Previous Topic

Next Topic

Book Contents

Book Index

3.9 - Judge’s Summing Up on Issues and Evidence

Click here to obtain a Word version of this document

Obligations When Summing Up

  1. A judge’s charge need not follow any specific pattern. Each charge must be tailored to the particular circumstances of the case (Alford v Magee (1952) 85 CLR 437; Werry v R [2010] VSCA 314; Huynh v R [2013] HCA 6).
  2. When summing up, the judge must:
  3. The summing up may use a combination of oral and written components (Jury Directions Act 2015 s65).
  4. The Jury Directions Act 2015 draws a distinction between “referring” to or “identifying” evidence or arguments and “summarising”, and removes any obligation to summarise evidence or arguments, or remind the jury of the content of the evidence (Murrell v R [2014] VSCA 334, [14]).
  5. While a judge does not need to summarise the evidence, he or she must still give the jury guidance on how the evidence relates to the directions of law (R v RNS [1999] NSWCCA 122; R v Condon (1995) 83 A Crim R 335).
  6. Whether the judge is bound to refer to an evidentiary matter or argument depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have a sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence (R v Thompson (2008) 21 VR 135; Domican v R (1992) 173 CLR 555; R v Williams (1999) 104 A Crim R 260; R v Veverka [1978] 1 NSWLR 478).

    Identification of issues

  7. Based on the matters identified by prosecution and defence counsel as being in issue (see Jury Directions Act 2015 s11), the judge must decide what are the real issues in the case, tell the jury what those issues are, direct the jury on so much of the law as is necessary to enable the jury to resolve those issues and explain how the law applies to the facts of the case (R v Thompson (2008) 21 VR 135; R v DD (2007) 19 VR 143; R v Zilm (2006) 14 VR 11; R v AJS (2005) 12 VR 563; R v Chai (2002) 187 ALR 436; R v Anderson [1996] 2 VR 663; Alford v Magee (1952) 85 CLR 437; Murrell v R [2014] VSCA 334).
  8. It is not necessary to direct the jury about all elements of every offence charged. The responsibility of the judge is to determine what matters are in issue in the case and explain to the jury only as much of the law as is necessary to resolve those matters (Jury Directions Act 2015 s65; Huynh v R [2013] HCA 6; R v VN (2006) 15 VR 113; R v Aden and Toulle (2002) 162 A Crim R 1; Holland v R (1993) 67 ALJR 946; Quail v R [2014] VSCA 336).
  9. The judge may identify an issue as a factual question, rather than any underlying legal question (Quail v R [2014] VSCA 336). See Integrated Directions and Factual Questions below for more detail.
  10. While the judge need not direct the jury about every element, it is erroneous to withdraw an issue from the jury (Griffiths v R (1994) 125 ALR 545; Huynh v R [2013] HCA 6).
  11. It is the judge’s responsibility to focus the jury’s attention on the issues he or she identifies. That responsibility should not be delegated to counsel (R v Amado-Taylor [2000] 2 Cr App R 18).
  12. The obligation to identify issues and relevant evidence is limited to the issues or matters that are actually in dispute in the trial (R v RR [2011] NSWCCA 235; Buckley v R [2012] NSWCCA 85).
  13. In identifying the issues, there must be evidence to support those issues. In assessing which defences arise, and the factual basis for defences, there must be some evidence on which a reasonable jury could decide the issue favourably to the accused (Quail v R [2014] VSCA 336, [22]).
  14. The judge should ensure that the issues for decision in the trial are simply but adequately presented to the jury, without unnecessary emphasis on abstract legal concepts or theories. The judge should tell the jury what the prosecution must prove, rather than give the jury a short lecture on the law (R v Whiting [1995] 2 Qd R 199).
  15. The Jury Directions Act 2015 allows judges to direct the jury on issues in the form of factual questions which address the elements or defences in issue. See Integrated Directions and Factual Questions (below).

