Onus

The Court (Barwick CJ, McTiernan and Owen JJ)

1. Four young men, Craig, McIntosh, Sigmund and Green, were charged in the with rape; McIntosh, with assault with an intent to commit rape. They were each also charged with aiding and abetting each of the others in the commission of the crime with which that other was charged. The charges were all heard together.

2. The jury found each guilty on each charge laid against him. They were each sentenced to a term of imprisonment. Appeals were lodged to this Court, pursuant to s.52 of the Australian Capital Territory Supreme Court Act 1955-1968 (Cth), on behalf of Craig, Sigmund and Green, but counsel appearing before the Court on behalf of Sigmund and Craig announced that he was instructed to withdraw the appeals on behalf of those two appellants. Accordingly their appeals were by consent dismissed.

3. A number of grounds of appeal were argued on behalf of Green but it is sufficient in order to dispose of his appeal that we should deal with two of them.

4. The first ground is that in his summing up the trial judge improperly instructed the jury as to the onus of proof. This part of the summing up was applicable to all the charges against all four of the accused.

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12. Those quotations are but some of many admonitions to judges presiding over criminal trials to adhere to and not to attempt needless explanations of the classical statement of the nature of the onus of proof resting on the Crown.

13. It is thus remarkable that in 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.

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15. In the second place, the direction was in our opinion fundamentally erroneous. A reasonable doubt is a doubt which the particular jury entertain in the circumstances. Jurymen themselves set the standard of what is reasonable in the circumstances. It is that ability which is attributed to them which is one of the virtues of our mode of trial : to their task of deciding facts they bring to bear their experience and judgment. They are both unaccustomed and not required to submit their processes of mind to objective analysis of the kind proposed in the language of the judge in this case. "It is not their task to analyse their own mental processes" : Windeyer J., Thomas v. The Queen (1960) 102 CLR, at p 606 . A reasonable doubt which a jury may entertain is not to be confined to a "rational doubt", or a "doubt founded on reason" in the analytical sense or by such detailed processes as those proposed by the passage we have quoted from the summing up. Yet that is what they were directed to do in this case.

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17. If during the course of a trial, particularly in his address to the jury, counsel for the accused has laboured the emphasis on the onus of proof to such a degree as to suggest to the minds of the jury that possibilities which are in truth fantastic or completely unreal ought by them to be regarded as affording a reason for doubt, it would be proper and indeed necessary for the presiding judge to restore, but to do no more than restore, the balance. In such a case the judge can properly instruct the jury that fantastic and unreal possibilities ought not to be regarded by them as the source of reasonable doubt. In the passage which we have quoted from the summing up in this case the trial judge did alert the jury to the impropriety of acting upon such possibilities. We do not know whether counsel for the accused had actually sought to influence the jury in an inadmissible way calling for the judge's intervention. But in any case as we have indicated the judge did not confine his remarks to restoring a proper balance in the mind of the jury. Cf. Thomas v. The Queen, per Windeyer J. (1960) 102 CLR, at p 605.

Per Barkwick CJ (would refuse special leave)

1. The applicant for special leave to appeal was charged before murder on 14th September 1975, at Mount Beauty in that State of his brother, Kevin. After a trial of four days, the applicant was convicted of murder and sentenced to imprisonment for the term of his natural life. He unsuccessfully appealed to the Court of Criminal Appeal against his conviction.

2. The circumstances of the case out of which the charge arose are both simple and contained in a small compass. The applicant, David, at twenty-four years of age was the eldest of four brothers, the others being Kevin (the deceased) twenty-one, Peter seventeen and Adrian eleven at that time. They were all in the loungeroom of their parents' home on the afternoon of Sunday, 14th September, watching television, their parents having been absent during that day. David went through the front door to the verandah of the house. Words arose between him and the deceased relating to David's conduct on the verandah. The deceased latched the flyscreen door, thus excluding David from entry through it to the loungeroom. David went to the rear of the house, went to his bedroom, obtained and loaded his .22 automatic rifle with a single round; entered the loungeroom carrying the rifle pointed in the general direction of the deceased, then reclining on a couch or settee. As he entered, David said to the deceased, "I am going to bloody put a hole in you". David brushed aside the effort of Adrian to dissuade him, and upon the deceased rising and walking awkwardly, because of an ankle injury, towards him, David released the safety catch and discharged the rifle. The bullet passed near to the deceased's heart. He died very shortly thereafter

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15. However, after the application for special leave to appeal had been lodged with this Court, the summing up appears to have been subjected to further and intense scrutiny. As a result, a further ground for seeking special leave was notified, namely, that the learned trial judge failed to direct the jury or, alternatively, misdirected the jury as to the onus of proof and, in particular, as to the meaning of the words "reasonable doubt".

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18. This Court has clearly laid it down that it is both unnecessary and unwise for a trial judge to attempt explanatory glosses on the classical and, as I think, popularly understood formula which expresses the extent of the onus resting on the Crown in its attempt to establish the commission of a crime: see Green v. The Queen [1971] HCA 55; (1971) 126 CLR 28 . The Court has also indicated the limited occasions on which, in a case depending on circumstantial evidence, the extended formula proposed by Alderson B. in R. v. Hodge (1838) 2 Lewin CC 227 (168 ER 1136) should be used: see Grant v. The Queen (1975) 11 ALR 503.

19. In the present case, no question of circumstantial evidence arose. The evidence of the discharge of the gun and the circumstances in which it occurred were the subject of direct eye witness evidence. Undoubtedly, the case was not one in which to complicate the summing up by resort to any formula except the traditional reference to the absence of reasonable doubt.

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21. The objection to the summing up does not end there. It was erroneous - and indeed confusing - to tell the jury that finding a reasonable and rational explanation of the facts consistent with the innocence of the accused merely imposed a more difficult task upon them, because of a choice of verdicts which remained to them. If they found such an explanation, the accused was entitled to an acquittal. The jury in that case could not have been satisfied beyond reasonable doubt.

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26. For these reasons, I do not think that the jury were likely to be diverted from the constant application of the onus of proof expressed in traditional terms to the evidence before them.

27. However, I should add two things. First, that a time-honoured view is that the adequacy of a summing up ought not to be judged upon a subtle examination of its transcript record or by undue prominence being given to any of its parts. It should be taken as a whole and as a jury listening to it might understand it. The second is that, whilst in a case where a summing up is radically in error, the failure of counsel to object to it in terms calculated to afford the trial judge an opportunity to amend it in a relevant respect will not necessarily defeat an application for special leave, generally, such a failure on the part of counsel will be a considerable impediment to the grant of such leave. Here the ground now sought to be taken was not taken before the Court of Appeal. This Court should give no encouragement to the addition of such further grounds, unless the interests of justice undoubtedly demand their admission. They do not in this case.

