R v Wanhalla
[2006] NZCA 229
•24 August 2006
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IN THE COURT OF APPEAL OF NEW ZEALAND
CA321/05
CA324/05THE QUEEN
v
JOHN RAYMOND WANHALLA
RHEANNA KATE COURTHearing:11 May 2006
Court:William Young P, Glazebrook, Hammond, Chambers and Robertson JJ
Counsel:R G Glover for Appellants
M D Downs and J L Verbiesen for Crown
Judgment:24 August 2006 at 2.15 pm
JUDGMENT OF THE COURT
The appeals are dismissed.
REASONS
William Young P, Chambers and Robertson JJ[1]
Glazebrook J [58]
Hammond J[138]WILLIAM YOUNG P, CHAMBERS AND ROBERTSON JJ
(Given by William Young P)
Table of Contents Para No
Introduction [1]
Factual background [3]
The basis of the appeal [10]
General grounds of appeal [11]
The Judge’s standard of proof directions [20]
Overview of what the Judge said as to standard of proof [22]
The provenance of the Judge’s remark that absolute
certainty is not required [24]
The provenance of the Judge’s direction that the jury “should be as sure
about the conclusion of guilt as they would want to be about making
an important decision in the context of their own personal lives”. [26]
R v Adams CA70/05 5 September 2005 and
R v Jopson CA24/05 25 November 2005 [31]
Practice in other jurisdictions [33]
England and Wales [33]
Australia[35]
Canada[37]
Best practice [39]
This case[54]
Disposition[57]
Introduction
[1] These appeals, now confined to conviction only, involve an important issue as to how trial Judges should sum up to juries on the meaning of the concept of proof beyond reasonable doubt.
The case accordingly provides an opportunity for this Court to reconsider existing authorities and practice.
Factual background
The appellants, John Raymond Wanhalla and Rheanna Kate Court, were tried, along with three others, in the District Court at Christchurch before Judge Abbott and a jury on an indictment alleging one count of aggravated burglary and three counts of injuring with intent to cause grievous bodily harm. The charges arose out of a home invasion which occurred on 30 July 2004.
On the Crown case, there had been an incident involving Mr Wanhalla’s younger sister which Mr Wanhalla and a number of his associates, including his girlfriend Ms Court, saw as warranting retribution. By way of response, the two appellants, along with others, drove from Rangiora (where the discussion about retribution had taken place) to Culverden (where those who were thought responsible for what had happened to Mr Wanhalla’s sister lived). Three vehicles were involved. A number of weapons were taken, including a metal pipe, cricket wickets and bottles. The vehicles stopped some distance from the house. Some of the group entered the victims’ house. They were armed and disguised. They attacked the victims with kicks, punches and blows with the weapons. The three victims suffered significant injuries. There was also much associated damage to property both within the house (including to a television set) and also to three vehicles which were parked outside.
The police intercepted one of the three vehicles on the return trip to Rangiora. Inside they found six people including Mr Wanhalla and Ms Court. There was a metal pipe in the rear floor well. Mr Wanhalla and Ms Court subsequently gave exculpatory but untrue statements to the police.
One of the vehicle’s occupants (a young man called Solly) later acknowledged his involvement in the offending and gave somewhat grudging evidence for the Crown at trial. That evidence implicated Mr Wanhalla and, to a lesser extent, Ms Court.
There was a good deal of other evidence implicating both appellants in the offending. In the case of Mr Wanhalla:
(a)The offending involved retribution for conduct directed towards his sister;
(b)A blood stain which almost certainly came from one of the victims was found on his hooded sweatshirt; and
(c)Glass fragments found on his shoes had the same refractive index as glass from the television set that had been damaged in the course of the offending.
Unsurprisingly, at trial counsel for Mr Wanhalla acknowledged that Mr Wanhalla had gone into the victims’ house on the night of the offending.
The case against Ms Court was also formidable:
(a)She undoubtedly travelled from Rangiora to Culverden and was located by the police shortly after the offending in a vehicle with Mr Wanhalla and a weapon;
On 28 and 30 July 2004 a significant number of text messages were sent from her cellphone to the cellphone of one of the co-offenders. The person who sent these text messages was seeking to recruit that co-offender in the attack on the victims’ house. Given that the messages were sent from Ms Court’s phone, the number of messages sent, the period of time over which they were sent and their content, it was well open to inference that it was Ms Court who had sent them.
As indicated, both appellants had made exculpatory statements to the police which were untrue. Neither gave evidence. In the circumstances, the verdicts of guilty which the jury returned on all counts were practically inevitable.
The basis of the appeal
The primary, and important, issue in the case involves the way in which the Judge summed up to the jury on the standard of proof. But the appellants also raised other arguments which can be conveniently addressed before we turn to the standard of proof directions.
General grounds of appeal
The grounds as pressed in argument were much more limited than those signalled in the notices of appeal and written submissions.
Mr Glover (who appeared in this Court for both appellants but only for Mr Wanhalla at trial) asserted that the Crown had presented its case against Mr Wanhalla on the footing that he was one of two principal offenders. He also told us that the defence mounted for Mr Wanhalla at trial was that whatever he may have had in mind when he left Rangiora, by the time he arrived at the scene of the incident in Culverden his intentions were peaceful, and that, further, when he entered the house, this was to prevent any further violence taking place.
Mr Glover maintained that the appellant’s intention at the time that he entered the house was central and that the directions which the Judge gave to the jury on this point, in relation to the aggravated burglary count, were inadequate. He also complained that the Judge’s summing up, which left it to the jury to convict on the basis that Mr Wanhalla was a party, did not reflect the Crown case, which was that Mr Wanhalla was a principal offender.
When the summing up is read as a whole, along with a preliminary memorandum which the Judge had given the jury at the start of the trial, it is apparent that the Judge did make it clear to the jury that it should find Mr Wanhalla guilty of aggravated burglary as a principal only if satisfied that he intended to commit a crime in the house when he entered it. Further, and without opposition from Mr Glover, Mr Downs for the Crown made available to us notes of the opening and closing addresses of the prosecutor. These notes make it perfectly clear that the Crown case against Mr Wanhalla was put on the basis that he was either a principal offender (and plainly that was the primary allegation) or a party.
In those circumstances we are satisfied that the jury was adequately addressed as to the elements of the offence and that the way that the Judge summed up fairly reflected the case for the Crown.