    Identification of Evidence

  16. The judge must identify only so much of the evidence as is necessary to help the jury to determine the issues in the trial. To determine what evidence must be identified, the judge must consider the following matters:
    1. The facts in issue and the complexity of the facts in issue
    2. The length of the trial;
    3. The complexity of the evidence;
    4. The submissions and addresses of the parties;
    5. The manner in which the judge refers to the way in which the parties put their cases;
    6. Any special needs or disadvantages of the jury in understanding or recalling the evidence;
    7. Any transcript of evidence or other document provided to help the jury understand the evidence (Jury Directions Act 2015 s66).
  17. The Act does not draw a distinction between the obligation to identify direct evidence and circumstantial evidence. All evidence, whether direct or circumstantial, which may bear upon the primary or subsidiary issues must be identified. Indeed, the nature of circumstantial evidence may make it more important for a judge to identify how circumstantial evidence relates to the different issues in the case (Murrell v R [2014] VSCA 334, [15]).
  18. The summing-up must be fair and accurate, and must not usurp the role of the jury as finder of fact. The judge must be careful not to misrepresent the evidence in any way, or use language that may cause the jury to think they are being directed to find the facts in a particular way (Courtney-Smith (No 2) v R (1990) 48 A Crim R 49; R v Hughes (1989) 42 A Crim R 270; R v Perera [1986] 1 Qd R 211; R v Tikos (No 2) [1963] VR 306).
  19. There is no absolute rule as to what the judge must address in the charge to ensure a fair trial. What is required will vary according to the circumstances of the case, and factors such as the length of the case, the complexity of the issues and the manner in which the case is conducted by the parties (Jury Directions Act 2015 s66; Werry v R [2010] VSCA 314; R v Thompson (2008) 21 VR 135; R v DD (2007) 19 VR 143; R v Yusuf (No.2) [2006] VSCA 117; R v Zilm (2006) 14 VR 11; R v Dao [2005] VSCA 196).
  20. The duty to identify the facts relevant to the issues is not confined to the ultimate facts in issue. The judge must also identify any substratum of facts which are in dispute and which bear upon the resolution of the ultimate issues. The evidence which is relevant to those subsidiary issues must also be identified (R v Thompson (2008) 21 VR 135; Murrell v R [2014] VSCA 334).
  21. The judge does not need to read out all the evidence or to analyse all the conflicts in it. Instead, judges must provide a fair and balanced explanation of the law, the issues and the respective cases of the prosecution and defence (see R v Meher [2004] NSWCCA 355; R v Piazza (1997) 142 FLR 64; R v DH [2000] NSWCCA 360).
  22. In discharging the obligation to put the defence case to the jury, the judge must refer to any items of evidence necessary to understand the defence case. It is not sufficient to refer to defence arguments in general terms without identifying the supporting pieces of evidence (El-Jalkh v R [2009] NSWCCA 139; Mencarious v R [2008] NSWCCA 237; R v Piazza (1997) 142 FLR 64; Gurung v The Queen [2019] VSCA 196, [73]-[74]).
  23. Where there is a significant dispute about material facts, the judge should succinctly identify the pieces of evidence in conflict, to focus the jury's attention on the issues they have to resolve (R v Amado-Taylor (2000) 2 Cr App R 189; R v Mears (1993) 97 Cr App R 239).
  24. Where the evidence is relatively short and the issues clearly drawn, and there is no delay between the giving of the evidence and the judge’s charge, a detailed account of the evidence may not be necessary (PA v R [2010] VSCA 85; R v Thompson (2008) 21 VR 135; R v Yusuf (No.2) [2006] VSCA 117; R v Zilm (2006) 14 VR 11; R v Dao [2005] VSCA 196; R v Amado-Taylor [2000] 2 Cr App R 18).
  25. However, in determining whether and to what extent it is necessary to identify evidence, judges should not assume that what a trained and experienced lawyer can recollect will be the same as what each member of the jury, without the same or any similar training, can recollect at the end of a trial. Many jurors do not have the experience, ability or opportunity of a judge to note significant evidence and cross-reference evidence from different sources which relate to the same issue (see Scetrine v R (2010) 28 VR 213; R v Thompson (2008) 21 VR 135; R v De’Zilwa (2002) 5 VR 408; R v Amado-Taylor [2000] 2 Cr App R 18; Murrell v R [2014] VSCA 334).

