R v Collins [1999] QCA 27

Previous comments regarding probable versus improbable.

3 It is apparent from the form of the question that the jury was in need of clarification of aspects of the standard of proof and was in doubt about the relationship between the probability that the offences were committed and proof beyond reasonable doubt. The reference in the request for redirections to "previous comments regarding probable versus improbable" relates not to a direction on the standard of proof but to the direction as to possible approaches to credibility. The learned trial judge made the reference in the following passage of the summing up:

"You look at what a person has said. You see whether that story is inherently probable or improbable. You look to whether there is support for what is being said in other witnesses or whether there are matters which are contradictory to what the witness has been saying. All those normal tests you apply and you might find those of assistance in how you assess the witnesses here."

4 The learned trial judge gave a redirection in conventional terms, that the phrase "beyond reasonable doubt" consisted of everyday English words and that it was for the jury to interpret what "reasonable doubt" amounted to in the circumstances. He said it was necessary for the Crown to prove every necessary element beyond reasonable doubt. He gave a clear direction that the jury should look at all the evidence, decide what facts were found proved and then decide, on those facts, whether they were satisfied of the elements of the offence beyond reasonable doubt. He went on to say that the Crown did not have to prove all matters in evidence beyond reasonable doubt. No complaint was or could be made about that redirection standing alone.

5 As to the request for clarification of the previous comments regarding "probable versus improbable" he said the following:

"When you find facts, you look to matters which you do in your normal experience and it is in that context that I may have used "inherently probable", or "inherently improbable". They are simply tests that you use in your everyday lives. They are not tests which, in any way, suggest that you use in determining what elements have been established beyond a reasonable doubt." (sic)

The last sentence is probably incorrectly recorded. Probably "I" should precede "suggest" and we proceed on that assumption.

6 Following these redirections, the appellant's counsel, having expressed uncertainty as to what the jury meant in its request for redirections, asked the learned trial judge to give consideration to instructing the jury that if they were to believe the accused was probably guilty, that would not satisfy the test that the Crown had to meet. He said his concern was that they might have some understanding that if they thought he was probably guilty that might be enough to convict.

7 The Crown Prosecutor expressed satisfaction with the redirection given and suggested that the jury could ask a further question if it was still in doubt. That was an option that had been left to the jury by the learned trial judge at the end of his redirections. The learned trial judge decided not to give a redirection saying:

"I am going to decline to give them a further direction simply on the basis that I have directed them in the classic way. I do not wish to try and compromise the definition of 'reasonable doubt'."

8 Almost immediately the jury returned with verdicts of guilty. The ground of appeal is essentially that in view of their apparent uncertainty as to the relationship between probability and proof beyond reasonable doubt the jury should have been specifically told that if they were only satisfied that the accused was "probably" guilty, it was insufficient to achieve the requirement of proof beyond reasonable doubt.

9 It was correct for the learned trial judge to be cautious in case any redirection given infringed the prohibition against departing from the traditional formula in directing on proof beyond reasonable doubt (Green v The Queen (1971) 126 CLR 29). However, the question to be resolved in the particular circumstances of the case is whether, because of the focus of the jury's questions, a specific direction that it was insufficient to convict if satisfied only that it was more probable than not that the offences had been established was firstly permissible and secondly necessary. A secondary question is whether what was actually said in the redirection was sufficient to remove from the mind of the jury any misapprehension about the necessary standard of proof.

10 Green v The Queen at p.33 recognises that it would be proper and necessary for a trial judge to restore the balance particularly in a case where counsel had laboured the emphasis on the onus of proof to such a degree as to suggest to the minds of the jury that possibilities which were in truth fantastic or completely unreal ought to be regarded by them as affording a reason for doubt. The present case is not such a case. However, in R v McNamara (unreported, CA No. 261 of 1998, 1 December 1998) Thomas JA with whom McPherson JA and White J agreed said the following:

"It is to be recognised that there are cases where it may be proper for a trial judge to give directions beyond those which have been referred to above as conventional directions. The commonest of these will be the correction of an error of counsel on either side in relation to the meaning of the term during addresses; another may be when the jury asks a question about the meaning of the term. However the fact that the jury asks the question does not mean that the judge has to answer it by stepping beyond the recognised limits. I would not wish to circumscribe the occasions upon which it may be acceptable for a trial judge to give a jury some assistance beyond the conventional direction in relation to the meaning of the term "reasonable doubt", but it seems necessary to emphasise that as a general rule it is positively dangerous for a judge to attempt to elaborate beyond the conventional direction."

11 In the present case the jury asked questions which suggested that there was some uncertainty in the mind of one or more of its members about the standard of proof and in particular about the concepts of probability and beyond reasonable doubt. In the circumstances it was both necessary and desirable and not in contravention of the general rule about directions as to proof beyond reasonable doubt to give the jury a clear direction to the effect that proof on the balance of probabilities was insufficient.

12 The remaining question is whether the redirection set out in para.5 was sufficient to perform this function. The effect which the passage would have had on the jury is a matter of impression. The matter is not without difficulty, but after consideration we have come to the conclusion that if the jury was confused about the concepts of probability and beyond reasonable doubt the redirection did not make the distinction sufficiently clear.

13 This constitutes a fundamental defect in the conduct of the trial. It was conceded on the appellant's behalf that if such a finding were made it was a case in which a retrial should be ordered. Accordingly the orders are as follows: