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3.1-c1-s1 | 3.1 Directions under Jury Directions Act 2015 | # 3.1 Directions under Jury Directions Act 2015
1. The *Jury Directions Act 2015* codifies the law on:
- obligation of parties to request directions;
- the content of directions on matters including post-offence conduct, other misconduct evidence, unreliable evidence, identification evidence, delay and forensic ... | null |
3.1-c2-s1 | 3.1 Requests for Directions | ## Requests for Directions
1. Part 3 of the *Jury Directions Act 2015* creates a process for parties to request directions, and sets out the consequences of a party requesting or failing to request a direction.
2. The purpose of Part 3 is to assist the judge to identify the matters in issue between the parties, the... | [^2]: Niall and Boyce JJA also doubted that a direction which removed an element could be a request for “particular directions in respect of the matters in issue” under *Jury Directions Act 2015* s 12(a), stating:
“[a] direction that had the effect of removing a matter in issue, is not easily seen as being a direction ... |
3.1-c2-s2 | 3.1 Requests for Directions | 5. Part 3 of the *Jury Directions Act 2015* sets out a process for judges to ask prosecution and defence counsel about the issues in the case at the end of the trial. It is good practice for trial judges to discuss these matters early in the trial, and use the process required under *the Jury Directions Act 2015 *to id... | [^2]: Niall and Boyce JJA also doubted that a direction which removed an element could be a request for “particular directions in respect of the matters in issue” under *Jury Directions Act 2015* s 12(a), stating:
“[a] direction that had the effect of removing a matter in issue, is not easily seen as being a direction ... |
3.1-c2-s3 | 3.1 Requests for Directions | 12. The judge must give the jury any directions that are requested, unless there are good reasons for not doing so. The Act specifies that in determining whether there are good reasons for not giving a direction, the judge must consider:
1. the evidence in the trial;
6. the manner in which the parties have conducted ... | [^2]: Niall and Boyce JJA also doubted that a direction which removed an element could be a request for “particular directions in respect of the matters in issue” under *Jury Directions Act 2015* s 12(a), stating:
“[a] direction that had the effect of removing a matter in issue, is not easily seen as being a direction ... |
3.1-c2-s4 | 3.1 Requests for Directions | ## Residual Obligation to Give Directions Not Requested | [^2]: Niall and Boyce JJA also doubted that a direction which removed an element could be a request for “particular directions in respect of the matters in issue” under *Jury Directions Act 2015* s 12(a), stating:
“[a] direction that had the effect of removing a matter in issue, is not easily seen as being a direction ... |
3.1-c2-s5 | 3.1 Requests for Directions | 16. As the trial judge has the responsibility to determine the matters in issue, the directions that are required and the content of the directions, the judge has a residual obligation to give a direction if there are substantial and compelling reasons for doing so, even though the direction has not been sought (*Jury ... | [^2]: Niall and Boyce JJA also doubted that a direction which removed an element could be a request for “particular directions in respect of the matters in issue” under *Jury Directions Act 2015* s 12(a), stating:
“[a] direction that had the effect of removing a matter in issue, is not easily seen as being a direction ... |
3.1-c2-s6 | 3.1 Requests for Directions | 23. Under the 2013 Act, the residual obligation was a test of necessity, which was narrower than the common law test. Under the 2013 Act, the judge was required to consider whether there would, not might, be a substantial miscarriage of justice in the absence of the direction. In *Xypolitos v R*, the Court of Appeal he... | [^2]: Niall and Boyce JJA also doubted that a direction which removed an element could be a request for “particular directions in respect of the matters in issue” under *Jury Directions Act 2015* s 12(a), stating:
“[a] direction that had the effect of removing a matter in issue, is not easily seen as being a direction ... |
3.1-c2-s7 | 3.1 Requests for Directions | [R]equires a state of affirmative satisfaction by the trial judge that the direction is of such central importance to one or more issues in the trial that, if the accused is convicted, a failure to give the direction will have occasioned a miscarriage of justice. If the circumstances, considered objectively, did not re... | [^2]: Niall and Boyce JJA also doubted that a direction which removed an element could be a request for “particular directions in respect of the matters in issue” under *Jury Directions Act 2015* s 12(a), stating:
“[a] direction that had the effect of removing a matter in issue, is not easily seen as being a direction ... |
3.1-c2-s8 | 3.1 Requests for Directions | 24. In most cases, the obligation to identify the directions required and the issues in dispute falls on counsel (*Xypolitos v R* (2014) 44 VR 423; *Horton v R* [2015] VSCA 319 (Redlich JA)).
25. The new terms of the residual obligation are more stringent than under the 2013 Act, and the above extract from *Xypolitos*... | [^2]: Niall and Boyce JJA also doubted that a direction which removed an element could be a request for “particular directions in respect of the matters in issue” under *Jury Directions Act 2015* s 12(a), stating:
“[a] direction that had the effect of removing a matter in issue, is not easily seen as being a direction ... |
3.1-c2-s9 | 3.1 Requests for Directions | 29. At common law, a judge had a duty to leave alternative offences to the jury, depending on the evidence and the nature of the offences. See 3.10 Alternative Verdicts.
30. It was also an error to withdraw an element from the jury’s consideration, even if it was not contested by the accused. However, where an element... | [^2]: Niall and Boyce JJA also doubted that a direction which removed an element could be a request for “particular directions in respect of the matters in issue” under *Jury Directions Act 2015* s 12(a), stating:
“[a] direction that had the effect of removing a matter in issue, is not easily seen as being a direction ... |
3.1-c2-s10 | 3.1 Requests for Directions | 34. In addition, the Act recognises that the manner in which the parties have conducted their case is relevant to deciding if there are good reasons for not giving a direction which has been requested (see *Gul v R* [2017] VSCA 153, [39]–[40]).