28. In my opinion, special leave to appeal should be refused.

Gibbs J (would refuse special leave)

9. On behalf of the applicant there has been raised a further objection to the charge which was not taken at the trial, before the Court of Criminal Appeal or even in the notice of motion to this Court. This was that an inadequate or misleading direction was given on the subject of reasonable doubt. In the course of his charge the learned trial judge told the jury that the Crown had to establish its case beyond reasonable doubt. He repeated this statement on a number of occasions. However, early in his charge, after telling them that the Crown had to establish its case beyond reasonable doubt and that the onus of proof was thus much higher than the onus of proof in civil cases, he went on to say:

"In a case like this, where the evidence is arranged as it is, before you reach a view that something has been established beyond reasonable doubt you also have to be satisfied that there is no other rational conclusion which is consistent with the innocence of the accused. If there is another rational explanation it follows that there is a reasonable doubt. So if you want to do it this way, as an approach, when considering whether the case for the Prosecution has, in any particular respect, been established beyond reasonable doubt contrast with that a design to find out the answer to that question, whether there is an explanation which is reasonable and rational which is consistent with the innocence of the accused. If there is you need to think harder as to what you should do. I say harder as to what you should do because there is a spread of situations that have been placed before you as to the circumstances in which the facts, as you find them, may amount to murder or to manslaughter, and eventually I will go through those."

The argument advanced before us on behalf of the applicant was that in this passage the judge in effect told the jury that they would have a reasonable doubt only if they found that there was a rational explanation of the evidence consistent with innocence, and that the jury might have understood the words "reasonable doubt" in this sense whenever they were used in the course of the charge.

10. This Court has not infrequently warned trial judges of the dangers of endeavouring to explain the traditional expression "beyond reasonable doubt", which, speaking generally, is well understood and needs no explanation. Where the case depends upon circumstantial evidence it is usual to direct the jury that they cannot convict unless they are satisfied that the circumstances are such as to be inconsistent with any reasonable hypothesis (or rational conclusion) other than the guilt of the accused (see Peacock v. The King [1911] HCA 66; (1911) 13 CLR 619, at p 634 ) but in other cases attempts to define "reasonable doubt" may obscure or distort the meaning of that phrase and lead to a misdirection, as in Green v. The Queen [1971] HCA 55; (1971) 126 CLR 28 . It is in all cases the duty of the trial judge to make the jury understand that a criminal charge has to be established by the prosecution beyond reasonable doubt, but as Windeyer J. said in Thomas v. The Queen [1960] HCA 2; (1960) 102 CLR 584, at p 605 "the best and plainest way" to give such a direction is to tell them that they must be satisfied beyond all reasonable doubt.

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12. Of course the statement that if the jury thought that there was a doubt they would need to think harder was incorrect. However, there can be no doubt that the charge as a whole made it perfectly clear to the jury that what the judge meant was that if they were left in doubt as to whether the applicant had an intention to kill or inflict grievous bodily harm it would be necessary for them to consider whether he had fired the shot knowing that it would probably cause death or grievous bodily harm, and that if they were in doubt about that they would still have to consider the question of manslaughter.

Stephen J (would allow the appeal)

6. This suggestion followed the elaboration by his Honour of his earlier observation that, before concluding that guilt had been established beyond reasonable doubt, the jury should be satisfied that there was no other rational conclusion consistent with innocence. His Honour continued:

"If there is another rational explanation it follows that there is reasonable doubt. So if you want to do it this way, as an approach, when considering whether the case for the Prosecution has, in any particular respect, been established beyond reasonable doubt contrast with that a design to find out the answer to that question, whether there is an explanation which is reasonable and rational and which is consistent with the innocence of the accused."

Despite some garbling that appears to have occurred in transcription, the substance of what his Honour said is clear. It was, I think, such as might mislead the jury and might do so in a manner seriously prejudicial to the accused. It might suggest to them that it was for the accused to satisfy the jury of the existence of a reasonable and rational explanation consistent with innocence, failing which the jury could conclude that no reasonable doubt as to guilt existed. The jury were, I think, likely to have understood that they might ask themselves the question "Is there any explanation consistent with innocence which is both reasonable and rational?" and, if able to give a negative answer to that question, might then regard themselves as being satisfied beyond reasonable doubt. (at p83)

7. Later in the same passage the learned trial judge went on to say that if an affirmative answer was given to the question which he suggested the jury should ask themselves they would then "need to think harder as to what you should do". As subsequently appeared, his Honour had in mind that in such a case the jury would have to choose between murder and manslaughter and that their task would be the more difficult because it would involve the making of that choice. In fact an affirmative answer to the question suggested by the learned trial judge, whether there was an explanation consistent with innocence which was reasonable and rational, would not have made the jury's task "harder"; all they needed then to do would be to acquit the accused. However this particular error, textually associated with and perhaps induced by what preceded it, would not, I think, on its own have been capable of causing any miscarriage of justice; on a number of subsequent occasions the learned trial judge was at pains to make it perfectly clear that the possession of reasonable doubt in the minds of the jury must lead to an acquittal. Any confusion which it may have caused in the minds of the jury would, I think, have been wholly removed by what was subsequently said.
8. This is not so in the case of the first error, that involved in the suggested method of testing the existence of satisfaction beyond reasonable doubt. Having once supplied an authoritative test of that state of mind and having left that test in the minds of the jury, to be applied by them to those matters upon which they had to pass, matters which his Honour went on to describe as depending upon satisfaction beyond reasonable doubt, there arises in my view a clear possibility that the trial may thereby have miscarried. What was said by this Court in Green v. The Queen [1971] HCA 55; (1971) 126 CLR 28, at p 31 is apt. There, as here, the learned trial judge had "made reference elsewhere in his summing up to the need to be satisfied beyond reasonable doubt but these references were, in our opinion, controlled by the definition of that expression which his Honour gave in the passage we have quoted". Here it was no precise definition that controlled the subsequent references to reasonable doubt but instead a suggested means whereby the jury might test the existence of such a doubt.