A final matter raised in argument, but not in the end pursued on behalf of Mr Wanhalla, related to the way the Judge directed the jury as to Mr Solly’s evidence. We are in any event satisfied that there is nothing in the underlying complaint.
On the Crown evidence the appellant Ms Court did not go into the house. The case against her proceeded on the basis that she was party to the offending.
Although the written submissions on behalf of Ms Court complained about the directions given by the Judge as to party liability, this aspect of the case was not pressed firmly in argument at the hearing of the appeal. This was understandable, as there was no error in the relevant directions. Instead, the primary complaint made by Mr Glover before us came down to an assertion that the verdicts were wrong. The reality, however, is that the evidence against her was formidable and unanswered (as her exculpatory statement was shown to have been untrue and she did not give evidence).
Accordingly, in her case, as in the case of Mr Wanhalla, the only issue in the appeal that warrants close attention relates to the standard of proof directions.
The Judge’s standard of proof directions
As already indicated at the start of the trial, the Judge gave to the jury a preliminary memorandum. In this memorandum the Judge said:
The burden of proving a charge is on the Crown. It is for the Crown to prove a charge, and the elements of the offence which is the subject of that charge, to the standard of proof beyond reasonable doubt. In other words, you must be sure of guilt before you can find an accused guilty. If you are not sure of guilt, the verdict must not be guilty.
Conversely, an accused does not have to prove anything. That means that the accused are entitled, and have an absolute right, to elect not to give or call evidence.
There are three further points regarding the burden of standard of proof which you should bear in mind.
Firstly, a reasonable doubt means just that. A doubt which has no basis whatsoever is not a reasonable doubt. The Crown does not have to prove a charge to the point of scientific or mathematical certainty, in other words beyond all doubt. To return a guilty verdict you must therefore be sure but not necessarily absolutely certain, of guilt.
Secondly, it is a charge, and the elements of the offence which is the subject of that charge, in other words the conclusion of guilt, which the Crown must prove to the standard of proof beyond reasonable doubt. The Crown does not have to prove every incidental fact which arises during a trial, but it must prove those facts which are the elements of the offence in question.
Thirdly, you must apply the test of proof beyond reasonable doubt separately in respect of each charge and in respect of each accused.
…
[2] In his summing up the Judge said:
[61] As I explained on Monday, and as many or all of you were probably already aware, the standard of proof of a criminal charge in this country is known as proof beyond reasonable doubt.
[62] It is important to emphasise that that phrase has no special magic, and it means exactly what it says. Turned around the other way, ie into reverse, it means proof beyond a doubt which you, as the jury, as the judges of fact, regard as reasonable in the circumstances of the case.
[63] However, as I also said on Monday and in the memorandum, another accepted way of expressing the test of proof beyond reasonable doubt is to say that it involves being sure of guilt.
[64] If at the conclusion of your deliberations you are sure that an accused is guilty on a particular charge, it is your duty to find him or her guilty accordingly. On the other hand, if you are unsure of guilt, it is equally your duty to find that accused not guilty on the charge which you are considering.
[65] As I said both on Monday and in the memorandum, there are three further points about the burden of proof and the standard of proof which you must bear in mind.
[66] The first is simply by way of emphasis of the word “reasonable”.
[67] That word stresses that the Crown does not have to prove a charge to the point of absolute scientific or mathematical certainty, in other words beyond all doubt or any shadow of doubt. That proposition itself simply reflects the fact that, in making decisions about issues of human conduct or behaviour, it is impossible, generally speaking, to be certain to a mathematical or scientific standard.
[68] However, the standard of proof beyond reasonable doubt is nevertheless a high standard, and, rightly so, because it of course involves issues of guilt or otherwise of involvement in criminal conduct, and it is often said that members of a jury should be as sure about a conclusion of guilt as they would want to be about making an important decision in the context of their own personal lives.
Overview of what the Judge said as to standard of proof
The Judge’s directions on the standard of proof were far more elaborate than is customary in New Zealand trials. Most Judges direct the juries on the basis that the standard of proof beyond reasonable doubt is met if they “are sure”, or “feel sure”, that the accused is guilty, see R v Harmer CA324/02 26 June 2003. To the extent to which the concept of reasonable doubt is separately addressed, it is referred to as a doubt which the jury regards as reasonable in the circumstances of the case. What is a reasonable doubt is sometimes explained as being more than a “vague or fanciful doubt”, see R v Ross CA224/98 18 March 1999 at [14]-[18]. But, on the whole, as Ross indicates, the use of adjectives to qualify what doubts are not reasonable is seen as best avoided. No complaint was made by counsel of the Judge’s direction that:
A doubt which has no basis whatsoever is not a reasonable doubt.
Realistically, given Ross, any such complaint could not have succeeded.
In his directions, the Judge equated proof beyond reasonable doubt with the jury being sure of guilt and likewise referred to a reasonable doubt as being a doubt which the jury regard as reasonable in the circumstances of the case. But there were two respects in which the Judge’s directions were challenged in this Court:
(a)His statement that the jury could be sure of guilt even if “not necessarily absolutely certain” as made in the preliminary memorandum, along with the amplification in his summing up where he said that the Crown was not required to prove a charge “to the point of absolute scientific or mathematical certainty, in other words beyond all doubt or beyond any shadow of doubt”.
(b)The remark he made in [68] of the summing up to the effect “it is often said that members of a jury should be as sure about a conclusion of guilt as they would want to be about making an important decision in the context of their own personal lives”.
The provenance of the Judge’s remark that absolute certainty is not required
[3] The criminal standard of proof is not to be equated with certainty, see Miller v Minister of Pensions [1947] 2 All ER 372 at 373 per Denning J. Accordingly, it is open to a Judge to tell a jury that absolute certainty is not required. In England, this point was settled in R v Bracewell (1978) 68 Cr App R 44 at 49. There is also authority to the same effect in New Zealand. For instance, in R v Batt CA47/00 3 August 2000 the Judge had told the jury “you do not have to be certain, absolutely certain”. This Court dismissed a complaint as to that direction in this way:
Whilst the direction might have made the point more clearly if it had used the adjective “scientific” in describing certainty, the direction has to be looked at in the round. In our view it did not allow the jury to depart from the high standard of proof which was proof beyond reasonable doubt or the requirement that they must be sure of guilt. We do not think that the additional words would have detracted from that requirement in all the circumstances of the case. The jury must have known full well what they were required to do and the proper standard of proof required in a criminal case. We feel constrained to repeat that individual amendments to the standard direction often cause more problems than they solve.
