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James Wood, AO QC
Chairman, NSW Law Reform Commission
Criminal trial by jury is coming increasingly under a spotlight, with occasional calls for its abandonment, particularly when high profile trials fail or become delayed for one reason or another. While some of the problems have related to wrongful juror access to the internet, or to unauthorized jury experiments or views, or to imprudent extra-judicial publicity, or to delays and adjournments that have caused complainants to lose faith with the justice process, they tell only part of the story.
Of greater concern is the fact that as society becomes more and more complex, so does its regulation through the criminal statute books and its articulation by appellate courts, to the point where, absent careful framing of those laws, and their explanation to juries in comprehensible terms, there is only likely to be an increase in the already high incidence of successful appeals.
As Chief Justice Le Sage observed in the Report of the Ontario Supreme Court of Justice opening of Courts in January 2001:
It is worth remembering that for the law to continue to command the ongoing support of the citizens, there cannot be a chasm between the citizens' concept of justice and the Rule of Law. The law cannot be permitted to become complex to the point of becoming incomprehensible.
While the objectives of making criminal trials simpler is not confined to the final critical step of delivering a comprehensive and understandable summing up, it is upon that aspect that this paper will primarily focus.
In that context, there are two reasons for directing particular attention to the directions which Judges are required to deliver:
First, there is a considerable degree of concern, and frustration, expressed by trial judges in relation to the difficulty which they experience in summing up a case to a jury, by reason of the ever-increasing number and complexity of the directions, warnings and comments that are required, the existence of which multiply the potential for appellable error.
Secondly, there is concern that, no matter how well-crafted a summing up may be, there is still a risk that it will not be understood and correctly applied by the jury.
Neither problem is assisted by the length of trial, which has increased dramatically in recent years, a fact which has tended to lower the level of experience and capacity of juries, given the circumstance that the best-educated and the most busy members of the community are likely to obtain an exemption or excusal from being empanelled for these trials.
Such has been the concern in relation to these issues that the NSW Law Reform Commission has been given references, first, to review the existing laws and practice in relation to the composition of juries and, secondly, to review generally the delivery of jury directions. It will deliver its report to the Attorney General on the first of these references in the very near future, and it is currently undertaking research and consultation in relation to the second challenging reference. That research will include, subject to the approval of the Attorney General, a survey of jurors to be carried out with the assistance of the Bureau of Crime Statistics and Research. It will also include consultations with Judges and practitioners and input from experts in plain English.
Sufficient is apparent from the preliminary work to identify some of the problems that arise, and some potential areas for reform that will merit further consideration. These are mentioned in this paper.
It is of significance that, by reason of similar concerns which have been ventilated in England and Wales, the Lord Chief Justice has delegated a similar exercise to the President of the Queen's Bench Division and Lord Justice Hooper.
2. WHERE LIE THE PROBLEMS?
(a) Jury comprehension and application of instructions
There is now an abundance of research, particularly in the USA, but also in the UK, New Zealand and in this country, some of which was cited by Justice Kirby in Zoneff v The Queen, 1 which suggests that juries have problems in understanding and applying instructions. There are obvious limitations with these studies, since:
However, there is enough consistency in these studies, and perhaps more so in the universal experiences of judges who have seen the eyes of their juries glazing over as they try to explain some of the more difficult concepts such as self defence, impossible in the days of Viro v The Queen, 2 and only marginally less so after Zecevic v Director of Public Prosecutions (Victoria), 3 or, in New South Wales, following enactment of the Crimes Amendment (Self-defence) Act 2001 (NSW).
Perhaps the most interesting of these studies was that conducted in 1984 by Ivan Potas and Debra Rickwood for the Australian Institute of Criminology 4 which used mock jurors comprising school students with an average age of 18 years and an older group from evening college classes. A script was prepared of a summing up in a hypothetical case of murder and armed robbery, in which nine instructions on aspects of the law were given, including self defence, provocation, good character, common purpose, identification, alibi and collective verdict. These instructions were given to one group, along with the facts. There was a control group which received the facts, but not the instructions on the law.
The results of the study showed, not surprisingly, that some instructions were better understood than others, that understanding varied according to the complexity and effectiveness of the instructions, and that comprehension and application of the instructions were strongly connected. Surprisingly, however, the control group which did not receive the instructions scored as well on the questionnaire that was later administered as those who did receive the instructions. The authors have identified possible reasons for this unexpected result as:
It is a study which would justify further research, particularly in the light of the number and complexity of instructions which are currently given, and in the light of the changes in the law and practices since 1984. The need to re-explore the comprehension and application of instructions is critical, otherwise the presumption commonly accepted by appellate courts that juries will follow, and faithfully apply, directions may not rest upon terribly solid ground.
As the Victorian Law Reform Committee pointed out in its 1997 Report on Jury Service in Victoria, jury instructions are expected to satisfy two conflicting requirements: the need to state accurately the relevant law, and the need to state the law so that the jury understands it. It is in the reconciliation of these needs that the challenge exists.
(b) Model or pattern instructions
We live in an age of pattern or model directions developed through task forces in the USA, or bodies such as the Judicial Studies Board in England and Wales and the Judicial Commission in NSW, and, in some cases, given official approval by judicial councils or similar bodies.
While they can be exceedingly helpful, they can also be the occasion of problems if slavishly adopted in their full content, that is not tailored to fit the individual case.
