Yesterday our media published an article critical of a judge who had repeatedly failed to direct juries correctly on the burden and standard of proof in criminal trials. The article gave me the impression that the judge was stubbornly refusing to follow Court of Appeal corrections of his approach.
I don’t know the judge, but I note that he has now retired.
Close inspection of the four cases shows that the Court of Appeal did not start dealing with these appeals until after the fourth trial. The same pattern applies to other cases alluded to in the article. This means the judge may not have been alerted to the errors as identified by the Court of Appeal.
It may even be that the judge had simply been following an out-dated (or what is now an out-dated) Bench Book model instruction set out for judicial guidance. I don’t know if that is so, because Bench Books are not available for inspection. The directions may have been toughened up after one of the Court of Appeal judgments, delivered on 8 October 2019.
The trials I am referring to were held in June 2016, December 2016, August 2017, and November 2017. The Appeal judgments were given in May 2018, April 2019, July 2019 and October 2019.
The media article linked above refers to the Court of Appeal's decision in R v Wanhalla [2006] NZCA 229, but the judgments in that case, delivered by three judges jointly and two judges each separately, can be read as not being expressed in mandatory terms; for example, from the joint judgment at [48] "something to be said ... at least in broad terms", [49] "inclined to the view that Judges should ...", [52] "there is no single formula which is required", "we are not to be taken as asserting that the formula just stated is mandatory", "It is sufficient to make it clear that the concept involves a high standard of proof which is discharged only if the jury is sure or feels sure of guilt."
And the Court in Wanhalla was not intending to change the way judges directed juries on the burden and standard of proof: [53] "It is most unwise for appellate courts to change course suddenly as to how trial Judges must sum up on the standard of proof."
Problems arising from departure from the Wanhalla direction were only becoming evident to the Court of Appeal by May of 2018, and on 8 September 2019 the Court said that such departure "is a perilous course." This firming-up of the status of the Wanhalla direction only occurred after the cases criticised in the article mentioned above.
The lengthy time it takes to get guidance from appellate courts could be blamed for the numbers of trials containing errors.
It is important to be fair when criticising anyone. It seems to me that the criticisms here may not have been soundly based.
My discussion of our leading case on the burden and standard of proof is here, and the Australian case is discussed here.
Update: You might like to look at a paper by Jason Anthony Aimone et al., "An Experimental Exploration of Reasonable Doubt" (14 September 2021), in which the results appear to suggest that jurors are influenced more by their own pre-conceived ideas of what a reasonable doubt is, than by directions from trial judges, and that differences in assessments of the standard of reasonable doubt correlate strongly with jurors' race.
