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3.1-c1-s1
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3.1 Directions under Jury Directions Act 2015
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# 3.1 Directions under Jury Directions Act 2015
1. The *Jury Directions Act 2015* codifies the law on:
- obligation of parties to request directions;
- the content of directions on matters including post-offence conduct, other misconduct evidence, unreliable evidence, identification evidence, delay and forensic disadvantage, failure to give or call witnesses, delay and credibility and family violence;
- the judge’s obligations when summing up;
- the meaning of proof beyond reasonable doubt.
2. This topic focuses on the request for direction process.
## Guiding Principles
3. The *Jury Directions Act 2015* contains the following guiding principles:
- the role of a jury is to determine the issues that are in dispute between the prosecution and the accused;
- in recent decades, the law of jury directions in criminal trials has become increasingly complex;
- as jury directions have become complex, technical and lengthy, it has been increasingly difficult for trial judges to comply with the law and has been increasingly difficult for jurors to understand and apply directions;
- research indicates that jurors find complex, technical and lengthy directions difficult to follow;
- it is the responsibility of the trial judge to determine the matters in issue, the directions that should be given and the content of the directions; and
- one of the responsibilities of legal practitioners appearing in a criminal trial is to assist the judge to determine the matters in issue, the directions that should be given and the content of the directions (*Jury Directions Act 2015* s 5).
4. The Act states that it is Parliament’s intention that when giving directions, the judge should:
(a) give directions on only so much of the law as the jury needs to know to determine the issues in the trial; and
(b) avoid using technical legal language whenever possible; and
(c) be as clear, brief, simple and comprehensible as possible (*Jury Directions Act 2015* s 5(4)).
5. The Act also states that it is to be applied and interpreted having regard to the guiding principles (*Jury Directions Act 2015* s 5).
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## Requests for Directions
1. Part 3 of the *Jury Directions Act 2015* creates a process for parties to request directions, and sets out the consequences of a party requesting or failing to request a direction.
2. The purpose of Part 3 is to assist the judge to identify the matters in issue between the parties, the directions that should be given and the content of those directions and ensure that legal practitioners discharge their duty to assist the trial judge to determine those matters (*Jury Directions Act 2015* s 9).
3. Part 3 also sets out how the judge determines what directions to give if the accused is not represented by a legal practitioner.
4. The Act does not prevent judges giving directions which are consistent with the Act which the judge considers necessary before the close of the evidence. However, in deciding whether to give a direction in running, the judge must have regard to the submissions of the parties (*Jury Directions Act 2015 *s 10).
## Directions Request Process
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[^2]: Niall and Boyce JJA also doubted that a direction which removed an element could be a request for “particular directions in respect of the matters in issue” under *Jury Directions Act 2015* s 12(a), stating:
“[a] direction that had the effect of removing a matter in issue, is not easily seen as being a direction in relation to a matter in issue” (at [6]).
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5. Part 3 of the *Jury Directions Act 2015* sets out a process for judges to ask prosecution and defence counsel about the issues in the case at the end of the trial. It is good practice for trial judges to discuss these matters early in the trial, and use the process required under *the Jury Directions Act 2015 *to identify any changes in the position of the parties.
6. After the close of the evidence and before closing addresses, the prosecution must inform the trial judge whether it considers the following matters are open and whether it relies on them:
1. any alternative offence, including an element of any alternative offence;
1. any alternative basis of complicity in the commission of the offence charged and any alternative offence.
7. Once the prosecution has provided this information to the trial judge, defence counsel must inform the trial judge whether or not the following matters are in issue:
1. each element of the offences charged;
2. any defences;
3. any alternative offences and the elements of any alternative offences;
4. any alternative bases of complicity for the offences charged or any available alternative offences (*Jury Directions Act 2015* s 11).
8. While s 11 provides that parties must identify available alternative offences in issue after the close of the evidence, defence counsel may be under an obligation to identify necessary alternative charges earlier in proceedings. This obligation arises where the defence believes the alternative is necessary to ensure a fair trial, and it is clear that the prosecution has rejected the availability of those alternatives (*Chaarani & Ors v The Queen* (2020) 61 VR 353, [89]).
9. After prosecution and defence counsel set out the matters that are or are not in issue, the prosecution and defence counsel must ask that the judge give or not give particular directions about:
1. the matters in issue; and
5. the evidence in the trial relevant to the matters in issue (*Jury Directions Act 2015* s 12).
10. The judge will usually seek requests for directions before final addresses and give the parties an opportunity to make further requests after final directions and after the judge’s charge.
11. Vague terms such as “the directions given in the previous trial” or “delay, impact on credibility” should be avoided in favour of clear identification of any directions sought (*Horton v R* [2015] VSCA 319, [34] (Redlich JA)).
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[^2]: Niall and Boyce JJA also doubted that a direction which removed an element could be a request for “particular directions in respect of the matters in issue” under *Jury Directions Act 2015* s 12(a), stating:
“[a] direction that had the effect of removing a matter in issue, is not easily seen as being a direction in relation to a matter in issue” (at [6]).
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12. The judge must give the jury any directions that are requested, unless there are good reasons for not doing so. The Act specifies that in determining whether there are good reasons for not giving a direction, the judge must consider:
1. the evidence in the trial;
6. the manner in which the parties have conducted their cases, including whether the direction raises a matter not relied on by the accused and whether the direction would involve the jury considering the issues in a manner different from the way the accused presented his or her case (*Jury Directions Act 2015* s 14).
13. Subject to a residual obligation, the trial judge must not give the jury a direction which has not been requested (*Jury Directions Act 2015* s 15).
14. Parties are under an obligation to request the directions they believe should be given. The fact that a judge has given a preliminary indication that a certain direction is not necessary, even in strong terms, does not relieve a party of that obligation. In that situation, parties are expected to attempt, “politely but firmly” to persuade the judge that the direction should be given (*Pyliotis v The Queen *[2020] VSCA 134, [85]).
15. Under the *Jury Directions Act 2013*, the equivalent to section 15 only removed the obligation on a judge to give directions which were not requested. Under the 2015 Act, “the trial judge **must not** give the jury a direction that has not been requested under section 12” (emphasis added). Under the new provision, judges may only give directions which are general directions (and hence not subject to a request), requested directions, or directions under the residual obligation. There is no power for judges to give directions outside these three categories on a discretionary or prudential basis.
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[^2]: Niall and Boyce JJA also doubted that a direction which removed an element could be a request for “particular directions in respect of the matters in issue” under *Jury Directions Act 2015* s 12(a), stating:
“[a] direction that had the effect of removing a matter in issue, is not easily seen as being a direction in relation to a matter in issue” (at [6]).
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## Residual Obligation to Give Directions Not Requested
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[^2]: Niall and Boyce JJA also doubted that a direction which removed an element could be a request for “particular directions in respect of the matters in issue” under *Jury Directions Act 2015* s 12(a), stating:
“[a] direction that had the effect of removing a matter in issue, is not easily seen as being a direction in relation to a matter in issue” (at [6]).
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16. As the trial judge has the responsibility to determine the matters in issue, the directions that are required and the content of the directions, the judge has a residual obligation to give a direction if there are substantial and compelling reasons for doing so, even though the direction has not been sought (*Jury Directions Act 2015* s 16).
17. Reasons will not be substantial and compelling “unless they are of considerable importance and strongly persuasive in the context of the issues in the trial” (*Gul v R* [2017] VSCA 153, [48]).
18. One situation in which there will be substantial and compelling reasons is where the judge considers that the failure to seek the direction is due to incompetence (*Gul v R* [2017] VSCA 153, [48] (Ashley and Priest JJA)).
19. Prior to the commencement of the *Jury Directions Act 2015*, the residual obligation required judges to give a direction where it was necessary to avoid a substantial miscarriage of justice. This test was modified by the 2015 Act to remove the requirement for trial judges to predict how the Court of Appeal may deal with the issue (Explanatory Memorandum, Jury Directions Bill 2015). This new test applies to all trials that commence on or after 29 June 2014.
20. Where a judge considers that a direction is necessary under the residual obligation, he or she must inform the parties that he or she is considering giving the direction and invite submissions about the direction and whether there are substantial and compelling reasons for giving the direction (*Jury Directions Act 2015* s 16).
21. The residual obligation sets a higher threshold for when a direction is necessary than the common law obligation from *R v Miletic* that the judge give “any direction that is necessary and practical, in the circumstances of the case, to avoid a perceptible risk of miscarriage of justice” (*R v Miletic* [1997] 1 VR 593).
22. While the old residual obligation used the same language as the criminal appeal provisions, it did not adopt the jurisprudence that had arisen under *Criminal Procedure Act 2009* s 276. The appeals test invites attention to the strength of the evidence and the impact of the jury’s verdict. Such considerations are inappropriate as a test for whether a direction is necessary at trial (*Xypolitos v R *(2014) 44 VR 423).
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[^2]: Niall and Boyce JJA also doubted that a direction which removed an element could be a request for “particular directions in respect of the matters in issue” under *Jury Directions Act 2015* s 12(a), stating:
“[a] direction that had the effect of removing a matter in issue, is not easily seen as being a direction in relation to a matter in issue” (at [6]).
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23. Under the 2013 Act, the residual obligation was a test of necessity, which was narrower than the common law test. Under the 2013 Act, the judge was required to consider whether there would, not might, be a substantial miscarriage of justice in the absence of the direction. In *Xypolitos v R*, the Court of Appeal held that this:
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[^2]: Niall and Boyce JJA also doubted that a direction which removed an element could be a request for “particular directions in respect of the matters in issue” under *Jury Directions Act 2015* s 12(a), stating:
“[a] direction that had the effect of removing a matter in issue, is not easily seen as being a direction in relation to a matter in issue” (at [6]).
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[R]equires a state of affirmative satisfaction by the trial judge that the direction is of such central importance to one or more issues in the trial that, if the accused is convicted, a failure to give the direction will have occasioned a miscarriage of justice. If the circumstances, considered objectively, did not require such a conclusion, the failure to give the direction would not have amounted to an error in the trial. The trial judge, applying formulations such as that of Barwick CJ in R v Storey, must be satisfied that in the absence of the direction, the appellant will have lost a ‘real chance of acquittal’, or that had the direction been given ‘a reasonable jury might well have acquitted.’ (see also *Tukuafu v R* [2014] VSCA 345, [91]; *Horton v R* [2015] VSCA 319 (Redlich JA)).
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[^2]: Niall and Boyce JJA also doubted that a direction which removed an element could be a request for “particular directions in respect of the matters in issue” under *Jury Directions Act 2015* s 12(a), stating:
“[a] direction that had the effect of removing a matter in issue, is not easily seen as being a direction in relation to a matter in issue” (at [6]).
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24. In most cases, the obligation to identify the directions required and the issues in dispute falls on counsel (*Xypolitos v R* (2014) 44 VR 423; *Horton v R* [2015] VSCA 319 (Redlich JA)).
25. The new terms of the residual obligation are more stringent than under the 2013 Act, and the above extract from *Xypolitos* must be read in that light (*Keogh v R* [2018] VSCA 145, [76]; *Dunn v R* [2017] VSCA 371, [82]).
26. The residual obligation operates in the context of the trial as it has been conducted by the parties. The judge must consider the issues in the case (as identified in accordance with ss 11 and 12 of the *Jury Directions Act 2015*), the forensic decisions of counsel and the way the defence has sought to answer the charge (*Gul v R* [2017] VSCA 153, [48]–[49]. See also *Dunn v R* [2017] VSCA 95, [22]; *Keogh v R* [2018] VSCA 145, [77]; *Arico v R* [2018] VSCA 135, [132]–[133] (Maxwell ACJ and Weinberg JA)).
27. The potential for a direction to be detrimental to the defence case, either generally or on some charges, can exclude the possibility that there are substantial and compelling reasons to give a direction that was not requested (*The Queen v Falzon* [2018] HCA 29, [48]. See also *Keogh v R* [2018] VSCA 145, [80]–[82]).
28. Subject to the residual obligation, the *Jury Directions Act 2015* expressly abolishes the common law requirement to direct on defences or alternative offences open on the evidence which have not been identified as reasonably open during the trial. The judge is also not required to direct on alternative bases of complicity which have not been identified as reasonably open during the trial (*Jury Directions Act 2015* s 17).
## Part 3, the Common Law and Matters Not Raised
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[^2]: Niall and Boyce JJA also doubted that a direction which removed an element could be a request for “particular directions in respect of the matters in issue” under *Jury Directions Act 2015* s 12(a), stating:
“[a] direction that had the effect of removing a matter in issue, is not easily seen as being a direction in relation to a matter in issue” (at [6]).
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29. At common law, a judge had a duty to leave alternative offences to the jury, depending on the evidence and the nature of the offences. See 3.10 Alternative Verdicts.
30. It was also an error to withdraw an element from the jury’s consideration, even if it was not contested by the accused. However, where an element was not in issue in the trial, and the evidence itself did not raise an issue as to the existence of that element, it was not necessary for the judge to direct the jury about that element (*Huynh & Ors v R* [2013] HCA 6; *R v VN* (2006) 15 VR 113; *Griffiths v R* (1994) 125 ALR 545; *R v Simon* [2010] VSCA 66).
31. At common law, if there was evidence that disclosed the possibility of a defence, the judge was also required to instruct the jury that about that defence (*Fingleton v R* (2005) 227 CLR 166; *Zecevic v DPP *(1987) 162 CLR 645; *Pemble v R* (1971) 124 CLR 107; *R v Thompson* (2008) 21 VR 135).
32. This obligation applied even if the judge considered the evidence about a particular defence was weak or tenuous. The judge was required to direct the jury about a defence if there was evidence on which a reasonable jury could decide the issue favourably to the accused (*R v Kear* [1997] 2 VR 555; *R v Youssef *(1990) 50 A Crim R 1; *Zecevic v DPP* (1987) 162 CLR 645).
33. Under Part 3 of the *Jury Directions Act 2015*, the prosecution must indicate whether alternative offences or alternative forms of complicity are relied upon and defence counsel must indicate whether each element of the offence is in issue and whether any defences, alternative offences or alternative bases of complicity are in issue. A judge does not need to direct a jury on matters that are not in issue, subject to the residual obligation to give directions where there are substantial and compelling reasons to do so (see *Gul v R* [2017] VSCA 153, [39]–[40]).
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[^2]: Niall and Boyce JJA also doubted that a direction which removed an element could be a request for “particular directions in respect of the matters in issue” under *Jury Directions Act 2015* s 12(a), stating:
“[a] direction that had the effect of removing a matter in issue, is not easily seen as being a direction in relation to a matter in issue” (at [6]).
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34. In addition, the Act recognises that the manner in which the parties have conducted their case is relevant to deciding if there are good reasons for not giving a direction which has been requested (see *Gul v R* [2017] VSCA 153, [39]–[40]).
