R v Fouyaxis - [2007] SASC 335

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v FOUYAXIS
[2007] SASC 335
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice White and The Honourable Justice David)
19 September 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE - MISDIRECTION AND NON-DIRECTION
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - DIRECTION TO JURY - REASONABLE DOUBT
Appeal against conviction - appellant found guilty of five offences by majority verdict - appellant admitted lying to police - counsel for the appellant at trial requested that the trial Judge give a direction to the jury about the use that they could make of the fact that the appellant lied to the police - Judge declined to give such a direction - Judge explained concept of "reasonable doubt" to jury as "a doubt which you ... consider reasonable" - whether jury given an adequate direction as to the use that they could make of lies told by the appellant - whether the jury adequately directed on the burden of proof - Held: appeal allowed - inadequate lies direction - misdirection on burden of proof - convictions set aside - retrial ordered.
Harris v R (1990) 55 SASR 321; Edwards v The Queen (1993) 178 CLR 193; Zoneff v The Queen (2000) 200 CLR 234; Dhanhoa v The Queen (2003) 217 CLR 1; R v Wilson, Tchorz & Young (1986) 42 SASR 203; Green v The Queen (1971) 126 CLR 28; The Queen v Pahuja (1987) 49 SASR 191; R v Forrest (2004) 236 LSJS 268; R v Britten (1988) 51 SASR 567; Gebert, Haley & Black v The Queen (1992) 60 SASR 110; Burrows v The King (1937) 58 CLR 249; R v Skeen [1996] SASC 5666; R v Clothier [2002] SASC 9; R v Wanganeen [2006] SASC 254, considered.

R v FOUYAXIS
[2007] SASC 335
Court of Criminal Appeal: Gray, White and David JJ
GRAY J.

This is an appeal against conviction.
Mihalis Paris Fouyaxis, the defendant and appellant, was charged with five offences arising out of a single incident: aggravated serious criminal trespass in a place of residence; aggravated robbery; common assault; causing grievous bodily harm with intent to do grievous bodily harm; and theft. The appellant was found guilty of all offences by majority jury verdict following a trial in the District Court.
The primary question arising on the appeal is whether the trial Judge provided an adequate lies direction.
The Prosecution Case
Shortly before 3.00 am on 20 April 2004, four men entered a house at 4 Allan Street, Royal Park. The men were armed with weapons including a metal baseball bat and two samurai swords. Each man was wearing a balaclava. Once inside the house the offences alleged were committed.
At trial, there was no dispute that the offences had been committed. The only issue was identity.
On the prosecution case there was a compelling body of circumstantial evidence that established that the appellant was one of the four men at Royal Park.
At about 2.16 am on 30 April 2004, the appellant was driving a Mercedes motor vehicle on Port Road at Thebarton when he was stopped for speeding.
The appellant gave the police a false name. Further inquiries revealed the falsity. A search of the appellant’s vehicle disclosed the appellant’s passport. At this point the appellant admitted his true identity. A further search of the vehicle led to the discovery of ecstasy tablets and three bags of cannabis.
As a result of the search of the vehicle and the recovery of illicit substances, police attended the appellant’s home in the morning of 30 April 2004 pursuant to a general search warrant.
In the course of the ensuing search of the home, a newspaper article about the offences at Royal Park and a Belkin router which had been stolen from the victim’s home were found in the appellant’s bedroom. Two samurai swords were found in the lounge. There was no dispute that these swords had been used in the course of the commission of the offences. One sword had blood on it which matched blood from the victim of the offence of causing grievous bodily harm with intent.
A Technics bag containing LPs and headphones which had been stolen from the victim’s home, and a baseball bat were found in the garage on the property. There was no dispute that the baseball bat had been used in the commission of the offences and in particular in the commission of the offence of causing grievous bodily harm with intent. Forensic examination of the baseball bat revealed blood matching that of the victim of that offence.
At the time of the search on 30 April 2004 the appellant was in police custody. His shoes were seized. A forensic examination declared blood on the surface of one of the shoes matching the DNA of the victim of the offence of causing grievous bodily harm with intent.
There was evidence of mobile phone calls made from the appellant’s mobile phone in the early morning of 20 April 2004. The appellant admitted that these calls had been made by him. The records showed that the appellant had used his phone between 1.15 am and 5.17 am that morning and that he was not at home when calls were made at 1.15 am, 1.22 am and 1.25 am. The records disclosed that he may have been home when two calls were made at 3.32 am and 5.17 am. Counsel for the prosecution submitted that if he was home at 3.32 am, there was time for him to have committed the offence and to have returned home.
The Defence Case
The appellant gave evidence that he purchased the items seized during the search at his home from a “Mr X” about a week before 30 April 2004. He was not prepared to divulge the identity of Mr X. He claimed that Mr X threatened to “rape and kill” his mother and sister and “cut open and gut” his brother in his presence. The appellant claimed that the threats were made on the day he was released from the Adelaide Remand Centre.