In R v Reardon CA325/98 18 March 1999 the Judge had told the jury that:
beyond reasonable doubt does not mean that the Crown has to prove a charge to the point of certainty. That is because certainty is generally an impossible objective to achieve when discussing human affairs and human behaviour, and although in his address to you Mr Austin said that you had to be certain beyond all reasonable doubt, the first word of that phrase was incorrect, and the correct word would be "sure".
In commenting on this direction Richardson P observed:
As Mr France put it in his submissions, certainty can be seen as an absolute on the probability spectrum whereas sure is a state of mind. In telling the jury it had to be "sure" the Judge was using a conventional alternative description of the beyond reasonable doubt standard.
It is fair to say that there is not much, if any, difference in meaning between the sentences, “I am certain” and “I am sure”. As this example indicates, the word “certain” does not just identify “an absolute on the probability spectrum”; it also can denote a state of mind. It is for this reason that Judges when summing up should avoid distinguishing between being “sure” and being “certain”, cf R v Stephens [2002] EWCA Crim 1529. Where the concept of certainty is to be referred to, this should only be in its objective sense as signified by the Judge using words of qualification, eg “absolutely certain”, very much as Judge Abbott did here and indeed as the trial Judge did in Bracewell.
The provenance of the Judge’s direction that the jury “should be as sure about the conclusion of guilt as they would want to be about making an important decision in the context of their own personal lives”.
[4] This direction has a lengthy history.
Similar (indeed slightly less stringent) language was used by the trial Judge in R v Dagg [1962] NZLR 817. Further, a direction using language very similar to that employed by the Judge here was regarded as acceptable by the Privy Council in Walters v R [1969] 2 AC 26. There, Lord Gardiner noted at 30:
By the time he sums up the Judge at the trial has had an opportunity of observing the jurors. In their Lordships’ view it is best left to his discretion to choose the most appropriate set of words in which to make that jury understand that they must not return a verdict against a defendant unless they are sure of his guilt; and if the Judge feels that any of them, through unfamiliarity with court procedure, are in danger of thinking that they are engaged in some task more esoteric than applying to the evidence adduced at the trial the common sense with which they approach matters of importance to them in their ordinary lives, then the use of such analogies such as that used by [the trial Judge] in the present case, whether in the words in which he expressed it or in those used in any of the other cases to which reference has been made, may be helpful and is in their Lordships’ view unexceptional. Their Lordships would deprecate any attempt to lay down some precise formula or to draw fine distinctions between one set of words and another. It is the effect of the summing-up as a whole that matters.
(Emphasis in original)
It is important to note why the use of the analogy was seen by Lord Gardiner as appropriate. Some (although obviously not all) important decisions in everyday life require the decision maker to be sure. For instance, the driver of a car who is towing a trailer should not do so unless sure that the trailer is properly attached to the car. The purpose of the analogy is to demystify the decision making process for the jury by making it clear that being sure for the purposes of a criminal trial involves the same level of sureness which jurors will be accustomed to apply in their everyday lives.
An inverted version of this analogy is still employed by some Judges in England, who, in response to a jury request for further directions, are likely to respond by indicating that a reasonable doubt is the sort of doubt which might affect the mind of a person dealing with matters of importance in his own affairs, see for instance R v Stephens, and Archbold Criminal Pleading, Evidence and Practice (2005) at [4-385].
The analogy is also far from unknown in contemporary New Zealand criminal practice. In R v Speakman (1989) 5 CRNZ 250 (CA), one of the complaints of the appellant was that the Judge had not used this analogy. The Court, while noticing that the use of this particular analogy is not necessary, did not deprecate its use. Indeed, Walters has often been cited in this Court with approval, see for instance R v Ross, R v Harmer and R v Ropiha CA339/01 29 July 2003. In the first of those cases this Court at [20] noted:
Mr Lithgow argued that the reference to important decisions in the jurors’ own lives was misleading. He submitted that while such a formula appropriately brought home to the jury the serious attitude they should bring to their approach to their task, it was an inappropriate way of describing the standard of proof. We note however that in Walters the Privy Council considered such an analogy was helpful and unexceptionable in bringing home to the jury that what was required of them was the common-sense with which they approached matters of importance to them in their ordinary lives. The Privy Council emphasised that what was required, as a matter of judicial discretion, was the most appropriate set of words in which to make the particular jury understand they must not return a verdict against a defendant unless they were sure of guilt.
As well, the version of the Criminal Jury Trials Bench Book which was current at the time of the trial refers to Walters.
R v Adams CA70/05 5 September 2005 and R v Jopson CA24/05 25 November 2005
In two recent decisions, this Court has criticised directions as to the standard of proof which were very similar to those employed in this case and held that they were inappropriate.
In Adams, the Court said:
[59] The Judge’s elaboration as to the meaning of “beyond reasonable doubt”, beyond the straightforward direction to the jury that they must be sure of guilt, was in our view not only unhelpful, but wrong.
[60] The qualification in both the preliminary memorandum and the summing up “but not necessarily absolutely certain of it” carried a real risk of diluting and diminishing the clear direction that the jury must be sure. At best there was a risk that the jury would be confused as to the standard of proof required.
[61] The Judge went on to further qualify the straightforward direction that the jury must be sure of guilt, by stating that they would want to be as sure as “… when making an important decision in your own life”.
[62] Many factors are brought to bear when people make important decisions in their own lives. Such decisions may be influenced by elements of speculation, hope, prejudice, emotion. These factors frequently, and often quite appropriately, impact when people take important decisions in their own life. It is also likely, if not inevitable, that in taking such decisions the decision maker cannot be sure beyond reasonable doubt, but will decide on the balance of probabilities.
[63] The introduction by the trial Judge of additions and elaborations as to the meaning of “beyond reasonable doubt”, carried a real risk that the jury would at least be confused and quite likely would misunderstand their obligation to be sure of guilt beyond reasonable doubt.
[64] In this respect the Judge’s summing up was clearly wrong. The deficiencies in the direction as to the onus and standard of proof carried a real risk of an unsafe verdict and so led to a miscarriage of justice.
