Reasonable doubt

“Unelected judges” are getting in the way of justice, overturning what juries have properly decided and thwarting what the community “knows” is right.

Or so the story goes, fuelled by some media commentary.

The recent case of Cardinal George Pell has attracted much attention, and criticism – but it is no outrage and it is not by any means a one of a kind. Rather, it is merely one example of the criminal-justice system doing what it is supposed to do.

Many say that the law should not provide for the decisions of juries to be overturned, but in the Pell case, the High Court judgment demonstrated, line by reasoned line, that there was reasonable doubt about the specific allegations.

While this might be galling to many, it is right and proper. Our system is based on the notion that no-one should be convicted unless findings of fact are made against them “beyond reasonable doubt”.

As Benjamin Franklin, put it 250 years ago, “It is better 100 guilty persons should escape than that one innocent person should suffer.” Franklin was expanding on what is known as “Blackstone’s ratio” in the famous Commentaries Upon the Laws of England, where the great jurist had it at 10:1.

Those concerned that the Pell case is wrongly decided would do well to remember the case of Lindy Chamberlain, where the Government that relentlessly pursued her prosecution and conviction in a circumstantial case was quick to pardon her when, finally, direct evidence consistent with her innocence emerged.

If that weren’t enough, consider the string of murder cases from the United States where people’s convictions have been overturned when DNA evidence conclusively proved the accused were not the killers. People who were unarguably not guilty were judicially executed for other people’s crimes. Check out the Innocence Project in the United States.

The idea that the Pell matter is some sort of one-off and that the Cardinal got special treatment is a notion that can be quickly scotched.

Only late last year, the High Court dealt with another case that stood at the intersection of the law and community perceptions.

The murder conviction of Steven Fennell was quashed by the High Court and a verdict of acquittal entered.

Like Mrs Chamberlain’s matter, the case against Mr Fennell was entirely circumstantial.

A five-member High Court (Chief Justice Kiefel and Justices Keane, Nettle, Gordon and Edelman) unanimously held that the Crown case on opportunity and motive was extremely weak and it did not put Mr Fennell in a relevantly different position from numerous other people.

The Court held that based on the evidence it was not open for the jury to be satisfied of Mr Fennell’s guilt beyond a reasonable doubt, overturning a decision of the Court of Appeal of the Supreme Court of Queensland, which had upheld the jury verdict. In the Cardinal’s matter, the overturning was of a decision of the Victorian Court of Appeal.

In a joint judgment in Fennell, the five High Court judges laid down how and why jury verdicts can be overturned.

“Where a court of criminal appeal is called upon to decide whether it considers that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of the offence charged, the court must not disregard or discount either that the jury is the body entrusted with primary responsibility of determining whether the prosecution has established the accused’s guilt or that the jury has had the benefit of having seen and heard the witnesses,” the judgment said. “At the same time, however, the Court may take into account the realities of human experience, including the fallibility and plasticity of memory especially as time passes, the possibility of contamination of recollection, and the influence of internal biases on memory.

“The court can also take into account the well-known scientific research that has revealed the difficulties and inaccuracies involved in assessing credibility and reliability.”

The High Court went over the evidence in enormous detail, as it did in Pell, and dissected the approach of judges on the Court of Appeal with similar exactitude, demonstrating where certain conclusions were simply not open.

The High Court noted that its intervention was warranted only where a very high standard was reached, that being that it was just not open to the jury, on the facts before it, to be satisfied of Mr Fennell’s guilt beyond reasonable doubt.

Circumstantial cases are known to be fraught, and jury directions following significant caselaw are designed to ensure that those deciding the facts of the matter (the jurors) are well informed of the risks.

And just what is “reasonable doubt”?

The recommended NSW jury direction says that where the Crown case rests substantially on circumstantial evidence, a jury cannot return a guilty verdict unless the Crown has excluded all reasonable hypotheses consistent with innocence. For an inference to be reasonable, it must rest upon something more than mere conjecture. It is not incumbent on the defence either to establish that some inference other than guilt should be drawn from the evidence or to prove particular facts tending to support such an inference. It is always the Crown who must prove the charge beyond reasonable doubt.

A recent ACT Court of Appeal case, Muench, dismissed a defendant’s appeal that a Magistrate’s finding of guilt, confirmed by a single Supreme Court judge, was not open on all the evidence, or was not reasonable given the alternative theories put forward.

In this case, the Court decided differently to how the High Court found in Pell and Fennell. That is because the facts and circumstances of Muench were different.

But the analysis, the approach to the law and the endeavour to do justice were just the same. Just like the High Court, the three-member ACT bench (Burns, Loukas-Karlsson and Wigney JJ) went into the evidence in comprehensive detail before making its finding.

The ACT Court quoted the well-known High Court case of Baden-Clay in outlining what is supposed to happen in these difficult cases.

“The setting aside of a jury’s verdict on the ground that it is unreasonable is ‘a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial,” the ACT judges said. “A court of criminal appeal is ‘not to substitute trial by an appeal court for trial by jury’. The same principles must again apply when considering whether a finding of guilt by a magistrate or judge, sitting alone and without a jury, was unreasonable and not supported by the evidence.”

It is hard to underestimate the difficulties with circumstantial cases, and anyone charged with such a matter should immediately seek legal advice.

The team at Armstrong Legal deal only in criminal matters and are experienced at identifying the weaknesses in prosecutions, particularly those in circumstantial cases.

BY Andrew Fraser, Senior Associate, Criminal Law, Canberra

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