35. In *Parker v The King* [2024] VSCA 72, the Court of Appeal considered the situation which arises where it is the trial judge that proposes that certain elements are not in issue and proposes a direction to explain that to the jury. Even though defence counsel accepted the judge’s analysis and proposed direction, the Court of Appeal held that this was not a statement that the elements were not in issue under s 11 (at [123] per Whelan JA) or a request under s 12 for the direction proposed by the judge (at [4]–[5] per Niall and Boyce JJA and [124], [131(2)] per Whelan JA). In any event, the Court concluded that the proposed direction was wrong, and so should not have been given (at [7] per Niall and Boyce JJA and [129] per Whelan JA). This suggests that when judges are too interventionist in the Part 3 conversation process, statements by counsel will not be treated as operative under *Jury Directions Act 2015* ss 11 or 12 and so may not be capable of narrowing the scope of matters in issue.[^2]
36. In contrast to *Parker v The King*, in Court of Appeal in *Zhang v The King* [2024] VSCA 137 observed that the trial judge had proposed certain directions and defence counsel did not, as required by *JDA 2015 *s 12, request that the trial judge not give particular directions. The Court of Appeal treated this as acquiescence in the directions proposed by the judge and that was sufficient to comply with *JDA 2015 *s 12 (at [52]).
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[^2]: Niall and Boyce JJA also doubted that a direction which removed an element could be a request for “particular directions in respect of the matters in issue” under *Jury Directions Act 2015* s 12(a), stating:
“[a] direction that had the effect of removing a matter in issue, is not easily seen as being a direction in relation to a matter in issue” (at [6]).
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3.1 Exceptions to Request for Directions Process
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## Exceptions to Request for Directions Process
1. The request for directions process does not apply to "general directions" or directions the judge must give or must not give under the provisions of the *Jury Directions Act 2015* or another Act (*Jury Directions Act 2015* s 10).
2. "General directions" are defined as "directions concerning matters relating to the conduct of trials generally". The Act contains an inclusive list of general directions which includes:
1. the role of the trial judge, the jury and counsel;
1. the empanelment of a jury and the selection of a foreperson;
2. trial procedure;
3. the need to decide issues on the basis of admissible evidence only;
4. the need to decide each charge separately according to the evidence relating to that charge;
5. the assessment of witnesses;
6. the presumption of innocence and the burden and standard of proof, including what must be proved beyond reasonable doubt;
7. the drawing of conclusions and the distinction between direct and circumstantial evidence;
8. jury deliberations and verdicts.
3. Within this Charge Book, the directions contained in Part 1: Preliminary Directions and Part 3: Final Directions (other than Chapter 3.8) are treated as general directions. The obligation to give such directions is unaffected by Part 3 of the Jury Directions Act 2015.
4. Section 10(b) provides that Part 3 of the Act does not apply to directions the judge must give or must not give under the Jury Directions Act or any other Act. In this Charge Book, at least part of the following directions must be given under an Act and so the Part 3 process does not apply:
- 2.3.2 Protected Witnesses;
- 3.9 Judge’s Summing Up on Evidence and Issues;
- 4.6 Incriminating Conduct (Post Offence Lies and Conduct).
## Obligation to Correct Prohibited Statements or Suggestions
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3.1 Exceptions to Request for Directions Process
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5. The trial judge must correct any statement or suggestion by the prosecutor, defence counsel or an unrepresented accused that is prohibited by the Act. The judge must also correct a statement or suggestion prohibited by the Act that is in a question from the jury. This obligation does not depend on any request for directions. However, the judge need not correct a statement or suggestion if there are good reasons for not doing so, such as where the prosecutor or defence counsel corrects their own misstatement (*Jury Directions Act 2015* s 7).
6. Provisions of the *Jury Directions Act 2015* which prohibit certain statements or suggestions include:
- section 33 – Prohibitions on certain statements concerning child witnesses
- section 42 – Prohibitions on certain statements regarding the accused’s failure to give or call evidence
- section 51 – Prohibitions on certain statements regarding complainants in sexual offence cases.
## Self-Represented Accused
7. Where the accused is not represented, the trial judge must comply with the request for directions process as if the accused has stated that all matters are in issue and had requested all directions which it would have been open to request, if the accused had been represented by a legal practitioner (*Jury Directions Act 2015* s 13).
8. Despite the general rule that the judge must treat the accused as having requested all directions open, the judge need not give a direction if he or she considers that there are good reasons for not giving the direction or if it is otherwise not in the interests of justice to give the direction (*Jury Directions Act 2015* s 13(2)).
## Application to hearings not involving a jury
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3.1 Exceptions to Request for Directions Process
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9. The following parts of the *Jury Directions Act 2015* apply to the court’s reasoning in certain hearings that do not involve a jury:
1. a summary hearing under the *Criminal Procedure Act 2009* that commenced on or after 1 October 2017.
9. a committal proceeding under the *Criminal Procedure Act 2009* when the committal hearing commenced on or after 1 October 2017.
10. a case stated under the *Criminal Procedure Act 2009* or Part 5.4 of the *Children, Youth and Families Act 2005*, when the hearing from which the question of law arose commenced on or after 1 October 2017.
11. an appeal under the *Criminal Procedure Act 2009*, Part 5.4 of the *Children, Youth and Families Act 2005*, or ss 24AA or 38ZE of the *Crimes (Mental Impairment and Unfitness to be Tried) Act 1997*, when the appeal commenced on or after 1 October 2017.
12. a special hearing under Division 3 of Part 5A of the *Crimes (Mental Impairment and Unfitness to be Tried) Act 1997*, when the special hearing commenced on or after 1 October 2017 (*Jury Directions Act 2015* s 4A).
13. a trial by judge alone (*Criminal Procedure Act 2009* s 420ZG).
10. In these hearings, the court’s reasoning with respect to any matter in relation to which Parts 4 (Evidentiary directions), 5 (Sexual offences), 6 (Family violence), and 7 (General directions) of the *Jury Directions Act 2015* makes provision:
1. must be consistent with how a jury would be directed in accordance with the Act; and
14. must not accept, rely on or adopt a statement or suggestion that the Act prohibits a trial judge from making, or a direction that the Act prohibits a trial judge from giving (*Jury Directions Act 2015* s 4A(2)).
11. These provisions do not require a party in a summary hearing to file an incriminating conduct notice before relying on that type of evidence (*DPP v Dyke* [2020] VSC 300, [13]–[17]).
1. Last updated: 28 June 2024
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3.2 Overview of Final Directions
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# 3.2 Overview of Final Directions
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3.2 Overview of Final Directions
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1. The fundamental task of a judge is to ensure a fair trial of the accused (*RPS v R *(2000) 199 CLR 620; *Crofts v R *(1996) 186 CLR 427).
2. The requirement for a fair trial requires the judge to instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case. In most cases, this will require the judge to:
1. Give instructions about the burden and standard of proof, the respective roles of the judge and jury, and the elements of the relevant offences and defences;
1. Succinctly and accurately identify the issues in the case and relate the law to those issues;
2. Refer to how the prosecution and defence have put their cases, without needing to summarise the closing addresses;
3. Identify so much of the evidence as is required to help the jury determine the issues in the trial; and
4. Give the jury any warnings about how it may reason, or about particular kinds of evidence, as is required in the case (*Jury Directions Act 2015* s 65; *RPS v R *(2000) 199 CLR 620; *R v Coombes *16/4/1999 CA Vic. See also *R v **Zorad** *(1990) 19 NSWLR 91; *R v Lawrence *[1982] AC 510).
3. Regardless of the way in which judges approach their role, they must ensure that they tailor their charge to the case before them. The charge should be custom built to make the jury understand their task in the case. It must not merely formulaically adopt the principles of law set out in the charge book, which are intended as a guide only (*R v **Zilm** *(2006) 14 VR 11; *R v Coombes *16/4/1999 CA Vic;* R v Anderson *[1996] 2 VR 663; *R v Lawrence *[1982] AC 510).
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4. The summing-up should not address issues of law which are not raised by the particular case, nor should it be a complete statement of the law in relation to the crime charged. It should also not address every piece of evidence given in the trial. The judge should only address *as much* of the law and evidence as is necessary to guide them to a decision on the real issues that arise in the case (*R v VN* (2006) 15 VR 113; *R v **Zilm** *(2006) 14 VR 11; *Fingleton** v R* (2005) 227 CLR 166; *R v Chai* (2002) 187 ALR 436; *RPS v R* (2000) 199 CLR 620; *Alford v Magee *(1952) 85 CLR 437).
5. The identification of issues and any necessary evidentiary directions is informed by the statutory conversation required under *Jury Directions Act 2015* ss 11–12.
6. As a matter of practice, the judge should consider the jury’s attention span in structuring the charge. It is undesirable to give directions on important issues when the jury may be losing concentration. Similarly, if the final directions are interrupted by a weekend or longer adjournment, it may be necessary to remind the jury of key matters when the directions resume.
7. When a party raises an issue with the directions, the judge will need to decide whether any redirection is needed to clarify the issue for the jury. If the redirection is responding to earlier, erroneous, directions, the judge should explicitly tell the jury that the earlier directions were wrong. It is not sufficient to give the jury corrected directions without also telling the jury to disregard the earlier directions, as that produces a situation where the jury has conflicting and confusing directions (*Ritchie v The Queen* [2019] VSCA 202, [130]).
8. See 3.9 Judge’s Summing Up on Evidence and Issues for further information concerning the judge’s summing-up.
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Last updated: 17 February 2020
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# 3.2.1 Charge: Overview of Final Directions
Members of the jury, before you leave the court to consider your verdict, I must give you instructions on the law and the evidence. There are three parts to these instructions.
First, I will remind you of several important principles of law which apply to this case. While I have already told you some of these principles at different times during the trial, it is important that I tell them to you again – not only to remind you of what I said earlier, but also to place those principles in the context of the trial which has now taken place. You must apply these instructions carefully.
Secondly, I will tell you the issues that you need to decide, and will refer you to the evidence that relates to those issues and the arguments from prosecution and defence counsel. In doing this, I will have to be selective. The mere fact that I don’t mention certain evidence does not mean that that evidence is not important. Similarly, the fact that I include certain evidence does not make that evidence more important than other evidence. You must consider all of the evidence, not just the parts of it that I mention. Which parts of that evidence are important or not important is a matter for you to determine.
Thirdly, I will explain what verdict[s] you may return in this case, and how you may wish to approach your discussion of the case in the jury room.
Remember, if at any time you have a question about anything I say, you are free to ask me by passing a note to my tipstaff.
Last updated: 30 November 2015
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3.3.1 Charge: Review of the Role of Judge and Jury
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# 3.3.1 Charge: Review of the Role of Judge and Jury
Note: This charge is based on the assumption that the judge has already instructed the jury about the respective roles of the judge and jury at the beginning of the trial (see 1.4.1 Charge: Role of Judge and Jury). If this has not been done, it will need to be modified accordingly.
See 1.4 The Role of Judge and Jury, for a discussion of the legal principles relevant to this area.
## Review of the Role of the Jury
In this case, it is alleged by the prosecution that NOA committed the offence[s] of [*insert offences*].[^2] 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].
You do that by deciding what the facts are in this case. As I have told you, 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 that has been given during the trial.
You then apply the law to the facts that you have found, and decide whether the accused is guilty or not guilty of the offence[s] charged.
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[^2]: This charge is drafted for cases involving one accused. If the case involves multiple accused, it will need to be modified accordingly.
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## Review of the Role of the Judge
It is my role, as the judge, to 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 again that it is not my responsibility to decide this case – that is your role. 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.
As I told you at the start of the trial, it is unlikely that I will make any comments about the evidence. If I do make a comment about the evidence, you must not give it any extra weight because I, as the judge, have made that comment. You must disregard any comment I make about the evidence, unless you agree with that view after making own independent assessment of the evidence. That is what I mean when I say that you alone are the judges of the facts in this case.
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## Review of the Role of Counsel
Throughout the trial, counsel have presented the prosecution and defence cases. While their comments and arguments have been designed to assist you to reach your decision, you also do not need to accept what they have said. Of course, if you agree with an argument they have presented, you can adopt it. But if you do not agree with their view, you must put it aside.
Last updated: 17 May 2019
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3.4.1 Charge: Review of the Need to Decide Solely on the Evidence
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# 3.4.1 Charge: Review of the Need to Decide Solely on the Evidence
Note: This charge is based on the assumption that the judge has already instructed the jury about the need to base their decision solely on the evidence at the beginning of the trial (see 1.5.1 Charge: Decide Solely on the Evidence). If this has not been done, it will need to be modified accordingly.
See 1.5 Decide Solely on the Evidence, for a discussion of the legal principles relevant to this area.
## Introduction: The Evidence
I have told you that it is your task to determine the facts in this case. In determining the facts, you must consider all of the evidence that you heard from the witness box. Remember, it is the answers the witnesses gave that are the evidence, not the questions they were asked.
You must also take into account the exhibits that were tendered. These include [*insert examples*]. When you go to the jury room to decide this case, [most of/some of] the exhibits will go with you, where you may examine them. Consider them along with the rest of the evidence and in exactly the same way.[^2] [However, the following exhibits will not go with you to the jury room [*insert exhibits*]].
[*If any formal admissions were put to the jury, add the following shaded section:*]
In addition, in this case the following admissions were made: [*insert admissions*]. You must accept these admissions as established facts.
Nothing else is evidence in this case. As I have told you, this includes any comments counsel make about the facts.[^3] It also includes:
[*Identify other relevant matters which do not constitute evidence in the case. See *2.2 Providing Documents to the Jury* and associated charges*. *It may be appropriate to insert charges relating to these matters here*.]
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[^2]: Depending on the nature of the evidence, it may be necessary to warn the jury of the possible dangers of conducting experiments in the jury room: see 1.5 Decide Solely on the Evidence for further information.
[^3]: If the accused is unrepresented, the jury should be told that what s/he said in his/her addresses, or when questioning witnesses, is also not evidence.
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## Review of the Need to Decide Solely on the Evidence
It your duty to decide this case only on the basis of the witnesses’ testimony, [the admissions] and the exhibits. You should consider the evidence which is relevant to a particular matter in its individual parts and as a whole, and come to a decision one way or another about the facts.
As I have told you, in doing this you must ignore all other considerations, such as any feelings of sympathy or prejudice you may have for anyone involved in the case. You should not, for example, be influenced by [*insert case specific examples*].[^4] Such emotions have no part to play in your decision.
Remember, 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.
## Outside Information
At the start of the trial I also told you that you must not base your decision on any information you may have obtained outside this courtroom. For example, you must completely ignore anything that you have seen or heard in the media about this case, or about the people involved in it. You must consider only the evidence that has been presented to you here in court.[^5]
Last updated: 17 May 2019
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[^4]: Some matters which it may be appropriate to point out (as they could conceivably give rise to prejudice or sympathy) include:
• The nature of the injuries suffered by the complainant;
• The race or ethnicity of the accused or the complainant;
• The sexual orientation of the accused or the complainant;
• The fact that the accused or the complainant are drug users.
In some cases, it may be appropriate to point out that although a party’s behaviour does not accord with what the jury might think is morally acceptable, the jury is not a court of morals. Everyone has the right to be treated equally before the law.
[^5]: If there has been significant publicity about the case or the parties involved, it may be necessary to give a more detailed warning.
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3.5.1 Charge: Review of the Assessment of Witnesses
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# 3.5.1 Charge: Review of the Assessment of Witnesses
Note: This charge is based on the assumption that the judge has already instructed the jury about how to assess witnesses at the beginning of the trial (see 1.6.1 Charge: Assessing Witnesses). If this has not been done, it will need to be modified accordingly.
See 1.6 Assessing Witnesses, for a discussion of the legal principles relevant to this area.
You have now listened to what each witness has said, and watched how they presented their evidence and answered the questions under cross-examination. No further evidence will be given.
To decide what the facts are in this case, you now need to assess this 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. No one can tell you how to approach any particular witness’s evidence in this regard.