The appellant said that he offered Mr X $150 for selected items and that Mr X responded that it was all or nothing and he wanted $200 or $300. The appellant told Mr X he had more money at home so he arranged to meet him at the KFC car park at Port Adelaide.
The appellant claimed that his girlfriend gave him the extra $150. He then went to the car park and met Mr X. He gave him the money and Mr X put shopping bags in the appellant’s boot.
The appellant gave evidence that Mr X initially wanted $500 for the samurai swords and the machete. The appellant refused and took the rest of the property home. An hour or so later the appellant went to KFC for food. Mr X was sitting in his vehicle. He informed the appellant: “You can have the samurai swords. The person that was meant to buy them doesn’t want them anymore. You can have them considering you purchased the rest of the items.” The appellant then took possession of the samurai swords and the machete in a Reebok bag.
The appellant said that it was at this time that Mr X showed him the newspaper article. When the appellant arrived home he found the article in one of the pockets of the Reebok bag. He said he returned it to Mr X but it turned up again in the Reebok bag.
The Appeal
Two complaints were advanced before this Court. It was said that the trial Judge erred in not giving the jury an adequate direction as to the use that they could make of lies told by the appellant. It was further complained that the trial Judge erred in law in incorrectly directing the jury on the burden of proof. The first complaint was advanced with the permission of a learned Judge of this Court. It was contended that the second complaint, being a matter said to involve a point of law, did not require leave.
The Need For a Lies Direction
The Lies
The trial Judge identified two admitted lies in his summing up. The appellant admitted lying to the police when he told them that there was more than one person there when he bought the seized items. The appellant also admitted lying when he said he would tell the police the name of Mr X in exchange for bail.
There were two further lies admitted by the appellant during his evidence, which were referred to by the prosecutor, but not the trial Judge.
The third lie arose from the record of interview when the appellant was questioned about the newspaper cutting, referring to the subject offences, located during the search. When questioned about his knowledge of the newspaper cutting the appellant answered “My friend showed me that one”. In evidence, the appellant admitted that that response was a lie.
On the Crown case, the presence of the newspaper article was an important matter as it was said to be clearly indicative of the appellant’s personal interest in the subject matter of the article. The prosecutor relied upon the appellant’s possession of the newspaper article and his implicit knowledge of its contents. The apparent purpose of that lie was to distance the appellant from the subject matter of the article. The appellant went to further efforts in that regard during cross-examination.
The fourth lie also arose from the record of interview when the appellant was questioned about the transaction by which the appellant said he came into possession of certain of the items. When questioned about the bag in which the items were contained the appellant was unable to give any precise details of the bag. In evidence in chief the appellant described the bag in question as a “large almost sports bag like Reebok bag”. During cross-examination the appellant admitted that he lied to the police when he told them that he could not remember the details of the transaction when first asked by police was a lie. One purpose for admitting this lie was, it was said, to enable the appellant to resist the obvious suggestion of recent invention. This was a suggestion clearly left with the jury by the prosecutor in his address.
In respect of the four admitted lies it was left open to the jury to conclude that they all arose from a consciousness of guilt.
The trial Judge in summing up referred to the prosecutor’s submissions in these terms:
Mr Weir urged you to conclude that the [appellant’s] explanations given to Anderson on 11 July and his evidence before you are all lies and you should be satisfied about that beyond reasonable doubt.
The Judge in summing up, again referring to the prosecutor’s address, continued:
Mr Weir suggests this is recent invention which the [appellant] has come up with in the last three years, he said the details provided of the Tavern 340 and the car park would have been useful to the police three years ago and are not now and noted that, and finally the fact that the [appellant] has admitted that he lied on a number of occasions and so his credibility has been damaged by that.
[emphasis added]
After the jury retired, counsel for the accused raised with the trial Judge the need for a further direction in respect of the lies admitted by the appellant and requested that a further direction be given to the jury in the following form:
Just because he lied and admitted lying to the police you can’t take that to mean that he is guilty of the offence.
The trial Judge declined this request and gave no further direction. As a result, the direction in respect of the lies admitted by the appellant was limited to the terms set out above.
The Submissions on Appeal
Counsel for the appellant submitted that this was a clear case for a lies direction, and in particular a lies direction in the form suggested above. Particular emphasis was placed on the repeated reference to the lies by the prosecutor in his address, the use of such phrases as “complete fabrication”, “the so-called Mr X” and “the bogus Mr X”. It was further emphasised that the prosecutor had specifically invited the jury to conclude that the “transparency of [the appellant’s] account [was] indicative of his guilt of the crime”. Counsel submitted that the prosecutor’s repeated reference to the lies and his clear statement that the jury should conclude that they were indicative of guilt necessitated a lies direction.
Counsel for the Crown submitted that the passage in which the prosecutor had spoken of transparency being indicative of guilt was a statement that could be interpreted in two ways. One was as suggested by counsel for the appellant, the other was that if the jury rejected the appellant’s account then the only conclusion left was that of guilt.
