1. 1
REASONABLE DOUBT...AND BEYOND! THE CASE FOR
DEFINING THE STANDARD OF PROOF IN VICTORIA
I INTRODUCTION
‘Beyond reasonable doubt’ is a phrase that is no doubt familiar to most people. Even people who are
not involved in the legal industry and are fortunate enough to have avoided close contact with the
criminal justice system have probably heard the phrase and know that it is the standard of proof
applied in criminal trials. Indisputably, the phrase has well and truly entered the lexicon of the
common person.
But how many people know what it actually means? They should know – after all, it is the jury who
have to apply the standard, and the jury is made up exclusively of common everyday people. The
courts assume that jurors know what the phrase means; that is why they refuse to define the phrase or
guide jurors in their application of the standard. This is quite bizarre, as judges themselves struggle to
adequately define the phrase and explain it to each other. The common law of Australia features
disagreement between judges about what the phrase means – does it mean any doubt, because any
doubt a juror entertains is by definition reasonable? Or does the phrase necessarily require a juror to
internally analyse their doubts and categorise each one as either reasonable or unreasonable? If there
is confusion amongst judges, how can the phrase then be regarded as self-explanatory to a lay
juryperson?
The empirical research suggests that jurors do not understand the concept of ‘beyond reasonable
doubt’ in the way that the court assumes they do. Most of the evidence suggests that jurors apply a
lower standard than what judges would deem acceptable. Studies that investigate the effects of
different definitions have also shown that by varying how the concept is explained, the standard of
proof that is actually applied by jurors can be raised or lowered and ultimately affect the verdict of a
trial. This has powerful implications for Victoria’s position against defining the concept of beyond
reasonable doubt. It suggests that by failing to provide jurors with a more detailed and useful
explanation of the standard of proof, the court may unwittingly be lowering the standard of proof
being applied beneath an acceptable level.
Rather than lowering the standard of proof as the court fears, empirical studies actually indicate that
defining or explaining the standard of proof can raise the standard of proof that jurors apply to a point
that better reflects the high bar of proof that the concept originally intended, and that judges require.
Victoria should therefore take steps similar to that in other jurisdictions, allowing or even requiring
judges to provide an adequate definition of ‘beyond reasonable doubt’ in their charge to the jury.

2. 2
In Part II of this essay, the historical and modern concept of ‘beyond reasonable doubt’ will briefly be
explored. Part III will analyse the common law and legislative framework around the standard of
proof as it applies to criminal trials in Victoria. Part IV features an analysis of the empirical research
into juror comprehension of the phrase ‘beyond reasonable doubt’, and the effect of different
definitions on how jurors apply the standard of proof. The limitations of jury surveys and mock trials
are also acknowledged in this part. Finally, Part V draws together the research and looks at the
question about whether we should define reasonable doubt in Victoria, and if so, how?
II THE CONCEPT OF ‘BEYOND REASONABLE DOUBT’
A A Brief History of ‘Beyond Reasonable Doubt’
The concept of ‘beyond reasonable doubt’ being the standard required by the common law to convict
a person of a criminal offence came about in the sixteenth century as juries gradually became unable
to simply rely on personal knowledge of the events in question.1
It therefore became necessary for
judges to set a standard of assurance that jurors were required to meet before they could convict a
defendant. It was the judges of the sixteenth, seventeenth and eighteenth century that undertook this
task, with little help from the earlier common law.2
Professor Shapiro suggests that judges therefore
turned to the epistemology that was available at the time from religious doctrine and philosophy.3
She
argues that the phrase ‘beyond reasonable doubt’ was born from an ‘attempt to build an intermediate
level of knowledge, short of absolute certainty but above the level of mere opinion’.4
Part of the philosophy on which the concept of reasonable doubt is based is the distinction between
two realms of human knowledge – in one of these realms it is possible to obtain absolute or
mathematical certainty, whereas in the other ‘empirical realm’, such mathematical certainty is not
possible. John Locke’s An Essay Concerning Human Understanding (1690)5
was influential in this
regard.6
Past events of human behaviour belong in the empirical realm. In this empirical realm, there
are different levels of certainty, the higher of which can be achieved as the quantity and quality of
evidence increases. The highest level of certainty achievable in this empirical realm is the level
1
Barbara J Shapiro, “Beyond Reasonable Doubt” and "Probable Cause" (University of California Press, 1991)
1.
2
Ibid 1–2.
3
Ibid 2.
4
Ibid 7.
5
John Locke and P H Nidditch, An Essay Concerning Human Understanding (Clarendon Press, 1975).
6
Shapiro, above n 1, 7.

3. 3
required before a defendant may be convicted of a crime and was ‘traditionally...called “moral
certainty”, a certainty which there was no reasonable doubt’.7
B The Modern Concept of ‘Beyond Reasonable Doubt’
The Lockean origins of ‘beyond reasonable doubt’ are still reflected in the standard of proof today. It
is clear from the discussion of the Australian common law below that courts still base their
understanding of the concept on the idea that in a criminal trial, guilt can never be proven with
absolute mathematical certainty; but nevertheless, an especially high bar of confidence should be
imposed before a jury may convict the accused.
The standard of beyond reasonable doubt has been around for so long now that it is a term probably
familiar to most people. If they haven’t heard it in a courtroom, they’ve probably come across the
phrase in a book, on TV, in school or in some other aspect of everyday life. The High Court has
commented that the expression is ‘used by ordinary people and is understood well enough by the
average man in the community’,8
leading the court to suggest the term does not need to be defined in
order to be understood by a lay juryperson. However, familiarity and use of the phrase is one thing –
understanding and applying the ancient meaning of the phrase in the criminal law context is another
thing altogether. The common law of Australia would suggest there is no gap between the two – that
jurors inherently understand the term as meaning the highest form of proof in the empirical realm of
human knowledge. This essay attempts to dispel that notion with reference to psychological studies
that suggest modern juries do not have an inherent understanding of the term as it was originally
intended.
III VICTORIAN JURY DIRECTIONS ON BEYOND REASONABLE DOUBT
A Common Law Position: to Define or not to Define?
Essentially, the common law of Australia directs that no further elaboration on the phrase ‘beyond
reasonable doubt’ is required. The following statement by Kitto J in Thomas v The Queen9
is often
quoted:
Whether a doubt is reasonable is for the jury to say; and 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.10
7
Ibid 41.
8
Darkan v The Queen (2006) 227 CLR 373, 395 [69] per Gleeson CJ, Gummow, Heydon and Crennan JJ.
9
[1960] 102 CLR 584.