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.
As I mentioned at the start of the trial, in assessing witnesses’ evidence, some matters which may concern you include their credibility and reliability. It is for you to judge whether the witnesses told the truth, and whether they correctly recalled the facts about which they gave 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.
While you may take into account the witness’s manner when he or she gave evidence, you should be careful when doing so. As I noted at the start of the case, giving evidence in a trial is not common, and may be a stressful experience. 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.
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 is true 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.
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[*This may be an appropriate point to instruct the jury about any issues relating to particular *types of witnesses* who have given evidence, such as:*
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- 4.1 The Accused as a Witness*;*
- 4.2 Child Witnesses*;*
- 4.21 Unreliable Evidence Warning*.*
*It may also be an appropriate point to instruct the jury about any issues relating to particular types of evidence given in the case, such as:*
- 4.3 Character Evidence*;*
- 4.5 Confessions and Admissions*;*
- 4.12 Identification Evidence*;*
- 4.13 Opinion Evidence*;*
- 4.14 Previous Representations (Hearsay, Recent Complaint and Prior Statements);
- 4.17 Tendency Evidence;
- 4.18 Coincidence Evidence.]
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3.6 Circumstantial Evidence and Inferences
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# 3.6 Circumstantial Evidence and Inferences
## What is Circumstantial Evidence?
1. A fact that is in issue can be proved in two ways:
1. By providing evidence which *directly proves* that fact, without requiring the jury to draw any inferences (“direct evidence”[^2]); or
1. By providing evidence of a related fact or facts, from which the jury can *infer the existence* of the fact in issue (“circumstantial evidence”) (*Shepherd v The Queen* (1990) 170 CLR 573. See also *Doney v R* (1990) 171 CLR 207; *Festa v R* (2001) 208 CLR 593; *Myers v DPP* [1965] AC 1001; *R v Spina *[2005] VSCA 319).
2. The distinction between direct and circumstantial evidence does not relate to the *nature or content of the evidence given* (e.g. whether it is evidence of an event the witness personally saw, rather than evidence of an event they were told about), but to the *way in which the evidence is to be used*. If it is necessary for the jury to infer a particular fact from the evidence, it will be circumstantial evidence of that fact.[^3]
3. The same piece of evidence can therefore be both direct and circumstantial, depending on what it is being used to prove. For example, evidence given by a witness that s/he saw the accused holding a gun could be:
- Direct evidence that the accused possessed a firearm; and
- Circumstantial evidence that the accused murdered someone with that firearm.
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[^2]: The term “direct evidence” is also used to refer to testimonial evidence given by a witness of a matter they have personal knowledge about (e.g. which they personally saw or heard). When used in this sense, direct evidence is contrasted with hearsay evidence rather than circumstantial evidence (see *Cross on Evidence* para 1110).
[^3]: This is in contrast to the distinction between “direct evidence” and “hearsay evidence”, which relates to the nature of the evidence given (see above).
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3.6 Use of Circumstantial Evidence
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## Use of Circumstantial Evidence
1. In many cases no one will have directly witnessed the facts which the prosecution must prove, and so they will need to rely on circumstantial evidence. In such cases, the ultimate inference which the jury will often be asked to draw is that of the accused’s guilt (*Shepherd v The Queen* (1990) 170 CLR 573).
2. As there is nothing in the law that makes proof by circumstantial evidence unacceptable or suspect of itself (*De **Gruchy** v R* (2002) 211 CLR 85), circumstantial evidence can be used to prove the accused’s guilt in this way (*Festa v R* (2001) 208 CLR 593; *Chamberlain v R (No 2)* (1984) 153 CLR 521).
3. However, research using mock juries indicates that there is a risk that jurors will consider circumstantial evidence inherently weaker or less reliable than direct evidence. Judges may address this misconception, and may consider using the phrase ‘indirect evidence’ rather than ‘circumstantial evidence’ (Simplification of Jury Directions Project, 2012).
4. If circumstantial evidence is relied upon by the prosecution, it may be necessary for the judge to direct the jury that before the accused’s guilt can be inferred, it must be the only rational inference that can be drawn from that evidence.
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3.6 Inferential Reasoning (‘Hodge’ direction)
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## Inferential Reasoning (‘*Hodge*’ direction)
1. Where the prosecution case depends upon circumstantial evidence, it is usually necessary to give the following two directions:
1. To find the accused guilty, his or her guilt must not only be a *reasonable inference*, it must be the *only* reasonable inference which can be drawn from the circumstances established by the evidence; and
1. If the jury considers that there is *any reasonable explanation* of those circumstances which is consistent with the innocence of the accused, they must find him or her not guilty (*R v **Hodge* (1838) 2 Lewin 227; *Mannella v R* [2010] VSCA 357; *Knight v R* (1992) 175 CLR 495; *Shepherd v The Queen* (1990) 170 CLR 573; *Chamberlain v R* *(No 2)* (1984) 153 CLR 521; *Barca v R* (1975) 133 CLR 82; *Plomp** v R* (1963) 110 CLR 234; *Thomas v R* (1960) 102 CLR 584).
2. These directions stem from the general requirement that guilt must be proved beyond reasonable doubt. They simply convey the meaning of “beyond reasonable doubt” in cases involving circumstantial evidence. They do not reflect a separate rule that operates in such cases (*R v **Kotzmann* [1999] 2 VR 123; *R v Lancefield* [1999] VSCA 176; *Knight v R* (1992) 175 CLR 495; *Shepherd v The Queen* (1990) 170 CLR 573; *R v Sorby* [1986] VR 753; *Grant v R* (1976) 11 ALR 503).
## Reasonable Inference
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3. Given the high standard of proof required in criminal trials, it is important that the jury only draws inferences which can be properly deduced from the direct evidence (“reasonable inferences”), rather than making guesses or engaging in speculation (*R v McIntyre* (2000) 111 A Crim R 211).
4. In determining whether an inference is reasonable, the jury should consider the evidence as a whole. A reasonable inference can be drawn from a combination of facts, none of which viewed alone would support that inference (*Chamberlain v R (No 2)* (1984) 153 CLR 521; *R v Sorby* [1986] VR 753; *Shepherd v The Queen* (1990) 170 CLR 573; *R v Hillier* (2007) 228 CLR 618; *R v Allen* [2007] VSCA 97).
5. The jury should therefore not reject one circumstance because, considered alone, no reasonable inference of guilt can be drawn from it. The jury must consider the weight which is to be given to the united force of all the circumstances put together. One piece of evidence may resolve the jury's doubts about another (*R v Hillier* (2007) 228 CLR 618; *R v Allen* [2007] VSCA 97; *Chamberlain v R* *(No 2)* (1984) 153 CLR 521; *Van Beelen; Thomas v R* [1972] NZLR 34; *Shepherd v The Queen* (1990) 170 CLR 573).
## “Only” Reasonable Inference
6. The inference drawn by the jury must be the only reasonable inference which can be drawn from the facts (*Shepherd v The Queen* (1990) 170 CLR 573; *Chamberlain v R (No 2)* (1984) 153 CLR 521).
7. The existence of a particular fact-in-issue will be the only rational inference to be drawn from circumstantial evidence if:
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- The jury find those circumstances to have been established; and
- According to the common course of human affairs, there is such a high probability that the occurrence of those circumstances would be accompanied by the existence of that fact-in-issue that the contrary cannot reasonably be supposed (*Martin v Osborne* (1936) 55 CLR 367; *Plomp** v R* (1963) 110 CLR 234; *R v **Taouk* [2005] NSWCCA 155).
## No Other Reasonable Hypothesis
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8. When the case against an accused person rests substantially upon circumstantial evidence, the jury cannot return a verdict of guilty unless the circumstances exclude any reasonable hypothesis other than the guilt of the accused (*Peacock v R* (1911) 13 CLR 619; *Barca v R* (1975) 133 CLR 82; *Chamberlain v R (No 2)* (1984) 153 CLR 521; *Doney v R* (1990) 171 CLR 207; *R v Allen* [2007] VSCA 97).
9. This is because a reasonable doubt will necessarily arise where any other inference consistent with innocence is reasonably open on the evidence (*Shepherd v The Queen* (1990) 170 CLR 573; *Doney v R* (1990) 171 CLR 207).
10. So if the jury finds that an inference or hypothesis consistent with innocence is open on the evidence, they must give the accused the benefit of the doubt necessarily created by that circumstance and acquit him or her (*Knight v R* (1992) 175 CLR 495).
11. The judge should not invite the jury to determine whether there are any other reasonable conclusions arising from the facts. Such a direction misstates the onus of proof, as it is for the prosecution to exclude all reasonable hypotheses consistent with innocence (*Gregg v The Queen* [2020] NSWCCA 245, [523]).
12. An alternative hypothesis does not have to be “equally open” or “equally compelling” in order to give rise to a reasonable doubt as to guilt. Such a doubt will arise where any other inference consistent with innocence is reasonably open on the evidence (*Mannella v R* [2010] VSCA 357).
13. The jury does not have to be able to infer that the event suggested by the innocent hypothesis actually occurred. It is sufficient if there is a reasonable possibility that such an event took place (*R v McIntyre* (2000) 111 A Crim R 211; *R v Gover* (2000) 118 A Crim R 8).
14. Even if there is only one circumstance inconsistent with a conclusion of guilt, that may be sufficient to destroy the hypothesis of guilt (*Peacock v R* (1911) 13 CLR 619; *R v **Taouk* [2005] NSWCCA 155).
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15. Where competing inferences arise in a case, it is for the jury to determine whether the inference of guilt arises, and if so whether it completely overcomes all other inferences so as to leave no reasonable doubt in their minds (*R v **Plomp* (1963) 110 CLR 234; *Peacock v R* (1911) 13 CLR 619).
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### Must Be A “Reasonable” Hypothesis
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16. The jury cannot act upon some fanciful supposition or possibility that cannot reasonably be inferred from the facts proved. The hypothesis must be “reasonable” (*R v Clarke* (1995) 78 A Crim R 226).
17. A "reasonable hypothesis" must possess some degree of acceptability or credibility. A hypothesis will not be reasonable if it is fanciful, impossible, incredible, not tenable or too remote or tenuous (*Bushell v Repatriation Commission* (1992) 175 CLR 408; *R v Clarke* (1995) 78 A Crim R 226).
18. For an inference to be reasonable, it must rely upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the accused guilty, if the inference of guilt is the only inference reasonably open upon a consideration of all the facts (*Peacock v R* (1911) 13 CLR 619; *Barca v R* (1975) 133 CLR 82).
19. The mere existence of a conclusion consistent with innocence therefore will not necessarily mean that the prosecution has failed to establish its case. The existence of that conclusion may be regarded by the jury as of little weight in the circumstances of the case (*Chan* (1992) 28 NSWLR 421).
20. While a reasonable hypothesis must be based on something more than mere conjecture, there need not be positive evidence supporting that hypothesis. Even in the absence of such evidence, a hypothesis may be reasonable so long as it is consistent with the evidence accepted by the jury (*R v McIntyre *(2000) 111 A Crim R 211; *R v Gover* (2000) 118 A Crim R 8).
21. However, it is wrong to tell the jury that they must decide whether they accept the evidence which establishes the hypothesis consistent with innocence. Such a direction reverses the burden of proof. Instead, the prosecution must exclude the hypothesis as a reasonable possibility (*Ankur v The Queen *[2021] VSCA 110, [30]–[39], [57]).
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22. While it is proper for a judge to tell a jury that they must not engage in speculation or make guesses, s/he needs to be careful that such a direction does not detract from the jury’s duty to acquit if they cannot exclude all reasonable hypotheses consistent with innocence. Although it will often be a matter of speculation as to whether one of these innocent explanations occurred, there is no speculation involved in considering whether the hypotheses are reasonable possibilities (*R v McIntyre *(2000) 111 A Crim R 211).
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### Warning of dangers in drawing inferences (‘*Hodge*’ warning)
23. The need for expanded directions on the process of drawing inferences arises because the human mind is apt to jump to conclusions, attaching too much weight to a fact that is really only one part of the case, or being too quickly convinced by an accumulation of detail that is in truth explicable as coincidence or in some other way consistent with innocence (*R v **Kotzmann* [1999] 2 VR 123).
24. In addition, a single circumstance inconsistent with guilt is of more importance than all other circumstances, as it may destroy a hypothesis of guilt (*R v Hodge* (1838) 2 Lewin 227).
25. While there is little case-law on the need for these directions, the model direction in this Charge Book includes these warnings as part of the expanded direction on circumstantial evidence.
## When to give the Charge
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26. Whenever circumstantial evidence is relied upon by the prosecution, the judge must consider whether or not the case calls for directions about the need for guilt to be the only rational inference, and the requirement for reasonable hypotheses consistent with innocence to be excluded (*Grant v R* (1976) 11 ALR 503; *R v Sorby* [1986] VR 753).
27. Such directions do not need to be given in every case in which the prosecution relies on circumstantial evidence. It is for the trial judge to determine whether they should be given, based on the circumstances of the case and the nature of the summing-up (*Shepherd v The Queen* (1990) 170 CLR 573; *R v Spina* [2005] VSCA 319; *R v Garth* (1990) 49 A Crim R 298; *R v Sorby* [1986] VR 753; *Grant v R* (1976) 11 ALR 503; *R v Rajakaruna (No 2)* (2006) 15 VR 592; *R v KDY* [2008] VSCA 104).
28. In many, if not most, cases involving substantial circumstantial evidence, it will be helpful to give such directions (*R v **Kotzmann* [1999] 2 VR 123; *Shepherd v The Queen* (1990) 170 CLR 573; *R v **Plomp* (1963) 110 CLR 234; *R v Peacock* (1911) 13 CLR 619).
29. These directions should be given if, in a particular case, the jury cannot be expected to understand and apply the rules concerning the onus and standard of proof (*R v Sorby* [1986] VR 753).
30. If the directions are unnecessary, or are likely to confuse the jury rather than assist them, they should not be given (*Grant v R* (1976) 11 ALR 503; *R v Sorby* [1986] VR 753; *La Fontaine v R* (1976) 136 CLR 62; *Shepherd v The Queen* (1990) 170 CLR 573).
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31. The direction should generally not be given in cases which do not depend on circumstantial evidence, or where the amount of circumstantial evidence involved is slight. In such cases, these directions will put an unnecessary gloss on the explanation of the onus of proof (*La Fontaine v R* (1976) 136 CLR 62. See also *Shepherd v The Queen* (1990) 170 CLR 573).
32. There is no obligation to give such directions where the only substantial inference which needs to be drawn is about the accused’s state of mind (*R v Rogerson* (1992) 65 A Crim R 530; *R v **Tillott* (1991) 53 A Crim R 46; *R v Shepherd (No 3)* (1988) 85 ALR 387; *McGreevy v DPP* (1973) 57 Cr App R 424. But see *R v Knight* (1992) 175 CLR 495).
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### Directing the Jury About Alternative Hypotheses
33. If evidence raises a reasonable possibility that the circumstances pointed to someone other than the accused being guilty of the offence, then a direction about the need to exclude such a possibility beyond reasonable doubt should usually be given (*R v Clarke* (1995) 78 A Crim R 226).
34. Such a direction should be given even if the evidence is very slight, if it could be interpreted as raising a reasonable possibility of innocence (*R v Clarke* (1995) 78 A Crim R 226).
