R v Chatzidimitriou [2000] VSCA 91

Court of Appeal (Vic)|2000-05-25|Before: PHILLIPS and CALLAWAY, JJ.A. and CUMMINS, A.J.A.

The applicant, Emmanuel Chatzidimitriou, was convicted in the Supreme Court at Bendigo of the murder near Castlemaine on 28 November 1996 of Ian Freeman. The prosecution case was that the applicant himself killed the deceased and was retained to do so by the wife of the deceased, Susan Freeman, for financial reward. Both the applicant and Mrs Freeman were charged as principals with the murder. They were jointly presented. The learned trial judge directed that each be

tried separately. The learned judge so directed essentially because he found that the admissible prosecution evidence against each respective accused was significantly different, as contemplated by R v Darby[25]. In the event the applicant was tried at Bendigo in September 1998. He was convicted by a jury of murder. Sentence was deferred. Mrs Freeman was tried in Melbourne in April 1999. She also was convicted by a jury of murder. After pleas, each was sentenced to 22 years' imprisonment with a direction that a minimum period of 17 years' imprisonment be served before eligibility for parole. Each has applied (on different grounds) for leave to appeal against conviction. The applications, as with the trials, were heard separately.

The applicant Mr Chatzidimitriou has applied for leave to appeal against conviction on two grounds: first, that the verdict was unsafe and unsatisfactory; and second (added seven months later by leave of the Registrar), that the learned trial judge erred in having a dictionary provided to the jury during its deliberations in response to the jury's request for a dictionary. The circumstances of that request and provision are set out below.

Submissions on behalf of the applicant were confined to the dictionary ground. The ground that the verdict was unsafe and unsatisfactory, sensibly, was not argued.

The trial of the applicant Mr Chatzidimitriou was held at the sittings of the Court at Bendigo. The trial occupied 17 days. Fifty-six witnesses were called by the prosecution. The applicant and two other witnesses for the defence gave evidence. Essentially the defence was that the applicant did not kill the deceased and that a prosecution witness, one Ian Richard Brown, did. Final addresses of counsel occupied three days. The learned judge's charge to the jury occupied some four and a half hours over two days. No complaint is made concerning His Honour's charge nor could there be. His Honour at the outset of his charge and at its end correctly directed the jury as to the criminal standard of proof. The jury was segregated and retired to consider its verdict at 12.30 pm on Tuesday 29 September 1998. At 5.30 pm its deliberations were suspended until the next morning. The jury recommenced its deliberations at 9.30 am on Wednesday 30 September. At 10.00 am through its foreman the jury made a request (in writing) for a further direction of law (on corroboration), for a further summary of evidence (the re-examination) of one witness and for the following: "Define 'doubt', define 'reasonable doubt', define 'beyond reasonable doubt'." On its face, each request was intelligently directed by the jury. The requested evidence related to the movements of the applicant on the fatal night, the requested direction of law related to corroboration of the central prosecution witness (and the true killer according to this applicant's defence), and the requested further direction of law concerning the expression "beyond reasonable doubt" showed the jury's application of mind to its function.

The jury returned into court and the learned judge dealt with the jury's request for evidence and for legal direction on corroboration correctly and no complaint is made as to that. His Honour then continued:

"Now, the last matter, members of the jury, is the explanation of doubt, reasonable doubt and beyond reasonable doubt. In that I can give you less assistance really because the law has always taken the view that those are very plain English words and ought to be interpreted by the jury to mean exactly what they say, namely beyond reasonable doubt. It is impossible to put another definition on them. The only thing one can say about it, and you have heard this said, is that it is a very high standard of proof which the Crown bears because it makes the accusation in a very, very serious matter, criminal accusation, and therefore it has this very high onus placed upon it by the law of proving the allegation of the crime beyond reasonable doubt. By contrast, in a civil case, disputes between citizens about various things, business matters or whatever, damages claims, those sort of cases which are not criminal cases, they're civil cases which are involved with compensation. There the standard is on a balance of probabilities. In other words, what is more probable than not is enough. You tip the scales one way if the plaintiff can prove his case on a balance of probabilities, well, the plaintiff wins, in a civil case. That is not sufficient in a criminal case. In a criminal case the Crown must go much further and prove its case beyond reasonable doubt. It is a high standard of proof in which probabilities and possibilities are not sufficient. I do not think I can do any better than that for you. In fact, that is - the courts have over and over said that it does not assist juries to try to interpret those words any more than by what I have said to you."

