Farshchi v The King

GAGELER CJ, GORDON, GLEESON AND BEECH-JONES JJ.

1. [1]

   The appellant was tried, on a joint indictment with his wife, by a jury in the County Court of Victoria for two forced labour offences contrary to s 270.6A(1) and (2) of the Criminal Code (Cth) ("the Code"). The appellant was convicted on both counts and sentenced to a total effective sentence of three years and six months' imprisonment, with a non-parole period of 18 months. The Court of Appeal of the Supreme Court of Victoria (Priest JA, Niall and Taylor JJA agreeing) refused leave to appeal against the convictions, and against the appellant's sentence.

1. [2]

   The County Court exercised federal jurisdiction with respect to the appellant's trial and conviction on indictment, conferred by s 68(2) of the Judiciary Act 1903 (Cth). In the exercise of that federal jurisdiction, by s 68(1)(c) of that Act, the County Court was required to apply the laws of Victoria respecting the procedure for trial and conviction on indictment "so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth in respect of whom jurisdiction is conferred", except to the extent that the Victorian laws would be inconsistent with a Commonwealth law.

2. [3]

   The general principles of criminal responsibility under laws of the Commonwealth are codified by Ch 2 of the Code. Section 13.2(1) of the Code, in Pt 2.6 of Ch 2, provides that "[a] legal burden of proof on the prosecution must be discharged beyond reasonable doubt". In his charge to the jury, the trial judge (Chief Judge Kidd) explained to the jury the phrase "proof beyond reasonable doubt", proceeding on the basis that ss 63 and 64 of the Jury Directions Act 2015 (Vic) were applicable in accordance with s 68(1)(c) of the Judiciary Act. Section 63(1) of the Jury Directions Act required the trial judge to "give the jury an explanation of the phrase 'proof beyond reasonable doubt' unless there [were] good reasons for not doing so". Section 64(1) provided: "In explaining the phrase 'proof beyond reasonable doubt' under section 63, the trial judge may – (a) refer to – (i) the presumption of innocence; and (ii) the prosecution's obligation to prove that the accused is guilty; or (b) indicate that it is not enough for the prosecution to persuade the jury that the accused is probably guilty or very likely to be guilty; or (c) indicate that – (i) it is almost impossible to prove anything with absolute certainty when reconstructing past events; and (ii) the prosecution does not have to do so; or (d) indicate that the jury cannot be satisfied that the accused is guilty if the jury has a reasonable doubt about whether the accused is guilty; or (e) indicate that a reasonable doubt is not an imaginary or fanciful doubt or an unrealistic possibility."

3. [4]

   Over objection, and in accordance with s 64(1)(e), the trial judge's explanation included that "[a] reasonable doubt is not an imaginary or fanciful doubt or an unrealistic possibility". In full, the trial judge's charge included the following explanation of the phrase "proof beyond reasonable doubt" that covered each of the elements of s 64(1): "I want to emphasise again, and I think all counsel have done this, but you can probably never say enough on this topic. I want to emphasise again that under our justice system, people are presumed to be innocent unless and until they are proved guilty. Before you may return a verdict of guilty, the prosecution must satisfy you that each of the accused is guilty of the [charges] in question ... [W]hen you are considering a charge against an accused you must be satisfied that the prosecution has established the charge in question. The accused do not have to prove anything. The prosecution must do this as in satisfy, prove the charge against the accused for each of the charges beyond reasonable doubt. Beyond reasonable doubt is the highest standard of proof that our law demands. It is not enough for the prosecution to prove that the accused is probably guilty or even very likely to be guilty ... It is almost impossible to prove anything with absolute certainty when reconstructing past events and the prosecution does not have to do so. A reasonable doubt is not an imaginary or fanciful doubt or an unrealistic possibility. You cannot be satisfied the accused is guilty if you have a reasonable doubt about whether the accused is guilty. I mentioned to you at the beginning of the trial that these words 'proof beyond reasonable doubt' mean exactly what they say, proof beyond reasonable doubt." (emphasis added)

4. [5]

   Pursuant to a grant of special leave to appeal, the appellant raised two grounds of appeal against his convictions, both of which concerned that explanation of "proof beyond reasonable doubt" given to the jury. Ground one was that the words "a reasonable doubt is not ... an unrealistic possibility" in s 64(1)(e) of the Jury Directions Act are inconsistent with s 13.2(1) of the Code. Ground two was that those words are inconsistent with s 80 of the Constitution, which the appellant contended impliedly guaranteed the standard of proof beyond reasonable doubt for a trial of an indictable Commonwealth offence. The appellant argued that s 64(1)(e), to the extent that it describes a reasonable doubt as "not ... an unrealistic possibility", permits an indication to the jury that "alters, impairs or detracts" from and thus diminishes the criminal standard of proof beyond reasonable doubt, inconsistently with s 13.2 of the Code or s 80 of the Constitution. Accordingly, the appellant submitted, the impugned aspect of s 64(1)(e) is not picked up and applied by s 68(1)(c) of the Judiciary Act; the trial judge was wrong to include that aspect of s 64(1)(e) in his charge to the jury; and the Court of Appeal was wrong to refuse leave to appeal from the appellant's convictions.

5. [6]

   The appellant acknowledged that ground one is dispositive of the appeal because, if it succeeded, he did not need to rely on ground two to obtain the relief sought and, conversely, if ground one failed, then ground two would necessarily fail because of its shared premise that the criminal standard of proof beyond reasonable doubt is diminished by an indication to the jury in accordance with s 64(1)(e).

6. [7]

   For the following reasons, the appeal must be dismissed. In short, s 64(1)(e) does not diminish the standard of proof beyond reasonable doubt. The Court of Appeal correctly held that s 64(1)(e) does not provide for a different standard of proof from s 13.2(1) of the Code, but simply provides for that standard of proof to be explained, and is thus picked up and applied by s 68(1)(c) of the Judiciary Act. Because the trial judge identified the correct standard of proof to the jury, the asserted inconsistency with s 80 of the Constitution does not arise. Section 64(1)(e) explains the criminal standard of proof beyond reasonable doubt

7. [8]

   The parties proceeded, correctly, on the basis that the proper approach to the analysis of a direction given under the Jury Directions Act was to: first, determine whether the text of s 64(1)(e) is picked up by s 68(1); and second, consider the effect of a direction containing that text given in the trial.

8. [9]

   Applying this approach, at the first stage, analysis of the text in s 64(1)(e) is undertaken as a process of ordinary statutory construction, with the words to be understood against the background of their application in a jury trial. If the text is inconsistent with the criminal standard of proof, it is not validly picked up by s 68(1) of the Judiciary Act and consequently cannot be given at any trial of a Commonwealth offence. In that event the question would arise whether the wrongful inclusion of those words in the charge, considered in its entirety, occasioned a substantial miscarriage of justice or other basis for setting aside the conviction. This issue would fall to be addressed in accordance with established principles, although in this case the respondent conceded that, if s 64(1)(e) of the Jury Directions Act was not applicable because it was inconsistent with s 13.2(1) of the Code, then a substantial miscarriage of justice would have resulted from the inclusion of the explanation in the charge to the jury at the trial.

9. [10]

   Consistently with the approach outlined above, whether s 64(1)(e), in permitting an indication to the jury that "a reasonable doubt is not ... an unrealistic possibility", is inconsistent with the criminal standard of proof beyond reasonable doubt in s 13.2 of the Code is a question of statutory construction. The possibility that, in the context of a particular charge to the jury, a direction in conformity with s 64(1)(e) might nevertheless convey a false perception of the basis for deciding whether the prosecution has proven its case, so as to occasion a substantial miscarriage of justice, is not relevant to the question of the meaning of s 64(1)(e).