    Relate Evidence to the Issues in the Case

  26. As evidence is given witness by witness, rather than sequentially according to the issues, it is the judge’s responsibility to arrange the evidence issue by issue, rather than leaving this task to the jury (R v Amado-Taylor [2000] 2 Cr App R 18).
  27. The judge should provide the jury with a collected overview of the evidence that relates to each of the elements of the charged offences that are in issue, and a brief outline of the arguments which have been put in relation to that evidence (Jury Directions Act 2015 s65; R v Hannes (2000) 158 FLR 359; R v Piazza (1997) 94 A Crim R 459; R v Zorad (1990) 19 NSWLR 91).
  28. A detailed summary of all of the evidence given by each witness, without reference to prosecution or defence arguments, is not necessary or sufficient. It does not help in isolating the real issues for the jury’s determination (R v Hytch (2000) 114 A Crim R 573; Jury Directions Act 2015 s65).
  29. Fairness requires that, if a judge refers to the evidence on a crucial issue, there also be reference to any competing versions and considerations, including any inferences that arise (Cleland v R (1982) 151 CLR 1; Domican v R (1992) 173 CLR 555).
  30. Judges should usually avoid illustrating issues in the trial by way of factual examples which bear close resemblance to disputed facts in the case. Such examples might improperly be taken to invite a conclusion adverse to the accused (R v Ivanovic [2005] VSCA 238).
  31. It is conventional to warn the jury that, while the judge is going to try to relate the evidence to the issues to assist the jury, it is for the jury, as the judges of the facts, to determine what evidence they think to be significant. Anything which the judge identifies as being significant is neither binding on the jury, nor necessarily accurate (R v Brdarovksi (2006) 166 A Crim R 366; [2006] VSCA 231; R v Yusuf (2005) 11 VR 492; R v De’Zilwa (2002) 5 VR 408).

    Cases Involving Multiple Counts

  32. In a trial involving multiple counts, as well as giving a separate consideration direction (see Separate Consideration), the judge should carefully explain to the jury what evidence relates to which count, and what evidence is inadmissible on each count (T v R (1996) 86 A Crim R 293; R v Mooseek (1991) 56 A Crim R 36).[1]
  33. The judge must identify the conduct encompassed by the separate counts. The jury must be under no misapprehension concerning what the prosecution has to establish in order to secure a conviction on any particular count (R v Huver [2005] VSCA 170).
  34. In some cases, the judge should direct the jury that if they are not satisfied that a particular ingredient of one count has been proved, that finding will be material to their deliberations in respect of a related count. Whether such a direction is required will depend on the nature of the counts alleged, and the evidence led in support of them (R v Patton [1998] 1 VR 7; R v Anderson [1996] 2 VR 663).
  35. The jury should be told if an acquittal on one count would require an acquittal on another (R v Scott (1996) 131 FLR 137; R v Patton [1998] 1 VR 7).
  36. In cases involving multiple counts, it may also be necessary to give a warning against tendency reasoning (see Tendency Evidence).

