1. Introduction

Updates and background for this project (Digest)

• This reference
• What are judicial instructions?
• Aims of judicial instructions
• Challenges
• Achieving reform

THIS REFERENCE

1.1 Juries play an important role in criminal justice as fact-finders in trials of serious offenders. The trial judge, whose role in a criminal trial is to determine questions of law, must, where necessary, provide instruction to the members of the jury on how they should or should not approach their fact-finding task, and on how they should apply the law to the facts as they have found them, for the purpose of determining whether the accused is guilty or not guilty.

1.2 This reference is about the instructions that a judge gives to a jury in a criminal trial. It arises in the context of a growing concern in Australia and overseas about the problems associated with jury directions.¹ The Victorian and Queensland Law Reform Commissions are undertaking similar projects.² These Australian law reform inquiries have been prompted, in part, by the Standing Committee of Attorneys General’s recent consideration of “the feasibility of a review of jury directions and warnings, including areas for improved consistency, by reference to one or several law reform commissions”.³

1.3 In England and Wales, in late 2007, the Lord Chief Justice, Lord Phillips, established a working party under Sir David Latham, a Court of Appeal judge, to consider the simplification of the legal directions judges give to juries.⁴

WHAT ARE JUDICIAL INSTRUCTIONS?

1.4 Judges give instructions to juries throughout criminal trials. These start at the commencement of the trial with the opening remarks to the jury.⁵ During the course of the trial, the judge may give instructions in response to the introduction of certain types of evidence. After all the evidence has been presented and before the jury retires to consider its verdict, the judge gives a summing-up of the case (sometimes also called a “charge”).⁶ The summing-up contains all the instructions that the jury needs to decide the case, including those that the judge may already have given earlier in the trial. Finally, the judge may give instructions during the jury deliberations if the jurors submit questions to clarify some matter,⁷ or are having difficulty reaching agreement.⁸

1.5 Many terms are employed to describe the various types of instruction that the judge gives to the jury, including “directions”, “warnings”, and “comments”.

1.6 “Jury directions” refer to the instructions the trial judge gives during the trial that the jury must follow in deciding the issues of fact in the case.⁹ The term “jury directions” includes “warnings”. Warnings alert jurors to dangers inherent in certain types of evidence that may not be obvious to them, but which would be obvious to trial judges who are taken to have more experience in such matters and to be more alert to the dangers posed.¹⁰ Warnings are considered to be mandatory, that is, they are something which the law requires the trial judge to give to the jury under certain circumstances, and which the jury must follow.

1.7 In addition to directions, a trial judge may also make comments. The general objective of a judicial comment is to remind the members of the jury about a matter arising in evidence when they will usually have sufficient knowledge and understanding to appreciate its significance, but which they might forget or overlook without a reminder from the judge.¹¹

1.8 The High Court, in a case that considered a legislative provision allowing the judge to comment on the failure of the defendant to give evidence,¹² has highlighted the distinction between directions and comments:

It is ... not the province of the judge to direct the jury about how they may (as opposed to may not) reason towards a conclusion of guilt. That is the province of the jury. The judge’s task in relation to the facts ends at identifying the issues for the jury and giving whatever warnings may be appropriate about impermissible or dangerous paths of reasoning. That is not to say that the judge may not comment on the evidence that has been given and comment about the facts that the jury might find to be established. But the distinction between comment and direction is important. Telling a jury that they may attach particular significance to the fact that the accused did not give evidence is a comment by the judge. Because it is a comment, the jury may ignore it and they should be told they may ignore it. By contrast, warning a jury against drawing impermissible conclusions from that fact is a direction by the judge which the jury is required to follow.¹³

1.10 The justification for warnings and, to a lesser extent, for comments 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 or particular problems associated with these forms of evidence.¹⁵ Whether that assumption is well-grounded is, at least in some respects, questionable. It is also questionable whether jurors are adequately instructed on the distinction between warnings and comments, and how they should approach each. Much of the necessary information appears to be conveyed indirectly by means of tense and the use of key phrases.

AIMS OF JUDICIAL INSTRUCTIONS

1.11 Judicial instructions should achieve a number of outcomes. First, they should ensure (or at least not detract from¹⁶ ) a fair trial for the accused.¹⁷ Secondly, they should be accurate and adequate with regards to the law, the alleged facts and the arguments of counsel.¹⁸ Thirdly, they should be understandable to the jurors and assist them in coming to a verdict.¹⁹

1.12 The High Court has explained the fair trial considerations behind the giving of judicial instructions:

The fundamental task of a trial judge is, of course, to ensure a fair trial of the accused. That will require the judge to instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case. No doubt that will require instructions about the elements of the offence, the burden and standard of proof and the respective functions of judge and jury. Subject to any applicable statutory provisions it will require the judge to identify the issues in the case and to relate the law to those issues. It will require the judge to put fairly before the jury the case which the accused makes. In some cases it will require the judge to warn the jury about how they should not reason or about particular care that must be shown before accepting certain kinds of evidence. ²⁰

