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1.10-c2-s2 | 1.10 Juror Questions | 7. There is no rule of law prohibiting jurors from questioning witnesses (*R v Lo Presti *[1992] 1 VR 696; *R v Cvijic *21/2/1986 Vic CCA;* R v Boland *[1974] VR 849).
8. In *R v Lo Presti *[1992] 1 VR 696, the Court of Appeal laid down the following guidelines in relation to such questions:
1. Juries should not be... | [^2]: Jurors may communicate with court officials about administrative or technical matters (such as setting up equipment) (*Dempster* (1980) 71 Cr App R 302; *R v Barnowski* [1969] SASR 386). |
1.10-c2-s3 | 1.10 Juror Questions | 9. The points above are guidelines only. Judges have discretion to determine what course is best in the circumstances to ensure justice between the parties and the avoidance of unacceptable prejudice to the accused. They have the right and obligation to control the proceedings in their court in a manner that will enabl... | [^2]: Jurors may communicate with court officials about administrative or technical matters (such as setting up equipment) (*Dempster* (1980) 71 Cr App R 302; *R v Barnowski* [1969] SASR 386). |
1.10-c2-s4 | 1.10 Juror Questions | 12. Jurors should not ask court officers questions concerning the case, or channel questions to the judge through a court officer.[^2] Questions should be asked by the foreperson in open court, or preferable put in writing by the foreperson and delivered directly to the judge. (*R v Cavkic (No 2)* (2009) 28 VR 341. See... | [^2]: Jurors may communicate with court officials about administrative or technical matters (such as setting up equipment) (*Dempster* (1980) 71 Cr App R 302; *R v Barnowski* [1969] SASR 386). |
1.10-c2-s5 | 1.10 Juror Questions | 15. In most cases, a judge must inform the parties of the precise terms of the questions asked. It is not sufficient to identify the subject matter of the question in general terms (*R v Black* (2007) 15 VR 551; [2007] VSCA 61).
16. A judge must inform the parties of the terms of a question, even if that question indi... | [^2]: Jurors may communicate with court officials about administrative or technical matters (such as setting up equipment) (*Dempster* (1980) 71 Cr App R 302; *R v Barnowski* [1969] SASR 386). |
1.10-c3-s1 | 1.10 Note-taking | ## Note-taking
1. Jurors are allowed to take notes during the trial if they choose, and should be provided with appropriate materials. Practices vary as to whether such note-taking is to be encouraged or discouraged.
2. Any notes made by a discharged juror should not be left with the remaining jurors (*Derbas v R *... | null |
1.10.1-c1-s1 | 1.10.1 Charge: Trial Procedure | # 1.10.1 Charge: Trial Procedure
## Order of Proceedings
I will now describe the procedure that we will follow during the trial, and some general administrative matters.
In a moment we will hear the opening address from the prosecutor, and the reply from counsel for the accused.[^1] Then we will proceed to hear th... | [^1]: This will need to be modified if the judge’s remarks are made after the opening address and reply. |
1.10.1-c2-s1 | 1.10.1 Transcripts and Note-taking | ## Transcripts and Note-taking
All of the evidence in this case is going to be tape recorded and transcribed. This means that you will be able to check on any part of the evidence you later cannot remember.
However, you should always listen carefully to the evidence as it is given, because it is not only what the wit... | null |
1.10.1-c3-s1 | 1.10.1 Sitting times and breaks | ## Sitting times and breaks
Our hours here in court are [*insert starting time*] until [*insert lunch time*] and then [*insert starting time after lunch*] until [*insert finishing time*].
If something comes up which means that you may not able to attend court when we would normally be sitting, please let me know as s... | null |
1.10.1-c4-s1 | 1.10.1 Jury Guide | ## Jury Guide
[*If the judge is providing the jury with a jury guide, add the following shaded section.*]
To help you remember the directions I have just given you, my tipstaff will now give you a jury guide. You can write on it if you wish. The Guide, like all documents we will give you during the trial, must not be... | null |
1.10.1-c5-s1 | 1.10.1 Opening Address | ## Opening Address
We will now hear the opening address from the prosecution, who will tell you what the case is about.
[*After opening and reply, briefly state the issues*.]
Last updated: 14 August 2023 | null |
1.11-c1-s1 | 1.11 Consolidated Preliminary Directions | # 1.11 Consolidated Preliminary Directions
**Note**: This document replicates the directions in 1.4–1.10 in a single, consolidated document.
## Introduction | null |
1.11-c2-s1 | 1.11 Introduction | ## Introduction
Serving on a jury may be a completely new experience for some, if not all, of you. To help you perform that role properly, I will now describe your duties as jurors and the procedures that we will follow during the trial. I will also explain to you some of the principles of law that apply in this case.... | null |
1.11-c3-s1 | 1.11 Roles of Judge, Jury and Counsel | ## Roles of Judge, Jury and Counsel
Members of the jury, you represent one of the most important institutions in our community – the institution of trial by jury. Our legal system guarantees any individual charged with a criminal offence the right to have the case presented against him or her determined by twelve inde... | [^1]: This charge is drafted for use in cases involving one accused. If the case involves multiple accused, it will need to be modified accordingly.
