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[2003] NSWCCA 312
respondent. Appeal dismissed; convictions and trial judge's directions upheld as not giving rise to miscarriage of justice (see [47]).
The Court of Criminal Appeal dismissed appeals by two men convicted of offences arising from a shooting. The appellants argued the trial judge misdirected the jury about the meaning of 'beyond reasonable doubt' when the jury asked whether it was an 'individual view' or an 'independent definition' and the judge repeated that the phrase were 'ordinary everyday words'. The Court held the phrase ordinarily needs no definition, that the test of reasonable doubt is subjective for each juror, and that the judge's repetition, read in context and reinforced by subsequent directions (including a Black direction), was sufficient in substance. The appeal was dismissed.
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On 7 June 2000 a violent altercation occurred at a house in Claymore involving a group of Laotian men. Shots were fired. One man (Sai Ya Vanthy, 'La') died and two others (Bobby and Tao) were wounded (see [1]-[6]). Two men, Ta Southammavong (Ta) and Vilasone Sihavong (Gop), were tried in the Supreme Court. The jury returned mixed verdicts: convictions and acquittals on different counts as particularised in the judgment (see [3]-[6]).
No linked legislation citations have been extracted yet.
The singular legal issue on appeal concerned the adequacy of the trial judge's directions on the burden and standard of proof. During the summing-up the trial judge instructed the jury that "The words 'beyond reasonable doubt' are ordinary everyday words and that is how you should understand them" (see [8]). Later the jury asked for clarification: "... can you provide some more clarification around what a reasonable doubt means, i.e. is it our own individual view, or is there a more independent definition?" (see [10]). After consulting counsel, the trial judge repeated his earlier direction verbatim (see [11]). The jury subsequently advised it could not reach unanimity; the judge gave a Black direction (a direction designed to encourage fresh consideration) and ultimately the jury returned verdicts that led to convictions. The appellants appealed to the NSW Court of Criminal Appeal solely on the ground that the trial judge's directions on the burden and standard of proof were inadequate (see [7], [39]).
The Court of Criminal Appeal (Spigelman CJ, O'Keefe J, Greg James J) dismissed the appeal. The judgment, principally given by Spigelman CJ, addressed whether the judge's choice of words and the response to the jury question produced a misdirection or miscarriage of justice (see [47]).
The outcome turns on a small number of interlocking legal propositions and their application to the facts and directions in the trial judge's summing-up.
Prevalent High Court authorities. The Court regarded the High Court's position, that the phrase "beyond reasonable doubt" is a time-honoured formula which ordinarily requires no elaboration, as binding and decisive on the question of whether trial judges should attempt to define or amplify the phrase (see [12], [16]). The judgment cites Brown v The King, Thomas v The Queen, Dawson v The Queen and Green v The Queen as establishing that the phrase is well understood and that attempts to substitute alternative expressions have not prospered (see [12], [16]).
Subjective nature of reasonable doubt. The Court reaffirmed that the test is subjective: "A reasonable doubt is a doubt which the particular jury entertains in the circumstances. Jurymen themselves set the standard of what is reasonable in the circumstances" (see [28]). This is also supported by Kitto J in Thomas v The Queen ("Whether a doubt is reasonable is for the jury to say") and by the Privy Council's observation in Walters v The Queen that doubt is personal to the doubter (see [29]-[30]).
Context and substance over form. Spigelman CJ emphasised that the description of the words as "ordinary everyday words" must be read in context. The trial judge did not merely say that phrase; he situated it within an instruction that the Crown must prove each essential element 'beyond reasonable doubt' and explained the consequence if the Crown failed to do so (see [23]). The Court read the repetition of the phrase in response to the jury question as being inconsistent with an 'independent definition' and therefore as a substantive affirmation that 'reasonable doubt' was to be understood in terms of the jurors' own views (see [44]-[46]).
Duty to assist the jury and curative directions. The Court accepted that a trial judge has a duty to ensure the jury has the assistance required to properly discharge its task. It observed that, while the best practice might have been to articulate more clearly that the test was subjective and individual, the totality of the directions (including the Black direction after the jury signalled deadlock) made that point sufficiently clear in substance (see [33], [37], [39]-[41]).
