I. INTRODUCTION

6.1 In this Chapter we consider some problems faced by jurors in the course of a criminal trial. The jury is required to listen to the addresses and arguments of counsel and to the evidence presented by witnesses, to observe the demeanour of witnesses and to listen to the summing-up by the trial judge. The next task is to discuss the evidence and the relevant law to determine the facts and to reach a verdict according to the evidence accepted. It is a complex and demanding task requiring the jurors to apply their own experience of the world and their capacity for logical thought in an often emotional context. It is a task made more difficult by a number of trial procedures. For example, the adversary mode of presenting evidence is rarely logical and orderly. The emphasis on oral evidence requires jurors to rely heavily on their memories. Legal rules are generally explained only after the evidence is presented, and both counsel and the judge tend to use legal jargon and complex language even when addressing the jury. it is crucial that the jury, as triers of fact, understand their role, the evidence and the legal principles; they are required to apply. Adequate comprehension will assist the jury to work efficiently and to render verdicts according to law. We consider some ways in which the jury can be assisted to perform its functions more effectively.

II. ORIENTATION

6.2 It is not difficult to perceive that a jury must experience considerable difficulty if required to listen to evidence and arguments without having been told anything of its own role. Recognising this, some judges in New South Wales make some introductory remarks to the jury before the opening address of the Crown. The Commission’s survey of judges seeks to obtain information about how widespread this practice is and what judges cover in their opening remarks. Prospective jurors can have misconceptions about the nature of their obligations and responsibilities, the mode of conduct of trials and even the basic principles of the criminal justice system. We have proposed, in Chapter 5, that these matters should be explained briefly to all people summoned for jury service in an Explanatory Booklet accompanying the Jury Summons and have also raised the issue whether an audio-visual presentation shown to prospective jurors before empanellment would assist in consolidating the information and explanations given as well as ensuring that all jurors receive uniform information. We consider that similar information should be included in preliminary remarks by the judge which, in addition, should extend to matters related to the particular case at hand and to matters not able to be well covered either by an Explanatory Booklet or in an audio-visual presentation. Considering the scope of the judge’s preliminary remarks, the Law Reform Commission of Canada has recommended that the following should be covered:

(a) the function of the indictment,

(b) the function of the jury as sole judges of the facts,

(c) the restriction of their consideration to the evidence,

(d) the presumption of the accused’s innocence,

(e) the benefit of reasonable doubt,

(f) matters concerning credibility,

(g) the functions of court and counsel,

(h) the elements of the crime charged,

(i) a glossary of some of the terms to be used,

(j) admonition as to outside conversation, newspaper accounts, etc,

(k) explanation of the procedure to be followed, including the order of presenting proof and the examination of witnesses,

(l) the importance of cross-examination,

(m) the right of the accused to remain silent,

(n) the need occasionally to send the jury out of the room while matters rrelating to the admissibility of evidence are considered,

(o) whether or, not the taking of notes is permitted,

(p) explanation of the verdict and how it is reached,

(q) obligation to keep secret their deliberations.¹

The Canadian Commission recommended that judges should be required by statute to instruct a jury on these matters at the commencement of the trial.

6.3 The need for some pre-trial orientation is clear. As one former juror commented in a law journal article:

... considerable anxiety would have been allayed had we been given instructions at the beginning as well as the end of the trial ... A brief explanation of the procedure might have enabled us to understand the significance of the repetition of certain details and the Lack of weight given to others.²

The Commission therefore tentatively proposes that procedures should be formulated to ensure that the trial judge addresses jurors at the commencement of the trial on the following topics:

• the course the trial will take;
• the role of the jury; and
• the law on matters such as the standard and burden of proof and the presumption of innocence.

In Part V of this Chapter we raise the issue whether further instructions of law should also be given at the commencement of The trial,

III. OPENING THE CASE TO THE JURY

6.4 When the jury is empanelled and sworn the accused is “given into its charge” and the indictment is read. Rarely is the indictment at simple document. Although reference will be made to the offence charged and the elements of that offence throughout the trial, and particularly in the trial judge’s summing-up, the jury would also be assisted by having a copy of the indictment before it during the trial. This would ensure that there was no misunderstanding as to the terms of the indictment. The Commission, therefore, tentatively proposes that each juror should be provided with a copy of the indictment at the commencement (of the trial. The nature of this document and its proper use should, of course, be the subject of a direction from the trial judge.

