Jury
The following discussion deals with issues relating to the jury. Unless otherwise stated a reference to a section of an Act is a reference to a section of the Jury Act 1977 (NSW). For further information about empanelling the jury see [1-010].
[1-440] Number of jurors
The number of jurors in a criminal trial is determined by s 19. There is provision for the empanelment of additional jurors. That section applies to the trial of Commonwealth offences: Ng v The Queen (2003) 217 CLR 521.
The number of jurors can be reduced in accordance with s 22. That section applies to a trial of Commonwealth offences: Brownlee v The Queen (2001) 201 CLR 278; Petroulias v R (2007) 73 NSWLR 134.
[1-445] Anonymity of jurors
Potential jurors are not required to disclose their identities except to the sheriff: s 37. They are to be referred throughout the proceedings by numbers provided to them by the sheriff: s 29(4). The defence is not entitled to any information concerning any of the jurors: R v Ronen [2004] NSWCCA 176.
[1-450] Adverse publicity in media and on the internet
An adjournment of a trial or a stay of the prosecution may be granted because of adverse media publicity. The court proceeds on the basis that the jurors will act in accordance with their oaths and directions given against being prejudiced by media publicity and opinions disseminated in social media. A stay will only be granted where no action can be taken by the judge to overcome any unfairness due to publicity taking into account the public interest in the trial of persons charged with serious offences.
Generally see The Queen v Glennon (1992) 173 CLR 592 at 605–606; Skaf v R [2008] NSWCCA 303 at [27]; R v Jamal (2008) 72 NSWLR 258 at [16]; Dupas v The Queen (2010) 241 CLR 237 at [35]–[39]; Hughes v R (2015) 93 NSWLR 474 at [61]–[86].
[1-455] Excusing jurors
The trial judge must direct the prosecutor to inform the members of the jury panel of the nature of the charge, the identity of the accused and the principal witnesses to be called: s 38(7)(a). The judge then calls upon members of the panel to apply to be excused if they cannot bring an impartial consideration to the case: s 38(7)(b). The judge can determine such applications or any other application for a potential juror to be excused: s 38.
If the case is likely to involve non-verbal evidence (eg transcripts of recordings of conversations in a foreign language) that would be challenging for a person with less than optimal reading skills, members of the jury panel should be so informed and applications to be excused for this reason should be invited.
Note: s 38(10) and cl 6 Jury Regulation 2022 as to non-disclosure of certain identities. See Criminal Practice and Procedure NSW at [29-50,605.5]. See Dodds v R [2009] NSWCCA 78 at [61] as to the procedure in such a case.
[1-460] Right to challenge
The right of the parties to challenge jurors is contained in Pt 6 of the Act. Section 41 preserves the right to challenge the poll and array: see Criminal Practice and Procedure NSW at [29-50,725]ff, Criminal Law (NSW) at [JA.41.20].
Section 42 provides for peremptory challenges. These may be made by a legal practitioner on behalf of the accused: s 44.
A challenge for cause is to be determined by the trial judge: s 46. As to challenge for cause see Criminal Practice and Procedure NSW at [29-50,750]ff; Criminal Law (NSW) at [JA.46.20].
[1-465] Pleas
Pleading on arraignment is dealt with in Pt 3 Div 5 Criminal Procedure Act 1986 (CPA). This Division includes the various pleas available to an accused eg plea of autrefois, and a change of plea during the trial.
As to a plea of guilty in respect of an alternative count, whether or not included in the indictment, and the prosecutor’s election to accept the plea, see s 153 CPA; Criminal Practice and Procedure NSW at [2-s 153.1]; Criminal Law (NSW) at [CPA.154.120].
[1-470] Opening to the jury
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. 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:
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the respective role of a judge and a jury
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the nature of a criminal trial
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the onus and standard of proof
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the desirability of not discussing the trial with any person outside the jury room
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the duty of jurors to bring irregularities in the conduct of the trial to the judge’s attention and report any juror misconduct
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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
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that they should discuss the matter only in the jury room and when they are all assembled
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that they should ignore any media reporting of the trial
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the principal issues in the case if they are known.
[1-475] Jury booklet and DVD
The jury members will already have been provided with some information about the trial process and their duties and responsibilities. The court and sheriff screen a DVD entitled “Welcome to jury service” to the jury panel prior to empanelment. The sheriff’s officers have standing orders to do this at all court houses. It is suggested that judges should acquaint themselves with the content of this DVD. Judges wishing to obtain a copy should contact the Deputy Sheriff, Manager Jury Service.
A booklet “Observe, listen, decide — jury service: a rewarding responsibility” is also available at all court houses and may be distributed to jury members by the court or sheriff’s officers after empanelment. The booklet provides information about the trial process, the jurors’ duties and responsibilities, and a variety of practical matters (such as court hours and meals). Additionally, selected jurors are provided with an induction outlining attendance hours, security requirements and various administrative instructions.
