Graham v R [2000] TASSC 153

Green v R [1971] HCA 55; (1971) 126 CLR 28; R v Wilson & Ors (1986) 42 SASR 203; Krasniqi v R (1993) 61 SASR 366; Krakouer v R [1998] HCA 43; (1998) 194 CLR 202, referred to.

Criminal law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Miscarriage of justice - Misdirection and non-direction - Evidence of alibi - Whether jury should be warned that rejection of alibi does not necessarily lead to an inference of guilt.

R v J (No 2) [1998] 3 VR 602; Zoneff v R (2000) 172 ALR 1; Edwards v R [1993] HCA 63; (1993) 178 CLR 193, referred to

Judgment Number: [2000] TASSC 153

1 The appellant was convicted of one count of committing an unlawful act intended to cause bodily harm, the particulars being that he:

"... at West Hobart in Tasmania did on or about the 15th day of October 1998 with intent to maim, disable and/or do grievous bodily harm to Stephen Darrell Bannister did (sic) cause actual bodily harm to the said Stephen Darrell Bannister by hitting him to the face with a shovel, breaking his jaw, by hitting him in the back with a shovel and by cutting him on the lower legs causing the achilles tendon of the right leg to be severed and partially severing the achilles tendon of the left leg also causing arterial nerve and tendon damage and by stabbing him to the back of both hands".

2 The Crown case was that the appellant had gone to Bannister's home in West Hobart on 15 October 1998 at about 11.50am, accompanied by another unnamed man. James Berry had been visiting Bannister, but left almost immediately after the arrival of the appellant and his companion. Both Berry and Bannister claimed prior knowledge of the appellant and gave evidence identifying him. Bannister gave evidence that a few minutes after Berry's departure (hence at approximately 11.55am) the appellant had assaulted him in the manner particularised above. He had lost consciousness for a short time and on regaining it found himself alone. A few minutes later, he went to a nearby telephone box and returning home, collapsed on the front door steps where he was seen by two women who gave the time of seeing him as shortly after 12.45pm in the one case and 12.30pm - 1pm in the other case. An ambulance was summoned and hospital records indicated that Bannister arrived at the Royal Hobart Hospital at 1.15pm. The sole evidence of the appellant having assaulted the complainant came from the latter. No admissions were made by the appellant, nor did any scientific evidence demonstrate his presence at Bannister's home, let alone implicate him in any assault.

3 The appellant gave and adduced evidence on the trial. He denied being present at the complainant's home at any time on 15 October 1998 or having assaulted him. He gave evidence that he did not know either Bannister or Berry at that time. He was then running a hotel in Argyle Street, Hobart and claimed to have been present there between about 11.30am and about 1pm. Two employees and a customer of the hotel gave evidence supporting the appellant's alibi. The appellant raised a number of grounds of appeal. I have concluded that ground 6 should succeed and that a new trial should be ordered. It is unnecessary, therefore, to address all the other grounds. However, I wish to make some observations on some of them as they raise general issues and a comment may be of assistance on a new trial.

"The learned trial judge erred in his directions to the jury in that he failed to direct the jury as to the consequences which flowed should the jury find that the evidence of alibi was false.

(i) The learned trial judge failed to direct the jury that the jury must not reason that the Appellant is guilty because of his false alibi.

(ii) The learned trial judge failed to direct the jury that there may be a number of reasons, each inconsistent with the guilt of the Appellant, for the false alibi, for example, in order to bolster what the Appellant perceived to be a weak defence."

It is the case that the learned trial judge did not give the directions particularised above. The question is whether or not he erred in failing to do so.

5 In Killick v R [1981] HCA 63; (1981) 147 CLR 565, the defence of alibi had been raised at trial and the issue on appeal was whether the Crown should have been permitted to call evidence in rebuttal. Although dissenting on the outcome of the appeal, Wilson and Brennan JJ commented at 573 - 574:

"No doubt the Crown case overall was strengthened by the jury's opinion, to which the verdict testifies, that the applicant put forward a false alibi at his trial."

The Victorian Court of Appeal in R v J (No 2) [1998] 3 VR 602 likewise noted at 631 in the judgment of Winneke P and Charles JA that:

"... the rejection by the jury of an alibi raised by an accused carries with it the distinct possibility, if not probability, that the jury will reason that the false alibi has been raised for the purposes of concealing guilt."

Where a false alibi is sworn to by an accused person with full knowledge of its falsity, the lie is capable of use by the jury as evidence probative of guilt and not merely as a matter affecting the witness' credit. Had the Crown sought to rely on such a lie, if so found by the jury, as evidence probative of guilt, a direction in accordance with the principles laid down in Edwards v R [1993] HCA 63; (1993) 178 CLR 193 would have been necessary. However, that was not the case here and in those circumstances, as in the case of Zoneff v R (2000) 172 ALR 1 "it was unnecessary, indeed undesirable, that a direction of the kind with which Edwards was concerned be given", at par20. In Zoneff, however, the majority suggested a formula suitable for the circumstances of that case. It was to this effect:

"You have heard a lot of questions, which attribute lies to the accused. You will make up your own mind about whether he was telling lies and if he was, whether he was doing so deliberately. It is for you to decide what significance those suggested lies have in relation to the issues in the case but I give you this warning: do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt." (At par23)

Kirby J agreed that an Edwards' direction was not necessary in that case and that "a general direction about lies" (at par77) of the kind envisaged by Lord Devlin in Broadhurst v R [1964] AC 441 and given in Richens v R [1992] EWCA Crim 3; [1993] 4 All ER 877 at 886 - 887 was required. He was, however, satisfied that the trial judge's directions were not erroneous, or if erroneous, he held them to be immaterial.

6 In Broadhurst (supra), Lord Devlin had said at 457:

"It is very important that a jury should be carefully directed upon the effect of a conclusion, if they reach it, that the accused is lying. There is a natural tendency for a jury to think that if an accused is lying, it must be because he is guilty, and accordingly to convict him without more ado. It is the duty of the judge to make it clear to them that this is not so."

"In principle, however, the need for a warning along the lines indicated is the same in all cases where the jury are invited to regard, or there is a danger that they may regard lies told by the defendant, or evasive or discreditable conduct by him, as probative of his guilt of the offence in question. It will be recalled that analogous warning is required in relation to alibi evidence which the jury may conclude is false."

The Full Court of the Federal Court of Australia in King v R (1986) 68 ALR 27 said, at 38:

"The proper approach by a jury, once it is satisfied beyond reasonable doubt that a proffered alibi is false, was stated by Lord Widgery CJ, speaking for the Court of Appeal, in R v Turnbull [1977] 1 QB 224 as follows (p 230): 'Care should be taken by the judge when directing the jury about the support for an identification which may be derived from the fact that they have rejected an alibi. False alibis may be put forward for many reasons: an accused, for example, who has only his own truthful evidence to rely on may stupidly fabricate an alibi and get lying witnesses to support it out of fear that his own evidence will not be enough. Further, alibi witnesses can make genuine mistakes about dates and occasions like any other witnesses can. It is only when the jury is satisfied that the sole reason for the fabrication was to deceive them and there is no other explanation for its being put forward can fabrication provide any support for identification evidence. The jury should be reminded that proving the accused has told lies about where he was at the material time does not by itself prove that he was where the identifying witness says he was.'"

