10. Enhancing juror comprehension
Updates and background for this project (Digest)
INTRODUCTION
10.1 Arguably the most important means of improving comprehension of jury directions is by using language that jurors understand instead of the highly-technical and legalistic language that is often used by judges. As a means of encouraging judges to give directions that are understandable to jurors, the Commission in Chapter 3 raised the issue of whether there is a need to review the Bench Book’s directions to make them more understandable to jurors. This Chapter canvasses other ways of assisting jurors to better comprehend the judge’s directions.
10.2 In particular, this Chapter examines:
- note-taking by jurors;
- the provision of written directions to jurors;
- the use of audio-visual aids in the presentation of the summing-up;
- the provision of jury deliberation aids, such as step directions, issues tables and decision trees; and
- the ability of jurors to ask the judge questions about the directions during deliberations.
10.3 There are other means of assisting jurors perform their role, such as:
- giving them an opportunity to ask questions to witnesses through the judge;
- providing them with a transcript of the evidence;
- permitting the inspection of the exhibits during jury deliberations; and
- allowing the jury to use during their deliberations any chronologies, charts and schedules that have been received into evidence.
This Chapter will not canvass these other matters since they relate mainly to assisting jurors recall, clarify or understand the evidence; they are not primarily aimed at helping jurors with understanding the judge’s directions. The terms of reference confine this inquiry to directions and warnings that a judge gives to a jury in a criminal trial.
NOTE-TAKING BY JURORS
The law and practice in NSW
10.4 In NSW, jurors are allowed to take notes during the trial. In R v Sandford, the NSW Court of Criminal Appeal held that a trial judge has a discretion to give writing materials to jurors to enable them to take notes. The Court added that it is difficult to imagine any legitimate basis for denying a request for such materials and, in fact, “it is now common practice for writing materials to be offered to jurors without waiting for a request”.1
10.5 In a recent publication of the Attorney General’s Department, Guide for Jurors, which is given to jurors prior to the commencement of the trial, jurors are informed:
You will be provided with a notebook which you can use to take notes about the evidence that is given. The notebook will be left behind each afternoon when you leave court and will be handed in and destroyed when the proceedings are over.2
Further, it would appear from anecdotal evidence that it is now common practice for trial judges, in their opening remarks, to tell jurors that they may take notes. This is confirmed by the AIJA survey which found that 91% of the NSW judges told the jury in their opening remarks that they could take notes, and 70% gave additional directions on note-taking.3
Benefits
10.6 The obvious benefit of note-taking by jurors is that, when done properly, it can be a valuable aid for refreshing memory. While this benefit relates mainly to the evidence, it may also apply to the directions. That is, jurors may take notes of not just the evidence, but also the directions given by the judge to help their recall when they are in the jury room. Further, it may be argued that note-taking assists in sustaining jurors’ concentration by preventing their attention from wandering away from the proceedings.4 This argument may have particular application at the summing-up, which usually lasts several hours.5
10.7 The benefits of note-taking have support from empirical studies6 and have also been recognised by courts. In R v Sandford, Justice Smart observed:
Making a note increases the concentration and embeds the evidence into the mind. Jurors often make some notes of the evidence and the addresses and very full notes of the critical directions in a summing-up. Juries should be encouraged to make notes of the evidence, the final addresses and the summing-up.7
Some concerns
10.8 There are, however, concerns about note-taking, including that jurors taking notes may not be able to keep pace with the trial. Trial judges sometimes address this issue by giving a warning to jurors that they should not let their note-taking distract them from following the trial. Other judges inform them that, while they are entitled to take notes and might find it beneficial to record what appear to them as salient points, they will be entitled at the end of the trial to request a copy of the transcript of the evidence.
10.9 Other potential problems include:
- jurors might give undue weight to their notes, which may be inaccurate and will certainly be an incomplete record of the trial;
- a juror who has taken notes might exert more influence during deliberations than those who have not; and
- jurors may be distracted from observing the demeanour of witnesses.8
10.10 While an American study found that concerns about note-taking by jurors are unfounded,9 two studies have indicated that jurors do encounter problems in relation to note-taking. The New Zealand Law Commission’s jury study conducted in 1999 found:10
- The directions jurors were given on whether they should take notes, and the extent to which they should do so, were variable and generally inadequate. Jurors frequently criticised the lack of guidance about the sort of information which they should note down.