9. This Court has on a number of occasions, many of which are reviewed in Green v. The Queen [1971] HCA 55; (1971) 126 CLR 28, at p 31 referred to the danger of attempting to explain or elaborate upon the content of the time-honoured formula of "a reasonable doubt". As Sir Owen Dixon said in Dawson v. The Queen [1961] HCA 74; (1961) 106 CLR 1, at p 18 , the attempts to substitute other expressions have never prosper.

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11. That at the trial no objection was taken to this aspect of the charge, at a time when it could have been, and no doubt would have been, corrected, is unfortunate. In undertaking the exacting task of directing a jury in cases in which the issues are complex a judge is entitled to the anxious assistance of counsel. Moreover the very fact that no objection is taken at the time will in some cases of itself suggest that, however a particular portion of the charge may read in print, it was not, in the context and circumstance of its delivery, such as to mislead those who heard it. I am, however, unable to conclude that this was such a case and that the failure to take objection at the appropriate time should deprive this present objection of its force. That this ground was relied upon for the first time before this Court has also been productive of unfortunate consequences and would, in appropriate circumstances, provide a reason for not now permitting it to be availed of. The particular nature of the error of law upon which this ground is founded is, however, in my view such as to preclude the taking of this course. I have concluded, although with reluctance, that there should be a new trial.

Mason J (would refuse special leave)

3. Green v. The Queen [1971] HCA 55; (1971) 126 CLR 28 turned on the view which the Court took of the entire summing up. It concluded that the jury would take from the judge's remarks an incorrect impression of what is meant by the expression "reasonable doubt". Here the jury would have gained a correct understanding from the charge viewed in its entirety.

Jacobs J (would allow the appeal on a separate ground, and does not address the onus issue)

28. For these reasons I would grant special leave to appeal, allow the appeal, set aside the conviction and order a new trial.

Per Mahoney JA (would dismiss the appeal)

At 111

I have had the privilege of reading the judgment of Hunt CJ at CL. I agree with his Honour's conclusions and generally with his reasons.

At 112

However, where the accused person has “not remained silent about the” issue but has, for example, in his interview with the police, made particular assertions, regard may be had to the fact that those assertions are inconsistent with what he has set up at the trial (at 101).

In the present case, two relevant issues of fact arose at the trial. The relevant charge was that the accused had stabbed a Mr O'Hara. The Crown case was that he had done this in the context of a struggle with Mr O'Hara's daughter. The accused raised, inter alia, two issues: he suggested that Mr O'Hara had been stabbed, not by himself, but by Mrs O'Hara; and he suggested that Mrs O'Hara had stabbed him, the accused, three times. The first matter constituted a defence to the charge; the second was, it may be, relevant to the nature of what occurred at the time and to the suggestion that Mrs O'Hara had stabbed her husband.

The first matter, the possible defence, was clearly raised by the accused during the trial: it was put by the accused in cross-examination of Miss O'Hara, Mrs O'Hara and Mr O'Hara. The second was also clearly raised. It was put to Mrs O'Hara in cross-examination. She accepted his assertion that she had picked up a knife and “just pushed it into my back”, that is, the back of the accused. She admitted that she had “seen blood come out so you pulled it back out”. She said she had done this only once, not three times.

As Hunt CJ at CL has shown, the infringement of the appellant's right to silence arose during the evidence of Detective Constable Chapman. It arose in a particular context. In chief, the Crown had elicited that, when

questioned, “the accused would say nothing relative to the incident …”. The accused then put to Detective Constable Chapman the question: “When I was taken to the police station I had three stab wounds to my back, why was I refused medical treatment?”

The trial judge disallowed the question but elicited that Detective Constable Chapman had not seen any apparent injury to the accused and that no request had been made to him for medical treatment. Those questions went directly to the allegation of triple stabbing raised by the appellant. No objection could be taken to them.

In re-examination immediately following those questions, the Crown Prosecutor elicited that the appellant had not complained to Constable Chapman of any injury. The only other question then asked was:

“Q. In fact of the questions he was asked by your colleague, Detective Roberts, did he co-operate in any way at all? A. No, he was most unco-operative.”

The Crown case was then closed.

The infringement of the appellant's right to silence lies in what the Crown elicited and in the last question. In so far as there was an infringement, it was because of the cumulation of two possibilities. It was possible that the jury would take from the last question and, in particular, “co-operate”, the inference that the appellant when questioned acted in an untoward manner. The second possibility was that, from what was said, they would infer “a consciousness of guilt”: Petty (at 99).

At 113

That leads me to the matter to which I wish to refer. The right to silence is to be observed. If it is to be observed, it is necessary that it be protected. One method of ensuring that it is protected against infringement is to set aside a conviction produced by the infringement of it. But when there has been an infringement and a conviction, one cannot be sure that the infringement did not produce, or at least influence, the conviction. Therefore, in order to ensure that no conviction has resulted from infringement, it is necessary to set aside a conviction which might have resulted from it. And the law acts against the possibility that the infringement has produced the conviction.

Hunt CJ at CL (would dismiss the appeal)

At 114

The appellant (Darren Brian Reeves) was found by a District Court jury to be guilty of one charge of malicious wounding and not guilty of one charge of assault. The appellant had, when indicted, pleaded guilty to one charge of attempted kidnapping and to another charge of assault. Judge Collins QC imposed concurrent sentences in respect of the malicious wounding and the attempted kidnapping — a minimum term of two years with an additional term of eight months for the first, and a minimum term of eighteen months with an additional term of six months for the second. He deferred passing sentence in relation to the assault, upon conditions that the appellant enter into a recognisance to be of good behaviour for a period of three years, that he submit to supervision and that he comply with any directions as to psychological counselling as may be given by the Community Corrections Service. The appellant has appealed against his conviction upon the malicious wounding charge.

At 115

A large number of complaints have been made about the conduct of the trial. A number of errors have been demonstrated and, although many of them were self inflicted, it is clear that various directions should have been given to cure the prejudice which the appellant had himself created and that those directions were not given. In relation to all but one of those errors, I am satisfied by the Crown that — in the somewhat curious circumstances of this case — the appellant did not by those errors either separately or cumulatively thereby lose a real chance (or a chance which was fairly open to him) of being acquitted. If that were all, I would have proposed that the proviso be applied to dismiss the appeal. As there is one ground of appeal which has succeeded and which leads to a new trial, it is unnecessary that I discuss those errors which have not led to that result — although I propose to refer later to one of them which does raise a question of principle.

