3.8 – Judge’s Summing Up on Issues and Evidence
3.8.1 - Bench Notes: Judge’s Summing Up on Issues and
Evidence1
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 s65).
3.
The summing up may use a combination of oral and written
components (Jury Directions Act 2015 s65).
4.
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.
5.
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).
6.
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
7.
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Based on the matters identified by prosecution and defence counsel
This document was last updated on 29 June 2015.
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as being in issue (see Jury Directions Act 2015 s11), 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] VSCA 317; R v Zilm [2006] VSCA 72; R v AJS [2005]
VSCA 288; R v Chai (2002) 187 ALR 436; R v Anderson [1996] 2 VR
663; Alford v Magee (1952) 85 CLR 437).
8.
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 s65; 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).
9.
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).
10. 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).
11. 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).
12. 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).
13. 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).
Identification of Evidence
14. 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:
a)
The facts in issue and the complexity of the facts in issue
b)
The length of the trial;
c)
The complexity of the evidence;
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d)
The submissions and addresses of the parties;
e)
The manner in which the judge refers to the way in which the
parties put their cases;
f)
Any special needs or disadvantages of the jury in understanding
or recalling the evidence;
g)
Any transcript of evidence or other document provided to help
the jury understand the evidence (Jury Directions Act 2015
s66).
15. 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).
16. 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 s66; Werry v R
[2010] VSCA 314; R v Thompson (2008) 21 VR 135; R v DD [2007]
VSCA 317; R v Yusuf (No.2) [2006] VSCA 117; R v Zilm [2006]
VSCA 72; R v Dao [2005] VSCA 196).
17. 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).
18. 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) 94 A Crim R 459; R v DH [2000] NSWCCA 360).
19. 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) 94 A Crim R 459).
20. 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 AmadoTaylor [2000] 2 Cr App R 189; R v Mears (1993) 97 Cr App R 239).
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21. 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] VSCA 72;
R v Dao [2005] VSCA 196; R v Amado-Taylor [2000] 2 Cr App R 18).
22. 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] VSCA 194; 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).
Relate Evidence to the Issues in the Case
23. 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).
24. 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 s75; R
v Hannes (2000) 158 FLR 359; R v Piazza (1997) 94 A Crim R 459; R
v Zorad (1990) 19 NSWLR 91).
25. 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 s65).
26. 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).
27. 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).
28. 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
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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).
Cases Involving Multiple Counts
29. In a trial involving multiple counts, as well as giving a separate
consideration direction (see Bench Notes: 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
30. 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).
31. 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).
32. 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).
33. In cases involving multiple counts, it may also be necessary to give a
warning against tendency reasoning (see Bench Notes: Tendency
Evidence).
Cases Involving Multiple Accused
34. 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 per Toohey J).
35. While this risk will be partly overcome by giving a separate
consideration direction (see Bench Notes: Separate Consideration),
such a direction will usually not be sufficient. The judge must also:

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
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 s193).
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
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).
36. 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).
37. 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 s75; 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).
38. 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).
39. 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).
40. 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).
41. 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
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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).
Referring to the Parties’ Cases
42. 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 s65).
43. The judge must put the respective cases for the prosecution and the
defence to the jury accurately and fairly (Domican v R (1992) 173
CLR 555; Cleland v R (1982) 151 CLR 1).
44. 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).
45. 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 s65. See also R v Thompson (2008) 21 VR
135; R v Soldo [2005] VSCA 136).
46. 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).
47. 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).
48. 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).
49. Putting the defence fairly and adequately will generally require the
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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).
50. Judges should not intermingle their explanation of the defence case
with disparaging and adverse comments upon it. Any comments
concerning the defence should be made separately from the judge’s
explanation of the defence case (R v Byczko (1982) 30 SASR 578; R
v Whittingham (1988) 49 SASR 67; R v Machin (1996) 68 SASR 526.
See “Judicial Comments on the Evidence” below).
51. 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 s7). 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] VSCA 311).
52. 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
s65).
53. 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).
54. 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).
55. 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).
56. 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).
57. Where the prosecution case seems to be very strong, it is particularly
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important that the judge maintain the appearance of strict judicial
impartiality by taking a disinterested position (Sumner v R [2010]
VSCA 298).
58. 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).
Integrated Directions and Factual Questions
59. 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 s67).
60. 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).
61. The judge may combine directions in the form of factual questions
with:
a)
Directions on the evidence and how the evidence is to be
assessed;
b)
The reference to the way the parties have put their case in
relation to the issues;
c)
The identification of evidence necessary to assist the jury
determine the issues in the trial (Jury Directions Act 2015 s67).
62. 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 s67).
63. 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 s61).
Written Directions
64. Under the Criminal Procedure Act 2009 s223, 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.
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65. The judge may also provide the jury with a “jury guide”, which
contains any of the following:
a)
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
b)
Evidentiary directions; or
c)
References to how the parties have put their cases; or
d)
References to evidence which the judge considers necessary to
assist the jury to determine the issues in the trial; or
e)
Any other information (Criminal Procedure Act 2009 s223).
66. 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 ss65, 66).
67. 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.
68. See Bench Notes: Providing Documents to the Jury for further
information concerning written directions.
Distinction between Directions and Comments
69. 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).3
70. 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).
71. However, as it is for the jury alone to determine the facts, the judge
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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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).
72. Although a judge may make non-binding comments or observations
about the evidence,4 he or she should generally avoid doing so (R v
Brdarovksi (2006) 166 A Crim R 366; [2006] VSCA 231; R v Ivanovic
[2005] VSCA 238; R v Mathe [2003] VSCA 165; R v Soldo [2005]
VSCA 136).
73. Such comments are discouraged as they may be taken by the jury,
or by observers at the trial, as reflecting the judge’s opinion about
where the truth lies, thereby appearing to usurp the function of the
jury or to unfairly tip the scales towards a particular outcome (R v
Brdarovksi (2006) 166 A Crim R 366; [2006] VSCA 231; R v Ivanovic
[2005] VSCA 238; Mule v R (2005) 221 ALR 85).
74. 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] VSCA 203; R v Mathe
[2003] VSCA 165).
75. It will therefore most often be the safer course for a judge to make
no comment on the facts, beyond reminding the jury of the
arguments of counsel (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).
76. If a judge does comment on the evidence it must be made clear
that:

The judge is making a comment about the facts rather than
giving a direction about the law;

It is the jury's function to decide the facts. The judge’s
comments are only intended for the jury’s assistance; and

Such comments are not intended to be binding, and the jury are
free to accept or reject them as they choose. It is the jury’s
duty to disregard any view which the judge has expressed, or
A judge may even make comments very strongly critical of the accused or of the
defence case, provided it is made clear to the jury that they are free to accept or
reject the comments as they see fit (R v Boykovski and Atanasovski (1991) A
Crim R 436; R v Kerr (No 2) [1951] VLR 239).
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may appear to hold, if it does not agree with their own
independent assessment of the facts (R v Mule (2005) 221 ALR
85; R v Mathe [2003] VSCA 165; Arulthilakan v R (2003) 203
ALR 259; RPS v R (2000) 199 CLR 620; R v Boykovski and
Atanasovski (1991) A Crim R 436; R v Zorad (1990) 19 NSWLR
91; R v Sinclair (1989) 44 A Crim R 449).
77. The jury should be directed about the use they can make of the
judge’s comments at an early stage in the trial, so that when a
comment is made they understand that it can be disregarded. It may
be difficult for the jury to apply such a direction if it is given after the
comments have already been made, especially if there has been no
adequate differentiation between instructions as to matters of law
and statements of evidence or comments (WSJ v R [2010] VSCA
339; R v Sinclair (1989) 44 A Crim R 449).
78. 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).
79. Judges should not betray their opinion of the accused’s guilt in their
comments, and should be at pains not to create such an impression
in the minds of the jury (R v Mathe [2003] VSCA 165).
80. Comments must not be phrased in such strong language as to give
the jury the impression that there is really nothing for them to
decide, or that it would be disrespectful if they disagreed with the
judge's views (Broadhurst v R [1964] AC 441; R v Hulse (1971) 1
SASR 327; B v R (1992) 175 CLR 599; R v Machin (1996) 68 SASR
526; R v Mathe [2003] VSCA 165).
81. Judges must not use such language as leads the jury to think that
they are being directed to find the facts in the way indicated. For
example, a judge must not tell the jury that they “should have no
difficulty” in making an adverse finding against the accused on a
critical issue in the trial, as that may be tantamount to directing the
jury to convict the accused (even if the jury is also told that they are
at liberty to ignore the comment).5 Less forceful language, such as
“you may think” or “you may not have too much difficulty”, should
be used instead (Nation v R (1994) 78 A Crim R 125; R v Machin
(1996) 68 SASR 526. See also R v Mawson [1967] VR 205; R v
Guerin [1967] 1 NSWR 255; R v Hannes (2000) 158 FLR 359).
82. Judges must be careful not to commit errors of law or misrepresent
It may be justifiable to make such a comment about an element of an offence
which is not in issue (Nation v R (1994) 78 A Crim R 125; R v Machin (1996) 68
SASR 526).
5
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the evidence in their comments, either by positive misstatements or
by omissions that are so grave as to make what is said misleading (R
v Joyce [1970] SASR 184).
83. If a view adverse to the accused is put, it increases the importance
of clearly putting the case made by the accused, or a case that fairly
arises on the evidence, however little validity the judge might be
inclined to ascribe to it (Attorney-General for South Australia v
Brown [1960] AC 432).
84. Comments about the defence case should be made separately from
the judge’s explanation of that case. The judge should first
summarise the evidentiary material which the defence has put
forward, and explain its bearing upon the legal issues in the case.
Only then may they, in a separate part of their summing-up, make
observations about the defence (R v Byczko (1982) 30 SASR 578; R
v Whittingham (1988) 49 SASR 67; R v Machin (1996) 68 SASR
526).
Redirection
85. 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).
86. 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 s12).
See also Bench Notes: Overview – Directions Under Jury Directions
Act 2015.
87. 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).
88. 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 s14).
89. 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;
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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 ss15, 16).
90. 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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