35. In *Parker v The King* [2024] VSCA 72, the Court of Appeal considered ... | [^2]: Niall and Boyce JJA also doubted that a direction which removed an element could be a request for “particular directions in respect of the matters in issue” under *Jury Directions Act 2015* s 12(a), stating:
“[a] direction that had the effect of removing a matter in issue, is not easily seen as being a direction ... |
3.1-c3-s1 | 3.1 Exceptions to Request for Directions Process | ## Exceptions to Request for Directions Process
1. The request for directions process does not apply to "general directions" or directions the judge must give or must not give under the provisions of the *Jury Directions Act 2015* or another Act (*Jury Directions Act 2015* s 10).
2. "General directions" are defined... | null |
3.1-c3-s2 | 3.1 Exceptions to Request for Directions Process | 5. The trial judge must correct any statement or suggestion by the prosecutor, defence counsel or an unrepresented accused that is prohibited by the Act. The judge must also correct a statement or suggestion prohibited by the Act that is in a question from the jury. This obligation does not depend on any request for di... | null |
3.1-c3-s3 | 3.1 Exceptions to Request for Directions Process | 9. The following parts of the *Jury Directions Act 2015* apply to the court’s reasoning in certain hearings that do not involve a jury:
1. a summary hearing under the *Criminal Procedure Act 2009* that commenced on or after 1 October 2017.
9. a committal proceeding under the *Criminal Procedure Act 2009* when the com... | null |
3.2-c1-s1 | 3.2 Overview of Final Directions | # 3.2 Overview of Final Directions | null |
3.2-c1-s2 | 3.2 Overview of Final Directions | 1. The fundamental task of a judge is to ensure a fair trial of the accused (*RPS v R *(2000) 199 CLR 620; *Crofts v R *(1996) 186 CLR 427).
2. The requirement for a fair trial requires the judge to instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case. In most c... | null |
3.2-c1-s3 | 3.2 Overview of Final Directions | 4. The summing-up should not address issues of law which are not raised by the particular case, nor should it be a complete statement of the law in relation to the crime charged. It should also not address every piece of evidence given in the trial. The judge should only address *as much* of the law and evidence as is ... | null |
3.2-c1-s4 | 3.2 Overview of Final Directions | Last updated: 17 February 2020 | null |
3.2.1-c1-s1 | 3.2.1 Charge: Overview of Final Directions | # 3.2.1 Charge: Overview of Final Directions
Members of the jury, before you leave the court to consider your verdict, I must give you instructions on the law and the evidence. There are three parts to these instructions.
First, I will remind you of several important principles of law which apply to this case. While ... | null |
3.3.1-c1-s1 | 3.3.1 Charge: Review of the Role of Judge and Jury | # 3.3.1 Charge: Review of the Role of Judge and Jury
Note: This charge is based on the assumption that the judge has already instructed the jury about the respective roles of the judge and jury at the beginning of the trial (see 1.4.1 Charge: Role of Judge and Jury). If this has not been done, it will need to be modif... | [^2]: This charge is drafted for cases involving one accused. If the case involves multiple accused, it will need to be modified accordingly. |
3.3.1-c2-s1 | 3.3.1 Review of the Role of the Judge | ## Review of the Role of the Judge
It is my role, as the judge, to 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 again that it is not my responsibility to decide this case – that is your role. The verdict that yo... | null |
3.3.1-c3-s1 | 3.3.1 Review of the Role of Counsel | ## Review of the Role of Counsel
Throughout the trial, counsel have presented the prosecution and defence cases. While their comments and arguments have been designed to assist you to reach your decision, you also do not need to accept what they have said. Of course, if you agree with an argument they have presented, ... | null |
3.4.1-c1-s1 | 3.4.1 Charge: Review of the Need to Decide Solely on the Evidence | # 3.4.1 Charge: Review of the Need to Decide Solely on the Evidence
Note: This charge is based on the assumption that the judge has already instructed the jury about the need to base their decision solely on the evidence at the beginning of the trial (see 1.5.1 Charge: Decide Solely on the Evidence). If this has not b... | [^2]: Depending on the nature of the evidence, it may be necessary to warn the jury of the possible dangers of conducting experiments in the jury room: see 1.5 Decide Solely on the Evidence for further information.
[^3]: If the accused is unrepresented, the jury should be told that what s/he said in his/her addresses, ... |
3.4.1-c2-s1 | 3.4.1 Review of the Need to Decide Solely on the Evidence | ## Review of the Need to Decide Solely on the Evidence
It your duty to decide this case only on the basis of the witnesses’ testimony, [the admissions] and the exhibits. You should consider the evidence which is relevant to a particular matter in its individual parts and as a whole, and come to a decision one way or a... | [^4]: Some matters which it may be appropriate to point out (as they could conceivably give rise to prejudice or sympathy) include:
• The nature of the injuries suffered by the complainant;
• The race or ethnicity of the accused or the complainant;
• The sexual orientation of the accused or the complainant;
• The fact ... |
3.5.1-c1-s1 | 3.5.1 Charge: Review of the Assessment of Witnesses | # 3.5.1 Charge: Review of the Assessment of Witnesses
Note: This charge is based on the assumption that the judge has already instructed the jury about how to assess witnesses at the beginning of the trial (see 1.6.1 Charge: Assessing Witnesses). If this has not been done, it will need to be modified accordingly.