The third ground of appeal complains of the admission into evidence of the appellant's refusal to answer any questions asked of him by the police officers and that he was most unco-operative when asked those questions. The fourth ground of appeal complains of the judge's failure to give to the jury any directions in relation to the appellant's exercise of his right to silence.

At 115 and 116

It was submitted that none of this evidence was admissible. It was argued that it was inadmissible as a result of the decision of the High Court in Petty v The Queen (1991) 173 CLR 95. It is true that, in that case (at 99), the High Court was concerned to emphasise that a suspected person's right of silence (“a fundamental rule of the common law”) must not be eroded or rendered valueless by permitting his exercise of that right to be used as a basis for inferring guilt, or a consciousness of guilt. But that case did not lay down any rule of universal application that evidence may not be given of questions asked and of the answers given where that evidence discloses that the accused has exercised his right of silence.

At 116

A necessary consequence of an accused's right of silence is that the Crown often has no knowledge of the issues which are going to be raised by him at the trial. The Crown must lead all of its evidence upon every issue which it ought reasonably have foreseen may arise: Shaw v The Queen (1952) 85 CLR 365 at 380; R v Chin (1985) 157 CLR 671 at 676. Without wishing to appear as cynical as did Avory J in R v Liddle (1928) 21 Cr App R 3 at 6, I think that it may safely be said that it ought reasonably to be foreseen that the fairness of the conduct of the investigating police officers may be criticised and in a way of which the Crown will not necessarily be forewarned (as it usually should) in accordance with Browne v Dunn (1893) 6 R 67 during its case in chief. It seems to me, then, that the fact that such questions were asked of the accused is therefore usually admissible in order to meet (at least in part) such anticipated criticism, and in my view that fact was admissible in the present case. Once the fact that the questions were asked is found to be admissible, the nature of the answers given must necessarily also be admissible — even if it discloses that the accused exercised his right to silence — for otherwise a very misleading impression may be conveyed, and one which would usually be detrimental to the accused. The third ground of appeal must therefore be rejected.

However, where such evidence is given which discloses that the accused has exercised his right of silence, a direction should invariably be given — as soon as the evidence is given and, if necessary, again in the summing up — to make it clear to the jury that the accused had a fundamental right to remain silent and that his exercise of that right must not lead to any conclusion by them that he was guilty: R v Astill (Court of Criminal Appeal, 17 July 1992, unreported) at 9. It would usually be appropriate also to remind the jury that (if it be the fact) the accused had specifically been cautioned by the police that he was not obliged to answer any questions, so as to avoid any suggestion of a familiarity by the accused with criminal  investigation procedures.

At 117 and 118

The seventh ground of appeal was that the directions in relation to the burden of proof were erroneous. After telling the jury that the Crown had to prove its case beyond reasonable doubt, the judge proceeded to explain that those words “beyond reasonable doubt” were “perfectly everyday, well understood, English words” and that they meant exactly the same in court as they meant anywhere else. He continued:

“Each has a well understood meaning, ‘beyond’ means what it says, ‘reasonable’ means what it says and ‘doubt’ means what it says, and if you put the three words together in a phrase they retain their ordinary natural meaning.”

Then he invited the jury to ponder what exactly was meant by “reasonable”, and he suggested to them that the answer was to be found in their own individual understanding of the word “reasonable”. All of this was entirely unnecessary, and it should not have been said. It appears to be an ineradicable misconception on the part of some trial judges that, simply because the High Court has on many occasions said that the phrase “beyond reasonable doubt” is a well understood expression, and that whether a doubt is reasonable is for the jury to say by setting their own standards, it is necessary to tell the jury just that. It is not necessary; nor is it desirable to do so unless something is said by counsel during the course of the trial, or unless the jury asks a question, which warrants elaboration or explanation beyond the conventional direction: R v Flesch (1986) 7 NSWLR 554 at 556-557. The phrase “beyond reasonable doubt” needs neither embellishment nor explanation: Keil v The Queen (1979) 53 ALJR 525(n). (I leave to one side the amplification often required in a circumstantial evidence case: Knight v The Queen (1992) 109 ALR 225 at 230.) The conventional direction requires the judge to say that the Crown must satisfy the jury beyond reasonable doubt of the guilt of the accused by establishing the essential ingredients of the charge to that standard, that the accused is entitled to the benefit of any reasonable doubt in their minds and that he does not have to prove that he is innocent. It is usual (and, in my respectful view, it is preferable) to add that the accused is presumed to be innocent until the Crown has established that guilt: cf R v Palmer (Court of Criminal Appeal, 4 September 1992, unreported). Once those directions have been given, it is positively mischievous for the judge to attempt to elaborate upon or to explain them, although in some cases (such as alibi, provocation, self defence, duress and the like) it will usually be necessary to repeat the direction and to point out that the Crown must eliminate any reasonable possibility that the accused acted in self-defence, duress, etc.

Badgery-Parker J (would dismiss the appeal)

I agree with the orders proposed by Hunt CJ at CL and with his reasons.

Spigleman CJ

1. In the early morning of 7 June 2000, an altercation occurred at a house in McCubbin Way, Claymore, amongst a group of men of Laotian descent. During the course of the altercation a number of shots were fired. One person was killed and two others wounded.

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8. In the course of his summing up, the trial judge told the jury:

"The words `beyond reasonable doubt' are ordinary everyday words and that is how you should understand them."

9. His Honour subsequently gave the jury directions on inferences in the following terms:

"In the context of a criminal trial where proof is required beyond reasonable doubt, you should not draw any inference from the direct evidence unless it is the only rational inference available in the circumstances."

10. Later on that same day, the jury asked a question in the following terms:

"... can you provide some more clarification around what a reasonable doubt means, i.e. is it our own individual view, or is there a more independent definition?"

11. After discussion with counsel, his Honour determined that he should re-state the direction that he had already given. He did so in the following terms:

"In relation to your question about can you provide more clarification around what a reasonable doubt means - is it an individual view or is it a more independent definition? The answer is I am going to repeat to you what I said earlier. The words `beyond reasonable doubt' are ordinary everyday words and that is how you should understand them."

