Part 7 – General Directions Flashcards
S61 What must be proved beyond reasonable doubt
Unless enactment otherwise provides, the only matters that TJ may direct the jury must be proved BRD are (a) elements of offence charged or of an alternative offence
(b) the absence of any relevant defence
S62 Abolition of CL obligation to give certain JDs
Any CL rule under which a TJ in a criminal trial is required to direct the jury that a matter, other than a matter referred to in s 61, must be proved BRD is abolished.
S63 When trial judge may explain proof beyond
reasonable doubt
(1) TJ may explain BRD to jury if they ask the TJ (a) a direct question about meaning of the phrase, or (b) question raising indirectly the meaning of the phrase. (2) subsection (1) does not limit any other power of a TJ to give jury explanation of BRD
S64 How explanation may be given in response to jury question
(1) If the jury has asked direct question about meaning of phrase PBRD, or question indirectly raising its meaning, TJ may (a)(i) refer to presumption of innocence (ii) P obligation to prove that the A is guilty, OR (b) indicate that it is not enough for P to persuade jury that A is probably guilty or very likely to be guilty, OR (c) indicate that (i) it is almost impossible to prove anything with certainty when reconstructing past events AND (ii) the P doesn’t have to do so, OR
(d) indicate that jury cannot be satisfied that A is guilty if jury has reasonable doubt about whether the A is guilty, OR (e) indicate that a reasonable doubt is not an imaginary or fanciful doubt or an unrealistic possibility.
(2) TJ may adapt his/her explanation of the phrase proof BRD in order to respond to particular jury question
64A Definition
In this Division, Majority verdict direction means an explanation that it is possible, or may be possible in some circumstances, for jury to return a majority verdict instead of a unanimous verdict
64B restriction on when direction to persevere may be given
Trial judge must not direct jury to persevere to reach unanimous verdict at the same time as (or immediately before/after) the trial judge gives a majority verdict direction.
64C TJ need not give direction to persevere before giving MVD
The TJ may give a MVD to the jury whether or not the TJ has previously directed jury to persevere to reach a unanimous verdict.
64D Abolition of common law rules
Any CL rule under which a TJ is required/permitted to direct jury to persevere to reach a unanimous verdict at the same time as (or immediately before/after) the TJ gives an MVD is abolished
64E Directions on order in which offences to be considered
(1) section applies to a trial in which there is more than one offence in respect of which the jury may return a verdict.
(2) TJ may direct jury on order in which it MUST consider offences (eg, homicide trial, consider manslaughter only if A NG of murder)
(3) foregoing does not prevent direction from TJ on how jury MAY order the offences to be considered
64F Directions on order in which elements, defences and
issues in dispute to be considered
(1) TJ may direct jury on order in which it MUST consider following matters (a) some/all elements of offence charged or alternative offence (b) defences to offence charged or alternative offence
(c) matters in issue (d) alternative basis of complicity in commission of offence charged or an alternative offence
(2) foregoing does not prevent direction on how jury MAY consider the foregoing in what order
64G Abolition of common law rules
Any rule of CL under which TJ not permitted to direct jury on order it MUST consider any of the following is abolished:
(a) offences in respect of which jury may return verdict
(b) elements of an offence charged or an alternative offence
(c) defences to an offence charged or to an alternative offence
(d) the matters in issue
(e) alternative basis of complicity in commission of OC/AO