Counsel for the Crown further submitted that regardless of the way that the prosecutor’s comment was interpreted there was no risk of the jury having pursued an impermissible line of reasoning. It was contended that in any event the trial Judge’s summary with respect to circumstantial evidence made no reference to lies being told out of the consciousness of guilt. It was said that in these circumstances there was no risk of a miscarriage of justice arising.
Discussion of Authorities
Complaints about lies directions have become commonplace over several decades. A convenient starting point identifies the principles in the oft-cited observations of King CJ in Harris:[1]
Lies told by an accused person either to the police or in the witness box are likely to have an adverse effect upon the credibility of the accused as a witness. But even the total discrediting of an accused as a witness is not a substitute for evidence of the commission of the crime charged. Generally speaking “a case in which an accused gives untruthful evidence is no different from one in which he gives no evidence at all”: see Broadhurst v The Queen [1964] AC 441 at 457, per Lord Devlin. In that case Lord Devlin warns against the “natural tendency for a jury to think that if an accused is lying, it must be because he is guilty”. The circumstances in which the accused's lies will have an effect transcending mere damage to his credibility and will constitute positive evidence of the commission of the crime have been discussed in the context of corroboration in the cases of R v Lucas [1981] QB 720 and R v Evans (1985) 38 SASR 344. The probative character of some lies rises from their tendency to indicate that they proceed from a consciousness of guilt on the part of the accused. Instances of lies of that kind are false denials of having been in the company of an alleged victim at a material time or of having been at the scene of the crime at a relevant time, made at a time when the accused could not have known, unless he was the culprit, that there had been any wrongdoing in connection with the alleged victim or at the scene of the crime. Even in such cases courts must be on their guard against collateral motives for telling lies, such as the desire to conceal from a spouse that the accused was in the company of the alleged victim or was at the scene of the crime. The circumstances in which lies told after an accused becomes aware that he is or might be under suspicion in connection with the crime can amount to positive evidence of the commission of the crime must be rare. The tendency of persons under suspicion to wish to distance themselves from the persons or events connected with the alleged crimes and to endeavour to improve their position by falsehood is far too common to enable an inference to be drawn with confidence, in any but the rarest of cases, that lies proceed from a consciousness of guilt. Unjust results can easily flow from a readiness to treat lies of an accused person as positive evidence of guilt.
…
I am far from impressed by the supposed probative quality of the lies relied upon by the prosecution in the present case, but I am unable to say that the jury could not regard them, or some of them, as possessing some tendency to indicate a consciousness of guilt. A warning as to the care which must be exercised before an inference of that kind can be drawn was required and it was given. After directing the jury that they could only treat lies as probative if they proceeded from a consciousness of guilt, his Honour said:
“Well ladies and gentlemen, as you know people make false statements and tell untruths for various reasons. For instance, the fact that a man denies that he was at a certain place at a certain time because he just didn't want his wife to find out where he was at that time, doesn't mean that he happens to punch somebody at that time and at that place and is later charged with assault. The fact that he may deny being there doesn't mean he committed the very offence with which he is charged. You see, ladies and gentlemen, it may be that a person in the accused's situation, and your own common sense will tell you this, some people like to big-note themselves, be big men and say things that are untrue just to build up their own ego, it may be that. I don't know ladies and gentlemen, but the law requires that I point out to you that you must be very careful how you use this evidence and assertion that he was untruthful or completely untruthful when he spoke to the police. There you are ladies and gentlemen, that's how you deal with the untruths, if you are satisfied that untruths were told by the accused.”
The summing up would have been improved if his Honour had referred specifically to the alleged lies relied upon by the prosecution as constituting positive proof of the crime and had related his general directions specifically to those alleged lies.
[1] Harris v R (1990) 55 SASR 321 at 323-324.
In Edwards,[2] the High Court considered a summing up in the context of a case where the prosecution relied on lies as being lies told out of a consciousness of guilt. In their joint judgment, Deane, Dawson and Gaudron JJ observed:[3]
A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (i.e. it relates to a material issue) and if it was told by the accused in circumstances in which the explanation for the lie is that he knew that the truth would implicate him in the offence. Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest. And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence, or, as was said in Reg. v. Lucas (Ruth), because of “a realization of guilt and a fear of the truth”.
Moreover, the jury should be instructed that there may be reasons for the telling of a lie apart from the realization of guilt. A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence. The jury should be told that, if they accept that a reason of that kind is the explanation for the lie, they cannot regard it as an admission. It should be recognized that there is a risk that, if the jury are invited to consider a lie told by an accused, they will reason that he lied simply because he is guilty unless they are appropriately instructed with respect to these matters. And in many cases where there appears to be a departure from the truth it may not be possible to say that a deliberate lie has been told. The accused may be confused. He may not recollect something which, upon his memory being jolted in cross-examination, he subsequently does recollect.
[2] Edwardsv The Queen (1993) 178 CLR 193.
[3] Edwardsv The Queen (1993) 178 CLR 193 at 210-211 (footnotes omitted).