[^2]: This sentence will need to be modified if the accused is unrepresented.
[^3]: This section will need to be modified if the accused is unrepresented. |
1.11-c3-s2 | 1.11 Roles of Judge, Jury and Counsel | ## Role of the Judge
It is my role, as the judge, to ensure that this trial is fair and conducted in accordance with the law. I will also explain to you the principles of law that you must apply to make your decision. You must accept and follow all of those directions.
I want to emphasise that it is not my responsibi... | [^1]: This charge is drafted for use in cases involving one accused. If the case involves multiple accused, it will need to be modified accordingly.
[^2]: This sentence will need to be modified if the accused is unrepresented.
[^3]: This section will need to be modified if the accused is unrepresented. |
1.11-c4-s1 | 1.11 What is Evidence? | ## What is Evidence?
I have told you that it is your task to determine the facts in this case, and that you should do this by considering all of the evidence presented in the courtroom. I now need to tell you what is and what is not evidence.
The first type of evidence is what the witnesses say.
It is the answers th... | [^4]: If the accused is unrepresented, the jury should be told that what s/he says in his/her addresses, or when questioning witnesses, is also not evidence. |
1.11-c4-s2 | 1.11 What is Evidence? | The third type of evidence is what is called an “admission”. Admissions are facts that the prosecution and defence agree about. When that happens, no other evidence is required – the admissions are treated as established facts. I will tell you about any admissions that have been made in this case when relevant.
Nothin... | [^4]: If the accused is unrepresented, the jury should be told that what s/he says in his/her addresses, or when questioning witnesses, is also not evidence. |
1.11-c5-s1 | 1.11 No Sympathy or Prejudice | ## No Sympathy or Prejudice
It is your duty to decide this case only on the basis of that evidence. You must ignore all other considerations.
In particular, you should dismiss any feelings of sympathy or prejudice you may have, whether it is sympathy for, or prejudice against, the accused or anyone else. No such emot... | null |
1.11-c6-s1 | 1.11 No Outside Information | ## No Outside Information
When you retire to consider your verdict, you will have heard or received in court, or otherwise under my supervision, all the information that you need to make your decision.
Unless I tell you otherwise, you must not base your decision on any information you obtain outside this courtroom. F... | [^5]: If there has been significant pre-trial publicity about the case or the parties involved, it may be necessary to give a more detailed warning. See Decide Solely on the Evidence for further information. |
1.11-c6-s2 | 1.11 No Outside Information | Third, acting on outside information would be false to the oath or affirmation you took as jurors to give a true verdict according to the evidence. You would cease being a juror, that is, a judge of the facts, and have instead taken on the role of an investigator.
If one of your fellow jurors breaches these instructio... | [^5]: If there has been significant pre-trial publicity about the case or the parties involved, it may be necessary to give a more detailed warning. See Decide Solely on the Evidence for further information. |
1.11-c7-s1 | 1.11 Consequences of breaching instructions | ## Consequences of breaching instructions
You may have a question about what could happen if you acted on outside information or conducted your own research.
The immediate outcome is that the jury may need to be discharged and the trial may have to start again. This would cause stress and expense to the witnesses, th... | null |
1.11-c8-s1 | 1.11 Warnings About Discussing the Case | ## Warnings About Discussing the Case
As judges of the facts, it is also important that you are careful to avoid any situations that could interfere with your ability to be impartial, or that could make you appear to be biased towards one side or the other.
You must therefore be careful not to get into conversation w... | null |
1.11-c8-s2 | 1.11 Warnings About Discussing the Case | At the end of the trial, you will have access to a Juror Support Program. A Juries Victoria staff member will give you more information about that in due course.
Some of you might have a regular doctor or psychologist you speak to about distressing experiences. But as a juror there are limits on what you can say durin... | null |
1.11-c8-s3 | 1.11 Warnings About Discussing the Case | ## Consequences of breaching instructions revisited
You have already heard what can happen when jurors disregard the instruction not to conduct their own research. Similar consequences can follow if you discuss the case with others.
You must therefore also let me know if someone tries to discuss the case with you, or... | null |
1.11-c9-s1 | 1.11 Assessing Witnesses | ## Assessing Witnesses
In order to decide what the facts are in this case, you will need to assess the witnesses who give evidence. It is up to you to decide how much or how little of the testimony of any witness you will believe or rely on. You may believe all, some or none of a witness’s evidence. It is also for you... | null |
1.11-c10-s1 | 1.11 Onus and Standard of Proof | ## Onus and Standard of Proof
It is a critical part of our justice system that people are presumed to be innocent, unless and until they are proved guilty. So before you may return a verdict of guilty, the prosecution must satisfy you that [each of] the accused is guilty of the charge[s] in question.
