Outline of trial procedure
The following provides a brief overview of pre-trial and trial procedures with reference to sections of this Bench Book. It is intended to assist a judge conducting a criminal trial. There are suggestions included which might be followed as a matter of practice by the trial judge but are not required by law.
The procedure for offences dealt with on indictment in the Supreme and District Court is set out in Ch 3 (ss 45–169) Criminal Procedure Act 1986.
Unless otherwise stated the section numbers below refer to the provisions of the Criminal Procedure Act. Paragraph references are to sections of the Bench Book.
As to trial procedures generally, see Criminal Practice and Procedure NSW, Pt 7, Trial Procedure.
[1-005] Pre-trial procedures
Trial court’s jurisdiction
The criminal jurisdiction of the District Court is contained in Pt 4 District Court Act 1973.
In the usual case the accused is committed for trial to the relevant trial court after a case conference certificate is filed or, if a case conference is not required to be held (because the accused is unrepresented or a question of fitness to be tried has been raised (s 93(1)) after a charge certificate is filed: s 95(1).
The indictment is to be presented to the trial court within a specified time after committal: s 129 and District Court Rules Pt 53. The trial court can make directions and orders even where the indictment has not been presented: s 129(4).
There can only be one operative indictment before the court: Swansson v R (2007) 69 NSWLR 406. However, the indictment can include multiple charges and multiple accused.
The DPP may present an ex officio indictment where the magistrate does not commit an accused for trial, where the charge in the indictment is different to the committal charge or even where there have been no committal proceedings: s 8(2). This is not a matter that will generally affect the course of the trial.
Generally it is sufficient if the charge in the indictment is set out in terms of the provision creating the offence: s 11. However, there is a common law requirement for particulars as to the place, time and manner of the commission of the offence to be included, see generally Criminal Practice and Procedure NSW [2-s 11.1].
After presentation, the court has general powers to conduct proceedings on that indictment, including the issuing of subpoenas: KS v Veitch  NSWCCA 186. The indictment can be amended at any time with leave of the court or the consent of the accused: s 20. The amendment can include the addition of further charges. Before trial the amendment can occur by the substitution of another indictment for that filed: s 20(3), see Criminal Practice and Procedure NSW [2-s 21.1]ff; Criminal Law (NSW) at [CPA.21.20]ff.
An arraignment occurs when the charge in the indictment is read to the accused who is asked to plead to the charge. The charge is usually read by the judge’s associate as “clerk of arraigns” but some judges prefer to undertake this task. If the plea is “not guilty” the accused stands for trial: s 154.
The accused should enter the plea personally. See generally, Amagwula v R  NSWCCA 156 at – (Basten JA; Lonergan J agreeing); – (Button J).
The accused may be represented by a legal practitioner or appear self-represented: s 36. The accused has no right to be assisted by a person known generally as a “McKenzie friend”: Smith v The Queen (1985) 159 CLR 532. It is rare to permit a person other than a legal practitioner to play an active role in the trial.
Generally the accused is placed in the dock, but may be permitted to remain outside the dock, particularly where self-represented: s 34. The history of s 34 was considered in R v Dirani (No 7)  NSWSC 945 and R v Stephen (No 2)  NSWSC 167. It is not prejudicial to require an accused to sit in the dock: R v Dirani (No 7) at ; R v Stephen at . The dock is the traditional symbol of what is at stake in a criminal trial and is a means of impressing on the community, and the jury, the gravity of the proceedings: R v Dirani (No 7) at ; R v Stephen (No 2) at .
If there is more than one charge, the accused is asked to plead to each individually as each charge is read out. Where there are multiple accused they can be arraigned on different occasions.
Where multiple accused are before the court, they can be arraigned individually or together depending upon what course is more convenient having regard to the nature of the charges.
There will be no arraignment where:
a question has arisen as to the accused’s fitness to stand trial, see [4-300]
there is an application to stay the indictment, see Criminal Practice and Procedure NSW [2-s 19.5]ff; Criminal Law (NSW) at [CPA.19.60]ff
there is an application to quash the indictment or to demur to the indictment: ss 17, 18, see Criminal Practice and Procedure NSW [2-s 17.1]ff; Criminal Law (NSW) at [CPA.17.20]
the court permits time before requiring a plea to the indictment: s 19(2), see Criminal Practice and Procedure NSW [2-s 40]ff; Criminal Law (NSW) at [CPA.19.40]ff.
