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1.1-c1-s1
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1.1 Introductory Remarks
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# 1.1 Introductory Remarks
1. A number of studies into the jury system have suggested that it is highly beneficial for the judge to provide the jury with information at the beginning of a trial, to assist them in performing their role.[^1]
2. It is suggested that "the process of being empanelled as a member of the jury can be a thoroughly confusing experience", and that the provision of basic information by the judge at the beginning of the trial can help jurors to "settle into their task".[^2]
3. The following types of information have been seen to be of assistance to jurors:
- Information about the importance of jury duty;
- Information about the roles of the judge, jury and counsel;
- Information about the nature of the trial process and about the characteristics of the adversary system;
- Instructions concerning the onus and standard of proof and the right of each accused to separate consideration of his or her case;
- An introduction to other common concepts that will be used throughout the trial, such as inferences;
- Guidance about how to assess witnesses and evidence;
- Information about matters such as note-taking and asking questions;
- Procedural suggestions about matters such as electing a foreperson, arranging a discussion format and deliberation procedures;
- Information about the secrecy and anonymity of jury deliberations;
- Information about the court and about any local facilities available to jurors.
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[^1]: See, e.g. Parliament of Victoria Law Reform Committee, *Jury Service in Victoria*, Final Report (1991); New South Wales Law Reform Commission, [*Criminal Procedure: The Jury in a Criminal Trial*](../customXml/item1.xml) (Report No 48, March 1986); New Zealand Law Commission, [*Juries in Criminal Trials*](../customXml/item2.xml) (Report No 69, 2001); Law Reform Commission of Canada, [*The Jury*](../customXml/item3.xml) (Report No 16, 1982); Royal Commission on Criminal Justice, [*Report*](../customXml/item4.xml)* *(1993); Lord Justice Auld, [*Review of the Criminal Courts of England and Wales*](numbering.xml) (Report, September 2001). See also *R v PZG* [2007] VSCA 54.
[^2]: Parliament of Victoria Law Reform Committee, *Jury Service in Victoria*, Final Report (1991).
[^3]: Lord Justice Auld, [Review of the Criminal Courts of England and Wales](styles.xml) (Report, September 2001).
[^4]: Parliament of Victoria Law Reform Committee, *Jury Service in Victoria*, Final Report (1991).
[^5]: Ibid.
[^6]: SM Kassin and LS Wrightsman, ‘On the Requirements of Proof: The Timing of Judicial Instruction and Mock Juror Verdicts’ (1979) 37(10) *Journal of Personality and Social Psychology* 1877.
[^7]: New South Wales Law Reform Commission, *Criminal Procedure: The Jury in a Criminal Trial*, Discussion Paper 12 (1985).
[^8]: Ibid.
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1.1 Introductory Remarks
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4. While the Juries Commissioner provides some of this information to jurors prior to the trial, it has been suggested that it is also advantageous for the judge to address these matters when jurors are beginning to focus more clearly on their jury service.[^3]
5. Studies have shown that jurors who are given such information by the judge at the beginning of a trial are better able to follow the evidence presented in court, and to apply the law to the facts of the case during deliberations.[^4]
6. This is supported by research in cognitive psychology, which has shown that the more information a person has, the better able that person is to frame the information that he or she is about to receive. This enhances recall and aids in the interpretation of ambiguous material. It also leads to greater levels of juror satisfaction.[^5]
7. One study has even shown that a judge’s instructions may *only* have an effect on the jury’s decision when delivered at the commencement of the trial.[^6] It is suggested that this is because jurors will usually have already assessed the evidence by the time the judge delivers his or her final charge, and will not be able to retrospectively evaluate and judge the evidence in accordance with instructions which are first given at that late stage.[^7]
8. It is therefore desirable to provide the jury with information such as that outlined above at the outset of the trial, and again in summary form during the judge’s final charge (see, e.g. *R v PZG* [2007] VSCA 54). Judges may also wish to give a charge welcoming potential jurors prior to empanelment. Part 1 of this Book contains a number of suggested directions for use at the beginning of a trial.
9. It is also desirable to give the jury a short break immediately after they have been empanelled and charged, to allow them to orient themselves as a group and familiarise themselves with their surroundings.
10. If a judge is concerned about addressing matters that may not arise during the trial, he or she should warn the jury that the preliminary instructions may touch on issues which are not essential to their decision. In the judge’s final charge, he or she should deliver revised instructions, advising the jury of any changes that have occurred since giving the preliminary instructions.[^8]
Last updated: 15 June 2007
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[^1]: See, e.g. Parliament of Victoria Law Reform Committee, *Jury Service in Victoria*, Final Report (1991); New South Wales Law Reform Commission, [*Criminal Procedure: The Jury in a Criminal Trial*](../customXml/item1.xml) (Report No 48, March 1986); New Zealand Law Commission, [*Juries in Criminal Trials*](../customXml/item2.xml) (Report No 69, 2001); Law Reform Commission of Canada, [*The Jury*](../customXml/item3.xml) (Report No 16, 1982); Royal Commission on Criminal Justice, [*Report*](../customXml/item4.xml)* *(1993); Lord Justice Auld, [*Review of the Criminal Courts of England and Wales*](numbering.xml) (Report, September 2001). See also *R v PZG* [2007] VSCA 54.
[^2]: Parliament of Victoria Law Reform Committee, *Jury Service in Victoria*, Final Report (1991).
[^3]: Lord Justice Auld, [Review of the Criminal Courts of England and Wales](styles.xml) (Report, September 2001).
[^4]: Parliament of Victoria Law Reform Committee, *Jury Service in Victoria*, Final Report (1991).
[^5]: Ibid.
[^6]: SM Kassin and LS Wrightsman, ‘On the Requirements of Proof: The Timing of Judicial Instruction and Mock Juror Verdicts’ (1979) 37(10) *Journal of Personality and Social Psychology* 1877.
[^7]: New South Wales Law Reform Commission, *Criminal Procedure: The Jury in a Criminal Trial*, Discussion Paper 12 (1985).
[^8]: Ibid.
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1.2-c1-s1
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1.2 Jury Empanelment
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# 1.2 Jury Empanelment
Warning: **Part 6 of the *****Juries Act 2000***** (Vic) establishes a set of steps that must be followed when ****empanelling**** a jury. Failure to follow the applicable steps will lead to the jury being unlawfully ****constituted, and**** will result in the trial being viewed as a nullity (*****R v ******Panozzo******; R v ******Iaria***** (2003) 8 VR 548).**
## Information to Provide to Jurors
1. In all cases the jury panel should be informed about the following matters prior to empanelment:
1. The type of charge;
2. The name of the accused;
3. The names of the principal witnesses expected to be called;
4. The estimated length of the trial; and
5. Any other information the court thinks relevant (Juries Act 2000 s 32(1)).
2. It is generally desirable to read out the names of all witnesses, as well as any other people whose names may be mentioned during the trial, a knowledge of whom might cause a juror to be embarrassed. If there are many names to be read, it may be appropriate to provide a list to the jury (see, e.g. *R v Lewis *(2000) 1 VR 290).
3. In addition to telling the jurors the estimated length of the trial, it is helpful to advise them of the hours the court ordinarily sits, and of any proposed breaks in the trial (e.g. to accommodate Christmas).[^1]
4. If the judge intends to provide the jury with "other information" (as allowed by the *Juries Act 2000 *s 32(1)(e)), it is advisable to discuss the matter with counsel beforehand (see, e.g. *R v Knight *[2004] VSCA 48).
5. In a trial for murdering a security guard at an abortion clinic, it was held to be appropriate for the judge to ask the jury panel members whether they held strong views about abortion, such that it might affect their capacity to be impartial (*R v Knight *[2004] VSCA 48).
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[^1]: JH Phillips, ‘Can the Jury Cope?’ (1987) 61(9) *Australian Law Journal* 479.
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1.2 Excusing Jurors
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## Excusing Jurors
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[^2]: Ibid.
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1.2 Excusing Jurors
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1. After providing the jury panel with this information, the court must ask whether any people on the panel seek to be excused from jury service on the trial (*Juries Act 2000 *s 32(2)). The court may excuse a potential juror if it is satisfied that the person:
1. Will not be able to consider the case impartially; or
2. Is unable to serve for any other reasons (*Juries Act 2000* s 32(3)).
2. Before the panel is assembled, the Juries Commissioner will have provided prospective jurors with information about the expected length of the trial and sitting hours, and invited applications to defer jury service on the basis of matter such as child care responsibilities, travel commitments, employment issues and health issues that may interfere with jury service.[^2] Many of these applications are dealt with administratively by the Juries Commissioner, and so it is expected that judges will receive few applications to be excused on the basis of personal circumstances.
3. It is not necessary to excuse a person who has had a particular life experience (e.g. a victim of a sexual offence) from serving on a jury in a trial which concerns matters to which that experience is relevant (e.g. a sexual offence trial). It should not be assumed that such a person is any more likely to be prejudiced than other jurors (*R v Goodall* (2007) 15 VR 673, [3], [29]–[31]).
4. If it is anticipated that a number of documents will be provided to the jury during the trial, the judge may wish to inform jurors of this prior to seeking excuses. This will allow jurors who have difficulty reading to seek to be excused from jury service.
5. If it becomes apparent to a judge when taking a juror’s oath or affirmation that there are particular difficulties that may restrict his or her capacity to serve as a juror (such as difficulties with English or certain physical conditions), the judge may wish to excuse the juror.
6. Jurors should be allowed to make their application for excusal in writing, as they might reasonably wish to keep the reasons for their application confidential. It is at the judge’s discretion whether or not to allow the defence to see any written application provided by a juror (*R v Lewis *(2000) 1 VR 290).
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[^2]: Ibid.
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1.2 Excusing Jurors
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7. There is no absolute right of an accused person to be told the ground on which a prospective member of the jury applies to be excused from serving or, if the application is refused, the ground of the refusal (*R v Lewis *(2000) 1 VR 290).
8. There is also no requirement for a judge to hear and determine applications for excusal in public. However, it is generally desirable to exercise the judge’s power to excuse jurors in open court, to demonstrate publicly the seriousness with which the court regards a citizen’s obligation to serve as a juror, and the trouble that the court takes in deciding whether a person summoned ought to be excused (*R v Lewis *(2000) 1 VR 290).
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[^2]: Ibid.
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1.2 Excusing Jurors
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Last updated: 11 July 2018
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[^2]: Ibid.
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1.2.1 Charge: Jury Empanelment
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# 1.2.1 Charge: Jury Empanelment
Members of the jury panel, in a moment I am going to give you a final opportunity to apply to be excused from sitting on the jury for this trial. Please listen carefully to what I am about to say, so that you will know whether you should apply.
## Possible prejudicial knowledge
It is essential that every member of the jury be completely open-minded about the case that they will hear, and not favour one side or the other. Sometimes a juror knows one of the people involved in the trial, or knows something about them, and so may not be able to be unbiased. Even if that juror feels capable of treating the people involved in the case fairly, to the outside world it may seem likely that they will favour one side or the other. This would undermine the interests of justice.
A similar problem arises if a juror has, or believes they have, information about the facts of the case.
I therefore need to give you some information about this case, and the people involved in it. You should listen to this information carefully, to see if you recognise any of the names, or have any other information or knowledge about the case. If you do, you should apply to be excused when my associate asks you in a moment.
The accused person’s name is [*insert name*].
[He/she] has been charged with [*list and describe the offence*[*s*]*, mentioning the name*[*s*]* of any victim*[*s*]].
In the course of the trial, it is likely that the following people will be called as witnesses [*insert names of witnesses*]. You may also hear the following people mentioned [*insert names of people who may be mentioned during the trial, a knowledge of whom might cause a juror to be embarrassed*.]
[*Insert any other relevant information that may affect juror impartiality*. *This information should be discussed with counsel prior to raising it with the jury.*]
As I have said, if any of you know the accused, or any of the other people whose names I have mentioned, you should apply to be excused when my associate asks you.
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1.2.1 Duration of the trial
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## Duration of the trial
This trial is expected to last until [*insert anticipated end date*]. During the trial, you will need to attend court [*specify sitting days and hours. Advise of any anticipated breaks in the trial*]. The Juries Commissioner has already given you several opportunities to apply to defer jury service because of the expected length of the trial, or because of personal circumstances, such as child care obligations or issues with your health. But you will have a further opportunity to apply to be excused if you wish to do so. If you think you have a valid reason for being excused because of the trial length or your personal circumstances, then you should apply to be excused when my associate asks you.
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1.2.1-c3-s1
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1.2.1 Other Reasons
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## Other Reasons
Finally, there may also be some personal reason why you feel you cannot be a juror in this case. The law recognises that a person can be excused from being on a jury if they will be unable to consider the case impartially or if they are unable to serve for any other reason. Consider whether you will be able to decide the case fairly. In a case involving allegations of sexual offences, a potential juror once told the judge that it was “too close to home”. That may have meant he or she could not treat the parties to the case fairly. However, other people in similar situations serve as jurors in sexual offence cases every day, and can put aside any personal experiences, or any bias or sympathy that may arise from the fact that the case involves an allegation of a sexual offence.
I urge you to think carefully before you apply to be excused because you cannot be impartial or for any other reason. Serving on a jury is one of the most important things that you can do as a member of the community, and our system of justice cannot operate unless people are prepared to perform this duty.
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1.2.1 Applying to be excused
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## Applying to be excused
In a moment my associate will call each of your [numbers/names], and ask you to answer "present". If you want to apply to be excused, you should answer "excuse". Once everybody’s [name/number] has been called, I will hear the applications to be excused. If your reason for wanting to be excused is personal, you may give it to me in writing. Paper will be provided to you upon request.
Last updated: 11 July 2018
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1.3 Selecting a Foreperson
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# 1.3 Selecting a Foreperson
1. It is necessary to choose a foreperson to communicate with the judge and to announce the verdict. Other than serving these roles, the foreperson has no higher status or different function than the other jurors (*Ng v R* (2003) 217 CLR 521 (Kirby J)).
2. Depending on the nature of the case, consideration should be given to delaying the appointment of the foreperson until the jurors have had time to become acquainted. Allowing the jurors to appoint the foreperson within a reasonable time after empanelment – rather than always requiring this to be done at the outset of the trial – will facilitate the appointment of the most appropriate person.
3. The jury may change the foreperson during the course of the trial. The process of selection and change is private to the jury. The reasons should remain unknown to the judge, the parties and the community (*Ng v R* (2003) 217 CLR 521 (Kirby J); *R v Lonsdale *[1915] VLR 269).
4. If more than 12 jurors have been empanelled and remain at the time at which the jury is required consider its verdict, and the foreperson is selected in the ballot to reduce the number of jurors to 12, that selection is to be disregarded and the foreperson is to remain on the jury (*Juries Act 2000 *s 48(2)).
Last updated: 14 November 2006
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1.3.1 Charge: Selecting a Foreperson
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# 1.3.1 Charge: Selecting a Foreperson
My associate is about to ask you to select a foreperson.
The foreperson will speak on your behalf. He or she will be the person who asks me any questions you may have, and who tells me anything else that you want to say. At the end of the trial, it is the foreperson who will deliver your verdict.
Other than that, the foreperson is no different from any other juror. You are all equal judges of the facts in the case, and are all entitled to have your opinions considered equally. Just because a person is appointed as a spokesperson does not mean that his or her opinions about the case count more than those of anyone else, or should be given any greater respect.
Given the role played by the foreperson, the person you select should be someone who is not going to be shy about asking questions or interrupting proceedings. He or she should be a person who is willing to speak up when necessary, and who can communicate any questions or other matters to me.
Although the foreperson will ordinarily be the person who communicates with me, that does not prevent any of you from directly raising a matter with me if necessary. You also have the right to say if your position has been misstated in anything said here in the courtroom, by the foreperson or any other person.
Last updated: 14 November 2006
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1.4 The Role of Judge and Jury
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# 1.4 The Role of Judge and Jury
## Role of the Jury
1. The role of the jury is to determine the facts, apply relevant principles of law to those facts, and return a verdict (*R v Dao* (2005) 156 A Crim R 459; *R v Nguyen *[2006] VSCA 158; *Azzopardi v R* (2001) 205 CLR 50).
