Onus and standard of proof
It is essential that the jury be directed appropriately and clearly on the onus and standard of proof. The following are various passages which may be of assistance wholly or in part.
[3-600] Suggested direction — where the defence has no onus
As this is a criminal trial the burden or obligation of proof of the guilt of the accused is placed squarely on the Crown. That burden rests upon the Crown in respect of every element or essential fact that makes up the offence with which the accused has been charged. That burden never shifts to the accused. There is no obligation whatsoever on the accused to prove any fact or issue that is in dispute before you. It is of course not for the accused to prove his/her innocence but for the Crown to establish his/her guilt.
A critical part of the criminal justice system is the presumption of innocence. What it means is that a person charged with a criminal offence is presumed to be innocent unless and until the Crown persuades a jury that the person is guilty beyond reasonable doubt.
The fact that the accused has given/called evidence before you does not alter the burden of proof. The accused does not have to prove that his/her version is true. The Crown has to satisfy you that the account given by the accused [and defence witnesses] should not be accepted as a version of events that could reasonably be true.]
[Note: In some instances this direction will not be appropriate because the accused may be guilty even if there is no dispute over the facts, for example where guilt is based upon an objective evaluation such as whether the accused’s driving was dangerous in an offence under s 52A Crimes Act.]
[Where the accused has given an exculpatory electronically recorded interview of a suspected person (ERISP):
The accused gave a version of the events in the recorded interview with investigating police. The accused is entitled to rely upon that account and ask you to take it into consideration with the other evidence called by the Crown. The accused is not required to prove that this account is true. The Crown in discharging its obligation to prove the accused’s guilt must satisfy you that it is a version of events that could not reasonably be true.]
The Crown must prove the accused’s guilt beyond reasonable doubt. That is the high standard of proof that the Crown must achieve before you can convict the accused and the words mean exactly what they say – proof beyond reasonable doubt. At the end of your consideration of the evidence in the trial and the submissions made to you by the parties you must ask yourself whether the Crown has established the accused’s guilt beyond reasonable doubt.
[Where the Crown must negative a defence/issue to the criminal standard a long accepted direction which can be given (after making clear that the Crown must prove all ingredients of the charge beyond reasonable doubt) is as follows:
“Has the Crown eliminated any reasonable possibility that the accused acted in self-defence/was extremely provoked/acted under duress, etc?”]
However, the Crown does not have the burden of proving beyond reasonable doubt every single fact that arises from the evidence and is in dispute. The obligation that rests upon the Crown is to prove the elements of the charge; that is the essential facts that go to make up the charge, and must prove those facts beyond reasonable doubt. I shall shortly outline for you what are the elements of the charge, or the essential facts, that the Crown must prove beyond reasonable doubt.
In a criminal trial there is only one ultimate issue that a jury has to decide. Has the Crown proved the guilt of the accused beyond reasonable doubt? If the answer is “yes”, the appropriate verdict is “guilty”. If the answer is “no”, the verdict must be “not guilty”.
The accused has given [and/or called] evidence in answer to the case led by the Crown to the following effect … [summarise the evidence for the accused].
If, having considered that evidence, and the submissions of both counsel in relation to it, you accept it, then of course you must acquit the accused and bring in a verdict of “not guilty”, because it would follow that the Crown has not established beyond reasonable doubt its case in relation to an essential matter that it must prove.
However, as I have told you, there is no obligation on the accused to persuade you to accept that evidence. The Crown must satisfy you beyond reasonable doubt that you should reject it as a reasonably possible version of the facts. If that evidence leaves you with a reasonable doubt as to whether the Crown has made out its case in respect of any element of the offence or any essential fact that it must prove, then you are bound, in law, to bring in a verdict of “not guilty”. In other words, you do not have to believe that the accused [and/or his/her witnesses is/are] telling you the truth before [he/she] is entitled to be acquitted. If at the end of your deliberations you find that the Crown has failed to eliminate a reasonable possibility that the version presented by the defence is true then the Crown has failed in its obligation to persuade you of the accused’s guilt beyond reasonable doubt.]