35. The failure of the defence to put forward an alternative hypothesis consistent with innocence does not relieve the prosecution of the burden of proving its case to the requisite standard (*R v Lancefield *[1999] VSCA 176). It is not incumbent on the defence either to establish that some inference other than guilt should reasonably be drawn from the evidence, or to prove particular facts that would tend to support such an inference. If the jury thinks that the evidence as a whole is susceptible of a reasonable alternative explanation, the accused is entitled to be acquitted (*Barca v R* (1975) 133 CLR 82).
36. However, the judge is only required to direct the jury about the real issues in the case. The defence must indicate the elements or defences that are in issue and the directions required. Unless there are substantial and compelling reasons to do so, the trial judge must not give a direction which is not requested (*Jury Directions Act 2015* ss 12, 14, 15, 16).
37. It will be a misdirection to direct the jury that a reasonable explanation consistent with innocence must be given by the accused before it can be considered (*R v Betancur-Galvis* [2003] NSWCCA 333; *Druett** v R* (1994) 123 FLR 249; *R v Baartman* [2000] NSWCCA 298; *Loader v R* [2003] NTCCA 10).
## Content of the Charge
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38. The content of the charge will vary according to the nature of the evidence that the prosecution offers as proof. Directions should be constructed around the central principle that the prosecution must establish guilt beyond reasonable doubt, and should be more or less elaborate according to the risks in the case (*R v Sorby* [1986] VR 753).
39. In most cases, it will be sufficient simply to tell the jury that the accused’s guilt must be established beyond reasonable doubt, and that they must entertain such a doubt where any inference consistent with innocence is reasonably open on the evidence (*Shepherd v The Queen* (1990) 170 CLR 573).
40. If some cases, however, a more detailed direction may be required. In such cases the judge should explain clearly to the jury that:
- The prosecution case cannot succeed unless the prosecution has proved all of the elements beyond reasonable doubt;
- The prosecution case against the accused (on a particular issue) is a circumstantial evidence case;
- For a circumstantial evidence case to succeed, guilt must not only be a rational inference, but must be the *only* rational inference that can be drawn from the evidence;
- A reasonable doubt arises where any inference consistent with innocence is reasonably open on the evidence;
- In so far as any alternative hypotheses consistent with innocence are open, it is part of the prosecution’s burden of proof to refute each and every one of those alternative hypotheses; and
- They may only draw an inference of guilt if it so overcomes any other possible inferences as to leave no doubt in their minds. Otherwise, they should give the accused the benefit of doubt created by the alternative hypothesis, and acquit (See, e.g., *R v **Taouk* [2005] NSWCCA 155; *R v Chen, Siregar & Isman* (2002) 130 A Crim R 300; *R v **Kotzmann** (No 2)* (2002) 128 A Crim R 479; *Wedd v R* (2000) 115 A Crim R 205; *Pitkin v R* (1995) 130 ALR 35; *Knight v R* (1992) 175 CLR 495).
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41. It is proper for a judge to explain to the jury that a reasonable hypothesis consistent with innocence means a reasonable hypothesis having regard to the whole of the evidence, not to each individual item of circumstantial evidence regarded separately (*R v Perera* [1986] 1 Qd R 211; *R v **Beble* [1979] Qd R 278).
42. Where "fanciful" or "unreal" possibilities have been put to the jury by defence counsel, it is appropriate for the trial judge to redress the balance (see 1.7 Onus and Standard of Proof). In doing so, the judge must be careful not to give a direction which is likely to distract the jury from the simple task of considering whether a hypothesis consistent with innocence is reasonably open on the evidence (*R v Lancefield* [1999] VSCA 176).
43. A judge must also avoid giving a direction about when a possibility is fanciful or unreal that implies or suggests that the defence case is fanciful or unreal. An example which shows the difference between reasonable hypotheses and guesswork will adequately explain the concept without needing to specifically give an example which involves a fanciful explanation (see *Ankur v The Queen* [2021] VSCA 110, [59]–[78]).
### Base Decision on Established Evidence
44. It is not the evidence presented, but what is accepted of it by the jury which is to be considered in relation to any hypotheses. To justify conviction, the jury must be satisfied beyond reasonable doubt that the evidence they accept is inconsistent with a hypothesis of innocence (*Barca v R* (1975) 133 CLR 82).
45. The jury should therefore be told that they are not obliged to accept as proved all the circumstances to which the witnesses have testified. It is for them to determine which of the circumstances to accept, and whether those circumstances establish the accused’s guilt. As with direct evidence, any circumstantial evidence unacceptable to them may be discarded (*R v Van Beelen *(1973) 4 SASR 353).
### Misdirections
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46. The jury should not be told that they must consider the explanation or inference contended for by the prosecution and consider whether it was a reasonable one. This may lead the jury to mistakenly think that they are also required to consider any other possibilities they regard as reasonable, and to weigh them against the prosecution’s explanation to see which is preferable. It may also lead the jury to wrongly think that it is their function to see whether the accused has offered an alternative reasonable explanation, and if no alternative reasonable explanation has been offered to convict (*R v Lancefield* [1999] VSCA 176).
47. The jury should not be led to think they should only take into account a possibility if it exceeds the level of a “mere” possibility. If they have *any* possibility in mind which gives them cause for retaining doubt about the accused’s guilt, they must acquit (*R v Lancefield* [1999] VSCA 176).
48. The jury should not be told that they must choose between two (or more) inferences which are "equally open". To convict, the jury must be able to reject as rational any inferences which are consistent with innocence (*Knight v R* (1992) 175 CLR 495; *Mannella v R* [2010] VSCA 357).
49. The jury should not be told that for an inference to be reasonable it has to be “based on evidence”, or based on the evidence they accept. This may lead them to think they cannot consider as reasonable any possibilities suggested by defence counsel, or any other possibilities which occurred to them, unless evidence had been given to support that inference by or on behalf of the accused. This is likely to reverse the onus of proof, or at least to dilute the standard of proof (*R v Lancefield *[1999] VSCA 176. See also *Ankur v The Queen* [2021] VSCA 110, [30]–[39], [57]).
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## Proof of Facts on Which Inferences are Based
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1. At common law, prior to 1984, it was widely understood that the prosecution only needed to establish the elements of a crime beyond reasonable doubt. They were not required to prove any other facts to that standard (see, e.g., *R v Dickson* [1983] 1 VR 227).
2. However, this understanding changed in 1984, when the High Court held that if proof of an element of a crime is to be inferred, the facts relied upon to found the inference must also be proved beyond reasonable doubt (*Chamberlain v R (No 2)* (1984) 153 CLR 521).
3. *Chamberlain* was initially interpreted as requiring the jury to be satisfied, beyond reasonable doubt, of *all* of the facts upon which they based their inferences (see, e.g., *R v Sorby* [1986] VR 753; *R v **Maleckas* [1991] 1 VR 363).
4. However, in *Shepherd v The Queen* (1990) 170 CLR 573 the High Court rejected this interpretation. The Court held that when the majority in *Chamberlain* had said that facts relied upon as a basis for an inference of guilt must be proved beyond reasonable doubt, they were only referring to *intermediate facts* which are an *indispensable step* upon the way to an inference of guilt. Other facts upon which inferences are based need not be proved to that high standard.
5. In reaching this conclusion, the High Court drew a distinction between two different types of circumstantial cases:
1. Cases in which the accused’s guilt is proved by an accumulation of detail (“strands in a cable”); and
1. Cases in which the accused’s guilt is proved by sequential reasoning (“links in a chain”).
6. Under the *Jury Directions Act 2015*, this approach has been abolished. Unless an Act otherwise provides, the only matters which a judge can direct the jury must be proved beyond reasonable doubt are the elements of the offence charged or an alternative offence and the absence of any relevant defence (*Jury Directions Act 2015* s 61. See also *DPP v **Roder* [2024] HCA 15, [15]).
7. This applies to all trials commencing on or after 29 June 2015 (*Jury Directions Act 2015* s.2).
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8. All common law rules which require judges to direct that a matter other than the elements and the absence of any defences must be proved beyond reasonable doubt are abolished (*Jury Directions Act 2015* s 62; *Beqiri v R* [2017] VSCA 112 at [121], [130]; *DPP v **Roder* [2024] HCA 15, [17]). A note to the section states that it abolishes the rule attributed to *Shepherd v The Queen* (1990) 170 CLR 573 regarding the standard of proof for circumstantial evidence and the rule attributed to *R v Sadler* (2008) 20 VR 69 regarding the standard of proof for uncharged acts.
9. As a consequence of *Jury Directions Act 2015* s 61, counsel should not tell the jury that, as a matter of law, the jury needs to be satisfied of certain, non-elemental, facts beyond reasonable doubt in order to convict. Counsel may, however, make evidentiary arguments that certain factual matters are critical to a conclusion of guilt (*Beqiri v R* [2017] VSCA 112 at [112]–[120]).
10. In general, the prosecution does not need to prove any fact, or any piece of evidence relied upon to prove an element by inference, beyond reasonable doubt. The jury may properly draw the necessary inference having regard to the whole of the evidence, whether or not each individual piece of evidence relied upon is proved beyond reasonable doubt, as long as they reach their *conclusion* upon the criminal standard of proof (see *Shepherd v The Queen* (1990) 170 CLR 573; *R v Spina* [2005] VSCA 319; *Beqiri v R* [2017] VSCA 112 at [121], [130]; *DPP v **Roder* [2024] HCA 15, [27]–[31]).
11. It is the function of the jury to determine the weight which should be given to the circumstances relied upon by the prosecution and whether, at the end of the day, the combination of circumstances which they accept are of sufficient strength to prove the guilt of the accused beyond reasonable doubt (see *R v **Kotzmann** (No 2)* (2002) 128 A Crim R 479).
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12. Unless an Act otherwise provides, the judge must not direct the jury that they cannot use a fact as a basis for inferring guilt unless that fact is proved beyond reasonable doubt. This applies even if the evidence would, at common law, be treated as a ‘link in a chain’ or is potentially so significant that, as a matter of prudence, the jury should not act on it unless satisfied beyond reasonable doubt (see *Beqiri v R* [2017] VSCA 112 at [121], [130] and compare *Kotvas** v R* [2010] VSCA 309; *R v LRG* (2006) 16 VR 288).
13. Section 61 does not relieve the judge of the obligation to identify the evidence that establishes the elements (see *Jury Directions Act 2015* ss 65, 66).
14. 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).
15. Where the judge instructs on the elements in the form of a factual question under *Jury Directions Act 2015* s 67, the judge must direct the jury that it must be satisfied of those matters beyond reasonable doubt (*Jury Directions Act 2015* s 61, notes).
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## Timing of the Charge
1. If a direction about circumstantial evidence is given, it does not need to be kept separate and distinct from the direction that the prosecution must prove its case beyond reasonable doubt (see 1.7.1 Charge: Onus and Standard of Proof). The judge may simply elaborate on the general directions (*Plomp** v R* (1963) 110 CLR 234).
2. It may also be desirable to introduce the concept of circumstantial evidence at the beginning of the trial, or when the jury is first asked to draw an inference, to help the jury to understand that:
- That there need not be direct evidence of every essential element of the offence charged;
- That the essential elements of the offence may be proved by circumstantial evidence;
- That circumstantial evidence involves drawing an inference; and
- That circumstantial evidence is perfectly good evidence, not an inferior form of proof (Canadian Judicial Council, *Model Jury Instructions in Criminal Matters*. See also *R v PZG* [2007] VSCA 54).
Last updated: 14 May 2024
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# 3.6.1 Charge: Circumstantial Evidence and Inferences
Evidence comes in many forms. It can be evidence about what someone saw or heard. It can be an exhibit admitted into evidence. It can be someone's opinion.
Some evidence can prove a fact directly. For example, if a witness said that s/he saw or heard it raining outside, that would be direct evidence of the fact that it was raining.
Other evidence can prove a fact indirectly. For example, if a witness said that s/he saw someone enter the courthouse wearing a raincoat and carrying an umbrella, both dripping wet, that would be indirect or ‘circumstantial’ evidence of the fact that it was raining outside. You can conclude from the witness’s evidence that it was raining, even though s/he didn’t actually see or hear the rain.
As far as the law is concerned, it makes no difference whether evidence is direct or indirect. Although people often believe that indirect or circumstantial evidence is weaker than direct evidence, that is not true. It can be just as strong or even stronger. What matters is how strong or weak the particular evidence is, not whether it is direct or indirect.
However, you must take care when drawing conclusions from indirect evidence. You should consider all of the evidence in the case, and only draw reasonable conclusions based on the evidence that you accept. Do not guess. While we might be willing to act on the basis of guesses in our daily lives, it is not safe to do that in a criminal trial.
[*In cases involving a* *significant amount of circumstantial evidence, add the following shaded section*.]
In determining whether a conclusion is reasonable, you should look at all of the evidence together. It may help you to consider the pieces of evidence to be like the pieces of a jigsaw puzzle. While one piece may not be very helpful by itself, when all the pieces are put together the picture may become clear.
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However, when putting all the pieces together, you must take care not to jump to conclusions. It is sometimes easy for people to be too readily persuaded of a fact, on the basis of insufficient evidence or evidence that turns out to be truly coincidental. Once convinced of that fact, they may then seek support for it in the other evidence, perhaps distorting that evidence to fit their theory or disregarding ‘inconvenient’ facts. You must make sure that you do not do this. You must keep an open mind, and be prepared to change your views.
You may only convict the accused if you are satisfied that his/her guilt is the only reasonable conclusion to be drawn from the whole of the evidence, both direct and indirect. If there is another reasonable view of the facts which is consistent with the accused’s innocence, then the prosecution will not have proved his/her guilt beyond reasonable doubt, and you must acquit him/her.
Last updated: 17 May 2019
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# 3.6.2 Charge: Sole Evidence Direction
This charge may be used where there is a single piece of evidence relied on to prove one or more elements. This charge may be suitable where the prosecution case is entirely dependent on a confession or an identification.
You will remember my direction the prosecution must prove its case beyond reasonable doubt. In this case, the only evidence that [*identify relevant elements or facts in issue*] is the evidence that [*describe relevant single piece of evidence, e.g*. “NOA confessed to NOW”]. You therefore cannot be satisfied that the prosecution has proved its case beyond reasonable doubt unless you are satisfied this evidence proves [*identify relevant element*] beyond reasonable doubt.
Last updated: 14 May 2024
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# 3.7.1 Charge: Conventional Directions
Note: This charge is based on the assumption that the judge has already instructed the jury about the onus and standard of proof at the beginning of the trial (see 1.7.1 Charge: Onus and Standard of Proof). If this has not been done, it will need to be modified accordingly.
See 1.7 Onus and Standard of Proof, for a discussion of the legal principles relevant to this area.
I want to emphasise again that under our justice system 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. The accused does/do not have to prove anything.
The prosecution must do this by proving [each of] the accused’s guilt of the charge[s] beyond reasonable doubt. As I have told you, these words mean exactly what they say – proof beyond reasonable doubt.
Beyond reasonable doubt 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.
As I have told you, 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.
You cannot be satisfied the accused is guilty if you have a reasonable doubt whether the accused is guilty.
As I have told you, these words mean exactly what they say – proof beyond reasonable doubt. 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 beyond reasonable doubt. I will explain these elements in detail in a moment.
[*If a defence is in issue, add the following shaded section.*]
The prosecution must also disprove any possible defences beyond reasonable doubt. In this case, that means the prosecution must prove, beyond reasonable doubt, that NOA was not [*insert relevant defence*]. I will also explain this defence in more detail shortly.