6.5 The Crown Prosecutor opens the Crown case by summarising it in an address to the jury and stating, among other things, that certain witnesses will be called to establish certain facts. In some cases, it could be argued, some of this information could usefully be reduced to writing and provided to the jury for constant reference during the trial. We have in mind here a brief summary of the facts which the Crown must establish in order to prove its case. We recognise certain difficulties with the preparation of such a summary. First, although it would include nothing more than a summary of the material in the opening address by the Crown Prosecutor it could tend to have a greater influence on the jury because it would be in written form and available throughout the trial. Careful drafting by the Crown and adequate instructions on its use by the judge would be needed to ensure that the jury did not come to view the document as setting out the facts which have actually been proved instead of merely the facts which the Crown sets out to prove. Second, as the document would need to be checked by the judge and by defence counsel, substantial argument as to its content could result. There is a possibility that appeals could be founded on disputes about the document. On the other hand, the option could be available to defence counsel to prepare a similar document setting out in summary form the chief points in the defence case. Alternatively, the jury could be provided with a document which lists the elements of the offence(s) charged and, beside each one, the witnesses to be called and the exhibits to be tendered in relation to it. In our view the preparation of either form of document would not be an imposition upon the resources of the prosecution, nor should there be any real objection to making it available to the court. The conventionally thorough preparation of the prosecution case would probably result in such a document being produced in any event. We invite submissions as to the provision of such a document to the jury.

6.6 A document setting out the facts to be proved could assist the presiding judge in achieving at shorter trial and, perhaps, a more freely flowing delivery of evidence, and in summing-up to the jury in a manner satisfactory at least to the Crown. This could be so if the document were to be agreed upon by the Crown, the defence and the judge at a pre-trial hearing. The document could then more clearly show which facts were disputed and which were not in dispute. Evidence which is largely irrelevant could be dispensed with or dealt with in shorter form. Again, where a line of questioning is, when challenged, defended on the basis that its relevance will emerge later, the summary of the facts to be proved should enable this forensic device to be kept properly in check. The jury may be more directly assisted by the provision of such a document in assessing the relative weight and significance of evidence as it is presented and in locating that evidence in the structure of the Crown case. This would allow the case to be presented to the jury in a fashion both more informative and more coherent. This benefit may override the difficulties presented by such a document.

6.7 An alternative method of assisting the jury to understand which matters are disputed and which are not, would be to permit defence counsel to address the jury immediately after the Crown Prosecutor’s opening address. The purpose of such am address would be to alert the jury from the early stages of the trial as to the nature of the accused’s defence. We would certainly not propose that defence counsel be compelled to adopt this procedure. However., if it were used, some trials could be greatly simplified. Attention could be focussed on the real issues in the case. Difficulties would arise, however, in cases of multiple accused. The risk would be that the Crown opening would be separated possibly by days from the Crown case. The Crown could lose the advantage of the opening summary. If this suggestion were adopted, defence counsel’s opening address would not be permitted to be lengthy or argumentative. The advantage to the defence in this procedure would be in readying the jury for a challenge to the Crown case. This could avert the risk that the jury will listen, possibly for days or weeks, to the Crown case in an unquestioning, accepting frame of mind without concentrating on those matters to which the defence wishes to draw attention when the opportunity arises.

6.8 Much of the argument and direction addressed to juries is couched in complex language and often in legal jargon. Such language may, at times, be confusing for the jury. In Chapter 5 we have proposed that an Explanatory Booklet should be prepared and provided to all prospective jurors. This Booklet, among other things, should explain the more common concepts used in a criminal trial. In Part V of this Chapter we discuss the need for judges’ summings-up to use language which can be understood by jurors. These measures should go some way towards assisting jurors to come to grips with the language of this proceedings and should also have an educative effect on criminal lawyers themselves. Counsel should avoid unnecessary jargon and use language that is readily understood by lay people when discussing legal concepts and the situations which arise in the course of a criminal trial. We invite submissions as to whether the jury should also be provided with a glossary of legal terms likely to be encountered in the course of the trial and, if so, as to who should prepare this glossary. The former Victorian Director of Public Prosecutions has recommended the provision of such a glossary.³

