R v FORREST - [2004] SASC 333

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v FORREST
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Gray)
26 October 2004
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISDIRECTION OR NON-DIRECTION
Appeal against conviction - appellant convicted of one count of robbery in company - whether trial Judge erred in directing the jury on proof of facts beyond reasonable doubt - whether reference to 'a reasonable person acting reasonably' constituted a misdirection - whether erred in failing to direct the jury on the necessary consequences if they did not know where the truth lay - no misdirection or non-direction - appeal dismissed.
Brown v The King (1930) 17 CLR 570; Thomas v The Queen (1960) 102 CLR 584; Dawson v The Queen (1961) 106 CLR 1; Green v The Queen (1971) 126 CLR 28; R v Wilson (1986) 42 SASR 203; The Queen v Pahuja (1987) 49 SASR 191, applied.
R v ALJ (2000) 117 A Crim R 370; R v Ngo and Le (2002) 135 A Crim R 550, discussed.
Chidiac v The Queen (1991) 171 CLR 432; Carr v The Queen (1988) 165 CLR 314; M v The Queen (1994) 181 CLR 487; R v Calides (1983) 34 SASR 355, considered.

R v FORREST
[2004] SASC 333
Court of Criminal Appeal: Doyle CJ, Bleby and Gray JJ

DOYLE CJ: I would dismiss the appeal. I agree with the reasons given by Bleby J for so deciding. There is nothing that I wish to add.
BLEBY J: The appellant was jointly charged with Adam Paul Knibbs with two counts of robbery in company. Count 1 alleged that they robbed the victim Hannagan of $10.00. Count 2 alleged that they robbed the victim Brady of a mobile telephone, cigarettes and the sum of $2.00. Although they were jointly charged, the trial took place against the appellant only. The co-accused, Knibbs, took no part in the proceedings.
The jury was unable to reach a verdict on Count 1 relating to Hannagan and, by majority, returned a verdict of guilty on Count 2 in relation to Brady.
For the purposes of this appeal, the facts can be stated rather shortly. Hannagan and Brady were sitting on a bench near, but not at, a bus stop at Woodville at about 10.15pm on 20 January 2003. They claimed that they were waiting to catch a bus. They were approached by the appellant and Knibbs and were accused of interfering with a nearby car. The car was one in which the appellant and Knibbs had been travelling.
At the trial there was no dispute that the appellant struck Hannagan in the face. Hannagan alleged that the appellant also demanded money and that the appellant had searched his wallet. The appellant denied that he had stolen anything from Hannagan. He admitted having seen Hannagan’s wallet and that he had been shown some identification of Hannagan contained in it. The appellant said that this was in response to a request from him for identification of Hannagan. There was no suggestion that Knibbs had taken anything from Hannagan. In was on the count in relation to Hannagan that the jury could not agree.
There was also no dispute that the accused and Knibbs both struck Brady in the face and that Knibbs took the money and the mobile phone from Brady. It was the appellant’s case that that was Knibbs’ own doing, that at the time he did not know of the robbery and was not a party to any joint enterprise. It was on that count that the jury returned a majority verdict of guilty.
There are two grounds of appeal, both relating to directions given by the trial Judge to the jury. The first concerns the direction concerning proof of the facts beyond reasonable doubt. The Judge said:
“A reasonable doubt is simply a doubt which you, as reasonable jurors, are prepared to entertain. It really requires no other explanation than that. It is simply a doubt which a reasonable person entertains and you, as jurors, are reasonable persons. So, at the end of it all, you will simply ask yourselves this: ‘Am I in doubt? As a reasonable person acting reasonably, am I in doubt about the guilt of the accused?’.” [Emphasis added]
The question is whether the last sentence and the reference to “a reasonable person acting reasonably” constituted a misdirection; whether it added an unnecessary qualification on the doubt that a jury can entertain before deciding that the onus of proof has not been discharged.
Trial Judges have been repeatedly discouraged from giving to a jury during a summing up an explanation of what constitutes reasonable doubt. That has been expressed in a number of cases: Brown v The King (1930) 17 CLR 570; Thomas v The Queen (1960) 102 CLR 584; Dawson v The Queen (1961) 106 CLR 1 at 18; Green v The Queen (1971) 126 CLR 28; R v Wilson (1986) 42 SASR 203; The Queen v Pahuja (1987) 49 SASR 191. We can only repeat the warning and encourage its observance in order to avoid otherwise unnecessary appeals and possible retrials.
Before answering the question posed above, it is necessary to refer to several cases in order to discern the guiding principles and then to examine whether this direction offends those principles.
