ISSUE 1.1
What problems do the use of judicial instructions present in criminal trials?
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?
ISSUE 3.1
(1) What model directions contained in the Criminal Trial Courts Bench Book, if any, should be rewritten to make them more understandable to jurors?
(2) What process should a review of the Bench Book follow?
ISSUE 3.2
(1) How can judges be encouraged to make wide use of model directions?
(2) What should be the status of the directions in the Bench Book and should that status be identified in legislation or rules of court?
ISSUE 4.1
(1) Should trial judges be encouraged to include in their opening remarks an explanation that by taking an oath a juror makes a serious commitment to participate within the legal process and abide by its rules?
(2) Should the juror oath be revised to articulate more expansively the important commitments it embodies?
ISSUE 4.2
(1) Should it be mandatory for judges to give certain preliminary directions in their opening remarks to the jury?
(2) If so, what should be included in the judge’s preliminary directions?
(3) Should jurors be given a written copy or summary of these preliminary legal directions?
ISSUE 4.3
(1) Are the current instructions on the role of the judge and the role of the jury adequate?
(2) If not, how can they be improved?
ISSUE 4.4
How should the trial judge explain to the jurors the conduct that is expected of them during the trial and their deliberations?
ISSUE 4.5
(1) Should trial judges encourage jurors to make known when they, or some of their number, feel they need a break or their concentration is lapsing?
(2) Should judges seek other input from jurors about the arrangement of sitting times?
ISSUE 4.6
Are the standard directions relating to the onus of proof adequate?
ISSUE 4.7
(1) Should judges continue to use the expression “beyond reasonable doubt”?
(2) If so, how, if at all, should they explain it to the jury?
(3) If not, should judges use “sure” or some other expression and how, if it all, should they explain it to the jury?
(4) How should any changes be brought into effect? By legislation, by changes to the Bench Book, by judicial education, or by some other means?
ISSUE 4.8
What warnings, if any, should a judge give:
(a) when evidence is admitted that the accused invoked the right to silence during pre-trial investigations; or
(b) when the accused invokes the right to silence during the trial?
ISSUE 4.9
Is the direction on arriving at alternative verdicts or defences adequate to ensure that the jury’s verdict is not the result of compromise?
ISSUE 4.10
(1) Are there any circumstances in which a perseverance or “Black” direction should refer to the possibility of a majority verdict?
(2) If so, how should the possibility of a majority verdict be referred to?
ISSUE 5.1
(1) Should directions better address the potential problem of jurors being influenced by prejudicial publicity by encouraging them to exercise independent judgment with regards to the evidence before them?
(2) Should the judicial direction omit reference to jurors avoiding pre-trial and in-trial publicity?
ISSUE 5.2
How much detail, context and explanation should directions include regarding the dangers of extra-curial influences?
ISSUE 6.1
What can be done to improve juror comprehension of the judge’s summary of the relevant law in the summing-up?
ISSUE 6.2
What limits, if any, should be placed on the judge’s summary of the evidence in the summing-up?
ISSUE 6.3
Under what circumstances should written materials be made available to juries that deal with the factual issues in a summing-up?
ISSUE 6.4
(1) To what extent should a trial judge be able to put matters of law or arguments relevant to the defence that have not been raised or relied on by counsel for the defence?
(2) In what circumstances, if any, should a judge be able to put alternative charges even if the prosecution has not raised them?
ISSUE 6.5
(1) In what circumstances, if any, should judges repeat or summarise the arguments of trial counsel?
(2) Should the judge’s summary of the arguments of trial counsel be limited in any way?
ISSUE 6.6
(1) Should the judge’s summing-up be delivered before the addresses of counsel?
(2) If so, under what conditions?
ISSUE 6.7
In what circumstances, if any, should a judge comment on the merits of the case in the summing-up to the jury?
ISSUE 7.1
(1) Are warnings about the use of a prison informer’s evidence necessary?
(2) If so, in what circumstances should a judge deliver them?
ISSUE 7.2
(1) Is it necessary for judges to give a warning about the use of evidence of people reasonably supposed to have been criminally concerned in the events giving rise to the proceedings against the accused?
(2) If so, in what circumstances should it be given, and how should such a warning be phrased?
ISSUE 7.3
In what circumstances, if any, should a warning be given about the use of evidence of confessions and admissions?
ISSUE 7.4
(1) In what circumstances should warnings be given about the use of identification evidence?
(2) Should warnings about the use of identification evidence extend to relevant observations about matters that would be considered obvious to any jury?
ISSUE 7.5
(1) Should the Murray direction be abolished or should it be confined to cases where there is specific evidence indicating that the complainant’s uncorroborated evidence may be unreliable?
(2) In either case, how should legislation be drafted to achieve this?
ISSUE 7.6
(1) Is it desirable to amend s 294(3) of the Criminal Procedure Act 1986 (NSW) to clarify:
- whether or not judges may continue to use the words “dangerous/unsafe to convict”; and
- that its reference to the need for caution by the jury relates to the complainant’s evidence and not to “the evidence or question referred to in subsection (1)”?