There is a general power to adjourn proceedings: s 40.
As to the necessity to re-arraign the accused after an amendment of the indictment see Kamm v R  NSWCCA 201.
There are a number of special pleas that can be made to the indictment. These are rare but include a plea of autrefois: s 156. Such a plea is determined by a judge alone. The accused may plead not guilty to the charge stated in the indictment but plead guilty to an offence, not set out in the indictment, but included in the charge: eg plea of guilty to offence of robbery on charge of armed robbery. The Crown may accept the plea in discharge of the indictment or refuse to do so: s 153. If the Crown does not accept the plea, it is taken to have been withdrawn. If the accused pleads not guilty to the primary charge but guilty to an alternative count on the indictment and that plea is not accepted by the Crown in discharge of the indictment, the plea to the alternative count remains but the accused is placed in charge of the jury on the primary charge only, see Criminal Practice and Procedure NSW at [2-s 153.1]; Criminal Law (NSW) at [CPA.154.120].
Section 130 provides that, where the accused has been arraigned, the trial court may make orders for the conduct of the trial before the jury is empanelled. Chapter 3, Pt 3, Div 3 of the Act makes provision for the court to order pre-trial hearings, pre-trial conferences and further pre-trial disclosure. The purpose of these provisions is to reduce delay in the proceedings. It is for the court to determine which (if any) of those measures are suitable: s 134(2). The accused is required to give notice of alibi (s 150) and evidence of substantial mental impairment (s 151).
It is suggested that before the date of the trial the judge ask the defence whether there is a challenge to the admissibility of evidence in the Crown case and request the parties to define the issues to be placed before the jury. In particular the judge should identify whether evidence challenged will substantially weaken the Crown case and, therefore, may engage s 5F(3A) Criminal Appeal Act 1912 if the ruling is made against the Crown. Any such ruling should be made before the jury is empanelled in case the Crown appeals the ruling.
Before embarking upon any pre-trial application the trial judge should ensure the accused has been arraigned.
Orders or directions made after arraignment but before empanelment of a jury include:
order for a separate trial of offences or offenders: s 21, see [3-360]
(for State offences only) an order for trial by judge alone: ss 131-132A and see R v Belghar  NSWCCA 86. The provisions do not apply to Commonwealth offences: Alqudsi v The Queen (2016) 258 CLR 203 at .
evidentiary rulings including those where the leave of the court is required: s 192A Evidence Act 1995
orders for closed court, suppression and non-publication of evidence. See general discussion of Court Suppression and Non-publication Orders Act 2010 at [1-349]ff. As to other statutory provisions empowering non-publication or suppression, or self-executing prohibition of publication provisions, see [1-356]ff
change of venue: s 30, see Criminal Practice and Procedure NSW at [2-s 30.5]; Criminal Law (NSW) at [CPA.30.20].
Any orders made by the court before a jury is empanelled are taken to be part of the trial: s 130(2). Pre-trial orders made by a judge in proceedings on indictment are binding on a trial judge unless it would not be in the interests of justice: s 130A. Section 130A orders extend to a ruling given on the admissibility of evidence: s 130A(5) (inserted by the Statute Law (Miscellaneous Provisions) Act (No 2) 2014).
Section 306I Criminal Procedure Act 1986 provides for the admission of evidence of a complainant in new trial proceedings. Under s 306I(5), the court hearing the subsequent trial may decline to admit the record of evidence if the accused “would be unfairly disadvantaged”. Section 306I(5) is directed to the position after specific questions of admissibility, determined under the Evidence Act 1995, have been addressed and permits the court to have regard to the effect of any edits to the record of evidence: Pasoski v R  NSWCCA 309 at .
Sexual assault communications privilege
In sexual assault trials, there are special provisions associated with the production, and admissibility, of counselling communications involving alleged victims of sexual assault. These are in Ch 6, Pt 5, Div 2 of the Criminal Procedure Act “Sexual assault communications privilege” (SACP).
As a general rule, a person in possession of such material cannot be compelled to produce it in trials, sentence proceedings, committal proceedings or proceedings relating to bail: ss 297, 298. The relevant definitions are found in ss 295 and 296.
See further [1-895] Sexual assault communications privilege.
[1-010] The trial process
If the accused is self-represented, the judge is obliged to explain the trial process to the accused before the jury is empanelled. See generally [1-800]ff and [1-820].
Any interpreter who is present to assist the accused need not be sworn. The interpreter should be placed so that he or she may communicate with the accused.