As the prosecuti... | null |
1.11-c10-s2 | 1.11 Onus and Standard of Proof | However, for now you should know that it is only if you find that the prosecution has proven all of the elements of a charge beyond reasonable doubt that you may find the accused guilty of that charge. If you are not satisfied that the prosecution has done this, your verdict in relation to that charge must be “Not Guil... | null |
1.11-c11-s1 | 1.11 Separate Consideration – Multiple Accused | ## Separate Consideration – Multiple Accused
[*If the case involves multiple accused, add the following shaded section*.]
In this trial there are [*insert number*] accused. The prosecution says each of them is guilty. Each of them says they are not guilty. So there are really [*insert number*] trials [all] being hear... | null |
1.11-c12-s1 | 1.11 Separate Consideration – Multiple Charges | ## Separate Consideration – Multiple Charges
[*If the case involves multiple charges, add the following shaded section**.*]
In this trial, the prosecution has brought [*insert number*] charges against the accused. While these are separate matters, they are [all] being dealt with in the one trial. This is done for con... | null |
1.11-c13-s1 | 1.11 Alternative Verdicts | ## Alternative Verdicts
[*Where there is *one incident* which involves alternatives, add the following shaded section. If there are *multiple incidents* involving alternatives, this charge will need to be modified*.]
Members of the jury, my tipstaff is now going to hand you a document called an “indictment”. This doc... | null |
1.11-c14-s1 | 1.11 Trial Procedure | ## Trial Procedure
## Order of Proceedings
I will now describe the procedure that we will follow during the trial, and some general administrative matters.
In a moment we will hear the opening address from the prosecutor, and the reply from counsel for the accused.[^6] Then we will proceed to hear the evidence. Af... | [^6]: This will need to be modified if the judge’s remarks are made after the opening address and reply. |
1.11-c15-s1 | 1.11 Jury Guide | ## Jury Guide
[*If the judge is providing the jury with a jury guide, add the following shaded section**.*]
To help you remember the directions I have just given you, my tipstaff will now give you a jury guide. You can write on it if you wish. The Guide, like all documents we will give you during the trial, must not ... | null |
2.1-c1-s1 | 2.1 Views | # 2.1 Views
## What is a view?
1. Under s 53 of the* Evidence Act 2008, *the court may order a "demonstration, experiment or inspection" (collectively, a "view").[^1]
2. These terms are not defined in the *Evidence Act 2008*. Based on the common law and the conventional meaning of the terms:
- An *inspection*... | [^1]: While the heading of s 53 is "views", that term is not used in the provision. It has been held that it was Parliament’s intention to use the word "view" as a general word to encompass demonstrations, experiments and inspections. This differs from the common law, where a view was an inspection and did not encompas... |
2.1-c2-s1 | 2.1 When May a View Be Ordered | ## When May a View Be Ordered
1. A judge may order a view on the application of a party (*Evidence Act 2008* s 53).
2. Before ordering a view, the judge must be satisfied that:
- The parties will be given a reasonable opportunity to be present; and
- The judge and jury will be present (*Evidence Act 2008* s 53)... | null |
2.1-c2-s2 | 2.1 When May a View Be Ordered | 7. Unlike at common law (see, e.g. *R v Alexander* [1979] VR 615), the circumstances to be demonstrated do not need to be identical to the circumstances that existed at the time of the event in question. Similarity of circumstances is merely one factor that a judge must consider (*Evidence Act 2008* s 53).
8. A view m... | null |
2.1-c3-s1 | 2.1 For What Purposes May a View be Used? | ## For What Purposes May a View be Used?
1. The jury may use a view as a source of evidence in the case, and may draw any reasonable inferences from what it sees, hears or otherwise notices during a view (*Evidence Act 2008* s 54).
2. A view may also allow the jury to better understand the evidence given in court a... | null |
2.1-c4-s1 | 2.1 Conduct of a View | ## Conduct of a View
1. A view may be facilitated by a sworn ‘shower’ who points out what are said to be relevant features on the view. The ‘shower’ is usually a member of court staff, who has previously received a ‘dry run’ of the view with the assistance of the informant. It is only in an exceptional case that the... | null |
2.1-c5-s1 | 2.1 Directions on Views | ## Directions on Views
1. The judge should instruct the jury that inspections and experiments are only allowed under the strict control of the court. Jurors must not conduct their own inspections or experiments during deliberations. Such conduct is a criminal offence (*R v Skaf* (2004) 60 NSWLR 86; *Evidence Act 200... | [^2]: Witnesses should not accompany the jury unless conducting a demonstration or experiment. |
2.1-c6-s1 | 2.1 Placing the View on the Record | ## Placing the View on the Record
1. Historically, one argument against using views as evidence was that there was no way for the results of the view to be transmitted to an appellate court. To overcome this problem, upon returning to court, judges should sum up (in the presence of the jury) what transpired, so that... | null |
2.1.1-c1-s1 | 2.1.1 Charge: Views | # 2.1.1 Charge: Views
This charge should be given before going on a view. Upon returning to court, it is advisable to sum-up, in the presence of the jury, what transpired and summarise these directions.
