at lines 10 to 12:
You can only infer that Mr Dookheea intended to kill Mr Zazai or cause him really serious injury if you are satisfied beyond reasonable doubt –
Again, at 215 ‑ ‑ ‑
EDELMAN J: None of that really contradicts the respondent’s proposition, does it? If your primary submission is wrong and it was an error for the primary judge – at what must be a fairly critical point in the summing‑up to have described the onus as one of not being beyond any doubt but being beyond reasonable doubt ‑ ‑ ‑
MR SILBERT: Yes.
EDELMAN J: ‑ ‑ ‑ then all of the other references to “beyond reasonable doubt” still have to be read in that light.
MR SILBERT: Your Honour, our submission is if the primary submission is wrong then it is still for the charge to be considered as a whole and it is to see what impression the jury are left at the end of the day having heard all of those references. It is submitted that an infraction of 10 lines that talk of “no doubt” – if that be an error – is incapable of absolutely wrecking the balance of the charge, if you like, as far as the impression of the charge goes.
The other thing that I do want to refer to, and it is not referred to by the Court of Appeal, is the aide‑mémoire and your Honours will see at the appeal book page 244, lines 19 to 24:
I am reminded I have a jury handout. I will give you each a copy. It just explains the elements of murder and the elements of manslaughter.
That is excerpted in the appeal book at page 254 where your Honours will see what was handed to the jury. It is certainly commonplace in Victoria for such aide‑mémoires to be given to juries as part of judges’ direction. I would go so far as to say that in every murder trial they are now handed to a jury in this form. This aide‑mémoire, as your Honours will see, is a copy of the aide‑mémoire. It is emboldened that the prosecution must prove beyond reasonable doubt under both the murder and the manslaughter sections. Again, the Court of Appeal makes no reference to that in relation to ground 1.
GAGELER J: Is there meant to be any material difference between the reference in the murder part to “the prosecution must prove beyond reasonable doubt” and the reference in the manslaughter part to the jury needing to be satisfied “beyond reasonable doubt”? There is a subtle difference. But is there any intention behind that difference?
MR SILBERT: Well, your Honour, we would submit not. It is a change in phraseology. I do not know whether it is as a result of cutting and pasting or how it comes about. It is submitted that there is no – there should be no difference, there is no difference and that the essential task of that is so that the jury have something in written form explaining the elements and the standard of proof.
GAGELER J: It is really in the point of the summing‑up where the judge moves from what the prosecution must prove to how the jury is to be satisfied that you find this impugned sentence.
MR SILBERT: Yes, and we would say that there is no significance in it. It becomes difficult in the course of a long charge to keep the consistency of language but there is no difference in meaning as far as what is sought to be conveyed to the jury, namely that the Crown are bearing an onus to a requisite standard of proof.
Now, in relation to that I was going to take your Honours to paragraphs 6.89 to 6.92 of our written submissions because effectively at 6.89, as set out in paragraphs 6.5 to 6.10, the jury has been directed, or informed, on some 45 occasions during the course of the trial that the prosecution had to prove its case beyond reasonable doubt. Such directions occurred on four occasions by the trial judge prior to the charge; on 16 occasions by counsel, prosecutor and defence, prior to the charge; and on 25 occasions by the trial judge during the charge, including on five occasions subsequent to the impugned passage.
At 6.90 of the submissions, in addition, as set out in 6.21, the jury was provided a handout on the elements of the relevant offences which also incorporated three further references to the standard of proof and the references to the standard of proof were in bold print. In short, it is the appellant’s contention that this aide‑mémoire would have provided a sensible anchor for the jury in their deliberations and cured any possible vice in the oral instructions if, indeed, there was a vice in the oral instructions. So, subsequent to the impugned passage the judge directed the jury on the standard of proof in conventional terms on no less than five occasions and at the end of the charge the judge provided the handout to the jury.
Now, it is submitted that when one considers that and considering the charge as a whole, with or without the judge’s preliminary direction it betrays no dilution of the standard of proof and the further point we make under paragraph 12 of the speaking notes is that the law in Victoria was that decided by the Appeal Division of the Supreme Court of Victoria in R v Neilan [1992] 1 VR 57 referred to as authority 7 under tab 7 of our authorities.
The court was bound by that decision. The court below was not entitled to depart from that decision and opted for the South Australian line of authority in Compton & Barratt which we have at tab 16. Your Honours will see that the Court of Appeal refer to Compton & Barratt at appeal book 314, footnote 14.
NETTLE J: Mr Silbert, why do you say the Court of Appeal was not entitled to depart from Neilan?
MR SILBERT: Well, conventional law, it is submitted, your Honours, says that it was not entitled to depart from it unless it decided that Neilan was plainly wrong and there was no discussion of Neilan. Not only did they not decide it was plainly wrong ‑ ‑ ‑
NETTLE J: It is just per incuriam.
MR SILBERT: Yes, yes, absolutely. In short, it is submitted that the departure from precedent without explanation is itself demonstrative of error and I do not know that I need to take your Honours through Neilan. The other case that does need to be referred to is Ladd v The Queen (2009) 27 NTLR 1 which is referred to as No 15 on our list and is under tab 15, where the trial judge’s charge contained the statement:
it is not required of the Crown to prove its case beyond all doubt –
which formed ground 4(b) to the Court of Appeal of the Northern Territory. In rejecting that ground, Chief Justice Martin remarked that it would have been preferable if the trial judge had not used the phrase “beyond all doubt” but held that:
having regard to the directions as a whole I am satisfied that this single statement did not stray into such prohibited territory or detract from the fundamental features required of directions as to the burden of proof.
We make the same submission in relation to that here.
BELL J: Ladd is conformable with La Fontaine, you would say?