    Cases Involving Multiple Accused

  37. One problem which a judge has to overcome in joint trials is the risk of prejudice resulting from evidence being allowed in which is not admissible against all of the accused (R v Nessel (1980) 5 A Crim R 374; Webb v R (1994) 181 CLR 41 per Toohey J).
  38. While this risk will be partly overcome by giving a separate consideration direction (see Separate Consideration), such a direction will usually not be sufficient. The judge must also:
  39. It is not sufficient simply to tell the jury that they must base their decision on the evidence that is admissible against each accused, because this tacitly attributes knowledge of the rules of evidence to the jury. The judge must apply those rules to the evidence in the case (R v Minuzzo and Williams [1984] VR 417).
  40. The best way in which to identify the evidence that is admissible and inadmissible against each accused will depend on the facts of the case. In some cases it may be appropriate to identify all of the evidence generally, and then focus on the evidence that is inadmissible against each accused. In other cases it may be necessary to identify the evidence admissible against each accused separately (Jury Directions Act 2015 s75; Nicoletti v R 4/11/97 WA CCA; R v Minuzzo and Williams [1984] VR 417. See also R v Taouk 17/12/92 NSW CCA; R v Masters (1992) 26 NSWLR 450).
  41. Where a substantial body of the evidence is common to more than one accused, and the judge has identified the relevant evidence in relation to the first accused, it is not necessary to repeat that evidence in the same detail when dealing with each of the other accused to whom the same material relates. However, unless the evidence is wholly identical against each accused, it is necessary to deal with each accused separately by presenting the case against him or her separately (R v Taouk 17/12/92 NSW CCA; R v Masters (1992) 26 NSWLR 450; R v Towle (1955) 72 WN (NSW) 338).
  42. If the defence of one accused is conducted in a manner likely to prejudice a second accused (due to the inclusion of evidence that would ordinarily be inadmissible against him or her), the judge must give very full and detailed directions, referring to the inadmissible evidence and the potential prejudice it creates, and directing the jury to ignore that evidence when considering the case against the second accused. If the nature of the prejudice is such that not even a strong warning will be sufficient to guard against it, the judge should discharge the jury in respect of the second accused, and order that he or she be tried separately (R v Taouk 17/12/92 NSW CCA; R v Hauser (1982) 6 A Crim R 68; Webb v R (1994) 181 CLR 41).
  43. The jury should usually be told that a certain item of evidence is inadmissible against a particular accused at the time that it is tendered. However, whether or not such a direction is given at that stage, it must always be given in the judge’s summing-up (R v Nessel (1980) 5 A Crim R 374; R v Towle (1955) 72 WN (NSW) 338).
  44. Similarly, if a document is admissible in relation to one accused but not in relation to a second accused, the judge must give the jury a clear and forceful direction about the limitations of the use they can legitimately make of the document at the time that it is provided to them, and again in his or her summing-up (R v Hauser (1982) 6 A Crim R 68).

