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

Copyright in the High Court of Australia

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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

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be said nevertheless, in our submission, there will

still be a good few trials where it will be necessary

for something to be said and so this issue would

arise quite frequently.

Secondly, in our respectfully submission, it

is a fundamental aspect of the criminal law, the

meaning of that expression, and for that reason alone

is important; and thirdly, in our respectful submission,

it is something on which practice should be standard

or relatively uniform Australia-wide and part of our

submission is that the approach which is now taken

in this State appears to be more restrictive than
the approach taken in other States, although it is
not easy to establish that with confidence because,
in the nature of things, one does not very often find

decisions in courts of criminal appea'-1. around

Australia which scrutinize summings up in quite this

detail.

However, our submission is that when one looks

at judgments elsewhere, it does appear that a

significantly more restrictive approach is being

taken in South Australia than in other States.

Now, I do acknowledge, Your Honours,at the

outset that, in the end, this question can be said

to turn upon the terms of the particular summing up and so, in that sense, it could be said this is not

a proper case for special leave but my submission is

that when looks as a whole at the judgments of the

court in this case, there is clearly a very restrictive
view being taken as to what may be said and the other

point on which I would fasten is that the one thing

which the court did say could be said, in my

submission, is not helpful to a jury and, indeed,

may be misleading.

MASON CJ:  But can we do any better than the court did in

GREEN?

MR DOYLE: Well, Your Honour, in my respectful submission,

GREEN's case has been misunderstood by the court

in this case. In that particular case, the summing

up was remarkable for the number of alternatives

it deployed or the number of explanations it
offered for what "beyond reasonable doubt" means

and the learned judge in that case went to the

stage of saying to the jury, ·"If you have a doubt,

take it out and look at it and do this and do that"

and, in that context, the High Court said a judge

should not invite the jury to analyse their own

mental processes. The Court of Criminal Appeal in

this case have taken that proposition and have then

gone to the extent of applying it to the judge's

effect, "Well, if you have a doubt, ask yourself is	direction at a stage when he said to the jury, in
that a reasonable doubt" and that is, really, no

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more than he said and yet the Court of Criminal
Appeal have said that that is an impermissible

invitation to the jury and it invites them to

analyse their own mental processes. So, in my

respectful submission, in that respect, it appears

that what was said in GREEN V REG requires some

clarification because my submission is that it has

been misunderstood by the Court of Criminal Ap~eal

in this State. The other point is, in my submission,

that in GREEN V REG,- although the court was stronely
critical of the summing up, there is no indication

there that the court was saying that some of the

well-known expressions such as "moral certainty",

"contrasting a real doubt with a fanciful doubt"

were no longer to be used and yet the tenor of the

judgment of the Court of Criminal Appeal in this

case is that such expressions are not to be used

and are likely to be misleading. So, in my

respectful submission, GREEN V REG, at least in

this State, appears to have been misunderstood

and, in my submission, it does not lay down some

of the broader propositions which the court have

taken it as laying down.

So, in answer to Your Honour, in one sense I

am not asking the Court to do more than was done in

GREEN V REG but my respectful submission is

GREEN V REG is being read as having done more than

it was intended to do.

MASON CJ:  But is not the tenor of the judgment in GREEN V REG

inconsistent with the use of an expression like "moral

certainty"? ~

MR DOYLE:  In my respectful submission, no, Your Honour. I

would submit that the judgment in that case has to

be read in its context and what it stands for are perhaps two or three propositions. First of all, that judges should not elaborate and we would accept

that; that, secondly, they should not invite jurors

to scrutinize or analyse their own mental processes

and we would accept that but submit that, in context,

when Their Honours' words are looked at in context,

they were dealing with a summing up which really

did invite the jurors to do that and that there is

nothing in that judgment which suggests, as was said

by the Court of Criminal Appeal here, that a trial

doubt, ask yourself now, is that a reasonable doubt".	judge cannot say to a jury, "Well, if you have a
The Court of Criminal Appeal, in effect, have said,
"If the jurors have a doubt, that is by definition
a reasonable doubt" and, in my submission, that the
High Court in GREEN V REG simply did not go that far
and what the trial judge did in this case is not
inconsistent with anything in GREEN V REG except
that he did elaborate when, as I acknowledge,
elaboration was not called for.

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BRENNAN J:	Mr Solicitor, if a jury acting reasonably forms a doubt, what is the purpose of them asking themselves
the question, "Is this. doubt reasonable?" , except
as it were to pile pe l_1on on ossa and raise an
additional hurdle.
MR DOYLE:	Your Honour, in my respectful submission, to say

that a reasonable doubt is a doubt which a jury,

properly instructed and discharging their duty,

is prepared to act on is descriptive of the end

result and correctly descriptive but, in my

submission, it is meaningful for a juror to say

to himself, "Well, the judge has talked about

reasonable doubt. I have got a doubt but is that

the sort of doubt the judge was telling me about?"

and if he asks for an explanation, in my submission,

it is and must be permissible for a judge to say,

"Well, ladies and gentlemen, there are some doubts

which are reasonable and some aren't" and to give

them a brief indication of what is not a reasonable

doubt. ~<\rid so, while if the jury, properly instructed,

entertain a doubt and consider it is reasonable then,

clearly, it is reasonable because doubt cannot be

measured or weighed. On the other hand, in my

submission, a juror can meaningfully say to a

judge, "Well, Your Honour, what is a reasonable

doubt? What sort of doubts are not reasonable?"

and, in my submission, the judge should be

permitted to give a brief explanation and not limit

it to saying what the Court of Criminal Appeal said.

In my submission, that is, really, the key

point here. On the approach of the Court of

Criminal Appeal, a judge would without wanting to trivialize it almost have to put up his hands and say, "Well, sorry ladies and gentleman, I cannot

say anything more to you than that if you are

prepared to entertain the doubt and act on it, it

is a reasonable doubt" and, I submit, that is

circular because many jurors would say, "Well,

Your Honour, I do have a doubt but I am just not

sure if it is a reasonable one".

DAWSON J:  The answer is, "If you have it, then it must be

reasonable".

MR DOYLE: Well, not in my respectful - - -

DAWSON J: Provided you are performing your functions properly.

MR DOYLE:  Yes, perform the functions properly but the jury

could ask, in my submission, quite reasonably for

guidance as to, at least, what is not a reasonable

doubt or, alternatively, what is. Where is the

line to be drawn .. And in my submission, in particular,

it can be helpful to contrast to a jury the idea of a real doubt as against a fanciful doubt or, as the

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High Court in GREEN did prefer, a doubt based on

fanciful possibilities. I accept that it would

be wrong to use real doubt in a sense that implied

the relevant doubt had to have considerable weight
or a certain quality to it but it is, in my

submission, helpful to draw that contrast to the

jury between a real doubt and a fanciful doubt.

But the other point at the bottom of all this,

in my respectful submission, is whether it is

proper, as it were, to fence trial judges in quite

as closely as the Court of Criminal Appeal has done

in this case, bearing in mind that for a long time

expressions such as "moral certainty" have been

used and that contrasts between a real doubt and

either a fanciful doubt or a doubt based on
fanciful possibilities.

So, if the Court pleases, my submission is that this case does raise a basic and important principle relating to the explanation which may be given of

that expression. There are some further matters

which arise, Your Honours, and three of them, in

fact, are dealt with in the outline. The first one

is the question of the meaning or the affect of

section 34i(5) of the EVIDENCE ACT which removes

the obligation to give a warning as to corroboration in cases of sexual offences and the second matter is

the question of what direction should be given in

relation to children who give sworn evidence and

the third point is a point under the heading

"duplicity".

The first two matters were dealt with by the

Court of Criminal Appeal in their judgment. The

third matter was raised before the Court of it and it was not dealt with in the judgment but

I understand that my learned friend, Mr Winneke,

wishes to argue them on the basis that if the

Court of Criminal Appeal erred in the area of our

attack that, nevertheless, there were other errors

by the trial judge. Could I just ask the Court to

indicate whether it would be more convenient for me

to proceed to argue these matters, those other matters,

as part of my main argument or, at this stage, to
confine myself to the only matter on which the
Crown wishes to be critical of the judgment of
the Court of Criminal Appeal, that is, the direction
in relation to reasonable doubt and then deal, if

necessary, in reply with the other matters?

