The Queen v Dookheea

[2016] HCATrans 284

[2016] HCATrans 284

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M61 of 2016

B e t w e e n -

THE QUEEN

Applicant

and

KRITSINGH DOOKHEEA

Respondent

Application for special leave to appeal

FRENCH CJ
KIEFEL J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 18 NOVEMBER 2016, AT 10.02 AM

Copyright in the High Court of Australia

MR B.L. SONNET:   If the Court pleases, I appear on behalf of the applicant.  (instructed by Office of Public Prosecutions)

MR O.P. HOLDENSON, QC:   May it please the Court, I appear with my learned friend, MS C.A. BOSTON, for the respondent.  (instructed by Stary Norton Halphen)

FRENCH CJ:   Thank you, Mr Holdenson.  Yes, Mr Sonnet.

MR SONNET:   Your Honours, in relation to this application for special leave, the Crown raises for consideration the content of the standard of proof direction that is given to a jury in a criminal trial.  In this particular matter, a 10‑day murder trial resulted in a conviction for murder.  An appeal to the Court of Appeal was allowed.  There were three grounds of appeal but the ground that was allowed related to the direction that the trial judge had given to the jury in respect of standard of proof.

The impugned direction has been extracted by the court at paragraph 86 of their judgment and that is to be found at page 111 of the application book.  The direction in question related to an instruction by the judge that the Crown did not have to satisfy the jury beyond any doubt but beyond reasonable doubt.

KIEFEL J:   The critical issue in the case was intention?

MR SONNET:   That is so, your Honour.  That was the only issue related to the mental intent.  All the respondent at the time ‑ ‑ ‑

FRENCH CJ:   Across any act that would have been responsible for death?

MR SONNET:   Yes, that is so, your Honour.  So it was a trial fought on a single issue in relation to the mental element of the respondent at the time of the death of the victim.  The court’s conclusion can be found at paragraph 89 of their judgment and that is to be found at page 112 of the application book.  The court concluded that that direction, which included that instruction, was a misdirection, it was a fundamental misdirection and that a retrial had to be ordered.

The reasoning of the court can be found at paragraph 90, again on page 112 of the application book and, in short, the court makes reference to a decision of the South Australia Court of Criminal Appeal in Compton.It refers to the respective judgments of Chief Justice Kourakis and Justice Peek.  It accepts their analysis and for those reasons finds that the instruction that was contained in the direction was fatal.

Now, there are two points that the Crown seeks to raise in this application for special leave.  The impugned direction occurred during a charge where the jury had been instructed on no less than 25 occasions that they were required to find each element proven beyond reasonable doubt.

FRENCH CJ:   Well now, what is the premise for this line of argument?  Is it that there may have been an error or irregularity but there was no substantial miscarriage of justice?

MR SONNET:   Yes.  There are two points.  The first point is we say there is no error.  The second point is, if there be an error, we say it was cured by the other directions that the jury were given during the trial.  So during the currency of the charge ‑ ‑ ‑

FRENCH CJ:   So that second line of argument, is that covered by your ground 1 at 118?

MR SONNET:   The ground that is contained in the application is simply a ground relating to the error and we say that is the primary point.  So if leave were to be granted in relation to the primary point, we would seek leave to add that additional ground, but the primary point we make is that it is not a misdirection to include that instruction in a direction to the jury.

KIEFEL J:   Do you say it is innocuous?

MR SONNET:   We say it is at best unhelpful, undesirable, but not a misdirection.

FRENCH CJ:   But if wrong, not a miscarriage.

MR SONNET:   And the fall‑back position is, if wrong, does not occasion a miscarriage of justice, particularly in the circumstances of this case, but the primary point is it is not a misdirection.

Now, in Compton, which is referred to by the Court of Appeal in their judgment, that particular decision involved separate judgments of the three members of the court, there was a dissenting judgment by Justice Stanley but more particularly, in the judgment of Chief Justice Kourakis, his Honour accepted that the decision of the court was contrary to other lines of authority.  That is to be found in his judgment.

His Honour refers to the decision of the Northern Territory Court of Criminal Appeal in Ladd and also to the decision of the Court of Criminal Appeal in Neilan where opposite conclusions had been reached on the very same point.

