Criminal Trial Courts Bench Book — Trial Instructions H–Q

There is longstanding authority for the proposition that, except in certain limited circumstances, no attempt should be made to explain or embellish the meaning of the phrase “beyond reasonable doubt”: Green v The Queen (1971) 126 CLR 28 at 32–33; La Fontaine v R (1976) 136 CLR 62 at 71; R v Reeves (1992) 29 NSWLR 109 at 117; Raso v R [2008] NSWCCA 120 at [20]. If, in an address, counsel suggests that fantastic or unreal possibilities should be regarded by the jury as affording a reason for doubt, the judge can properly instruct the jury that fantastic or unreal possibilities ought not to be regarded by them as a source of reasonable doubt: Green v The Queen at 33; or as put in Keil v The Queen (1979) 53 ALJR 525, “fanciful doubts are not reasonable doubts”. It is generally undesirable to direct a jury in terms which contrast proof beyond reasonable doubt with proof beyond any doubt: The Queen v Dookheea (2017) 262 CLR 402 at [28]. However, an effective means of conveying the meaning of the phrase “beyond reasonable doubt” to a jury may be by contrasting the standard of proof beyond reasonable doubt with the lower civil standard of proof on the balance of probabilities: The Queen v Dookheea at [41].

The question of whether there is a reasonable doubt is a subjective one to be determined by each individual juror: Green v The Queen at 32–33; R v Southammavong [2003] NSWCCA 312 at [28]. There was no error in R v Southammavong by the trial judge saying, in response to a jury request for clarification, that “the words ‘beyond reasonable doubt’ are ordinary everyday words and that is how you should understand them”: at [23]. Newman J said in R v GWB [2000] NSWCCA 410 at [44] that “judges should not depart from the time honoured formula that the words ‘beyond reasonable doubt’ are words in the ordinary English usage and mean exactly what they say”.

If a judge gives the jury written directions it is essential that the directions make clear where the legal onus is on the Crown to eliminate any reasonable possibility: Hadchiti v R (2016) 93 NSWLR 671 at [106], [112] (see Special Bulletin 32). A trial judge should take particular care before introducing the concept of reasonable possibility in the course of explaining the onus and standard of proof to the jury. The written directions in Hadchiti v R were held to be contrary to law because of the repeated use of the expression “reasonable possibility” throughout and the failure to make clear the onus of proof was on the Crown: Hadchiti v R at [44], [112] and see Moore v R [2016] NSWCCA 185 at [114].

Proof of a matter beyond reasonable doubt involves rejection of all reasonable hypotheses or any reasonable possibility inconsistent with the Crown case: Moore v R at [43] per Basten JA; RA Hulme J generally agreed at [94] and see RA Hulme J at [125]. It is not erroneous to direct that if there is a reasonable possibility of some exculpatory factor existing then the jury should find in favour of the accused: Moore v R at [99], [125]. The 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: Moore v R at [99], [125] and several cases cited at [99]–[124]. Framing the issue of self-defence in terms a reasonable possibility does not distort the onus and standard of proof and is consistent with the oft cited case of R v Katarzynski [2002] NSWSC 613 at [22]: Moore v R at [122]–[124] and see Basten JA in Moore v R at [43]. The concept of a reasonable possibility in a question trail is definitive and does not give rise to an answer other than “yes” or “no” — there is no “middle ground” answer of “not sure”: Moore v R at [36]; [129].

In Liberato v The Queen (1985) 159 CLR 507 at 515, Brennan J in his dissenting judgment (Deane J agreeing) spoke of a case in which there is evidence relied upon by the defence conflicting with that relied upon by the Crown. In such a case, a jury might consider “who is to be believed”. His Honour said it was essential to ensure the jury were aware that deciding such a question in favour of the prosecution does not conclude the issue as to whether guilt has been proved beyond reasonable doubt. The jury should be directed that:

In De Silva v The Queen (2019) 268 CLR 57, the High Court noted that there were differing views as to whether a Liberato direction was appropriate in a case where the conflicting defence version of events was not given on oath by the accused, but was before the jury, typically in the accused’s answers in a record of interview and said such a direction should be given:

The Liberato direction in the suggested direction at [3-600] is modelled on what was proposed by the High Court in De Silva v The Queen at [12]. A Liberato direction should be given in any case where the trial judge perceives there is a real risk the jury may be left with the impression the evidence the accused relies on will only give rise to a reasonable doubt if they believe it is truthful, or that a preference for the complainant’s evidence is sufficient to establish guilt: at [9]; see also Haile v R (2022) 109 NSWLR 288 at [1] per Bell CJ (Ierace J agreeing) and [73] per Bellew J (Bell CJ , Ierace J agreeing).