- Partly due to inadequate guidance on note-taking, the amount of notes taken by jurors varied enormously.
- Many jurors interpreted the caution from the judge that they should be careful to listen to and observe witnesses as meaning that they should avoid taking notes as far as possible.
- Jurors with few or no notes tended to defer to those who had taken extensive notes when there was a need to clarify, or there were disagreements about, the evidence. Their reliance on the notes of others reduced their ability to participate meaningfully in the discussions, and allowed other jurors to dominate the deliberations.
10.11 A jury survey conducted in NSW also found that some jurors encountered problems related to note-taking, including:11
- Some jurors misinterpreted the advice (given in relation to note-taking) that jurors should ensure that they observe the demeanour of witnesses as discouraging them from taking any notes whatsoever during the trial.
- Some jurors reported that inconsistencies between jurors’ notes became a source of disagreement during deliberations.
- One juror thought that where a discrepancy arose between her notes and the transcript of evidence, the notes took precedence.
- When jurors are informed that they may request all or part of the transcript of the evidence, the judge does not make it clear that such a request may be denied. One juror assumed that the transcript would definitely be given and, as a consequence, did not take extensive notes. It would now appear that any such request would have to be granted.
The authors of this study concluded that these findings “suggest that jurors may lack a clear understanding of the purpose of notes and are not sure how any notes that they have taken relate to the transcript”.12
FINAL DIRECTIONS ON THE LAW IN WRITING
10.12 The judge’s summing-up, which contains the directions on the law that the jury must apply to the issues of the case, is traditionally delivered orally following the addresses of the prosecution and defence counsel. However, there is a growing practice for judges to give jurors a written copy or summary of the legal directions in the summing-up.
Benefits from written directions
10.13 There are a number of benefits from this practice. Studies have shown that giving jurors a copy of the directions improves their comprehension.13 This may be because, when jurors refer to the written directions, they are referring to the law as directly told to them by the judge, and this repeated exposure may lead to greater familiarity with and understanding of the directions they need to apply.14
10.14 Further, written directions may reduce deliberation time, as juries spend less time trying to recall the directions. They may assist in resolving disputes among jurors about what directions the judge gave.15
10.15 Next, the written directions can be a useful way of identifying the final issues in the trial to which the directions can be related.
10.16 Finally, the improved comprehension of the directions and evidence that results from the presence of written directions may increase the jurors’ confidence in their verdict.16
Current law and practice in NSW
10.17 In NSW, judges have discretion to give the legal directions in writing. Section 55B of the Jury Act 1977 (NSW) provides:
Any direction of law to a jury by a judge or coroner may be given in writing if the judge or coroner considers that it is appropriate to do so.
Prior to the adoption of s 55B in 1987, the common law allowed judges to use a written document in expounding their summing-up of the law to a jury. However, such a written document was considered only as an aide memoire to the oral directions.17
10.18 Section 55B makes it clear that the written directions are themselves the directions which the jury must take into account in deciding the case. Nevertheless, it is customary for the judge to read the written directions to the jury while they have the document in front of them. He or she usually takes the jury through each of the sub-paragraphs of the document and elaborates on them.
10.19 In R v Forbes,18 the NSW Court of Criminal Appeal cited s 55B as the basis for the trial judge’s delivery of the summing-up both orally and in writing. The Court observed that this practice is “widely followed and is to be encouraged”.19
10.20 The appellant in that case (who was appealing a conviction for manslaughter) argued that a summing-up that is comprehensible only with the aid of a written document is not an effective communication tool. Further, the appellant contended that the judge’s written directions inappropriately assumed that each member of the jury had an ability to read and comprehend a document, at the same time as listening to verbal directions.
10.21 In rejecting these submissions, Chief Justice Spigelman said that the appellant might very well have had more cause for complaint if the trial judge had given an entirely oral presentation of the directions because that would “probably have bewildered the jury”. Further, the Chief Justice said that it was appropriate to assume that all jurors can read and follow proceedings by reference to the written directions in the absence of any suggestion that any juror had a difficulty.20
The incidence of written directions
10.22 Seventy per cent of the NSW judges who participated in the AIJA survey said that they give jurors some form of written assistance in relation to the legal directions contained in the summing-up.21 These figures are encouraging, and demonstrate that a large majority of judges in NSW realise the benefits of giving the legal directions to the jury in writing. However, the Commission considers that the percentage of judges who do not give written legal directions – 30% – is still quite substantial.