2. This requires the jury to:
- Determine whether, and to what extent, the evidence is to be believed;
- Decide whether to draw inferences from the evidence; and
- Apply the law, as they are directed upon it, to the facts as they find them to be (*Director of Public Prosecutions v Stonehouse* [1978] AC 55. See also *Metropolitan Railway Co v Jackson *(1877) 3 App Cas 193; *Cofield v Waterloo Case Co Ltd *(1924) 34 CLR 363; *Bratty v AG for Northern Ireland* [1963] AC 386).
3. It is for the jury alone to decide the facts of a case. This must not be obscured by the performance of the judge’s duties (*RPS v R *(2000) 199 CLR 620; *R v Melbourne *(1999) 198 CLR 1).
4. Similarly, it is the jury alone that determines the verdict. The judge must be careful to make this clear (*R v Johnson *(1986) 43 SASR 63).
5. Although the jury are the sole judges of the facts, they must accept and apply the judge’s directions about the law (*Joshua v R* [1955] AC 121; *R v Beeby* (1911) 6 Cr App R 138; *R v Frampton* (1917) 12 Cr App R 202).
6. Jurors should not be drawn into the process of questioning witnesses (*Tootle v R* (2017) 94 NSWLR 430, [59]). See also 1.10 Trial Procedure regarding jurors questioning witnesses.
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1.4 Role of the Judge
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## Role of the Judge
1. The judge must instruct the jury about so much of the law as they need to know in deciding the real issue or issues in the case (*Azzopardi v R* (2001) 205 CLR 50; *RPS v R *(2000) 199 CLR 620).
2. This requires the judge to:
1. Instruct the jury about the elements of the offences and the onus and standard of proof;
2. Identify the issues in the case and to relate the law to those issues;
3. Put the defence case fairly; and
4. In some cases warn the jury about impermissible reasoning, or about particular care that must be shown before accepting certain kinds of evidence (*RPS v R *(2000) 199 CLR 620; *Azzopardi v R* (2001) 205 CLR 50).
3. The judge also has an obligation to summarise the respective cases of both the prosecution and the defence, and should remind the jury of the arguments of counsel (*RPS v R* (2000) 199 CLR 620; *R v Mogg* (2000) 112 A Crim R 417; *R v Conway* [2005] QCA 194).
4. The judge may remind the jury of the facts, and assist them to understand those facts (*Stingel v The Queen *(1990) 171 CLR 312; *Brownlee v R *(2001) 207 CLR 278).
5. However, the jury always remain the sole judges of the facts. A judge must therefore not direct the jury about how they may (as opposed to may not) reason towards a conclusion of guilt (*Azzopardi v R* (2001) 205 CLR 50).
6. The role of the judge also includes:
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1.4 Role of the Judge
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- Determining the admissibility of evidence;
- Determining whether there is evidence which, if it is believed, could establish the facts in issue (*Stingel v The Queen *(1990) 171 CLR 312);
- Determining whether inferences can legitimately be drawn from the evidence (*Metropolitan Railway Co v Jackson *(1877) 3 App Cas 193; *Cofield v Waterloo Case Co Ltd *(1924) 34 CLR 363); and
- Exercising proper control over the proceedings, in a way that does not infringe on the accused’s right to a fair trial (*R v Boykovski and Atanasovski *(1991) A Crim R 436).
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7. The judge has power to exclude the jury from the courtroom while hearing arguments on the admissibility of evidence or determining other applications. This power may be exercised whether or not the accused consents (*R v Hendry *(1989) 88 Cr App R 187; *Demirok v R* (1977) 137 CLR 20; *Peacock v R *(1911) 13 CLR 619).
8. The judge should not explain to the jury the specific reason for asking them to leave the room, nor the outcome of the matter heard in the jury’s absence, as it is not relevant to any decisions the jury needs to make, and may wrongly influence them (*R v Williams *[1982] WAR 277; *R v Smith *(1986) 85 Cr App R 197; *Crosdale v R *[1995] 2 All ER 500. See also *Basto v R* (1954) 91 CLR 628; *R v Mitchell* [1998] AC 695; *Thompson v R* [1998] AC 811).
9. However, because there is a danger that the jury will think that material prejudicial to the accused is going to be disclosed in their absence, the jury should be told that they are being asked to leave the room because there is a matter of law that needs to be resolved in their absence (*R v Williams *[1982] WAR 277; *Crosdale v R *[1995] 2 All ER 500; *R v Anderson* (1929) 21 Cr App R 178).
10. The judge must perform all of their tasks in a fair and even-handed manner (*R v Dao* (2005) 156 A Crim R 459; *R v Nguyen *[2006] VSCA 158).
11. See 3.2 Overview of Final Directions and 3.9 Judge’s Summing Up on Issues and Evidence for further information on the role of the judge.
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1.4 Need for a Direction
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## Need for a Direction
1. The judge must always direct the jury about the roles of the judge and jury (*RPS v R *(2000) 199 CLR 620; *R v Sinclair *(1989) 44 A Crim R 449).
2. This direction should usually be given at the commencement of the trial, as well as after the completion of all the evidence and the presentation of argument by counsel (see, e.g. *R v Sinclair *(1989) 44 A Crim R 449).
3. This is because it is good practice to provide some assistance to a jury at the outset of the trial. However, comments which are made at a preliminary stage may not have their significance fully appreciated by the jury, which is unfamiliar with the issues which may arise in the trial (*R v Sinclair *(1989) 44 A Crim R 449).
Last updated: 2 October 2017
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1.4.1 Charge: The Role of Judge and Jury
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# 1.4.1 Charge: The Role of Judge and Jury
## Introduction
Serving on a jury may be a completely new experience for some, if not all, of you. To help you perform that role properly, I will now describe your duties as jurors and the procedures that we will follow during the trial. I will also explain to you some of the principles of law that apply in this case.
During and at the end of the trial, I will give you further instructions about the law that applies to this case. You must listen closely to all of these instructions and follow them carefully.
If at any time you have a question about anything I say, please feel free to ask me. You should do this by writing it down, and passing it to my tipstaff, [*insert name*], who will hand it to me.
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1.4.1 Roles of Judge, Jury and Counsel
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## Roles of Judge, Jury and Counsel
Members of the jury, you represent one of the most important institutions in our community – the institution of trial by jury. Our legal system guarantees any individual charged with a criminal offence the right to have the case presented against him or her determined by twelve independent and open-minded members of the community, in accordance with the law.
In this case, it is alleged by the prosecution that NOA has committed the offence[s] of [*insert offences*].[^1] S/he has pleaded "not guilty", and so it is for you, and you alone, to decide whether s/he is guilty or not guilty of [this/these] crime[s].
I note that, when referring to the crime[s] that the accused has been charged with, I will sometimes use the words "offence" or "charge" – they all mean the same thing.
In all criminal trials of this type, the court consists of a judge and jury. We are going to be assisted in this case by counsel for the prosecution, [*insert prosecutor’s name*], and defence counsel, [*insert defence counsel’s name*].[^2] Each of us has a different role to play.
## Role of the Jury
It is your role, as the jury, to decide what the facts are in this case. You are the only ones in this court who can make a decision about the facts. You make that decision from all of the evidence given during the trial.
It is also your task to apply the law to the facts that you have found, and by doing that decide whether the accused is guilty or not guilty of the offence[s] charged.
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[^1]: This charge is drafted for use in cases involving one accused. If the case involves multiple accused, it will need to be modified accordingly.
[^2]: This sentence will need to be modified if the accused is unrepresented.
[^3]: This section will need to be modified if the accused is unrepresented.
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## Role of the Judge
It is my role, as the judge, to ensure that this trial is fair and conducted in accordance with the law. I will also explain to you the principles of law that you must apply to make your decision. You must accept and follow all of those directions.
I want to emphasise that it is not my responsibility to decide this case. The verdict that you return has absolutely nothing to do with me. So while you must follow any directions I give you about the law, you are not bound by any comments I may make about the facts.
It is unlikely that I will make any comments about the evidence. If you disagree with any comments I make, you must disregard them. Do not give them any extra weight because I, as the judge, have made them. It is your view of the facts which matters, not mine. You are the judges of facts – you alone.
## Role of Counsel
The role of counsel is to present the case for the side for which they appear. [*Insert name of prosecutor*] presents the charge[s] for the prosecution. [*Insert name of defence counsel*] appears for the accused, and will represent him/her throughout the trial.[^3]
You do not need to accept any comments that counsel may make during their addresses. Of course, if you agree with an argument they present, you can adopt it – in effect, it becomes your own argument. But if you do not agree with their view, you must put it aside. As I have told you, you alone are the judges of the facts.
Similarly, you are not bound by what counsel says about the law. I am the judge of the law, and it is what I tell you about the law that matters. If counsel says something different from what I say about the law, you must ignore it and follow my directions.
Last updated: 17 May 2019
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[^1]: This charge is drafted for use in cases involving one accused. If the case involves multiple accused, it will need to be modified accordingly.
[^2]: This sentence will need to be modified if the accused is unrepresented.
[^3]: This section will need to be modified if the accused is unrepresented.
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# 1.5 Decide Solely on the Evidence
1. The jury must be directed to base their verdict solely on the evidence given before them in the trial. In reaching their verdict they must disregard any knowledge they may otherwise have acquired about the case (*Glennon v R *(1992) 173 CLR 592; *Murphy v R* (1989) 167 CLR 94; *R v VPH* 4/3/94 NSW CCA; *R v Vjestica *[2008] VSCA 47).
2. The jury should be told that the following matters constitute evidence:
- The answers to questions asked in court;
- Documents and exhibits admitted into evidence;
- Formal Admissions.
3. The jury should also be directed that the following matters do *not *constitute evidence:
- Questions asked of witnesses (unless the witness agrees with the proposition) (*R v Johnston *[2004] NSWCCA 58; *R v Lowe *(1997) 98 A Crim R 300; *Lander v R *(1989) 52 SASR 424; *R v Robinson *[1977] Qd R 387);
- Counsels’ addresses and arguments (*R v Parsons *[2004] VSCA 92; *R v Lowe *(1997) 98 A Crim R 300);[^1]
- The judge’s addresses and comments (*R v Boykovski and Atanasovski *(1991) A Crim R 436. See 3.9 Judge’s Summing Up on Evidence and Issues for further information).
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[^1]: If the accused is self–represented, the jury should be told that his or her addresses and arguments are also not evidence.
[^2]: Jurors may communicate with court officials about administrative or technical matters (such as setting up equipment) (*Dempster* (1980) 71 Cr App R 302; *R v Barnowski* [1969] SASR 386).
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4. The principle that questions asked of witnesses are not evidence must be approached with caution when applied to puttage by defence counsel to prosecution witnesses. It may unfairly undermine the defence case to say that if the witness rejected the puttage then there is no evidence to support that proposition. Such a direction would only be permissible if there is no other basis in the evidence which provides direct or inferential support for that proposition (*Mathieson v The Queen* [2021] VSCA 102, [31]).
5. It may be desirable to tell the jury that if they disbelieve the answer of a witness, that does not amount to positive evidence of the opposite of that answer. Disbelief of a denial generally provides no evidence of the fact denied. For a matter to be sufficiently proven, there needs to be independent, positive evidence (*Scott Fell v Lloyd *(1911) 13 CLR 230; *Edmunds v Edmunds *[1935] VLR 177; *Gauci v Cmr of Taxation (Cth) *(1975) 135 CLR 81; *Steinberg v FCT *(1975) 134 CLR 640; *R v Lowe *(1997) 98 A Crim R 300).
6. There may, however, be situations where disbelief of a witness allows the jury to draw a further inference, such as a conclusion that the truth would harm the witness, or that the witness is lying. For this reason, it can be dangerous to tell the jury to simply set aside any matter on which a witness is disbelieved, and give it no further consideration. Further, where there are only two possible states of fact, disbelief of one state of facts can support the conclusion that the other set of facts exists (see *Steinberg v FCT* (1975) 134 CLR 640; *Mathieson v The Queen* [2021] VSCA 102, [45]–[56]).
7. The judge should tell the jury that if they are aware of any publicity concerning the case or the accused, this must be placed out of their minds. They must focus only on the evidence led in court (*R v Skaf* (2004) 60 NSWLR 86; *R v Vjestica *[2008] VSCA 47. See "Pre-trial Publicity" below for further information concerning pre-trial publicity).
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[^1]: If the accused is self–represented, the jury should be told that his or her addresses and arguments are also not evidence.
[^2]: Jurors may communicate with court officials about administrative or technical matters (such as setting up equipment) (*Dempster* (1980) 71 Cr App R 302; *R v Barnowski* [1969] SASR 386).
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8. The judge should also tell the jury to disregard any feelings of prejudice or sympathy they may have in relation to the accused (*Glennon v R *(1992) 173 CLR 592).
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[^1]: If the accused is self–represented, the jury should be told that his or her addresses and arguments are also not evidence.
[^2]: Jurors may communicate with court officials about administrative or technical matters (such as setting up equipment) (*Dempster* (1980) 71 Cr App R 302; *R v Barnowski* [1969] SASR 386).
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## External Communications
9. The jury should be told to avoid speaking to any people in the precincts of the court (*R v Skaf* (2004) 60 NSWLR 86).
10. The jury should also be told not to discuss the case with anyone other than their fellow jurors, and to do that only in the privacy of the jury room (*R v Skaf* (2004) 60 NSWLR 86).
11. This includes communicating about the case with court officials.[^2] All questions about the case should be directed to the judge (*R v Stretton *[1982] VR 251; *R v Emmett* (1988) 14 NSWLR 327; *Jackson & Le Gros v R* [1995] 1 Qd R 547; *R v Briffa & Portillo* 21/4/96 Vic CCA; *R v GAE* (2000) 1 VR 198. See 1.10 Trial Procedure for further information about juror questions).
12. Jurors should be told not to bring mobile telephones or computers into the jury room (*R v Skaf* (2004) 60 NSWLR 86; *R v McCluskey* (1994) 98 Cr App R 216; *R v Evans* (1995) 79 A Crim R 66).
13. It is useful to explain to the jury that one of the reasons for the prohibition against discussing the case is that most people will want to make observations about the case. Such observations will be of no value, since these people will not have heard or seen the evidence, or received directions which are binding upon them, and they will not be subject to the same oath or affirmation as the jurors (*R v Skaf* (2004) 60 NSWLR 86).
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[^1]: If the accused is self–represented, the jury should be told that his or her addresses and arguments are also not evidence.
[^2]: Jurors may communicate with court officials about administrative or technical matters (such as setting up equipment) (*Dempster* (1980) 71 Cr App R 302; *R v Barnowski* [1969] SASR 386).
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1.5 Juror Enquiries
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## Juror Enquiries
1. It is an offence for a juror to "make an enquiry" for the purpose of obtaining information about a party to the trial or any matter relevant to the trial, except in the proper exercise of his or her functions as a juror (*Juries Act 2000 *(Vic) s 78A(1)).
2. "Making an enquiry" is defined to include:
- Consulting with another person or requesting another person to make an enquiry;
- Conducting research by any means (including using the internet) (see "Independent Research" below); or
- Viewing or inspecting a place or object that is relevant to the trial, or conducting an experiment (see ***Private Views and Experiments*** below) (*Juries Act 2000 *(Vic) s 78A(5)).
3. This offence applies to all jurors from the time they are selected or allocated as part of the jury panel, until they are either excused from jury service, returned to the jury pool or discharged by the trial judge (*Juries Act 2000 *(Vic) s 78A(2)).
4. Jurors are not prohibited from making an enquiry of the court, or another member of the jury, in the proper exercise of their functions as a juror (*Juries Act 2000 *(Vic) s 78A(3)).
5. Although the *Juries Act 2000 *does not specify that judges must direct the jury about s 78A, this provision should be drawn to their attention (see, e.g. *Martin v R* (2010) 28 VR 579; *DPP v Dupas *[2010] VSC 409; *R v Rich (Ruling No 7) *[2008] VSC 437).
