Dale v Wintringham (Ruling No 2)
[2024] VCC 87
•9 February 2024 (ex tempore reasons); 22 March 2024 (revised reasons)
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| General List |
Case No. CI-22-04992
| Donna Dale | Plaintiff |
| v | |
| Wintringham (a company limited by guarantee) | Defendant |
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JUDGE: | HER HONOUR JUDGE Morrish |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 and 9 February 2024 |
DATE OF RULING: | 9 February 2024 (ex tempore reasons); 22 March 2024 (revised reasons) |
CASE MAY BE CITED AS: | Dale v Wintringham (Ruling No 2) |
MEDIUM NEUTRAL CITATION: | [2024] VCC 87 |
RULING No 2
(Discharge of Jury)
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Subject:PRACTICE AND PROCEDURE – JURY TRIAL – JURY GUIDE – DISCHARGE OF JURY
Catchwords: Civil jury trial – Jury Guides found in jury room after jury empanelled and preliminary directions given – No authorisation to distribute Jury Guides to jury – Content of Jury Guide inconsistent with preliminary directions – Application to discharge jury – Application granted
Legislation Cited: Criminal Procedure Act 2009 (Vic), s222, s223, s223A; Charter of Human Rights and Responsibilities Act 2006 (Vic), s24; Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022 (Vic), s223A; Jury Directions Act 2015, s63; County Court Civil Procedure Rules 2018, o49.01; Evidence Act 2008, s4, s8, s9, s11, s29(4) and s50; Juries Act 2000 (Vic), s48
Cases cited:Stanton v The Queen (2003) 198 ALR 41
Ruling:Jury discharged without verdict.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J B Richards KC with Ms K Popova | Redlich’s Work Injury Lawyers |
| For the Defendant | Mr A Saunders with Ms R Matson | Lander & Rogers |
Table of Contents
Background and summary 2
The issues at trial 4
Empanelment of the jury and preliminary directions 4
The publication “Jury Guide For Civil Trials” 16
Jurisdiction to provide jury guides to juries 16
Criminal trials 16
Extrinsic material 19
Civil Trials 20
The Evidence Act 2008 (Vic) 22
Inherent jurisdiction 22
Preliminary Directions to be given when Jury Guides are given to juries 22
No authorisation given to provide Jury Guides to the jury in the present case 23
Use of Jury Guides not appropriate for the present case 24
(1) – The Jury Guide cannot amount to directions of law 24
(2) – Written in the first person 26
(3) – The Jury Guide is generic and selective 27
(4) – Refers only to the plaintiff’s burden 27
(5) – Confusion about what constitutes evidence 29
(6) – Errors in the description of the typical trial 30
(7) – Selection of the foreperson 33
Deliberation guide 34
Conclusions 38
Annexure A
Jury Guide For Civil Trials
HER HONOUR:
Background and summary
1.In this matter the plaintiff, Donna Dale, has brought common law proceedings to recover damages against the defendant, Wintringham, a company limited by guarantee, who runs and operates aged-care facilities and home-care help services in Metropolitan Melbourne and Regional Victoria.
2.Between approximately April 2006 and April 2011, the plaintiff worked for the defendant as a personal care assistant. Then, between approximately April 2011 and July 2022, the plaintiff worked for the defendant as a case manager at their high care unit in Seddon.
3.The plaintiff alleges that as a result of the work she was required to perform as a case manager for the defendant, she injured her hands, wrists and thumbs and that she has sustained injury, loss and damage as a result of the defendant’s negligence or breach of statutory duty of care.
4.The defendant denies any negligence or breach of duty of care on its part.
5.If there was negligence on the part of the defendant that was a cause of the plaintiff’s injury, loss and damage, the defendant alleges that the plaintiff was also negligent, which negligence contributed to her injury, loss and damage.
6.The mode of trial was by judge and jury. Mr J B Richards KC appeared with Ms K Popova on behalf of the plaintiff. Mr A Saunders appeared with Ms R Matson on behalf of the defendant.
7.A jury of six persons was empanelled in the afternoon of 8 February 2024, following which I gave the jury detailed preliminary directions. The trial was adjourned part-heard to the next day, when it was expected that the plaintiff’s counsel would commence his opening address.
8.In the morning of 9 February 2024, my staff were informed that a number of copies of the publication known as “Jury Guide For Civil Trials” (“the Jury Guide”) were found on the table in the jury room. I had not authorised any such publication to be provided to the jury.
9.I informed counsel of what had occurred and showed them copies of the Jury Guide, which had been retrieved from the jury room.
10.Enquiries revealed that person(s) unknown had apparently left the Jury Guides in the rubbish bin in the jury room prior to the jury’s empanelment. How the Jury Guides found their way from the bin to the jury table is unknown.
11.At the request of counsel, and in open court, I asked the foreman:
HER HONOUR:
“Good morning Mr Foreman and members of the jury. I start with an apology for keeping you waiting. Something came up that is no fault of the parties and no fault of yours, but it came to my attention that a number of this publication called Jury Guide for Civil Trials were found in the jury room on the jury table and I was wondering, and don't answer me now, but has anybody read the guide or looked at the guide at all? I did not authorise this document and it is inaccurate. So would you mind going back into the jury room, please, Mr Foreman, and ascertain if anyone has looked at the guide and read it, without pointing fingers at - - -.”
1.The foreman interrupted me and responded:
FOREMAN:
“I can answer you now? A few of us have.”
1.I then asked the jury to return to the jury room, following which I heard submissions from counsel as to what course should follow.
2.Mr Saunders applied for the jury to be discharged on the grounds that I had not authorised the Jury Guide to be provided to the jury and that it contained inaccurate information and/or did not contain information relevant to the defendant. He further submitted that those members of the jury who had read the Jury Guide had done so in direct contravention of the direction I had given the jury immediately after their empanelment, prohibiting them from conducting independent research about the law and the matters relating to the trial.
3.On the other hand, Mr Richards submitted that the trial should continue and that I could give appropriate directions to the jury to save the trial.
4.I upheld Mr Saunders’ application and discharged the jury without verdict.
5.I gave summary ex tempore reasons for discharging the jury, stating that I would provide more fulsome reasons in due course.
6.I now give my revised reasons for ruling.
The issues at trial
1.As mentioned, the plaintiff alleges that she sustained injury, loss and damage in the course of her employment with the defendant as a result of the defendant’s negligence and/or breach of statutory duty.
2.The defendant denied negligence and breach of statutory duty. The defendant also pleaded contributory negligence against the plaintiff.
Empanelment of the jury and preliminary directions
1.On the afternoon of 8 February 2024, a jury of six persons was empanelled. I then gave a comprehensive set of preliminary directions to the jury. In those directions I placed considerable emphasis on the importance of following the directions of law I was then giving, and would be giving, to the jury during, and at the end of the trial. My directions included the reasons why, as a matter of law, the jury were compelled to follow my directions.
2.The directions I gave to the jury included the following:
“… [S]erving on a jury may be a completely new experience for some, if not all of you. To help you perform that role properly, I will now describe your duties and the procedures that we will follow during the trial. I will explain to you some of the principles of law that apply to the case. During, and at the end of the trial, I will give you further instructions about the law that applies to the case. You must listen closely to all of these instructions and follow them carefully.
You are probably wondering, ‘Why did she say that, she is looking at us and we are looking at her, we are listening’. There is a reason I say that, and that is because this is a direction of law. Every jury must listen and follow the directions of law as the judge has given them.
No doubt the parties will be making submissions to you in which they will explain some of the principles of law to put into context how their cases are being put, but if the barristers say anything different about the law than what I say, you must follow what I say, rather than what the barristers say. It is not because I think I am more important, or I am pompous, or I think I am smarter than everybody else in the room, but there is a legal reason why you must follow what the judge says, rather than what anyone else says. And that is this:
Everything that happens in this courtroom is transparent. There are microphones that record everything that happens in the court and transcript is ultimately produced. If I make a mistake with the directions of law that I give you, that will be my mistake, but the [aggrieved] party could appeal the decision and the Court of Appeal will look at the transcript and will look at the directions of law the judge gave and decide whether or not the judge made a mistake of law that was important enough to uphold an appeal. The Appeals Court will likely assume that the jury followed the directions of law that the judge said to follow, the directions of law that the judge gave. So that is why it is so important, whether you agree or disagree with any direction of law that I give you, you must follow it.
