1.7 - Onus and Standard of Proof1

Presumption of Innocence

1. At common law, a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law (Woolmington v DPP [1935] AC 462; Howe v R (1980) 32 ALR 478).

2. The presumption is not that the accused is not guilty. It is that the accused is innocent (R v Palmer (1992) 64 A Crim R 1).

3. The presumption of innocence has been enshrined in s25(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic).

4. The presumption of innocence is only relevant to the accused. It is a misdirection to tell the jury that witnesses are presumed to be innocent (Howe v R (1980) 32 ALR 478).

Onus of Proof

Offences

5. Except for limited statutory exceptions, in criminal trials the onus of proving the accused’s guilt always lies on the prosecution. Accused people do not need to prove their innocence (Woolmington v DPP [1935] AC 462; He Kaw Teh v R (1985) 157 CLR 523; Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249).

6. If a statute is silent as to who bears the onus of proving an offence, it is presumed that it will be the prosecution (Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249; Stingel v R (1990) 171 CLR 312; Czerwinski v Hayes (1987) 47 SASR 44).

Defences

7. Unless the onus is placed on the accused by statute, the prosecution will also bear the onus of disproving any defences that arise as issues in a trial (R v Youssef (1990) 59 A Crim R 1; Zecevic v DPP (1987) 162 CLR 645).2

8. Where relevant, the prosecution must therefore prove that the accused’s actions were not:

Accidental (Woolmington v DPP [1935] AC 462; Griffiths v R (1994) 125 ALR 545);

1 This document was last updated on 17 February 2020.2 The one exception to this rule at common law is the defence of “insanity”, which the accused is required to prove on the balance of probabilities (M’Naghten’s Case (1843) 8 ER 718; Sodeman v R (1936) 55 CLR 192). In Victoria, the defence of insanity was abrogated by the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, and replaced with the statutory defence of mental impairment. See Mental Impairment for further information.

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Involuntary as a result of a state of sane automatism (Bratty v AG for Northern Ireland [1963] AC 386; Ryan v R (1967) 121 CLR 205; R v Falconer (1990) 171 CLR 30);

A result of duress (Crimes Act 1958 s322O; R v Bone (1968) 52 Cr App R 546; R v Gill [1963] 1 WLR 841; R v Lawrence [1980] 1 NSWLR 122; Van den Hoek v R (1986) 161 CLR 158);

Formed without the required state of mind due to intoxication (R v O'Connor (1980) 146 CLR 64; R v Coleman (1990) 19 NSWLR 467);

Provoked (Stingel v R (1990) 171 CLR 312; Moffa v R (1977) 138 CLR 601);3

Committed in self-defence (Crimes Act 1958 s322K; Viro v R (1978) 141 CLR 88; Zecevic v DPP (1987) 162 CLR 645);

Done in an honest and reasonable belief in the existence of a state of affairs which, had it existed, would have made the acts innocent (He Kaw Teh v R (1985) 157 CLR 523).

9. The prosecution only needs to disprove a defence if there is evidence, or other relevant material, which gives rise to that defence (R v Lobell [1957] 1 QB 547; Bullard v R [1957] AC 635; R v Howe (1958) 100 CLR 448; Bratty v AG for Northern Ireland [1963] AC 386; Spautz v Williams [1983] 2 NSWLR 506).

10. The prosecution will need to disprove a defence if there is evidence on which a reasonable jury could decide the issue favourably to the accused, no matter how weak or tenuous the judge considers that evidence to be (R v Youssef (1990) 50 A Crim R 1; Zecevic v DPP (1987) 162 CLR 645; R v Kear [1997] 2 VR 555).

11. The evidence that raises a defence need not have been given by the defence. It is possible for the prosecution evidence to disclose facts which might give rise to a defence (see, e.g., R v Bonnick (1977) 66 Cr App R 266; R v McDonald [1991] Crim LR 122).

12. If the evidence discloses the possibility of a defence, the judge must instruct the jury that the prosecution needs to disprove that defence, whether or not the defence was raised by the accused (Zecevic v DPP (1987) 162 CLR 645).

Exceptions and Provisos

13. Some statutory offences are stated to be subject to certain qualifications. Whether the onus is on the accused to prove facts that would bring his or her case within the scope of such a qualification, or on the prosecution to disprove the existence of such facts, will depend on how the provision is construed:

3 Provocation is no longer a partial defence to murder (Crimes Act 1958 s3B). This provision applies to offences committed on or after 23 November 2005.

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If the qualification is part of the definition of the grounds of liability (known as a “proviso”), the onus of proof will be on the prosecution to prove that the proviso does not apply.

If the qualification is a new matter, which does not form part of the primary grounds of liability, but is a special exception or condition defeating or answering liability that otherwise exists (known as an “exception”), the onus of proof will be on the party seeking to prove the exception (Darling Island Stevedoring & Lighterage Co Ltd v Jacobsen (1945) 70 CLR 635; Barritt v Baker (1948) VLR 491; Dowling v Bowie (1952) 86 CLR 136; Vines v Djordjevitch (1955) 91 CLR 512).

14. Although not determinative, the form of the provision is an important consideration in deciding whether an offence is subject to a “proviso” or an “exception”, and who bears the onus of proof:

If the qualification exists in a single proposition with the definition of the grounds of liability, it is likely that it is a “proviso”, and that the onus of proof will be on the prosecution;

If the qualification exists in a distinct provision from that which defines the grounds of the liability, it is likely that it is an “exception”, and that the onus of proof will be on the accused (Darling Island Stevedoring & Lighterage Co Ltd v Jacobsen (1945) 70 CLR 635; Dowling v Bowie (1952) 86 CLR 136; Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249).

