Jury Directions Act Flashcards
What is the application of JDA?
The reasoning in relation to jury directions applies to summary proceedings, appeals and cases stated (s 4A). [can apply to proceedings without a jury]
Will a failure to request a direction be a basis for a later appeal?
The structure of the Act means that any failure to request or challenge the directions by the Judge at the time, will usually prevent the issue from being successfully raised at a later appeal
Can the trial judge give a direction on their own motion?
NO - UNLESS there are substantial and compelling reasons to do so
The trial judge must not give a direction that has not been requested (s 15) unless there are substantial and compelling reasons for doing so (s 16) and in such circumstances, the TJ must advise the parties that he or she is considering doing so and seek submissions on the issue (s 16(2)).
Can a trial judge refuse to give a direction?
NO - unless there is a good reason not to
What is an example of substantial and compelling reason for court to intervene and give a direction?
Counsel being incompetent
What should P and D inform the court of after the conclusion of evidence?
According to s 11, after the close of all evidence and before the closing address of the P, the P must inform the trial judge whether it considers that the following matters are open on the evidence and, if so, whether it relies on them:
* any alternative offence, including an element of any alternative offence;
* any basis of complicity
D must then inform the trial judge whether they consider the following matters are/are not in issue:
* each element of the offence charged;
* any defence;
* any alternative offence, including an element of any alternative offence;
* any basis of complicity in relation to the offence charged and any alternative offence.
Under what section of JDA, can a direction be asked for?
S 12 provides that after the above issue have been identified, the P & D must each request that the trial judge give/not give particular jury directions in respect of:
* the matters in issue; and
* the evidence in the trial relevant to the matters in issue.
How can a judge determine there are no good reasons to give a direction?
In determining whether there are good reasons the following must be considered (s 14(2)):
the evidence in the trial; and
the manner in which the P & A have conducted their cases
o whether the direction concerns a matter not raised or relied on by A; and
o whether the direction would involve the jury considering the issues in the trial in a manner that is different from the way in which A has presented his or her case.
When should a trial judge give a direction regardless of the parties’ request?
According to s 16, despite not having been requested as per s 12, the trial judge must give a jury direction if it considers that there are substantial and compelling reasons for doing so. Before giving a direction under s 16, the trial judge must—
* inform the P & D that the trial judge is considering giving the direction; and
* invite submissions from the P & D about the direction and whether there are substantial and compelling reasons for giving the direction.
What directions can be given re proof beyond reasonable doubt?
According to s 61, the trial judge may only direct the jury on the following to prove beyond reasonable doubt:
– the elements of the offence or an alternative offence; and
– the absence of any relevant defence.
If request directly/indirectly, the trial judge may give the jury an explanation of “proof beyond reasonable doubt” (s 63). To explain the meaning, the trial judge may (s 64(1)):
Refer to the presumption of innocence and the P’s obligation to prove A is guilty
Indicate that it is not enough for P to persuade the jury that A is probably/likely guilty
Indicate that it is almost impossible to prove 100% when reconstructing past events and the P doesn’t have to do so
Indicate that the jury cannot be satisfied that A is guilty if the jury has reasonable doubt
Indicate that a reasonable doubt is not a fanciful doubt/unrealistic possibility
The trial judge may adapt their explanation of the phrase “proof beyond reasonable doubt” in order to respond to the particular question asked by the jury (s 64(2)).
Direction on the use of incriminating conduct evidence
s21 - MANDATORY direction
If P relies on incriminating conduct evidence - must direct that jury treat evidence as evidence that A believed he/she had committed the offence/elements or negated a defence that the conduct occurred and only
reasonable belief is that A held that belief.
Additional direction s22
D can request jury directed that: many reasons why a person may behave in a way that makes them look guilty, A may have engaged in conduct even though A is NG & even if jury thinks conduct makes A look guilty, A isn’t necessarily guilty
Direction re improper use of evidence
s23
If evidence given but P doesn’t rely on it as ICE, D may request jury directed that: many
reasons why a person may behave in a way that makes them look guilty & warn jury that even though A engaged in the conduct, it must not conclude A is guilty of the offence.
Direction on misconduct evidence adduced by P
s27
Trial judge must: identify how other misconduct evidence is relevant and direct jury not to use it for any other purpose, inform jury if evidence only forms part of P’s case, direct jury that it must not decide the case based on prejudice from what they’ve heard about the accused.
Must not: further explain what the jury should consider, identify impermissible
uses, or refer to any other matter
Direction unreliable evidence
s32
Must warn the jury that evidence may be unreliable, inform the jury of significant matters that judge considers may cause the evidence to be unreliable, that evidence from a particular child may be unreliable (look at other factors not just age), and warn the jury to be cautious when determining
whether to accept the evidence and the weight given to it.
Direction on identification evidence
s36
Must warn the jury to be cautious when determining whether to accept the evidence and the weight given to it, inform the jury of significant matters that judge considers may cause the evidence to be unreliable, inform the jury that a witness may believe their evidence is accurate but may be mistaken, the mistaken evidence may be convincing, inform that all witnesses may be mistaken and that mistaken ID evidence has resulted in innocent people being
convicted.