12 Mr T A Game SC who appeared with Mr Strickland for the Appellants, submitted to this Court that the law in Australia is the same as has been determined in the United Kingdom, Canada and the United States, i.e. that it is appropriate to assist the jury by providing further definition of the formulation "beyond reasonable doubt". He referred to R v Lifchus [1997] 3 SCR 320; R v Starr [2000] 2 SCR 144; Victor v Nebraska [1994] USSC 15; (1993) 511 US 1; R v Walters [1969] 2 AC 26. However, there is High Court authority binding on this Court to the contrary. (See Brown v The King [1913] HCA 70; (1913) 17 CLR 570 at 584; Thomas v The Queen [1960] HCA 2; (1960) 102 CLR 584 at 587, 595, 604-605; Dawson v The Queen [1961] HCA 74; (1961) 106 CLR 1 at 18; Green v The Queen [1971] HCA 55; (1971) 126 CLR 28 at 31-33.) That the courts of three other nations, while agreeing that some elaboration is permissible, do not agree on how or when or in what terms such elaboration ought occur, may indicate the wisdom of the Australian position. But that is a matter for the High Court.

13 Before this Court, the Appellants relied on the proposition that his Honour erred by failing to address in some manner, other than by repeating his earlier direction, the express request by the jury for assistance on whether reasonable doubt meant "our own individual view or is there a more independent definition".

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23. In my opinion, the submission should also be rejected in the present case. The words did not detract from the significance or, indeed, the solemnity of the decision which the jury was called upon to make. To describe words as "ordinary everyday words", in the context they were used in the summing-up in the present case, meant no more than that they are words which require no further definition. The jury would not have gained the impression that the process in which they had to be applied was, somehow, less significant than it ought be regarded by them. This is made clear by the full context of the original direction by the trial judge where these words appear:

"The words `beyond reasonable doubt' are ordinary everyday words and that is how you should understand them. Putting together those two propositions of law, namely that the Crown must prove each and every essential element of the charges which it brings against the accused and that it must do so to the degree or standard to which I have referred - that is, `beyond reasonable doubt' - we get to this position.

If at the end of your deliberations, having taken into consideration the evidence both for the Crown and for the accused in respect of any matter which the Crown must establish to make out its case, and also after taking into consideration the submissions made to you by each of the counsel in their address to you, you are not satisfied that the Crown has established any one of these essential matters beyond reasonable doubt then it is your duty, as I have said, to bring in a verdict of not guilty in respect of that charge or charges, because the Crown will have failed to do what the law requires it to do."

24. The jury would not, in my opinion, have been misled by the use of the words "ordinary everyday words".

25. Mr Game submitted, in the alternative, that his Honour erred in failing to answer the express request by the jury for assistance in the terms in which it was asked. He submitted that where a jury requests assistance a trial judge is under a duty to provide such assistance where it is permissible to do so. He submitted that it was permissible to give an express answer to the jury question stating that reasonable doubt was to be determined in accordance with the jury's opinion, rather than in terms of an "independent definition". He submitted that, in circumstances where the jury had requested assistance of this character, it was obligatory upon the trial judge to give it.

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32. Insofar as the subsequent question may have reflected the fact that an individual juror, or a number of jurors, were concerned to apply their own, perhaps idiosyncratic, view on the issue of reasonable doubt, it would appear that his Honour's earlier summing-up was not sufficient to drive home the proposition that each individual juror must form his or her own view of the matter.

33. In this circumstance, it would have been desirable for the trial judge to answer the jury question in terms, i.e. by saying words to the effect that it was the respective individual opinions as to what level of `doubt' was `reasonable' that applied. The issue before this Court is whether his Honour erred in failing to do so.

34. In my opinion Mr Game's submission that it was at least permissible for his Honour to answer the question that the meaning of reasonable doubt was a matter for the jury rather than for some "definition" of a character identified in the question as "independent" is correct. The issue is whether or not there was legal error in his Honour's failure to do so.

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42. The jury could have been in no doubt, as long as they understood that the test of when a `doubt' was `reasonable' was a matter for the opinion of the jury, that each juror was entitled to act on his or her individual opinion in that regard.

43. The final issue is whether the jury must have understood, notwithstanding his Honour's failure to respond to the jury question in the terms in which it was phrased, that the test was one for their own opinion.

44. That turns on whether or not, as a matter of substance, the trial judge's response to the jury question was sufficient to make it clear to the jury that there was no definition of a "independent", or objective character of the formulation "beyond reasonable doubt" and that the jury members themselves, individually, set the standard of what was reasonable in terms of a doubt in the particular circumstances of the trial. His Honour did not do so in the specific terms of the jury question. It would have been preferable if he had. However, I have come to the conclusion that, as a matter of substance, his Honour did answer the question.

45. I have quoted in par [11] above his Honour's entire answer. He begins by referring to the terms of the jury question itself as to the fact that the jury sought "more clarification" about "what a reasonable doubt means". His answer was, accordingly, to be understood as a reply to a request for an elaboration of the meaning of the formulation "beyond reasonable doubt". When his Honour said that these were "ordinary everyday words and that is how you should understand them" this answer was entirely inconsistent with the second limb of the choice offered in the jury question, i.e. is there "a more independent definition". His Honour's answer was consistent only with a positive answer to the first limb in the question, i.e. that it was "an individual view".

46. In my opinion the jury would not have been confused, let alone misled, by the failure of his Honour to answer the question in the terms in which it was put by the jury.

47. In my opinion the appeal should be dismissed.

O’Keefe J

48. I agree

Greg James J

49. I agree with the Chief Justice.

Beazley JA

1. I agree with Barr J

Barr J

2. This is an appeal against a conviction that was entered in the District Court following a trial of the appellant, Joseph Raso, by jury. The charge was that between 7 April and 22 August 2003 at Eastwood he was knowingly concerned in the cultivation of a prohibited drug, namely 60 cannabis plants. The appellant was arraigned before the jury panel together with a co-accused, Angus Menniti. Menniti pleaded guilty and was in due course called to give evidence in the appellant’s case. The appellant was represented by counsel at trial.

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12. As the case was left to the jury, there were two possibilities. Either the appellant, like Menniti, was knowingly involved in the cultivation or the cultivation was entirely the work of a tenant called Deloris. Given the control Menniti had as owner, no third possibility was open.

13. The trial judge directed the jury in appropriate terms about the elements of the offence charged and told them that the Crown had to prove each of them beyond reasonable doubt. No complaint was made on appeal about the directions.

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17. A number of other complaints were made by the appellant in written submissions. They may be conveniently dealt with under this ground. The first relates to a question asked by the jury not long after they retired. In a note they said this -

How much doubt is reasonable doubt? Please define reasonable doubt.