15. However, while the form of the language may provide assistance, ultimately the question is to be determined upon considerations of substance rather than form (Dowling v Bowie (1952) 86 CLR 136; Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249).

16. The question is whether it is possible to discern a legislative intention to impose upon the accused the ultimate burden of bringing his or her case within the scope of the qualification (DPP v United Telecasters Sydney Ltd (1990) 168 CLR 594; Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249).

17. This intention may be discerned from express words or by implication (Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249; R v Edwards [1975] QB 27; R v Hunt [1987] AC 352).

18. It may be possible to discern an intention to impose the onus on the accused if legislation prohibits an act from being done unless it is:

Committed in specified circumstances; or

Committed by people of a specified class or with specified qualifications; or

Committed with the licence or permission of specified authorities (Darling Island Stevedoring & Lighterage Co Ltd v Jacobsen (1945) 70 CLR 635; R v Edwards [1975] QB 27; R v Hunt [1987] AC 352; Chugg v Pacific Dunlop Ltd (1990) 170 CLR

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249).

19. If the qualification relates to a matter that is peculiarly within the knowledge of the accused, that provides a strong indication that it is an exception which the accused will bear the onus of proving (Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249; Darling Island Stevedoring & Lighterage Co Ltd v Jacobsen (1945) 70 CLR 635; DPP v United Telecasters Sydney Ltd (1990) 168 CLR 594; R v Douglas [1985] VR 721).

Standard of Proof

20. If the onus of proof is on the prosecution, the court is not to find the prosecution case proved unless it is satisfied that it has been proved beyond reasonable doubt (Evidence Act 2008 s141(1)).

21. If the onus of proof is on the accused, the court is to find the case of an accused proved if it is satisfied that the case has been proved on the balance of probabilities (Evidence Act 2008 s141(2)).

22. Section 141 preserves the position at common law (see, e.g., Woolmington v DPP [1935] AC 462; Thomas v R (1960) 102 CLR 584; La Fontaine v R (1976) 135 CLR 625; Chamberlain v R (No 2) (1984) 153 CLR 521; Hoch v R (1988) 165 CLR 292; R v Falconer (1990) 171 CLR 30).

Proof Beyond Reasonable Doubt

23. The standard of “proof beyond reasonable doubt” can be compared with proof on the “balance of probabilities”, which is the standard of proof that applies in:

Civil cases (Miller v Minister of Pensions [1947] 2 All ER 372; Malec v JC Hutton Pty Ltd (1990) 169 CLR 638);

Cases in which the onus is placed on the accused (Evidence Act 2008 s141(2); Sodeman v R (1936) 55 CLR 192); and

Determining the jurisdiction of the court (Thompson v R (1989) 169 CLR 1; Ahern v R (1988) 165 CLR 87).

24. As the High Court recognised in R v Dookheea [2017] HCA 36 at [41], judges are encouraged to compare the criminal standard with the civil standard. This is:

an effective means of conveying to a jury that being satisfied of guilt beyond reasonable doubt does not simply mean concluding that the accused may have committed the offence charged or even that it is more likely than not that the accused committed the offence charged.

25. The prosecution must prove all of the elements of the offence beyond reasonable doubt (Thomas v R (1960) 102 CLR 584; La Fontaine v R (1976) 135 CLR 62; Van Leeuwen v R (1981) 55 ALJR 726;

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Chamberlain v R (No 2) (1984) 153 CLR 521; Hoch v R (1988) 165 CLR 292; R v Falconer (1990) 171 CLR 30).

26. The prosecution must also disprove beyond reasonable doubt any defences that are raised as issues in a trial (R v Youssef (1990) 59 A Crim R 1; Zecevic v DPP (1987) 162 CLR 645).

27. The jury does not need to be satisfied beyond reasonable doubt of the existence of each and every fact relied upon to prove an element, or disprove a defence, as long as they are satisfied that the accused’s guilt has been proven beyond reasonable doubt (Jury Directions Act 2015 s61; Shepherd v R (1990) 170 CLR 573 per Dawson J).

28. At common law, a jury could not draw an inference of guilt from a fact unless, at the end of the trial, they were satisfied of the existence of that fact beyond reasonable doubt (Shepherd v R (1990) 170 CLR 573; Chamberlain v R (No 2) (1984) 153 CLR 521; Knight v R (1992) 175 CLR 495; R v Schonewille [1998] 2 VR 625). Following the commencement of the Jury Directions Act 2015, this rule has been abolished. See Circumstantial Evidence for further information.

29. However, in some cases, there will be critical evidence that would allow a jury to decide the case on that evidence alone. Types of evidence that might have this character include confessions, identification evidence and DNA evidence. In such cases, it may be appropriate for the judge to identify clearly for the jury the importance of that evidence to prove the element. Judges should discuss the issue with counsel and hear submissions on what additional directions or comments are appropriate. Options include:

When directing the jury about the element, direct the jury that the critical evidence is the only evidence (or as a matter of practical reality, the only evidence) in support of that element. It would follow that without that evidence, the element cannot be proved beyond reasonable doubt;

Directing the jury, therefore, that the jury would need to be satisfied of that critical evidence beyond reasonable doubt before acting on it;

Commenting to the jury that the practical effect of that situation is that they would need to be satisfied of the critical evidence beyond reasonable doubt;

Commenting to the jury that the critical evidence is, in reality, the only evidence in proof of the element and, accordingly, they can only be satisfied of the element beyond reasonable doubt if they are satisfied of that evidence;

Refer to the evidence and direct the jury that it must be satisfied that that evidence proves the relevant element beyond reasonable doubt.