You will shortly be taken to [an inspection/see a demonstration/see an experiment] at [*insert location*]. You will... | [^1]: If the judge has already directed the jury about drawing inferences, this paragraph must be modified accordingly. |
2.2-c1-s1 | 2.2 Providing Documents to the Jury | # 2.2 Providing Documents to the Jury
## What Documents Can Be Given to the Jury?
1. Section 223(1) of the *Criminal Procedure Act 2009 *allows the judge to provide copies of the following documents to the jury (in any form that he or she considers appropriate) if he or she thinks it will assist the jury to under... | null |
2.2-c2-s1 | 2.2 When May a Document Be Given to the Jury? | ## When May a Document Be Given to the Jury?
1. A document may be provided to the jury on the application of a party, or on the judge’s own motion (*Criminal Procedure Act 2009 *s 337; *R v Benbrika and Ors (Ruling No. 11) *[2007] VSC 580).
2. The judge must think that the document will assist the jury to understan... | null |
2.2-c3-s1 | 2.2 Marking Jury Documents as Exhibits | ## Marking Jury Documents as Exhibits
1. Documents which the judge gives the jury, such as written directions, should be tendered by the court and marked as exhibits. This ensures that the documents are recorded in the same way as other exhibits and are preserved for any future proceedings. | null |
2.2-c4-s1 | 2.2 Types of Documents that May be Given to the Jury | ## Types of Documents that May be Given to the Jury
## Written Directions | null |
2.2-c4-s2 | 2.2 Types of Documents that May be Given to the Jury | 1. Under the *Criminal Procedure Act 2009 *s 223, a judge may give the jury written directions summarising relevant matters of law, setting out the questions it may be pertinent for them to consider, or describing the possible verdicts at which they may properly arrive.
2. Written directions may be particularly helpfu... | null |
2.2-c4-s3 | 2.2 Types of Documents that May be Given to the Jury | 6. The contents of written directions are a matter for the judge and counsel to consider in light of the evidence given at the trial. It is desirable to show them to counsel prior to providing them to the jury. This should be done before the judge’s charge has commenced, to provide counsel with adequate opportunity to ... | null |
2.2-c4-s4 | 2.2 Types of Documents that May be Given to the Jury | ## Explanatory Materials (Charts, Schedules and Chronologies) | null |
2.2-c4-s5 | 2.2 Types of Documents that May be Given to the Jury | 13. Judges may allow evidence to be given in the form of charts, summaries or other explanatory materials (*Evidence Act 2008 *ss 29(4), 50), and may provide schedules, chronologies, charts, diagrams, summaries or other explanatory materials to the jury (*Criminal Procedure Act 2009 *s 223(h)).
14. The use of charts, ... | null |
2.2-c4-s6 | 2.2 Types of Documents that May be Given to the Jury | 19. Consideration should be given to the language used in a summary. It should not implicitly express conclusions about the conversations summarised (e.g. through the use of conclusionary past participles such as "complained" or "confirmed"), where those conclusions are in dispute (*R v Benbrika and Ors (Ruling No. 11)... | null |
2.2-c4-s7 | 2.2 Types of Documents that May be Given to the Jury | ## Transcripts
### Transcripts of Evidence
24. A judge may provide the jury with a transcript of some or all of the oral evidence, including audio or audiovisual recordings of evidence, given in a trial if he or she thinks it will help them to understand the issues or the evidence (*Criminal Procedure Act 2009 *s... | null |
2.2-c4-s8 | 2.2 Types of Documents that May be Given to the Jury | - As jurors are usually allowed to take notes of the evidence, a member of the jury may already make a full note of what was said and read it to other members of the jury. It is preferable to provide them with a transcript, which carries the additional quality of guaranteed accuracy (*R v Taousanis* (1999) 146 A Crim R... | null |
2.2-c4-s9 | 2.2 Types of Documents that May be Given to the Jury | 27. While these cases should now be approached with some caution (due to the provisions of the *Criminal Procedure Act 2009*), the considerations identified may still be of assistance in determining when to exercise the discretion provided by s 223(ha) and (i).
28. If a judge chooses to provide the jury with a transcr... | null |
2.2-c4-s10 | 2.2 Types of Documents that May be Given to the Jury | 32. If there is a dispute about whether the transcript is accurate, the problem should be presented to the jury, to be resolved by them with the greatest assistance that the court and counsel can provide. The jury should be told of the possibility of error, and that they must not hold any words against the accused unle... | null |
2.2-c4-s11 | 2.2 Types of Documents that May be Given to the Jury | ### Transcripts of Addresses and the Judge’s Charge | null |
2.2-c4-s12 | 2.2 Types of Documents that May be Given to the Jury | 35. A judge has the power to allow transcripts of his or her summing-up, and any other addresses he or she has made, to be taken into the jury room. Transcripts of counsels’ addresses may also be provided (*Criminal Procedure Act 2009 *ss 223(b), (c), (f), (g), (k)).
