1.11 - Consolidated preliminary directions

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Note: This document replicates the directions in 1.4 – 1.10 in a single, consolidated document.

Introduction

Serving on a jury may be a completely new experience for some, if not all, of you. To help you perform that role properly, I will now describe your duties as jurors and the procedures that we will follow during the trial. I will also explain to you some of the principles of law that apply in this case.

During and at the end of the trial, I will give you further instructions about the law that applies to this case. You must listen closely to all of these instructions and follow them carefully.

If at any time you have a question about anything I say, please feel free to ask me. You should do this by writing it down, and passing it to my tipstaff, [insert name], who will hand it to me.

Roles of Judge, Jury and Counsel

Members of the jury, you represent one of the most important institutions in our community – the institution of trial by jury. Our legal system guarantees any individual charged with a criminal offence the right to have the case presented against him or her determined by twelve independent and open-minded members of the community, in accordance with the law.

In this case, it is alleged by the prosecution that NOA has committed the offence[s] of [insert offences].[1] S/he has pleaded “not guilty”, and so it is for you, and you alone, to decide whether s/he is guilty or not guilty of [this/these] crime[s].

I note that, when referring to the crime[s] that the accused has been charged with, I will sometimes use the words “offence” or “charge” – they all mean the same thing.

In all criminal trials of this type, the court consists of a judge and jury. We are going to be assisted in this case by counsel for the prosecution, [insert prosecutor’s name], and defence counsel, [insert defence counsel’s name]. Each of us has a different role to play.[2]

Role of the Jury

It is your role, as the jury, to decide what the facts are in this case. You are the only ones in this court who can make a decision about the facts. You make that decision from all of the evidence given during the trial.

It is also your task to apply the law to the facts that you have found, and by doing that decide whether the accused is guilty or not guilty of the offence[s] charged.

Role of the Judge

It is my role, as the judge, to ensure that this trial is fair and conducted in accordance with the law. I will also 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 that it is not my responsibility to decide this case. The verdict that you return has absolutely nothing to do with me. So while you must follow any directions I give you about the law, you are not bound by any comments I may make about the facts.

It is unlikely that I will make any comments about the evidence. If you disagree with any comments I make, you must disregard them. Do not give them any extra weight because I, as the judge, have made them. It is your view of the facts which matters, not mine. You are the judges of facts – you alone.

Role of Counsel

The role of counsel is to present the case for the side for which they appear. [Insert name of prosecutor] presents the charge[s] for the prosecution. [Insert name of defence counsel] appears for the accused, and will represent him/her throughout the trial.[3]

You do not need to accept any comments that counsel may make during their addresses. Of course, if you agree with an argument they present, you can adopt it – in effect, it becomes your own argument. But if you do not agree with their view, you must put it aside. As I have told you, you alone are the judges of the facts.

Similarly, you are not bound by what counsel says about the law. I am the judge of the law, and it is what I tell you about the law that matters. If counsel says something different from what I say about the law, you must ignore it and follow my directions.

What is Evidence?

I have told you that it is your task to determine the facts in this case, and that you should do this by considering all of the evidence presented in the courtroom. I now need to tell you what is and what is not evidence.

The first type of evidence is what the witnesses say.

It is the answers that you hear from the witnesses that are the evidence, and not the questions they are asked. This is important to understand, as sometimes counsel will confidently include an allegation of fact in a question they ask a witness. No matter how positively or confidently that allegation is presented, it will not form part of the evidence unless the witness agrees with it.

[Add the following shaded section if the judge believes it is necessary to further explain this point.]

Let me give you a simple example that has nothing to do with this case. Imagine counsel says to a witness “The car was blue, wasn’t it?”, and the witness replies “No, it wasn’t”. Given that answer, there is absolutely no evidence that the car was blue.

Even if you do not believe the witness, or think he or she is lying, there is no evidence that the car is blue. Disbelief of a witness’s answer does not provide evidence of the opposite. To prove that the car was blue, there would need to be evidence from some other source, such as a photograph or the testimony of another witness.

Of course, if the witness had instead replied “yes, it was”, there would be evidence that the car was blue. In such a case, the witness has adopted the suggestion made in the question. However, if the witness does not agree with that suggestion, the only evidence you have is that the car was not blue.

The second type of evidence is any document or other item that is received as an “exhibit”. The exhibits will be pointed out to you when they are introduced into evidence. When you go to the jury room to decide this case, some of the exhibits will go with you for you to examine. Consider them along with the rest of the evidence and in exactly the same way.

[Add the following shaded section if any formal admissions are likely to be put before the jury.]

The third type of evidence is what is called an “admission”. Admissions are facts that the prosecution and defence agree about. When that happens, no other evidence is required – the admissions are treated as established facts. I will tell you about any admissions that have been made in this case when relevant.

