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Judge’s role in Trial by Jury


When a Judge is presiding over a trial by jury, he or she must:

  • Decide all questions concerning the admissibility of evidence
  • explain and enforce the “general principles of law” applying to the point at issue
  • instruct the jury on the “rules of law” by which the evidence is to be weighed once it has been submitted.

Features of Adversarial Justice System


Developed through the English common law, The essential features of this system are:

  • Facts of the case, evidence relevant to those facts, emerge by means of questions put by the prosecution or defence to witnesses called by them.
  • It is up to each party to decide what witnesses to call, the order in which they should be called, and what questions they would ask.
  • Each party has the right to test the testimony of witnesses called by the opposing party through cross examination.
  • During the trial itself, the Judge’s function is to ensure the evidence is produced according to the established rules, ruling if necessary on its admissibility.
  • Neither judge nor jury are generally entitled to go beyond evidence presented by the parties and call witnesses or pursue inquiries of their own. Rarely, the Judge may require the prosecution to call a witness who has not been called. The Judge has the right to to recall witnesses where necessary in the interest of justice in exceptional circumstances.
  • The Judge should only asks questions when, in the opinion of the judge, justice requires it. Usually for the purpose of clarification or elimination of irrelevancy. The Judge must be careful not to “descend into the area” by asking questions which go beyond the points and issues presented. The jurors must submit any questions they have during the proceeding to the judge, who will determine whether and how it will be put to the witness.
  • The defendant does not have to give evidence or do anything to assist the prosecution in the presenting of it’s case; they may stay silent in the face of the accusation and demand that the prosecution prove its case beyond reasonable doubt.
  • Facts may by judicially noticed where they are known and accepted and cannot be reasonably questioned, or where the facts are capable of accurate and ready determination by reference to sources who accuracy cannot be reasonably questioned. Judicially noticed facts need not be proved. In addition, a Judge may admit as evidence any published documents that are deemed to be reliable sources of information in matters of public history, literature, science or art.

Oaths and Affirmations


> 12 years must take an oath or affirmation.
< 12 years must:
- be informed by the judge of the importance of telling the truth and not telling lies; and
- after given that information, make a promise to tell the truth, before giving evidence.

With the Judge’s permission, a witness of any age may give evidence without taking an oath, affirmation or a promise to tell the truth. If give such permission, the judge must inform them of the importance of telling the truth and not telling lies - intellectual disability.


Sequence of Jury Trials

  1. Sworn, empanelled, fore person. Introduction by Judge, standard/burden of proof, role/mechanics of jury.
  2. Crown opening address, explanation of charge, standard/burden of proof, summarise case and evidence to be called.
  3. Crown witness called, questions, cross-examination, re-examine. Judge may also ask questions.
  4. Defence open address, role/task of jury, burden of proof, outline evidence to called.
  5. Defence witness called, questions, cross-examination, re-examine. Judge may also ask questions.
  6. Crown closing address, summary of prosecution, no new evidence may be introduced or new issues raised.
  7. Defence closing address, summary of defence.
  8. Judge sums up to jury before it retires to consider verdict.

Sequence may be varied


Defence may give brief statement of the issues in dispute at the conclusion of Crown Opening Address, so the jury is made more aware of what the case is about before it hears any evidence. Defence still entitled to making full opening address.

Cat 1 - fines
Cat 2 - <2 years
Cat 3 - >2 years
Cat 4 - offence in schedule 1 in High Court (Jury) or Judge along in long or complex cases including juror intimidation.


A View


Inspection of a place or thing outside the Courtroom. e.g. inspection of a scene or building. Judge decides whether a view should be held. All parties and lawyers are entitled to attend. Information obtained at a view may be used as though the information had been given in evidence.


Commenting on Defendant’s right of silence

  • Judge
  • Defendant
  • Defendant’s counsel

may comment on the fact the defendant did not give evidence at his or her trial.

Judge may comment, burden of proof still on Crown and not leave the jury with the impression if the defendant were innocent he/she would’ve given evidence.


Evidence in Chief



Purpose of evidence in chief is to elicit testimony that supports the case of the party calling that witness.

Must usually be given orally after taken the oath or affirmation.

Draw out the witness’s own recollection.


The prohibition of Leading Questions


The general rule is that leading questions may not be asked during evidence in chief or re-examination.

