1.10 – Trial Procedure

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Order of Proceedings

  1. To help set the jury at ease, and provide a framework for understanding the nature of the trial, it may be desirable to outline the way in which the trial is likely to proceed.
  2. Unless the court otherwise directs, the prosecution must serve on the defence and file in court a summary of the prosecution opening at least 28 days before the trial is due to commence (Criminal Procedure Act 2009 s182).
  3. Once the prosecution has served its summary of the prosecution opening on the defence, the defence response must serve its response on the prosecution and file the response in court at least 14 days before the trial is listed to commence (Criminal Procedure Act 2009 s183).
  4. After the jury has been empanelled and the judge has given any preliminary directions, the prosecution will open their case (Criminal Procedure Act 2009 s224).
  5. Immediately after the prosecution opening, if the accused is represented by a legal practitioner, the defence must present their response to the jury (Criminal Procedure Act 2009 s225). However, if the accused is not represented by a legal practitioner, the accused may choose not to present a response.
  6. The prosecution opening and the defence response must be restricted to the matters set out in the documents served and filed under Criminal Procedure Act 2009 ss 182 and 183 (see also Duong v R [2017] VSCA 78 at [39]-[41]).
  7. If there is more than one accused, in the absence of agreement amongst counsel, they must make their addresses in the order in which their names appear on the presentment (R v Webb (1992) 64 A Crim R 38).
  8. At any time during the trial, the judge may address the jury about the issues in the trial, the relevance of any admissions made, directions given or matters determined prior to the commencement of the trial or any other matters relevant to the jury’s function (Criminal Procedure Act 2009 s222).
  9. It may be appropriate for the judge to refer to any other preliminary or practical matters which have not yet been addressed by counsel, such as the nature of the trial process and the hours of sitting. See Introductory Remarks for further information about matters which may be addressed at this time.
  10. The prosecution will then call their witnesses. At the close of the prosecution case, the defence must choose whether to make a submission that there is no case to answer, to choose to give evidence or call other witnesses, or not give evidence or call witnesses (Criminal Procedure Act 2009 s226). It is at the judge’s discretion whether this should be done in the presence or absence of the jury. However, it may be advisable to do so in the absence of the jury in joint trials or in trials in which a no-case submission may be anticipated (R v Aiton (1993) 68 A Crim R 578).
  11. If there are 2 or more accused, all accused who wish to do so must make a submission that there is no case to answer before any accused indicates whether he or she wishes to give evidence or call witnesses. All submissions of no case to answer must first be resolved and if there are then 2 or more accused remaining, the judge must ask the first accused whether he or she wishes to give evidence or call witnesses. Each accused named subsequently on the indictment is not required to inform the judge of this decision until the close of the case for the previous accused (Criminal Procedure Act 2009 s229).
  12. If the accused intends to call witnesses, the accused must indicate, when called on by the judge to do so, the names of those witnesses other than the accused and the order in which the witnesses will be called (Criminal Procedure Act 2009 s230).
  13. The defence may give an opening address before calling the accused or a witness other than the accused (Criminal Procedure Act 2009 s231).
  14. After the close of all evidence, the prosecution may make a closing address, summing up the evidence (Criminal Procedure Act 2009 s234).[1] 
  15. After the close of the evidence and after the prosecution closing address, the defence may give a closing address summing up the evidence (Criminal Procedure Act 2009 s235).
  16. If the accused, in his or her closing address, asserts facts which are not supported by evidence, the judge may allow the prosecution to make a supplementary address which is confined to replying to those assertions (Criminal Procedure Act 2009 s236).
  17. The power to allow the prosecution to make a supplementary submission under s236 is limited to cases in which the defence asserts facts which are unsupported by evidence. It does not extend to cases in which the defence makes illogical, extravagant or dishonest defence arguments. It is for the judge to deal with such arguments in his or her charge in a way that restores the balance without engaging in impermissible advocacy for the prosecution (R v Glusheski (1986) 33 A Crim R 193; R v O’Donoghue (1988) 34 A Crim R 397; Kamalasanan & Sam v The Queen [2019] VSCA 180, [97]-[101]; Mareangareu v The Queen [2019] VSCA 101, [67]-[99]).

    Juror Questions

    Clarifying Law and Evidence

  18. Jurors may question a judge about the evidence presented in a case, or about the relevant law. Judges are under a duty to ensure that jurors receive all of the assistance they require to discharge their task properly (R v Southammavong; R v Sihavong [2003] NSWCCA 312; R v Leggatt [1971] VR 705).
  19. If a communication from the jury indicates that they require assistance on a material aspect of the case, the judge has a duty to ascertain the specifics of the assistance required (R v Ion (1950) 34 Cr App R 152; R v Berry (1992) 96 Cr App R 77).
  20. If the jury asks a second question before the first is answered, the judge should not assume the jury no longer wants an answer to the first question. S/he must ask them whether they still want a response to the original question (R v De Simone [2008] VSCA 216).
  21. If the jury’s question indicates that they may be speculating or drawing inferences going beyond the evidence, they should be reminded of the extent of the evidence (R v Adair (1958) 42 Cr App R 227).
  22. When answering the jury’s question, the judge must be careful not to introduce a basis for liability which has not previously been addressed. This may disadvantage the accused, who will have had no opportunity to meet the new case (R v Falcone [2008] VSCA 225. See Judge’s Summing Up on Issues and Evidence for further information).
  23. After answering the jury’s question, the judge should enquire whether the answer covers their concerns. The judge is entitled to accept the foreperson’s affirmative response, if given without dissent (R v Leggatt [1971] VR 705; R v Coombes 16/4/1999 CA Vic).