[1-480] Written directions for the jury at the opening of a trial
Click here for a pdf copy of the written directions for jury at the opening of a trial.
Nature of a criminal trial
A criminal trial occurs when the Crown alleges that a member of the community has committed a crime and the accused denies the allegation. The parties determine the evidence to be placed before the jury and identify the issues that the jury needs to consider. The jury resolves the dispute by giving a verdict of guilty or not guilty of the crime charged, based only upon a dispassionate and fair assessment of the evidence and in accordance with the law as directed by the judge.
Role of judge and jury
The jury is to decide facts and issues arising from the evidence and ultimately to determine whether the accused is guilty of the crime alleged. Investigations or inquiries made outside the courtroom are prohibited. Before the jury is asked to deliberate on their verdict counsel will make their own submissions and arguments based upon the evidence. The jury must follow directions of law stated by the judge and take into account any warning given as to particular aspects of the evidence. Each juror is to act in accordance with the oath or affirmation made at the start of the trial to give “a true verdict in accordance with the evidence”.
The judge is responsible for the conduct of the trial. The judge will give directions of law to the jury as to how they approach their task during their deliberations in a summing up before the jury commences its deliberations.
Jury foreperson
The jury foreperson is the spokesperson for the jury, responsible for delivering the verdict on the jury’s behalf. They can be chosen in any way the jury thinks appropriate, at any time prior to the delivery of the verdicts, and can be changed at any time (see also [1-540] — Verdict juries concerning the process for forepersons where the jury exceeds 12 jurors). The foreperson has no greater importance or responsibility than any other member of the jury in its deliberations.
Onus and standard of proof
The Crown has the obligation of proving the guilt of the accused based upon the evidence placed before the jury. The accused is not required to prove any fact or to meet any argument or submission made by the Crown. The accused is to be presumed innocent of any wrongdoing until a jury finds their guilt proved by the evidence in accordance with the law.
The Crown has to prove the essential facts or elements that go to make up the charge alleged against the accused. Each of the essential facts must be proved beyond reasonable doubt before the accused can be found guilty.
No discussions outside jury room
A juror should not discuss the case or any aspect of it with any person other than a fellow juror. Any discussion by the jury about the evidence or the law should be confined to the jury room and only when all jurors are present.
Duties of a juror to report irregularities
It is the duty of a juror to bring to the attention of the judge as soon as possible any irregularity that has occurred because of the conduct of fellow jurors during the course of the trial. The matters to be raised include:
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a juror is making inquiries outside the courtroom
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a juror has been discussing the matter with a non-juror
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a juror is refusing to participate in the jury’s functions
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a juror is not apparently able to comprehend the English language
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a juror’s inability to be impartial because of the juror’s familiarity with a witness or legal representative in the case, or for any other reason.
Criminal conduct by a juror during and after the trial
- 1.
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It is a criminal offence for a juror to make any inquiry during the course of a trial for the purpose of obtaining information about the accused or any matters relevant to the trial. The offence is punishable by a maximum of 2 years imprisonment.
For this offence, “making any inquiry” includes:
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asking a question of any person
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conducting any research including the use of the internet
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viewing or inspecting any place or object
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conducting an experiment
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causing another person to make an inquiry.
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- 2.
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It is a criminal offence for a juror to disclose to persons other than fellow jury members any information about the jury’s deliberations or how a juror or the jury formed any opinion or conclusion in relation to an issue arising in the trial, including any statements made, opinions expressed, arguments advanced or votes cast during the course of the jury’s deliberations. The offence is punishable by a fine.
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It as a criminal offence for a juror or former juror, for a reward, to disclose or offer to disclose to any person information about the jury’s deliberations or how a juror or the jury formed any opinion or conclusion in relation to an issue arising in the trial, including any statements made, opinions expressed, arguments advanced or votes cast during the course of the jury’s deliberations. The offence is punishable by a fine.
Media reports
Members of the jury should ignore any reports of the proceedings of the trial by the media. The report will obviously be a summary of the proceedings or some particular aspect of the evidence or arguments made by counsel. No importance should be attributed to that part of the evidence or any argument made simply because it happens to be reported in the media. Sometimes the material reported will be taken out of the context of the trial as a whole and may not be fair or accurate.
[1-490] Suggested (oral) directions for the opening of the trial following empanelment
Note: the headings in this direction are for the benefit of the judge. Headings are not intended to be read out to the jury.
Serving on a jury may be a completely new experience for some, if not all, of you, and so it is appropriate for me to explain a number of matters to you before the trial begins.