MR SILBERT: We would say that, your Honour, yes, and the applicant applied for special leave to this Court in Ladd and your Honours will see that at tab 18 at [2010] HCATrans 46. Now, there are just two final matters I can make before I conclude. One, it is remarkable that the Court of Appeal would dispose of ground 1 and quash a murder conviction without referring to the aide‑mémoire in relation to ground 1. It makes no reference whatever to it which it submits is indicative of a failure to properly analyse the ambit of the charge and the effect of the charge.
NETTLE J: I take it they were referred to it, were they?
MR SILBERT: Yes, your Honour, it is referred to in the Court of Appeal judgment at appeal book 311 ‑ ‑ ‑
NETTLE J: Yes, I see, paragraph 77(d), thank you.
MR SILBERT: Yes, paragraph – appeal book 311, 77(d):
the handout given to the jury during the charge only heightened the ambiguity –
So it was referred to but, amazingly, not referred to in relation to ground 1 where it would have had primary importance, it is submitted. The other final matter, your Honours - it cannot have escaped your Honours that counsel for the unsuccessful appellant before the Court of Criminal Appeal of the Northern Territory and the unsuccessful special leave application before this Court was Mr Michael Croucher. Now, your Honour the Chief Justice will remember him as counsel who appeared many times in this Court most noticeably – notably for the appellant in Momcilovic.
Justice Croucher was well aware of the raft of authorities because he had run them in Ladd in the Court of Appeal of the Northern Territory and sought special leave from this Court. He well knew them and was completely familiar with them and it seems strange and perhaps even improper that his Honour then writes a judgment which allows the point that he unsuccessfully ran in the Court of Appeal in the Northern Territory and sought special leave from this Court on. In fact, effectively, the judgment allows the point – allows the ground of appeal run in the Court of Appeal - 4(d) in the Northern Territory Court of Appeal and in respect of which special leave was sought from this Court and declined. Now, if the Court pleases, those are our submissions.
GAGELER J: Is there a particular passage in Ladd that you wanted us to look at? It is a very long judgment and if not then I would like to get your reaction to a particular passage in that judgment at paragraph [155], the second half of that paragraph.
MR SILBERT: Yes, your Honour, it is.
GAGELER J: Page 55, paragraph [155] about three sentences from the end - “In my view”.
MR SILBERT: Your Honour has directing me to [155]?
GAGELER J: Paragraph [155]. On one view Chief Justice Martin is saying that this traditional expression is itself confusing to jurors, in his experience.
MR SILBERT: Yes, your Honour. Yes, well, [155]:
In itself the expression “beyond reasonable doubt” invites jurors to analyse or assess the quality or strength of any doubt they, as individuals, might experience in order to determine whether the doubt is “reasonable”.
We get into that sort of analysis when one starts analysing moral certainty and trying to find the synonyms for “beyond reasonable doubt” and it may well be that that is why courts have traditionally stuck with “beyond reasonable doubt” and prohibited any explication or explanation of that phrase.
NETTLE J: But do you not say this is where the observation “it does not mean beyond all doubt” becomes of assistance in demonstrating to the jury what “reasonable doubt” does mean?
MR SILBERT: Yes, your Honour, yes.
BELL J: One reason, it has been said, that courts are better not to give further explanation of that formulation which is, after all, in our law a well‑known one is because of the notion that if the jury entertains a doubt it is a reasonable doubt.
MR SILBERT: Ipso facto, yes.
BELL J: So one is not to equate it with rational processes of thought as a court of appeal might perceive it or the like.
MR SILBERT: Yes.
KIEFEL CJ: If Chief Justice Martin is correct in that the reason that juries inquire is their concern about the meaning of the word “reasonable”, am I right in thinking that no court anywhere has ever directed itself to what that word means in that context? No direction that is given in overseas jurisdictions attempts to explain to a jury just what that word means in context.
MR SILBERT: I think your Honour is right.
KIEFEL CJ: What I am saying is it has never been isolated and explained. It has never been attempted.
MR SILBERT: It has not.
EDELMAN J: It was historically introduced, was it not, to replace an “any doubt” test?
MR SILBERT: It was, your Honour. Historically, I think it was. But the law has moved on from then. I mean we consider the Black direction where juries are having difficulty reaching verdicts and it is common to exhort a jury to consider the reasonable views of fellow jurymen and keep on trying. The method of handling juries has evolved, if you like, over the last probably 20 or 30 years in that more explanation is given to juries. It simply has not descended to the question of explaining the question of “beyond reasonable doubt”.
NETTLE J: What about the English direction of “You must be sure”?
MR SILBERT: Yes, your Honour, but it is another synonym for ‑ ‑ ‑
NETTLE J: Being reasonable doubt.
MR SILBERT: Yes, yes, it is another way of doing it. It has just simply been forbidden under our jurisprudence probably since Green and La Fontaine and courts have been advised not to use it and whenever there is a solecism no doubt creeping in it is always said by the appeal court to be regrettable and would have been better had it not been used but considered as a whole it either has or has not infected the whole of the charge.
EDELMAN J: There are two different types of direction. There is one which might replace the phrase “beyond reasonable doubt” with some other substitutive phrase to try to summarise it and there is another which is what we are concerned with here which is to place it in a context such as by indicating a higher standard or a lower standard.
MR SILBERT: Yes, yes, and it has always been acceptable to contrast it as your Honour said with the civil standard because it indicates a higher standard but not acceptable to have an upper limit on it in order to demonstrate a lower standard.
KIEFEL CJ: But do you achieve the “capping” so to speak – I should not use that word ‑ ‑ ‑
MR SILBERT: No, your Honour. It was Justice Nettle’s word.
KIEFEL CJ: Do you achieve placing it in context in a range at the higher end by reference to there being no such thing as a certainty which seems to be utilised elsewhere?