18. His Honour drew the note to the attention of counsel and there was discussion about it. With the concurrence of counsel his Honour gave the jury this further direction -

Ladies and gentleman, thank you for your note. How much doubt is reasonable doubt. Ladies and gentleman, the first point I must say is that I cannot answer the question, I am not able to answer the question. All I can say to you is this, that you are the judges of the facts and you decide what is reasonable doubt. It is exactly a matter for you. Reasonable doubt, beyond reasonable doubt, the words are everyday words and the law is very clear that you, the judges of the facts, you alone decide what is a reasonable doubt. If you the judges decide, that you have a reasonable doubt then you have a reasonable doubt, it is strictly for you, and as I say it is not a question I can answer. You decide it. It is entirely a question for you. If you say I have a reasonable doubt, then you have a reasonable doubt. It is a matter in your province and no person can ask you, no person can ask you why you come to a decision because you are independent judges and to be truly independent it has to be your decision, with no input from on this particular matter.

I am sorry about that but that is it, it has to be you decide it. If you say yes I have a reasonable doubt, then you have got a reasonable doubt, if you say no I have not reasonable doubt then you have not. Nobody has the right to ask you any further. I cannot say why do you think this or why do you think that. You are the judges, as much as I am a judge, when you make your decision full stop, that is it, I accept your decision.

19 The complaint on appeal was that his Honour ought to have reminded the jury that he had told them in his opening remarks that even if they thought that the accused had committed the crime but were not satisfied beyond reasonable doubt that they must find him not guilty. It was submitted that the jury must have had some doubt, otherwise they would not have asked the question. The submission went on to state: “I think any amount of doubt is reasonable”.

20. In my opinion the trial judge was correct in directing the jury that they were the judges of what was reasonable and that no further definition of the expression “beyond reasonable doubt” could be given: Green v The Queen [1971] HCA 55; (1971) 126 CLR 28. There was no call for any reminder of what his Honour had said to the jury in his opening remarks. The jury were entitled to a plain answer to their question and that is what the trial judge gave them.

21. I do not think that it can be correct to say that any amount of doubt is reasonable. If that were so, juries would not have to be directed in terms of the word “reasonable” at all.

Hoeben J

54. I agree with Barr J.

The Court (Leeming JA, Hall and Bellew JJ)

1. In October and early November 2013, Mr Michael Hadchiti was tried before the primary judge and a jury of 12 and convicted of murdering Mr Billy Mack on 30 October 2011. Following a sentencing hearing on 21 February 2014, he was sentenced to a term of imprisonment of 29 years, with a non-parole period of 21 years, 9 months commencing on 14 October 2013: R v Hadchiti (No 3) [2014] NSWSC 257.

2. Mr Hadchiti seeks leave to appeal from both his conviction and the sentence imposed by the Court. For the reasons which follow, we have concluded that his appeal against conviction must be allowed, and that there must be a retrial.

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Ground 1 – the directions to the jury

26. The first ground of appeal in the conviction appeal was that “[t]he directions to the jury reversed the onus and standard of proof”. Some parts of the appellant’s written and oral submissions extended beyond that ground. This occurred without any objection from the Crown, who responsibly took the view that it was appropriate to address the totality of the complaints about the directions to the jury on their merits.

The written direction

27. The written direction occupied seven pages. It is reproduced in its entirety as an annexure to this judgment. The first page, accurately and, it might be said, conventionally, directed the jury that they would find that the crime of murder had been committed by the accused if they concluded that the Crown had established beyond reasonable doubt each of the following four elements:

“(i) that the accused deliberately stabbed Billy Mack in the neck, causing his death; and

(ii) that the stabbing was done with an intention to kill Billy Mack or to inflict grievous bodily harm upon him (grievous bodily harm means really serious physical injury); and

(iii) that the stabbing was not carried out in self-defence; and

(iv) that the accused was not acting under provocation.”

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30. The following six pages identified five issues and asked eight questions over 42 numbered paragraphs. They amount to what has been described as a “question trail”. It was these pages to which the submissions on appeal were principally directed.

31. As originally formulated on page 1, the issues were framed in terms of whether the Crown had established a matter beyond reasonable doubt. However, the questions relating to the elements of murder posed on the following pages did not – save for two exceptions – refer to beyond reasonable doubt at all. This was the principal objection to the directions advanced by Mr Game SC, who appeared for the appellant, although not at trial.

32. For example, the first issue, whether the Crown had shown that the stabbing was deliberate, involved the following question and chain of steps:

“10. Question 1 – Is there a reasonable possibility that the accused did not deliberately stab Billy Mack in the neck?

11. If the answer to this question is yes, then the accused is not guilty of murder and the question of manslaughter does not arise. The proper verdict is then not guilty of murder.

12. If the answer to this question is no, then you must consider question 2.”

33. “Issue 2” was “did the accused have the relevant intention?” and involved the following chain:

“13. Question 2 – Is there a reasonable possibility that the accused stabbed Billy Mack in the neck, neither intending to kill him, nor intending to cause him really serious physical injury?

14. If the answer to this question is yes, then the accused is not guilty of murder. You must then consider whether he is guilty of manslaughter. (Go to issue 5).

15. If the answer to this question is no, then you must consider issue 3.”

34. That is to say, the existence of a reasonable possibility that the appellant did not deliberately stab the deceased in the neck was equated to a failure by the Crown to discharge its onus of establishing beyond reasonable doubt that the appellant deliberately stabbed the deceased in the neck. The existence of a reasonable possibility that the appellant did not intend to kill or inflict grievous bodily harm upon the deceased was likewise equated to a failure by the Crown to discharge its onus of establishing that intent beyond reasonable doubt.

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38. As noted above, the primary judge’s oral summing up followed MFI 19. When dealing with “beyond reasonable doubt”, her Honour said:

“Repeated mention has been made of the Crown’s obligation to prove that the accused is guilty, beyond reasonable doubt. This expression ‘proof beyond reasonable doubt’ is an ancient one, which does not need further explanation from the trial judges. The words are words of ordinary everyday usage. You should thus ask yourself, ‘Is there a reasonable possibility that the accused is not guilty?’ If you conclude on the evidence that there is such a possibility, then you will conclude that the Crown has not proven the charges which the accused faces.”

39. Mr Game described this as a “serious misdirection”. He did so for two main reasons. The first was that notwithstanding that the trial judge correctly stated that the expression “beyond reasonable doubt” should not be explained further, that was precisely what her Honour went on to do, in the very next two sentences, which once again equate beyond reasonable doubt to the absence of a reasonable possibility.