MASON CJ:  Mr Solicitor, the Court is of opinion that you

should confine yourself to argument that supports your application for special leave and the ground

you advance.

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MR DOYLE:	Yes, if the Court pleases. Thank you, Your Honour. Your Honours, if I could turn to the argument, then.
I propose, if convenient to the Court, to first of all look briefly at the direction which His Honour
gave to the jury; then to look at what the Court
of Criminal Appeal said about it; then to look at
two or three decisions in this Court on the meaning of the expression "beyond reasonable
doubt".  Then I want to invite the Court's attention
to one earlier decision in this State and, finally,
with the aid of some material which I will hand up,
to take the Court very quickly and briefly to what
has happened as best we can tell in some other
places in relation to the meaning of that expression,
not that I suggest that will, in any sense, indicate
to this Court what it should do but just to indicate the variety of approaches that does occur.

Could I go then to the su.nnning up of the

trial judge, Your Honours, and I will confine myself

to the passages which are relevant to this point.

The relevant part of the summing up begins at

page 178 of the appeal book and there the learned

trial judge, at line 11, said:

If at the end of your discussions you,

as reasonable people, are left in some real

doubt as to whether all of the elements of

of the offence have been proved against him

then the accused is entitled to the benefit

of that doubt and to an acquittal.

On the other hand you will not let some stupid or fanciful or unreal doubt carry any

weight with you. You have to remember your

obligation to the due administration of the

law -

So, clearly, drawing a contrast there between real

doubt and, on the other hand, a stupid or fanciful

or unreal doubt.

Then, at about line 22:  If you the jury are not satisfied that

the guilt of the accused has been established
to a point of moral certainty then he 1s

entitled to the benefit of that doubt and a

verdict of not guilty.

So he deploys that concept for them. Then,

Your Honours, at page 185, he comes back to the

topic, because that was all he said, in effect,

on it at that part of his su.nnning up but at

page 185, line 4:

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If you say, well, you have thought about it and just don't think you can say where

the truth lies, then, ladies and gentlemen,

if that is the frame of mind that you are in,

I tell you as a matter of law that amounts

to a reasonable doubt. In other words, if

you say you can't say where the truth lies,

that is the same thing as saying you have

a reasonable doubt.

That was in the course of explaining to them that

it was not a matter of just deciding one version

or the other was true, there could be a mid course.

At about line 15:

If you accept another lot of evidence, then

you would probably find him not guilty; if
you just don't know, as was put to you on

behalf of the accused, if you don't know,

then the benefit of the doubt has to be

given to the accused.

And then, at page 199, line 10:

You will now consider all of these matters and discuss them freely amongst

yourselves and, having done so, you will
come to the conclusion in respect of whether

the Crown has proved its case beyond reasonable

doubt. If you are satisfied in every respect

that the Crown has proved the accused committed
the offence with which he is charged, then you

must say, 'Yes, we have so decided' - And then at line 18:

If you are not so satisfied, if you

are not morally certain, either because

you are satisfied that the truth lies

somewherein the Crown case, or because it

has not proved its case beyond reasonable

doubt, then your verdict will be not

guilty.

DAWSON J: What does the word "morally" mean in the phrase

"morally certain", Mr Solicitor?

MR DOYLE: Well, according to the dictionaries, Your Honour,

it means, and here the dictionaries themselves get

a bit circular, it means, really, very confident,

almost certain. The expression "moral certainty"

has been, judging by the dictionaries, used for

a good many years as meaning that something is

almost certain to be the case and, certainly, one

finds it cropping up in cases going back many years.

So, all I can say, Your Honour, is it is used in

the sense of - - -

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DAWSON J:	Completely certain.
MR DOYLE:	Yes, although I do not, with respect - - -

MASON CJ: Like a race horse you are confident about.

MR DOYLE: That is so, Your Honour. It is, in a sense,

a surprising - . use of the word "moral" and yet

one does hear "morally certain" used not uncommonly

in ordinary speech and so, if there was not that

traditional use of it, it might almost seem

misleading to put the word "moral" in there but

that very expression "moral certainty" does appear

iri the Oxford Dictionary and most of the main

dictionaries, Your Honour, and has been used by

judges over the years.

DAWSON J: Although, that is very close to a mathematical certainty,

is it not, really?

MR DOYLE: Well, not in my respectful submission. In one sense,

it is a bit like "beyond reasonable doubt". It

defies definition and yet one can, in my respectful

submission, give an indication of the intended

meaning but it does defy definition and, for myself,
Your Honour, I would not, with respect, submit that

it introduced any notion of mathematical certainty

and I must confess, although I am mathematically
somewhat illiterate, I am not even sure what

"ma::rematical certainty" does mean.

DAWSON J: Well, that means an a priori proposition, does it

not?

MR DOYLE:  Yes, well, as I have said, Your Honour, I am

mathematically illiterate so I just cannot say.

MASON CJ: But not morally illiterate.

MR DOYLE:  I would like to think about that, Your Honour,

when I read the transcript.

Your Honours, that is all the learned judge

said in his summing up and I have to acknowledge

that, to some extent, matters of impression are

involved but, in my submission, when we come to

GREEN's case, there really is a significant contrast

here between what the trial judge has said to the

jury and what was done in GREEN's case but it is

significant that the Court of Criminal Appeal,
taking the summing,~p for a start said that they

were distinctly uneasy about that and then what for them tipped the scales was what was said by

way of further direction to the jury.

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BRENNAN J:  Mr Solicitor, is there any appellate decision

which has equated "beyond reasonable doubt" with

"moral certainty"?

MR DOYLE:  My recollection, Your Honour, is that in BROWN V REG

which is one of the early cases in the High Court
where, again, the Court said generally you should
not elaborate, the expression "moral certainty"

was used.

MASON CJ: What case was that?

MR DOYLE:	BROWN V REG.
MASON CJ:	BROWN V REG.

MR DOYLE: That is on our list, Your Honours, although I

was not proposing to read from it but I have it
here and if Your Honours will pardon me a moment

I will just check whether my recollection is

correct. Yes, Your Honours, BROWN V REG, (1913)
17 CLR 570 and, in particular, at pages 594 to 596

in a joint judgment of Their Honours

Mr Justice Isaacs and Mr Justice Powers, dealing

with the meaning of "beyond reasonable doubt",

Their Honours said at page 594:

Doubt is doubt, and reasonable is

reasonable having regard to the circumstances.

But then, having gone on to discuss that a little,

at page 595, they said in the middle of the page:

The law is that there must be moral

certainty of guilt, which in itself involves

the absence of reasonable doubt.

And there are earlier cases in other places,
Your Honours, where that expression is used and

will indicate that it is still used or regarded the brief survey which I will undertake later	as a favoured expression in other places and,
again, at page 596, Their Honours sai~when
they were being critical of the use of that
expression, it has gone out of fashion, in effect, '~ct in the way in which you would if you were dealing with important matters in your own life", near the
top of the page about eight lines down they said:

It is simpler to ask for moral certainty - a term of clear conception - with reference to the circumstances of the particular case.

BRENNAN J: Well, it may have been a term of clear conception

in a day and age when moral values were more

appreciated than in the modern day.~

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MR DOYLE:  Yes, Your Honour. With respect, I would not

deny that expressions can have a vogue and then go out of vogue and that if an expression is no

longer found to be one commonly used, it may not

be helpful any longer to use it to a jury and so
I do not suggest that simply because an expression

has the approval of authority that it can and should be used forevermore. In my respectful

submission, "moral certainty" is a satisfactory

expression still to use today.

BRENNAN J: Well, I notice Baron Parke spoke of such a

moral certainty as convinces the minds of the

tribunal as reasonable men, beyond all reasonable

doubt.

MR DOYLE:	Yes.
BRENNAN J:	So, you are speaking of a particular quality of

moral certainty which was apt to produce satisfaction

beyond all reasonable doubt.