In the more recent English case of Lesley [2006] EWCA Crim 2000; (1996) 1 Cr App R 39, the Court of Appeal held that the trial judge should have directed the jury in accordance with the standard direction recommended by the Judicial Studies Board that an alibi was sometimes invented to bolster a genuine defence, that his failure to do so was a misdirection and that such a direction should routinely be given. There the applicant's presence at the scene of the crime was disputed by him and alibi evidence led. In addition to direct evidence of his commission of the crime from two eye-witnesses, there was forensic evidence of a finger print tending to establish his presence there.

7 The need for specific directions to the jury where there is an appreciable risk that they may mis-use evidence and adopt an impermissible process of reasoning has been stressed in respect of situations where admissible evidence of criminal or reprehensible conduct, not the subject of a charge, has been led (Donnini v R [1972] HCA 71; (1972) 128 CLR 114) or there is evidence of recent complaint (Jones v R [1997] HCA 12; (1997) 143 ALR 52). Where there is an appreciable risk that they may mis-use the rejection of an alibi which they find to be mendaciously advanced by an accused, there is, in my view, a similar need to give specific guidance as to the proper use to be made of such a finding.

8 The crucial question in this case is whether there was any evidence other than direct evidence of the commission of the crime from which the jury might make a finding that the appellant had lied about such a material matter as his whereabouts at the time of the crime. I say "other than direct evidence of the commission of the crime" for if the only evidence that could prove that the appellant had told a lie in respect of his whereabouts was the complainant's evidence that he had committed the crime, it would be circular reasoning to suggest that the lie confirmed the complainant's claim and there is no basis for concluding that the jury would adopt so illogical a course. Mere failure to believe the alibi witnesses could not have provided evidence justifying a finding that the appellant had lied. Their evidence of his presence at the hotel was not contradicted by evidence of his absence from others who were present there. At most, the jury, in assessing the case, could have concluded that their evidence lacked credibility, for there was nothing to justify a conclusion that they had deliberately lied about anything. As Gibbs J (as he then was) said, however, in Steinberg v Federal Commissioner of Taxation (1972 - [1975] HCA 63; 1975) 134 CLR 640 at 694 "The fact that a witness is disbelieved does not prove the opposite of what he asserted." (And see also Fell v Lloyd [1911] HCA 34; (1911) 13 CLR 230 at 241.) The only evidence which was not solely reliant upon the complainant and from which the jury could conclude that the appellant had lied was that of Berry as to the appellant's arrival at the complainant's premises at about 11.50am. It was shortly after this time that Berry left and in turn only a short time before the complainant was assaulted. In my view, it is artificial to suggest that the jury may have regarded Berry's evidence as establishing a lie by the appellant as to his presence at the hotel and used their rejection of the alibi evidence as corroboration of the complainant's account. Berry's evidence, though not direct evidence of the commission of the crime, was so closely bound up with that of the complainant that I find it impossible to suppose that the jury might entertain a doubt about the evidence of the complainant without entertaining a similar doubt about the evidence of Berry. If they accepted Berry without at the same time accepting the complainant, or, as the appellant contends, without impermissibly permitting their doubts about his evidence to be dissipated by a belief that the appellant had lied, the only possibilities consistent with innocence were that the appellant's companion was the author of the complainant's injuries without complicity on the appellant's part or that some third person had entered before or after their departure and had inflicted the injuries. There was no evidence to suggest either possibility and positive evidence from the complainant to the contrary. In my view, they are too speculative to suppose that the jury could have entertained a reasonable doubt about the guilt of the accused once they accepted the fact of his presence, as attested to by Berry. In the absence of any evidence of a demonstrable lie independent of the complainant's account of the central events and Berry's account of their immediate prelude, it was inappropriate to suggest to the jury that they could make a positive finding of a false alibi other than that inherent in findings based on the evidence of those witnesses. In consequence, it was inappropriate to warn them against the making of the kind of limited use implicit in the directions which ground 5 claims the learned trial judge should have given.

9 However, it is arguable (and this was the subject of ground 2 which complains that the learned trial judge failed to fairly and adequately put the appellant's defence to the jury) that although there was no evidence of a lie which required a special direction against its misuse by the jury, it would have been desirable to have told the jury that if they were not prepared to act upon the evidence of the alibi witnesses, they should not conclude that the rejection of that evidence constituted proof of the contrary of what they asserted. In some cases an alibi is rejected because the witnesses are totally discredited in cross-examination without necessarily having been proved to have lied. A witness confronted with a long record of convictions might be discredited thereby notwithstanding that until that time he presents as an apparently trustworthy witness. His demolition is likely to be devastating to the accused but his rejection by the jury does not entitle them to infer from that fact alone that his evidence as to alibi is false. In such a case, the obligation to fairly put the defence may well require a specific direction designed to avoid the drawing of such an inference from the mere fact of his rejection as a witness of the truth.

"The learned trial judge erred in his directions to the jury in that he failed to direct the jury that if they thought that the alibi evidence might reasonably be true, then they should acquit the Appellant because, in those circumstances, the Prosecution had not discharged its onus of proof."

Clearly in the light of the evidence of the appellant and the three witnesses he called, the defence of alibi was open and the jury was required to acquit the appellant if they considered it was a reasonable possibility that he was at a place other than the scene of the crime when it occurred. It is trite law that the defence of alibi must be negatived by the Crown (R v Johnson [1961] 3 All ER 969 at 970; Killick v R (supra) at 569 - 570; R v Small (1994) 33 NSWLR 575 at 595 - 596; R v J (No 2) (supra) at 630). The appellant contends that the learned trial judge should have given a specific direction to this effect.

11 In R v Wood (1967) 52 Cr App R 74, Lord Parker CJ said at 78:

"It is said, as I understand it, in the first instance, that it is a rule of law that when an alibi is raised a particular direction should be given to the jury in regard to the burden of proof, and that in every case when an alibi is raised the judge should tell the jury, quite apart from the general direction on burden and standard of proof, that it is for the prosecution to negative the alibi. In the opinion of this Court, there is no such general rule of law. Quite clearly if there is any danger of the jury thinking that an alibi, because it is called a defence, raises some burden on the defence to establish it, then clearly it is the duty of the judge to give a specific direction to the jury in regard to how they should approach the alibi.

In the opinion of this Court, there was no danger here of the jury thinking that there was any burden on the defence."

This dictum was followed in R v Preece (1993) 96 Cr App R 264, although the Court of Appeal intervened because the trial judge's summing up posed questions about the alibi evidence which suggested that there was some burden of persuasion on the defence. See also R v J (No 2) (supra) at 630 - 631.

12 The learned trial judge's direction in the present case was as follows:

"Now an accused person does not have to demonstrate or show his or her innocence. That person is entitled in law to a verdict of not guilty unless you are satisfied beyond reasonable doubt that that person is guilty. So it follows that a verdict of not guilty is not a verdict that someone lied or the particular witness has fabricated evidence. It means only one thing, that you're not satisfied beyond reasonable doubt of the guilt of the accused.