Other sources of information for jurors
Some of what I am about to say may sound familiar because it was referred to in the DVD that you were shown earlier by the sheriff’s officers. Some of it will also appear in [a booklet/a document] that you will receive a little later.
There is a great deal of material that you are being asked to digest in a short period but the more you hear it the more likely you are to understand it and retain it.
The charge(s)
It is alleged by the Crown that the accused committed the offence of … [give details of offence]. [Name of the accused] will be referred to throughout the trial as “the accused” as a matter of convenience and only because they have been accused of committing an offence. They have pleaded “not guilty” and it becomes your responsibility to decide whether the Crown is able to prove [that charge/those charges] beyond reasonable doubt.
[Where there are multiple charges, add
It is alleged by the Crown that the accused committed a number of offences. Those charges are being tried together as a matter of convenience. You will need to consider each charge separately. You will, in due course, be required to return a verdict in relation to each separate charge at the end of the trial.]
[Where appropriate, add
You must not be prejudiced against the accused because of the number of charges. The accused is to be treated as being not guilty of any offence].
[If there are any alternative charges, add
The offence/s charged in count/s [insert] are expressed as being in the alternative to count/s [insert]. You must firstly consider whether the Crown has proved the offence charged in the principal count.
If the Crown has proved the guilt of the accused for the offence charged in that count, then your verdict would be guilty and you would not be required to consider whether the Crown had proved the guilt of the accused for the offence charged in the alternate count. You would skip that count and no verdict would be taken in relation to that count.
If the Crown has failed to prove the guilt of the accused for the offence charged in the principal count, then your verdict would be not guilty and you would be required to consider whether the Crown has proved the guilt of the accused for the offence charged in the alternate count and you would be required to deliver a verdict in relation to that count].
Roles and functions
Later in the proceedings I will have more to say to you about our respective roles and functions. From the outset, however, you should understand that you are the sole judges of the facts. In respect of all disputes about matters of fact in this case, it will be you and not I who will have to resolve them. In part, that means that it is entirely up to you to decide what evidence is to be accepted and what evidence is to be rejected. For that reason you need to pay careful attention to each witness as their evidence is given. You should not only listen to what the witnesses say but also watch them as they give their evidence. How a witness presents to you and how they respond to questioning may assist you in deciding whether or not you accept what that witness was saying as truthful and reliable. You are entitled to accept part of what a witness says and reject other parts of the evidence.
Each of you is to perform the function of a judge. You are the judges of the facts and that means the verdict(s) will ultimately be your decision. You will make that decision by determining what facts you find proved and by applying the law that I will explain.
Of course, I also have a role as a judge but I am the judge of the law. During the trial I am required to ensure that all the rules of procedure and evidence are followed. I will give you directions about the legal principles that are relevant to the case and explain how they should be applied to the issues you have to decide. In performing your function you must accept and apply the law that comes from me.
Legal argument
During the trial a question of law or evidence may arise for me to decide. I may need to hear submissions from the lawyers before I make a decision. If that occurs, it is usually necessary for the matter to be debated in your absence and you will be asked to retire to the jury room. This is to ensure you are not distracted by legal issues so you can concentrate on the evidence once I have made my ruling. So, if a matter of law does arise during the course of the evidence, I ask for your patience and understanding. I assure you that your absence from the courtroom will be kept to the minimum time necessary.
Introduction of lawyers
Let me introduce the lawyers to you. The barrister sitting [........] is the Crown Prosecutor. In a criminal case, the Prosecutor presents the charge(s) in the name of the State, and on behalf
of the community. By tradition, the Crown Prosecutor is not referred to by their personal name but as, in this case, [Mr/Ms] Crown.
The barrister sitting [........] is [name of defence counsel] and they appear for the accused, and will represent them throughout the trial.
Selection of foreperson
[You have been told by my associate that] you are required to choose a [foreperson/representative]. That person’s role will simply be to speak for all of you whenever you need to communicate with me and will announce your verdict(s). The [foreperson/representative] does not have any more functions or responsibilities than these. You are all equals in the jury room.
How you choose your [foreperson/representative] is entirely up to you. There is no urgency to reach a final decision on that matter, and you can feel free to change your [foreperson/representative] if you wish to do so at any time.
[Where additional jurors are empanelled pursuant to s 19(2) of the Jury Act
There are normally 12 people on a jury so you may be wondering why we have selected more of you. The longer a trial proceeds the greater is the chance of one or more jurors being discharged. Having additional jurors maximises the prospect that we will have sufficient jurors by the time the jury commences its deliberations.
[Note: It is preferable for the judge not to mention the foreperson being immune from the ballot at the commencement of the trial.]
