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Barry Lane
22 August, 2005  
Doubts about "reasonable doubt"

In the mysterious case of the murdered solicitor, the Victorian Court of Appeal preserves the opaqueness of the instruction “beyond reasonable doubt”. The waters remain nicely muddied

imageBefore they retire to consider their verdicts, juries in criminal trials routinely are told that they should approach the meaning of “beyond reasonable doubt” in a common sense sort of way.

Invariably the judge will intone that there is no magic in the words, which bear their ordinary meaning, and further definition or elaboration of them would be neither useful nor proper.

The difficulty is that sometimes it just doesn’t make an awful lot of sense to the average juror – as HH “Fabulous” Phil Cummins, a “very experienced trial judge”, discovered in a recent trial when a question from the jury followed his recitation of the standard “beyond reasonable doubt” direction. No exception was taken to HH’s directions at the time he gave them.

Judges usually hate questions from juries, specially those about “beyond reasonable doubt”. When judges depart from their script of standard directions, the risks of adverse comment from appeal courts are ratcheted up considerably.

Should a jury foreperson come back with a question about what “beyond reasonable doubt” means then, on the face of it, the judge has failed to get this “simple” message across.

Of course, as with most things in the law, it’s anything but simple and the system tries its best to keep the whole issue shrouded in as much fog as possible.

Justice Cummins received a note from the jury following a seven-week murder trial. The victim was Keith William Allan, a former solicitor. The accused were three men who the prosecution alleged had conspired to do away with Allan. The alleged ringleader was Julian Michael Clarke and the other two were a middleman between Clarke and the contract killer. Allan’s body has never been found.

Clarke was Allan’s former trusted legal clerk and had, over a number of years, managed to relieve the solicitor’s trust account of $500,000 or thereabouts, unbeknown to Allan. That provided a motive for Clarke to despatch Allan because the sleuths from Victorian Lawyers RPA Ltd finally had cottoned onto the fraud and were poised to seek an explanation from Allan.

The jury found all three guilty of murder and Justice Cummins sentenced Clarke to 29 years imprisonment and the other two accused to 27 years each. Fabulous Phil’s sentencing remarks with a useful summary pf the prosecution case can be viewed here.

The evidence against the conspirators was circumstantial and although the Court of Appeal impliedly conceded that it was a strong case, it nonetheless came to the conclusion that the jury’s verdicts should be set aside and a new trial ordered because Cummins’ redirection on “beyond reasonable doubt” was flawed.

The question to the trial judge was in the following terms:

“Definition of reasonable doubt. Also expressed as ratio, i.e. 70 per cent or 80 per cent sure?”

As custom dictates, HH discussed the question and an appropriate reply with counsel. There was no agreement between each accused’s counsel about the response but there appeared to be broad agreement that the judge should disabuse the jury that it was appropriate to resort to any mathematical formula. The trick was to achieve that objective without, among other things, increasing the jury’s awareness of the folly of using such a measure.

In the Court of Appeal’s judgment, Vincent JA (Charles JA and Osborne AJA concurring) identified the dilemma faced by Justice Cummins:

“His Honour was mindful that ‘the law is littered with disasters’ where judges endeavoured to assist juries with regard to the standard of proof by employing alternative phrases to the expression ‘beyond reasonable doubt’ or by attempting to explain its meaning or by breaking up the expression, so that, for instance, stress was placed on the word ‘reasonable’. Accordingly, when he raised the matter with counsel in the absence of the jury, he indicated that he did not propose to respond directly to the part of the question relating to percentages, and that he would confine himself to repeating the instructions earlier given to them. The prosecution and counsel for one of the accused agreed with the adoption of this course. However, counsel for the other two each indicated concern that to deal with the matter in that way would not provide the jury with adequate guidance. They expressed doubt that the jury, who were clearly uncertain as to what was involved in the notion of proof beyond reasonable doubt, would receive any assistance from the repetition of an instruction that conveyed little to them, and may not be disabused of the misconceptions that seemed to underlie the question.”

In redirecting the jury, Cummins basically rehearsed his original direction but made no reference to the mathematical formula expressed in the jury’s question.

Vincent went on to say:

“The situation confronting the trial judge was extremely difficult. He was acutely conscious of the problems that had arisen in earlier cases in which trial judges had departed from conventional instructions concerning the standard of proof by (sic) a criminal trial and the repeated warnings set out in the authorities where this had occurred. He was understandably apprehensive that any further attempt to explain the standard, particularly by reference to percentages, may have been interpreted by the jury as setting a bench mark that could be employed by them…

How then was he to deal with the jury’s query?

In considering that question, it is important to bear in mind that the various authorities that address the question of the appropriate instructions to be given to the jury, with respect to the standard of proof, place very strong emphasis upon the undesirability of any departure from or addition to the conventionally adopted formulation which involves no attempt to define the expression beyond reasonable doubt ...

There is however an acknowledgement in a number of the judgments, in which the matter is considered, that it may become necessary for a judge to say enough to avoid misunderstanding where there is something to suggest that this could occur.”

And at paragraph 225 and following:

“The argument was advanced in this court that similarly there was a distinct possibility that the jury may have operated under a misconception of the kind … to which I have earlier adverted, that the standard of proof could be satisfied through an assessment of likelihood of guilt expressed as a percentage (assuming that that could ever be a meaningful exercise)...

Not being directed otherwise, the jury may well have regarded a 70 per cent probability as satisfying the test, although I would have thought that the existence of an approximately one in three chance that an accused may not be guilty could hardly be regarded as proof beyond reasonable doubt, however the standard may be identified.

... the jury in the present case appear to have held a view of the standard of proof of a kind that could have resulted in the conviction of one or more of the applicants even though they accepted that a significant doubt existed as to the guilt of the individual concerned. That misconception could have been removed by instructing them that the question that they had to determine was whether the prosecution had established the guilt of the accused, whose case they were considering, beyond reasonable doubt. If, after carefully considering the evidence, reasonable doubt existed in their minds, then it was their duty to acquit. They should have been told that they were not to approach their task by reference to some calculation of percentages. To do so, of course, acknowledges the existence of a doubt which may or may not be reasonable, but which is then disregarded.

Whilst there is clearly room for argument concerning what may or may not constitute a fundamental defect in a given criminal trial, the presence of a possible misconception by the jury of the applicable standard of proof must be regarded as a matter of such importance that it is to be treated as having resulted in a substantial miscarriage of justice, notwithstanding the apparent, even overwhelming, strength of the prosecution case perceived from the perspective of a judge in an appellate court. This proposition has application in the cases of all of the applicants.” (Emphasis added.)

There you have it. It goes without saying that appellate courts can only ever speculate about a jury’s deliberations and in most other areas of forensic evaluation speculation is strictly verboten.

I’m not suggesting for a nanosecond that we should adopt the US practice of media interviews following a verdict but it would be interesting nonetheless to see how an appellate court would deal with the information coming from such a source.

In that regard, a report from the BBC following the recent Jackson trial in the US may be of interest.

I trust that the Court of Appeal has cleared up any doubts about this issue which concerns every trial by jury of a criminal offence.

However, it remains perfectly appropriate for judges in civil cases to direct juries in relation to the civil standard of the “balance of probabilities” by reference to the mechanistic “scales of justice” – tip the scales in one direction and the “tippee” wins.

As the plethora of reports where trial judges have sought to “assist” juries reveal, it would save a lot of time and public money if a similar sort of example could be formulated for criminal trials.

But don’t hold your breath waiting for any “assistance” from the Court of Appeal.