Generally all proceedings in connection with a criminal trial should be heard in open court. There are statutory provisions restricting publication of evidence, for example where children are involved either as an accused or a witness. The court also has power to have a witness referred to by a pseudonym. There are provisions relating to witnesses giving evidence by alternative means, as to which see below.
Empanelling the jury
Provisions concerning the jury are found in the Jury Act 1977.
A jury panel is summoned by the sheriff and brought into court when required. Practice varies as to whether the judge is on the Bench when the panel is brought into court.
It is suggested that before the panel is brought into court the judge discusses with counsel matters that should be raised with the panel at the outset because they may impact upon a juror’s willingness to perform his or her duty, such as the length of the trial, pre-trial publicity and the particular nature of the charge.
The judge can determine whether to excuse any person in the panel: s 38 Jury Act. Generally the sheriff’s officer will bring written applications for excusal to the judge for approval. The judge can determine to have the prospective juror make the application in person after the panel is brought into court.
It is suggested that the trial judge inquire of the panel whether any person wishes to be excused for some reason, even though an application may have been refused by the sheriff, based on any matter raised with counsel or otherwise. For example, the jury should be informed that the proceedings will be in English, the sitting times of the court and the need for attendance every day. It is a matter for the judge whether the prospective juror should be sworn or not when seeking to be excused.
It is possible to challenge the array before empanelment but this is very rarely done: s 41 Jury Act. This is a challenge against the processes of the sheriff in selecting the panel.
If pre-trial rulings have been made pursuant to s 130(2) the accused is to be arraigned again on the indictment before the jury panel: s 130(3); DS v R  NSWCCA 159 at . Otherwise, although it may not be strictly necessary for the accused to be re-arraigned before the jury panel (R v Janceski (2005) 64 NSWLR 10), it is good practice to do so.
After the accused is arraigned before the panel but before the selection of jurors, the judge requests the Crown to inform the jury panel members of the nature of the charge, the identity of the accused and of the principal witnesses to be called for the prosecution: s 38 Jury Act, see [1-455]. The defence counsel should be asked whether there is any matter that should be raised with the jury, such as the names of defence witnesses. It is suggested that the Crown and defence counsel should also be invited to provide the names of persons who will be mentioned during the trial, even though they are not, or may not be, witnesses.
See s 38(1) Jury Act and cl 5 Jury Regulation 2015 in relation to the non-disclosure of the identity of certain officers and protected witnesses.
The judge calls on the jury panel members to apply to be excused if they consider that they are not able to give impartial consideration to the case in light of what the prosecutor has said, and in particular whether a potential juror may know a witness personally: s 37(8) Jury Act. The judge should also invite excusal applications to be made for other reasons that may impact upon a person's ability to participate as a juror (e.g. because of the awareness of pre-trial publicity, oral and written English language skills, sitting times and the estimated duration of the trial).
In a trial where it is anticipated there will be a large number of witnesses, it may be desirable that the panel members be provided with a list of witnesses (and other people who may be mentioned). The jury panel may be sent to the jury assembly area for members to have an opportunity to consider the list. They should be directed not to have discussions with other panel members. Those wishing to make an application to be excused may then be returned to the court room for it to be considered by the judge.
There are various ways in which applications to be excused may be received and considered. The person may be asked to come forward and inform the judge of the basis of the application. It is preferable that they do not speak in a manner audible to the balance of the jury panel. The person may make the request in writing if the circumstances relate to the person's health or may cause embarrassment or distress (s 38(3) Jury Act). Another option for the making of excusal applications is for writing material to be made available in the body of the court where the panel members are located for all applications to be made by way of a note. The sheriff or court officer can then provide the note, and the panel member's card, to the judge to consider the application. However the application is made, the judge may clarify with counsel whether the matter raised should warrant the person being excused (eg. in the case of the person knowing a witness).
There is no requirement for excusal applications to be made by way of oath or affirmation.
After the excusal applications have been determined and before proceeding with the empanelment it is wise to reiterate to the jury panel members the importance of raising any matter of concern at this time rather than thinking that the matter may not cause a problem but then to find out sometime during the trial that it is.
The jurors are selected by ballot in open court: s 48 Jury Act. The selection of the potential jurors is performed by the judge’s associate withdrawing cards from the box provided. The jurors are referred to only by numbers given to them by the sheriff. The parties have no right to the names or any other personal information of prospective jurors: R v Ronen  NSWCCA 176. As to the selection of the jury generally and challenges, see Pt 7 Jury Act and [1-460]ff. See also Criminal Practice and Procedure NSW at [7-450], [29-50,725].