10. [11]

    The appellant's contention that s 64(1)(e) diminishes the criminal standard of proof, to the extent that it permits a trial judge to indicate to a jury that "a reasonable doubt is not ... an unrealistic possibility", depends upon a decontextualised and implausible interpretation of the words "unrealistic possibility". In a nutshell, the contention was that the plain and ordinary meaning of "unrealistic" includes "improbable" and therefore a jury would always construe an "unrealistic possibility" to include an "improbable event". The contention was not supported by extrinsic materials but relied solely upon the view of Priest JA in the Court of Appeal that, as a matter of ordinary language, an unrealistic possibility "is one that is unreasonable, irrational, illogical, improbable, foolish or similar", in contradistinction to an unreal possibility which his Honour considered to be "one that is absurd, bizarre, fanciful, fantastic, illusory, non-sensical, preposterous or similar". The language of "unreal possibilities" was the subject of this Court's decision in Green v The Queen. There, this Court explained that where defence counsel had suggested to the jury possibilities that were "in truth fantastic or completely unreal", it would be both proper and necessary for the trial judge to instruct the jury that "fantastic and unreal possibilities ought not to be regarded by them as the source of reasonable doubt". The appellant acknowledged that an "unreal possibility" could not preclude a finding of proof beyond reasonable doubt.

11. [12]

    Priest JA allowed that there may be a semantic difference between an "unrealistic" and an "unreal" possibility, "although if one exists, it is finely nuanced". His Honour considered that there was "little or no practical difference between them".

12. [13]

    The comparison between "unreal possibilities", as used in Green, and "an unrealistic possibility", being the language in s 64(1)(e), isolated from its context, does not assist in the proper construction of s 64(1)(e). Section 64(1)(e) permits a trial judge, in an appropriate case, to "indicate that a reasonable doubt is not an imaginary or fanciful doubt or an unrealistic possibility". The provision should be construed in its entirety. As in s 64(1)(b) to (d), the permitted indication is a composite phrase in which the words "unrealistic possibility" take their colour from the reference to "an imaginary or fanciful doubt". Both "fanciful" and "imaginary" have been accepted as appropriate descriptions of circumstances that do not give rise to a "reasonable" doubt. In R v Dookheea, this Court described, as the common law position in relation to explanations of the standard beyond reasonable doubt, that it is permissible, in certain circumstances, to explain that "a reasonable doubt does not include fanciful possibilities". In R v Lifchus, the Supreme Court of Canada's suggested instructions pertaining to proof beyond a reasonable doubt include, relevantly, that "[a] reasonable doubt is not an imaginary or frivolous doubt".

13. [14]

    In the context of that composite phrase, and as a matter of its plain and ordinary meaning, an "unrealistic possibility" is no different in substance to the "fantastic and unreal possibilities" that, as Green explains, should not be regarded as a source of reasonable doubt.

14. [15]

    This interpretation of s 64(1)(e) is further reinforced by the broader context of s 64(1) and the purpose of s 64. Section 64(1)(e) identifies one of five permissible ways in which the phrase "proof beyond reasonable doubt" may be explained. Its evident purpose is to facilitate trial judges explaining the beyond reasonable doubt standard to juries and not to alter, impair or detract from, or otherwise diminish, that standard. Section 64(1) is neither exhaustive of the explanations that a trial judge may give, nor does it mandate that an explanation must be given in line with its five paragraphs.

15. [16]

    More specifically, by indicating what does not constitute a reasonable doubt, s 64(1)(e) is evidently intended to guide jurors away from applying a standard that is inappropriately stringent. Section 64(1)(e) does not seek to define the standard of beyond reasonable doubt but rather to carve out from consideration matters of a character that could not raise a reasonable doubt. Contrary to the appellant's submissions, it does not impermissibly define or control other references to "proof beyond reasonable doubt" in a trial judge's summing up.

16. [17]

    It follows that the Court of Appeal was correct to conclude that there is no inconsistency between s 64(1)(e) of the Jury Directions Act and s 13.2(1) of the Code, with the consequence that s 64(1)(e) is picked up in its entirety by s 68(1)(c) of the Judiciary Act. Ground one fails. The constitutional issue should not be decided

17. [18]

    As s 64(1)(e) does not diminish the criminal standard of proof, the constitutional premise of ground two does not arise for consideration. Because that ground concerns the interpretation of the Constitution, this Court should not decide it having regard to its well-established practice that the Court will not investigate and decide constitutional questions unless it is necessary to do justice in the given case and determine the rights of the parties. Conclusion

18. [19]

    The appeal must be dismissed. Explaining "beyond reasonable doubt" for Commonwealth offences

EDELMAN AND STEWARD JJ.

1. [20]

   In Victoria, the Jury Directions Act 2015 (Vic) generally requires that a trial judge must explain the meaning of the phrase "beyond reasonable doubt". Section 64(1)(e) of the Jury Directions Act permits an explanation of the phrase by a trial judge to contain a statement that indicates "that a reasonable doubt is not an imaginary or fanciful doubt or an unrealistic possibility". In the present case, a statement to that effect was made at the trial of the appellant, Dr Farshchi. The issues on this appeal arise because Dr Farshchi's trial was for Commonwealth offences.

1. [21]

   The questions raised by Dr Farshchi's notice of appeal are whether s 64(1)(e) of the Jury Directions Act cannot apply to Commonwealth offences either because the provision is inconsistent with s 80 of the Constitution or because it is inconsistent with s 13.2 of the Criminal Code (Cth). The former is a question of the jurisdiction of the courts of Victoria. The latter is a question of whether conflict between State and Commonwealth laws precludes State laws being picked up and applied within jurisdiction. The logically anterior question of jurisdiction is whether the explanation contained in the Jury Directions Act is inconsistent with the requirements of a "trial on indictment ... by jury" in s 80 of the Constitution. If there is no inconsistency with s 80 then no different conclusion could be reached in this case in relation to s 13.2 of the Criminal Code.

2. [22]

   At Federation, the essential content of a "trial on indictment ... by jury" in s 80 of the Constitution included (and necessarily still includes) a requirement that the jury be unanimously satisfied of guilt without any reasonable doubt, or an equivalent verbal formulation. But it is not inconsistent with a jury having no reasonable doubt as to guilt for a trial judge to have power in an appropriate case to indicate to a jury "that a reasonable doubt is not an imaginary or fanciful doubt or an unrealistic possibility". The appeal must be dismissed. The inconsistency issue

3. [23]

   Section 63(1) of the Jury Directions Act provides that a trial judge "must give the jury an explanation of the phrase 'proof beyond reasonable doubt' unless there are good reasons for not doing so". That explanation must be given before any evidence is adduced, again unless there are good reasons not to do so. The explanation can be repeated at any time in the trial.

4. [24]

   Section 64 of the Jury Directions Act then provides as follows: "(1) In explaining the phrase 'proof beyond reasonable doubt' under section 63, the trial judge may— (a) refer to— (i) the presumption of innocence; and (ii) the prosecution's obligation to prove that the accused is guilty; or (b) indicate that it is not enough for the prosecution to persuade the jury that the accused is probably guilty or very likely to be guilty; or (c) indicate that— (i) it is almost impossible to prove anything with absolute certainty when reconstructing past events; and (ii) the prosecution does not have to do so; or (d) indicate that the jury cannot be satisfied that the accused is guilty if the jury has a reasonable doubt about whether the accused is guilty; or (e) indicate that a reasonable doubt is not an imaginary or fanciful doubt or an unrealistic possibility. (2) If the trial judge explains the phrase 'proof beyond reasonable doubt' in response to a question asked by the jury as described in section 63(5), the trial judge may adapt the explanation to address the particular question asked."