See... | null |
3.5.1-c1-s2 | 3.5.1 Charge: Review of the Assessment of Witnesses | [*This may be an appropriate point to instruct the jury about any issues relating to particular *types of witnesses* who have given evidence, such as:* | null |
3.5.1-c1-s3 | 3.5.1 Charge: Review of the Assessment of Witnesses | - 4.1 The Accused as a Witness*;*
- 4.2 Child Witnesses*;*
- 4.21 Unreliable Evidence Warning*.*
*It may also be an appropriate point to instruct the jury about any issues relating to particular types of evidence given in the case, such as:*
- 4.3 Character Evidence*;*
- 4.5 Confessions and Admissions*;*
- 4.... | null |
3.6-c1-s1 | 3.6 Circumstantial Evidence and Inferences | # 3.6 Circumstantial Evidence and Inferences
## What is Circumstantial Evidence?
1. A fact that is in issue can be proved in two ways:
1. By providing evidence which *directly proves* that fact, without requiring the jury to draw any inferences (“direct evidence”[^2]); or
1. By providing evidence of a related f... | [^2]: The term “direct evidence” is also used to refer to testimonial evidence given by a witness of a matter they have personal knowledge about (e.g. which they personally saw or heard). When used in this sense, direct evidence is contrasted with hearsay evidence rather than circumstantial evidence (see *Cross on Evid... |
3.6-c2-s1 | 3.6 Use of Circumstantial Evidence | ## Use of Circumstantial Evidence
1. In many cases no one will have directly witnessed the facts which the prosecution must prove, and so they will need to rely on circumstantial evidence. In such cases, the ultimate inference which the jury will often be asked to draw is that of the accused’s guilt (*Shepherd v The... | null |
3.6-c3-s1 | 3.6 Inferential Reasoning (‘Hodge’ direction) | ## Inferential Reasoning (‘*Hodge*’ direction)
1. Where the prosecution case depends upon circumstantial evidence, it is usually necessary to give the following two directions:
1. To find the accused guilty, his or her guilt must not only be a *reasonable inference*, it must be the *only* reasonable inference which... | null |
3.6-c3-s2 | 3.6 Inferential Reasoning (‘Hodge’ direction) | 3. Given the high standard of proof required in criminal trials, it is important that the jury only draws inferences which can be properly deduced from the direct evidence (“reasonable inferences”), rather than making guesses or engaging in speculation (*R v McIntyre* (2000) 111 A Crim R 211).
4. In determining whethe... | null |
3.6-c3-s3 | 3.6 Inferential Reasoning (‘Hodge’ direction) | - The jury find those circumstances to have been established; and
- According to the common course of human affairs, there is such a high probability that the occurrence of those circumstances would be accompanied by the existence of that fact-in-issue that the contrary cannot reasonably be supposed (*Martin v Osborne... | null |
3.6-c3-s4 | 3.6 Inferential Reasoning (‘Hodge’ direction) | 8. When the case against an accused person rests substantially upon circumstantial evidence, the jury cannot return a verdict of guilty unless the circumstances exclude any reasonable hypothesis other than the guilt of the accused (*Peacock v R* (1911) 13 CLR 619; *Barca v R* (1975) 133 CLR 82; *Chamberlain v R (No 2)*... | null |
3.6-c3-s5 | 3.6 Inferential Reasoning (‘Hodge’ direction) | 15. Where competing inferences arise in a case, it is for the jury to determine whether the inference of guilt arises, and if so whether it completely overcomes all other inferences so as to leave no reasonable doubt in their minds (*R v **Plomp* (1963) 110 CLR 234; *Peacock v R* (1911) 13 CLR 619). | null |
3.6-c3-s6 | 3.6 Inferential Reasoning (‘Hodge’ direction) | ### Must Be A “Reasonable” Hypothesis | null |
3.6-c3-s7 | 3.6 Inferential Reasoning (‘Hodge’ direction) | 16. The jury cannot act upon some fanciful supposition or possibility that cannot reasonably be inferred from the facts proved. The hypothesis must be “reasonable” (*R v Clarke* (1995) 78 A Crim R 226).
