The Solicitor-General, who appeared to argue the case for the Crown, however, drew our attention to a passage in the charge of the learned judge to the jury and suggested that that passage might constitute a miscarriage and so vitiate the whole of the charge to the jury. The learned trial judge at that stage had not had his attention directed to the challenged passage, and we thought it proper to ask his view before dealing with the case. The trial judge has now given us a further report in which he says: 'My attention has been directed to that portion of my summing up on pp. 149-50 of the transcript, and I have the honour to report that I believe the transcript accurately reports what I said in summing up to the jury'. Therefore, we now have to consider the passage to which our attention has been directed.

We approach the decision in this matter in full sympathy with the opinion of the Court of Criminal Appeal in England, that it would be a great misfortune, in criminal cases especially, if the accuracy of the summing up were made to depend upon whether or not the judge had used a particular formula of words. It is not the formula that matters, it is the effect of the summing up (R v Kritz, [1950] 1 KB 82, at p. 89; [1949] 2 All ER 406), and we are of the opinion of the present Chief Justice of the High Court when he said, 'I do not think we should draw fine distinctions between various expressions used to convey to a jury that the proof must establish guilt beyond all reasonable doubt' (Burrows v R [1937] HCA 56; (1937) 58 CLR 249, at p. 258).

The passage to which our attention is directed is this: 'The burden always rests upon the Crown of proving his guilt and proving it to the jury's satisfaction beyond all reasonable doubt. If at the end of your deliberations, when you come to consider the case against each accused separately, you are not satisfied beyond all reasonable doubt as to the guilt of either or both of the accused of any one or other of the charges, it is your duty to find him not guilty. If at the end of your deliberations you have got a substantial doubt in your mind, and it has got to be a substantial doubt, then you would not be satisfied beyond all reasonable doubt.' That is the passage to which our attention has been directed. In the first place, we make this observation that there are few, if any, words in the language whose meaning is so fixed that the meaning cannot be affected by the context in which it is used. In relation to the word 'substantial', for instance, if the context shows that it is used in contra-distinction to such words as trifling, fantastic or illusory, the word may have one meaning. We have to keep in mind, however, that the word can also be understood as meaning something of the essence of the matter, something solid, something considerable, something weighty, something important. With these possibilities in mind we then turn to the passage which has been criticized.

In the context in which the learned judge used the expression, he, first of all, equated reasonable doubt to substantial doubt, and he put emphatically to the jury that in order to be a reasonable doubt, it must be a substantial doubt. It is true enough that several times in the course of his summing up he refers to the onus on the Crown of establishing the guilt of the accused beyond all reasonable doubt, but the jury might, or at any rate some or one of the jury might, take that direction in conjunction with his statement that reasonable doubt was substantial doubt, and that it meant that there must be something much more serious and weighty than would normally be understood by the words 'reasonable doubt' alone.

With that possibility in mind, we think that the direction which was given by the learned judge cannot be sustained. We think the jury might have been misled by what he said and that in this case it was unfortunate that the learned trial judge endeavoured to improve upon the time- honoured formula of 'proved beyond all reasonable doubt'. If the jury understood substantial doubt to mean some important or considerable doubt, then that would be placing too light a burden upon the Crown in establishing guilt against the accused.

The view which we have expressed finds support in the High Court. The case, to which our attention was directed, of Burrows v R, supra, at p. 256, the then Chief Justice, Sir John Latham, dealing with these words 'substantial doubt', said: 'All that was putting a lower burden on the Crown than the use of words "reasonable doubt".' He said: 'It is undesirable not to give an accused person the full benefit of the well-established formula. It is unsafe to use terms which tend to deprive the prisoner of the benefit to which he is entitled under the long-established rule that the Crown must prove its case beyond reasonable doubt'.

The present Chief Justice of the High Court, after using the language to which I have already referred, said: 'I share the regret of the Chief Justice that the learned judge did not see fit to use the time-honoured formula which is designed to give the prisoner the full benefit of the high degree of proof which must be reached before he is found guilty'. We, therefore, think that the passage to which the Solicitor-General has directed our attention, does vitiate the rest of the charge and does amount to a miscarriage.

Before parting from this case, we should refer to the proviso to s564(1) of the Crimes Act 1957. The language is: 'provided that the Full Court may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred'. But we desire, in that connexion, to draw attention to what is said by Fullagar, J, in the case of Mraz v R [1955] HCA 59; (1955) 93 CLR 493, at p. 514; [1955] HCA 59; [1955] ALR 929. Dealing with a proviso in similar language in the New South Wales statute he said: 'It is very well established that the proviso to s6(1) does not mean that a convicted person, on an appeal under the Act, must show that he ought not to have been convicted of anything. It ought to be read, and it has in fact always been read, in the light of the long tradition of the English criminal law, that every accused person is entitled to a trial in which the relevant law is correctly explained to the jury and the rules of procedure and evidence are strictly followed. If there is any failure in any of these respects, and the accused may thereby have lost a chance which was fairly open to him of being acquitted, there is, in the eye of the law, a miscarriage of justice. Justice has miscarried in such cases, because the appellant has not had what the law says that he shall have, and justice is justice according to law.'

The result is that the applicant will have leave to amend the grounds of his notice of application so as to allege a misdirection on the part of the learned trial judge. The application as amended will be granted, the appeal will be allowed, the conviction will be quashed, and a new trial of the prisoner upon the charge of which he was convicted, will be ordered. The new trial will be at the next sitting of the court of general sessions. He will be on the same bail as before to appear at the court of general sessions on his re-trial.

Solicitor for the Crown: Thomas F Mornane, Crown Solicitor.