5. [25]

   The operation of ss 63 and 64 of the Jury Directions Act in federal jurisdiction depends upon s 68 of the Judiciary Act 1903 (Cth). Section 68 of the Judiciary Act "fulfils an important role in ensuring that federal criminal law is administered in each State upon the same footing as State law and avoids the establishment of two independent systems of justice". Relevantly, s 68(2) of the Judiciary Act confers federal jurisdiction on State and Territory courts in "the trial and conviction on indictment" of persons charged with offences against the laws of the Commonwealth and, within that federal jurisdiction, s 68(1) relevantly picks up and requires the application of the laws of a State or Territory respecting "the procedure for ... trial and conviction on indictment" of persons charged with offences against the laws of the Commonwealth. In other words, the starting point is s 68(2), which confers federal jurisdiction, before considering s 68(1), which confers the power within that jurisdiction.

6. [26]

   The conferral of jurisdiction under s 68(2) of the Judiciary Act is made expressly "subject to ... section 80 of the Constitution". Since the consideration of a court's jurisdiction is the "very first duty of any Court", with the trial judge's first duty in this case being to consider the jurisdiction to apply s 64(1)(e) of the Jury Directions Act, the starting point on this appeal is whether, as Dr Farshchi submits, s 64(1)(e) of the Jury Directions Act is inconsistent with s 80 of the Constitution. Contrary to the submissions of the respondent and the Attorney-General for the State of Victoria, intervening, it would be inappropriate in this case for this Court to invoke prudential considerations as a reason to exercise "restraint" to avoid dealing with an anterior jurisdictional issue that has been fully argued.

7. [27]

   Dr Farshchi also submits that s 64(1)(e) of the Jury Directions Act is inconsistent with s 13.2(1) of the Criminal Code, which provides that "[a] legal burden of proof on the prosecution must be discharged beyond reasonable doubt". If such inconsistency exists then s 64(1)(e) of the Jury Directions Act would not be picked up and applied in federal jurisdiction by s 68(1) of the Judiciary Act. However, Dr Farshchi properly accepts that if his ground of appeal concerning s 80 of the Constitution is unsuccessful then his ground of appeal concerning s 13.2 of the Criminal Code also cannot succeed. How the constitutional inconsistency issue arises in this case

8. [28]

   Dr Farshchi was charged on indictment by the Commonwealth Director of Public Prosecutions with two charges of offences contrary to Div 270 of the Criminal Code. The two offences were: (i) causing a person to remain in forced labour; and (ii) conducting a business involving forced labour. Dr Farshchi's wife was charged on the same indictment with offences of: (i) aiding, abetting, counselling or procuring the offence of causing a person to remain in forced labour, and (ii) conducting a business involving forced labour.

9. [29]

   At Dr Farshchi's first trial, the trial judge (Chief Judge Kidd) received submissions from counsel about s 64 of the Jury Directions Act but declined to give any direction under s 64(1)(e) in his Honour's opening remarks to the jury. The jury were later discharged without reaching a verdict.

10. [30]

    Dr Farshchi then faced a second trial. At the conclusion of the second trial, and following submissions again from counsel about s 64 of the Jury Directions Act, the trial judge gave the following direction: "It is almost impossible to prove anything with absolute certainty when reconstructing past events and the prosecution does not have to do so. A reasonable doubt is not an imaginary or fanciful doubt or an unrealistic possibility. You cannot be satisfied the accused is guilty if you have a reasonable doubt about whether the accused is guilty. I mentioned to you at the beginning of the trial that these words 'proof beyond reasonable doubt' mean exactly what they say, proof beyond reasonable doubt."

11. [31]

    That direction was given by the trial judge in the context of a lengthy and careful summing up in which the trial judge: (i) emphasised that the prosecution must prove each of the charges beyond reasonable doubt, which "is the highest standard of proof that our law demands"; (ii) reiterated or applied, at least 15 times in his summing up, words to the effect that "[i]t is only if you are satisfied that the prosecution has proved all the elements of the charge beyond reasonable doubt that you may find the accused guilty of that charge"; (iii) further emphasised, at least twice, that an issue or argument or alternative view of the facts raised by the accused which is consistent with innocence must be excluded by the prosecution beyond reasonable doubt; (iv) gave an example of the application of the standard of beyond reasonable doubt; (v) referred to witnesses whose evidence would have to be accepted beyond reasonable doubt; (vi) explained that if a reasonable view of the facts consistent with innocence could not be excluded beyond reasonable doubt then the jury must acquit; and (vii) explained that the separate consideration of the case against each accused required a separate finding that the prosecution case against each accused had been proved beyond reasonable doubt.

12. [32]

    There could have been no uncertainty in the mind of any juror that the controlling standard to be applied before any conviction could be reached was one of proof of the offences "beyond reasonable doubt".

13. [33]

    Dr Farshchi was found guilty by the jury of both offences. The trial judge sentenced him to a total effective term of three years and six months' imprisonment with a non-parole period of 18 months. Dr Farshchi appealed from his conviction and sentence to the Court of Appeal of the Supreme Court of Victoria.

14. [34]

    One of Dr Farshchi's grounds of appeal from conviction was that the trial judge erred by "directing the jury that a reasonable doubt is not an unrealistic possibility". Dr Farshchi submitted that such direction was inconsistent with s 80 of the Constitution and s 13.2(1) of the Criminal Code and therefore could not be picked up and applied in federal jurisdiction. The Court of Appeal (Priest JA, with whom Niall and Taylor JJA agreed) held that there was no inconsistency between s 64(1)(e) of the Jury Directions Act and either s 80 of the Constitution or s 13.2(1) of the Criminal Code because s 64(1)(e) "does not provide for a different standard of proof" and "does not diminish the standard of proof" but "simply provides for that standard of proof to be explained" and "permits that standard to be explained to a jury". As explained below, that reasoning was correct. The essential meaning of "trial on indictment ... by jury" in s 80 of the Constitution

15. [35]

    In the interpretation of constitutional phrases, it should be "beyond controversy" or "beyond question" that the "traditional[]" doctrine and the "current doctrine of [this] Court" are that the "essential characteristics" or "essential meaning" of a phrase, its "connotation", expressed as a "concept" at the right level of generality by having regard to constitutional purpose and context, cannot change from the time of Federation in 1901.

16. [36]

    In R v Snow, Griffith CJ described a trial by jury as an institution adopted in s 80 "with all that was connoted by that phrase in constitutional law and in the common law of England". The connotation (that is, "the essential features") of the constitutional institution of "trial by jury" thus has "what might be called a constitutionally entrenched status", determined by reference to the (unchanged) "purpose which s 80 was intended to serve" at a level of generality that permits the evolution of the institution. The question of the essential meaning of the phrase "trial on indictment ... by jury" in s 80 of the Constitution arose in Cheatle v The Queen. Cheatle v The Queen

17. [37]

    In Cheatle, the appellants were convicted of a Commonwealth offence by a majority verdict of a jury. Section 57(1) of the Juries Act 1927 (SA) authorised that majority verdict by a South Australian court constituted by a judge and jury but, as the matter was in federal jurisdiction, the South Australian courts could only have jurisdiction if it had been conferred by s 68 of the Judiciary Act. This Court unanimously held that s 68(2) of the Judiciary Act permitted the vesting of federal jurisdiction in a South Australian court for criminal trials otherwise than by a majority verdict. A majority verdict on a criminal trial on indictment in federal jurisdiction was held to be inconsistent with s 80 of the Constitution. Although the Court in Cheatle primarily focused upon criminal trials by jury generally, the specific institution about which s 80 of the Constitution is concerned is a smaller subset of such trials, namely the "trial on indictment ... by jury".