4. 4
The starting point to understand the common law’s position on what ‘beyond reasonable doubt’
actually means is the judgement of the High Court in Green v The Queen (‘Green’).11
In a joint
judgement, Barwick CJ, McTiernan and Owen JJ defined a reasonable doubt as:
a doubt which the particular jury entertain in the circumstances. Jurymen themselves set the standard of
what is reasonable in the circumstances ... A reasonable doubt which a jury may entertain is not to be
confined to a 'rational doubt', or a 'doubt founded on reason' in the analytical sense.
This passage, which apparently equates a ‘reasonable doubt’ to ‘a doubt’, was in response to a
direction from the trial judge that the jury was required to consider the quality of any doubts they
might have, and determine whether they were rational or otherwise.12
As is indicated by the passage,
the High Court determined that such an instruction requiring jurors to analyse their mental processes
was erroneous. The judgement in Green allowed for a judge to exclude ‘fantastic and unreal
possibilities’13
as sources of reasonable doubt, but only where necessary in order to remedy an
imbalance in the trial. That is, where the defendant’s counsel excessively laboured the onus and
standard of proof to such a degree that the jury may be misled into thinking that such unreal
possibilities ought to be regarded as reasonable doubts. The direction in Green that the phrase
reasonable doubt means any doubt a juryperson entertains, and that the court should not instruct the
jury to subject their doubts to any kind of objective internal analysis has caused confusion and debate
in lowers courts.
The debate centres on whether the court intended what it appeared to imply in Green – that any doubt
that might occur to a jury person is a reasonable doubt, whether or not that doubt could objectively be
described as reasonable. In the South Australian case of R v Wilson,14
King CJ delivered a judgement
reaffirming the High Court’s direction that no further elaboration to ‘beyond reasonable doubt’ is
necessary, and that any direction requiring the jury to assess the quality of their doubts is defective.
According to King CJ, if a jury has ‘a doubt’ at the end of their deliberations, ‘that doubt is ipso
facto...a reasonable doubt’.15
King CJ confirmed this view in R v Pahuja.16
Johnston J agreed, stating that if a jury entertains a
doubt, such a doubt is a reasonable doubt:
by definition...because it is entertained by the body of the jury which, in our constitutional concept and
tradition, is the embodiment of the reasonableness of the members of the society whom the jury represent.17
10
Ibid 595.
11
(1971) 126 CLR 28.
12
BR Martin, ‘Beyond Reasonable Doubt’ (2010) 10 The Judicial Review 83, 91.
13
Green v The Queen (1971) 126 CLR 28, 33.
14
(1986) 42 SASR 203.
15
Ibid 206.
16
(1987) 49 SASR 191.

5. 5
Cox J dissented in this case, regarding it as ‘self-evident’ that the word ‘reasonable’ in the phrase
‘beyond reasonable doubt’ is a word of limitation.18
He argued that the word ‘reasonable’ is not
superfluous, and that it therefore ‘must imply that there are some doubts that are reasonable and other
doubts that are not’.19
Cox J also sees it as not only being possible but inevitable that on occasion,
jurors may have unreasonable thoughts or make unreasonable judgements, and therefore a degree of
analysis and evaluation about whether a doubt is reasonable or otherwise is inseparable from the
concept of beyond reasonable doubt.20
Cox J argues the judgement in Green can be reconciled with his views when one acknowledges a
distinction between the jury’s corporate state of mind when deciding on a verdict, and the internal
mental process of individual jurors determining whether a doubt is reasonable or not. Cox J suggests
that in Green, when the High Court asserted that a doubt is any doubt that the jury entertains in the
circumstances, the Court was referring to the corporate state of mind of the jury – not the evaluative
process of considering and discarding unreasonable doubts that may occur in a juror’s mind.21
Cox J
also concedes (in line with Green) that it is ‘understandably...confusing, as well as unnecessary and
undesirable, to invite [the jury]...to expressly to go through such an exercise’ of systematically
evaluating the reasonableness of their doubts.’22
The Victorian Court of Criminal Appeal has approved of the Cox J’s interpretation in Neilan v R23
and
R v Chatzidimit,24
but again reiterated that ‘the jurors set the standard of what is reasonable’25
and that
there is an ‘undesirability...of seeking to explain to a jury what is meant by the phrase “beyond
reasonable doubt” except by way of contrasting it with the standard of proof in civil proceedings’.26
The common law position on the definition of the concept of beyond reasonable doubt can therefore
be summarised as follows: judges should refrain from giving any further directions than simply saying
the jury must be satisfied ‘beyond reasonable doubt’ or by simply comparing the criminal standard to
its civil counterpart, unless they are asked by the jury what the phrase means. In that case, the judge
should say it is up to the jury to determine for themselves what doubt is reasonable. It is
acknowledged by the reasoning of Cox J and the Victorian cases that approve of it that jurors
necessarily weigh up the reasonableness of their doubts. However, the trial judge should not instruct
the jury that they are to engage in such internal analysis – it must happen organically. The Jury
17
Ibid 220.
18
Ibid 205.
19
Ibid.
20
Ibid 210.
21
See Ibid 210.
22
Ibid 210.
23
[1992] 1 VR 57.
24
(2000) 1 VR 493.
25
Neilan v R [1992] 1 VR 57, 71.
26
Ibid.

6. 6
Directions Act (2015) gives further guidance on what judges may say in regards to the concept of
‘beyond reasonable doubt’, however as it is neither prescriptive nor proscriptive, it is important to
keep the common law in mind when considering how judges are permitted to instruct juries on the
standard of proof in criminal trials.
B Legislative Approach
Jury directions in Victoria are governed by the Jury Directions Act.27
Section 63(1) provides that a
trial judge may provide the jury with an explanation of the phrase ‘proof beyond reasonable doubt’ if
the jury directly asks a question about the meaning of the phrase, or a question indirectly raises the
issue of the phrase’s meaning. Under s 64(1), if such a question is asked a judge is permitted to:
 refer to the presumption of innocence;28
or
 indicate that it is insufficient for the prosecution to persuade the jury that the accused is
probably guilty or very likely guilty;29
or
 acknowledge that it is almost impossible to prove anything with absolute certainty when
reconstructing past events, and that the prosecution does not need to do so;30
or
 state that the jury cannot return a guilty verdict if they have a reasonable doubt about the
defendant’s guilt;31
or
 the judge may indicate that ‘a reasonable doubt is not an imaginary or fanciful doubt or an
unrealistic possibility’.32
Section 63(2) provides that the provision in s 63(1) allowing a judge to give directions on the standard
of proof when a question raises it as an issue does not limit any other power of a judge.33
Therefore,
judges have the power to give the directions outlined by s 64(1), or any other direction permitted by
the common law without the jury first asking a question (although recall the position of the common
law is discouraging of trial judges providing an explanation of ‘beyond reasonable doubt’ unless the
jury asks a question that requires an explanation or the explanation only compares the criminal and
civil standards of proof).
The legislative framework does not differ greatly from the common law explored above. It is neither
prescriptive nor proscriptive, leaving that instead to the common law. The legislation appears to
merely codify some of the directions that the common law has deemed acceptable. The legislation
27
Jury Directions Act 2015 (Vic).
28
Ibid s 64(1)(a).
29
Ibid s 64(1)(b).
30
Ibid s 64(1)(c).
31
Ibid s 64(1)(d).
32
Ibid s 64(1)(e).
33
Ibid s 63(2).