As to the number of jurors and the selection of additional jurors where necessary, see s 19 Jury Act and [1-440].
A challenge can be made by the accused or the legal representative: s 44 Jury Act. Defence counsel will usually ask to be permitted to assist the accused, and permission is inevitably given. The challenges are made before the juror is sworn. There is some opportunity to inspect the prospective juror before a challenge is made under s 44. See the discussion in Theodoropoulos v R (2015) 51 VR 1 at .
Practices as to empanelling can vary. One method is that the jury be advised that they will be permitted to take an oath or an affirmation as to the conduct of his or her duties as a juror. They should also be advised as to the right of the parties to challenge particular jurors. The twelve prospective jurors are called into the box. The accused is informed of the right to challenge by the clerk of arraigns. There is a pause as the prospective juror stands so as to allow time for a challenge to be made. If challenged, the juror is asked to leave the jury box. Further jurors are called and challenges taken until the required number of jurors is obtained.
After members of the jury have been chosen, the jury is sworn by oath or affirmation: s 72A Jury Act. It is a matter for the practice of the individual judge whether the jury is sworn as a group or individually and also as to whether a religious text is to be held by those taking an oath: s 72A(5) Jury Act. It is not necessary for the accused to be arraigned again after the jury is selected: DS v R  NSWCCA 159 at . After the jurors are sworn the balance of the panel is returned to the sheriff and leaves the courtroom.
After the jury is sworn, the accused is given or placed into the charge of the jury by the judge’s associate. This is in effect indicating to the jury the charges in the indictment and the jury’s duty to act according to the evidence.
It is suggested that where the indictment contains a number of counts or multiple accused the Crown be requested to provide the jury with a copy of the indictment at this time or shortly thereafter. It can be helpful for the judge in opening for the jury to have a copy of the indictment where there are numerous or complicated charges.
It is suggested that after the jury has been charged, the judge tells the jury that it does not have to elect a foreperson immediately, it can change the foreperson at any time, the major function of the foreperson is to deliver the verdict but he or she can be the person who communicates between the jury and the judge, but the foreperson has not more rights in respect of the conduct of the jury or the determination of the verdict than any other member of the jury.
Where at any time during the trial the accused wishes to plead guilty, he or she should be arraigned again. If there is a plea of guilty to the charge or an included charge and the plea is accepted by the Crown, the jury is to be discharged without giving a verdict: s 157.
After empanelment some judges think it appropriate for the court attendant to give a direction that potential witnesses leave the court and the hearing of the court.
Adjournment after empanelling
It is suggested that immediately after the jury has been empanelled and charged, that they are given a short break in order to orientate themselves as a group, familiarise themselves with the surroundings and overcome any nervousness that may have been occasioned by the procedure of empanelling. They might be informed that, when they return to the courtroom, an explanation of their role and function as jurors and an outline of the trial procedure will be given to them before the trial proper commences.
See generally [1-470], [1-480] and [1-490] for the suggested contents of the opening.
The trial judge should briefly describe to the jury the trial process, the role and obligations of jurors, the onus and standard of proof, the duties and functions of counsel and, where known, the issues to be raised in the trial. If appropriate, the judge can briefly explain the nature of the charge or charges in the indictment. These remarks should be tailored to the particular case that the jury is to try. For example, the trial judge may consider what, if anything, needs to be said about pre-trial publicity.
It is suggested that each member of the jury be provided with a written document which can be referred to in the course of the opening and left with the jury during the trial (see the suggested written directions at [1-480]). It is a matter for the judge what issues should be addressed in the written document but it is suggested that it should at least include a brief explanation of the following:
the respective role of a judge and a jury
the nature of a criminal trial
the onus and standard of proof
the imperative of not discussing the trial with any person outside the jury room
the duty of jurors to bring irregularities in the conduct of the trial to the judge’s attention and report any juror misconduct
the prohibition against making inquiries outside the courtroom including using the Internet or visiting the scene of the crime and indicating that such conduct is a criminal offence
that they should discuss the matter only in the jury room and when they are all assembled
that they should ignore any media reporting of the trial
the principal issues in the case if they are known.
The judge should make some oral reference in opening to the following practical matters:
breaks and refreshments
selecting a foreperson
the jury can request transcript at any time and in respect of any witness, although they should also be informed that this does not apply to evidence which is pre-recorded.