Leading Questions is one that directly or indirectly suggests a particular answer to the question s(4).

Prohibition is based on the belief that it will produce unreliable evidence for the following reasons:

  • Natural tendency for people to agree to suggestions, even if suggestions do not precisely accord to their view of what happened.
  • Counsel asking leading questions of their own witness can elicit answers they wish to receive, reduce the spontaneous / genuineness of the the testimony.
  • Danger in resulting of manipulation, construction of evidence, collusion between witness and counsel.

When leading questions are permitted

Section 89 Evidence Act 2006


Leading questions in examination in chief and re-examination

(1) In any proceeding, a leading questions must not be put to a witness in examination in chief or re-exmaination unless -

(a) the question relates to introductory or undisputed matters; or
(b) the question is put with the consent of all other parties; or
(c) the Judge, in exercise of the Judge’s discretion, allows the question.


When leading questions are permitted



Judge may allow based on his/her discretion:

  • Subject of identification evidence “Was that the car you saw?”
  • Jog a witnesses memory, provided the central question is not suggested in the question.
  • Assist counsel elicit evidence in chief of very young people, limited english, intellectually impaired.
  • Hostile witness.

Refreshing memory in Court


If a witness wishes to consult a document while giving evidence, the following conditions, designed to ensure so far as possible the accuracy of the document, must be satisfied:

  • with leave of the Judge
  • document must be show to all parties in the proceeding
  • requires the document to be made or adopted by the witness at a time when their memory was fresh. Rangoon v R decision of statement made 6 weeks after was still fresh memory.

Document may become admissible if the person where there is a case of inability to recall.


Previous consistent Statement

Section 35 Evidence Act 2006


Generally not admissible, repeated and heard on several occasions will give it great impact. Jury may give it more weight.

Previous consistent statement rule:

(1) A previous statement of a witness that is consistent with the witness’s evidence is not admissible unless sub s(2) applies to the statement.
(2) A previous statement of a witness that is consistent with the witness’s evidence is admissible if the statement -
(a) responds to a challenge that will be or has made the witness’s veracity or accuracy, based on a previous inconsistent statement of the witness or on a claim of invention on the part of the witness; or
(b) forms an integral part of the events before the court; or
(c) consists of the mere fact that a complaint has been made in a criminal case.


Hostile Witness


A witness who display hostility towards the party that has called him or her.

If leave is sought and granted by the Judge, they may be declared hostile witness and may be asked questions in the manner of cross-examination. This may include:

  • asking leading questions
  • asking questions designed to probe the accuracy of memory or perception
  • asking questions as to prior inconsistent statement
  • other challenges to veracity, including evidence from other witnesses.

There are no rules restricting a party from calling a witness who is known to be hostile to that party.


Hostile Witness Defined

Section 4 Evidence Act 2006


Means a witness:

  • exhibits or appears to exhibit, a lack of veracity when giving evidence unfavourable to the party who called the witness about the matter which the witness may reasonable suppose to have knowledge; or
  • gives evidence that is inconsistent with a statement made by that witness in a manner that exhibits, or appears to exhibit, an intention to be unhelpful to the party who called the witness; or
  • refuse to answer questions or deliberately withholds evidence.

Cross-examination - Purpose


Two purposes of cross examination:

  • to elicit information supporting the case of the party conducting the cross-examination
  • to challenge the accuracy of the testimony given in evidence in chief (e.g. by casting doubt on the witness’s veracity or by eliciting contradictory testimony.

Cross-examination duties

Duty to put the case


Whenever a party is intending to call evidence that will contradict the evidence in chief of a witness called by an opposing party, there is an obligation to put the contradictory material to the witness during the cross-examination, so they have an opportunity to comment on and explain it. The opposing party be granted leave to recall their witness for a rebuttal.


Cross-examination duties

Section 92 Evidence Act 2006


The duty to cross-examine will therefore arise under the Act when:

  • the cross examination deals with “significant matters” in the proceeding; and
  • the matters are “relevant” and “in issue” in the proceeding; and
  • the matters “contradict the evidence of the witness”; and
  • the witness may “reasonably be expected to be in a position to give admissible evidence on those matters”.