Queries about evidence or procedure
If you have any questions about the evidence or the procedure during the trial, or you have any concerns whatsoever, you should direct those questions or concerns to me, and only to me. The Court officers are there to provide for your general needs, but are not there to answer questions about the trial itself. Should you have anything you wish to raise with me, or to ask me, please write a note, put it in a sealed envelope and give it to the officer who will pass it on to me.
Note taking
You are perfectly entitled to make notes as the case progresses. Writing materials will be made available to you. If you decide to take notes, may I suggest you be careful not to allow note taking to distract you from your primary task of absorbing the evidence and assessing the witnesses. I also suggest you not try to take down everything a witness says because that would become an impossible task. Notes to remind you of how you found the witnesses, for example whether you thought a witness was trying to tell you the truth, or was on the other hand being evasive, might be more useful during your deliberations than actually what the witness said.
This is because everything said in this courtroom is being recorded so there is the facility to check any of the evidence you would like to be reminded about. You should also bear in mind that after the evidence has been presented you will hear closing addresses from the lawyers and a summing-up from me in which at least what the parties believe to be the more significant aspects of the evidence will be reviewed. In that way you will be reminded of particular parts of the evidence.
A transcript of the evidence of every witness will become available only a daily basis. If you would like to have a copy of the transcript, either of all of the evidence, or just of the evidence of a particular witness, then you only need to ask.
[Where appropriate — prior media publicity
If you have read or heard or have otherwise become aware of any publicity about the events with which this trial is concerned, or about the accused, it is of fundamental importance that you put any such publicity right out of your minds. Remember that you have each sworn an oath, or made an affirmation, to decide this case solely upon the evidence presented here in this courtroom and upon the basis of the legal directions I give to you. Before you were empanelled I asked that any person who could not be objective in their assessment of the evidence ask to be excused. None of you indicated you had a problem in that regard. You would be disobeying your oath or affirmation if you were to take into account, or allowed yourself to be influenced by, information that has come to you from something you have read, seen or heard outside the courtroom.]
Media publicity during the trial
It may be that during the trial some report may appear on the internet or in newspapers or on the radio or television. You should pay no regard to those reports whatsoever. They will obviously be limited to some particular matter that is thought to be newsworthy by the journalist or editor. It may be a matter which is of little significance in light of the whole of the evidence and it may have no importance whatsoever in your ultimate deliberations. Do not let any media reports influence your view as to what is important or significant in the trial. Further do not allow them to lead you into a conversation with a friend or member of your family about the trial.
The nature of a criminal trial
There are some directions I am required to give to you concerning your duties and obligations as jurors but first let me explain a little about a criminal trial.
The overall issue is whether the Crown can prove the charge(s) alleged against the accused. The evidence placed before you on that issue is under the control of the counsel of both parties. In our system of justice the parties place evidence before the jury provided that it is relevant to the questions of fact that you have to determine. The parties decide what issues or what facts are in dispute. I play no part in which witnesses are called. My task is only to ensure the evidence is relevant: that is, to ensure the evidence is of some significance to the issues raised and the ultimate question whether the Crown has proved the accused’s guilt.
Onus and standard of proof
The obligation is on the Crown to prove beyond reasonable doubt that the accused is guilty of the [charge(s)] alleged against them. It is important you bear in mind throughout the trial and during your deliberations this fundamental aspect of a criminal trial. The accused has no obligation to produce any evidence or to prove anything at all at any stage in the trial. In particular the accused does not have to prove they did not commit the offence. The accused is presumed to be innocent of any wrongdoing until a jury is satisfied beyond reasonable doubt that their guilt has been established according to law. This does not mean the Crown has to prove every fact that is in dispute. What is required is that the Crown proves those facts that are essential to make out the charge(s) and proves those facts beyond reasonable doubt. These are sometimes referred to as the essential facts or ingredients of the offence. You will be told shortly what the essential facts are in this particular case.
[If known, note the particular issue(s) in dispute and what the Crown has to prove.]
The standard of proof that the Crown must meet if it is to prove the charge is proof beyond reasonable doubt. That is the highest standard of proof we have in Australia.
Prohibition against making enquiries outside the courtroom
It is of fundamental importance that your decision in this trial is based only upon what you hear and see in this courtroom: that is; the evidence, the addresses of counsel and what I say to you about the law. You must not, during the course of the trial, make any inquiries of your own or ask some other person to make them on your behalf. In particular you are not to use any aid, such as legal textbooks, to research any matter in connection with your role as a juror.
It is a serious criminal offence for a member of the jury to make any inquiry for the purpose of obtaining information about the accused, or any other matter relevant to the trial. It is so serious that it can be punished by imprisonment. This prohibition continues from the time the juror is empanelled until the juror is discharged. It includes asking a question of any person other than a fellow juror or me. It includes conducting any research using the internet.