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1.5 Independent Research
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## Independent Research
1. It is highly desirable for judges routinely to instruct the jury not to undertake any independent research (by internet or otherwise) concerning:
- The parties to the trial;
- Any other matter relevant to the trial; or
- The law applicable to the case (*Martin v R* (2010) 28 VR 579; *R v K *(2003) 59 NSWLR 431. See also *Juries Act 2000 *(Vic) s 78A; *Benbrika v R* (2010) 29 VR 593).
2. Judges should not avoid giving such a warning merely because they fear that it might place the idea in the mind of an inquisitive juror, and result in them conducting the kind of research the warning is intended to prevent (*R v K *(2003) 59 NSWLR 431).
3. It is not sufficient merely to direct the jury that they must be true to their oath, to decide the case on the evidence and to identify the sanctions which apply to jurors who disobey the instructions. The judge must explain the reasons for the prohibition and how such conduct risks injustice and an unfair trial (*SD v R* (2013) 39 VR 487; *R v Skaf* (2004) 60 NSWLR 86; *R v K* (2003) 59 NSWLR 431).
4. The main reasons for the prohibition are that:
- Independent research may involve acting on information that is not tested and may be wrong or inaccurate;
- Independent research will involve acting on information which is unknown to the parties, which would be unfair. It is not for the jury to add to the evidence called by the parties;
- Independent research may lead the jury to take into account legal principles that do not apply in the jurisdiction.
5. It is not inappropriate or improper for a jury to consult a dictionary about the meaning of an ordinary English word which they are told is a question for them (*Benbrika v R* (2010) 29 VR 593. See also *R v Chatzidimitriou *(2000) 1 VR 493 (Cummins AJA)).
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1.5 Private Views and Experiments
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## Private Views and Experiments
1. The jury should be told they must not, either individually or as a group:
- Make a private visit to the scene of the alleged offence;
- Attempt any private experiment concerning any aspect of the case; or
- Cause or request anyone else to do one of these things (*R v Skaf* (2004) 60 NSWLR 86. See also *Juries Act 2000 *(Vic) s 78A).
2. The judge should tell the jury that to commit any of these acts would be to change their role from that of impartial jurors to investigators, and would lead them to take into account material that was not properly placed before them as evidence. Such material might require expertise in order to ensure that the inspection or experiment was properly conducted. In addition, the prosecution and the defence would be unaware of the material the jury were taking into account, and would be unable to test it (*R v Skaf* (2004) 60 NSWLR 86).
3. The jury should also be told that it is only views or experiments which occur in the presence of all jurors, counsel and the judge that are permitted. This allows safeguards to be taken to replicate the conditions which existed at the time of the relevant events. It also allows any relevant differences in the crime scene or in the circumstances of the experiment to be pointed out (*R v Skaf* (2004) 60 NSWLR 86).
4. See Views for further information concerning legitimate views, experiments, demonstrations and reconstructions.
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1.5 Jury Room Experiments
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## Jury Room Experiments
1. As material objects produced in evidence and admitted as exhibits are part of the evidence in a trial, the jury are entitled to examine them and have regard to them in reaching their verdict. They may touch and handle them, and may engage in a limited amount of simple experimentation with them (*Kozul v R *(1981) 147 CLR 221).
2. In conducting such simple experiments, the jury are doing no more than using their own senses to assess the weight and value of the evidence. The results do not stand in place of the evidence – they consist of the juror’s perceptions of the evidence itself (*Kozul v R *(1981) 147 CLR 221).
3. While the jury may conduct simple experiments in the jury room, they must not conduct experiments in the absence of the parties that go beyond the mere examination and testing of the evidence, and become a means of supplying new evidence (*Kozul v R *(1981) 147 CLR 221; *Hodge v Williams *(1947) 47 SR (NSW) 489; *Juries Act 2000 *(Vic) s 78A).
4. So while the judge may encourage the jury to examine exhibits with a view to testing the evidence given, they should not encourage the jury to conduct experiments which will generate new evidence in the jury room (*Kozul v R *(1981) 147 CLR 221).
5. It may be necessary to warn the jury of the possible dangers of conducting even simple experiments in the jury room. For example, the present condition of the object experimented with may not be the same as its condition at the relevant time, or the fact to be observed may be such that a layperson might need to have their observation assisted by expert evidence (*Kozul v R *(1981) 147 CLR 221).
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1.5 Irrelevance of Sentence
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## Irrelevance of Sentence
1. The judge should not tell the jury what the consequences of their verdict will be, unless required to do so by statute. This is because the question of sentence is the exclusive province of the trial judge, and is not relevant to the jury’s determination (*Lucas v R* (1970) 120 CLR 171;* Kingswell v R *(1985) 159 CLR 264; *R v Costi* (1987) 48 SASR 269. See Mental Impairment for a statutory exception to this rule).
2. Counsel should also not refer to the penalty prescribed by law for the offence charged, or make any other reference to the consequences which will flow from the jury’s verdict. If they do, the judge should intervene immediately in order to stop counsel, and instruct the jury that such matters are not their concern and are completely irrelevant to any issues they have to determine (*Attorney-General for South Australia v Brown *[1960] AC 432;* R v Costi* (1987) 48 SASR 269).
3. Counsel may, however, tell the jury that the accused faces an extremely serious charge, of which the law takes a serious view (*R v Neal *(1947) 53 ALR (CN) 616a).
4. Neither the judge nor counsel should mention the jury’s right to add a rider to the verdict, or to make a recommendation for mercy (*Lucas v R *(1970) 120 CLR 171; *R v Black *[1963] 1 WLR 1311).
5. The judge must not tell the jury that the accused will not be prosecuted again on any other charge related to the matter in issue (*R v Morton *[2001] QCA 240).
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1.5 Pre-trial Publicity
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## Pre-trial Publicity
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1.5 Pre-trial Publicity
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1. Where there has been pre-trial publicity about a case, or the people involved in a case, the judge has a responsibility to avoid unfairness to either party (*Glennon v R *(1992) 173 CLR 592; *R v Vjestica *[2008] VSCA 47; *R v Dupas* (2009) 28 VR 380).
2. In most cases, it will be possible to overcome any potential prejudice the accused might suffer due to pre-trial publicity by giving the jury appropriate and thorough directions designed to counteract such prejudice (*Dupas v R* (2010) 241 CLR 237; *Glennon v R *(1992) 173 CLR 592; *R v Vjestica *[2008] VSCA 47; *R v Dupas* (2009) 28 VR 380). See *Dupas v R* (2010) 241 CLR 237 for an example of such directions.
3. In determining whether such a direction will be sufficient to counter the effects of pre-trial publicity, jurors should not be regarded as exceptionally fragile and prone to prejudice. It should be assumed that they approach their task in accordance with the oath they take to listen to the directions that they are given, and to determine guilt only on the evidence before them (*Dupas v R* (2010) 241 CLR 237; *Glennon v R *(1992) 173 CLR 592; *John Fairfax Publications Pty Ltd v District Court of NSW *(2004) 61 NSWLR 344; *R v Vjestica *[2008] VSCA 47; *R v Dupas* (2009) 28 VR 380).
4. It is not necessary for a judge to be sure that any possible prejudice will be remediable by a warning, so long as they take all appropriate steps available to secure a fair trial (*Glennon v R *(1992) 173 CLR 592; *Murphy v R* (1989) 167 CLR 94).
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5. If a judge determines that a warning alone will be insufficient to counter the effects of pre-trial publicity, they may conduct the trial in whatever manner is appropriate to counter those effects, within the ordinary procedural constraints. This includes adjourning the trial until the influence of prejudicial publicity subsides (*Glennon v R *(1992) 173 CLR 592; *R v Dupas* (2009) 28 VR 380. See also *DPP v Dupas *[2010] VSC 409).
6. The balancing of the legitimate interests of the accused and the prosecution will, in almost every case, mean that if the proceedings are to be stayed at all, they should only be stayed temporarily and for the minimum period necessary (*Glennon v R *(1992) 173 CLR 592;* R v VPH* 4/3/94 NSW CCA; *R v Dupas *(2009) 28 VR 380. See also *DPP v Dupas *[2010] VSC 409).
7. However, there may be extreme cases in which a permanent stay may be granted (*Dupas v R* (2010) 241 CLR 237; *Glennon v R *(1992) 173 CLR 592).
8. A permanent stay will only be necessary if there is a fundamental defect going to the root of the trial of such a nature that there is nothing the judge can do in the conduct of the trial to relieve against its unfair consequences (*Dupas v R* (2010) 241 CLR 237; *Glennon v R *(1992) 173 CLR 592).
9. A permanent stay should not be granted simply because there has been extensive adverse pre-trial publicity about the accused. Any unfair consequences of prejudice or prejudgment arising out of such publicity can be protected against by thorough and appropriate directions to the jury (*Dupas v R* (2010) 241 CLR 237).
10. In considering whether to grant a permanent stay, judges should take into account the substantial public interest of the community in having those who are charged with criminal offences brought to trial. Fairness to the accused is not the only consideration bearing on a court’s decision as to whether a trial should proceed (*Dupas v R* (2010) 241 CLR 237).
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1.5 Notifying the Judge About Irregularities
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## Notifying the Judge About Irregularities
1. The jury should be directed that if it becomes apparent to any of them, in the course of the trial, that another juror has made an independent inquiry in relation to any aspect of the case, that should be brought immediately to the attention of the judge. This includes discovering that a juror has:
- Made an inquiry about the accused or the background to the offence, or caused someone else to do so;
- Made a private inspection of a relevant site, conducted a private experiment, or caused someone else to do one of these things; or
- Discussed the case with anyone other than the remaining members of the jury (*R v Skaf* (2004) 60 NSWLR 86).
2. The jury should also be instructed that if it becomes apparent to any juror, in the course of the trial, that any matter which is not in evidence has found its way into the jury room, that should similarly be brought immediately to the attention of the trial judge (*R v Skaf* (2004) 60 NSWLR 86).
3. The jury should be told that the reason why it is necessary for such matters to be brought to the immediate attention of the judge is that, unless it is known before the end of the trial, it may not be possible to put matters right. This may either lead to an injustice occurring or a retrial becoming necessary (*R v Skaf* (2004) 60 NSWLR 86).
4. These directions should be expressed in specific terms, rather than simply instructing the jury to bring to the judge’s attention any behaviour among the jurors that causes concern (cf. *R v Mirza *[2004] 1 WLR 665). Such a general direction may lead to matters being brought to the judge’s attention which would involve inappropriate criticism of fellow jurors, or lead to the disclosure of jury deliberations (*R v Skaf* (2004) 60 NSWLR 86).
Last updated: 14 May 2021
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1.5.1 – Charge: Decide Solely on the Evidence[^1]
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# 1.5.1 – Charge: Decide Solely on the Evidence[^1]
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[^1]: This document was last updated on 17 May 2019.
[^2]: If the accused is unrepresented, the jury should be told that what s/he says in his/her addresses, or when questioning witnesses, is also not evidence.
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1.5.1 – Charge: Decide Solely on the Evidence[^1]
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## Introduction: What is Evidence?
I have told you that it is your task to determine the facts in this case, and that you should do this by considering all of the evidence presented in the courtroom. I now need to tell you what is and what is not evidence.
The **first** type of evidence is what the witnesses say.
It is the answers that you hear from the witnesses that are the evidence, and not the questions they are asked. This is important to understand, as sometimes counsel will confidently include an allegation of fact in a question they ask a witness. No matter how positively or confidently that allegation is presented, it will not form part of the evidence unless the witness agrees with it.
*[Add the following shaded section if the judge believes it is necessary to further explain this point.]*
Let me give you a simple example that has nothing to do with this case. Imagine counsel says to a witness “The car was blue, wasn’t it?”, and the witness replies “No, it wasn’t”. Given that answer, there is absolutely no evidence that the car was blue.
Even if you do not believe the witness, or think he or she is lying, there is no evidence that the car is blue. Disbelief of a witness’s answer does not provide evidence of the opposite. To prove that the car was blue, there would need to be evidence from some other source, such as a photograph or the testimony of another witness.
Of course, if the witness had instead replied “yes, it was”, there would be evidence that the car was blue. In such a case, the witness has adopted the suggestion made in the question. However, if the witness does not agree with that suggestion, the only evidence you have is that the car was not blue.
The **second** type of evidence is any document or other item that is received as an “exhibit”. The exhibits will be pointed out to you when they are introduced into evidence. When you go to the jury room to decide this case, some of the exhibits will go with you for you to examine. Consider them along with the rest of the evidence and in exactly the same way.
*[Add the following shaded section if any formal admissions are likely to be put before the jury.]*
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1.5.1 – Charge: Decide Solely on the Evidence[^1]
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The **third** type of evidence is what is called an “admission”. Admissions are facts that the prosecution and defence agree about. When that happens, no other evidence is required – the admissions are treated as established facts. I will tell you about any admissions that have been made in this case when relevant.
Nothing else is evidence in this case. This includes comments about the facts made by counsel.[^2] The only evidence is the witnesses’ testimony, [the admissions] and the exhibits.
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1.5.1 No Sympathy or Prejudice
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## No Sympathy or Prejudice
It is your duty to decide this case **only** on the basis of that evidence. You must ignore all other considerations.
In particular, you should dismiss any feelings of sympathy or prejudice you may have, whether it is sympathy for, or prejudice against, the accused or anyone else. No such emotion has any part to play in your decision.
You are the judges of the facts. That means that in relation to all of the issues in this case, you must act like judges. You must dispassionately weigh the evidence logically and with an open-mind, not according to your passion or feelings. Your duty is to consider the evidence using your intellect not your heart.
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1.5.1 No Outside Information
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## No Outside Information
When you retire to consider your verdict, you will have heard or received in court, or otherwise under my supervision, all the information that you need to make your decision.
Unless I tell you otherwise, you must not base your decision on any information you obtain outside this courtroom. For example, you must completely ignore anything that you have seen or heard in the media about this case or the people involved in it, or which you may see or hear. You must consider only the evidence presented to you here in court [*if a view may be conducted add: “or otherwise under my supervision*”].[^3]
Most importantly, you must **not** make any investigations or enquiries, or conduct independent research, concerning any aspect of the case or any person connected with it. That includes research about the law that applies to the case. You must not use the internet to access legal databases, legal dictionaries, legal texts, earlier decisions of this or other courts, or other material of any kind relating to the matters in the trial. You must not search for information about the case on Google or conduct similar searches. You also must not discuss the case on Facebook, X or blogs, or look at such sites for more information about the case. If you believe you need more information, ask me. Part of my role is to ensure you understand the legal issues in the case.
You may ask yourself the question: what is wrong with looking for more information? Seeking out information, or discussing a matter with friends, may be a natural part of life for you when making an important decision. As conscientious jurors, you may think that conducting your own research will help you reach the right result. However, there are three important reasons why using outside information, or researching the case on the internet, would be wrong.
First, media reports, claims made outside court and information in legal databases you find may be wrong, inaccurate or not relevant. The prosecution and defence will not have a chance to test the information. Similarly, I will not know if you need any directions on how to use such material.
Second, deciding a case on outside information, which is not known to the parties, is unfair to both the prosecution and the defence. The trial is conducted according to well established legal principles and its not for you to go looking for other information or to add to the evidence or the directions I will give you.
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[^3]: If there has been significant pre-trial publicity about the case or the parties involved, it may be necessary to give a more detailed warning. See 1.5 Decide Solely on the Evidence for further information.
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Third, acting on outside information would be false to the oath or affirmation you took as jurors to give a true verdict according to the evidence. You would cease being a juror, that is, a judge of the facts, and have instead taken on the role of an investigator.
If one of your fellow jurors breaches these instructions, then the duty falls on the rest of you to inform me or a member of my staff, either in writing or otherwise, without delay. These rules are so important that you must report your fellow juror.
[*Add the following shaded section if there is a risk that a juror may visit the crime scene or attempt a private experiment*.]
For similar reasons, unless I tell you otherwise, you must not visit the scene of the alleged offence. You also must not attempt any private experiments concerning any aspect of the case. As I have explained, you are jurors assessing the evidence which is led in the case. You are not investigators, and must not take into account material that has not been properly presented to you as evidence.