IV. PRESENTING THE EVIDENCE

A. Witnesses

6.9 As we have noted above, the Crown’s opening address will usually refer to the witnesses to be called to establish certain facts. It is unlikely, however, that, by the time the witness is called, the jury will accurately remember the issues to which his or her evidence will be addressed. It may be that counsel should be permitted briefly to introduce each witness by reference to the element(s) of the offence to which his or her evidence relates. For example, counsel may say “Witness A is called to give evidence as to the cause of death” . If the jury has a document setting out the elements of the offence, the introduction could refer them directly to that document. Counsel should, of course, avoid statements such as “Witness A is called to describe how he struggled to disarm the accused before the victim was shot”. Nevertheless, there is a clear danger that jurors will confuse any claim made by counsel for the evidence of a witness with the evidence itself. This danger is greater than any raised by an inaccurate or misleading opening address because the Crown’s introduction would immediately precede the witness’s evidence. The Commission invites submissions as to the desirability of such a procedure. It may be that this procedure would be of greater value in a long or complex trial, offering the added advantage of permitting Crown counsel to abbreviate the opening address.

6.10 In Chapter 10 we consider the problems raised for juries by a particular class of witness: expert witnesses. We there propose that the evidence of such witnesses should be able to be received in written form or that such witnesses should be permitted to read their evidence from a prepared document. The judge would first have to be satisfied that this procedure would assist the jury. The procedure would encourage the logical presentation of what is usually quite complex evidence. Such evidence is often not capable of being organised chronologically as in the case of much other evidence.

B. Exhibits

6.11 During the course of a trial a number of documents and photographs may be tendered as exhibits. If admitted, the document or photograph is then passed around for each member of the jury to examine. The exhibit will be taken by the jury into the jury room when it retires to consider its verdict. We suggest that when it is known in advance what photographic and documentary material is to be presented to the jury, a copy should be made for each juror to be given to him or her at the time it: is tendered and admitted. This practice would have to be carefully monitored to ensure that all. documents, particularly those of a sensational kind, are returned to the court at the conclusion of a trial. We are of the view that the advantages of this proposal are so great in terms of juror comprehension that the extra cost and effort are justified.

6.12 Discussing the desirability of each juror being given a copy of any documentary exhibit, Mr. justice Lee of the New South Wales Supreme Court has said:

If, for instance, a record of interview is to go into evidence, the jury should have a copy of it in their hands when counsel is cross-examining on it. How often have I seen an effective cross-examination of police officers on a record of interview, go right over the heads of a jury because they could not follow the fine but significant nuances which counsel was seeking to reveal.⁴

The ability to peruse the relevant photograph or document is also invaluable when reference is made to it during the addresses of counsel and the summing-up by the trial judge. We, therefore, tentatively propose that each juror, at the discretion of the trial judge, should be provided with a file containing the documents in the case, namely:

• a copy of the indictment (paragraph 6.4);
• admissible documentary evidence;
• a copy of each explanatory statement prepared by counsel, if any.

The provision of such a file could be ordered by the judge either on his or her own initiative or upon the application of either party. This order could be made either at a pre-trial hearing, if any, or at the commencement of the trial.

C. Technological Aids

6.13 Traditionally evidence must be presented to jurors orally by the witnesses themselves . The presence of witnesses permits the jury to observe demeanour under examination and cross-examination and permits the witnesses evidence-in-chief to be tested by opposing counsel. These important procedural. advantages could be compromised were oral evidence to be completely substituted with documentary materials, video interviews or statements, or other forms of evidence. Nevertheless the Commission considers that graphic aids and modern technology could assist in the effective presentation of some evidence and the explanation of some issues. Models, diagrams and films could be used to enhance the jury’s understanding and appreciation of the evidence.

6.14 One particular suggestion for the use of visual aids in the court room is the idea put forward by Mr Justice Maxwell of’ the Supreme Court of New South Wales that, during the course of the closing arguments of counsel and of the summing-up by the judge, a slide of each witness could be displayed when reference is made to his or her evidence. In a lengthy case, particularly, jurors may not have a good memory of the evidence of early witnesses. A photograph could jog the memory and recall for jurors their impressions of the witness. Care must be taken to photograph the witness on the day on which he or she gives evidence so that clothing, hairstyle and general appearance are the same. The responsibility for taking the photographs would, perhaps, best be left to officers of the court rather than to agents of the counsel tendering the witness.