MR DOYLE:  Yes. Your Honour, again, I accept that the quest

in the end is satisfaction beyond reasonable doubt

and that any expression that is used should not be

used as a substitute but merely as an aid or a guide

to the jury.

DAWSON J: Well, really, what you are saying is a synonym

which may strike the jury more forcefully than the

phrase '·'reasonable doubt" itself.

MR DOYLE:  Yes, Your Honour So, Your Honours, it was

the further direction which, in the view of the majority, intensified the doubts which they had

about the summing up and, if Your Honours would go

to page 212, Your Honours will see there the further

direction that was given to the jury. I should

explain: this further direction was given to the

jury at the request of the prosecutor but that

request was made on the basis on an earlier decision

of the Court of Criminal Appeal to which I will

come later, REG V WILSON, in which very similar

views were expressed to those expressed here. So,

while the prosecutor in the light of REG V WILSON,

in my submission 9 quite properly suggested to the

judge that he should further direct the jury, the

tenor of my submission is that, in fact, there was

nothing wrong with the initial summing up to the

His Honour said:  jury. In any event, on page 212, at about line 5,

The first -

and he meant the first matter he wanted to speak

to them further about -

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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 -

and a little further down -

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.

And my submission is that that was quite inoffensive

but what Their Honours said in the Court of Criminal

Appeal was that this contravened what the High Court had said in GREEN V REG and that this did amount to

asking or inviting the jurors to analyse or

scrutinize their own mental processes and my

respectful submission is that if that is what

GREEN V REG means, then it is very difficult for

a judge to really draw any contrast for a jury between a reasonable doubt and one that is not

because all he has said to them is, "If you have

got a doubt, then it is for you to decide whether

that is a reasonable doubt" whereas the view most

strongly espoused by the Chief Justice

Mr Justice King was that if the jury entertain a

doubt then, more or less ex hypothesi, that is a

reasonable doubt.

(Continued on page 13)

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DEANE J: Except, is not one of the problems that this:

it invites the jury to go out and argue about

whether their doubt is reasonable? The first

thing would be, what do we mean by a "reasonable"?

They then go back and the trial judge has told them that if a doubt is a stupid doubt - so

they then go out and they argue, "Oh, no, your

point of view is stupid," and the whole thing

is likely to generate into a slanging match.

MR DOYLE:	Yes, Your Honour, there are dangers of that
and yet, in my respectful submission, many average
men on juries would really want some assistance
from the judge and, in my respectful submission,
at least the concept of "real doubt" contrasted
with "fanciful doubt" is helpful because, in my submission, people do understand the concept of a doubt existing but it being a rather fanciful
one, eg, based on the accused having an identical
twin that no one has heard of and who did not appear at the trial - it may be that identical twin did it.
DEANE J:	The point I was trying to make to you is even if you do not see much wrong with what is on

page 212, in the context where they have been

told that a reasonable doubt is a stupid doubt - and

obviously a stupid doubt means a doubt held

by a stupid person - ~tis only in that context

that you can read what he says there.

MR DOYLE:	With respect, I accept what Your Honour puts
to me but, in my respectful submission, it is
for the jury in the end to decide if they have
a reasonable doubt.  The law, in my submission,
does give some meaning to that word "reasonable".
If it does then there must be doubts which are
not reasonable and if the judge, as here, does
no more than say to them, "Now, decide for yourselves
whether your doubt is a reasonable one", he is doing no more, in my submission, than telling
them what they must of necessity do. While
there is a danger, I accept, that things might
degenerate with the jury coming back asking for an expression, going out, arguing over what
that meant and then coming back again, it is
one thing to say that the safest and wisest
course is not to elaborate at all unless the
jury really press you, but another thing to
say that the judge has erred when he elaborates
in what is, I submit, the very limited fashion
in which he did elaborate in this case using
expressions which have been approved in many
other cases and, in my submission, this is
one of the matters where in the end, at the
particular trial, a lot has to be left to the
judgment of the trial judge. It is one thing

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to say it is safer not to elaborate, in my submission,

and another thing to say that elaboration of

this sort is, in fact, erroneous.

MASON CJ: You criticized what the Full Court said about

the use of the expression "fanciful doubt",

but is not what the Chief Justice said at page 239.

entirely consistent with what this Court said

in KING? At page 239 in the quotation half-

way down the page, taken from the Chief Justice's

earlier judgment in REG V WILSON. His Honour

concedes that in some circumstances it may

be appropriate to use that expression and the

same concession was made in GREEN but, primarily,

the view taken in GREEN and the view expressed

here is that the trial judge should refrain

from using that expression in his instruction

to the jury unless there are particular circumstances in the case that make it appropriate to r.efer to it. Do you quarrel with that?

MR DOYLE:	No; Your Honour. We accept in these submissions that the trial judge should not elaborate unless there is something in the particular case which
calls for elaboration.
DEANE J:	Was there anything in the present case that called

for elaboration?

MR DOYLE:	No, Your Honour, and we accept that in this
case elaboration was unnecessary.  So the issue
to which we direct our submissions is what a
judge may say by way of elaboration either if
it is called for or if, unnecessarily, he embarks
upon the elaboration because· the decision in the end, here, was not that it was an unnecessary
elaboration - it was common that it was - it was that it was an erroneous elaboration and,
in my submission, the tenor of the judgment
is that even had elaboration been called for
it would have been wrong to say what the trial
judge said; t'hat he should have confined himself
to saying to the jury that a reasonable doubt
was one which they, as reasonable persons, were
prepared to entertain.
DAWSON J:	Does the Chief Justice say ·anywhere why it

was wrong to say what was said other than that

it was wrong to say it?

MR DOYLE:	In my submission, he bases himself fairly solidly
on GREEN V REG and reads that decision as meaning
that the jury may not be invited to scrutinize
the mental processes and he then infers from
that, wrongly in my submission, to then say to the jury, "If you have a doubt, ask yourself
is it a reasonable doubtv, he concludes that that is inviting them wrongly to scrutinize their mental processes.

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DAWSON J:	And you say that amount of scrutiny is at least
required by the phrase "reasonable doubt"?
MR DOYLE:	Yes, that that is inherent in the process and
that if the judge does not say something about
it that is what the jury would do in any event
out in the jury room and that it cannot be wrong
to say that; that you almost cannot say anthing
about the expression "reasonable doubt" without at least doing what the trial judge did in his
further direction.  So I do not resile from
the point that he need not have done it but,
in my submission, it was quite harmless to do
it and if it is a case where something is called
for it is the sort of thing that it seemed
quite appropriate to say.

BRENNAN J: That is where the psychological ambiguity exists,

is it not? If you say it is inherent in the

process and the process has been gone through

and the doubt is arrived at, to direct the jury

then to examine that doubt, to say whether it
is reasonable or not, suggests to the jury that

that further test has some content and that

content, as it were, is a stricter one than

the process originally gone through. On the

other hand, you can put it that the process

is not complete until the question is asked'-

is it is a reasonable doubt, but because it

is a question of how does the jury go about

the process and whether the doubt they are admonished
to put under this examination is already a

reasonable doubt, that the difficulty arises.

So the danger is, to suggest to them that there is a further test is perhaps putting a higher

test than there ought to be.

MR DOYLE:	Your Honour, if what the judge said to the jury
left them with the impression that there was
a further and higher test, then I accept the
direction would be erroneous. But, in my submission, when one looks at the summing up here, that
was not done and in the end the judge did
no more than really remind them that they only
had to be satisfied beyond reasonable doubt.
So, in my submission, it was simply a way of emphasizing or reminding them of their task.
Because, if I could make just one further point,
jurors could get out in the jury room and one
could say, "Well, I've got such-and-such a doubt"
and the other jurors to a man could say, "But,
that's really fanciful; it's unrealistic",
and the juror could say, "Well, the judge said
'If you as a juror have the doubt then it's
a reasonable doubt'." In my submission, if
that was all that was said to the jury it would
leave them lacking just that bit of guidance
that they need to indicate that "beyond reasonable
doubt" negatively does not mean to the stage of certainty.