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[^3]: If there has been significant pre-trial publicity about the case or the parties involved, it may be necessary to give a more detailed warning. See 1.5 Decide Solely on the Evidence for further information.
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## Consequences of breaching instructions
You may have a question about what could happen if you acted on outside information or conducted your own research.
The immediate outcome is that the jury may need to be discharged and the trial may have to start again. This would cause stress and expense to the witnesses, the prosecution and the accused. It would also cause stress and inconvenience to the other jurors, who will have wasted their time sitting on a case which must be restarted.
Second, it is a criminal offence for a juror to discuss the case with others or to conduct research on the case. You could therefore be fined and receive a criminal conviction, which may affect your ability to travel to some countries. Jurors have even been sent to jail for discussing a case on Facebook.
More broadly, jurors conducting their own research undermines public confidence in the jury system. The jury system has been a fundamental feature of our criminal justice system for centuries.
For all these reasons, it is essential that you decide the case solely on the evidence presented in court, without feelings of sympathy or prejudice. You must not conduct your own research into the case or discuss the case with others who are not on the jury.
[*Judges may describe a specific example of the consequences of breaching instructions*]
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## Warnings About Discussing the Case
As judges of the facts, it is also important that you are careful to avoid any situations that could interfere with your ability to be impartial, or that could make you appear to be biased towards one side or the other.
You must therefore be careful not to get into conversation with anyone you do not know, who you might meet around or near the court building. Otherwise you may find yourself talking to someone who turns out to have a special interest in the case.
You must also avoid talking to anyone other than your fellow jurors about the case. This includes your family and friends. You must not discuss the case on social media sites, such as Facebook, X, Instagram, blogs or anything else like that. Of course, you can tell your family and friends that you are on a jury, and about general matters such as when the trial is expected to finish. But do not discuss the case itself or talk about the evidence. It is your judgment, not theirs, that is sought. You should not risk that judgment being influenced by their views – which will necessarily be uninformed, because they will not have seen the witnesses or heard the evidence.
[*If the judge considers it appropriate to warn against discussing the case with a doctor or psychologist, add the following shaded section*]
If you speak to a medical professional during the trial, such as a doctor or a regular psychologist that you see, you could tell them you are on a jury if that is relevant. But as with your family and friends, you must not talk to them about the evidence, the arguments, or the opinions of your fellow jurors. Those are confidential between you and your fellow jurors, and must not be disclosed even to a medical professional.
[*If the judge considers it appropriate to inform the jury of the Juror Support Program, add the following shaded section*]
At the end of the trial, you will have the option to access a Juror Support Program. A Juries Victoria staff member will give you more information about that in due course.
[*If the case is likely to involve distressing material, add the following shaded section instead of the shaded section directly above*]
As this case involves charges of [identify relevant charges], you may hear or see evidence that may be distressing. [If desired, give an example, such as crime scene photos or evidence from the complainant]. Everyone has a different response to the sorts of material that are part of a criminal trial.
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At the end of the trial, you will have access to a Juror Support Program. A Juries Victoria staff member will give you more information about that in due course.
Some of you might have a regular doctor or psychologist you speak to about distressing experiences. But as a juror there are limits on what you can say during the trial, even to medical professionals. You can tell them you are on a jury. You can also tell them about what effect the trial and the evidence has on you. But you must not tell them what the evidence is, or what the arguments are, or what fellow jurors have said. All those matters are confidential. And like with your friends and family, you must not risk having your view of the case influenced by medical professionals.
You are free to discuss the case amongst yourselves as it continues, although you should only do this in the jury room. However, you should form no conclusive views about the case until you have heard all of the evidence, listened to counsel on both sides, and received my instructions about the law. Keep an open mind.
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## Consequences of breaching instructions revisited
You have already heard what can happen when jurors disregard the instruction not to conduct their own research. Similar consequences can follow if you discuss the case with others.
You must therefore also let me know if someone tries to discuss the case with you, or if you learn that one of your fellow jurors has been discussing the case with someone outside the jury.
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1.6 Assessing Witnesses
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# 1.6 Assessing Witnesses
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[^1]: See Common Law Intoxication for information about other directions that may be necessary in cases involving intoxication.
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1. It is for the jury, who have seen and heard the witnesses, to decide whether they accept their evidence. They are free to accept or reject the whole of a witness’s evidence, or to accept some of the evidence and reject the rest (*Cubillo v Commonwealth* (2000) 174 ALR 97; *Flint v Lowe* (1995) 22 MVR 1; *S v M* (1984) 36 SASR 316).
2. It is therefore customary to direct a jury that they are not bound to believe the evidence of any witness, and that they are not bound to believe the whole of the evidence of any witness. They should be told that they may accept some parts of a witness’s evidence, but not other parts (*Cubillo v Commonwealth* 174 ALR 97; *Dublin, Wicklow & Wexford Railway Co v Slattery* (1878) 3 App Cas 1155).
3. The jury should also be directed that it is their duty to keep an open mind about the truthfulness of any individual witness, and about the accuracy of that witness’s recollection, until all the evidence has been presented. It is only once they have heard all of the evidence that it will be possible for them to assess to what extent, if any, that witness's evidence has been confirmed, explained or contradicted by the evidence of other witnesses. Only then should they direct their minds to the question of whether the guilt of the accused has been proved beyond reasonable doubt (*Haw Tua Tau v Public Prosecutor* [1982] AC 136).
4. Where a witness was intoxicated at the time of the event about which he or she is giving evidence, it may be appropriate to direct the jury that the reliability of his or her evidence may be affected (see, e.g. *O’Leary v Daire* (1984) 13 A Crim R 404; *Bedi v R* (1993) 61 SASR 269; *R v Mathe* [2003] VSCA 165; *R v Baltensberger* (2004) 90 SASR 129; *R v MC *[2009] VSCA 122).[^1]
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[^1]: See Common Law Intoxication for information about other directions that may be necessary in cases involving intoxication.
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5. The judge, prosecutor or defence counsel must not suggest in any way to the jury that an interest in the outcome of the trial is a factor to take into account in assessing the evidence of witnesses generally (*Jury Directions Act 2015* s 44H, as amended in 2017).
6. This is because the jury will likely conclude that the accused has the greatest interest, and so the direction may have the effect of undermining the presumption of innocence (*Robinson v R* (No 2) (1991) 180 CLR 531; *R v McMahon* (2004) 8 VR 101; *Hargraves & Stoten v R* (2011) 245 CLR 257; Criminal Law Review, Department of Justice and Regulation (Vic), [Jury Directions: A Jury-Centric Approach Part 2](https://www.justice.vic.gov.au/jury-directions-a-jury-centric-approach-part-2) (Report, February 2017) 11–14).
7. Suggestions that a witness has a *particular* interest in the outcome of a trial are permitted. For information on directions about assessing the evidence of an accused, see 4.1 The Accused as a Witness.
8. It is undesirable to suggest that a conviction or acquittal will reflect favourably or unfavourably on the credit of a witness, or have some other effect on them (*R v Coulston* [1997] 2 VR 446).
9. The jury should not be told that witnesses must be presumed to be innocent. The presumption of innocence is only relevant to the accused (*Howe v R *(1980) 32 ALR 478).
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[^1]: See Common Law Intoxication for information about other directions that may be necessary in cases involving intoxication.
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Last updated: 2 October 2017
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[^1]: See Common Law Intoxication for information about other directions that may be necessary in cases involving intoxication.
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# 1.6.1 Charge: Assessing Witnesses
In order to decide what the facts are in this case, you will need to assess the witnesses who give evidence. It is up to you to decide how much or how little of the testimony of any witness you will believe or rely on. You may believe all, some or none of a witness’s evidence. It is also for you to decide what weight should be attached to any particular evidence – that is, the extent to which the evidence helps you to determine the relevant issues.
In assessing witnesses’ evidence, matters which may concern you include their credibility and reliability. Credibility concerns honesty – is the witness telling you the truth? Reliability may be different. A witness may be honest, but have a poor memory or be mistaken.
It is for you to judge whether the witnesses are telling the truth, and whether they correctly recall the facts about which they are giving evidence. This is something you do all the time in your daily lives. There is no special skill involved – you just need to use your common sense.
In making your assessment, you should appreciate that giving evidence in a trial is not common, and may be a stressful experience. So you should not jump to conclusions based on how a witness gives evidence. Looks can be deceiving. People react and appear differently. Witnesses come from different backgrounds, and have different abilities, values and life experiences. There are too many variables to make the manner in which a witness gives evidence the only, or even the most important, factor in your decision.
You should keep an open mind about the truthfulness or accuracy of the witnesses until all of the evidence has been presented. This is because it is only once you have heard all of the evidence that it will be possible to assess to what extent, if any, the other evidence in the case confirms, explains or contradicts a particular witness's evidence.
In making your decision, do not consider only the witnesses’ testimony. Also take into account the exhibits [and admissions]. Consider all of the evidence in the case, use what you believe and reject what you disbelieve. Give each part of it the importance which you – as the judge of the facts – think it should be given, and then determine what, in your judgment, are the true facts.
Last updated: 19 December 2006
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# 1.7 Onus and Standard of Proof
## Presumption of Innocence
1. At common law, a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law (*Woolmington** v DPP* [1935] AC 462; *Howe v R* (1980) 32 ALR 478).
2. The presumption is not that the accused is not guilty. It is that the accused is innocent (*R v Palmer* (1992) 64 A Crim R 1).
3. The presumption of innocence has been enshrined in s 25(1) of the *Charter of Human Rights and Responsibilities Act 2006* (Vic).
4. The presumption of innocence is only relevant to the accused. It is a misdirection to tell the jury that witnesses are presumed to be innocent (*Howe v R* (1980) 32 ALR 478).
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## Onus of Proof
## Offences
1. Except for limited statutory exceptions, in criminal trials the onus of proving the accused’s guilt always lies on the prosecution. Accused people do not need to prove their innocence (*Woolmington** v DPP* [1935] AC 462; *He Kaw Teh v R* (1985) 157 CLR 523; *Chugg v Pacific Dunlop Ltd* (1990) 170 CLR 249).
2. If a statute is silent as to who bears the onus of proving an offence, it is presumed that it will be the prosecution (*Chugg v Pacific Dunlop Ltd* (1990) 170 CLR 249; *Stingel v R* (1990) 171 CLR 312; *Czerwinski v Hayes* (1987) 47 SASR 44).
## Defences
3. Unless the onus is placed on the accused by statute, the prosecution will also bear the onus of disproving any defences that arise as issues in a trial (*R v Youssef* (1990) 59 A Crim R 1; *Zecevic v DPP* (1987) 162 CLR 645).
4. Where relevant, the prosecution must therefore prove that the accused’s actions were not:
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[^1]: Provocation is no longer a partial defence to murder (*Crimes Act 1958* s 3B). This provision applies to offences committed on or after 23 November 2005.
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- Accidental (*Woolmington** v DPP* [1935] AC 462; *Griffiths v R* (1994) 125 ALR 545);
- Involuntary as a result of a state of sane automatism (*Bratty v AG for Northern Ireland* [1963] AC 386; *Ryan v R* (1967) 121 CLR 205;* R v Falconer* (1990) 171 CLR 30);
- A result of duress (*Crimes Act 1958* s 322O; *R v Bone* (1968) 52 Cr App R 546; *R v Gill* [1963] 1 WLR 841; *R v Lawrence* [1980] 1 NSWLR 122; *Van den Hoek v R* (1986) 161 CLR 158);
- Formed without the required state of mind due to intoxication (*R v O'Connor* (1980) 146 CLR 64; *R v Coleman* (1990) 19 NSWLR 467);
- Provoked (*Stingel v R* (1990) 171 CLR 312; *Moffa v R* (1977) 138 CLR 601);[^1]
- Committed in self-defence (*Crimes Act 1958* s 322K; *Viro** v R* (1978) 141 CLR 88; *Zecevic v DPP* (1987) 162 CLR 645);
- Done in an honest and reasonable belief in the existence of a state of affairs which, had it existed, would have made the acts innocent (*He Kaw Teh v R* (1985) 157 CLR 523).
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5. The prosecution only needs to disprove a defence if there is evidence, or other relevant material, which gives rise to that defence (*R v Lobell* [1957] 1 QB 547; *Bullard v R* [1957] AC 635; *R v Howe* (1958) 100 CLR 448; *Bratty v AG for Northern Ireland* [1963] AC 386;* Spautz v Williams* [1983] 2 NSWLR 506).
6. The prosecution will need to disprove a defence if there is evidence on which a reasonable jury could decide the issue favourably to the accused, no matter how weak or tenuous the judge considers that evidence to be (*R v Youssef* (1990) 50 A Crim R 1; *Zecevic v DPP* (1987) 162 CLR 645; *R v Kear* [1997] 2 VR 555).
7. The evidence that raises a defence need not have been given by the defence. It is possible for the prosecution evidence to disclose facts which might give rise to a defence (see, e.g. *R v Bonnick* (1977) 66 Cr App R 266; *R v McDonald* [1991] Crim LR 122).
8. If the evidence discloses the possibility of a defence, the judge must instruct the jury that the prosecution needs to disprove that defence, whether or not the defence was raised by the accused (*Zecevic v DPP* (1987) 162 CLR 645).
## Exceptions and Provisos
9. Some statutory offences are stated to be subject to certain qualifications. Whether the onus is on the accused to prove facts that would bring his or her case within the scope of such a qualification, or on the prosecution to disprove the existence of such facts, will depend on how the provision is construed:
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- If the qualification is* part of the definition of the grounds of liability* (known as a “proviso”), the onus of proof will be on the prosecution to prove that the proviso does not apply.
- If the qualification is a *new matter*, which does not form part of the primary grounds of liability, but is a special exception or condition defeating or answering liability that otherwise exists (known as an “exception”), the onus of proof will be on the party seeking to prove the exception (*Darling Island Stevedoring & Lighterage Co Ltd v Jacobsen* (1945) 70 CLR 635; *Barritt v Baker* (1948) VLR 491; *Dowling v Bowie* (1952) 86 CLR 136; *Vines v **Djordjevitch* (1955) 91 CLR 512).
10. Although not determinative, the form of the provision is an important consideration in deciding whether an offence is subject to a “proviso” or an “exception”, and who bears the onus of proof:
- If the qualification exists in a single proposition with the definition of the grounds of liability, it is likely that it is a “proviso”, and that the onus of proof will be on the prosecution;
- If the qualification exists in a distinct provision from that which defines the grounds of the liability, it is likely that it is an “exception”, and that the onus of proof will be on the accused (*Darling Island Stevedoring & Lighterage Co Ltd v Jacobsen* (1945) 70 CLR 635; *Dowling v Bowie* (1952) 86 CLR 136; *Chugg v Pacific Dunlop Ltd* (1990) 170 CLR 249).
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11. However, while the form of the language may provide assistance, ultimately the question is to be determined upon considerations of substance rather than form (*Dowling v Bowie* (1952) 86 CLR 136; *Chugg v Pacific Dunlop Ltd* (1990) 170 CLR 249).
12. The question is whether it is possible to discern a legislative intention to impose upon the accused the ultimate burden of bringing his or her case within the scope of the qualification (*DPP v United Telecasters Sydney Ltd* (1990) 168 CLR 594; *Chugg v Pacific Dunlop Ltd* (1990) 170 CLR 249).
13. This intention may be discerned from express words or by implication (*Chugg v Pacific Dunlop Ltd* (1990) 170 CLR 249; *R v Edwards* [1975] QB 27; *R v Hunt* [1987] AC 352).
14. It may be possible to discern an intention to impose the onus on the accused if legislation prohibits an act from being done unless it is:
- Committed in specified circumstances; or
- Committed by people of a specified class or with specified qualifications; or
- Committed with the licence or permission of specified authorities (*Darling Island Stevedoring & Lighterage Co Ltd v Jacobsen* (1945) 70 CLR 635; *R v Edwards* [1975] QB 27; *R v Hunt* [1987] AC 352; *Chugg v Pacific Dunlop Ltd* (1990) 170 CLR 249).