You can ask me to explain the principles again and again, but that is the first direction of law that every judge gives to every jury be it a civil case or a criminal case … I will give you further instructions, as I said, as the trial progresses.
If at any time you have a question about anything I say, please feel free to ask me. You do this by writing your question down and passing your note to either [my Associate or my Tipstaff]. … .”
1.I directed the jury in accordance with standard, ineluctable directions about the respective roles of the jury, the judge and counsel, also explaining what constitutes a verdict in a civil trial:
“… [M]embers of the jury, you represent one of the most important institutions in our community, the institution of trial by jury. Our legal system provides that in certain circumstances any individual … who has a civil claim has the right to have the case presented before, and determined by, six independent, open-minded members of the community in accordance with the law.
Now in this case, as you know, it is alleged by the plaintiff that she was injured while performing her duties at work as a case manager for the defendant. The defendant denies any negligence on its part and says, however, if the jury were ultimately to find that there was negligence on the part of the defendant that was a cause of the plaintiff's injury, loss and damage, then the plaintiff was also negligent, which negligence contributed to her injury, loss and damage. So, in other words, it is a claim of contributory negligence.
In civil trials of this type the court consists of a judge and a jury. We are going to be assisted in this case by counsel for the plaintiff, Mr Richards KC with his junior Ms Popova. As you know, we are going to be assisted by counsel for the defendant, Mr Saunders, assisted by Ms Matson. Each of us has a different role to play.
So what is your role, the role of the jury? It is your role as the jury to decide what the facts are in the case. You and you alone are the only ones in this courtroom who can decide what the facts are. Not me, I am the judge of the law, but you are six judges. You are six judges of the facts. You can see there is a demarcation. I cannot intrude on the facts. No one else can intrude on the facts. You are the judges of the facts, I am the judge of the law, and our paths do not cross.
How do you make your decision? You make your decision from all of the evidence that will be presented to you here in the courtroom. Your task is to consider, and then answer certain questions that will be placed before you. Your verdict is the answer to the questions. I do not have the questions at the moment. The questions will be framed in light of the issues that are raised in the trial. But we will have the questions to you as soon as we can.
So what is the verdict? As I said, you are going to be asked to return a verdict by answering certain questions which will be specifically framed in accordance with the issues that are ultimately left for the jury’s consideration.
The questions may raise both questions of fact and questions of law. The questions are to be answered on the basis of your determination of the facts made in accordance with the directions of law that I give you. So in other words, your task is to apply the law, as I have directed it, to the facts that you have found, and then by doing that you answer the questions. The answers to the questions will constitute the verdict in the case.
So what is my role? My role as a judge is to ensure that the trial is conducted fairly and in accordance with the law. I will also explain to you the principles of law that apply to the case. Sometimes as the case goes along I will be giving you some directions of law. [I will not be giving the totality of the directions now. Now I will give you] the directions that you must know at the start of the trial, knowing full well there will be more coming later.
… I want to emphasise that it is not my responsibility to decide the case. The verdict that you return has absolutely nothing to do with me, so while you must, I repeat, you must follow the directions of law as I give them to you, you are not bound by any comments that I may happen to make about the facts, and from time to time I may make comments about the facts to assist you, but do not give my comments any extra weight just because I am the judge.
It is not my decision about the facts that the parties want, it is your decision, so if you think what I have said does not assist you at all, please discard any comment that I may make about the facts. As I say, do not give them extra weight because I have made them.
It is my practice, if I do happen to make a comment about the facts, and I do try not to make too many comments about the facts, but if I do, I will highlight it, I will say, ‘This is a comment from me which you can accept or reject’ and then I will let you know, to differentiate between a legal direction and a comment. So you are not bound by comments that I make, but you are bound by principles of law.
Now, you are the judges of the facts, as I say, and - this will be repeated a few times - you and you alone. …
…
… [T]he role of counsel, the role of the barristers is to present the case for which [side] they appear, the cause of the client for which they appear. Seated opposite the barristers are their respective instructing solicitors. When counsel address you or me, for that matter, they are making submissions. They are making comments or they are presenting arguments. You do not need to accept any comment that counsel may make during their addresses. Of course, if you agree with an argument that they present you can adopt it. Effectively it becomes your own. But if you do not agree with it, then you must put it aside.
Remember, as I have told you, who is the judge of the facts? You are.
Similarly, you are not bound by what counsel may happen to say about the law and, I repeat, as I am the judge of the law, it is what I tell you about the law that you must apply. If counsel says something different about the law than what I say, I will point it out and I will direct you again, and even if you thought the barrister’s submission made more sense than … [my direction], you will still have to follow my direction.”
1.I gave the jury directions about evidence:
“I now want to give you some directions about evidence. I told you that it is your task to determine the facts in the case and you should do that by considering all of the evidence that will be presented to you in the courtroom. So I need to tell you what is evidence and what is not evidence.
The first type of evidence is what the witnesses say in their oral testimony. The way this is done is that the party concerned calls their witnesses one at a time. Usually it is done in the courtroom, although these days with modern technology and people living all over the country and all over the world, sometimes for the sake of convenience we hear a witness via a video link, but they are the same. There is no greater or lesser weight whether a witness gives evidence from the witness box or via a remote facility, it is evidence. But generally the witness enters the courtroom and goes into the witness box, which is opposite you. The witness then makes an oath or an affirmation to tell the truth. Then the barristers each have turns at asking the witness questions.
It is the answers that you hear, not the questions, that constitute the evidence. It is important to understand this because sometimes counsel may assert a proposition very forcefully and it sounds like they know something. The barristers do not give evidence, remember, they are asking the questions. So it is what the witness says by way of an answer that constitutes the evidence. [N]o matter how positively or confidently the allegation is presented, it will not form part of the evidence unless the witness agrees with the suggestion.
…
The second type of evidence is any document or any other physical item that is tendered as an exhibit. If there are any exhibits they will be pointed out to you when they are introduced into evidence. When you go into the jury room to decide the case it is likely you will have all of the exhibits, if there are any, with you and you would consider the exhibits along with the other evidence in exactly the same way.
There is a third category of evidence. I do not know if it will arise in this case, it may, it may not, so I will not trouble you with that direction now. I will wait and see if it happens. If it does, I will stop and give the direction of law about that.
So unless I direct you otherwise nothing else is evidence in the case. The only evidence is the witnesses’ testimony, the exhibits and anything else I tell you is evidence.”
1.I gave standard directions about deciding the case only on the basis of the evidence, not according to feelings:
“The next direction I give you is again relating to the direction about deciding the case only on the basis of the evidence and that is this: you must ignore all other considerations. In particular, you should dismiss any feelings of sympathy or prejudice you may have, whether it is sympathy for, or prejudice against, the plaintiff, the defendant or anyone else in the case. No such emotion has any part to play in your decision.
Now I am sure you would all appreciate that if it was your case you would want it decided on the evidence, not according to the way people feel. But this direction is required to be given by every judge in every case, whether it is a civil case or a criminal case, because as humans we all have emotional responses to the things that we hear.
We know that the plaintiff alleges that she was injured as a result of negligence and no doubt you will hear something about the injuries that she alleges [she sustained]. You may very well feel sympathy for the plaintiff. Acknowledge that you feel that, but then put that feeling aside and decide the case only on the basis of the evidence.
Similarly, you may feel sympathy for the defendant who is trying to run a facility looking after people and that that might be a hard job to do. So similarly, acknowledge the difficulty, acknowledge the emotional response that you have and then put it aside and decide the case on the basis of the evidence.
