Clarke v The Queen; Athanasi v The Queen; Cavkic v The Queen [2009] HCATrans 336 (11 December 2009)

Last Updated: 4 February 2010

[2009] HCATrans 336

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M31 of 2009

B e t w e e n -

JULIAN MICHAEL CLARKE

Applicant

and

THE QUEEN

Respondent

Office of the Registry
Melbourne No M63 of 2009

B e t w e e n -

COSTAS ATHANASI

Applicant

and

THE QUEEN

Respondent

Office of the Registry
Melbourne No M72 of 2009

B e t w e e n -

SUDO CAVKIC

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

CRENNAN J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 DECEMBER 2009, AT 12.32 PM

Copyright in the High Court of Australia

__________________

MR C.B. BOYCE: If the Court pleases, I appear on behalf of the applicant, Clarke. (instructed by Vines Lawyers)

MR L.C. CARTER: If the Court pleases, I appear with my learned friend, MR R.F. EDNEY, on behalf of the applicant, Athanasi. (instructed by CD Traill Lawyers)

MR M.J. CROUCHER: May it please the Court, I appear on behalf of Mr Cavkic. (instructed by Victoria Legal Aid (Criminal Law Section))

MR J.D. McARDLE, QC: If the Court pleases, I appear with my learned friend, MS S.B. McNICOL, on behalf of the respondent in all three applications. (instructed by Director of Public Prosecutions (Vic))

CRENNAN J: Yes, Mr Boyce.

MR BOYCE: If the Court pleases, we had worked out between counsel that Mr Carter would present the argument.

CRENNAN J: Yes, very well. Yes, Mr Carter.

MR CARTER: Thank you, your Honours. Your Honours, the single ground of appeal in each of these applications is concerned with a fundamental aspect of the administration of criminal justice, that is, the standard of proof in criminal trials. The question is whether the term “beyond reasonable doubt” must be explained. Our contention is that the jury in this trial, and indeed in all criminal trials, should be directed that in order to be satisfied beyond reasonable doubt, they must be sure or certain of an accused’s guilt.

Let us make it clear that by that we mean one of those two terms, “sure” or “certain” should be used, not both. “Sure” is what seems to be employed now in Canada, New Zealand and England, although there is some variance. In Australia, as your Honours know, there is some authority outside of modern authority talking about jury direction that speaks of certainty.

In these trials, the directions of the trial judge on the standard of proof are found at application book 4 to 5. Critically, the jury are expressly told that the words “beyond reasonable doubt” do not require explanation. That is, your Honours, the jury were directed – if I could take you to page 4, line 26 - - -

BELL J: The jury were directed consistently with the authority of this Court.

MR CARTER: That is correct, your Honour.

BELL J: As to the statement of the principle which I understand you suggest should be revisited, but Mr Carter, is not one difficulty that you have here that his Honour Justice Coldrey gave comprehensive directions concerning the standard of proof, consistent with the authority of this Court. Whilst I appreciate in some of the material put on in support of the application, you hark back to some earlier difficulty which another jury had, there is no suggestion here that the directions given were not comprehensive, nor that they gave rise to any particular problem in the sense that there was no request from the jury for elucidation of the standard of proof.

MR CARTER: Your Honour, there are quite a few matters there. If I can endeavour to take them in turn and no doubt your Honour will tell me if I have missed any. The learned trial judge’s directions did not, with respect, meet the point that we make because the direction, in our submission, that:

You are probably quite familiar with those words by now. It has been said that they are common English words and that they do not require a better explanation. They mean exactly what they convey -

that is, the direction at page 4 of the application book is, in our submission, erroneous. Nothing that was said in the other directions upon the standard of proof gave the jury any assistance at all with what the meaning of “the standard of proof” is.

Secondly, your Honour, we confront the fact that through the application, we are seeking to challenge the correctness of current authority in this Court. It is perhaps most succinctly stated in the joint reasons of Darkan v The Queen which are contained behind tab 1. That of course was a case dealing with something else your Honours, probable consequence, but the current position in this Court is succinctly encapsulated in the joint reasons of Chief Justice Gleeson, Justices Gummow, Heydon and your Honour Justice Crennan at page 395, paragraph 69 where their Honours state:

The stand which this Court has taken on the expression “beyond reasonable doubt” – that it alone must be used, and nothing else – has not been shared elsewhere.