Now the second direction flows from the first. Given the presumption of innocence, it follows that the Crown has the burden of proving the guilt of the accused beyond reasonable doubt. It's a simple proposition. If you allege something then you're required or have the obligation to prove it. So the burden of proof lies fairly and squarely with the prosecution. Indeed, as I've told you, an accused person may remain completely silent throughout a trial if that person chooses. So in order to convict, the Crown first of all in this case must show or satisfy you beyond reasonable doubt that this man was there. See, they have that responsibility, not that he has to show that he wasn't there. They must show his presence at the place in Hill Street."

In dealing with the defence case, the learned trial judge summarised the substance of each witness's evidence as to the alibi, but made no comment about any of it. Having completed his summary, he explained to the jury why transcripts of the evidence are not supplied to them and offered to remind them of any parts of it of which they might wish to be reminded. He thereupon said:

"I remind you again you're not a committee. You will respect the views of others, but you will work collectively. But at the end of the day the verdict is only a verdict each [sic]. You may not convict unless you're satisfied beyond reasonable doubt as to the guilt of the accused."

In my opinion, there was no danger of the jury thinking that the alibi raised some burden on the defence to establish it. I consider that the learned trial judge's charge adequately alerted the jury to the need to be satisfied beyond reasonable doubt that the alibi evidence was wrong and that there was no need for any more specific direction.

"The learned trial judge erred in his directions to the jury concerning the standard of proof.

(i) The learned trial judge in directing and/or inviting the jury to subject a doubt which it entertained to analysis or testing or evaluation in order to determine its quality and whether it is reasonable.

(ii) The directions were such as to undermine or qualify the standard of proof.

(iii) In the alternative to (ii), there is an impermissible risk that the directions were such as to undermine or qualify the standard of proof."

The learned trial judge gave the jury this direction:

"Now the Crown must prove its case beyond reasonable doubt. It's dangerous for me to try and explain that concept in too much detail. A doubt is something which you'll feel and know if you have one. As responsible citizens you'll know in your own heart and mind what is reasonable, so if you have a doubt, but not a fanciful or far fetched doubt, but a doubt about the guilt of the accused and you can honestly say to yourself that you consider the doubt is a reasonable one in all the circumstances, then you'll acquit. Now a reasonable doubt is something which you must examine. You've each taken an oath as an individual, so you're not a committee to reach a general feeling. You should work together, you are a collective body in the sense that you would argue your point, remind another juror of a piece of evidence that you regard as important, state your conclusion, defend it in discussion with your fellow jurors, you would pay regard and pay respect for the view or the information provided by another juror, that's how juries work, but at the end of the day you don't say, 'Oh well, there's a consensus around, I'll join it'. You should each arrive at your own decision, you should each arrive at your own verdict, so therefore the testing of any doubt lies within your own conscience, your own heart and your own mind."

14 In Brown v R [1913] HCA 70; (1913) 17 CLR 570, the trial judge attempted a definition of reasonable doubt for the jury as "a doubt such as would influence you in the ordinary affairs of life". Holding this to be erroneous, Barton ACJ said at 584:

"I fully recognise that one embarks on a dangerous sea if he attempts to define with precision a term which is in ordinary and common use with relation to this subject matter, and which is usually stated to a jury without embellishment as a well understood expression."

In Thomas v R (1959 - [1960] HCA 2; 1960) 102 CLR 584, the direction complained of was:

"There is no particular magic about the way you've got to consider it, no special rules, you consider it in an ordinary common sense manner and in the way you would consider the more serious matters which come up for consideration and decision in your lives, and if considering it in that way you come to the conclusion - you come to a feeling of comfortable satisfaction that the accused is guilty, then you should find him so guilty, and that is the standard you should apply ..." (See 592 - 593)

This, too, was held erroneous, Kitto J saying of the passage quoted:

"... in my opinion an attentive jury may very well have understood the passage as placing upon the previous references to proof beyond a reasonable doubt an interpretation or a gloss substantially lessening the severity of the true standard, and that therefore the appellant's conviction was by a jury which had not been instructed in accordance with the strict requirement of the law." (At 596).

"Whether a doubt is reasonable is for the jury to say; and the danger that invests an attempt to explain what 'reasonable' means is that the attempt not only may prove unhelpful but may obscure the vital point that the accused must be given the benefit of any doubt which the jury considers reasonable."

15 In Green v R [1971] HCA 55; (1971) 126 CLR 28, the challenged passage referred to a doubt which was a rational doubt as opposed to a fantastic sort of doubt. If of the latter kind, the trial judge said:

"... it cannot be described as reasonable because it does not come from reason ; it comes from something which is emotional or irrational or - at any rate it is not based upon reason ..." (at 31).

The court, at 32, after citing "some of the many admonitions to judges presiding over criminal trials to adhere to and not to attempt needless explanations of the classical statement of the nature of the onus of proof resting on the Crown" said (at 32 - 33):

"... the direction was in our opinion fundamentally erroneous. A reasonable doubt is a doubt which the particular jury entertain in the circumstances. Jurymen themselves set the standard of what is reasonable in the circumstances. It is that ability which is attributed to them which is one of the virtues of our mode of trial : to their task of deciding facts they bring to bear their experience and judgment. 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': Windeyer J, Thomas v The Queen (supra), at p 606. A reasonable doubt which a jury may entertain is not to be confined to a 'rational doubt', or a 'doubt founded on reason' in the analytical sense or by such detailed processes as those proposed by the passage we have quoted from the summing up. Yet that is what they were directed to do in this case."

16 A similar direction was struck down in R v Wilson & Ors (1986) 42 SASR 203. At 207 King CJ said:

"No attempt should be made to explain or define reasonable doubt. If amplification is desired it should go no further than to tell the jury that a reasonable doubt is one which they, as reasonable persons, are prepared to entertain. The judge may, in an appropriate case, warn the jury against resorting to fanciful or unreasonable possibilities as affording reasons for doubt, but if he does so, he should be careful, in my opinion, to add that if the jurors, at the end of their deliberations, as reasonable persons are in doubt about the guilt of the accused, the charge has not been proved beyond reasonable doubt.

I think that the direction in the present case was radically defective. It went further than merely to warn the jury against being influenced by fanciful or unreasonable possibilities or notions. The Judge said: 'If you think there is a doubt but that it is merely a fanciful doubt, you will still convict because that is not a reasonable doubt'. This direction postulates a doubt about guilt which the jury thinks exists. It then invites them to subject their mental state to examination in order to determine whether the doubt about guilt which they think to exist, is to be characterized as fanciful or reasonable. That direction is a negation of the proposition for which Green's case (supra) is authority that the test of whether a doubt is reasonable is whether the jury entertains it in the circumstances.