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BRENNAN J: It would be a misdirection for a judge to say to

the jury, "And if you have any doubt then I

direct you as a matter of law that that is a

reasonable doubt and you should act upon it

by acquitting". That would be a misdirection.

MR DOYLE:	In my submission that would be.
BRENNAN J:	But if he starts off by saying that, "I.f you

have a reasonable doubt you must acquit; if

you have no reasonable doubt then you should

convict", then there is no misdirection.

MR DOYLE:	No, I accept that, Your Honour, and the question
is what may he say in between those two things
and, in my submission, the Court of Criminal in seeming to deny the propriety of expression
such as moral certainty and, in my submission,
wrong in saying affirmatively the one thing
that it is safe to say is, "A reasonable doubt is one which you, as reasonable persons, are
prepared to entertain". In my submission, if
that was all that was said, that in itself would
be misleading.

Your Honours, they are the only passages

I wanted to pick out of the summing up. If I could then go briefly to the judgments in

the Court of Criminal Appeal. First of all,

at page 240, in the judgment of the Chief Justice,

at about line 5. First of all he said:

But although an explanation of the meaning

of reasonable doubt which is accurate cannot

be a misdirection, such exolanations are

not to be encouraged - ·

and we accept that. Then he referred to his

judgment in REG V WILSON, where he said he had reiterated

that admonition and then, secondly, he said

his intention had been to draw attention to GREEN V REG:

that "jurymen themselves set the standard

of what is reasonable in the circumstances"

and that, therefore, a "reasonable doubt

is a doubt which the particular jury entertain

in the circumstances".

In my respectful submission, that portion of

his judgment is in error. It is true that jurors

must decide what is reasonable and, secondly,

because "reasonable doubt" is in a sense unquantifiable,

in that sense jurors do set the standard but,

on the other hand, in my respectful submission,

they are, nevertheless, applying the standard

which the law recognizes and the fact that they

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must apply the standard and the fact that the

standard has an unquantifiable element in it

does not, in my submission, lead to the conclusion

then that a reasonable doubt is a doubt which
the jury are prepared to entertain. If they
have done their job and acted properly then

the doubt which they act on will be a reasonable

doubt but it does not follow, in my respectful

submission, that a doubt which the particular

jury will entertain is as a matter of law a

reasonable doubt. In my submission, it is logical

and rational to say in such a case, "The jury

have acted on something which was not a reasonable

doubt".

So, in my submission, His Honour there

confuses the end result, namely the jurors arriving

at what is a reasonable doubt with the process - - -

DAWSON J: That is not quite right, is it, because if the jury

acts on a doubt which the judge would classify
as fanciful, objectively, but which they do

not view as fanciful, then it is, by definition,

a reasonable doubt, is it not, even though you
and I would say it was a fanciful doubt?

MR DOYLE:	In my respectful submission, not by definition.
It becomes one because the doubt which in the
end the jury act on - perhaps I should withdraw
that.  In my respectful submission, the jurors
apply a standard which the law lays down; if they apply it rightly - - -
DAWSON J:	But  they do not?

MR DOYLE: If they do not then, in my respectful submission,

the doubt which they have acted on has not been

a reasonable - - -

DAWSON J: If, in going through their processes, they act

on prejudice or fancy or whatever it might be,

but they are acting reasonably according to
their~ •.. ~	- I am putting this as a proposition

to you - then if in the end they have a doubt,

it is a reasonable doubt because they are acting

as a jury ought to act. Is that right?

MR DOYLE:  Not in my respectful submission. In the end,

in a sense, it is pointless to debate it because

no one can, as it were, take out the doubt which

they collectively entertained and analyse, it,

it is beyond analysis but, in my respectful

submission, it is nevertheless meaningful to

say that there are doubts on which a jury could

collectively act which are reasonable and which
are not, one could, if one could isolate the doubt and

identity it, · say that was not a reasonable

doubt even though the jurors, in the end, were

prepared to entertain it.

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DAWSON J:	I see the point.	You say they can say subjectively -

they can look at it subjectively and decide whether

it is fanciful or not?

MR DOYLE:	Yes.
DAWSON J:	And even if they make the wrong decision that
does not matter in the end?
MR DOYLE:	I accept it does not matter in the end, Your Honour,
and - - -
DAWSON J:	What I am saying is, even if objectively it
is a fanciful doubt, that is not to the point,
if they have gone through their processes and
come to the conclusion that it is a reasonable
doubt,but it is a process they have to go through
making this distinction?

MR DOYLE: Yes. Your Honour, certainly, if that is what

they have done, it is not to the point later

to debate whether they did it correctly and,

under our system, there is no mechanism for

reviewing what they did. But, it does not follow,

in my respectful submission, that one therefore

says as a matter of definition that any doubt
they act on must be a reasonable doubt. In

my submission, negatively one can say there

is no way of reviewing the doubt they acted

on; that one · cannot, under our system, identify

the doubt and measure it or check it but that

nevertheless, at the beginning of the process,

one can meaningfully say to them, "Ladies and

gentlemen, having thought this case through,

you may have a doubt. Now, what you will have

to decide for yourselves is whether that is

a reasonable doubt". In other words, the line

can be drawn - - -

DAWSON J: It is a subjective process but nevertheless

a process which they must go through to perform their function, yes, I follow.

MR DOYLE:  Yes, in my respectful submission.

DEANE J: What if a juryman said, "I know it's stupid

~1,1J: I!ve got a reasonable doubt about this"?

MR DOYLE:	I appreciate, Your Honour, that jurors do say
that sort of thing, or I assume they do, but
one would have to say to him, "Just think about
that for a moment.  Why do you"·- it depends
whether you are talking about a colloquy with the juror or a judge talking to them collectively
but, in my submission, you could say to them: "Now, think about the facts that are giving rise to that doubt and if in the end you think

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your doubt is reasonable as distinct from fanciful,

then act on it".

DEANE J:  I was using the words "stupid". What if a juryman

says, ~Look, I must be stupid or otherwise the

Crown and that nice prosecutor would not be

bringing this case, but stupid though I am,

I've got a real reasonable doubt about this."

MR DOYLE:	I am grateful to Your Honour, that does make
it a little clearer.  In my respectful submission,
what would be appropriate in a general way to indicate to the juror there was that his doubt
need not be what was called in GREEN's case,
a rational doubt or a doubt that proceeds from
reason. It can be what people these days call
"a gut feeling".  He may just have that feeling
that someone is lying somewhere, and if he has
it, that can be a reasonable doubt.  On the
other hand, in my submission, one could meaningfully
say to that juror, "If the sort of doubt you've got is what I might call the 'missing identical
twin' doubt, then that would not be a reasonable
doubt. That would be a doubt based on a fanciful
possibility".
DEANE J:	Can you say to him, "If you have a doubt, however

reasonable it might seem to you, you cannot act on it if it is a stupid doubt", because

that is what this judge has said.

MR DOYLE:  ,can Your ,Honour just put .that again: if you have a doubt

however reasonable it may seem to you, you cannot

act on it if it is a stupid doubt?

DEANE J:	Yes.
MR DOYLE:	I think if I was the judge at that stage I would
ask for a short adjournment, Your Honours.

DEANE J:  I am being argumentative, Mr Solicitor. You

need not decide that.

MR DOYLE:	Your Honour, all I can put is that the judge
would have to simply retreat to the position of advising the jurors that there were doubts
which were not reasonable doubts; that they
were the judges in the end but that they had
to ask themselves conscientiously whether the
doubt which they entertained was a reasonable
one and I think I would try to hint to the juror
not to ask any more questions like that.

So, Your Honours, at page 240 of the book,

just below the mid-point of the page, I do

19

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submit that there His Honour misapplies GREEN V REG

and that the fact that the jurors apply the

standard and, in that sense, set the standard,

does not mean that the standard becomes just

what the jury think. So, in my submission,

there His Honour did err. Then, at the bottom

of the page, he said about five lines from the

bottom:

The use of the expression "real doubt"

is open to criticism. It may be that the

jury would simply have understood it as

being used in contrast to "some stupid

or fanciful or unreal doubt" and if that

were so no harijl. would have been done.