In Green v The Queen (supra) the trial Judge had given an elaborate explanation as to what was meant by reasonable doubt. He attempted to contrast a “doubt that proceeds from reason”, a “rational doubt”, “a really sensible doubt” with “a fantastic sort of doubt” and other descriptors, any one of which “cannot be described as reasonable because it does not come from reason”. The High Court identified several reasons why the trial Judge’s summing up on the question of reasonable doubt was defective. The second of those reasons can be seen from the following passage in the joint judgment of Barwick CJ, McTiennan J and Owen J at 32-33:
“In the second place, the direction was in our opinion fundamentally erroneous. A reasonable doubt is a doubt which the particular jury entertain in the circumstances. Jurymen themselves set the standard of what is reasonable in the circumstances. It is that ability which is attributed to them which is one of the virtues of our mode of trial: to their task of deciding facts they bring to bear their experience and judgment. They are both unaccustomed and not required to submit their processes of mind to objective analysis of the kind proposed in the language of the judge in this case. ‘It is not their task to analyse their own mental processes’: Windeyer J., Thomas v. The Queen (1960) 102 CLR at 606. A reasonable doubt which a jury may entertain is not to be confined to a ‘rational doubt’, or a ‘doubt founded on reason’ in the analytical sense or by such detailed processes as those proposed by the passage we have quoted from the summing up. Yet that is what they were directed to do in this case.”
The offending direction in R v Wilson (supra) was:
“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: it is a doubt beyond reason.”
The Court, by majority, held that that direction invited the jury “to subject their mental state to examination in order to determine whether the doubt about guilt which they think to exist, is to be characterized as fanciful or reasonable”. King CJ with whom Johnston J agreed, continued, at 207:
“I think that a direction in the terms given in the present case has a dangerous tendency to produce in the minds of the jurors an impression that a view held by them that there is a doubt about guilt is to be disregarded unless it passes some further test; that there must be some particular degree of doubt or even that a slight doubt is to be disregarded. When jurors are invited to consider whether a doubt which they actually think to exist is fanciful, they may well interpret the invitation as one, not merely to exclude aberrant mental processes, but to put aside real doubts unless those doubts possess in their minds a certain degree of strength. 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.”
The next case is The Queen v Pahuja (supra). In his summing up to the jury in that case the trial Judge included, in what was in some respects a conventional direction on proof beyond reasonable doubt, a contrast between what the jury, as reasonable people, may have as a “real doubt” with “some stupid or fanciful or unreal doubt”. The passage concluded:
“The public interest requires that just as an innocent man should not be found guilty a guilty man should not be allowed to escape the consequences of his action by false evidence, ingenious explanations or some misguided sympathy, or by the jury allowing some fanciful doubt to take the place of a real doubt.”
Counsel for the prosecution raised some concern about the direction, as a result of which the trial Judge redirected the jury in the following terms:
“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.”
King CJ thought it was at least questionable whether, in the main body of the summing up, the meaning of the expression had been accurately conveyed to the jury. Cox J and (semble) Johnston J considered that there was no misdirection in the main body of the summing up. However, all three Judges held that the redirection constituted a misdirection.
King CJ said, at 195:
“Such misgivings as one may feel in consequence of the directions on onus of proof in the main body of the summing up, are greatly intensified by what was said to the jury by way of redirection. In the passage quoted above, his Honour clearly invites the jury to subject any doubt which may be in their minds at the end of their deliberations to a process of evaluation in order to determine whether it is a reasonable doubt. 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.”
Of the redirection, Cox J said, at 212:
“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.”
Johnston J (at 220) said of the redirection:
“In each case the jury are invited to come to a conclusion as to whether they have a doubt; if they have no doubt they are to acquit; if they have a doubt they are invited to consider whether that doubt is a reasonable doubt. In my opinion, this is a serious defect. There is a very great difference between speaking to a jury in general terms about the concept of reasonable doubt (inadvisable and dangerous although they may be) and telling the jury that if they, as a jury, entertain a doubt they are to further scrutinise the doubt to see whether it passes the test of being reasonable.”
These three cases demonstrate that where members of a jury are asked to subject their process to analysis or evaluation, where jurors are invited to examine their thought processes in some deliberate fashion or to scrutinise a doubt they may have to see if it passes some other test, then there will be a misdirection. The distinction is between a doubt that a juror may entertain after analysis and scrutiny and a doubt that is reasonable.
The question is whether the direction in this case adds such an offending qualification. I consider that it did not, although it was an undesirable addition. The topic was introduced by the Judge with a clear and firm direction that was correct in law. If there was some nuance in the way that the Judge gave the direction, suggesting that some additional process of reasoning was to be applied, one would expect counsel to have raised the matter with the Judge. Neither counsel did. In those circumstances the qualification “acting reasonably” can properly be interpreted as a synonym for what the Judge had just said, namely “a reasonable person”.
In my opinion the phrase is properly treated as a description of the person rather than the process which the person is to undertake. It is not without significance that Judges of the High Court have described the function of a jury in similar terms. When speaking of the question whether a verdict is unsafe or unsatisfactory, Dawson J said in Chidiac v The Queen (1991) 171 CLR 432 at 451:
“It is clearly established by authority that, in determining whether the verdict of a jury is unreasonable, or cannot be supported having regard to the evidence – whether it is unsafe or unsatisfactory – the test is whether it was open to the jury upon the whole of the evidence to be satisfied beyond reasonable doubt that the accused was guilty: Whitehorn v The Queen; Chamberlain v The Queen [No.2]; Morris v The Queen; Carr v The Queen. If upon the whole of the evidence a jury, acting reasonably, was bound to have a reasonable doubt, then a verdict of guilty will be unsafe and unsatisfactory.” [Emphasis added.] [Footnotes omitted.]