7. 7
also appears to leave it open to the common law to govern in what circumstances an explanation of
the standard may be given – under s 64, a judge may only give the directions outlined if they have
been asked a question which directly or indirectly raises the issue of the standard of proof. Section
63(2) only allows judges to give directions without a question being asked in circumstances that the
common law would allow.
IV PSYCHOLOGICAL RESEARCH INTO JURY DIRECTIONS ON THE STANDARD OF
PROOF AND ITS IMPLICATIONS
The legislative and common law approach to defining (or not defining) the standard of proof tells us
what the Parliament and the Courts think about jurors’ understanding of ‘beyond reasonable doubt’ –
but what does the research tell us? Unfortunately, the research conducted by jurists and psychologists
provides quite mixed results. While most studies suggest that the majority of jurors do not understand
the phrase ‘beyond reasonable doubt’ as it is intended, studies differ over whether jurors are more
lenient or stringent in their application of the standard of proof. Studies have also demonstrated that
the standard of proof applied by jurors can vary depending on the wording of the definition or
explanation of the standard of proof. Together, these findings have powerful implications on what the
law’s position on explaining the phrase ‘beyond reasonable doubt’ should be – if jurors fail to
comprehend the standard of proof, and the explanation of the standard can affect how it is applied,
then surely we must carefully consider the need to incorporate a more consistent, in-depth definition
for ‘beyond reasonable doubt’.
Before getting in to the detail of what the empirical research says about jurors’ understanding of
‘beyond reasonable doubt’, the limitations of the studies referred to should be acknowledged.
A Limitations of studies using mock juries
All of the studies referred to in this paper are either studies of mock juries – that is, experiment
participants who volunteer to be part of a study but are not actually jurors – or they are actual jurors
being interviewed after their jury duty. Neither of these perfectly represents an actual jury.
Diamond and Zeisel (1974)34
conducted a study where they used mock juries randomly selected from
a pool of eligible jurors to sit in on real criminal cases before then comparing the verdicts of the mock
jury with the verdict of the real jury. The results of the study indicated the mock jury would have
given a guilty verdict in ten out of the ten trials. This was compared to the real jury which found the
34
Shari Seidman Diamond and Hans Zeisel, ‘A Courtroom Experiment on Juror Selection and Decision-
Making’ (1974) 1 Personality and Social Psychology Bulletin 276.

8. 8
accused guilty in five of the ten trials, and not guilty in the other five trials.35
This led the researchers
to conclude that real jurors interpret the standard of proof to be a higher threshold than mock jurors
who are fully aware that their decision is not binding on the defendant.36
It is for this reason that
researchers of mock trials state their results should be considered ‘suggestive rather than definitive’.37
Interviews of real jurors after their jury duty is completed should also be taken with a grain of salt.
The jurors are not observed during their deliberations and there is no way of knowing for certain that
what they tell a surveyor accurately represents what they actually did in the jury room.
However, mock jurors and exit interviews are so far the only methods by which researchers can
empirically study jurors. Even though a study of a real jury is theoretically possible, the legal, ethical
and practical constraints have so far proven insurmountable.38
B Do Juries Actually Understand the Phrase ‘Beyond Reasonable Doubt’?
One would think that given the preference of Australian courts not to define or provide any further
elaboration on the phrase ‘beyond a reasonable doubt’, that it is a simple matter of fact that jurors
correctly understand and apply that phrase as the standard of proof. Some legal scholars argue that
jurors have an ‘original understanding’ of the phrase and therefore further definition is unnecessary.39
However, studies of mock juries and surveys of actual jurors indicate that this may not be the case,
both in Australian and in overseas jurisdictions.
Kerr et al (1976)40
conducted a study of how different definitions of reasonable doubt affected mock
juries made up of college students. The study revealed that the mock juries who were not provided a
definition of reasonable doubt suffered greater group disagreement and individual uncertainty over the
verdict, resulting in more hung juries than the groups where reasonable doubt was defined.41
Horowitz and Kirkpatrick (1996)42
conducted a study where eighty mock juries made up of six people
heard one out of five possible instructions relating to the standard of proof required for conviction in a
trial that either had strong evidence suggesting guilt (strong case) or favoured acquittal (weak case).
35
Ibid 276.
36
Ibid 277.
37
Norbert L Kerr et al, ‘Guilt Beyond a Reasonable Doubt: Effects of Concept Definition and Assigned
Decision Rule on the Judgments of Mock Jurors’ (1976) 34 Journal of Personality and Social Psychology 282,
291.
38
Diamond and Zeisel, above n 34, 277.
39
Note, "Reasonable Doubt: An Argument Against Definition" (1995) 108 Harvard Law Review 1955, 1962-
1963.
40
Kerr et al, above n 37.
41
Ibid 292.
42
Irwin A Horowitz and Laird C Kirkpatrick, ‘A Concept in Search of a Definition: The Effects of Reasonable
Doubt Instructions on Certainty of Guilt Standards and Jury Verdicts’ (1996) 20 Law and Human Behavior
655.