I think that a direction in the terms given in the present case has a dangerous tendency to produce in the minds of the jurors an impression that a view held by them that there is a doubt about guilt is to be disregarded unless it passes some further test; that there must be some particular degree of doubt or even that a slight doubt is to be disregarded. When jurors are invited to consider whether a doubt which they actually think to exist is fanciful, they may well interpret the invitation as one, not merely to exclude aberrant mental processes, but to put aside real doubts unless those doubts possess in their minds a certain degree of strength. Proof beyond reasonable doubt requires that doubts, irrespective of degree of strength which they attain, be given effect to if the jurors, as reasonable persons, are prepared to entertain them."

17 In R v Pahuja (1988) 49 SASR 191, the Court of Criminal Appeal considered in particular a redirection to the effect that if at the end of their deliberations the jury were left with any doubt, it was for them to decide if it was a reasonable doubt. King CJ, at 195, said:

"Such misgivings as one may feel in consequence of the directions on onus of proof in the main body of the summing up, are greatly intensified by what was said to the jury by way of redirection. In the passage quoted above, his Honour clearly invites the jury to subject any doubt which may be in their minds at the end of their deliberations to a process of evaluation in order to determine whether it is a reasonable doubt. The law does not require a jury to subject its mental states to a process of analysis or evaluation for the purpose of determining their quality. Mental philosophers, psychiatrists, psychologists and lawyers subject mental states to analysis and evaluation, but ordinary jurors are unlikely to be accustomed to doing so. Green (at 33), makes it clear that it is not part of the task of a jury to do so. Jurors are presumed to be reasonable persons. The test of reasonableness of a doubt is that the jury, properly aware of its responsibilities, is prepared to entertain it at the end of its deliberations. To direct or even invite a jury to subject a doubt which it entertains after deliberating upon the case, to a process of analysis or evaluation in order to determine whether it is reasonable, is an error of law."

18 In Krasniqi v R (1993) 61 SASR 366, Bollen J, with whose reasons Legoe and Mohr JJ agreed, at 373 cited the passage of King CJ from R v Wilson (supra) at 207, set out above, to the effect:

"A judge may, in the appropriate case, warn the jury against resorting to fanciful or unreasonable possibilities as affording reasons for doubt, but if he does so, he should be careful, in my opinion, to add that if the jurors, at the end of their deliberations, as reasonable persons are in doubt about the guilt of the accused, the charge has not been proved beyond reasonable doubt."

19 The learned trial judge's charge in this case unfortunately did, in my view, invite analysis by the jury of any doubt they might entertain. It postulated a doubt which could be either reasonable on the one hand or fanciful or far fetched on the other and invited analysis of whether it was of the former character by reference to whether they could honestly say to themselves that it was a reasonable one in all the circumstances. They may well have understood the direction to mean that if they entertained a doubt, they should ignore it unless positively persuaded that it was a reasonable one, the degree of persuasion required being one in which they could honestly say that it was reasonable. As such, it has, as King CJ said in R v Wilson (supra) at 207:

"... a dangerous tendency to produce in the minds of the jurors an impression that a view held by them that there is a doubt about guilt is to be disregarded unless it passes some further test; that there must be some particular degree of doubt or even that a slight doubt is to be disregarded."

The subjection of any doubt they entertained to a process of testing for its reasonableness was further invited by his Honour's observation that "a reasonable doubt is something which you must examine" and by the admonition that as each juror should arrive at his or her own verdict "the testing of any doubt lies within your own conscience, your own heart and your own mind".

20 The importance of a correct direction on the onus or standard of proof is so fundamental that in all the cases cited above where such directions have been faulted, the conviction was quashed. In Wilde v R (1987 - [1988] HCA 6; 1988) 164 CLR 365, Brennan, Dawson and Toohey JJ said at 373:

"The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings. If that has occurred, then it can be said, without considering the effect of the irregularity upon the jury's verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice."

In Krakouer v R [1998] HCA 43; (1998) 194 CLR 202, McHugh J observed at 226 (pars74 and 75):

"Misdirections of law in a criminal trial can take many forms. Of few of them can it be said that, at all times and in all circumstances, they constitute a miscarriage of justice. Legal error must often give way to cogent evidence of guilt. But on such matters as the standard or onus of proof or the functions of the jury, the position is different. These matters go to the root of a criminal trial according to law. It is difficult to see how the weight of evidence can have any relevance as to whether or not a misdirection on such matters is a miscarriage of justice.

That is not to say that a misdirection as to one of those matters is always a miscarriage of justice. The error may be so trivial that a court of criminal appeal can properly conclude that there has been a trial according to law, notwithstanding the misdirection. But if a direction on the standard or onus of proof or the function of the jury is substantially wrong, I cannot presently conceive of a case where the weight of evidence against the accused could affect the conclusion that a miscarriage of justice has occurred."

In these circumstances I am of the view that the appeal must be upheld, the conviction quashed and a new trial ordered.

21 This is an appeal against conviction on one count of committing an unlawful act intended to cause bodily harm. As amended, grounds 4, 5 and 6 of the notice of appeal provided:

"4 The learned trial judge erred in his directions to the jury in that he failed to direct the jury that if they thought that the alibi evidence might reasonably be true, then they should acquit the Appellant because, in those circumstances, the Prosecution had not discharged its onus of proof.

5 The learned trial judge erred in his directions to the jury in that he failed to direct the jury as to the consequences which flowed should the jury find that the evidence of alibi was false.

(i) The learned trial judge failed to direct the jury that the jury must not reason that the Appellant is guilty because of his false alibi.

(ii) The learned trial judge failed to direct the jury that there may be a number of reasons, each inconsistent with the guilt of the Appellant, for the false alibi, for example, in order to bolster what the Appellant perceived to be a weak defence.

6 The learned trial judge erred in his directions to the jury concerning the standard of proof.

(i) The learned trial judge in directing and/or inviting the jury to subject a doubt which it entertained to analysis or testing or evaluation in order to determine its quality and whether it is reasonable.

(ii) The directions were such as to undermine or qualify the standard of proof.

(iii) In the alternative to (ii), there is an impermissible risk that the directions were such as to undermine or qualify the standard of proof."

22 These grounds were separately argued. Ground 3 of the notice of appeal was abandoned. Grounds 1 and 2 provided:

"1 The appellant's conviction in all the circumstances was unsafe and unsatisfactory.

2 The learned trial judge erred in law in that he failed to fairly and adequately put the case for the appellant to the Jury."

23 The argument put in support of grounds 4, 5 and 6 was repeated in support of grounds 1 and 2. A foreshadowed application to add ground 7 did not proceed.

24 I have had the advantage of reading the draft reasons for judgment written by the learned Chief Justice. I gratefully adopt his Honour's statement of the facts.

25 It has been held in a number of cases that it is an error of law or a miscarriage of justice if the jury is not warned against reasoning that their rejection of a claimed alibi necessarily leads to an inference of guilt. See, eg, R v J (No2) [1998] 3 VR 602; Lesley v R [2006] EWCA Crim 2000; [1996] 1 Cr App R 39; King v R (1986) 22 A Crim R 153.