10.23 Based on informal information from judges, it appears that, while many Supreme Court judges routinely supplement their oral summing-up with written directions, this practice is not as widespread in the District Court. One possible reason for this is the fact that some of the criminal cases heard by the District Court are less complex than those tried at the Supreme Court. It is possible that some judges take the view that, in simple and uncomplicated cases, written directions are superfluous. However, it is arguable that, regardless of the complexity of the trial, jurors are likely to find that written directions are helpful, and may in fact assist them in understanding the legal concepts they need to apply in their decision-making process.22
Inconsistency between oral and written directions
10.24 Where a judge gives written legal directions that contain legal errors, but his or her oral directions are legally accurate, or vice versa, the issue that arises is whether the set of directions that are legally accurate overcome any legal error in the other set of directions.
10.25 In Derbas v R,23 the appellant argued that the trial judge’s written directions failed to direct the jury sufficiently regarding accessorial liability, thus occasioning a miscarriage of justice. The judge gave oral directions on accessorial liability on two occasions in the summing-up, and the appellant accepted that the first of these oral directions was correct. The appellant posed the question of whether the correct oral direction was sufficient to fill the gap in the written direction and the later oral direction. The court held that it was unnecessary to decide this issue because the appellant failed to establish errors in any of the directions.
ISSUE 10.3
Should legislation provide that, in case the written directions are legally deficient in some respect, the oral directions, if legally accurate, overcome the deficiency, and vice versa?
AUDIO-VISUAL PRESENTATION OF JURY DIRECTIONS
10.26 Audio-visual technologies are widely used in instructional or information-sharing settings, such as classrooms, seminars and conferences. They include whiteboards, slide shows, overhead projectors, and computer-based projections such as PowerPoint. These techniques can be a means of supplementing the traditional oral presentation of jury directions in order to improve juror comprehension.
WA experience
10.27 In WA, a District Court judge has been using PowerPoint in directing juries.24 She emphasises that the use of PowerPoint does not involve any major changes to the oral presentation of the summing-up. The main difference lies in the slide presentation of key points; for example, a shorter version of the direction on burden of proof, or definitions of elements of the offence, such as “consent” or “sexual penetration”.
10.28 She believes this method of presentation helps focus jurors’ attention on the main points of the summing-up and improves their comprehension of the legal directions. She reports that both prosecutors and defence counsel have been supportive of this technique. Further, the Court of Appeal of WA has noted the use of PowerPoint in the summing-up and has not objected to this practice.25
Support from empirical studies
10.29 There is empirical evidence supporting the use of audio-visual presentation of jury directions. In the field of learning, researchers have found that instructional materials that use two modes of presentation (for example, oral presentation and visual diagrams) can result in better learning results.26
10.30 An Australian study found that the oral presentation of the direction on self-defence when combined with visual presentation (through computer animation and a flow-chart) of the key elements of the direction produced substantial improvement in comprehension.27
Jurors’ support for visual aids
10.31 Jurors in various surveys have commented on the need for greater use of visual aids during the trial. In a survey of jurors who sat on civil trials in Victoria during 2001, one of the most common complaints was the lack of visual aids.28 In the New Zealand jury study, many jurors wanted more use of whiteboards, overhead projectors and other visual aids in the presentation of evidence.29 Although the desire for visual aids expressed in these studies pertained to the presentation of evidence, it may be assumed that jurors would also find their use in the summing-up helpful.
10.32 The results of these jury surveys are consistent with extra-judicial comments by some judges that the communication between the trial judge and the jury may be hampered by the different ways in which jurors from younger generations process information.30 Their basic point is that a lengthy oral presentation may not be the best way to engage the attention of the younger pool of jurors. The new multi-media technologies, including the Internet, have accustomed younger jurors to assimilating information in different ways.