A footnote reference is made to at least some of the authorities in England, New Zealand, Canada and the United States. Their Honours continue:

Even in Australia it is an extreme and exceptional stand.

By this application, your Honours, we seek to challenge that stand. We seek to address arguments to the justifications that are relied upon in support of it. There are four of them that appear in the paragraph that follows. We say that by reference to other authority, and by reference to other principle, each of those justifications is open to serious challenge. Your Honour’s next question though concerned really this case - - -

BELL J: Indeed.

MR CARTER: - - - and was directed to the fact that there was no question from the jury that indicated they had difficulty with the standard of proof - - -

BELL J: It was twofold, Mr Carter.

MR CARTER: Yes.

BELL J: If an occasion were to arise for the Court to review the longstanding authority that a trial judge should not seek to explain the words “beyond reasonable doubt”, it might be thought a case in which there was some inadequacy, or suggested imperfection, in the trial judge’s directions on the standard of proof might be a more suitable vehicle than one where his Honour’s directions were in accordance with the principles as this Court has explained them, and there is nothing else about the trial, as I understand your submissions, that points to some particular difficulty that the jury had. Sometimes, as you point out, juries do ask for assistance, but this jury did not.

MR CARTER: Your Honour, can we make advance submissions in relation to that point as follows. First, the fact that the jury did not ask a question does not logically assist us in having any level of confidence that the jury was sure or certain of the applicant’s guilt. Second, your Honour, in relation to the question of vehicle, in our submission the point is of such importance that it really needs to be examined by this Court sooner rather than later. This Court has itself accepted, it would appear, that the stance in Australia really is, in a sense, with respect, isolated from all other jurisdictions that are normally looked at as being of some persuasive value.

Insofar as notions of vehicle are relevant, your Honour, it was the case that an exception was taken to the standard of proof by senior counsel at trial. It was the case that senior counsel at trial, in the one breath at application book page 14, complained that his Honour had not defined what “beyond reasonable doubt” meant - that is at line 17, yet in the next breath said:

They need to be told, Your Honour, that they are not going to get a definition from you –

very much illuminating, in our respectful submission, how hamstrung judges, counsel and ultimately juries are by the present position.

BELL J: Senior counsel asked the trial judge to give a direction that, if it had been given, would have been inconsistent with repeated statements by this Court and the trial judge resisted that invitation.

MR CARTER: Yes. Your Honour, the real submission that we wish to advance in relation to the question of vehicle is that if the point is good, if our arguments are correct ultimately, it is a fundamental error in the trial - - -

BELL J: A fundamental error that affects every criminal trial throughout the States and Territories, Mr Carter.

MR CARTER: Your Honour, that, no doubt, would be something weighing on your Honours’ minds, but ultimately it is the ascertainment of justice according to law on behalf of our respective clients that we are seeking to vindicate here and we make no bones about the fact, as in the court below, that the present position of this Court is challenged. In the court - - -

BELL J: So you want Dawson overruled, effectively?

MR CARTER: Yes, your Honour. This Court has not been invited to do so. That is what is so interesting about it. If your Honours look at the line of cases – I am obviously not going to go to them today, that will happen on appeal – but going back to Brown and Hicks, to Thomas, to Green, to Dawson itself and the dicta of Sir Owen Dixon, they are cases that involve concerns about the notion of dilution or watering down of the vital message contained in the standard of proof. Here, the premise is different. The premise is that the modern experience of judges in Australia – the empirical evidence to the extent that it is available – shows that the assumption underlying Sir Owen Dixon’s approach in 1961 can no longer be held onto with such confidence.

In the court below, the court recognised that there is dicta in this Court itself that supports our contention, and accepted that there may be some force in our submissions. That is at page 74 of the application book. The court, however, stated that:

it would be a ‘grave error’ for this court to depart from the approach endorsed by Dixon CJ in Dawson and in the ‘seriously considered statements’ of other judges of the High Court in a number of subsequent cases -

which includes most recently, in terms of joint reasons, Darkan, which I have taken your Honours to. The Court of Appeal continued at application book 75, paragraph 60:

Until and unless the High Court says otherwise, we take the law in this country to be as stated in Dawson and our duty to be to apply it.