    Referring to the Parties’ Cases

  45. The judge does not need to summarise the closing addresses of the parties, but must refer the jury to the way in which the prosecution and accused have put their cases on the issues in the trial (Jury Directions Act 2015 s65).
  46. The judge must put the respective cases for the prosecution and the defence to the jury accurately and fairly (Domican v R (1992) 173 CLR 555; Cleland v R (1982) 151 CLR 1).
  47. It is especially important that the judge fully, clearly and fairly present the defence case, as this provides a fundamental safeguard in our system. Failure to present an important part of the defence case will be a miscarriage of justice (R v Thompson (2008) 21 VR 135; R v Coombes 16/4/1999 CA Vic; R v Melbourne (1999) 198 CLR 1; R v McKellin [1998] 4 VR 757; R v Wiles and Briant [1965] VR 475; R v Schmahl [1965] VR 745).
  48. The judge is obliged to ensure that the jury’s attention is drawn to the evidence on which the defence relies. However, the judge does not need to summarise defence counsel’s address or the evidence (Jury Directions Act 2015 s65. See also R v Thompson (2008) 21 VR 135; R v Soldo [2005] VSCA 136).
  49. The way in which a judge refers to counsel’s address will depend on the circumstances of the case. In some cases, in order to ensure that the defence case is adequately presented to the jury, it will be necessary to refer to the addresses in some detail (e.g., where the arguments put forward in the address do not emerge clearly from the judge’s references to the evidence, or the nature of the case itself). In other cases, a much briefer reminder of counsel’s arguments will suffice (Werry v R [2010] VSCA 314).
  50. This requirement does not oblige the judge to put to the jury every argument made by counsel for the accused, as long as the accused’s case is put fairly. Whether it is necessary to refer to a particular argument will depend on the nature of the case (Werry v R [2010] VSCA 314; R v Sukkar [2005] NSWCCA 54; R v Meher [2004] NSWCCA 355; Domican v R (1992) 173 CLR 555; R v Forster [1955] VLR 253).
  51. The defence should be put in such a way that, upon their retirement to consider the verdict, the jury has a clear understanding of the accused’s position (R v Nguyen [2006] VSCA 158; R v Dao [2005] VSCA 196; Stokes v R (1960) 105 CLR 279).
  52. Putting the defence fairly and adequately will generally require the judge to refer to any evidence of inconsistencies in the prosecution witnesses’ accounts that the accused has sought to exploit (R v Amado-Taylor [2000] 2 Cr App R 18).
  53. Judges should not intermingle their explanation of the defence case with disparaging and adverse comments upon it. It is not part of the proper function of the judge to pass comments regarding the quality of counsel’s arguments (R v Abdirahman-Khalif [2020] HCA 36, [77]. See also “Distinction between Directions and Comments” below).
  54. However, where the prosecution or defence make a statement or suggestion that is prohibited by the Jury Directions Act 2015, the trial judge must correct that statement or suggestion unless there are good reasons for not doing so (Jury Directions Act 2015 s7). For example, a direction may not be required if the party withdraws the statement and corrects their misstatement at the invitation of the judge (see, e.g., Reeves v R (2013) 41 VR 275).
  55. It is insufficient for judges to rely on counsels’ addresses. They must lend the weight of their judicial position and authority to the respective cases by referring to the way each party have put their case (see R v Tomazos 6/8/71 NSW CCA; Jury Directions Act 2015 s65).
  56. The summing-up must present a balanced account of the conflicting cases. Where one case is strong and the other weak, this is not achieved by under-weighting the strong case and over-weighting the weak one. A balanced account in such a situation would reflect the strength of the one and weakness of the other (R v Ali (1981) 6 A Crim R 161; Sumner v R [2010] VSCA 298).
  57. A balanced summing up does not involve instructing the jury only on the different paths it could take to conviction. As part of providing a balanced summing up that puts the defence case, the judge should refer to specific evidentiary issues which may favour the defence case (Gurung v The Queen [2019] VSCA 196, [73]-[74]).
  58. The summing-up is not to be used for the purpose of filling gaps, or rectifying deficiencies, in counsels’ submissions to the jury. A desire on the part of the trial judge to reduce a perceived imbalance in the quality of representation cannot provide a justification for an unbalanced summing-up (R v Esposito (1998) 45 NSWLR 442).
  59. It is not the judge’s role to respond to matters raised in defence counsel’s address that the prosecution has not adequately dealt with. Doing so may give the jury the impression that the judge disagrees with the defence arguments and is urging the jury to infer guilt (R v Lao and Nguyen (2002) 5 VR 129).
  60. Keeping a balance between the prosecution and defence cases requires the use of moderate and reasoned language which is not likely to inflame the jury. The judge should never betray an emotional approach to the facts (R v Machin (1996) 68 SASR 526; Cornelius & Briggs v R (1988) 34 A Crim R 49; Galea v R (1989) 1 WAR 450; Green v R (1971) 126 CLR 28; R v Byczko (1982) 30 SASR 578).
  61. Where the prosecution case seems to be very strong, it is particularly important that the judge maintain the appearance of strict judicial impartiality by taking a disinterested position (Sumner v R [2010] VSCA 298).
  62. It is inappropriate for a judge to refer to the accused by his or her surname only, while preceding the surname of the complainant and prosecution witnesses with the terms “Ms”, “Mrs” or “Mr” (R v Soldo [2005] VSCA 136).