A summing-up to a jury is an exercise in communication between judge and jury ... It is, as has frequently been emphasised, desirable that a judge employs easily understood, unambiguous and non-technical language.²¹

1.15 The importance of these aims is underlined by the fact that the jury does not give reasons and its decisions are not generally open to scrutiny. Judicial directions, therefore, have the broad purpose of helping the jury reach the best decision. However, the measures of the jury’s performance in reaching the best decision possible are open to debate. Some of these measures could include:²⁵

• whether the jury has drawn rational inferences from the evidence before it;
• whether the jurors have adhered to the law, that is, not contrary to any warnings or taking into account any inadmissible material;
• whether it has reached the decision the judge would have reached;
• whether it has accurately convicted an actually guilty accused or acquitted an actually innocent one;²⁶ and
• whether it has achieved “fairness” according to community standards.

CHALLENGES

1.16 There are two main challenges in achieving the aims of judicial instructions. The first is to help jurors comprehend their task. This involves overcoming the risk that, no matter how well-crafted a judge’s instructions may be, the language, length and complexity will be such that a jury will not understand or correctly apply it. The second challenge is to avoid unnecessary appeals. This relates to the difficulties trial judges experience in summing up a criminal case to a jury. These difficulties are attributable to the numerous and complex directions of law that judges must give concerning the elements of the offence or offences charged, and of any available defences; and also to the several warnings or comments which judges must make in relation to aspects of the evidence presented in the trial.

Achieving juror comprehension

1.17 A number of factors connected with judicial instructions may impede jurors’ comprehension of their task, including long and complex sets of instructions, particularly in the context of the summing-up; and the failure to use English that lay people can understand easily.

Long/complex summings-up

1.18 While it is not easy to obtain relevant information in relation to trials conducted in earlier years, it appears to be the universal experience of judges and counsel that summings-up in those times were very much shorter and less complex. Justice Michael Kirby, for example, recounted that when he commenced practice in 1962, “experienced New South Wales judges, such as Clancy J, McClemens J or Brereton J would sum up in a murder case in little more than an hour or so and do it from their head”.²⁷

1.19 These days, the summing-up takes much longer. Judges in NSW reported in a recent survey that, in trials lasting 20 days, a summing-up takes more than six hours, which is equivalent to at least one trial day.²⁸ This is substantially longer than that in New Zealand (a jurisdiction with comparable criminal law and procedure) where the summing-up in 20-day trials lasts about one hour and a half.²⁹

1.20 The increasing length of the summing-up, and the difficulties experienced by trial judges in formulating them, are substantially attributable to the numerous and complex directions of law that appeal courts and statute law require concerning the elements of the offence or offences charged, of any available defences, and also to the abundant judicial warnings and comments which need to be made in relation to aspects of the evidence presented in the trial.

1.21 It has been observed, for example, that in sexual assault trials, the judge needs to consider at least eight categories of directions, warnings and comments for inclusion in the summing-up in addition to the standard directions given in criminal trials, and any further unreliable evidence warnings which may be required under s 165 of the Evidence Act.³⁰

1.22 One consequence of instructions that are too many and too complex is that jurors may have trouble comprehending them. The impact of the increasing number and complexity of directions on jurors’ comprehension has been raised on many occasions.³¹ For example, in 1999, Justice Hayne observed:

The task of directing a jury in a criminal case is never easy. It would be made no easier (and would serve no purpose) if trial judges were bound to give more, and more complicated, directions than the particular case requires.³²

The more directions and warning juries are given the more likely it is that they will forget or misinterpret some directions or warnings.³³

1.24 Doubts have been frequently expressed about juries’ ability to understand and apply the instructions that judges currently provide.³⁵ For example, in 1972, the English Criminal Law Revision Committee observed:

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 there is no difficulty in directing the jury in the way in which the courts have said they should be directed. There may be no difficulty in saying the right words; the question is what the jury make of them, and nobody can be sure of that.³⁶

1.25 On the other hand, there is some survey evidence that jurors do find judicial instructions helpful in coming to an understanding of the case and their task in relation to it.³⁷ However, the studies that show this generally do not qualify or quantify the extent of the usefulness of the instructions. For example, it would only take one aspect of the instructions to be helpful, such as the elements of the offence charged, for the instructions to be described as of assistance. A recent Bureau of Crime Statistics and Research survey showed that 67.2% of the jurors surveyed found the judge’s summing-up helped them “quite a bit” or “a lot” in reaching their verdict.³⁸ A study conducted for the NSWLRC in 1986 revealed that 95% of jurors surveyed considered the judge’s summing-up helped them to understand the case.³⁹ In New Zealand, a survey showed that over 85% of the jurors surveyed found the judge’s summing-up “clear” and over 80% said it was “helpful”. However, the same study also indicated that the jurors had “widespread misunderstanding about aspects of the law which persisted through to, and significantly influenced, jury deliberations”.⁴⁰ The result was that, although they prolonged the deliberation process, they were, for the most part, “addressed by the collective deliberations of the jury”.⁴¹ There is also a question as to whether the summings-up assisted jurors in coming to an objective view of the case.⁴²