It should be made clear to the jury that any concern about the evidence or the conduct of the trial should be raised by a note with the judge and not with a court attendant.
[1-015] The course of the evidence
The opening address of the Crown is a succinct statement of the nature of the charge and a brief outline of the Crown case. The Crown may refer to the witnesses it intends to call and what evidence it is anticipated that a particular witness will give: see Criminal Practice and Procedure NSW at [7-475]; Criminal Law (NSW) at [CLP.1780]. The Crown should indicate in opening whether it relies upon any statutory or common law alternatives to the offence charged in the indictment. The Crown can be asked not to open on evidence to which objection will be taken but where admissibility has not been determined.
Counsel for the accused can open but it should only be to indicate the issues in contention and not be a wide ranging discussion of the law: s 159(2) and R v MM (unrep, 9/11/2004, NSWCCA) at , , .
Witnesses in the Crown case
It is a matter for the Crown how it structures its case, what witnesses to call and the order of calling witnesses.
In a joint trial it is suggested that the judge ask the Crown Prosecutor to identify evidence which is admissible against one accused but not against another (or others) at the time the evidence is led. The judge should make clear to the jury how the evidence can be used or not used against each accused.
Procedures can be adopted to preserve the anonymity of witnesses where necessary: see BUSB v R (2011) 80 NSWLR 170. Generally the judge has no role to play in the calling of witnesses.
There are several statutory provisions that permit witnesses to give evidence by alternative means. See generally [1-360]ff . When these provisions are utilised, the judge is required by statute to explain the procedure to the jury. There are suggested warnings and directions contained in the chapter. In particular where the evidence of a witness is given by way of a recording, it is important to impress on the jury before they watch the recording, that evidence given in this way is evidence like that of any other witness so they should concentrate while the recording is being played as they should not assume they will have the opportunity to watch the evidence again.
It is suggested that these explanations and directions are given at the time the witness is to be called and before the witness is called. They may be given again in the summing up, if it appears necessary to do so to ensure the jury is aware of these matters before deliberating.
As to giving evidence by the use of a video recording, see [1-372]ff.
As to evidence by audio-visual link, see [1-380].
If a witness is unfavourable within the terms of s 38 Evidence Act 1995 specific directions may be required, see [4-250]ff. Directions may be necessary if a relevant witness is not called by the Crown, see Witnesses — not called at [4-370].
If a witness objects to giving particular evidence or evidence on a particular matter under cross-examination, the judge is required to explain to the witness in the absence of the jury the privilege against self-incrimination, see [1-700]ff.
As to the power to give the witness a certificate, see s 128 Evidence Act and [1-710].
As to expert evidence see [2-1100]ff.
Where there is some complexity in the expert evidence it is suggested that the jury be given the opportunity to raise any matter they would like to be further explained or clarified. The jury could be asked to retire to the jury room to consider whether there is anything they wish to raise before the expert is excused and to send a note which the judge will then discuss with counsel.
As to jury questions generally, see Jury questions for witnesses at [1-492] and Expert evidence at [1-494].
Directions and warnings
During the course of the Crown case a witness or a particular type of evidence may be called in respect of which it may be necessary to give a direction or warning to the jury, generally see s 165 Evidence Act. A direction is “something which the law requires the trial judge to give to the jury and which they must heed”: Mahmood v State of WA (2008) 232 CLR 397 at . A direction may contain warnings or caution the jury about the care needed in assessing evidence or about how it can be used: Mahmood at .
The usual instance where a warning is required is the categories of evidence found in s 165(1). These are addressed in the following sections of this Book:
evidence which may be affected by age, see [1-130]ff
evidence given by a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding, see [4-380]ff
evidence given by a witness who is a prison informer, see [3-750]ff
oral evidence of questioning by an investigating official of a defendant that is questioning recorded in writing that has not been signed, or otherwise acknowledged in writing, by the defendant, see [2-120].
The matters referred to in s 165(1) above are not exhaustive. A warning may be given (where there is a jury and a party so requests) in relation to evidence “of a kind that may be unreliable” (s 165(1)) ie evidence of a kind that the courts have acquired a special knowledge about: R v Stewart (2001) 52 NSWLR 301 at . A warning under s 165 is not required for evidence which relates to the truthfulness of a witness such as evidence of a motive to lie, bias, concoction, or a prior inconsistent statement. Such matters are within the common experience of the community and thus capable of being understood by the jury: R v Fowler  NSWCCA 321. This proposition does not of course apply to a witness who falls into one of the categories mentioned in s 165.