Precedent refusal to define. The Court relied on recent like decisions (e.g. R v Anderson) and older NSW and High Court authority (R v Reeves; King CJ in Wilson) to support the proposition that judges should be cautious about explaining or defining the phrase and that limited amplification, such as indicating that a reasonable doubt is a doubt jurors as reasonable persons would entertain, may be permissible in appropriate circumstances (see [21], [35], [18]).
Combining these points, Spigelman CJ concluded the jury would not have been misled, and that the repetition of the earlier direction, contrary to the appellants' criticism, was sufficient in substance to answer the jury's query that 'reasonable doubt' was not an 'independent' objective test but rather to be resolved by each juror (see [44]-[46]). Accordingly, there was no miscarriage of justice (see [47]).
Before: The High Court had already set the prevailing approach in Australian law: avoid defining 'beyond reasonable doubt' unless special circumstances justify amplification. Authorities such as Brown v The King, Dawson v The Queen, Thomas v The Queen and Green v The Queen endorse the conventional formula and caution against substitution or elaboration (see [12], [16], [28]-[29]).
Foreign jurisprudence: The appellants relied on Canadian and US authorities (R v Lifchus; R v Starr; Victor v Nebraska) which permit or develop techniques for explaining reasonable doubt. The Court noted these jurisdictions have differing approaches and are not binding in Australia; the divergence among them suggests the High Court's cautious approach is sensible (see [12]).
After: This decision reaffirms and consolidates the existing Australian line that judges are to be wary of defining 'beyond reasonable doubt'. It clarifies that in responding to a jury's question, a repetition of a correctly framed earlier direction can suffice in substance, provided the overall summing-up and any further directions make clear the subjective, individual nature of the test. It also confirms that a subsequent Black direction can cure any residual ambiguity about individual juror responsibility (see [11], [39]-[46]).
Practical effect: Australian trial judges may continue to avoid formal definitions. When juries request clarification framed as a choice between 'individual view' and an 'independent definition', repetition of a properly contextualised direction may be sufficient; however, best practice favours explicit restatement that each juror must form his or her own view when the question points to potential misunderstanding (see [33], [44]).
Passage: "The words 'beyond reasonable doubt' are ordinary everyday words and that is how you should understand them." (see [8], [11]) Plain English: The judge told the jury those words are familiar and need no technical definition. The court later explained this did not mean the standard is any lower; it simply meant no special dictionary definition was necessary when the rest of the directions properly explained the Crown's burden (see [23]).
Passage: "A reasonable doubt is a doubt which the particular jury entertains in the circumstances. Jurymen themselves set the standard of what is reasonable in the circumstances." (see [28]) Plain English: It's for each juror to decide if a doubt is reasonable, given everything they have heard; jurors decide, by their own standards, whether they have a reasonable doubt.
Passage: "When his Honour said that these were 'ordinary everyday words and that is how you should understand them' this answer was entirely inconsistent with the second limb of the choice offered in the jury question... His Honour's answer was consistent only with a positive answer to the first limb in the question, i.e. that it was 'an individual view'." (see [45]) Plain English: By repeating that phrase, the judge effectively told the jury that reasonable doubt is about each juror's view, not some detached objective definition. That was the practical answer to their question.
Passage: Black direction extract: "… if after calmly considering the evidence and listening to the opinions of other jurors, you cannot honestly agree with the conclusions of other jurors you must give effect to your own view of the evidence. Each of you has sworn, or affirmed, that you will give a true verdict according to the evidence." (see [39]) Plain English: The judge reminded jurors that after discussing the matter they must follow their honest view; they were not obliged to surrender their conscience, but they must seriously consider other opinions.
This judgment itself cites R v Anderson (2001) as a Court of Criminal Appeal decision that recently rejected a similar ground and which found no misleading or erroneous direction when an analogous phrase was used (see [21]-[22]). The present judgment follows that approach and endorses the High Court's established caution against elaboration. Lower courts and trial judges should read this decision as confirming two principles: (1) the conventional admonition against defining 'beyond reasonable doubt' remains authoritative in Australia; and (2) a judge's response to a jury question will be judged by its substance in context, and a repetition of an earlier proper direction can, in the right circumstances, answer the jury's concern.
