1.4 – The Role of Judge and Jury

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Role of the Jury

  1. The role of the jury is to determine the facts, apply relevant principles of law to those facts, and return a verdict (R v Dao (2005) 156 A Crim R 459; R v Nguyen [2006] VSCA 158; Azzopardi v R (2001) 205 CLR 50).
  2. This requires the jury to:
  3. It is for the jury alone to decide the facts of a case. This must not be obscured by the performance of the judge’s duties (RPS v R (2000) 199 CLR 620; R v Melbourne (1999) 198 CLR 1).
  4. Similarly, it is the jury alone that determines the verdict. The judge must be careful to make this clear (R v Johnson (1986) 43 SASR 63).
  5. Although the jury are the sole judges of the facts, they must accept and apply the judge’s directions about the law (Joshua v R [1955] AC 121; R v Beeby (1911) 6 Cr App R 138; R v Frampton (1917) 12 Cr App R 202).
  6. Jurors should not be drawn into the process of questioning witnesses (Tootle v R (2017) 94 NSWLR 430 at [59]). See also Trial Procedure regarding jurors questioning witnesses.

    Role of the Judge

  7. The judge must instruct the jury about so much of the law as they need to know in deciding the real issue or issues in the case (Azzopardi v R (2001) 205 CLR 50; RPS v R (2000) 199 CLR 620).
  8. This requires the judge to:
    1. Instruct the jury about the elements of the offences and the onus and standard of proof;
    2. Identify the issues in the case and to relate the law to those issues;
    3. Put the defence case fairly; and
    4. In some cases warn the jury about impermissible reasoning, or about particular care that must be shown before accepting certain kinds of evidence (RPS v R (2000) 199 CLR 620; Azzopardi v R (2001) 205 CLR 50).
  9. The judge also has an obligation to summarise the respective cases of both the prosecution and the defence, and should remind the jury of the arguments of counsel (RPS v R (2000) 199 CLR 620; R v Mogg (2000) 112 A Crim R 417; R v Conway [2005] QCA 194).
  10. The judge may remind the jury of the facts, and assist them to understand those facts (Stingel v The Queen (1990) 171 CLR 312; Brownlee v R (2001) 207 CLR 278).
  11. However, the jury always remain the sole judges of the facts. A judge must therefore not direct the jury about how they may (as opposed to may not) reason towards a conclusion of guilt (Azzopardi v R (2001) 205 CLR 50).
  12. The role of the judge also includes:
  13. The judge has power to exclude the jury from the courtroom while hearing arguments on the admissibility of evidence or determining other applications. This power may be exercised whether or not the accused consents (R v Hendry (1989) 88 Cr App R 187; Demirok v R (1977) 137 CLR 20; Peacock v R (1911) 13 CLR 619).
  14. The judge should not explain to the jury the specific reason for asking them to leave the room, nor the outcome of the matter heard in the jury’s absence, as it is not relevant to any decisions the jury needs to make, and may wrongly influence them (R v Williams [1982] WAR 277; R v Smith (1986) 85 Cr App R 197; Crosdale v R [1995] 2 All ER 500. See also Basto v R (1954) 91 CLR 628; R v Mitchell [1998] AC 695; Thompson v R [1998] AC 811).
  15. However, because there is a danger that the jury will think that material prejudicial to the accused is going to be disclosed in their absence, the jury should be told that they are being asked to leave the room because there is a matter of law that needs to be resolved in their absence (R v Williams [1982] WAR 277; Crosdale v R [1995] 2 All ER 500; R v Anderson (1929) 21 Cr App R 178).
  16. The judge must perform all of their tasks in a fair and even-handed manner (R v Dao (2005) 156 A Crim R 459; R v Nguyen [2006] VSCA 158).
  17. See Overview of Final Directions and Judge’s Summing Up on Issues and Evidence for further information on the role of the judge.

    Need for a Direction

  18. The judge must always direct the jury about the roles of the judge and jury (RPS v R (2000) 199 CLR 620; R v Sinclair (1989) 44 A Crim R 449).
  19. This direction should usually be given at the commencement of the trial, as well as after the completion of all the evidence and the presentation of argument by counsel (see, e.g., R v Sinclair (1989) 44 A Crim R 449).
  20. This is because it is good practice to provide some assistance to a jury at the outset of the trial. However, comments which are made at a preliminary stage may not have their significance fully appreciated by the jury, which is unfamiliar with the issues which may arise in the trial (R v Sinclair (1989) 44 A Crim R 449).