15. If the qualification relates to a matter that is peculiarly within the knowledge of the accused, that provides a strong indication that it is an exception which the accused will bear the onus of proving (*Chugg v Pacific Dunlop Ltd* (1990) 170 CLR 249; *Darling Island Stevedoring & Lighterage Co Ltd v Jacobsen* (1945) 70 CLR 635; *DPP v United Telecasters Sydney Ltd* (1990) 168 CLR 594; *R v Douglas* [1985] VR 721).
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## Standard of Proof
1. If the onus of proof is on the prosecution, the court is not to find the prosecution case proved unless it is satisfied that it has been proved beyond reasonable doubt (*Evidence Act 2008* s 141(1)).
2. If the onus of proof is on the accused, the court is to find the case of an accused proved if it is satisfied that the case has been proved on the balance of probabilities (*Evidence Act 2008* s 141(2)).
3. Section 141 preserves the position at common law (see, e.g. *Woolmington** v DPP* [1935] AC 462; *Thomas v R* (1960) 102 CLR 584; *La Fontaine v R* (1976) 136 CLR 625; *Chamberlain v R* (No 2) (1984) 153 CLR 521; *Hoch v R* (1988) 165 CLR 292; *R v Falconer* (1990) 171 CLR 30).
## Proof Beyond Reasonable Doubt
4. The standard of “proof beyond reasonable doubt” can be compared with proof on the “balance of probabilities”, which is the standard of proof that applies in:
- Civil cases (*Miller v Minister of Pensions* [1947] 2 All ER 372; *Malec v JC Hutton Pty Ltd* (1990) 169 CLR 638);
- Cases in which the onus is placed on the accused (*Evidence Act 2008* s 141(2); *Sodeman v R* (1936) 55 CLR 192); and
- Determining the jurisdiction of the court (*Thompson v R* (1989) 169 CLR 1; *Ahern v R* (1988) 165 CLR 87).
5. As the High Court recognised in *R v **Dookheea* (2017) 262 CLR 402, [41], judges are encouraged to compare the criminal standard with the civil standard. This is:
an effective means of conveying to a jury that being satisfied of guilt beyond reasonable doubt does not simply mean concluding that the accused may have committed the offence charged or even that it is more likely than not that the accused committed the offence charged.
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6. The prosecution must prove all of the elements of the offence beyond reasonable doubt (*Thomas v R* (1960) 102 CLR 584;* La Fontaine v R* (1976) 136 CLR 62; *Van Leeuwen v R* (1981) 55 ALJR 726; *Chamberlain v R* (No 2) (1984) 153 CLR 521; *Hoch v R* (1988) 165 CLR 292; *R v Falconer *(1990) 171 CLR 30).
7. The prosecution must also disprove beyond reasonable doubt any defences that are raised as issues in a trial (*R v Youssef* (1990) 59 A Crim R 1; *Zecevic v DPP* (1987) 162 CLR 645).
8. The jury does not need to be satisfied beyond reasonable doubt of the existence of each and every fact relied upon to prove an element, or disprove a defence, as long as they are satisfied that the accused’s guilt has been proven beyond reasonable doubt (*Jury Directions Act 2015* s 61; *Shepherd v R* (1990) 170 CLR 573 (Dawson J)).
9. Despite any uncertainty about the scope of the word “matters” in *Jury Directions Act 2015* s 61, the Act is “emphatic in stipulating that it is only the elements of an offence (and disproof of any relevant defence), not some particular piece of evidence or intermediate fact, that must be proved beyond reasonable doubt” (*DPP v **Roder* [2024] HCA 15, [17]).
10. At common law, a jury could not draw an inference of guilt from a fact unless, at the end of the trial, they were satisfied of the existence of that fact beyond reasonable doubt (*Shepherd v R* (1990) 170 CLR 573; *Chamberlain v R (No 2)* (1984) 153 CLR 521; *Knight v R* (1992) 175 CLR 495; *R v **Schonewille* [1998] 2 VR 625). This rule has been abolished by *Jury Directions Act 2015* ss 61 and 62. See 3.6 Circumstantial Evidence and Inferences for further information.
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11. In some cases, there will be critical evidence that would allow a jury to decide the case on that evidence alone. Types of evidence that might have this character include confessions, identification evidence and DNA evidence. In such cases, it may be appropriate for the judge to identify clearly for the jury the importance of that evidence to prove the element. Judges should discuss the issue with counsel and hear submissions on what additional directions or comments are appropriate. One option is to refer to the evidence and direct the jury that it must be satisfied that that evidence proves the element beyond reasonable doubt (*Jury Directions Act 2015* s 61, Example).
12. It is wrong for the jury to consider each item of evidence separately and eliminate it from consideration unless satisfied beyond reasonable doubt. The evidence must be considered together at the end of the trial. One piece of evidence may resolve the jury’s doubts about another (*Chamberlain v R (No 2)* (1984) 153 CLR 521).
13. If, upon review of all the evidence, the jury are left in reasonable doubt about whether the prosecution case has been made out, or are satisfied that the accused’s case has been made out, they must acquit (*Woolmington** v DPP* [1935] AC 462).
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## Meaning of “Beyond Reasonable Doubt”
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14. The following paragraphs summarise common law authorities on the meaning of beyond reasonable doubt. While the primary explanation of the meaning of beyond reasonable doubt is now found in *Jury Directions Act 2015 *s 64 (see Charging the Jury, below), the following principles may be relevant if the jury asks further questions which suggest it is not assisted by the s 64 explanation.
15. “Beyond reasonable doubt” is a composite expression, not intended to be broken into its component parts or analysed. It is designed to convey an accurate impression of the high standard of proof that the prosecution must satisfy. It is not possible to define each of the three words separately, because the phrase means more than the mere sum of its parts (*R v Pahuja* (1987) 49 SASR 191 (Cox J); *R v Chatzidimitriou* (2000) 1 VR 493 (Callaway JA)).
16. The jury itself has the task of determining what a reasonable doubt is, according to standards which the jurors adopt (*R v Chatzidimitriou* (2000) 1 VR 493).
17. A reasonable doubt is one that a jury which is properly aware of its responsibilities (i.e. which heeds the judge’s directions, carefully considers the evidence, and eschews fanciful or unreal possibilities) is prepared to entertain at the end of its deliberations. The jury has the task of determining what is reasonable in the circumstances (*Green v R* (1971) 126 CLR 28; *R v Pahuja* (1987) 49 SASR 191; *R v Neilan* [1992] 1 VR 57; *R v Chatzidimitriou* (2000) 1 VR 493).
18. In principle, the standard of reasonable doubt applies to the jury as a whole, and not to the subjective processes of individual jurors. However, in practice, each individual juror must apply the standard of “beyond reasonable doubt” in their own consideration of the evidence. A judge’s directions on the test therefore are directed as much to individual jurors as to the jury as a whole (*R v **Dookheea* (2017) 262 CLR 402, [35]).
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19. Although in England the term “beyond reasonable doubt” is seen to be synonymous with the term “sure” (see, e.g. *R v Hepworth and Fearnley* [1955] 2 QB 600; *R v **Onufrejczyk* [1955] 1 QB 388), this is not the case in Australia (*Thomas v R* (1960) 102 CLR 584; *Dawson v R* (1961) 106 CLR 1;* R v Punj* [2002] QCA 333; *R v **Cavkic* (No 2) (2009) 28 VR 341; *Benbrika** v R* (2010) 29 VR 593).
20. Proof “beyond reasonable doubt” cannot be expressed mathematically (e.g. as a 99% certainty). Such an approach incorrectly implies that the jury should disregard any doubts that exist once the arbitrarily fixed percentage or rate is reached (*R v **Cavkic* (2005) 12 VR 136).
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## Charging the Jury
## Requirements
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[^2]: Although judges may not need to give this direction, in *Martin v R* (2010) 28 VR 579; [2010] VSCA 153 it was held that until the precise scope of *Juries Act 2000* s 78 has been determined, it would be “wise” to do so. See 1.5 Decide Solely on the Evidence for further information concerning *Juries Act 2000* (Vic) s 78A.
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1. In all criminal cases the judge is required to direct the jury, in clear language, that the onus of proof is on the prosecution (*Thomas v R* (1960) 102 CLR 584; *La Fontaine v R* (1976) 136 CLR 72; *Bartho v R* (1978) 19 ALR 418; *Van Leeuwen v R* (1981) 36 ALR 591; *R v **Schonewille* [1998] 2 VR 625).
2. The judge must instruct the jury that the prosecution has to prove the accused’s guilt beyond reasonable doubt, and that it is for the jury to determine whether this has been done (*R v Neilan* [1992] 1 VR 57; *R v Chatzidimitriou* (2000) 1 VR 493).
3. The judge should tell the jury that the way in which the prosecution must prove the accused’s guilt beyond reasonable doubt is by establishing the elements of the offence to that standard. The accused is entitled to the benefit of any reasonable doubt in the juror’s minds (*R v Reeves* (1992) 29 NSWLR 109; *R v McNamara* 1/12/1998 Qld CA).
4. The charge must not relieve the prosecution of the burden of proving every element of the offence beyond reasonable doubt. Even if there is no evidence concerning a particular element, and that element is not contested by the defence, the judge must not tell the jury that they do not need to consider that element. Every element must be proven beyond reasonable doubt (*Griffiths v R* (1994) 125 ALR 545).
5. If the accused’s counsel identifies that a defence is in issue under *Jury Directions Act 2015* s 11, the judge must instruct the jury that the prosecution must also disprove that defence beyond reasonable doubt (*Jury Directions Act 2015* s 11; *Zecevic v DPP* (1987) 162 CLR 645). It is not sufficient simply to give a general direction about the onus and standard of proof at the beginning of the charge, and not relate it to any defences in issue (*R v Bone* (1968) 52 Cr App R 546; *R v Reeves* (1992) 29 NSWLR 109).
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[^2]: Although judges may not need to give this direction, in *Martin v R* (2010) 28 VR 579; [2010] VSCA 153 it was held that until the precise scope of *Juries Act 2000* s 78 has been determined, it would be “wise” to do so. See 1.5 Decide Solely on the Evidence for further information concerning *Juries Act 2000* (Vic) s 78A.
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6. The judge must give the jury an explanation of the phrase "beyond reasonable doubt" unless there are good reasons for not doing so. This explanation must be given before any evidence is adduced in the trial unless there are good reasons for not doing so (*Jury Directions Act 2015* s 63(1), (2)). The judge must have regard to the submissions of the prosecution and defence in deciding whether either of these good reasons tests are met (*Jury Directions Act 2015* s 63(3)).
7. If the judge decides not to explain beyond reasonable doubt before any evidence is adduced, the judge must give the explanation at the earliest time the judge determines is appropriate (*Jury Directions Act 2015* s 63(4)).
8. The judge may also explain the meaning of beyond reasonable doubt if the jury asks a direct question about its meaning, or a question indirectly raises the meaning of the phrase (*Jury Directions Act 2015* s 63(5)).
9. The judge may repeat the explanation at any time in the trial. When repeating an explanation, the judge does not need to give the explanation in the exact same way they gave it the first time (*Jury Directions Act 2015* ss 63(6), (7)).
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[^2]: Although judges may not need to give this direction, in *Martin v R* (2010) 28 VR 579; [2010] VSCA 153 it was held that until the precise scope of *Juries Act 2000* s 78 has been determined, it would be “wise” to do so. See 1.5 Decide Solely on the Evidence for further information concerning *Juries Act 2000* (Vic) s 78A.
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## Explaining beyond reasonable doubt
10. When explaining the meaning of beyond reasonable doubt, the judge may:
- Refer to the presumption of innocence and the prosecution's obligation to prove that the accused is guilty (J*ury Directions Act 2015* s 64(1)(a); see also *R v ALP* [2002] VSCA 210; *R v Henderson* [1999] VSCA 125;* R v Palmer *(1992) 64 A Crim R; *R v Reeves* (1992) 29 NSWLR 109);
- Indicate that it is not enough for the prosecution to persuade the jury that the accused is probably guilty or very likely to be guilty (*Jury Directions Act 2015 *s 64(1)(b); see also *R v **Wanhalla** *[2007] 2 NZLR 573 at 588 [49]);
- Indicate that it is almost impossible to prove anything with absolute certainty when reconstructing past events and that the prosecution does not have to do so (*Jury Directions Act** **2015* s 64(1)(c); see also *R v **Wanhalla* [2007] 2 NZLR 573 at 588 [49]);
- Indicate that the jury cannot be satisfied that the accused is guilty if the jury has a reasonable doubt about whether the accused is guilty (*Jury Directions Act 2015 *s 64(1)(d));
- Indicate that a reasonable doubt is not an imaginary or fanciful doubt or an unrealistic possibility (*Jury Directions Act 2015* s 64(1)(e); see also *R v **Lifchus* [1997] 3 SCR 320 at 335, 337).
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[^2]: Although judges may not need to give this direction, in *Martin v R* (2010) 28 VR 579; [2010] VSCA 153 it was held that until the precise scope of *Juries Act 2000* s 78 has been determined, it would be “wise” to do so. See 1.5 Decide Solely on the Evidence for further information concerning *Juries Act 2000* (Vic) s 78A.
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11. *Jury Directions Act 2015* ss 63 and 64 reverse the common law principle which restricted a judge's ability to explain the meaning of beyond reasonable doubt.
12. These explanations are capable of applying in a trial for a Commonwealth offence. They are picked up by *Judiciary Act 1903 *s 68 and are not inconsistent with s 80 of the Australian *Constitution *or the specification of the burden of proof in s 13.2 of the *Criminal Code*. They do not diminish the standard of proof and concern about diminishing the standard of proof does not provide a good reason for refusing to give the explanation (see *Farshchi** v The King *[2024] VSCA 235, [29]–[55]).
13. The nature of the directions to be given about the onus and standard of proof will depend upon the particular circumstances of the case, the evidence relied upon by the prosecution and defence, and the way in which that evidence is discussed and commented upon by the trial judge (*Miles v R* [2000] WASCA 364 (Murray J); *Salmon v R* [2001] WASCA 270).
14. Judges should instruct the jury that they must not search legal dictionaries or texts in an attempt to elaborate the meaning of this phrase (*Martin v R* (2010) 28 VR 579; *Juries Act 2000* (Vic) s 78A).[^2]
### *Onus on the Accused*
15. If the burden of proof lies with the accused, the jury must be told that the standard of proof is proof on the balance of probabilities (*Evidence Act 2008 *s 141(2); *Sodeman v R* (1936) 55 CLR 192; *Taylor v Ellis* [1956] VLR 457;* R v Hunt* [1987] AC 352).
16. In any case where the onus is placed on the accused, the judge should direct the jury that:
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[^2]: Although judges may not need to give this direction, in *Martin v R* (2010) 28 VR 579; [2010] VSCA 153 it was held that until the precise scope of *Juries Act 2000* s 78 has been determined, it would be “wise” to do so. See 1.5 Decide Solely on the Evidence for further information concerning *Juries Act 2000* (Vic) s 78A.
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- It is for them to decide if the accused has proved the matter;
- The proof required is less than that required of the prosecution to prove the accused’s guilt (i.e. proof beyond a reasonable doubt); and
- The onus may be discharged by evidence which satisfies them, on the balance of probabilities, of that which the accused must prove (*R v Carr-Briant* [1943] KB 607; *Murray v Murray* (1960) 33 ALJR 521; *Mizzi v R* (1960) 105 CLR 659; *R v Bradley* *(No 2)* (1986) 85 FLR 111).
17. The charge must enable the jury to clearly appreciate the difference between proof beyond reasonable doubt and proof on the balance of probabilities (*Mizzi v R* (1960) 105 CLR 659).
## Prohibited Directions
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[^2]: Although judges may not need to give this direction, in *Martin v R* (2010) 28 VR 579; [2010] VSCA 153 it was held that until the precise scope of *Juries Act 2000* s 78 has been determined, it would be “wise” to do so. See 1.5 Decide Solely on the Evidence for further information concerning *Juries Act 2000* (Vic) s 78A.