MR SILBERT: Yes, your Honour.
KIEFEL CJ: Yes. Thank you, Mr Silbert.
MR SILBERT: If the Court pleases.
KIEFEL CJ: Yes, Mr Holdenson.
MR HOLDENSON: In the light of some of the oral submissions made by Mr Silbert and in the light of some of the discussion, perhaps I might just alter the order in which I propose to make my submissions, and perhaps I might adopt a somewhat unusual course by taking the Court first to some propositions to be found within some of the authorities ‑ they are short propositions ‑ without reading lengthy passages out from the cases.
First, it is our submission that with respect to the criminal standard of proof, reasonable doubt is a doubt which the particular jury at the end of the day entertains in the circumstances of the case. That is made most clear within a sentence or two sentences within this Court’s decision in Green v The Queen (1971) 126 CLR 28, behind tab 1, where, at the foot of page 32, the last line in the joint judgment it reads:
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.
Albeit not footnoted at that point, entirely on all fours with another case, I think at the very rear of the folder of authorities – it is an old case ‑ Burrows v The King (1937) 58 CLR 249, at tab 19, towards the end of the judgment of the then Chief Justice, Chief Justice Latham, at 256, at about point 6 on the page it reads – and it is slightly out of context because it suggests a reversal of the onus, but putting that to one side:
It is sufficient if he –
that is, the accused person:
can show reasonable doubt – a doubt such as would be entertained by reasonable men, recognizing their responsibility to the accused and to the law.
That is the first proposition. The second proposition, by reference to one authority: jurors are not required to submit their mental processes to some sort of objective analysis in order to determine whether or not the doubt which an individual juror has reached must pass or might pass some further test. That is where I got to in Green, at page 33, jumping a few lines but not out of context:
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.
Then there is a further quote there:
“It is not their task to analyse their own mental processes” ‑
There is a reference there to a passage in the judgment of his Honour Justice Windeyer in Thomas.
The third proposition just at the outset, in the light of some of the questions put to our friend, Mr Silbert. Again, it is to be sourced to, at least for present purposes, Green, and that is that this Court has in the past comprehensively rejected the course which has been adopted for many years in the overseas jurisdictions to define or explain or elaborate, whatever the word be, what is meant by the criminal standard of beyond reasonable doubt. We can go back a page, to page 31, in Green. Your Honours will see at about point 7 or 8 on the page a reference to the judgment of Chief Justice Dixon, as he then was, in Dawson v The Queen (1961) 106 CLR 1, where there is reference to:
the time‑honoured formula . . . used by ordinary people and is understood well enough by the average man in the community. The attempts to substitute other expressions, of which there have been many examples not only here but in England, have never prospered. It is wise as well as proper to avoid such expressions.”
KIEFEL CJ: His Honour also seemed to think that the expression was used by ordinary people, in the passage you have taken us to.
MR HOLDENSON: Yes, many examples, not only here but in England, yes.
KIEFEL CJ: At the outset, at the beginning of the quote from Dawson v The Queen it would appear that Sir Owen Dixon thought that the formula was used by ordinary people.
MR HOLDENSON: Yes. The formula of proof beyond reasonable doubt, a well understood formula.
KIEFEL CJ: I would not have thought that, at least today, it would be a matter of common discussion, but perhaps it is even better known now.
MR HOLDENSON: In our submission, it is well known, well understood and not one which requires exposition but, if it does require exposition, the exposition given in this case, as I will come to, in our submission, is erroneous. There are two propositions which flow ‑ ‑ ‑
GAGELER J: Going back to page 33, you took us to the sentence at the top of page 33 in Green. Would it be correct for a judge to instruct the jury that they themselves set the standard of what is reasonable in the circumstances?
MR HOLDENSON: In our submission, if one proceeds to explain what is meant by “proof beyond reasonable doubt” then within that explanation there could well be given something along the lines of “a reasonable doubt is what there will be at the end of the day if each of you forms the view that there is a doubt and thereby returns a verdict of not guilty”.
Perhaps the explanation, or a better explanation than my answer to your Honour’s question, is to be found in Justice Johnston’s judgment in Pahuja, the South Australian case to which reference has been made in passing. I think it is behind tab 5. This will be subject to one point to be made from the judgment of the Chief Justice, Chief Justice King, but if I could take your Honours to Pahuja (1987) 49 SASR 191, at the very foot of 220, at about point 8 or 9 on the page, within the paragraph four lines in:
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 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 proved 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 –
the “body of the jury” meaning the entire jury, the whole jury:
entertain a doubt is the ultimate certificate for the purposes of the criminal law of the reasonableness of the doubt.
So to answer your Honour Justice Gageler’s question, if that which is set out in that passage there were to be incorporated into the answer given to a jury question or an explanation given, that would be correct as a matter of law. To that I would add the following, and it is again in that judgment of Pahuja, the judgment of the then Chief Justice, Chief Justice King, at the very foot of 194, and I will read the last three lines, albeit the third and the second‑last lines just to put it into context:
The danger is that the use of the adjective “real” might convey to the jury a notion that some particular degree of doubt is required. I repeat what I emphasised in Wilson’s case supra, 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.
Now, taking those passages from Pahuja, which in our submission simply follow on from those passages in Green’s Case and, for that matter, Burrows, taking the Court to what has so far been the focus of our complaint in the court below, as dealt with here so far, at 210 of the appeal book, lines 6 and 7:
And the Crown has to have satisfied you of this not beyond any doubt, but beyond reasonable doubt.
What, in our submission, has happened there is that her Honour has expressly drawn a distinction between a thing called a doubt and a thing called a reasonable doubt, thereby giving the word “reasonable” in that composite phrase “beyond reasonable doubt” a meaning referable to the magnitude, the degree of strength produced by, the doubt which has to be entertained by the jury, thereby breaching my proposition 1 from Green’s Case.