30. It is wrong for the jury to consider each item of evidence separately

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and eliminate it from consideration unless satisfied beyond reasonable doubt. The evidence must be considered together at the end of the trial. One piece of evidence may resolve the jury’s doubts about another (Chamberlain v R (No 2) (1984) 153 CLR 521).

31. If, upon review of all the evidence, the jury are left in reasonable doubt about whether the prosecution case has been made out, or are satisfied that the accused’s case has been made out, they must acquit (Woolmington v DPP [1935] AC 462).

Meaning of “Beyond Reasonable Doubt”

32. “Beyond reasonable doubt” is a composite expression, not intended to be broken into its component parts or analysed. It is designed to convey an accurate impression of the high standard of proof that the prosecution must satisfy. It is not possible to define each of the three words separately, because the phrase means more than the mere sum of its parts (R v Pahuja (1987) 49 SASR 191 per Cox J; R v Chatzidimitriou (2000) 1 VR 493 per Callaway JA).

33. The jury itself has the task of determining what a reasonable doubt is, according to standards which the jurors adopt (R v Chatzidimitriou (2000) 1 VR 493).

34. A reasonable doubt is one that a jury which is properly aware of its responsibilities (i.e. which heeds the judge’s directions, carefully considers the evidence, and eschews fanciful or unreal possibilities) is prepared to entertain at the end of its deliberations. The jury has the task of determining what is reasonable in the circumstances (Green v R (1971) 126 CLR 28; R v Pahuja (1987) 49 SASR 191; R v Neilan [1992] 1 VR 57; R v Chatzidimitriou (2000) 1 VR 493).

35. In principle, the standard of reasonable doubt applies to the jury as a whole, and not to the subjective processes of individual jurors. However, in practice, each individual juror must apply the standard of “beyond reasonable doubt” in their own consideration of the evidence. A judge’s directions on the test therefore are directed as much to individual jurors as to the jury as a whole (R v Dookheea [2017] HCA 36 at [35]).

36. Although in England the term “beyond reasonable doubt” is seen to be synonymous with the term “sure” (see, e.g., R v Hepworth and Fearnley [1955] 2 QB 600; R v Onufrejczyk [1955] 1 QB 388), this is not the case in Australia (Thomas v R (1960) 102 CLR 584; Dawson v R (1961) 106 CLR 1; R v Punj [2002] QCA 333; R v Cavkic (No 2) (2009) 28 VR 341; Benbrika v R (2010) 29 VR 593).

37. Proof “beyond reasonable doubt” cannot be expressed mathematically (e.g. as a 99% certainty). Such an approach incorrectly implies that the jury should disregard any doubts that exist once the arbitrarily fixed percentage or rate is reached (R v Cavkic (2005) 12 VR 136).

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Charging the Jury

Requirements

38. In all criminal cases the judge is required to direct the jury, in clear language, that the onus of proof is on the prosecution (Thomas v R (1960) 102 CLR 584; La Fontaine v R (1976) 136 CLR 72; Bartho v R (1978) 19 ALR 418; Van Leeuwen v R (1981) 36 ALR 591; R v Schonewille [1998] 2 VR 625).

39. The judge must instruct the jury that the prosecution has to prove the accused’s guilt beyond reasonable doubt, and that it is for the jury to determine whether this has been done (R v Neilan [1992] 1 VR 57; R v Chatzidimitriou (2000) 1 VR 493).

40. The judge should tell the jury that the way in which the prosecution must prove the accused’s guilt beyond reasonable doubt is by establishing the elements of the offence to that standard. The accused is entitled to the benefit of any reasonable doubt in the juror’s minds (R v Reeves (1992) 29 NSWLR 109; R v McNamara 1/12/1998 Qld CA).

41. The charge must not relieve the prosecution of the burden of proving every element of the offence beyond reasonable doubt. Even if there is no evidence concerning a particular element, and that element is not contested by the defence, the judge must not tell the jury that they do not need to consider that element. Every element must be proven beyond reasonable doubt (Griffiths v R (1994) 125 ALR 545).

42. If the accused’s counsel identifies that a defence is in issue under Jury Directions Act 2015 s11, the judge must instruct the jury that the prosecution must also disprove that defence beyond reasonable doubt (Jury Directions Act 2015 s11; Zecevic v DPP (1987) 162 CLR 645).

43. There is no obligation on judges to tell the jury about the “presumption of innocence”, or to use that term in their charge, as long as they give a strong and clear direction about the onus and standard of proof. However, it is preferable to tell the jury about the presumption, as it will assist them to better appreciate the onus which lies upon the prosecution (R v ALP [2002] VSCA 210; R v Henderson [1999] VSCA 125; R v Palmer (1992) 64 A Crim R 1; R v Reeves (1992) 29 NSWLR 109. See also Jury Directions Act 2015 s64).

Conventional Directions

Onus on the Prosecution

44. It is best to address the onus and standard of proof at the start of the judge’s summing-up (as well as at the beginning of the trial – see Introduction: Preliminary Directions) (R v Ching [1976] Crim LR 687).