… [R]emember, you are judges of the facts and it means in relation to all of the issues in the case you must act like judges. You must dispassionately weigh the evidence logically and with an open mind, not according to your passion or feelings. … [I]t is your duty to consider the evidence using your intellect, not your heart.”
1.As can also be seen, I placed great emphasis on the direction that the jury must not search for outside information or conduct independent research about the issues in the trial, the law, or the people involved in the case. In those directions, I made it clear that the jury were not permitted to even consult dictionaries, explaining why such a direction is necessary and citing an example which had nothing to do with the case before them:
“When you retire to consider your verdict you will have heard or received in court, or otherwise under my supervision, all of the information that you need to make your decision. Unless I tell you otherwise, you must not base your decision on any information you obtain outside the courtroom. For example, you must completely ignore anything that you may hear or see in the media about the case. I do not know if there has ever been any media attention or if there ever will be. But if there is, you have got to ignore it.
If you have heard or seen anything in the … [media] about the people involved in the case you must ignore it. You must consider only the evidence that is presented to you here in court.
Most importantly, you must not make any investigations or enquiries or conduct any research concerning any aspect of the case or any person connected with it. That includes research about the law. So you can see this is coming back to where I started about the law.
Now, some of the directions of law that I will have to give you could be quite complicated and the natural response of people is to say, ‘I did not understand it, I do not want to trouble the judge, I do not want to trouble anybody. [It has been explained already], perhaps I will just go and look on Google or look on the Internet for that principle.’ You cannot do that. If you have a question about the law it is my job to explain it, and if you have not understood it, then I have not explained it clearly enough.
Remember that in order to be a lawyer, lawyers go to law school for four or five years and even then the principles can be complicated. … [Y]ou are not expected to remember, retain and apply the law just because you hear an explanation once. [You must] not be embarrassed to ask me. I will not be offended no matter how many times you ask me. What will make me offended is if you feel you cannot ask me. That is my job, and I have to do my job properly, and I do not want to fail in my duty to assist you … [I also want] to ensure that the trial is conducted fairly and according to law.
Now, you must not use the Internet to access any legal databases, any dictionaries, be they legal dictionaries or just ordinary dictionaries. Why do I say even ordinary dictionaries? Because sometimes a dictionary has a term which sort of has a legal definition as well, but the dictionary definition may be short and have nothing to do with the principle of law that I will need to give.
To give you an example that has got nothing to do with this case. For example, in a criminal trial, in a rape trial where the prosecution must prove that there was no consent to the sexual act, if you look at a dictionary you will find a definition of consent … [T]he legal definition of consent is rather different and rather complicated and takes up many more pages than the little paragraph or so in the dictionary definition, so stay away from the dictionary definitions for anything as well. Do not look at any legal texts, earlier decisions of this or other courts or other material of any kind relating to the matters or the people involved in the trial.
You must not search for information about the case on Google or conduct any other similar searches. You must not discuss the case on Facebook, Twitter or whatever the latest cyberspace platform is. I do not keep up with it I am afraid, but you do, or most of you [do], so do not discuss the case and do not look up the case or search for the case or any information about the case.
You may ask yourselves what is wrong with looking for information because seeking out information or discussing a matter with friends or family is a natural part of life to help you make a decision. As conscientious jurors you may think that conducting your own research will help you to reach the right result, however, there are important reasons why using outside information or researching the case on the Internet or anywhere else is quite wrong and a betrayal of your oath or affirmation.
The first thing is it is just a betrayal of the role that you are meant to be playing. Importantly, none of us will know what you are looking at and why you are looking at it. The information that you get may be wrong and we will just have no idea, and so going back to what I said at the start, if the case is appealed no one will know what you were looking at and from where you got your information and … [the Court of Appeal] will likely assume you got it from me, so you have to get it from me, not from anyone else.
The second reason is deciding a case on outside information which is not known to the parties is unfair to the parties and is perverse. A trial conducted according to law is one that is conducted transparently in an open courtroom where everybody knows what the evidence is, everybody knows what the arguments are, everybody knows what the directions of law were and, again, if you put yourself in the position of a litigant, that is exactly how you would want the jury to behave. So do not go looking for other information to add to the evidence. A trial conducted according to law is a trial conducted according to well established legal principles and upon properly introduced evidence of which all the parties are aware.
Now, as I say, another reason is it would be a betrayal of the affirmation that you took and in that situation you would have ceased acting as a juror and you would have become some sort of investigator.
If one of your fellow jurors breaches these instructions, then the duty falls to the rest of you to inform me or a member of my staff either in writing or otherwise without delay. These rules are so important that you are required to dob in your fellow juror.
What are the consequences of not following this direction? You may have a question, what would happen if you acted on outside information or conducted your own research? Well the immediate outcome is that the jury may need to be discharged and the trial may have to start again before a different jury. It would obviously cause stress and expense to the parties, to the witnesses and of course to everybody else on the jury who did follow what the judge had said. And even more importantly it is actually a crime to conduct independent research.
… [Y]ou could therefore find yourself fined and receiving a criminal conviction and that may affect your ability to travel to some countries. Also it might constitute a contempt of court. I can tell you that jurors have even been sent to gaol for discussing a case on Facebook. More broadly, jurors conducting their own independent research undermines public confidence in the jury system. The jury system has been a fundamental feature of our justice system for centuries.
For all these reasons it is essential that you decide the case solely on the evidence presented in the courtroom without feelings of sympathy or prejudice and without conducting any research into the case or without discussing the case with others who are not on the jury.
You are probably wondering, ‘Why did she stress this so much? We got it the first time she said it.’ Every judge in every trial, whether it is a civil trial or a criminal trial, says the same thing to every jury. You would not believe how many times the jury having heard these instructions go off and start conducting research on their own. There was a case I am sure that most of you are familiar with that received a lot of attention in Canberra. That judge, I am reliably told, informed the jury on [multiple] occasions not to conduct independent research. And what did the jury do? Off they went and did independent research. So for that reason the trial was aborted and I cannot remember if it was called juror misconduct … but the media reported there was nothing that could be done … the jury could not be punished for what happened. But in Victoria we do have penalties. It is a criminal offence as well as [a possible] contempt of court.
So that is why I am stressing it. Not because I [think you were not listening or were not] paying attention, it is because it happens too frequently that people think they are doing the right thing. They do not understand the importance of it. They are embarrassed to ask the judge a question and they think they are helping in some way. So please do not help in that way.”
1.I also directed the jury that they should only discuss the case amongst themselves.
2.I then gave the jury directions about the assessment of evidence:
“… [I]n order to decide what the facts are in the case you will need to assess the witnesses who give evidence. It is up to you to decide how much or how little of the testimony of any witness you believe or rely upon. You can believe all, some or none of a witness’s evidence.
It is also for you to decide what weight should be attached to any particular evidence. That is the extent to which the evidence helps you to determine the relevant issues.
In assessing witnesses’ evidence matters which may concern you include their credibility and their reliability. Credibility concerns honesty. Is the witness telling you the truth? Reliability may be different. A witness may be honest but have a poor memory or be mistaken. It is for you to judge whether the witnesses are telling the truth and whether they correctly recall the facts about which they are giving their evidence. It is something you do all the time in your daily lives. There is no special skill involved, you just need to use your common sense.
In making your assessment you should appreciate that giving evidence in a trial is not common and it may be a stressful experience. So do not jump to conclusions based on how a witness gives evidence because looks can be deceiving. People react differently. Witnesses come from different backgrounds and have different abilities, values and experiences in life. There are just too many variables to make the manner in which a witness gives evidence the only or even the most important factor in your decision.
You should keep [an open] mind about the truthfulness or accuracy of the witnesses until all of the evidence has been presented. This is because it is only once you have heard all of the evidence that it will be possible to assess to what extent, if any, the other evidence in the case confirms, explains or contradicts a particular witness’s evidence.