In addition, that passage can be read in this way, and in our submission would only be read in this way and only understood in this way, to be requiring each member of the jury to engage in a two‑step or two‑stage process to answer two questions. Question 1: do I, an individual juror, have a doubt? If I do, if the answer to that question is yes, then is that doubt a reasonable doubt? That cuts across, and indeed is a direction contrary to, that which I characterised as to the second proposition.
NETTLE J: Could you just stop at that point. Is that because, in your submission, “a reasonable doubt” properly understood is any doubt, or is it for some other reason?
MR HOLDENSON: The reasonable doubt returned by the jury at the end of the case in the form of a verdict of not guilty results from 12 individual jurors each having a doubt.
NETTLE J: So any doubt is a reasonable doubt?
MR HOLDENSON: When there are 12 of them?
NETTLE J: Yes.
MR HOLDENSON: Yes. Now, I am putting aside something which is a red herring to this case and not relevant. We are not into the situation where defence counsel became carried away and was floating imaginary defences – fanciful hypotheses – a doubt produced by an imaginary or fanciful hypothesis is not really a doubt at all. It is still imaginary – it is rubbish, to put it bluntly. There were no flourishes in the final address to that effect here.
So putting that to one side, proceeding on the basis that the jury is properly directed and acting reasonably, then each juror, by reference to those passages to which I have taken the Court – it is not my own flourish – when you have all 12, each of them saying, “I have a doubt,” and therefore the foreman or foreperson returns the verdict of not guilty, there is then a reasonable doubt, as was explained in the judgment of Justice Johnston.
NETTLE J: If that is correct, would it not be more convenient and a heck of a lot more certain for a judge to direct a jury, “If you have any doubt you must acquit”?
EDELMAN J: Would that not also mean that if a magistrate gave reasons omitting the word “reasonable” throughout and just saying, “Because I have a doubt, I acquit,” that reasoning would be entirely correct?
MR HOLDENSON: Yes, but we would assume in any event that a magistrate and/or a single judge trial would be acting reasonably in any event and so the absence of the word “reasonable” in his or her reasons for decision would be of no consequence.
KEANE J: How would the Black direction be soundly based given that the effect of it is to urge individual jurors to consider whether their position is reasonably based on the evidence?
MR HOLDENSON: I do not have the Black direction in front of me so I am off to a bad start, but as I recall the Black direction – the Black exhortation – back in 1993, there is nothing there which cuts across correct directions as to the criminal standard of proof.
KEANE J: Each individual juror, and in particular, I suppose, the jurors we might regard as the holdouts, is invited to reconsider the basis for their view. They are not to be pressured to surrender to the view of the others but they are invited to consider whether their position is reasonably based.
MR HOLDENSON: If the effect of the direction is that they are not to be unreasonable ‑ ‑ ‑
KIEFEL CJ: Forgive me for interrupting, Mr Holdenson, the Black direction is set out in the appellant’s written submissions at paragraph 6.81.
MR HOLDENSON: Paragraph 6.81 - it shows you how closely I read that. My memory is that there is a bit more to that in the judgment of his Honour Justice McHugh. In fact, there is the equivalent of about a quarter of a page of the CLR, but 177 CLR ‑ ‑ ‑
KIEFEL CJ: I did not mean to distract you from Justice Keane’s question.
MR HOLDENSON: There is nothing there which cuts across what I explained by way of submission concerning that which constitutes a doubt ‑ ‑ ‑
KEANE J: Well, if any doubt entertained by any individual juror is sufficient to require that juror to vote for an acquittal, how could the Black direction ever possibly be proper?
MR HOLDENSON: The Black direction does not cut across the criminal standard and more precisely it does not cut across the criminal standard as put by me in the oral submissions. I have here:
Judges are usually reluctant . . .
Each of you takes into . . . You also have a duty to listen carefully and objectively to the views of every one of your fellow jurors. You should calmly weigh up one another’s opinions about the evidence . . . Calm and objective discussion of the evidence often leads to a better understanding . . .
Experience has shown . . . judges usually request juries -
There is nothing there - and it goes for about half a page in all. I had not read it out, I know, but I never thought I would be using one of them. There is nothing there that cuts across any of the submissions I have made with respect to and undermining, negating, diluting doubts entertained by the “holdout”, which is an inappropriate expression – the “holdout” jurors.
NETTLE J: But can I just come back to the point. Would it be improper or inappropriate for a judge to direct a jury that if, at the end of the day, after considering all the evidence you have any doubt, then it is your duty to acquit?
MR HOLDENSON: That would be correct.
NETTLE J: That would be a correct direction?
MR HOLDENSON: Yes.
NETTLE J: That, in your submission, is what is meant by “reasonable doubt”?
MR HOLDENSON: Yes, and I am supported, in my submission, by those cases to which I have taken the Court. But of course this judge did not do that, because what this judge did, in that passage at lines 6 and 7, has directed the jury to measure or evaluate their doubt by reference to whether or not it is reasonable, which automatically takes ones to a quantitative meaning, magnitude, size, strength, degree of strength, to determine whether the doubt is reasonable or something lesser.
BELL J: You are giving a lot of worth to that one sentence. As I understood your submission a little earlier it was that the expression “beyond reasonable doubt”, we should appreciate, is well understood by members of the Australian community. If that submission is right, if that formulation is used repeatedly throughout the charge to the jury, as it was here, why would we think that on one occasion when the judge says:
And the Crown has to have satisfied you of this not beyond any doubt, but beyond reasonable doubt –
that the jury would extrapolate from that in the way that you suggest they might and depart from that well‑understood standard?
