After the strong support given to the work of the Judicial College by the Supreme Court, it was only a matter of time before an appeal was brought which relied on a departure from the wording of the Victorian Criminal Charge Book as its ground.

In R v Carter [2009] VSCA 272, the trial judge instructed the jury that,

Moreover, the standard to which you must be satisfied is a high one. It is expressed in words which reflect our understanding of the serious nature of the work of the criminal court. Those words are ‘beyond reasonable doubt’. They are words which have been applied by juries in criminal courts for many years. They mean what they say, and any further definition of them would be neither useful nor proper.

This direction complies with the observations made by the High Court in Green v The Queen (1971) 126 CLR 28 about unnecessary explanation of what reasonable doubt is (discussed here in April in Beyond Reasonable Doubt).

The Charge Book has a quite different sample jury direction, that reads [in part],

This is the highest standard of proof that our law demands. It can be compared with the lower standard of proof that is required in a civil case, such as where one person sues another for breach of contract. In that situation, matters only need to be proved on what is called the “balance of probabilities”. That is, they need to be shown to be more likely than not.

The Court of Appeal had little patience for the argument, perhaps seeing a tsunami of appeals based on a departure from the Charge Book looming on the horizon. Weinberg JA (Buchanan JA and Coghlan AJA agreeing) said this,

7 Put simply, the applicant contends that the failure of the trial judge to instruct the jury in accordance with the standard direction set out in the Charge Book gave rise to a miscarriage of justice. The submission comes down to this. The jury may have concluded from his Honour’s use of the term ‘high’ that the standard of proof required in a criminal trial is something less than the highest standard of proof known to the law. In addition, the failure to contrast the ‘high’ standard required in a criminal matter with the lesser standard required in a civil case adds to the risk that they might have done so.

8 The argument faces several hurdles. In the first place, no authority was cited in support of the contention that, when speaking of the standard of proof, the term ‘highest’ had to be used, immediately followed after the words ‘standard of proof’, by the expression ‘known to the law’, failing which the trial will have miscarried. Next, no exception was taken to his Honour’s charge. Finally, his Honour had, earlier in the proceeding, instructed the jury that there was a presumption of innocence, and that the applicant was entitled to the benefit of that presumption unless and until the prosecution satisfied them, beyond reasonable doubt, of the guilt of the accused.

9 That is not to say that it is good practice or desirable to depart from the time-honoured formula used repeatedly by judges in this State, and elsewhere, and recorded in the Charge Book. It is only to say that a departure from that practice does not of itself signify a miscarriage of justice.

Or in other words, the use of the Charge Book is to be encouraged, but failure to quote from it will not necessarily be condemned. Though the case wasn’t cited, Winneke P’s comments in DPP v Foster; DPP v Bajram [1999] VSCA 73 [at 29] about the use of meaningless ‘ritual incantations’ seems appropriate in this context.