1.26 Studies that indicate that jurors think they had no trouble understanding a judge’s instructions cannot show whether jurors in fact understood what the judge said.⁴³ One judicial commentator has suggested that:

The real test of comprehension would be to quiz jurors as to the content of the directions, shortly after they were given. I fear that any such exercise might disclose a profound gulf between the protestations of comprehension and the reality.⁴⁴

There is a natural tendency to disregard what is said about things which the jury cannot understand: nice distinctions over the precise meaning of a rule of law, and the judge’s assessment of expert evidence may thus pass into oblivion.⁴⁵

1.28 A question, therefore, arises whether it may be better, at the least, to reduce the content and breadth of some of the instructions that have become the norm to more general and briefer observations. At the least, would it be appropriate for judges to confine their instructions to cases where there is a particular basis for concern as to the witness’s credibility or reliability.

1.29 For example, it can be argued that warnings and comments may not be necessary in cases where they merely instruct the jury on matters that they already know, either because of the general experience it is assumed that all jurors possess, or because counsel have alerted them to the issues during the course of the trial. In some instances, such communications have become lengthy dissertations which border on giving judicial evidence, as far as they involve a reference to the experience of trial judges or of courts more generally. Commonly, such directions 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.⁴⁸ The issue is highlighted when considering the question of judges expressing an opinion on the merits of the case.⁴⁹

1.30 Other directions and comments might be abolished or simplified on the basis that reliance could be had on the jurors’ sense of fairness, experience of life and common sense. Courts often ackowledge that the jury embodies the common experience of men and women of the community, with all the variety of backgrounds, ages and experience of life that such a community possesses, and that their collective knowledge and common sense should not be underestimated.⁵⁰ However, there is a view that some of the jury directions and comments formulated by courts, statutes and bench books do in fact underestimate or contradict the common sense of jurors.⁵¹

1.31 Such an approach would not necessarily extend to all warnings. For example, it could be argued that the average juror could not possibly be aware of the problems of accepting the evidence of prison informers.⁵²

Plain English

1.32 The widespread tendency of trial judges to use the highly-technical language of appellate court judgments in framing instructions is the result not only of their desire to avoid appealable errors but also the result of the pressures of litigation. Many judges simply do not have time to turn their minds to whether jurors will understand the language they use.

1.33 A good example of this tendency is the continuing use of a direction that the prosecution must “exclude any reasonable hypothesis consistent with innocence”. It is certainly a “hallowed phrase”, in that it was used as long ago as 1842, in the 3rd Edition of Starkie on Evidence, and adopted by the High Court in 1911.⁵³ The High Court quoted a version of it without criticism in 1952,⁵⁴ but its use as a direction to the jury is inappropriate. The word “hypothesis” has been described as “hardly within the understanding of the average juror”,⁵⁵ but judges continue to use it, as illustrated by the Court of Criminal Appeal’s recent criticism of it as “decidedly non-jury friendly language”.⁵⁶

1.34 The use of plain English expression is discussed further in relation to model directions.⁵⁷

Avoiding unnecessary appeals

1.35 A further result of the increasing number and complexity of judicial directions and comments is the multiplication in the opportunity for appealable error. Often, a trial judge must give careful consideration to whether some matter that might affect the reliability of a particular piece of evidence is such as to require a warning, or whether it can be left to a comment, or left simply as a matter for the jurors to weigh using their own judgment.⁵⁸ The decision which the trial judge makes at this point in the context of the trial can be critical since, if it is found to be an erroneous one, it is likely to lead to a successful appeal.⁵⁹

1.36 A substantial number of successful appeals based on misdirections ultimately result in re-trials.⁶⁰ The waste of resources – including the costs to the criminal justice budget, the legal costs incurred by both the prosecution and the defence – and the personal strain occasioned to victims, witnesses and persons accused of criminality and their families, resulting from such re-trials, are obvious.

1.37 The increasing incidence of appeals relating to judicial instructions must be viewed in the more general context of increasing resort to appellate courts in criminal matters.

1.38 There has been a significant increase in the involvement of intermediate appellate courts, and of the High Court, in criminal matters in recent decades. This has served to increase the complexity of trials, particularly in relation to the requirements which a judge must satisfy when instructing the jury.

1.39 An analysis of the statistics kept in Victoria and in NSW shows that there has been an increase in conviction appeals, and in the proportion of such appeals that have resulted in appellate intervention.

