Dookheea v The Queen

The High Court has allowed an appeal against a decision of the Victorian Court of Appeal on the adequacy of jury directions in a murder trial. The respondent and his partner attacked a former employer, intending to ‘teach him a lesson’, which ended in the death of the employer caused either by the respondent choking him or sitting on his back. After rejecting the respondent’s contentions on the adequacy of jury directions on intention and cause of death, the VSCA accepted the argument that the trial judge’s statement to the jury that the prosecution ‘has to have satisfied you of this not beyond any doubt, but beyond reasonable doubt’ was in error, given the High Court’s prohibition on directions on the meaning of reasonable doubt. Before the High Court, the Crown contended that while the trial judge had strayed from the traditional formulation by contrasting reasonable doubt with ‘any doubt’, it was not an error to do so, and, in any case, had not produced any substantial miscarriage of justice.

The High Court (Kiefel CJ, Bell, Gageler, Keane, Nettle and Edelman JJ) allowed the appeal, holding that while it is generally ‘undesirable’ for a trial judge to contrast reasonable doubt with ‘proof beyond any doubt’, it was not an error to do so in the circumstances of this case (at [1]). After noting historical changes in understandings of the expression ‘reasonable doubt’ among the general population (at [23]ff), the Court stated that today there may be reasonably differing views on whether it is well-understood: while popular media makes frequent use of it, trial judges appear to be frequently asked to define ‘reasonable doubt’ or provide guidance on its meaning (at [27]).

While the earlier decisions of Green v The Queen [1971] HCA 55 and La Fontaine v The Queen [1976] HCA 52 remain correct statements of the law on how a trial judge should direct a jury on proof beyond reasonable doubt ([28], see discussion at [24]–[26]), they do not necessarily make it an error for a trial judge to contrast reasonable doubt with any doubt: ‘While it may be unnecessary and unwise for a trial judge to do so, it will not always result in a substantial miscarriage of justice and in this case it did not do so.’ (at [28]).

The Court then noted that the VSCA based its approach on a series of SASC decisions which held that ‘that if a trial judge directs a jury, in substance or effect, that when left with any doubt at the end of deliberations it is for them to decide whether that is a reasonable doubt, an appeal against conviction must be allowed’ (at [29]). This approach was based on a misconception of earlier High Court case law, and formed a ‘process of reasoning that should not be followed’ (at [30]). After surveying the historical development of the concept of doubt, reasonable doubt, and the conscience of juries (at [30]–[33]) the Court reiterated that whether a doubt is reasonable is for the jury to say, and that a reasonable doubt is a doubt that the jury, as a reasonable jury, considers to be reasonable (at [34], and see [35]–[37]).

The Court then rejected the respondent’s contention that the jury had likely been misled by the trial judge’s contrasting of reasonable doubt with any doubt, specifically that it was likely the jury took a two-stage approach to assessing doubts about intent: deciding first whether it held any doubt, then assessing whether that doubt was reasonable (see at [38]). The Court again reiterated that, first, a reasonable doubt is not just any doubt that jurors might entertain, but rather what a reasonable jury considers to be a reasonable doubt; and secondly, given the trial judge’s explanations and the arguments of counsel throughout the trial it was not realistic to suppose that the jury might have been uncertain about the correct meaning of the need for proof beyond reasonable doubt (at [39]).

Finally, the Court made two additional notes. First, the Court noted that the Court of Appeal’s reasons for departing from the settled approach and its apparent ignoring of La Fontaine remained unclear: ‘If the Court of Appeal had followed their own earlier decisions on the subject, or this Court’s decision in La Fontaine, the need for this appeal might have been avoided.’ (at [40]). Secondly, the Court noted that the practice in Victoria and New South Wales of contrasting the beyond reasonable doubt standard with the lower civil proof standard of the balance of probabilities was effective and ‘to be encouraged’ (at [41]).

High Court Judgment [2017] HCA 36 13 September 2017
Result Appeal allowed
High Court Documents Dookheea
Full Court Hearing [2017] HCATrans 132 19 June 2017
Special Leave Hearing [2016] HCATrans 284 18 November 2016
Appeal from VSCA [2016] VSCA 67 12 April 2016
Sentencing Judgment, VSC
[2014] VSC 611 4 December 2014
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About Martin Clark

Martin Clark is a PhD Candidate and Judge Dame Rosalyn Higgins Scholar at the London School of Economics and Political Science and Research Fellow at Melbourne Law School. He holds honours degrees in law, history and philosophy from the University of Melbourne, and an MPhil in Law from MLS. While at MLS, he worked as a researcher for several senior faculty members, was a 2012 Editor of the Melbourne Journal of International Law, tutor at MLS and various colleges, a Jessie Legatt Scholar, and attended the Center for Transnational Legal Studies Program.

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