In making your decision consider not only the witnesses’ testimony, take into account the exhibits and anything else that I tell you constitutes the evidence. Consider all of the evidence in the case. You use what you believe. You reject what you disbelieve. Give each part of the evidence the importance which you as the judges of the facts think it should be given and then determine what in your judgment the true facts are.”
1.I gave the jury directions about the onus of proof and the standard of proof:
“I am now going to direct you on the onus of proof and the standard of proof.
When a party makes an allegation against another party in a proceeding generally the law requires that the party who makes the allegation has to prove it. That is what is called the “burden of proof” or the “onus of proof”, “he who alleges must prove”.
Here the plaintiff says, ‘I suffered injury as a result of the negligence of the defendant’. Here the defendant denies that any injury which the plaintiff alleges she has suffered arose as a result of the defendant’s negligence.
As it is the plaintiff who alleges negligence, the law says the plaintiff must prove that the defendant was negligent in the steps it took or failed to take in relation to the defendant’s obligation to take reasonable steps not to expose the plaintiff to unnecessary risk of injury. You will hear more about that later. The important point I am making here is that [because] the plaintiff alleges negligence against the defendant, the plaintiff must prove it.
In relation to the alleged negligence on the part of the defendant, the burden of proof or the onus of proof is on the plaintiff to prove that negligence, and the defendant need prove nothing. This is not a competition of proofs.
If you were to find that there was negligence on the part of the defendant, then the defendant in this case alleges that the plaintiff was also negligent and that the plaintiff's negligence contributed to her injury, loss and damage. That is the claim of contributory negligence.
In relation to the allegation of contributory negligence, it is the defendant who is alleging it, and therefore the defendant must prove that negligence.
Now what is the standard of proof? It is a civil trial not a criminal trial and therefore the party who bears the onus of proof, the party who bears the burden of proof, must satisfy you or persuade you, the jury, to a standard that is known as the balance of probabilities.
What this means is the party with the onus of proof has to satisfy you that it is more probable than not that a particular allegation made by it is established or that it is accurate or true or that it did occur. It is a civil standard of proof.
It is in contrast with the higher standard of proof that exists in criminal trials. And I am tipping pounds to peanuts that everybody knows what the standard of proof is in a criminal trial. You have all heard “beyond reasonable doubt” I am sure. That is a standard of proof, beyond reasonable doubt, that applies to criminal cases and has absolutely nothing to do with a civil case.
The highest standard of proof known to the law is proof beyond reasonable doubt. In such a case the prosecution bears the burden of proving that the accused is guilty beyond reasonable doubt, and the accused starts with the presumption of innocence. But that has got nothing to do with a civil case.
The expression balance of probabilities simply means that you determine whether on all of the evidence a particular issue or fact is more likely than not, more probable than not to have occurred.
Another way in which the civil standard of proof is often understood is that the party who bears the onus of proof must tip the scales of justice in its favour, even if only a little bit.
If we take the example of a criminal trial, and imagine these are the scales of justice [demonstrating]. In a criminal trial the accused starts with the scales all the way in their favour, they have got the presumption of innocence [on their side of the scales]. Unless and until the prosecution tilts the scales all the way down [on their side,] until the jury is satisfied beyond reasonable doubt, then the accused must be acquitted. So that is the standard of proof in a criminal trial.
It is quite different in a civil case. There is no presumption running in anybody's favour in a civil case. The scales start in perfect equal balance.
So, the party who bears the onus of proof has got to tilt the scales. They do not have to go all the way to the end this way or that way, they have just got to be tilted ever so slightly, 50.001 will tilt the scales. So … [the question is what] is more probable than not?
… [I]f the party who bears the burden of proof has tilted the scales in their favour, they have discharged that burden of proof. If they have failed to do so and the scales either tilt the other way or they remain in perfect balance, then they have failed to tip the scales of justice in their favour and have therefore failed to discharge that burden of proof.
… [I]n this case there is no question of either the plaintiff or the defendant having… the benefit of the doubt, an expression everyone has heard. That does not happen in a civil case. It is something that applies in criminal cases.
Here the plaintiff must persuade you on the issue on which she has the onus of proof that there has been negligence on the part of the defendant which was a cause of her injury. If, and only if, you are satisfied that there has been negligence, then the plaintiff must persuade you that she has suffered the injuries claimed and you will make an assessment about the damages in respect of those injuries. I will instruct you about damages later in the trial.
If you are satisfied that there was negligence on the part of the defendant, then it is the defendant who must persuade you on the issue on which the defendant bears the burden of proof, contributory negligence. That is whether the plaintiff was also negligent, which negligence contributed to her injury, loss and damage.
If you are so satisfied it will then be a matter … [for] you to reduce the damages in accordance with the percentage proportion set out in the relevant question. I will tell you more about that at the end of the trial.”
1.I gave the jury directions about the procedure that would be followed in the trial:
“… Let me tell you something about the procedure and something about the administrative matters.
We will hear an opening address from the plaintiff and then - obviously not today - and then we hear a very brief response from defence counsel. At this stage defence counsel has a different role from the plaintiff. The plaintiff will outline what the case is about which witnesses they are going to call and what the issues in the trial are as far as the plaintiff is concerned.
At this stage the defendant will have a right to speak for about five or ten minutes only to let you know what is in dispute and what is not in dispute so you are not waiting until later in the case to find out what the defendant’s position is. So I ask defence counsel to just outline very briefly for the benefit of the jury, for the benefit of all of us, to know, ‘Well that is not disputed but that is, that is the focus of this trial’.
Once that has been done it may be necessary for me to give a further few instructions of law, but if not, then we proceed straight on to hear the evidence.
Once all of the evidence is in, the parties each get the right to make a closing submission. They each get the right to address you, present arguments why they should win and the other side should lose or what should happen. And when the parties have done that, then I give you directions of law.”
1.I directed the jury about how the evidence would be recorded and what use could and could not be made of transcript:
“There will be transcript taken in the case. I anticipate at the end of the case I will have one copy of transcript for you but you do not get that until the very end because the transcript is not the evidence. It is what you heard that is the evidence.
The evidence will be recorded so if there is any doubt about what the evidence was we can play the recording. Transcript is not 100 per cent accurate. The people listening down the line do their best to type what they think they have heard but it is not word perfect. So the evidence is what you hear and see. Any transcript I give you will not be evidence, it will just be a guide or an “aide-memoire”, and because I am not giving you that until the end, if you want to take notes feel free to take notes. Do not try and make a running transcript otherwise you will be busy making notes and not seeing what is going on.
If at any stage you want any part of the evidence replayed it will be … [my tipstaff’s] job to find the passage of the evidence and we will replay it for you.
If you have made any notes, do not worry about their confidentiality. … [It is also my tipstaff’s] job to go to the shredding machine and shred the notes. So that will be done. But always listen carefully as the evidence is given.”
The publication “Jury Guide For Civil Trials”
1.A booklet entitled “Jury Guide For Civil Trials” was published relatively recently. Both the front and back covers of the booklet have a logo with the words “Juries Victoria”. The back cover also has the email address “juriesvictoria.vic.gov.au”. A copy of the Jury Guide taken from the jury room in this case was tendered as exhibit “JGM – 1”. A copy of that exhibit is attached as “Annexure A” to this Ruling.
2.A similar publication for criminal trials is also available. That booklet is entitled “Jury Guide For Criminal Trials”.
3.By memorandum addressed to the judges of this Court, judges were informed that Jury Guides for both civil and criminal trials were available upon request for use in jury trials where a presiding judge considers it appropriate. It was intended that in circumstances where a judge proposes to provide Jury Guides to the jury, the Jury Guides would be brought to court by an officer of Juries Victoria at the same time as the jury panel was to be brought to the Court for empanelment.
4.The Jury Guides were published following a pilot program conducted between 2016 and 2017 in criminal trials. As I understand it, there was no such program in civil trials.