1.40 Justice Michael Kirby has examined the High Court’s increased involvement in criminal appeals, and offered several reasons for the fundamental shift in its attitude to such appeals since the time of its creation at the turn of the 20th century. For the first three-quarters of that century, the Court was generally not inclined to receive conviction or sentencing appeals.⁶¹

1.41 Justice Kirby has suggested several reasons for this trend, including:

• the fact that, until 1984, the High Court was obliged to hear and determine a large number of civil appeals that could be brought as of right, limiting its capacity to entertain criminal appeals;
• the enactment of criteria providing greater content to the concept of special leave;⁶²
• the establishment of intermediate appellate courts whose decisions presented issues of obvious importance for legal doctrine, and hence review by the High Court;
• the changing personnel and judicial attitudes to the criminal law that marked a significant departure from the disinclination of earlier members of the Court to involve themselves in the administration of justice;⁶³
• the provision of legal aid for criminal trials and appeals that has led to counsel exploring every possible avenue of defence, becoming more imaginative, raising points previously unthought of, and testing decisions formerly regarded as establishing the law;
• the emergence of a bar specialising in criminal trials and appeals, encouraged also by the flow of legal aid funds; and
• the stringent interpretation given to the proviso included in most criminal appeal statutes following the decision in Mraz v The Queen.⁶⁴

1.42 In this context, there is a tendency for trial judges to seek certainty through clear-cut rules handed down by appellate courts. Justice Kirby, in discussing the need for a direction on the use of evidence of good character, observed:

Although there are disadvantages and risks in establishing a “clear-cut rule”, for the avoidance of accidental injustice, unnecessary appeals, costly retrials and uncertainty, the recognition of a general rule represents the best and clearest policy. It avoids any suggestion that the availability of the direction depends on a judicial “lottery”. It leaves the trial judge in no doubt as to his or her duty... Too much rigidity in judicial obligation in criminal and other jury trials is a burden, it is true. But the other side of the coin is judicial idiosyncrasy, variance and individual inclination. Too much of the latter will diminish the reality of the rule of law and substitute judicial rule and sometimes judicial whim or prejudice. These dangers can be avoided ... by the adoption of a simple and obligatory judicial requirement which, once observed, banishes the leeway for complaint.⁶⁵

1.43 Quite apart from difficulties with individual directions, there is the tangible risk that trial counsel are prepared to remain silent at the trial concerning the lack of or inadequacy of these directions in the confidence that any error will permit a successful appeal – a “forensic culture” which has been described as regrettable.⁶⁶

Current appeal procedures

1.44 Intermediate appellate courts do have some power to minimise appeals based on misdirections or failure to give directions. Rule 4 of the Criminal Appeal Rules (NSW) provides:

No direction, omission to direct, or decision as to the admission or rejection of evidence, given by the Judge presiding at the trial, shall, without the leave of the Court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal.

1.46 The burden is on the appellant to satisfy the court that leave should be granted to argue the point on appeal. The usual test for whether leave should be granted is whether there is an arguable case of error and, if so, whether the error could lead to a miscarriage of justice.⁶⁸

1.47 Even if leave is granted, the NSW Court of Criminal Appeal’s power to allow an appeal against conviction is subject to the proviso that the Court:

may notwithstanding that it is of the opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.⁶⁹

1.49 The proviso has been applied in cases where the trial judge misdirected the jury in relation to the elements of the offence charged.⁷³ For example, in R v Gulliford,⁷⁴ despite its finding that the trial judge’s directions as to the element of knowledge of the complainant’s lack of consent to sexual intercourse contained several errors and was confusing and incomplete, the NSW Court of Criminal Appeal, by majority, dismissed the appeal on the basis that no substantial miscarriage of justice had actually occurred. The proviso has also been applied where the trial judge’s directions regarding identification evidence were found to be inadequate.⁷⁵

1.50 Notwithstanding rule 4 and the proviso, and the stress repeatedly placed by appeal courts on the importance of trial counsel taking objections or seeking redirections in relation to the summing-up,⁷⁶ the practice continues unabated of appellate counsel subjecting judicial instructions to a minute syntactical analysis in the hope of finding error.⁷⁷ Questions arise as to whether appellate courts should take a different approach in the way in which they deal with these appeals.

1.51 More fundamentally, the question also arises as to whether the formulation of simpler and clearer instructions or the abolition of some instructions will lead to a reduction in the level of appeals dealing with aspects of judicial instructions.

ISSUE 1.1

What problems do the use of judicial instructions present in criminal trials?

1.52 To address the problems associated with judicial instructions, a broad range of reform measures needs to be examined.

1.53 If limits are to be imposed upon any aspect of a trial judge’s instructions or if different approaches are to be adopted which are presently forbidden, the question then arises as to how such changes can be achieved.

1.54 Other methods of influencing judicial practice in this area would include providing more appropriate directions in the bench book and educating judges more generally in communicating with juries.