The High Court returned to the need for a lies direction in Zoneff.[4] In that case the prosecution had not presented the case as one in which the jury would be entitled to convict on the basis that any lies found would be a ground for an inference of guilt. However, there were a number of lies that the jury could find had been told. The trial Judge gave a general direction to the jury about the significance of lies told by the accused in which he referred to the possibility that the telling of lies indicated a consciousness of guilt. The Judge reminded the jury that there are many reasons why people lie, some of which are not consistent with guilt.
[4] Zoneff v The Queen (2000) 200 CLR 234.
In their joint judgment, Gleeson CJ, Gaudron, Gummow and Callinan JJ made the following observations:[5]
[5] Zoneff v The Queen (2000) 200 CLR 234 at [16]-[17], [19]-[21], [23]-[24] (footnotes omitted).
There may be cases in which the risk of misunderstanding on the part of a jury as to the use to which they may put lies might be such that a judge should give an Edwards-type direction notwithstanding that the prosecutor has not put that a lie has been told out of consciousness of guilt. As a general rule, however, an Edwards-type direction should only be given if the prosecution contends that a lie is evidence of guilt, in the sense that it was told because, in the language of Deane, Dawson and Gaudron JJ in Edwards, “the accused knew that the truth ... would implicate him in [the commission of] the offence” and if, in fact, the lie in question is capable of bearing that character. ...
Moreover, if there is a risk of confusion or doubt as to the way in which the prosecution puts its case, the trial judge should inquire of the prosecution whether it contends that lies may constitute evidence of consciousness of guilt and, if so, he or she should require identification of the lie or lies in issue and the basis on which they are said to be capable of implicating the accused in the commission of the offence charged.
…
In this Court the respondent prosecutor reiterates that no reliance was, in the courts below, or is here, placed upon the answers given to found a submission that the appellant lied, out of a consciousness of guilt.
It follows in our opinion that it was unnecessary, indeed undesirable, that a direction of the kind with which Edwards was concerned be given in the circumstances of this case. In order to give it in this case the trial judge would have had to decide which of the appellant's answers were or were not capable of being regarded as lies indicative of a consciousness of guilt. Such a direction here could have had the effect of raising an issue or issues upon which the parties were not joined, and of highlighting issues of credibility so as to give them an undeserved prominence in the jury's mind to the prejudice of the appellant.
Because the Crown did not put, either in cross-examination or in any submission at the trial that there was any material capable of being regarded as a lie stemming from a consciousness of guilt, the direction that the majority in the Court of Criminal Appeal quoted and which is set out above, should not have been given.
…
A direction which might have appropriately been given and which would have allayed any concerns which the trial judge may have had, in this unusual case, in which the issues may not have been defined as they might have been had the prosecutor made a speech to the jury, is one in these terms:
“You have heard a lot of questions, which attribute lies to the accused. You will make up your own mind about whether he was telling lies and if he was, whether he was doing so deliberately. It is for you to decide what significance those suggested lies have in relation to the issues in the case but I give you this warning: do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt.”
A direction in such terms may well be adaptable to other cases in which there is a risk of a misunderstanding about the significance of possible lies even though the prosecution has not suggested that the accused told certain lies because he or she knew the truth would implicate him or her in the commission of the offence.
The most recent discussion in the High Court is to be found in the decision of Dhanhoa.[6] In this case the prosecution had not presented a case of lies being consciousness of guilt. It was held that in those circumstances an Edwards-type direction was not called for. Gleeson CJ and Hayne J observed:[7]
In the context of the whole of the evidence, and the issues as they developed at trial, there was little to be made of what the appellant said to the police in September 1999, and a reading of the summing-up indicates that little was sought to be made of it. The prosecutor was entitled to suggest, as he did, that there were aspects of the appellant's response that could be taken to reflect adversely on his reliability. The matter did not go beyond that.
The facts of the case are quite different from those of Zoneff, where the prosecutor, in cross-examination of the accused, had attributed lies to him, but had not addressed the jury. The trial judge himself, in his summing-up, had raised the question of lies and consciousness of guilt, evidently considering that there was a risk that the jury would consider that it was part of the prosecution case that the suggested lies were evidence of consciousness of guilt.
It is not necessary for a trial judge to give a direction, either of the kind referred to in Edwards, or of the kind referred to in Zoneff, every time it is suggested, in cross-examination or argument, that something that an accused person has said, either in court or out of court, is untrue or otherwise reflects adversely on his or her reliability. Where the prosecution does not contend that a lie is evidence of guilt, then, unless the judge apprehends that there is a real danger that the jury may apply such a process of reasoning, as a general rule it is unnecessary and inappropriate to give an Edwards direction. Zoneff was said to be an unusual case, and the direction there proposed was said to be appropriate where there is a risk of misunderstanding about the significance of possible lies. The present was not such a case.
Callinan J was of the same view:[8]
Occasion did therefore arise at the trial for the giving of a direction of the kind to which Edwards v The Queen refers. The second ground of appeal is accordingly also made out.
[6]    Dhanhoa v The Queen (2003) 217 CLR 1.
[7]    Dhanhoa v The Queen (2003) 217 CLR 1 at [32]-[34] (footnotes omitted).