17. A "reasonable hypothesis" must possess some degree of acceptability or credibility. A hypothesis will not be rea... | null |
3.6-c3-s8 | 3.6 Inferential Reasoning (‘Hodge’ direction) | 22. While it is proper for a judge to tell a jury that they must not engage in speculation or make guesses, s/he needs to be careful that such a direction does not detract from the jury’s duty to acquit if they cannot exclude all reasonable hypotheses consistent with innocence. Although it will often be a matter of spe... | null |
3.6-c3-s9 | 3.6 Inferential Reasoning (‘Hodge’ direction) | ### Warning of dangers in drawing inferences (‘*Hodge*’ warning)
23. The need for expanded directions on the process of drawing inferences arises because the human mind is apt to jump to conclusions, attaching too much weight to a fact that is really only one part of the case, or being too quickly convinced by an ac... | null |
3.6-c3-s10 | 3.6 Inferential Reasoning (‘Hodge’ direction) | 26. Whenever circumstantial evidence is relied upon by the prosecution, the judge must consider whether or not the case calls for directions about the need for guilt to be the only rational inference, and the requirement for reasonable hypotheses consistent with innocence to be excluded (*Grant v R* (1976) 11 ALR 503; ... | null |
3.6-c3-s11 | 3.6 Inferential Reasoning (‘Hodge’ direction) | 31. The direction should generally not be given in cases which do not depend on circumstantial evidence, or where the amount of circumstantial evidence involved is slight. In such cases, these directions will put an unnecessary gloss on the explanation of the onus of proof (*La Fontaine v R* (1976) 136 CLR 62. See also... | null |
3.6-c3-s12 | 3.6 Inferential Reasoning (‘Hodge’ direction) | ### Directing the Jury About Alternative Hypotheses
33. If evidence raises a reasonable possibility that the circumstances pointed to someone other than the accused being guilty of the offence, then a direction about the need to exclude such a possibility beyond reasonable doubt should usually be given (*R v Clarke*... | null |
3.6-c3-s13 | 3.6 Inferential Reasoning (‘Hodge’ direction) | 38. The content of the charge will vary according to the nature of the evidence that the prosecution offers as proof. Directions should be constructed around the central principle that the prosecution must establish guilt beyond reasonable doubt, and should be more or less elaborate according to the risks in the case (... | null |
3.6-c3-s14 | 3.6 Inferential Reasoning (‘Hodge’ direction) | 41. It is proper for a judge to explain to the jury that a reasonable hypothesis consistent with innocence means a reasonable hypothesis having regard to the whole of the evidence, not to each individual item of circumstantial evidence regarded separately (*R v Perera* [1986] 1 Qd R 211; *R v **Beble* [1979] Qd R 278).... | null |
3.6-c3-s15 | 3.6 Inferential Reasoning (‘Hodge’ direction) | 46. The jury should not be told that they must consider the explanation or inference contended for by the prosecution and consider whether it was a reasonable one. This may lead the jury to mistakenly think that they are also required to consider any other possibilities they regard as reasonable, and to weigh them agai... | null |
3.6-c4-s1 | 3.6 Proof of Facts on Which Inferences are Based | ## Proof of Facts on Which Inferences are Based | null |
3.6-c4-s2 | 3.6 Proof of Facts on Which Inferences are Based | 1. At common law, prior to 1984, it was widely understood that the prosecution only needed to establish the elements of a crime beyond reasonable doubt. They were not required to prove any other facts to that standard (see, e.g., *R v Dickson* [1983] 1 VR 227).
2. However, this understanding changed in 1984, when the ... | null |
3.6-c4-s3 | 3.6 Proof of Facts on Which Inferences are Based | 8. All common law rules which require judges to direct that a matter other than the elements and the absence of any defences must be proved beyond reasonable doubt are abolished (*Jury Directions Act 2015* s 62; *Beqiri v R* [2017] VSCA 112 at [121], [130]; *DPP v **Roder* [2024] HCA 15, [17]). A note to the section st... | null |
3.6-c4-s4 | 3.6 Proof of Facts on Which Inferences are Based | 12. Unless an Act otherwise provides, the judge must not direct the jury that they cannot use a fact as a basis for inferring guilt unless that fact is proved beyond reasonable doubt. This applies even if the evidence would, at common law, be treated as a ‘link in a chain’ or is potentially so significant that, as a ma... | null |
3.6-c5-s1 | 3.6 Timing of the Charge | ## Timing of the Charge
1. If a direction about circumstantial evidence is given, it does not need to be kept separate and distinct from the direction that the prosecution must prove its case beyond reasonable doubt (see 1.7.1 Charge: Onus and Standard of Proof). The judge may simply elaborate on the general directi... | null |
3.6.1-c1-s1 | 3.6.1 Charge: Circumstantial Evidence and Inferences | # 3.6.1 Charge: Circumstantial Evidence and Inferences
Evidence comes in many forms. It can be evidence about what someone saw or heard. It can be an exhibit admitted into evidence. It can be someone's opinion.
Some evidence can prove a fact directly. For example, if a witness said that s/he saw or heard it raining o... | null |
3.6.1-c1-s2 | 3.6.1 Charge: Circumstantial Evidence and Inferences | However, when putting all the pieces together, you must take care not to jump to conclusions. It is sometimes easy for people to be too readily persuaded of a fact, on the basis of insufficient evidence or evidence that turns out to be truly coincidental. Once convinced of that fact, they may then seek support for it i... | null |
3.6.2-c1-s1 | 3.6.2 Charge: Sole Evidence Direction | # 3.6.2 Charge: Sole Evidence Direction
This charge may be used where there is a single piece of evidence relied on to prove one or more elements. This charge may be suitable where the prosecution case is entirely dependent on a confession or an identification.
You will remember my direction the prosecution must prov... | null |
3.7.1-c1-s1 | 3.7.1 Charge: Conventional Directions | # 3.7.1 Charge: Conventional Directions
Note: This charge is based on the assumption that the judge has already instructed the jury about the onus and standard of proof at the beginning of the trial (see 1.7.1 Charge: Onus and Standard of Proof). If this has not been done, it will need to be modified accordingly.
See... | null |
3.7.1-c1-s2 | 3.7.1 Charge: Conventional Directions | Last updated: 1 January 2023 | null |
3.7.2-c1-s1 | 3.7.2 Charge: Reverse Onus | # 3.7.2 Charge: Reverse Onus
This charge can be given if there is a matter which the accused is required to prove on the balance of probabilities.
The requirements for this charge were not modified by the commencement of the *Evidence Act 2008*.
