Do Juries Understand the Criminal Standard of Proof of Beyond Reasonable Doubt?

Hemming, Andrew (2021) Do Juries Understand the Criminal Standard of Proof of Beyond Reasonable Doubt? Journal of Judicial Administration, 30 (3). pp. 103-125. ISSN 1036-7918


Abstract

In Green v The Queen and La Fontaine v The Queen, the High Court stated that it is both unnecessary and unwise for a trial judge to seek to explain to the jury the meaning of ‘beyond reasonable doubt’, on the ground that the phrase is well understood in the community. This view is not shared in other countries with a common law tradition such as England & Wales, Canada, New Zealand and the United States. This article respectfully disagrees with the High Court’s position, most recently affirmed in The Queen v Dookheea, and argues that Victoria has taken the appropriate course in enacting sections 63-64 of the Jury Directions Act 2015 (Vic). Section 63 sets out the circumstances when the trial judge may explain ‘proof beyond reasonable doubt’, and s 64 deals with the situation as to how the explanation may be given in response to jury question. However, it is contended that both s 63 and s 64 can be improved by removing the requirement that an explanation of the phrase ‘proof beyond reasonable doubt’ may only occur in response to a direct or indirect jury question. The argument will be developed in the context of a number of sexual assault cases where the guilty verdicts have been overturned on appeal, such as Tyrell v The Queen, IW v The Queen, JN v The Queen, Xu v The Queen, and Pell v The Queen.


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Item Type: Article (Commonwealth Reporting Category C)
Refereed: Yes
Item Status: Live Archive
Faculty/School / Institute/Centre: Current - Faculty of Business, Education, Law and Arts - School of Law and Justice (1 Jul 2013 -)
Faculty/School / Institute/Centre: Current - Faculty of Business, Education, Law and Arts - School of Law and Justice (1 Jul 2013 -)
Date Deposited: 21 May 2021 02:56
Last Modified: 08 Jun 2021 22:19
Uncontrolled Keywords: Beyond reasonable doubt; explanation to jury; Jury Directions Act 2015 (Vic)
Fields of Research (2008): 18 Law and Legal Studies > 1801 Law > 180110 Criminal Law and Procedure
Fields of Research (2020): 48 LAW AND LEGAL STUDIES > 4805 Legal systems > 480503 Criminal procedure
Socio-Economic Objectives (2008): C Society > 94 Law, Politics and Community Services > 9404 Justice and the Law > 940406 Legal Processes
Socio-Economic Objectives (2020): 23 LAW, POLITICS AND COMMUNITY SERVICES > 2304 Justice and the law > 230403 Criminal justice
URI: http://eprints.usq.edu.au/id/eprint/42000

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