Green v The Queen

The jury found each guilty on each charge laid against him. They were each sentenced to a term of imprisonment. Appeals were lodged to this Court, pursuant to s. 52 of the Australian Capital Territory Supreme Court Act 1955-1968 Cth, on behalf of Craig, Sigmund and Green, but counsel appearing before the Court on behalf of Sigmund and Craig announced that he was instructed to withdraw the appeals on behalf of those two appellants. Accordingly their appeals were by consent dismissed.

A number of grounds of appeal were argued on behalf of Green but it is sufficient in order to dispose of his appeal that we should deal with two of them.

The first ground is that in his summing up the trial judge improperly instructed the jury as to the onus of proof. This part of the summing up was applicable to all the charges against all four of the accused. We set out in full what the learned trial judge had to say as to the onus of proof:

Now I take you now to the burden of proof. The burden of proof, as you well know, is on the Crown, and it is on the Crown in respect of every issue in respect of every element of the crime. Well now, before you say you are satisfied for the purposes of a verdict about any issue, you of course have to reach a certain degree of satisfaction in your mind, and what degree of satisfaction must be reached? The answer is that you must be satisfied beyond reasonable doubt, and that is a time-honoured phrase and is usually thought to do very good work in seeing that nobody is convicted of a serious crime unless the court that tries him is satisfied of his guilt beyond reasonable doubt. And you may say, "Well, how do I know when I have got to a stage of being satisfied about something beyond reasonable doubt?" and the answer to that is that it is when you have reached the stage that you either have no doubt at all, because if you have got no doubt at all you must have got rid of all reasonable doubts; or if there is some thing nagging in the back of your mind which makes you hesitate as to whether you are satisfied beyond reasonable doubt, you have got to try and take it out and identify this thing which is causing the hesitation, causing the doubt if you like, and you have a look at it and you try to assess it and you say to yourself is this doubt that is bothering me, does it proceed from reason; is it a rational doubt; is it something which raises a really sensible doubt; or is it a fantastic sort of doubt; is it something which arises from some prejudice that I may have; some quite unreasonable fear that I might go wrong; some perhaps reluctance to make an unpleasant finding. Well, if it is one of those doubts - merely one of those doubts, then of course it cannot be described as reasonable because it does not come from reason; it comes from something which is emotional or irrational or - at any rate it is not based upon reason, and if you have had a look at what is bothering you and you decide that it does proceed from something which is not reason but something fantastic or rising out of prejudice or one of these other things, then you should say to yourself, "The only doubt I've got is one which is not based on reason, I have therefore got rid of all doubts which are not based in reason, and the result of that is that I am satisfied beyond reasonable doubt, because the only things that are worrying me are things which I now assess after looking at them as not based in reason."

And of course it is a commonsense point of view before you find anybody guilty of a crime like this, you do need to feel comfortable about it; you do need to feel, "Very well, I've considered everything and I'm really satisfied. I am satisfied beyond reasonable doubt; I have given it the best consideration I can." There it is. And then you go away from the court and you are comfortable, and that is the way you ought to be. You might not enjoy it, but you will nevertheless be comfortable, and unless you can make a decision of guilt and feel comfortable that it is the right decision, well then you do not make it.

His Honour made reference elsewhere in his summing up to the need to be satisfied beyond reasonable doubt but these references were, in our opinion, controlled by the definition of that expression which his Honour gave in the passage we have quoted.

Sir Owen Dixon in Dawson v. The Queen [1] said of a summing up in a criminal trial upon the onus of proof that in his view:

it is a mistake to depart from the time-honoured formula. It is, I think, used by ordinary people and is understood well enough by the average man in the community. The attempts to substitute other expressions, of which there have been many examples not only here but in England, have never prospered. It is wise as well as proper to avoid such expressions. His Honour referred in this connexion to Thomas v. The Queen [2] . 1. (1961) 106 C.L.R. 1, at p. 18. 2. (1960) 102 C.L.R. 584.

In Brown v. The King [3] Barton A.C.J. in reference to the traditional formula said:

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 as a well understood expression. 1. (1913) 17 C.L.R. 570, at p. 584.

McTiernan J., in Thomas v. The Queen [1] , observe "But there is danger in venturing upon a novel elucidation of this principle of the criminal law" i.e. of proof beyond reasonable doubt.

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. 1. (1960) 102 C.L.R., at p. 595.

