It is commonplace for jurors in Australian criminal trials to ask the trial judge to define ‘reasonable doubt’. It is also commonplace for trial judges to refuse to do so. Indeed, it is mandatory. Here’s Owen Dixon from a 1961 High Court judgment:
[I]t is a mistake to depart from the time-honoured formula. 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.
A new jury study by NSW’s Bureau of Crime Statistics & Research proves that Dixon was wrong. 1225 jurors in 112 NSW criminal trials were asked the folllowing question
[P]eople tried in court are presumed to be innocent, unless and until they are proved guilty ‘beyond reasonable doubt’. In your view, does the phrase ‘beyond reasonable doubt’ mean [pretty likely the person is guilty/very likely the person is guilty/almost sure the person is guilty/sure the person is guilty]?
Pretty likely person is guilty: N= 119 (10.1%)
Very likely person is guilty: N= 137 (11.6%)
Almost sure person is guilty: N= 270 (22.9%)
Sure person is guilty: N= 652 (55.4%)
No-one will be panicking about the 78.3% of jurors in the latter two categories. But, bearing in mind that jurors were given a choice of all four options, the 21.7% in the first two categories are a disaster. It gets worse:
Jurors’ understanding of the concept ‘beyond reasonable doubt’ is significantly related to their understanding of the judge’s instructions on the law, whether the trial dealt with adult/child sexual offences or other offences and whether English was the juror’s first language.
Virtually every other comparative court takes the view that ‘beyond reasonable doubt’ must be defined by the judge. Here are some of the mandatory definitions:
- United Kingdom: ”You must be completely satisfied’ or better still: ‘You must feel sure of the prisoner’s guilt’.
- New Zealand: “A reasonable doubt is an honest and reasonable uncertainty left in your mind about the guilt of the accused after you have given careful and impartial consideration to all of the evidence.”
- Canada: ‘[A] reasonable doubt is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence’.
- United States: A reasonable doubt is ‘one that is founded upon a real tangible substantial basis and not upon mere caprice and conjecture. It must be such doubt as would give rise to a grave uncertainty, raised in your mind by reasons of the unsatisfactory character of the evidence or lack thereof. A reasonable doubt is not a mere possible doubt. It is an actual substantial doubt. It is a doubt that a reasonable man can seriously entertain. What is required is not an absolute or mathematical certainty, but a moral certainty.’
But the High Court of Australia’s major authority, Green v R  HCA 55, enforces the smug view that the phrase needs no definition in terms that are anything but glib:
[I]n 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. In consequence there must be a new trial not only in the case of Green but in that of each of the others tried with him for, as we have observed, the quoted passage of the summing up was applicable to the case of each of them. Public time and expenditure has been wasted and the time elapsing between the making of the charges and their final disposal has been unnecessarily prolonged.
The Court has maintained its view in the face of continued questioning by jurors about the definition, and even jury requests for a dictionary. The line of cases is a classic example of the non-genius of the common law method, which – in the field of trial practice – develops fixed views of fairness and practice in the absence of (and impervious to) empirical research. Doubtless, BOCSAR’s study will be dismissed as irrelevant and contrary to accepted understandings about the capacities of lay jurors.
One of my hopes for the Charter is that its right to a fair hearing, while in completely generic terms, will encourage – I’d say mandate – a re-evaluation of such non-evidence-based approaches to trial practices in Victoria. How can it be said that these two rights are being respected when 20% of jurors think that ‘proof beyond reasonable doubt’ means that guilt is ‘pretty likely’ or ‘very likely’, and when the numbers vary depending on what offence is being charged?:
24(1) A person charged with a criminal offence… has the right to have the charge… decided by a competent, independent and impartial court or tribunal after a fair and public hearing.
25(1) A person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law.
The bad news is that the common law is exempted from the Charter. Heaven forbid that Victoria’s courts depart from Australia’s terrific unified common law. The Constitution would snap in half!
The good news is that the criminal burden of proof will, by 2010, be no longer governed by the common law in Victoria. The new Evidence Act 2008 provides:
141(1) In a criminal proceeding, the court is not to find the case of the prosecution proved unless it is satisfied that it has been proved beyond reasonable doubt.
Surely, it’s implicit in this provision that ‘the court’ must know what ‘beyond reasonable doubt’ means? So, if 20% of jurors have the wrong idea, shouldn’t s141(1) be interpreted, consistently with Charter ss. 24(1) & 25(1), to require a judge in a jury trial to direct the jury as to the meaning of doubt?