Section 165(5) preserves the power of a judge to give a warning or to inform the jury about a matter arising from the evidence, whether or not a warning is requested under s 165(2): R v Stewart at .
Warnings and exculpatory evidence
A warning under s 165 will rarely be applicable to a witness who does not give evidence implicating the accused: R v Ayoub  NSWCCA 209 at . A warning is not appropriate or required if the evidence is favourable to the accused because “the aspect of the witness’s status that gives rise to the possibility of unreliability is no longer relevant”: R v Ayoub at .
However there are some types of evidence, such as identification evidence and hearsay evidence, that are potentially unreliable no matter whether they exculpate or inculpate an accused: R v Rose (2002) 55 NSWLR 701 at . Some warning is required about the potential unreliability of the evidence: R v Rose at .The judge should exercise care before giving a s 165 warning to evidence led by the defence.
Section 165A Evidence Act also addresses judicial warnings in relation to the evidence of children, see [1-130]ff. Section 165B Evidence Act provides for a warning where there is a delay in prosecution, see [2-640]ff.
A direction is usually required in relation to:
A direction or warning is not the same as a comment and generally a comment will be inadequate if a warning or direction is required.
It is suggested that directions and warnings about particular types of evidence or witnesses be given at the time the evidence is called before the jury. If the evidence is very prominent in the trial it may be appropriate to give the direction or warning immediately after the opening addresses, for example where the Crown case is solely or substantially based upon visual identification. Directions and warnings should also be repeated in the summing up. It may be appropriate to give a direction or warning in writing at the time it is given orally to the jury, or for it to be included in the written directions in the summing up depending upon the significance of the evidence to the Crown case.
The trial judge should be seen as impartial and must take care not to become too involved in the conduct of the trial, in particular in questioning witnesses: Tootle v R (2017) 94 NSWLR 430 at . It is for the parties to define the issues to be determined by the jury. A cardinal principle of criminal litigation is that the parties are bound by the conduct of their counsel: Patel v The Queen (2012) 247 CLR 531 at .
A judge should generally not reject evidence unless objection is taken to it: FDP v R (2009) 74 NSWLR 645. However a judge is required to reject a question asked in cross-examination that is improper within the terms of s 41 Evidence Act even where there is no objection taken to the question, see [1-340].
The Crown must call all its evidence in the Crown case and cannot split its case by calling evidence in reply where it could have anticipated the evidence to be called by the defence: Shaw v R (1952) 85 CLR 365. The Crown may be permitted to reopen its case in order to supplement a deficiency in its case that was overlooked or is merely technical: Wasow v R (unrep, 27/6/85, NSWCCA). This can occur at any time provided it does not result in unfairness: Pham v R  NSWCCA 194 (after the Crown had started to address); Morris v R  NSWCCA 152 at .
Where there is more than one accused cross-examination occurs in the order in which the accused are named in the indictment unless counsel come to some other arrangement.
As to the procedure in respect of carrying out a view, see [4-335]ff. It is usual to appoint a “shower” being a person who will indicate various aspects of the scene to the jury in accordance with the evidence. This is often the police officer in charge of the investigation. The accused does not have to be present at the view but he or she has the right to attend: Jamal v R  NSWCCA 198 at . It often occurs that the accused chooses not to because of the prejudicial effect if the accused is in custody.
It is suggested that the police be asked to take a video recording of the view so that it can later be tendered in evidence. The recording should be made so as not to disclose members of the jury, but to record what is said by the shower and, if possible any questions asked by the jury and the answers given by the shower.
The jury may be supplied with the transcript or part of it, including addresses and, if available, the summing up or part of it: s 55C Jury Act: R v Ronald Edward Medich (No 24)  NSWSC 293. The provision of transcript is a discretion exercised by the trial judge, but there may be cases where the nature of the charges, the volume of evidence and the fragmented nature of the hearing require that the jury be provided with the transcript where they request it: R v Bartle (2003) 181 FLR 1 at -, .
It is suggested where a daily transcript service is being provided, that a clean copy of the transcript on which agreed corrections are recorded should be kept in a folder by the judge’s associate in case the jury later request the transcript or part of it. It is helpful to have the transcript tabbed according to the name of witnesses.