26 The rationale for such a warning appears from this passage taken from the judgment of Lord Widgery CJ in R v Turnbull [1977] 1 QB 224 at 230:

"Care should be taken by the judge when directing the jury about the support for an identification which may be derived from the fact that they have rejected an alibi. False alibis may be put forward for many reasons: an accused, for example, who has only his own truthful evidence to rely on may stupidly fabricate an alibi and get lying witnesses to support it out of fear that his own evidence will not be enough. Further, alibi witnesses can make genuine mistakes about dates and occasions like any other witnesses can. It is only when the jury is satisfied that the sole reason for the fabrication was to deceive them and there is no other explanation for its being put forward can fabrication provide any support for identification evidence. The jury should be reminded that proving the accused has told lies about where he was at the material time does not by itself prove that he was where the identifying witness says he was."

27 However, it is well established that a failure to give such a warning in every case in which an alibi is offered will not necessarily constitute an error of law. See R v J (supra) at 630; Penman v R (1985) 82 Cr App R 44; Wood v R (1967) 52 Cr App R 74. In Lesley, the Court of Appeal said at 50:

"In our judgment, a failure to give such a direction does not automatically render the conviction unsafe. All depends on the facts of each case and the strength of the evidence."

28 The present case is not one in which the Crown relied upon evidence that the accused told a lie with respect to his whereabouts at the material time as affording evidence of guilt of the crime charged, or as providing corroboration of other evidence of guilt of the crime charged. See, eg, Eade v R [1924] HCA 9; (1924) 34 CLR 154; Tripodi v R [1961] HCA 22; (1961) 104 CLR 1. Such lies were described by Kirby J in Zoneff v R (2000) 172 ALR 1 at 18 as "probative lies". It is well established that with respect to such lies, the jury should be given a "consciousness of guilt" direction. See Edwards v R (1993) 178 CLR.

29 In substance, the Crown evidence in this case that established the guilt of the appellant also destroyed his alibi. With respect to those who take a contrary view, it seems to me that there was no reasonable possibility that the jury engaged in the impermissible reasoning process that required the trial judge to warn them that if they were satisfied beyond reasonable doubt that the alibi was false, they should not necessarily infer therefrom guilt of the crime charged. Assuming that the jury acted with common sense and reasonably, they could not have rejected the alibi without accepting the evidence of the complainant. This evidence not only established that the alibi was false, but also established that the appellant was guilty of the crime charged.

30 I cannot help but respectfully agree with Kirby J when he said in Zoneff v R (supra) with respect to jury directions concerning the use that may be made of evidence of lies at 9:

"As is its wont, the law has tended to complicate needlessly a subject that calls upon the jury's reserves of common sense."

31 This was not a case like Lesley v R (supra) where the appellant might legitimately have been at the scene of the crime, but in order to bolster a defence, he invented a false alibi. The appellant's evidence that he had never been to the complainant's home and had not committed the crime, was in direct conflict with the complainant's evidence that he had and that he did. The issue at trial was whether it was the accused or some other person who inflicted the undisputed injuries on the complainant.

32 The only direct evidence that it was the appellant who inflicted the injuries came from the complainant. His evidence was that the accused and another man came to his house one morning when he and a Mr Berry were there drinking some whiskey. The complainant's evidence was that he knew the accused. He said that he had seen him about four to five years prior to the assault, when the accused called at the house in which he was then living to see a man with whom the complainant shared the house. The complainant said in cross-examination that on that occasion, he spoke to the accused for about 20 minutes. The complainant also gave evidence that since the time the accused visited the house that he was sharing with another, he had seen the accused about two or three times a year riding his Harley Davidson motor bike in the Hobart area. There was no challenge to this evidence. It was not put to the complainant that he had not previously spoken to the appellant as he claimed he had. It was common ground at the trial that the appellant rode a Harley Davidson motor bike and it was not put to the complainant that he might have been mistaken when he had seen the appellant riding a Harley Davidson motor bike on about two or three occasions a year since the time he met him and spoke to him.

33 The complainant's evidence was that the man who accompanied the accused was not known to him and took no part in the proceedings, other than to be present.

34 Mr Berry and the complainant gave evidence that the former left the latter's house immediately after the complainant let the appellant in. Mr Berry said that the appellant asked him his name and Mr Berry told him his name as he walked out of the house. Mr Berry said that he was in the house with the appellant for not more than a half to three quarters of a minute. He said that he left about 11.45am. Mr Berry said that he, too, knew the accused before that day. His evidence was that he only knew him as "A J" and that he had seen him at various places and people had pointed him out and said that he was "A J". He did not claim to have previously spoken to the appellant.

35 When first questioned by the police about the crime charged, Mr Berry said he did not know who either of the two men were who came to the complainant's house on the morning that the crime was committed. However, that statement to police was contrary to his evidence given at trial that he did recognise the appellant at the time he entered the complainant's house. This discrepancy was the subject of extensive, if not exhaustive, cross-examination and the witness was not able to satisfactorily explain it, although the jury might well have thought that Mr Berry's initial statement that he did not recognise either man was due to his desire not to become involved in the investigation.

36 Mr Berrys' evidence was that shortly after telling the police that he did not recognise either of the men who went to the complainant's house, he looked at some photographs the police showed him and identified the appellant therefrom.

37 The appellant's account was that he did not know the complainant, had not been to his house at any time, let alone on the morning of the attack and, further, up until a time shortly after the complainant was found badly injured outside his house by passers-by at about 12.45pm, he was at the hotel of which he was a part owner. In support of his claim to have been at his hotel, the appellant called evidence from three witnesses, the licensee, the cook and the mother of one of the bar staff. Each of them gave evidence in support of the alibi. It was not suggested to any of these witnesses that they were lying, but their accuracy and recollection was probed. Given that only a short distance separated the complainant's home and the hotel of which the appellant was a part owner, the time that these witnesses say they saw the appellant was critical. There was no evidence other than that to which I have referred from which the jury might have rejected the alibi evidence. It is obvious that the jury did reject that evidence. They may well have been of the view that it was not sufficiently precise, but it seems to me, that on any view of this case, the jury could not have rejected that evidence and reached their verdict without first being satisfied to the requisite degree that the complainant was a truthful and accurate witness. For this reason there was no call for the learned trial judge to direct the jury that they should not necessarily infer from a rejection of the alibi that the accused committed the crime charged.

38 It was not reasonably open, in my view, for the jury to have rejected the alibi evidence upon the basis that they accepted the evidence of Mr Berry but were uncertain about the complainant's evidence. As between the complainant and Mr Berry, the complainant knew the appellant much better than Mr Berry. So far as the complainant was concerned, it was not suggested by counsel for the appellant at the trial that he may have made a mistake in identifying the complainant. It was simply put that he was wrong when he said that the appellant assaulted him. The complainant was completely unshaken in his evidence that it was the appellant who attacked him. On the other hand, Mr Berry's evidence was subject to the criticisms, firstly that he had been with the appellant for less than a minute and, secondly, that he had told the police shortly after the occurrence of the relevant events that he did not know the identity of the appellant. In these circumstances, it is my opinion that no jury acting reasonably, could have reached a finding of guilt other than by accepting the complainant as a substantially truthful and accurate witness. Accordingly, there was no need for any direction in the event of the jury rejecting the evidence of an alibi. I am of the opinion that ground 5 is not made out.