It is only if you are satisfied that the prosecution has proven all of the elements of a charge [and disproved all defences] 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 must be "Not Guilty".
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Last updated: 1 January 2023
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# 3.7.2 Charge: Reverse Onus
This charge can be given if there is a matter which the accused is required to prove on the balance of probabilities.
The requirements for this charge were not modified by the commencement of the *Evidence Act 2008*.
In this case, there is one exception to the general rule that the prosecution must prove the case against the accused beyond reasonable doubt. The law says that in relation to the offence of [*insert relevant offence*], it is for the accused to prove [*insert relevant matter*].
I will explain this requirement in more detail shortly. For now, however, I want to emphasise that where it is for the accused to prove a matter, it is not necessary for him/her to do this to the same extent as the prosecution. That is, s/he does not need to prove matters "beyond reasonable doubt".
Instead, the accused only needs to establish matters on what is called the "balance of probabilities". That is, such matters only need to be shown to be more likely than not.
Last updated: 1 December 2009
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# 3.7.3 Charge: Liberato Direction
This charge should be given if the case turns on a conflict between the evidence of a prosecution witness and a defence witness, and there is a reasonable likelihood that the jury will think that they must believe the defence evidence to be true before they can acquit the accused. See 1.7 Onus and Standard of Proof for further information.
This direction can be adapted where the relevant ‘defence witness’ is the accused’s account as given in a record of interview.
In this case, there is a clear conflict between the evidence of [*insert name of* *prosecution witness*] and the evidence of [*insert name of* *defence witness*].
I’m now going to give you a direction of law about how this conflict may affect your verdict.
First, if you believe [*insert name of defence witness*], then you must find NOA not guilty.
Second, if you think [*insert name of defence witness*] might be telling the truth, you must find NOA not guilty.
Third, it is not enough that you prefer [*insert name of* *prosecution witness*] to the evidence of [*insert name of* *defence witness*]. It is not a case of choosing which witness you prefer. You can only find NOA guilty if the prosecution has proved its case beyond reasonable doubt.
Fourth, if you do not believe [*insert name of defence witness*], you should put that evidence to one side. You must then decide whether the prosecution has proved guilt beyond reasonable doubt based on the evidence you do accept.
In other words, you cannot find NOA guilty of [*identify relevant charge(s)*] if you decide that [*identify relevant witness*] is telling the truth, or might be telling the truth.
Last updated: 28 June 2024
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# 3.8.1 Charge: Multiple Accused
Note: This charge is based on the assumption that the judge has already instructed the jury about the need for separate consideration at the beginning of the trial (see 1.8.1 Charge: Separate Consideration Multiple Accused). If this has not been done, it will need to be modified accordingly.
See 1.8 Separate Consideration, for a discussion of the legal principles relevant to this area.
As you know, in this trial there are really [*insert number*] trials [all] being heard together for convenience.
I want to remind you that you must be careful not to allow convenience to override justice. The accused and the prosecution 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.
You will note that I said you must consider the case against each accused "in light only of the evidence which applies to that accused". This is because some of the evidence you have heard in this case is only relevant to the case against one accused or another. If a particular piece of evidence is only relevant to one accused, you may only use it when deciding whether or not that accused is guilty. You must not consider it in relation to [any of] the other accused.
In this case [*instruct jury about which evidence is or is not admissible in relation to each accused*].
Last updated: 19 December 2006
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# 3.8.2 Charge: Multiple Charges
Note: This charge is based on the assumption that the judge has already instructed the jury about the need for separate consideration at the beginning of the trial (see 1.8.2 Charge: Separate Consideration Multiple Charges). If this has not been done, it will need to be modified accordingly.
See 1.8 Separate Consideration, for a discussion of the legal principles relevant to this area.
As you know, in this trial the prosecution has brought [*insert number*] charges against the accused. As I explained earlier, while these are separate matters, they are [all] being dealt with in the one trial for convenience.
I want to remind you that 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.
[*If logic dictates that a finding in relation to one charge is material to another charge, this should be clearly explained to the jury here. For example, the jury should be told if an acquittal on one charge would require an acquittal on 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.
You will note that I said you must consider each charge "in light only of the evidence which applies to it". This is because some of the evidence you have heard in this case is only relevant to one charge or another. If a particular piece of evidence is only relevant to one charge, you may only use it when deciding whether or not the accused is guilty of that charge. You must not consider it in relation to [any of] the other charge[s].
In this case [*instruct jury about which evidence is or is not admissible in relation to each charge*].
Last updated: 17 May 2019
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# 3.9 Judge’s Summing Up on Issues and Evidence
## Obligations When Summing Up
1. A judge’s charge need not follow any specific pattern. Each charge must be tailored to the particular circumstances of the case (*Alford v Magee* (1952) 85 CLR 437; *Werry v R* [2010] VSCA 314; *Huynh v R* [2013] HCA 6).
2. When summing up, the judge must:
- Explain only so much of the law as is necessary for the jury to determine the issues in the trial;
- Refer to the way the parties have put their cases in relation to the issues, but need not summarise the closing addresses;
- Identify so much of the evidence as he or she considers necessary to assist the jury determine the issues in the trial, but need not give a summary of the evidence (*Jury Directions Act 2015* s 65).
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[^2]: If evidence which is admissible on one count is not admissible on another, and in consequence there is a real risk of impermissible prejudice to the accused, the judge may need to consider ordering separate trials (see *R v TJB* [1998] 4 VR 621; *Criminal Procedure Act 2009* s 193).
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3. This reflects the judge’s obligations at common law when summing up (*Harris v The Queen* [2021] VSCA 197, [66]).
4. The summing up may use a combination of oral and written components (*Jury Directions Act 2015* s 65).
5. The *Jury Directions Act 2015* draws a distinction between “referring” to or “identifying” evidence or arguments and “summarising”, and removes any obligation to summarise evidence or arguments, or remind the jury of the content of the evidence (*Murrell v R* [2014] VSCA 334, [14]).
6. While a judge does not need to summarise the evidence, he or she must still give the jury guidance on how the evidence relates to the directions of law (*R v RNS* [1999] NSWCCA 122; *R v Condon* (1995) 83 A Crim R 335).
7. Whether the judge is bound to refer to an evidentiary matter or argument depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have a sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence (*R v Thompson* (2008) 21 VR 135; *Domican** v R* (1992) 173 CLR 555; *R v Williams* (1999) 104 A Crim R 260; *R v Veverka* [1978] 1 NSWLR 478).
## Identification of issues
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[^2]: If evidence which is admissible on one count is not admissible on another, and in consequence there is a real risk of impermissible prejudice to the accused, the judge may need to consider ordering separate trials (see *R v TJB* [1998] 4 VR 621; *Criminal Procedure Act 2009* s 193).
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8. Based on the matters identified by prosecution and defence counsel as being in issue (see *Jury Directions Act 2015* s 11), the judge must decide what are the real issues in the case, tell the jury what those issues are, direct the jury on so much of the law as is necessary to enable the jury to resolve those issues and explain how the law applies to the facts of the case (*R v Thompson* (2008) 21 VR 135; *R v DD *(2007) 19 VR 143; *R v Zilm* (2006) 14 VR 11; *R v AJS* (2005) 12 VR 563; *R v Chai* (2002) 187 ALR 436; *R v Anderson* [1996] 2 VR 663; *Alford v Magee* (1952) 85 CLR 437; *Murrell v R* [2014] VSCA 334).
9. It is not necessary to direct the jury about all elements of every offence charged. The responsibility of the judge is to determine what matters are in issue in the case and explain to the jury only as much of the law as is necessary to resolve those matters (*Jury Directions Act 2015* s 65; *Huynh v R* [2013] HCA 6;* R v VN* (2006) 15 VR 113; *R v Aden and **Toulle* (2002) 162 A Crim R 1; *Holland v R* (1993) 67 ALJR 946; *Quail v R* [2014] VSCA 336).
10. The judge may identify an issue as a factual question, rather than any underlying legal question (*Quail v R* [2014] VSCA 336). See Integrated Directions and Factual Questions below for more detail.
11. While the judge need not direct the jury about every element, it is erroneous to withdraw an issue from the jury (*Griffiths v R* (1994) 125 ALR 545; *Huynh v R* [2013] HCA 6).
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[^2]: If evidence which is admissible on one count is not admissible on another, and in consequence there is a real risk of impermissible prejudice to the accused, the judge may need to consider ordering separate trials (see *R v TJB* [1998] 4 VR 621; *Criminal Procedure Act 2009* s 193).
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12. It is the judge’s responsibility to focus the jury’s attention on the issues he or she identifies. That responsibility should not be delegated to counsel (*R v Amado-Taylor *[2000] 2 Cr App R 18).
13. The obligation to identify issues and relevant evidence is limited to the issues or matters that are actually in dispute in the trial (*R v RR* [2011] NSWCCA 235; *Buckley v R* [2012] NSWCCA 85).
14. In identifying the issues, there must be evidence to support those issues. In assessing which defences arise, and the factual basis for defences, there must be some evidence on which a reasonable jury could decide the issue favourably to the accused (*Quail v R *[2014] VSCA 336, [22]).
15. A factual basis for a defence may arise as a matter of inference from other evidence, even where witnesses are asked and deny that particular conclusion (see, e.g. *Mathieson v The Queen* [2021] VSCA 102, [22]–[26]).
16. The judge should ensure that the issues for decision in the trial are simply but adequately presented to the jury, without unnecessary emphasis on abstract legal concepts or theories. The judge should tell the jury what the prosecution must prove, rather than give the jury a short lecture on the law (*R v Whiting* [1995] 2 Qd R 199).
17. The *Jury Directions Act 2015* allows judges to direct the jury on issues in the form of factual questions which address the elements or defences in issue. See Integrated Directions and Factual Questions below.
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[^2]: If evidence which is admissible on one count is not admissible on another, and in consequence there is a real risk of impermissible prejudice to the accused, the judge may need to consider ordering separate trials (see *R v TJB* [1998] 4 VR 621; *Criminal Procedure Act 2009* s 193).
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## Identification of Evidence
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[^2]: If evidence which is admissible on one count is not admissible on another, and in consequence there is a real risk of impermissible prejudice to the accused, the judge may need to consider ordering separate trials (see *R v TJB* [1998] 4 VR 621; *Criminal Procedure Act 2009* s 193).
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18. The judge must identify only so much of the evidence as is necessary to help the jury to determine the issues in the trial. To determine what evidence must be identified, the judge must consider the following matters:
1. The facts in issue and the complexity of the facts in issue
1. The length of the trial;
2. The complexity of the evidence;
3. The submissions and addresses of the parties;
4. The manner in which the judge refers to the way in which the parties put their cases;
5. Any special needs or disadvantages of the jury in understanding or recalling the evidence;
6. Any transcript of evidence or other document provided to help the jury understand the evidence (Jury Directions Act 2015 s 66).
19. The obligation in s 66 reflects the scope of the common law obligation on trial judges to identify evidence (*Harris v The Queen* [2021] VSCA 197, [66]).
20. The Act does not draw a distinction between the obligation to identify direct evidence and circumstantial evidence. All evidence, whether direct or circumstantial, which may bear upon the primary or subsidiary issues must be identified. Indeed, the nature of circumstantial evidence may make it more important for a judge to identify how circumstantial evidence relates to the different issues in the case. This will require the judge to identify the factual conclusions which the prosecution must prove, and identify the evidence which the prosecution relies on to establish those factual conclusions. It is not enough to tell the jury to decide the case ‘on ‘all the evidence’ (*Murrell v R* [2014] VSCA 334, [15]; *Harris v The Queen* [2021] VSCA 197, [52], [58]).
21. The summing-up must be fair and accurate, and must not usurp the role of the jury as finder of fact. The judge must be careful not to misrepresent the evidence in any way, or use language that may cause the jury to think they are being directed to find the facts in a particular way (*Courtney-Smith (No 2) v R* (1990) 48 A Crim R 49;* R v Hughes* (1989) 42 A Crim R 270; *R v Perera* [1986] 1 Qd R 211; *R v Tikos (No 2)* [1963] VR 306).
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[^2]: If evidence which is admissible on one count is not admissible on another, and in consequence there is a real risk of impermissible prejudice to the accused, the judge may need to consider ordering separate trials (see *R v TJB* [1998] 4 VR 621; *Criminal Procedure Act 2009* s 193).
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22. There is no absolute rule as to what the judge must address in the charge to ensure a fair trial. What is required will vary according to the circumstances of the case, and factors such as the length of the case, the complexity of the issues and the manner in which the case is conducted by the parties (*Jury Directions Act 2015* s 66; *Werry v R* [2010] VSCA 314; *R v Thompson* (2008) 21 VR 135; *R v DD* (2007) 19 VR 143; *R v Yusuf (No 2)* [2006] VSCA 117; *R v Zilm* (2006) 14 VR 11; *R v Dao* [2005] VSCA 196).
23. The duty to identify the facts relevant to the issues is not confined to the ultimate facts in issue. The judge must also identify any substratum of facts which are in dispute and which bear upon the resolution of the ultimate issues. The evidence which is relevant to those subsidiary issues must also be identified (*R v Thompson* (2008) 21 VR 135; *Murrell v R *[2014] VSCA 334; *Harris v The Queen* [2021] VSCA 197).
24. The judge does not need to read out all the evidence or to analyse all the conflicts in it. Instead, judges must provide a fair and balanced explanation of the law, the issues and the respective cases of the prosecution and defence (see *R v Meher* [2004] NSWCCA 355; *R v Piazza* (1997) 142 FLR 64; *R v DH* [2000] NSWCCA 360; *Mathieson v The Queen *[2021] VSCA 102).
25. In discharging the obligation to put the defence case to the jury, the judge must refer to any items of evidence necessary to understand the defence case. It is not sufficient to refer to defence arguments in general terms without identifying the supporting pieces of evidence (*El-**Jalkh** v R* [2009] NSWCCA 139; *Mencarious** v R* [2008] NSWCCA 237; *R v Piazza* (1997) 142 FLR 64; *Gurung v The Queen* [2019] VSCA 196, [73]–[74]).
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[^2]: If evidence which is admissible on one count is not admissible on another, and in consequence there is a real risk of impermissible prejudice to the accused, the judge may need to consider ordering separate trials (see *R v TJB* [1998] 4 VR 621; *Criminal Procedure Act 2009* s 193).
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26. Where there is a significant dispute about material facts, the judge should succinctly identify the pieces of evidence in conflict, to focus the jury's attention on the issues they have to resolve (*R v Amado-Taylor* (2000) 2 Cr App R 189; *R v Mears* (1993) 97 Cr App R 239).
27. Where the evidence is relatively short and the issues clearly drawn, and there is no delay between the giving of the evidence and the judge’s charge, a detailed account of the evidence may not be necessary (*PA v R* [2010] VSCA 85; *R v Thompson* (2008) 21 VR 135; *R v Yusuf (No.2)* [2006] VSCA 117; *R v Zilm* (2006) 14 VR 11; *R v Dao* [2005] VSCA 196; *R v Amado-Taylor* [2000] 2 Cr App R 18).
