"" "" Divs 5-8; Case for the A; Giving of evidence; Closing addresses and judge's directions to the jury; Alternative verdicts and discharge of jury from delivering verdict

Question 1

S226 Accused entitled to respond after close of
prosecution case (no case; answer; do nothing)

Answer 1

(1) After close of case for the prosecution, an A is entitled to submit (a) that there is no case for A to answer (b) to answer charge by choosing to give evidence or call other witnesses to give evidence or both (c) not to give evidence/call any witness
(2) When ruling on no-case submission by A, TJ may take into account any expert W evidence given on behalf of any A in trial

Question 2

S227 Election when accused is legally represented

Answer 2

If A has LR, at close of P case, TJ may question the LP to determine A’s elected course of action under s 226.

Question 3

S228 Election when accused is not legally represented

Answer 3

1) if an A is not LR, immediately after close of P case and in absence of jury, TJ must inform accused in understandable manner that (a) A has right to answer charge and must choose either (i) to give sworn/affirmed evidence (ii) can say nothing in answer (b) in either case, A my call witnesses to give evidence
(2) must then ask A what they want

Question 4

S229 procedure for joint trials if no-case submission made

Answer 4

(1) section applies to a trial if 2+ accuseds named on indictment
(2) After the close of the P case, an A who wishes to make a submission that there is no case for the A to answer must do so at that time (3) If after TJ has ruled on all no-case subs, 2+ As remain on trial, then first-named A on indictment must advise, in response to Qs under s 227 or 228, whether it wishes to take s226(b) or s226(c) options
(4) each subsequent named A in the indictment not required to advise TJ of their election until close of case for previous A
(5) cases of all As must proceed in order named in indictment, unless TJ otherwise orders

Question 5

S230 Questioning (of A) to determine proper course of
proceeding (W names/order - will be held to it)

Answer 5

(1) if A intends to give evidence or call Ws to give evidence at trial, A must indicate, when called on by TJ to do so (a) names of the witnesses (b) order in which they’ll be called
(2) must not then present case differently unless TJ gives leave

Question 6

S231 opening address of accused

Answer 6

(1) if A intends to give evidence, or to call other Ws on behalf of the A, or both, A is ENTITLED to give opening address to jury outlining the A evidence proposes to give or call
(2) if A gives OA, must be given before A gives evidence or calls any other witnesses (3) TJ can limit OA length (4) A not required to give evidence before any other W is called on behalf of A.

Question 7

S232 manner of giving evidence (can permit various forms)

Answer 7

(1) TJ may permit a person to give evidence (a) with consent from parties, by witness reading from W statement (b) if expert witness, through presenting audio/AV material, (c) by means of playing audio or AV recording (d) any other way TJ thinks will assist
(2) nothing above precludes (a) re: (1)(b), questioning of expW by x-exam before during or after presentation (b) re: (1)(c), if unanticipated issues arise re audio/AV recording, TJ making order that W attend before court
(3) Nothing affects operation of misc. provisions act/evidence Act

Question 8

S232A Trial judge may give directions about the giving of concurrent or consecutive evidence by expert witnesses

Answer 8

(1) This section applies despite ss 226 and 231(2).
(2) The TJ, with consent of P and A, may direct that 2+ ExpW give evidence concurrently or consecutively
(3) in determining procedure to be followed, TJ can direct any EW
(a) give evidence at any stage of trial, including after all factual evidence has been adduced on behalf of the P and the A
(b) give oral exposition of opinion of EW on any issue
(c) give opinion of EW on any opinion by another EW
(d) be exam, x-exam, re-exam in particular manner/sequence, including putting each question relevant to one matter to each expW in turn (e) be permitted to ask Qs of any other EW giving evidence
(4) TJ may question any EW to identify real issues in dispute between 2+ EWs, including questioning 2+ EW at the same time
(5) nothing here limits any other power court may have re: case management, evidence or witnesses, including EW

Question 9

233 Introduction of evidence not previously disclosed

Answer 9

(1) if TJ gives leave to do so, P or A may introduce at trial evidence not disclosed under Pt 5.5 which represents (a) substantial departure from summary of P opening as filed in court and served on A (b)(i)-(ii) subdep from response of A to P opening summary or from response of A to notice of PTA, if any, as served on P and filed in court
(2) If after close of P case, A gives evidence not reasonably foreseeable by the P from (a) A’s response to summary of P opening (b) response of A to P’s notice of PTA, TJ may allow P to call evidence in reply (3) nothing in this section limits any other power of TJ to allow P to call evidence after P has closed P case.

Question 10

S234 Prosecution closing address

Answer 10

(1) The P is ENTITLED to address jury to sum up evidence (a) after close of all evidence, AND (b) before closing address of A if any under s 235.
(2) Subject to s 236, P is not entitled to any further or other right to address the jury following the close of evidence
(3) TJ may limit length of closing address of P

Question 11

S235 Closing address of the accused

Answer 11

(1) A is ENTITLED to address jury for purpose of summing evidence (a) after close of all evidence, and (b) after closing address of P, if any, under s 234
(2) TJ may limit length of closing address of accused

Question 12

S236 Supplmentary prosecution address

Answer 12

(1) if in the closing address of A under s235, the A asserts facts unsupported by any evidence that is before the jury, TJ may grant leave to the P to make supplementary address to the jury
(2) must be confined to replying to assertion (3) TJ can limit length

Question 13

S237 Comment on departure or failure

Answer 13

(1) Subject to subsection (2), TJ or with leave of TJ, a party may make any comment that TJ thinks appropriate on (a) departure per s233(1) or (b) failure by a party to comply with requirement/order under this Chapter
(2) TJ may grant leave to a party to comment on departure or failure only if satisfied that (a) proposed comment is relevant, AND (b) PC permitted by another act / rule of law (c) AND not unfairly prejudicial to party about whom comment made

Question 14

S238 Judge’s directions to jury

Answer 14

At conclusion of closing address of P, A and any supplementary P address, TJ must give directions to jury to enable it to consider properly verdict

Question 15

S239 alternative verdicts on charges other than treason or murder

Answer 15

(1) on trial for indictment for offence other than treason/murder, if the jury finds A NG of offence charged but the allegations amount to/include, expressly or impliedly, allegation of another offence that is within jurisdiction of court, jury may find A guilty of that
(2) For above, allegation of offence includes allegation of attempt

Question 16

S240 Judge may order that guilt in respect of alternative offences is not to be determined

Answer 16

Despite the above, if the trial judge considers that it is in the interests of justice to do so, the judge may order that the guilt of the accused in respect of all or any of the other offences of which the accused may be found guilty is not to be determined at the trial

Question 17

S241 When judge may enter finding of guilty or not guilty (if PG on re-arraignment; if P informs proposes not to lead evidence or TJ decides no case to answer at P close)

Answer 17

(1) if during trial, A is re-arraigned and PG to charge on indictment, TJ can discharge jury from delivering verdict on the charge and direct entry of guilty be made on record re: that charge
(2)(a) if during trial the P informs the TJ that the P proposes not to lead evidence on charge on the indictment, or
(b) at close of P case, TJ decides there’s no case to answer for A in respect of a charge on the indictment
TJ may discharge the jury from delivering a verdict on charge and instead direct entry of NG on the record IRO that charge
(3) the above has the same effect as if it NG jury verdict on trial