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Insufficiency Of The Trial Judge's Directions To The Jury

One of the grounds on which a decision in a criminal matter can be appealed is insufficiency of the trial judge’s directions to the jury. This is the argument that the trial judge delivered a summary of the evidence to the jury or directions to the jury that were insufficient, inaccurate or otherwise unfair to the accused.

A critical part of ensuring that a person receives a fair trial is the giving of proper directions by the trial judge to the jury in relation to how the law applies to various aspects of the evidence introduced throughout the trial. Consequently, the adequacy or appropriateness of a trial judge’s directions to the jury deserves very close attention in determining whether to bring a conviction appeal in the Court of Criminal Appeal.

Judge’s Directions

The overriding obligation of a trial Judge is to provide the jury with a summing up and directions in a way that is fair, balanced and impartial. Common issues with jury directions that arise in many different types of trials (and may lead to successful appeals) include:

  1. Markuleski directions: This arises where there are multiple charges on an indictment and a particular prosecution witness has given evidence about more than one of the charges. If the jury has an issue or problem with the credibility of the witness’ evidence in relation to one of the charges, it should be directed to think carefully about what impact that has on the reliability of the evidence that the witness gave in relation to the other charge/s.
  2. If the jury has heard expert evidence during the trial it will usually be necessary for the trial judge to take the jury through the evidence with some care to ensure that the evidence is understood and its relationship to the issues in the case are made clear. Where the prosecution and defence each have their own experts who differ in their opinions, a general reference to differences between experts will usually not be sufficient to ensure the jury is adequately assisted in its task.
  3. There should be a general balance in the way the jury is directed as to the respective prosecution and defence cases, in relation to the trial judge’s summary of the evidence and any comments on the addresses of counsel. When referring to defence counsel’s argument, great care should be taken to ensure that any adverse (negative) comments cannot be taken by the jury as being the judge’s personal views but as arguments that have been advanced by the prosecution.

The issue of whether an appellant’s trial counsel requested that the trial judge give a particular direction which was not given (or opposed a problematic direction that was given) is of relevance to whether an appeal to the Court of Criminal Appeal on this ground will succeed. The Court of Criminal Appeal has held that the absence of an objection from trial counsel is usually a reasonably reliable indicator of the fairness and adequacy of the directions given.

However, the High Court of Australia has held that a failure to give a particular direction that was not requested by a defendant’s trial counsel may result in a miscarriage of justice (meaning the Court of Criminal Appeal should allow the appeal and order a re-trial).

If you require legal advice in relation to insufficiency of the trial judge’s directions or any other legal matter please contact Armstrong Legal or phone us on 1300 038 223.

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