Jurisdiction to provide jury guides to juries
Criminal trials
1.Section 223A of the Criminal Procedure Act 2009 (Vic), confers jurisdiction on the Court to provide jury guides to the jury if certain preconditions are satisfied.
2.The section provides:
“223A General jury guide
(1)For the purpose of helping the jury to perform its functions and understand the trial process, the trial judge may order, at any time during the trial, that copies of a general jury guide are to be given to the jury in any form that the trial judge considers appropriate.
(2)Despite subsection (1), if regulations referred to in subsection (5) are made, the trial judge must order, at the prescribed time (if any) during the trial, that copies of a general jury guide that complies with those regulations be given to the jury.
(3) A general jury guide may contain any of the following—
(a)general information about the process of criminal trials, including information about—
(i) the roles of the jury, the judge and the parties; and
(ii) the usual order of events in a trial;
(b)general information about legal concepts that are relevant to criminal trials, including information about—
(i) the presumption of innocence; and
(ii) the requirement of proof beyond reasonable doubt; and
(iii)the meaning of the phrase ‘proof beyond reasonable doubt’;
(c)general information about jury deliberations and processes, including information about—
(i) what to do if a juror has a question; and
(ii) appointing a foreperson; and
(iii)ways in which the jury may wish to organise itself, discuss the evidence and the law, and vote;
(d) any other general information.
(4) A general jury guide may include pictures and diagrams.
(5) The regulations may prescribe—
(a)matters that are to be addressed in, or the form and content of, a general jury guide that must be given to the jury; and
(b)the time at which that general jury guide must be given to the jury.”
1.Section 223A is found in Division 3 of Part 5.7 of the Criminal Procedure Act. Sections 222 and 223 also confer powers on the Court to enable a trial judge to provide oral directions and material to assist the jury:
“222 Judge may address jury
At any time during a trial, the trial judge may address the jury on—
(a)the issues that are expected to arise or have arisen in the trial;
(b)the relevance to the conduct of the trial of any admissions made, directions given or matters determined prior to the commencement of the trial;
(c)any other matter relevant to the jury in the performance of its functions and its understanding of the trial process, including giving a direction to the jury as to any issue of law, evidence or procedure.
223Jury documents relating to trial issues and evidence
(1)For the purpose of helping the jury to understand the issues or the evidence, the trial judge may order, at any time during the trial, that copies of any of the following are to be given to the jury in any form that the trial judge considers appropriate—
(a)the indictment;
(b)the summary of the prosecution opening;
(c)the response of the accused to the summary of the prosecution opening and the response of the accused to the notice of pre-trial admissions of the prosecution;
(d)any document admitted as evidence;
(e)any statement of facts;
(f)the opening and closing addresses of the prosecution and the accused;
(g)any address of the trial judge to the jury under section 222;
(h)any schedules, chronologies, charts, diagrams, summaries or other explanatory material;
Note
See sections 29(4) and 50 of the Evidence Act 2008.
(ha)the transcript of the evidence in the trial;
(i)transcripts of evidence or audio or audiovisual recordings of evidence;
(j)transcripts of any audio or audiovisual recordings;
(k)the trial judge's directions to the jury under section 238;
(ka)a jury guide specific to the trial;
(l)any other document that the trial judge considers appropriate.
(1A)A jury guide referred to in subsection (1)(ka) may contain any of the following—
(a)a list of questions to assist the jury in reaching a verdict (including questions that are included in integrated directions within the meaning of section 67 of the Jury Directions Act 2015);
(b)directions on the evidence and how the evidence is to be assessed;
(c)references to the way in which the prosecution and the accused have put their cases in relation to the issues in the trial;
(d)any evidence identified under section 66 of the Jury Directions Act 2015;
(e)any other information.
(2)The trial judge may specify in an order under subsection (1) when any material is to be given to the jury.”
Extrinsic material
1.Section 223A of the Criminal Procedure Act was inserted by the Jury Directions and Other Acts Amendment Act 2017 (Vic). When making the Statement of Compatibility, the then Attorney-General, Mr Martin Pakula, stated that the Bill (as it then was) provided “legislative backing for a general jury guide”, which guide was then the subject of the pilot program in criminal trials in this Court.
2.When discussing the effect the Jury Guide would have on the right to a fair hearing under s24 of the Charter of Human Rights and Responsibilities Act 2006 (Vic), Mr Pakula noted that the Jury Guide would have “a positive impact” by “providing more guidance to juries in working through complex issues and will improve the structure and efficiency of deliberations”. In particular, Mr Pakula stated:
“By encouraging the use of a general jury guide which will assist jurors to understand key concepts relevant to all criminal trials and provide information about how to organise jury deliberations (clause 12), the bill will promote better informed jurors. This will increase the likelihood of verdicts based on the relevant law and evidence, and enhance the integrity of the trial process.”
1.The Explanatory Memorandum for the Bill includes a brief summary of the initiative to provide jury guides to jurors, which summary was also largely incorporated into Mr Pakula’s Second Reading Speech:
“The expert Advisory Group that was formed to assist with the jury directions reform process has developed a general jury guide. The guide is a written document that summarises important information relevant to all criminal trials (for example, the role of the judge and jury, and fundamental legal concepts such as the presumption of innocence) and contains information to assist the jury with their deliberations. The guide is currently being trialled in Victorian courts. New section 223A provides legislative support for such a guide and allows for the making of regulations to require its use in each trial.”
(emphasis added)
1.Section 223A has been amended by the Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022 (Vic), which allowed the Jury Guide to contain an explanation of the phrase “beyond reasonable doubt”, making it consistent with s63 of the Jury Directions Act 2015.
Civil Trials
1.There is no provision similar to s223A of the Criminal Procedure Act to be found in the Civil Procedure Act 2010 (Vic). Section 49 of the Civil Procedure Act confers wide power on the Court to order and direct trial procedures consistently with the overarching purposes of that Act. There is no specific reference to the provision of jury guides, although it must be noted that the powers referred to in s49 do not purport to constitute an exhaustive list. Section 49 provides:
“49 Court’s power to order and direct trial procedures and conduct of hearing
(1)In addition to any other power a court may have, a court may give any direction or make any order it considers appropriate to further the overarching purpose in relation to the conduct of the hearing in a civil proceeding.
(2)A direction or an order under subsection (1) may be given or made by the court at any time—
(a)before a hearing commences; or
(b)during a hearing.
(3)Without limiting subsection (1), a court may give any direction or make any order it considers appropriate with respect to—
(a)the order in which evidence is to be given and addresses made;
(b)the order in which questions of fact are to be tried;
(c)limiting the time to be taken by a trial, including the time a party may take to present the party's case;
(d)witnesses, including—
(i)limiting the time to be taken in examining, cross-examining or re-examining witnesses;
(ii)not allowing cross-examination of particular witnesses;
(iii)limiting the number of witnesses that a party may call;
(e)limiting the issues or matters that may be the subject of examination or cross-examination;
(f)limiting the length or duration of written and oral submissions;
(g)limiting the numbers of documents to be prepared or that a party may tender in evidence;
(h)the preparation by the parties of an agreed bundle of documents for use in the proceeding or a schedule summarising business records or other documents;
(i)the place, time and mode of trial;
(j)evidence, including, but not limited to whether evidence in chief should be given orally, by affidavit or by witness statement;
(k)costs, including the proportions in which the parties are to bear any costs;
(l)any other matter specified in rules of court.”
1.I could find nothing in the County Court Civil Procedure Rules 2018 (“the Rules”) that specifically refers to the use of jury guides. Order 49.01 of the Rules provides a general power with respect to the order of evidence, addresses and generally as to the conduct of the trial:
“(1) The Court may give directions as to the order of evidence and addresses and generally as to the conduct of the trial.”
The Evidence Act 2008 (Vic)
1.Sections 29(4) and 50 of the Evidence Act provide that the Court may modify the way in which evidence can be given, by use of charts, summaries and other like material. The sections apply to all proceedings in a Victorian court. This section applies to the manner in which evidence may be given, and does not appear to apply to judicial directions. There is no section that refers to jury guides.