28. However, in determining whether and to what extent it is necessary to identify evidence, judges should not assume that what a trained and experienced lawyer can recollect will be the same as what each member of the jury, without the same or any similar training, can recollect at the end of a trial. Many jurors do not have the experience, ability or opportunity of a judge to note significant evidence and cross-reference evidence from different sources which relate to the same issue (see *Scetrine** v R* (2010) 28 VR 213; *R v Thompson* (2008) 21 VR 135; *R v **De’Zilwa* (2002) 5 VR 408; *R v Amado-Taylor* [2000] 2 Cr App R 18; *Murrell v R *[2014] VSCA 334).
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[^2]: If evidence which is admissible on one count is not admissible on another, and in consequence there is a real risk of impermissible prejudice to the accused, the judge may need to consider ordering separate trials (see *R v TJB* [1998] 4 VR 621; *Criminal Procedure Act 2009* s 193).
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## Relate Evidence to the Issues in the Case
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[^2]: If evidence which is admissible on one count is not admissible on another, and in consequence there is a real risk of impermissible prejudice to the accused, the judge may need to consider ordering separate trials (see *R v TJB* [1998] 4 VR 621; *Criminal Procedure Act 2009* s 193).
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29. As evidence is given witness by witness, rather than sequentially according to the issues, it is the judge’s responsibility to arrange the evidence issue by issue, rather than leaving this task to the jury (*R v Amado-Taylor* [2000] 2 Cr App R 18).
30. The judge should provide the jury with a collected overview of the evidence that relates to each of the elements of the charged offences that are in issue, and a brief outline of the arguments which have been put in relation to that evidence (*Jury Directions Act 2015* s 65; *R v Hannes* (2000) 158 FLR 359; *R v Piazza* (1997) 94 A Crim R 459; *R v Zorad *(1990) 19 NSWLR 91. See also *Harris v The Queen* [2021] VSCA 197).
31. A detailed summary of all of the evidence given by each witness, without reference to prosecution or defence arguments, is not necessary or sufficient. It does not help in isolating the real issues for the jury’s determination (*R v **Hytch* (2000) 114 A Crim R 573; *Jury Directions Act 2015* s 65).
32. Fairness requires that, if a judge refers to the evidence on a crucial issue, there also be reference to any competing versions and considerations, including any inferences that arise (*Cleland v R* (1982) 151 CLR 1; *Domican** v R* (1992) 173 CLR 555).
33. Judges should usually avoid illustrating issues in the trial by way of factual examples which bear close resemblance to disputed facts in the case. Such examples might improperly be taken to invite a conclusion adverse to the accused (*R v Ivanovic *[2005] VSCA 238).
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[^2]: If evidence which is admissible on one count is not admissible on another, and in consequence there is a real risk of impermissible prejudice to the accused, the judge may need to consider ordering separate trials (see *R v TJB* [1998] 4 VR 621; *Criminal Procedure Act 2009* s 193).
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34. It is conventional to warn the jury that, while the judge is going to try to relate the evidence to the issues to assist the jury, it is for the jury, as the judges of the facts, to determine what evidence they think to be significant. Anything which the judge identifies as being significant is neither binding on the jury, nor necessarily accurate (*R v **Brdarovksi* (2006) 166 A Crim R 366; [2006] VSCA 231; *R v Yusuf* (2005) 11 VR 492; *R v **De’Zilwa* (2002) 5 VR 408).
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[^2]: If evidence which is admissible on one count is not admissible on another, and in consequence there is a real risk of impermissible prejudice to the accused, the judge may need to consider ordering separate trials (see *R v TJB* [1998] 4 VR 621; *Criminal Procedure Act 2009* s 193).
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## Cases Involving Multiple Counts
35. In a trial involving multiple counts, as well as giving a separate consideration direction (see 1.8 Separate Consideration), the judge should carefully explain to the jury what evidence relates to which count, and what evidence is inadmissible on each count (*T v R* (1996) 86 A Crim R 293; *R v **Mooseek* (1991) 56 A Crim R 36).[^2]
36. The judge must identify the conduct encompassed by the separate counts. The jury must be under no misapprehension concerning what the prosecution has to establish in order to secure a conviction on any particular count (*R v Huver* [2005] VSCA 170).
37. In some cases, the judge should direct the jury that if they are not satisfied that a particular ingredient of one count has been proved, that finding will be material to their deliberations in respect of a related count. Whether such a direction is required will depend on the nature of the counts alleged, and the evidence led in support of them (*R v Patton* [1998] 1 VR 7; *R v Anderson* [1996] 2 VR 663).
38. The jury should be told if an acquittal on one count would require an acquittal on another (*R v Scott* (1996) 131 FLR 137; *R v Patton* [1998] 1 VR 7).
39. In cases involving multiple counts, it may also be necessary to give a warning against tendency reasoning (see 4.17 Tendency Evidence).
## Cases Involving Multiple Accused
40. One problem which a judge has to overcome in joint trials is the risk of prejudice resulting from evidence being allowed in which is not admissible against all of the accused (*R v Nessel* (1980) 5 A Crim R 374; *Webb v R* (1994) 181 CLR 41 (Toohey J)).
41. While this risk will be partly overcome by giving a separate consideration direction (see 1.8 Separate Consideration), such a direction will usually not be sufficient. The judge must also:
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[^2]: If evidence which is admissible on one count is not admissible on another, and in consequence there is a real risk of impermissible prejudice to the accused, the judge may need to consider ordering separate trials (see *R v TJB* [1998] 4 VR 621; *Criminal Procedure Act 2009* s 193).
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- Tell the jury which evidence can be used against each accused, the circumstances in which that evidence can be used, and the purposes for which it can be used; and
- Identify the evidence which is not admissible against each accused, and warn the jury not to use it against that accused (*R v Nessel* (1980) 5 A Crim R 374; *R v Hauser* (1982) 6 A Crim R 68; *R v **Minuzzo** and Williams* [1984] VR 417; *Nicoletti v R* 4/11/97 WA CCA; *R v Mayberry* [2000] NSWCCA 531).
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[^2]: If evidence which is admissible on one count is not admissible on another, and in consequence there is a real risk of impermissible prejudice to the accused, the judge may need to consider ordering separate trials (see *R v TJB* [1998] 4 VR 621; *Criminal Procedure Act 2009* s 193).
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42. It is not sufficient simply to tell the jury that they must base their decision on the evidence that is admissible against each accused, because this tacitly attributes knowledge of the rules of evidence to the jury. The judge must apply those rules to the evidence in the case (*R v **Minuzzo** and Williams *[1984] VR 417).
43. The best way in which to identify the evidence that is admissible and inadmissible against each accused will depend on the facts of the case. In some cases it may be appropriate to identify all of the evidence generally, and then focus on the evidence that is inadmissible against each accused. In other cases it may be necessary to identify the evidence admissible against each accused separately (*Jury Directions Act 2015* s 75; *Nicoletti v R* 4/11/97 WA CCA; *R v **Minuzzo** and Williams* [1984] VR 417. See also *R v **Taouk* 17/12/92 NSW CCA; *R v Masters* (1992) 26 NSWLR 450).
44. Where a substantial body of the evidence is common to more than one accused, and the judge has identified the relevant evidence in relation to the first accused, it is not necessary to repeat that evidence in the same detail when dealing with each of the other accused to whom the same material relates. However, unless the evidence is wholly identical against each accused, it is necessary to deal with each accused separately by presenting the case against him or her separately (*R v **Taouk* 17/12/92 NSW CCA; *R v Masters* (1992) 26 NSWLR 450; *R v Towle* (1955) 72 WN (NSW) 338).
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[^2]: If evidence which is admissible on one count is not admissible on another, and in consequence there is a real risk of impermissible prejudice to the accused, the judge may need to consider ordering separate trials (see *R v TJB* [1998] 4 VR 621; *Criminal Procedure Act 2009* s 193).
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45. If the defence of one accused is conducted in a manner likely to prejudice a second accused (due to the inclusion of evidence that would ordinarily be inadmissible against him or her), the judge must give very full and detailed directions, referring to the inadmissible evidence and the potential prejudice it creates, and directing the jury to ignore that evidence when considering the case against the second accused. If the nature of the prejudice is such that not even a strong warning will be sufficient to guard against it, the judge should discharge the jury in respect of the second accused, and order that he or she be tried separately (*R v **Taouk* 17/12/92 NSW CCA; *R v Hauser* (1982) 6 A Crim R 68; *Webb v R* (1994) 181 CLR 41).
46. The jury should usually be told that a certain item of evidence is inadmissible against a particular accused at the time that it 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).
47. Similarly, if a document is admissible in relation to one accused but not in relation to a second accused, the judge must give the jury a clear and forceful direction about the limitations of the use they can legitimately make of the document at the time that it is provided to them, and again in his or her summing-up (*R v Hauser* (1982) 6 A Crim R 68).
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[^2]: If evidence which is admissible on one count is not admissible on another, and in consequence there is a real risk of impermissible prejudice to the accused, the judge may need to consider ordering separate trials (see *R v TJB* [1998] 4 VR 621; *Criminal Procedure Act 2009* s 193).
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## Referring to the Parties’ Cases
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[^2]: If evidence which is admissible on one count is not admissible on another, and in consequence there is a real risk of impermissible prejudice to the accused, the judge may need to consider ordering separate trials (see *R v TJB* [1998] 4 VR 621; *Criminal Procedure Act 2009* s 193).
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48. The judge does not need to summarise the closing addresses of the parties, but must refer the jury to the way in which the prosecution and accused have put their cases on the issues in the trial (*Jury Directions Act 2015* s 65).
49. The judge must put the respective cases for the prosecution and the defence to the jury accurately, fairly and in neutral terms (*Domican** v R *(1992) 173 CLR 555; *Cleland v R *(1982) 151 CLR 1; *Kayirici** v The Queen *[2021] NSWCCA 127, [160]).
50. It is especially important that the judge fully, clearly and fairly present the defence case, as this provides a fundamental safeguard in our system. Failure to present an important part of the defence case will be a miscarriage of justice (*R v Thompson* (2008) 21 VR 135; *R v Coombes* 16/4/1999 CA Vic; *R v Melbourne* (1999) 198 CLR 1; *R v **McKellin* [1998] 4 VR 757; *R v Wiles and Briant* [1965] VR 475; *R v Schmahl* [1965] VR 745).
51. The judge is obliged to ensure that the jury’s attention is drawn to the evidence on which the defence relies. However, the judge does not need to summarise defence counsel’s address or the evidence (*Jury Directions Act 2015* s 65. See also *R v Thompson* (2008) 21 VR 135;* R v Soldo* [2005] VSCA 136).
52. The way in which a judge refers to counsel’s address will depend on the circumstances of the case. In some cases, in order to ensure that the defence case is adequately presented to the jury, it will be necessary to refer to the addresses in some detail (e.g. where the arguments put forward in the address do not emerge clearly from the judge’s references to the evidence, or the nature of the case itself). In other cases, a much briefer reminder of counsel’s arguments will suffice (*Werry v R* [2010] VSCA 314).
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[^2]: If evidence which is admissible on one count is not admissible on another, and in consequence there is a real risk of impermissible prejudice to the accused, the judge may need to consider ordering separate trials (see *R v TJB* [1998] 4 VR 621; *Criminal Procedure Act 2009* s 193).
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53. This requirement does not oblige the judge to put to the jury every argument made by counsel for the accused, as long as the accused’s case is put fairly. Whether it is necessary to refer to a particular argument will depend on the nature of the case (*Werry v R* [2010] VSCA 314; *R v Sukkar* [2005] NSWCCA 54; *R v Meher* [2004] NSWCCA 355; *Domican** v R* (1992) 173 CLR 555;* R v Forster* [1955] VLR 253).
54. The defence should be put in such a way that, upon their retirement to consider the verdict, the jury has a clear understanding of the accused’s position (*R v Nguyen* [2006] VSCA 158; *R v Dao* [2005] VSCA 196; *Stokes v R* (1960) 105 CLR 279).
55. Putting the defence fairly and adequately will generally require the judge to refer to any evidence of inconsistencies in the prosecution witnesses’ accounts that the accused has sought to exploit (*R v Amado-Taylor* [2000] 2 Cr App R 18).
56. Judges should not intermingle their explanation of the defence case with disparaging and adverse comments upon it. It is not part of the proper function of the judge to pass comments regarding the quality of counsel’s arguments (*R v Abdirahman-Khalif* [2020] HCA 36, [77]. See also “Distinction between Directions and Comments” below).
57. The judge should also avoid structuring their summary of the prosecution and defence case in a manner that intermingles prosecution rebuttal of defence arguments with the summary of the defence case (*Becker v The King *[2023] VSCA 332, [242]–[251]).
58. However, where the prosecution or defence make a statement or suggestion that is prohibited by the* Jury Directions Act 2015*, the trial judge must correct that statement or suggestion unless there are good reasons for not doing so (*Jury Directions Act 2015* s 7). For example, a direction may not be required if the party withdraws the statement and corrects their misstatement at the invitation of the judge (see, e.g. *Reeves v R* (2013) 41 VR 275).
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[^2]: If evidence which is admissible on one count is not admissible on another, and in consequence there is a real risk of impermissible prejudice to the accused, the judge may need to consider ordering separate trials (see *R v TJB* [1998] 4 VR 621; *Criminal Procedure Act 2009* s 193).
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59. It is insufficient for judges to rely on counsels’ addresses. They must lend the weight of their judicial position and authority to the respective cases by referring to the way each party have put their case (see *R v **Tomazos* 6/8/71 NSW CCA; *Jury Directions Act 2015* s 65).
60. The summing-up must present a balanced account of the conflicting cases. Where one case is strong and the other weak, this is not achieved by under-weighting the strong case and over-weighting the weak one. A balanced account in such a situation would reflect the strength of the one and weakness of the other (*R v Ali* (1981) 6 A Crim R 161; *Sumner v R* [2010] VSCA 298).
61. The obligation to present a balanced summing up can be particularly difficult when the defence misstates the evidence. It is not necessary to correct every error. The judge will need to balance the need to present fair and neutral summing up with the need to correct errors. In doing so, the judge must not express ridicule or scepticism regarding the defence case (see *Kayirici** v The Queen* [2021] NSWCCA 127, [154]–[162]).
62. A balanced summing up does not involve instructing the jury only on the different paths it could take to conviction. As part of providing a balanced summing up that puts the defence case, the judge should refer to specific evidentiary issues which may favour the defence case (*Gurung v The Queen* [2019] VSCA 196, [73]–[74]).
63. The summing-up is not to be used for the purpose of filling gaps, or rectifying deficiencies, in counsels’ submissions to the jury. A desire on the part of the trial judge to reduce a perceived imbalance in the quality of representation cannot provide a justification for an unbalanced summing-up (*R v Esposito* (1998) 45 NSWLR 442).
64. It is not the judge’s role to respond to matters raised in defence counsel’s address that the prosecution has not adequately dealt with. Doing so may give the jury the impression that the judge disagrees with the defence arguments and is urging the jury to infer guilt (*R v Lao and Nguyen* (2002) 5 VR 129).
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[^2]: If evidence which is admissible on one count is not admissible on another, and in consequence there is a real risk of impermissible prejudice to the accused, the judge may need to consider ordering separate trials (see *R v TJB* [1998] 4 VR 621; *Criminal Procedure Act 2009* s 193).
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65. Keeping a balance between the prosecution and defence cases requires the use of moderate and reasoned language which is not likely to inflame the jury. The judge should never betray an emotional approach to the facts (*R v Machin* (1996) 68 SASR 526; *Cornelius & Briggs v R* (1988) 34 A Crim R 49; *Galea v R* (1989) 1 WAR 450;* Green v R *(1971) 126 CLR 28; *R v **Byczko* (1982) 30 SASR 578).