18. [38]

    In considering the essential features of the institution of criminal trial by jury before 1901, the Court observed that some features of the institution at that time, such as the exclusion of women and the existence of property qualifications, existed at too low a level of generality to be essential to the meaning of a provision designed to endure: "[t]he relevant essential feature ... was, and is, that the jury be a body of persons representative of the wider community". With the essential feature of representativeness expressed at the higher level of generality, although the perception in 1901 might have been "that the only true representatives of the wider community were men of property", in contemporary Australia "the exclusion of females and unpropertied persons would itself be inconsistent" with the essential feature of representativeness.

19. [39]

    This Court in Cheatle was not, however, concerned with the essential feature of the representativeness of the decision-making body in a "trial on indictment ... by jury". The issue was whether unanimity was an essential feature. After a meticulous examination of the history of criminal trials by jury, particularly in the nineteenth century, this Court concluded that "in 1900, it was an essential feature of the institution [of criminal trial by jury] that an accused person could not be convicted otherwise than by the agreement or consensus of all the jurors". This Court explained the reason that unanimity was an essential feature of a criminal trial by jury—part of the connotation, not merely the denotation or application of the phrase—as follows: "the common law's insistence upon unanimity reflects a fundamental thesis of our criminal law, namely, that a person accused of a crime should be given the benefit of any reasonable doubt". The Court referred to a decision of the Supreme Court of Canada in which five members of that Court held that the need for unanimity upon any charge "flows from the proposition that a verdict stands for guilt, beyond a reasonable doubt, of that for which the accused has been charged".

20. [40]

    In reaching the conclusion that, at Federation, unanimity was an essential feature of a criminal trial by jury, this Court also addressed a submission that at Federation some of the Australian colonies had provided in legislation for majority verdicts of civil juries. The Court explained that the requirement of unanimity as an essential feature in criminal trials was different from civil trials: "the requirement of unanimity in the case of a criminal jury conforms with the fundamental thesis of the criminal law that a person should not be convicted of a criminal offence if there is any reasonable doubt of his or her guilt".

21. [41]

    In short, a central, and repeated, part of the reasoning of this Court in Cheatle depended upon the proposition that a "fundamental thesis" of the criminal law at Federation was the lack of reasonable doubt by a jury which convicts an accused person. The Court thus considered that a lack of reasonable doubt of guilt by a convicting jury was an essential feature of a criminal trial; indeed, it was the foundation for the further essential feature of unanimity. This also seems to have been the assumption of Gleeson CJ and McHugh J in in Brownlee v The Queen in the course of considering the extension of the reasoning in Cheatle to a legislative provision permitting the reduction in the number of jurors below 12: such a system was held to be consistent with "the prosecution's obligation to prove its case beyond reasonable doubt".

22. [42]

    It may be that this reasoning in Cheatle was part of the ratio decidendi of this Court, which ought to be followed in this case in the absence of an application to re-open Cheatle. But it is unnecessary to consider that question because the reasoning in Cheatle that treated a standard at the level of beyond reasonable doubt in 1901 as an essential feature of a "trial on indictment ... by jury" is plainly correct. The reasoning on "beyond reasonable doubt" in Cheatle was correct

23. [43]

    In R v Dookheea, this Court considered the different theories of why a standard of satisfaction beyond reasonable doubt emerged in the eighteenth century; the most likely (which, to some degree subsumed the others) was that it was introduced "simply as a means of expressing more clearly the then well-settled test of satisfaction as a matter of conscience or moral certainty". The verbal formulation, "beyond reasonable doubt", came to dominate as the expression of a standard of proof that was "somewhere between probable suspicion and complete certainty". At the time of Federation in Australia, that verbal formulation, or versions of it, were well established in the United Kingdom and the United States, as well as the Australian colonies.

24. [44]

    Leading texts in the United Kingdom in the latter half of the nineteenth century all expressed the standard as one beyond reasonable doubt. Thus, Starkie described the level of satisfaction of the jury, before conviction, as "exclusion of every reasonable doubt", the "high degree of probability as amounts to moral certainty" and "moral certainty to the exclusion of every reasonable doubt". Taylor wrote of the satisfaction of the jury to a degree of "moral certainty" from "evidence which excludes from their minds all reasonable doubt". And Stephen, reiterating remarks from his Digest, wrote of the entitlement of an accused person to the benefit of "reasonable doubt", noting that the expression "moral certainty" was as vague as "no reasonable doubt".

25. [45]

    In the United States, also at the end of the nineteenth century, Thayer wrote that "[a]lways and everywhere great emphasis was placed on the rule that in criminal cases there can be no conviction unless guilt is established with very great clearness—as we say nowadays, beyond reasonable doubt". That standard was reiterated in a series of decisions of the Supreme Court of the United States throughout the 1890s. In 1905, Wigmore wrote of the rule in criminal law that has "grown up that the persuasion must be beyond a reasonable doubt".

26. [46]

    In Australia, in the 1880s and 1890s, colonial juries were regularly instructed to apply a standard of beyond reasonable, or rational, doubt. In 1893, Windeyer J quoted from the well-known remarks of Abbott CJ, saying that although "the certainty of mathematical demonstration cannot be required or expected", the unanimous judgment and conscience of the jury requires that "where reasonable doubt is entertained it is their duty to acquit". The same standard was emphasised in another decision of the Supreme Court of New South Wales that year by Windeyer J, as well as Stephen J and Manning J.

27. [47]

    These historical sources unequivocally support the widespread recognition at the time of Federation of a requirement for conviction that a jury be satisfied beyond reasonable doubt. The concept of a high standard of satisfaction, expressed as "beyond reasonable doubt", was part of the essential meaning of a "trial by jury"; as recognised in Cheatle, it was a core feature of the institution intertwined with unanimity. That high standard is also consistent with the purpose of s 80, discussed below, of preserving democratic participation in an institution of government, subject to Parliament's decision as to which offences will fall to be determined by that institution.

28. [48]

    Nevertheless, the essential meaning of "trial by jury" at the right level of generality, the "concept" involved, does not constitutionally entrench a semantic fundamentalism. It is the requirement of a particularly high standard of satisfaction by which guilt is assessed rather than a requirement that particular words be uttered as a ritual incantation. Indeed, a high standard of satisfaction was a central institutional feature of trials by jury on indictment at the time of Federation, but the precise words of that standard were not. Despite the phrase "beyond reasonable doubt" being in widespread use at that time, Wigmore observed that it remained an "elusive and undefinable state of mind", which was not necessarily any clearer than earlier phrases, including a lack of "rational and well-grounded doubt". The concept which is part of the essential meaning of "trial by jury" in s 80 is a standard equivalent to "beyond reasonable doubt". Whether other, equivalent, words can capture or elucidate that standard in language that is more easily comprehensible in contemporary Australia is addressed later in these reasons. Satisfaction beyond reasonable doubt and parliamentary choice

29. [49]

    The respondent pointed to authority of this Court to the effect that it is for the Commonwealth Parliament to determine whether any class of offence can be tried summarily, thus avoiding s 80 which applies only to indictable offences. The respondent sought to rely on that authority to deny a "liberal" approach, and to support a sparse approach, to the identification of the essential features of s 80, treating representativeness, but not satisfaction beyond reasonable doubt, as an essential feature. The line of authority to which the respondent pointed can be accepted for the proposition that the Commonwealth Parliament can avoid the effect of s 80 by making an offence one which is not tried on indictment. That line of authority is based on the history of s 80. But it says nothing about the essential features of a trial by jury.