Use of modern technologies in courts
10.33 There is already an increasing use of modern technologies in courts for various purposes. For example, some witnesses are appearing via video link-up, and computer monitors are being used to display evidence to juries. Hence, as a matter of practicality, most courts could very easily adopt the technology needed to allow trial judges to make audio-visual presentations of jury directions.
10.34 However, to encourage the use of audio-visual presentation of jury directions, courts will need to adopt training programs for judges on how to use them. Such a program might also include the development of specimen or standard visual aids on directions that are universally given (such as, the presumption of innocence, and the onus and standard of proof) and the elements of various offences. These standard visual aids may be modified to suit the particular set of circumstances of each case.
Superfluous due to availability of written directions?
10.35 It might, however, be argued that the use of visual aids would be superfluous because of the growing practice of providing jurors with a written document containing the legal directions from the summing-up.
DELIBERATION AIDS
10.36 In addition to written directions, there are a number of deliberation aids that may assist jurors during their deliberations. The deliberation aids that are now being used in other jurisdictions include:
- step directions;
- issues tables; and
- decision trees.
Step directions (sequential questions)
10.37 Some parts of the summing-up, particularly the elements of the offence and any defence used by the accused, may be reduced to a series of questions with an algorithmic structure, that is, the order of questions is presented in such a way that each question determines what the next step will be. An example might be in the following form:
[Note to jurors: This document does not contain all the relevant legal principles you need to make a decision on the case and consequently, you have to use it in conjunction with the directions given to you by the Judge during his or her summing up, as well as the written directions provided to you.]
Step 1: Was the death of (name of the deceased) caused by the deliberate act of (name of accused)?
Has the prosecution proved beyond reasonable doubt that the death of (name of deceased) was caused by the deliberate act of (name of the accused)?
More specifically, was the act of (name of the accused) merely an unintentional pulling of the trigger (like a reflex action), or was it a composite act involving a number of steps deliberately taken by (name of the accused) which ended in either (a) the sudden and unexpected discharge, or (b) the deliberate firing of the gun?
If you answered no, you must acquit (name of the accused).
If you answered yes, move to the next step.
Step 2: Did the accused have the intent required for murder?
Has the prosecution proved beyond reasonable doubt that, at the time (name of the accused) did the act which caused the death of (name of deceased), any of the following were present:
- (name of the accused) intended to kill (name of deceased); or
- (name of the accused) intended to inflict grievous bodily harm (that is, really serious physical injury) upon (name of deceased); or
- the act of (name of the accused) was done with reckless indifference to human life (that is, (name of the accused) foresaw or realised that his act would probably cause the death of the (name of deceased) but he continued with that act regardless of the risk of death)?
If you answered no, you must acquit (name of the accused) .
If you answered yes, move to the next step.
[Succeeding steps to be added in relation to the defence or defences presented by the accused, and manslaughter where it might be available.]
10.38 Step directions are now used quite commonly in some overseas jurisdictions, such as Canada (where their model directions are in the form of step directions31 ) and New Zealand (where step directions are known as “sequential questions”). An example of sequential questions from the New Zealand Bench Book, which are more elaborate than the ones given above, are reproduced as Appendix B to this Consultation Paper.32
Issues table
10.39 An issues table is similar to step directions because it also summarises the issues that the jurors need to resolve, but presents them in a tabular form. An example of an issues table from the New Zealand Bench Book is reproduced as Appendix C to this Consultation Paper.33
Decision tree (flow-chart)
10.40 Another possible jury deliberation aid is the decision tree or flow-chart. Support for this technique is based on the theory that summarising the relationships between the key concepts discussed in the jury directions and illustrating those relationships through graphs or pictures (rather than purely in words) assists learning and recall. A study conducted in Australia showed that a flow-chart depicting the criteria for applying the law of self-defence aided mock jurors’ comprehension of the directions.34
10.41 The following is an example of a decision tree for a charge of aggravated dangerous driving causing death under s 52A of the Crimes Act 1900 (NSW). The example applies to a situation where the circumstance of aggravation alleged by the prosecution consists of the accused driving the vehicle to escape pursuit by a police officer.35
Aggravated Dangerous Driving Causing Death
Has the Crown proved beyond reasonable doubt that the vehicle driven by (name of the accused) was involved in an impact occasioning the death of (name of the deceased)?