    Integrated Directions and Factual Questions

  63. The Jury Directions Act 2015 allows judges to give directions in the form of factual questions that address the matters the jury must consider or be satisfied of in order to reach a verdict (Jury Directions Act 2015 s67). These directions are sometimes also called “question trails”.
  64. Factual question directions are designed to reduce the difficulty of the jury understanding and applying abstract principles of law. Instead, the directions will ask the jury to resolve specific factual questions and spell out the legal consequences of possible findings of fact. Such directions are designed to put the critical issues of fact before the jury, without complications from the interpretation of the relevant law (see, e.g., Stuart v R (1974) 134 CLR 426).
  65. For example, in Quail v R [2014] VSCA 336, the trial judge, with the consent of prosecution and defence counsel, integrated the legal question of self-defence within the factual question of whether the accused or the victim was the original aggressor. Resolution of that question was sufficient to determine whether the prosecution had disproved self-defence.
  66. The judge may combine directions in the form of factual questions with:
    1. Directions on the evidence and how the evidence is to be assessed;
    2. The reference to the way the parties have put their case in relation to the issues;
    3. The identification of evidence necessary to assist the jury determine the issues in the trial (Jury Directions Act 2015 s67).
  67. A judge who gives a direction in the form of a factual question or a factual question combined with another matter (an “integrated direction”) does not need to also address the matter in another form (Jury Directions Act 2015 s67).
  68. Where a person is charged with committing the same offence on multiple occasions, a question trail may identify the central factual question, the occasions that are relevant to each charge, and contain a short factual statement about how the prosecution and defence puts their case in relation to each occasion. Such a process is likely to be of great assistance to the jury by simplifying the issues to be decided and integrating the elements with the facts in the form of easily comprehensible questions (see Star v The Queen [2020] VSCA 331, [42]-[43]).
  69. Where there are multiple accused and the evidence against each accused is different, there are risks in using a question trail which does not differentiate between the accused (McKinnen v The Queen [2019] VSCA 114, [77]).
  70. Integrated directions should contain questions that are tied to individual elements and explain the consequences that flow from each answer for the next step in the reasoning (McKinnin v The Queen [2019] VSCA 114, [78]).
  71. A judge should not describe a jury document as a question trail unless it is an integrated direction in accordance with s 67 of the Jury Directions Act 2015 (McKinnin v The Queen [2019] VSCA 114, [78]).
  72. Under the Jury Directions Act 2015, it is only the elements and the absence of any defences which must be proved beyond reasonable doubt. When a judge directs on the elements in the form of factual questions, those factual issues must be proved beyond reasonable doubt (Jury Directions Act 2015 s61).

    Jury Checklists

  73. An alternative to integrated directions and factual questions is to provide the jury with an element checklist. That is a document which succinctly states the elements of each offence or defence the jury must consider, and identifies how decisions on each element lead to a particular legal conclusion.
  74. Sample checklists are provided in this Charge Book for most offences.
  75. Checklist questions are designed to present questions which are answered either as yes or no.
  76. Consistent with the onus of proof, in most situations, the jury may only answer yes to a checklist question if it is satisfied of the relevant matter beyond reasonable doubt.[2] The corollary to this is that if the jury is not satisfied of an element beyond reasonable doubt, then the jury should answer no to the question that reflects that element.
  77. A judge must not leave the jury with the impression that it may only answer no to a checklist question which asks if the prosecution has proved a particular element if it has a positive belief that the answer is no. Such an impression would diminish or reverse the onus of proof (Gregg v The Queen [2020] NSWCCA 245, [508]-[510]).
  78. In New South Wales, there was a practice of directing the jury, as part of a checklist, that “if you are undecided as to the answer of any of the questions, you should consider the remaining ones in order to determine whether the answer to any of them is in the negative and if so, you should acquit the accused”. This instruction has now been disapproved, on the basis that it undermines the prosecution’s burden of proof by suggesting that a positive state of belief is required when answering either yes or no to a checklist question (Gregg v The Queen [2020] NSWCCA 245, [509]).
  79. It is likely that the impugned instruction reflects a concern raised by Judge Berman in Question trails in jury instruction – a note of caution 24(4) Judicial Officers Bulletin (May 2012), that in following a checklist, a jury may collectively cease their deliberations due to an inability to agree on one element, even though the jury would agree that an offence was not proved if they considered all elements.
  80. In Victoria, this concern is addressed by jurors using the checklist individually, rather than expecting the jury to work through the checklist in a collective, step-by-step, process where unanimity is required at each step.