[8]    Dhanhoa v The Queen (2003) 217 CLR 1 at [97] (footnotes omitted).
McHugh and Gummow JJ considered that although it might have been preferable for the Judge to have given a Zoneff-type lies direction, a miscarriage of justice had not been demonstrated. They commenced their reasons by referring in the following terms to the absence of any request for re-direction:[9]
When no re-direction concerning evidence is sought at a criminal trial, the appellant can only rely on a failure to direct the jury on the evidence if he or she establishes that that failure constituted a miscarriage of justice. No miscarriage of justice will have occurred in such a case unless the appellant demonstrates that the direction should have been given and it is “reasonably possible” that the failure to direct the jury “may have affected the verdict”. In the present case, the judge was not required to give one of the directions that the appellant now claims should have been given — a direction as to identification evidence. And although we think that it would have been better for the judge to give a direction concerning the other matter — a direction as to lies — the appellant has failed to establish that there is a reasonable possibility that such a direction would have affected the verdict. Accordingly, no miscarriage of justice has occurred.
[9] Dhanhoa v The Queen (2003) 217 CLR 1 at [38] (footnotes omitted).
When discussing lies their Honours reasoned:[10]
If the jury found that Dhanhoa had lied to the police, they were entitled to infer that his evidence lacked credibility. But we think that, if the Crown had asked for a direction, the jury were also entitled to conclude that he had lied because he knew that the victim had been assaulted, robbed and detained. That is to say, the jury were entitled to think that he had lied because he was conscious that he was guilty of participating in the crimes and could give no innocent explanation for his presence at the flat if he had admitted that he was there. But the Crown made no attempt to run a case of consciousness of guilt. At no stage of Dhanhoa's cross-examination did the prosecutor expressly suggest to him that he had lied to the police because he had a consciousness of guilt. And because that was so, the trial judge did not direct the jury that, if they thought he had lied to the police, they could use the lie as evidencing a consciousness of guilt on his part. But the trial judge did direct the jury that various matters — one of which was the difference between what the accused told the jury and what he told the police — was “part of the Crown case and it is for you to determine whether there is any relevance in that”.
It is possible, therefore, that the jury may have reasoned that the accused was guilty because he had lied to the police. It is not necessary for a trial judge to give a direction concerning lies as evidence of guilt whenever a prosecutor suggests directly or indirectly that an accused's out-of-court statement is a lie. But in this case it would have been better if the trial judge, having given the direction that he did, had instructed the jury as to how they were to use any lie told by the accused. Given the way that the Crown conducted its case, it would have been better if the trial judge had directed the jury that the accused's lies, if they found he had lied, only affected his credibility.
[10] Dhanhoa v The Queen (2003) 217 CLR 1 at [58]-[59] (footnotes omitted).
In the course of their Honours’ reasons there is no suggestion that the observations in Edwards or Zoneff should be in any way qualified.
The review of these authorities indicates the need in the present case for a lies direction. The prosecutor had in the course of his final address submitted to the jury that they should use the lies, described generally as a transparency in the accused’s account, to infer guilt. Even if the prosecutor’s language was ambiguous, it may well have led the jury to have reasoned that lies had been told out of the consciousness of guilt. In this circumstance it was the Judge’s duty to require the prosecutor to identify each of the lies relied on to establish a consciousness of guilt and in his directions to the jury to link the requisite warning to the specific lies. Having regard to the terms of the prosecutor’s address, the present case called for a lies direction. This did not occur. If the prosecutor disavowed such an intent then a Zoneff-type direction was appropriate. If the prosecutor suggested that lies were told out of a consciousness of guilt then a full Edwards-type direction would be required. In either event, there was a material misdirection. In the circumstances a specific direction within the terms of Edwards and Zoneff was required.
The problem in the present case would have been overcome if, before addresses, the trial Judge had clarified the prosecution case with respect to lies. If the prosecutor wished to rely on lies as an admission of guilt, the trial Judge would have, in accordance with Edwards, required particulars of each alleged lie.
Onus of Proof
Early in his summing up the learned Judge observed generally in regard to reasonable doubt:
[A] doubt which you, as a jury, as members of the community, consider reasonable. If you have a doubt which you consider reasonable about any of the elements of any of the counts on the information then you must acquit the accused on that particular count.
It was the submission of counsel for the appellant that his Honour was in effect directing the jury that if they were left in doubt, then they must take it one step further to see whether the doubt they had was reasonable. It was submitted that the correct meaning of reasonable doubt is a doubt with which the jury as reasonable people are left.
During his summing up in the present case, the trial Judge returned to this topic after complaint by counsel for the appellant, by stating:
What ‘reasonable doubt’ means is simply that if you, as reasonable people on the jury, have a doubt then that is sufficient, a reasonable doubt on any of the elements of any of the offences contained in the information, will be sufficient for you to acquit the accused on that count.