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18. The phrase “beyond reasonable doubt” should not be equated with terms such as “sure” or “certain”. While this is permissible in England (see, e.g. *R v Hepworth and Fearnley* [1955] 2 QB 600; *R v **Onufrejczyk* [1955] 1 QB 388), and was done in early Australian cases (see, e.g. *Brown v R* (1913) 17 CLR 570; *Hicks v R* (1920) 28 CLR 36), it is prohibited by current Australian law (*R v **Cavkic* *(No 2)* (2009) 28 VR 341).
19. It is a juror’s task to decide whether, at the end of the day, he or she entertains a doubt which he or she considers reasonable. It is the judge’s task to direct the jury to that effect without, at the same time, inviting jurors to analyse their mental processes too carefully (*R v Chatzidimitriou *(2000) 1 VR 493).
20. Jurors must therefore not be told to subject their doubts to a process of analysis, to determine whether they are reasonable (*Green v R* (1971) 126 CLR 28; *R v Wilson* (1986) 42 SASR 203; *R v Pahuja* (1987) 49 SASR 191; *R v Lancefield* [1999] VSCA 176; *R v Chatzidimitriou* (2000) 1 VR 493).
21. The common law prohibition on inviting the jury to subject their doubts to a process of analysis does not mean that jurors do not need to determine if their doubts are reasonable. They must still be satisfied that the accused’s guilt has been proved beyond reasonable doubt, which may involve discounting unreasonable doubts, even if done unconsciously. The prohibition is against requiring jurors to undertake such an analysis (*R v Pahuja* (1987) 49 SASR 191 (Cox J (dissenting)), cited with approval in *R v Neilan* [1992] 1 VR 57; *R v Chatzidimitriou* (2000) 1 VR 493).
### *Deciding Between Guilt and Innocence*
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[^2]: Although judges may not need to give this direction, in *Martin v R* (2010) 28 VR 579; [2010] VSCA 153 it was held that until the precise scope of *Juries Act 2000* s 78 has been determined, it would be “wise” to do so. See 1.5 Decide Solely on the Evidence for further information concerning *Juries Act 2000* (Vic) s 78A.
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22. The jury’s function is not to determine the guilt or innocence of the accused, but to determine whether the accused is guilty beyond reasonable doubt. An accused should be acquitted even if the jury are satisfied that he or she is probably guilty (i.e. probably not innocent), but are not satisfied beyond reasonable doubt that he or she is guilty (*Bartho v R* (1978) 19 ALR 418).
23. As guilty/not guilty is not synonymous with guilty/innocent, it is wrong to tell the jury that their duty is to decide between guilt and innocence. This may suggest that they should convict unless the evidence establishes that the accused was innocent (*Bartho v R* (1978) 19 ALR 418; *R v **Weetra* (1996) 187 LSJS 317; *DPP v Shannon* [1975] AC 717).
### *A Contest of Adversaries*
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[^2]: Although judges may not need to give this direction, in *Martin v R* (2010) 28 VR 579; [2010] VSCA 153 it was held that until the precise scope of *Juries Act 2000* s 78 has been determined, it would be “wise” to do so. See 1.5 Decide Solely on the Evidence for further information concerning *Juries Act 2000* (Vic) s 78A.
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24. It is wrong to suggest that it is for the jury to choose between the prosecution’s version of events and the accused’s version. The issue is not which version of events the jury accepts, but whether the prosecution has negatived the accused’s version as a reasonable possibility (*Murray v R* (2002) 211 CLR 193).
25. Judges should therefore avoid making any statements which suggests the trial is a contest of adversaries – the prosecution and its witnesses against the defence and its witnesses. Criminal trials are accusatory, and it must be made clear that throughout the trial that the prosecution must prove its accusation (*R v **Yildrimtekin* 17/8/1994 NSW CCA).
26. When a case turns on a conflict between the evidence of several witnesses, the judge is permitted to ask the jury to consider who is to be believed. However, if that is done, the judge must give clear and unequivocal directions about the onus and standard of proof, so that there is no risk that the jury will treat the making of a ‘choice’ between the witnesses as the real question, or as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving (*R v KDY* [2008] VSCA 104;* R v SAB* (2008) 20 VR 55; *De Silva v The Queen* (2019) 268 CLR 57, [9]).
27. In cases where the judge considers there is a risk that the jury will be left with an impression that the evidence favourable to the accused must be believed to give rise to a reasonable doubt, the jury may be told that:
- if they believe the evidence that favours the accused, they must acquit;
- if they do not accept the evidence that favours the accused, but think that it might be true, they must acquit – because they will have a reasonable doubt about the prosecution’s case; and
- if they do not believe the evidence that favours the accused, they should put that evidence to one side, and determine, upon the basis of the evidence they do accept, whether the prosecution has proved the accused’s guilt beyond reasonable doubt (*R v RP Anderson* [2001] NSWCCA 488; *De Silva v The Queen* (2019) 268 CLR 57, [12]; *Liberato v R* (1985) 159 CLR 507 (Brennan and Deane JJ)).
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[^2]: Although judges may not need to give this direction, in *Martin v R* (2010) 28 VR 579; [2010] VSCA 153 it was held that until the precise scope of *Juries Act 2000* s 78 has been determined, it would be “wise” to do so. See 1.5 Decide Solely on the Evidence for further information concerning *Juries Act 2000* (Vic) s 78A.
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28. It is not necessary that the judge’s directions accord precisely with the terms endorsed in *De Silva v The Queen *(2019) 268 CLR 57. Issues in the trial may make it inappropriate to give this exact direction (*Krivosic** v The King *[2024] NSWCCA 166, [96]–[97]).
29. For example, where the prosecution seeks to rely on parts of the evidence which are the subject of this direction, it is not appropriate to tell the jury that if they do not believe the evidence from the accused or the other witness, then they put the whole of that evidence aside (*Krivosic** v The King *[2024] NSWCCA 166, [96]–[97]).
30. The judge should not tell the jury that this direction (known as a “*Liberato *direction”) is a ‘comment’ which they are free to disregard. The *Liberato* direction is a direction of law which the jury is bound to follow (*R v BDX* (2009) 24 VR 288; *R v Morrow* (2009) 26 VR 526).
31. While the *Liberato *direction is an elaboration on the onus and standard of proof, it is limited by the *Jury Directions Act 2015*. In particular, it is likely the direction is a ‘particular direction’, which is subject to the Part 3 request process and a judge does not need to give a *Liberato *direction which has not been requested, unless the judge considers there are substantial and compelling reasons to do so (see *De Silva v The Queen* (2019) 268 CLR 57, [10]; *Dastmozd** v The King *[2025] VSCA 138, [88]–[90]).
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[^2]: Although judges may not need to give this direction, in *Martin v R* (2010) 28 VR 579; [2010] VSCA 153 it was held that until the precise scope of *Juries Act 2000* s 78 has been determined, it would be “wise” to do so. See 1.5 Decide Solely on the Evidence for further information concerning *Juries Act 2000* (Vic) s 78A.
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32. It is appropriate to give a *Liberato *direction if there is a reasonable likelihood that the jury will otherwise obtain the impression that they must believe the evidence on which the accused relies to be true before that evidence can give rise to a reasonable doubt about his or her guilt (*R v Niass* [2005] NSWCCA 120;* R v KDY* [2008] VSCA 104; *R v SAB* (2008) 20 VR 55; *R v BDX* (2009) 24 VR 288;* R v Cordell* [2009] VSCA 128).
33. So if, for example, the jury is told that the evidence of the accused and prosecution witnesses cannot both be right, or have been asked whether or not they accept the accused’s evidence, it may be appropriate to give a* Liberato* direction to guard against the possibility that they may be misled about the onus (*R v Nguyen* [2006] VSCA 158).
34. Similarly, a Liberato direction may be appropriate when the accused gives evidence which conflicts with evidence from witnesses called by the prosecution (*Salmon v R* [2001] WASCA 270; *R v Chen, Siregar & Isman* (2002) 130 A Crim R 300).
35. For this purpose, the accused’s evidence may consist of answers given in a record of interview. The need for a *Liberato *direction is not limited to cases where there is sworn evidence from the accused, though the risk of the jury thinking they must choose between the witnesses is likely highest when the accused does give or call evidence (*De Silva v The Queen* (2019) 268 CLR 57, [11]).
36. A *Liberato* direction should be given when the judge compares the relevant evidence, or at some other convenient proximate place in the charge (rather than at the start of the charge) (*R v SAB* (2008) 20 VR 55).
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[^2]: Although judges may not need to give this direction, in *Martin v R* (2010) 28 VR 579; [2010] VSCA 153 it was held that until the precise scope of *Juries Act 2000* s 78 has been determined, it would be “wise” to do so. See 1.5 Decide Solely on the Evidence for further information concerning *Juries Act 2000* (Vic) s 78A.
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### *Sample **Misdirections** (Things that Should Not Be Said)*
Onus of Proof
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[^2]: Although judges may not need to give this direction, in *Martin v R* (2010) 28 VR 579; [2010] VSCA 153 it was held that until the precise scope of *Juries Act 2000* s 78 has been determined, it would be “wise” to do so. See 1.5 Decide Solely on the Evidence for further information concerning *Juries Act 2000* (Vic) s 78A.
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37. It is a misdirection to refer to the “task of the defence in trying to satisfy you that the accused did not intend” to commit the crime (*Thomas v R* (1960) 102 CLR 584).
38. It is wrong to direct the jury that they must acquit the accused if they are satisfied that the prosecution has not made out its case. Such a direction implies that the jury can convict the accused if they are in doubt about whether the prosecution has made out its case, which is contrary to the onus of proof (*Van Leeuwen v R* (1981) 36 ALR 591).
39. It is a misdirection to tell the jury that they must be satisfied, beyond reasonable doubt, that their verdict is the correct one. This might suggest that the jury needs to be satisfied that a verdict of not guilty is correct, when they only need to be satisfied that the prosecution has not established its case beyond reasonable doubt (*Van Leeuwen v R* (1981) 36 ALR 591).
40. It is dangerous to invite the jury to focus on the account of the accused, and to ask themselves how credible they find his or her account, and whether they accept everything he or she has said or have reservations about some parts of his or her evidence. Such an invitation may wrongly suggest to the jury that if they do not unreservedly accept the account given by the accused, the matter will have been proved beyond reasonable doubt. It also tends to suggest that the accused has some obligation to exculpate himself or herself from the allegations made against him or her, implicitly reversing the onus of proof (*R v **Schonewille* [1998] 2 VR 625).
41. For similar reasons, the jury should not be told to ask themselves whether they think it is a reasonable possibility that what the accused says is correct (*R v Holman* [1997] 1 Qd R 373).
42. Judges should not ask a question such as “who else but the accused would have committed this crime?”, as this may undermine the presumption of innocence (*R v Russo* (2004) 11 VR 1).
43. Judges should avoid saying that the onus of proof requires the prosecution to establish that the accused is “not innocent” (*R v Maksimovic* [2007] VSCA 248).
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[^2]: Although judges may not need to give this direction, in *Martin v R* (2010) 28 VR 579; [2010] VSCA 153 it was held that until the precise scope of *Juries Act 2000* s 78 has been determined, it would be “wise” to do so. See 1.5 Decide Solely on the Evidence for further information concerning *Juries Act 2000* (Vic) s 78A.
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44. In giving a *Liberato* direction, a judge must not say that if the jury rejects the accused’s evidence and puts it aside, then it does not raise a reasonable doubt and they will be satisfied of guilt (*Platt v The Queen* [2020] VSCA 130, [19]–[26]).
45. It is wrong to say “If on the evidence that you do accept, you are of the view that there is a reasonable explanation or hypothesis which has been put which you consider the Crown has not disproved, then you would have a reasonable doubt about that aspect”. A reasonable doubt about guilt does not require the jury to positively accept any particular evidence. Further, it does not require the hypothesis consistent with innocence to have been put by the defence. Finally, reasonable doubt about an element is a reasonable doubt about the offence, and should not be confined to being a doubt on ‘that aspect’ (*Mathieson v The Queen* [2021] VSCA 102, [43]).
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[^2]: Although judges may not need to give this direction, in *Martin v R* (2010) 28 VR 579; [2010] VSCA 153 it was held that until the precise scope of *Juries Act 2000* s 78 has been determined, it would be “wise” to do so. See 1.5 Decide Solely on the Evidence for further information concerning *Juries Act 2000* (Vic) s 78A.
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Standard of Proof
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[^2]: Although judges may not need to give this direction, in *Martin v R* (2010) 28 VR 579; [2010] VSCA 153 it was held that until the precise scope of *Juries Act 2000* s 78 has been determined, it would be “wise” to do so. See 1.5 Decide Solely on the Evidence for further information concerning *Juries Act 2000* (Vic) s 78A.
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46. It is a misdirection to tell the jury to consider the words “beyond”, “reasonable” and “doubt” separately, and to consider their own understanding of the word “reasonable” (*R v Reeves* (1992) 29 NSWLR 109).
47. It is undesirable to suggest to a jury that they may have doubts as to minor matters and nonetheless convict the accused. To say this is to weaken the force of the standard of proof (*R v May* [1962] Qd R 456).
48. Judges should not direct the jury that the prosecution has “merely” to prove a matter beyond reasonable doubt. The word “merely” is unnecessary and misplaced (*R v Williams* [1998] 4 VR 301).
49. Judges should not imply that there is a temporal aspect to the standard of proof – that jurors should disregard doubts that they “would entertain for only a second before discarding them as having no substance or being purely theoretical” or doubts that they were only “dallying with for a moment” (*R v McNamara* 1/12/1998 Qld CA).
50. It is a misdirection to tell the jury that they may determine whether the accused is guilty in the same way as they decide serious matters out of court (*Thomas v R* (1960) 102 CLR 584).
51. Judges should not lead the jury to think they must disregard possibilities that do not exceed the level of a “mere” possibility. If jurors have any possibilities in mind which cause them to retain doubt about the accused’s guilt, they should acquit (*R v Lancefield* [1999] VSCA 176).
52. It is wrong to tell the jury to look at the evidence and then “apply the law to whatever you are satisfied took place”. This incorrectly suggests that evidence of an event or circumstance cannot raise a reasonable doubt in the juror’s minds unless they are satisfied that the event or circumstance occurred (*Van Leeuwen v R* (1981) 36 ALR 591).
53. Judges should not refer to community standards when describing the standard of proof (*R v Kidd* [2002] QCA 433; *R v Irlam; Ex-**parte** A–G* [2002] QCA 235).
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[^2]: Although judges may not need to give this direction, in *Martin v R* (2010) 28 VR 579; [2010] VSCA 153 it was held that until the precise scope of *Juries Act 2000* s 78 has been determined, it would be “wise” to do so. See 1.5 Decide Solely on the Evidence for further information concerning *Juries Act 2000* (Vic) s 78A.
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54. The following definitions of “proof beyond reasonable doubt” have been held to be misdirections:
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[^2]: Although judges may not need to give this direction, in *Martin v R* (2010) 28 VR 579; [2010] VSCA 153 it was held that until the precise scope of *Juries Act 2000* s 78 has been determined, it would be “wise” to do so. See 1.5 Decide Solely on the Evidence for further information concerning *Juries Act 2000* (Vic) s 78A.
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- Feeling “sure” or “really sure” (*R v Punj* [2002] QCA 333);
- Coming to a feeling of “comfortable satisfaction” that the accused is guilty (*Thomas v R* (1960) 102 CLR 584; *Green v R* (1971) 126 CLR 28);
- Satisfied “to a point of reasonable certainty” (*R v Hildebrandt *(1963) 81 WN (Pt 1) (NSW) 143);
- Satisfied “beyond any skerrick of doubt” (*R v **Chedzey* (1987) 30 A Crim R 451).