Practitioners should watch for subsequent appellate decisions that test the limits of what constitutes an adequate 'substantive' answer where the jury's question points to potential confusion. The present decision suggests appellate courts will be reluctant to find miscarriage of justice where the totality of directions makes the subjective test clear.
Granularity of acceptable amplification. The Court said it would have been desirable to state explicitly that each juror must form his or her own view (see [33], [44]) but held the repetition was sufficient in substance. How explicit must a trial judge be in future where the jury's text suggests confusion? The judgment leaves room for judicial discretion but not a precise rule on phrasing.
Edge cases with problematic phrases. If a trial judge used more casual formulations, or paired 'ordinary everyday words' with other comments that could be read as trivialising the verdict, would a different result follow? The Court focused on context; borderline scenarios remain fact-specific.
Reliance on Black directions as curative. The decision accepted that a subsequent Black direction re-emphasising individual responsibility cured any shortcoming. There may be cases where no Black direction is given; would repetition alone suffice then? The present judgment does not fully answer situations lacking any further corrective direction.
Interaction with jury composition and comprehension. Where juries include members with limited English or strong cultural differences in understanding legal concepts, what degree of elaboration becomes necessary? The High Court's caution against elaboration must be balanced against the judge's duty to ensure the jury understands its task (see [37]); the judgment leaves this balancing question open for future development.
In practice, this decision reaffirms the conservative Australian approach: avoid technical definitions of 'beyond reasonable doubt' and prefer to situate any brief explanatory comments within comprehensive instructions about burden, unanimity and the juror's individual responsibility. When a jury asks to choose between an 'individual' and an 'independent' definition, a judge should, where practicable, explicitly confirm the subjective test, but if the judge repeats an earlier clear direction and gives appropriate ancillary directions, appellate courts will be slow to infer a miscarriage of justice (see [44]-[46], [39]).
CITATION : REGINA v SOUTHAMMAVONG; REGINA v SIHAVONG [2003] NSWCCA 312 HEARING DATE(S) : 29 October 2003 JUDGMENT DATE : 31 October 2003
JUDGMENT OF : Spigelman CJ at 1; O'Keefe J at 48; Greg James J at 49 DECISION : Appeal dismissed.
CATCHWORDS : CRIMINAL LAW - murder - malicious wounding with intent to inflict grievous bodily harm - direction to jury - burden and standard of proof - definition of "beyond reasonable doubt" - where jury sought clarification on meaning of standard - where trial judge repeated earlier direction - whether trial judge erred by failing to address jury request Brown v The King (1913) 17 CLR 570 Dawson v The Queen (1961) 106 CLR 1 Green v The Queen (1971) 126 CLR 28 R v Anderson (2001) 127 A Crim R 116 R v Lifchus [1997] 3 SCR 320 CASES CITED : R v Reeves (1992) 29 NSWLR 109 R v Starr [2000] 2 SCR 144 RPS v The Queen (2000) 199 CLR 620 The Queen v Wilson (1986) 42 SASR 203 Thomas v The Queen (1960) 102 CLR 584 Victor v Nebraska (1993) 511 US 1 Walters v The Queen [1969] 2 AC 26 at 30 Regina (Crown) PARTIES : Ta Southammavong (Appellant) Vilasone Sihavong (Appellant) FILE NUMBER(S) : CCA 60138/03; 60312/03 COUNSEL : M Grogan (Crown) T Game SC / P Strickland (Appellants) C K Smith (Crown) SOLICITORS : S O'Connor (Appellant - Southammavong) M Klees (Appellant - Sihavong)
LOWER COURT Supreme Court JURISDICTION : LOWER COURT 70085/01 FILE NUMBER(S) : LOWER COURT Buddin J JUDICIAL OFFICER :
IN THE COURT OF CRIMINAL APPEAL 60138/03 60312/03
SPIGELMAN CJ O'KEEFE J GREG JAMES J
Friday 31 October 2003 REGINA v Ta SOUTHAMMAVONG REGINA v Vilasone SIHAVONG Judgment 1 SPIGELMAN CJ: In the early morning of 7 June 2000, an altercation occurred at a house in McCubbin Way, Claymore, amongst a group of men of Laotian descent. During the course of the altercation a number of shots were fired. One person was killed and two others wounded. 2 This appeal raises a specific point of law that does not turn to any substantial degree on the facts. The relevant facts can be briefly stated. 