The Difference Between Proving Someone is Innocent and Being Found Guilty ‘Beyond Reasonable Doubt’

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Josh TaaffeThe article The Difference Between Proving Someone is Innocent and Being Found Guilty ‘Beyond Reasonable Doubt’ is written by Josh Taaffe, Director, Trial Counsel, Accredited Criminal Law Specialist, Doogue + George Defence Lawyers.

Josh is one of the partners at Doogue + George and is an accredited criminal law specialist based in our Melbourne office. He is a criminal trial expert and specialises in indictable crimes.

With over a decade of experience, Josh acts as a defence advocate for every client he represents in court. He was acknowledged as a Leading Lawyer in the Doyles Guide 2020 and was one of two finalists in the category of In-House Counsel Of The Year at the 15th Victorian Legal Awards.

Criminal Defences BookThere is a significant difference between proving someone is innocent and being found not guilty because the prosecution have not been able to prove its case ‘Beyond Reasonable Doubt’. The differences may be understood by considering the meaning of the concept Beyond Reasonable Doubt.

Someone who is charged with a criminal offence is presumed to be an innocent person, until they are found to be guilty to the standard of Beyond Reasonable Doubt.

An accused person does not have to prove that he, or she is innocent of the crime with which they are charged. Rather, it is up to the prosecuting authorities to prove a person is guilty, to the standard that there is no other logical explanation, taking into account all of the facts. That is, to the degree that no reasonable person, be it a Magistrate, Judge (sitting alone in a Trial) or Jury would have any reasonable doubt that the accused person was guilty of the alleged crime as charged.

In Victoria if a jury asks a trial judge a direct question about the meaning of the phrase Beyond Reasonable Doubt or a question that indirectly raises the meaning then the trial judge may give directions about what it means.1 In response the trial judge may2 refer to the presumption of innocence and the prosecution’s obligation to prove that the accused is guilty or 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. The trial judge may indicate that it is almost impossible to prove anything with absolute certainty when reconstructing past events and the prosecution does not have to do so or 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 indicate that a reasonable doubt is not an imaginary or fanciful doubt or an unrealistic possibility.

This, in essence, is what Beyond Reasonable Doubt is all about.

The concept of Beyond Reasonable Doubt is an ancient one and has been considered by jurists over the years and throughout the world.

Lord Justice Moses, in REGINA v Majid [2009] EWCA Crim 2563 (England and Wales Court of Appeal), on the subject of Beyond Reasonable Doubt observed what appears to have been, and still is, the sentiment of not only Jurists in Commonwealth countries, but globally, when he stated:

“Any question from the Jury dealing with the standard of proof is the one that most Judges dread. To have to define what is meant by ‘Reasonable Doubt’ or what is meant by ‘Being Sure’ requires an answer difficult to articulate and likely to confuse.”

(‘Being Sure’ was the term used by many Judges and Legal Counsel, in an effort to explain to a Jury what ‘Beyond Reasonable Doubt’ meant).

Case Studies from around the world suggest that it appears to be universally accepted that ‘Beyond Reasonable Doubt’ essentially means that the Magistrate, Judge (sitting alone in a Trial) or Jury who are the ‘Finders of the Facts’, must be ‘nearly certain’ of the accused person’s guilt, to find that person guilty Beyond Reasonable Doubt.

This then leads us to consider what constitutes being ‘nearly certain’, ‘being sure’, or as sometimes otherwise termed, ‘almost sure’.

It is interesting to note that the United States Supreme Court in 1970, ‘read’ the standard of Beyond Reasonable Doubt into US Constitutional Law. This, however, apparently did nothing of consequence in clarifying the interpretation from then, until now.

Courts in certain States of America are, instructed not to offer an explanation of what constitutes Beyond Reasonable Doubt.

Indeed, the High Court of Australia has issued suggestions along similar lines to Australian State Courts, as indicated in Green v R (1971) 126 CLR 28.

The United Kingdom and USA examples are two jurisdictions, amongst many others globally, including Australia, in relation to the ongoing issues concerning what constitutes Beyond Reasonable Doubt, to the standard of being FAIR.

Is being ‘nearly certain’, or ‘almost sure’ a sufficient benchmark to determine if an individual should be incarcerated?

In 2008, the New South Wales Bureau of Crime Statistics and Research conducted a study involving 1200 persons who had served on Criminal Trial Juries in relation to what they perceived to be meant by Beyond Reasonable Doubt.

  • 55.4% opted for that they needed to be ‘sure’ of the defendant’s guilt.
  • 22.9% opted for that they needed to be ‘almost sure’ of the defendant’s guilt.
  • 11.6% opted for that it was ‘very likely’ the defendant was guilty.
  • 10.1% opted for that it was ‘pretty likely’ the defendant was guilty.

Indeed, the High Court’s Decision in Green v R (1971) 126 CLR 28, in part stated:

“A reasonable doubt is a doubt which the particular jury entertain in the circumstances. Jurymen themselves set the standard of what is reasonable in the circumstances.”

So bearing this in mind, a successful outcome in a criminal case is one where the prosecution have failed to prove their case Beyond Reasonable Doubt. This leads to an acquittal. There is no verdict of innocence. A person does not and cannot prove that they are innocent.

What an accused person needs to do throughout a trial is to present exculpatory evidence and explanation to counter inculpatory evidence provided by the Prosecution. The aim is to raise a doubt in the mind of jurors.

Inculpatory evidence, is evidence which has the propensity to indicate an accused person’s participation in the crime with which that person has been charged with.

Exculpatory evidence is any and all relevant information, including, but not confined to, witnesses or statements which tend to indicate the innocence of the accused person; and to negate inculpatory evidence provided to the Court by the Prosecution. This includes evidence in the possession of the prosecuting authorities, notwithstanding that it has merit in relation to the accused person’s case.

The defence aims to create a reasonable doubt, in relation to the allegations made by the Prosecution so that the jury will not be satisfied to the relevant standard of proof Beyond Reasonable Doubt.

Recently, the significance of reasonable doubt was considered by the High Court of Australia in Pell v The Queen [2020] HCA 12, which found that on the evidence there was a reasonable doubt as to Cardinal Pell’s guilt and what followed from that was that there was a significant possibility that an innocent person had been convicted.

It could well be said that the difference between proving someone guilty and not satisfying the jury Beyond Reasonable Doubt, is the exculpatory evidence and explanations that outweigh or negate the inculpatory evidence. Engaging expert legal advice immediately to consider what investigations and material are necessary to raise a doubt about the prosecution case is the first step in having the best chance at a positive outcome from any criminal case.

[1] s63 Jury Directions Act 2015.
[2] s64 Jury Directions Act 2015.

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