D. Note-Taking

6.15 Whether jurors may or may not take notes during the trial is a matter for the trial judge’s discretion. Arguments have been advanced against permitting jurors to take notes:

• a juror who has taken notes may exert more influence during deliberations than those who have not;
• jurors may note trivial details yet neglect important matters;
• jurors taking notes may fail to observe non-verbal factors such as demeanour;
• jurors taking notes may distract those who are not; and
• the quality of the notes taken may vary greatly both between jurors and over time as energy and concentration flag.⁵

On the other hand, it is argued that notes would be a valuable aid to memory and could actually assist concentration.

6.16 The Law Reform Commission of Canada recommended that jurors should be permitted to take notes. The following precautions should be adopted:

• all jurors should have an equal opportunity although none should be required to take notes;
• jurors should be assured of the confidentiality of their notes;
• jurors should be admonished to be as tolerant of the notes of another as they should be of another’s independent recollections of the proceedings.⁶

In a short trial the disadvantages of note-taking may outweigh any advantages. We invite submissions as to whether jurors should always be provided with notebooks and pens and told or their right to take notes or whether the matter should continue to be left to the discretion of the presiding judge.

V. INSTRUCTING THE JURY

6.17 A jury is obliged to follow the instructions on the relevant law that are given to them by the judge. The jury’s task is to apply those directions to the facts it determines have been established in arriving at a lawful verdict. We will see in Chapter 9 that the jury, ultimately, cannot be forced to apply the law as directed by the Nevertheless, the jurors are technically obliged to do so. The judge, on his or her, part, has an obligation “to direct the jury as to the principles of law which they should apply when considering the matters placed before them”.⁷ A great deal of our faith in the jury system is founded on the assumption “that a jury can be adequately informed of the law’s requirements by oral instructions from a judge”.⁸ It is, therefore, most important that the instructions are comprehensible to jurors, as well as being accurate, complete and unbiased. Studies in the United States and in flew South Wales have identified a number of problem areas in current summing-up practices. These are:

• timing of instructions;
• retention; and
• language.

This Part will. examine each of these problem areas in turn, assessing the empirical evidence and discussing proposed solutions.

A. Timing of Instructions

6.18 In current Australian practice it would appear that instructions of law, including those that are common to every criminal trial such as; the standard and burden of proof, are generally given to juries only after the evidence and the addresses of counsel. The danger in this practice is that the jury may have assessed the evidence when tendered on the basis of perhaps, inappropriate, irrelevant or mistaken ideas.

What manner of mind can go back over a stream of conflicting statements of alleged facts, recall the intonations, the demeanour, or even the existence (of the witnesses, and retrospectively fit all these recollections into a pattern of evaluation and judgment given him for, the first time after the event?⁹

One study has even shown that the judge’s instructions may only. have an effect on the jury’s decision when delivered at the commencement of the trial. In a test situation, decisions of mock jurors did not vary according to whether they were instructed at the end of the trial or not at all. Instructions only had an impact when given before the trial.¹⁰

6.19 We (consider that preliminary instructions would result in a fairer trial for two reasons First, the instructions would direct the jurors’ attention to the matters at issue, having an incidental beneficial influence on retentive capacity. Secondly, the jurors would be provided with the appropriate legal framework from the outset.¹¹ The current form of a typical summing-up supports this view. Usually the judge instructs on the relevant law first and then draws upon the evidence to illustrate the directions of law. The evidence is summarised in the context of the relevant law.

6.20 It is not suggested that preliminary instructions would substitute for the summing-up at the conclusion of the case.

They are intended to provide the jurors with an orientation on burden of proof, proper evidence, and witness credibility and with a summary of the issues they will be called on to decide.¹²

To take account of the possibility that the matters on which preliminary instructions have been given do not, in the event, arise during the trial, or that matters arise which are not covered by the preliminary instruction, it has been suggested that,

....the judge should warn the jury that issues may arise during the trial which the pre-trial instructions do not cover specifically. Likewise, the judge should warn the jury that early instructions may touch on issues which are not essential to the jury’s decision. In the final, corrective charge, the court should deliver revised instructions with specific and clear correction of any errors in the preliminary instructions.¹³

We have proposed above (paragraph 6.3) that the judge’s preliminary remarks should (cover, among other things, the law on matters such as the standard and burden of proof and the presumption of innocence. We invite submissions as to whether more detailed instructions of law, such as directions on the elements of the offence(s) charged, should be given at the beginning of the trial.