66. Where the prosecution case seems to be very strong, it is particularly important that the judge maintain the appearance of strict judicial impartiality by taking a disinterested position (*Sumner v R* [2010] VSCA 298).
67. It is inappropriate for a judge to refer to the accused by his or her surname only, while preceding the surname of the complainant and prosecution witnesses with the terms “Ms”, “Mrs” or “Mr” (*R v Soldo* [2005] VSCA 136).
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[^2]: If evidence which is admissible on one count is not admissible on another, and in consequence there is a real risk of impermissible prejudice to the accused, the judge may need to consider ordering separate trials (see *R v TJB* [1998] 4 VR 621; *Criminal Procedure Act 2009* s 193).
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## Integrated Directions and Factual Questions
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1. The *Jury Directions Act 2015* allows judges to give directions in the form of factual questions that address the matters the jury must consider or be satisfied of in order to reach a verdict (*Jury Directions Act 2015* s 67). These directions are sometimes also called “question trails”.
2. Factual question directions are designed to reduce the difficulty of the jury understanding and applying abstract principles of law. Instead, the directions will ask the jury to resolve specific factual questions and spell out the legal consequences of possible findings of fact. Such directions are designed to put the critical issues of fact before the jury, without complications from the interpretation of the relevant law (see, e.g. *Stuart v R* (1974) 134 CLR 426).
3. For example, in *Quail v R *[2014] VSCA 336, the trial judge, with the consent of prosecution and defence counsel, integrated the legal question of self-defence within the factual question of whether the accused or the victim was the original aggressor. Resolution of that question was sufficient to determine whether the prosecution had disproved self-defence.
4. The judge may combine directions in the form of factual questions with:
1. Directions on the evidence and how the evidence is to be assessed;
1. The reference to the way the parties have put their case in relation to the issues;
2. The identification of evidence necessary to assist the jury determine the issues in the trial (*Jury Directions Act 2015* s 67).
5. A judge who gives a direction in the form of a factual question or a factual question combined with another matter (an “integrated direction”) does not need to also address the matter in another form (*Jury Directions Act 2015* s 67).
6. Where a person is charged with committing the same offence on multiple occasions, a question trail may identify the central factual question, the occasions that are relevant to each charge, and contain a short factual statement about how the prosecution and defence puts their case in relation to each occasion. Such a process is likely to be of great assistance to the jury by simplifying the issues to be decided and integrating the elements with the facts in the form of easily comprehensible questions (see *Star v The Queen* [2020] VSCA 331, [42]–[43]).
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7. Where there are multiple accused and the evidence against each accused is different, there are risks in using a question trail which does not differentiate between the accused (*McKinnen** v The Queen* [2019] VSCA 114, [77]).
8. Integrated directions should contain questions that are tied to individual elements and explain the consequences that flow from each answer for the next step in the reasoning (*McKinnin** v The Queen* [2019] VSCA 114, [78]).
9. A judge should not describe a jury document as a question trail unless it is an integrated direction in accordance with s 67 of the Jury Directions Act 2015 (*McKinnin** v The Queen* [2019] VSCA 114, [78]).
10. Under the *Jury Directions Act 2015*, it is only the elements and the absence of any defences which must be proved beyond reasonable doubt. When a judge directs on the elements in the form of factual questions, those factual issues must be proved beyond reasonable doubt (*Jury Directions Act 2015* s 61).
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## Jury Checklists
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[^3]: To provide consistency for a jury between questions regarding elements of offences and elements of defences, questions which require the prosecution to prove a negative proposition are often framed in the form “Has the prosecution proved, beyond reasonable doubt that the accused did not …?”. The alternative, where the prosecution must prove a negative, is to ask the jury “Is it reasonably possible that the accused …?”. If used, that formulation is best used for exculpatory matters, such as the elements of self-defence (see *Gregg v The Queen* [2020] NSWCCA 245, [503]–[510]; *Moore v The Queen* [2016] NSWCCA [43], [99]–[127]; *Towney** v The Queen* [2018] NSWCCA 65, [71]–[82]; c.f. *Hadchiti** v The Queen* (2016) 93 NSWLR 671, [67]–[112]).
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1. An alternative to integrated directions and factual questions is to provide the jury with an element checklist. That is a document which succinctly states the elements of each offence or defence the jury must consider, and identifies how decisions on each element lead to a particular legal conclusion.
2. Sample checklists are provided in this Charge Book for most offences.
3. Checklist questions are designed to present questions which are answered either as yes or no.
4. This structure, which directs the jury at each step to either acquit, or continue to the next question, depending on the answer given, does not funnel the jury into a guilty verdict (*Tessa v The King *[2024] VSCA 204, [59]).
5. Consistent with the onus of proof, in most situations, the jury may only answer yes to a checklist question if it is satisfied of the relevant matter beyond reasonable doubt.[^3] The corollary to this is that if the jury is not satisfied of an element beyond reasonable doubt, then the jury should answer no to the question that reflects that element.
6. A judge must not leave the jury with the impression that it may only answer no to a checklist question which asks if the prosecution has proved a particular element if it has a positive belief that the answer is no. Such an impression would diminish or reverse the onus of proof (*Gregg v The Queen* [2020] NSWCCA 245, [508]–[510]).
7. In New South Wales, there was a practice of directing the jury, as part of a checklist, that “if you are undecided as to the answer of any of the questions, you should consider the remaining ones in order to determine whether the answer to any of them is in the negative and if so, you should acquit the accused”. This instruction has now been disapproved, on the basis that it undermines the prosecution’s burden of proof by suggesting that a positive state of belief is required when answering either yes or no to a checklist question (*Gregg v The Queen* [2020] NSWCCA 245, [509]).
8. It is likely that the impugned instruction reflects a concern raised by Judge Berman in *Question trails in jury instruction – a note of caution* 24(4) Judicial Officers Bulletin (May 2012), that in following a checklist, a jury may collectively cease their deliberations due to an inability to agree on one element, even though the jury would agree that an offence was not proved if they considered all elements.
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[^3]: To provide consistency for a jury between questions regarding elements of offences and elements of defences, questions which require the prosecution to prove a negative proposition are often framed in the form “Has the prosecution proved, beyond reasonable doubt that the accused did not …?”. The alternative, where the prosecution must prove a negative, is to ask the jury “Is it reasonably possible that the accused …?”. If used, that formulation is best used for exculpatory matters, such as the elements of self-defence (see *Gregg v The Queen* [2020] NSWCCA 245, [503]–[510]; *Moore v The Queen* [2016] NSWCCA [43], [99]–[127]; *Towney** v The Queen* [2018] NSWCCA 65, [71]–[82]; c.f. *Hadchiti** v The Queen* (2016) 93 NSWLR 671, [67]–[112]).
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9. In Victoria, this concern is addressed by jurors using the checklist individually, rather than expecting the jury to work through the checklist in a collective, step-by-step, process where unanimity is required at each step.
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[^3]: To provide consistency for a jury between questions regarding elements of offences and elements of defences, questions which require the prosecution to prove a negative proposition are often framed in the form “Has the prosecution proved, beyond reasonable doubt that the accused did not …?”. The alternative, where the prosecution must prove a negative, is to ask the jury “Is it reasonably possible that the accused …?”. If used, that formulation is best used for exculpatory matters, such as the elements of self-defence (see *Gregg v The Queen* [2020] NSWCCA 245, [503]–[510]; *Moore v The Queen* [2016] NSWCCA [43], [99]–[127]; *Towney** v The Queen* [2018] NSWCCA 65, [71]–[82]; c.f. *Hadchiti** v The Queen* (2016) 93 NSWLR 671, [67]–[112]).
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## Written Directions
1. Under the *Criminal Procedure Act 2009* s 223, a judge may give the jury written directions summarising relevant matters of law, setting out the questions it may be pertinent for them to consider, or describing the possible verdicts at which they may properly arrive.
2. The judge may also provide the jury with a “jury guide”, which contains any of the following:
1. A list of questions to assist the jury in reaching a verdict, including a written form of any factual question directions or integrated directions; or
1. Evidentiary directions; or
2. References to how the parties have put their cases; or
3. References to evidence which the judge considers necessary to assist the jury to determine the issues in the trial; or
4. Any other information (Criminal Procedure Act 2009 s 223).
3. These directions should not be used as a substitute for directions of law or references to how the parties have put their case. Instead, written directions may be used in conjunction with and to supplement oral directions (see *Jury Directions Act 2015* ss 65, 66).
4. The court should mark and tender any written directions, question trails or jury guides as exhibits. This ensures that they are preserved for any future proceedings.
5. See 2.2 Providing Documents to the Jury for further information concerning written directions.
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## Distinction between Directions and Comments
1. A distinction is drawn between “directions” and “comments”:
- A direction is something which the law requires a judge to give to the jury, and which they must heed;
- A comment is something the judge tells the jury, which they may choose to ignore (*Azzopardi v R* (2001) 205 CLR 50;* Mahmood v State of Western Australia* (2008) 232 CLR 397).[^4]
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[^4]: In *Mahmood v State of Western Australia* (2008) 232 CLR 397, the court gave the following examples: Telling the jury that they may attach particular significance to a fact, or that other evidence may be considered of greater weight, is a comment. Warning the jury about the care needed in assessing some evidence, or the use to which it may be put, is a direction.
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2. A judge must give all directions required by the law. In doing so, he or she must make it clear that he or she is giving a direction, and that the direction must be heeded (*Azzopardi v R* (2001) 205 CLR 50; *Mahmood v State of Western Australia* (2008) 232 CLR 397).
3. However, as it is for the jury alone to determine the facts, the judge must never direct them that they must accept his or her view of disputed evidence (*RPS v R* (2000) 199 CLR 620; *R v **Boykovski** and **Atanasovski* (1991) A Crim R 436).
4. Although a judge may make non-binding comments or observations about the evidence, he or she should generally avoid doing so (*R v **Brdarovksi* (2006) 166 A Crim R 366; *R v Ivanovic* [2005] VSCA 238; *R v Mathe* [2003] VSCA 165; *R v Soldo* [2005] VSCA 136).
5. In particular, the judge must not comment on a disputed issue in such a way as to suggest how the jury should resolve that issue. This prohibition applies equally to comments that might be favourable to the prosecution and the defence, even though a comment that unfairly favours the defence cannot be remedied by appeal (*McKell v The Queen* [2019] HCA 5, [46]; *McKinnin** v The Queen* [2019] VSCA 114; *Mareangareu** v The Queen* [2019] VSCA 101; *Pyliotis** v The Queen* [2020] VSCA 134; *R v Abdirahman-Khalif* [2020] HCA 36, [77]).
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[^4]: In *Mahmood v State of Western Australia* (2008) 232 CLR 397, the court gave the following examples: Telling the jury that they may attach particular significance to a fact, or that other evidence may be considered of greater weight, is a comment. Warning the jury about the care needed in assessing some evidence, or the use to which it may be put, is a direction.
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6. Comments about disputed factual issues, or the resolution of those issues, have two vices. First, they are not consistent with the different constitutional functions of the judge and jury. The judge’s function in addressing the jury is to ensure the jury have a fair and accurate understanding of what they need to know to do justice to the issues of fact. Comments are not necessary for performing that duty. Second, there is tension between suggesting how the jury might or should think and directing the jury that they are free to ignore that suggestion. Such a comment risks being an attempt to persuade the jury, and function as a second address that favours either the prosecution or defence (*McKell v The Queen* [2019] HCA 5, [48]–[52], [55]. See also *R v **Brdarovksi* (2006) 166 A Crim R 366; *R v Ivanovic* [2005] VSCA 238; *Mule v R* (2005) 221 ALR 85; *Neena v The Queen* [2021] VSCA 183, [78]–[81]).
7. In addition, the powerful position occupied by judges should make them slow to comment on the facts of a case. As judges appear to be neutral, with their statements carrying the earmarks of balanced justice, their comments cannot fail to bear heavily on the jury. This creates a risk that the jury will be overawed by a judge’s view, even if they are warned that they need not take that view into account (*Broadhurst v R* [1964] AC 441; *R v Mawson* [1967] VR 205;* R v Machin* (1996) 68 SASR 526; *R v **Mong* (2002) 5 VR 565; *R v Mathe* [2003] VSCA 165; *Neena v The Queen* [2021] VSCA 183, [95]).
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[^4]: In *Mahmood v State of Western Australia* (2008) 232 CLR 397, the court gave the following examples: Telling the jury that they may attach particular significance to a fact, or that other evidence may be considered of greater weight, is a comment. Warning the jury about the care needed in assessing some evidence, or the use to which it may be put, is a direction.
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8. It will therefore most often be the safer course for a judge to make no comment on the facts (*RPS v R* (2000) 199 CLR 620; *Azzopardi v R* (2001) 205 CLR 50; *R v **Mong* (2002) 5 VR 565; *R v Mathe* [2003] VSCA 165; *R v Soldo* [2005] VSCA 136; *R v Ivanovic* [2005] VSCA 238).
9. A judge may comment to restore the balance and correct misleading impressions created by counsel, provided the comment is made in a way that only restores the balance and does not tip the balance in the other direction. Such statements might be necessary where counsel misrepresents the evidence (*McKell v The Queen* [2019] HCA 5, [53]–[54]; *R v Abdirahman-Khalif* [2020] HCA 36, [81]; *R v Castle* (2016) 259 CLR 449, [61]).
10. Any judicial comments that are made must be fair and appropriate, and exhibit a judicial balance, so that the jury is not deprived of an adequate opportunity of understanding and giving effect to the defence and the matters relied upon in support of the defence (*Stokes v R* (1960) 105 CLR 279; *Green v R* (1971) 126 CLR 28; *B v R* (1992) 175 CLR 599; *R v Meher* [2004] NSWCCA 355).
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[^4]: In *Mahmood v State of Western Australia* (2008) 232 CLR 397, the court gave the following examples: Telling the jury that they may attach particular significance to a fact, or that other evidence may be considered of greater weight, is a comment. Warning the jury about the care needed in assessing some evidence, or the use to which it may be put, is a direction.
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## Redirection
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1. The judge should, at the conclusion of the summing-up, ask counsel, in the absence of the jury, whether the judge failed to give any directions of law or warnings which were requested, and hear submissions on the correctness or otherwise of the directions of law which have been given (*R v Gulliford* [2004] NSWCCA 338; *R v Mostyn* [2004] NSWCCA 97; *R v Roberts* (2001) 53 NSWLR 138; *Lean v R* (1993) 66 A Crim R 296).
2. Counsel may also seek additional directions which were not previously sought in relation to the matters in issue or the evidence relevant to the matters in issue (see *Jury Directions Act 2015* s 12). See also Overview – Directions Under Jury Directions Act 2015.
3. Counsel may be asked to formulate any direction, warning or comment they believe is required by the judge, if they submit that what the judge has said was insufficient to ensure a fair trial for the accused or the prosecution (*R v Micalizzi* [2004] NSWCCA 406).
4. It is appropriate to redirect the jury if the judge is satisfied that he or she failed to give a requested direction and were no good reasons for not giving the direction. However, the trial judge must ensure that any redirection does not give undue emphasis to any matter which would affect the balance of fairness (*Holt v R* (1996) 87 A Crim R 82; *Jury Directions Act 2015* s 14).
