Consultation Paper 4 (2008) - Jury directions - Law Reform Commission : Lawlink NSW

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Consultation Paper 4 (2008) - Jury directions Table of contents Updates and background for this project (Digest) How to get a copy of this Consultation Paper PDF version Terms of reference Participants Submissions List of issues 1. INTRODUCTION THIS REFERENCE WHAT ARE JUDICIAL INSTRUCTIONS? AIMS OF JUDICIAL INSTRUCTIONS CHALLENGES Achieving juror comprehension Avoiding unnecessary appeals ACHIEVING REFORM Abolition of some instructions Clarifying and simplifying some instructions Other approaches Providing ways of attaining better juror comprehension 2. JURY RESEARCH NATURE AND LIMITATIONS OF JURY RESEARCH AUSTRALIAN STUDIES A jury simulation A survey by this Commission The prejudicial publicity survey The most recent BOCSAR survey Australian Institute of Judicial Administration survey of judges UNSW pilot jury study OVERSEAS RESEARCH New Zealand United Kingdom United States CONCLUSION 3. MODEL DIRECTIONS INTRODUCTION NSW model directions BENEFITS FROM MODEL DIRECTIONS COMPREHENSIBILITY OF MODEL DIRECTIONS Improving comprehension through better language Movement towards plain English directions NSW model directions 4. DIRECTIONS ABOUT TRIAL PRACTICE AND PROCEDURE PROVIDING JURORS WITH A FRAMEWORK FOR DELIBERATION THE JUROR’S OATH THE OPENING REMARKS THE ROLE OF THE JUDGE AND THE ROLE OF THE JURY JUROR CONDUCT AND THE TRIAL PROCESS Encouraging juror input into trial times THE ONUS AND STANDARD OF PROOF Onus of proof Standard of proof THE RIGHT TO SILENCE Where the accused exercises the right before trial Where the accused exercises the right during the trial LEAVING ALTERNATIVE VERDICTS AND DEFENCES PERSEVERANCE DIRECTIONS 5. DIRECTIONS ABOUT EXTERNAL INFLUENCES EXTRA-CURIAL INFLUENCE Prejudicial publicity EXTRA-CURIAL INVESTIGATIONS The motivation to sleuth 6. THE COMPONENTS OF THE SUMMING-UP THE CUSSENS FORMULA ELEMENTS OF THE OFFENCE CHARGED AND DEFENCES SUMMARY OF THE EVIDENCE Limiting the summing-up of the evidence Written summaries of evidence SUMMARY OF THE PROSECUTION AND DEFENCE CASES Outlining the defence case Matters of law or arguments not put by the parties Limiting the summing-up of the defence and prosecution cases Timing of the summing-up JUDICIAL OPINION ON THE MERITS OF THE CASE 7. DIRECTIONS ABOUT UNRELIABLE EVIDENCE INTRODUCTION Statutory regulation of warnings PRISON INFORMERS ACCOMPLICES CONFESSIONS AND ADMISSIONS IDENTIFICATION EVIDENCE UNCORROBORATED EVIDENCE Criticisms Legislative reform DELAY AND FORENSIC DISADVANTAGE Sexual assault cases Other cases DELAY AND CREDIBILITY Criticisms Legislative reform 8. OTHER DIRECTIONS ABOUT EVIDENCE TENDENCY AND COINCIDENCE EVIDENCE The Evidence Act Evidence of other sexual conduct EVIDENCE OF POST-OFFENCE CONDUCT: LIES AND FLIGHT Lies Flight EVIDENCE OF CHARACTER Good character Bad character MULTIPLE OFFENCES CONSPIRACY COUNTS Unreliability of the evidence of co-conspirators Use of evidence for different purposes CIRCUMSTANTIAL EVIDENCE DNA EVIDENCE DEMEANOUR EVIDENCE WHEN INDIGENOUS PEOPLE GIVE EVIDENCE Cultural and linguistic factors that may impact on the jury’s assessment of the evidence Avoiding prejudice in assessing the evidence of Indigenous people 9. ELEMENTS OF THE OFFENCE AND DEFENCES HOW CAN DIRECTIONS ON SUBSTANTIVE LAW BE MADE MORE COMPREHENSIBLE? RECKLESSNESS DEFENCES Self-defence Provocation Duress Substantial impairment by abnormality of mind Onus of proof The reasonable person test Directions on intoxication OTHER AREAS OF SUBSTANTIVE LAW COMPLEX OR OBSCURE TERMINOLOGY PRELIMINARY DIRECTIONS ON THE ISSUES TO BE DETERMINED Arguments for Arguments against Need for pre-trial disclosure obligations Further difficulty with defences 10. ENHANCING JUROR COMPREHENSION INTRODUCTION NOTE-TAKING BY JURORS The law and practice in NSW Benefits Some concerns FINAL DIRECTIONS ON THE LAW IN WRITING Benefits from written directions Current law and practice in NSW The incidence of written directions Inconsistency between oral and written directions AUDIO-VISUAL PRESENTATION OF JURY DIRECTIONS WA experience Support from empirical studies Jurors’ support for visual aids Use of modern technologies in courts Superfluous due to availability of written directions? DELIBERATION AIDS Step directions (sequential questions) Issues table Decision tree (flow-chart) Conclusion QUESTIONS FROM JURORS DURING DELIBERATIONS Encouraging jurors to ask questions Questions prior to deliberations Answering jurors’ questions APPENDICES Appendix A: Preliminary submissions Appendix B: Example sequential questions from New Zealand Appendix C: Example issues table from New Zealand TABLES Table of cases Table of legislation BIBLIOGRAPHY

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