B. Retention

6.21 Common experience suggests that ordinary people are unable to concentrate for hours without respite on a monologue. Yet a judge’ s summing-up may last for hours, over, several days, and is delivered by a single speaker usually without visual aids. Appeal courts, examining the transcripts, generally assume that the jury, having heard the judge’s summing-up, both understood it and applied to. The jury could do neither if unable to concentrate on the delivery or to remember the content in the jury room. The Commission’s survey of jurors will question them on their views as to the conditions in which they were required to attend to a case, including the judge’s summing-up, and will invite them to offer suggestions for, improvement. At present we are of the view that attention should be directed to the following main areas:

• physical conditions;
• note-taking;
• brevity;
• visual aids; and
• provision of written instructions.

6.22 Concentration can be expected to be impaired when conditions are uncomfortable. In Chapter 5 we noted the complaints voiced by some jurors in a 1983 study by the New South Wales Law Foundation (paragraph 5.13) Proper physical conditions are clearly essential for efficient retention of the judge’ s instructions. The Commission’s survey of jurors seeks to find out whether any improvement has been made in conditions in the two and a half years since the above-mentioned study. The desirability of permitting jurors to take notes and have other documentary memory aids, as discussed above, applies equally when the judge is summing-up. Visual aids could be helpful where a trial has been lengthy and many witnesses have been examined.

6.23 Brevity is also important, both for retention and for comprehension. The judge’s instructions follow the addresses of counsel and the jury might well feel that they are being reminded a third time of the evidence. However, the judge will be concerned that the instructions survive any scrutiny they receive on appeal. This concern militates against brevity in the summing-up. At least onto judge in New South Wales has questioned the need to address the jury on every conceivable issue of law when the issue in dispute is clear. fir,. Justice Roden in Mills¹⁴ quoted Lord Hailsham in the House of Lords:

The purpose of a direction to a jury is not best achieved by a disquisition on jurisprudence or philosophy or ia universally applicable circular tour around the area of law affected by the case .... In the present instance there was only one issue of primary fact, the speed at which the cycle was travelling, and I doubt whether a direction could have been faulted if the jury had simply been told that if they were satisfied that the prosecution had proved that the accused had been travelling at a grossly excessive speed they were entitled to infer tthat he had been driving reckless and as a result had caused Mrs.C’s death ... ¹⁵

Mr. Justice Roden noted that it seemed still to be necessary in New South Wales “for every term used in relevant legislation to be defined, for a multitude of rules of law to be explained, and for every jury to be subjected to ... a ‘law lecture’, or a series of them”.¹⁶ The associated problem of repetition might be solved if instructions were given at the commencement of the trial and/or if a written copy or summary of the instructions were provided to the jury upon retiring. The need to repeat crucial matters several times in the summing-up could be obviated because the jury would already have obtained a good understanding of those points and would have been able to apply that understanding to the evidence as and when presented.

6.24 Research in the United States has shown that “jurors simply cannot remember, let alone master, instructions after having heard them only once”.¹⁷ Researchers have found that juries which have been given a written copy of the instructions perform more efficiently, engage in more informed deliberations, and feel more confident about their decisions.

....it could hardly be doubted that the jury would benefit from a written precis or some record of the summing-up for reference in their deliberations. Practical difficulties at once suggest themselves. However, it would certainly lessen the possibility of misunderstanding as to what the judge said without in any way removing from the jury a function which it alone can discharge.¹⁸

There is no doubt that a trial judge has a discretion to provide the jury with written directions to complement the oral summing-up, provided that the or she makes it clear that the written directions are to be used as an aid to understanding, and not in substitution for, the oral directions.¹⁹ The practical difficulties, however, are manifold. Most judges sum up to the jury from notes only, without having prepared a written address. While the judge’s words could be written and transcribed, it would be impractical to delay the jury’s deliberations while this was done. The transcribed instructions may, in some cases, contain a degree of repetition which is more confusing than helpful in written form.