55. The following definitions of “reasonable doubt” have been held to be misdirections:
- A “rational doubt” or a “doubt founded on reason” (*Green v R* (1971) 126 CLR 28; *La Fontaine v R* (1976) 136 CLR 625; *R v Lancefield* [1999] VSCA 176);
- A “substantial doubt” (*R v Thompson* [1992] VR 523; *Burrows v R* (1937) 58 CLR 249; *R v Chatzidimitriou* (2000) 1 VR 493);
- A “real” doubt (*R v Pahuja* (1987) 49 SASR 191);
- A “doubt which might affect you in the conduct of your everyday affairs” (*R v Ching* [1976] Crim LR 687)
- The following definitions of what is not a “reasonable doubt” have been held to be misdirections:
- A doubt “having no substance or being purely theoretical” (*R v McNamara* 1/12/1998 Qld CA);
- A “doubt beyond reason” (*R v Wilson* (1986) 42 SASR 203).
### *Juror Questions*
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[^2]: Although judges may not need to give this direction, in *Martin v R* (2010) 28 VR 579; [2010] VSCA 153 it was held that until the precise scope of *Juries Act 2000* s 78 has been determined, it would be “wise” to do so. See 1.5 Decide Solely on the Evidence for further information concerning *Juries Act 2000* (Vic) s 78A.
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56. In responding to a jury question regarding the meaning of “beyond reasonable doubt”, a trial judge is not bound to choose between the options set out in *Jury Directions Act 2015* s 64(1), but may combine multiple options. The answer given, however, needs to disabuse a jury of any erroneous belief regarding the meaning of the phrase “beyond reasonable doubt”.
57. The statutory power for a trial judge to explain the meaning of the phrase “beyond reasonable doubt” does not limit any other power, whether at common law or otherwise, a trial judge has to explain the phrase (*Jury Directions Act 2015* s 63(2)).
58. Where the jury seeks further assistance with the concept of reasonable doubt, judges must exercise their discretion as to how to explain the matter to the particular jury (*R v Ching* [1976] Crim LR 687).
59. The trial judge may adapt their explanation so that it responds to the question that the jury asked (*Jury Directions Act 2015* s 64(2)).
60. Amplification of the onus and standard of proof may also be required if a jury question indicates that the jury has not properly understood these matters (*R v **Wickramarane* [1998] Crim LR 565;* R v Collins* 23/2/1999 Qld CA; *R v WG* [2010] VSCA 34).
61. For example, if a jury asks a question which indicates that it is confused about the difference between a matter being “probable” or proved beyond “reasonable doubt”, it is necessary to give a clear direction explaining the difference (*R v Collins* 23/2/1999 Qld CA).
62. Similarly, if the question suggests that the jury may believe that standard will be satisfied if they find the complainant’s evidence to be “plausible”, the judge should make it clear that it is not enough for the complainant’s evidence to appear truthful, or even for its truth to be more likely than not. In order to convict, the jury must be satisfied of the elements of the offence charged beyond reasonable doubt (*R v WG* [2010] VSCA 34).
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[^2]: Although judges may not need to give this direction, in *Martin v R* (2010) 28 VR 579; [2010] VSCA 153 it was held that until the precise scope of *Juries Act 2000* s 78 has been determined, it would be “wise” to do so. See 1.5 Decide Solely on the Evidence for further information concerning *Juries Act 2000* (Vic) s 78A.
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63. It is important that the trial judge does not expand or qualify the direction in such a way as to distract the jury from its task of determining the accused’s guilt beyond reasonable doubt (*R v Lancefield* [1999] VSCA 176).
64. The appropriate way in which to explain the onus or standard of proof will depend on the question asked. It is vital that judges directly address the question, because if not properly resolved, the accused may be convicted on a lesser standard of proof, which would be a serious miscarriage of justice (*R v **Cavkic* (2005) 12 VR 136).
65. For example, if the jury asks the judge to tell it what reasonable doubt is as a ratio (e.g. 70% or 80% certain), that is a question which indirectly raises the meaning of the phrase “beyond reasonable doubt”. The judge will need to address the issue of percentages, to ensure that the jury properly understands that it should not approach the matter in that way. The judge may also give the explanations provided in *Jury Directions Act 2015 *s 64. It will be a miscarriage of justice if the judge simply restates his or her previous directions about the onus and standard of proof without directly responding to the jury’s question (*R v **Cavkic* (2005) 12 VR 136; see also *Jury Directions Act 2015* s 63(1)).
66. If the jury asks what “reasonable” means, a judge may reply that a reasonable doubt is a doubt which the jury considers reasonable (*R v Neilan* [1992] 1 VR 57), and may also explain that a doubt which is imaginary or fanciful, or an unrealistic possibility, is not a “reasonable” doubt and remind the jury that it is almost impossible to prove anything with absolute certainty when reconstructing past events and that the prosecution does not have to do so (*Jury Directions Act 2015* ss 64(1)(d) and (e)).
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[^2]: Although judges may not need to give this direction, in *Martin v R* (2010) 28 VR 579; [2010] VSCA 153 it was held that until the precise scope of *Juries Act 2000* s 78 has been determined, it would be “wise” to do so. See 1.5 Decide Solely on the Evidence for further information concerning *Juries Act 2000* (Vic) s 78A.
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67. If the jury asks whether “reasonable doubt” has an independent definition or is to be determined by jurors, it is desirable to tell it that it is the individual opinions of jurors about what level of “doubt” is “reasonable” that should be applied. Each individual juror must form his or her own view of the matter (*R v Southammavong; R v Sihavong* [2003] NSWCCA 312; compare *R v **Dookheea* (2017) 262 CLR 402, [35]).
68. While it is not a misdirection to provide a dictionary to a jury that has requested a definition of “beyond reasonable doubt”, it is undesirable to do so (*R v Chatzidimitriou* (2000) 1 VR 493 (Phillips JA and Cummins AJA, Callaway JA dissenting)).
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[^2]: Although judges may not need to give this direction, in *Martin v R* (2010) 28 VR 579; [2010] VSCA 153 it was held that until the precise scope of *Juries Act 2000* s 78 has been determined, it would be “wise” to do so. See 1.5 Decide Solely on the Evidence for further information concerning *Juries Act 2000* (Vic) s 78A.
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### *Counsel’s Influence*
69. Historically, it was sometimes thought necessary to amplify the directions about onus and standard of proof because of counsel’s arguments during the trial (*Green v R* (1971) 126 CLR 28; *Thomas v R* (1960) 102 CLR 584; *R v Wilson* (1986) 42 SASR 203; *R v Lancefield* [1999] VSCA 176).
70. For example, if counsel has laboured the emphasis on the onus of proof to such a degree as to suggest that fantastic or completely unreal possibilities ought to be regarded by the jury as affording a reason for doubt, it will be proper and necessary for a judge to restore the balance (*Green v R* (1971) 126 CLR 28; *R v Hettiarachchi* [2009] VSCA 270; *R v Boyle* (2009) 26 VR 219).
71. The need for this rebalancing is likely reduced, due to the obligation and power to explain the meaning of beyond reasonable doubt in *Jury Directions Act 2015* ss 63 and 64, which include a statement that fanciful doubts or unrealistic possibilities are not reasonable doubts.
72. At common law, another way of restoring the balance was to remind the jury of the capacity of the human mind to conjure up fanciful, nervous or unreasonable misgivings about matters which are not in reality in doubt, and to warn them against doing so (*Green v R* (1971) 126 CLR 28; *R v Wilson* (1986) 42 SASR 203; *R v Lancefield* [1999] VSCA 176).
Last updated: 7 August 2025
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[^2]: Although judges may not need to give this direction, in *Martin v R* (2010) 28 VR 579; [2010] VSCA 153 it was held that until the precise scope of *Juries Act 2000* s 78 has been determined, it would be “wise” to do so. See 1.5 Decide Solely on the Evidence for further information concerning *Juries Act 2000* (Vic) s 78A.
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1.7.1 Charge: Onus and Standard of Proof
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# 1.7.1 Charge: Onus and Standard of Proof
It is a critical part of our justice system that people are presumed to be innocent, unless and until they are proved guilty. So before you may return a verdict of guilty, the prosecution must satisfy you that [each of] the accused is guilty of the charge[s] in question.
As the prosecution brings the charge[s] against the accused, it is for the prosecution to prove that/those charge[s]. The accused does/do not have to prove anything. That never changes from start to finish. It is not for the accused to demonstrate his/her/their innocence, but for the prosecution to prove the charge[s] they have brought against him/her/them.
The prosecution must do this by proving [each of] the accused’s guilt of the charge[s] beyond reasonable doubt. You have probably heard these words before, and they mean exactly what they say – proof beyond reasonable doubt.
This is the highest standard of proof that our law demands. It is not enough for the prosecution to prove that the accused is probably guilty, or very likely to be guilty. That would be enough in a civil case, such as where one person sues another for breach of contract. In that situation, matters only need to be proved on what is called the “balance of probabilities”. That is, they need to be shown to be more likely than not.
By comparison, in a criminal trial the prosecution must prove the accused’s guilt beyond reasonable doubt. This means you cannot be satisfied the accused is guilty if you have a reasonable doubt about whether the accused is guilty.
In deciding whether the prosecution has proved its case beyond reasonable doubt, you should remember that it is almost impossible to prove anything with absolute certainty when reconstructing past events and the prosecution does not have to do so. A reasonable doubt is not an imaginary or fanciful doubt, or an unrealistic possibility.
The prosecution does not need to prove every fact that they allege to this standard. It is the essential ingredients or “elements” of the charge[s] that they must prove to this standard. In this case, that means that the prosecution must prove, beyond reasonable doubt, that [*list elements of the primary offence. Repeat for any other offences*].
I will explain these elements to you in detail, and relate them to the evidence in this case, after you have heard all of the evidence.
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However, for now you should know that it is only if you find that the prosecution has proven all of the elements of a charge beyond reasonable doubt that you may find the accused guilty of that charge. If you are not satisfied that the prosecution has done this, your verdict in relation to that charge must be “Not Guilty”.
Your verdict of guilty or not guilty must be unanimous. That is, whatever decision you make, you must all agree on it.
Last updated: 14 May 2024
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# 1.8 Separate Consideration
## Multiple Accused
1. If two or more accused stand trial together, the judge must direct the jury that they are to consider the case against each accused separately (*R v Harbach* (1973) 6 SASR 427;* R v Nessel* (1980) 5 A Crim R 374; *R v Minuzzo and Williams* [1984] VR 417; *R v Mitchell* 5/4/95 NSW CCA; *Nicoletti v R *4/11/97 WA CCA).
2. If evidence is given which is not admissible against each accused,[^1] the judge must also instruct the jury:
- That evidence led in support of a count involving one accused does not provide proof of a count involving another accused; and
- That they must decide the case against each accused solely on the evidence that is admissible in relation to that accused (*R v Minuzzo and Williams *[1984] VR 417; *R v Taouk *17/12/92 NSW CCA; *R v Mitchell* 5/4/95 NSW CCA; *T v R *(1996) 86 A Crim R 293).
3. The judge should usually tell the jury that a certain item of evidence is inadmissible against a particular accused at the time that evidence is tendered. However, whether or not such a direction is given at that stage, it must always be given in the judge’s summing up (*R v Nessel* (1980) 5 A Crim R 374;* R v Towle* (1955) 72 WN (NSW) 338).
4. In the judge’s summing up, he or she must specify which evidence the jury may consider in relation to each accused, and which evidence is inadmissible against each accused. It is insufficient simply to rely on a direction that the jury are to consider the case against each accused separately (*R v Towle* (1955) 72 WN (NSW) 338; *R v Minuzzo and Williams* [1984] VR 417; *R v Mitchell* 5/4/95 NSW CCA; *Nicoletti v R* 4/11/97 WA CCA. See 3.9 Judge’s Summing Up on Evidence and Issues for further information).
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[^1]: If the evidence against one accused is not admissible against a second accused, and this creates a risk that the second accused will be impermissibly prejudiced, the judge may need to consider ordering separate trials (see, e.g. *R v Hauser* (1982) 6 A Crim R 68; *Webb v R* (1994) 181 CLR 41).
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## Multiple Counts
1. If the presentment contains multiple counts, the judge must direct the jury that they have to consider each of the counts separately (*R v PMT* (2003) 8 VR 50; *MFA v R* (2002) 213 CLR 606; *KRM v R* (2001) 206 CLR 221; *R v TJB* [1998] 4 VR 621;* R v Robertson* [1998] 4 VR 30; *R v J** (No** **2)* [1998] 3 VR 602).
2. Such a direction should be given even if all of the evidence is admissible in relation to each count,[^2] because a jury still needs to reach separate verdicts on the counts even if, in reaching those verdicts, it considers the totality of the evidence (*R v Mitchell* 5/4/95 NSW CCA).
3. If evidence is given which is not admissible in relation to each count,[^3] the judge must also instruct the jury:
- That evidence led in support of one count does not provide proof of any other count; and
- That they must decide each count solely on the evidence that is admissible in relation to that count (*R v PMT* (2003) 8 VR 50; *MFA v R* (2002) 213 CLR 606;* KRM v R* (2001) 206 CLR 221; *R v TJB *[1998] 4 VR 621;* R v Robertson* [1998] 4 VR 30; *R v J (No 2)* [1998] 3 VR 602).
4. It is also customary to instruct the jury that:
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[^2]: If evidence which is admissible in relation to one count is admissible in relation to another count as “similar fact evidence”, an appropriate direction as to the permissible and impermissible uses of such evidence will be needed (see 4.17 Tendency Evidence and 4.18 Coincidence Evidence).
[^3]: If evidence which is admissible in relation to one count is not admissible in relation to another count, and in consequence there is a real risk of impermissible prejudice to the accused, the judge may need to consider ordering separate trials (see, e.g. *R v TJB* [1998] 4 VR 621. See also *Crimes Act 1958* s 372).
[^4]: *Jury Directions Act 2015* s 44F uses ‘victim’ instead of ‘complainant’. We have retained ‘complainant’ to maintain consistency across the Charge Book.
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- Combining more than one count in the presentment is a procedure of convenience, but that such convenience should not be permitted to usurp a just outcome, which entitles the parties to have each count considered by reference only to the evidence which applies to that count; and
- If they decide to convict or acquit the accused on one count, it is wrong to reason that he or she is therefore guilty or not guilty (as the case may be) of the other counts. Proof of guilt upon one count is irrelevant to the question of guilt upon any other counts, and jurors should put any decisions they have made in relation to one count out of their minds when considering other counts (*R v Robertson* [1998] 4 VR 30. See also* R v FJB* [1999] 2 VR 425; *T v R *(1996) 86 A Crim R 293; *BRS v R* (1997) 191 CLR 275; *R v TJB* [1998] 4 VR 621;* R v J (No 2)* [1998] 3 VR 602;* R v Appleby* (1996) 88 A Crim R 456).
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[^2]: If evidence which is admissible in relation to one count is admissible in relation to another count as “similar fact evidence”, an appropriate direction as to the permissible and impermissible uses of such evidence will be needed (see 4.17 Tendency Evidence and 4.18 Coincidence Evidence).
[^3]: If evidence which is admissible in relation to one count is not admissible in relation to another count, and in consequence there is a real risk of impermissible prejudice to the accused, the judge may need to consider ordering separate trials (see, e.g. *R v TJB* [1998] 4 VR 621. See also *Crimes Act 1958* s 372).
[^4]: *Jury Directions Act 2015* s 44F uses ‘victim’ instead of ‘complainant’. We have retained ‘complainant’ to maintain consistency across the Charge Book.
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5. These directions will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part (*MFA v R* (2002) 213 CLR 606).
6. The jury should not be told that each count “must be given the same ultimate determination because you will ultimately be asked… your verdict in regard to each count”. Such a direction is likely to be confusing to a jury (*R v Robertson* [1998] 4 VR 30; *R v Ev Costa *2/4/96 Vic CA).
7. In the judge’s summing up, he or she must carefully explain which evidence relates to which count, and which evidence is inadmissible on each count. It is insufficient simply to rely on a direction that the jury are to consider each count separately (*T v R* (1996) 86 A Crim R 293; *R v Mooseek* (1991) 56 A Crim R 36. See 3.9 Judge’s Summing Up on Issues and Evidence for further information).