You are not permitted to visit or inspect any place connected with the incidents giving rise to the charge(s). You cannot conduct any experiments. You are not permitted to have someone else make those enquiries on your behalf.
The result of your inquiries could be to obtain information that was misleading or entirely wrong. For example, you may come across a statement of the law or of some legal principle that is incorrect or not applicable in New South Wales. The criminal law is not the same throughout Australian jurisdictions and even in this State it can change rapidly from time to time. It is part of my function to tell you so much of the law as you need to apply in order to decide the issues before you.
Discussing the case with others
You should not discuss the case in any way, including in person or by phone or social media, with anyone except your fellow jurors and only when you are all together in the jury room. This is because a person with whom you might speak who is not a fellow juror would, perhaps unintentionally make some comment or offer some opinion on the nature of the charge or the evidence which is of no value whatever. That person would not have the advantage you have of hearing the evidence first-hand, the addresses of counsel on that evidence and the directions of law from me.
Any comment or opinion that might be offered to you by anyone who is not a fellow juror might influence your thinking about the case, perhaps not consciously but subconsciously. Such a comment or opinion cannot assist you but can only distract you from your proper task.
If anyone attempts to speak to you about the case at any stage of the trial it is your duty to report that fact to me as soon as possible, and you should not mention it to any other member of the jury. I am not suggesting that this is even remotely likely to happen in this case but I mention it simply as a precaution and it is a direction given to all jurors whatever the nature of the trial.
I must bring to your attention that it is an offence for a juror during the course of the trial to disclose to any person outside the jury room information about the deliberations of the jury or how the jury came to form an opinion or conclusion on any issue raised at the trial.
Bringing irregularities to the judge’s attention
If any of you learn that an impermissible enquiry had been made by another juror or that another juror had engaged in discussions with any person outside the jury room, you must bring it to my attention. Similarly, if at any stage you find material in the jury room that is not an exhibit in the case, you should notify me immediately.
The reason for bringing it to my attention as soon as possible is that, unless it is known before the conclusion of the trial, there is no opportunity to fix the problem if it is possible to do so. If the problem is not immediately addressed, it might cause the trial to miscarry and result in the discharge of the jury in order to avoid any real or apparent injustice.
Reporting other misconduct and irregularities — s 75C Jury Act
If, during the trial, any of you suspect any irregularity in relation to another juror’s membership of the jury, or in relation to the performance of another juror’s functions as a juror you should tell me about your suspicions. This might include:
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the refusal of a juror to take part in the jury’s deliberations, or
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a juror’s lack of capacity to take part in the trial (including an inability to speak or comprehend English), or
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any misconduct as a juror, or
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a juror’s inability to be impartial because of the juror’s familiarity with the witnesses or legal representatives in the trial, or
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a juror becoming disqualified from serving, or being ineligible to serve, as a juror.
You also may tell the sheriff after the trial if you have suspicions about any of the matters I have just described.
Breaks/personal issues/daily attendance
It is not easy sitting there listening all day, so if at any stage you feel like having a short break of say five minutes or so, then let me know. Remember, I do not want you to be distracted from your important job of listening to the evidence. If you feel your attention wandering and you are having trouble focusing on what is happening in court then just raise your hand and ask me for a short break. I can guarantee that if you feel like a break out of the courtroom, then others in the courtroom will too. So please don’t be reluctant to ask for a break if you want one.
If you are too hot or too cold, or you cannot hear or understand a witness or if you face any other distraction while in the courtroom let me know so I can try to attend to the problem.
If any other difficulty of a personal nature arises then bring it to my attention so I can see if there is some solution. If it is absolutely necessary, the trial can be adjourned for a short time, so that a personal problem can be addressed.
However, it is important that you understand the obligation to attend the trial proceedings every day at the time indicated to you. If a juror cannot attend for whatever reason then the trial cannot proceed. We do not sit with a juror missing because of illness or misadventure. Of course there is no point attending if you are too ill to be able to sit and concentrate on the evidence or if there is an important matter that arises in your personal life. But you should understand that by not attending the whole trial stops for the time you are absent, which will result in a significant cost and inconvenience to the parties and your fellow jurors.
Outline of the trial
Shortly I will ask the Crown Prosecutor to outline the prosecution case by indicating the facts the Crown has to prove and the evidence the Crown will call for that purpose. This is simply so you have some understanding of the evidence as it is called in the context of the Crown case as a whole. What the Crown says is not evidence and is merely an indication of what it is anticipated the evidence will establish.
[If there is to be a defence opening add
I shall then ask [defence counsel] to respond to the matters raised by the Crown opening. The purpose of this address is to indicate what issues are in dispute and briefly the defence answer to the prosecution’s allegations. Neither counsel will be placing any arguments before you at this stage of the trial.]