36. A judge may, upon request, provide a transcript... | null |
2.2-c4-s13 | 2.2 Types of Documents that May be Given to the Jury | 41. If the jury requests a transcript of counsels’ addresses, it may not be sufficient to provide them with a transcript of the judge’s summing-up instead. While the summing-up provides an outline of the respective cases, counsels’ addresses may cover important factual material not contained in the judge’s charge, and ... | null |
2.2-c4-s14 | 2.2 Types of Documents that May be Given to the Jury | ### Transcripts of Taped Evidence
Transcripts of Tapes in English | null |
2.2-c4-s15 | 2.2 Types of Documents that May be Given to the Jury | 43. A tape recording may be admitted into evidence to prove that what is recorded took place in the circumstances and among the participants alleged by the prosecution, as well as to prove the content of any recorded conversation (*Butera v DPP (Vic)* (1987) 164 CLR 180).
44. It is the sound produced by playing the ta... | null |
2.2-c4-s16 | 2.2 Types of Documents that May be Given to the Jury | 48. Immediately before giving a transcript to the jury, they should be told that the purpose of giving it to them is not to provide independent evidence of the contents of the tape, but to help them to understand what is recorded on the tape. It is their understanding of the tape recording that is important, and the tr... | null |
2.2-c4-s17 | 2.2 Types of Documents that May be Given to the Jury | Transcripts of Tapes in Languages Other than English
51. Written translations of tapes recorded in languages other than English are different from transcripts of recordings in English. Such translations are not admissible as an aid to the jury’s understanding of the sounds recorded on the tape, because the jury will... | null |
2.2-c5-s1 | 2.2 Jury Guide | ## Jury Guide
1. The judge may provide the jury with a “jury guide”, which may contain:
1. a list of questions to assist the jury in reaching a verdict, including a written form of any factual question directions or integrated directions;
1. evidentiary directions;
2. references to how the parties have put their ... | null |
2.2.1-c1-s1 | 2.2.1 Charge: Explanatory Materials (Charts, Schedules and Chronologies) | # 2.2.1 Charge: Explanatory Materials (Charts, Schedules and Chronologies)
[*Insert name of witness*] has just used a [*insert type of explanatory material*] to help to explain his/her evidence. This was used for convenience, and is not evidence in the case.
You must therefore not base your decisions in this case on ... | null |
2.2.2-c1-s1 | 2.2.2 Charge: Transcripts of Evidence and Addresses | # 2.2.2 Charge: Transcripts of Evidence and Addresses
You are about to be given a transcript of [*insert description*]. I am giving this to you in order to help you remember the evidence that was given in court. The transcript itself is not evidence.
[*If parts of the transcript have been removed, add the following s... | null |
2.2.3-c1-s1 | 2.2.3 Charge: Transcripts of Taped Evidence | # 2.2.3 Charge: Transcripts of Taped Evidence
You are about to be given a transcript of the [tape/video] you are about to [hear/see]. I am giving this to you to help you follow the [tape/video] as it is played. The [tape/video] is the only evidence. The transcript is just an aid. It is not evidence.
If what you read ... | null |
2.3.1-c1-s1 | 2.3.1 Alternative Arrangements | # 2.3.1 Alternative Arrangements
## When Can Alternative Arrangements Be Made?
1. While ordinarily witnesses must give evidence in the courtroom in accordance with normal court procedures, the *Criminal Procedure Act 2009 *provides that alternative arrangements can be made if the proceedings relate (wholly or par... | [^1]: The definition of a "family member" under the *Family Violence Protection Act 2008 *is broad, and includes current and former partners and their children, other relatives and former relatives, and people who are reasonably regarded as being like a family member, having regard to the circumstances of the relations... |
2.3.1-c1-s2 | 2.3.1 Alternative Arrangements | (a) an offence against–
(i) a provision of Subdivision (8A), (8B), (8C), (8D), (8E), (8F) or (8FA) of Division 1 of Part I of the *Crimes Act 1958*; or
(ii) section 327(2) (failure to disclose a sexual offence committed against a child under the age of 16 years) of the *Crimes Act 1958*; or
(iii) section 5(1), 6(1),... | [^1]: The definition of a "family member" under the *Family Violence Protection Act 2008 *is broad, and includes current and former partners and their children, other relatives and former relatives, and people who are reasonably regarded as being like a family member, having regard to the circumstances of the relations... |
2.3.1-c1-s3 | 2.3.1 Alternative Arrangements | - Behaviour towards a "family member"[^1] that:
- Is physically or sexually abusive;
- Is emotionally or psychologically abusive;[^2]
- Is economically abusive;[^3]
- Is threatening;
- Is coercive;
- In any other way controls or dominates the family member and causes the family member to fear for the safety or we... | [^1]: The definition of a "family member" under the *Family Violence Protection Act 2008 *is broad, and includes current and former partners and their children, other relatives and former relatives, and people who are reasonably regarded as being like a family member, having regard to the circumstances of the relations... |
2.3.1-c2-s1 | 2.3.1 Types of Alternative Arrangements | ## Types of Alternative Arrangements
1. *Criminal Procedure Act 2009 *s 360 provides a non-exhaustive list of alternative arrangements that may be made in relation to any witness (including the complainant) who gives evidence in a proceeding that relates (wholly or partly) to a sexual offence or a family violence of... | null |
2.3.1-c3-s1 | 2.3.1 Requirement to Use Alternative Arrangements for Complainants | ## Requirement to Use Alternative Arrangements for Complainants
1. In proceedings that relate (wholly or partly) to a sexual offence or a family violence offence, the court must direct that the complainant’s evidence be given from a place other than the courtroom, unless:
- The prosecution applies for the complai... | [^4]: See 2.3.3 Pre-recorded Evidence for further information concerning the special hearing procedure. |
2.3.1.1-c1-s1 | 2.3.1.1 Charge: Alternative Arrangements | # 2.3.1.1 Charge: Alternative Arrangements
This charge may be given the first time an alternative arrangement is made. For subsequent witnesses, 2.3.1.2 Charge: Alternative Arrangement (Short Charge) may be used instead.