Sometimes, it seems to me that they miss the essential purpose of a summing up, which is to crystallise for the jury the real issues and the respective cases of the Prosecution and Defence relative to those issues, and to give to the jury an outline or explanation of only so much of the law as it is necessary for them to know, in order to guide them to a decision. 5
In almost every instance, these model instructions are the work of lawyers and are directed at lawyers, with appellate courts in mind. Some, for example, the Longman warning and the Black direction 6 were effectively drafted by appellate courts; while on other occasions, they are the result of legislative direction with the obvious temptation to judges to recite the terms of the relevant provision rather than its effect - a practice that is not favoured. 7
Very often, they have been prepared without reference to, or independent assessment by, those who have a specialty in the field of plain English or in psychology or psycholinguistics and, as a result, they tend to be phrased in legalese, and to use terms that are rarely encountered in common speech. Where they have been tested, particularly by US studies, the risk of error is exposed. For example, the expression 'proximate cause' has commonly been understood as approximate or 'pretty close to the mark'.
Expressions such as 'inference', sometimes linked with expressions 'rational inference' or 'rational hypothesis consistent with innocence', are not expressions or concepts which are familiar to laymen, nor are expressions such as 'scrutinise' or 'demeanour'.
Leaving aside the use of uncommon words and concepts, such as the hypothetical 'ordinary person' test which juries are commonly expected to apply for example in relation to provocation, there is the use of complex sentence structures, with multiple subordinate clauses and often involving double negatives, that can only bedevil jurors in their attempts to understand the directions.
(c) Complexity and volume
The number and complexity of the warnings and comments that are now required, and the difficult exercise of judgment involved as to whether they are necessary in any given case, is probably best illustrated in the area of sexual assault, particularly where children are involved.
As was identified in R v BWT, 8 and as taken up in the 2006 Report of the NSW Criminal Justice Sexual Offences Task Force; 9 and in the Victorian Law Reform Commission's final report on sexual offences, 10 there arises, in these cases, a potential for the following directions.
(i) Longman Directions
A Longman Direction 11 states that, as the evidence of the complainant could not be adequately tested because of the passage of so many years between the offence and the complaint, it would be dangerous to convict (on the uncorroborated evidence of the complainant, or in suitable cases, even where there is corroboration), unless the jury are satisfied of its truth and accuracy, having scrutinised the evidence with great care, considered the circumstances relating to its evaluation, and paid heed to the warning.
Problems with this direction relate to:
Some of these difficulties were noted by Chief Justice Doyle in R v RWB. 12
(ii) Crofts Directions
A Crofts Direction 13 requires that any direction which is given, as is commonly required by statute, that the failure of a victim of a sexual assault to make a complaint, or a timely complaint, does not necessarily mean that the victim's allegations are false, because there may be good reasons why a victim may hesitate to complain, is then counterbalanced by a direction to the effect that the absence of a complaint, or a delay in a complaint, may be taken into account in evaluating the victim's credibility and reliability.
Problems with this direction relate to:
(iii) Murray Directions
A Murray Direction 15 is to the effect that, where there is only one witness asserting the commission of the crime, the evidence of that witness is to be scrutinised with great care before a conclusion is arrived at that a verdict of guilty should be brought in.
Problems with this direction relate to:
(iv) Other directions
There are several possible, and sometimes multiple directions which are not all to the same effect, in cases where there are separate acts charged in different counts in the indictment, and which are led in evidence, and/or where evidence is received of uncharged sexual assaults involving the same victim or several victims, the delivery of which may depend upon whether the evidence is received:
It may be noted that the High Court gave some consideration to the directions which can or should be given in relation to uncharged acts in Tully v The Queen although without any comprehensive determination of the several issues which arise. 21
Problems in this context relate to:
Quite apart from difficulties with individual directions, there is the tangible risk which is suggested by the high volume of appeals concerned with the lack of or inadequacy of these directions, that trial counsel are prepared to remain quiet at the trial in the confidence that any error will permit a successful appeal - a 'forensic culture' which was described as unfortunate in R v MM. 23
Recommendations have now been made in several States and some States, including in particular NSW, have passed legislation requiring modification of the directions, or even forbidding the use of some of them. This is not the occasion to embark upon any examination of the justification, or lack of justification, for the directions or for legislative action. The point which I wish to make is that they illustrate part of the problem, in so far as:
The problem, of course, does not begin and end with the directions in sexual assault cases. There are many other contexts where multiple and complex directions are required, which call upon a great deal of mental dexterity, for example, in areas of provocation, substantial impairment by abnormality of mind (diminished responsibility), self defence and the like, which require significant mental gymnastics as a result of the several elements involved.
No less challenging are the directions required for many offences arising under the Commonwealth Criminal Code, with its somewhat complex distinction between physical elements and mental elements, its classification of circumstances in which there is no criminal responsibility, and its sometimes cumbersome framing of offences, eg, in the area of terrorism.
Similarly, a good deal of care and comprehension is required on the part of juries when they come to consider circumstantial evidence, and the standard of proof required, depending upon whether the evidence qualifies as an 'intermediate fact' that has to be proven beyond reasonable doubt, or merely one fact in a mosaic of circumstances, the proof of which is not indispensable to guilt. 24
Moreover, as Justice Kirby pointed out in Zoneff, there is an inevitable difficulty for jurors in understanding and applying subtle distinctions between the use of evidence for one purpose and not another, and a risk that a warning not to use it for a particular purpose may be counterproductive in exciting the very reasoning which is forbidden, but which might otherwise not have occurred to them.