Counsel for the appellant submitted that the first direction was erroneous and may well have coloured the mind of the jury so as to vitiate the effect, if any, of the redirection. It was said that although the first part of the redirection went some way toward correcting the earlier statement, when heard in context the second sentence, “a reasonable doubt on any of the elements of any of the offences contained in the information, will be sufficient for you to acquit”, may have reinforced in the jury’s mind that any doubt they held had to be reasonable.
In support of the submission that the initial direction contained a misleading and impermissible gloss, further reference was made to the observations of King CJ in Wilson:[11]
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.
There were other directions as to onus of proof and reasonable doubt, but I fear that all may have been coloured in the minds of the jurors by the impugned direction. There were real questions of credibility in the case and I think that the faulty direction as to onus of proof must be regarded as vitiating the convictions.
[11] R v Wilson, Tchorz & Young (1986) 42 SASR 203 at 207.
Counsel for the Crown submitted that, properly understood, the direction did not invite the jury to subject any doubt to a process of analysis to determine its quality, nor did it invite the jury to examine any doubt as to whether it could be characterised as reasonable. In the alternative it was submitted that if the impugned passage could cause confusion such that it was a misdirection, it did no more than suggest a limited form of analysis and that in any event the redirection clarified the matter appropriately.
Trial judges have been repeatedly discouraged from giving to a jury during a summing up an explanation of what constitutes reasonable doubt. The decisions of the High Court in Green[12] and of this Court in Wilson,[13] Pahuja[14] and Forrest,[15] demonstrate that where members of a jury are asked to subject their thought processes to analysis or evaluation, where jurors are invited to examine their thought processes in some deliberative fashion or where jurors are invited to scrutinise a doubt they may have to see if it passes some test, then there will be a misdirection. The distinction that is drawn is between a doubt that a juror may entertain after analysis, evaluation and scrutiny and a doubt that is reasonable.
[12] Green v The Queen (1971) 126 CLR 28.
[13] R v Wilson, Tchorz & Young (1986) 42 SASR 203.
[14] The Queen v Pahuja (1987) 49 SASR 191.
[15] R v Forrest (2004) 236 LSJS 268.
In the present case, neither the direction nor redirection invited the jury to analyse or evaluate any doubt to see if that doubt was reasonable. The jury was not invited to examine their thought processes or to scrutinise any doubt. Both the direction and redirection emphasised that a reasonable doubt was a doubt that the jury considered reasonable. There was no misdirection.
Conclusion
The prosecutor’s submission, and the way in which the lies were characterised, directly attacked the central plank of the defence case. The claim that the appellant had obtained the items located in the search from a “Mr X” was the major issue in the case and on which topic admitted lies were told. The jury were not given appropriate directions.
The misdirection as to lies was a material and significant misdirection. Notwithstanding the apparent strength of the Crown case, it cannot be said that the appellant received a fair trial. The appellant was entitled to a direction that was appropriate to the circumstances of the case and one that clearly warned the jury about the dangers of reasoning in the way that the prosecutor was inviting them to reason. It is to be borne in mind that defence counsel raised concerns about the adequacy of the direction before his Honour, immediately on the jury retiring, at a time when the Judge could have addressed the issue in a way that could have avoided any complaint. I cannot be satisfied that the jury did not proceed with a relevant misunderstanding that affected their minds on the basis of the direction given.
I would set aside the convictions and order a retrial.
WHITE J: The circumstances and issues in this appeal against conviction are set out in the reasons of Gray J.
In respect of the failure by the trial judge to give the jury a lies direction, I agree with the reasons of Gray J.
Directions on Onus of Proof
The judge directed the jury in conventional terms to the effect that the onus was on the prosecution to prove the guilt of the appellant beyond reasonable doubt. He then said:
Reasonable doubt, as you are probably aware by now having sat through the month as jurors, is a doubt which you, as a jury, as members of the community, consider reasonable. If you have a doubt which you consider reasonable about any of the elements of any of the counts on the information then you must acquit the accused on that particular count.
Counsel for the accused at trial submitted that that direction involved error. The judge then redirected the jury as follows:
What “reasonable doubt” means is simply that if you, as reasonable people on the jury, have a doubt then that is sufficient. A reasonable doubt on any of the elements of any of the offences contained in the information will be sufficient for you to acquit the accused on that count.
The submission on appeal was that the initial direction was a misdirection, and that that misdirection had not been adequately corrected by the redirection. It was submitted that the initial direction involved error because its effect was to invite the jury to engage in a two-stage process: first, determining whether they had any doubt at all concerning the appellant’s guilt, and, if so, then considering whether such a doubt was reasonable.
Mr Quinn, who appeared for the appellant, cited in aid of this submission the judgment of King CJ in R v Wilson, Tchortz and Young.[16] In that case, the Court considered the appropriateness of a direction to the jury which included the following:
If you have no doubt at all about the guilt of an accused on a count then you will convict him on that count. 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. If you have a reasonable doubt about guilt on a count then you should acquit, find him not guilty on that count.[17]
King CJ, with whom Johnston J agreed, said of this direction:
This direction postulates a doubt about guilt which the jury thinks exists. It then invites them to subject their mental state to examination in order to determine whether the doubt about guilt which they think to exist, is to be characterised as fanciful or reasonable. That direction is a negation of the proposition for which Green’s case is authority that the test of whether a doubt is reasonable is whether the jury entertains it in the circumstances.