GORDON J:   It is interesting his Honour the Chief Justice does not deal with the position in England, which is different again.

MR SONNET:   And that is the point that we seek to make.  We can refer you to the position in New Zealand and in Canada.  So our aid against the Court’s finding are a number of judgments from intermediate Courts of Appeal in Australia and also from overseas.  The only decision that the Court can refer to as a justification for overturning the particular conviction is the court’s judgment in Compton. 

There is a divergence in approach, as I have already indicated, and that extends to New South Wales and there is reference to a number of authorities which are extracted in the judgment in Ladd.  There is a divergence in respect of earlier authorities in Victoria.  I have made a reference to Neilan’s Case, Demetrou is another decision.  So there is a long line of authority which points the other way in terms of whether this particular direction that had been given by the trial judge was erroneous in all circumstances.

So it is a simple point that the Crown seeks to make and that is the primary position.  The secondary position is, given the context in which the charge had been given to the jury, no exception had been taken by defence counsel, the handing of an aide memoire which contained a short summary of the elements and also, again, repeated reference to standard of proof in conventional terms, we say that any vice in the instruction had been cured in all the circumstances.

In respect of Compton, Chief Justice Kourakis accepted that a direction in similar terms simply invited the jury to scrutinise any doubt they held for signs of unreasonableness.  His Honour accepted that it was not as a matter of logic a misdirection in law but it had that practical effect. 

The Crown takes issue with that.  We say that a direction which contains an instruction that the Crown does not need to prove its case beyond any doubt or beyond all doubt, or beyond absolute certainty, really relates to a contrasting with different standards of proof and does not involve an invitation to the jury to evaluate their mental processes in all the circumstances.

So that is how the Crown puts its case in respect of this application.  The primary point, no misdirection as a consequence of that particular instruction, and the second point in the alternative is that, if it be a misdirection, then in all the circumstances no substantial miscarriage of justice was occasioned in the circumstances of this particular case.  They are the matters that the Crown wishes to put in this application.

FRENCH CJ:   Yes, thank you.  Yes, Mr Holdenson.

MR HOLDENSON:   At the time when the learned trial judge gave the impugned direction within her charge to the jury – that is, the impugned direction which really commences at the foot of page 24 of the application book and over to page 25 – the learned trial judge had just identified the sole issue to be determined by the jury, namely, whether or not the Crown had proven the requisite mens rea as accompanying or being coincident with the actus reus for the offence of murder.

So this is the passage within the charge to the jury which constitutes what can only be described, in our submission, as “the crucial passage”.  This is where her Honour says this is what you must focus on.  What the respondent says about that passage more particularly at the head of page 25 of the application book, and perhaps I ought read out those two lines at line 6 and 7 of page 25.  It reads:

And the Crown has to have satisfied you of this not beyond any doubt, but beyond reasonable doubt.

What the respondent says about that passage is this.  There are two points.  First, her Honour has erred in her directions concerning the criminal standard and its application and, the second point, her Honour has expressed those directions in such a manner that there is a real risk that the jury, in proceeding toward conviction – and indeed they did convict – have engaged in an impermissible mode or process of reasoning.  If I can explain those two points.

KIEFEL J:   Mr Holdenson, in the way it was put by the trial judge, would it not have conveyed an emphasis upon beyond reasonable doubt because she says “not beyond any doubt, but beyond reasonable doubt”?  Does that simply not emphasise the requirement of reasonable doubt?

MR HOLDENSON:   No.  In our submission, no, and we say that primarily for this reason.  In which line 7, to which your Honour Justice Kiefel has in effect just taken me, her Honour draws a real distinction between a thing called “a doubt” and a thing called “a reasonable doubt”.  There is within that one line the phrase “beyond any doubt” on the one hand and on the other hand “not beyond reasonable doubt”.  What her Honour has there done is first explained or defined or described perhaps all the previous directions to which Mr Sonnet referred in the charge.  Her Honour has there defined what is the criminal standard of proof.