The problem with directions in jury trials is not new. Sixty years ago, Judge Learned Hand observed:
It is exceedingly doubtful whether a succession of abstract propositions of law, pronounced staccato, has any effect but to give [jurors] a dazed sense of being called upon to apply some esoteric mental processes beyond the scope of their daily experience. 25
To similar effect were the observations of the English Criminal Law Revision Committee's 1972 Report on Evidence:
The present law requires Judges to direct juries to achieve certain mental feats which some Judges think impossible for any lawyers to achieve, and it is no answer to criticisms of this kind to say, as is sometimes said, that that there is no difficulty in directing the jury in the way which Courts have said that they should be directed. There may be no difficulty in saying the rights words: the question is what the jury makes of them and nobody can be sure of that. 26
(d) The manner in which directions are given
Quite apart from the content of the directions, it seems to me that there are some other factors related to the way that judges sum up to juries which potentially reduce their value. They include:
3. WHERE LIE THE SOLUTIONS?
It seems to me that we could usefully debate a number of the matters outlined in the following paragraphs.
(a) Plain English instructions
As I have observed, the standard or pattern instructions have been developed by lawyers, and, although legally impeccable, they are not always user-friendly. It is significant that, in the United States, there has been a uniform movement towards rewriting the long-established pattern instructions in plain English, using linguists, psychologists and others with particular experience in communication alongside judges and lawyers. A recent and comprehensive review of the Criminal Jury instructions in California was carried out by a task force following the recommendations of the Blue Ribbon Committee established by the Judicial Commission of California. The recommendations were formally approved in August 2005.
A similar task has been carried out for the Ontario Superior Court of Justice by Justice Watt and a review committee, with the assistance of Professor Raymond, although it differed from the Californian exercise in that it involved the writing of fresh directions in legalese which were then converted into plain English.
Their purpose has been to use the language of the recipients of the message rather than that of the people delivering it. The use of plain English instructions has a particular importance in the current context where a significant number of jurors are from culturally and linguistically diverse backgrounds.
This experience, and similar efforts in other jurisdictions, have focussed on:
An issue of substance arises as to the extent to which revised directions using plain English should receive some form of official imprimatur or whether they should maintain their current status of being advisory or recommendatory.
An excellent example of the problem which is caused by the use of complex language which does not take into account plain English principles can be seen in the case of R v Jones.27In that case, the trial judge said, in the course of a written joint enterprise direction:
If you are satisfied that one or more of the accused killed [the victim] but you are not satisfied that the Crown has not proved beyond reasonable doubt that the accused did not act in self defence, [he] is not guilty of either murder or manslaughter.
It is questionable whether any juror would understand this direction, or understand that in fact it contained one negative too many (the existence of which was not in fact noticed at the trial, or on appeal).
(b) Encouraging trial judges to give full effect to the Cussen formula
This formula would have the law given to the jury with an explanation of how it is to be applied to the facts of the particular case, and that would limit it to so much as is needed to guide them to a decision on the real issue or issues.
At all costs, it seems to me, should judges be discouraged from embarking on mini-lectures on the law phrased in abstract and general terms which in truth are of no value to the jury and, if anything, are only likely to lead to confusion and a lack of focus on the specific questions which they are to decide. The fact that directions are not 'ritualistic formularies' but are instead intended to focus on the task of resolving the issues presented at trial was emphasised by Chief Justice Gleeson in Doggett. 28
In this respect, it may be that the appellate courts should be ready to intervene in cases where, although the instructions accurately reflect the law, they are assessed as unnecessarily complex and, as a result, insufficiently comprehensible for the average jury. In this regard, it is timely to recall that in R v Adomako Lord Mackay of Clashfern said that the supreme test to be satisfied for a summing up was that the directions be 'comprehensible to an ordinary member of the public who is called to sit on a jury and who has no particular prior acquaintance with the law'. 29
His Lordship added, in a passage that should be commended to all trial and appellate judges, that:
to make it obligatory on trial judges to give directions in law which are so elaborate that the ordinary member of the jury will have great difficulty in following them, and even greater difficulty in retaining them in his own memory for the purpose of application in the jury room, is no service to the cause of justice.
The risk is that, if the jury does not understand what clearly is intended to be an important part of the summing up, they will tend to disregard the whole, and instead rely on their own values, assumptions and experiences to reach a verdict.
(c) Directions on defences or alternatives not raised by trial counsel
A question arises as to whether it should continue to be regarded as either appropriate or necessary for judges, in an adversary system, to direct the jury on the possible availability of defences or verdicts for lesser offences, where they have not been raised by counsel.
While the authority for doing so continues to be Pemble v The Queen, 30 it seems that very often trial judges will be anxious to include such directions, for example, in relation to the various circumstances and partial defences that might give rise to a manslaughter verdict in the case of an accused charged with murder, on the most tenuous of bases, in order to appeal-proof the summing up. In some cases, these directions are given, and indeed the authorities suggest that they need to be given, even though the parties expressly object to that occurring. So it was that in R v Kanaan, 31 the NSW Court of Criminal Appeal stated the law, derived from these decisions, as follows:
(1) Manslaughter cannot be left for the determination of the jury as an alternative verdict in a murder trial unless there is evidence to support such a verdict (or unless the case on manslaughter is 'viable').
(2) However, if in a murder trial the jury nevertheless returns a verdict of manslaughter where there is no evidence to support it, the judge may request them to reconsider the matter, but, if they persist in that verdict, the judge must accept it.
(3) If there is evidence to support an alternative verdict of manslaughter, the judge must leave that issue to the jury - notwithstanding that it has not been raised by any party, and even if a party objects (or all parties object) to the issue being left to the jury.
(4) (a) If there is evidence to support an alternative verdict of manslaughter, and if the judge has not left that issue (for whatever reason), there has been an error of law.