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 the degree of strength which they attain, be given effect to if the jurors, as reasonable persons, are prepared to entertain them.[18] (Citations omitted)
In short, jurors are not to be invited or encouraged to engage in some form of analysis or evaluation of a doubt which they consider to exist to determine whether it should be characterised as reasonable. If the jury considers that a doubt exists, that is sufficient.
[16] (1986) 42 SASR 203.
[17] Ibid at 205.
[18] Ibid at 207.

Mr Quinn submitted that the initial direction in this case suffered from the same vice as was identified by King CJ in Wilson. The words “if you have a doubt which you consider reasonable” invited the jury, it was said, to engage in the very two stage process which the law did not permit.
In Green v The Queen,[19] to which King CJ referred in the quoted passage from Wilson, the High Court warned against attempts by trial judges to explain or elaborate upon the concept of proof beyond reasonable doubt. That warning has since been repeated on numerous occasions.[20]
[19] (1971) 126 CLR 28.
[20] For example, R v Wilson (1986) 42 SASR 203 at 206 per King CJ; R v Pahuja (1988) 49 SASR 191; R v Britten (1988) 51 SASR 567 at 570 per King CJ; Gebert, Haley & Black v The Queen (1992) 60 SASR 110 at 117 per Mullighan J; R v Forrest [2004] SASC 333, (2004) 236 LSJS 265.
The jury direction which was considered in Green included statements that the jury should not give effect to a doubt which was fantastic, or to a doubt which was not rational, or to a doubt which did not proceed from reason. The direction was described by the High Court as being fundamentally erroneous. The Court said:
A reasonable doubt is a doubt which the particular jury entertain in the circumstances. Jury members 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.[21]
These remarks were echoed in Wilson and in R v Pahuja.[22] In the latter case, King CJ said:
Mental philosophers, psychiatrists, psychologists and lawyers subject mental states to analysis and evaluation, but ordinary jurors are unlikely to be accustomed to doing so. Green makes it clear that it is not part of the task of a jury to do so. Jurors are presumed to be reasonable persons. The test of reasonableness of a doubt is that the jury, properly aware of its responsibilities, is prepared to entertain it at the end of its deliberations. To direct or even invite a jury to subject a doubt which it entertains after deliberating upon the case, to a process of analysis or evaluation in order to determine whether it is reasonable, is an error of law.[23]
[21] (1971) 126 CLR 28 at 32-3.
[22] (1987) 49 SASR 191.
[23] Ibid at 195. See also Cox J at 211-12.
The question on this appeal therefore is whether the direction of the judge had the effect of inviting the jury to engage in a two-stage process of reasoning or, alternatively, to subject a doubt which they entertained to some kind of further analysis in order to determine its quality. In answering that question, an overly refined or literal analysis should be avoided. It is the overall effect of what was communicated to the jury in the context of the trial which is to be considered. As was said by Dixon CJ in Burrows v The King:[24]
The objection to the learned judge’s direction as to the degree of proof required to justify a conviction depends upon the real effect which that direction was likely to produce in the circumstances of the trial. I do not think that we should draw fine distinctions between various expressions used to convey to a jury that the proof must establish guilt beyond all reasonable doubt.[25]
[24] (1937) 58 CLR 249.
[25] Ibid at 257-8.
In my opinion, the initial directions to the jury in this case did not have the effect which the authorities proscribe. Instead, their effect was to tell the jury that the existence or otherwise of a reasonable doubt was a matter for their judgment. The words used by the judge did not, in their natural sense, suggest that some form of two stage process of an impermissible kind was required. Nor did they involve an attempt at definition of the concept of reasonable doubt, or suggest that some kinds of doubt should be contrasted with other kinds. The jury is unlikely, in my opinion, to have discerned a material difference between being told, on the one hand, that if they had a reasonable doubt they must acquit, and, on the other, being told that if they had a doubt which they considered reasonable they must acquit.
The words used by the judge reflect the law concerning the concept of reasonable doubt. The statement that a reasonable doubt is a doubt which the jury entertains in the circumstances of the case is an orthodox statement of principle. See for example Green;[26] Wilson;[27] and Pahuja.[28] That statement reflects the position from the perspective of the whole jury, rather than indicating the process by which individual jurors came to their verdict.[29] It does not follow therefore that a jury must be directed in those terms, but a direction which states the law correctly is unlikely to be a misdirection.
[26] (1971) 126 CLR 28 at 32-3.
[27] (1986) 42 SASR 203 at 206.
[28] (1987) 49 SASR 191 at 194.
[29] Cf R v Pahuja (1988) 49 SASR 191 at 210 per Cox J.
Since R v Wilson was decided, a direction of the general kind given in this case has been considered by the Court on a number of occasions. The precise form and content of the directions considered has varied but, in general, directions of a similar kind to that given in this case have been held not to involve error.