Practices differ as to whether the jury is provided with the transcript daily as a matter of course or only when the jury requests the transcript. It can be provided at any time, even during deliberations. Where the jury is provided with part of the transcript, fairness may require that they be provided with some other part of the transcript. A suggested direction in regard to the use of transcripts is given at [1-530].
It is suggested that before transcript is given to the jury, counsel should be requested to ensure that the copy to be handed to them does not contain any material arising from applications or discussion that took place in the absence of the jury.
Close of Crown case
At the conclusion of the Crown case, if the evidence taken at its highest is defective such that the Crown cannot prove the charge to the requisite degree, the judge has a duty to direct an acquittal, see [2-050]ff. For a recommended direction to the jury, see [2-060]. The judge has no power to direct an acquittal because he or she forms the view that a conviction would be unsafe: R v R (1989) 18 NSWLR 74; Doney v R (1990) 171 CLR 207.
As the Crown has the right of an appeal against an acquittal by direction full reasons should be given at the time of the acquittal or immediately thereafter.
In Director of Public Prosecutions Reference No 1 of 2017  HCA 9, the High Court held that a “Prasad direction” (so named from R v Prasad (1979) 23 SASR 161) should never be given. The direction, which it was intended would be sparingly given, was that a jury could acquit at any time without hearing any more evidence or the addresses. A Prasad direction should not be given in any case.
Where the accused intends to give or tender evidence or call witnesses, defence counsel may open the accused’s case to the jury: s 159.
The accused may call evidence as to character generally or in a particular aspect, see s 110 Evidence Act, the discussion and suggested directions at [2-350]ff. The Crown can adduce evidence to rebut the accused’s claim that he or she is a person of good character either generally or in a particular respect: ss 110(2), 110(3). Cross-examination on character can only be with leave: s 112 Evidence Act. As to cross-examination of the accused generally, see [1-343].
The accused should not be prevented from giving evidence on a particular topic simply because the matter was not raised with the Crown witnesses in cross-examination: Khamis v R  NSWCCA 179. A non-exhaustive list of possible responses by a court to a breach of the rule in Browne v Dunn appears in R v Khamis at -. If the accused’s evidence is allowed and there has been a breach of the rule the trial judge may fashion appropriate and careful directions to the jury: see also RWB v R  NSWCCA 147 at , . See further commentary at [7-040] at .
There is no requirement that the accused give evidence before calling other witnesses although there is a general practice to that effect: RPS v The Queen (2000) 199 CLR 620 at - and see the discussion in R v RPS (unrep, 13/8/97, NSWCCA).
See defences from [6-050]ff.
As to intoxication, see [3-250]ff.
Case in reply
Because of the rule against the Crown splitting its case, the circumstances in which the Crown will be permitted to call evidence in reply must be very special or exceptional having regard to all the circumstances including whether the Crown could reasonably have foreseen the issue before the close of its case: Morris v R  NSWCCA 152.
The Crown can call evidence in reply to evidence given by the accused of alibi or substantial impairment: ss 150(5), 151(3). However, in practice the Crown calls rebuttal evidence in the Crown case. The judge can direct the Crown to call the evidence in its case: R v Fraser  NSWSC 965.
Discharge of the jury
Part 7A of the Jury Act deals with the discharge of jurors. The trial judge has a discretion to discharge a juror and, if the juror is discharged, a separate and distinct discretion whether to continue with the trial with less than twelve jurors (s 53C): BG v R  NSWCCA 139 at . These discretions should be exercised independently. As to the discharge of individual jurors, see [1-505], and a suggested direction following a discharge, see [1-515]. For further information in relation to the discharge of the whole jury, see [1-520]. As to questioning jurors in relation to prejudicial material, see s 55D Jury Act. If the judge is required to examine a juror in respect of alleged misconduct, see s 55DA Jury Act.
It may be necessary to question a juror or jurors about the matter giving rise to the issue of discharge. It is suggested that this should be carried out by the judge after consultation with counsel, but counsel not be permitted to question the juror. Any questioning should not enter into the area of the jury’s deliberations.
It is suggested that before addresses the judge should discuss with counsel the issues that have been raised and what warnings or directions will be sought in the summing up. In particular, the Crown should indicate whether it relies upon any alternative counts in light of the evidence given during the trial.
It is suggested that unless the case is a legally simple one, written directions be given to the jury before counsel addresses as to the elements of the offence and any relevant legal issues with some short oral directions explaining these matters without reference to the evidence. This course relieves counsel from having to deal with the law, and gives the jury written guidance on the legal issues to which counsel can refer when addressing. The written directions should be shown to counsel before being given to the jury.
