R v McNamara [1998] QCA 405

3 The sexual misconduct of the appellant is alleged to have occurred between 1990 and 1994 when the complainant was aged between 7 and 11 years. The appellant was a friend of the complainant's father and the offences are alleged to have occurred at various places when the complainant and her brothers visited the appellant at respective addresses at which he resided. Some of these were holiday occasions. The first incident, when the complainant was seven or eight years old involved the appellant touching the complainant on the outside of her togs for several minutes when the complainant was standing in waist deep water at Series Creek. He rubbed the top of her legs and the area of her vagina by "coming in behind the back of my legs and through my legs that way". The second count concerned the time when the complainant was swimming with her father, her brothers and the appellant in the surf at Rainbow Beach. The appellant who was assisting her to catch waves is said to have started to rub the back part of her legs and to have started to rub the vaginal area on the outside of her togs while she was on her boogie board in the surf.

4 All the other counts involve distinct incidents on beds or bunks and at a picnic area.

5 A helpful statement of the approach of an appellate court when verdicts are said to be inconsistent, is contained in Mackenzie v R[1]:

"[The appellant] must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand."

6 Extensive discussion of the fine lines that separate cases where appellate intervention is necessary from those where it is not has occurred in a number of recent decisions and it is enough to note the observations in Mackenzie v The Queen[2] and in Jones v R [3]. In the particular circumstances of Jones, the court concluded that an acquittal on one count could only be explained upon the jury's rejection of the complainant's story and that "the only reasonable conclusion is that the jury were not satisfied beyond reasonable doubt of the truth of her evidence concerning the incident the subject of the second count". The court concluded that "it is difficult then to see how it was open to the jury to be convinced beyond a reasonable doubt of the guilt of the appellant with respect to the first and third counts".

7 In the present case the jury's acquittal of the appellant on the second count is readily explicable on the basis of the lack of control that might reasonably be inferred to have existed in a short incident involving bodily contact by one person and another who is on a boogie board in the surf. The defence of accident was not specifically raised, but it did not need to be. The acquittal is readily explicable as that of a jury which was quite satisfied with the general veracity of the complainant, but which perceived the possibility that the complainant may have misinterpreted the nature of the bodily contact in surfing conditions.

9 The complainant gave clear and acceptable evidence which was not weakened by cross-examination and she was supported in material respects by evidence from her brothers. Apart from the effect of the ground that remains to be considered there is no ground for thinking that the convictions on the other counts are unsafe.

10 In directing the jury as to the standard of proof the learned trial judge said:

"In a criminal trial the standard of proof is proof beyond reasonable doubt. As someone suggested to you, that is an expression which more or less speaks for itself. It is not capable of much useful elucidation. What can be said in relation to it, however, is that what is a reasonable doubt is essentially a matter for you. If in relation to any particular charge against the accused you do entertain a doubt about his guilt and that doubt seems to you against the backdrop of all the evidence in the case to be a reasonable doubt to have, then that is a reasonable doubt."

11 That direction is unexceptional, although it is not necessary for a trial judge to say even that much about the term, and in New South Wales at least, judges are urged not to give such a direction unless for special reasons.[4] The conventional direction on the subject of standard of proof requires in essence a statement that the Crown must satisfy the jury beyond reasonable doubt of the guilt of the accused by establishing the essential ingredients of the charge to that standard; that the accused is entitled to the benefit of any reasonable doubt in their minds; that the accused does not have to prove that he is innocent; and (preferably) that the accused is presumed to be innocent until the Crown shows otherwise.[5] Unfortunately his Honour went on to discuss the subject in the following way:

"What is a reasonable doubt is any doubt that you think is reasonable considered in the context of the whole case. There might be some doubts that you would entertain for only a second before you discarded them as having no substance or being purely theoretical or too farfetched for serious consideration. Those sorts of doubts may sometimes occur in the course of debate and discussion. If you instantly dismiss a doubt that you are dallying with for a moment, then that is not a reasonable doubt, but if you decide not only that you should think about it at all but that in the context of the whole case it is reasonable that you should pay attention to this doubt, then that is a reasonable doubt."

12 It is difficult to know why his Honour chose to essay these observations, in the light of well known warnings from this court and from the High Court. In Green[6] having referred to some of the "many admonitions" to judges against attempting needless explanations concerning the nature of the onus of proof, the High Court observed:

"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."

13 The statements of the learned trial judge in the present matter seem to apply a temporal test. They refer to "doubts that you would entertain for only a second before you discarded them as having no substance or being purely theoretical.." and assert that "if you instantly dismiss a doubt that you are dallying with for a moment, then that is not a reasonable doubt". There are also qualitative extrapolations such as "having no substance or being purely theoretical or too far-fetched for serious consideration".