MR HOLDENSON: Well understood until the judge gets the direction wrong, I might say ‑ ‑ ‑
BELL J: On one occasion.
MR HOLDENSON: No, there is a bit more to it. If I could take you back to the foot of the previous page, because there is a mistake there and it is fundamental. It is the very point that I have thus far been making within discussion. The direction starts at 209, line 25:
The question you have to ask yourselves is –
“yourselves”, plural, you the jury, the entirety, the whole of you:
“has the Crown established beyond reasonable doubt that at the time Mr Dookheea committed the relevant act or acts that caused Mr Zazai’s death, he intended to kill Mr Zazai or cause him really serious injury?”
No complaint about that passage. But we then move on in the next sentence – and we are no longer speaking to the entirety of the jury – the judge says:
As a corollary you might ask, “do I hold a reasonable doubt that at the time he committed the relevant act -
The corollary is not do I hold? It would be, if anything, “Do we, as an entire jury, hold a doubt” or “Do I hold a doubt?” So in that passage there the judge has – I know it comes in advance of 210 – repeated, added to, compounded the error that one gets at 210 ‑ wrong corollary. Now, that is not a complete answer to your Honour Justice Bell’s question because your Honour asked me – well, the judge got it right everywhere else ‑ ‑ ‑
BELL J: Next, I will ask how you distinguish this from La Fontaine.
MR HOLDENSON: Well, as one reads this charge, starting at the start and reading the pages, this is the part of the charge where the attention of the jury was focused. Everything else led to this part of the charge. As Mr Silbert said, it commences at the very foot of 208 and then, when one works through 209 to the first 24 lines of the page, her Honour identifies each and all of the elements of the two offences before the jury - murder and manslaughter – and out of all of that says there is one element for one offence in issue. It is intent.
Her Honour explains that, introduces it in crystal‑clear language. The attention of the jury is focused and what this becomes is, as one reads the remainder of the charge where her Honour refers to the competing submissions of the then two parties – she calls them the arguments, which commence at 211 and go on, and in which reference is made to the evidence which bears upon the content of the arguments put by the two parties – keeping in mind that the transcript of the charge to the jury went into the jury room.
This is their reference point. It is like the legend on a map ‑ the pink bits mean. This is the only place where there was any explanation of the standard of proof. It is their reference point, it is the point they go back to and it is the point upon which their minds were focused.
BELL J: Not the written directions?
MR HOLDENSON: I am sorry, your Honour.
BELL J: The written directions referred to the standard be proof beyond reasonable doubt ‑ ‑ ‑
MR HOLDENSON: Yes, there is no explanation. The written directions add nothing, in our submission, in one sense, to what is scattered throughout the charge to the jury, which also went into the jury room because this is the point where her Honour, within the crucial part of her charge to the jury, provides a short explanation of what “proof beyond reasonable doubt” means.
Now, I am about to go to La Fontaine but, before I do, our friends in their written submissions try and characterise what happens at 210, lines 6 and 7, as the judge simply drawing attention to the distinction between not having to prove the Crown case to a point of certainty and this standard of proof.
We say three things about that. First of all, the first three words of paragraph 210 – the words “certainty” or “absolute certainty” are not there – the first three words are “beyond any doubt” not “beyond all doubt” and not “beyond any doubt at all.” What is more, the Crown’s construction of 210, lines 6 and 7, disregards the erroneous corollary at the foot of the previous page and gives that no work to do, yet obviously providing the obvious context.
Let me now respond to the third question of your Honour Justice Bell that concerned La Fontaine. The point about La Fontaine’s Case is, notwithstanding almost identical words appearing on the page within the extract of the judge’s directions to the jury in that case, the point being made here was not made there. Secondly, you have to read it closely because our friend took your Honours to page 71, which sets out in the form of half a page what was said – then one goes to the last line of 71, and I quote the judgment of the then Chief Justice, Chief Justice Barwick, the last line:
Undoubtedly, the case was not one in which to complicate the summing up by resort to any formula except the traditional reference to the absence of reasonable doubt.
The passage I have quoted was, in my opinion, erroneous.
That is the third line of 72.
It seems to have resulted –
and it is explained. As one reads the other judgments, they all say it is wrong or undesirable.
BELL J: But you accept here that it would have been preferable for her Honour not to have said “And the Crown has to have satisfied you of this not beyond any doubt, but beyond reasonable doubt”, except for the present, that it might have been preferable not to, having regard to the statements in Green and La Fontaine. But how do you distinguish this from La Fontaine in terms of the conclusion that one slip in a lengthy summing‑up that repeatedly stated the standard correctly involved a miscarriage of justice?
MR HOLDENSON: Well, we first of all say not one slip because if you go back to the previous page there is the other slip or like related slips. Really the point is this was the crucial part of the charge. Her Honour identifies in a page – none of these other elements are in issue – then within the one paragraph, which commences at the foot of 209 and goes to the head of 210, her Honour identifies the one issue and within that identification erroneously directs the jury with respect to the standard of proof. Everything else – I only have to speak in terms of substantial risks as an appellate lawyer – is a substantial risk that this jury reasoned, by reference to that passage with respect to the one issue, the only issue which arose for their consideration.
Now, our friend relied on La Fontaine. I have made reference to that. Our friend also relied on Neilan, the Victorian decision. Well, again, if you read the judgment closely it sets out, towards the foot of page 71, not once but twice that, 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. That is repeated again a few lines later.
Insofar as Ladd is concerned, Ladd is a case where the approach taken by his Honour the Chief Justice, in our submission, was erroneous and it was erroneous for the reason that his Honour approached it all from the standpoint of the dissenting judge in Pahuja – that is, his Honour Mr Justice Cox – and gave the word “reasonable” in the composite phrase “beyond reasonable doubt” an objective connotation. So nothing stands in the way – if this Court accepts what we say of those passages from Green and so on, and what flows from those passages – nothing in Ladd’s Case stands in the way of this respondent.