6.25 The difficulties presented when a jury is provided merely with a summary of the oral directions are illustrated by the case of Petroff²⁰ In that case the jury members were each handed a lengthy document containing a summary of some of the relevant matters of law. The trial judge, in his oral summing-up, at times read from this document and at other times gave additional directions. While the majority of the Court of Criminal Appeal considered that the manner in which the directions were given and their content were of considerable assistance to the jury, a number of problems were identified. For example, there was the risk, acknowledged by the trial judge, that the jury might not pay full attention to the oral summing-up, but would tend to read the document before them. Is the document merely summarised some matters of law the jury could completely miss other matters. This difficulty could be resolved by keeping the summary from the jury until it retires to consider, its verdict. Even then, however, a summary is incomplete. In Petroff there was some concern that the jury would give little weight to the directions on the standard of proof because the document did not contain a statement on that subject. Although the trial judge had given an oral direction on standard of proof the jury could have given greater attention and weight to the directions of law set out in the written summary.

6.26 The cases in which judges, in their discretion, tend to adopt the procedure of providing to the jury a written summary of the directions of law are those in which very complex oral directions are required: provocation, self-defence and diminished responsibility are prominent.²¹ Without wishing to inhibit the judge’s discretion in this matter the Commission’s tentative view is that the risks associated with written directions make their use in short and straightforward trials impractical and possibly dangerous. We note, for example, that some judges in the United States have resisted providing juries with written instructions in the fear that they will become distracted and bogged down in legal argument or rely on one instruction to the exclusion of others.²²

C. Language

6.27 The first concern of researchers assessing the level of comprehension of instructions by juries is the language in which they are expressed. Legal jargon is properly understood only by lawyers and those working closely with them. Yet,

As trial instructions become subject to potentially demanding appellate review they become prolix, inconsistent” and excessively technical.²³

A large number of North American studies have shown that commonly used instructions are at; best poorly understood by juries.²⁴

6.28 The fault would seem not to lie with the complexity of the legal concepts themselves, although this is a common belief of lawyers. The results of one United States study “cast doubt on attorneys’ assertions that it is the conceptual complexity of a jury instruction what creates comprehension problems and that therefore rewriting instructions will not help”.²⁵ This study identified a number of linguistic constructions (and not just particular words) which were largely responsible for the poor comprehension of the instructions tested. Judges themselves ;ore not unaware of the difficulties. For example, Lord Diplock observed in D.P.P. v. Hester:

To incorporate in the summing up a general disquisition upon the law of corroboration in the sort of language used by lawyers may make the summing up immune to appeal upon a point of law, but it is calculated to confuse a jury of laymen and, if it does not pass so far over their heads that when they reach the jury room they simply rely upon their native commonsense, may, I believe, as respects the weight to be attached to evidence requiring corroboration, have the contrary effect to a sensible warning couched in ordinary language directed to the facts of the particular case.²⁶

Mr. Justice Roden of the Supreme Court of New South Wales, in an address appropriately entitled “The Law and the Gobbledegook”, stated,

One of the keys to effective communication is to use the language of the person to receive the message, rather than that of the person delivering it.²⁷

Following this argument through into his judgment in Petroff, Mr. Justice Roden said,

The summing up is an exercise in communication. It is designed to instruct and inform. Sometimes the directions to be given will be so simple and readily comprehensible as to require no more than mere statement. Sometimes they will be more difficult; ... Sometimes repetition, sometimes restatement, sometimes explanation, sometimes illustration, will be required. The language chosen will always be calculated to be readily understood. If principles have to be stated in terms not familiar or readily comprehensible to people not trained in semantic skills and not accustomed two drawing fine lines of distinction, such devices as paraphrasing, expanding, and illustrating, seem to be necessary, if understanding is to be secured.²⁸

6.29 it was with a view to ensuring that instructions would be understood by juries, that a committee of judges of the Supreme Court of New South Wales and of the District court of New South Wales sought the assistance of the Australian Institute of Criminology in developing standard instructions.²⁹ Standard instructions were first written by committees (of judges in the United States during the 1930’s.³⁰ They were not examples of instructions gleaned from appeal cases, but standardized instructions which could be adapted to different factual situations. Only recently have psycholinguists been involved in drafting standard instructions to’ add comprehensibility to the existing virtues of accuracy and convenience. After empirically testing the New South Wales draft instructions, the Australian Institute of Criminology researchers noted that they were not developed

... scientifically or with the assistance of psychologists trained in the use of language and communications. In other words, in the course of drafting, the instructions were not subjected to rigorous testing and analysis but merely developed intuitively by members of the Jury Committee.³¹

They recommended that,

... it would seem desirable to provide for a more structured approach to the development of standard jury instructions by employing a gradual process of empirical testing.³²

The Commission has been given the support of the judges concerned to conduct further research on the development of standard instructions for use in New South Wales.

