Do Juries Understand the Criminal Standard of Proof of Beyond Reasonable Doubt?

Do Juries Understand the Criminal Standard of Proof of Beyond Reasonable Doubt?

In Green v The Queen and La Fontaine v The Queen, the High Court stated that it is both unnecessary and unwise for a trial judge to seek to explain to the jury the meaning of ‘beyond reasonable doubt’, on the ground that the phrase is well understood in the community. This view is not shared in other countries with a common law tradition such as England & Wales, Canada, New Zealand and the United States. This article respectfully disagrees with the High Court’s position, most recently affirmed in The Queen v Dookheea, and argues that Victoria has taken the appropriate course in enacting sections 63-64 of the Jury Directions Act 2015 (Vic). Section 63 sets out the circumstances when the trial judge may explain ‘proof beyond reasonable doubt’, and s 64 deals with the situation as to how the explanation may be given in response to jury question. However, it is contended that both s 63 and s 64 can be improved by removing the requirement that an explanation of the phrase ‘proof beyond reasonable doubt’ may only occur in response to a direct or indirect jury question. The argument will be developed in the context of a number of sexual assault cases where the guilty verdicts have been overturned on appeal, such as Tyrell v The Queen, IW v The Queen, JN v The Queen, Xu v The Queen, and Pell v The Queen.

This article was first published by Thomson Reuters in Journal of Judicial Administration and should be cited as Andrew Hemming, Do Juries Understand the Criminal Standard of Proof of Beyond Reasonable Doubt?, (2021) 30 JJA 103. For all subscription inquiries please phone, from Australia: 1300 304 195, from Overseas: +61 2 8587 7980 or online at https://www.thomsonreuters.com.au/en-au/contact.html. The official PDF version of this article can also be purchased separately from Thomson Reuters at http://sites.thomsonreuters.com.au/journals/subscribe-or-purchase.