Now, insofar as Neilan is concerned, if need be, I submit that – if I need to go that far – that is wrong, in any event. But of course at the end of the day I accept, as I must, one must read the impugned direction by reference to the other directions as we have set out in clear terms, I trust, in our oral submissions.
Perhaps by reference to what we say is the correct characterisation of the impugned direction within a sentence in paragraph 90 of the judgment below, at page 315 of the appeal book within paragraph 90 there is a reference to that South Australian case of Compton & Barratt where there is, as it is said there, a comprehensive analysis of all the authorities, including Ladd’s Case and La Fontaine and of course Neilan, and reference then to Green’s Case and then said, and in our submission correctly said, albeit we would change one word, it is an error therefore to suggest – we would say “direct” or “invite” – to jurors that they may entertain a doubt which is not a reasonable doubt and on that basis proceed to convict the accused.
Now, moving on to how we say – and this is, in part, repetition – to an answer I gave to your Honour Justice Bell – misdirection cannot be said to be trivial. I just pause to say there can be no argument that an erroneous direction with respect to either the burden of proof, who bears the burden, or the standard of proof – there can be no argument. That is clearly fundamental to a trial.
Misdirection given in the context of the jury being directed on the critical issue, the many references elsewhere, which are not erroneous, did not have the effect of correcting or curing the error. In that regard we point out that in paragraph 3 of our friend’s outline of oral argument, he makes the point that misstatement in a charge may appear but as long as it is corrected – well, this was never corrected. Nowhere did her Honour say, “Wait a moment; I got that wrong when I said that. That is wrong”. So there has been an incorrect exposition ‑ ‑ ‑
BELL J: Mr Holdenson, you accepted a little earlier by reference to the discussion in Green that in a case in which it has been suggested that if the jury has any doubt at all, including a fanciful doubt, that it would be necessary for the trial judge in such a circumstance to correct that misapprehension and that in itself accepts that a fanciful doubt is something other than a reasonable doubt. What is the focus of Green is that one does not want to get into explication which comes down to whether or not a particular doubt is a reasonable one or a rational doubt or something of that kind. Is that not the tenor of it?
MR HOLDENSON: Well, now, first of all what we say is, a fanciful doubt or imaginary doubt is just not a doubt. It is still imaginary.
BELL J: The matter I want to take up with you is this. If the judge had returned to say, “A moment ago I said to you that the Crown has to have satisfied you of this, not beyond any doubt, but beyond reasonable doubt; now I need to explain to you by that that the standard of proof is proof beyond reasonable doubt. I should not have said ‘not beyond any doubt’”. The judge would then have had to have gone on, would she not, to make clear that by that, she was not including fanciful doubts? The question that I am raising with you, Mr Holdenson, is whether an attempt to go back to that one sentence and correct it would not have involved explication of the very kind that this Court has been critical of.
MR HOLDENSON: No, in my submission, her Honour could have returned to that passage and corrected it and done so in a manner which merely had the effect of negating that which was erroneous as distinct from falling into what is described as the sea, in one of those cases of judges getting wrong when they attempt to explain and if the answer to that, if the Court were reject that as being possible, then it is so fundamental to be incurable and nothing the judge could have done, in which case, the verdict would be set aside by the appellate court all that much more quickly.
BELL J: So this is truly - we are back to the days of a writ of error; one slip, no matter what, that is the end of it.
MR HOLDENSON: Well, on that hypothesis, there are some directions which when given are incurable. The error created in the minds of the jury is such that nothing the judge can do or say by way of direction can have the effect of negating it. I remember Mr Justice Crockett used to speak in terms of things being incurable. Generally, of course, that arises in the context of something occurring within the trial which prompts an application for the jury to be discharged without verdict and the judge says there is nothing I can do to eradicate what has now happened; the jury will have to be discharged and we will start again with a new jury.
BELL J: We can all appreciate that that can happen from time to time, prompted by many things in the course of a criminal trial but here, even accepting that it may be better not to use the formulation that her Honour used, once it is accepted that fanciful doubts, for example, are not reasonable doubts, it is difficult to see strict legal error. The error would come from an attempt to give an explication of the content of reasonable doubt. That is the vice.
MR HOLDENSON: Well, what we say are two things and I hope I provide an answer to your Honour’s question. I do repeat - if there be in the mind of a juror an imaginary doubt, a fanciful doubt then really there is not a doubt in the mind of a juror because an imaginary doubt is not a doubt. Secondly, this all this comes about because in some of the cases it is said that the judge needs to go further than the standard direction with no accompanying explanation by reason of the conduct of counsel in his or her final address, generally defence counsel, to have made submissions to the effect that the jury should proceed by reference to what can only be described as imaginary hypotheses, fanciful hypotheses, and the judge has to do something to save the day.
We were at no stage in this trial in that territory. Defence counsel very carefully presented his final address to the jury. It could not be said that there was something he said which needed to be dealt with by her Honour in such a way as to expand upon and, in our submission, erroneously expand upon, the criminal standard of proof and to break up this phrase. Continuing with the real sting in the case, this was the crucial part of her Honour’s charge to the jury and it is what the jury took with them into the jury room and it is that part of the charge to which they would have looked back; to which they would have looked back.
Now, there is reference in the materials to the Jury Directions Act as then in operation and more precisely sections 20 and 21 which was in operation and effect. That Act has been re‑enacted, it is now a different section. Nothing turns on that. That was all irrelevant in this case because; first of all, those provisions were not enlivened because the condition precedent to those conditions is that the jury asks a question, seeks assistance.