6.30 Standard instructions are useful so far as they go. Not only must they be adapted to varying fact situations but different juries will respond in different ways. Ultimately the judge is responsible for ensuring that the jury has understood, and the or she can best do this by observing the jurors’ responses and demeanour. There is also a need to guard against a simple reading of the relevant standard instructions. The directions on the law must still be illustrated by reference to the evidence in the case. Moreover, reading is rarely as effective to method of communication as the current practice of speaking to the jury simply with the aid of notes. Nevertheless, if standard instructions can be developed which are based on established principles of effective communication, the task of the judges would, we believe, be made easier.

6.31 Two issues arise from the development of standard instructions. The first is whether judges should be required to use the instructions. The second is whether a jury could be assisted by having copies of the relevant standard directions in the jury room during deliberations. The difficulty with this second suggestion is that while the judge’s summing-up would relate the directions on law to the evidence in the case, the standard printed instructions would not. The jury could become more confused about the proper way to use the directions of law. The Commission invites submissions on these questions.

6.32 We do consider, however, that a jury would be greatly assisted both in recalling and applying the summing-up and in rendering a true verdict if it were to be provided with a printed document setting out the available verdicts for each charge. We discuss this matter further in Chapter 10 (paragraph 10.18) in the context of long and complex trials. We are tentatively of the view that, except where only one accused and one charge are involved and the verdict can be only guilty or not guilty, a written statement should be provided to the jury setting out the alternative verdicts possible for each charge.

VI. TENTATIVE PROPOSALS

6.33 In this Chapter we have identified a number of procedures common to most criminal trials which operate to diminish the efficiency and effectiveness of juries. We have tentatively proposed some alternative procedures to overcome these difficulties. They are:

1. Procedures should be formulated to ensure that the trial judge addresses jurors at the commencement of the trial on the following topics:

• the course the trial will take;
• the role of the jury; and
• the law on matters such as the standard and burden of proof and the presumption of innocence (paragraph 6.3).

2. Each juror, at the discretion of the trial judge, should be provided with a file containing the following documents:

• a copy of the indictment (paragraph 6.4);
• a copy of the documentary exhibits (paragraph 6.11); and
• a document setting out the alternative verdicts available to the jury (paragraph 6.31).

6.34 We have raised other issues about which we do not make tentative proposals.

• whether the jury, at the commencement of the trial, should be provided with a written statement of the facts to be proved by the Crown or of the elements of the offence(s) charged (paragraph 6.5);
• whether defence counsel should be permitted to open to the jury at the end of the Crown opening (paragraph 6.7);
• whether the jury should be provided with a glossary of legal terms (paragraph 6.8);
• whether counsel should be permitted briefly to introduce each witness by referring to the element(s) of the offence to which his or her evidence relates (paragraph 6.9);
• whether jurors should, as a matter of course, be provided with notebooks and pens and told of their right to take notes (paragraph 6.16);
• whether detailed instructions on the relevant law should be given at the commencement of the trial (paragraph 6.20);
• whether judges should be required to use standard forms to instruct juries cm relevant law where such forms are available (paragraph 6.30); and
• whether directions of law should be provided to the jury in writing (paragraph 6.30).

1. Law Reform Commission of Canada, The Jury in Criminal Trials (Working Paper 27, 1980), at pp 71-72.

2. “The Jury” (1968) Scots Law Times 183.

3. Director of Public Prosecutions, Victoria, Annual Report (1983-1984), at p.18.

4. Proceedings of the Sydney University Law School Institute of Criminology, The Criminal Trial on Trial, 30 June 1982, Sydney.

5. Law Reform Commission of Canada, The Jury in Criminal Trials (Working Paper 27, 1980) at pp 116-117; V.E. Flango, “Would jurors do a better job if they could take notes?” (1980) 63(9) Judicature 436, at p 437.