8. Judges must not *direct* the jury that if they doubt the truthfulness or reliability of the complainant’s[^4] evidence in relation to one charge, then that doubt must be taken into account in their assessment of the truthfulness or reliability of the complainant’s evidence generally or in relation to other charges. This does not limit the ability of a party to make such an argument, or the obligation of the judge to refer to how the parties put their case (*Jury Directions Act 2015* ss 44F–44G, as amended in 2017; see also *R v PMT* (2003) 8 VR 50; contra* R v Markuleski* (2001) 52 NSWLR 82).
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[^2]: If evidence which is admissible in relation to one count is admissible in relation to another count as “similar fact evidence”, an appropriate direction as to the permissible and impermissible uses of such evidence will be needed (see 4.17 Tendency Evidence and 4.18 Coincidence Evidence).
[^3]: If evidence which is admissible in relation to one count is not admissible in relation to another count, and in consequence there is a real risk of impermissible prejudice to the accused, the judge may need to consider ordering separate trials (see, e.g. *R v TJB* [1998] 4 VR 621. See also *Crimes Act 1958* s 372).
[^4]: *Jury Directions Act 2015* s 44F uses ‘victim’ instead of ‘complainant’. We have retained ‘complainant’ to maintain consistency across the Charge Book.
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9. The fact that a complainant fails to give any evidence about a particular offence charged does not mean the tribunal of fact could decide that the complainant has made a prior inconsistent statement. The prosecution opening (which often includes statements about the evidence the prosecutor expects to call) and the indictment are not the complainant’s documents and cannot be used as evidence that the complainant previously gave a different account of the alleged offending. A jury could only find there was a prior inconsistent statement if the complainant was confronted with a previous statement (such as their witness statement to police) and the fact that the complainant omitted any mention of particular charges in their evidence-in-chief. However, undertaking that exercise is forensically risky, as it may provide the witness with an opportunity to give the missing evidence (*Barton v The King *[2025] VSCA 74, [45]-[50]).
10. However, the defence can legitimately argue that an inconsistency between the prosecution’s opening and the evidence as presented demonstrates that the prosecution case lacks the strength the prosecution’s opening might have seemed to present, or is otherwise deficient. An argument pointing to a lack of strength in the case, or which highlights deficiencies, does not require reference to the credit of an individual witness (*Barton v The King *[2025] VSCA 74, [79], [136]).
11. Section 44F also does not require or permit a judge to direct a jury that if it has a doubt about one aspect of a witness' evidence, then the jury should put that aspect to one side. A conclusion that a witness has lied on one matter may provide a basis for doubting the witness' truthfulness on other matters (*Mathieson v The Queen* [2021] VSCA 102, [51]–[55]).
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[^2]: If evidence which is admissible in relation to one count is admissible in relation to another count as “similar fact evidence”, an appropriate direction as to the permissible and impermissible uses of such evidence will be needed (see 4.17 Tendency Evidence and 4.18 Coincidence Evidence).
[^3]: If evidence which is admissible in relation to one count is not admissible in relation to another count, and in consequence there is a real risk of impermissible prejudice to the accused, the judge may need to consider ordering separate trials (see, e.g. *R v TJB* [1998] 4 VR 621. See also *Crimes Act 1958* s 372).
[^4]: *Jury Directions Act 2015* s 44F uses ‘victim’ instead of ‘complainant’. We have retained ‘complainant’ to maintain consistency across the Charge Book.
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1.8 Related Matters
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## Related Matters
## Tendency Warning
1. At common law, it was considered prudent to warn the jury against “tendency reasoning” in cases involving multiple counts, as well as the “separate consideration” direction (see *R v J (No.2)* [1998] 3 VR 602; *R v TJB *[1998] 4 VR 621).
2. Under the *Jury Directions Act 2015*, evidence relevant only to other counts, or admissible on a limited, contextual, basis, will usually fall within paragraph (c) of the definition of “other misconduct evidence” (see *Jury Directions Act 2015* s 26).
3. Where evidence of other counts is “other misconduct evidence”, the judge does not need to give a warning against tendency reasoning, unless the direction is requested (see *Jury Directions Act 2015* ss 15, 29, 30). See 4.17 Tendency Evidence.
Last updated: 23 June 2025
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1.8.1 Charge: Separate Consideration Multiple Accused
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# 1.8.1 Charge: Separate Consideration Multiple Accused
In this trial there are [*insert number*] accused. The prosecution says each of them is guilty. Each of them says they are not guilty. So there are really [*insert number*] trials [all] being heard together.
It would be inconvenient and a great waste of time and money to hold separate trials of each accused on different occasions in different courts on this same matter. So for convenience they are all tried together.
But you must be careful not to allow convenience to override justice. The parties are entitled to have the case against each accused considered separately.
You must consider the case against each accused separately, in light only of the evidence which applies to that accused. You must ask yourselves, in relation to each accused, whether the evidence relating to that accused has satisfied you, beyond reasonable doubt, that s/he is guilty of the offence s/he has been charged with. If the answer is yes, then you should find him/her guilty. If the answer is no, then you should find him/her not guilty.
Last updated: 19 December 2006
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1.8.2 Charge: Separate Consideration Multiple Charges
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# 1.8.2 Charge: Separate Consideration Multiple Charges
In this trial, the prosecution has brought [*insert number*] charges against the accused. While these are separate matters, they are [all] being dealt with in the one trial. This is done for convenience, as it would be expensive and time-consuming to hold a separate trial before a different judge and jury for each charge.
However, you must be careful not to allow convenience to override justice. Both the prosecution and the accused are entitled to have each charge considered separately.
It would therefore be wrong to say that simply because you find the accused guilty or not guilty of one charge, that s/he must be guilty or not guilty, as the case may be, of another.
Each charge must be considered separately, in light only of the evidence which applies to it. You must ask yourselves, in relation to each charge, whether the evidence relating to that charge has satisfied you, beyond reasonable doubt, that the accused is guilty of that particular crime. If the answer is yes, then you should find the accused guilty of that charge. If the answer is no, then you should find the accused not guilty of it.
Last updated: 17 May 2019
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1.9 Alternative Charges
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# 1.9 Alternative Charges
1. The prosecution is entitled to include charges in an indictment that are presented in the alternative. Where this occurs, the jury cannot return a verdict on an alternative charge until it returns a verdict on the principal charge (*LLW v R* (2012) 35 VR 372; [2012] VSCA 54; *Medici v R* (2013) 39 VR 350; [2013] VSCA 111).
2. The judge must ensure that the jury understands this rule. If the jury cannot agree on the principal charge, any agreement on an alternative charge would involve impermissible compromise (*LLW v R* (2012) 35 VR 372; [2012] VSCA 54; *Medici v R* (2013) 39 VR 350; [2013] VSCA 111).
3. Where there are alternative charges on the indictment, the judge, at the start of the trial, should inform the jury that:
- The indictment contains charges in the alternative;
- The alternative charges all relate to the same factual allegations, but will require the jury to consider different legal tests;
- At the end of the trial, the judge will need to take verdicts on each charge sequentially.
4. For information on the obligation to leave alternative charges, see 3.10 Alternative Verdicts.
5. For information on taking verdicts to alternative charges, see 3.12 Taking Verdicts.
Last updated: 11 July 2018
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1.9.1 Charge: Alternative Charges
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# 1.9.1 Charge: Alternative Charges
This charge should be given as part of the preliminary directions where the indictment contains alternatives. This model charge assumes that there is only one incident which involves alternatives. Where there are multiple incidents involving alternatives, this charge will need to be modified.
Members of the jury, my tipstaff is now going to hand you a document called an “indictment”. This document lists the crimes that NOA is charged with. I will tell you more about what each crime involves at the end of the trial. However, there is one matter I want to draw to your attention now.
Charges [*identify relevant alternatives*] are given to you as alternatives. The prosecution does not say that the accused should be convicted of [both/all] of these charges, but of one or the other. This is because they [both/all] relate to the same incident.
At the end of the trial, when you are delivering your verdict[s], you will first be asked for your verdict on [*insert principal offence*], which is the more serious charge. If you reach a verdict of guilty in relation to that charge, you will not be asked for a verdict on [*insert alternative charge*].
It is only if you unanimously reach a verdict of not guilty on [*insert principal offence*] that you will be asked to deliver a verdict on [*insert alternative charge*]. This is because the prosecution is entitled to your verdict on the most serious charge. It would be wrong to compromise and say “we cannot agree on a verdict on charge one, but we agree that the accused is at least guilty of charge two”.
So when you are listening to the evidence, bear in mind that while there are [*insert number of charges*] charges on the indictment, there are actually only [*insert number*] of allegations that relate to different events because the other [*insert number*] charges are alternatives.
Last updated: 11 July 2018
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1.10 Trial Procedure
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# 1.10 Trial Procedure
## Order of Proceedings
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[^1]: This provision overrides the practice of the prosecution not addressing the jury a second time when the accused was unrepresented (see, e.g. *R v Ginies* [1972] VR 494). The prosecution may now determine whether or not to give a closing address if the accused is unrepresented (*R v Marijancevic* [1982] VR 936; *R v Trotter* (1982) 7 A Crim R 8; *R v Zorad* (1990) 19 NSWLR 91).
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1.10 Trial Procedure
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1. To help set the jury at ease, and provide a framework for understanding the nature of the trial, it may be desirable to outline the way in which the trial is likely to proceed.
2. Unless the court otherwise directs, the prosecution must serve on the defence and file in court a summary of the prosecution opening at least 28 days before the trial is due to commence (*Criminal Procedure Act 2009* s 182).
3. Once the prosecution has served its summary of the prosecution opening on the defence, the defence response must serve its response on the prosecution and file the response in court at least 14 days before the trial is listed to commence (*Criminal Procedure Act 2009* s 183).
4. After the jury has been empanelled and the judge has given any preliminary directions, the prosecution will open their case (*Criminal Procedure Act 2009* s 224).
5. Immediately after the prosecution opening, if the accused is represented by a legal practitioner, the defence must present their response to the jury (*Criminal Procedure Act 2009* s 225). However, if the accused is not represented by a legal practitioner, the accused may choose not to present a response.
6. The prosecution opening and the defence response must be restricted to the matters set out in the documents served and filed under *Criminal Procedure Act 2009* ss 182 and 183 (see also *Duong v R* [2017] VSCA 78, [39]–[41]).
7. If there is more than one accused, in the absence of agreement amongst counsel, they must make their addresses in the order in which their names appear on the presentment (*R v Webb* (1992) 64 A Crim R 38).
8. At any time during the trial, the judge may address the jury about the issues in the trial, the relevance of any admissions made, directions given or matters determined prior to the commencement of the trial or any other matters relevant to the jury’s function (*Criminal Procedure Act 2009* s 222).
9. It may be appropriate for the judge to refer to any other preliminary or practical matters which have not yet been addressed by counsel, such as the nature of the trial process and the hours of sitting. See 1.1 Introductory Remarks for further information about matters which may be addressed at this time.
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[^1]: This provision overrides the practice of the prosecution not addressing the jury a second time when the accused was unrepresented (see, e.g. *R v Ginies* [1972] VR 494). The prosecution may now determine whether or not to give a closing address if the accused is unrepresented (*R v Marijancevic* [1982] VR 936; *R v Trotter* (1982) 7 A Crim R 8; *R v Zorad* (1990) 19 NSWLR 91).
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1.10 Trial Procedure
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10. The prosecution will then call their witnesses. At the close of the prosecution case, the defence must choose whether to make a submission that there is no case to answer, to choose to give evidence or call other witnesses, or not give evidence or call witnesses (*Criminal Procedure Act 2009* s 226). It is at the judge’s discretion whether this should be done in the presence or absence of the jury. However, it may be advisable to do so in the absence of the jury in joint trials or in trials in which a no-case submission may be anticipated (*R v Aiton* (1993) 68 A Crim R 578).
11. If there are 2 or more accused, all accused who wish to do so must make a submission that there is no case to answer before any accused indicates whether he or she wishes to give evidence or call witnesses. All submissions of no case to answer must first be resolved and if there are then 2 or more accused remaining, the judge must ask the first accused whether he or she wishes to give evidence or call witnesses. Each accused named subsequently on the indictment is not required to inform the judge of this decision until the close of the case for the previous accused (*Criminal Procedure Act 2009* s 229).
12. If the accused intends to call witnesses, the accused must indicate, when called on by the judge to do so, the names of those witnesses other than the accused and the order in which the witnesses will be called (*Criminal Procedure Act 2009* s 230).
13. The defence may give an opening address before calling the accused or a witness other than the accused (*Criminal Procedure Act 2009* s 231).
14. After the close of all evidence, the prosecution may make a closing address, summing up the evidence (*Criminal Procedure Act 2009* s 234).[^1]
15. After the close of the evidence and after the prosecution closing address, the defence may give a closing address summing up the evidence (*Criminal Procedure Act 2009* s 235).
16. If the accused, in his or her closing address, asserts facts which are not supported by evidence, the judge may allow the prosecution to make a supplementary address which is confined to replying to those assertions (*Criminal Procedure Act 2009* s 236).
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[^1]: This provision overrides the practice of the prosecution not addressing the jury a second time when the accused was unrepresented (see, e.g. *R v Ginies* [1972] VR 494). The prosecution may now determine whether or not to give a closing address if the accused is unrepresented (*R v Marijancevic* [1982] VR 936; *R v Trotter* (1982) 7 A Crim R 8; *R v Zorad* (1990) 19 NSWLR 91).
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17. The power to allow the prosecution to make a supplementary submission under s 236 is limited to cases in which the defence asserts facts which are unsupported by evidence. It does not extend to cases in which the defence makes illogical, extravagant or dishonest defence arguments. It is for the judge to deal with such arguments in his or her charge in a way that restores the balance without engaging in impermissible advocacy for the prosecution (*R v Glusheski* (1986) 33 A Crim R 193; *R v O’Donoghue* (1988) 34 A Crim R 397; *Kamalasanan & Sam v The Queen* [2019] VSCA 180, [97]–[101]; *Mareangareu v The Queen* [2019] VSCA 101, [67]–[99]).
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[^1]: This provision overrides the practice of the prosecution not addressing the jury a second time when the accused was unrepresented (see, e.g. *R v Ginies* [1972] VR 494). The prosecution may now determine whether or not to give a closing address if the accused is unrepresented (*R v Marijancevic* [1982] VR 936; *R v Trotter* (1982) 7 A Crim R 8; *R v Zorad* (1990) 19 NSWLR 91).
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1.10 Juror Questions
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## Juror Questions
## Clarifying Law and Evidence
1. Jurors may question a judge about the evidence presented in a case, or about the relevant law. Judges are under a duty to ensure that jurors receive all of the assistance they require to discharge their task properly (*R v Southammavong; R v Sihavong *[2003] NSWCCA 312; *R v Leggatt *[1971] VR 705).
2. If a communication from the jury indicates that they require assistance on a material aspect of the case, the judge has a duty to ascertain the specifics of the assistance required (*R v Ion *(1950) 34 Cr App R 152; *R v Berry *(1992) 96 Cr App R 77).
3. If the jury asks a second question before the first is answered, the judge should not assume the jury no longer wants an answer to the first question. S/he must ask them whether they still want a response to the original question (*R v De Simone *[2008] VSCA 216).
4. If the jury’s question indicates that they may be speculating or drawing inferences going beyond the evidence, they should be reminded of the extent of the evidence (*R v Adair *(1958) 42 Cr App R 227).
5. When answering the jury’s question, the judge must be careful not to introduce a basis for liability which has not previously been addressed. This may disadvantage the accused, who will have had no opportunity to meet the new case (*R v Falcone *[2008] VSCA 225. See 3.9 Judge’s Summing Up on Issues and Evidence for further information).
6. After answering the jury’s question, the judge should enquire whether the answer covers their concerns. The judge is entitled to accept the foreperson’s affirmative response, if given without dissent (*R v Leggatt *[1971] VR 705;* R v Coombes *16/4/1999 CA Vic).
## Questioning Witnesses
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[^2]: Jurors may communicate with court officials about administrative or technical matters (such as setting up equipment) (*Dempster* (1980) 71 Cr App R 302; *R v Barnowski* [1969] SASR 386).
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