The Liberato direction covers three points on the spectrum of belief regarding what the accused has said — positive belief (first aspect), positive disbelief (third aspect), and neither actual belief nor rejection of the accused’s account (second aspect): Park v R [2023] NSWCCA 71 at [102]–[103]. In Park v R, the second aspect of the direction was defective as it was not framed in terms of a jury, though not positively believing the accused’s account, thinking the account might be true. Nor did the direction make it clear there was a command to acquit in such circumstances: at  [103]–[104].

It is never appropriate to frame the issue for the jury’s determination as one which involves making a choice between conflicting Crown and defence evidence. The issue is always whether the Crown has proved its case beyond reasonable doubt: Haile v R at [72]. See [76]–[78] as an example of how the failure to give a Liberato direction can result in error.

The above direction is derived from R v Murray (1987) 11 NSWLR 12 where Lee J said at 19(E):

R v Murray was decided when s 405C(2) (rep) Crimes Act 1900, which stated a judge was not required to give a warning in prescribed sexual offence trials that it would be unsafe to convict on the complainant’s uncorroborated evidence, was in force. In 2007, this was replaced by s 294AA Criminal Procedure Act 1986 which prohibits such a warning being given at all in such cases.

The High Court has held that a Murray direction should be given in appropriate cases where there is a perceptible risk of miscarriage of justice if the jury is not warned of the need to scrutinise the evidence of a complainant with care before arriving at a conclusion of guilt: Robinson v The Queen (1999) 197 CLR 162 at [25]–[26]. The direction “emphasises what should be clear from the application of the onus and standard of proof: if the Crown case relies upon a single witness then the jury must be satisfied that the witness is reliable beyond reasonable doubt”: Smale v R [2007] NSWCCA 328 at [71] per Howie J.

This does not mean that in cases where there is one principal witness in the Crown case a Murray direction is automatically required — if that witness’ evidence is corroborated by other evidence in the trial, such as documentary evidence, forensic evidence or other physical evidence (for example, DNA results implicating the accused) there is no basis for a direction: Gould v R [2021] NSWCCA 92 at [134], [136]; cf Ewen v R [2015] NSWCCA 117 at [104].

There is no particular form of words prescribed for giving a Murray direction; nor is there any obligation to use the verb “scrutinize”: Kaifoto v R [2006] NSWCCA 186 at [72]; Williams v R [2021] NSWCCA 25 at [144].

The application of Murray to prescribed sexual offences (defined in s 290 Criminal Procedure Act) has been significantly modified by s 294AA Criminal Procedure Act. This was considered in Ewen v R [2015] NSWCCA 117 (see point 7 below). Cases decided before the enactment of s 294AA, where the appellant was charged with a prescribed sexual offence, are no longer good law.

Section 294AA Criminal Procedure Act, which commenced on 1 January 2007, provides:

Ewen v R [2015] NSWCCA 117 makes clear that s 294AA takes precedence over R v Murray, signalling the legislature’s intention to prohibit warnings that call into question (by reason only of absence of corroboration) the reliability not only of complainants as a class, but also of a complainant in any particular case: Ewen v R at [136]–[140]. A Murray direction, based only on the absence of corroboration, is tantamount to a direction that it would be dangerous to convict on the uncorroborated evidence of the complainant. If the direction suggests that merely because a complainant’s evidence is uncorroborated, it would be, on that account, dangerous to convict, it transgresses s 294AA(2): Ewen v R at [140]–[141]. Such a conclusion cannot be avoided by switching from one linguistic formula (“dangerous to convict”) to another (“scrutinise the evidence with great care”).

This does not mean that directions appropriate to the circumstances of the individual case cannot be given as envisaged in Longman v The Queen (1989) 168 CLR 79: Ewen v R at [143]. A direction would not contravene s 294AA if it concerned specific evidence in the case, including weaknesses or deficiencies as described in Longman v The Queen; Robinson v The Queen (1999) 197 CLR 162 and Tully v The Queen (2006) 230 CLR 234 — particularly weaknesses or deficiencies that are apparent to the judge but may not be so apparent to the jury. Neither would a direction concerning delay in bringing the case (although note s 165B Evidence Act 1995 regarding delay). Nor would a direction which addressed a scenario where the evidence indicated that others were present and were or may have been in a position to observe what took place, and were not called to give evidence: Ewen v R at [143]–[144]. The latter direction would, however, have to be consistent with Mahmood v Western Australia (2008) 232 CLR 397 at [27]. See further Witnesses — not called at [4-370], [4-375].