Jopson dealt with similar directions and the Court was content to follow what was said in Adams.
[28] [W]e echo what was said in Adams that directions made along the lines made by the Judge set out above are wrong. People can make important decisions in their own lives without being sure beyond reasonable doubt and solely on the balance of probabilities or as determined by elements of speculation, hope, prejudice, emotion. The language used is inappropriate and inept. It informs the jury that beyond reasonable doubt or sureness is to be evaluated at a lesser level than the law requires. It is an unnecessary misleading gloss on the standard directions.
[5] Counsel in Adams and Jopson did not refer to the cases discussed in [24] ‑ [25] (which establish that proof beyond reasonable doubt is not to be equated with certainty) and [26] – [30] (which deal with the important decisions in every day life analogy). Further, the judgments do not address the reason why the important decisions in jurors lives analogy has been utilised by judges for so many decades, see [28]. For these reasons, Adams and Jopson cannot be seen as controlling the outcome of the present appeals.
Practice in other jurisdictions
England and Wales
[6] The practice in England and Wales is broadly similar to New Zealand practice (see for instance R v Bentley [2001] 1 Cr App R 21). The model direction on standard of proof and the accompanying note in the specimen directions provided by the Judicial Studies Board are in these terms:
How does the prosecution succeed in proving the defendant's guilt? The answer is - by making you sure of it. Nothing less than that will do. If after considering all the evidence you are sure that the defendant is guilty, you must return a verdict of 'Guilty'. If you are not sure, your verdict must be 'Not Guilty'.
Note
Normally, when directing a jury on the standard of proof, it is not necessary to use the phrase 'beyond reasonable doubt'. But where it has been used in the trial, e.g. by counsel in their speeches, it is desirable to give the following direction: 'The prosecution must make you sure of guilt, which is the same as proving the case beyond reasonable doubt': see R v Adey, unreported (97/5306/W2), where the Court of Appeal cautioned against any attempt at a more elaborate definition of 'being sure' or 'beyond reasonable doubt'. Similarly in R v Stephens (2002) The Times, 27 June the CACD said that it was unhelpful to seek to distinguish between being 'sure' and 'certain'.
The formula “satisfied so that you are sure” (which largely comes from R v Summers (1952) 36 Cr App R 14 at 15) is often employed.
The primary difference between New Zealand and English practice is that English judges focus more on what is required to justify conviction rather than what warrants an acquittal, see for instance R v Kritz [1950] 1 KB 82 and R v Summers. So directions by way of elaboration of what constitutes a reasonable doubt are likely to be given only in response to a jury inquiry or, as the Judicial Studies Board note indicates, if counsel have addressed the topic.
Australia
In Australia, Judges direct juries that the prosecution must establish beyond reasonable doubt that the defendant is guilty, that the defendant is entitled to the benefit of any reasonable doubt and does not have to prove his or her innocence, see R vReeves (1992) 29 NSWLR 109 at 117 (CCA). Since the High Court decision in Green v R (1971) 126 CLR 28, trial Judges have been distinctly discouraged from any elaboration. If the prosecution case is circumstantial, it may be necessary to tell the jury that it must acquit if the facts proved leave innocence as a reasonable possibility, see for instance Knight v R (1992) 109 ALR 225 at 230-31 (HCA) and Reeves at 117. If a jury asks for a definition of “reasonable doubt”, it is legitimate to respond by explaining that such a doubt is one which the jury regards as reasonable, see R vChatzidimitriou (2000) 1 VR 493 (CA). But leaving aside cases which call for special directions or where juries ask questions, it has been said to be “positively mischievous” to elaborate on or explain the standard directions: Reeves at 117.
By way of illustration, here is the standard direction from the NSW Benchbook:
Let me now say something to you about the onus of proof. This is, as you have already been told more than once, a criminal trial of a most serious nature and the burden of proof of guilt of the accused is placed on the Crown. That onus rests upon the Crown in respect of every element of the charges. There is no onus of proof on the accused at all. It is not for the accused to prove [his/her/their] innocence but for the Crown to prove [his/her/their] guilt and to prove it beyond reasonable doubt.
It is, and always has been, a critical part of our system of justice that persons tried in this court are presumed to be innocent, unless and until they are proved guilty beyond reasonable doubt. This is known as the “presumption of innocence”. This expression “proved beyond reasonable doubt” is an ancient one. It has been deeply ingrained in the criminal law of this State for almost two hundred years and it needs no explanation from trial judges.
The Crown does not have to prove, however, every single fact in the case beyond reasonable doubt. The onus which rests upon the Crown is to prove the elements of the charges beyond reasonable doubt and I shall subsequently outline to you the elements of the charges.
In a criminal trial there is only one ultimate issue. Has the Crown proved the guilt of the accused beyond reasonable doubt? If the answer is “Yes”, the appropriate verdict is “Guilty”. If the answer is “No”, the verdict must be “Not guilty”.
Canada
In Canada, the leading cases are the Supreme Court decisions in R v Lifchus [1997] 3 SCR 320, R v Starr [2000] 2 SCR 144 and the so-called trilogy of cases, R v Russell [2000] 2 SCR 731, R v Avetysan [2000] 2 SCR 745 and R v Rhee [2001] 3 SCR 364. Judges are not permitted to direct juries that the words “proof”, “beyond” and “reasonable doubt” are ordinary everyday words and to be applied in that way. The Walters formula is not to be employed. Qualification of the word “doubt” with adjectives other than reasonable (ie “fanciful” or “insubstantial”) is not permitted save that Judges may say that a reasonable doubt must not be frivolous or imaginary. The concept of reasonable doubt is required to be contextualised by reference to the presumption of innocence and should be defined as a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence. Judges may also explain that absolute certainty is not required but must explain that more than proof on the balance of probabilities is necessary.
The direction approved in Lifchus was as follows:
The accused enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until such time as the Crown has on the evidence put before you satisfied you beyond a reasonable doubt that the accused is guilty.
What does the expression "beyond a reasonable doubt" mean?
The term "beyond a reasonable doubt" has been used for a very long time and is a part of our history and traditions of justice. It is so ingrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning.
A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.
Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.
On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high.
In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt.
