Chatzidimitriou v The Queen M53/2000 [2001] HCATrans 30 (16 February 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M53 of 2000

B e t w e e n -

EMMANUEL CHATZIDIMITRIOU

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 16 FEBRUARY 2001, AT 2.16 PM

Copyright in the High Court of Australia

MR O.P. HOLDENSON, QC: May it please the Court, I appear with my learned friend, MR A.J. PALMER, on behalf of the applicant. (instructed by Lethbridges)

MR G.R. FLATMAN, QC: May it please the Court, I appear with MR M. BAGARIC, for the respondent. (instructed by Mr P. Wood, Solicitor for Public Prosecutions (Victoria))

GLEESON CJ: Yes, Mr Holdenson.

MR HOLDENSON: In his Honour's charge to the jury, the learned trial judge directed the jury in respect of both the burden of proof and the standard of proof. Subsequently, during its deliberations, the jury returned to court and asked a question of his Honour concerning the standard of proof. That question was "define `doubt'; define `reasonable doubt' and define `beyond reasonable doubt'". His Honour answered the question by way of direction and there was then some further discussion in the presence of the jury and, again, a further direction.

Shortly thereafter, the jury, having returned to the jury room, requested the provision of a dictionary; that dictionary turning out to be the two volume 1959 edition of the 1952 Shorter Oxford English Dictionary. After some discussion, the jury was provided with that two volume dictionary in circumstances where no directions or guidance were given by the learned trial judge to the jury as to how they should or, perhaps more particularly, should use that dictionary.

It is our submission that the course adopted by the learned trial judge has vitiated the verdict in a number of ways. First, it compounded the jury's misunderstanding as to the standard of proof. In the light of the question which had been asked by the jury during its deliberations, the jury had clearly failed to recognise that the phrase "beyond reasonable doubt" was a composite phrase.

GLEESON CJ: Where do we find that question?

MR HOLDENSON: At 115, at the head of the page. At 115, at the head of the page, your Honours will see, at line 4, his Honour reads out the questions which had been written by the jury:

(1) Define "doubt", define "reasonable doubt", and define "beyond reasonable doubt".

GLEESON CJ: Which is a composite phrase.

MR HOLDENSON: It is a composite phrase. Now, the jury were very much into, at that point, breaking it up.

GLEESON CJ: I am not sure why you say that, bearing in mind that the third definition they wanted, was "beyond reasonable doubt".

MR HOLDENSON: Yes. But, in any event, this question and that which flows from the question was very much overtaken by that which occurred subsequently, namely, the provision of the dictionary to the jury in circumstances where there was no instruction or guidance given as to what the jury might do, having turned to the definitions of the word "doubt", and "reasonable" therein.

HAYNE J: What did trial counsel say, if anything, about this request for a dictionary?

MR HOLDENSON: The request is to be found at the head of page 129, and at page 129, line 18, defence counsel indicates that it troubled him and then, at line 22, "it wouldn't be helpful". That being repeated at lines 24 to 27 inclusive. Then that which is set out in that paragraph at line 27, and then one goes to page 130, the discussion, which extends over to 131, with the jury being provided with the two volumes at 132.

GLEESON CJ: What about 165?

MR HOLDENSON: Page 165 is the judgment of Justice Cummins in the court below where his Honour sets out that to which I have just taken the Court in the actual transcript pages.

GLEESON CJ: I see. Well now, what does counsel mean by, "I'm not going to j ump up and down about it"? I do not want you to answer that question by giving me a dictionary with the word "jump". I think the expression "I'm not going to jump up and down about it" is a composite phrase which I would understand to mean, I am not taking a formal objection.

MR HOLDENSON: I think it is fair to say it was an objection about the course that was proposed in the request.

GLEESON CJ: Anyway, you are here jumping up and down about it.

MR HOLDENSON: Well, we jumped up and down about in the court below and one point that was not taken against us in the court below was there was no objection taken to this at the trial, nor could there be. How could, we say rhetorically, counsel waive the standard of proof or the question of the application of the standard of proof, there, of course, being nothing more fundamental than that? The way in which the court below dealt with it was notwithstanding the statement in the judgment of the learned presiding judge that there was no objection taken, that was not the basis upon which this case was decided and, if it had been, we would say by way of submission that if it is a case where counsel failed to take the point, it is not fatal; a miscarriage is a miscarriage in the circumstances.