9. 9
Part of the study required jurors to provide a numerical indication before and after deliberation of the
certainty of guilt that the standard of proof required before they could convict the defendant. When
the phrase ‘beyond reasonable doubt’ was left undefined, the study showed that participants
considering the weak case construed the standard of proof to be equivalent to 52.87% certainty before
deliberation, and 55% after deliberation.43
This is only slightly higher than the 50% threshold
commonly associated with the civil standard of proof ‘on the balance of probabilities’ and is
considerably lower than the numerical threshold that judges place on the criminal standard of proof.
When surveyed, judges in the United States placed the numerical threshold for ‘beyond reasonable
doubt’ between 80%-100%, with most responding judges placing the threshold at 90% or higher.44
The ‘correct’ threshold of ‘beyond reasonable doubt’ has also been theorised as equivalent to 90%
based on Blackstone’s Ratio of it being preferable to acquit ten guilty persons rather than convict one
innocent person.45
Although many courts in jurisdictions including Australia insist it is inappropriate
to assign numerical values to the standard of proof,46
the discrepancies between the hypothetical
quantitative thresholds of lay people and judges is concerning. When reviewing similar results of a
jury study conducted by the New Zealand Law Commission, Young, Chambers and Robertson JJ of
the New Zealand Court of Appeal found it ‘alarming’ that jurors could interpret the standard of proof
for criminal conviction to be as low as 75% or 50%.47
Studies in Australia also indicated that jurors fail to understand the burden of proof. A survey of
jurors who participated in fourteen criminal trials held in the Queensland Supreme Court revealed that
only 39% of jurors were able to accurately describe ‘beyond reasonable doubt’.48
This was despite the
fact that 66% of these jurors stated they understood the concept of ‘beyond reasonable doubt’ very
much.49
Interestingly, and in contrast to the studies referred to above, the Queensland study found that
where there was a misunderstanding about the concept of beyond reasonable doubt, the
misunderstanding was usually in the form of requiring a more stringent standard of proof – that is, no
doubt as all.50
A study of jurors in NSW found a similar gap between juror’s subjective and objective understanding
of the standard of proof – while 94.9% of jurors responding to a survey reported they understood the
43
Ibid 664.
44
Barbara D Underwood, ‘The Thumb on the Scales of Justice: Burdens of Persuasion in Criminal Cases’
(1977) 86 The Yale Law Journal 1299, 1311.
45
Mandeep K Dhami, Samantha Lundrigan and Katrin Mueller-Johnson, ‘Instructions on Reasonable Doubt:
Defining the Standard of Proof and the Juror’s Task." (2015) 21 Psychology, Public Policy, and Law 169
citing William Blackstone, Commentaries on the Laws of England (University of Chicago Press, 1979).
46
R v Cavkic [2005] VSCA 182.
47
R v Wanhalla [2007] 2 NZLR 573, 586 [41]-[42]; New Zealand Law Commission, Juries in Criminal Trials
Part Two: A Summary of the Research Findings, Discussion Paper No 37 (1999) [7.16].
48
Blake M McKimmie, Emma Antrobus and Chantelle Baguley, ‘Objective and Subjective Comprehension of
Jury Instructions in Criminal Trials’ (2014) 17 New Criminal Law Review 163, 172.
49
Ibid 171.
50
Ibid 176.

10. 10
judges’ instructions ‘mostly’ or ‘completely’, jurors’ understanding of ‘beyond reasonable doubt’
varied considerably.51
55.4% of respondents thought ‘beyond reasonable doubt’ meant you were ‘sure
the person is guilty’, whereas 22.9% thought it meant you were ‘almost sure a person was guilty’.52
It
is unclear from the study which of these responses would be deemed correct, and it is reflective of the
uncertainty in the common law about whether being ‘sure’ or having no doubt at all means the same
thing mathematical certainty. Either way, what is most concerning isn’t these responses (as both could
arguably be correct depending on how you define ‘sure’) but the fact that 11.6% of respondents
thought ‘beyond reasonable doubt’ means it is ‘very likely the person is guilty’ and 10.1% thought it
meant ‘pretty likely the person is guilty’.53
This wide spread of opinion suggests jurors do not
understand the concept of beyond reasonable doubt as well as the courts assume, or as well as jurors
themselves think they do.
Jurors may be incorrectly applying the concept of beyond reasonable doubt in its undefined form
because the phrase, focussing as it does on the element of ‘doubt’, has the unintended effect of
transferring part of the burden of proof on to the defendant. That is, by placing the emphasis on a
juror’s doubt regarding the defendant’s guilt, jurors may naturally tend to focus more on the evidence
provided by the defence that establishes doubt instead of considering the strength of the prosecutions
proof.54
This theory is supported by a study that tested for the individual effects of the words ‘doubt’
and ‘proof’ in different definitions. The study revealed that when the word ‘doubt’ was used as part of
a definition, the threshold at which mock jurors were willing to convict a defendant was lower than
when the word ‘proof’ was used in the same definitions.55
This suggests that jurors may be failing to
correctly apply the concept of ‘beyond reasonable doubt’ by overly focussing on doubt created by the
defence, and not looking at what the prosecution has been able to prove.
The fact that judges themselves sometimes get it wrong indicates that the concept of beyond
reasonable doubt is not as straightforward and self-explanatory as Green would have us believe. There
are numerous examples of cases where judicial directions have been overturned on appeal because
they are deemed to be wrong. If judges cannot always get the standard correct, it seems bizarre to
assume lay jurors will be able to properly understand the concept without an explanation.56
Furthermore, as Reynolds points out, if the standard of proof is not clearly definable as some judges
51
Lily Trimboli, ‘Juror Understanding of Judicial Instructions in Criminal Trials’ (2008) 119 NSW Bureau of
Crime Statistics and Research Crime and Justice Bulletin 1, 9.
52
Ibid 6.
53
Ibid.
54
Lawrence M Solan, ‘Refocusing the Burden of Proof in Criminal Cases: Some Doubt About Reasonable
Doubt’ (1999) 78 Texas Law Review 105, 137.
55
Dhami, Lundrigan and Mueller-Johnson, above n 45, 175.
56
Casey Reynolds, ‘Implicit Bias and the Problem of Certainty in the Criminal Standard of Proof’ (2013) 37
Law & Psychology Review 229, 238.

11. 11
suggest, then it is unpersuasive to suggest that jurors can possibly have a fundamental understanding
of the concept.57
Even though there is some conflicting evidence – and keeping in mind there are inherent limitations
of the study of mock jurors – there seems to be powerful evidence to suggest jurors do not accurately
comprehend the concept of ‘beyond reasonable doubt’. We will now turn to consider the effectiveness
of different definitions that have been applied to the standard of proof in Australia and overseas.
C Different Definitions of ‘Beyond Reasonable Doubt’ Create Different Understandings
of the Standard of Proof
If one was to accept that jurors don’t understand the concept of ‘beyond reasonable doubt’ when it
was left undefined by the court, the next question that might be asked is whether or not jurors will
heed or understand any judicial instructions on the matter. After all, what would be the point of
defining the concept if jurors also failed to understand or apply the concept after it is explained? If,
however, the explanation of the concept does affect how a juror understands the standard of proof –
and especially if different definitions produce different effects – then it is critical to investigate how
these definitions may alter the standard of proof in criminal cases. Studies on the effect of different
definitions are (again) mixed, but there are a number of studies that have shown different definitions
do alter the standard of proof applied in mock juries.
Cornish and Sealy (1973) conducted a study of mock juries which involved giving jurors one of three
instructions regarding the standard of proof that ranged from “you must feel sure and certain on the
evidence you have heard that the accused is guilty” to a standard associated with the civil standard of
proof – ‘you must feel satisfied that it is more likely than not that the accused is guilty’. The study
demonstrated that different instructions to the jury over the standard of proof could sometimes have
the opposite effect than intended (in terms of increasing or decreasing the standard of proof), and that
the effect of such instructions was weak.58
However, a more detailed analysis of their data by Kerr et
al (1976) suggests that ‘the effects were usually orderly, frequently significant and particularly strong
when juror opinion was sharply divided’.59
Despite their conclusions that the effect of instructions
was weak, Sealy and Cornish also found that there was a significantly lower conviction rate when the
jury was told they ‘must feel sure and certain on the evidence that the accused is guilty’ compared to
57
Ibid 236.
58
Kerr et al, above n 37, 283 citing AP Sealy and WR Cornish ‘Juries and the Rules of Evidence’ Criminal Law
Review (1973) April 208.
59
Kerr et al, above n 37, 283.