In Williams v R [2021] NSWCCA 25, the Court held that the trial judge (in a judge-alone trial) correctly gave a Murray direction without breaching s 294AA because no mention was made of the complainant’s evidence being uncorroborated, only that the tribunal of fact had to be satisfied beyond reasonable doubt that the complainant was an honest and reliable witness whose evidence was “accurate in vital respects”: [143]. See also AB v R [2022] NSWCCA 104, where the Court concluded there was no error in the trial judge’s direction to consider other evidence, including evidence of complaint, that may “support” the complainant’s evidence and that, in that context, her Honour’s reference to Ewen rather than Murray was correct: at [62]–[63].

Where two or more accused are tried together and the evidence of a witness inculpates one accused and exculpates another, the trial judge should give directions which distinguish between the approach to be taken in each of the two cases. In respect of the case against the accused for which the evidence is inculpatory and constitutes the only evidence of an element of the offence, it is generally necessary to direct the jury that they should only act on the evidence if they are satisfied beyond reasonable doubt that the evidence is truthful, reliable and accurate. However, in respect of the case against the accused for which the evidence is exculpatory, the judge should generally direct the jury that they only need to decide whether the witness’ evidence gives rise to a reasonable doubt. For an example of a case where this issue arose see Huxley v The Queen [2023] HCA 40 (where although the appeal was dismissed, it was accepted that there was an important distinction to be drawn between the two instances).

A motive to lie or to be untruthful, if it is established, may “substantially affect the assessment of the credibility of the witness”: ss 103, 106(2)(a) Evidence Act 1995. Where there is evidence that a Crown witness has a motive to lie, the jury’s task is to consider that evidence and to determine whether they are nevertheless satisfied that the evidence given is true: South v R [2007] NSWCCA 117 at [42]; MAJW v R [2009] NSWCCA 255 at [31]. The jury’s task does not include speculating whether there is some other reason why the Crown witness would lie: Brown v R [2008] NSWCCA 306 at [50]. Nor does it include acceptance of the Crown witness’s evidence unless some positive answer to that question is given by the accused: South v R at [42].

If the defence case directly asserts a motive to lie on the part of a central Crown witness, the summing-up should contain clear directions on the onus of proof, including a direction that the accused bears no onus to prove a motive to lie and that rejection of the motive asserted does not necessarily justify a conclusion that the evidence of the witness is truthful: Doe v R [2008] NSWCCA 203 at [58]; Jovanovic v R (1997) 42 NSWLR 520 at 521–522 and 535. The jury should also be directed not to conclude that if the complainant has no motive to lie then they are, by that reason alone, telling the truth: Jovanovic v R at 523.

Where the defence does not directly raise the issue, it is impermissible for the prosecutor to submit (for the purpose of promoting the acceptance of a Crown witness as a witness of truth) that the accused did not advance a motive to lie. The jury should not be given the impression that the accused bears some onus of proving the existence of a motive for the fabrication of the allegations against them: Doe v R at [59]–[60].

It is impermissible to cross-examine an accused to show that they do not know of any reason why the complainant (or indeed a central Crown witness) has a motive to lie: Palmer v The Queen (1998) 193 CLR 1 at [8]; Doe v R at [59]. The question focuses the jury’s attention on irrelevant material and invites them to accept the evidence unless some positive answer is given by the accused: Palmer v The Queen at [8]. An open-ended question to the accused, “why would the complainant lie?”, “simply should never be asked” by a prosecutor in a trial: Doe v R at [54]; South v R [2007] NSWCCA 117 at [44]; Causevic v R [2008] NSWCCA 238 at [38]. If in closing addresses the prosecutor makes a comment or asks a rhetorical question to that effect when the issue has not been raised, the judge should give full, firm and clear directions on the onus of proof, including a direction that the accused bears no onus to prove a motive to lie: Palmer v The Queen at [7]–[8]; Doe v R at [59]–[60]; Cusack v R [2009] NSWCCA 155 at [105].

The evidence of an accused person is subject to the tests which are generally applicable to witnesses in a criminal trial: Robinson v The Queen (1991) 180 CLR 531 at 536. However, the trial judge should refrain from directing the jury that the accused’s interest in the outcome of the proceedings is a factor relevant to assessing his or her credibility as a witness: Robinson v The Queen at 535–536; MAJW v R [2009] NSWCCA 255 at [37]–[38]. Robinson v The Queen did not create a new rule. It applied a more general principle that directions should not deflect the jury from its fundamental task of deciding whether the prosecution had proved its case beyond reasonable doubt: Hargraves v The Queen (2011) 245 CLR 257 at [46]. Nevertheless trial judges must not instruct juries in terms of the accused’s interest in the outcome of the proceedings whether as a direction of law or as a judicial comment on the facts: Hargraves v The Queen at [46]. A direction of that kind seriously impairs the fairness of the trial and undermines the presumption of innocence: Robinson v The Queen at 535.