Yes No - > Not guilty
Has the Crown proved beyond reasonable doubt that (name of the accused), at the time of the impact, was driving the vehicle in a manner dangerous to another person?
Yes No - > Not guilty
Has the Crown proved beyond reasonable doubt that (name of the accused) was driving the vehicle concerned to escape pursuit by a police officer?
Yes No - > Guilty of Dangerous Driving Causing Death
Guilty of Aggravated Dangerous Driving Causing Death
Conclusion
10.42 Step directions, issues tables and decision trees could be useful tools in assisting jurors during the deliberation process. Their usefulness lies in simplifying the issues jurors need to resolve, and in providing an easy-to-use roadmap that takes jurors through the crucial steps required to reach a decision. It must be emphasised that these tools are not stand-alone items, and juries should be told to use them together with the directions given by the judge in the summing-up (which contains in full the relevant legal principles and how these relate to the real issues in the case) and any written directions provided. It is also important for the judge to consult both prosecution and defence counsel in crafting any deliberation aid to be given to the jury.
10.43 One way of facilitating the task of judges providing this form of assistance would be to include model step directions, issues tables and decision trees in the Bench Book. These models would provide judges with templates that could be modified to suit the particular circumstances of each case. The Bench Book could contain as many models as possible, particularly for offences that come before the courts most frequently.
ISSUE 10.5
(1) Should judges be encouraged to use model step directions, issues tables or decision trees? If so, how could judges be assisted in using such deliberation aids?
(2) Is it desirable to legislate to confirm the power of judges to use these deliberation aids when they consider it appropriate to do so?
QUESTIONS FROM JURORS DURING DELIBERATIONS
10.44 In many jurisdictions, including NSW, the jury is allowed to ask questions during deliberations. Such questions could be about the law or the evidence. There are studies which have shown that many juries do ask clarifying questions of the judge during deliberations, and that most questions relate to the legal principles that jurors need to apply.36 Examples of questions posed to trial judges for clarification include: the meaning of “beyond reasonable doubt”, consciousness of guilt, and recklessness as distinguished from intentional.37
10.45 The ability of juries to ask questions is an important mechanism for assisting jurors to understand the directions. It may also decrease deliberation time and increase jurors’ sense of satisfaction with jury service.38 Questions from jurors indicate difficulties in their deliberations, and the answers to these questions exert an influence in the decision-making process, an influence that some commentators believe may be just as important as the actual directions.39
10.46 Empirical evidence confirms the importance of allowing juries to ask questions. An American study on jurors who sat in trials found that jurors who requested and received help from the judge understood the law better than jurors who did not ask questions.40
Encouraging jurors to ask questions
10.47 Jurors should be informed of their ability to ask questions if they are having difficulties with the directions during their deliberations.
10.48 In NSW, the Guide for Jurors informs jurors of their ability to ask questions. In particular, the Guide for Jurors states that a “jury must get assistance from the judge if any juror does not understand something in the judge’s instructions, such as a legal principle or a definition”.41 It informs jurors that they can ask questions by written request to the judge through a Sheriff’s officer.
10.49 The information in the Guide for Jurors is a positive step in informing jurors that they can ask questions about the directions during the deliberations. However, it may not be enough. Jurors may not always read all the information in the Guide for Jurors. The New Zealand jury study, for example, found that a significant number of jurors had not read the New Zealand equivalent of the Guide for Jurors. 42 Given that the Guide was only made available in the jury assembly area and jurors were not provided with personal copies, even those jurors who read the Guide may not have been able to recall all the information it contained by the end of the trial.43 Further, even if they were aware that they could ask questions, jurors may be hesitant to do so because they might be too intimidated by the judge or believe that asking questions would be a burden on the judge,44 or be embarrassed at the prospect of appearing foolish.
10.50 It would therefore seem important for the judge, at the end of the trial, to encourage jurors to ask questions if they have any difficulties with the directions. This would remind jurors that they could ask for assistance during their deliberations and allay possible fears that the judge may not be responsive or may even be hostile to their questions.
Questions prior to deliberations
ISSUE 10.7
(1) Should jurors be given the opportunity prior to their deliberations to ask questions about the directions given in both the summing-up and in the course of the trial?