Unacceptable questions

Section 85 Evidence Act 2006


(1) In any proceeding, the Judge may disallow, or direct that a witness is not obliged to answer, any questions that the Judge considers improper, unfair, misleading, needlessly repetitive, or expressed in language that is too complicated for the witness to understand.
(2) Without limiting the matters that the Judge may take into account for the purpose of subsection (1), the Judge may regard to -

(a) the age and maturity of the witness; and
(b) any physical, intellectual, psychological, psychiatric impairment; and
(c) linguistic and cultural background and religious beliefs; and
(d) nature of the proceeding; and
(e) in the case of a hypothetical questions, whether the hypothesis has been or will be proved by other evidence the proceeding.


Limits on Re-examination

  • Cross examination
  • re-examine for purpose of clarifying or qualifying any issues raised during cross examination, but may not question on any other matter unless the Judge permits.
  • Additional evidence allowed, cross examine, re examine.

Evidence in Rebuttal


Evidence called by either party after the completion of their own case, in order to rebut something arising during the trial, can only be admitted with the leave of the court. Such leave may be granted to the prosecution if the further evidence:

  • relates to a purely formal matter
  • relates to a matter arising out of the conduct of defence, the relevance of which could not reasonably have been foreseen (the most common ground for leave to be granted)
  • was not available or admissible before the prosecution case was closed
  • is required to be admitted in the interest of justice for any other person.

Permission for rebuttal before jury retires or judge gives verdict.


Judicial warnings


Circumstances where a judge may direct the jury that evidence should be scrutinised with particular care, or should be given less weight:

  • Judicial warning that evidence may be unreliable (s122)
  • Judicial direction about certain ways of giving evidence (s123)
  • Judicial warning about lies (s124)
  • Judicial direction about children’s evidence (s125)
  • Judicial warning about identification evidence (s126)
  • Delayed complaints or failure to complain in sexual cases (s127)

Judicial warning about evidence which may be unreliable

Section 122 Evidence Act 2006


(1) If, in a criminal proceeding tried with Jury, the Judge is of the opinion that any evidence given in that proceeding that is admissible may nevertheless be unreliable, the Judge MAY warn the jury of the need for caution in deciding -

(a) whether to accept the evidence
(b) the weight to be given to the evidence.

(2) In a criminal proceeding tried with jury the Judge MUST consider whether to give a warning under subsection (1) whenever the following evidence is given:
(a) hearsay evidence
(b) evidence of a statement by the defendant, if that evidence is the only evidence implicating the defendant
(c) evidence given by a witness who may have a motive to give false evidence that is prejudicial to a defendant
(d) the evidence of a statement by the defendant to another person made while both the defendant and the other person were detained in prison, a police station, or another place of detention
(e) evidence about the conduct of the defendant if that conduct is alleged to have occurred more than 10 years previously.


Judicial direction about certain ways of giving evidence

Section 123 Evidence Act 2006


Section 123 requires the Judge in criminal proceedings to give directions to jury that law make special provisions for giving of evidence in certain circumstances, that no adverse effects should be drawn against the defendant where a witness has offered evidence in an alternative way, where a defendant is not allowed to personally cross-examine a witness, or a witness offered evidence in accordance with a witness anonymity order.


Warning about lies

Section 124 Evidence Act 2006

  • Decision on whether defendant lied (Jury)
  • Inference to be drawn from the lie e.g. guilt (Jury)
  • No warning needs to be given (Judge) unless the opinion is that jury will put undue weight on the evidence of the lie, or defendant requests the warning be given, in which case a warning MUST be given.

When a warning must be given, it should include direction that:

  • The jury needs to be satisfied that the defendant did lie before they use the evidence,
  • people lie for various reasons, and
  • the jury should not necessarily conclude that just because the defendant lied he or she is guilty of the offence.

Direction about evidence given by children

Section 125 evidence Act 2006


Section 125 provides that evidence given by children in any criminal case should, in general, be treated in the same way as evidence given by adults. Thus prohibits:

  • the judge from giving warnings about absence of corroboration where a warning would not have been given in the case of an adult complaint
  • any direction or a comment (absent expert evidence to the contrary) that there is a need to scrutinise children’s evidence with special care, or that children have a tendency to invent or distort.

Prevent the differential treatment of children.


Practical Matters for “not guilty” hearings


Be truthful, factual, unbiased, calm and professional.