Before the next witness, NOW, gives evidence, there is a matter I must mention to you. [*Describe... | null |
2.3.1.2-c1-s1 | 2.3.1.2 Charge: Alternative Arrangements (Short Charge) | # 2.3.1.2 Charge: Alternative Arrangements (Short Charge)
This charge may be used if the judge has previously directed the jury about alternative arrangements. When alternative arrangements are made for the first time, 2.3.1.1 Charge: Alternative Arrangements should be used instead.
Certain alternative arrangements h... | null |
2.3.2-c1-s1 | 2.3.2 Protected Witnesses | # 2.3.2 Protected Witnesses
## Who is a "Protected Witness"?
1. The "protected witness" provisions of the *Criminal Procedure Act 2009* apply to proceedings that relate (wholly or partly) to a charge for:
- A "sexual offence"; [^2] or
- An offence where the conduct constituting the offence consists of "family... | [^2]: See 2.3.1 Alternative Arrangements for the definition of a "sexual offence" charge.
[^3]: See 2.3.1 Alternative Arrangements for the definition of a "family violence" offence.
[^4]: See *Criminal Procedure Act 2009* s 354 for the definition of a "family member" in this context. This definition differs from the de... |
2.3.2-c2-s1 | 2.3.2 Cross-Examination of Protected Witnesses | ## Cross-Examination of Protected Witnesses
1. A protected witness must not be personally cross-examined by the accused (*Criminal Procedure Act 2009 *s 356).
2. Where a protected witness gives evidence, and the accused is not legally represented, the court must inform the jury that the accused is not permitted to ... | null |
2.3.2.1-c1-s1 | 2.3.2.1 Charge: Protected Witnesses | # 2.3.2.1 Charge: Protected Witnesses
As you are aware, throughout this trial NOA has elected to conduct his/her own defence. While the law allows him/her to do this, it places some limits on what s/he may do. In particular, it does not permit him/her to personally cross-examine certain witnesses, including the next w... | null |
2.3.3-c1-s1 | 2.3.3 Pre-Recorded Evidence | # 2.3.3 Pre-Recorded Evidence
## Overview
1. While ordinarily witnesses must give their evidence at the time of the relevant legal proceeding, the *Criminal Procedure Act 2009* specifies three circumstances in which pre-recorded evidence may be used:
1. Division 5 of Part 8.2 allows the evidence-in-chief of cert... | null |
2.3.3-c2-s1 | 2.3.3 The VARE Procedure | ## The VARE Procedure
1. The VARE procedure may be used in criminal proceedings other than committal proceedings, that relate (wholly or partly) to a charge for:
(a) A sexual offence;[^2] or
(b) An indictable offence which involves assault, injury or threat of injury (*Criminal Procedure Act 2009* s 366(1). See ... | [^2]: See 2.3.1 Alternative Arrangements for the definition of "sexual offences".
[^3]: The witness should be asked whether his or her statements on the recording are truthful, rather than being asked whether the recording is truthful. The later question may mean no more than that the tape accurately recorded his or he... |
2.3.3-c2-s2 | 2.3.3 The VARE Procedure | 5. One of the circumstances in which the VARE procedure may be used is where the proceeding relates to a charge for an indictable offence which involves assault, injury or threat of injury (*Criminal Procedure Act 2009* s 366(1)(b)).
6. The word "injury" in s 366(1)(b) includes mental harm (*R v Anders* (2009) 20 VR 5... | [^2]: See 2.3.1 Alternative Arrangements for the definition of "sexual offences".
[^3]: The witness should be asked whether his or her statements on the recording are truthful, rather than being asked whether the recording is truthful. The later question may mean no more than that the tape accurately recorded his or he... |
2.3.3-c2-s3 | 2.3.3 The VARE Procedure | 11. If the witness fails to attest to the truthfulness of the recording, the evidence may only be admitted if counsel for the defence does not object (*R v LRG* (2006) 16 VR 89).