In Gebert, Hayley & Black v The Queen[30] the Court considered a direction which included the following:
“Reasonable doubt”, ladies and gentlemen, is a phrase which is in common usage in our language. It means exactly what it says; no more and no less. It is a doubt which appears to you and seems to you to be a reasonable doubt.[31]
Mullighan J, with whom King CJ and Olsson J agreed, after referring to authorities deprecating attempts to elaborate the concept of reasonable doubt, said:
These cases establish that if some amplification of reasonable doubt is desired, the direction should go no further than to tell the jury that a reasonable doubt is “one which they, as reasonable persons, are prepared to entertain” …Whilst the direction was not precisely in those terms, I do not think that it could have been understood by the jury in any other way. There was no attempted definition of reasonable doubt by the use of some other expression and it was made clear that any doubt had to seem to the jury to be a reasonable doubt. In my view this direction was not a misdirection.[32]
[30] (1992) 60 SASR 110.
[31] Ibid at 117.
[32] Ibid at 117-8.
In R v Skeen[33] the impugned direction was as follows:
The burden of proof, remember, lies wholly on the Crown. If you are left in any reasonable doubt whether the Crown has proved its case, the accused must have the benefit of that doubt. Of course, the doubt must be a reasonable one. On the other hand, if you do find the charges proved, it is your duty to say so.[34]
It was contended that the words “of course the doubt must be a reasonable one” amounted to a misdirection because it invited the jury to engage in a form of objective analysis of any doubt which they considered to exist. Duggan J, with whom Matheson and Olsson JJ agreed, said that he could not conclude that the impugned sentence, when read in context, would have sidetracked the jury into an additional step of objective analysis of a doubt which they already entertained.
[33] [1996] SASC 5666.
[34] Ibid at [18].
In R v Clothier[35] the trial judge had directed the jury as follows:
If, at the end of the case, you are left with a doubt about the guilt of the accused, that appears reasonable to you, then you must give the accused the benefit of that doubt and find him not guilty. To put it another way, if there is a reasonable possibility that the accused is not guilty, the Crown will have failed to prove its case beyond reasonable doubt and you will acquit the accused.[36]
Mullighan J, with whom Williams and Bleby JJ agreed on this point, held that while it may have been preferable for the judge not to have used the expression “that appears reasonable to you” (because it tended in a limited way to invite analysis of the doubt entertained), the direction did not have the effect of deflecting the jury from the proper application of the burden and degree of proof.
[35] [2002] SASC 9.
[36] Ibid at [102].
In R v Forrest[37] the trial judge had instructed the jury concerning the onus of proof as follows:
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?”[38] (Emphasis in original)
It was the last sentence in that passage which was challenged on appeal. That challenge was rejected. It is noteworthy for present purposes that no adverse comment was made about the first three sentences in the quoted direction.
[37] [2004] SASC 333; (2004) 236 LSJS 265.
[38] Ibid at [7]; 266.
In R v Wanganeen[39] the jury was directed in conventional terms as to the burden of proof. However, in the course of their deliberations, the jury asked the judge this question:
Please define for us again beyond reasonable doubt. Does it mean that we have to be 100% sure that the defendant is guilty?
The judge answered that question in the following way:
The answer to the second part of that question is no, it does not mean you have to be 100% sure that the defendant is guilty. Secondly, a reasonable doubt is a doubt that you, as reasonable people on the jury, would consider to be a reasonable doubt. I can’t put it any higher than that.[40]
Gray J, with whom Bleby and Anderson JJ agreed on this point, described this answer as having been entirely appropriate.[41]
The initial direction given to the jury in this case is not in identical terms with any of those considered in these authorities. The brief review of the authorities does, however, confirm my opinion about the effect of the words used by the judge in this case.
[39] [2006] SASC 254.
[40] Ibid at [60].
[41] Ibid at 67.
Finally, I note that in R v Wilson, King CJ suggested that if any amplification of the concept of reasonable doubt is required in the circumstances of a particular case, “it should go no further than to tell the jury that a reasonable doubt is one which they, as reasonable persons, are prepared to entertain.”[42] The direction of the judge in the present case did not refer to the jurors as reasonable persons, but was otherwise in accordance with the formulation suggested by King CJ.
[42] (1986) 42 SASR 203 at 207.
For these reasons, I do not consider that the judge’s directions concerning the onus of proof amounted to a misdirection. I would reject this ground of appeal. I do not intend by these reasons to indicate that the direction given by the judge was desirable. Nor am I overlooking that there is a limited class of case in which some elaboration of the concept of reasonable doubt may be necessary or desirable.[43]
[43] See R v Green (1971) 126 CLR 28 at 33.
Conclusion
In my opinion, the failure of the judge to give an appropriate lies direction has resulted in a miscarriage of justice.
I agree with the reasons of Gray J for holding that the proviso should not be applied. Accordingly, I would allow the appeal, quash the convictions, and order a new trial.
DAVID J. I agree that the appeal should be allowed for the reasons given by Gray J.