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  NSWCCA 120 at . 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) 91 ALJR 960 at . 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 .
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  NSWCCA 312 at . 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 . Newman J said in R v GWB  NSWCCA 410 at  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 ,  (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 ,  and see Moore v R  NSWCCA 185 at .
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  per Basten JA; RA Hulme J generally agreed at  and see RA Hulme J at . 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 , . 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 ,  and several cases cited at –. 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  NSWSC 613 at : Moore v R at – and see Basten JA in Moore v R at . 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 , .
[3-605] The Liberato direction — when a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness
In Liberato v The Queen (1985) 159 CLR 507 at 515, Brennan J in his dissenting judgment (Deane J agreeing) said:
When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue.
Although the majority in Liberato v The Queen did not address this issue (the judgment concerned a special leave application), and it has not been specifically endorsed by a High Court majority, it has been sanctioned to varying degrees by the Court of Criminal Appeal. In R v Ryan (unrep, 15/4/94, NSWCCA), Mahoney JA (Gleeson CJ and Wood J agreeing) referred to the judgment of Deane J in Liberato v The Queen and said that “it would be wrong to indicate that guilt or innocence ‘turned upon a mere “choice” between’ two inconsistent versions”. Similarly in R v Li (2003) 140 A Crim R 288, Dunford J (Spigelman CJ and Hidden J agreeing) said at : “The issue can never be which of the cases is correct or who of the complainant and the accused is telling the truth”. For additional Court of Criminal Appeal cases where the direction has been endorsed (and not limited to sexual assault matters) see R v E (1995) 89 A Crim R 325 at 330; R v Chen (2002) 130 A Crim R 300 at –; R v Smith  NSWCCA 468 at –; R v Short  NSWCCA 462 at ; R v Niass  NSWCCA 120 at .
In cases where the jury is given clear directions regarding the onus and standard of proof, a Liberato-type direction may be unnecessary: R v Burt (2003) 140 A Crim R 555 at –. If there is no suggestion of a choice between conflicting cases (that is, the jury is not being invited to see their task as one of essentially making a choice between the evidence relied upon by the Crown and the evidence relied upon by the accused), a Liberato direction is not required: R v Niass  NSWCCA 120 at ; Harris v R (2005) 158 A Crim R 454 at .
[3-610] Suggested direction — essential Crown witness (“Murray direction”) (in cases other than prescribed sexual offences)
The following direction applies where there is one witness essential to the Crown case.
Wherever the Crown seeks to establish the guilt of an accused person with a case based largely or exclusively on a single witness it is important that the jury are told that they should exercise caution.
That is what I am going to tell you now.
You must exercise caution before you convict the accused because the Crown case largely depends on you accepting the reliability of the evidence of a single witness.
This being so, unless you are satisfied beyond reasonable doubt that the [essential Crown witness] is both an honest and accurate witness in the account [he/she] has given, you cannot find the accused guilty. Before you can convict the accused, you should examine the evidence of the [essential Crown witness] very carefully in order to satisfy yourselves that you can safely act upon that evidence to the high standard required in a criminal trial.
That caution is not based upon any personal view that I have of the [essential Crown witness]. I told you at the outset of this summing up that I would not express my personal opinions on the evidence. But in any criminal trial, where the Crown case relies solely or substantially upon the evidence of a single witness, a jury must always approach that evidence with particular caution because of the onus and standard of proof placed upon the Crown.
I am not suggesting to you that you are not entitled to convict the accused upon the evidence of the [essential Crown witness]. Clearly you are entitled to do so but only after you have carefully examined the evidence and satisfied yourself that it is reliable beyond reasonable doubt.
In considering the [essential Crown witness’] evidence and whether it does satisfy you of the accused’s guilt, you should of course look to see if it is supported by other evidence.
The above direction is derived from R v Murray (1987) 11 NSWLR 12 where Lee J said at 19(E):
In all cases of serious crime it is customary for judges to stress that where there is only one witness asserting the commission of the crime, the evidence of that witness must be scrutinised with great care before a conclusion is arrived at that a verdict of guilty should be brought in; but a direction of that kind does not of itself imply that the witness’ evidence is unreliable.
