Reg v Pahuja - [1988] HCATrans 181

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A46 of 1987
B e t w e e n -
ATTORNEY-GENERAL FOR THE STATE
OF SOUTH AUSTRALIA

Applicant

and
PRAHBU DATTA PAHUJA

Respondent

Application for special
leave to appeal

MASON CJ
BRENNAN J
DEANE J

Pahuja

DAWSON J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 24 AUGUST 1988, AT 10 .-11. AM

AlT2/l/SH

24/8/88

MR J.J. DOYLE, QC, Solicitor-General for South Australia:

May it please the Court I appear with my friend,
MS A.M. VANSTONE, for the applicant in this matter.
(instructed by the Crown Solicitor for South Australia)

MR J.S. WINNEKE, QC:

May it please the Court I appear with

my learned friend, MR D.H. PEEK, for the respondent.
(instructed by Ross McCarthy & Nosworthy)

MASON CJ:	Mr Solicitor.
MR DOYLE:	If the Court pleases, could the outline of submissions

be handed up. I left it on the table a moment ago.
If the Court pleases, it is submitted that

this application raises a matter of general importance
in the administration of the criminal law and that

matter beine, putting it broadly: what may a judge
say to a jury by way of explanation of the meaning
of the expression "beyond reasonable doubt" if
either the particular case calls for elaboration
or if a request is made by the jury?
It is submitted that in this case the Court of

Criminal Appeal took a very restrictive view of what

may be said by a judge. In our respect.ful submission,
it was unduly restrictive and would appear to rule
out the use of certain recognized expressions such
as "moral certainty" and the contrasting of a real
doubt with either a fanciful doubt or a doubt based
on fanciful possibilities.
It is also submitted that the expression which

the majority of the court appeared to approve of,
that that expression or that explanation is somewhat circular and misleading-and that was paraphrasing it

roughly-that a reasonable doubt is a doubt which the
jurors, as reasonable men, are prepared to entertain
or are prepared to act on;and the third error which
it is submitted occurred is that the Court of Criminal

Appeal read the decision in GREEN V REG and its
criticism and rejection of the process of jurors

being asked to analyse their reasoning. They appear
to have read that as preventing a trial judge from
almost saying to a jury, "If you have a doubt, consider whether it is a reasonable doubt" and our
submission is that in.that respect, also, the approach

was far too restrictive but I will develop those
points a little later, Your Honours.
Our submission is that this matter is important because it would affect many jury trials and while

are adhered to and unneces.sary elaboration on the if the statements which appear in various judgments

meaning of "beyond reasonable doubt" is avoided, of course, there will be many trials where nothing will

AlT2/2/SH

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Reg v Pahuja

Details

AGLC: Reg v Pahuja [1988] HCATrans 181
Case: [1988] HCATrans 181
Decision Date

CaseChat Overview and Summary

The applicant, the Attorney-General for the State, sought special leave to appeal to the High Court of Australia concerning the proper scope of a judge's directions to a jury on the meaning of "beyond reasonable doubt". The respondent was Pahuja. The dispute centred on whether the Court of Criminal Appeal had taken an unduly restrictive view of what a judge could say to a jury when explaining this fundamental concept, particularly when the case required elaboration or the jury requested clarification.

The legal issues before the High Court were whether a judge's explanation of "beyond reasonable doubt" could include expressions such as "moral certainty" or contrast a real doubt with a fanciful one, and whether the Court of Criminal Appeal had erred in its interpretation of existing case law, specifically *Green v The Queen*, in limiting a judge's ability to guide a jury in considering the nature of any doubt they might entertain. The applicant argued that the approach taken by the Court of Criminal Appeal was too restrictive and potentially inconsistent with practices in other Australian jurisdictions.

The applicant submitted that the Court of Criminal Appeal's majority view, which suggested a reasonable doubt was one that reasonable jurors were prepared to entertain or act upon, was circular and misleading. Furthermore, the applicant contended that the Court of Criminal Appeal had misinterpreted *Green v The Queen* by reading its criticism of jurors analysing their reasoning as a prohibition on a judge advising them to consider whether any doubt they had was reasonable. The applicant stressed the importance of this issue for the administration of criminal law, arguing that while unnecessary elaboration should be avoided, there were still many trials where some explanation would be necessary, and that a more uniform approach across Australia was desirable.

Orders