6. Law Reform Commission of Canada, The Jury in Criminal Trials (Working Paper 27, 1980), at pp.117-118.

7. R. v. Kemp (1950) 50 S.R. (N.S.W,) 1, at p.4, per Street A.C.J. See also R. v. Owen [1965] N.S.W.R. 1477, at pp,1482-1483, per Herron C.J.

8. D.U. Strawn and R.W. Buchanan, “Jury confusion: A threat to justice” (1976) 59(10) Judicature 478.

9. B. Prettyman, “Jury Instructions - First or Last?” (1960) 46 American Bar Association Journal 1066.

10. S.M. Kassin and L.S. Wrightsman, “On the Requirements of Proof: The Timing of Judicial Instruction and Mock Juror Verdicts” (1979) 17 Journal of Personality and Social Psychology 1877, at p.1881.

11. J.C. Coldberg, “Memory, Magic, and Myth: The Timing of Jury Instructions” (1981) 59 Oregon Law Review 451, at p.461.

12. W.W. Schwarzer, “Communicating with Juries: Problems and Remedies” (1981) 69 California Law Review 731, at p.755.

13. J.C. Coldberg, note 11 above, at p.470; see also Director of Public Prosecutions, Victoria, Annual Report (1983-1984), at P.17.

14. Mills, Sinfield and Sinfield, Supreme Court of New South Wales, Court of Criminal Appeal, 19 July 1985 (unreported).

15. Reg v. Lawrence [1982] A.C. 510, at p.519.

16. Mills, Sinfield and Sinfield, Supreme Court of New South Wales, Court of Criminal Appeal, 19 July 1985 (unreported).

17. W.W. Schwarzer, note 12 above, at p.756. See also R. Forston, “Sense and Non-Sense: Jury Trial Communication” [1975] Brigham Young University Law Review 601.

18. “Current Topics: The Task of the Jury” (1956) 29(9) Australian Law Journal 467.

19. Salem, Supreme Court of flew South Wales, 13-14 March 1979, unreported; Petroff [1980] 2 A. Crim. R. 101.

20. [1980] 2 A. Crim. R. 101.

21. Ruano, Supreme Court of New South Wales, 15 February 1977, unreported; Salem, Supreme Court of New South Wales, 13-14 March 1979, unreported; Petroff [1980] 2 A. Crim. R. 101.

22. W.W. Schwarzer, note 12 above, at pp.756-757.

23. Id., at p.736.

24. See, for example, R.P. Charrow and V.R. Charrow, “Making Legal Language Understandable: A Psycholinguistic Study of Jury Instructions” (1979) 79 Columbia Law Review 1306; A. Elwork, B.D. Sales and J.J. Alfini, Making Jury Instructions Understandable (Contemporary Litigation Series, Michie Co., Charlottesville Va., 1982), at pp.13-14; A.N. Doob and H. Kirshenbaum, “Some Empirical Evidence on the Effect of 5.12 of the Canada Evidence Act upon the Accused” (1973) 15 Criminal Law Quarterly 88; R.W. Buchanan, B. Pryor, K.P. or and D.U. Strawn, Legal Communication: An investigation of juror comprehension of pattern instructions, unpublished report cited by L.J. Severance and E.F. Loftus, “Improving the Ability of Jurors to Comprehend and Apply Criminal Jury Instructions” (1982) 17(1) Law and Society Review 153, at p.174; O’Reilly, “Why Some Juries Fail” (1974) 41 D.C.B.J. 69; R. Forston, note 17 above; D.U. Strawn and R.W. Buchanan, note 8 above.

25. R.P. Charrow and V.R. Charrow, note 24 above, at pp.1320, 1334.

26. D.P.P. v. Hesten [1973] A.C. 296, at pp.327-328.

27. The Hon. Mr. Justice Adrian Roden, “The Law and the Gobbledegook”, in Institute of Criminology, Criminal Evidence Law Reform (April 1981), at pp.28-29.

28. Petroff [1980] 2 A. Crim. R. 101, at pp.128-129.

29. I. Potas and D. Rickwood, Do Juries Understand? (Australian Institute of Criminology, 1984), at p.4.

30. R.G. Nieland, Pattern Jury-Instructions: A Critical Look at a Modern Movement to Improve the Jury System (American Judicature Society, 1979), at pp.6-7.

31. I. Potas and D. Rickwood, note 29 above, at p.6.

32. Id., at p.58.