30. [50]

    As McHugh J has meticulously explained, s 80 of the Constitution substantively departed from Art III of the Constitution of the United States when an initial draft by Inglis Clark guaranteeing a jury trial for "all crimes cognisable by any Court" was later amended by Griffith to confine the guarantee to indictable Commonwealth offences. As a matter of history: "it is clear that, from the beginning, the makers of our Constitution were concerned to avoid the rigidity of the United States counterpart. They wanted the Parliament, rather than the Constitution, to determine what offences against the laws of the Commonwealth should be tried by jury."

31. [51]

    This history shows that although s 80 was "intended to be part of the structure of government", with democratic participation in the system of criminal justice, s 80 was not "a strong guarantee of trial by jury" at an individual level. Rather, just as "[t]he architects of the Constitution placed great faith in the capacity of the elected senators and members to design statute law for a system of representative self‑government", so too was the intention concerning s 80 to "allow the federal government to avoid its scope where convenient". This conclusion, however, says nothing about the content of the institution of trial by jury in circumstances where the Commonwealth Parliament has prescribed that an offence is indictable. Unhelpful analogies and an unhelpful hypothetical

32. [52]

    The respondent relied upon analogies such as: (i) the onus of proof on the prosecution, a "mere matter of procedure" which was said not to be an essential feature of trial on indictment by jury; and (ii) the privilege against self-incrimination, a rule "of evidence [rather] than one relating to trial by jury". The respondent also sought to invoke a hypothetical challenge to Commonwealth laws that specify a lower standard of proof for one element of the offence.

33. [53]

    There is little assistance to be gained in attempting to draw comparisons between the privilege against self-incrimination, which this Court has treated as an inessential feature of the institution of trial on indictment by jury, and the degree of satisfaction about guilt that a jury must reach to convict. As Griffith CJ said in 1909, that privilege "was introduced into English law long after the institution of trial by jury ... [and] its application has frequently been excluded by Statutes in the case of indictable offences".

34. [54]

    It is also unnecessary for this appeal to consider whether, or the extent to which, the onus of proof for an offence, or some element of it, can be separated from the degree of satisfaction as to guilt that a jury must reach to convict as an essential feature of trial on indictment by jury. For instance, it might be possible to conclude that it is consistent with s 80 for an accused person to bear the onus of proving a defence (a label which can be used, at least, to describe justifications and excuses). Certainly, there was a long history before Federation of defences to indictable crimes for which an accused person bore either an evidential or a substantive onus. Further, in the United States where "it has long been assumed that proof of a criminal charge beyond a reasonable doubt is constitutionally required", and where the Constitution of the United States requires that "[t]he government must prove beyond a reasonable doubt every element of a charged offense", a majority of the Supreme Court of the United States nevertheless upheld the validity of a law requiring an accused person to establish insanity beyond reasonable doubt.

35. [55]

    For the same reason, it is also unnecessary to decide in this case whether it is inconsistent with s 80 of the Constitution for a single element of a Commonwealth indictable offence to have a lower standard of proof than a standard beyond reasonable doubt. The respondent pointed to provisions such as s 31(1) of the Financial Transaction Reports Act 1988 (Cth), which included the requirement that having regard to a number of matters "it would be reasonable to conclude" that transactions were conducted for a particular sole or dominant contravening purpose. One view of that part of s 31(1) is that "the words 'it would be reasonable to conclude' go to the standard of proof to be applied" and form part of the fault element of the offence. It may be arguable that such a variation of the standard of proof is consistent with the conclusion that the "verdict stands for guilt, beyond a reasonable doubt, of that for which the accused has been charged". But that question does not arise in this case, there was no substantial argument on this issue, and the point is unnecessary to decide. Is s 64(1)(e) of the Jury Directions Act inconsistent with a requirement of proof beyond reasonable doubt? The constitutional question as it arises on this appeal

36. [56]

    For the reasons above, an essential feature of trial on indictment by jury, required for Commonwealth offences by s 80 of the Constitution, is that "a person should not be convicted of a criminal offence if there is any reasonable doubt of his or her guilt". Section 68(2) of the Judiciary Act confers no jurisdiction on a court of a State or Territory where a jury is purportedly empowered to convict despite having a reasonable doubt as to guilt. Section 13.2(1) of the Criminal Code can have no lesser effect and s 13.2(2) cannot apply to the extent that it detracts from that requirement of s 80.

37. [57]

    Dr Farshchi accepted that the dispositive issue on this appeal was whether s 64(1)(e) of the Jury Directions Act contained a standard of satisfaction other than "beyond reasonable doubt". In the expression in s 64(1)(e) that "a reasonable doubt is not an imaginary or fanciful doubt or an unrealistic possibility", Dr Farshchi fastened upon the words "an unrealistic possibility". He submitted that in some circumstances an unrealistic possibility could nevertheless be a reasonable doubt. He gave examples from ordinary language use of "an unrealistic possibility" where a reasonable doubt might still be held: "[a] political party might have an unrealistic possibility of winning an election; a football team an unrealistic possibility of winning a game". As Dr Farshchi observed, the Court of Appeal itself had recognised that the list of synonyms for an "unrealistic possibility" included a possibility that is "improbable". He illustrated this concern by a graphic example where a doubt might arise from a circumstance that is "unrealistic" or "improbable" yet that doubt might nevertheless be a reasonable doubt about guilt: "25 prisoners are in a prison yard when 24 of them attack the prison guards. The remaining prisoner tries to stop the attack. There is no available evidence distinguishing the innocent prisoner from the rest. Local prosecutors randomly select one of the prisoners and bring him to trial for participating in the attack."

38. [58]

    Dr Farshchi and the Court of Appeal are correct that "unrealistic" is a term that, in some contexts, could extend to circumstances where a reasonable doubt existed. An accurate assessment in any particular instance of the likelihood that "unrealistic" would have such a denotation may require a study of applied linguistics. But, in the context of this case, it can be confidently concluded that "unrealistic" would not have such a denotation. As explained below, "unrealistic" was used as an explanation, and not anything like a definition, of "beyond reasonable doubt". It was used only as a negative or exclusionary explanation to clarify or remove uncertainty. And it was used as part of a compound expression where the denotations of the other words were narrower than a reasonable doubt. The difference between: (i) definition; and (ii) explanation short of definition

39. [59]

    Although no clear line can be drawn between definition and explanation, there can sometimes be a difference between a definition of a phrase and an explanation of a phrase. A definition of a phrase, in the true sense of definition, is controlling. In ordinary language if a person is asked to define what they mean by a word or phrase, the usual expectation is that the definition can be substituted for the word or phrase and then interpreted in the context in which the word or phrase was spoken. So too, in statutory interpretation, even where definitional words are words of potential extension or confinement, "the only proper ... course is to read the words of the definition into the substantive enactment and then construe the substantive enactment—in its extended or confined sense—in its context[] and bearing in mind its purpose and the mischief that it was designed to overcome".