45. It is for the trial judge to select appropriate language to communicate the relevant principles concerning the onus and standard of proof (R

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v Palmer (1992) 64 A Crim R 1; Walters v R [1969] 2 AC 26; R v Carter [2009] VSCA 272).

46. The nature of the directions to be given about the onus and standard of proof will depend upon the particular circumstances of the case, the evidence relied upon by the prosecution and defence, and the way in which that evidence is discussed and commented upon by the trial judge (Miles v R [2000] WASCA 364 per Murray J; Salmon v R [2001] WASCA 270).

47. In most cases, the plainest way to direct the jury about the standard of proof is simply to tell them that they must be satisfied beyond reasonable doubt (Thomas v R (1960) 102 CLR 584; La Fontaine v R (1976) 135 CLR 625).

48. Judges should instruct the jury that they must not search legal dictionaries or texts in an attempt to elaborate the meaning of this phrase (Martin v R (2010) 28 VR 579; Juries Act 2000 (Vic) s78A).4

49. It is good practice to also convey to the jury:

That the criminal standard of proof is the highest standard of proof known to the law;

That the criminal standard of proof can be contrasted with the lower standard of proof applicable in civil proceedings (proof on the balance of probabilities); and

That it is therefore not enough for the prosecution to show that the offence charged might have been committed, or even that it is more likely than not to have been committed. Rather, the prosecution must satisfy the jury of each element of the offence charged beyond reasonable doubt (R v Dookheea [2017] HCA 36 at [41]; R v WG [2010] VSCA 34. See also Green v R (1971) 126 CLR 28; La Fontaine v R (1976) 136 CLR 62; Van Leeuwen v R (1981) 55 ALJR 726; R v Neilan [1992] 1 VR 57).5

50. If a defence is in issue, the jury must specifically be told that it must be disproved by the prosecution. It is not sufficient simply to give a general direction about the onus and standard of proof at the beginning of the charge, and not relate it to any defences in issue (R v Bone (1968) 52 Cr App R 546; R v Reeves (1992) 29 NSWLR 109).

Onus on the Accused

51. If the burden of proof lies with the accused, the jury must be told that the standard of proof is proof on the balance of probabilities

4 Although judges may not need to give this direction, in Martin v R [2010] VSCA 153 it was held that until the precise scope of Juries Act 2000 s78 has been determined, it would be “wise” to do so. See Decide Solely on the Evidence for further information concerning Juries Act 2000 (Vic) s78A.5 While it is good practice to convey these matters to the jury, a departure from that practice will not, of itself, signify a miscarriage of justice (R v Carter [2009] VSCA 272; Anderson v R [2010] VSCA 108; Benbrika v R [2010] VSCA 281).

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(Evidence Act 2008 s141(2); Sodeman v R (1936) 55 CLR 192; Taylor v Ellis [1956] VLR 457; R v Hunt [1987] AC 352).

52. In any case where the onus is placed on the accused, the judge should direct the jury that:

It is for them to decide if the accused has proved the matter;

The proof required is less than that required of the prosecution to prove the accused’s guilt (i.e. proof beyond a reasonable doubt); and

The onus may be discharged by evidence which satisfies them, on the balance of probabilities, of that which the accused must prove (R v Carr-Briant [1943] KB 607; Murray v Murray (1960) 33 ALJR 521; Mizzi v R (1960) 105 CLR 659; R v Bradley (No 2) (1986) 85 FLR 111).

53. The charge must enable the jury to clearly appreciate the difference between proof beyond reasonable doubt and proof on the balance of probabilities (Mizzi v R (1960) 105 CLR 659).

Prohibited Directions

Defining the Standard of Proof

54. At common law, a judge should not expand on the meaning of “beyond reasonable doubt”, or attempt to define the concept any further, beyond comparing the criminal standard with the civil standard, unless there is a reason to do so (Thomas v R (1960) 102 CLR 584; Dawson v R (1961) 106 CLR 1; Green v R (1971) 126 CLR 28; La Fontaine v R (1976) 136 CLR 62; R v Chatzidimitriou (2000) 1 VR 493; R v Cavkic (2005) 12 VR 136; R v Cavkic (No 2) (2009) 28 VR 341; R v Hettiarachchi [2009] VSCA 270; R v Dookheea [2017] HCA 36 at [41]).

55. This is not because the jury does not need to consider the meaning or application of the term “beyond reasonable doubt”. It is because the meaning and application of the term is the province of the jury. It is error on the part of the judge to intrude upon the jury’s function by attempting to define it, unless the jury seeks further assistance (Jury Directions Act 2015 s62; R v Chatzidimitriou (2000) 1 VR 493; R v McNamara 1/12/1998 Qld CA; R v Cavkic (No 2) (2009) 28 VR 341).

56. What is proscribed is not a particular meaning of the word “reasonable”, but the attribution of meaning to the word by a judge. To attribute meaning to “reasonable” is no part of the judge’s function (R v Chatzidimitriou (2000) 1 VR 493).

57. However, if a jury asks a question which raises the meaning of the phrase “proof beyond reasonable doubt”, whether directly or indirectly, s63(1) of the Jury Directions Act 2015 enables a trial judge to clarify its meaning, by setting out a non-exhaustive list of ways in which a question may be answered.

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58. The power contained in s62(1) does not limit any other power, whether at common law or otherwise, a trial judge has to explain the phrase “beyond reasonable doubt” (Jury Directions Act 2015 s63(2)).