Best practice
There are major difficulties with coming up with a form of words which is both internally consistent and effective to communicate accurately the frustratingly indeterminate nature of the concept of proof beyond reasonable doubt. This point has been well made by a Canadian commentator, see Healy “Direction and Guidance on Reasonable Doubt in the Charge to the Jury” (2001) 6 Can Crim L Rev 161 at 162:
Problems concerning directions on reasonable doubt are problems about the use of language to explain clearly for members of a jury a concept that is both fundamental to the presumption of innocence and impervious to definition.
The standard New Zealand formulations are not free from internal logical inconsistency. The level of certainty or confidence implied by the words “are sure” and “feel sure” do not fit altogether easily with the uncertainties implicit in the phrase “reasonable doubt”. Further, the standard and rather circular elaboration of reasonable doubt (ie as a doubt the jury regards as reasonable) is itself problematical as the elasticity in a doubt that is regarded by a jury as reasonable might be thought to be inconsistent with the word “sure”.
The New Zealand approach (or approaches) created uncertainty in the minds of jurors in the cases which were studied for the Law Commission’s jury research project, see New Zealand Law Commission Juries in Criminal Trials Part Two : A Summary of the Research Findings, NZLC PP37 vol 2 1999 at [7.16]:
[M]any jurors said that they, and the jury as a whole, were uncertain what “beyond reasonable doubt” meant. They generally thought in terms of percentages, and debated and disagreed with each other about the percentage certainty required for “beyond reasonable doubt”, variously interpreting it as 100 per cent, 95 per cent, 75 percent and even 50 per cent. Occasionally this produced profound misunderstandings about the standard of proof.
No sensible judge would ever attempt to put a mathematical value on what constitutes proof beyond reasonable doubt, at least when summing up. Further, if a jury question suggests that some jurors are attempting to do so, the trial Judge should warn the jury not to approach their task by reference to “a calculation of percentages”, see R v Cavkic (2005) 12 VR 136. That said, it is alarming that New Zealand jurors could act on the basis that probabilities of guilt expressed in percentage terms as low as 75% or 50% are enough to warrant conviction. Also of concern are those jurors who take from the standard direction the conclusion that 100% certainty is required, at least if 100% certainty is fairly equated with “absolute certainty” or “mathematical certainty”.
The English approach, and particularly that set out in the specimen direction referred to in [33] above, is succinct, crisp and in its pure form (ie without any explanation of reasonable doubt) is necessarily internally consistent. But as cases such as Stephens show, it is not always possible to avoid the necessity to define the phrase “reasonable doubt” (for instance if the jury asks for further directions) and at that point problems of internal consistency arise.
As well, the approach in England and Wales, involving the use of the word “sure” (particularly if it comes in the form of the “satisfied so that you are sure” formula) and the usual absence of elaboration as to reasonable doubt, set a very stringent standard for the prosecution. In a mock jury trial study carried out by Professor John Montgomery, 73.5% of those would have found the defendant not guilty took the “satisfied so that you are sure” formula to require 100% confidence of guilt, see Montgomery “The Criminal Standard of Proof” (1998) 148 NLJ 582 at 584. Since only 5.5% of those surveyed found the defendant guilty and 35.7% of them required 100% confidence in guilt to convict, the proportion of all those surveyed who required 100% confidence in guilt to convict must have been in excess of 71%.
Publication of these results led to Professor Zander carrying out a broadly similar study, see Zander “The Criminal Standard of Proof” (2000) 150 NLJ 1517. In his study, the formula used was:
Only convict if the prosecution have made you sure of the defendant’s guilt [which is the same as proving the case beyond reasonable doubt].
Half of those surveyed received the words included in square brackets and the other half did not. Just over half the lay people surveyed regarded the direction (in both its iterations) as requiring 100% certainty. The difference between that figure and the corresponding figures in Professor Montgomery’s survey may suggest that formula that Professor Zander used (in both its iterations) is less stringent than the “satisfied so that you are sure” formula used by Professor Montgomery.
The Australian approach is also internally consistent. This is because the concept of proof beyond reasonable doubt is not explained. But the sparseness of this approach is itself problematical as jurors have difficulties with the phrase “reasonable doubt” when it is not explained or elaborated on, see Chesterman, Chan and Hampton Managing prejudicial publicity: an empirical study of jury trials in New South Wales (Law and Justice Foundation of NSW, 2000) at [449]-[454].
It is important not to over state the problems. The robustness of the jury system does not turn on the characteristics, intelligence and understanding of individual jurors but rather on the collective strengths of juries. Individual misunderstandings are likely to be sorted out in the course of collective deliberations. Further, just as there is an element of indeterminacy in the concept of proof beyond reasonable doubt, so too is there indeterminacy in the terms used by those who respond to surveys or questionnaires by equating the concept of proof beyond reasonable doubt with mathematically expressed probability assessments (eg 95% confidence) or certainty. Given the frequency with which juries convict, jurors who see certainty as the test must presumably apply a standard of practical certainty as opposed to the impossible to achieve standard of absolute certainty.
But, for all that, the problems we have referred to suggest that there is something to be said for the Canadian approach, at least in broad terms:
(a)At one end of the probability continuum, jurors should be told that absolute certainty is not required. Otherwise there is a substantial risk that jurors will mistakenly assume that it is. Common sense, supported by the Montgomery and Zander articles, shows that this is so.
(b)Jurors should be told that more than proof on the balance of probabilities is required. The necessity for this is highlighted by the willingness of some jurors in New Zealand to equate proof beyond reasonable doubt with 50% certainty.
(c)For these reasons it seems sensible to ensure that juries at least exclude untenable concepts of proof beyond reasonable doubt (as equating it to more likely than not at one end of the continuum or absolute certainty at the other). This should at least make it likely that jurors will focus on the right area of the probability continuum.
(d)When judges do not give an explanation of proof beyond reasonable doubt, jurors are not assisted. A circular explanation of a reasonable doubt as one which the jury regards as reasonable can hardly provide much assistance. So some sort of explanation along the lines proposed in Lifchus has attractions.
[7] In those circumstances we are inclined to the view that Judges should explain the concept of proof beyond reasonable doubt in these terms (which in part are borrowed from Lifchus):
The starting point is the presumption of innocence. You must treat the accused as innocent until the Crown has proved his or her guilt. The presumption of innocence means that the accused does not have to give or call any evidence and does not have to establish his or her innocence.