(b) Subject to the provisions of the Criminal Appeal Rules, r 4 ... the appellant is entitled to a new trial unless the Crown establishes that no substantial miscarriage of justice has actually occurred.
(c) In determining whether there has been such a substantial miscarriage, it is not permissible to reason that the jury's verdict of guilty of murder at the first trial excludes any consideration of the alternative verdict of manslaughter at the new trial.
The question which arises is whether this should be maintained as a requirement of law, for example, in cases where the parties oppose the giving of directions that could lead to an alternative verdict, having regard to the complexity which this introduces, and to the absence of any assistance having been given to the jury on such matters by counsel in the closing addresses. Certainly, trial judges should be astute not to venture into this area where to do so is to put some unreal or fanciful possibility, or to raise a speculative hypothesis. 32 A question remains as to whether the Pemble principle should be confined to murder cases, a matter raised but not decided, in Kanaan; as does a question as to the jurisdiction for this requirement in an adversarial system of law which leaves it to the parties to determine the battlefield.
(d) Revisiting the directions in relation to the reasonable or ordinary person
In some areas, most noticeably defences, it is the reasonable or ordinary person through whose eyes the jury is required to assess the particular facts of the case. It is curious why, when the jury is expected to apply such a test, they are routinely instructed not to perceive themselves as such a person, but to assess the matter through someone else who they consider to have the qualities required. Quite how they select such a person and what attributes they are expected to assign to him or her remains unexplained, and very much a matter for conjecture.
Since they are selected as representatives of the community, what is wrong in accepting the response of the ordinary or reasonable person to be that which represents their collective reaction? In fact, do they, in reality, search for some hypothetical person who has some view or reaction that differs from theirs? If not, why should the law add this complexity and possibly confusing element to the mix?
(e) Re-examining the areas for judicial warnings or comment
Case law has established the need for judicial warnings or comment 33 in a number of areas, including:
The Evidence Act has similarly accepted that there are areas where evidence is to be regarded as potentially unreliable and such as to require a warning. 38
In some instances, these directions have become lengthy dissertations which border on giving judicial evidence, as far as they involve a reference to the experience of trial judges. Commonly, they are supplemented by an observation to the effect that they are routinely given in any case where such evidence is led, and that the jury should not take the direction as conveying any personal conclusion that the judge has reached in relation to the credibility of the relevant witness. Quite what the average juror makes of this observation when given a stern warning that is expected to carry the judge's imprimatur, is another matter.
The justification for warnings (in relation to matters of which it is assumed jurors are unaware) and for comments (in relation to matters which it is assumed they may have overlooked), depends on the assumption that trial judges, by their special experience in the criminal law, possess greater knowledge and comprehension, in relation to the inherent dangers associated with these forms of evidence.
Perhaps the time is ripe to reconsider whether that proposition is soundly based for all of these warnings or comments, and whether, in fact, jurors do lack the fairness, underlying knowledge and common sense which has underpinned their use.
Could it be better to:
Similar questions arise in relation to some of the other directions that regularly arise for consideration on appeal, for example, the vexed question of lies by an accused, which call for somewhat sophisticated distinctions to be drawn and respected between lies demonstrating an admission of guilt or a consciousness of guilt, and those going only to credibility. 39 The recently revised Victorian Bench Book direction on lies now runs to some 25 pages, which although legally accurate may be too elaborate for a jury to absorb. A real question arises as to whether, with legislative authority, they could be substantially shortened and reduced to a bare reminder to the jury to take into account, as they see fit, any evidence showing that the accused has lied, bearing in mind that there may be reasons other than an acceptance of guilt for having done so. Similar formulations are regarded as acceptable in other jurisdictions, for example, in California.
In summary, should there be a retreat from the extent to which judges intrude into the fact-finding function of juries, by way of comment or warnings concerning certain bodies of evidence, leaving it to their own common sense and experience? After all, it was by reason of their supposed qualities, as representatives of the community in these areas of reasoning, that the fact-finding process was assigned exclusively to juries.
At the least, would it be appropriate for judges to confine their warnings and comment to cases where there is a particular basis for concern as to the witness's credibility or reliability, beyond the mere fact that the evidence falls into one of the identified categories of evidence that can be unreliable?
This seems to be an area where jury research could usefully establish:
(f) Beyond reasonable doubt
The foundational requirement for proof 'beyond reasonable doubt', is one which few people apply in their ordinary lives, and which judges dread being asked to explain. 40 The often given explanation that a 'reasonable doubt'is 'one which the jury regards as reasonable'or that 'the words mean what they say', or that they are 'words in common use' does little to assist. The latter observation is perhaps questionable as it is doubtful whether lay citizens ever speak in terms of resolving a question beyond reasonable doubt.
Interestingly, the New Zealand Jury Project conducted for the NZ Law Commission suggests that, unaided by any greater explanation of the concept, jurors tend to reduce the test to one involving a percentage certainty of somewhere between 50% and 100%.
The way in which judges should sum up to juries on the concept of proof beyond reasonable doubt was recently considered by a Court of Appeal in New Zealand constituted by five justices. 41 After an extensive review of the provenance of the direction, of the current authority in NZ, of the approach taken in other jurisdictions, 42 and of several jury studies, Justices William Young, Chambers and Robertson, observed that they were inclined to the view that judges should explain the concept as follows:
The starting point is the presumption of innocence. You must treat the accused as innocent until the Crown has proved his or her guilt. The presumption of innocence means that the accused does not have to give or call any evidence and does not have to establish his or her innocence.