12. 12
when they were told to be ‘sure beyond a reasonable doubt [which means]...not a fanciful doubt...but
a doubt for which reasons can be given.’60
Different definitions of the standard of proof were found to be ineffective in a series of studies
summarised by Kagehiro (1990)61
. The studies investigated the effect a wide range of different
definitions and of the standard of proof, including ‘quantified’ and ‘combined’ definitions.62
Quantified definitions expressed the standard of proof in probability terms – for example, stating the
juror must be ‘91% certain of the truth of the plaintiff’s case’.63
Combined definitions incorporated
both a linguistic instruction and a quantified probability threshold. The results of the study indicated
that the quantified and combined definitions were the only instructions that were properly understood
and applied by the mock jurors.64
This implies that there was no significant difference in how jurors
understood the standard of proof when instructions simply included different means of explaining the
standard of proof, without an associated percentage. While this may suggest that attempts to define
the standard of proof are futile unless the explanations incorporate a quantified definition (something
which it appears no jurisdiction is willing to do),65
there are a number of other studies which do
indicate that non-quantitative definitions of the standard of proof can affect the standard applied by
jurors.
Unlike the findings of Kagehiro (1990), Kerr et al (1976) 66
were able to conclude that mock jurors’
verdicts are affected by a judge’s instructions regarding the standard of proof, even without including
quantified or numerical definitions. This study used three different descriptions of ‘beyond reasonable
doubt’ – one did not define or elaborate on the concept any further than simply defining it as ‘beyond
reasonable doubt’, and of the other two experimental conditions, one was a ‘lax’ definition (intended
to lower the standard of proof) and the other was a ‘stringent’ definition (designed to increase the
standard of proof). The ‘lax condition’ required the doubt to be a ‘substantial one, a fair one, one
based on reason, and one for which reasons can be given’, whereas the ‘stringent condition’ required
the juror to be ‘convinced to a moral certainty, with absolute and positive proof’.67
The researchers
described these variations in the definition of beyond reasonable doubt as ‘extreme, yet not
unrepresentative of those in actual use’ in the United States.68
The results of the study demonstrated
that the expected pattern was found – the lax condition increased rates of conviction whereas the
60
Jenny McEwan, The Verdict of the Court (Hart Publishing, 2003) 134 citing Sealy and Cornish above n 58.
61
Dorothy K Kagehiro, ‘Defining the Standard of Proof in Jury Instructions’ (1990) 1 Psychological Science
194.
62
See Ibid 196.
63
The study was done using a civil case because it included a comparison of standards of proof that are not
applied in a criminal context. See ibid 195 for a complete explanation of why a civil case was chosen.
64
Ibid 196.
65
Ibid 197.
66
Kerr et al, above n 37, 291.
67
Ibid 286.
68
Ibid 291.

13. 13
stringent condition lowered rates of conviction. The undefined condition resulted in a rate of
conviction in between the lax and stringent conditions.69
The study also demonstrated that the
definition of reasonable doubt doesn’t affect a juror’s weighting of the evidence or the probability that
at which they think the defendant is guilty – rather the variation of the definition appears to have it
intended effect of setting the juror’s decision criterion for conviction. This conclusion is based on the
results which indicated the definition of reasonable doubt did not affect the jurors’ judgements of the
probability that the defendant committed the crime.70
In other words, varying the definition of
reasonable doubt did not appear to inhibit the jurors’ ability to differentiate between their personal
opinion of guilt and the legal standard required for a guilty verdict, but it did affect the rate of
convictions. The researchers calculated that the variation in definition produced a difference of over
26% in the conviction rate.71
A more recent study by Dhami, Lundrigan and Mueller-Johnson (2015) compared the effects of two
reasonable doubt instructions that are based off instructions that are used in a number of states in the
US.72
The two directions they compared were abbreviated as ‘proof-willing’ and ‘doubt-hesitate’. The
proof-willing instruction stated ‘reasonable doubt is proof that would make a reasonable person
willing to act in their most important affairs of life’, and the doubt-hesitate instruction was stated as
‘reasonable doubt it doubt that would make a reasonable person hesitate to act in their most important
affairs of life’.73
The study revealed a significant difference in the effects of the two different
definitions: the doubt-hesitate instruction lowered the standard of proof applied by the mock jurors
considerably, whereas the proof-willing instruction resulted in a standard of proof around the desired
threshold of 90% certainty.74
Although there is no consensus in the empirical evidence about whether different definitions affect
how jurors apply the standard of proof, the evidence overall does seem to suggest that jurors do
respond to differences in instructions. Of course, the limitations of mock juror studies should be kept
in mind; however there does appear to be sufficient empirical evidence to suggest that in order to have
a consistent criminal justice system, there needs to be measures in place to ensure that consistent
instructions on the standard of proof are given. Some may argue that this system is already in place
within Victoria. However, the evidence suggests this is unlikely. Courts in Australia avoid defining
the phrase ‘beyond reasonable doubt’, yet the evidence suggests jurors do not understand this term
and apply the standard differently when it is explained. This leaves plenty of room to argue that a
more consistent definition of the concept of beyond reasonable doubt is required in Victoria.
69
Ibid 287.
70
Ibid 291.
71
Ibid.
72
Dhami, Lundrigan and Mueller-Johnson, above n 45.
73
Ibid 172.
74
Ibid 175.

14. 14
V DEFINING ‘BEYOND REASONABLE DOUBT’
The common law of Australia currently refuses to explain the concept of beyond reasonable doubt,
except in particular circumstances such as when the jury explicitly asks about the phrase’s meaning,
or where the defendant’s counsel have improperly emphasised what amounts to a reasonable doubt.
This is by the court’s own admission, an ‘extreme and exceptional stand’.75
Many other jurisdictions
now not only permit an explanation of the phrase, but actually mandate it. In Graham v R,76
Underwood J pointed out that:
in two jurisdictions that share common origins with Australia with respect to the onus and standard of
proof in criminal cases, the United States of America and Canada, there is clear authority to the effect that
a failure to elaborate on and explain the expression constitutes error.77
With the weight of empirical evidence suggesting that jurors do not have a fundamental understanding
of the phrase as it is intended, and the findings that difference definitions can have a material impact
on verdicts, perhaps it is time Victorian courts also construct a formal and relatively standardised
definition of the concept.
A Should we define ‘beyond reasonable doubt’?
One of the reasons put forward by the court for not defining the standard of proof is that ‘beyond
reasonable doubt’ is a phrase ‘used by ordinary people and is understood well enough by the average
man in the community’.78
However, although studies such as that conducted in NSW (referred to
above) suggest jurors think they understand the standard of proof, numerous studies outlined above
suggest otherwise.
The concern of the court in allowing judges to define or elaborate on the concept of beyond
reasonable doubt appears to be based on a fear that any such elaboration risks lowering what is
intended to be a very high standard of proof. Kitto J outlined the court’s concerns in Thomas v The
Queen:79
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.80
75
Darkan v The Queen (2006) 227 CLR 373, 395 [69].
76
Graham v R (2000) 116 A Crim R 108.
77
Ibid 125 [51].
78
Dawson v The Queen (1961) 106 CLR 1, 18.
79
(1960) 102 CLR 584.
80
Ibid 595.