The Crown must prove that the accused is guilty beyond reasonable doubt. Proof beyond reasonable doubt is a very high standard of proof which the Crown will have met only if, at the end of the case, you are sure that the accused is guilty.
It is not enough for the Crown to persuade you that the accused is probably guilty or even that he or she is very likely guilty. On the other hand, it is virtually impossible to prove anything to an absolute certainty when dealing with the reconstruction of past events and the Crown does not have to do so.
What then is reasonable doubt? A reasonable doubt is an honest and reasonable uncertainty left in your mind about the guilt of the accused after you have given careful and impartial consideration to all of the evidence.
In summary, if, after careful and impartial consideration of the evidence, you are sure that the accused is guilty you must find him or her guilty. On the other hand, if you are not sure that the accused is guilty, you must find him or her not guilty.
[8] When dealing with defences, the expression “reasonable possibility” is appropriate as referring to a defence which has not been disproved by proof beyond reasonable doubt. For instance, in a case in which sexual violation is alleged and the defence case is that the complainant consented or alternatively that the accused believed on reasonable grounds that the complainant consented, the direction on what constitutes proof beyond reasonable doubt might continue:
It is common ground that the accused had sexual intercourse with the complainant and the key issues that you will have to determine are whether the Crown has proved beyond reasonable doubt (ie made you sure) first that this occurred without the complainant’s consent and, if so, that this was without the accused believing on reasonable grounds that she consented. If you think that the defence case could reasonably be true – that it is reasonably possible that either the complainant consented or that the accused believed on reasonable grounds that she was consenting – you will not be sure that the accused is guilty and you will therefore find him not guilty.
[9] Directions on reasonable doubt should be given both at the start of the summing up and, in short form, also when addressing the elements of the offence and any defences. Further, as the second example given in [50] above indicates, when discussing the elements of an offence and particularly defences, a reasonable possibility direction may be usefully employed. Here for instance is another example:
If you think there is a reasonable possibility that the accused was not there then you should find him or her not guilty.
Written material provided to the jury (issues sheets or decision trees) should be expressed in terms which recognise that the onus of proof is on the Crown and the requirement for proof beyond reasonable doubt.
One of the problems with this area of the law is that on the one hand, there is no single formula which is required but, on the other, life is much easier if trial Judges use a single, safe and approved formula. Further, in the interests of consistency, there is much to be said for a single formula being employed. On the other hand, we are not to be taken as asserting that the formula just stated is mandatory. It is not. Further, we wish to discourage too close a focus on the precise nuances of judicial directions. It is sufficient to make it clear that the concept involves a high standard of proof which is discharged only if the jury is sure or feels sure of guilt.
One final point emerges very clearly from the Canadian jurisprudence and to some extent from our own post-Adams experience. It is most unwise for appellate courts to change course suddenly as to how trial Judges must sum up on the standard of proof. In the aftermath of Lifchus, there was much confusion in Canada as to what should happen to pre-Lifchus convictions. The judgment in Lifchus was not explicit as to whether it applied retrospectively and this caused much uncertainty and variation of practice amongst Canadian provincial appellate courts, see Healy.
This case
The Judge was entitled to tell the jury that absolute or mathematical certainty was not required.
Given the pedigree of the important decisions in everyday life analogy (which reflects the day to day experience of generations of Judges), we do not accept that the analogy’s use in this case caused any risk of a miscarriage of justice. The Judge emphasised the need to be sure and the high nature of the criminal standard of proof. Jurors would either have understood the analogy in its intended meaning or, if they misunderstood what was said, would simply have been puzzled and thus focused on what the Judge made perfectly clear, namely that they should only convict if sure of guilt. Given the drift of the Judge’s directions as a whole, a juror could not sensibly have taken the Judge to be suggesting that merely because he or she had, on occasion, made an important decision on the basis of a hunch, it would be appropriate to find the accused guilty on the basis of a similar hunch. In this context we have no reason to think that the jury misapplied the standard of proof.
Nonetheless, it is right to recognise that the analogy has the potential to puzzle jurors and for this reason is not helpful. It should not be used in the future.
Disposition
The appeals are dismissed.
GLAZEBROOK J
Table of Contents Para No
Introduction [58]
The origins of the requirement of proof beyond reasonable doubt [62]
How do judges direct on reasonable doubt? [66]
Studies of juror comprehension of the requirement [73]
Is it time for a change in New Zealand? [96]No definition? [97]
Expanded definition? [101]
Repetition of direction [115]
Contents of any expanded direction on reasonable doubt [118]
Link to presumption of innocence? [119]
Direction on probable guilt not being sufficient? [121]
Direction that absolute certainty is not required? [122]
Need for Starr direction? [127]
Defining reasonable doubt? [128]
Domestic analogy [131]
This case [135]
Result [136]Introduction
It is often said that the criminal justice system should convict the guilty and acquit the innocent. This is a laudable aim but impossible to achieve. Our criminal justice system, therefore, aims to convict only the clearly guilty, recognising that the legitimacy of the system depends on it as far as possible not being applied to the innocent. Thus, if there is a reasonable possibility that a person is innocent, he or she should be acquitted. This is the case even if the likelihood of guilt is high. It has always been recognised that this means that many who are in fact guilty will be acquitted but it has been said that it is better to acquit ten, twenty or even one hundred guilty persons than to convict one who is innocent.
The main question for this appeal is how the requirement for proof beyond reasonable doubt should be explained to a modern jury. In particular, whether the current New Zealand standard jury direction should be modified to provide more explanation of the requirement and to exclude some of the more common misconceptions jury researchers have shown some jurors to harbour. Also at issue is the legitimacy of the Judge’s directions to the jury in this particular case that proof to the point of absolute certainty is not required and the use of what Hammond J calls the domestic analogy – see at [67] and [68] of the summing up, reproduced at [21] above.
For the reasons outlined below at [101] ‑ [114], I do not consider that the case has yet been made out for a general change from the current jury direction on reasonable doubt and that further independent and targeted research is needed before any such change is contemplated. I accept, however, that there may be individual cases where it would not be improper to give an expanded direction, for example, in answer to a question indicating that the jury has misunderstood the standard of proof. The expanded direction, given at [49] above, would be an appropriate direction in such cases but the risks of the expanded direction diluting the standard of proof in the jury’s mind would have to be weighed in each case against the possible benefits of greater clarity.