Abolition of some instructions

1.55 One option is to eliminate those directions, by statute, where they are shown to be unnecessary, unhelpful or counterproductive.

1.56 There are a number of examples of legislation making changes to the warnings that a judge may deliver. Some warnings have been abolished because they were based on assumptions that are no longer considered valid in contemporary times. For example, in 1981, legislation abolished the warning that it was unsafe to convict a person on the uncorroborated evidence of the complainant in trials for sexual offences⁷⁸ because:

women are no longer, in the eyes of the law, to be put before juries as persons whose evidence requires corroboration before it is safe to act upon it. That concept which has been in the law for a long time has now gone.⁷⁹

Clarifying and simplifying some instructions

1.57 There are some directions and comments that could benefit from legislative clarification, which may be required in view of problems jurors appear to have in understanding and applying or complying with them. These include the direction on “proof beyond reasonable doubt”, on which jurors regularly seek clarification,⁸² and other directions relating to notoriously complex areas of the criminal law.⁸³

1.58 There is also a case for reviewing some of the traditional components of the summing-up, in particular, the summary of the evidence, and summary of the prosecution and defence cases.⁸⁴

1.59 One approach would be to impose limits by legislation, as has already been attempted with regards to summaries of the evidence in NSW.⁸⁵ It is generally accepted that such an approach would need to leave a discretion in the judge to ensure a fair trial.⁸⁶

Other approaches

1.60 In considering the necessity for change to the current practice of giving judicial instructions, attention should be given to whether other approaches could be adopted or relied upon to help achieve the same aims. It can be argued that the need for judicial instructions may be reduced by reliance on other components of a criminal trial. For example, judicial warnings may not be so necessary with respect to the evidence that has been admitted if the application of the rules of evidence filters out evidence of dubious value or prejudicial effect:

Viewed against the background of the entire trial process, the perceived dangers which underlie judicial warnings have already been adequately allayed by the rules pertaining to the admissibility of evidence. ... In light of this, it could meaningfully be queried whether it is then excessive to further charge the jury regarding the dangers inherent in certain types of evidence.⁸⁷

Where identification evidence is admitted it is open for the accused during cross examination to suggest that the identification was unreliable due to such factors as poor memory, fading light and so on.⁹⁰

Providing ways of attaining better juror comprehension

1.62 Quite apart from improving the content of the directions and comments, and simplifying the structure of the summing-up, there may be practical ways of assisting jurors to understand judicial instructions better.

1.63 Other options might be to eliminate or modify existing instructions by means of judicial education and/or reform of the NSW Bench Book. There is a need to revise model directions for the purpose of ensuring that they are both legally accurate and in language that jurors can readily understand.⁹²

1.64 In recognition that not all people absorb oral material well, consideration should be given to greater provision of written directions to jurors than is currently the practice, the option of using audio-visual aids in the presentation of the summing-up, and allowing jurors to take notes during the trial.

1.65 It may also be worth considering giving greater assistance to the jury during its deliberations through written statements of the issues of the case (which may be given in the form of step directions, issues tables and decision trees), and allowing jurors to ask the judge questions about the directions just before and during deliberations.

ISSUE 1.2

(1) What approaches are available to deal with the problems associated with judicial instructions?

(2) How should any changes to the framing of judicial instructions or the procedures surrounding them be achieved?

1. See, for example, A M Gleeson, “The State of Judicature” (Speech delivered at the 35th Australian Legal Convention, Sydney, 25 March 2007); N A Phillips, “Constitutional Reform: One Year On” (The Judicial Studies Board Annual Lecture, London, 22 March 2007); N A Phillips, “Trusting the Jury”, (The Criminal Bar Association Kalisher Lecture, London, 23 October 2007); New Zealand Law Commission, Juries in Criminal Trials, Report 69 (2001); R Auld, Review of the Criminal Courts in England and Wales (2001).

2. Victorian Law Reform Commission, Jury Directions, Consultation Paper 6 (2008); Queensland Law Reform Commission, “Jury Directions Review” (terms of reference issued 7 April 2008): «http://www.qlrc.qld.gov.au/publications/Terms_of_reference_Jury_Directions__PDF_version.PDF».

3. Standing Committee of Attorneys General, Annual Report 2006-2007.

4. N A Phillips, “Trusting the Jury”, (The Criminal Bar Association Kalisher Lecture, London, 23 October 2007) 6-7.

5. See generally ch 4 and ch 5.

6. See ch 6.

7. See para 10.44-10.51.

8. See para 4.72-4.80.

9. See, for example, RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3, [41] (Gaudron ACJ, Gummow, Kirby and Hayne JJ).

10. R v Stewart (2001) 52 NSWLR 301; [2001] NSWCCA 260, [83] (Howie J).

11. Crampton v The Queen (2000) 206 CLR 161; [2000] HCA 60, [126] (Kirby J); R v Stewart (2001) 52 NSWLR 301, [82]-[83] (Howie J).