40. The second reason for his criticism was that the explanation by her Honour involved the jury reaching a conclusion that there was a “reasonable possibility” of innocence, which amounted, so it was said, to a reversal of onus.

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Consideration of ground 1

67. We have concluded that the submissions made in connection with this ground have been made out, for the following reasons.

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71. Written directions to juries are authorised by s 55B of the Jury Act 1977 (NSW) and are undoubtedly useful in clarifying the issues for the jury and assisting their understanding of the structure of a summing up and the issues of fact left for them to determine. There is much to be said for a summary of issues, especially if (as Hunt CJ at CL contemplated in Jones) it occupies a single page, so that the jurors can appreciate the structure of the issues for determination at a glance.

72. However, this was far from being a straightforward trial. There were a number of defences and partial defences open on the evidence. The strength of the Crown case lay in a great deal of circumstantial evidence, and the challenge made – not without force – to the testimonial evidence of members of the Hadchiti family. As will be seen when dealing with ground 2 below, the challenge to the reliability of their evidence was very powerful. Central to the jury’s verdict were questions such as whether they were satisfied beyond reasonable doubt as to who had initiated, and how many people had participated in, the struggle between the deceased and the appellant. It was essential that the jury not evaluate the evidence piecemeal, but rather assess the various possibilities in light of the whole of the evidence: see R v Hillier [2007] HCA 13; 228 CLR 618 at [46]- [48] and the authorities there cited. Indeed, the critical questions of intention, self-defence and provocation were inter-related, and very much dependent upon the assessment by the jury of the facts. Considerations such as those might tend to suggest that this was a trial where a series of questions such as those in MFI 19 might not assist the jury in reaching their verdict.

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87. It will be seen that, repeatedly, in the document taken into the jury room at the time of the jury’s deliberations, the notion of reasonable doubt was equated to the existence of a reasonable possibility. That is contrary to the authorities referred to above. It contrasts with the question trail reproduced in part by RA Hulme J in FP v R [2012] NSWCCA 182; 224 A Crim R 82 at [127].

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104. The Crown had the legal onus to prove the elements of the offence of murder beyond reasonable doubt. The appellant had an evidentiary onus to point to or produce evidence from which there is at least a reasonable possibility that the act of stabbing by him was carried out by him in self-defence: R v Youssef (1990) 50 A Crim R 1 at 3. This he initially did by making a statement to police and later giving evidence at the trial. In these circumstances the onus fell upon the Crown to remove any reasonable doubt in relation to the “reasonable possibility” raised by the defence, ie, the ground of self-defence disclosed by the evidence: Howe at 459.

105. The accused in this case discharged the evidentiary onus as to a reasonable possibility of self-defence (and an attack by the deceased). In those circumstances the question at trial became whether the jury believed and accepted his account.

106. But the central point is that the “reasonable possibility” established by the evidence was one that the Crown had to eliminate or remove as part of its onus of proof. It was important that the directions in MFI 19 made that clear.

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109. We regard the departure from the conventional formulation to be material. One way of explaining why is as follows. If the answer to “Question 1” was affirmative, such that there was found to be a reasonable possibility that the appellant did not deliberately stab the deceased in the neck, then it is plain that the Crown case was not made out and a not guilty verdict should have been returned. But that is not the only way in which the Crown could fail on that issue. The Crown could fall short of establishing beyond reasonable doubt that the appellant deliberately stabbed the deceased in the neck, even if the jury were unable to conclude that there was a reasonable possibility that the appellant did not do so. We think that a jury would be unlikely readily to grasp the nuances here, between the reasonable possibility which is sufficient for an acquittal but the absence of which is not necessary for a guilty verdict.

Basten J (would dismiss the appeal)

1. Dennis Burns died on 30 October 2012 as a result of injuries inflicted on him two days earlier, when he was set upon by three assailants outside the house in which he lived in Coffs Harbour. The applicant, James Kevin Moore, was charged with murder, of which he was convicted by a jury on 27 November 2014. On 13 March 2015 he was sentenced to a non-parole period of 18 years imprisonment with an additional term of 6 years, giving a total period of 24 years imprisonment.

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22. The grounds of appeal against conviction were as follows:

“1. His Honour’s directions to the jury, including the question trail, distorted the burden and standard of proof.

2. His Honour’s directions to the jury regarding the first limb of self-defence were contradictory and, in part, wrong.

(i) wording of question 4(a)

23. At the heart of the challenge was a formulation of the questions to be addressed in determining whether the prosecution had negatived the possible excuses of self-defence (and provocation). To assess this ground, it is necessary to set out the impugned passages in the “question trail” document and the directions given by the trial judge with respect to the use of the question trail. This evidence must be assessed in two stages. First, it is necessary to understand the nature of the complaint about the content of the document. Secondly, it is necessary to consider the content in the context of the whole of the summing up to the jury in order to understand whether it may have been the source of a miscarriage of justice.

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33. The first part of the objection focused on the opening words set out above. Properly formulated, bearing in mind the party on whom the onus of proof lay (the prosecutor) and the standard of proof (beyond reasonable doubt), the question was whether the jury was satisfied beyond reasonable doubt that the accused did not genuinely believe that his conduct (which caused the death of the victim) was necessary to defend himself or another person. To formulate the question in the passive form, it was submitted, was to distract attention from the fact that the absence of a genuine belief must be demonstrated by the prosecution. Secondly, to remove the qualifier “reasonable” from the opinion formed by the jury to the factual circumstance being considered is apt to distract the jury from the heavy burden imposed on the prosecution. Thus, the language “is there a reasonable possibility”, if answered “no”, involves a rejection of the excuse of self-defence, without regard to the need to consider whether the prosecution satisfied its burden of proof, and did so beyond reasonable doubt.

34. There was a second and conceptually separate objection raised to the formulation of the questions. This objection accepted that the existence of a reasonable doubt was the mirror (in negative form) of the positive assertion that there existed a reasonable possibility. However, as a matter of logic, the applicant argued, rejection of proposition ‘A’ did not necessarily entail acceptance of ‘not-A’. Put in slightly different terms, satisfaction of A and satisfaction of not-A did not constitute the universe of possible outcomes. If one is in doubt, one will not be satisfied of either ‘A’ or ‘not-A’. Yet the formulation of question 4(a), the submission proceeded, ignored this possibility. In doing so it distracted attention from the burden of proof on the prosecution to prove not-A.