39 It was, of course, common ground that there was no onus on the appellant to establish his alibi and that from first to the last, the Crown carried the onus of proving guilt beyond reasonable doubt. The learned trial judge made that perfectly clear to the jury in his directions. The learned trial judge set out, in summary form, the evidence adduced by the appellant and on his behalf to establish the alibi. As I have observed with respect to ground 5, the fundamental issue in this case is whether the jury were satisfied beyond reasonable doubt that the complainant was a substantially reliable and accurate witness. They could not possibly have been so satisfied and at the same time considered that the alibi evidence might reasonably be true. The manner in which the learned trial judge summed up made it perfectly clear to the jury that they needed to be satisfied beyond reasonable doubt that the alibi evidence was not true and that the evidence of the complainant and his supporting witness was, as I have said, substantially truthful and accurate. There were no complications about the evidence in this case. It was a direct conflict between the account of the complainant and the witness, Mr Berry, and the account given by the appellant and the witnesses called to give evidence on his behalf. In this case, if the jury thought that the alibi evidence might reasonably be true, they could not have been satisfied of the appellant's guilt to the requisite degree, or to put it the other way round, the only rational basis upon which the jury could have been satisfied beyond reasonable doubt of the appellant's guilt was by an acceptance of the complainant's evidence, a consequence of which was that there was no reasonable possibility that the alibi might be true. The straight forward direction given by the learned trial judge was appropriate for the facts, and the direction that ground 4 asserts should have been given would have been inappropriate. In my view, ground 4 is not made out.

40 With respect to the standard of proof, the learned trial judge gave the jury the following direction:

"Now the Crown must prove its case beyond reasonable doubt. It's dangerous for me to try and explain that concept in too much detail. A doubt is something which you'll feel and know if you have one. As responsible citizens you'll know in your own heart and mind what is reasonable, so if you have a doubt, but not a fanciful or far fetched doubt, but a doubt about the guilt of the accused and you can honestly say to yourself that you consider the doubt is a reasonable one in all the circumstances, then you'll acquit. Now a reasonable doubt is something which you must examine. You've each taken an oath as an individual, so you're not a committee to reach a general feeling. You should work together, you are a collective body in the sense that you would argue your point, remind another juror of a piece of evidence that you regard as important, state your conclusion, defend it in discussion with your fellow jurors, you would pay regard and pay respect for the view or the information provided by another juror, that's how juries work, but at the end of the day you don't say, 'Oh well, there's a consensus around, I'll join it'. You should each arrive at your own decision, you should each arrive at your own verdict, so therefore the testing of any doubt lies within your own conscience, your own heart and your own mind."

41 Counsel for the appellant submitted that, as set out in ground 6 of the notice of appeal, error attended the foregoing passage of the learned trial judge's summing up.

42 According to Wigmore's Treatise on Evidence (3rd edn) at par2497, the well established standard of proof in criminal cases - proof beyond reasonable doubt - has its origins no earlier than the end of the 1700s and applied at first only to capital cases. According to the learned author, in its early days, the standard of proof was expressed in a variety of ways, including, "upon clear grounds", "rational and well-grounded doubt" and "beyond the probability of a doubt".

43 In the 1876 (10th) edition of Starkie on Evidence, the learned editors write, at 864 - 865:

"What circumstances will amount to proof can never be matter of general definition; ... On the one hand, absolute, metaphysical and demonstrative certainty is not essential to proof by circumstances. It is sufficient if they produce moral certainty to the exclusion of every reasonable doubt; ... On the other hand, a juror ought not to condemn unless the evidence exclude from his mind all reasonable doubt as to the guilt of the accused, and, as has been well observed, unless he be so convinced by the evidence that he would venture to act upon that conviction in matters of the highest concern and importance to his own interest; and in no case, as it seems, ought the force of circumstantial evidence sufficient to warrant conviction, to be inferior to that which is derived from the testimony of a single witness, the lowest degree of direct evidence."

44 The issue of the standard of proof in criminal cases was first addressed by the High Court of Australia in Brown v R [1913] HCA 70; (1913) 17 CLR 570. In that case, the trial judge directed the jury that proof beyond reasonable doubt was the appropriate standard and went on to explain, at 584:

"'... A reasonable doubt, as I have already remarked, means a doubt such as would influence you in the ordinary affairs of life'. "

Barton ACJ said, with respect to that part of the summing up, at 584:

"It is objected that his Honour's definition of reasonable doubt is misleading and unsafe. I fully recognize that one embarks on a dangerous sea if he attempts to define with precision a term which is in ordinary and common use with relation to this subject matter, and which is usually stated to a jury without embellishment as a well understood expression. Had his Honour so left it, neither the present objection nor any other could have been taken to his direction in this regard."

45 Barton ACJ did not assert that it is an error to explain the meaning of the expression beyond reasonable doubt, only that it is dangerous to do so for it incurs the risk of error. In Brown it was held that error did occur because it is a notorious fact that in the "ordinary affairs of life" people often act without any proof at all.

46 Isaacs and Powers JJ were prepared to accept, at 594 - 595, that expressions such as "moral certainty as convinces the minds of the tribunal, as reasonable men, beyond all reasonable doubt", and that "degree of certainty in the case that you would act upon in your own grave and important concerns" might properly express the criminal standard of proof. At 596 their Honours said:

"It is simpler to ask for moral certainty - a term of clear conception - with reference to the circumstances of the particular case. And in referring to the necessary absence of reasonable doubt - which is a view of the same conception from the negative standpoint - reference should preferably be similarly confined to the circumstances of the case in hand, which include, of course, the common elements of human nature. We are fully conscious that the expression 'reasonable doubt,' though it can be amplified, cannot be simplified. Still, there are cases where amplification is necessary."

47 In Thomas v R [1960] HCA 2; (1960) 102 CLR 584, the impugned words in the trial judge's direction to the jury included "... you come to a feeling of comfortable satisfaction". All the members of the court joined in this proposition, expressed by McTiernan J at 587:

"It is a question whether what the jury is told means that they must be satisfied beyond any reasonable doubt that the accused is guilty. But there is a danger in venturing upon a novel elucidation of this principle of the criminal law."

48 However, in that case, error arose not from the fact of elucidation, but from the fact that what was elucidated led to error in the direction concerning the standard of proof. On this point, Windeyer J said, at 605 - 606:

"Of course, if the trial judge thinks that, influenced by advocacy or for some other reason, the jury may conjure up mere chimeras of doubt, he may well emphasize that for a doubt to stand in the way of a conviction of guilt it must be a real doubt and a reasonable doubt - a doubt which after a full and fair consideration of the evidence the jury really on reasonable grounds entertain. The task of the jury in a criminal case is to examine the evidence, bearing in mind that they must be satisfied beyond reasonable doubt - that they cannot be so satisfied if there be still open some reasonable hypothesis compatible with innocence. But it is not their task to analyse their own mental processes."