15. 15
The court’s concern then appears to rest on a misconception – that jurors understand the concept of
beyond reasonable doubt, and understand how high the evidentiary bar is intended to be set. The
empirical research actually indicates the opposite – that left undefined, jurors under appreciate how
high the evidentiary bar is set for conviction. This is indicated by the studies like Horowitz and
Kirkpatrick (1996)81
, and the surveys of jurors in Queensland and NSW referred to above in Part IV
B. These studies therefore suggest that by leaving the concept undefined, the court is unintentionally
lowering the standard of proof applied by juries to a level that they would deem unacceptable.
This may be explained by court’s apparent failure in Green to appreciate that left undefined, ‘beyond
reasonable doubt’ is inherently asking the jury to assess the quality of the doubt they may have. Such
a process, as properly acknowledged by Cox J, may happen unconsciously – but the fact that the court
prohibits judges from instructing juries to make these kinds of internal assessments of their doubts
doesn’t prevent jurors from actually doing so, it only serves to ignore the possibility that they do.
A survey of jurors in Tasmania revealed that the lack of explanation about reasonable doubt was
‘frustrating’ to jurors who were unsure about whether they had enough evidence convict a defendant
even though they personally thought the defendant was probably guilty.82
This demonstrates what Cox
J was talking about in Pahuja; that jurors are inherently subject to unreasonable thoughts and doubts,
and necessarily engage in a process of separating the reasonable doubts from the unreasonable. The
Tasmanian study also revealed that many jurors felt a sense of apprehension about asking questions of
the judge because they were unwilling to be seen as wasting time or holding up the trial, and were
also unsure about what was permissible for them to ask.83
Every time the jury asks a question during
deliberations, court must be reconvened and this could easily be perceived by the jury as being a great
inconvenience to the judge, the lawyers, and the defendants. Not being aware of what kind of
questions they are permitted to ask can also dissuade jurors from asking questions about the meaning
of reasonable doubt because the survey also revealed jurors commonly fear being reprimanded by the
judge.84
The findings of the Tasmanian study suggest that jurors need assistance understanding the
concept of ‘beyond reasonable doubt’, and that they probably need more guidance than simply being
told it’s up to them to decide what is reasonable. The study also suggests that definition of the phrase
needs to be provided even when jurors do not ask a question about the standard of proof because the
lack of a question might not be a sign of understanding, but be due to other factors that lead the jury to
refrain from asking.
81
Horowitz and Kirkpatrick, above n 42.
82
K Warner, J Davis and P Underwood, ‘The Jury Experience: Insights from the Tasmanian Jury Study’ (2011)
10 The Judicial Review 333, 346.
83
Ibid 341.
84
Ibid 340.

16. 16
With all of these factors considered, a strong case can be made out for judges to provide a more
complete and helpful explanation of ‘beyond reasonable doubt’. The evidence shows that jurors do
not understand the concept when it stands alone, and the bulk of the evidence suggests this
misunderstanding is not only frustrating for the jurors, but appears to have the effect of actually
lowering the standard of proof that jurors apply. This is the opposite of what the court appears to
presume defining the concept will achieve. Given that many of the studies outlined above show that
rather than lowering the standard of proof, defining beyond reasonable can actually increase the
standard to a threshold more in line with what the court expects and requires, judges should be
permitted (if not required) provide a more elaborate definition of ‘beyond reasonable doubt’ to jurors.
B How should we define ‘beyond reasonable doubt’?
Whether the court should define beyond reasonable doubt to the jury is one matter – how to do it is
another question altogether. It is a question that is perhaps even harder to answer, too. While the
empirical evidence about jurors’ understanding of beyond reasonable doubt and the effect of different
instructions on that understanding does not have a consensus of opinion, at least the weight of
evidence is relatively clear. The empirical evidence is even harder to untangle in order to try and find
support for how reasonable doubt should be defined to the jury. As it has already been alluded to,
mock jury studies and exit interviews with jurors have their limitations – these are only exacerbated
when attempting to identify the most effective instructions for reasonable doubt by trying to compare
results across studies. Such an exercise is unlikely to produce convincing results as each study uses
different samples (some use college students and others draw more widely from the jury eligible
population) and also are intended to represent different geographic populations. While studies from
places such as the US and the UK may be insightful, one would also expect that the different
demographics in Australia may produce different results if the same instructions were tested locally. If
serious action was to be taken on designing a standardised definition or explanation of the beyond
reasonable doubt standard, it may be wise to undertake a Victorian jury project to test the effect of
different definitions on the Victorian jury eligible population. Failing that, the instructions of other
jurisdictions may provide guidance.
1 England and Wales
The standard direction in England and Wales is drafted by the Judicial Studies Board, and is drafted
as follows:

17. 17
How does the prosecution succeed in proving the defendant's guilt? The answer is – by making you sure of
it. Nothing less than that will do. If after considering all the evidence you are sure that the defendant is
guilty, you must return a verdict of 'Guilty'. If you are not sure, your verdict must be 'Not Guilty'.85
The definition essentially equates ‘beyond reasonable doubt’ with being ‘sure’ of the defendant’s
guilt. Judicial instructions explaining the standard of proof as being equivalent to being ‘sure’ of the
defendant’s guilt was rejected in R v Cavkic (No 2).86
Empirical research has shown that using the word ‘sure’ can lead to jurors interpreting the standard of
proof as being very high – almost too high. In a study by Zander (2000)87
, a 51% of respondents from
the general public indicated that they interpreted such an instruction to require them being 100%
certain of a defendant’s guilty before they vote to convict.88
The same study found that three quarters
of respondents indicated they would need to be at least 90% sure of the defendant’s guilt before
convicting.89
These results indicate that the instruction to the jury to be ‘sure’ creates a standard of
proof much higher than that indicated by the many studies referred to above where ‘beyond
reasonable doubt’ was left undefined.
The instruction to be ‘sure’ of the defendant’s guilt has been criticised for creating a standard of proof
in jurors’ minds that is too high. Montgomery (1998) argues that the creation of a standard of proof
described by jurors as requiring them to be 100% certain in order to convict a defendant results in a
‘near impossibility of getting a conviction’.90
But such criticisms may be dismissed as interpreting the
results too formalistically and ignoring what is actually meant by respondents in the studies – that
100% does not mean mathematical certainty, but the highest degree of certainty achievable in the
inherently uncertain trial process.91
This line of reasoning – that 100% certainty doesn’t mean
mathematical certainty – is consistent with the High Court’s own reasoning in Green that reasonable
doubt means any doubt, and with the phrases own Lockean origins.
England and Wales also feature a longstanding support for an explanation known as the ‘important
decision’ analogy, which compares a reasonable doubt to the ‘kind of doubt which, when you are
dealing with matters of importance in your own affairs, you allow to influence you one way or the
other’.92
This definition has been criticised and disapproved of in Canada and New Zealand for a
85
Judicial Studies Board, Crown Court Bench Book: Specimen Directions, 2007, s 2.
86
(2009) 28 VR 341.
87
Michael Zander, ‘The criminal standard of proof how sure is sure?’ (2000) 150 New Law Journal 1517.
88
Ibid 1524.
89
Ibid.
90
JW Montgomery, ‘The Criminal Standard of Proof’ (1998) 148 New Law Journal 582, 585.
91
Chris N Heffer, ‘The Language of Conviction and the Convictions of Certainty: Is 'Sure' an Impossible
Standard of Proof?’ (2007) 5(1) International Commentary on Evidence 1, 10-11.
92
Martin, above n 12, 108.