3 The Appellant, Ta Southammavong, known as Ta, was found guilty of the murder of Sai Ya Vanthy, known as La; he was found not guilty of wounding with intent to murder and also not guilty of the alternate charge of malicious wounding with intent to inflict grievous bodily harm, of Kongsavanh Phommek, known as Bobby. He was found not guilty of the charge of wounding with intent to murder, but guilty of the alternative charge of malicious wounding with intent to inflict grievous bodily harm of Souphaphane Pathammavong, known as Tao. 4 In the case of the Appellant, Vilasone Sihavong, known as Gop, he was found not guilty of the murder of La; not guilty of wounding with intent to murder Bobby, but guilty of the alternative charge of malicious wounding with intent to inflict grievous bodily harm of Bobby. He was also found not guilty of wounding Tao with intent to murder him, but guilty of the alternative charge of maliciously wounding Tao with intent to inflict grievous bodily harm. 5 The Crown case was that in relation to the murder of La, Ta was the shooter and Gop was alleged to be guilty on the basis of joint enterprise. In the case of Bobby, Gop was alleged to be the shooter and Ta was alleged to be guilty on the basis of joint enterprise. In the case of Tao, though the Crown relied on a bullet alleged to have come from the gun held by Ta, there were bullet wounds coming from what were alleged to be the guns of both Ta and Gop. This may explain why Gop was convicted on that count, even though he was not alleged to be the shooter. 6 Ta was convicted on two counts based on his own acts of shooting. Similarly, Gop was found guilty in the case of Bobby on the basis of his own act of shooting. The finding of guilty against Gop in the case of Tao could be on the basis of his own act of shooting but, as that was not alleged by the Crown, it appears likely that the true foundation was a finding of joint enterprise. 7 There is a single ground of appeal: that the trial judge failed to direct the jury adequately about, and erred in his directions in relation to, the burden and standard of proof. 8 In the course of his summing up, the trial judge told the jury: "The words 'beyond reasonable doubt' are ordinary everyday words and that is how you should understand them." 9 His Honour subsequently gave the jury directions on inferences in the following terms: "In the context of a criminal trial where proof is required beyond reasonable doubt, you should not draw any inference from the direct evidence unless it is the only rational inference available in the circumstances." 10 Later on that same day, the jury asked a question in the following terms: "… can you provide some more clarification around what a reasonable doubt means, i.e. is it our own individual view, or is there a more independent definition?" 11 After discussion with counsel, his Honour determined that he should re-state the direction that he had already given. He did so in the following terms: "In relation to your question about can you provide more clarification around what a reasonable doubt means - is it an individual view or is it a more independent definition? The answer is I am going to repeat to you what I said earlier. The words 'beyond reasonable doubt' are ordinary everyday words and that is how you should understand them." 12 Mr T A Game SC who appeared with Mr Strickland for the Appellants, submitted to this Court that the law in Australia is the same as has been determined in the United Kingdom, Canada and the United States, i.e. that it is appropriate to assist the jury by providing further definition of the formulation "beyond reasonable doubt". He referred to R v Lifchus [1997] 3 SCR 320; R v Starr [2000] 2 SCR 144; Victor v Nebraska (1993) 511 US 1; R v Walters [1969] 2 AC 26. However, there is High Court authority binding on this Court to the contrary. (See Brown v The King (1913) 17 CLR 570 at 584; Thomas v The Queen (1960) 102 CLR 584 at 587, 595, 604-605; Dawson v The Queen (1961) 106 CLR 1 at 18; Green v The Queen (1971) 126 CLR 28 at 31-33.) That the courts of three other nations, while agreeing that some elaboration is permissible, do not agree on how or when or in what terms such elaboration ought occur, may indicate the wisdom of the Australian position. But that is a matter for the High Court. 13 Before this Court, the Appellants relied on the proposition that his Honour erred by failing to address in some manner, other than by repeating his earlier direction, the express request by the jury for assistance on whether reasonable doubt meant "our own individual view or is there a more independent definition". 14 Mr Game submitted that the use of the words "are ordinary everyday words" constituted a misdirection by the trial judge in that they could be understood by a jury to cut down in some way the standard of proof. He submitted that the terminology suggested that the decision was an ordinary everyday decision and, therefore, less important than it in fact is. 15 At trial no objection was taken to the original direction, nor the repetition of the direction after the jury question. Nevertheless, this is a matter of fundamental significance and is a point that is appropriate to take for the first time on appeal. 16 In Dawson v The Queen, Dixon CJ referred to the phrase "satisfied beyond reasonable doubt" as a "time honoured formula". His Honour added at 18: "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." 