What her Honour – and I am yet to complete my answer to your Honour Justice Kiefel’s question, but what her Honour has not done at that point is drawn a distinction between certainty and the criminal standard because the phrase is “any doubt”, not “all doubt”.  To conclude the answer to your Honour Justice Kiefel’s question, what her Honour has there done in drawing a distinction between a thing called a doubt and a thing called a reasonable doubt is her Honour has given the word “reasonable” in that phrase “beyond reasonable doubt” – suggest pausing there – her Honour has broken up a composite phrase.

It is no longer the composite phrase of “beyond reasonable doubt” but her Honour has opened it up and identified one of its components, which in our submission is impermissible in any event, and drawn attention to and given a meaning to that word “reasonable” which is referrable to the magnitude or the degree of strength of the doubt entertained by each juror in circumstances where the composite phrase “beyond reasonable doubt” simply means the doubt which the jury entertains at the end of the day, the jury being a collective body of reasonable persons which produces reasonable decisions.

That is the point, albeit only within a sentence in this Court’s joint judgment in Green v The Queen (1971) 126 CLR 28 and your Honours will see that case cited in our summary of argument and indeed it was one of the two cases upon which particular reliance was placed by the court below. Your Honours will see at the foot of page 32 – and perhaps I should draw attention to this by reason of the manner in which the argument has been put against us at least in writing – the second last paragraph on the page, the court identifies the first basis upon which the directions in that case were held flawed and then in the last paragraph on the page, the last two lines, the second basis. The second sentence reads:

A reasonable doubt is a doubt which the particular jury entertain in the circumstances.

So, the effect of that, which has been followed for more than 50 years, is that in a particular case upon each and all of the 12 individual jurors concluding that he or she holds a doubt, when it is all 12 then there is a reasonable doubt  ‑ collective doubt, reasonable persons.  So that is the first way in which we say that that passage, albeit only a sentence but at the crucial point of her Honour’s charge to the jury, is flawed.

The second basis is this.  Following on from the manner in which her Honour has expressed herself there – that is, the juxtaposition drawn by her Honour between doubt and reasonable doubt – it leads to impermissible reasoning for these two reasons.  First, it actually suggests to the jurors that they should engage in a two‑stage or two‑step process:  namely, one, “Do I have a doubt?”, and step two, “If yes, is that doubt a reasonable doubt?”

The effect of that is to direct, perhaps invite, but direct the jury to measure or evaluate the size, the magnitude, the nature, the degree of strength of the doubt to determine whether it is a reasonable doubt or whether it is something lesser, a lesser doubt, and again, by reference to the next passage in the joint judgment in Green’s Case, impermissible.  Jumping a few lines from where I got to, about the fifth line of page 33:

They are both unaccustomed and not required to submit their processes of mind to objective analysis of the kind proposed in the language of the judge in this case. “It is not their task to analyse their own mental processes”.

And that is the prohibition upon the two-stage process – “Do I have a doubt?  If yes, is it a reasonable one?”  But what is more, as was expressly and very shortly pointed out by the court below, the practical effect or consequence of what is set out at lines 6 and 7 is that a juror, in following that very crystal clear direction, could discount the doubt which he or she held toward the end of his or her deliberations but yet convict.  In other words, the practical effect is that the jurors were told that you can have a doubt but you can still convict.

FRENCH CJ:   Did the Court, in the reasoning set out at page 112, address the criterion in section 276 of the Criminal Procedure Act for a substantial miscarriage of justice?  This is, I suppose, the second point that is made by –

MR HOLDENSON:   Paragraph 89:

The standard of proof being fundamental to a fair trial –

So in other words ‑ ‑ ‑

FRENCH CJ:   One can accept that, but the question is there were repeated statements of the appropriate standard of proof expressed in terms of beyond reasonable doubt in the course of the judge’s direction, are they to be disregarded or should the court have considered those?

MR HOLDENSON:   Your Honour has asked me two questions.  First, in my submission, the Court was well alive to section 276.  I say that for two reasons:  paragraph 89, which speaks in terms of fundamental – my word – irregularity. 

One only needs go to the other side of the application book, page 113 at paragraph 93, where your Honours will see footnoted the relevant provisions, albeit not quite on this point, but it could not be said that the court were not alive to what we once called the proviso but what we do not now call the proviso because we have been told not to. So the court were were well alive to that.