12. Evidence Act 1995 (NSW) s 20(2).

13. Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25, [50] (Gaudron, Gummow, Kirby and Hayne JJ). See also Mahmood v Western Australia (2008) 82 ALJR 372; [2008] HCA 1, [16] (Gleeson CJ, Gummow, Kirby and Kiefel JJ).

14. Mahmood v Western Australia (2008) 82 ALJR 372; [2008] HCA 1, [18] (Gleeson CJ, Gummow, Kirby and Kiefel JJ).

15. Bromley v The Queen (1986) 161 CLR 315; and R v Stewart (2001) 52 NSWLR 301, [72]-[83] and [92]-[98] (Howie J).

16. Dietrich v The Queen (1992) 177 CLR 292, 299 states that the accused has the right not to be tried unfairly.

17. RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3, [41] (Gaudron ACJ, Gummow, Kirby and Hayne JJ).

18. See para 6.9-6.11 and para 6.31-6.37.

19. Jenkins v The Queen (2004) 79 ALJR 252; [2004] HCA 27, 257 (Gleeson CJ, Hayne, Callinan and Heydon JJ), citing Alford v Magee (1952) 85 CLR 437, 466. See also A M Gleeson, “The State of the Judicature” (35th Australian Legal Convention, Sydney, 25 March 2007), 10; Parliament of Victoria, Law Reform Committee, Jury Service in Victoria, Final Report (1997) Vol 3, [2.200]; Law Reform Commission of Canada, The Jury, Report 16 (1982), 84; R v Adomako [1995] 1 AC 171, 189 (Lord Mackay); R v Landy (1981) 72 Cr App R 237; R v McGreevy (1973) 57 Cr App R 424, 430, quoting Lord Lowry of NI; “Principles of Summing-up” (1999) 63 Journal of Criminal Law 422, 424; Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28, [55], [65] (Kirby J).

20. RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3, [41] (Gaudron ACJ, Gummow, Kirby and Hayne JJ). The High Court has also held that judicial warnings are necessary to uphold the requirement of a fair trial: Crampton v The Queen (2000) 206 CLR 161; [2000] HCA 60, [126]-[127] (Kirby J); Longman v The Queen (1989) 168 CLR 79, 108 (McHugh J).

21. R v Forbes (2005) 160 A Crim R 1; [2005] NSWCCA 377, [79] (Spigelman CJ). See also Re Attorney-General’s Reference (No 3 of 1994) [1998] AC 245, 272F-G; R v Adomako [1995] 1 AC 171, 189 (Lord Mackay).

22. G Eames, “Towards a Better Direction – Better Communication with Jurors” (2003) 24 Australian Bar Review 35, 45.

23. Zoneff v The Queen (2000) 200 CLR 234, [55] (Gleeson CJ, Gaudron, Gummow and Callinan JJ); Darkan v The Queen (2006) 227 CLR 373; [2006] HCA 34, [67]. See also I Potas, “Instructing the Jury” in D Challinger (ed), The Jury: Proceedings of Seminar on the Jury, AIC Seminar, Proceedings No 11 (1986) 173.

24. For example, “intent” and “doubt” and “concern”.

25. See, eg, G Mitchell, “Asking the Right Questions about Judge and Jury Competence” (2005) 32 Florida State University Law Review 519, 523-525.

26. See, eg, P McClellan, “The Australian Justice System in 2020” (National Judicial College of Australia, 25 October 2008) 3-10.

27. M Kirby, “Why Has the High Court Become More Involved in Criminal Appeals?” (2002) 23 Australian Bar Review 4, 16.

28. J Ogloff, J Clough, J Goodman-Delahunty and W Young, The Jury Project: Stage 1 – A Survey of Australian and New Zealand Judges (Australian Institute of Judicial Administration, 2006) 26-27. The summing-up for less complex cases is shorter - more than two hours for five-day trials and three and a half hours for 10-day trials.

29. J Ogloff, J Clough, J Goodman-Delahunty and W Young, The Jury Project: Stage 1 – A Survey of Australian and New Zealand Judges (Australian Institute of Judicial Administration, 2006) 26-27.

30. See R v BWT (2002) 54 NSWLR 241; [2002] NSWCCA 60, [32] (Wood CJ at CL).

31. A M Gleeson, “The State of the Judicature” (35th Australian Legal Convention, Sydney, 25 March 2007) 9; F H Vincent, “The High Court v the Trial Judge” in 28th Australian Legal Convention (1993) vol 2, 265.

32. Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32, [142].

33. KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11, [37].

34. See J Wood, “Jury Directions” (2007) 16 Journal of Judicial Administration 151; G Eames, “Towards a Better Direction – Better Communication with Jurors” (2003) 24 Australian Bar Review 35, 39; N A Phillips, “Trusting the Jury” (The Criminal Bar Association Kalisher Lecture, London, 23 October 2007) 15.