59. It is generally undesirable to tell the jury 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 (R v Reeves (1992) 29 NSWLR 109; R v Southammavong; R v Sihavong [2003] NSWCCA 312; R v Cavkic (No 2) (2009) 28 VR 341).

60. The phrase “beyond reasonable doubt” should not be equated with terms such as “sure” or “certain”. While this is permissible in England (see, e.g., R v Hepworth and Fearnley [1955] 2 QB 600; R v Onufrejczyk [1955] 1 QB 388), and was done in early Australian cases (see, e.g., Brown v R (1913) 17 CLR 570; Hicks v R (1920) 28 CLR 36), it is prohibited by current Australian law (R v Cavkic (No 2) (2009) 28 VR 341).

61. See “Expanding the Conventional Directions” below for discussion of the circumstances in which the standard of proof may be explained, and the way in which this should be done.

Distinguishing between doubts and reasonable doubts

62. It is undesirable for judges to distinguish between doubt and its reasonableness, or between a “reasonable doubt” and any doubt. They should use the composite phrase “beyond reasonable doubt” or “a reasonable doubt” (R v Neilan [1992] 1 VR 57; R v Dookheea [2017] HCA 36 at [37]).

63. Such a process risks obfuscating the jury’s task. However, mentioning this contrast (in the absence of a question which triggers Jury Directions Act 2015 s64), does not inevitably cause a miscarriage of justice. The directions must be assessed as a whole to see whether the jury would have been misled about the nature of the standard of proof (R v Dookheea [2017] HCA 36 at [37]).

64. For this reason, judges should not qualify their direction with references to fanciful or unreasonable doubts, unless necessary (see “Expanding the Conventional Directions” below) (Green v R (1971) 126 CLR 28; R v Wilson (1986) 42 SASR 203; R v Lancefield [1999] VSCA 176; R v Hettiarachchi [2009] VSCA 270).

65. It is a juror’s task to decide whether, at the end of the day, he or she entertains a doubt which he or she considers reasonable. It is the judge’s task to direct the jury to that effect without, at the same time, inviting jurors to analyse their mental processes too carefully (R v Chatzidimitriou (2000) 1 VR 493).

66. Jurors must therefore not be told to subject their doubts to a process of analysis, to determine whether they are reasonable (Green v R (1971) 126 CLR 28; R v Wilson (1986) 42 SASR 203; R v Pahuja (1987) 49 SASR 191; R v Lancefield [1999] VSCA 176; R v

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Chatzidimitriou (2000) 1 VR 493).

67. The common law prohibition on inviting the jury to subject their doubts to a process of analysis does not mean that jurors do not need to determine if their doubts are reasonable. They must still be satisfied that the accused’s guilt has been proved beyond reasonable doubt, which may involve discounting unreasonable doubts, even if done unconsciously. The prohibition is against requiring jurors to undertake such an analysis (R v Pahuja (1987) 49 SASR 191 per Cox J (dissenting), cited with approval in R v Neilan [1992] 1 VR 57; R v Chatzidimitriou (2000) 1 VR 493).

Deciding Between Guilt and Innocence

68. The jury’s function is not to determine the guilt or innocence of the accused, but to determine whether the accused is guilty beyond reasonable doubt. An accused should be acquitted even if the jury are satisfied that he or she is probably guilty (i.e. probably not innocent), but are not satisfied beyond reasonable doubt that he or she is guilty (Bartho v R (1978) 19 ALR 418).

69. As guilty/not guilty is not synonymous with guilty/innocent, it is wrong to tell the jury that their duty is to decide between guilt and innocence. This may suggest that they should convict unless the evidence establishes that the accused was innocent (Bartho v R (1978) 19 ALR 418; R v Weetra (1996) 187 LSJS 317; DPP v Shannon [1975] AC 717).

A Contest of Adversaries

70. It is wrong to suggest that it is for the jury to choose between the prosecution’s version of events and the accused’s version. The issue is not which version of events the jury accepts, but whether the prosecution has negatived the accused’s version as a reasonable possibility (Murray v R (2002) 211 CLR 193).

71. Judges should therefore avoid making any statements which suggests the trial is a contest of adversaries – the prosecution and its witnesses against the defence and its witnesses. Criminal trials are accusatory, and it must be made clear that throughout the trial that the prosecution must prove its accusation (R v Yildrimtekin 17/8/1994 NSW CCA).

72. When a case turns on a conflict between the evidence of several witnesses, the judge is permitted to ask the jury to consider who is to be believed. However, if that is done, the judge must give clear and unequivocal directions about the onus and standard of proof, so that there is no risk that the jury will treat the making of a ‘choice’ between the witnesses as the real question, or as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving (R v KDY [2008] VSCA 104; R v SAB (2008) 20 VR 55; De Silva v The Queen [2019] HCA 48, [9]).

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73. In cases where the judge considers there is a risk that the jury will be left with an impression that the evidence favourable to the accused must be believed to give rise to a reasonable doubt, the jury may be told that:

if they believe the evidence that favours the accused, they must acquit;

if they do not accept the evidence that favours the accused, but think that it might be true, they must acquit – because they will have a reasonable doubt about the prosecution’s case; and

if they do not believe the evidence that favours the accused, they should put that evidence to one side, and determine, upon the basis of the evidence they do accept, whether the prosecution has proved the accused’s guilt beyond reasonable doubt (R v RP Anderson [2001] NSWCCA 488; De Silva v The Queen [2019] HCA 48, [12]; Liberato v R (1985) 159 CLR 507 per Brennan and Deane JJ;).