As to this case, the Judge’s direction that proof to the point of absolute certainty is not required was acceptable, although I consider that such a direction may risk diluting the standard of proof and that it should not be given as a matter of course. Turning to the domestic analogy, I agree that the directions should not in future be employed in any form. I do not, however, think that its use risked the jury applying an incorrect standard of proof in this case – see at [135] below.
The origins of the requirement of proof beyond reasonable doubt
The origins of the requirement of proof beyond reasonable doubt, as Hammond J notes, are somewhat obscure. Professor Barbara J Shapiro, in the leading text, Beyond Reasonable Doubt and Probable Cause (2003) at 2 – 41, traces its development to the late seventeenth century and to the religious thinking and empirical philosophy of the time. Professor Shapiro also points to the parallel development by which juries moved from being largely self-informing bodies with first-hand knowledge of the matter to assessors of evidence gathered and presented by others.
Professor Shapiro notes (at 7 ‑ 8) the seventeenth century view that there are three categories of knowledge – physical, derived from immediate sense data, mathematical, established by logical demonstration, and moral, based on testimony and second-hand reports of sense data. In particular, she points to John Locke’s influential An Essay Concerning Human Understanding (1690). In Professor Shapiro’s view, the reasonable doubt standard equates to what Locke considered the highest degree of probability achievable in what Professor Shapiro terms the empirical realm of events where the absolute certainty of mathematical demonstration does not exist - see in particular at 41. For Locke this highest degree of probability is such that it must attract the “general consent of all men” – see at 8.
There are other discussions about the origin of the standard, some taking a slightly different perspective from Professor Shapiro - see, for example, Morano “A Reexamination of the Development of the Reasonable Doubt Rule”(1975) 55 BUL Rev 507 (arguing that the standard was introduced to move away from an absolute standard of proof to ease the burden on prosecutors), Sheppard “The Metamorphoses of Reasonable Doubt: How Changes in the Burden of Proof have Weakened the Presumption of Innocence” (2003) 78 Notre Dame L Rev 1165 at 1170 ‑ 1216 (placing stress on the role of the writing of Bishop Wilkins in the development of the standard), and Whitman “The Origins of ‘Reasonable Doubt’” (2005) Yale Law School Faculty Scholarship Series Paper 1 (arguing that the role of the standard was not to achieve a satisfied conscience but a safe one).
Whatever its origins, it seems tolerably clear that the assumption was that there is a level of proof that is sufficient to produce in all reasonable persons as much certainty as it is possible to have when dealing with the reconstruction of past events. The standard should be no less stringent today and, if we are serious about this standard, then juries should be instructed accordingly.
How do judges direct on reasonable doubt?
In his judgment, William Young P discusses the widely divergent practice when directing on proof beyond reasonable doubt across a number of common law jurisdictions. For example, the Australian approach is to provide no explanation of reasonable doubt at all, the term being presumed to speak for itself – see at [35] ‑ [36] above. In England and Wales some limited further explanation is given. Juries are told that the prosecution proves the guilt of the accused by making the jury sure of it – see at [33] - [34] above. This is broadly the practice in New Zealand. As in England and Wales, further elaboration is on occasion tolerated but not encouraged – see for example in Batt, discussed at [24] above.
The Canadian Supreme Court in Lifchus, on the other hand, set out a standard direction with a relatively detailed explanation of the term reasonable doubt – see at [38] above. After some uncertainty as to whether deviations from the standard direction were permitted even in relation to trials that had taken place before its promulgation, it now seems clear, after the so-called trilogy of cases, that only substantial compliance with that direction is needed. See Healy “Direction and Guidance on Reasonable Doubt in the Charge to the Jury” (2001) 6 Can Crim L Rev 161.
After R v Starr [2000] 2 SCR 144, there has been an addition to the Lifchus direction. Starr held that judges should situate the reasonable doubt standard appropriately between proof on the balance of probabilities and proof to absolute certainty. As pointed out by Iacobucci J, for the majority at [242], proof beyond reasonable doubt falls much closer to absolute certainty than to proof on a balance of probabilities. L’Heureux-Dubé J, for the minority, considered that the Judge’s direction in question in that case appropriately conveyed that concept. In her view, the direction clearly implied “that proof beyond a reasonable doubt is just one notch lower than absolute certainty; it is the highest level of proof that can be humanly achieved” – see at [96].
In the United States all of the above approaches can be found. While it was held by the Supreme Court in In re Winship 397 US 358 (1970) that the requirement that a case be proved beyond reasonable doubt is part of the constitutional requirement of due process, the Supreme Court has not required any particular formula for explaining that standard to the jury. It is only if there is a reasonable likelihood that the jury misunderstood the standard that the due process requirement is not met. For an overview of State practice see Diamond “Reasonable Doubt: To define or not to define” (1990) 90 Colum L Rev 1716 at 1718 ‑ 1721, Power “Reasonable and Other Doubts: The Problem of Jury Instructions” (1999) 67 Tenn L Rev 45 at 62 – 97 and Richards “Reasonable Doubt: An Overview and Examination of Jury Instructions in Colorado” (2004) 33 Colo Law 85.
The Federal Judicial Center, the education and research agency for the United States federal courts, has, however, promoted a standard direction that has attracted much support among commentators and some judges for its clarity and brevity, many of the standard State directions lacking both of these attributes. Ginsberg J, for example, referred to the direction with approval in her concurring opinion in Victor v Nebraska, 511 US 1 (1994). The direction reads (see Federal Judicial Center Pattern Criminal Jury Instructions (1987) at 28):
[T]he government has the burden of proving the defendant guilty beyond a reasonable doubt. Some of you may have served as jurors in civil cases, where you were told that it is only necessary to prove that a fact is more likely true than not true. In criminal cases, the government’s proof must be more powerful than that. It must be beyond a reasonable doubt.
Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant’s guilt. There are very few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt. If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him guilty. If on the other hand, you think there is a real possibility that he is not guilty, you must give him the benefit of the doubt and find him not guilty.
The main criticism of this direction has been of the substitution in the second to last line of the word “real” for that of “reasonable” – see for example at 84 of the Power article referred to at [69] above. The concern is that “real” could be construed as “substantial” and that would of course be a misdirection. In my view, the “firmly convinced” wording equates to the English/New Zealand term “sure”. The term “sure” is, however, one more likely to be used in ordinary speech which makes it more likely to be understood by jurors.