R v Murray is cited with approval by the High Court in Robinson v The Queen (1999) 197 CLR 162 at ; Tully v The Queen (2006) 230 CLR 234 per Kirby J at –, and see also Hayne J at .
The High Court has held that the 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 –. 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  NSWCCA 328 at  per Howie J.
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  NSWCCA 186 at .
Although the requirement to give a Murray direction extends to “all cases of serious crime” (R v Murray at 19) in the case of prescribed sexual offences (defined in s 290 Criminal Procedure Act) consideration must be given to the effect of s 294AA Criminal Procedure Act and Ewen v R (2015) 250 A Crim R 544 (see point 5 below). Cases decided before the enactment of s 294AA, where the appellant was charged with a prescribed sexual offence, are no longer good law (see, for example, R v Davis  NSWCCA 15 at ; R v Connors  NSWCCA 470 at ; R v Burt (2003) 140 A Crim R 555 at ; R v Li (2003) 140 A Crim R 288 at ; DTS v R  NSWCCA 329).
Section 294AA Criminal Procedure Act 1986, which commenced on 1 January 2007, provides:
A judge in any proceedings to which this Division applies must not warn a jury, or make any suggestion to a jury, that complainants as a class are unreliable witnesses.
Without limiting subsection (1), that subsection prohibits a warning to a jury of the danger of convicting on the uncorroborated evidence of any complainant.
Sections 164 and 165 of the Evidence Act 1995 are subject to this section.
The legislature intended 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 (2015) 250 A Crim R 544 at . 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: Ewen v R at . 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 . Such a conclusion cannot be avoided by switching from one linguistic formula (“dangerous to convict”) to another (“scrutinise the evidence with great care”). However formulated, the substance of the direction is the same — that, merely because the evidence is uncorroborated, it would be unsafe for the jury to act upon it: Ewen v R at .
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 . 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. Neither would a direction concerning delay in bringing the case. 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 –. The latter direction would, however, have to be consistent with Mahmood v Western Australia (2008) 232 CLR 397 at . See further Witnesses — not called at [4-370], [4-375].
[3-625] Motive to lie and the onus of proof
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  NSWCCA 117 at ; MAJW v R  NSWCCA 255 at . The jury’s task does not include speculating whether there is some other reason why the Crown witness would lie: Brown v R  NSWCCA 306 at . 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 .
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) 187 A Crim R 328 at . 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 him or her: Doe v R at –.
It is impermissible to cross-examine an accused to show that he or she does 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 ; Doe v R at . 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 . 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 ; South v R  NSWCCA 117 at ; Causevic v R (2008) 190 A Crim R 416 at . 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 –; Doe v R at –; Cusack v R  NSWCCA 155 at .
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  NSWCCA 255 at –. 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 . 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 . A direction of that kind seriously impairs the fairness of the trial and undermines the presumption of innocence: Robinson v The Queen at 535.
See further Cross-examination of defendant as to credibility at [1-343] and Consciousness of Guilt, Lies and Flight at [2-950]ff.
[3-630] Suggested direction — where the defence has an onus
In the type of case now before you, however, there is an exception to the general propositions of law which I have just put, namely — that the Crown must prove its case, and prove it beyond reasonable doubt. The law makes provision in respect of one matter which arises for your decision in this trial, in which the accused must prove [his/her] case. I will explain shortly what that matter is.
Now however, I wish to emphasise that the law is that where the proof of any matter is on an accused person, that is to say, by way of exception to the general rule which I have explained, then the accused is not required to prove that matter beyond reasonable doubt — the standard of proof imposed upon the Crown.
The accused needs only to establish what the accused relies upon, in this regard, to a lower standard of proof than beyond reasonable doubt. The accused is required to prove the accused’s case, in this regard, only on the balance of probabilities. That is to say the accused needs only to show that it is more likely than not that what the accused asserts is so.