His Honour, in the presence of the jury, then enquired of counsel whether counsel sought any further direction. The prosecutor sought a further direction on corroboration, which was given and of which no complaint is made and which is presently immaterial. His Honour then addressed defence counsel and the following occurred (still in the presence of the jury):

"HIS HONOUR: Mr O'Doherty, is there anything else you'd like me to ... MR O'DOHERTY: Yes, Your Honour, I thought the first part of the first question was a request of you to define doubt. I didn't write it all down, but I thought that was the first . . . HIS HONOUR: Doubt? MR O'DOHERTY: Yes, and I take it that that's rolled up in the question of reasonable doubt. HIS HONOUR: The way the question is put by the jury is that the request is to define doubt, reasonable doubt and beyond reasonable doubt, which becomes a compendious process. MR O'DOHERTY: Yes. Does Your Honour intend to say anything about that, that first part? HIS HONOUR: I don't think so, Mr O'Doherty, I think that I take the question to refer to the onus of proof which the Crown bears beyond reasonable doubt, and those are simply the words in that phrase, and I doubt very much whether one can go any further than what I'm permitted by the authorities to do. MR DOHERTY: Yes, and of course it follows that if a doubt does exist and persists, then obviously the jury is to acquit. HIS HONOUR: I have said this to the jury and I assume that the jury remember that. I have told you previously that if you consider this question of proof that the Crown bears beyond reasonable doubt, of course if you have a reasonable doubt about any of the elements that constitute the crime - in this case whether it was in fact murder as distinct from suicide or some other event, and whether it was the accused who committed the murder, if it was a murder - if you have a reasonable doubt about any of those matters of course the benefit of that doubt must be given to the accused, you must acquit. On the other hand, if you don't have a reasonable doubt and you're satisfied of all the elements, then of course it's your duty to convict, so I assume you understood that. Yes, thank you, you may now retire."

The jury then retired, further to consider its verdict.

No complaint is made of His Honour's further direction as to the criminal standard of proof, nor could there be. His Honour's directions were consonant with long-standing authority, both in what he said and what he did not say. His Honour treated the expression "beyond reasonable doubt" holistically. He referred to the jury's tripartite request (define doubt, reasonable doubt, and beyond reasonable doubt) as "a compendious process". He did not in terms direct the jury not to consider the individual words in the expression "beyond reasonable doubt" - a wise reticence - but his direction led the jury's mind to the unity of the expression.

Then, a few minutes later, through its foreman the jury (whilst remaining in the jury room) sent out a request for a dictionary. The following was said (now in the absence of the jury):

"MR O'DOHERTY: Your Honour, obviously - I'm assuming it goes to that non-definition that you've given them about 'reasonable doubt'. HIS HONOUR: The words 'reasonable doubt', yes. MR O'DOHERTY: It troubles me to think that a jury are going to - or want to go through a dictionary and we've just briefly had a look at the definition in the dictionary of 'reasonable' - I haven't gone to 'doubt' but it's - in my submission it wouldn't be helpful for them to have a dictionary. HIS HONOUR: It would. Mr O'DOHERTY: It would not. HIS HONOUR: It would not be. MR O'DOHERTY: No; the authorities say that the court should not define those words, they mean what they say, they have a plain meaning that is comprehended by ordinary people, by juries, and in my submission. HIS HONOUR: The courts might be wrong, the jury may want to understand the language a bit better by looking at a dictionary. MR O'DOHERTY: I'm not going to jump up and down about it. All I'm saying, from a tentative view, is that I'm a bit uneasy about them having it but if Your Honour thinks it's going to assist them. HIS HONOUR: Mr O'Doherty, I know that the courts have taken a very strong view that judges ought not give "beyond reasonable doubt" a legal definition and in fact the only direction that's really permissible is that which I've given they're plain English words and that it connotes a very high standard of proof in the law. But when one tells lay people that it is a matter of plain language and they want to understand the language better, why should they not have recourse to an authorised dictionary? It's not a matter of law they're looking at, it's a matter of language."

"I think that the directions given to juries about the standard of proof which requires that they be told that these are matters of the use of ordinary language which says what it means, does involve the jury tapping its knowledge of language and I see no reason why a reference to a recognised dictionary, if they feel it may assist them, in terms of language rather than any legal principle, I don't see any reason why that shouldn't be allowed and I think I will permit that."

Accordingly the two volume Oxford Shorter English Dictionary (1959) was provided to the jury in the jury room. At 2.25 pm that day the jury returned a verdict of guilty of murder.