But if a doubt exists, it can hardly be

said to be other than a real doubt. 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 do not quarrel with anything that His Honour

says there. Then he says:

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.

Then His Honour goes on to say:

the admonition against being influenced

by "some stupid or fanciful or unreal doubt",

although not a misdirection, seems not

to have been called for by anything which

occurred in the course of the trial.

Then, below the mid-point of the page, he says: Such misgivings as one may feel in

consequence of the directions on onus of

proof in the main body of the summing up -

now, in my submission, there was no cause for

misgivings on the basis of what was said in

the main body of it. Then he goes on to say:

are greatly intensified -

and about five lines from the bottom:

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.

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And again I accept that as a general proposition.

Then, over the page, line 3:

Jurors are presumed to be reasonable persons.

The test of reasonableness of a doubt is

that the jury, properly aware of its

responsibilites, is prepared to entertain
it at the end of its deliberations.

In my respectful submission, that may be accurate as a statement of the end result but it is not

accurate as a description of the process of

reasoning arid, I would submit, is unhelpful if

regarded as an explanation to be given to a

jury because in the end it is circular. He

then goes on to say:

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.

Again, in my respectful submission, as a general
proposition that is true but it cannot be applied

to what the judge did here in his further direction

because he merely said to them, "Ask yourselves

is this a reasonable doubt", and I would submit

that that is not, in the sense in which the

expression was used in GREEN V REG, inviting

them to analyse or evaluate after they had

come to the conclusion that there is a doubt.

That is all I wanted to read from that page

because that was where His Honour left the topic

and, in my submission, the tenor of that was

very restrictive. The use of those expressions

which the judge had used was in effect something

that caused the Court unease and then that very

limited further direction His Honour said was

an error of law because it amounted to inviting

them to scrutinize their own thinking in an

impermissible way.

Could I then go to the judgment of His Honour

Justice Cox. His Honour agreed in the final

result with the Chief Justice because he regarded

himself as bound by the decision in REG V WILSON

but clearly disagreed with His Honour the in so far as it was as restrictive as it was

of what might be said. At page 263, Your Honours,

having referred to some of the decisions, just

below the mid-point of the page, the second

to last sentence of the long paragraph in the

middle of the page, he says:

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It -

meaning reasonable

must imply that there are some doubts that

are reasonable and other doubts that are

not, and that the jury must keep the

distinction in mind in reaching its verdict.

In my submission that is correct. Then, over the page, having referred to the expression

"beyond reasonable doubt" at page 264, he referred

to BROWN V REG and, at about the middle of

the page, notes that there the Court deprecated:

any invitation to the jury to weigh a

doubt according to their attitudes or

practices in the ordinary affairs of life.

However, they accepted the paraphrase

"moral certainty of guilt", which went

back at least to the time of Baron Parke -

and he then refers to some uses of that expression

"moral certainty of guilt". Then he refers

to a number of decided cases and if I could

jump over to page 266, at about the middle of

the page, His Honour says, and I would submit

correctly:

I have no doubt that the expression "real

doubt" has been used frequently by Australian

judges in directing juries, without objection,
sometimes coupled by way of contrast with

an exhortation to ignore any "unreal" doubt. In our submission that is so; it has been so

used. Then, at page 267, having dealt a little

with this expression "real doubt", at about

the middle of the page, immediately after the

reference to BURROWS, he says:

The word "real" -

referring to these past cases -

was not used by the Judges in those examples

in some technical or esoteric way, but in its ordinary sense and indicating a

contrast, sometimes expressed, with an

unreal or illusory or fanciful doubt.

The clear implication is that the latter

kind of doubt would be an unreasonable doubt. In my view, it would not be an error of law to say as much to the jury.

That, in substance, is what the learned

Judge did here.

And again I would, with respec½ adopt what

His Honour says.

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Then he talks of the word "fanciful" and, having

referred to some of the decisions on that, at

page 269, just above the middle of the page,

in the last sentence of the paragraph which

began on that page, he says:

In my opinion, the trial Judge's use of

the word "fanciful" in this case - fanciful

doubts or fanciful possibilities - did

not detract from the standard contained

in the words "beyond reasonable doubt".

Again I would, with respect, adopt what His Honour

says on that, that His Honour merely used it

by way of contrast but with a real doubt.

Then he turns to the decision in GREEN V REG

having in substance said that, in his view,

that the main part of the judge's summing up

contained no error and did not use any expressions

which were undesirable. He reads from GREEN's

case and then comes to his conclusions on that

at page 272 and, about a third of the way down

the page - perhaps a quarter - says:

The criminal standard of proof implies

that there may be in any given case an

uncertainty, objectively speaking, called

a doubt, about the guilt of the accused.

The jury is required to find the accused not guilty if, but only if, it considers

that doubt to be a reasonable doubt.

A degree of analysis and evaluation in

this respect - Is this a reasonable doubt?

is inseparable, to my mind, from the test.

Of course, as the High Court pointed out, juries are not accustomed to the analysing

of their mental processes in this deliberate
and systematic fashion, and, understandably,

it was held to be confusing as well as

unnecessary and undesirable to invite them

expressly to go through such an exercise,

but that is another matter. Determining

whether there is a reasonable doubt on

the evidence requires the making of a judgment

and perhaps the discarding of perceived

unreasonable doubts, even if it is all

done unconsciously.

I would, with respect, adopt what His Honour

says there. He then makes the point that the

charge is not directed merely to the jury as

a whole but to each individual member of it
and that each individual member has to go through

a process along these lines.	At page 273, the
mid-point of the page:

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When the High Court in GREEN said that

"a reasonable doubt is a doubt which the

particular jury entertains in the

circumstances," it was, I apprehend, referring

to the corporate state of mind that is

implied in a finding of not guilty at the

end of the jury's deliberations. It could

not have been referring to the reasoning

or evaluation processes, productive possibly

of temporary as well as final states of

mind that are carried out, usually quite

unconsciously, by individual jurors.

Otherwise it seems to me, the word "reasonable"

in the phrase "beyond reasonable doubt"

must be otiose.

I would, with respect, adopt what His Honour

says there and, finally, Your Honours, at page 275,

towards the bottom of the page, His Honour refers

to the previous South Australian decision of

WILSON and says that that is:

stronger authority for Mr Winnecke from this point of view. There the majority held that the summing up was defective

in three main respects - it equated a

reasonable doubt with "a doubt beyond reason" -

and I would accept that that would be in error -

it implied that the jury could be left

with a doubt that was not a reasonable

doubt, and it invited. the jury to subject their mental state to examination in order

to characterize any doubt they might have

as fanciful or reasonable.

And, over the page, His Honour lsays:

If it were not for WILSON ..... 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 realized was necessarily conveyed

in the test "beyond reasonable doubt" anyway,

and could not have caused any confusion.

His Honour then goes on to say that·in WILSON

the criticism made of the summing up could
so closely be applied to the summing up in the
present case that he felt bound to apply the

decision in WILSON and to hold that the further

direction was in error in that by inviting the

jury to consider whether their doubt was a reasonable

doubt, the redirection had invited them to analyse

their mental processes.

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MR DOYLE (continuing): That is all I wanted to read

from the judgments, if Your Honours please.

I have perhaps put to the Court all I

need to put by way of elaboration of the

submissions which are made before I go to
the authorities. Those submissions are set
out in paragraph 3 of the outline and so I do

not propose at this stage to elaborate further

on them, but apart from that latter part of

His Honour Justice Cox's judgment dealing with

WILSON's case, I do, with respect, adopt what

His Honour has said.

I then go to the past decisions in this Court

briefly to see whether they do take such a

restrictive approach, that is, indicate that

expressions such as "moral certainty" or the

"real doubt" and "fanciful doubt", "contrast" are

undesirable; whether they do indicate that to

say to a jury, "If you have a doubt, ask yourself

is it reasonable"; whether they indicate that that

is impermissible and whether they support the

view that the correct explanation to give to a

jury is to say that "A reasonable doubt is a
doubt which you as reasonable men are prepared

to act on at the end of the day".