In this case, there is one exception to the general rule that the prose... | null |
3.7.3-c1-s1 | 3.7.3 Charge: Liberato Direction | # 3.7.3 Charge: Liberato Direction
This charge should be given if the case turns on a conflict between the evidence of a prosecution witness and a defence witness, and there is a reasonable likelihood that the jury will think that they must believe the defence evidence to be true before they can acquit the accused. Se... | null |
3.8.1-c1-s1 | 3.8.1 Charge: Multiple Accused | # 3.8.1 Charge: Multiple Accused
Note: This charge is based on the assumption that the judge has already instructed the jury about the need for separate consideration at the beginning of the trial (see 1.8.1 Charge: Separate Consideration Multiple Accused). If this has not been done, it will need to be modified accord... | null |
3.8.2-c1-s1 | 3.8.2 Charge: Multiple Charges | # 3.8.2 Charge: Multiple Charges
Note: This charge is based on the assumption that the judge has already instructed the jury about the need for separate consideration at the beginning of the trial (see 1.8.2 Charge: Separate Consideration Multiple Charges). If this has not been done, it will need to be modified accord... | null |
3.9-c1-s1 | 3.9 Judge’s Summing Up on Issues and Evidence | # 3.9 Judge’s Summing Up on Issues and Evidence
## Obligations When Summing Up
1. A judge’s charge need not follow any specific pattern. Each charge must be tailored to the particular circumstances of the case (*Alford v Magee* (1952) 85 CLR 437; *Werry v R* [2010] VSCA 314; *Huynh v R* [2013] HCA 6).
2. When su... | [^2]: If evidence which is admissible on one count is not admissible on another, and in consequence there is a real risk of impermissible prejudice to the accused, the judge may need to consider ordering separate trials (see *R v TJB* [1998] 4 VR 621; *Criminal Procedure Act 2009* s 193). |
3.9-c1-s2 | 3.9 Judge’s Summing Up on Issues and Evidence | 3. This reflects the judge’s obligations at common law when summing up (*Harris v The Queen* [2021] VSCA 197, [66]).
4. The summing up may use a combination of oral and written components (*Jury Directions Act 2015* s 65).
5. The *Jury Directions Act 2015* draws a distinction between “referring” to or “identifying” e... | [^2]: If evidence which is admissible on one count is not admissible on another, and in consequence there is a real risk of impermissible prejudice to the accused, the judge may need to consider ordering separate trials (see *R v TJB* [1998] 4 VR 621; *Criminal Procedure Act 2009* s 193). |
3.9-c1-s3 | 3.9 Judge’s Summing Up on Issues and Evidence | 8. Based on the matters identified by prosecution and defence counsel as being in issue (see *Jury Directions Act 2015* s 11), the judge must decide what are the real issues in the case, tell the jury what those issues are, direct the jury on so much of the law as is necessary to enable the jury to resolve those issues... | [^2]: If evidence which is admissible on one count is not admissible on another, and in consequence there is a real risk of impermissible prejudice to the accused, the judge may need to consider ordering separate trials (see *R v TJB* [1998] 4 VR 621; *Criminal Procedure Act 2009* s 193). |
3.9-c1-s4 | 3.9 Judge’s Summing Up on Issues and Evidence | 12. It is the judge’s responsibility to focus the jury’s attention on the issues he or she identifies. That responsibility should not be delegated to counsel (*R v Amado-Taylor *[2000] 2 Cr App R 18).
13. The obligation to identify issues and relevant evidence is limited to the issues or matters that are actually in d... | [^2]: If evidence which is admissible on one count is not admissible on another, and in consequence there is a real risk of impermissible prejudice to the accused, the judge may need to consider ordering separate trials (see *R v TJB* [1998] 4 VR 621; *Criminal Procedure Act 2009* s 193). |
3.9-c1-s5 | 3.9 Judge’s Summing Up on Issues and Evidence | ## Identification of Evidence | [^2]: If evidence which is admissible on one count is not admissible on another, and in consequence there is a real risk of impermissible prejudice to the accused, the judge may need to consider ordering separate trials (see *R v TJB* [1998] 4 VR 621; *Criminal Procedure Act 2009* s 193). |
3.9-c1-s6 | 3.9 Judge’s Summing Up on Issues and Evidence | 18. The judge must identify only so much of the evidence as is necessary to help the jury to determine the issues in the trial. To determine what evidence must be identified, the judge must consider the following matters:
1. The facts in issue and the complexity of the facts in issue
1. The length of the trial;
2. T... | [^2]: If evidence which is admissible on one count is not admissible on another, and in consequence there is a real risk of impermissible prejudice to the accused, the judge may need to consider ordering separate trials (see *R v TJB* [1998] 4 VR 621; *Criminal Procedure Act 2009* s 193). |
3.9-c1-s7 | 3.9 Judge’s Summing Up on Issues and Evidence | 22. There is no absolute rule as to what the judge must address in the charge to ensure a fair trial. What is required will vary according to the circumstances of the case, and factors such as the length of the case, the complexity of the issues and the manner in which the case is conducted by the parties (*Jury Direct... | [^2]: If evidence which is admissible on one count is not admissible on another, and in consequence there is a real risk of impermissible prejudice to the accused, the judge may need to consider ordering separate trials (see *R v TJB* [1998] 4 VR 621; *Criminal Procedure Act 2009* s 193). |
3.9-c1-s8 | 3.9 Judge’s Summing Up on Issues and Evidence | 26. Where there is a significant dispute about material facts, the judge should succinctly identify the pieces of evidence in conflict, to focus the jury's attention on the issues they have to resolve (*R v Amado-Taylor* (2000) 2 Cr App R 189; *R v Mears* (1993) 97 Cr App R 239).