Last updated: 2 October 2017

In This Section

1.4.1 – Charge: The Role of Judge and Jury

See Also

Victorian Criminal Charge Book

Part 1: Preliminary Direction

1.1 – Introductory Remarks

1.2 – Jury Empanelment

1.3 – Selecting a Foreperson

1.5 – Decide Solely on the Evidence

1.6 – Assessing Witnesses

1.7 – Onus and Standard of Proof

1.8 - Separate Consideration

1.9 - Alternative verdicts

1.10 – Trial Procedure

1.11 - Consolidated preliminary directions

Part 2: Directions in Running

2.1 - Views

2.2 - Providing Documents to the Jury

2.3 – Other Procedures for Taking Evidence

2.4 – Unavailable witnesses

2.5 – Witness invoking Evidence Act 2008 s128

Part 3: Final Directions

3.1 - Directions Under Jury Directions Act 2015

3.2 - Overview of Final Directions

3.3 - Review of the Role of the Judge and Jury

3.4 - Review of the Requirement to Decide Solely on the Evidence

3.5 - Review of the Assessment of Witnesses

3.6 - Circumstantial Evidence and Inferences

3.7 - Review of the Onus and Standard of Proof

3.8 - Review of Separate Consideration

3.9 - Judge’s Summing Up on Issues and Evidence

3.10 - Alternative Verdicts

3.11 - Unanimous Verdicts and Extended Jury Unanimity

3.12 - Taking Verdicts

3.13 - Perseverance and Majority Verdict Directions

3.14 - Intermediaries and ground rules explained

3.15 - Concluding Remarks

3.16 - Consolidated final directions

Part 4: Evidentiary Directions

4.1 - The Accused as a Witness

4.2 - Child Witnesses

4.3 - Character Evidence

4.4 - Prosecution Witness's Motive to Lie

4.5 - Confessions and Admissions

4.6 - Incriminating Conduct (Post Offence Lies and Conduct)

4.7 - Corroboration (General Principles)

4.8 - Delayed Complaint

4.9 - Distress

4.10 - Prosecution Failure to Call or Question Witnesses

4.11 - Defence Failure to Call Witnesses

4.12 - Failure to Challenge Evidence (Browne v Dunn)

4.13 - Identification Evidence

4.14 - Opinion Evidence

4.15 - Previous Representations (Hearsay, Recent Complaint and Prior Statements)

4.16 - Silence in Response to People in Authority

4.17 - Silence in Response to Equal Parties

4.18 - Tendency Evidence

4.19 - Coincidence Evidence

4.20 - Other forms of other misconduct evidence

4.21 - Unfavourable Witnesses

4.22 - Unreliable Evidence Warning

4.23 - Criminally Concerned Witness Warnings

4.24 - Prison Informer Warnings

4.25 - Word Against Word Cases

4.26 - Differences in a Complainant’s Account

4.27 - Alibi

Part 5: Complicity

5.1 - Overview

5.2 - Statutory Complicity (From 1/11/14)

5.3 - Joint Criminal Enterprise (Pre-1/11/14)

5.4 - Extended Common Purpose (Pre-1/11/14)

5.5 - Aiding, Abetting, Counselling or Procuring (Pre-1/11/14)

5.6 - Assist Offender

5.7 – Commonwealth Complicity (s 11.2)

5.8 – Commonwealth Joint Commission (s 11.2A)

5.9 - Innocent Agent (Victorian Offences)

5.10 - Commission by Proxy (Commonwealth offences)

Part 6: Conspiracy, Incitement and Attempts

6.1 - Conspiracy to Commit an Offence (Victoria)

6.2 - Conspiracy (Commonwealth)

6.3 - Incitement (Victoria)

6.4 - Attempt (Victoria)

Part 7: Victorian Offences

7.1 - General Directions

7.2 - Homicide

7.3 - Sexual Offences

7.4 - Other Offences Against the Person

7.5 - Dishonesty and Property Offences

7.6 - Drug Offences

7.7 – Occupational Health and Safety

7.8 - Offences against justice

Part 8: Victorian Defences

8.1 - Statutory Self-Defence (From 1/11/14)

8.2 - Statutory Self-Defence (Pre - 1/11/14) and Defensive Homicide

8.3 - Common Law Self-Defence

8.4 - Mental Impairment

8.5 - Statutory Intoxication (From 1/11/14)

8.6 - Statutory Intoxication (23/11/05 - 31/10/14)

8.7 - Common Law Intoxication

8.8 - Automatism

8.9 - Statutory Duress (From 1/11/14)

8.10 - Statutory Duress (23/11/05 - 31/10/14)

8.11 - Common Law Duress

8.12 - Provocation

8.13 - Suicide Pact

8.14 - Powers of arrest

8.15 - Police search and seizure powers without a warrant

Part 9: Commonwealth Offences

9.1 - Commonwealth Drug Offences

9.2 - People Smuggling (Basic Offence)

9.3 - People Smuggling (5 or More People)

9.4 - Use of carriage service for child pornography material

Part 10: Unfitness to Stand Trial

10.1 – Investigations into Unfitness to Stand Trial

10.2 – Special Hearings