Could I go first, Your Honours, to. THOMAS V REG,

(1960) 102 CLR 584. Your Honours, in that case,

as the headnote indicates, the expression which

had been used was "comfortable satisfaction" and

it is clear on the authorities that if that

ever was acceptable, it no longer is. But, in my submission, when I go to the judgments here what they do indicate is, first of all, a judge

should not elaborate, but they do not cast any

doubt on expressions, such as "moral certainty"
and, in my submission, do not support the narrow
meaning given to 'reasonable doubt''by the

Chief Justice.

Your Honours, the direction to the jury is

at pages 586 to 587, and if I could just

indicate at the very bottom of page 586 the

judge referred to:

the more serious matters which come up

for consideration and decision in your

lives -

and at the top of page 587 had used the expression:

a feeling of comfortable satisfaction.

Towards the bottom of page 587 His Honour

Mr Justice McTiernan, in the last few lines,

criticized that expression -

"a feeling of comfortable satisfaction".

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Could I go to the judgment of Mr Justice Fullagar

at page 593, and there, referring to the same

portion of the surr.ming up to the jury, he said:

I do not think it can be doubted that the

last quoted passage contains a misdirection.

..... It tends to water down and qualify the

plain rule that what is required to justify

a conviction is proof beyond reasonable doubt:

see generally BROWN VR.

Now, the significance that I draw in part from this,

Your Honours, is that in BROWN V R real

doubt and conjectural doubt, and moral certainty

were all referred to and apparently approved, and

His Honour indicates no disapproval of them. He

then refers to the difficulty of defining the term

with precision but nowhere does he say, as

Mr Justice King has sai~ that a 'reasonable doubt'

is and is to be defined as a doubt which the

jurors are prepared to entertain. So, negatively,

in my submission, there is nothing there to

support what I would submit is the highly restrictive

view of Mr Justice King.

Could I then go to the judgment of Mr Justice Kitto,

at page 595, line 5:

It is also clear that the onus was to

satisfy the jury beyond a reasonable doubt.

He says nothing has impaired this principle; it

has been uniformly applied. And he does say:

Whether a doubt is reasonable is for the

jury to say; and the danger that invests

an attempt to explain what "reasonable"

means is that the attempt not only may prove

unhelpful but may obscure the vital point.

However, in my submission, he does not there appear

to be saying that a doubt is reasonable if the
jury entertain it.	He is simply saying that it

is for the jury to decide; that is their function

and, in my submission, it is a very different

thing to say that a doubt on which the jury are

prepared to act becomes,by definition,a reasonable

doubt.

Your Honours, I do not propose to read from

the other judgments. Could I just give the

Court two page references, in fact, they are

the page references in the outline, 601 point 9

in the judgment of Mr Justice Taylor and the

judgment of Mr Justice Windeyer, pages 604 to 605.

The second case, Your Honours, is

LA FONTAINE V REG, (1976) 136 CLR 62, at the

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very end of the headnote:

Instructing the jury on the standard of

proof the judge said: "Before you reach

a view that something has been established

beyond reasonable doubt you also have to

be satisfied that there is no other

rational conclusion which is consistent with

the innocence of the accused. If there is
another rational explanation it follows that

there is a reasonable doubt."

Now, in this particular case the dicussion

focused on the use of that expression'conclusion or rational

doubt". But I refer to the judgment of the

then Chief Justice Sir Garfield Barwick at

pages 71 to 72. hrl on page 71, about three-quarters

of the way down the page:

This Court has clearly laid it down

that it is both unnecessary and unwise for

a trial judge to attempt explanatory glosses
on the classical and, as I think, popularly

understood formula which expresses the

extent of the onus resting on the Crown -

and he refers to GREEN V REG, to which I will

come back -

In the present case, no question of

circumstantial evidence arose.

He refers briefly to the evidence and then

s~ys, over the page:

The passage I have quoted was, in my

opinion, erroneous. It seems to have

resulted from a confused co-mingling of

the traditional formula with the formula

at times appropriate to a case depending

on circumstantial evidence ...... A

rational conclusion and a rational explanation

cannot be equated in the administration of

the criminal law with a reasonable conclusion

and a reasonable explanation. The jury set

for themselves the perimeters of what is,

in these contexts, reasonable.

Again there I acknowledge that the seeds of what

the Chief Justice has said in the present case

could be found there but in my respectful

submissio~ to say that at this time in the

development of our law, that is the time of

this case, that what the jury thought was a

reasonable doubt became by definition a

reasonable doubt,would have been a significant

change in context and,in my submission, what

His Honour there said should be read as meaning

27

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no more than that the jury themselves have to decide	in the end what is reasonable; not as meaning
that what they decide is reasonable is
by definition reasonable.

Your Honours, I have given in the outline

members of the Court. Could I just go very	page references to the judgments of the other
briefly to the judgment of Your Honour Justice Mason
at pages 86 to 87 and,in particular, on page 87,
about a third of the way down the page, Your Honour
made the same point that to equate a reasonable
doubt with a rational doubt was an error of law. In particular, Your Honour there said, about
GREEN V REG, and this will be my submission in
due course, that it:

turned on the view that the Court took of the

entire summing up. It concluded that they

jury would take from the judge's remarks an

incorrect impression of what is meant by the

expression "reasonable doubt".

In my submission the Full Court in the present case have overlooked that fact and have treated

it as laying down quite rigid guidelines as to

what may be said. Your Honours, I do not want

to read further from LA FONTAINE.

Could I then go to the third and final case

from this Court in this area, GREEN V REG,

(1971) 126 CLR 28. The direction of the

trial judge, Your Honours, is set out beginning

at page 30 and, in my submission, it is important

to bear in mind its terms when one considers what

the Court then said about it. On page 30, about

three-quarters of the way down the page, the

judge, summing up to the jury, had said a little

bit to them about doubt and then he said in

a passage which begins after a semi-colon:

if there is some thing nagging in the back

of your mind which makes you hesitate as

to whether you are satisfied beyond reasonable

doubt, you have got to try and take it out and

identify this thing which is causing the

hesitation, causing the doubt if you like, and

you have a look at it and you try to assess it

and you say to yourself is this doubt that is

bothering me, does it proceed from reason; is

it a rational doubt; is it something which

raises a really sensible doubt; or is it a

fantastic sort of doubt -

And he goes on to pose, as it were, further rhetorical

questions to the jury. At the top of the next page:

28

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Well, if it is one of those doubts - merely one of those doubts, then of course it cannot be described as reasonable because it does

not come from reason; it comes from something
which is emotional or irrational -

and then, a little further down the page, in the

next paragraph of his summing up:

And of course it is a commonsense point

of view before you find anybody guilty of a
crime like this, you do need to feel

comfortable about it; you do need to feel,

'Very well, I've considered everything and

I'm really satisfied.	I am satisfied beyond
reasonable doubt -

And then his concluding words on this bit:

and feel comfortable that it is the right decision.

So, what is striking there, Your Honours, is the significant number of expressions which we use

which might well have caused confusion in a jury.

And the other thing that is very striking is the highly analytical process which His Honour suggested,

and then finally the reference to feeling comfortable.

In commenting on that summing up Their Honours first of all referred to what Sir Owen Dixon said

in DAWSON V REG about the desirability of not

departing from the traditional formula. They then

refer to BROWN V R, again without indicating any

intention to restrict anything that had been

said there. They then referred to THOMAS V REG.

Then it:he spec,ific criticisms begin at the bottom

of page 32. First of all they say it must have

been confusing to the jury. Then they say it

was fundamerut:ally erroneous, and this is the

passage which Mr Justice King, in my submission,

has fastened on:

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.