27. Where the evidence is relatively s... | [^2]: If evidence which is admissible on one count is not admissible on another, and in consequence there is a real risk of impermissible prejudice to the accused, the judge may need to consider ordering separate trials (see *R v TJB* [1998] 4 VR 621; *Criminal Procedure Act 2009* s 193). |
3.9-c1-s9 | 3.9 Judge’s Summing Up on Issues and Evidence | ## Relate Evidence to the Issues in the Case | [^2]: If evidence which is admissible on one count is not admissible on another, and in consequence there is a real risk of impermissible prejudice to the accused, the judge may need to consider ordering separate trials (see *R v TJB* [1998] 4 VR 621; *Criminal Procedure Act 2009* s 193). |
3.9-c1-s10 | 3.9 Judge’s Summing Up on Issues and Evidence | 29. As evidence is given witness by witness, rather than sequentially according to the issues, it is the judge’s responsibility to arrange the evidence issue by issue, rather than leaving this task to the jury (*R v Amado-Taylor* [2000] 2 Cr App R 18).
30. The judge should provide the jury with a collected overview of... | [^2]: If evidence which is admissible on one count is not admissible on another, and in consequence there is a real risk of impermissible prejudice to the accused, the judge may need to consider ordering separate trials (see *R v TJB* [1998] 4 VR 621; *Criminal Procedure Act 2009* s 193). |
3.9-c1-s11 | 3.9 Judge’s Summing Up on Issues and Evidence | 34. It is conventional to warn the jury that, while the judge is going to try to relate the evidence to the issues to assist the jury, it is for the jury, as the judges of the facts, to determine what evidence they think to be significant. Anything which the judge identifies as being significant is neither binding on t... | [^2]: If evidence which is admissible on one count is not admissible on another, and in consequence there is a real risk of impermissible prejudice to the accused, the judge may need to consider ordering separate trials (see *R v TJB* [1998] 4 VR 621; *Criminal Procedure Act 2009* s 193). |
3.9-c1-s12 | 3.9 Judge’s Summing Up on Issues and Evidence | ## Cases Involving Multiple Counts
35. In a trial involving multiple counts, as well as giving a separate consideration direction (see 1.8 Separate Consideration), the judge should carefully explain to the jury what evidence relates to which count, and what evidence is inadmissible on each count (*T v R* (1996) 86 A... | [^2]: If evidence which is admissible on one count is not admissible on another, and in consequence there is a real risk of impermissible prejudice to the accused, the judge may need to consider ordering separate trials (see *R v TJB* [1998] 4 VR 621; *Criminal Procedure Act 2009* s 193). |
3.9-c1-s13 | 3.9 Judge’s Summing Up on Issues and Evidence | - Tell the jury which evidence can be used against each accused, the circumstances in which that evidence can be used, and the purposes for which it can be used; and
- Identify the evidence which is not admissible against each accused, and warn the jury not to use it against that accused (*R v Nessel* (1980) 5 A Crim ... | [^2]: If evidence which is admissible on one count is not admissible on another, and in consequence there is a real risk of impermissible prejudice to the accused, the judge may need to consider ordering separate trials (see *R v TJB* [1998] 4 VR 621; *Criminal Procedure Act 2009* s 193). |
3.9-c1-s14 | 3.9 Judge’s Summing Up on Issues and Evidence | 42. It is not sufficient simply to tell the jury that they must base their decision on the evidence that is admissible against each accused, because this tacitly attributes knowledge of the rules of evidence to the jury. The judge must apply those rules to the evidence in the case (*R v **Minuzzo** and Williams *[1984]... | [^2]: If evidence which is admissible on one count is not admissible on another, and in consequence there is a real risk of impermissible prejudice to the accused, the judge may need to consider ordering separate trials (see *R v TJB* [1998] 4 VR 621; *Criminal Procedure Act 2009* s 193). |
3.9-c1-s15 | 3.9 Judge’s Summing Up on Issues and Evidence | 45. If the defence of one accused is conducted in a manner likely to prejudice a second accused (due to the inclusion of evidence that would ordinarily be inadmissible against him or her), the judge must give very full and detailed directions, referring to the inadmissible evidence and the potential prejudice it create... | [^2]: If evidence which is admissible on one count is not admissible on another, and in consequence there is a real risk of impermissible prejudice to the accused, the judge may need to consider ordering separate trials (see *R v TJB* [1998] 4 VR 621; *Criminal Procedure Act 2009* s 193). |
3.9-c1-s16 | 3.9 Judge’s Summing Up on Issues and Evidence | ## Referring to the Parties’ Cases | [^2]: If evidence which is admissible on one count is not admissible on another, and in consequence there is a real risk of impermissible prejudice to the accused, the judge may need to consider ordering separate trials (see *R v TJB* [1998] 4 VR 621; *Criminal Procedure Act 2009* s 193). |
3.9-c1-s17 | 3.9 Judge’s Summing Up on Issues and Evidence | 48. The judge does not need to summarise the closing addresses of the parties, but must refer the jury to the way in which the prosecution and accused have put their cases on the issues in the trial (*Jury Directions Act 2015* s 65).
49. The judge must put the respective cases for the prosecution and the defence to th... | [^2]: If evidence which is admissible on one count is not admissible on another, and in consequence there is a real risk of impermissible prejudice to the accused, the judge may need to consider ordering separate trials (see *R v TJB* [1998] 4 VR 621; *Criminal Procedure Act 2009* s 193). |
3.9-c1-s18 | 3.9 Judge’s Summing Up on Issues and Evidence | 53. This requirement does not oblige the judge to put to the jury every argument made by counsel for the accused, as long as the accused’s case is put fairly. Whether it is necessary to refer to a particular argument will depend on the nature of the case (*Werry v R* [2010] VSCA 314; *R v Sukkar* [2005] NSWCCA 54; *R v... | [^2]: If evidence which is admissible on one count is not admissible on another, and in consequence there is a real risk of impermissible prejudice to the accused, the judge may need to consider ordering separate trials (see *R v TJB* [1998] 4 VR 621; *Criminal Procedure Act 2009* s 193). |
3.9-c1-s19 | 3.9 Judge’s Summing Up on Issues and Evidence | 59. It is insufficient for judges to rely on counsels’ addresses. They must lend the weight of their judicial position and authority to the respective cases by referring to the way each party have put their case (see *R v **Tomazos* 6/8/71 NSW CCA; *Jury Directions Act 2015* s 65).