(2) What process should be followed if jurors are given this opportunity?
Answering jurors’ questions
10.51 The failure of judges to respond fully to questions from deliberating juries is a major stumbling block to better comprehension of jury directions. Studies from overseas show that, in response to questions from the jury about directions, it is very common for the judge to tell the jurors to rely on their best recollection of the directions or, where a written copy of the directions was given, to refer to the written copy, which may simply amount to a verbatim re-reading of the directions which the jury had requested to be clarified.45 This raises the question of whether there is sufficient judicial responsiveness to juries’ problems with the directions during deliberations and of the extent to which the judge should discuss with counsel the appropriate answer to the jury’s question.
Footnotes
1. R v Sandford (1994) 33 NSWLR 172, 181-182 (Hunt CJ at CL).
2. NSW, Attorney General’s Department, A Guide for Jurors: Welcome to Jury Service (February 2007) 7.
3. 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) 46.
4. L Sand and S Reiss, “A Report on Seven Experiments Conducted by District Court Judges in the Second Circuit” (1985) 60 New York University Law Review 423, 447 citing US v MacLean 578 F2d 64 (3rd Circuit, 1978), 64.
5. The average duration of the charge in NSW is 362 minutes for 20-day trials, 217 minutes for 10-day trials and 141 minutes for five-day trials: 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) 48.
6. See, for example, 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) [3.6] (in 41 trials covered by this study, at least 50% of jurors who responded to the survey said they took notes, and of those, 83% used them during deliberations, and 94% of these found them useful as a memory aid); V E Flango, “Would Jurors Do a Better Job If They Could Take Notes?” (1980) 63 Judicature 436 (jurors in four trials in Illinois who took notes rated the quality of the deliberations higher than those who did not take notes, and commented that the notes refreshed their memories and helped convince other jurors of the facts). See, however, L Heuer and S D Penrod, “Juror Notetaking and Question Asking During Trials” (1994) 18 Law and Human Behavior 121 (in a survey of 103 trials across 33 States in America, juror notes did not clearly serve as a memory aid).
7. R v Sandford (1994) 33 NSWLR 172, 185.
8. This can be met by “a brief warning…of the importance of watching the demeanour of the witnesses as they give their evidence”: In R v Sandford (1994) 33 NSWLR 172, 182 (Hunt CJ at CL).
9. L Heuer and S D Penrod, “Juror Notetaking and Question Asking During Trials” (1994) 18 Law and Human Behavior 121 (note-taking jurors do not distract other jurors, note-takers do not have undue influence over non-note-takers, note-takers can keep pace with the trial, note-takers do not overemphasise the evidence they have noted at the expense of evidence they did not record, etc).
10. 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) [3.6].
11. M Chesterman, J Chan and S Hampton, Managing Prejudicial Publicity: An Empirical Study of Criminal Jury Trials in New South Wales (Law and Justice Foundation of NSW, 2001) [462]-[468].
12. M Chesterman, J Chan and S Hampton, Managing Prejudicial Publicity: An Empirical Study of Criminal Jury Trials in New South Wales (Law and Justice Foundation of NSW, 2001) [471].
13. G P Kramer and D M Koenig, “Do Jurors Understand Criminal Jury Instructions? Analyzing the Results of the Michigan Juror Comprehension Project” (1989) 23 University of Michigan Journal of Law Reform 401; I G Prager, G Deckelbaum and B L Cutler, “Improving Juror Understanding for Intervening Causation Instructions” (1989) 3 Forensic Reports 187.
14. L Heuer and S D Penrod, “Instructing Jurors: A Field Experiment with Written and Preliminary Instructions” (1989) 13 Law and Human Behavior 409, 410.
15. L Heuer and S D Penrod, “Instructing Jurors: A Field Experiment with Written and Preliminary Instructions” (1989) 13 Law and Human Behavior 409, 411.
16. L Heuer and S D Penrod, “Instructing Jurors: A Field Experiment with Written and Preliminary Instructions” (1989) 13 Law and Human Behavior 409, 411.