18. 18
number of reasons, mostly because such a description ‘runs the risk of significantly reducing the
standard to which the prosecution must be held’.93
2 United States of America
The Federal Judicial Center provides a recommended direction as to the standard of proof to be
applied in criminal cases. The recommended definition compares the criminal standard of proof to
that of the civil standard, and describes the standard as being proof ‘beyond a reasonable doubt’. The
direction goes on to define this as ‘proof that leaves you firmly convinced of the defendant’s guilt’.94
The direction then goes on to specify that the burden does not require the prosecution to prove their
case beyond all possible doubt.
The use of the phrase ‘firmly convinced’ was studied by Horowitz and Kirkpatrick (1996)95
referred
to above. That study indicated that ‘firmly convinced’ had a similar benefit to the use of the word
‘sure’ in that it appears to increase the standard of proof required in a juror’s mind, but not the same
level as that achieved by the ‘sure’ instruction in Zander’s (2000) study. Therefore, although ‘firmly
convinced’ may bring jurors’ concept of ‘beyond reasonable doubt’ more into line with that expected
by the court, it doesn’t appear as though it is as effective as the ‘sure’ instruction being used in
England.
3 Canada
The Canadian Supreme Court held in R v Lifchus96
that an explanation of the concept ‘beyond
reasonable doubt’ is an essential element of the instructions that must be given to a jury’.97
The court
also approved a quite lengthy direction in that case which begins by outlining the presumption of
innocence and describes the standard of proof as ‘beyond reasonable doubt’. It goes on to explain
‘beyond reasonable doubt’ by saying it is ‘not an imaginary or frivolous doubt... [or doubt] based
upon sympathy or prejudice. Rather, it is based on reason and common sense.’98
The direction goes on
to distinguish between the jury thinking the accused is probably guilty and being satisfied beyond a
reasonable doubt, before also acknowledging that absolute certainty is not required. The direction
concludes with a summary:
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.99
93
R v Lifchus [1997] 3 SCR 320, 330-331 [24].
94
Federal Judicial Center, Pattern Criminal Jury Instructions (1987), Pt I s 21.
95
Horowitz and Kirkpatrick, above n 42.
96
[1997] 3 SCR 320, 336-338 [39].
97
Ibid 329-330 [22].
98
Ibid.
99
Ibid.

19. 19
The use of the word ‘sure’ in the summary of the direction is similar to the direction in England and
Wales, however it should be noted that in Canada the word ‘sure’ comes after the phrase beyond
reasonable doubt is already used – not instead of the phrase as is commonly the case in England and
Wales.100
Whether this difference has any effect on how jurors interpret the standard of proof is
something that could be investigated if Victoria was to undertake a jury project of its own. The trade-
offs between the succinctness of England’s direction and the more detailed Canadian direction could
also be investigated – that is, whether the benefits of a more detailed explanation such as that
provided by Canada outweighs the potential pitfalls of a longer explanation being more difficult for
jurors to understand.
4 New Zealand
The Court of Appeal considered the issue of how to define ‘beyond reasonable doubt’ in R v
Wanhalla.101
In this case, the court gave an explanation of ‘beyond reasonable doubt’ that they
encouraged other judges to follow. The explanation they gave borrowed in part from the Canadian
explanation given in Lifchus: the explanation began with the presumption of innocence, and equated
beyond reasonable doubt with being ‘sure that the accused is guilty.’102
The court did not make their explanation mandatory for other judges to follow and noted that no
single formula was required. The court stated it would be sufficient to simply ‘make it clear that the
concept involves a high standard of proof’.103
This is a common thread in many jurisdictions – whilst
judges are often provided with model directions, most jurisdictions allow for flexibility, requiring
only that the key concept such as the standard and onus of proof be stated.
5 What about quantified definitions?
There does not appear to be any common law traditions that advocate or even permits judges to
explain the standard of proof in reference to a percentage or quantified measure of certainty.104
Such a
radical step is unlikely in Victoria, considering how this country already appears to lag behind other
jurisdictions in even attempting to explain the concept to jurors using language alone. Such a move
would also be in direct contradiction to the common law, the position of which is well put by King CJ
in Pahuja: ‘the adjective “reasonable” in the expression “reasonable doubt” does not denote any
particular degree of strength of the doubt. It is qualitative, not quantitative, in meaning’.105
That is, a
person may be 99% sure of the defendant’s guilt, but if that one percent of uncertainty is a reasonable
doubt then the jury must acquit. Mathematical probabilities are generally regarding as inappropriate
for judicial fact-finders because the kind of decision-making that is involved in that exercise is
100
Martin, above n 12, 109.
101
[2007] 2 NZLR 573.
102
Ibid 588 [49].
103
Ibid 589 [52].
104
Kagehiro, above n 61, 197.
105
R v Pahuja (1987) 49 SASR 191, 195.