GLEESON CJ: Mr Holdenson, I presume the answer to this is, no, but do we happen to know anything about the English-speaking capacity of the members of the jury?

MR HOLDENSON: No one at this Bar table, so far as I know, knows that. None of us were there and so I cannot assist your Honour. There is nothing in the transcript of the trial which assists us in anyway whatsoever in that regard.

GLEESON CJ: You would not necessarily assume, would you, that a jury chosen at random, here or anywhere else in Australia, were all people of English-speaking background?

MR HOLDENSON: One cannot make that assumption in this day and age, no.

GLEESON CJ: Well, a request for a dictionary in those circumstances is not necessarily all that surprising, is it?

MR HOLDENSON: It is nevertheless erroneous in circumstances where what it indicates is that the jury is breaking up the composite phrase.

GLEESON CJ: That is the critical question, I should have thought.

MR HOLDENSON: It is one of the critical questions as to what occurred. One of the other critical questions about what occurred is whether or not the jury had reached the process of attempting to determine whether the doubt that they had entertained was a thing called a "reasonable doubt" or whether it was something lesser or other.

HAYNE J: At what stage of the jury's deliberations do these events occur? They had been out a day or nearly a day, had they not?

MR HOLDENSON: Yes.

HAYNE J: Question, and dictionary provided, then what happens after that, Mr Holdenson, and how long before the - - -

MR HOLDENSON: The dictionary is before 10 am; verdict as I recall at after 2 pm in the afternoon.

HAYNE J: Of the day of - - -?

MR HOLDENSON: Of that day upon the dictionary was provided.

HAYNE J: So, overall, deliberations about - - -?

MR HOLDENSON: In excess of a day.

HAYNE J: Nearly two, is it, or - - -?

MR HOLDENSON: A day and a half, yes. Now, the vice is this: we do not know what was done with the dictionary in the jury room. There may have been an incredible process of analysis with the words, not just a breaking up of the phrase, but then a consideration of whether or not the doubt was a reasonable doubt or something else.

GLEESON CJ: We do not get into the question of what went on in the jury room. There is an English case where the jury consulted a ouija board to find out from the victim of the crime of murder who was responsible for the death.

MR HOLDENSON: I am familiar with the case and it is my - - -

GLEESON CJ: The decision turned on the fact that they did it outside the jury room.

MR HOLDENSON: I understand all of that but in this case it was common ground in the court below - and, of course, this is what the trial judge's report said in the Court of Appeal, that the purpose of the request of the dictionary was referable to the standard of proof and its application. That was the understanding or atmosphere in the court below.

Perhaps if at this point I could just take the Court to one of the consequences which flowed from the provision of the dictionary or, alternatively, may have flowed and which gives rise to the argument that the verdict has to be set aside. Could I take your Honours to page 167 of the application book where your Honours will find there set out toward the foot of the page the meanings of the words from this dictionary, keeping in mind that what occurred was that his Honour did not direct the jury that they were not to engage in a process of substitution and keeping in mind, also, that which fell from Justice Cox in the case of Pahuja - and this is set out in one of the judgments - "that one does not define each of the words in the phrase." But just having regard to those meanings: if, for example, in respect of the word "reasonable" the jury latched onto the word "sensible" to be there found, "not asking for too much" or "moderate". Then if the jury may well have proceeded on that basis, the inevitable consequence is that the standard of proof was reduced. Again, such, of course, is contrary to the fundamental principle upon which criminal trials are conducted.

If, alternatively, the jury had regard to that meaning in the middle there, "not irrational" and if we assume, for a moment, that the words "not irrational" mean "rational", then the jury would have proceeded on the basis that the verdict had to be a doubt, a doubt which was a rational one. That process of reasoning was expressly and unequivocally prescribed in Green's Case where it was held by this Court that a reasonable doubt which a jury may entertain is not to be confined to a rational doubt. The same applies with respect to the word "reasonable" if it be given the meaning first attributed to the word there, "endowed with reason". If that means "for which a reason can be given", again, then in our submission is expressly prescribed by Green's Case which said, "A reasonable doubt which a jury may entertain is not to be confined to . . . a doubt founded on reason".