Then the evidence will be led by way of witnesses giving testimony in the witness box. There may also be documents, photographs and other material that become exhibits in the trial.
At the end of all of the evidence both counsel will address you by way of argument and submissions based upon the evidence. You will hear from the Crown first and then the defence.
I will then sum up to you by reminding you of the law that you have to apply during your deliberations and setting out the issues you will need to consider before you can reach your verdict(s).
You will then be asked to retire to consider your verdict(s). You will be left alone in the jury room with the exhibits to go about your deliberations in any way you choose to do so. If your deliberations last for more than a day then you will be allowed to go home overnight and return the next day. We no longer require jurors to be kept together throughout their deliberations by placing them in a hotel as used to be the case some time ago.
When you have reached your verdict(s) you will let me know. You will then be brought into the courtroom and your [foreperson/representative] will give the verdict(s) on behalf of the whole jury. That will complete your functions and you will then be excused from further attendance.
[1-492] Jury questions for witnesses
It is impermissible for a judge to allow the jury to directly question a witness during a trial: R v Pathare [1981] 1 NSWLR 124; R v Damic [1982] 2 NSWLR 750 at 763; R v Sams (unrep, 7/3/1990, NSWCCA).
An indirect process is equally undesirable: Tootle v R (2017) 94 NSWLR 430. The trial judge in Tootle v R invited the jury to formulate questions for the witnesses. The questions were submitted to the judge, subjected to a voir dire process, and those deemed permissible were asked of the witness by the Crown prosecutor. The course taken was impermissible: Tootle v R at [63]. The mere fact of the jury’s involvement in the eliciting of evidence compromised their function and altered the nature of the trial in a fundamental respect: Tootle v R at [63], [67].
An invitation to the jury to participate in the questioning of witnesses is incompatible with both the adversarial process and the customary directions to withhold judgment until evidence is complete: Tootle v R at [42]–[44], [58].
[1-494] Expert evidence
Where there is some complexity in the expert evidence it may be helpful, however, to give the jury the opportunity to raise with the judge 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. It has been held that judges sitting alone are entitled to intervene within reasonable limits to clarify evidence: FB v R [2011] NSWCCA 217 at [90].
[1-495] Offences and irregularities involving jurors
There are a number of offences relating to the performance of a jury’s functions contained in Pt 9 of the Act. These include:
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disclosure of information by jurors about their deliberations: s 68B
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inquiries by jurors to obtain information about the accused or matters relevant to the trial: s 68C. Section 68(1), with s 68C(5)(b), is directed to a juror making an inquiry for the purpose of obtaining information about a matter relevant to the trial, not to inadvertent searching. What is a “matter relevant to the trial” will vary from case to case: see Hoang v The Queen [2022] HCA 14 at [32]–[36].
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soliciting information from, or harassing, jurors: s 68A.
A judge has power to examine a juror in relation to the following:
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the publication of prejudicial material during the trial: s 55D
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whether there has been a breach of the prohibition against making inquiries under s 68C: s 55DA. See R v Wood [2008] NSWSC 817; Smith v R (2010) 79 NSWLR 675 at [32]–[33]. The focus of the prohibition under s 68C is upon obtaining, or attempting to obtain, extraneous information about the accused or some other matter relevant to the trial: Carr v R [2015] NSWCCA 186 at [19].
Relevant only to appeals against conviction: as to the admission of evidence concerning jury deliberations such as a sheriff’s report under s 73A and the exclusionary rule that “evidence of a juror or jurors as to the deliberations of the jury is not admissible to impugn the verdict”, see Vella v R [2022] NSWCCA 204 at [89]–[104]; Smith v Western Australia (2014) 250 CLR 473 at [1], [54]; Evidence Act 1995, s 9(1), (2)(a).
[1-500] Communications between jurors and the judge
Notes between the jury and the judge should be disclosed to the parties unless they concern the jury’s deliberation process, or where the communication concerns a matter unconnected with the issues to be determined, or where the subject was inappropriate for the jury to raise with the judge: Burrell v R [2007] NSWCCA 65 at [217], [263]–[268].
[1-505] Discharging individual jurors
The provisions concerning the discharge of jurors are found in Pt 7A.
Section 53A requires the mandatory discharge of a juror if they were mistakenly or irregularly empanelled, have become excluded from jury service, or have engaged in misconduct relating to the trial: s 53A(1).
Finding misconduct under s 53A(1)(c) involves a two-stage process. The court must find on the balance of probabilities the juror has in fact engaged in misconduct, and that conduct amounts to an offence against the Act (s 53A(2)(a)) or gives rise to the risk of a substantial miscarriage of justice (s 53A(2)(b)). Section 53A(2)(b) concerns actual conduct giving rise to a risk — not a risk actual conduct has occurred. The relationship to be examined is between the established conduct and whether it is potentially a risk causative of a miscarriage of justice: Zheng v R [2021] NSWCCA 78 at [65]–[69].
