KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE AND EDELMAN JJ
THE QUEEN APPELLANT
AND
KRITSINGH DOOKHEEA RESPONDENT
The Queen v Dookheea
[2017] HCA 36
13 September 2017
M159/2016
ORDER
1.Appeal allowed.
2.Set aside the orders of the Court of Appeal of the Supreme Court of Victoria made on 12 April 2016 and, in their place, order that:
(a)the application for leave to appeal against conviction is granted;
(b)the appeal is treated as instituted and heard instanter and is dismissed.
On appeal from the Supreme Court of Victoria
Representation
G J C Silbert QC with B L Sonnet for the appellant (instructed by Solicitor for Public Prosecutions (Vic))
O P Holdenson QC with C A Boston for the respondent (instructed by Stary Norton Halphen)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
The Queen v Dookheea
Criminal law – Criminal procedure – Jury directions – Standard of proof – Where jury directed that Crown required to prove accused's guilt not beyond any doubt but beyond reasonable doubt – Whether such direction error of law – Whether such direction productive of substantial miscarriage of justice.
Words and phrases – "any doubt", "beyond reasonable doubt", "fanciful doubt".
KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE AND EDELMAN JJ. The question for decision in this appeal is whether the Court of Appeal of the Supreme Court of Victoria (Maxwell P, Redlich JA and Croucher AJA) erred in holding[1] that it was an error of law productive of a substantial miscarriage of justice for the trial judge (Emerton J) to direct the jury that the Crown did not have to satisfy the jury of the respondent's guilt "beyond any doubt, but beyond reasonable doubt". As the authority of this Court stands, it is generally speaking undesirable for a trial judge to direct a jury in terms which contrast proof beyond reasonable doubt with proof beyond any doubt. But, for the reasons which follow, it was not an error to do so in the circumstances of this case.
The respondent ("Dookheea") was arraigned before a judge of the Supreme Court of Victoria on one charge that he did at Tarneit in Victoria on 9 May 2013 murder Faisal Zazai ("the deceased"). On 15 May 2014, Dookheea pleaded not guilty to murder but guilty to manslaughter, but the Crown did not accept that plea in discharge of the indictment and so the matter proceeded to trial. The sole issue at trial was whether Dookheea had acted with murderous intent. At the conclusion of the trial, Dookheea was convicted of murder and sentenced therefor to 19 years' imprisonment with a non-parole period of 15 years.
The case at trial
The Crown case at trial was that the deceased had been the owner of a pizza store business one store of which was managed by Dookheea's wife, Ms…
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.
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AGLC
The Queen v Dookheea [2017] HCA 36
Case
[2017] HCA 36
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by the Crown against a decision of the Court of Appeal of the Supreme Court of Victoria. The dispute concerned a jury direction given by the trial judge in the case of *The Queen v Dookheea*. The respondent, Dookheea, had been convicted of murder. The Court of Appeal had found that the trial judge's direction to the jury regarding the standard of proof was an error of law that resulted in a substantial miscarriage of justice.
The central legal issue before the High Court was whether the trial judge erred in directing the jury that the Crown was required to prove the respondent's guilt not "beyond any doubt" but "beyond reasonable doubt". This direction contrasted the required standard of proof with a potentially higher, absolute standard.
The High Court reasoned that while it is generally undesirable to contrast proof beyond reasonable doubt with proof beyond any doubt, such a direction was not an error in the circumstances of this case. The Court noted that it is a common and encouraged practice in some Australian jurisdictions, including Victoria, to contrast the standard of proof beyond reasonable doubt with the lower civil standard of proof on the balance of probabilities. This practice serves to effectively convey to a jury the high standard of satisfaction required for a criminal conviction, distinguishing it from mere possibility or likelihood. The Court affirmed that a reasonable doubt does not encompass fanciful possibilities.
The High Court allowed the appeal, setting aside the orders of the Court of Appeal. In their place, the High Court ordered that the application for leave to appeal against conviction to the Court of Appeal be granted, and that the appeal be dismissed.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the orders of the Court of Appeal of the Supreme Court of Victoria made on 12 April 2016 and, in their place, order that:
(a) the application for leave to appeal against conviction is granted;
(b) the appeal is treated as instituted and heard instanter and is dismissed.