What should the learned trial judge have done when the jury requested a dictionary? Presumably the request related to the jury's previous, tripartite request to "define 'doubt', define 'reasonable doubt', define 'beyond reasonable doubt'". Despite the careful, and correct, further direction of law the judge had given the jury - directing as it did the jury towards the unity of the expression "beyond reasonable doubt" - the request for a dictionary inevitably involved the division by the jury, at some point, of that expression into separate, individual words. (That does not mean the jury would not then have proceeded to the unified expression. But it involved its initial breaking up). The applicant submits that the learned judge should have refused the jury's request.

Such a submission offends commonsense and is wrong in law.

First, commonsense. For a refusal to be efficacious (and for it to eradicate now suggested error) the judge would have had to give the following directions of law to the jury. First, that the request is refused. Second, to consider the expression without reference to any knowledge jurors may have of the meaning of the individual words and for jurors to put their knowledge of individual words aside. Third, not to discuss amongst themselves the possible meaning of the individual words. (And if the jury had not been segregated - as most jurys are not, and indeed as Mrs Freeman's Melbourne jury was not - not themselves to consult a dictionary.) Such incongruous corollaries demonstrate the error of the premise the applicant now contends for. Jury deliberation is not an investment in ignorance.

Unless those further directions be given by the judge, the mischief which the applicant now complains of will live in the jury room. It will not be laid to rest. It will haunt judicial consideration of jury deliberation. For it is highly likely that a responsible jury will ask itself, pursued to a greater or lesser degree, the question "What does reasonable mean?" Such an exercise is, properly and by long standing authority, forbidden to judges. The corollary of the applicant's argument is that it should be forbidden to juries. That is not the law.

The risk inherent in the jury having recourse to a dictionary is that the jury having atomised the expression "beyond reasonable doubt" might fail to proceed to consider and apply it holistically. As Keats wrote "philosophy will clip an angel's wings". But that risk always exists, dictionary or not. And the provision of a dictionary - which makes it very likely the jury will atomise the expression by reference to the dictionary - does not make it the more likely the jury will not proceed thereafter to consider and apply the expression holistically. There is no reason at all to suppose the jury would not proceed to the unified expression, having referred to the dictionary as an aid as to its constituent parts.

The dictionary which was provided to the jury defined "reasonable" (omitting irrelevancies) as

". . . 1. Endowed with reason . . .2. Having sound judgment; sensible; sane. Also, not asking for too much. . . . 3. Agreeable to reason; not irrational, absurd or ridiculous. . . 4. Not going beyond the limit assigned by reason; not extravagant or excessive; moderate . . . "

The dictionary defined "doubt" (omitting irrelevancies) as

". . . 1. The (subjective) state of uncertainty as to the truth or reality of anything. With A feeling of uncertainty as to something. B. The condition of being (objectively) uncertain; a state of affairs giving occasion to uncertainty. 2. A doubtful matter or point; a difficulty."

What lies within the dictionary which the jury, unaided by it, would not itself consider, albeit in less formal terms? Any responsible jury, which has not been judicially directed to shroud itself in ignorance (per 39 above) is likely to ask itself: does "reasonable" mean rational? Or not irrational? Does it mean sensible? Does it mean not absurd, excessive or ridiculous? Such perambulations will often occur with juries. Judges, correctly, are forbidden so to perambulate. Juries are not forbidden. Thus the irrelevancy of the applicant's many cited authorities. Responsible citizens have been consulting the Oxford English Dictionary since 1933 (and the New English Dictionary on Historical Principles since 1884), if not the dictionary of Dr. Samuel Johnson (A Dictionary of the English Language) since 1755 or that of Robert Cawdrey (A Table Alphabetical) since 1604. The two volume Shorter Oxford English Dictionary held in the Bendigo Court and provided to this jury was published in 1959 under the general editorship of the distinguished C. T. Onions. It is an authoritative work. Responsible citizens would be affronted to be told that, in the information age, the law forbids them doing as jurors what persons have done since 1933 (or 1884 or earlier) as an aid to understanding language.