The four reasons why we do invite this Court to consider the efficacy in modern Australia of the extreme and exceptional standard derives from 50 years ago may be addressed as counterpoints to the four justifications advanced in Darkan. Number one is the notion coming from Sir Owen Dixon that the words are sufficiently well understood.

Your Honours, juries all over Australia regularly ask for guidance on the meaning of “beyond reasonable doubt” and, as I have indicated earlier, in our submission it matters not that the jury in this case did not ask a question because that cannot logically lead to any safe satisfaction that it was understood.

BELL J: Mr Carter, suppose a judge were to depart from the conventional formula and use an expression such as “satisfied to a moral certainty”. Might it be supposed that surveys conducted of members of the Australian public would reveal a wide range of views about what that expression meant? The circumstance that you may, as the result of surveys, find people have differing views about the expression would not overcome the difficulty, necessarily.

MR CARTER: No.

BELL J: That is, you could substitute another formula and no doubt conscientious jurors aware of the solemnity of their task would worry about exactly what it was, that what standard they were required to meet.

MR CARTER: Indeed, your Honour, but of course the law in this area is an ever-evolving thing, as the judgments – particularly the very detailed and recent judgments of all three judgments of the New Zealand Court of Appeal in Wanhalla, which we have taken your Honours to in the written submissions – illustrate this is an area that has evolved over time, but what the New Zealand Court of Appeal has said recently, long after Sir Owen Dixon’s remarks, what the Canadian Supreme Court has said is that the utilisation of explanation is required because the phrase “beyond reasonable doubt” has a specific meaning in the legal context, and that it is not satisfactory to simply tell the juries....they say you are used to the words.

The Court of Appeal accepted that any judge who has sat for a time in criminal trials will know that juries these days do ask for guidance frequently on the clarification of “reasonable doubt”, and that for that and other reasons, one might respectfully take leave to doubt the expression that it is any longer used by ordinary people or at least understood well enough by the average man or woman in the community. This reality of juror uncertainty was important when the Supreme Court of Canada in 1997 affirmed a need to explain the meaning of proof “beyond reasonable doubt” and we extract in our written submissions the key passages from R v Lifchus.

Empirical research on Australian juries is limited, but the results of the extensive New South Wales survey that we have taken your Honours to are, in our submission, troubling and alarming because only 50 per cent of the 1,000 jurors surveyed from 112 different juries considered that “beyond reasonable doubt” meant “sure”. Your Honours have the survey itself behind tab 11, and would see from the table at page 6 that there were three other cohorts of answer by jurors’ questions as to the meaning of “beyond reasonable doubt”. They included:

Pretty likely person is guilty
Very likely person is guilty
Almost sure person is guilty

Now, if our submission be correct as a matter of law, that means that 50 per cent of jurors in that particular survey are applying a standard of proof that is too low.

Your Honours, that is the first justification in Darkan that the words mean what they say. In our respectful submission, there is sufficient that has occurred in Australia, that has been recognised here and in other countries since, to call into question that assumption. The second justification that is advanced is that other attempts have never prospered. In our respectful submission, the fact that all other common law jurisdictions that we have identified – with the possible exception of England where things are a little murky – indicate because their approach is different and, indeed in the case of Canada and New Zealand, involves a specific and considered repudiation of the Australian approach, that is, an acceptance that it is premised on a fiction, that jurors understand the meaning of the words. This must call into question the applicability of the sentiments of Sir Owen Dixon that other attempts have never prospered. After all, if Australia is standing alone in what is described in Darkan as an extreme and exceptional stance, it seems difficult to say without having fully considered the alternate approaches that other approaches have not prospered.

Your Honours see in the written submissions that we have taken the Court to recent final court authority in Canada, in New Zealand and to the Supreme Court of the United States in Victor v Nebraska where her Honour Justice Ginsburg in her concurring opinion said that:

Whether or not the Constitution –

of the United States of America required definition –

the argument for defining –

“beyond reasonable doubt” –

is strong.