Inherent jurisdiction
1.The parties were unable to point to any specific power to provide jury guides to juries in civil trials, other than say that presumably the power derives from the court’s inherent jurisdiction to control its own proceedings.
2.Parliament saw fit to make specific provision for the content and use of jury guides in criminal trials, however it would seem that Parliament has not yet addressed the question of the use of jury guides in civil trials. Be that as it may, for the purposes of this ruling I shall assume, without so finding, that the court has inherent power to provide jury guides to juries in civil trials when the judge so authorises and orders that it is appropriate to do so.
Preliminary Directions to be given when Jury Guides are given to juries
1.Both the Criminal Charge Book and the Civil Juries Charge Book, publications issued and regularly updated by the Judicial College of Victoria, contain model directions to be given to juries when a judge orders or authorises the use of jury guides.
2.The model directions for use of jury guides in civil trials is found in the chapter headed “Pre-trial directions”:
“Jury Guide
[If the judge is providing the jury with a jury guide, add the following shaded section]
To help you remember the directions I have just given you, my tipstaff will now give you a jury guide. You can write on it if you wish. The Guide, like all documents we will give you during the trial, must not be taken home. You may bring it to the courtroom, but you must leave it in the jury room at the end of each day. If you bring the Guide to the courtroom, do not allow it to distract you. Do not try to read it while I am giving you directions, or when counsel are addressing you, or while a witness is giving evidence.
The Guide is a simplified reminder of some of the directions I have given you. It is a publication designed for general use by jurors in civil trials and is not specific to this case. It does not cover all of the directions I have given word for word and it will not cover directions I will give you during the trial and at the end of the trial which will be specific to this trial. If you think there is anything in the Guide which is different to what I have instructed you, then you must follow what I tell you in court and ignore what is in the guide. If you are confused or unsure about whether there is a difference between the Guide and my directions, you should ask me to clarify.”
No authorisation given to provide Jury Guides to the jury in the present case
1.Had I intended to use the Jury Guide in this case, I would have first provided counsel with copies of the Jury Guide and then discussed such a proposal with them. Had I determined that it was in the interests of justice to provide the jury with the Jury Guides, I would have so ordered. I would then have given preliminary directions to the jury about the use and limitations of the Jury Guide. I made no such orders, gave no such authority and administered no relevant preliminary directions about the use of the Jury Guides.
2.The fact that the Jury Guides might have been left in the jury room was brought to the attention of my staff by an officer of the Jury Commissioner’s Office. It makes no difference for the purposes of this ruling whether the Jury Guides were left in the jury room by design or mistake. They simply should not have been there.
Use of Jury Guides not appropriate for the present case
1.There are a number of features about the Jury Guide that generally led me to the decision not to use the Jury Guides, and in this case specifically why, had I been asked to, I would not have not authorised their use.
(1) – The Jury Guide cannot amount to directions of law
1.It is trite to say, but it is only the trial judge who can give directions of law to the jury. At best, the Jury Guide is an aide memoire, and cannot, as a matter of law, constitute directions of law. In my view, however, the “Overview” chapter on page 4 of the Jury Guide, together with “Part 1: Preliminary Information” convey the impression that the guide constitutes legal directions. The fact that “Part 1” is written in the first person adds to this impression.
2.The Jury Guide states:
“Overview
This Jury Guide introduces you to your role as a juror in a civil trial. It provides information and answers to questions that you may have about your role.
Key terms used in this Guide and in trials are defined at the end.
The first part of the Guide explains what a civil trial is and provides information about your role in the trial. As the judge will often tell you this information, it has been written as if the judge is speaking to you.
The second part of the Guide provides information that may help you when you start your deliberations at the end of the trial. It answers questions that jurors often have about their role. Judges do not usually discuss this information during the trial.”
1.The overview is not written in the judge’s voice, but states it provides “information” and “answers to questions”. The above cited passage conveys the impression that what the judge has or will direct the jury about is no more than a narrative – “the judge will often tell you this information”. The same passage implies that sometimes a judge will not “tell” the jury about the “information”.
2.As mentioned, it is only the trial judge who can give the jury directions of law, yet the passage cited above purports to explain the role of the jury, an ineluctable direction that the trial judge must give.
3.Further, the above passage implies that the Jury Guide may be able to answer questions that the jury might have – “[The Jury Guide] provides information and answers to questions that you may have about your role. … It answers questions that jurors often have about their role. Judges do not usually discuss this information during the trial.”
4.In “Part 1: Preliminary information” under the heading “What is the judge’s role in the trial?”, the Jury Guide refers to asking questions:
“If you have a question or concern, please write it down and give it to my staff to give to me. However, you must not discuss the case with them or ask them for their opinion of the case. Further, you must not tell them, or me, your opinion of the case.
For further information on asking questions, please see the ‘What if I have a question?’ section on page 11.”
1.On page 11, the Jury Guide does have a section on asking questions:
“What if I have a question during the trial?
If you are unsure about anything during the trial, please ask a question.
If you have a question:
♣you may wish to discuss it first with the other members of your jury, or
♣you may ask me.
To ask me a question, please provide the question in writing (if possible) to my staff to give to me. If the question is urgent, bring it to the attention of my staff as soon as possible.
Your questions are important. Do not worry about whether you are wasting the court’s time or whether your question is allowed. I will decide whether the law allows your question to be answered.”
1.In the present case, I directed the jury that if they had any questions they must ask me because it is my role to assist them. I did not direct the jury that they could either discuss it amongst themselves or ask me. I explained why it is the trial judge who must answer jury questions.
2.Despite this, the Jury Guide seems to imply that if the jury have questions, they might be answered in the Jury Guide or by other members of the jury.
(2) – Written in the first person
1.As mentioned, much of the Jury Guide is written in the first person. As such, a reader might well think because it is in the judge’s voice, the written word constitutes the actual directions of law. In fact the Jury Guide states that “[a]s the judge will often tell you this information, it has been written as if the judge is speaking to you”.
2.Moreover, expressed in the first person, the Jury Guide purports to summarise directions or instructions of law:
“Part 1: Preliminary Information
This part of the Guide summarises a number of directions (or ‘instructions’) that I will give you in court. These directions apply in all civil trials. I will also give you additional directions that are specific to this trial. I will do that during the trial.
You must follow all directions about the law that I give you.”
1.I was not the author of the Jury Guide and I do not wish to convey the impression that I was or that I have endorsed the text of the Guide. The directions I actually gave to the jury are found in the transcript of proceedings, cited earlier. Had I wanted the jury have to have a written form of those directions, which were tailored to suit the circumstances of the specific case before the jury, I would have authorised a revised copy of the transcript of my directions to be given to them, after discussing the matter with counsel.
(3) – The Jury Guide is generic and selective
1.The Jury Guide is general in nature and does not purport to cover every direction that a trial judge has given to the jury or will give to the jury.
2.The Jury Guide summarises a select number of ineluctable directions, and does not cover all ineluctable directions that must be given in a specific case. Presumably this was done to ensure that the Jury Guide could be used in all simple cases where the defendant makes no claim against the plaintiff, such as a claim of contributory negligence. Because of this, it appears that the Jury Guide is written from the point of view of only what the plaintiff must prove:
“What does a civil trial involve?
A civil trial involves the plaintiff claiming that they suffered some form of harm as a result of the negligence, breach of duty or other wrongful conduct of the defendant and are therefore seeking damages (monetary compensation or payment) for their loss.”
1.The Jury Guide contains a section which conveys the impression that it is a reference point for directions of law:
"Important legal rules
It is important that you ask me if you have any questions about any of the following legal rules. For further information on asking questions, please see the ‘What if I have a question?’ section on page 11.”