Secondly, in circumstances where at pages 24 and 25 the court is telling the jury in no uncertain terms, “This is what this case turns on,” it in effect overtakes the entirety of the previous references to beyond reasonable doubt where there is no explanation given or alternatively it can be seen as, if you like, a key or a legend.  So albeit the phrase is not, “When I have previously told you” – that effectively is what her Honour is doing in those two lines at page 25 of the application book.

GORDON J:   The counsel did not object to it, took no exception to it.

MR HOLDENSON:   Well, Mr Sonnet is correct.  Defence counsel took no exception but the Crown likewise comes under an obligation in these cases to take the point and the prosecutor was also silent in failing to taken an exception.

GORDON J:   Maybe because the view was taken by those there that in the context of the entire charge it was not exceptionable.

MR HOLDENSON:   In my submission, that is the point.  Unfortunate as it is, the point was missed and, as is said in paragraph 89, fundamental irregularity.  But there is a sting in this.  The sting is this.  The charge, as in the transcript of the charge, went into the jury room for their deliberations, so that error is, if you like, compounded by the fact that the jury had that transcript when they deliberated.

My friend has put up a few more points today.  He has made reference to Compton’s Case and how it in turn makes reference to the Northern Territory case of Ladd and the Victorian case of Neilan but upon a reading of Neilan, it is absolutely clear that a court nevertheless accepted the propositions that the direction, as in this case, was erroneous.  Could I take your Honours to Neilan (1992) 1 VR 57 where at line 39 on page 71:

In the absence of any request from the jury for elucidation, it is, however, undesirable for a judge to tell the jury that they should first consider whether they have a doubt and then consider whether that doubt is a reasonable one.

That is what we say occurred here.  Jumping a sentence but not to mislead the Court:

It is, in general at all events, undesirable for a judge even, instead of using the composite phrase "a reasonable doubt" or "beyond reasonable doubt", to distinguish between the doubt and its reasonableness.

Now, unfortunate it might be that no one took the point at trial, it has been pretty clear since 1971 when Green’s Case was decided that this is what “proof beyond reasonable doubt” means.  You do not break up the phrase, you do not focus on the word “reasonable” and what flows therefrom.  A doubt entertained by a jury at the end of the day is called a reasonable doubt and this jury was denied the opportunity of giving effect to that fundamental proposition of law by reference to what was said at lines 6 and 7.

In any event, your Honours have put to me within your Honours’ questions whether or not the court considered the question of ‑ the word we should not use – proviso, substantial miscarriage of justice and so on.  This case is a case which is confined to its own particular facts and in that regard there is a little bit more on page 25 of the application book.  That direction comes at a point in time when on the same page at lines 2 and 3 the judge tells the jury:

You do not have to work out –

the question of mens rea ‑

definitively ‑

a direction just a few lines from the impugned direction here but a direction not only capable of undermining or diluting the criminal standard but it comes at a point in time when the jury are being told what they are told about doubt and reasonable doubt.  And then what fuels this, what compounds the likelihood of the jury analysing the nature, magnitude or strength of their doubt is that we have at lines 11 or 12, by reference to another phrase made up of some ordinary English words, not a technical legal phrase, the phrase “really serious injury”:

it is for you as jurors to determine what that phrase means to you.

So what we have here, in my submission, like so many of these cases that there have been in the intermediate appellate courts over the last 20 or 30 years where there have been challenges to directions concerning the standard of proof, we have got a particular passage different from every other case, confined to its own circumstances and in respect of which this Court ordered a retrial, not therefore appropriate in our submission for a grant of special leave, no point of public importance here, no question of the ‑ ‑ 

FRENCH CJ:   Mr Holdenson, I am not sure whether this was covered in the question that Justice Gordon put to you earlier but these very words in both of the passages you just quoted appeared in the draft direction which was submitted to counsel by the trial judge, appears at page18 of the supplementary appeal book in paragraphs 62 and 63.

MR HOLDENSON:   Yes. 

FRENCH CJ:   Now, can one infer, perhaps, from the fact that no issue was raised about that that the overall effect of the directions as adjudged by counsel at trial in those circumstances was that the jury was being directed appropriately as to the relevant standard?  The way you are putting it, the way the court treats it as a fundamental issue, there should have been red lights flashing around this.