The Crown must prove that the accused is guilty beyond reasonable doubt. Proof beyond reasonable doubt is a very high standard of proof which the Crown will have met only if, at the end of the case, you are sure that the accused is guilty.
It is not enough for the Crown to persuade you that the accused is probably guilty or even that he of she is very likely guilty. On the other hand, it is virtually impossible to prove anything to an absolute certainty when dealing with the reconstruction of past events and the Crown does not have to do so.
What then is reasonable doubt? A reasonable doubt is an honest and reasonable uncertainty left in your mind about the guilt of the accused after you have given careful and impartial consideration to all of the evidence.
In summary, if, after careful and impartial consideration of the evidence, you are sure that the accused is guilty you must find him or her guilty. On the other hand, if you are not sure that the accused is guilty, you must find him or her not guilty. 43
They discouraged, as did Justices Glazebrook and Hammond, the use of the 'domestic analogy', which would have the jurors informed that they should be as sure about a conclusion of guilt 'as they would want to be about making an important decision in the context of their own personal lives', although an explanation along these lines is commonly given and accepted as appropriate in Scotland.
Justice Glazebrook did not consider that a case had been made out for a general change from the current jury direction, framed in terms of the jury being ' sure', or feeling ' sure', as to the guilt of the accused, either to provide more explanation of the requisite standard of proof, or to exclude some of the misconceptions identified by jury research. It was, however, accepted that, in individual cases, some expanded direction may be appropriate.
Justice Hammond was unable to detect any 'clear cut winner' in the debate between giving a fuller explanation of the concept, and maintaining the status quo, although he observed that any direction that is given should be prefaced by reference to the presumption of innocence and to the fact that the onus of proof rests upon the Crown, by an explanation that absolute certainty is not required, and by noting that the benchmark is higher than mere probability standards. It is understood that juries are now directed in New Zealand in conformity with the formula preferred by the majority in this case.
The current position, accordingly, is that in England and Wales, 44 Canada, 45 and New Zealand, the concept has been equated to one of the jury being or feeling 'sure' of the guilt of the accused. In each jurisdiction some further explanation has been regarded as acceptable, although the trend, particularly in England, is to avoid the use of the expression 'beyond reasonable doubt'in case that causes some confusion as to the meaning of the expression 'sure'. Anecdotally it has been reported that juries seem to have no problem with this formulation and rarely, if ever, seek any further explanation of it.
This formulation would, however, currently fall foul of the direction permitted in Australia, for example, by reason of the decisions in R v Reeves, 46 and Green v The Queen. 47
The question arises whether, having regard to the problems which jurors do appear to have with the succinct direction which is used in this country, and its inherent problems, as identified by the New Zealand Court of Appeal, there is now occasion, at appellate level, or through legislation, to revisit this fundamental requirement for proof of criminal guilt.
(g) Dangerous or unsafe to convict
Any formula that involves informing the jury that it would be 'dangerous or unsafe to convict', and its associated command to 'scrutinise the evidence with great care' would seem to be inherently confusing and difficult both in comprehension and in satisfactory explanation if questioned by a jury.
Perhaps there is a good argument for their quiet retirement?
(h) Regurgitation of the evidence
A real question arises as to whether the kind of lengthy summary of the evidence that commonly occurs achieves anything in circumstances where the jury have heard the evidence themselves, have received the benefit of addresses from counsel, and potentially have access to the transcript or sound or video recordings if they wish to check some aspect of it.
There is a risk that undue emphasis on this part of the trial will swamp the more helpful areas of guidance which could be contained in a short and well-focussed summing up, or alternatively will cause a bored and tired jury to switch off.
Certainly, the tedious and wholly unnecessary exercise sometimes encountered that involves a summary of the evidence of each witness in turn, without any attempt to marshal it in relation to the critical issues is to be avoided, and discouraged by appeal courts, at all costs.
In some jurisdictions in the United States, judges do not touch upon evidence, and in some States they are expressly forbidden from doing so, without any apparent detriment to the trial process. In Scotland where jury directions are quite brief, even in complex trials, very little reference is made to the evidence beyond that which is necessary to identify the issues and to lay the basis for an appropriate warning.
Greater encouragement to trial Judges to reduce this aspect of the summing up to the minimum that is necessary to focus the jury on issues, would be a helpful starting point in achieving the brevity, accuracy and comprehensibility that should be the objective of a summing up. Although perhaps not to the degree seen in the possibly apocryphal summing up said to have been delivered in the Old Bailey in the 19th Century:
Gentlemen of the Jury, the man stole the ducks. Consider your verdict. 48
A more contained approach in this respect would reduce the occasion for lengthy debate as to whether additional evidence should have been mentioned, which will sometimes require supplementary directions to be given, the effect of which may be to lead the jury to conclude that the matter readdressed has a significance that is not in fact warranted.
(i) Regurgitation of the addresses
Similar considerations apply to lengthy summaries of the addresses. What, it may be asked, is the reason for judges summarising the addresses of counsel which the jury have only recently heard? This carries the risk of diluting their effect or, worse, becoming an occasion for judges to venture into the arena and being tempted to respond to the arguments leading, on occasions, to applications for a discharge of the jury, on the basis that the case of one party has not been fairly left.