12. The witness does not need to remember the matters which are the subject of the recording. The requirement that he or she attest to the t... | [^2]: See 2.3.1 Alternative Arrangements for the definition of "sexual offences".
[^3]: The witness should be asked whether his or her statements on the recording are truthful, rather than being asked whether the recording is truthful. The later question may mean no more than that the tape accurately recorded his or he... |
2.3.3-c2-s4 | 2.3.3 The VARE Procedure | 16. Juries often ask to be allowed to view a VARE again during their deliberations.
17. Under *Criminal Procedure Act 2009* s 223(1)(i) the judge may order at any time during the trial that the jury be provided with audio or audiovisual recordings of evidence. The section contains a purposive limitation – that provisi... | [^2]: See 2.3.1 Alternative Arrangements for the definition of "sexual offences".
[^3]: The witness should be asked whether his or her statements on the recording are truthful, rather than being asked whether the recording is truthful. The later question may mean no more than that the tape accurately recorded his or he... |
2.3.3-c3-s1 | 2.3.3 The Special Hearing Procedure | ## The Special Hearing Procedure
1. In a criminal trial that relates (wholly or partly) to a charge for a sexual offence,[^4] the evidence of a complainant who was a child or who had a cognitive impairment when proceedings were commenced must be given at a special hearing, unless the court directs otherwise (*Crimin... | [^4]: See 2.3.1 Alternative Arrangements for the definition of a "sexual offence".
[^5]: Proceedings commence when the charge–sheet for the offence charged, or a related offence, is filed or signed, or when the Director of Public Prosecutions files a direct indictment (*Criminal Procedure Act 2009* s 5). |
2.3.3-c3-s2 | 2.3.3 The Special Hearing Procedure | 4. During a special hearing, the complainant’s evidence is to be given by closed-circuit television, and no person except those authorised by the court may be present in the same room as the complainant when his or her evidence is being given. In the case of a special hearing held during a trial, the jury must be prese... | [^4]: See 2.3.1 Alternative Arrangements for the definition of a "sexual offence".
[^5]: Proceedings commence when the charge–sheet for the offence charged, or a related offence, is filed or signed, or when the Director of Public Prosecutions files a direct indictment (*Criminal Procedure Act 2009* s 5). |
2.3.3-c3-s3 | 2.3.3 The Special Hearing Procedure | 10. Following the commencement of the *Jury Directions and Other Acts Amendment Act 2017* on 1 October 2017, the *Criminal Procedure Act 2009* no longer specifies any jury directions that are necessary when a special hearing recording is played.
11. In some cases, including if a recording is given to the jury in the j... | [^4]: See 2.3.1 Alternative Arrangements for the definition of a "sexual offence".
[^5]: Proceedings commence when the charge–sheet for the offence charged, or a related offence, is filed or signed, or when the Director of Public Prosecutions files a direct indictment (*Criminal Procedure Act 2009* s 5). |
2.3.3-c4-s1 | 2.3.3 Previous Trial Evidence Procedure | ## Previous Trial Evidence Procedure
1. In a criminal proceeding that relates (wholly or partly) to a charge for a sexual offence,[^6] the evidence of a complainant who did not give evidence at a special hearing may be given through a recording of the complainant’s evidence at a previous trial (*Criminal Procedure A... | [^6]: See 2.3.1 Alternative Arrangements for the definition of a “sexual offence”. |
2.3.3.1-c1-s1 | 2.3.3.1 Charge: Playing a VARE | # 2.3.3.1 Charge: Playing a VARE
The evidence of the next witness, NOW, is going to be given in a slightly different manner from usual. First, you are going to see an audiovisual recording of him/her answering questions. That recording is considered to be part of his/her evidence. NOW will then confirm the truthfulnes... | null |
2.3.3.2-c1-s1 | 2.3.3.2 Charge: Replaying a VARE | # 2.3.3.2 Charge: Replaying a VARE
You are about to see [part of] the recording of NOW’s evidence-in-chief again. When you watch this recording, you must keep in mind the fact that this is the second time that you are seeing this particular evidence, that you are seeing it after all the other evidence has been given i... | null |
2.3.3.3-c1-s1 | 2.3.3.3 Charge: Special Hearing Evidence | # 2.3.3.3 Charge: Special Hearing Evidence
The evidence of the complainant, NOC, has been pre-recorded at what is called a "special hearing". This is a routine practice in cases where the complainant [is under the age of 18/has a cognitive impairment]. As a matter of law, you must not draw any inference adverse to the... | null |
2.3.4-c1-s1 | 2.3.4 Witness Support Dog | # 2.3.4 Witness Support Dog
1. The Office of Public Prosecutions has a Witness Support Dog Program. Under the program, witnesses can ask for a trained support dog to accompany them while giving evidence from the remote witness facility or the courtroom.