    Written Directions

  81. Under the Criminal Procedure Act 2009 s223, a judge may give the jury written directions summarising relevant matters of law, setting out the questions it may be pertinent for them to consider, or describing the possible verdicts at which they may properly arrive.
  82. The judge may also provide the jury with a “jury guide”, which contains any of the following:
    1. A list of questions to assist the jury in reaching a verdict, including a written form of any factual question directions or integrated directions; or
    2. Evidentiary directions; or
    3. References to how the parties have put their cases; or
    4. References to evidence which the judge considers necessary to assist the jury to determine the issues in the trial; or
    5. Any other information (Criminal Procedure Act 2009 s223).
  83. These directions should not be used as a substitute for directions of law or references to how the parties have put their case. Instead, written directions may be used in conjunction with and to supplement oral directions (see Jury Directions Act 2015 ss65, 66).
  84. The court should mark and tender any written directions, question trails or jury guides as exhibits. This ensures that they are preserved for any future proceedings.
  85. See Providing Documents to the Jury for further information concerning written directions.

    Distinction between Directions and Comments

  86. A distinction is drawn between “directions” and “comments”:
  87. A judge must give all directions required by the law. In doing so, he or she must make it clear that he or she is giving a direction, and that the direction must be heeded (Azzopardi v R (2001) 205 CLR 50; Mahmood v State of Western Australia (2008) 232 CLR 397).
  88. However, as it is for the jury alone to determine the facts, the judge must never direct them that they must accept his or her view of disputed evidence (RPS v R (2000) 199 CLR 620; R v Boykovski and Atanasovski (1991) A Crim R 436).
  89. Although a judge may make non-binding comments or observations about the evidence, he or she should generally avoid doing so (R v Brdarovksi (2006) 166 A Crim R 366; R v Ivanovic [2005] VSCA 238; R v Mathe [2003] VSCA 165; R v Soldo [2005] VSCA 136).
  90. In particular, the judge must not comment on a disputed issue in such a way as to suggest how the jury should resolve that issue. This prohibition applies equally to comments that might be favourable to the prosecution and the defence, even though a comment that unfairly favours the defence cannot be remedied by appeal (McKell v The Queen [2019] HCA 5, [46]; McKinnin v The Queen [2019] VSCA 114; Mareangareu v The Queen [2019] VSCA 101; Pyliotis v The Queen [2020] VSCA 134; R v Abdirahman-Khalif [2020] HCA 36, [77]).
  91. Comments on the resolution of disputed factual issues have two vices. First, they are not consistent with the different constitutional functions of the judge and jury. The judge’s function in addressing the jury is to ensure the jury have a fair and accurate understanding of what they need to know to do justice to the issues of fact. Comments are not necessary for performing that duty. Second, there is tension between suggesting how the jury might or should think and directing the jury that they are free to ignore that suggestion. Such a comment risks being an attempt to persuade the jury, and function as a second address that favours either the prosecution or defence (McKell v The Queen [2019] HCA 5, [48]-[52], [55]. See also R v Brdarovksi (2006) 166 A Crim R 366; R v Ivanovic [2005] VSCA 238; Mule v R (2005) 221 ALR 85).
  92. In addition, the powerful position occupied by judges should make them slow to comment on the facts of a case. As judges appear to be neutral, with their statements carrying the earmarks of balanced justice, their comments cannot fail to bear heavily on the jury. This creates a risk that the jury will be overawed by a judge’s view, even if they are warned that they need not take that view into account (Broadhurst v R [1964] AC 441; R v Mawson [1967] VR 205; R v Machin (1996) 68 SASR 526; R v Mong (2002) 5 VR 565; R v Mathe [2003] VSCA 165).
  93. It will therefore most often be the safer course for a judge to make no comment on the facts (RPS v R (2000) 199 CLR 620; Azzopardi v R (2001) 205 CLR 50; R v Mong (2002) 5 VR 565; R v Mathe [2003] VSCA 165; R v Soldo [2005] VSCA 136; R v Ivanovic [2005] VSCA 238). 
  94. A judge may comment to restore the balance and correct misleading impressions created by counsel, provided the comment is made in a way that only restores the balance and does not tip the balance in the other direction. Such statements might be necessary where counsel misrepresents the evidence (McKell v The Queen [2019] HCA 5, [53]-[54]; R v Abdirahman-Khalif [2020] HCA 36, [81]; R v Castle (2016) 259 CLR 449, [61]).
  95. Any judicial comments that are made must be fair and appropriate, and exhibit a judicial balance, so that the jury is not deprived of an adequate opportunity of understanding and giving effect to the defence and the matters relied upon in support of the defence (Stokes v R (1960) 105 CLR 279; Green v R (1971) 126 CLR 28; B v R (1992) 175 CLR 599; R v Meher [2004] NSWCCA 355).