5. When giving a redirection to address an earlier, erroneous, direction, the judge should explicitly tell the jury that the earlier direction was wrong. It is not sufficient to give the jury a corrected direction without also telling the jury to disregard the earlier direction, as that produces a situation where the jury has conflicting and confusing directions (*Ritchie v The Queen* [2019] VSCA 202, [130]).
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6. The judge should ensure that an appropriate note is made of any submissions, rulings and redirections. The failure to take exception to an aspect of the judge’s charge is often significant to the disposal of an appeal, as it may demonstrate that the matter in question did not cause a substantial miscarriage of justice (*R v Clarke* [1986] VR 643; *R v **McKellin* [1998] 4 VR 757; *R v Zilm* (2006) 14 VR 11; *R v MAG* [2005] VSCA 47; *R v IAB* [2009] VSCA 229. See also *Jury Directions Act 2015* ss 15, 16).
7. A judge should ensure that no further directions are to be sought or given before asking the jury to consider their verdict (*R v McCormack* (1995) 85 A Crim R 445. See also *Knight v R* 18/12/90 NSW CCA; *Trivitt *13/6/91 NSW CCA; *Lean v R* (1993) 66 A Crim R 296).
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3.9 Redirection
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Last updated: 24 October 2024
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3.9.1 Charge: Judge's Summary of Issues and Evidence
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# 3.9.1 Charge: Judge's Summary of Issues and Evidence
I am now going to take you to the issues you need to decide, and remind you of some of the evidence that has been given in relation to those issues. Before doing so, I want to remind you again that the mere fact that I may leave out a part of a particular witness’s evidence does not mean that that evidence is not important.
Similarly, the fact that I include evidence from a particular witness does not make that evidence more important than the evidence of other witnesses. You must consider all of the evidence, not just the parts of it that I mention. Which parts of that evidence are important or not important is a matter for you to determine.
I also want to emphasise again that it is not my responsibility to decide this case – that is your role. 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. If I happen to express any views upon questions of fact, you must disregard those views, unless they happen to agree with your own assessment of the evidence.
[*Insert directions on relevant offences, incorporating references to the evidence, parties' arguments and evidentiary directions. Judges should *only* refer to so much of the evidence as is relevant to the real issues in the case, clearly relating the evidence to the issues: see *3.9 Judge's Summing Up on Issues and Evidence.]
Last updated: 30 November 2015
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3.10 Alternative Verdicts
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# 3.10 Alternative Verdicts
## When is an Alternative Verdict Available?
1. The *Crimes Act 1958* provides that the jury may return specified alternative verdicts[^2] in relation to a number of offences, including:
- Murder (ss 421, 6(2));
- Negligently causing serious injury or culpable driving causing death (s 422A);
- Indictable offences alleging wounding or causing grievous bodily harm (s 423);
- Conduct endangering life (including unlawfully and maliciously administering poison) (s 424);
- Destroying or damaging property (s 427(1));
- Arson causing death (s 427(2));
- Unauthorised modification of data to cause impairment (s 428);
- Unauthorised impairment of electronic communication (s 429);
- Riot-related charges (s 435).[^3]
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[^2]: An alternative verdict is a verdict in relation to an offence which has not been specifically charged (*R v Salisbury* [1976] VR 452).
[^3]: On 28 February 2018, *Justice Legislation Amendment (Victims) Act 2018* s 7 commenced operation. This repealed *Crimes Act 1958* s 425, which previously specified alternative verdicts for certain sexual offences. According to the Explanatory Memorandum, s 425 had become obsolete due to *Criminal Procedure Act 2009* s 239, which provides general rules on when an alternative verdict is available.
[^4]: While *Criminal Procedure Act 2009* s 239 does not apply to a charge of murder, s 421(1) states that attempted murder is an alternative verdict to murder.
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3.10 Alternative Verdicts
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2. A list of statutory alternatives is available in the Victorian Criminal Proceedings Manual.
3. Some assistance about available alternative verdicts may be obtained from I. Freckelton* Indictable Offences in Victoria* (4th Ed, 1999).
4. In addition, in a trial for any offence except treason or murder, the jury may return an alternative verdict for another offence, if the allegations in the indictment amount to or include (expressly or by necessary implication) an allegation of that other offence (*Criminal Procedure Act 2009* s 239(1)).
5. This involves the application of the common law ‘red pencil’ test. An offence will amount to or include another offence if words could be deleted from the particulars of an offence in the indictment in a way that leaves the particulars of the alternative offence (*Mareangareu v The Queen* [2019] VSCA 101, [44]; *Chaarani & Ors v The Queen* (2020) 61 VR 353, [83]).
6. The availability of an alternative verdict depends on the terms in which the charged offence is laid, and not upon the evidence adduced. The evidence led at the trial is only relevant to the extent that an accused cannot be found guilty of a lesser charge unless the evidence led supports a conviction on that charge (*R v Salisbury* [1976] VR 452; *Reid v R* (2010) 29 VR 446; *Pollard v R* (2011) 31 VR 416; *R v Perdikoyiannis* (2003) 86 SASR 262; *Chaarani & Ors v The Queen* (2020) 61 VR 353).
7. Section 239 does not allow a court to leave a State offence as a necessarily included alternative to a Commonwealth offence. This is because while s 239 may be ‘picked up’ by *Judiciary Act 1903* s 79(1) to permit an alternative verdict of one Commonwealth offence for another, a substantive offence cannot be picked up by s 79 to become ‘another offence within the jurisdiction of the court’ (*Chaarani & Ors v The Queen* (2020) 61 VR 353, [66]; *Fattal & Ors v The Queen* [2013] VSCA 276, [122]).
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[^2]: An alternative verdict is a verdict in relation to an offence which has not been specifically charged (*R v Salisbury* [1976] VR 452).
[^3]: On 28 February 2018, *Justice Legislation Amendment (Victims) Act 2018* s 7 commenced operation. This repealed *Crimes Act 1958* s 425, which previously specified alternative verdicts for certain sexual offences. According to the Explanatory Memorandum, s 425 had become obsolete due to *Criminal Procedure Act 2009* s 239, which provides general rules on when an alternative verdict is available.
[^4]: While *Criminal Procedure Act 2009* s 239 does not apply to a charge of murder, s 421(1) states that attempted murder is an alternative verdict to murder.
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3.10 Alternative Verdicts
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8. Any allegation of an offence (other than treason) includes an attempt to commit that offence (*Criminal Procedure Act 2009 *s 239(2)).[^4]
9. A judge may not leave a driving offence, such as dangerous driving causing death, as an alternative to a charge of murder under *Crimes Act 1958* s 421(1) (*R v Borthwick* [2010] VSC 306).
10. The offence of sexual penetration of a child under 16 is not an alternative to a charge of rape (*Pollard v R* (2011) 31 VR 416).
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[^2]: An alternative verdict is a verdict in relation to an offence which has not been specifically charged (*R v Salisbury* [1976] VR 452).
[^3]: On 28 February 2018, *Justice Legislation Amendment (Victims) Act 2018* s 7 commenced operation. This repealed *Crimes Act 1958* s 425, which previously specified alternative verdicts for certain sexual offences. According to the Explanatory Memorandum, s 425 had become obsolete due to *Criminal Procedure Act 2009* s 239, which provides general rules on when an alternative verdict is available.
[^4]: While *Criminal Procedure Act 2009* s 239 does not apply to a charge of murder, s 421(1) states that attempted murder is an alternative verdict to murder.
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3.10 Duty to leave alternative verdicts
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## Duty to leave alternative verdicts
1. Although an alternative verdict may be available at law, a judge is not always obliged to leave such a verdict to the jury. A judge may order that the guilt of a person in respect of such alternatives shall not be determined at the trial if he or she considers that it is expedient to do so in the interests of justice (*Criminal Procedure Act 2009* s 240).
2. The judge’s duty to leave an available alternative verdict to the jury will depend on the course of the trial and the evidence in the case.
3. Under the *Jury Directions Act 2015*, after the close of all the evidence, the prosecution must indicate whether any alternative offences are open on the evidence and, if so, whether it relies on them. Defence counsel must then indicate whether they consider any alternative offences are in issue and must request directions on the matters in issue (*Jury Directions Act 2015* ss 11, 12).
4. Three situations may therefore arise
- If the possibility of an alternative verdict forms part of *either party’s case*, appropriate directions about that verdict must be given to the jury (*Jury Directions Act 2015* s 14; *R v Kane* (2001) 3 VR 542 (Ormiston JA));
- If the possibility of an alternative verdict has *not *formed part of either party’s case, but one of the parties has *requested* such a verdict be left to the jury, the judge must consider whether there are good reasons for not giving the requested direction (see “Good Reasons for Not Giving Requested Direction” below);
- If the possibility of an alternative verdict has *not *formed part of either party’s case, and the parties have not requested such a verdict be left to the jury (or have objected to such a verdict being left), the judge must decide whether fairness to the accused requires that the jury consider the alternative charge (see “Leaving Alternative Verdicts Even if Not Sought by Counsel”) below.
## Good Reasons for Not Giving Requested Direction
5. *Jury Directions Act 2015* s 14(1) states:
The trial judge must give the jury a requested direction unless there are good reasons for not doing so.
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[^5]: The distinction is actually between murder/manslaughter cases and other cases (see “Other Alternative Verdicts to Murder” below). For the sake of simplicity, however, this topic refers to this distinction as the distinction between homicide and non-homicide cases.
[^6]: The “viable” bases of accessorial liability may vary for each verdict. For example, while complicity on the bases of acting in concert or extended common purpose may be viable in relation to a verdict of murder, in some cases these forms of complicity may not be viable in relation to a verdict of manslaughter (see, e.g. *R v Nguyen* [2010] VSCA 23).
[^7]: The requirement that there must have been a “viable” case of manslaughter did not differ in substance from the test in *Pemble v R* (1971) 124 CLR 107 that manslaughter should be left to the jury if such a verdict was “open on the evidence” (*R v Kanaan* (2005) 64 NSWLR 527).
[^8]: See, e.g. *Mraz v R* (1955) 93 CLR 493, in which it was held to be a misdirection to direct the jury about manslaughter where it was a case of murder or nothing (i.e. there was no doubt that a murder was committed, but the accused denied any involvement in it).
[^9]: If the jury returns a verdict of manslaughter where there is no evidence to support it, the judge may request them to reconsider the matter. However, if they persist in that verdict, the judge must accept it (*R v Kanaan* (2005) 64 NSWLR 527).
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6. In deciding whether there are good reasons for not giving a requested direction, the judge must consider the manner in which the parties have conducted their cases and whether the direction would involve the jury considering the issues in a manner different from the way in which the accused presented his or her case (*Jury Directions Act 2015* s 14(2)(b)(ii)).
7. This provision appears designed to limit the ability of counsel to seek directions which require the jury to assess alternative theories of the case which are not raised with the jury by defence counsel. Until the provision is interpreted, it is not known when a judge should refuse to give a direction sought on the basis that it is not raised or relied on by the accused.
## Leaving Alternative Verdicts Even if Not Sought by Counsel
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[^5]: The distinction is actually between murder/manslaughter cases and other cases (see “Other Alternative Verdicts to Murder” below). For the sake of simplicity, however, this topic refers to this distinction as the distinction between homicide and non-homicide cases.
[^6]: The “viable” bases of accessorial liability may vary for each verdict. For example, while complicity on the bases of acting in concert or extended common purpose may be viable in relation to a verdict of murder, in some cases these forms of complicity may not be viable in relation to a verdict of manslaughter (see, e.g. *R v Nguyen* [2010] VSCA 23).
[^7]: The requirement that there must have been a “viable” case of manslaughter did not differ in substance from the test in *Pemble v R* (1971) 124 CLR 107 that manslaughter should be left to the jury if such a verdict was “open on the evidence” (*R v Kanaan* (2005) 64 NSWLR 527).
[^8]: See, e.g. *Mraz v R* (1955) 93 CLR 493, in which it was held to be a misdirection to direct the jury about manslaughter where it was a case of murder or nothing (i.e. there was no doubt that a murder was committed, but the accused denied any involvement in it).
[^9]: If the jury returns a verdict of manslaughter where there is no evidence to support it, the judge may request them to reconsider the matter. However, if they persist in that verdict, the judge must accept it (*R v Kanaan* (2005) 64 NSWLR 527).
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3.10 Duty to leave alternative verdicts
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8. *Jury Directions Act 2013* s 16 abolished the common law rule which required a trial judge to direct the jury about offences open on the evidence which had not been identified during the trial and alternative bases of complicity. This abolition has continued despite the repeal of the *Jury Directions Act 2013*, but does not limit the residual obligation under *Jury Directions Act 2015* s 16 (*Interpretation of Legislation Act 1984* s 14(2)(c); *Jury Directions Act 2015* s 17 Note).
9. Under the *Jury Directions Act 2015*, a judge has a residual obligation to give the jury a direction if there are substantial and compelling reasons for doing so even though the direction has not been requested (*Jury Directions Act 2015* s 16).
10. This residual obligation presupposes that the parties have complied with their obligations under Jury Directions Act 2015 s 11 to identify alternative offences that are open on the evidence and whether those alternatives are relied upon or in issue (*Aston v The Queen* [2019] VSCA 225, [45], [52]).
11. While a judge is not required to leave an alternative charge that is not a realistic alternative, fairness to the accused may require that the judge leave an alternative charge where the jury might reasonably return a verdict on that alternative, even if the alternative charge was not sought by any party (*Aston v The Queen* [2019] VSCA 225, [46], [57]).
12. Before giving a direction that was not sought, the judge must inform the parties of his or her intention to give the direction and invite submissions on the direction and whether there are substantial and compelling reasons for giving the direction (*Jury Directions Act 2015 *s 16).
13. At common law, there was a greater obligation on judges to leave alternative verdicts in homicide cases compared to non-homicide cases.[^5] It is unclear whether different principles continue to apply when determining whether a judge must give a direction regarding alternative offences under the residual obligation. These common law authorities are addressed below.
### *Homicide Cases*
Judge Must Direct Jury About Manslaughter if “Viable”
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[^5]: The distinction is actually between murder/manslaughter cases and other cases (see “Other Alternative Verdicts to Murder” below). For the sake of simplicity, however, this topic refers to this distinction as the distinction between homicide and non-homicide cases.
[^6]: The “viable” bases of accessorial liability may vary for each verdict. For example, while complicity on the bases of acting in concert or extended common purpose may be viable in relation to a verdict of murder, in some cases these forms of complicity may not be viable in relation to a verdict of manslaughter (see, e.g. *R v Nguyen* [2010] VSCA 23).
[^7]: The requirement that there must have been a “viable” case of manslaughter did not differ in substance from the test in *Pemble v R* (1971) 124 CLR 107 that manslaughter should be left to the jury if such a verdict was “open on the evidence” (*R v Kanaan* (2005) 64 NSWLR 527).
[^8]: See, e.g. *Mraz v R* (1955) 93 CLR 493, in which it was held to be a misdirection to direct the jury about manslaughter where it was a case of murder or nothing (i.e. there was no doubt that a murder was committed, but the accused denied any involvement in it).
[^9]: If the jury returns a verdict of manslaughter where there is no evidence to support it, the judge may request them to reconsider the matter. However, if they persist in that verdict, the judge must accept it (*R v Kanaan* (2005) 64 NSWLR 527).
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