We all know what the criminal standard of proof is, but what is it? What does it really mean?
Try putting a percentage figure on it. We know that beyond reasonable doubt will be much higher than being just 50% sure, but how much higher? 70 or 80%? 90%, maybe? Why don’t we just dive in at the deep end and say 99.9%? Or should it be 99.9% recurring? Does reasonable refer to the size of the doubt, or is there some test that ought to be applied that would make a doubt reasonable, or unreasonable?
When the questions are put this way, it’s obvious we’re speaking poetry as much as science. Whether someone is convinced of something, and just how convinced they are, is an inexplicable process that goes on inside the privacy of each individual person’s head. It is unlikely that anyone will develop a way of expressing where an idea fits on a spectrum of certainty with mathematical precision any time soon.
Up until the 1970s, judicial authorities ran back and forth on the proper direction to juries on the meaning of the phrase beyond reasonable doubt. They contradicted one another; they tried to say the same thing using different words; they created dense and lengthy directions that did nothing to clarify the concept. Finally, in Green v The Queen (1971) 126 CLR 28) the High Court discussed some of these earlier failed attempts and concluded [at 15]: “Jurymen themselves set the standard of what is reasonable in the circumstances.”
Further explanation or direction to juries on the meaning of the phrase, except to correct any misapprehensions which may have been created in jurors’ minds by advocates, has been discouraged by the superior courts ever since: see, for example, R v Cavkic, Athanasi & Clarke (No 2) [2009] VSCA 43 at [62] – [64].
A study of NSW jurors conducted by the Bureau of Crime Statistics & Research (BOCSAR) has just been published. In it, a total of 1225 people drawn from 112 different juries were surveyed to gather their responses around three main issues: first, how much of the proceedings did they feel that they comprehended; second, what was it about the proceedings that helped them to do so; and third, after deciding a person’s guilt or innocence, what did they consider beyond reasonable doubt to mean?
Some may be appalled by the number of respondents who thought the phrase meant, “sure [the] person is guilty”. Others may be horrified to see how many people thought it means, “Pretty likely [the] person is guilty”.
What was clear was that different jurors, even those sitting on the same jury, applied different standards of proof to their deliberations.
The Victorian Court of Appeal in the earlier Cavkic Athanasi Clarke appeal in 2005 decided that the jury should have been told that reasonable doubt cannot be expressed as a percentage, in contrast to the civil balance of probabilities which is a percentage.This decision needs to be referred to in any discussion about percentages.The Court of Appeal in 2005 ordered a retrial, and the three were eventually convicted in 2009.
The Victorian Court of Appeal in the earlier Cavkic Athanasi Clarke appeal in 2005 decided that the jury should have been told that reasonable doubt cannot be expressed as a percentage, in contrast to the civil balance of probabilities which is a percentage.This decision needs to be referred to in any discussion about percentages.The Court of Appeal in 2005 ordered a retrial, and the three were eventually convicted in 2009.