40. [60]

    Explanation of a term, where the explanation is short of a true definition (in the sense described above), can be different. Although some explanations of a term have been described as non-exhaustive "inclusive definitions", where the term being explained remains the controlling concept to be applied the explanations are not true definitions. Since the focus remains upon the controlling concept, the explanation is less likely to make a significant change to the concept being applied than a true definition. Commonly, the explanation will remove doubt about the boundaries of a term. For instance, whether in ordinary language or contained in a statute, an explanation might be given to remove doubt that a reference to an "aeroplane" includes a "glider" and excludes a "hot air balloon". Nevertheless, there are instances where an explanation can expand or contract the meaning that the term would otherwise have in its context. The more that an explanation does so, and therefore the more that the explanation alters the contextual meaning of the word or concept being defined, the more that the explanation will operate like a true definition. Explaining "beyond reasonable doubt"

41. [61]

    Although he considered the phrase to be "elusive" and "undefinable", Wigmore wrote that the expression "beyond reasonable doubt" was "invented by the common-law judges for the very reason that it was capable of being understood and applied" by juries. As Othello remarked, "so prove it, that the probation bear no hinge nor loop to hang a doubt on". Wigmore thought that any detailed elaboration of the concept "tends to become one of mere words, and the actual effect upon the jury, instead of being enlightenment, is rather confusion, or, at the least, a continued incomprehension".

42. [62]

    The same view was historically taken by this Court. Barton ACJ described the phrase "reasonable doubt" as one which is "in ordinary and common use" and "a well understood expression". Dixon CJ wrote of the phrase "satisfied beyond reasonable doubt" that it was "used by ordinary people and is understood well enough ... in the community" and that "attempts to substitute other expressions ... have never prospered". Windeyer J cited the concerns of Wigmore and added that "[t]he expression proof beyond a doubt conveys a meaning without lawyers' elaborations". Kitto J referred to the "danger that invests an attempt to explain what 'reasonable' means". And Barwick CJ, McTiernan and Owen JJ described these remarks and others as "some of many admonitions to judges presiding over criminal trials to adhere to and not to attempt needless explanations of the classical statement of the nature of the onus of proof resting on the Crown".

43. [63]

    The consequence of this cautious approach in this country has been for trial judges generally to offer only the simplest explanations of "beyond reasonable doubt", if at all. Some explanations provide little more than verbal rearrangement of the phrase: "the accused must be given the benefit of any doubt which the jury considers reasonable"; "[a] reasonable doubt is a doubt which the particular jury entertain in the circumstances. [Jurors] themselves set the standard of what is reasonable in the circumstances." Other simple explanations, sometimes given where a trial judge thinks that the jury might be "influenced by advocacy" to "conjure up mere chimeras of doubt", are that "for a doubt to stand in the way of a conviction of guilt it must be a real doubt and a reasonable doubt—a doubt which after a full and fair consideration of the evidence the jury really on reasonable grounds entertain". Jury comprehension is "scarcely advanced" by such explanations.

44. [64]

    Language is not static. Even if the expression "beyond reasonable doubt" were once well understood, this may no longer be the case. In 1994, in the United States, Ginsburg J referred to studies of jury behaviour that concluded that without definition of the term, "jurors are often confused about the meaning of reasonable doubt". In 1999, the New Zealand Law Commission published its findings from a study of jurors which showed that jurors generally thought of the standard in terms of percentages ranging from 50 per cent to 100 per cent certainty. A widely cited, peer-reviewed, study by the New South Wales Bureau of Crime Statistics and Research which surveyed around 1,200 jurors found a wide range of views as to the level of satisfaction about guilt that was required: 55.4 per cent thought that the phrase "beyond reasonable doubt" meant that they needed to be "sure"; 22.9 per cent thought that they needed to be "almost sure"; 11.6 per cent thought that guilt needed to be "very likely"; and 10.1 per cent thought that guilt needed to be "pretty likely". Survey evidence in Queensland, albeit with a small sample size, has suggested that one of the three leading hindrances seen by juries to the performance of their duties was the meaning of the phrase proof "beyond reasonable doubt".

45. [65]

    Perhaps prompted by similar concerns, this Court has twice observed that the historical antipathy in Australia to any substantial explanation of the expression "beyond reasonable doubt" is "an extreme and exceptional stand" which "has not been shared elsewhere". In 1994, in the Supreme Court of the United States, Ginsburg J supported a instruction proposed by the Federal Judicial Center which explained "beyond reasonable doubt" with expressions such as "firmly convinced" and contrasted the standard with "a real possibility" that the accused is not guilty.

46. [66]

    In 1997, in the Supreme Court of Canada, Cory J (with whom Lamer CJ, Sopinka, McLachlin, Iacobucci and Major JJ joined) endorsed the prevalent practice in Canada of explaining the meaning of "beyond reasonable doubt" due to the "fundamental importance that jurors fully understand the nature of the burden of proof that the law requires them to apply". Part of the proposed direction, which formed the basis of the model jury instruction by the Canadian Judicial Council, and has been endorsed in broad terms in New Zealand, included the following: "A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence. Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt. On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high. In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt."

47. [67]

    The courts of England and Wales have gone further than mere explanation and have defined the expression "beyond reasonable doubt" with a new controlling standard of being "sure": "judges do not usually use the formula 'beyond reasonable doubt', but the standard remains the same". An early endorsement of the language of being "sure" was made by Lord Goddard CJ, who apparently thought that a standard of being "reasonably satisfied" would be sufficient. The definitional direction, using "sure", has prompted jurors to ask, "[h]ow sure do we have to be? Do we have to be 100% with no doubt? Would 99% be acceptable for example?" The use of "sure" has also been the subject of strong academic criticism and the observation by six Justices of the Supreme Court of Canada that it is an instruction that, standing alone, is "both insufficient and potentially misleading". And more recently, the Supreme Court of the United Kingdom has reverted to the traditional language of "beyond reasonable doubt" in describing the standard of proof. The explanation authorised by s 64(1)(e)

48. [68]

    The reform in ss 63 and 64 introduced by the Jury Directions Act was a response to a 2009 report by the Victorian Law Reform Commission and a consequent review by the Victorian Department of Justice. In the course of recommending a further reform to s 63 in a 2021 report, the Victorian Law Reform Commission, relying upon literature that discussed some of the studies mentioned above, reasoned that "[j]urors can find it hard to understand what 'beyond reasonable doubt' means" and referred to a study that had concluded that explanations about the meaning of "beyond reasonable doubt" led to the phrase being "more appropriately understood and applied" by jurors. The Victorian Department of Justice reasoned in a similar fashion but referred to approaches that substitute the expression "beyond reasonable doubt" with "sure", expressing the concern that "these approaches simply substitute one definition for another and do not provide any greater assistance in understanding the meaning of proof beyond reasonable doubt".

49. [69]

    The explanation of "beyond reasonable doubt" that is authorised by s 64(1) is modest. None of the matters in s 64(1) that the trial judge can "refer to" or "indicate" to the jury in explaining the phrase "proof beyond reasonable doubt" purports to be a definition of "beyond reasonable doubt". The criticised expression "sure" is not used. And even the impugned explanation in s 64(1)(e) is only a negative explanation, pointing to matters that will fall outside the concept.