(j) Reduction in Judicial comment
While it is permissible for trial Judges to express an opinion on, or comment about, the facts, provided that it is made clear that the ultimate decision on the facts is for the jury, 49 a question remains as to whether this is a helpful practice today. Commonly where the trial Judge goes too far, or offers some comment or argument that was not identified by counsel, this will lead to an unnecessary appeal. 50
Has the time come when modern jurors can be trusted to deal with the evidence upon the basis of their own experience and common sense, and with the assistance of the arguments of counsel, without the need for any additional input from the Judge? If taken too far, or too obvious such comment may even be counter productive, as Sergeant Sullivan suggested, in the 1930s, when he said that foremen of juries at the Old Bailey should be asked whether 'they found for his Lordship or against him?
In Taleb v The Queen51the court suggested that the width of a trial judge's discretion to comment upon the evidence was narrower than had been permitted in the past, and that greater restraint was now to be expected.
(k) Jury aids
There is a case for greater assistance to be given to juries by way of a supplement to the oral summing up, in the form of:
It may be noted that Justice Bleby in R v Dunn53emphasised the essential oral nature of summing up and of the need for caution in relation to written directions. On the other hand several jury studies have indicated that juries see a real value in their use.
This has a particular significance in that the use of such material more closely approximates the way in which people absorb, retain and use information. Particularly is that so in the case of generation X jurors who as Justice Michael Kirby has pointed out 54 are unfamiliar with lengthy oral presentations, being more attuned to visual communication through the internet, and Power Point technology, and who are accustomed to playing an active part in acquiring information.
It is not to be overlooked that several studies (including those cited in Judge Madge's recent article 55 ) reveal the limited extent to which information given orally is retained in memory, and to the even more limited extent to which it is retained correctly.
In similar vein, there is commonly observed on appeal a somewhat unsatisfactory response by trial Judges to jury questions, which usually relate to the more complex or unfamiliar aspects of the summing up. The usual practice of repeating the original direction, although in a louder voice, does little to help. This is an area where the written instructions are likely to avoid the need for the question. Otherwise more helpful than repetition is the establishment of a dialogue with the jury to ascertain precisely where the problem lies and then to meet that difficulty.
(l) The timing of the Directions
If it does remain necessary to give detailed directions on the law, why should these not be given at the commencement of the trial, to ensure that the jury can understand the relevance of the evidence as it unfolds, and place it into context? At present there is a real risk, unless the jurors are particularly astute, of missing what is ultimately important, and of being deprived of a proper opportunity for assessing as the evidence unfolds, whether it supports the prosecution case or not.
This would require a degree of cooperation by counsel in making a proper disclosure of the issues at the commencement of the trial. Although some counsel maintain the right to hold back their defence, in the belief that there is merit in trial by ambush, other counsel seem to have no problem in giving a defence opening. Moreover there has been a movement, in recent times, towards greater defence disclosure, particularly in complex trials, which does not seem to have had any adverse effects.
The adoption of an extended opening of this kind, in addition to the preliminary observations which are conventionally given, had the support of Lord Justice Auld in the 2001 Review of the Criminal Courts of England and Wales, in the form of his suggested case and issues summary. It was also seen as helpful in the New Zealand jury Research Project.
(m) Special Verdicts
As a far more radical approach, would there be merit in abandoning the general verdict approach and replacing it by a system calling for special verdicts? Such an approach was raised for consideration by Professor Edward Griew in a 1989 lecture, 56 and was taken up by Lord Justice Auld in his Review.
As structured, this approach would protect the jury from the law and faithfully confine their task to that of fact finding, as their oath or affirmation requires, by requiring them to bring back special verdicts, in the form of answers to a series of specific questions framed in terms of the elements of the offence charged and of the ingredients of any relevant defences.
So framed, the answers would lead to a general verdict, in a way that could spare the jury from working their way through a task that currently expects them to understand, recall and apply the law, as explained to them, to the facts as they find them to be.
Not only would this provide a greater focus, but it could remove the risk of error, since the jury would have in front of them questions framed with an eye to the law, and to the issues in the case, but which call for essentially factual conclusions.
There might still be a need for some general explanation of the law, perhaps at the beginning of the trial, and, in some respects perhaps, an explanation of some of the terms used, as well as an identification of where the onus of proof lies, although that could be picked up in the framing of the questions.
Apart from focussing the jury, a process of this kind could also assist in sentencing, or for any appeal, for example where an alternative verdict of manslaughter was potentially available by more than one route.
Admittedly there would be some added complexity in those jurisdictions which permit majority verdicts, as well as a degree of intrusion into the sanctity of jury deliberations. The latter seems more theoretical than real, and the former should be capable of resolution without much difficulty, by advice to the jury, at the appropriate time (which currently differs between States) of their entitlement to answer the questions on which they have failed to achieve unanimity, by a majority verdict.
In addition it would have to be accepted that such a system could impinge on the notion of 'jury equity' which recognises the entitlement of juries to bring back a verdict of not guilty in the teeth of the evidence or of the judge's directions, as a safeguard against unfairly aggressive prosecutions. Whether that might be, or not be, a good outcome is open for debate, although it was condemned by Lord Justice Auld in his review, and in a recent article by J R Spencer QC. 57
(n) Does it matter if courts continue to sum up in accordance with current practices?
This is a question which can fairly be asked in New South Wales, and I expect elsewhere, since less than 1% of all criminal cases come to be decided by juries. Moreover, most jury studies tend to suggest that, irrespective of any misunderstanding as to the law that jurors may have, and irrespective of the quality of the summing up, the verdict which is returned is generally sensible, or at least understandable in the context of the individual case.
My answer would be that it does matter. Jury trial is the norm for more serious offences, and the accused on trial faces the possible risk of losing his or her liberty for a considerable period. Moreover, if there is a general perception that juries do not understand summings up, or that they find them irrelevant or unhelpful, then the standing of the criminal justice system is diminished.58
As Joseph Kimble once said:
Jury instructions directly impact peoples' lives and freedom. Jurors have a right to understand the law.