74. The judge should not tell the jury that this direction (known as a “Liberato direction”) is a ‘comment’ which they are free to disregard. The Liberato direction is a direction of law which the jury is bound to follow (R v BDX (2009) 24 VR 288; R v Morrow (2009) 26 VR 526).

75. While the Liberato direction is an elaboration on the onus and standard of proof, the High Court has indicated that the Jury Directions Act 2015 may limit the circumstances in which a Liberato direction should be given (see De Silva v The Queen [2019] HCA 48, [10]). Judges will need to consider whether a Liberato direction is a “general direction” within the meaning of Jury Directions Act 2015 s 3 such that the request provisions do not apply, or whether it is a direction that is contingent on a request (compare Jury Directions Act 2015 ss 10, 14-16).

76. It is appropriate to give a Liberato direction if there is a reasonable likelihood that the jury will otherwise obtain the impression that they must believe the evidence on which the accused relies to be true before that evidence can give rise to a reasonable doubt about his or her guilt (R v Niass [2005] NSWCCA 120; R v KDY [2008] VSCA 104; R v SAB (2008) 20 VR 55; R v BDX (2009) 24 VR 288; R v Cordell [2009] VSCA 128).

77. So if, for example, the jury is told that the evidence of the accused and prosecution witnesses cannot both be right, or have been asked whether or not they accept the accused’s evidence, it may be appropriate to give a Liberato direction to guard against the possibility that they may be misled about the onus (R v Nguyen [2006] VSCA 158).

78. While it is not necessary to give a Liberato direction in every case where the jury is invited to decide which witnesses should be believed, it is desirable as a matter of prudence to give such a direction whenever the accused gives evidence which conflicts with evidence from witneses called by the prosecution (Salmon v R [2001]

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WASCA 270; R v Chen, Siregar & Isman (2002) 130 A Crim R 300).

79. For this purpose, the accused’s evidence may consist of answers given in a record of interview. The need for a Liberato direction is not limited to cases where there is sworn evidence from the accused, though the risk of the jury thinking they must choose between the witnesses is likely highest when the accused does give or call evidence (De Silva v The Queen [2019] HCA 48, [11]).

80. A Liberato direction should be given when the judge compares the relevant evidence, or at some other convenient proximate place in the charge (rather than at the start of the charge) (R v SAB (2008) 20 VR 55).

Sample Misdirections (Things that Should Not Be Said)

Onus of Proof

81. It is a misdirection to refer to the “task of the defence in trying to satisfy you that the accused did not intend” to commit the crime (Thomas v R (1960) 102 CLR 584).

82. It is wrong to direct the jury that they must acquit the accused if they are satisfied that the prosecution has not made out its case. Such a direction implies that the jury can convict the accused if they are in doubt about whether the prosecution has made out its case, which is contrary to the onus of proof (Van Leeuwen v R (1981) 36 ALR 591).

83. It is a misdirection to tell the jury that they must be satisfied, beyond reasonable doubt, that their verdict is the correct one. This might suggest that the jury needs to be satisfied that a verdict of not guilty is correct, when they only need to be satisfied that the prosecution has not established its case beyond reasonable doubt (Van Leeuwen v R (1981) 36 ALR 591).

84. It is dangerous to invite the jury to focus on the account of the accused, and to ask themselves how credible they find his or her account, and whether they accept everything he or she has said or have reservations about some parts of his or her evidence. Such an invitation may wrongly suggest to the jury that if they do not unreservedly accept the account given by the accused, the matter will have been proved beyond reasonable doubt. It also tends to suggest that the accused has some obligation to exculpate himself or herself from the allegations made against him or her, implicitly reversing the onus of proof (R v Schonewille [1998] 2 VR 625).

85. For similar reasons, the jury should not be told to ask themselves whether they think it is a reasonable possibility that what the accused says is correct (R v Holman [1997] 1 Qd R 373).

86. Judges should not ask a question such as “who else but the accused would have committed this crime?”, as this may undermine the presumption of innocence (R v Russo (2004) 11 VR 1).

87. Judges should avoid saying that the onus of proof requires the

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prosecution to establish that the accused is “not innocent” (R v Maksimovic [2007] VSCA 248).

Standard of Proof

88. It is a misdirection to tell the jury to consider the words “beyond”, “reasonable” and “doubt” separately, and to consider their own understanding of the word “reasonable” (R v Reeves (1992) 29 NSWLR 109).

89. It is undesirable to suggest to a jury that they may have doubts as to minor matters and nonetheless convict the accused. To say this is to weaken the force of the standard of proof (R v May [1962] Qd R 456).

90. Judges should not direct the jury that the prosecution has “merely” to prove a matter beyond reasonable doubt. The word “merely” is unnecessary and misplaced (R v Williams [1998] 4 VR 301).

91. Judges should not imply that there is a temporal aspect to the standard of proof – that jurors should disregard doubts that they “would entertain for only a second before discarding them as having no substance or being purely theoretical” or doubts that they were only “dallying with for a moment” (R v McNamara 1/12/1998 Qld CA).

92. It is a misdirection to tell the jury that they may determine whether the accused is guilty in the same way as they decide serious matters out of court (Thomas v R (1960) 102 CLR 584).

