C O M P A R AT I V E S T U D Y
the trial judge in Jamaica gave the jury a long explanation as to what was
meant by reasonable doubt, which was criticized upon the same lines as
the jury instruction in Ching. The criticisms were considered by the Privy
Council,553 which concluded:
By the time he sums up the judge at the trial has had an opportunity
of observing the jurors. In their Lordships’ view it is best left to his
discretion to choose the most appropriate set of words in which
to make that jury understand that they must not return a verdict
against a defendant unless they are sure of his guilt; and if the
judge feels that any of them, through unfamiliarity with court
procedure, are in danger of thinking that they are engaged in
some task more esoteric than applying to the evidence adduced at
the trial the common sense with which they approach matters of
importance to them in their ordinary lives, then the use of such
analogies as that used by Small J. in the present case, whether in
the words in which he expressed it or in those used in any of the
other cases to which reference has been made, may be helpful and
is in their Lordships’ view unexceptionable.554
Reasonable doubt remains undefined in British jurisprudence.555
Canada
Similar to the courts in the UK, Canadian appellate courts have declined
to define reasonable doubt. The following case illustrates one trial judge’s
definition, which the Canadian Supreme Court held to be deficient.
In Regina v. Brydon, the appellant was convicted of five counts of sexual
assault.556 After commencing deliberations, the jury sent a note to the
trial judge requesting further instructions concerning the definition of
reasonable doubt. The trial judge instructed:
(i) …if you believe that the accused is probably guilty or likely guilty
but still have a reasonable doubt, you must give the benefit of that
doubt to the accused; … (ii) …after examining all of the evidence you
may be left with a reasonable doubt as to whether the accused is
guilty or not guilty; … (iii) …if you are unanimous in that doubt you
must give the benefit of that doubt to the accused.557
The Canadian Court of Appeal upheld the conviction, being satisfied that
The Judicial Committee of the Privy Council is the court of final appeal for the UK overseas
territories and Crown dependencies, and for those Commonwealth countries that have retained the
appeal to Her Majesty in Council or, in the case of Republics, to the Judicial Committee. See Judicial
Committee, Overview, available at http://privycouncil.independent.gov.uk/judicial-committee/ (last
accessed 14 April 2016).
554
Walters, at 30 (italics in original).
555
See David Pannick, Jurors Who Are in Reasonable Doubt, Times (London), 17 January 1995, at 2. See
also Thomas V. Mulrine, Reasonable Doubt: How in the World is it Defined? 12(1) Am. U. Int’l L. Rev.
195, 218 (1997).
556
Regina v. Brydon, [1995] 4 S.C.R., 253, para. 4 (hereinafter “Brydon”).
557
Brydon, para. 5.
553
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