50. [70]

    Further, whether or not s 64(1)(e) authorises a direction that refers only to an "unrealistic possibility", the authorisation in s 64(1)(e) is, at least, for the use of a compound expression, which was the direction given by the trial judge. The compound expression is concerned with the whole collocation "an imaginary or fanciful doubt or an unrealistic possibility". The scope of the term "unrealistic possibility" is thus coloured by the notions of an "imaginary doubt" or a "fanciful doubt", which are not reasonable doubts.

51. [71]

    Finally, the explanation authorised by s 64(1)(e) is optional. As the opening words of s 64(1) make clear, it is an explanation that the trial judge "may" give. A trial judge should not give such an explanation if the context in which the explanation is given might give rise to confusion or might suggest a permissible application of a probabilistic standard incompatible with a standard of beyond reasonable doubt. The context in this case, for example, and the terms of the trial judge's direction concerning the controlling concept of beyond reasonable doubt would not have caused such confusion or suggested the permissibility of such an application.

52. [72]

    Ultimately, therefore, Dr Farshchi's submission should be rejected for the reason given by the Court of Appeal: s 64(1)(e) provides for the standard of proof beyond reasonable doubt to be explained; it does not provide a different standard of proof and does not alter the boundaries of the standard of proof. Conclusion

53. [73]

    The appeal must be dismissed. The determinative question

JAGOT J.

1. [74]

   The determinative question in this appeal is whether ss 63(1) and 64(1)(e) of the Jury Directions Act 2015 (Vic), in part, are inconsistent with s 13.2(1) of the Criminal Code (Cth). Section 63(1) of the Jury Directions Act provides that "[t]he trial judge must give the jury an explanation of the phrase 'proof beyond reasonable doubt' unless there are good reasons for not doing so". Section 64(1) of the Jury Directions Act provides that "[i]n explaining the phrase 'proof beyond reasonable doubt' under section 63, the trial judge may" do one or other of the matters specified in s 64(1)(a)-(e). By s 64(1)(e) of that Act one of the matters the trial judge may do in explaining the phrase "proof beyond reasonable doubt" to the jury is "indicate that a reasonable doubt is not an imaginary or fanciful doubt or an unrealistic possibility".

1. [75]

   According to the appellant, insofar as s 64(1)(e) authorises a trial judge in explaining the phrase "proof beyond reasonable doubt" as required by s 63(1) of that Act to indicate to a jury in a criminal trial that "a reasonable doubt is not ... an unrealistic possibility", by reason of the inclusion of the words "or an unrealistic possibility", the provisions are inconsistent with, in the sense of detracting from, s 13.2(1) of the Criminal Code which provides that a "legal burden of proof on the prosecution must be discharged beyond reasonable doubt". That is, the appellant contends that the provisions enable a trial judge to instruct a jury that a standard of proof less than the standard of "proof beyond reasonable doubt" applies in a criminal trial. This is ground one of the appellant's appeal.

2. [76]

   If the answer to the determinative question is "yes", the condition in s 68(1)(c) of the Judiciary Act 1903 (Cth) to the application of s 64(1)(e) in the trial of the appellant, that the "laws of a State ... respecting the ... procedure for [a person's] trial and conviction on indictment ... apply and be applied so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth in respect of whom jurisdiction is conferred on the several courts of that State" by s 68, would not be satisfied. In that event, the appellant's trial in the County Court of Victoria before a jury in respect of offences against Commonwealth law may have miscarried because the trial judge gave directions to the jury in accordance with ss 63(1) and 64(1) of the Jury Directions Act including s 64(1)(e) by explaining that, in the phrase "proof beyond reasonable doubt", "a reasonable doubt is not an imaginary or fanciful doubt or an unrealistic possibility".

3. [77]

   If the answer to the determinative question is "no", s 68(1) of the Judiciary Act operated in accordance with its terms to apply s 64(1)(e) of the Jury Directions Act to the appellant's trial. In that event, the appellant's trial in the County Court of Victoria before a jury could not have miscarried because the trial judge gave directions to the jury in accordance with ss 63(1) and 64(1) of the Jury Directions Act including s 64(1)(e). Nor could the appellant's second ground of appeal – that s 64(1)(e) of the Jury Directions Act, insofar as it includes the words "or an unrealistic possibility", is inconsistent with s 80 of the Constitution (the "trial on indictment of any offence against any law of the Commonwealth shall be by jury ... ") – arise for consideration. That is, if s 64(1)(e) of the Jury Directions Act insofar as it includes the words "or an unrealistic possibility" is not inconsistent with the standard of proof of beyond reasonable doubt specified in s 13.2(1) of the Criminal Code for trials of Commonwealth offences, it also cannot be inconsistent with s 80 of the Constitution requiring the trial of Commonwealth offences to be by jury.

4. [78]

   For the following reasons the determinative question is to be answered "no". The rejection of ground one relating to the alleged inconsistency of that part of s 64(1)(e) of the Jury Directions Act referring to "or an unrealistic possibility" and s 13.2(1) of the Criminal Code is sufficient to require rejection of the appeal. Accordingly, no circumstance arises in which ground two of the appeal is to be considered. A short answer to the determinative question

5. [79]

   The appellant accepted that if s 64(1)(e) of the Jury Directions Act had referred to an "unreal possibility", rather than an "unrealistic possibility", there would be no inconsistency between s 64(1)(e) and s 13.2(1) of the Criminal Code. According to the appellant, as a matter of statutory construction, an "unreal possibility" means an "imaginary" or "fanciful" possibility as that is how the intended audience, a jury, would understand the word "unreal" in context. In contrast, the appellant argued, as a matter of statutory construction, an "unrealistic possibility" includes an "improbable possibility" as that is how the intended audience, a jury, would understand the word "unrealistic" in context. Because an "improbable possibility" may nevertheless involve a "reasonable doubt", according to the appellant, the reference in s 64(1)(e) to an "unrealistic possibility" necessarily and impermissibly purports to authorise a trial judge to instruct a jury that they may apply a standard of proof less than the criminal standard required by s 13.2(1) of the Criminal Code of proof "beyond reasonable doubt".

6. [80]

   Taking into account that the statutory context of s 64(1)(e) of the Jury Directions Act is, as s 63(1) of that Act provides, the requirement that a "trial judge must give the jury an explanation of the phrase 'proof beyond reasonable doubt' unless there are good reasons for not doing so", it is necessary to give the language of s 64(1)(e) its ordinary grammatical meaning recognising that: (1) the language of s 64(1) is permissive ("the trial judge may ... "), which is reinforced by the terms of both s 63(8) ("[n]othing in this section limits any other power of the trial judge to give the jury an explanation of the phrase 'proof beyond reasonable doubt'") and s 64(2) (permitting the trial judge to adapt the explanation to address a particular question asked by the jury); (2) the language of s 64(1) is disjunctive in that each of (a) to (e) of s 64(1) is separated by "or", indicating that a trial judge may give any one or more of the explanations in those provisions); and (3) while the better view is that s 64(1)(e) constitutes a composite phrase, the language of that provision is both disjunctive (in that it says the trial judge may "indicate that a reasonable doubt is not an imaginary or fanciful doubt or an unrealistic possibility", whereas s 64(1)(a) and (c) use the conjunctive "and") and inexplicit (in that it says that in "explaining the phrase 'proof beyond reasonable doubt'" the trial judge may "indicate that ... ").

7. [81]

   In these circumstances, it is necessary to test the appellant's case of inconsistency between the Jury Directions Act and the Criminal Code on the basis that a trial judge would not necessarily err by explaining the phrase "proof beyond reasonable doubt" by indicating only that a "reasonable doubt is not an unreal possibility" but would (and, in this case, did) err by explaining the phrase "proof beyond reasonable doubt" by indicating that a "reasonable doubt is not an unrealistic possibility".