93. Judges should not lead the jury to think they must disregard possibilities that do not exceed the level of a “mere” possibility. If jurors have any possibilities in mind which cause them to retain doubt about the accused’s guilt, they should acquit (R v Lancefield [1999] VSCA 176).

94. It is wrong to tell the jury to look at the evidence and then “apply the law to whatever you are satisfied took place”. This incorrectly suggests that evidence of an event or circumstance cannot raise a reasonable doubt in the juror’s minds unless they are satisfied that the event or circumstance occurred (Van Leeuwen v R (1981) 36 ALR 591).

95. Judges should not refer to community standards when describing the standard of proof (R v Kidd [2002] QCA 433; R v Irlam; ex-parte Attorney-General [2002] QCA 235).

96. The following definitions of “proof beyond reasonable doubt” have been held to be misdirections:

Feeling “sure” or “really sure” (R v Punj [2002] QCA 333);

Coming to a feeling of “comfortable satisfaction” that the accused is guilty (Thomas v R (1960) 102 CLR 584; Green v R (1971) 126 CLR 28);

Satisfied “to a point of reasonable certainty” (R v Hildebrandt

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(1963) 81 WN (Pt 1) (NSW) 143);

Satisfied “beyond any skerrick of doubt” (R v Chedzey (1987) 30 A Crim R 451).

97. The following definitions of “reasonable doubt” have been held to be misdirections:

A “rational doubt” or a “doubt founded on reason” (Green v R (1971) 126 CLR 28; La Fontaine v R (1976) 135 CLR 625; R v Lancefield [1999] VSCA 176);

A “substantial doubt” (R v Thompson [1992] VR 523; Burrows v R (1937) 58 CLR 249; R v Chatzidimitriou (2000) 1 VR 493);

A “real” doubt (R v Pahuja (1987) 49 SASR 191);

A “doubt which might affect you in the conduct of your everyday affairs” (R v Ching [1976] Crim LR 687).

The following definitions of what is not a “reasonable doubt” have been held to be misdirections:

A doubt “having no substance or being purely theoretical” (R v McNamara 1/12/1998 Qld CA);

A “doubt beyond reason” (R v Wilson (1986) 42 SASR 203).

Expanding the Conventional Directions

98. While the conventional directions regarding the onus and standard of proof do not explain the meaning of “beyond reasonable doubt”, there are cases in which it will be necessary to provide such an explanation. There is no absolute prohibition against doing so (R v Cavkic (2005) 12 VR 136; R v Cavkic (No 2) (2009) 28 VR 341; R v Hettiarachchi [2009] VSCA 270).

99. While it is not possible to circumscribe the occasions on which it may be acceptable for a judge to give a jury additional assistance in relation to the meaning of the term “reasonable doubt”, it may be proper to do so in the following circumstances:

When the jury asks a question which directly or indirectly raises the meaning of the term (Jury Directions Act 2015 s63(1)); or

To correct an error of counsel on either side in relation to the meaning of the term during addresses (R v McNamara 1/12/1998 Qld CA. See also R v Reeves (1992) 29 NSWLR 109; R v Flesch (1986) 7 NSWLR 554; R v Collins 23/2/1999 Qld CA);

Where there is something to suggest that a misunderstanding could occur, it may be necessary for the judge to say enough in explication of the meaning of “beyond reasonable doubt” to avoid the misunderstanding (R v Cavkic (2005) 12 VR 136; R v Cavkic (No 2) (2009) 28 VR 341);

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It may also be necessary to amplify the directions on onus and standard of proof in cases where the prosecution relies upon circumstantial evidence (Grant v R (1976) 11 ALR 503; R v Sorby [1986] VR 753; Shepherd v R (1990) 170 CLR 573; Knight v R (1992) 175 CLR 495; R v Schonewille [1998] 2 VR 625). See Circumstantial Evidence and Inferences for further information.

Juror Questions

100. Judges are under a duty to ensure that by their directions jurors receive all of the assistance they require to discharge their task properly (R v Southammavong; R v Sihavong [2003] NSWCCA 312)

101. In particular, judges must make sure that jurors appreciate their duty not to convict unless the case has been established beyond reasonable doubt (Thomas v R (1960) 102 CLR 584).

102. If a jury asks a question which raises the meaning of the phrase “proof beyond reasonable doubt”, whether directly or indirectly, a trial judge may give one or more of the following responses:

Refer to the presumption of innocence and the prosecution’s obligation to prove that the accused is guilty (Jury Directions Act 2015 s64(1)(a); see also R v ALP [2002] VSCA 210; R v Henderson [1999] VSCA 125; R v Palmer (1992) 64 A Crim R 1; R v Reeves (1992) 29 NSWLR 109);

Indicate that it is not enough for the prosecution to persuade the jury that the accused is probably guilty or very likely to be guilty (Jury Directions Act 2015 s64(1)(b); see also R v Wanhalla [2007] 2 NZLR 573 at 588 [49]);

Indicate that it is almost impossible to prove anything with absolute certainty when reconstructing past events and that the prosecution does not have to do so (Jury Directions Act 2015 s64(1)(c); see also R v Wanhalla [2007] 2 NZLR 573 at 588 [49]);

Indicate that the jury cannot be satisfied that the accused is guilty if the jury has a reasonable doubt about whether the accused is guilty (Jury Directions Act 2015 s64(1)(d));

Indicate that a reasonable doubt is not an imaginary or fanciful doubt or an unrealistic possibility (Jury Directions Act 2015 s64(1)(e); see also. R v Lifchus [1997] 3 SCR 320 at 335, 337).