17. R v Petroff (1980) 2 A Crim R 101, 116 (Nagle CJ at CL citing with approval the trial judge’s direction).
18. R v Forbes (2005) 160 A Crim R 1; [2005] NSWCCA 377.
19. R v Forbes (2005) 160 A Crim R 1; [2005] NSWCCA 377, [83] (Spigelman CJ).
20. R v Forbes (2005) 160 A Crim R 1; [2005] NSWCCA 377, [91]-[92].
21. 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) 30.
22. There may, of course, be some practical difficulties where the evidence takes a short time and the whole trial is concluded during the one day.
23. Derbas v R [2007] NSWCCA 118. No reference was made in that case to Jury Act 1977 (NSW) s 55B; see para [10.17]-[10.21].
24. M Yeats, “Using PowerPoint in Charging Juries” (Australian Institute of Judicial Administration Conference, Melbourne, 8-10 October 2000).
25. See Dawson v The Queen [2001] WASCA 2; Nguyen v R [2005] WASCA 22.
26. S Tindall-Ford, P Chandler and J Sweller, “When Two Sensory Modes are Better Than One” (1997) 3 Journal of Experimental Psychology: Applied 257.
27. N Brewer, S Harvey and C Semmler, “Improving Comprehension of Jury Instructions with Audio-Visual Presentation” (2004) 18 Applied Cognitive Psychology 765.
28. J Horan, “Communicating with Jurors in the Twenty-First Century” (2007) 29 Australian Bar Review 75.
29. 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) [3.7]-[3.9].
30. G Eames, “Towards a Better Direction – Better Communication with Jurors” (2003) 24 Australian Bar Review 35, 46; M Kirby, “Speaking to the Modern Jury – New Challenges for Judges and Advocates” (Worldwide Advocacy Conference, 29 June-2 July 1998).
31. Canadian Judicial Council, Model Jury Instructions in Criminal Matters (2004) 3-50.
32. New Zealand, Institute of Judicial Studies, Criminal Jury Trials Bench Book (2006) Appendix 6.
33. New Zealand, Institute of Judicial Studies, Criminal Jury Trials Bench Book (2006) Appendix 7.
34. C Semmler and N Brewer, “Using a Flow-chart to Improve Comprehension of Jury Instructions” (2002) 9 Psychiatry, Psychology and Law 262.
35. Crimes Act 1900 (NSW) s 52A(7)(c).
36. 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) [4.20]; L Severance and E Loftus, “Improving the Ability of Jurors to Comprehend and Apply Criminal Jury Instructions” (1982) 17 Law and Society Review 153; A Reifman, S M Gusick and P C Ellsworth, “Real Jurors’ Understanding of the Law in Real Cases” (1992) 16 Law and Human Behavior 539.
37. E Najdovski-Terziovski, J Clough and J Ogloff, “In Your Own Words: A Survey of Judicial Attitudes to Jury Communication” (2008) 18 Journal of Judicial Administration 65.
38. New Zealand, Law Commission, Juries in Criminal Trials, Report 69 (2001) [369]; M Dann, “‘Learning Lessons’ and ‘Speaking Rights’: Creating Educated and Democratic Juries” (1993) 68 Indiana Law Journal 1229.
39. D Watt, Helping Jurors Understand (Carswell, Toronto, 2007) 257-258.
40. A Reifman, S M Gusick and P C Ellsworth, “Real Jurors’ Understanding of the Law in Real Cases” (1992) 16 Law and Human Behavior 539, 549.
41. NSW, Attorney General’s Department, A Guide for Jurors: Welcome to Jury Service (February 2007) 9.
42. See 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) [2.13]-[2.14].
43. 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) [2.12].
44. A Reifman, S M Gusick and P C Ellsworth, “Real Jurors’ Understanding of the Law in Real Cases” (1992) 16 Law and Human Behavior 539, 551; 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) [4.20], [7.62].
45. See I G Prager, G Deckelbaum and B Cutler, “Improving Juror Understanding for Intervening Causation Instructions” (1989) 3 Forensic Reports 187, 188; A Reifman, S M Gusick and P C Ellsworth, “Real Jurors’ Understanding of the Law in Real Cases” (1992) 16 Law and Human Behavior 539, 541; L Severance and E Loftus, “Improving the Ability of Jurors to Comprehend and Apply Criminal Jury Instructions” (1982) 17 Law and Society Review 153, 172.