60. The summing-up must present a ba... | [^2]: If evidence which is admissible on one count is not admissible on another, and in consequence there is a real risk of impermissible prejudice to the accused, the judge may need to consider ordering separate trials (see *R v TJB* [1998] 4 VR 621; *Criminal Procedure Act 2009* s 193). |
3.9-c1-s20 | 3.9 Judge’s Summing Up on Issues and Evidence | 65. Keeping a balance between the prosecution and defence cases requires the use of moderate and reasoned language which is not likely to inflame the jury. The judge should never betray an emotional approach to the facts (*R v Machin* (1996) 68 SASR 526; *Cornelius & Briggs v R* (1988) 34 A Crim R 49; *Galea v R* (1989... | [^2]: If evidence which is admissible on one count is not admissible on another, and in consequence there is a real risk of impermissible prejudice to the accused, the judge may need to consider ordering separate trials (see *R v TJB* [1998] 4 VR 621; *Criminal Procedure Act 2009* s 193). |
3.9-c2-s1 | 3.9 Integrated Directions and Factual Questions | ## Integrated Directions and Factual Questions | null |
3.9-c2-s2 | 3.9 Integrated Directions and Factual Questions | 1. The *Jury Directions Act 2015* allows judges to give directions in the form of factual questions that address the matters the jury must consider or be satisfied of in order to reach a verdict (*Jury Directions Act 2015* s 67). These directions are sometimes also called “question trails”.
2. Factual question directi... | null |
3.9-c2-s3 | 3.9 Integrated Directions and Factual Questions | 7. Where there are multiple accused and the evidence against each accused is different, there are risks in using a question trail which does not differentiate between the accused (*McKinnen** v The Queen* [2019] VSCA 114, [77]).
8. Integrated directions should contain questions that are tied to individual elements and... | null |
3.9-c3-s1 | 3.9 Jury Checklists | ## Jury Checklists | [^3]: To provide consistency for a jury between questions regarding elements of offences and elements of defences, questions which require the prosecution to prove a negative proposition are often framed in the form “Has the prosecution proved, beyond reasonable doubt that the accused did not …?”. The alternative, wher... |
3.9-c3-s2 | 3.9 Jury Checklists | 1. An alternative to integrated directions and factual questions is to provide the jury with an element checklist. That is a document which succinctly states the elements of each offence or defence the jury must consider, and identifies how decisions on each element lead to a particular legal conclusion.
2. Sample che... | [^3]: To provide consistency for a jury between questions regarding elements of offences and elements of defences, questions which require the prosecution to prove a negative proposition are often framed in the form “Has the prosecution proved, beyond reasonable doubt that the accused did not …?”. The alternative, wher... |
3.9-c3-s3 | 3.9 Jury Checklists | 9. In Victoria, this concern is addressed by jurors using the checklist individually, rather than expecting the jury to work through the checklist in a collective, step-by-step, process where unanimity is required at each step. | [^3]: To provide consistency for a jury between questions regarding elements of offences and elements of defences, questions which require the prosecution to prove a negative proposition are often framed in the form “Has the prosecution proved, beyond reasonable doubt that the accused did not …?”. The alternative, wher... |
3.9-c4-s1 | 3.9 Written Directions | ## Written Directions
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. The judge may also p... | null |
3.9-c5-s1 | 3.9 Distinction between Directions and Comments | ## Distinction between Directions and Comments
1. A distinction is drawn between “directions” and “comments”:
- A direction is something which the law requires a judge to give to the jury, and which they must heed;
- A comment is something the judge tells the jury, which they may choose to ignore (*Azzopardi v R... | [^4]: In *Mahmood v State of Western Australia* (2008) 232 CLR 397, the court gave the following examples: Telling the jury that they may attach particular significance to a fact, or that other evidence may be considered of greater weight, is a comment. Warning the jury about the care needed in assessing some evidence,... |
3.9-c5-s2 | 3.9 Distinction between Directions and Comments | 2. A judge must give all directions required by the law. In doing so, he or she must make it clear that he or she is giving a direction, and that the direction must be heeded (*Azzopardi v R* (2001) 205 CLR 50; *Mahmood v State of Western Australia* (2008) 232 CLR 397).
3. However, as it is for the jury alone to deter... | [^4]: In *Mahmood v State of Western Australia* (2008) 232 CLR 397, the court gave the following examples: Telling the jury that they may attach particular significance to a fact, or that other evidence may be considered of greater weight, is a comment. Warning the jury about the care needed in assessing some evidence,... |
3.9-c5-s3 | 3.9 Distinction between Directions and Comments | 6. Comments about disputed factual issues, or the resolution of those issues, have two vices. First, they are not consistent with the different constitutional functions of the judge and jury. The judge’s function in addressing the jury is to ensure the jury have a fair and accurate understanding of what they need to kn... | [^4]: In *Mahmood v State of Western Australia* (2008) 232 CLR 397, the court gave the following examples: Telling the jury that they may attach particular significance to a fact, or that other evidence may be considered of greater weight, is a comment. Warning the jury about the care needed in assessing some evidence,... |
3.9-c5-s4 | 3.9 Distinction between Directions and Comments | 8. It will therefore most often be the safer course for a judge to make no comment on the facts (*RPS v R* (2000) 199 CLR 620; *Azzopardi v R* (2001) 205 CLR 50; *R v **Mong* (2002) 5 VR 565; *R v Mathe* [2003] VSCA 165; *R v Soldo* [2005] VSCA 136; *R v Ivanovic* [2005] VSCA 238).