    Questioning Witnesses

  24. 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).
  25. 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 told of any right possessed by them to question a witness.
    2. A juror who wishes to put, or have put, a question to a witness has a right for that to be done provided that the question or questions is or are limited to the clarification of evidence given or the explanation of some matter about which confusion exists.
    3. It is not essential that the question asked be formulated by the foreman.
    4. It is highly desirable that the question sought to be asked first be submitted to the judge so that he may consider its relevance and admissibility.
    5. If the judge allows the question it is immaterial whether it is actually asked by the juror or the judge. However, if the judge puts the question there will be removed the risk that exists when a layman is the questioner of the generation of a spontaneous exchange of questions and answers in the course of which improper material may emerge.
  26. 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 enable the ends of justice to be met (R v Lo Presti [1992] 1 VR 696. See also McKinnin v The Queen [2019] VSCA 114).
  27. Judges should not encourage jurors to ask questions or give the jury time to formulate questions at the end of a witness’ evidence. Doing so risks a fundamental departure from the jury’s proper role as impartial arbiters and invites the jury to form views about the state of the evidence before the end of the trial (Tootle v R (2017) 94 NSWLR 430. See also McKinnin v The Queen [2019] VSCA 114).
  28. Jurors are often told that the parties can be trusted to ask all relevant questions and, if a question is not asked, there is often a very good reason (Tootle v R (2017) 94 NSWLR 430 at [60]).

    Communicating with Jurors

  29. 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 also R v Stretton [1982] VR 251; R v Emmett (1988) 14 NSWLR 327; Jackson & Le Gros v R [1995] 1 Qd R 547; R v Briffa & Portillo 21/4/96 Vic CCA; R v GAE (2000) 1 VR 198; R v Edwards [2002] 1 Qd R 203).
  30. Juror questions should be asked (or read aloud) in open court, in the presence of the accused, their counsel and the jury - unless the communication is on a matter which does not touch upon the case in any relevant way. There should be no private communication between the judge and jury if the communication is material or may affect the jury’s consideration of the case (R v Cavkic (No 2) (2009) 28 VR 341; Sonnet v R (2010) 30 VR 519; R v Yuill (1994) 34 NSWLR 179; Smith v R (1985) 159 CLR 532; R v Boland [1974] VR 849; R v Kerr (No 2) [1951] VLR 239).
  31. A judge should not, upon receiving a note from the jury, send them an answer without communicating with the accused or defence counsel. That would infringe the fundamental principle that the accused is entitled to hear and see all that takes place during a trial (R v Black (2007) 15 VR 551; R v GAE (2000) 1 VR 198; Rabey v R [1980] WAR 84; R v Fitzgerald (1889) 15 VLR 40).
  32. 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).
  33. A judge must inform the parties of the terms of a question, even if that question indicates matters that are in the jurors’ minds during their deliberations. This is especially important if the communication relates to matters in issue in the trial. In such circumstances, the parties are entitled to know the content of the communication and, if appropriate, to make submissions as to the appropriate response (R v Black (2007) 15 VR 551; Sonnet v R (2010) 30 VR 519).
  34. However, if a communication reveals information which the jury should not have imparted (such as voting figures), the judge should not disclose that information to the parties. He or she should, however, announce the fact of the communication, and disclose any information that is unexceptionable (R v Black (2007) 15 VR 551; Sonnet v R (2010) 30 VR 519; R v Gorman [1987] 2 All ER 435).
  35. If the judge needs a jury communication clarified, he or she should not question the foreperson about it on oath in isolation from the rest of the jury. It is instead preferable to suggest that the jury reformulate the communication in private (R v Foster (1995) 78 A Crim R 517).
  36. If any answer to a communication from the jury would amount to a material irregularity, the judge should not answer the question nor disclose the contents of the communication until an appropriate stage of the proceedings (R v Oduro (1982) 76 Cr App R 38).
  37. The trial judge should ensure that an adequate record appears in the transcript of proceedings of all communications which it is permissible to disclose, and that any written communications, of whatever nature, are preserved (R v Masters (1992) 26 NSWLR 450; Shepherd (No 4) (1989) 41 A Crim R 420).

    Note-Taking

  38. 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.
  39. Any notes made by a discharged juror should not be left with the remaining jurors (Derbas v R (1993) 66 A Crim R 327).
  40. Notes and other documents left in the jury room after deliberations have ended must be collected and destroyed after the verdict has been delivered (R v Smart [1983] VR 265).

    Notes

[1] This provision overrides the practice of the prosecution not addressing the jury a second time when the accused was unrepresented (see, e.g., R v Ginies [1972] VR 494). The prosecution may now determine whether or not to give a closing address if the accused is unrepresented (R v Marijancevic [1982] VR 936; R v Trotter (1982) 7 A Crim R 8; R v Zorad (1990) 19 NSWLR 91).

[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).

Last updated: 28 August 2019

In This Section

1.10.1 – Charge: Trial Procedure

See Also

Victorian Criminal Charge Book

Part 1: Preliminary Direction

1.1 – Introductory Remarks

1.2 – Jury Empanelment

1.3 – Selecting a Foreperson

1.4 – The Role of Judge and Jury

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

1.11 - 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