1.The Jury Guide then contains sections entitled: “Proving a claim”, “What do you base your decision on?”, “What is evidence?”, “Carefully consider the evidence”, “Decide the case on the evidence in the court”, “When you may and may not discuss the case”, “What you must not do”, and “What happens if you do not follow these rules?” These headings suggest that they form part of the trial judge’s directions of law.
(4) – Refers only to the plaintiff’s burden
1.In the present case, the defendant alleged contributory negligence against the plaintiff. As such, the defendant bore the burden of proving that the plaintiff was also negligent. There is no mention in the Jury Guide of any burden of proof on a defendant, or which standard of proof applies to a defendant’s claim. The Jury Guide is silent on these matters.
2.Similarly, although there is mention of the potential for numerous parties to be involved in the proceeding, there is no reference to the respective burdens of proof that might arise, such as where there are multiple defendants making liability claims against each other or the plaintiff, or the applicable standard of proof. The Jury Guide merely states:
“The plaintiff and the defendant are called ‘parties’. In some cases, there may be multiple plaintiffs and/or multiple defendants.”
1.Furthermore, in the “Key terms” section, “Verdict” is defined in terms confined to whether the plaintiff has established the claim and in what amount damages should be assessed:
“Verdict: The jury’s decision on whether the defendant is liable for the harm suffered by the plaintiff, and what damages the plaintiff is entitled to receive.”
1.In fact, I directed the jury that the verdict would be constituted by the answers to the questions they would be asked, the questions being framed by reference to the issues in the trial.
2.While it may have been necessary to be brief in the Jury Guide, the Jury Guide appears to be written as if it is only the plaintiff who bears any burden of proof. It would appear that the Jury Guide anticipates a simple claim where no positive defence is run or where the elements of the cause of action before the jury contain no reverse onus elements.
3.In the section “Important legal rules” there is passing reference to the burden of proof and to the standard of proof:
“Proving a claim
The plaintiff is suing the defendant. The plaintiff says that the defendant caused them some harm and is liable to pay them damages.
Because the plaintiff is suing, the plaintiff must prove their claim.
The plaintiff must prove their claim on the ‘balance of probabilities’. This means that the plaintiff must satisfy you, after considering all the evidence, that it is more probable than not that their claim is true.”
1.“Burden of proof” and “Balance of probabilities” are defined in the “Key Terms” section:
“Burden of proof: The plaintiff must prove their claim is true on the balance of probabilities. See page 7.”
“Balance of probabilities: Legal principle whereby the plaintiff must satisfy the jury that it is more probable than not that their claim is true. See page 7.”
1.I gave the jury more fulsome directions about the burden of proof and the standard of proof.
(5) – Confusion about what constitutes evidence
1.The Jury Guide purports to explain what constitutes evidence, although no reference is made to what is not evidence. The very next section “Carefully consider the evidence” refers to transcript, conveying the impression, in my view, that the transcript constitutes evidence:
“All the evidence in the trial is recorded and transcribed. I will give you the transcript of the witnesses’ evidence before you start your deliberations to reach your verdict. If you want to check what a witness said, you can check the transcript.”
1.This section assumes that the trial judge will provide transcript to the jury. I foreshadowed that I would provide the jury with transcript, so there is no inconsistency there. What is not clear from the passage cited above however is that the transcript is not evidence and should not be used as a substitute for the evidence.
2.The Jury Guide is apt to mislead on the status of defence counsel’s opening address. In my view, the Jury Guide might convey the impression that defence counsel’s opening address forms part of the evidence. In the section “Step by step guide to a typical trial” in the box entitled “The Evidence in the Case”, the Jury Guide states:
♣“Evidence comes from questioning witnesses or tendering exhibits (eg medical reports, photos, maps or other documents).
♣Both the plaintiff and the defendant may question witnesses.
♣Before calling their witnesses, the defendant will outline why they should not be held liable and should not pay damages.”
1.It is not clear that defence counsel’s address is not evidence, since the “outline” referred to is positioned in this section.
(6) – Errors in the description of the typical trial
1.The Jury Guide purports to set out the practice and procedure of a “typical trial”:
“Step by step guide to a typical trial
I (the judge) will explain your role and summarise the trial process.
Plaintiff Opening
♣The plaintiff will outline their claim against the defendant.
♣The plaintiff will identify the evidence they intend to rely on to prove their claim(s).
The Evidence in the Case
♣Evidence comes from questioning witnesses or tendering exhibits (eg medical reports, photos, maps or other documents).
♣Both the plaintiff and the defendant may question witnesses.
♣Before calling their witnesses, the defendant will outline why they should not be held liable and should not pay damages.
The Final Addresses
♣The plaintiff will tell you why they believe that the defendant is liable (eg to pay damages).
♣The defendant will tell you why they say the plaintiff has not proved their case and why the defendant should not pay damages to the plaintiff.
I will give you final directions on the law in the trial and set out the questions that you must answer to reach your verdict.
You discuss the case and the answers to the questions to reach a verdict.”
1.As can be seen, there is no reference to defence counsel’s response to the plaintiff’s opening, a practice that has been adopted in this Court for some years. More significantly, there is no reference to defence counsel’s opening address. As mentioned earlier, the only possible reference is contained in the evidence section where defence counsel’s opening address is referred to as if it is no more that “an outline” and “why they should not be held liable and should not pay damages”. If the defendant proposes to call or tender evidence, the purpose of defence counsel’s opening is to outline that evidence and not make a final submission.
2.The passage describing final addresses does not necessarily follow the order of addresses as is provided in the Rules:
“Order 49—Trial
49.01 Order of evidence and addresses
(1)The Court may give directions as to the order of evidence and addresses and generally as to the conduct of the trial.
(2)Subject to any direction given under paragraph (1)—
(a)where the burden of proof on any question lies on the plaintiff, the plaintiff shall begin;
(b)where the burden of proof on all the questions lies on the defendant, the defendant shall begin.
(3)Subject to any direction given under paragraph (1)—
(a)where the only parties are one plaintiff and one defendant, and there is no counterclaim, the order of evidence and addresses shall be as provided by the following paragraphs of this Rule; and
(b)in any other case, the order of evidence and addresses shall be as provided by those paragraphs with such modifications as the nature of the case requires.
(4)The party who begins may make an address opening the party's case and may then adduce that party's evidence.
(5)When, in the course of the case for the party who begins, no document or thing is admitted in evidence on tender by the opposite party, and at the conclusion of that case—
(a)the opposite party adduces evidence, the opposite party may first make an opening address and after adducing that party's evidence, the opposite may make a closing address and thereafter the party who began may make a closing address;
(b)the opposite party does not adduce evidence, the party who began may make a closing address and then the opposite party may make an address.
(6)When, in the course of the case for the party who begins, any document or thing is admitted in evidence on tender by the opposite party, and at the conclusion of that case—
(a)the opposite party adduces evidence, the order of proceedings shall be as provided by paragraph (5)(a);
(b)the opposite party does not adduce evidence, the opposite party may make an address and then the party who began may make a closing address.”
1.In the typical trial where all parties have called or tendered evidence, the defendant makes the first final address, leaving the plaintiff the right to address the jury last. In the Jury Guide, the “typical” order of addresses is reversed, leaving defence counsel with the right to speak last.
2.I am also uncomfortable with the way the Jury Guide describes the purpose of final addresses. According to the Jury Guide, while making a final address on behalf of the plaintiff, counsel expresses a “belief” about why the plaintiff should succeed. In fact counsel’s beliefs are irrelevant and should not be the subject of any address. The purpose of any final address is to make submissions, present arguments. By contrast, when referring to defence counsel’s final address, there is no mention of counsel expressing their beliefs. Rather, the Jury Guide states “[t]he defendant will tell you why they say the plaintiff has not proved their case and why the defendant should not pay damages to the plaintiff”. Defence counsel’s final address comprises of submissions, which are not confined to statements about why the plaintiff has failed to discharge the burden of proof and why the plaintiff should not be awarded damages.