It is suggested that counsel be asked to break up their addresses into sections lasting no more than 40 minutes and that the jury be given a short break at the end of each section.
The Crown addresses first and may be permitted a further address where factual matters have been misstated in the defence address: s 160. This is rarely permitted having regard to counsel having an opportunity to correct errors and/or the judge doing so.
There is a practice that the Crown will not address where the accused is unrepresented, but there is no rule that prohibits the Crown from doing so, see [1-835]. The accused should not be able to achieve a tactical advantage by dismissing defence counsel before addresses.
As to the contents of the Crown address, see Criminal Practice and Procedure NSW at [7-600]; Criminal Law (NSW) at [CLP.1780].
[1-025] Summing up
As to summing up the case to the jury, see [7-000]ff. As to the provision of written directions, see [1-535]. The summing up should be concerned only with issues actually raised at the trial. The jury should be directed on only so much of the law that is necessary to determine the charge or charges before them: Huynh v The Queen  HCA 6 at .
Suggested directions are contained in the Bench Book under particular topics. They should be adapted where necessary to deal with particular factual situations arising in the trial. A trial judge is not required to give directions in accordance with those contained in the Bench Book: Ith v R  NSWCCA 70 at .
It is suggested that the summing up be delivered in sections of no more than 40 minutes and the jury be given a short break between each section. It is suggested that when the jury retires for a break that counsel be asked whether there is anything they wish to say about the section of the summing up that has just been given.
Before the jury are sent out to deliberate, the judge should ask both counsel (and in the absence of the jury if necessary) whether there are any errors or omissions to be corrected. If counsel wish to have a particular direction given, counsel should frame the direction sought.
Where there are multiple accused and/or multiple counts it may be desirable for a "verdict sheet" to be provided to the jury upon which the verdicts may be recorded to assist the foreperson in announcing each of them.
When the jury retires to deliberate, exhibits should be sent to the jury room. Where the evidence of a child has been given by a video recording, the recording is not an exhibit and should not be sent to the jury room, see a discussion of R v NZ (2005) 63 NSWLR 628 at [1-378]. The judge has a discretion to withhold an exhibit from the jury room.
It is suggested that counsel should check the exhibits being sent to the jury to ensure that only exhibits find their way into the jury room and not extraneous material that has inadvertently found its way into the exhibits.
[1-030] Jury deliberations
As to jury questions during deliberations, see [8-000]. It is imperative that a verdict not be taken until the judge has addressed all the questions from the jury: R v McCormack (unrep, 22/4/96, NSWCCA). Where a question manifests confusion, it is important that this be removed by answering the question even where the jury has apparently resolved the issue: R v Salama  NSWCCA 105 at .
It is normal practice to re-assemble the court shortly before 4 pm in order to inquire of the jury whether they wish to continue to sit or to retire for the day and return the following morning. The jury should indicate the time at which they wish to recommence their deliberations.
An order should be made permitting the jury to separate if the jury wish to return the next day: s 54 Jury Act.
It is suggested that it be stressed to the jury that, although they are being permitted to separate, they should not discuss the matter with any other person nor with fellow jurors until after they have all reassembled in the jury room the next day.
Where the jury indicates it is unable to agree it may be necessary to give a “Black direction”, see [8-050]ff.
Return of the jury
As to taking the verdict of the jury, see [8-020] for Commonwealth offences and [8-030] for State offences.
A jury should not be questioned as to the basis of its guilty verdict, for example where manslaughter has been left on different bases, see [8-020] at .
As to prospects of disagreement and the taking of majority verdicts, see [8-050].
The jury is to be discharged immediately after delivering its verdict: s 55E Jury Act.
It is suggested that the jury be advised as to the existence of the offence under s 68A of the Jury Act in relation to soliciting information from or harassing a juror. It should also be warned of the offences under s 68B as to the disclosure of information as to the deliberations of the jury.
The verdict should be entered by the judge’s associate on the back of the indictment noting the date and time of the verdict.
Some judges have the allocutus given to the accused by the associate after a verdict of guilty, see [8-020] at . This is not essential. The trial judge will usually formally convict the accused where a guilty verdict has been returned and before adjourning the matter for sentencing proceedings, if such an adjournment is sought.
The exhibits and MFI’s should be returned to the relevant party.