Nothing else is evidence in this case. This includes comments about the facts made by counsel.[4] The only evidence is the witnesses’ testimony, [the admissions] and the exhibits.

No Sympathy or Prejudice

It is your duty to decide this case only on the basis of that evidence. You must ignore all other considerations.

In particular, you should dismiss any feelings of sympathy or prejudice you may have, whether it is sympathy for, or prejudice against, the accused or anyone else. No such emotion has any part to play in your decision.

You are the judges of the facts. That means that in relation to all of the issues in this case, you must act like judges. You must dispassionately weigh the evidence logically and with an open-mind, not according to your passion or feelings. Your duty is to consider the evidence using your intellect not your heart.

No Outside Information

When you retire to consider your verdict, you will have heard or received in court, or otherwise under my supervision, all the information that you need to make your decision.

Unless I tell you otherwise, you must not base your decision on any information you obtain outside this courtroom. For example, you must completely ignore anything that you have seen or heard in the media about this case or the people involved in it, or which you may see or hear. You must consider only the evidence presented to you here in court [if a view may be conducted add: “or otherwise under my supervision”].[5]

Most importantly, you must not make any investigations or enquiries, or conduct independent research, concerning any aspect of the case or any person connected with it. That includes research about the law that applies to the case. You must not use the internet to access legal databases, legal dictionaries, legal texts, earlier decisions of this or other courts, or other material of any kind relating to the matters in the trial. You must not search for information about the case on Google or conduct similar searches. You also must not discuss the case on Facebook, Twitter or blogs, or look at such sites for more information about the case.

You may ask yourself the question: what is wrong with looking for more information? Seeking out information, or discussing a matter with friends, may be a natural part of life for you when making an important decision. As conscientious jurors, you may think that conducting your own research will help you reach the right result. However, there are three important reasons why using outside information, or researching the case on the internet, would be wrong.

First, media reports, or claims made outside court may be wrong or inaccurate. The prosecution and defence will not have a chance to test the information. Similarly, I will not know if you need any directions on how to use such material.

Second, deciding a case on outside information, which is not known to the parties, is unfair to both the prosecution and the defence. The trial is conducted according to well established legal principles and its not for you to go looking for other information or to add to the evidence.

Third, acting on outside information would be false to the oath or affirmation you took as jurors to give a true verdict according to the evidence. You would cease being a juror, that is, a judge of the facts, and have instead taken on the role of an investigator.

If one of your fellow jurors breaches these instructions, then the duty falls on the rest of you to inform me or a member of my staff, either in writing or otherwise, without delay. These rules are so important that you must report your fellow juror.

[Add the following shaded section if there is a risk that a juror may visit the crime scene or attempt a private experiment.]

For similar reasons, unless I tell you otherwise, you must not visit the scene of the alleged offence. You also must not attempt any private experiments concerning any aspect of the case. As I have explained, you are jurors assessing the evidence which is led in the case. You are not investigators, and must not take into account material that has not been properly presented to you as evidence.

Consequences of breaching instructions

You may have a question about what could happen if you acted on outside information or conducted your own research.

The immediate outcome is that the jury may need to be discharged and the trial may have to start again. This would cause stress and expense to the witnesses, the prosecution and the accused. It would also cause stress and inconvenience to the other jurors, who will have wasted their time sitting on a case which must be restarted.

Second, it is a criminal offence for a juror to discuss the case with others or to conduct research on the case. You could therefore be fined and receive a criminal conviction, which may affect your ability to travel to some countries. Jurors have even been sent to jail for discussing a case on Facebook.

More broadly, jurors conducting their own research undermines public confidence in the jury system. The jury system has been a fundamental feature of our criminal justice system for centuries.

For all these reasons, it is essential that you decide the case solely on the evidence presented in court, without feelings of sympathy or prejudice. You must not conduct your own research into the case or discuss the case with others who are not on the jury.

[Judges may describe a specific example of the consequences of breaching instructions]

Warnings About Discussing the Case

As judges of the facts, it is also important that you are careful to avoid any situations that could interfere with your ability to be impartial, or that could make you appear to be biased towards one side or the other.

You must therefore be careful not to get into conversation with anyone you do not know, who you might meet around or near the court building. Otherwise you may find yourself talking to someone who turns out to have a special interest in the case.

You must also avoid talking to anyone other than your fellow jurors about the case. This includes your family and friends. You must not discuss the case on social media sites, such as Facebook, Myspace, Twitter, blogs or anything else like that. Of course, you can tell your family and friends that you are on a jury, and about general matters such as when the trial is expected to finish. But do not discuss the case itself. It is your judgment, not theirs, that is sought. You should not risk that judgment being influenced by their views – which will necessarily be uninformed, because they will not have seen the witnesses or heard the evidence.