20. 20
undertaken via a process of global assessment of an entire complex array of information.106
Such a
process cannot accurately be simplified to a single percentage or numerical threshold. The Victorian
Court of Appeal also rejected the notion of using percentages to describe the standard of proof in R v
Cavkic.107
Despite the obvious opposition, there is still something to be said in favour of introducing a numerical
or quantified expression as part of the explanation of beyond reasonable doubt. As discussed above,
definitions that included quantified elements in them were the only definitions that had the desired
effect on jurors’ standards of proof in Kagehiro’s (1990)108
series of studies. This indicates that
quantified definitions are the most accurate and easily understood way to communicate the standard
of proof to jurors. Obviously such a step would be a significant departure from the common law, but it
is something that should be considered as a means of increasing juror understanding of how high the
standard of proof is intended to be, and to help ensure that a consistent standard of proof is applied
across cases. If a jury project is undertaken in Victoria, the utility of definitions that incorporate
quantified elements should be investigated.
VI CONCLUSION
Nobody doubts the importance of criminal standard of proof to the fabric of society through its
function as a key protection of an individual’s liberty against the power of the state. It is surprising,
then, that the Australian courts persist in their assumptions about jurors’ understanding of the phrase
‘beyond reasonable doubt’, despite the ever-increasing weight of evidence to the contrary. Numerous
studies have demonstrated that jurors do not have a natural understanding of the phrase ‘beyond
reasonable doubt’, and do not apply the standard as it is intended by the courts. Studies have also
demonstrated the powerful effect on the standard of proof and on verdicts that different definitions
can create, and that in contrast again the assumptions of the court, can actually increase rather than
decrease the standard of proof being applied. Doing so would replace assumption with evidence, and
bring Australia up to speed with other jurisdictions around the world.
When charging the jury, judges in Victoria have stopped at ‘reasonable doubt’ for too long – it is time
they moved beyond.
106
DH Hodgson, ‘The Scales of Justice: Probability and Proof in Legal Fact-Finding’ (1995) 69 The Australian
Law Journal 731, 736.
107
[2005] VSCA 182.
108
Kagehiro, above n 61.

21. 21
BIBLIOGRAPHY
A Articles/Books/Reports
Bates, Frank, ‘Describing the Indescribable – Evaluating the Standard of Proof in Criminal Cases’ (1989) 13
Criminal Law Journal 330
Blackstone, William, Commentaries on the Laws of England (University of Chicago Press, 1979)
Brewer, Neil, and Kipling D Williams (eds), Psychology and Law: an Empirical Perspective (The Guilford
Press, 2003)
Diamond, Shari Seidman, and Hans Zeisel, ‘A Courtroom Experiment on Juror Selection and Decision-Making’
(1974) 1 Personality and Social Psychology Bulletin 276
Diamond, Henry A, ‘Reasonable Doubt: To Define or Not to Define’ (1990) 90 Columbia Law Review 1716
Dhami, Mandeep K, Samantha Lundrigan and Katrin Mueller-Johnson, ‘Instructions on Reasonable Doubt:
Defining the Standard of Proof and the Juror’s Task." (2015) 21 Psychology, Public Policy, and Law 169
Eames, Geoff, ‘Tackling the Complexity of Criminal Trial Directions: What Role for Appellate Courts?’ (2007)
29 Australian Bar Review 161
Heffer, Chris N, ‘The Language of Conviction and the Convictions of Certainty: Is 'Sure' an Impossible
Standard of Proof?’ (2007) 5(1) International Commentary on Evidence 1
Hodgson, DH, ‘The Scales of Justice: Probability and Proof in Legal Fact-Finding’ (1995) 69 The Australian
Law Journal 731
Horowitz, Irwin A, and Laird C Kirkpatrick, ‘A Concept in Search of a Definition: The Effects of Reasonable
Doubt Instructions on Certainty of Guilt Standards and Jury Verdicts’ (1996) 20 Law and Human Behavior 655
Kagehiro, Dorothy K, ‘Defining the Standard of Proof in Jury Instructions’ (1990) 1 Psychological Science 194
Kapardis, Andreas, Psychology and Law (Cambridge University Press, 2003)
Kerr, Norbert L et al, ‘Guilt Beyond a Reasonable Doubt: Effects of Concept Definition and Assigned Decision
Rule on the Judgments of Mock Jurors’ (1976) 34 Journal of Personality and Social Psychology 282
Locke , John, and P H Nidditch, An Essay Concerning Human Understanding (Clarendon Press, 1975).
Martin, BR, ‘Beyond Reasonable Doubt’ (2010) 10 The Judicial Review 83
McEwan, Jenny, The Verdict of the Court (Hart Publishing, 2003)
McKimmie, Blake M, Emma Antrobus and Chantelle Baguley, ‘Objective and Subjective Comprehension of
Jury Instructions in Criminal Trials’ (2014) 17 New Criminal Law Review 163
McClellan, Peter, ‘Looking Inside the Jury Room’ (May 2011) Law Society Journal 68
Montgomery, JW, ‘The Criminal Standard of Proof’ (1998) 148 New Law Journal 582
New Zealand Law Commission, Juries in Criminal Trials Part Two: A Summary of the Research Findings,
Discussion Paper No 37 (1999)
Note, "Reasonable Doubt: An Argument Against Definition" (1995) 108 Harvard Law Review 1955

22. 22
Queensland Law Reform Commission, A Review of Jury Directions, Report No 66 (2009)
Reynolds, Casey, ‘Implicit Bias and the Problem of Certainty in the Criminal Standard of Proof’ (2013) 37 Law
& Psychology Review 229
Sealy, AP and WR Cornish ‘Juries and the Rules of Evidence’ Criminal Law Review (1973) April 208.
Shapiro, Barbara J, “Beyond Reasonable Doubt” and "Probable Cause" (University of California Press, 1991)
Solan, Lawrence M, ‘Refocusing the Burden of Proof in Criminal Cases: Some Doubt About Reasonable
Doubt’ (1999) 78 Texas Law Review 105
Trimboli, Lily, ‘Juror Understanding of Judicial Instructions in Criminal Trials’ (2008) 119 NSW Bureau of
Crime Statistics and Research Crime and Justice Bulletin 1
Underwood, Barbara D, ‘The Thumb on the Scales of Justice: Burdens of Persuasion in Criminal Cases’ (1977)
86 The Yale Law Journal 1299
Warner, K, J Davis and P Underwood, ‘The Jury Experience: Insights from the Tasmanian Jury Study’ (2011)
10 The Judicial Review 333
Zander, Michael, ‘The criminal standard of proof how sure is sure?’ (2000) 150 New Law Journal 1517
B Cases
Darkan v The Queen (2006) 227 CLR 373
Dawson v The Queen (1961) 106 CLR 1
Graham v R (2000) 116 A Crim R 108
Green v The Queen (1971) 126 CLR 28
Neilan v R [1992] 1 VR 57
R v Cavkic [2005] VSCA 182
R v Cavkic (No 2) (2009) 28 VR 341
R v Chatzidimit (2000) 1 VR 493
R v Lifchus [1997] 3 SCR 320
R v Pahuja (1987) 49 SASR 191
R v Wanhalla [2007] 2 NZLR 573
R v Wilson (1986) 42 SASR 203
Thomas v The Queen [1960] 102 CLR 584

23. 23
C Legislation
Jury Directions Act 2015 (Vic)
D Other
Federal Judicial Center, Pattern Criminal Jury Instructions (1987)
Judicial College of Victoria, Victorian Criminal Charge Book, 2016
Judicial Studies Board, Crown Court Bench Book: Specimen Directions, 2007