GLEESON CJ: Mr Holdenson, what would you say if counsel or a judge spotted a juror with a pocket dictionary in his or her pocket during a trial? Would the judge be required to demand that the dictionary be handed over?

MR HOLDENSON: If there was any possibility that the dictionary was being used referable to - - -

GLEESON CJ: How would you tell that? Would you question the juror?

MR HOLDENSON: It might be necessary. There is a contrast is the cases - - -

GLEESON CJ: I mean, a trial judge might say, "You've got a pocket dictionary I see there, deliver it up".

MR HOLDENSON: Yes. If it is a case about indecent assault or grievous bodily harm, then the mischief is, is the juror going to attribute to that phrase "indecent assault", "indecency", "circumstances of indecency", "grievous bodily harm", the meaning attributed to the word in the dictionary, that is one thing. This is something a little different. It is about the standard of proof and the vice is that it can cause the jury to engage in the two-stage process; the second stage being, having reached a doubt - - -

GLEESON CJ: I understand that but in every criminal trial the jury is going to be instructed about the onus and standard of proof. My question to you is, in any criminal trial, if a juror is seen with a dictionary in his or her pocket, what is the judge supposed to do about it?

MR HOLDENSON: If there be a risk that the dictionary might be used by that juror in his or her application of the standard of proof, then the jury is to be directed, in my submission - or the juror - not to use the dictionary.

GLEESON CJ: And how does the judge decide whether there is a risk?

MR HOLDENSON: It may be that it is in a situation akin to the present case where the jury was struggling with the application of the standard of proof, having come back as they had after some time with the question they did and then having come back and requested - albeit not physically come back into court, and requested the provision of the dictionary. But it is not just the provision of the dictionary which is the harm in this case. It is what did not happen when the dictionary was provided. His Honour did not direct the jury that the dictionary merely provided a description of a selection of the meanings attributable to the words out of context, that is, the word "reasonable", the word "doubt", but not in the context in which they were used, namely, the composite phrase, and so the jury stray from that which is a reasonable doubt. The meaning is a doubt which the jury, in the circumstances of the case, entertains at the end of the day. Green's Case.

When one starts working with a dictionary and breaking it up, "Do I have a doubt if, yes, is it `reasonable', is it `moderate', is it `sensible', is it `endowed with reason' for which a reason can be given?", there is suddenly a reversal of the onus of proof unless, perhaps - and this is very much an alternative argument - the trial judge says to the jury, "But when you use this dictionary you make certain that what you do in construing that composite phrase is you do not simply, at the end of it, add up the sum of the three individual meanings of the three words. It is not building blocks."

HAYNE J: Does it follow then that a direction of that kind should have been given rather than the direction which was given at 125, at lines 20 and following, that:

the law has always taken the view that those are very plain English words and ought to be interpreted by the jury to mean exactly what they say, namely beyond reasonable doubt.

MR HOLDENSON: That is correct. His Honour there said the phrase is to be construed as the phrase - no, his Honour, with respect, did not say, "It's made up of three words and each of those words is to be given its single meaning."

GLEESON CJ: You are not suggesting the judge should have said to the jury, "This is to be construed as a composite phrase", are you?

MR HOLDENSON: Well, that is how his Honour, in my submission, directed the jury at page 125.

GLEESON CJ: I only ask you that question because I wonder how many jurors know the meaning of the words "construing a composite phrase".

MR HOLDENSON: Probably not too many, but the way in which his Honour, perhaps, ought to have gone about it in circumstances where the jury was clearly struggling, as it was, was to have reminded the jury by way of a direction as to how it is they are to go through their work, their task, their function, and then say to them, "Having done that, if you have a doubt then you, having engaged in that process, have a reasonable doubt, in which case you must acquit."

Now, this is not a case where, in our submission, one should focus upon what his Honour did in his Honour's charge to the jury at some passage or what his Honour did in his answer to the question because all of that got overtaken by what occurred when the jury requested the dictionary and it was provided to them. Because his Honour, in our submission, in effect, gave them a written direction; a written direction in respect of which he had no control. His Honour provided the dictionary with no direction as to what they could or should or should not do with the words there to be found. In fact, for example, if I could take your Honours just quickly back to page 167 of the application book, your Honours will see the word "doubt" there defined and one of the meanings is, "A feeling of uncertainty". The use of the word "feeling" suggests a perception driven by emotion.