14 The above passage was not only inadvisable, it was a misdirection.

15 A little over an hour after the completion of the summing-up the jury asked for a redirection - "just the definition of beyond reasonable doubt". The learned trial judge, apparently without reference to counsel, proceeded to give a further extrapolation which again repeated what I have described as a temporal test. His Honour said:

"Well there is no definition as such. I think what I said to you was that a reasonable doubt is a doubt which you have and which under all the circumstances you think is a reasonable one as being relevant to whether or not the accused is guilty or not guilty of the offence. Probably the only way to distinguish it is to say that it is not simply a frivolous doubt. A frivolous doubt is one that you would reject very quickly after it first occurred to you, but if you continue to entertain a doubt, you do not dismiss it out of hand, then that would be - you are continuing to entertain it because you would think it is worth giving consideration to. That is a reasonable doubt."

16 His Honour then asked if any member of the jury had a particular problem, which evoked the following statement from juror 12. "My problem is in believing two people. All I have in this particular case is one person saying no and someone saying yes". His Honour correctly told the juror that he could not listen to the way in which the jury were working things out, but proceeded to state that the jury was entitled to be satisfied beyond reasonable doubt about something on the evidence of one witness alone, and went on to give certain other directions which are unexceptionable. The problem mentioned by the juror is perhaps perplexing in that the appellant had not given evidence and no evidence had been led of anything he had said to the police. It may be considered as a reference to the complainant's evidence and the appellant's plea of not guilty.

17 In any event, the re-direction merely enhanced the error of the original direction. The error was at least as serious as that in Green (above) where it was held that it is a misdirection to state that a reasonable doubt is confined to a "rational doubt" or a "doubt founded upon reason".

18 To some the learned trial judge's statements may seem relatively harmless, but to others not so. Similarly, the statements of Smithers J. in Green[7] which attracted the condemnation of the High Court might seem to some to have been a sensible albeit lengthy homily that might help a jury. The problem is that the meaning and application of these common English words are the province of the jury not the judge. If judges were free to intrude into this area there would be heard a discordant medley of idiosyncratic themes and variations. This would seem to be an inevitable result of the strong temptation felt by judges to enter this area despite warnings not to do so.

19 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[8]. 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.

20 The test for application of the proviso has been conveniently stated as follows:

"Unless it can be said that, had there been no blemish in the trial, an appropriately instructed jury, acting reasonably on the evidence properly before them and applying the correct onus and standard of proof, would inevitably have convicted the accused, the conviction must be set aside."[9]

21 No objection was taken to the Judge's directions during the trial. However where an error is identified as "fundamental" it has been said that there is no room for application of the proviso.[10] There is no rigid formula for determining what constitutes a fundamental error. A minor error, for example, even on a point that is generally regarded by lawyers as very important, will not inevitably void a conviction. However questions such as the onus and standard of proof are rightly regarded as matters of central importance in the conduct of a fair trial, and the test quoted above suggests that directions on onus and standard of proof need to be essentially correct before a court would be entitled to apply the proviso under s668E of the Criminal Code in order to uphold a conviction. There is of course a distinction between comments which an appeal court considers would have been better left unsaid and an actual misdirection[11].

22 In the present case there are plain errors which may reasonably be thought to have affected the deliberations of the jury and it is impossible to apply the proviso. This is so notwithstanding that the Crown case on the offences of which the appellant was convicted was strong.

23 In the circumstances it will be necessary to set aside the convictions and order re-trials on counts 1, 3, 4, 5, 6 and 7. The present case is an appropriate one to remind trial judges of the folly of attempted extrapolation of the meaning of the term "proof beyond reasonable doubt", and of the wastage of resources and distress to witnesses that may be expected to result from such readily avoidable errors.

24 The appeal must be allowed. The convictions are set aside and a re-trial is ordered on counts, 1, 3, 4, 5, 6 and 7.

1 I have had the advantage of reading the judgment of Thomas JA and agree for the reasons which he has given that there must be a new trial in respect of counts 1, 3, 4 ,5, 6 and 7.

[1] (1996) 190 CLR 348, 366 per Gaudron, Gummow and Kirby JJ adopting a statement of Devlin J in R v Stone, unreported, but quoted in R v Hunt [1968] 2 QB 433, 438.

[3] [1997] HCA 56; (1997) 149 ALR 598.

[4] R v Reeves (1992) 29 NSWLR 109, 117.

[5] Reeves above at 117; c.f. Thomas v The Queen [1960] HCA 2; (1959-1960) 102 CLR 584; Dawson v The Queen [1961] HCA 74; (1961) 106 CLR 1, 18; Green v The Queen [1971] HCA 55; (1971) 126 CLR 28.

[7] [1971] HCA 55; (1971) 126 CLR 28.

[8] R v Wilson, Tchorz and Young (1986) 42 SASR 203; R v Britten (1989) 51 SASR 567. However some observations in these cases may need reconsideration in the light of Wilde v The Queen [1988] HCA 6; (1987-1988) 164 CLR 365, 372.

[9] Wilde v The Queen [1988] HCA 6; (1987-1988) 164 CLR 365, 372; compare Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517, 524.

[11] c.f. R v Knuth (CA No 64 of 1998, 23 June 1998).