In my view, there is sufficient basis for concern from the findings of the jury studies, from the incidence of appeals concerned with jury directions, and from the complexity and number of those that are now required, to warrant a serious review of current practices. In this regard, jury studies of the kind being undertaken by the AIJA and by the NSW Law Reform Commission would be helpful in testing some of the propositions that underlie the current practices in summing up, and in learning more about the ways in which jurors respond to the directions given, or have difficulties with them.
An interesting recent study is in point. 59 It involved a series of mock jury deliberations that explored the ways in which the concepts of freedom of consent, capacity and reasonableness were interpreted by the jurors, when applying the tests set out in the Sexual Offences Act2003 (UK). That Act had been designed to provide a clearer structure for jury deliberations on sexual consent, and to hold defendants to a higher level of accountability in relation to their belief as to its existence.
As such the study provides an example of the way in which the regular reformulation of the law in this area of criminality, apparent in very many jurisdictions, can be tested for its impact, and seen either to be user friendly or not, when explained to jurors in a summing up.
The reality is that we still do not know enough about the needs of jurors, in relation to the summing up, or about what is required to make jury directions more understandable and relevant. This is the challenge which the NSW Law Reform Commission faces in responding to its current reference.
4. CASE MANAGEMENT
It should not be overlooked that there are opportunities earlier than the summing up to narrow or to crystallise the issues, thereby leading to a simplification of the trial. In brief summary, since this paper is concerned primarily with the summing up, they include
5. A WIDER ROLE FOR APPEAL COURTS?
A question arises whether Courts of Appeal should be more resistant to the efforts of trial counsel to trawl through summings up for possible technical deficiencies (the often criticised 'armchair approach') which, standing alone, might involve an error of law, but which in the overall context of the case, are likely to have had little significance for the verdict.
This might involve:
The High Court in Weiss left open the question whether some error other than the wrongful admission of evidence, such as a significant denial of procedural fairness, or a serious breach of the 'presuppositions of the trial', for example an irregularity going to the root of the proceedings, should exclude an application of the proviso. Its subsequent majority decision in Darkan v The Queen65would, however, suggest that a similar approach can be taken where there is a compelling evidentiary case, notwithstanding that there has been a misdirection of law, even one going to an element of the offence charged.
To what extent this will be capable of general application, or whether some additional qualifications are appropriate, will have to be worked out. There does seem to be some room for appellate Courts to be somewhat more robust in the application of the proviso than had seemed permissible in the past, although the trend of subsequent decisions applying the Weiss test, which is effectively the same as that used in determining whether a verdict is unreasonable or not supported by the evidence, has not suggested any great change in outcome. 66
As a final point, it may well be that the appellate courts could play a more active role in resolving some of the more lively issues that continue to bedevil aspects of the criminal law, rather than leaving their resolution to the legislature or even in settling appropriate directions in plain English. 67
Two recent instances where more comprehensive intervention by the Court could have reduced some critical outstanding issues can be mentioned. The first concerns the use of evidence of uncharged or multiple acts in sexual offence cases which was only partially addressed by the High Court in Tully, leaving much of the law in this context uncertain. The opportunity for the Court to revisit this contentious area may be taken up in SB v The Queen, and HML v The Queen as special leave to appeal in those cases was granted by the Court on 12 June 2007.
The second concerns the concept of criminal complicity where there is more than one offender, and where the prosecution may cast its case by reference to the principle concerning aiders and abettors, or by reference to joint criminal enterprise (purpose) or extending joint criminal enterprise (purpose), or most usually by reference to all three concepts. The potential complexity of the law in this context, particularly where there is a possibility of the jury bringing back a verdict for a lesser alternative offence was noted by the High Court in Clayton v The Queen, 68 yet it deferred the resolution of the problem to the legislature.
The position remains one where trial judges and jurors will have to grapple with the problems presented by the standard directions concerning aiders and abettors enunciated, for example, in R v Lowery and King (No 2)69 and by the standard directions applicable in cases of joint criminal enterprises discussed in McAuliffe v The Queen70and Gillard v The Queen, 71 even though they are difficult of comprehension and prone to error through omission of some critical element, as was the case in R v Taufahema.72
1. (2000) 200 CLR 234,  - .
2. (1978) 141 CLR 88.
3. (1987) 162 CLR 645.
4. I L Potas and D Rickwood, Do juries understand? (Australian Institute of Criminology, 1984).
5. See R v Chai (2002) 76 ALJR 628 and Alford v Magee (1952) 85 CLR 437, 466 where approval was given to the great guiding rule developed by Sir Leo Cussen in relation to the way that a judge should sum up to a jury (see also R v Meher  NSWCCA 355, where I made an attempt to review the relevant decisions concerning the content of a summing up, as well as the limitations to be respected).
6. Black v The Queen (1993) 179 CLR 44.
7. For example, R v Micalizzi  NSWCCA 406.
8. (2002) 54 NSWLR 241.
9. Attorney General's Department of NSW, Criminal Justice Sexual Offences Taskforce, Responding to sexual assault: the way forward (2006).
10. Victorian Law Reform Commission, Sexual offences: law and procedure, Report 5 (2004).
11. Longman v The Queen (1989) 168 CLR 79, as reinforced by Crampton v The Queen (2000) 206 CLR 161 and Doggett v The Queen (2001) 208 CLR 343.
12. (2003) 87 SASR 256. See also R v JJB  NSWCCA 126.