17 His Honour's reference to the use of the words by "ordinary people" and the fact that those words are "understood well enough by the average man in the community" did not suggest that it was appropriate to direct the jury that the words are "ordinary everyday words" as his Honour did in the case before the Court. Rather it is because those words are "ordinary everyday words" that no explanation was to be given. 18 Similar issues arose in R v Reeves (1992) 29 NSWLR 109 in a case in which a trial judge had directed the jury that the words "beyond reasonable doubt" were "perfectly everyday well understood English words" and invited the jury to ponder what was meant by "reasonable". He had told the jury that the answer was to be found in "their own individual understanding" of the word "reasonable" (ibid at 116G-117A). Hunt CJ at CL said: "It appears to be an ineradicable misconception on the part of some trial judges that, simply because the High Court has on many occasions said that the phrase 'beyond reasonable doubt' is a well understood expression, and that whether a doubt is reasonable is for the jury to say by setting their own standards, it is necessary to tell the jury just that. It is not necessary, nor is it desirable to do so unless something is said by counsel during the course of the trial, or unless the jury asks a question, which warrants elaboration or explanation beyond the conventional direction. … The phrase 'beyond reasonable doubt' needs neither embellishment nor explanation." 19 In this passage, Hunt CJ at CL does suggest that it is at least undesirable to give a direction in the terms given in the present case, i.e. that the words "beyond reasonable doubt" are "ordinary everyday words and that is how you should understand them". Nevertheless, Hunt CJ at CL indicated that this general position may change when the jury asks a question, as happened here. 20 Accordingly, even if it had been preferable to refrain from providing this element of elaboration in the original summing-up, the circumstance that the jury did ask the question meant that the repetition would, if it were an appropriate response to the question, lead to the conclusion that there was no miscarriage of justice in the use of this formulation. 21 The Court has recently rejected a similar ground of appeal in R v Anderson (2001) 127 A Crim R 116. In that case the summing-up contained the following sentence: "The words 'beyond reasonable doubt' are ordinary English words and for obvious reasons they involve a very high standard of proof." 22 Kirby J, with whom Sheller JA and Dowd J agreed, concluded at 119 [19] that nothing in this direction was 'misleading or erroneous'. 23 In my opinion, the submission should also be rejected in the present case. The words did not detract from the significance or, indeed, the solemnity of the decision which the jury was called upon to make. To describe words as "ordinary everyday words", in the context they were used in the summing-up in the present case, meant no more than that they are words which require no further definition. The jury would not have gained the impression that the process in which they had to be applied was, somehow, less significant than it ought be regarded by them. This is made clear by the full context of the original direction by the trial judge where these words appear: "The words 'beyond reasonable doubt' are ordinary everyday words and that is how you should understand them. Putting together those two propositions of law, namely that the Crown must prove each and every essential element of the charges which it brings against the accused and that it must do so to the degree or standard to which I have referred - that is, 'beyond reasonable doubt' - we get to this position. If at the end of your deliberations, having taken into consideration the evidence both for the Crown and for the accused in respect of any matter which the Crown must establish to make out its case, and also after taking into consideration the submissions made to you by each of the counsel in their address to you, you are not satisfied that the Crown has established any one of these essential matters beyond reasonable doubt then it is your duty, as I have said, to bring in a verdict of not guilty in respect of that charge or charges, because the Crown will have failed to do what the law requires it to do." 24 The jury would not, in my opinion, have been misled by the use of the words "ordinary everyday words". 25 Mr Game submitted, in the alternative, that his Honour erred in failing to answer the express request by the jury for assistance in the terms in which it was asked. He submitted that where a jury requests assistance a trial judge is under a duty to provide such assistance where it is permissible to do so. He submitted that it was permissible to give an express answer to the jury question stating that reasonable doubt was to be determined in accordance with the jury's opinion, rather than in terms of an "independent definition". He submitted that, in circumstances where the jury had requested assistance of this character, it was obligatory upon the trial judge to give it. 26 Mr M Grogan who appeared for the Crown drew attention to the words used by the jury in its question, i.e. "our own individual view" and submitted that the jury was doing no more than asking for clarification of whether a collective judgment of a subjective character was involved as distinct from some objective test. Where, however, an alternative view of a jury question is reasonably open, this Court should by very slow to construe a jury question in a narrow manner. 