49 The admonition against elucidation expressed by the members of the court in Thomas was repeated by Dixon CJ in Dawson v R [1961] HCA 74; (1961) 106 CLR 1 at 18. The High Court returned to this issue in Green v R [1971] HCA 55; (1971) 126 CLR 28. I will not set out the direction given to the jury by the learned trial judge in Green, which was the subject of the appeal. Suffice to say that the explanation of a reasonable doubt was long and confusing. It led the court to refer to passages from the judgments in Thomas, Brown and Dawson, and with respect to them, say, at 32:

"It is thus remarkable that in this instance the learned trial judge, undeterred by the failures of illustrious predecessors, has made a new endeavour to explain that which requires no explanation and to improve upon the traditional formula. So far from succeeding where they did not, he has, in our opinion, not only confused the jury but has misdirected them."

50 However, as was the case in the earlier decisions, Green is not authority for the proposition that any elaboration on the expression "beyond reasonable doubt" is an error. The cases expressed the view that any elaboration is unwise, for it necessarily invites error.

51 It is interesting to digress at this stage to observe that in two jurisdictions that share common origins with Australia with respect to the onus and standard of proof in criminal cases, the United States of America and Canada, there is clear authority to the effect that a failure to elaborate on and explain the expression constitutes error. See Victor v Nebraska, [1994] USSC 15; 127 L Ed 2d 583 (1994); R v Lufchus (1997) 118 CCC (3d) 1. In the latter case, Cory J, with whose opinion the other members of the Supreme Court of Canada concurred, said, at 13:

"36 Perhaps a brief summary of what the definition should and should not contain may be helpful. It should be explained that:

* the standard of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, the presumption of innocence;

* the burden of proof rests on the prosecution throughout the trial and never shifts to the accused;

* a reasonable doubt is not a doubt based upon sympathy or prejudice;

* rather, it is based upon reason and common sense;

* it is logically connected to the evidence or absence of evidence;

* it does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it an imaginary or frivolous doubt; and

* more is required than proof that the accused is probably guilty -- a jury which concludes only that the accused is probably guilty must acquit.

37 On the other hand, certain references to the required standard of proof should be avoided. For example:

* describing the term 'reasonable doubt' as an ordinary expression which has no special meaning in the criminal law context;

* inviting jurors to apply to the task before them the same standard of proof that they apply to important, or even the most important, decisions in their own lives;

* equating proof 'beyond a reasonable doubt' to proof 'to a moral certainty';

* qualifying the word 'doubt' with adjectives other than 'reasonable', such as 'serious', 'substantial' or 'haunting', which may mislead the jury; and

* instructing jurors that they may convict if they are 'sure' that the accused is guilty, before providing them with a proper definition as to the meaning of the words 'beyond a reasonable doubt'."

52 However, that is clearly not the law in this country. Indeed, the common law of Australia is clearly to the contrary.

53 In R v Wilson & Ors (1986) 42 SASR 203, King CJ said, at 206:

"Where the judge considers such a qualification to be necessary, it is essential that he frame the qualification in terms which do not diminish the jury's sense of their obligation not to convict upon supposed proofs about which they, as reasonable persons, feel a doubt. The qualification, when made, should be in terms, such as those suggested by the passage cited above from Green's case, which caution the jury against regarding possibilities which are in truth fantastic or completely unreal as affording a reason for doubt, or in terms, often used, which remind the jury of the capacity of the human mind to conjure up fanciful, nervous or unreasonable misgivings about matters which are not in reality in doubt. It is permissible, if thought necessary, to warn a jury against unreasonable mental processes, but it is not permissible to suggest that they should disregard a doubt which, at the end of their deliberations, they think to exist, or that they are required to subject such a doubt to a process of analysis in order to determine its quality." [Emphasis added.]

54 In a later case, R v Pahuja (1987) 49 SASR 191, King CJ, at 194 eschewed the proposition that in Wilson he was asserting that "any attempt to explain the concept of reasonable doubt must necessarily be a misdirection". In Pahuja, the Chief Justice repeated the proposition, also at 194, that no harm may be done by the use of the expression "some stupid or fanciful or unreal doubt", provided it was used in contrast to the expression "real doubt" as used by the learned trial judge in that case. King CJ said, at 195:

"Such misgivings as one may feel in consequence of the directions on onus of proof in the main body of the summing up, are greatly intensified by what was said to the jury by way of redirection. In the passage quoted above, his Honour clearly invites the jury to subject any doubt which may be in their minds at the end of their deliberations to a process of evaluation in order to determine whether it is a reasonable doubt. The law does not require a jury to subject its mental states to a process of analysis or evaluation for the purpose of determining their quality. Mental philosophers, psychiatrists, psychologists and lawyers subject mental states to analysis and evaluation, but ordinary jurors are unlikely to be accustomed to doing so. Green (at 33), makes it clear that it is not part of the task of a jury to do so. Jurors are presumed to be reasonable persons. The test of reasonableness of a doubt is that the jury, properly aware of its responsibilities, is prepared to entertain it at the end of its deliberations. To direct or even invite a jury to subject a doubt which it entertains after deliberating upon the case, to a process of analysis or evaluation in order to determine whether it is reasonable, is an error of law."

55 Johnston J, who, with the Chief Justice, formed the majority in that case, said, at 220:

"There is a very great difference between speaking to a jury in general terms about the concept of reasonable doubt (inadvisable and dangerous although they may be) and telling the jury that if they, as a jury, entertain a doubt they are to further scrutinise the doubt to see whether it passes the test of being reasonable."

56 Counsel for the appellant submitted that the learned trial judge in this case made the same error as was made in Pahuja by inviting the jury to analyse any doubt they may entertain to see if it was reasonable.

57 In R v Britten (1988) 51 SASR 567, the closing direction of the trial judge was set out at 570:

"I suggest you consider the evidence very carefully to see what has been proved beyond reasonable doubt - whether on the evidence there is room for more than a theoretical or fanciful doubt."

58 King CJ accepted that in an appropriate case, a reference to fanciful or unreal doubts might not constitute a misdirection and concluded that were it necessary for him to decide the point, he would have to give careful consideration to summing up as a whole to determine whether "the true standard of proof was sufficiently conveyed to the jury".

59 The cases to which I have referred were considered by the Court of Criminal Appeal (Vic) in R v Neilan [1992] VicRp 5; [1992] 1 VR 57. In that case, the learned trial judge told the jury that "beyond reasonable doubt" means proof beyond a doubt which they, as a collective unit, considered reasonable. It was submitted that this meant the jury were told that if they had a doubt at the end of their deliberations, they should analyse that doubt to see whether it was a reasonable one. The court referred to the majority decision in Pahuja and the redirection which was held by the Full Court to have constituted an impermissible invitation to invite the jury to subject any doubt they might experience to analysis. With respect to that proposition, it was pointed out in the joint judgment that a reasonable doubt cannot be any doubt that a juror entertains at any stage, otherwise the word "reasonable" is otiose. I would respectfully agree with that proposition. At 70, the Court expressed approval of the following passage taken from the dissenting judgment of Cox J in Pahuja at 210:

"The criminal standard of proof implies that there may be in any given case an uncertainty, objectively speaking, called a doubt, about the guilt of the accused. The jury is required to find the accused not guilty if, but only if, it considers that doubt to be a reasonable doubt. A degree of analysis and evaluation in this respect - Is this a reasonable doubt? - is inseparable, to my mind, from the test. Of course, as the High Court pointed out, juries are not accustomed to the analysing of their mental processes in this deliberate and systematic fashion, and, understandably, it was held to be confusing, as well as unnecessary and undesirable, to invite them expressly to go through such an exercise, but that is another matter. Determining whether there is a reasonable doubt on the evidence requires the making of a judgment, and perhaps the discarding of perceived unreasonable doubts, even if it is all done unconsciously."