Background
Background to the litigation
KIEFEL The question for decision in this appeal is whether the Court of Appeal of the Supreme Court of Victoria (Maxwell P, Redlich JA and Croucher AJA) erred in holding[1] that it was an error of law productive of a substantial miscarriage of justice for the trial judge (Emerton J) to direct the jury that the Crown did not have to satisfy the jury of the respondent's guilt "beyond any doubt, but beyond reasonable doubt". As the authority of this Court stands, it is generally speaking undesirable for a trial judge to direct a jury in terms which contrast proof beyond reasonable doubt with proof beyond any doubt. But, for the reasons which follow, it was not an error to do so in the circumstances of this case. [1]Dookheea v The Queen [2016] VSCA 67 at [89]. Facts The respondent ("Dookheea") was arraigned before a judge of the Supreme Court of Victoria on one charge that he did at Tarneit in Victoria on 9 May 2013 murder Faisal Zazai ("the deceased"). On 15 May 2014, Dookheea pleaded not guilty to murder but guilty to manslaughter, but the Crown did not accept that plea in discharge of the indictment and so the matter proceeded to trial. The sole issue at trial was whether Dookheea had acted with murderous intent. At the conclusion of the trial, Dookheea was convicted of murder and sentenced therefor to 19 years' imprisonment with a non-parole period of 15 years. The case at trial The Crown case at trial was that the deceased had been the owner of a pizza store business one store of which was managed by Dookheea's wife, Ms Ramjutton. At relevant times, Dookheea and Ms Ramjutton were in significant financial debt and faced eviction from their home. On the evening of 9 May 2013, the deceased went to Dookheea's and Ms Ramjutton's home to collect the takings from the store managed by Ms Ramjutton. Earlier that day, Dookheea had gambled away the takings at the Crown Casino. The evidence showed that shortly after the deceased arrived at the home, a violent physical altercation started between Dookheea and the deceased in the kitchen and then continued on the front lawn as the deceased attempted to flee from Dookheea and Ms Ramjutton. It was accepted that Dookheea had placed his hands around the deceased's neck and squeezed until the deceased stopped resisting. Dookheea and Ms Ramjutton then dragged the deceased's body into the house and placed it in a spare room, where Dookheea sat on the deceased's back. Shortly afterwards, the police arrived. Expert medical evidence pointed strongly towards the deceased having died as the result of neck compression (or strangulation). When first questioned by police, Dookheea stated that the deceased had come to his home in the belief that Ms Ramjutton would be at home alone and that the deceased had attempted to sexually assault her. Dookheea claimed that, when Ms Ramjutton cried out for help, he intervened to assist her and a fight ensued during which the deceased suddenly went limp while on the front lawn. Dookheea said that he had taken the deceased back into the house in order to prevent the deceased escaping.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE AND EDELMAN JJ
Secondly, although, as authority stands, it is generally speaking unwise for a trial judge to attempt any explication of the concept of reasonable doubt beyond observing that the expression means what it says and that it is for the jury to decide whether they are left with a reasonable doubt (and in certain circumstances explaining that a reasonable doubt does not include fanciful possibilities[58]), the practice ordinarily followed in Victoria, as it was in this case, and often followed in New South Wales, includes contrasting the standard of proof beyond reasonable doubt with the lower civil standard of proof on the balance of probabilities[59]. That practice is to be encouraged. It is an effective means of conveying to a jury that being satisfied of guilt beyond reasonable doubt does not simply mean concluding that the accused may have committed the offence charged or even that it is more likely than not that the accused committed the offence charged. What is required is a much higher standard of satisfaction, the highest known to the law: proof beyond reasonable doubt. [58]Green (1971) 126 CLR 28 at 33. [59]Judicial College of Victoria, Victorian Criminal Charge Book, (2017) at 1.7.2. See also Judicial Commission of New South Wales, Criminal Trial Courts Bench Book, (2017) at [1.480], [1.490]; Ho (2002) 130 A Crim R 545 at 548 [15] per Bell J (Meagher JA and Hidden J agreeing at 562 [66], [67]); Ward v The Queen [2013] NSWCCA 46 at [54] per McClellan CJ at CL (Latham J and Adamson J agreeing at [246], [247]).Conclusion For these reasons, the appeal should be allowed. The orders of the Court of Appeal should be set aside. In their place, it should be ordered that leave to appeal to the Court of Appeal be granted and the appeal be dismissed.
Ratio Decidendi
Legal Principle Established
Established by:
KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE AND EDELMAN JJ