GORDON J:   To pick up on that point, that is the approach adopted in England since at least Walter’s Case, that in a sense the judge judges the jury and he or she sits there and assesses them over the 10 days of the trial and delivers the appropriate directions, counsel take no objection.

MR HOLDENSON:   Your Honour, what we have here is a misapprehension and a misunderstanding of Green’s Case.  Green’s Case is the law.  This is inconsistent with, indeed contrary to Green’s Case, and so – I do not like to say this on transcript – the ignorance of counsel as to Green’s Case and the consequence of Green’s Case is, with respect, fatal.  I do see, however ‑ ‑ ‑

GORDON J:   I think with respect that the direction set out in Green’s Case is very different from the direction being considered here.

MR HOLDENSON:   Well, should I say the two bases, for our purposes the second basis upon which Green’s Case was decided and it is just in that passage at the foot of 32 to the top of 33, preceded by “In the second place”.  Yes, the directions were very different, much more detail.  However, at the end of the day it turned on two points and I am focusing on the second point.

There is some support for the proposition, I might say, that defence counsel at least misapprehended the point because at one point in his final address to the jury he said “If you have a doubt, then you have a reasonable doubt”.  That was at page 509 of the transcript of the trial, “If you have a doubt, if you have a reasonable doubt,” said defence counsel.

So, in short, notwithstanding the care taken by the learned trial judge it has been a flaw and it is a fundamental flaw, and the court was alive to the fundamental nature of it and the result is a retrial.  Justice Gordon has raised on several occasions English cases.  The law in England is different.  The law in Canada and New Zealand are likewise different, recognised in the case that has assumed significance in this case in the South Australian case of Compton & Barratt. Your Honours will see there footnoted reference to the Canadian case Lifchus, the New Zealand case Wanhalla and the English cases.

As was said a long time ago, as I recall, by Chief Justice Dixon, none of these directions in other overseas jurisdictions have prospered.  Now in England the direction is rather different.  It includes you being “sure”.  That is not the law in Australia and there is no suggestion in this case that it is an appropriate time for this Court to consider whether or not we follow those cases, particularly in circumstances where the Parliament, in enacting the Jury Directions Act, and indeed in re-enacting it 2015, saw fit not to change the law with respect to the criminal standard and the manner in which it be expressed to the jury.  Your Honour Chief Justice French spoke of red lights.  Well, I do have a red light.

FRENCH CJ:   You do indeed, thank you, Mr Holdenson.  Yes, we will not need to call on you in reply, Mr Sonnet.  There will be a grant of special leave subject to – you will need to amend your notice of appeal to accommodate the ‑ ‑ ‑

MR SONNET:   Indeed, your Honours.

MR HOLDENSON:   Your Honour, I have an application to make with respect to the grant of special leave.  In my submission, it is appropriate that there be a condition imposed that the now appellant or the appellant‑to‑be pay the respondent’s costs of this application and that is dealt with in part of the application book of both this appellant and the appeal.

FRENCH CJ:   Sorry, the basis being?

MR HOLDENSON:   The basis being this is a case where point not taken at trial by the Crown.

KIEFEL J:   Or by the defence.

MR HOLDENSON:   Or by the defence, but the error being described as fundamental and that characterisation ‑ ‑ ‑

KIEFEL J:   That is the question which has not been determined.

MR HOLDENSON:   The court below described it as fundamental and my friend has come along here now with a ground of appeal complaining of substantial miscarriage of justice, albeit that requires an amendment.  So, in my submissions, it is appropriate that there be, first of all, if I could just remind your Honours of what is to be found in the respondent’s summary of argument, it is at page 137 of the application book.  Your Honours will see it at about line 20 on the page, paragraphs 16 and 17, which I will not read out, particularly if there is going to be a launch into English authority.

FRENCH CJ:   We will not so condition the grant of special leave but of course it does not preclude you from running that argument at the appeal.  Mr Sonnet, if you are going to run that second line of argument, you will need to amend your notice of appeal accordingly.  That should be done within seven days.

MR SONNET:   Indeed, your Honours.

FRENCH CJ:   There is a timetable which is available to the parties.  We will now adjourn to reconstitute.

AT 10.34 AM THE MATTER WAS CONCLUDED