60 The Court in Neilan referred to the passage in Windeyer J's judgment in Thomas, which I have set out above, and pointed out that in the same case, Kitto J said, at 595, that one should not obscure "the vital point that the accused must be given the benefit of any doubt which the jury considers reasonable".

61 This question of whether it is permissible for a jury to be told, in effect, that they may analyse the reasoning process was revisited by the Appellate Court of Victoria in R v Chatzidimitriou [2000] VSCA 91. It was a most unusual case. On the second day of their deliberations, the jury asked the learned trial judge for a further explanation of the expression "beyond reasonable doubt" and it was given in the classic form. It seemed that was not sufficient, as the jury later requested a dictionary and one was sent in to the jury room. The principal issue on appeal was whether in so doing, error had occurred. It was held there was no error, for the sending of a dictionary did no more than permit the jury to do that which the law required them to do, namely, determine for themselves what is a reasonable doubt. In the course of his reasons for judgment, Phillips JA referred to the disapproval expressed by the majority in Pahuja of the jury analysing any doubt they might entertain to see if it is reasonable. He said that there was a difference between any doubt and a reasonable doubt, and although it was inappropriate for a jury to analyse their own mental process "too finely", it was clear that in determining whether there is a reasonable doubt on the evidence requires the making of a judgment and, as Cox J said in his dissenting judgment in Pahuja, "perhaps the discounting of perceived unreasonable doubt even if it is all done unconsciously". In Krasniqi v R (1993) 61 SASR 366, the learned trial judge directed the jury that if the evidence was open to the reasonable possibility other than the guilt of the accused, they must acquit, and went on to say, at 371:

"By saying this, I am not saying, and you must not understand me as saying, that you should give the accused person the benefit of every fanciful supposition or possibility that can be conjured up. Indeed, you should not regard possibilities which are, in truth, fantastic, or completely unreal, as a reason for doubt and as a basis for dissuading you from returning a verdict of guilty if, on the evidence, that verdict is the true and proper one."

62 At 374, Bollen J, with whose reasons the other members of the court agreed, said there was "an undesirable elaboration on the issue of onus of proof" and said, at 374:

"There is in the summing up an undesirable elaboration on the issue of onus of proof. But the jury has not been directed to analyse doubt. They were not carried past the point of reaching doubt. The learned trial judge told the jury that fanciful or fantastic suppositions or possibilities are not doubts. He did not postulate, or give the appearance of postulating, the existence of some doubt and tell the jury to decide whether the doubt was fanciful or fantastic. He did not leave room for analysis in that sense." [Emphasis added.]

63 Thus, it seems to me, that in stark contrast to some other common law jurisdictions, the common law in this country with respect to the directions concerning the standard of proof on the Crown in a criminal trial is that:

* it is not an error of law to elaborate on the expression beyond reasonable doubt, but it is undesirable to do so because elaboration invites error;

* in an appropriate case it is not an error of law to contrast a reasonable doubt with a fanciful or far-fetched doubt;

* it is for the jury to determine what is a reasonable doubt; and

* it is an error of law to direct the jury that they should analyse a doubt that they consider is a reasonable doubt.

64 In the present case, the impugned part of the learned trial judge's direction commenced:

"Now the Crown must prove its case beyond reasonable doubt. It's dangerous for me to try and explain that concept in too much detail. A doubt is something which you'll feel and know if you have one. As responsible citizens you'll know in your own heart and mind what is reasonable ...".

65 Thus far, no exception could be taken to the direction on the criminal standard of proof. The learned trial judge went on:

"... so if you have a doubt, but not a fanciful or far fetched doubt, but a doubt about the guilt of the accused and you can honestly say to yourself that you consider the doubt is a reasonable one in all the circumstances, then you'll acquit."

Although it might be said, on the basis of the authorities that I have set out at probably unnecessary length, that the addition of the words "but not a fanciful or far fetched doubt" were unfortunate and unnecessary, they do not, in my respectful view, alone, constitute a misdirection. The learned trial judge continued:

"Now a reasonable doubt is something which you must examine."

66 I will return to that expression shortly. He continued:

"You've each taken an oath as an individual, so you're not a committee to reach a general feeling. You should work together, you are a collective body in the sense that you would argue your point, remind another juror of a piece of evidence that you regard as important, state your conclusion, defend it in discussion with your fellow jurors, you would pay regard and pay respect for the view or the information provided by another juror, that's how juries work, but at the end of the day you don't say, 'Oh well, there's a consensus around, I'll join it'. You should each arrive at your own decision, you should each arrive at your own verdict, ..."

67 No complaint can be made about that part of the impugned direction. The learned trial judge concluded:

"... so therefore the testing of any doubt lies within your own conscience, your own heart and your own mind".

68 It seems to me that the phrase, "now a reasonable doubt is something which you must examine" is a misdirection. The authorities make it clear that the jury must not be told that they have to examine what they consider to be a reasonable doubt. By that phrase, the learned trial judge directed the jury that if they reached the stage of entertaining a reasonable doubt, then they must subject that doubt to analysis. The misdirection is compounded by the learned trial judge using the word "doubt" instead of "reasonable doubt" early in this part of his charge to the jury, although that was obviously an inadvertent slip and if stood alone, would not be likely to constitute error. But at the end of his directions upon this issue, the learned trial judge returned to the need to analyse the thinking process when he said "... so therefore the testing of any doubt lies within your own conscience, your own heart and your own mind". Although the reference to the individual juror's conscience, heart and mind in the concluding words was unobjectionable, the reference to "testing" reinforced the earlier direction that a reasonable doubt was something that must be examined or tested. The effect of the impugned passage in the summing up was to direct the jury that a reasonable doubt was to be contrasted with a fanciful or far fetched doubt, that if they entertained a reasonable doubt they must examine and test it by the application of individual consciences, hearts and minds, to ensure that the doubt was a reasonable one and not a fanciful or far fetched one. The direction amounted to an error of law.

69 The error is one that is so fundamental that it constitutes a miscarriage of justice and there is no place for the application of the proviso. See Wilde v R [1988] HCA 6; (1987) 164 CLR 365 at 373; Krakouer v R [1998] HCA 43; (1998) 194 CLR 202 at 226.

70 I would allow the appeal, quash the conviction and order a new trial.

71 I have had the advantage of reading the separate Reasons for Judgment prepared by the Chief Justice and Underwood J. I agree with their reasons for upholding the appeal and with the consequential orders they propose.