You are free to discuss the case amongst yourselves as it continues, although you should only do this in the jury room. However, you should form no conclusive views about the case until you have heard all of the evidence, listened to counsel on both sides, and received my instructions about the law. Keep an open mind.

Consequences of breaching instructions revisited

You have already heard what can happen when jurors disregard the instruction not to conduct their own research. Similar consequences can follow if you discuss the case with others.

You must therefore also let me know if someone tries to discuss the case with you, or if you learn that one of your fellow jurors has been discussing the case with someone outside the jury.

Assessing Witnesses

In order to decide what the facts are in this case, you will need to assess the witnesses who give evidence. It is up to you to decide how much or how little of the testimony of any witness you will believe or rely on. You may believe all, some or none of a witness’s evidence. It is also for you to decide what weight should be attached to any particular evidence – that is, the extent to which the evidence helps you to determine the relevant issues.

In assessing witnesses’ evidence, matters which may concern you include their credibility and reliability. Credibility concerns honesty – is the witness telling you the truth? Reliability may be different. A witness may be honest, but have a poor memory or be mistaken.

It is for you to judge whether the witnesses are telling the truth, and whether they correctly recall the facts about which they are giving evidence. This is something you do all the time in your daily lives. There is no special skill involved – you just need to use your common sense.

In making your assessment, you should appreciate that giving evidence in a trial is not common, and may be a stressful experience. So you should not jump to conclusions based on how a witness gives evidence. Looks can be deceiving. People react and appear differently. Witnesses come from different backgrounds, and have different abilities, values and life experiences. There are too many variables to make the manner in which a witness gives evidence the only, or even the most important, factor in your decision.

You should keep an open mind about the truthfulness or accuracy of the witnesses until all of the evidence has been presented. This is because it is only once you have heard all of the evidence that it will be possible to assess to what extent, if any, the other evidence in the case confirms, explains or contradicts a particular witness's evidence.

In making your decision, do not consider only the witnesses’ testimony. Also take into account the exhibits [and admissions]. Consider all of the evidence in the case, use what you believe and reject what you disbelieve. Give each part of it the importance which you – as the judge of the facts – think it should be given, and then determine what, in your judgment, are the true facts.

Onus and Standard of Proof

It is a critical part of our justice system that people are presumed to be innocent, unless and until they are proved guilty. So before you may return a verdict of guilty, the prosecution must satisfy you that [each of] the accused is guilty of the charge[s] in question.

As the prosecution brings the charge[s] against the accused, it is for the prosecution to prove that/those charge[s]. The accused does/do not have to prove anything. That never changes from start to finish. It is not for the accused to demonstrate his/her/their innocence, but for the prosecution to prove the charge[s] they have brought against him/her/them.

The prosecution must do this by proving [each of] the accused’s guilt of the charge[s] beyond reasonable doubt. You have probably heard these words before, and they mean exactly what they say – proof beyond reasonable doubt.

This is the highest standard of proof that our law demands. It can be compared with the lower standard of proof that is required in a civil case, such as where one person sues another for breach of contract. In that situation, matters only need to be proved on what is called the “balance of probabilities”. That is, they need to be shown to be more likely than not.

By comparison, in a criminal trial the prosecution must prove the accused’s guilt beyond reasonable doubt. Unless I tell you otherwise, this is what I mean when I say that the prosecution must “prove” or “establish” a matter, or that you must be “satisfied” about a matter.

The prosecution does not need to prove every fact that they allege to this standard. It is the essential ingredients or “elements” of the charge[s] that they must prove to this standard. In this case, that means that the prosecution must prove, beyond reasonable doubt, that [list elements of the primary offence. Repeat for any other offences].

I will explain these elements to you in detail, and relate them to the evidence in this case, after you have heard all of the evidence.

However, for now you should know that it is only if you find that the prosecution has proven all of the elements of a charge beyond reasonable doubt that you may find the accused guilty of that charge. If you are not satisfied that the prosecution has done this, your verdict in relation to that charge must be “Not Guilty”.

Your verdict of guilty or not guilty must be unanimous. That is, whatever decision you make, you must all agree on it.

Separate Consideration - Multiple Accused

[If the case involves multiple accused, add the following shaded section].

In this trial there are [insert number] accused. The prosecution says each of them is guilty. Each of them says they are not guilty. So there are really [insert number] trials [all] being heard together.

It would be inconvenient and a great waste of time and money to hold separate trials of each accused on different occasions in different courts on this same matter. So for convenience they are all tried together.

But you must be careful not to allow convenience to override justice. The parties are entitled to have the case against each accused considered separately.