35. Counsel appearing for the Director was inclined to accept this analysis, although he said he had no instructions to concede error. He was also inclined to accept the applicant’s submission that part of the difficulty lay with the application of the qualifier “reasonable” to a possibility. Thus, he agreed that there might be possibilities which led a juror to hold a reasonable doubt as to the absence of a genuine belief, but which might not be identified as “reasonable possibilities”. If that were the case, the question imposed a gloss on the requirement that the jury be satisfied beyond reasonable doubt as to the absence of the belief.

36. While both arguments have a superficial attraction, in practical terms, they are fallacious. The reference to a “reasonable possibility” is a reference to that which would be required in order to hold a reasonable doubt. In other words, the jury could not doubt that the accused had no such belief unless there was a possibility that he did have such a belief. Conceptually, there is no third position available. The juror cannot say, “I don’t accept A or not-A”, because these are not affirmative states of mind, but the existence or absence of doubt.

37. Further, it was necessary for that the possibility that the accused held a particular belief to be a reasonable (and not fanciful or entirely speculative) possibility in order for the doubt to be reasonable. That answer is consistent with the language and reasoning adopted by Barwick CJ in Viro, set out above.

38. In a sense, the requirement that a doubt be “reasonable” requires a juror who has formed such a doubt to interrogate the basis of the doubt. That is not to say that it will be done in these terms, and the High Court has disparaged any suggestion that a juror be required to interrogate his or her thought processes. Nevertheless, the doubt will not be “reasonable” if there is no reasonable ground to entertain it.

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43. Similar language was used with respect to the excuse of self-defence in Viro. Thus, in any number of cases of high authority the courts have accepted that proof of a matter beyond reasonable doubt involves rejection of all reasonable hypotheses or any reasonable possibility inconsistent with the prosecution case. Asking whether there is a reasonable possibility that the accused did hold an exculpatory belief does not equate to the creation of an incomplete universe, nor does it distract attention from either the burden or standard of proof; rather, it is consistent with both.

Per R A Hulme (agreeing with Basten J)

93. I have had the benefit of reading in draft the judgments of Basten JA and Adamson J and note their different reasons and conclusions as to the disposition of Ground 1 of the appeal against conviction.

94. I agree with the conclusions reached by Basten JA as to each of the grounds of appeal against both conviction and sentence and the orders he proposes. I generally agree with his Honour's reasons but wish to say more about Grounds 1 and 2 of the appeal against conviction.

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Is it wrong to direct a jury to consider whether there is a reasonable possibility of some exculpatory matter?

99. In directing a jury generally about the onus and standard of proof and specifically about the essential matters the Crown is required to prove beyond reasonable doubt there is nothing wrong with giving a direction about "a reasonable possibility" of there being some exculpatory matter. A theme that clearly emerges in the case law, and a matter that the appellant in this case does not challenge, is that a jury should be directed in terms that it is a matter for the Crown to "eliminate any reasonable possibility" of there being such exculpatory matter.

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125. From all of this it is clear, in my view, that it is not erroneous when directing a jury about the Crown's obligation to prove the guilt of an accused beyond reasonable doubt to direct that if there is a reasonable possibility of some exculpatory factor existing then the jury should find in favour of the accused; the Crown will have failed to eliminate (negative) the existence of that reasonable possibility which it must do in order to prove the matter beyond reasonable doubt. The converse is also true; that if the asserted reasonable possibility has been eliminated (negatived), then the Crown has proved the matter beyond reasonable doubt. I am satisfied that, when seen in the context of the entirety of the oral and written directions, the jury in the present case would have well-understood that this was so.

Per Adamson J (would allow the appeal)

137. I have had the advantage of reading Basten JA’s reasons in draft and gratefully adopt his Honour’s summary of the trial, the evidence and the directions given by the trial judge. I agree with his Honour’s reasons with respect to the application for leave to appeal against sentence. I also agree that leave ought be granted to the applicant under rule 4 of the Criminal Appeal Rules to appeal against his conviction. I have also had the benefit of reading the reasons of R A Hulme J in draft and considering the authorities to which his Honour has referred.

138. In summary, my views do not accord with the majority in two significant respects. First, I am not persuaded that the question whether there is a reasonable possibility necessarily admits of a “yes” or “no” answer, since it is possible not to be sure whether there is or is not a “reasonable possibility”. Secondly, I consider that to ask the question of a jury whether there is a reasonable possibility is not the same as asking whether the jury is satisfied that there is no reasonable possibility since the former tends to reverse the onus of proof whereas the latter formulation accords with the fundamental principle that the onus is on the Crown. My reasons for coming to a different view from that of the majority with respect to the first ground of appeal against conviction are as follows.

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147. The authorities that concern the directions to be given to juries about the onus and standard of proof are redolent with warnings against the paraphrasing of the expression “beyond reasonable doubt”: see, for example, Green v The Queen [1971] HCA 55; (1971) 126 CLR 28 at 31-32. Although there is a strong judicial preference against directing the jury in terms other than the conventional “beyond reasonable doubt”, I do not read the authorities as prohibiting any reference in such directions to “reasonable possibility” as long as the term is used correctly and not in such a way as to reverse the onus. For example, a direction which paraphrased what Hunt J said in the passage from R v Youssef set out above would not be erroneous. After all, the purpose of a direction is to provide instruction as to the law which the jury requires in order to fulfil its functions as the tribunal of fact.

148. Thus, a jury could properly be asked whether it was satisfied that there was no reasonable possibility that the act of the accused was done in self-defence. If the jury was not satisfied of that matter (either because they thought there was a reasonable possibility that the accused was acting in self-defence or because they were unsure), the accused would be entitled to be acquitted. It would, however, be preferable to tell the jury that it was required to be satisfied beyond reasonable doubt that the accused’s act which resulted in the death of the deceased was not done in self-defence.

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Whether there is a third alternative, or whether the question must be answered “yes” or “no”

158. Because the question is posed in a positive way (“Is there a reasonable possibility of x?”) and does not provide for the option of a “don’t know” or “not sure” answer, the question implies both that the question admits of only two answers, yes or no; and that any uncertainty about the existence of such a possibility ought be resolved against the appellant.

159. The affirmative (satisfaction of existence of a reasonable possibility) and the negative (lack of satisfaction that there is a reasonable possibility) do not cover the field. In my view, there is a third possibility: that the jury is unsure whether there is, or is not, a possibility. The Crown accepted in the present appeal that if this Court considered there to be a “middle ground”, the appeal ought be allowed. For the following reasons my reading of this Court’s decision in H v R is that it decided that there was such a middle ground.