Secondly, in any event, those provisions would not have permitted this direction in these terms to have been given and of course, in any event, there is nothing to suggest that those provisions have in any way altered the content of the common law with respect to the criminal standard of proof and the directions to be given to a jury with respect to that standard of proof.
We have in paragraph 8 of our oral submissions document drawn attention to, not the word “fundamental” but erroneous directions with respect to the standard of proof going to the root of the trial and we have there cited Krakouer in which in the relevant passages it is said that directions of this nature are fatal – erroneous directions of this nature are fatal.
We have Baini there which in effect, overtakes the common law because Baini makes reference to the relevant statutory provision in Victoria; section 276(1) of the Criminal Procedure Act 2009 but in those passages there, it is 34, 65 and 69, the latter two paragraphs being paragraphs in the judgment of your Honour Justice Gageler, it is made clear that the common law with respect to erroneous directions as to standard of proof are imported into section 276, not surprisingly.
NETTLE J: Mr Holdenson, can I just come back to that question of whether there be a distinction between “any doubt” and “reasonable doubt” and ask you about the observation of Justice J.D. Phillips in R v Chatzidimitriou (2000) 1 VR 493 - 495 which is under tab 11.
MR HOLDENSON: Yes.
NETTLE J: At page 495 in paragraph 5 of his Honour’s reasons, in the second sentence, his Honour observes:
It is not any doubt at all; it is “a reasonable doubt” – and that is the first point that I would emphasise.
The point is then repeated at page 498 in paragraph 11 in the last sentence:
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 reasonable doubt, not of any doubt at all; and –
it is the jury’s function to work out what reasonable doubt means.
MR HOLDENSON: Well, first of all, going back to paragraph 5, I should say this is a case with which I am familiar.
NETTLE J: I can see that. I think I remember that.
MR HOLDENSON: I have not forgotten it unlike some others who forget cases and it is just a burden I must carry, having to remember these things but his Honour there, at the start of paragraph 5, is making reference to the jury as a whole:
the judge addressed the jury in terms of their entertaining –
and so ‑ ‑ ‑
NETTLE J: Well, put aside the distinction between “you” and “I” in the earlier direction on page 209, what the real point of this seems to be is that at least in his Honour’s mind, with whom the majority agree, there is a distinction between “a reasonable doubt” and “any doubt”.
MR HOLDENSON: Well, in my submission, more particularly in the second passage to which you took me, paragraph 11, is where his Honour, with respect, has erred and failed to recognise and proceed on the basis of that passage at the very foot of 32 to the head of 33 of Green’s Case where it is a reasonable doubt - when all 12 jurors each have a doubt it becomes a reasonable doubt when it is the 12 of them.
So by all means direct the jury as a whole, proof beyond reasonable doubt, but if one begins to dissect it the accused gets the benefit of each individual juror’s doubt, as long as it is not a rubbish doubt, fanciful or imaginary, because that is not a doubt at all; that is something else.
NETTLE J: But why then is it an error to direct the jury at the outset, before they retire, that you, ladies and gentlemen of the jury, are required to be satisfied beyond reasonable doubt but not beyond any doubt, beyond reasonable doubt?
MR HOLDENSON: Because what her Honour - the way in which it has been expressed there, because your Honour is really articulating that passage at 210, lines 6 and 7 ‑ ‑ ‑
NETTLE J: No, I was thinking more of Justice J.D. Phillips at paragraph 5.
MR HOLDENSON: Yes. Well, I see reliance was placed on Green and Pahuja:
reasonable doubt was nowadays no more ‑ ‑ ‑
NETTLE J: Than what the jury thinks it to be.
MR HOLDENSON: His Honour simply goes back to Neilan’s Case but when dealing with Neilan’s Case does not approach it by reference to that which in Neilan’s Case in the passage to which I took the Court where the court said it is indeed undesirable to so direct the jury and to break it up.
NETTLE J: Well, they do say that and I had understood your submission thus far to be that the reason for that is because there is a difference between “any doubt” and “a reasonable doubt”. That is why I draw your attention to what was said by Justice Phillips which rather suggests that there is a distinction and the very fact that you use the adjective “reasonable” rather implies that there is.
MR HOLDENSON: Well, in my submission, that is – sorry, I use or ‑ ‑ ‑
NETTLE J: One does.
MR HOLDENSON: One does.
NETTLE J: The very fact that we do, in the law, use the adjective “reasonable” in order to describe this level of satisfaction the jury must reach before they convict suggests it is something other than “any” doubt.
MR HOLDENSON: But that is not how Green’s Case has articulated, going back to Green ‑ ‑ ‑
NETTLE J: Yes.
MR HOLDENSON:
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 goes on and what that has supported or confirmed by jurors who:
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” ‑ ‑ ‑
NETTLE J: Thank you. No, I understand.
MR HOLDENSON: Insofar as Neilan and, for that matter, the manner in which it was followed by the majority in Chatzidimitriou, in my submission, those passages if found to be against our argument in this Court are contrary to that which was held in Green’s Case so crisply and shortly and supported by the older case of Burrows, 1937, as explained in our submission in correct and clear fashion, in particular by Chief Justice King in Pahuja, and his Honour Justice Johnston.
In our submission those passages are clearly correct in this area of discourse and notwithstanding what might be perceived by some to be a frustration when one sees appellate courts being confronted with grounds of appeal of this nature which may have arisen from a mere slip, an unintentional slip by the judge but, be that as it may, this is something absolutely fundamental to the directions of this nature concerning the criminal standard and of course what makes this case so different from so many of the other cases, and of course, Ho is just one that has been cited in this Court, is that you have this explanation given once, and it is at the relevant point.
This is where the whole charge to the jury turns and the jury’s attention is thereby drawn to that passage because it is the passage they need to focus on to deal with the one issue to be resolved by them.