27 Mr Game submitted, and I accept, that it may have been the case that the word "our" was used in the sense of "each of our" views, so that there was at that stage one juror, or a limited number of jurors, who were seeking clarification on whether or not they could apply their own individual belief as to reasonable doubt in the circumstances of the trial. 28 There is no doubt that the relevant test is a subjective one and it applies to each individual juror. As the High Court said in Green v The Queen at 32-33: "A reasonable doubt is a doubt which the particular jury entertains in the circumstances. Jurymen themselves set the standard of what is reasonable in the circumstances." 29 Similarly, Kitto J said in Thomas v The Queen at 595: "Whether a doubt is reasonable is for the jury to say". 30 Furthermore, as the Privy Council said in Walters v The Queen [1969] 2 AC 26 at 30: "… In the context of 'doubt', which cannot be other than personal to the doubter, it is meaningless to talk of doubt as 'objective' and otiose to describe it as 'subjective'. It is the duty of each individual juror to make up his own mind as to whether the evidence that the defendant committed the offence with which he is charged is so strong as to convince him personally of the defendant's guilt." 31 His Honour had made it clear to the jury that they each had to come to their own decision. He had said earlier in the course of his summing-up: "You should each participate in your discussions in the jury room because all of you are equals and each of you will be responsible for your ultimate joint decisions. I refer to 'joint' decisions because under our system of law, your verdicts, whether they be guilty or not guilty, must be unanimous. … By whatever route you each arrive at your decisions, that final decision of either guilty or not guilty must be the decision of you all, unanimously, before it can become your verdict." 32 Insofar as the subsequent question may have reflected the fact that an individual juror, or a number of jurors, were concerned to apply their own, perhaps idiosyncratic, view on the issue of reasonable doubt, it would appear that his Honour's earlier summing-up was not sufficient to drive home the proposition that each individual juror must form his or her own view of the matter. 33 In this circumstance, it would have been desirable for the trial judge to answer the jury question in terms, i.e. by saying words to the effect that it was the respective individual opinions as to what level of 'doubt' was 'reasonable' that applied. The issue before this Court is whether his Honour erred in failing to do so. 34 In my opinion Mr Game's submission that it was at least permissible for his Honour to answer the question that the meaning of reasonable doubt was a matter for the jury rather than for some "definition" of a character identified in the question as "independent" is correct. The issue is whether or not there was legal error in his Honour's failure to do so. 35 In The Queen v Wilson (1986) 42 SASR 203, King CJ, whose judgments on criminal matters have long been regarded as having the highest persuasive force throughout Australia, referred to the consideration by the High Court in Green v The Queen of elaboration by a trial judge about the meaning of reasonable doubt, referring to the possibility of some elaboration in appropriate circumstances. King CJ referred to circumstances that may arise in a trial, considered by the High Court in Green at 33, where counsel for the accused put forward "fantastical" or "completely unreal" possibilities, as a basis for affording a reasonable doubt (at 206). King CJ went on to state: "As was stressed in Green's case judges have been admonished time and time again to adhere to the conventional formula that the burden is on the prosecution to prove the charge and each ingredient of the charge beyond reasonable doubt. No attempt should be made to explain or define reasonable doubt. If amplification is desired it should go no further than to tell the jury that a reasonable doubt is one that they as reasonable persons are prepared to entertain." [Emphasis added] 36 In this passage his Honour identified a permissible subject of "amplification" and did so in terms which indicates that an answer to the particular question posed by the jury, i.e. that reasonable doubt meant their "own individual view", was permissible. 