The Queen v Kritsingh Dookheea: Murder Criminal Standard of Proof

In The Queen v Kritsingh Dookheea [2017] HCA 36, decided today (13 September 2017), the High Court has unanimously allowed an appeal from a decision of the Court of Appeal of the Supreme Court of Victoria (see [2016] VSCA 67) concerning jury directions on the criminal standard of proof. 

Background

The appeal to the High Court related to whether the trial judge misdirected the jury in a murder trial by indicating that the prosecution had to prove an element of the crime “... not beyond any doubt, but beyond reasonable doubt”. It was argued that the direction had caused a substantial miscarriage of justice (see Dookheea v The Queen (Unreported, Supreme Court of Victoria, Emerton J, 4 December 2014).

The respondent was convicted by jury verdict of murder following a 10 day trial, and sentenced on 4 December 2014 to 19 years in prison with a non-parole period of 15 years. The co-accused, his wife, was charged with and pleaded guilty to manslaughter - receiving a sentence of eight and half years in prison with a non-parole period of six years.

From 2007 the respondent and his wife were both employed by the victim in his fast food business and in mid-2012 the respondent took over a franchise of the business from the victim. By the end of 2012 the franchise was in debt and the victim resumed control of the franchise, keeping the respondent’s wife as manager. In early 2013 both the accused were in debt and the respondent took to gambling in the Crown Casino in an attempt to raise money to pay off the debts. On 9 May 2013 the victim attended at the home of the two accused to collect the takings of the business - takings which the respondent had gambled away earlier that day at the Crown casino. The respondent and his wife physically attacked the victim and the victim died.

At trial, the sole element of the offence of murder in issue was whether the respondent had an intention to kill or cause very serious injury to the victim, at the time the respondent committed the act or acts which caused the victim’s death. The direction in question by the trial judge related to the standard of proof regarding that element of the crime.

Court of Appeal

In Dookheea v The Queen [2016] VSCA 67 (12 April 2016), the Victorian Court of Appeal allowed the respondent’s appeal from his conviction on the basis that in summing up to the jury the trial judge had erroneously sought to explain the phrase "beyond reasonable doubt" and had therefore occasioned a substantial miscarriage of justice. The Court of Appeal ordered that the conviction be quashed and the
sentence be set aside and directed that there be a new trial. The Court of Appeal concluded that it was an error to suggest to the jury that they may entertain a doubt which is not "a reasonable doubt" and on that basis proceed to convict the respondent.  

Appeal to the High Court

The Crown appealed the Victorian Court of Appeal decision to the High Court. The grounds of appeal were:

• That the Victorian Court of Appeal erred in concluding that the trial judge, in her charge to the jury, erred in directing that the prosecution has to prove an element of a crime “not beyond any doubt, but beyond reasonable doubt”.
• That the Victorian Court of Appeal erred in concluding that the said direction occasioned a substantial miscarriage of justice in all the circumstances. 

The High Court's Decision

The High Court held that "a reasonable doubt" is what a reasonable jury considers to be "a reasonable doubt". Further, although it is generally speaking undesirable for a trial judge to contrast "reasonable doubt" with "any doubt", in point of principle it is not wrong to notice the distinction and it is therefore, not necessarily determinative of an appeal against conviction that the trial judge directed the jury by reference to that distinction.  The High Court was of the view that in this case, it could not be supposed that the jury might have been left in any uncertainty as to the true meaning of the need for proof beyond reasonable doubt and accordingly, the Crown appeal was allowed.       

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Queen v Kritsingh Dookheea [2017] HCA 36 (13 September 2017) and transcripts and summaries.

Dookheea v The Queen [2016] VSCA 67 (12 April 2016)