The applicant's submission also is wrong in law. The applicant's counsel cited authority after authority establishing that judges should not seek to define or extrapolate the expression "beyond reasonable doubt" in judicial direction to juries. No one suggests otherwise. The learned trial judge did not do so. The numerous authorities cited are beside the point. It is right that judges should not define the expression. The convoluted exegesis given the jury by the learned trial judge in Green v R.[26] demonstrates why. Many like cases demonstrate likewise. The authorities arise because judges in directing juries have erroneously gone to some touchstone other than the words "beyond reasonable doubt". But no authority establishes that juries must not consider the meaning of the expression. Nor is there any authority which establishes that juries must not, in considering the expression, consider its constituent parts. Of course, the jury, thus assisted by its discrete consideration, must return to the holistic expression. There is nothing in the present case which militates or even tends to the jury's not taking that further step.

There is no authority which establishes that juries are not permitted to define for themselves the expression "beyond reasonable doubt". On the contrary, that is precisely what the authorities say the jurors should do - define it for themselves. As Kitto J observed in Thomas v R.[27] one should not obscure "the vital point that the accused must be given the benefit of any doubt which the jury considers reasonable". His Honour went on (also approved): "Whether a doubt is reasonable is for the jury to say". But that definition is not an exercise in ignorance or blindness or caprice. As the learned trial judge correctly identified: "It is a matter of language". That is what dictionaries are for. If it be not tautologous for it to say so, the definition of dictionary is "a book dealing with the words of a language, so as to set forth their orthography, pronunciation, signification and use . . ." S.O.E.D (1959). For more than a century, judges have had recourse to dictionaries - although that of course does not conclude the separate question whether juries should be permitted (or forbidden) to do so. Lord Coleridge CJ in R v Peters[28] said (for himself and Hawkins, Day and Grantham JJ):

"... it is a well known rule of courts of law that words should be taken to be used in their ordinary sense, and we therefore sent for instructions to these books..."

The word then being considered was "credit". His Lordship consulted Johnson's Dictionary and also Webster. (Two years earlier, the Clarendon Press had published the first section (A-Ant) of J.A.H. Murray's New English Dictionary on Historical Principles (now the Oxford English Dictionary) and under that celebrated editorship continued progressively to publish that dictionary until 1928, Murray having died in 1915).

Counsel for the applicant relied upon certain dicta in support of a contention that a jury should not be overly analytical in its processes, such submission being called in aid of judicial refusal of the provision of a dictionary. Preeminently those passages were: "A reasonable doubt is a doubt which the jury entertain in the circumstances"[29]; "If at the end of their deliberations, the jury have a doubt, that doubt is ipso facto, as Green's case establishes, a reasonable doubt"[30]; and "It is not their task to analyse their own mental processes".[31] But those dicta were articulated as part of appellate reasoning as to erroneous directions by trial judges to juries. So much is apparent from the further passage in Green[32]: "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". Likewise in Wilson and Thomas.

The dicta relied upon by counsel for the applicant, the pre-eminent of which are cited in the previous paragraph, if misapplied to jury consideration (as distinct from judicial definition) result in the adjective "reasonable" in the expression "beyond reasonable doubt" being defined out of existence. That is not the law, nor should it be. The adjective "reasonable" qualifies the noun "doubt". Prospective judicial direction at trial goes to the quality of the doubt, not the quality of the juror. The above appellate dicta relate not to a priori judicial direction to the jury - else the word "reasonable" should be eliminated from judicial direction to the jury - but relate rather to characterisation of the jury process after the jury has been properly instructed (including by the word "reasonable") and after its full and careful deliberation: then, if a doubt persists, the doubt is regarded as reasonable. The dicta are of an operational, reflective nature. They are not prospective. That is clear from the words "at the end of their deliberations".[33]

Counsel for the applicant submitted that, by having a dictionary provided to the jury at its request and thus facilitating the jury's attempting its own definition of "beyond reasonable doubt", the learned trial judge "constructively misdirected" the jury. The provision of the dictionary was not a constructive misdirection. The dictionary at most was an aid to the understanding of individual words. It was not a judicial direction. The submission of counsel involves that jurors should act upon ignorance rather than upon knowledge.

There was no error in the learned trial judge causing the dictionary to be provided to the jury, given His Honour's correct directions to the jury and the jury's request for a dictionary.

The ground that the verdict was unsafe and unsatisfactory, sensibly, was not argued. The prosecution case was strong.

Accordingly I consider the application for leave to appeal against conviction ought be dismissed.

The applicant also has applied for leave to appeal against sentence. He contended that the sentence imposed by the learned trial judge was manifestly excessive. It was not. Although the applicant was aged 50 years and had no prior convictions, this was a contract killing done with extensive planning and premeditation, in cold blood, of an innocent citizen and father. The sentence is substantial, but properly so, and well within range.

