One of the hallmarks of Australia’s judicial system is the right to be tried by a jury of your peers. Once all the relevant evidence is adduced at trial, the jury is tasked with determining whether an accused person is guilty or not guilty of the alleged offences.
One area of concern in criminal trials is the separation of matters of law and matters of fact. In a criminal trial, the judge is tasked with ruling on matters of law. The jury, however, retain sole responsibility for deciding the facts of the case.
A judge has the responsibility of not only deciding what evidence will or will not be permitted to be adduced before the jury at trial, but also in giving directions or instructions to the jury about the law and how it requires a jury to go about their decision-making process.
Trial directions are usually given to a jury at the end of a trial, before a jury begins the process of deliberating, as a matter of fairness to the accused and prosecution.
Directions are meant to ensure the jury is adequately informed about how to execute their role and arrive at the correct result. There are a number of legal directions that commonly arise in criminal trials.
Liberato direction
In a trial where the defence elects to adduce evidence, either through defence witnesses or the accused person themself, the obvious and seemingly common sense question a juror may have is: ‘who is to be believed’. This can have a serious impact in juror deliberations and it is important that a judge make clear to the jury that this is not the test for what are often call ‘word on word’ matters.
A Liberato direction first reminds the jury of the fundamental principles of a criminal trial, that is, the prosecution must prove the accused establishes all elements beyond reasonable doubt.
Where a defendant’s testimony is that they did not commit the element of an offence, the generic direction will then cover these basic principles:
- if you agree with defence evidence, you must return a verdict of not guilty;
- if you find difficulty in accepting the defence evidence, but think it might be true, you must return a verdict of not guilty;
- even if you do not accept the defence evidence, you must cast that to one side, and then can only return a verdict of guilty if forming the view that the prosecution evidence independently proves the elements beyond reasonable doubt.
It is important to bear in mind, absent any belief of the defence version, the prosecution still must of course prove, beyond reasonable doubt, the accused did what the prosecution allege.
Longman direction
This direction is common in matters where there has been a significant period of time from the allegations to a complaint being made. Notably, this is often sought in matters involving historical sex offences.
In essence, a Longman direction warns the jury that due to the time that has lapsed from the allegations, a defendant may have experience significant forensic disadvantage as a consequence of the delay. In some appropriate cases a judge may warn a jury that evidence from this delay may be unreliable and that there is a need for caution in determining whether to accepted the evidence and the weight to be given to it.
The original common law Longman direction is captured and somewhat altered in legislation in most jurisdictions, notably section 165 of the Uniform Evidence Act. The direction is also often supplemented by a comment by the judge that there may in many cases be good reasons why a complainant may hesitate in making a complaint.
Azzopardi Direction
The Azzopardi Direction is derived from the case High Court case of Azzopardi v The Queen [2001] HCA 25.
This direction draws its foundation from the fundamental legal principle that the accused does not have to give evidence or call evidence. This direction also supports the basic legal notion that the Crown must prove that the accused satisfies all elements beyond reasonable doubt and that failure of the accused to elect not to give evidence cannot be perceived to cure any deficiencies in the Crown case.
This direction ensures that no adverse implication can be drawn by the jury to speculate why an accused wouldn’t give evidence.
Black Direction
This direction is reserved for circumstances where the jury indicates it is unable or unlikely to reach a unanimous verdict. Whilst some criminal matters can adequately resolve through a majority verdict, some offences require a unanimous verdict.
A Black direction was derived from Black v The Queen [1993] HCA 71 and essentially focuses on 3 major points:
- it ensures that the jury is not put under pressure to reach a verdict
- it encourages the jurors to calmly and openly engage with other jurors in the deliberation of the evidence
- reinforces the idea that experience has shown that given more time, juries are able to reach a unanimous verdict
The consequences of not reaching a unanimous verdict where one is required is the discharge of the jury and a re-trial at a later date.
Should you or someone you know be charged with an offence, it is essential you receive legal advice from an experienced criminal defence lawyer at any early stage. To discuss your options, call Hugo Law Group in Sydney, NSW (02 9696 1361), Canberra (02 5104 9640), Perth (08 6255 6909) or Northern NSW (02 5552 1902) to make an appointment to speak to one of our lawyers.