  96. The judge should, at the conclusion of the summing-up, ask counsel, in the absence of the jury, whether the judge failed to give any directions of law or warnings which were requested, and hear submissions on the correctness or otherwise of the directions of law which have been given (R v Gulliford [2004] NSWCCA 338; R v Mostyn [2004] NSWCCA 97; R v Roberts (2001) 53 NSWLR 138; Lean v R (1993) 66 A Crim R 296).
  97. Counsel may also seek additional directions which were not previously sought in relation to the matters in issue or the evidence relevant to the matters in issue (see Jury Directions Act 2015 s12). See also Overview – Directions Under Jury Directions Act 2015.
  98. Counsel may be asked to formulate any direction, warning or comment they believe is required by the judge, if they submit that what the judge has said was insufficient to ensure a fair trial for the accused or the prosecution (R v Micalizzi [2004] NSWCCA 406).
  99. It is appropriate to redirect the jury if the judge is satisfied that he or she failed to give a requested direction and were no good reasons for not giving the direction. However, the trial judge must ensure that any redirection does not give undue emphasis to any matter which would affect the balance of fairness (Holt v R (1996) 87 A Crim R 82; Jury Directions Act 2015 s14).
  100. When giving a redirection to address an earlier, erroneous, direction, the judge should explicitly tell the jury that the earlier direction was wrong. It is not sufficient to give the jury a corrected direction without also telling the jury to disregard the earlier direction, as that produces a situation where the jury has conflicting and confusing directions (Ritchie v The Queen [2019] VSCA 202, [130]).
  101. The judge should ensure that an appropriate note is made of any submissions, rulings and redirections. The failure to take exception to an aspect of the judge’s charge is often significant to the disposal of an appeal, as it may demonstrate that the matter in question did not cause a substantial miscarriage of justice (R v Clarke [1986] VR 643; R v McKellin [1998] 4 VR 757; R v Zilm (2006) 14 VR 11; R v MAG [2005] VSCA 47; R v IAB [2009] VSCA 229. See also Jury Directions Act 2015 ss15, 16).
  102. A judge should ensure that no further directions are to be sought or given before asking the jury to consider their verdict (R v McCormack (1995) 85 A Crim R 445. See also Knight v R 18/12/90 NSW CCA; Trivitt 13/6/91 NSW CCA; Lean v R (1993) 66 A Crim R 296).


[1] If evidence which is admissible on one count is not admissible on another, and in consequence there is a real risk of impermissible prejudice to the accused, the judge may need to consider ordering separate trials (see R v TJB [1998] 4 VR 621; Criminal Procedure Act 2009 s193).

[2] To provide consistency for a jury between questions regarding elements of offences and elements of defences, questions which require the prosecution to prove a negative proposition as often framed in the form “Has the prosecution proved, beyond reasonable doubt that the accused did not …?”. The alternative, where the prosecution must prove a negative, is to ask the jury “Is it reasonably possible that the accused …?”. If used, that formulation is best used for exculpatory matters, such as the elements of self-defence (see Gregg v The Queen [2020] NSWCCA 245, [503]-[510]; Moore v The Queen [2016] NSWCCA [43], [99]-[127]; Towney v The Queen [2018] NSWCCA 65, [71]-[82]; c.f. Hadchiti v The Queen (2016) 93 NSWLR 671, [67]-[112]).

[3] In Mahmood v State of Western Australia (2008) 232 CLR 397, the court gave the following examples: Telling the jury that they may attach particular significance to a fact, or that other evidence may be considered of greater weight, is a comment. Warning the jury about the care needed in assessing some evidence, or the use to which it may be put, is a direction.

Last updated: 14 May 2021

In This Section

3.9.1 - Charge: Judge's Summary of Issues and Evidence

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

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

3.10 - 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