8. [82]

   Contrary to the appellant's case, there is no material distinction between a statutory authority of a trial judge to explain the phrase "proof beyond reasonable doubt" to a jury by indicating that a "reasonable doubt is not an unreal possibility" or by indicating a "reasonable doubt is not an unrealistic possibility". A jury could not permissibly take the former explanation to exclude and the latter explanation to include mere improbable possibilities.

9. [83]

   Importantly, the hypothesised context in which the statutory language is to be construed is a trial judge giving to a jury "an explanation of the phrase 'proof beyond reasonable doubt'" in a criminal trial. A jury is taken to know that the thing to be proved beyond reasonable doubt is the criminal charge which, if proved, would have serious consequences for the accused including a potential fine and imprisonment. In the hypothesised context of a trial judge explaining to a jury in a criminal trial the phrase "proof beyond reasonable doubt", a jury could not and, indeed, would not attribute to either "an unreal possibility" or "an unrealistic possibility" a meaning of a possibility that is merely improbable or unlikely.

10. [84]

    That Priest JA in the Supreme Court of Victoria, Court of Appeal, listed one of the meanings of an "unrealistic possibility" as an "improbable" possibility and did not list that as a potential meaning of an "unreal possibility", albeit that his Honour also (and rightly) concluded that "there [was] little or no practical difference between" the two, is irrelevant. The appellant's purported permissible adjective, "unreal", in the relevant hypothesised context, means simply "not real", so that an "unreal possibility" is a possibility that is "not real". The appellant's purported impermissible adjective, "unrealistic", being the word "unreal" with the suffix "-istic", in the same relevant hypothesised context, means simply a possibility that has the character or quality of being "not real". That is, within s 64(1)(e), a possibility that has the character or quality of being "not real" is not a reasonable doubt. Accordingly, by reason of ss 63(1) and 64(1)(e) of the Jury Directions Act, a trial judge explaining to a jury that the prosecution must prove the offence charged "beyond reasonable doubt" does not err merely by reason of explaining that, in the phrase "proof beyond reasonable doubt", a reasonable doubt is not an "unrealistic possibility". A further answer to the determinative question

11. [85]

    Even if the appellant had not accepted that in explaining the phrase "beyond reasonable doubt" to a jury as required by s 63(1) of the Jury Directions Act a trial judge indicating that a reasonable doubt is not an "unreal possibility" would involve no inconsistency with s 13.2(1) of the Criminal Code, the appellant would have failed in the appeal.

12. [86]

    As discussed, s 64(1)(e) of the Jury Directions Act does not operate in a vacuum. In every case where the elements of an offence must be proved "beyond reasonable doubt" s 63(1) of the Jury Directions Act requires the trial judge to explain that phrase ("unless there are good reasons for not doing so") and the Jury Directions Act authorises the trial judge to give that explanation in accordance with s 64(1). That being the context of s 64(1)(e), the proper construction of the words "indicate that a reasonable doubt is not ... an unrealistic possibility" does not include a mere improbable possibility. That is, nothing in s 64(1)(e) authorises a trial judge to "indicate" that a "reasonable doubt is not ... an improbable possibility". Nor, in being instructed that a "reasonable doubt is not ... an unrealistic possibility", is a jury permitted to interpret that instruction as meaning a "reasonable doubt is not ... an improbable possibility". A jury that did so interpret the instruction would have misunderstood the instruction. Finally, and as explained above, instructed in context, a jury would not so misunderstand the instruction. Other observations

13. [87]

    The other concluding observations which should be made are that ss 63 and 64 of the Jury Directions Act operate against the background of the one common law of Australia. In contrast with other common law jurisdictions, this Court has consistently expressed the view that, in the ordinary course of a criminal trial, trial judges should not attempt to explain the phrase "proof beyond reasonable doubt" to a jury lest the explanation give rise to a miscarriage of justice. Accordingly, it has been said that: a judge "embarks on a dangerous sea if he attempts to define with precision a term which is in ordinary and common use with relation to this subject matter, and which is usually stated to a jury ... as a well understood expression"; "the danger that invests an attempt to explain what 'reasonable' means is that the attempt not only may prove unhelpful but may obscure the vital point that the accused must be given the benefit of any doubt which the jury considers reasonable"; and "it is a mistake to depart from the time-honoured formula [of 'proof beyond reasonable doubt']. It is ... used by ordinary people and is understood well enough by the average man in the community"; and a "reasonable doubt is a doubt which the particular jury entertain[s] in the circumstances. Jurymen themselves set the standard of what is reasonable in the circumstances."

14. [88]

    More recently, this Court explained that "[a]s the authority of this Court stands, it is generally speaking undesirable for a trial judge to direct a jury in terms which contrast proof beyond reasonable doubt with proof beyond any doubt". In so explaining the Court observed that in Darkan v The Queen, "the majority remarked that the stand which this Court has taken against a trial judge attempting to explain to a jury what is meant by 'beyond reasonable doubt' is 'an extreme and exceptional stand' which 'has not been shared elsewhere'". Further, the Court observed that "[t]oday, views might reasonably differ as to whether 'proof beyond reasonable doubt' is a well-understood expression in ordinary and common use with relation to the subject matter".

15. [89]

    In enacting the Jury Directions Act it is apparent that the Victorian Parliament shared the same reservation about the extent to which members of a jury would understand the phrase "proof beyond reasonable doubt" without assistance from a trial judge. As a result of that legislation, it can no longer be said that in Victoria a trial judge should not attempt to explain the phrase "proof beyond reasonable doubt" to a jury. Rather, by s 63(1) of that Act, a trial judge "must give the jury an explanation of the phrase 'proof beyond reasonable doubt' unless there are good reasons for not doing so" and, in explaining that phrase, may refer to or indicate any or all of the matters in s 64(1)(a)-(e).

16. [90]

    This has particular significance in respect of Commonwealth offences. In short, if it is not inconsistent with s 13.2(1) of the Criminal Code for a trial judge to explain the phrase "proof beyond reasonable doubt" in accordance with ss 63(1) and 64(1) of the Jury Directions Act to a jury before which an accused is being tried for a Commonwealth offence in Victoria, it would make little sense to conclude that a trial judge giving the same explanation to a jury before which an accused is being tried for a Commonwealth offence in a State other than Victoria or in a Territory has erred. The mere fact that there is no equivalent legislation in the other State or Territory so that s 68(1) of the Judiciary Act does not operate to apply that legislation to the trial of a Commonwealth offence in the other State or Territory may be accepted. But a trial judge's explanations and directions either are or are not consistent with s 13.2(1) of the Criminal Code. This case decides that a trial judge's direction merely explaining the phrase "proof beyond reasonable doubt" to a jury in terms that a reasonable doubt is not "an unrealistic possibility" involves no such inconsistency in and of itself. Given the principle that an alleged misdirection is to be evaluated "by taking the summing up as a whole and as a jury listening to it might understand it, not upon some subtle examination of its transcript record or by undue prominence being given to any of its parts", the result in this case is one more step towards the ultimate calming of the "dangerous sea" on which a trial judge has been said to embark by attempting to explain to a jury the phrase "proof beyond reasonable doubt". Conclusion and orders

17. [91]

    The rejection of ground one disposes of the appeal. Gageler CJ, Gordon, Gleeson and Beech-Jones JJ are correct that, in this circumstance, ground two should not be entertained. I agree that the appeal should be dismissed.