(2) Are there other ways by which the statutory provisions relating to the Longman warning may be improved?
ISSUE 7.7
In what circumstances, if any, is a warning relating to delay ever necessary in non-sexual assault trials?
ISSUE 7.8
Is s 294(2) of the Criminal Procedure Act 1986 (NSW) sufficient to address the issue of what (if any) warning the judge should give the jury on the impact of delay on the complainant’s credibility?
ISSUE 8.1
Is the direction to the jury suggested by the Bench Book in relation to tendency and coincidence evidence adequate?
ISSUE 8.2
(1) Should the Bench Book specifically address evidence of other sexual conduct in relation to tendency evidence?
(2) If so, what form should warnings and suggested directions in relation to such evidence take?
ISSUE 8.3
(1) Should the lies direction be reformulated in the way suggested by the Supreme Court of Canada or following the Californian model?
(2) Alternatively, should the third point in the Bench Book’s current suggested direction to the jury be reformulated?
(3) Should the reference to “realisation of guilt” be omitted and the instruction redrafted in more general terms?
(4) Is the current direction effective and adequate?
ISSUE 8.4
Should the Bench Book contain a direction relating to evidence of lies led by the prosecution for the purpose of attacking the accused’s credibility?
ISSUE 8.5
(1) Is it necessary or desirable to formulate a direction specifically in relation to evidence of flight?
(2) If so, should it be formulated along the lines of the US Pattern Criminal Jury Instructions for the District Courts of the First Circuit direction?
ISSUE 8.6
In what circumstances, if any, is it necessary to give directions on the use of evidence of good character?
ISSUE 8.7
(1) Are directions on the use of evidence of bad character necessary?
(2) If so, in what circumstances should judges given them?
ISSUE 8.8
What directions should a trial judge give in relation to multiple offences that have been tried together?
ISSUE 8.9
What can be done to make the directions on the use of evidence relating to a conspiracy easier to follow?
ISSUE 8.10
(1) Does the Bench Book’s current suggested direction as to how to treat circumstantial evidence adequately explain those facts that need to be proved beyond reasonable doubt and those that, taken individually, do not need to be proved beyond reasonable doubt?
(2) If not, how could the wording of the direction be improved to clarify the distinction between facts that are like “links in a chain” and facts that are like “strands in a cable”?
ISSUE 8.11
(1) In what circumstances, if any, should judges give warnings with respect to the use of DNA profiling?
(2) What should a warning about the use of DNA profiling include?
ISSUE 8.12
What instructions, if any, should judges give juries about the use of demeanour evidence?
ISSUE 8.13
In what circumstances, if any, should a judge give instructions to the jury about cultural or linguistic factors influencing the way some Indigenous people give evidence?
ISSUE 8.14
If judges may not comment on aspects of social or linguistic differences impacting upon an Indigenous person’s evidence, should it be possible to allow expert evidence to be led as to aspects of a particular witness’s evidence?
ISSUE 8.15
In what circumstances, if any, should judges give warnings about avoiding prejudice in assessing the evidence of Indigenous people?
ISSUE 9.1
(1) Is recklessness, as currently formulated, adequately explained to juries? If not, what should be done to remedy the problem?
(2) Are there problems with recklessness in relation to specific offences? If so, how can these problems be resolved?
ISSUE 9.2
Are the Bench Book directions on self-defence adequate and/or appropriate?
ISSUE 9.3
(1) Are the Bench Book directions on provocation adequate?
(2) Is there a better way of explaining the test of provocation to the jury?
ISSUE 9.4
Are the directions on duress in the Bench Book appropriate?
ISSUE 9.5
How can juror confusion about the concepts underlying the defence of substantial impairment be minimised?
ISSUE 9.6
How should the concept of a reasonable or ordinary person in the position of the accused be left to the jury in relation to the relevant defences?
ISSUE 9.7
What other areas of criminal law require revision in order to be more easily explained to juries?
ISSUE 9.8
(1) Should the use of any of the following terms in directions be reviewed in order to help jurors to understand the law that they must apply:
(a) knowing concern; and
(b) suffer.
(2) Are there any other terms that should be reviewed in order to help jurors to understand the law that they must apply?
ISSUE 9.9
(1) Should judges give preliminary directions on elements of the offence in their opening remarks?
(2) If so, should they also cover available defences?
(3) To what extent should the issues be defined in the preliminary directions?
ISSUE 10.1
Is there is a need for judges to give jurors more extensive directions on note-taking? If so, what should these be?
ISSUE 10.2
Should the law be changed so that a judge must give directions of law in criminal proceedings in writing, unless the judge has good reasons for not doing so?
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?
ISSUE 10.4
Should trial judges be allowed to use visual aids to present jury directions and should such use be encouraged?
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?
ISSUE 10.6
Should trial judges, as part of the summing-up, be required to inform the jurors that they may ask the judge during their deliberations any questions about the directions?
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?
ISSUE 10.8
(1) Should judges give greater attention to answering questions from the jury about directions?
(2) What more should be done in this regard?