You must consider the case against each accused separately, in light only of the evidence which applies to that accused. You must ask yourselves, in relation to each accused, whether the evidence relating to that accused has satisfied you, beyond reasonable doubt, that s/he is guilty of the offence s/he has been charged with. If the answer is yes, then you should find him/her guilty. If the answer is no, then you should find him/her not guilty.

Separate Consideration – Multiple Charges

[If the case involves multiple charges, add the following shaded section]

In this trial, the prosecution has brought [insert number] charges against the accused. While these are separate matters, they are [all] being dealt with in the one trial. This is done for convenience, as it would be expensive and time-consuming to hold a separate trial before a different judge and jury for each charge.

However, you must be careful not to allow convenience to override justice. Both the prosecution and the accused are entitled to have each charge considered separately.

It would therefore be wrong to say that simply because you find the accused guilty or not guilty of one charge, that s/he must be guilty or not guilty, as the case may be, of another.

Each charge must be considered separately, in light only of the evidence which applies to it. You must ask yourselves, in relation to each charge, whether the evidence relating to that charge has satisfied you, beyond reasonable doubt, that the accused is guilty of that particular crime. If the answer is yes, then you should find the accused guilty of that charge. If the answer is no, then you should find the accused not guilty of it.

Alternative Verdicts

[Where there is one incident which involves alternatives, add the following shaded section. If there are multiple incidents involving alternatives, this charge will need to be modified.]

Members of the jury, my tipstaff is now going to hand you a document called an “indictment”. This document lists the crimes that NOA is charged with. I will tell you more about what each crime involves at the end of the trial. However, there is one matter I want to draw to your attention now.

Charges [identify relevant alternatives] are given to you as alternatives. The prosecution does not say that the accused should be convicted of [both/all] of these charges, but of one or the other. This is because they [both/all] relate to the same incident.

At the end of the trial, when you are delivering your verdict[s], you will first be asked for your verdict on [insert principal offence], which is the more serious charge. If you reach a verdict of guilty in relation to that charge, you will not be asked for a verdict on [insert alternative charge].

It is only if you unanimously reach a verdict of not guilty on [insert principal offence] that you will be asked to deliver a verdict on [insert alternative charge]. This is because the prosecution is entitled to your verdict on the most serious charge. It would be wrong to compromise and say “we cannot agree on a verdict on charge one, but we agree that the accused is at least guilty of charge two”.

So when you are listening to the evidence, bear in mind that while there are [number of charges] charges on the indictment, there are actually only [number] of allegations that relate to different events because the other [number] charges are alternatives.

Trial Procedure

Order of Proceedings

I will now describe the procedure that we will follow during the trial, and some general administrative matters.

In a moment we will hear the opening address from the prosecutor, and the reply from counsel for the accused.[6] Then we will proceed to hear the evidence. After that, there will be closing addresses from counsel. I will then instruct you about the law, the issues and the evidence. You will then go to the jury room to discuss your verdict[s].

Transcripts and Note-Taking

All of the evidence in this case is going to be tape recorded and transcribed. This means that you will be able to check on any part of the evidence you later cannot remember.

However, you should always listen carefully to the evidence as it is given, because it is not only what the witnesses say, but also how they say it that is important to your assessment of their evidence.

When you are listening to the evidence from the witnesses, you may take notes if you wish, but you do not have to. It is completely up to you. If you do take notes, you should not allow it to distract you from listening to the evidence and assessing the witnesses. You may always ask to hear a tape of a witness’s testimony or have some evidence read back to you, but you only have one chance to observe the appearance and behaviour of the witnesses when they give the evidence.

Sitting times and breaks

Our hours here in court are [insert starting time] until [insert lunch time] and then [insert starting time after lunch] until [insert finishing time].

If something comes up which means that you may not able to attend court when we would normally be sitting, please let me know as soon as possible, so that we can try to resolve the issue.

Opening Address

We will now hear the opening address from the prosecution, who will tell you what the case is about.

[After opening and reply, briefly state the issues.]

Notes

[1] This charge is drafted for use in cases involving one accused. If the case involves multiple accused, it will need to be modified accordingly.

[2] This sentence will need to be modified if the accused is unrepresented.

[3] This section will need to be modified if the accused is unrepresented.

[4] If the accused is unrepresented, the jury should be told that what s/he says in his/her addresses, or when questioning witnesses, is also not evidence.

[5] If there has been significant pre-trial publicity about the case or the parties involved, it may be necessary to give a more detailed warning. See Decide Solely on the Evidence for further information.

[6] This will need to be modified if the judge’s remarks are made after the opening address and reply.

Last updated: 16 May 2019

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

1.10 – Trial Procedure

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