GAGELER J: Were you going to say anything about the overseas authorities that you referred to in paragraph 6?
MR HOLDENSON: With respect to the overseas authorities and we notice, of course, that our friends rely on them, what we say is that the overseas authorities are entirely irrelevant to determining whether or not the impugned passage at 210 for that matter at the bottom of 209 such as to lead to the result of the verdict set aside because all the overseas cases, putting aside the fact that our Court, this Court, has previously said the overseas approach is not to be followed, when there is a direction – also what the overseas authorities do say is if there is to be an explanation it is to be a detailed explanation and it could never be said that the couple of lines the subject of complaint here could ever be said to be sufficient.
GAGELER J: My question was, in paragraph 31 of your written submissions you refer in one sentence to the relevant part of the standard English direction. One interpretation of what the judge was saying here might be, although different words were being used, the judge is simply saying you have to be sure that nothing in life is certain. Now, if that was in substance what the judge was saying, would there be something wrong with that?
MR HOLDENSON: Yes, well, there is certainly something wrong with it by reason of the manner in which it is expressed because her Honour - and I am repeating our earlier submission, drawing a distinction between a thing called a “doubt” and a “reasonable doubt” thereby causing the jury by way of direction to engage in a two‑step process but if directions were to be expanded or, that is, there was to be an expanded direction to be given with respect to proof beyond reasonable doubt, it would probably be appropriate that it not be as confined, in any event, as it is in England but to point out that it is difficult to prove anything to that standard of proof, in any event, and it is not required and it could probably never be achieved.
So, in other words, expand upon it and not leave it as crisply as it is there or, for that matter, as it is in paragraph 31 as there set out from the case of Bracewell. Indeed, if one has regard to the directions that can be
given here and in Victoria - and I am just looking for the directions that can be given in response to a jury question and this was section 21 of the Jury Directions Act 2013, now section 64 of the Jury Directions Act 2015, indicate that it is almost impossible to prove anything with absolute certainty when reconstructing past events and the prosecution does not have to do so.
So, there is nothing of the vice which we say there is to be found in lines 6 and 7 in what could now be given.
Perhaps I should say to your Honour the Chief Justice what is happening in Victoria now as a result of the Jury Directions Act I have seen a charge to the jury where at the end of the charge the jury had a question concerning what was meant by the standard of proof and the trial judge pretty much followed by reason of the – what was actually within the question. It was a bit more than what do you mean by “beyond reasonable doubt”. The judge pretty much followed the entirety of that which is now permitted but the jury did have a question and it was also after the jury had been out for some time, not two or three hours and there was something to the question. So I have seen that Act in operation. That was a charge to the jury which would have been 15 months ago, something like that.
KIEFEL CJ: Thank you, Mr Holdenson.
MR HOLDENSON: I would remind the Court, just by way of submission, that anything that fell from the Court of Appeal in Chatzidimitriou where the court split, and Neilan, should not trouble this Court, this Court not being bound by those views there expressed in the judgments. I should say one other thing about Chatzidimitriou in light of the question asked of me by your Honour Justice Nettle. It was the subject of a special leave application which was refused. If your Honours please.
KIEFEL CJ: Anything in reply, Mr Silbert?
MR SILBERT: Very briefly, your Honour. This Court is not bound by Neilan but the Court of Appeal of Victoria was. Reasonable doubt, not “any” doubt but a “reasonable” doubt with the jury setting the standard and going back to Green v The Queen and the judgment of Chief Justice Barwick and Justices McTiernan and Owen at the foot of 32:
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.
In relation to what was said in relation to La Fontaine in answer to Justice Bell, at 72 Chief Justice Barwick is saying:
The passage I have quoted was, in my opinion, erroneous.
The erroneous quotation was not the direction. It was a commingling of circumstantial evidence directions in relation to the standard of proof. What was being criticised there was not any doubt, it was the commingling in that direction excerpted on the previous page, page 71, that it was not being beyond any doubt, that was not what was being criticised by the Chief Justice in that…..it was the commingling of directions.
At 6.83 of the appellant’s submissions, sixthly, as the relevant expression embodies “reasonableness” as the controlling standard in relation to the degree of persuasion, it is perhaps not surprising that further explication often founders. As this Court emphasised in Green, the jury sets the standard of what is reasonable in the circumstances of the particular case. However, unlike the majority judgments delivered in Compton, that does not mean that a doubt experienced by a jury is, ipso facto, a reasonable doubt.
As the Court in Green expressly recognised, a doubt entertained may be entirely fantastic or completely unreal and, if so, such a doubt should not be the source of reasonable doubt, that such an instruction is permissible in a redirection demonstrates the fallacy inherent in the judgments of Chief Justice King in Wilson and Pahuja. It seems that the South Australian line of authority has got this area of the law into somewhat of a mess, the South Australian line of authority being out on its own, effectively, Compton and other cases.
The last matter, in relation to the aide‑mémoire – if your Honours, when you look at the aide‑mémoire at appeal book 254:
Before you could find Kritsingh Dookheea guilty of murder, there are four elements that the prosecution must prove beyond reasonable doubt –
They are then set out - 1, 2, 3, 4:
Mr Dookheea does not dispute elements 1, 2 and 4. You should have no difficulty in finding those elements proven.
. . .
At the time that Mr Dookheea committed the relevant act(s), did he intend to kill Mr Zazai or cause him really serious injury?
The prosecution must prove beyond reasonable doubt that element and that is what is set out in the aide‑mémoire. If the Court pleases.
KIEFEL CJ: The Court reserves its decision in this matter and adjourns until 10.15 am tomorrow.
AT 3.55 PM THE MATTER WAS CONCLUDED
13
6
0