2. The support dog usually lies calmly next to the witness giv... | null |
2.3.4.1-c1-s1 | 2.3.4.1 Charge: Witness Support Dog | # 2.3.4.1 Charge: Witness Support Dog
This charge is designed for those cases where the judge believes the jury should be informed about the Witness Support Dog. It will not be necessary in all cases, as the dog usually lies out of view of the camera while the witness is giving evidence from the remote facility or out... | null |
2.4-c1-s1 | 2.4 Unavailable Witnesses | # 2.4 Unavailable Witnesses
1. This topic addresses the need for a direction in running where hearsay evidence is led from a witness who is unavailable to give evidence. For general information on directions relating to hearsay evidence, see 4.14 Previous Representations (Hearsay, Recent Complaint and Prior Statemen... | null |
2.4-c1-s2 | 2.4 Unavailable Witnesses | 3. *Evidence Act 2008* Dictionary, clause 4, specifies when a person is not available to give evidence about a fact. The circumstances listed include where the person is dead, not competent to give the evidence, or, despite all reasonable steps, the party seeking to call the witness has not been able to find or compel ... | null |
2.4-c1-s3 | 2.4 Unavailable Witnesses | 10. At the end of the trial, a party may seek a direction that such evidence may be unreliable (*Jury Directions Act 2015* ss 31, 32). Directions at the end of the trial may also be necessary to address any risk of unfair prejudice arising from the reliance on the witness’ previous statements (*Bray v R* (2014) 46 VR 6... | null |
2.4-c1-s4 | 2.4 Unavailable Witnesses | - The disadvantages flowing from being unable to observe the witness giving evidence;
- The disadvantages flowing from being unable to observe the witness being cross-examined;
- The differences between cross-examination at committal and at trial;
- The inability of defence counsel to put any newly discovered issues... | null |
2.4.1-c1-s1 | 2.4.1 Charge: Unavailable Witness | # 2.4.1 Charge: Unavailable Witness
This direction is designed for use in cases where the evidence of an unavailable witness is led by reading the witness’ statement to the jury and then playing a recording of the witness being cross-examined at the committal hearing. It may be adapted for other circumstances.
The ne... | null |
2.5-c1-s1 | 2.5 Witness Invoking Evidence Act 2008 s 128 | # 2.5 Witness Invoking Evidence Act 2008 s 128
1. *Evidence Act 2008* s 128 governs the exercise of the privilege against self-incrimination by witnesses. The section provides that:
- a witness may object to giving evidence on the basis that the answer may tend to prove that the witness committed an offence or is... | null |
2.5-c1-s2 | 2.5 Witness Invoking Evidence Act 2008 s 128 | 4. Where it appears to the court that a witness may have the right to claim the privilege against self-incrimination, the judge must satisfy him or herself, in the absence of the jury, that the witness is aware of that right (*Evidence Act 2008* s 132).
5. Witnesses who may have the right to claim the privilege agains... | null |
2.5-c2-s1 | 2.5 Relevance of a s 128 certificate | ## Relevance of a s 128 certificate
1. The mere grant of a certificate does not automatically put the witness into a special category where the defence can say that the witness’ evidence is unreliable (*Spence v R* [2016] VSCA 113, [85]).
2. However, there are cases where it is necessary to inform the jury of the f... | null |
2.5.1-c1-s1 | 2.5.1 Charge: Witness Invoking Evidence Act 2008 s 128 Jury Information | # 2.5.1 Charge: Witness Invoking Evidence Act 2008 s 128 Jury Information
This direction should only be given where, because of particular features of the case, the jury have been informed that a witness’ evidence is covered by a s 128 certificate.
Members of the jury, you have heard references to the fact that NOW g... | null |
2.5.1-c1-s2 | 2.5.1 Charge: Witness Invoking Evidence Act 2008 s 128 Jury Information | [*If a warning about the witness’ potential unreliability is required, add it here. See *Charge: Unreliable Evidence.* But see *Spence v R [*2016*]* VSCA 113, *[*85*]*–*[*87*]* on the limited circumstances in which the grant of a certificate will itself justify an unreliability warning*.]
Last updated: 22 August 2018 | null |
2.5.2-c1-s1 | 2.5.2 Charge: Explanation of Evidence Act 2008 to a Witness | # 2.5.2 Charge: Explanation of Evidence Act 2008 to a Witness
This script may be adapted where a judge becomes aware that a witness may have grounds for making an objection under Evidence Act 2008 s 128 and needs to explain the effect of that section. The court must satisfy itself that the witness is aware of the effe... | null |
2.5.2-c1-s2 | 2.5.2 Charge: Explanation of Evidence Act 2008 to a Witness | I said a moment ago that if I uphold your objection, then you not need to give the evidence unless I require you to do so. The law allows me to find that, even though you have reasonable grounds for objecting to answering a question because it may show you have committed an offence, the interests of justice require me ... | null |
2.5.2-c1-s3 | 2.5.2 Charge: Explanation of Evidence Act 2008 to a Witness | - Do you understand that you can object to answering questions because the answers may show that you committed an offence?
- If you do object on this basis, what will happen?
- If I uphold your objection, but you end up giving evidence anyway, what can the prosecution do with your answers?
- If you object to giving ... | null |
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