37 A trial judge is under a duty to ensure that by his or her directions a jury receives all of the assistance it requires to properly discharge its task. This is a manifestation of the basic principle that the High Court has recently described as "the fundamental task of a trial judge … to ensure a fair trial of the accused" (RPS v The Queen (2000) 199 CLR 620 at 637 [41]). 38 Insofar as what was involved was a case of a particular juror, or a number of jurors, adopting a particular and, perhaps, idiosyncratic approach to the issue - this was the principal thrust of Mr Game's submission - any defect occasioned by the trial judge's failure to address the issue in terms was resolved prior to the jury retiring. 39 During the course of their deliberations the jury sent the trial judge a note, after the question now in issue was asked and answered, to the effect that they were unable to reach a unanimous decision. This led to the trial judge giving the jury a Black direction which, although it was not addressed to the particular matter the subject to the jury question, did re-emphasise the role of each juror as an individual juror. His Honour said in the course of that direction: "… if after calmly considering the evidence and listening to the opinions of other jurors, you cannot honestly agree with the conclusions of other jurors you must give effect to your own view of the evidence. Each of you has sworn, or affirmed, that you will give a true verdict according to the evidence. That is an important responsibility. You must fulfil it to the best of your ability. Each of you takes into the jury room your individual experience and wisdom and you are expected to judge the evidence fairly and impartially in that light." 40 Furthermore, at the conclusion of his summing-up, again after the jury question had been asked and answered, his Honour concluded (at SU 152-154) by instructing the jury as to the precise manner in which they would deliver a verdict. He indicated with respect to each alleged offence that they would first be asked whether they found the accused guilty or not guilty. He then stated that on each of the occasions they would then be asked this question "So says your foreperson, so say you all". 41 Finally, at the point immediately before he sent the jury out, his Honour reiterated the significance of the unanimity in the following passage (at SU 157): "Ladies and gentlemen I am now going to ask you to retire to the jury room to consider your verdicts. Can I remind you of what I said just before you left, about the need to have unanimous verdicts. Can I also remind you of what I said about the onus of proof being on the Crown at all times." 42 The jury could have been in no doubt, as long as they understood that the test of when a 'doubt' was 'reasonable' was a matter for the opinion of the jury, that each juror was entitled to act on his or her individual opinion in that regard. 43 The final issue is whether the jury must have understood, notwithstanding his Honour's failure to respond to the jury question in the terms in which it was phrased, that the test was one for their own opinion. 44 That turns on whether or not, as a matter of substance, the trial judge's response to the jury question was sufficient to make it clear to the jury that there was no definition of a "independent", or objective character of the formulation "beyond reasonable doubt" and that the jury members themselves, individually, set the standard of what was reasonable in terms of a doubt in the particular circumstances of the trial. His Honour did not do so in the specific terms of the jury question. It would have been preferable if he had. However, I have come to the conclusion that, as a matter of substance, his Honour did answer the question. 45 I have quoted in par [11] above his Honour's entire answer. He begins by referring to the terms of the jury question itself as to the fact that the jury sought "more clarification" about "what a reasonable doubt means". His answer was, accordingly, to be understood as a reply to a request for an elaboration of the meaning of the formulation "beyond reasonable doubt". When his Honour said that these were "ordinary everyday words and that is how you should understand them" this answer was entirely inconsistent with the second limb of the choice offered in the jury question, i.e. is there "a more independent definition". His Honour's answer was consistent only with a positive answer to the first limb in the question, i.e. that it was "an individual view". 46 In my opinion the jury would not have been confused, let alone misled, by the failure of his Honour to answer the question in the terms in which it was put by the jury. 47 In my opinion the appeal should be dismissed. 48 O'KEEFE J: I agree. 49 GREG JAMES J: I agree with the Chief Justice. **********
Last Modified: 11/10/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
(1913) 17 CLR 570
(1961) 106 CLR 1
(1971) 126 CLR 28
(1992) 29 NSWLR 109
(2000) 199 CLR 620
(1986) 42 SASR 203
(1960) 102 CLR 584
Appeal dismissed; convictions and trial judge's directions upheld as not giving rise to miscarriage of justice (see [47]).