The application for leave to appeal against sentence ought be dismissed.

[10] Burrows v. R. [1937] HCA 56; (1937) 58 C.L.R. 249 at 256, R. v. Thompson [1960] VicRp 82; [1960] V.R. 523

[11] R. v. Pahuja (1987) 49 S.A.S.R. 191 at 194-5

[12] for example, Thomas v. R.[1960] HCA 2; (1960) 102 C.L.R. 584 ("comfortable satisfaction"); R. v. Hildebrandt (1963) W.N. (Pt 1) (N.S.W.) 143 ("to a point of reasonable certainty"), R. v. Wilson, Tchorz & Young (1986) 42 S.A.S.R. 204 ("doubt beyond reason"), Peter McLay Chedzey (1987) 30 A.Crim.R. 451 (C.C.A., W.A.) ("beyond any skerrick of doubt") and Samuel Michael Condo (1992) 62 A.Crim.R. 11 (C.C.A., W.A.).

[16] See also 194 per King, C.J. and compare R. v. Reeves (1992) 29 N.S.W.L.R. 109 at 116-117.

[18] See also and compare R. v. Dam (1986) 43 S.A.S.R. 422 at 429-30; R. v. Pahuja at 194-195, 219-221; R. v. Neilan [1992] VicRp 5; [1992] 1 V.R. 57 at 71; Krasniqi v. R. (1993) 61 S.A.S.R. 366 at 367, 371-375 and R. v. Lancefield [1999] VSCA 176 at [1], [24], [35].

[19] See the fifth sentence of [[].

20] R. v. Pahuja was considered in Neilan's Case at 69-71 but not R. v. Wilson.

[21] Woolmington v. Director of Public Prosecutions [1935] UKHL 1; [1935] A.C. 462 at 481.

[22] [1999] HCA 52; (1999) 73 A.L.J.R. 1497 at [82]. His Honour was in dissent, but few judges would differ from the sentiments expressed in the passage I am about to quote.

[23] Compare the passage from R. v. Wilson set out in [[].

24] As at present advised, for the reasons set out in [[], I prefer what I have written to telling the jury that a reasonable doubt is a doubt that they consider reasonable, but see ]Green's Case at 34 lines 8-9 and Neilan's Case at 71, especially but not only lines 37-39.

[26] [1971] HCA 55; (1971) 126 CLR 28 and cited at 30-31.

[27] [1960] HCA 2; (1960) 102 CLR 584 at 595 (cited with approval by Barwick CJ and McTiernan and Owen JJ in Green at 32).

[29] Green at 32-33 per Barwick CJ and McTiernan and Owen JJ.

[30] R v Wilson and ors (1986) SASR 203 at 206 per King CJ.

[31] Thomas at 606 per Windeyer J, cited with approval in Green at 33 per Barwick CJ and McTiernan and Owen JJ.

"In the case in which it was laid down by Windeyer J. that it is not the jury's task to analyse their own mental processes, (Thomas v. R. [1960] HCA 2; (1960) 102 C.L.R. 584, at p.606) it was also said by Kitto J., at p.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'. This passage from the judgment of Kitto J. was indeed cited with approval by the High Court in Green v. R. [1971] HCA 55; (1971) 126 C.L.R. 28, at p.32, that being the decision upon which reliance was placed by the majority in Pahuja. A little later, at p.34, the court in Green spoke of `the jury's proper sense of reluctance to act whilst what they might consider a reasonable doubt had not been removed'. The charge in Green was not one in which the judge had simply told the jury that guilt must be proved beyond reasonable doubt and that a reasonable doubt was one which they considered reasonable: the charge was one which not only spoke of `a rational doubt'; `a really sensible doubt' and `a fantastic sort of doubt' but also went on to suggest to the jury that satisfaction beyond reasonable doubt meant that comfortable satisfaction felt by persons who had done their best. This passage does appear in the joint judgment, at pp.32-3: `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.' But this cannot mean that a reasonable doubt is anything other than a doubt, to use the language of Kitto J. which had been approved a little earlier, `which the jury considers reasonable'. The court is saying that the jurors set the standard of what is reasonable. To the references given by Cox J. in Pahuja to judicial recognitions of the fact that juries may entertain doubts which they should not characterise as reasonable it will be sufficient to add a reference to what is said in the judgments in Chamberlain v. R. (No.2) [1984] HCA 7; (1984) 153 C.L.R. 521." {Emphasis added]

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