Now, in my respectful submission, that should not

be read as meaning that, as distinct from deciding
whether there is a reasonable doubt, that they

themselves literally define what is a reasonable doubt. As people, in a sense, they must set the standard because it is not a standard that can

be applied like a ruler or a set of scales. But,

in my submission, again it would have been a

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significant departure from past practice to say
that any doubt which jurors are prepared to

entertain becomes a reasonable doubt. In my

submission, the sense in which they set the
standard is that they are asked to apply the
standard and because it has an undefinable
element to it, in that sense they set it, but
as a matter of explanation or analysis the

standard does not become simply what they decide.

Then His Honour goes on to say that:

they are both unaccustomed and not required

to submit their processes of mind to

objective analysis of the kind proposed -

And the distinction I would draw between that case

and the present one is there the judge really did ask the jury to engage in quite a refined process of analysis. Here, all the judge did, and was

conderrm.ed for doing, was to invite the jury to

ask themselves the question: is this doubt a

reasonable doubt. Now, in my submission, that

is not at all what the High Court were talking

about in GREEN V REG. Then, finally in GREEN V REG

Their Honours went on to say:

A reasonable doubt which a jury may entertain

is not to be confined to a "rational doubt" -

and, with respect, I would accept that wholeheartedly;

it is clearly not. Then they went on to say that

finally the jury would be left with the predominant

impression:;·

that a comfortable satisfaction of the

accused's guilt would be enough to warrant
conviction.

In my respectful submission, those portions of GREEN V REG have been misapplied in the

present case, in particular, the portion referring

to jurymen themselves setting the standard and
the criticism of asking them to submit their
process of mind to objective analysis. It is

p·erhaps worthy of comment that at the bottom of

that page, Your Honours, the Court, referring to

cases where some elaboration is called for, says:

the judge can properly instruct the jury that
fantastic and unreal possibilities ought not
to be regarded by them as the source of
reasonable doubt.

In my submission, if that can be said in a case
where some elaboration is called for it itself
indicates that that process of analysis - or

to put that process of analysis, if you can call

it that, before a jury, is not to err. You may

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be doing something unnecessary in the case

by doing it, but in my submission it is not

erring to do it unless by doing something

unnecessary it said you have confused the

jury. But what is said here in the present

case by the Court of Criminal Appeal is

that to invite the jury to, as it were,

examine the doubt in that sense, is itself

erroneous. But the High Court clearly

contemplate that in some cases it will be

necessary to do so.

BRENNAN J:  Mr Solicitor, if, looking at the redirection that

was given by the trial judge in this case, one

were to form the view that the jury may have

understood that they were being invited to

examine the quality of the doubt which they

then entertained, could the direction stand?

MR DOYLE:	Your Honour, I cannot give a straight "yes" or
"no" answer. All I can submit is that if in
the end, looking at the summing up as a whole, the Court concluded that the jury were being
invited to approach the process by a means of,
as it were, self-analysis, or analysis of one's
own reasoning, that would be wrong. But if in the end the Court were satisfied that all the
jury were being asked to do was to bear in mind
that not all doubts were reasonable doubts and
that what they had to look for was proof
beyond reasonable doubt, in my submission, then
it would not be erroneous.

BRENNAN J: Yes.

MASON CJ:	The trouble with the redirection at 212 is that
it rather ends on the note that it is for the jury
to decide whether their doubt is a reasonable
doubt.

MR DOYLE:  Yes.

MASON CJ: In other words, that is the last message they

get and the message seems to be: the ultimate
question for you,is any doubt that you have

got a reasonable doubt; you have to decide that.

MR DOYLE:	Yes. But, Your Honour, in my submission, bearing in mind that this is communicated to them
orally and that we are concerned with the message
they get in the end, it is unrealistic to regard
that, as it were, charting for them an unsafe
course and what attracted the attention of the
High Court in GREEN V REG was a summing up which
was really noteworthy for the variety of
expressions used and for the degree of anaylsis
it invited, because if a juror had been jotting
down notes during the summing up in GREEN V THE REG,
he would have gone out to the jury room confronted

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with a myriad of questions in his own mind as

to the sort of doubt he was looking for. In

the end the trial judge here simply said to

the jury, "You decide if there is a reasonable

doubt, you decide if the doubt which you've

got is a reasonable one". In my submission,

that is not to invite them to say, "Well, now,

all right, if you reach the stage where you

think you've got a doubt, now take it out

and start analysing it." You are simply

reminding them of what their task is.

Your Honours, could I go then to the previous decision in this State of REG V WILSO~_(l986) 42 SASR 20~,

because that was the decision which was applied by the

Court of Criminal Appeal in this case? I go to

this case, Your Honours, in part because it was

followed in the present case, and in part because,

in my submission, it again illustrates how

restrictive the present approach being taken is.

The relevant part of the charge to the jury is

in the headnote at page 203:

"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."

Now, obviously it was dangerous to put in those

words, "a doubt beyond reason", but it is another
thing, in my submission, to say that the surmning

up miscarries for that reason.

Now, the Chief Justice dealt with this at

page 206, Your Honours, in the judgment. On

the preceding page he set out the summing up

at a little more length and he has referred

to GREEN V REG and it is GREEN V REG that he

is citing on that page. At the bottom of page

206 he says:

It is permissible, if thought necessary, to

warn a jury against unreasonable mental

processes, but it is rot permissible to

suggest that they should disregard a doubt

which, at the end of their deliberations,

they think to exist, or that they are

required to subject such a doubt to a

process of analysis in order to determine

its quality. If at the end of their deliberations,

the jury have a doubt, that doubt is ipso facto,

as GREEN's case establishes, a reasonable doubt.

Now, in ey respectful submission that is central

to His Honour's reasoning in the present case and

32

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in that case and, in my respectful submission, is

wrong. A doubt which they entertain is a

reasonable doubt only in the sense again, at the

risk of labouring it, that it is descriptive

of the end result. If that is what they have

decided, well, that is what they have decided.

But it does not mean, as a matter of definition,

that that is what a reasonable doubt is and,

all the more, in my submission, does it not

mean that they cannot be invited to ask

themselves the question collectively, or singly:

is my, or is our doubt, a reasonable one.

In my submission, it is simply taking

too rigid an approach, as he takes two or three

lines above that to say that it is not permissible

to suggest that they should disregard a doubt

which at the end of their deliberations they

think to exist, because that implies that if

at the end of their deliberations there is any

doubt, that has become a reasonable doubt. But

the object of the exercise, in my submission, is
to invite them to deliberate with a view to

discovering whether there is a reasonable doubt

and, in my submission, what His Honour says there

overlooks that.

He continues in the same tenor at page 207,

and,in my submission, again this makes clear how

restrictive his approach is. At line 4:

No attempt should be made to explain or define reasonable doubt -

which I do not, with respect, quarrel with -

If amplification is desired 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.

I submit that is unhelpful and circular.

The judge may, in an appropriate case warn

the jury against resorting to fanciful or

unreasonable possibilities as affording

reasons for doubt -

but he goes on to say that -

he should be careful to add ..... at the end
of their deliberations, as reasonable persons
are in doubt about the guilt of the accused,
the charge has not been proved beyond

reasonable doubt.

Again, in a particular context I do not suggest

it would be wrong to say that to them, but in my

AIT4/9/JM	33	24/8/88
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submission, the learned Chief Justice is

reducing this in effect to the only permissible,

and the only permissible explanation to be

given of the meaning except for cases which

he appears to visualize where something special

will call for something extra to be said. But,

in my submission, the tenor of it and the way

it would be read by judges directing juries is

that all they can safely say in the average

case is that a reasonable doubt is a doubt which

the jurors are prepared to entertain.

Then he refers to the particular impugned

part of the direction:

"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''.

And he says:

This direction pos,tulates 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 th:ink to exist, is to be characterized

as fanciful or reasonable. That direction is

a negation of tre;proposition for which GREEN' s case

is authority,-

Now, in my submission, GREEN's case is not as

rigid as that and,read in context, GREEN's case

was talking about - or was condemning something

going far beyond anything the trial judge did

in this case. Your Honours, I do not think

I need to read any further from the judgment

of His Honour the Chief Justice and, without
reading from it, could I just invite the

Court's attention in due course to page 213

what I submit is the broader and better view that	where His Honour Justice Legoe, in dissent, takes	you have to look at it as a whole and as a whole it
did not misdirect the jury as to the appropriate standard to be applied.