35. Parliament of Victoria, Law Reform Committee, Jury Service in Victoria, Final Report (1997) vol 3, [2.202]-[2.205].

36. England and Wales, Criminal Law Revision Committee, Evidence (General), Report 11 (Cmnd 4991,1972) [25].

37. See NSWLRC, Criminal Procedure: The Jury in a Criminal Trial: Empirical Studies, Research Report 1 (1986) [6.49], [6.50].

38. L Trimboli, Juror Understanding of Judicial Instructions in Criminal Trials, Crime and Justice Bulletin No 119 (NSW Bureau of Crime Statistics and Research, 2008) 7.

39. NSWLRC, Criminal Procedure: The Jury in a Criminal Trial: Empirical Studies, Research Report 1 (1986) [6.49].

40. W Young, N Cameron, Y Tinsley, Juries in Criminal Trials Part 2: A Summary of the Research Findings, New Zealand Law Commission, Preliminary Paper 37 (1999) vol 2, [7.3].

41. W Young, N Cameron, Y Tinsley, Juries in Criminal Trials Part 2: A Summary of the Research Findings, New Zealand Law Commission, Preliminary Paper 37 (1999) vol 2, [7.25].

42. G Flatman and M Bagaric, “Juries Peers or Puppets – the Need to Curtail Jury Instructions” (1998) 22 Criminal Law Journal 207, 212.

43. S Lloyd-Bostock and C Thomas, “Decline of the ‘Little Parliament’: Juries and Jury Reform in England and Wales” (1999) 62 Law and Contemporary Problems 7, 33.

44. G Eames, “Towards a Better Direction – Better Communication with Jurors” (2003) 24 Australian Bar Review 35, 40.

45. W R Cornish, The Jury (Allen Lane, The Penguin Press, 1968) 114.

46. G Eames, “Towards a Better Direction – Better Communication with Jurors” (2003) 24 Australian Bar Review 35, 40.

47. See Whited v Powell 285 SW 2d 364 (1956), 368 and W W Steele and E G Thornburg, “Jury Instructions: A Persistent Failure to Communicate” (1991) 74 Judicature 249, 250.

48. D Wolchover, “Should Judges Sum Up on the Facts?” [1989] Criminal Law Review 781, 792.

49. See para 6.61-6.69.

50. See, for example, BJR v R [2008] NSWCCA 43, [97] (Latham J); R v LTP [2004] NSWCCA 109, [116] (Simpson J); R v McIntyre [2002] NSWCCA 29, [49] (Hodgson J).

51. N A Phillips, “Trusting the Jury” (The Criminal Bar Association Kalisher Lecture, London, 23 October 2007).

52. Pollitt v The Queen (1992) 174 CLR 558; R v Clough (1992) 28 NSWLR 396. See para 7.12-7.16.

53. Peacock v The King (1911) 13 CLR 619, 630, 634, 652.

54. Luxton v Vines (1952) 85 CLR 352, 358.

55. R v Walters (1992) 62 A Crim R 16, 20 (Hunt CJ at CL).

56. El Hassan v R [2007] NSWCCA 148, [33] (Hunt AJA).

57. See para 3.14-3.36.

58. See Relc v R (2006) 167 A Crim R 484, [80] (McClellan CJ at CL).

59. R v Stewart (2001) 52 NSWLR 301; [2001] NSWCCA 360, [117]-[119] (Howie J).

60. Misdirections play a significant role in appeals in sexual assault trials. The NSW Judicial Comission surveyed sexual offence cases between 2001 and June 2004 and found that the NSW Court of Criminal Appeal allowed 70 of 136 appeals arising from sexual assault trials (51.5%). In a majority (54%) of the successful appeals, the Court allowed the appeal based on misdirection: NSW, Criminal Justice Sexual Offence Taskforce, Responding to Sexual Assault: The Way Forward (2006), 89-90. The NSW Judicial Commission is currently undertaking a study of conviction appeals for the period 2001-2007. The study, which is due for publication in 2009, will include an analysis of the role of misdirections in appeals and the number of retrials resulting from successful appeals.

61. M Kirby, “Why has the High Court Become More Involved in Criminal Appeals?” (2002) 23 Australian Bar Review 4, 7.

62. Judiciary Act 1903 (Cth) s 35A.

63. As indicated, for example, by the observations of Starke J in Tuckiar v The Queen (1934) 52 CLR 335, and in Sodeman v The Queen (1936) 55 CLR 192, and in the decision in Stuart v The Queen (1959) 101 CLR 1 refusing leave to appeal.

64. Mraz v The Queen (1955) 93 CLR 493, although see the more recent formulation discussed at para 1.44-1.51.

65. Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32, [115] (Kirby J).