103. In responding to a jury question regarding the meaning of “beyond reasonable doubt”, a trial judge is not bound to choose between the options set out in Jury Directions Act 2015 s64(1), but may combine multiple options. The answer given, however, needs to disabuse a jury of any erroneous belief regarding the meaning of the phrase “beyond reasonable doubt”.

104. The statutory power for a trial judge to explain the meaning of the phrase “beyond reasonable doubt” does not limit any other power,

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whether at common law or otherwise, a trial judge has to explain the phrase (Jury Directions Act 2015 s63(2)).

105. Where the jury seeks further assistance with the concept of reasonable doubt, judges must exercise their discretion as to how to explain the matter to the particular jury (R v Ching [1976] Crim LR 687).

106. The trial judge may adapt their explanation so that it responds to the question that the jury asked (Jury Directions Act 2015 s64(2)).

107. Amplification of the onus and standard of proof may also be required if a jury question indicates that the jury has not properly understood these matters (R v Wickramarane [1998] Crim LR 565; R v Collins 23/2/1999 Qld CA; R v WG [2010] VSCA 34).

108. For example, if a jury asks a question which indicates that it is confused about the difference between a matter being “probable” or proved beyond “reasonable doubt”, it is necessary to give a clear direction explaining the difference (R v Collins 23/2/1999 Qld CA).

109. Similarly, if the question suggests that the jury may believe that standard will be satisfied if they find the complainant’s evidence to be “plausible”, the judge should make it clear that it is not enough for the complainant’s evidence to appear truthful, or even for its truth to be more likely than not. In order to convict, the jury must be satisfied of the elements of the offence charged beyond reasonable doubt (R v WG [2010] VSCA 34).

110. It is important that the trial judge does not expand or qualify the direction in such a way as to distract the jury from its task of determining the accused’s guilt beyond reasonable doubt (R v Lancefield [1999] VSCA 176).

111. The appropriate way in which to explain the onus or standard of proof will depend on the question asked. It is vital that judges directly address the question, because if not properly resolved, the accused may be convicted on a lesser standard of proof, which would be a serious miscarriage of justice (R v Cavkic (2005) 12 VR 136).

112. For example, if the jury asks the judge to tell it what reasonable doubt is as a ratio (e.g. 70% or 80% certain), that is a question which indirectly raises the meaning of the phrase “beyond reasonable doubt”. The judge will need to address the issue of percentages, to ensure that the jury properly understands that it should not approach the matter in that way. The judge may also give the explanations provided in Jury Directions Act 2015 s64. It will be a miscarriage of justice if the judge simply restates his or her previous directions about the onus and standard of proof without directly responding to the jury’s question (R v Cavkic (2005) 12 VR 136; see also Jury Directions Act 2015 s63(1)).

113. If the jury asks what “reasonable” means, a judge may reply that a reasonable doubt is a doubt which the jury considers reasonable (R v Neilan [1992] 1 VR 57), and may also explain that a doubt which is

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imaginary or fanciful, or an unrealistic possibility, is not a “reasonable” doubt and remind the jury that it is almost impossible to prove anything with absolute certainty when reconstructing past events and that the prosecution does not have to do so (Jury Directions Act 2015 s64(1)(d) and (e)).

114. If the jury asks whether “reasonable doubt” has an independent definition or is to be determined by jurors, it is desirable to tell it that it is the individual opinions of jurors about what level of “doubt” is “reasonable” that should be applied. Each individual juror must form his or her own view of the matter (R v Southammavong; R v Sihavong [2003] NSWCCA 312; compare R v Dookheea [2017] HCA 36 at [35]).

115. While it is not a misdirection to provide a dictionary to a jury that has requested a definition of “beyond reasonable doubt”, it is undesirable to do so (R v Chatzidimitriou (2000) 1 VR 493 per Phillips JA and Cummins AJA, Callaway JA dissenting).

Counsel’s Influence

116. It may be necessary to amplify the direction about the onus and standard of proof because of counsel’s arguments during the trial (Green v R (1971) 126 CLR 28; Thomas v R (1960) 102 CLR 584; R v Wilson (1986) 42 SASR 203; R v Lancefield [1999] VSCA 176).

117. For example, if counsel has laboured the emphasis on the onus of proof to such a degree as to suggest that fantastic or completely unreal possibilities ought to be regarded by the jury as affording a reason for doubt, it will be proper and necessary for a judge to restore the balance (Green v R (1971) 126 CLR 28; R v Hettiarachchi [2009] VSCA 270; R v Boyle (2009) 26 VR 219).

118. In such a case, the judge must do no more than restore the balance (Green v R (1971) 126 CLR 28; R v Wilson (1986) 42 SASR 203; R v Lancefield [1999] VSCA 176).

119. One way in which to restore the balance is to caution the jury against regarding possibilities which are in truth fantastic or completely unreal as affording a reasonable doubt (Green v R (1971) 126 CLR 28; R v Hettiarachchi [2009] VSCA 270; R v Boyle (2009) 26 VR 219; see also Jury Directions Act 2015 s63(1)(e)).

120. Another way to restore the balance is to remind the jury of the capacity of the human mind to conjure up fanciful, nervous or unreasonable misgivings about matters which are not in reality in doubt, and to warn them against doing so (Green v R (1971) 126 CLR 28; R v Wilson (1986) 42 SASR 203; R v Lancefield [1999] VSCA 176).

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