See also Brennan J in M v The Queen (1994) 181 CLR 487 at 501-502.
The qualification “acting reasonably” both in that passage and in the Judge’s direction in this case is aptly paraphrased by what Brennan J said in Carr v The Queen (1988) 165 CLR 314 at 331:
“An appellate court must itself consider the evidence in order to determine whether it was open to the jury to convict, but the appellate court does not substitute its assessment of the significance and weight of the evidence for the assessment which the jury, properly appreciating its function, was entitled to make.” [Emphasis added.]
While the additional words were unnecessary and undesirable, they did not qualify the formation of a reasonable doubt. I do not consider that they would have led the jury into error.
A similar question arose in R v ALJ (2000) 117 A Crim R 370. In that case the trial Judge, having directed the jury that guilt must be proved beyond reasonable doubt, said:
“You are to bear in mind that this is a practical court of law, and decisions must be made in a reasonable sensible way, but if, at the end of the case, you are left with a reasonable doubt about the guilt of the accused, that’s a doubt reasonably arising on the evidence, then you must give him the benefit of that doubt and find him not guilty.”
The appellant complained of the use of the words which are italicised. There were other passages in the summing up which reinforced that the jury must be satisfied beyond reasonable doubt.
No member of the court considered that the second italicised passage departed from a proper direction as to the burden of proof. Of the direction generally, Prior J said, at 372:
“In my view, the directions given by the judge in this case did not attempt to explain or define reasonable doubt. Nor can anything said in the passage complained of be construed as a suggestion that the jurors should disregard a doubt which, at the end of their deliberations, they thought existed. Likewise, there is nothing in what her Honour said which seems, to me, to require the jurors to subject such a doubt to a process of analysis in order to determine its quality.”
Lander J did not consider that the direction diminished the direction to acquit if the jury were left with a reasonable doubt about the accused’s guilt. It did not improperly direct the jury to subject their mental processes to a process of analysis, nor was there any attempt to explain reasonable doubt.
Debelle J dissented. He considered that the Judge attempted to define reasonable doubt and in doing so, elevated a reasonable doubt to a rational doubt, particularly by the use of the epithets “practical” and “sensible”.
However, a direction in identical terms was upheld unanimously by this court in R v Ngo and Le (2002) 135 A Crim R 550; [2002] SASC 373.
The first italicised passage in that summing up, cast in the way it was, can be translated as a requirement that the jury use their common sense. That is an exhortation often given to juries, and is unexceptional. The direction in this case, although not identical, has a similar effect. It does not require analysis of the doubt that a reasonable juror may entertain.
In my opinion, the appellant fails on this ground.
The second ground alleges that the Judge erred in not explaining to the jury that if they formed a view that they did not know where the truth lay, then it was their duty to bring in a verdict of not guilty. It is alleged that he failed to explain to the jury that their verdict was not to be approached from a point of view of preferring either the alleged victim’s version or the accused’s version.
The passage complained of was the following paragraph:
“Members of the jury, you will discuss the matters amongst yourselves and in relation to each charge on the information you will ask yourselves this question: ‘Am I in doubt about the guilt of the accused? Am I satisfied beyond reasonable doubt that he is guilty?’. If your answer is yes, you will find him guilty. If your answer is no because you accept what the accused has told you, or because what he has told you you think is reasonably possible, or you are not satisfied the prosecution has proved each element of the charge against him, you will find him not guilty.”
In that passage the trial judge specifically raised two possibilities, namely that the jury accept what the accused told them, or that what he told them was reasonably possible. He did not advert specifically to the situation where the jury might not know where the truth lay, and that in such an event they should return a verdict of not guilty. Cf R v Calides (1983) 34 SASR 355. However, the Judge did raise a third possibility. That was that the jury was not satisfied that the prosecution had proved each element of the charge against him. It would have been desirable from the way the Judge proceeded with his summing up to mention the possibility that the jury did not know where the truth lay. But such a possibility is also encompassed by the possibility adverted to by the Judge, namely that the jury was not satisfied that each element of the charge had been proved.

The Judge did not merely leave the resolution of the conflicting evidence as a matter of choice for the jury to decide. The passage complained of does not do that. If there were any doubt about it, the passage must also be read in the context of what the Judge had said just a short time before:
“If you accept the accused’s evidence you will find him not guilty. If you think it is reasonably possible, that is his evidence, you will also find him not guilty. If his evidence causes you to have a doubt, you will find him not guilty.”
The overall impression remained at all times that the jury had to be satisfied beyond reasonable doubt, and that unless they were, there must be a verdict of acquittal. I would reject ground two.
It follows that in my opinion the appeal should be dismissed
GRAY J: I agree with the reasons of Bleby J. I would dismiss the appeal.