In R v Rogerson (No 27) [2016] NSWSC 152 at [10] a juror observed sleeping during the evidence was found to have engaged in misconduct. However, bringing a newspaper or clippings from the paper into the jury room (Carr v R [2015] NSWCCA 186 at [20]) or playing a word game in the jury room during breaks in the proceedings (Li v R [2010] NSWCCA 40 at [151]) were both held not to be misconduct giving rise to a miscarriage of justice. Once a judge is affirmatively satisfied of misconduct by a juror, that juror must immediately be discharged: Hoang v The Queen [2022] HCA 14 at [41]. In Hoang v The Queen, the juror’s internet inquiry about the Working with Children Check, which was evidence given at the trial and the subject of defence submissions and the judge’s summing up, amounted to misconduct under s 53A(2). The fact the search was conducted out of curiosity was irrelevant: at [38].
Section 53B concerns the discretionary discharge of a juror for reasons such as illness, infirmity or incapacitation: see Lee v R [2015] NSWCCA 157 at [42] for ill health and illiteracy; R v Lamb [2016] NSWCCA 135 at [13] for contact with the accused; or, for the dragnet category in s 53B(d) “any other reason affecting the juror’s ability to perform the functions of a juror” see R v Qaumi (No 41) [2016] NSWSC 857 at [41] for apprehended bias. The power under s 53B(d) is engaged only where the “reason” is specific to a particular juror or jurors, as opposed to circumstances where the relevant reason compromises every juror’s ability to perform the functions of a juror: Sun v R [2023] NSWCCA 147 at [110]. Sufficient reasons should be given for a decision to discharge a juror: Le v R [2012] NSWCCA 202 at [67]–[68].
As to the discretionary discharge of a juror generally see: Wu v The Queen (1999) 199 CLR 99; BG v R [2012] NSWCCA 139; Le v R [2022] NSWCCA 141 at [151]–[154]; Criminal Practice and Procedure NSW at [20-50,955.5]; Criminal Law (NSW) at [JA.53B.20].
[1-510] Discretion to discharge whole jury or continue with remaining jurors
Section 53C provides that where a juror dies or is discharged during the trial, the court must discharge the whole jury if a trial with the remaining jurors would result in risk of a substantial miscarriage of justice or otherwise proceed under s 22. Section 22 permits the balance of the jury to continue after the discharge of a juror.
There is no rigid rule governing whether or not to discharge a whole jury for an inadvertent and potentially prejudicial event occurring during the trial. It depends on: the seriousness of the event in the context of the contested issues; the stage the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction to overcome its apprehended impact: Zheng v R [2021] NSWCCA 78 at [92]–[96]. However, the trial judge must be satisfied to a high degree of necessity before discharging the jury. The discretion is “to be exercised in favour of a discharge only when that course is necessary to prevent a miscarriage of justice”: Watson v R [2022] NSWCCA 208 at [25], [34], [36]; Crofts v The Queen (1996) 186 CLR 427. An inquiry into a substantial miscarriage of justice focuses principally upon the impact of the irregularity on an accused person’s ability to obtain a fair trial: Watson v R at [69].
A separate decision, with express orders and reasons, should be made for continuing with the balance of the jury: BG v R [2012] NSWCCA 139 at [101], [137]; Le v R [2012] NSWCCA 202 at [54]–[71].
As to continuing with the balance of the jury see: Crofts v The Queen at 432, 440; Wu v The Queen (1999) 199 CLR 99; Criminal Practice and Procedure NSW at [29-50,960.5].
[1-515] Suggested direction following discharge of juror
In criminal trials, justice must not only be done, but it must appear to be done. That means that nothing should be allowed to happen which might cause any concern or give the appearance that the case is not being tried with complete fairness and impartiality. Because of this great concern which the law has about the appearance of justice, even the most innocent of misadventures, such as a juror talking to someone who, as it turns out, is a potential witness in the case or is associated in some way with the prosecution or any one in the defence, can make it necessary for the whole jury to be discharged.
Fortunately, what has happened in the present case does not make it necessary for me to do that. It suffices that I have discharged as members of the jury the … [give number: for example, two] person(s) who, no doubt, you have noticed are no longer with you. In fairness to [this/these] person(s), I should indicate that no personal blameworthiness of any sort attaches to them. Nevertheless, the appearance of justice being done must be maintained. What now will happen is that the trial will continue with the … [give number: for example, 10] of you who remain, constituting the jury. [It will be necessary, of course, for you to choose a new foreperson.]