13. Crofts v The Queen (1996) 186 CLR 427.
14. (1998) 72 ALJR 769.
15. Murray v The Queen (1987) 11 NSWLR 12.
16. R v Gardiner (2006) 162 ACrimR 233.
17. Pfennig v The Queen (1995) 182 CLR 461 and Phillips v The Queen (2006) 80 ALJR 537.
18. KRM v The Queen (2001) 206 CLR 221.
19. R v Ball  AC 47 and R v Beserick (1993) 30 NSWLR 510.
20. BRS v The Queen (1997) 191 CLR 275.
21. Tully v The Queen (2006) 81 ALJR 391.
22. R v Markuleski (2001) 52 NSWLR 82.
23. (2004) 145 A Crim R 148.
24. Shepherd v The Queen (1990) 170 CLR 573.
25. United States v Cohen 145 F.2d 82, 93 (2nd circ 1944).
26. Criminal Law Revision Committee, Evidence (General) (Report 11, Cmnd 4991, 1972).
27. R v Jones (2006) 161 A Crim R 511.
28. Doggett v The Queen (2001) 208 CLR 343, 346.
29.  1 AC 171, 189.
30. (1971) 124 CLR 107 as considered more recently in Gillard v The Queen (2003) 219 CLR 1 and Gilbert v The Queen (2000) 201 CLR 414 and see also the recent decision of the House of Lords in R v Coutts (2006) 1 WLR 2154; but cf the approach taken in Scotland since R v Johnston (1998) SLT 788.
31. (2005) 64 NSWLR 527.
32. R v Brown (1987) 32 A Crim R 162, 175.
33. As to the distinction between judicial warnings and comments, see R v Stewart (2001) 52 NSWLR 301.
34. Domican v The Queen (1992) 173 CLR 555.
35. Longman v The Queen (1989) 168 CLR 79; Crampton v The Queen (2000) 206 CLR 161; and Doggett v The Queen (2001) 208 CLR 343.
36. Davies v Director of Public Prosecutions  AC 378 at 54, Jenkins v The Queen (2004) 79 ALJR 252, and R v Kanaan (2005) 64 NSWLR 527.
37. Pollitt v The Queen (1992) 174 CLR 558.
38. See Evidence Act 1995 (NSW) s 116 and s 165, and R v Clarke (1997) 97 A Crim R 414.
39. Edwards v The Queen (1993) 178 CLR 193, Zoneff v The Queen (2000) 200 CLR 234 and Dhanhoa v The Queen (2003) 217 CLR 1.
40. See the discussion in R v Chatzidimitriou (2000) 1 VR 493 and in Green v The Queen (1971) 126 CLR 28, concerning what may be said, and what assistance can be given to a jury in this respect.
41. R v Wanhalla (Court of Appeal of NZ, CA321/05, 24 August 2006).
42. England and Wales, Australia and Canada.
43. R v Wanhalla (Court of Appeal of NZ, CA321/05, 24 August 2006), .
44. R v Bentley  1 Cr App 307.
45. R v Lifchus  3 SCR 320.
46. (1992) 29 NSWLR 109.
47. (1971) 126 CLR 28; and see also Darkan v The Queen (2006) 80 ALJR 1250.
48. Cited in N Madge, 'Summing up – a Judge's perspective' Criminal Law Review 817, 823.
49. R v Zorad (1990) 19 NSWLR 91.
50. See B v R (1992) 175 CLR 599; R v Meher  NSWCCA 355; and R v Marr (1990) 90 CrApp 154.
51.  NSWCCA 119.
52. R v Petroff (1980) 2 A Crim R 101.
53. (2006) 94 SASR 177.
54. M Kirby, 'Speaking to the Modern Jury – new challenges for Judges and Advocates'(speech delivered at the World Wide Advocacy Conference, London, 2 July 1998). The point made has equal if not greater significance for generation Y jurors.
55. N Madge 'Summing up – a Judge's perspective' Criminal Law Review 817.
56. E Griew, 'Summing Up the Law' Criminal Law Review 768.
57. J R Spencer, 'Does Our Present Criminal Appeal System Make Sense?' Criminal Law Review 677.
58. Ahern v the Queen (1988) 165 CLR 87, 103.
59. E Finch and V E Munro, 'Breaking boundaries? Sexual consent in the jury room'(2006) 26(3) Legal Studies 303.
60. For an illuminating review of the extent to which the current system of jury trial may not be employing the most relevant and helpful methods of communication of the evidence to jurors, see J Horan, 'Communicating with jurors in the twenty-first century'(2007) 29 Australian Bar Review 75.
61. R v Sheen  NSWCCA 45.
62. Papakosmas v The Queen (1999) 196 CLR 297 and R v Ilioski  NSWCCA 164.
63. Crimes Act 1900 (NSW) s 568(1).
64. (2005)224 CLR 300.
65. (2006) 80 ALJR 1250.
66. See, eg Cornwell v The Queen (2006) 160 A Crim R 243; Taleb v The Queen  NSWCCA 119; R v QD  QCA 132 and R v Dunn (2006) 94 SASR 177.
67. In this respect see Justice Games, 'Tackling the complexity of criminal trial directions: what role for appellate courts'(paper delivered at the Supreme and Federal Court Judges Conference, Perth, WA, January 2007).
68. (2006) 81 ALJR 439.
69. R v Lowery and King (No 2) (1972) VR 560.
70. McAuliffe v The Queen (1995) 183 CLR 108.
71. Gillard v The Queen (2003) 219 CLR 1.
72. R v Taufahema  NSWCCA 33.
27 Sep 2023
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