9. A judge may comment to restore th... | [^4]: In *Mahmood v State of Western Australia* (2008) 232 CLR 397, the court gave the following examples: Telling the jury that they may attach particular significance to a fact, or that other evidence may be considered of greater weight, is a comment. Warning the jury about the care needed in assessing some evidence,... |
3.9-c6-s1 | 3.9 Redirection | ## Redirection | null |
3.9-c6-s2 | 3.9 Redirection | 1. The judge should, at the conclusion of the summing-up, ask counsel, in the absence of the jury, whether the judge failed to give any directions of law or warnings which were requested, and hear submissions on the correctness or otherwise of the directions of law which have been given (*R v Gulliford* [2004] NSWCCA 3... | null |
3.9-c6-s3 | 3.9 Redirection | 6. The judge should ensure that an appropriate note is made of any submissions, rulings and redirections. The failure to take exception to an aspect of the judge’s charge is often significant to the disposal of an appeal, as it may demonstrate that the matter in question did not cause a substantial miscarriage of justi... | null |
3.9-c6-s4 | 3.9 Redirection | Last updated: 24 October 2024 | null |
3.9.1-c1-s1 | 3.9.1 Charge: Judge's Summary of Issues and Evidence | # 3.9.1 Charge: Judge's Summary of Issues and Evidence
I am now going to take you to the issues you need to decide, and remind you of some of the evidence that has been given in relation to those issues. Before doing so, I want to remind you again that the mere fact that I may leave out a part of a particular witness’... | null |
3.10-c1-s1 | 3.10 Alternative Verdicts | # 3.10 Alternative Verdicts
## When is an Alternative Verdict Available?
1. The *Crimes Act 1958* provides that the jury may return specified alternative verdicts[^2] in relation to a number of offences, including:
- Murder (ss 421, 6(2));
- Negligently causing serious injury or culpable driving causing death... | [^2]: An alternative verdict is a verdict in relation to an offence which has not been specifically charged (*R v Salisbury* [1976] VR 452).
[^3]: On 28 February 2018, *Justice Legislation Amendment (Victims) Act 2018* s 7 commenced operation. This repealed *Crimes Act 1958* s 425, which previously specified alternativ... |
3.10-c1-s2 | 3.10 Alternative Verdicts | 2. A list of statutory alternatives is available in the Victorian Criminal Proceedings Manual.
3. Some assistance about available alternative verdicts may be obtained from I. Freckelton* Indictable Offences in Victoria* (4th Ed, 1999).
4. In addition, in a trial for any offence except treason or murder, the jury may ... | [^2]: An alternative verdict is a verdict in relation to an offence which has not been specifically charged (*R v Salisbury* [1976] VR 452).
[^3]: On 28 February 2018, *Justice Legislation Amendment (Victims) Act 2018* s 7 commenced operation. This repealed *Crimes Act 1958* s 425, which previously specified alternativ... |
3.10-c1-s3 | 3.10 Alternative Verdicts | 8. Any allegation of an offence (other than treason) includes an attempt to commit that offence (*Criminal Procedure Act 2009 *s 239(2)).[^4]
9. A judge may not leave a driving offence, such as dangerous driving causing death, as an alternative to a charge of murder under *Crimes Act 1958* s 421(1) (*R v Borthwick* [2... | [^2]: An alternative verdict is a verdict in relation to an offence which has not been specifically charged (*R v Salisbury* [1976] VR 452).
[^3]: On 28 February 2018, *Justice Legislation Amendment (Victims) Act 2018* s 7 commenced operation. This repealed *Crimes Act 1958* s 425, which previously specified alternativ... |
3.10-c2-s1 | 3.10 Duty to leave alternative verdicts | ## Duty to leave alternative verdicts
1. Although an alternative verdict may be available at law, a judge is not always obliged to leave such a verdict to the jury. A judge may order that the guilt of a person in respect of such alternatives shall not be determined at the trial if he or she considers that it is expe... | [^5]: The distinction is actually between murder/manslaughter cases and other cases (see “Other Alternative Verdicts to Murder” below). For the sake of simplicity, however, this topic refers to this distinction as the distinction between homicide and non-homicide cases.
[^6]: The “viable” bases of accessorial liability... |
3.10-c2-s2 | 3.10 Duty to leave alternative verdicts | 6. In deciding whether there are good reasons for not giving a requested direction, the judge must consider the manner in which the parties have conducted their cases and whether the direction would involve the jury considering the issues in a manner different from the way in which the accused presented his or her case... | [^5]: The distinction is actually between murder/manslaughter cases and other cases (see “Other Alternative Verdicts to Murder” below). For the sake of simplicity, however, this topic refers to this distinction as the distinction between homicide and non-homicide cases.
[^6]: The “viable” bases of accessorial liability... |
3.10-c2-s3 | 3.10 Duty to leave alternative verdicts | 8. *Jury Directions Act 2013* s 16 abolished the common law rule which required a trial judge to direct the jury about offences open on the evidence which had not been identified during the trial and alternative bases of complicity. This abolition has continued despite the repeal of the *Jury Directions Act 2013*, but ... | [^5]: The distinction is actually between murder/manslaughter cases and other cases (see “Other Alternative Verdicts to Murder” below). For the sake of simplicity, however, this topic refers to this distinction as the distinction between homicide and non-homicide cases.
[^6]: The “viable” bases of accessorial liability... |
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