It is very easy for misadventures to occur. But I do ask you to please be careful to use your common sense and discretion to avoid any situation that might give rise to some concern as to the impartiality of the remaining members of the jury.
[1-520] Discharge of the whole jury
Where the trial judge considers it necessary to discharge the whole of the jury over the objection of one of the parties, in all but exceptional cases the judge should stay the decision, inform counsel in the absence of the jury and adjourn proceedings until the parties have considered whether to appeal against the decision under s 5G(1) Criminal Appeal Act 1912: Barber v R [2016] NSWCCA 125 at [49]; R v Lamb [2016] NSWCCA 135 at [35].
While there will be circumstances where the decision should be given effect immediately those cases will be the exception to the rule: Barber v R at [49]. If there is to be a review, the judge should give reasons for the decision and excuse the jury until the determination is made.
[1-525] Provision of transcripts
Section 55C provides that upon request the jury may be given a copy of the whole or part of the trial transcript. This can include addresses and the summing up: R v Sukkar [2005] NSWCCA 54 at [84]. See generally R v Fowler [2000] NSWCCA 142 at [91]; R v Bartle [2003] NSWCCA 329 at [687]. As to the directions to be given before providing the transcripts to the jury in respect of certain sexual assault trials see [5-420] Suggested direction — pre-recorded evidence, Note 2.
[1-530] Suggested direction — use of the transcripts
Members of the jury, you are to be given the [transcript/part of the transcript] of the evidence.
You should not give the evidence more weight than it deserves because it is now in written form and because you are, in effect, receiving that evidence a second time. It is important to recall the evidence as it was given during the trial and what, if anything, you thought about the reliability of the evidence as you heard it. You should also bear in mind what counsel had to say about the evidence and any criticisms made of it during addresses.
[If appropriate the jury can be reminded of particular comments made about the evidence by counsel in addresses.]
[In the case of the transcript of evidence of the complainant it may be necessary to remind the jury of the evidence [if any] given by the accused or a defence witness in relation to specific matters in the complainant’s evidence.]
[1-535] Written directions
Section 55B provides that a direction in law may be given in writing. It is a matter for the exercise of discretion as to whether and when to give written directions. A fundamental factor informing the exercise of that discretion is whether providing written directions is likely to assist the jury in understanding the issues in the trial: Trevascus v R [2021] NSWCCA 104 at [66]. It is suggested that in an appropriate case, written directions on the elements of the offences (including question trails) and available verdicts and any other relevant matter be given to the jury before counsel address with a short oral explanation of the directions.
However, s 55B does not abrogate the trial judge’s obligation to give oral directions concerning the elements of the offences: Trevascus v R at [65]; see also the discussion of the relevant cases at [52]–[63]; Cook (a pseudonym) v R [2022] NSWCCA 282 at [55]–[59]. Where written directions are given, the trial judge is required to give oral directions which, as a minimum, oblige the judge to read out and explain the written directions: Cook (a pseudonym) v R at [57]. The judge must emphasise to the jury that the written directions are not a substitute for the oral directions given: Trevascus v R at [67].
A written direction can be given at any stage: R v Elomar [2008] NSWSC 1442 at [27]–[30].
Further, any document, such as a chronology, or a “road-map” to aid the jury in understanding the evidence, can be provided with the consent of counsel, especially in complicated factual matters: R v Elomar, is an example.
[1-540] Verdict juries
Where the jury consists of more than 12 jurors (an “expanded jury”), immediately before the jury is required to consider its verdict, a “verdict jury” must be created, comprising of 11 jurors selected by ballot plus the foreperson, if a foreperson has been chosen by the expanded jury: s 55G(2)(a). If there is no foreperson, 12 jurors must be selected by ballot: s 55G(2)(b). The same verdict jury will remain in place in trials where a verdict jury is required to consider some counts in an indictment first and then the other counts at a later stage in the trial (unless s 55G(5) applies): s 55G(4).
Immediately before conducting the ballot, the judge must inquire of the jury whether there is a foreperson (as defined in s 55G(2)(a)). If an expanded jury has chosen a foreperson that person, is not to be included in the ballot for selecting a verdict jury: Fantakis v R [2023] NSWCCA 3 at [375]–[378].
[1-545] Directed verdict juries
If a directed acquittal is being ordered in relation to only some accused persons or counts and the jury consists of more than 12 jurors immediately before the delivery of the directed acquittal/s, a ballot must be conducted in accordance with s 55G to select a verdict jury to deliver the directed acquittal/s (with the excluded jurors remaining in court but sitting out of the jury box) after which an order must be made that the excluded jurors re-join the jury (and return to the jury box) for the continuation of the trial in respect of the accused person/s or counts (as the case may be) that have not yet been the subject of a verdict accordance with s 55G(5)(a).