Could I also, Your Honours, without reading

from it, just refer the Court to the further

case in the outline, REG V DAM, as illustrating

again, in my submission, the very restrictive

approach being taken in this State and the

very little room for manoeuvre which it leaves

a trial judge. I do not want to read from it

as it is merely another illustration of what

is, I submit, an undesirable restriction on what

a judge may say.

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Your Honours, having dealt with authorities in this Court and the approach currently taken

in South Australia, could I now just go briefly,

and in conclusion,to look at what is happening

in other places and hand up to the Court some

photocopy materials. I have already provided

these to my learned friend. I have put that

material, Your Honours, in the order in which

I want to refer to it. I will not refer to

all of it, but some of it, albeit briefly.

Could I start with Archbold, Your Honours,

the forty-second edition, and from the paragraph

copied there it would seem that in England the

expression "beyond reasonable doubt" has gone

somewhat out of favour, as the editor indicates

in the numbered paragraphs, and in particular,

subp?ragraph (2). Lord Goddard has said that

it is:

better to tell the jury that before they

convict they must be "satisfied so that
they are sure" of the guilt of the accused.

..... has frequently been used by judges since

then and has been approved by the Privy Council .

But in note (5) says that it is:

submitted that it is better to give the
"reasonable doubt" direction, as set out in (1)

above.

And then, on the meaning of it, says:

that the judge should not volunteer an

explanation of this expression -

but rather surprisingly, at least from the

Australian point of view, says that if they do:

ask for an explanation ..... it should be

mind of a person in dealing with matters	the sort of doubt that might affect the
of importance in his own affairs.

That appears to be - as an expression - out of

favour in Australia. That is Archbold, Your Honours.

I have also provided the Court with an extract

from Fallon on Crown Court Practice simply because

that contains in a little more detail the way

in which the English position has developed

and the move away from proof beyond reasonable

doubt. He does refer, at page 603, to the

decision of the Privy Council in WALTERS, but

Your Honours, I will not delay the Court by reading

any of that. I am sorry, it is page 602 where he

sets out some passages from the judgment of

Lord Diplock and the Privy Council in WALTERS,

making the point that you have got to make sure

that the:

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jury understand that they must not return

a verdict against a defendant unless they

are sure of his guilt -

perhaps reflecting -

BRENNAN J:	What is the purpose of this citation, Mr Solicitor?
MR DOYLE:	Simply to illustrate, Your Honour, different
approaches that have been taken if the Court wants to see how the question of reasonable doubt and the standard of proof is being approached elsewhere.

BRENNAN J: But those propositions are at odds with what

was said in GREEN, are they not?

MR DOYLE:  Yes, Your Honour. I accept that English

practice is out of line with Australian practice and with what is acceptable in

the light of authority from this Court and
I am not inviting the Court to adopt or

prefer the English approach and I do not want

to take time unnecessarily. I am simply

illustrating,as briefly as I can,how it has

been approached elsewhere. Perhaps one basic
point, there is a variety of ways in which the

matter can be approached.

(Continued on page 37)

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MR DOYLE (continuing):  Your Honours, I have also referred in

the. outline to the Privy Council decision,

FERGUSON V REG, from which I do not want to read.

There Their Lordships did express approval of the

decision of this Court in DAWSON V REG. I simply

refer to that again as part of the survey. In the

outline I have referred to two decisions from New

South Wales, one of which is unreported and so is

but that again, in my submission, is a good illustration of the sort of summing up which came

included in the papers given to Your Honours. Again,

under criticism in GREEN V REG. The summing up which

was criticized in LAZAREVICH was one which again

really did invite the jury in some detail to analyse

what they were doing.

Your Honours - I am sorry, I am jumping a bit

from the outline to the materials - but I have referred
in the outline to a Western Australian case from which

I do not want to read, which makes the point again that

judges should not elaborate. It does not suggest such

a restrictive approach as was taken here. The New

Zealand case referred to of REG V DAGG, at page 823,

line 30 - Your Honours should have a copy of that -

appears to accept as satisfactory - about line 34 -

the use of the expression "fanciful or frivilous doubt" but on the other hand says that reference to the sort of

doubt that one would have in the prosecution of his

own affairs was not wise.

The Canadian case, Your Honours, of REG V FINLAY

which is with those materials, at page 542, begins
with a discussion there of the Canadian position.

I simply provide that to the Court as illustrative

of the attitude taken there.

MASON CJ:  The more you look at these the more what is said

in GREEN looks like good sound common sense.

MR DOYLE:  The broad propositions - I accept that, Your Honour -

do not elaborate, do not invite the jury to analyse,

and clearly the jury do set the standard in the sense

that they have to apply it and their application of

it cannot be tested later, but I do not want to labour

the point. In my submission, the Court here has

taken that to an undesirably restrictive extent,

and indeed, as Your Honour says, the more one reads,

the more one wonders about the value of the various

alternatives, and Wigmore, in his usual pungent fashion, refers to something along the lines of pointless risk

being added to judicial mills when judges attempt to

define these expressions. With respect, that is

true, but the question is what may a judge say if he

feels obliged, or if he considers that an explanation

is called for and, in my submission, the approach here

is too restrictive.

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The other case I have provided to Your Honours

is an American federal case which indicates that the
view taken there is that a judge should not elaborate,
and if asked to elaborate should not elaborate.

On the other hand, perhaps not surprisingly, in some of the State jurisdictions the view is taken that he should elaborate, and one finds then again a great

variety of expressions. I have also in the outline,

Your Honours, referred to passages in Wigmore dealing

with the American position.

Your Honours, they are the only other authorities I wanted to refer to, and so in sunnnary our submission

on this aspect of the matter is that it is desirable

not to elaborate. However, expressions such as

"moral certainty" and "real doubt contrasted with

fanciful doubt" are not erroneous, and while one should

not invite the jury to scrutinize the mental processes,

the context in which that was said in GREEN was a very

different context from what occurred here, and in my

submission, it is wrong to say that a reasonable

doubt is a doubt which a jury is prepared to entertain.

So for those reasons, in my respectful submission,

the Court should find that what is said by the

Court of Criminal Appeal in this case on this matter

was in error, if the Court pleases.

MASON CJ:  The Court will take a short adjournment and consider

the course that it will take in this matter.

AT 12.05 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.30 PM:

MASON CJ:  The Court need not trouble you, Mr Winneke.

The Court considers that there is no point in its

a jury on the standard of proof beyond what was said seeking to expound what direction should be given to in GREEN's case. It is to GREEN's case that one should

look to find the law on this topic, rather than to

other cases in which glosses have been put upon what

the Court said in that case. The question whether

the directions given to the jury in this particular

case were such as to warrant the setting aside of the
conviction and the order for a new trial was a border-

line one, as the judgment of Mr Justice Cox in the

Court of Criminal Appeal indicates. Nevertheless,

in the light of what we have already said, it would not be appropriate to grant special leave to appeal to the Crown so as to bring this question up for

determination in this Court. The application for

special leave to appeal is accordingly refused.

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MR WINNEKE:  Your Honours, we make application for the costs

of this application. We do so, Your Honours, on the

basis of remarks that have been made by this Court

recently in respect of Crown applications which are

regarded, as we understand it, by this Court as

being matters of an exceptional nature so far as

special leave is concerned. Particularly,

Your Honour, it would appear that the Crown in this

case has sought the grant of leave for the purposes

of what it contends is the proper administration of

justice in this State, and in those circumstances

the respondent who is not legally aided, we

respectfully submit, ought to be entitled to the

costs of the application.

MASON CJ:  Yes. What do you say about this, Mr Solicitor?

MR DOYLE:  What my friend says appears to fit in with what

Your Honours decided in a recent case, the name of

which just escapes me.	So there is nothing I wish
to say, Your Honours.

MASON CJ:  The application is refused with costs.

AT 12.32 PM THE MATTER WAS ADJOURNED SINE DIE

39

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