66. R v MM (2004) 145 A Crim R 148, [36] (Levine J). See also R v Melville (1956) 73 WN (NSW) 579, 581.

67. R v Abusafiah (1991) 24 NSWLR 531, 536 (Hunt J). See also R v Wilson (2005) 62 NSWLR 346; [2005] NSWCCA 20, [23] (Hunt AJA).

68. R v Wilson (2005) 62 NSWLR 346; [2005] NSWCCA 20, [19]-[23] (Hunt AJA).

69. Criminal Appeal Act 1912 (NSW) s 6(1). Similar provision exists in other Australian jurisdictions: Criminal Code (NT) s 411(2); Criminal Code (Qld) s 668E(1A); Criminal Law Consolidation Act 1935 (SA) s 353(1); Criminal Code 1924 (Tas) s 402; Crimes Act 1958 (Vic) s 568(1); Criminal Appeals Act 2004 (WA) s 14(2).

70. R v Asquith (1994) 72 A Crim R 250; R v Moussa (2001) 125 A Crim R 505; [2001] NSWCCA 427, [63] (Howie J).

71. Driscoll v The Queen (1977) 137 CLR 517, 524-525 (Barwick CJ); Dietrich v The Queen (1992) 177 CLR 292, 337 (Deane J).

72. The High Court has discussed the meaning of substantial miscarriage of justice for purposes of the proviso in these cases: Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81; Darkan v The Queen (2006) 227 CLR 373; [2006] HCA 34; Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30.

73. Kural v The Queen (1987) 162 CLR 502; R v Jones (1995) 78 A Crim R 504; R v Cao (2006) 65 NSWLR 552; [2006] NSWCCA 89; Ka Chung Fung v R (2007) 174 A Crim R 169; [2007] NSWCCA 250.

74. R v Gulliford (2004) 148 A Crim R 558; [2004] NSWCCA 338.

75. Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72.

76. For example, R v Roberts (2001) 53 NSWLR 138; [2001] NSWCCA 163, [61]-[64] (Carruthers AJ); R v Fuge [2001] NSWCCA 208, [41] (Wood CJ at CL); R v Ita (2003) 139 A Crim R 340; [2003] NSWCCA 174, [92]-[98] (Ipp JA).

77. This has been, in part, the result of an increasing separation of a criminal trial bar, whose members do not usually conduct appeals, and a criminal appellate bar, whose members rarely run trials: See G Eames, “Towards a Better Direction – Better Communication with Jurors” (2003) 24 Australian Bar Review 35.

78. The Crimes (Sexual Assault) Amendment Act 1981 (NSW) inserted s 405C into the Crimes Act 1900 (NSW) which provided that, on the trial of a person for a prescribed sexual offence, the Judge is not required by any rule of law or practice to give…a warning to the jury to the effect that it is unsafe to convict the person on the uncorroborated evidence of the person upon whom the offence is alleged to have been committed. The abolition of the requirement for the giving of a warning about uncorroborated evidence is no longer confined to sexual offences; it has been extended to all offences by Evidence Act 1995 (NSW) s 164(3).

79. R v Murray (1987) 11 NSWLR 12, 19 (Lee J).

80. Evidence Act 1995 (NSW) s 165A.

81. See NSW, Parliamentary Debates (Hansard) Legislative Assembly, 28 November 2001, Second Reading Speech, the Hon R J Debus, Attorney General, 19037. See also Royal Commission into the New South Wales Police Service, Final Report (1997) Recommendation 90; Australian Law Reform Commission and Human Rights and Equal Opportunity Commission, Seen and Heard: Priority for Children in the Legal Process, Report 84 (1997) ch 14.

82. See Norris v R [2007] NSWCCA 235 for a recent example of a case where the jury requested clarification of the legal definition of reasonable doubt, asking whether it means “we need to be one-hundred per cent sure either way”. See also para 4.33.

83. See generally ch 9.

84. See para 6.14-6.59.

85. See para 6.21-6.24.

86. For example, the NSW provision dealing with summaries of evidence states that the judge may omit the summary if he or she is “of the opinion that, in all the circumstances of the trial, a summary is not necessary”: Criminal Procedure Act 1986 (NSW) s 161(1).

87. G Flatman and M Bagaric, “Juries Peers or Puppets – the Need to Curtail Jury Instructions” (1998) 22 Criminal Law Journal 207, 210. See also P Devlin, Trial by Jury (Stevens and Sons, 1956) 114-115.

88. G Flatman and M Bagaric, “Juries Peers or Puppets – the Need to Curtail Jury Instructions” (1998) 22 Criminal Law Journal 207, 210.

89. F H Vincent, “The High Court v the Trial Judge” in 28th Australian Legal Convention (1993) vol 2, 265.

90. G Flatman and M Bagaric, “Juries Peers or Puppets – the Need to Curtail Jury instructions” (1998) 22 Criminal Law Journal 207, 210.

91. See para 7.26.

92. See para 3.33.