We say, your Honours, and this is a little broad brush for the purposes of the present application, but putting all of that international authority together, Australia as it stands now in its extreme and exceptional stance – the description in Darkan is quite right, we stand apart. The reasoning behind it is, in our respectful submission, outdated.

The third justification advanced in Darkan by reference to the earlier authorities, particularly Thomas and Green, is that expressions other than “beyond reasonable doubt” invite a jury to subject their mental processes to objective analysis, but when reasonable doubt is left unexplained, it is likely, your Honours, that much jury questioning of the standard is because juries are troubled by what is reasonable, since it may be assumed that “doubt” and “beyond” are better understood. If jurors asked themselves whether doubt is a reasonable one, they are necessarily subjecting their mental processes to objective analysis and on this argument, in our respectful submission, the third justification is already contravened and is at least vexed.

What we propose that a jury is simply directed, that to be satisfied beyond reasonable doubt means you are certain of the accused person’s guilt, does not transgress this concern. It is not a substituted expression. It is an amplification that goes with “beyond reasonable doubt”. It is not a dilution of the kind that has been frowned upon in the series of authorities that we have identified in the submissions.

The final point, your Honours, is this by reference to Darkan. The simple direction that we propose would not obscure the vital point that the accused is to be given the benefit of any doubt which the jury considers to be reasonable. On the contrary, it is more likely to drive this vital point home by directing the jury in terms of certainty.

Your Honours, we have referred in the written submissions to the fact that in other contexts, including more recently, this Court has spoken of “beyond reasonable doubt” in terms of certainty, for example, in Keeley v The Hon Mr Justice Brooking which is behind tab 4 of our authorities. This Court rejected submissions on behalf of the applicant in the context of a prosecution for contempt of court, the submission being that there was some higher standard of proof approaching moral certainty that should apply. The Court was critical of counsel for the misplaced reliance on American authority and Chief Justice Barwick, in a separate judgment, but I think really reflecting the other judgments also, said at page 169:

To be satisfied beyond all reasonable doubt is, for the purposes of the law, to be certain.

To a similar effect, your Honour, in Green v the Queen in the joint reasons, Chief Justice Barwick and Justices McTiernan and Owen – this authority is provided behind tab 5 – state in the second full paragraph at about point 5 on page 33:

Such a standard of conduct on the part of a jury in a criminal trial would in our opinion be a denial of that traditional solicitude for certainty expressed in the traditional formula as to the onus of proof.

So their Honours are there saying that certainty is within the onus of proof and our submission, your Honour, is that this application by calling into question, by reference to persuasive authority in other jurisdictions, by reference to the acceptance of the court below that there was some force in the submissions that this application does raise a point of public importance and that the jury, with the greatest of respect, ought to be let in on the secret – that is, that if it is okay for judges to essay that “beyond reasonable doubt” means “certain” in whatever context, it seems seriously arguable at least, in our submission, that juries ought also be directed on that when they are determining an accused person’s fate in a criminal trial.

The one other matter that I wanted to say, in relation to your Honour Justice Bell’s questions was this. The jury in this case did have a question as to the questions of law - - -

BELL J: They sought redirections on his Honour’s directions on - - -

MR CARTER: Yes, and there was a complaint made about the way that was dealt with in the court below, but that is not a special leave point. But whether or not that included matters as to the standard of proof, senior counsel indicated in argument that one is surprised that your Honour has not sought some clarification as to what it is they are asking. Perhaps there is anxiety that they will ask about the standard of proof. But, your Honours, the present position is that this Court, in our respectful submission, should have discomfort that the current administration of justice has a situation where the juries are effectively directed upon the most fundamental aspect of a criminal trial, in terms that on one view are circular. So for those reasons, your Honours, we say special leave ought to be granted.

CRENNAN J: Thank you, Mr Carter. Mr Boyce, do you formally adopt those oral submissions on behalf of your client?

MR BOYCE: I do, your Honour.

CRENNAN J: Mr Croucher, your position?

MR CROUCHER: I do too, your Honour.

CRENNAN J: We do not need to trouble you, Mr McArdle.

We see no reason to doubt the correctness of the conclusions reached in the courts below. Accordingly, special leave to appeal is refused in each of these applications.

The Court will now adjourn until 1.30 pm.

AT 12.54 PM THE MATTERS WERE CONCLUDED