Attempts by paraphrase and embellishment to explain to juries what is meant by satisfaction beyond reasonable doubt are not always helpful. And explanation is not always necessary It is said that it ["the time-honoured expression"] "was invented by the common-law judges for the very reason that it was capable of being understood and applied by men in the jury box" The expression proof beyond a doubt conveys a meaning without lawyers' elaborations. 1. (1960) 102 C.L.R., at pp. 604-605.

Those quotations are but some of 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.

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. In consequence there must be a new trial not only in the case of Green but in that of each of the others tried with him for, as we have observed, the quoted passage of the summing up was applicable to the case of each of them. Public time and expenditure has been wasted and the time elapsing between the making of the charges and their final disposal has been unnecessarily prolonged.

In the first place, the passage in the summing up which we have quoted must at best have been confusing to the jury. Indeed we are unable to feel any confidence as to what they would understand by the totality of what the judge told them. We point out later on what we think would have been their dominant impression.

In the second place, 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 [1] . 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.

But the error, in our opinion, does not end there. If the jury could get any clear picture from the trial judge's directions, we think the predominant impression they would take to the jury room would be that a comfortable satisfaction of the accused's guilt would be enough to warrant conviction. It seems to us that the language used in this portion of the summing up equated satisfaction beyond reasonable doubt with that comfortable satisfaction felt by persons who have done their best and depart self-satisfied with their efforts. Such a standard of conduct on the part of a jury in a criminal trial would in our opinion be a denial of that traditional solicitude for certainty expressed in the traditional formula as to the onus of proof.

If during the course of a trial, particularly in his address to the jury, counsel for the accused has laboured the emphasis on the onus of proof to such a degree as to suggest to the minds of the jury that possibilities which are in truth fantastic or completely unreal ought by them to be regarded as affording a reason for doubt, it would be proper and indeed necessary for the presiding judge to restore, but to do no more than restore, the balance. In such a case the judge can properly instruct the jury that fantastic and unreal possibilities ought not to be regarded by them as the source of reasonable doubt. In the passage which we have quoted from the summing up in this case the trial judge did alert the jury to the impropriety of acting upon such possibilities. We do not know whether counsel for the accused had actually sought to influence the jury in an inadmissible way calling for the judge's intervention. But in any case as we have indicated the judge did not confine his remarks to restoring a proper balance in the mind of the jury. Cf. Thomas v. The Queen, per Windeyer J. [1] .

Lastly on this aspect of the summing up, the language of the trial judge was calculated to lessen the sense of responsibility of the jury in the sense in which that expression was used by Isaacs and Rich JJ. in Hicks v. The King [2] . It seems to us that its clear tendency apart from its obfuscation and inaccuracy was to blunt the jury's proper sense of reluctance to act whilst what they might consider a reasonable doubt had not been removed. In our opinion, the jury were not properly instructed as to the onus of proof. For that reason alone there must be a new trial. See Thomas v. The Queen [3] .

1. (1920) 28 C.L.R. 36, at p. 46. 2. (1960) 102 C.L.R. 584.

The second ground of appeal with which we should deal, is the submission that the summing up was unbalanced, unfair and considerably slanted against the accused. We have studied the whole summing up anxiously and very carefully. The admitted facts of the case, even if the young woman had consented to the successive activities of the four young men, were most likely to cause revulsion and disgust in the minds of decent men. Consequently the risk of prejudice against the accused was high. One might have expected the trial judge to have been sensible of this risk and to have taken pains to ensure that the jury appreciated the need to consider the vital issue of consent or no consent calmly and objectively eschewing any inadmissible influences. But so far from doing so, the trial judge himself betrayed an emotional approach to the facts which reflected itself in the language he employed. He presented his own view which was frequently, though not always, unfavourable to the accused. He was of course entitled to express his opinion of the facts as long as he made it clear to the jury that they were not bound by his views. But, although at several points the jury were reminded that the facts were for them, we have come to the conclusion that this summing up transcends anything that a trial judge was entitled to do in the circumstances. In reading and re-reading the whole summing up we have been driven to conclude it was unfair, lacking in judicial balance and so partaking of partiality as to render this trial a miscarriage of justice. These qualities so pervade the summing up that quotation of single passages from it is unprofitable. It must be read, as we have read it, as a whole.

For each of these reasons, in our opinion, special leave should be granted, the appeal allowed and a new trial ordered.

Counsel for the Crown agreed on the hearing of this appeal that if the Court were of the opinion that the direction as to onus was defective and that for that reason, apart from other reasons, a new trial were ordered in the case of Green, appropriate steps would be taken to move to set aside the dismissal of the appeals of Sigmund and Craig and to facilitate an appeal in the case of McIntosh.