The Supreme Court of New Jersey produced a standard direction in State v Medina, 685 A 2d 1242 at 1251 ‑ 2 (NJ 1996) which is an amalgamation of the Federal Judicial Center instruction and that of the New Jersey Committee on Model Jury Charges, Criminal. This instruction has also attracted support of some commentators. The first paragraph of their standard direction is the same as that of the Federal Judicial Center. It goes on:
A reasonable doubt is an honest and reasonable uncertainty in your minds about the guilt of the defendant after you have given full and impartial consideration to all of the evidence. A reasonable doubt may arise from the evidence itself or from a lack of evidence. It is a doubt that a reasonable person hearing the same evidence would have.
Proof beyond a reasonable doubt is proof, for example, that leaves you firmly convinced of the defendant’s guilt. In this world, we know very few things with absolute certainty. In criminal cases the law does not require proof that overcomes every possible doubt. If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him guilty. If, on the other hand, you are not firmly convinced of defendant’s guilt, you must give the defendant the benefit of the doubt and find him not guilty.
Studies of juror comprehension of the requirement
William Young P relies on three studies of juror comprehension to provide the basis for his conclusion that the current New Zealand direction on reasonable doubt should be expanded. I examine those studies in more detail and look briefly at the findings from some other studies to see if they do in fact mandate a change to current practice.
The first study mentioned by William Young P was by Professor Montgomery – see at [44] above. Professor Montgomery was unable to get the Lord Chancellor’s consent to survey members of actual jury pools or just-served jurors. Instead he conducted a postal survey of the next-of-kin of Luton University students and of a random sample from the Chester electoral roll. The return rate of the questionnaire was relatively low - 36% for the next of kin and only 14% for those taken from the electoral roll. Professor Montgomery recognised the methodological limitations of his study because of its small size and restrictive geographical focus.
He also pointed to other possible weaknesses. The study provided no opportunity for deliberation and was divorced from the tensions of an actual trial setting. There is evidence that deliberation may serve to identify a more appropriate level of certainty. For example, Professor Dane, in a study published in 1985, found that mock jurors used the probability level of 73% pre-deliberation but that this moved up to 84% post-deliberation – see Dane “In Search of Reasonable Doubt: A Systematic Evaluation of Selected Quantification Approaches” (1985) 9 Law and Hum Behav 141 at 141 ‑ 158. .
Professor Montgomery was not, however, concerned about the lack of opportunity to deliberate as the object of his study was to test individual comprehension of the English instruction “you need to be satisfied so that you are sure of the defendant’s guilt” against an American instruction which provided much more detail. The American instruction said that the jury had to be convinced “to a moral certainty, beyond reasonable doubt” of guilt. It then went on:
Though you do not have to be one hundred percent certain of guilt (since absolute certainty is not possible in ordinary human affairs), you can only find the accused guilty when you are able to exclude every other reasonable hypothesis or explanation of the crime than that the accused did it; and your decision must not be based on mere guesses, surmises or vague possibilities, but solely on the evidence admitted in the trial of this case.
Half of those surveyed were sent the English instruction and half the American one. Both versions of the questionnaire gave a brief summary of the facts of a criminal case. The correct verdict on the facts was not guilty (and indeed the facts were heavily slanted towards that verdict). Those surveyed were first asked whether they would find the accused guilty or not guilty. They were then asked to indicate how confident in percentage terms they would have to be to find the accused guilty. The choices available ranged from 51% to 100%.
In New Zealand today, it would be most unwise not to give a direction. A failure to do so surely offends the most basic protection to be given to a criminal defendant.
Secondly, is any particular form of direction to be required? For my part I am persuaded that the direction to be used is best left to the discretion of the trial Judge, who after all has had the opportunity of observing the jurors, and has the obligation, and the burden, of choosing the most appropriate set of words to make that particular jury understand that they must not return a verdict against the defendant unless they are sure of his or her guilt.
In any event, whatever my own views, as to authority, this was plainly the view taken by the Privy Council in Walters v R [1969] 2 AC 26 at 30; it was also put succinctly by Lord Goddard CJ in R v Hepworth & Fearnley [1955] 2 QB 600 at 604:
I should be very sorry if it were thought that these cases should depend on the use of a particular formula or particular word or words. The point is that the jury should be directed first, that the onus is always on the prosecution; secondly, that before they convict they must feel sure of the accused’s guilt. If that is done, that will be enough.
I would however add that I would regard it as an error to resort to the domestic analogy.
The suggestions made by the President at [49] of his judgment will, in the vast majority of cases, meet the kinds of concerns I have expressed in this judgment.
Assisting the jury further
A real challenge for a trial Judge may arise when, after an immaculate direction as to the standard of proof, the jury returns to ask the Judge, “What do you mean by a reasonable doubt?”. What is the Judge to do?
In my view, if it is apparent that some members of the jury have not grasped the meaning of the direction, then the trial Judge should give further assistance. In case it should be useful to trial Judges, I mention Rafique [1973] Crim LR 777 and Bell [1967] Crim LR 545, which are helpful on this issue.
That is not to say that the jury should be permitted to persist in inappropriate questions. It is simply to say that, where the jury is plainly struggling because of some factor or other in the case, the Judge cannot just state, “I have told you: it’s reasonable doubt, and that’s it”. Such assistance as can responsibly be given must be given. Of course, in such a case the Judge will usually have the benefit (and the burden) of knowing what it is that is troubling the jury, and may have a specific context to work with.
The collateral importance of the Judge’s summing-up as to the facts
A summing-up must be read as a whole. The question here is, what can be done elsewhere in the summing-up to reinforce the importance of the concept of proof beyond reasonable doubt?
It is trite, but perhaps worth observing, that the real problems inherent in a “reasonable doubt” in a marginal case are best addressed by a careful marshalling (for and against) by the trial Judge of the evidence on the particular point at issue.
In reading many summings-up over the years, I have been struck by the fact that “reasonable doubt” type issues arise most frequently in a context where a jury has not always had all the help it could reasonably have expected from the trial Judge, on the evidence. Judges can probably do more to avoid miscarriages of justice by careful work in this area, than by over-refining the standard of proof direction.
Solicitors:
Crown Law Office, Wellington
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