A little further above that, again referable to the word "doubt", one sees the phrase, "the truth or reality of anything". One thing that a criminal trial is not, is this. It is not a search for truth. And then, within that meaning, one sees notions of subjective state of uncertainty and objective uncertainty.

GLEESON CJ: Did this jury go home overnight?

MR HOLDENSON: No.

GLEESON CJ: They were sequestered?

MR HOLDENSON: They did not go home overnight. They stayed locked up.

GLEESON CJ: They stayed - - -?

MR HOLDENSON: They were locked up overnight, segregated. A question then arises, what happens if one of the jurors went home and talked with his or her husband or wife, or looked at the dictionary? Well, so be it. The jury would, of course, be disobeying the charge to the jury; the charge to the jury being, "You follow my directions. Don't go and seek your own."

That is what we say has happened here. If his Honour had orally charged the jury by reference to those meanings in the dictionary, we say his Honour would have erred. If his Honour, instead, had given the jury written directions, as happens from time to time, sensibly or otherwise, written directions in accordance with those definitions there set out, then, again, we say his Honour would have erred. But that is this case. His Honour has provided the jury with the very means to do that which he could not do for them, the very tool - now, I see the yellow light is on. So, might I just say this: this jury was in real difficulty with the application of the standard of proof. There can be nothing more fundamental to the administration of justice. By providing the dictionary as he did, with nothing more, the learned trial judge first abdicated his function and duty by not assisting the jury with a direction and, secondly, may have caused the jury to apply a different or lesser standard of proof, a matter in respect of which each and every authority speaks with one voice, the verdict is set aside.

It is our submission that if the judgment below stands, then in circumstances where, save as to this case, there is not one reported or, for that matter, unreported decision in Australia, New Zealand, England, Canada or the United States of America where an appellate court has been required to consider, let alone authorise, the propriety of a trial judge handing to a jury a dictionary to be used by reference to the standard of proof, then whenever a jury articulates a difficultly with the standard of proof, all a judge need do, without more, is distribute copies of the dictionary and the verdict will stand.

Now, with all the vices in this case: the jury in trouble; the jury breaking up the phrase; the jury engaging or attempting to engage in a two-step process, to be then given the dictionary, without direction, without control, then, in our submission, the court, the trial judge is engaging or encouraging, or inviting or permitting a process which has been prescribed by each and all of the authorities.

Perhaps, finally, in order to indicate or demonstrate the inconsistency between the judgment below and the South Australia Full Court in Pahuja, might I take your Honours to page 153 of the application book, at line 9 or 10, where his Honour says - and I quote from Pahuja:

It would not be enough, however, even if possible, to define each word, because the phrase obviously means more in this context than the mere sum of its parts.

Now, here, doing what he did, therein lies a problem. Again, in our submission, keeping in mind what it is that the standard of proof means, namely, a doubt which the jury in the circumstances of the case entertains at the end of the day, there is a clear flaw in the reasoning of the learned presiding judge's judgment at the foot of page 149, the last three lines on the page:

Now, if it be correct that the jury's task is to consider whether they have, at the end of the day, a reasonable doubt - in the sense that they entertain a doubt which they consider reasonable - it cannot be the law that the jury should not contemplate what is meant by the word "reasonable" as an ordinary English word.

The flaw in that is this: the jury must not engage in a process or test, review, evaluation or analysis or whatever in order to determine whether or not the doubt they have is a reasonable one or something else or lesser, and that is the vice, if the Court pleases.

GLEESON CJ: Thank you. We do not need to hear you, Mr Flatman.

The provision of the dictionary was not without some danger but we are not persuaded that in the circumstances of this case there was a miscarriage of justice. In particular, we are not persuaded that the provision of the dictionary encouraged the jury to depart from the proper instructions they were given as to the onus and standard of proof. There are insufficient prospects of success of an appeal to warrant a grant of special leave and the application is refused.

AT 2.38 PM THE MATTER WAS CONCLUDED