3.There is also a slight error in the “Typical courtroom” image on page 6 of the Jury Guide which has the parties at the bar table. It should have the parties’ counsel there. Nothing turns on this.
(7) – Selection of the foreperson
1.In the present case, the jury chose their foreperson immediately after they were affirmed as members of the jury. I gave no direction to the effect that this would be done at some undefined future point in the trial. Moreover, I did not direct the jury that they could change the foreperson. The Jury Guide, however, states that the jury can change the foreperson at any time:
“Choosing a jury foreperson”
At some point during the trial, I will ask you to choose a foreperson. You can nominate yourself or any other juror to be the foreperson. The jury then decides who will be your foreperson.
…
You, as a jury, can change the foreperson at any time. Please let me know if the foreperson has changed.”
1.Significantly, the statement “Please let me know if the foreperson has changed” sounds as if it is no more than a mere request. If the jury has selected a different foreperson, that fact must be communicated to the Court. There are practical and legal reasons why this is so:
2.First, in the case where additional jurors have been empanelled, under s48 of the Juries Act 2000 (Vic), a ballot must be conducted to reduce the number of jurors to six. According to s48(2):
“48 Ballot where additional jurors on jury
(1) …
(2)If the foreperson is selected in the ballot, that selection is to be disregarded and the foreperson remains on the jury.”
1.It is essential therefore that if the foreperson has changed, the Court be informed so that the foreperson is not balloted off the jury.
2.Second, the Court is required, in any event, to maintain a record of who is the foreperson.
3.Third, as a matter of practicality, if the foreperson has changed, he/she/they must change seats so that the new foreperson is positioned closest to the judge and to the microphone.
4.I make similar observations about the text contained in the deliberations section of the Jury Guide under heading “Does the foreperson have a set role?”, where it states:
“If the foreperson is not able or willing to continue in the role, or you wish to change the foreperson, you can choose someone else to take their place. If this happens, please let the judge know.”
Deliberation guide
1.While s223A(3)(c) of the Criminal Procedure Act confers jurisdiction to provide to a criminal jury a guide on how the jury might approach their deliberations, I could find no authority that confers jurisdiction to provide a civil jury with a “deliberation guide”. Ordinarily, the only time a trial judge descends into discussion about the manner in which a jury might approach their deliberations is when the jury indicates that they are deadlocked. In such a case, if appropriate to do so, and only after discussing such a proposal with counsel, the trial judge might give a “perseverance direction”. A model perseverance direction can be found in the Civil Juries Charge Book:
“6.3 Perseverance direction
1.I have been told that you have not been able to reach a verdict. Although I have the power to dismiss you without a verdict having been reached, I should only do this if I am satisfied that you will not be able to reach a verdict even if you are given more time for discussion. I am not satisfied yet that this is the case.
2.What I urge you to do is to return to the jury room and try to resolve your differences. Experience has shown that juries can often agree if given more time to consider and discuss the issues.
3.Each of you has affirmed or sworn that you will give a true verdict according to the evidence. That is an important responsibility. You must fulfil it to the best of your ability. Each of you takes into the jury room your individual experience and wisdom. Judge the evidence fairly and honestly in that light.
4.You have a duty to listen carefully and with an open mind to the views of every other juror. You should calmly weigh up each other’s opinion about the evidence, and test them by discussion.
5.Calm and rational discussion might convince you that your original opinion about some issue was wrong. But, that said, you must always reach your own decision, according to your own view of the evidence. If, after calmly considering the evidence and listening to the opinions of other jurors, you cannot honestly agree with their conclusions, then you should not change your mind simply to permit a unanimous verdict. You must not agree to a verdict unless you honestly and genuinely think that it is the correct one. If you did otherwise, you would breach your oath or affirmation.
6.What I ask you to do, then, is to return to the jury room, re-examine the issue or issues about which you disagree, and make a further attempt to reach a unanimous verdict.”
1.The Jury Guide, however, contains statements about how the jury could approach their deliberations, even before a judge might have given a perseverance type direction:
“Part 2: Jury Deliberation Guide
Introduction
This second part of the Guide provides information that may help you decide how you wish to conduct your deliberations at the end of the trial.
It answers questions jurors often have about their role, such as how to organise deliberations, when to vote and what to do if they have any questions.
The first part of the Guide summarised information that the judge will often tell you.
The judge will not discuss this part of the Guide with you
Judges do not usually discuss the kinds of administrative and organisational matters contained in this part of the Guide. This is because the law does not say that jurors must talk to each other in a certain way or what process jurors must use when deliberating or deciding how or when to vote. This reflects the jury’s independence.
Please take the time to read this booklet for suggestions on how to organise your deliberations, how to consider the evidence and how to reach a verdict.
Beginning your deliberations
After final addresses from the lawyers and the judge’s directions, you (the jury) will be ready to begin deliberating to decide how to answer the questions in this case and reach your verdict.
Remember, you must follow the judge’s directions about the law.
As discussed on page 10, do not make your own enquiries about the case, the parties or witnesses, or conduct your own legal research. Do not use Google, the internet, Facebook, YouTube, Twitter, social media or any other method to try to learn more about the case or any related matters.
You are otherwise free to deliberate in any way you wish.
The following suggestions may help you deliberate together in a cooperative and efficient way.”
1.The Jury Guide contains a summarised version of what might appear in a perseverance direction. As such, it appears to be a direction of law that the judge might not have delivered, and might never give:
“What if we cannot reach a verdict?
Try and identify what you disagree about and why.
Listen to each other’s views respectfully, discuss the evidence and the judge’s directions again and see if you can reach agreement.
If that is not successful, ask the judge for advice on how to proceed.
… .”
1.Significantly, in my view, the deliberations section of the Jury Guide might create the impression that the judge’s directions are no more than a “guide” to deliberations. While determination of the facts is solely the jury’s domain, the directions of law are given by the judge and they are binding, not a “guide”. The wrong impression may be created because the subject of evidence and law appear to be merged in the same section:
“Discussing the evidence and the law
What do we do now?
The judge will have given you directions about the law.
Review the judge’s directions about the law because they will guide you on what to do.”
[emphasis added]
1.I note that this section of the Jury Guide also refers to how the jury might change the foreperson. Again, the language conveys the impression that it is not mandatory to notify the judge if this has occurred:
“If the foreperson is not able or willing to continue in the role, or you wish to change the foreperson, you can choose someone else to take their place. If this happens, please let the judge know.”
1.For the reasons mentioned earlier, if the jury changes foreperson, they must notify the judge. It is a requirement, more than a polite request.
2.This section also refers to the use of transcript, again without the warning that transcript is no more than an aide memoire.
3.As mentioned earlier, it appears that there may be no jurisdiction to provide a deliberation guide to a civil jury. How a jury approaches their deliberations is entirely a matter for them. As was stated by Gleeson CJ, McHugh and Hayne JJ in their joint judgment in Stanton v The Queen, “jurors are free to organize their individual processes of reasoning, or their discussions as a group, in whatever manner appears to them to be convenient”. Ordinarily, a judge does not encroach on the jury’s right to organise their deliberations. The exception is when a perseverance direction is required or the jury are directed in which order they are to answer the questions left for their determination. While the Jury Guide does not purport to restrict the manner in which the jury should conduct their deliberations, it treads into an area where the judge would not ordinarily trespass.
4.Furthermore, one might ask whether, if a jury had conducted independent research to ascertain how they might approach their deliberations, it could justify a discharge.
Conclusions
1.As noted, the model preliminary directions state:
“If you are confused or unsure about whether there is a difference between the Guide and my directions, you should ask me to clarify.”
1.This, however, assumes that the jury identifies that there is an inconsistency between the judge’s directions and the Jury Guide. Even if the jury does not identify any such inconsistencies, the trial judge might still have a duty to point them out and direct the jury to follow the oral directions. I did not give such a preliminary direction because I had no intention of providing the jury with the Jury Guide. If I had to engage in such an exercise in the context of the present case, this would require considerable effort and, in any event, would not overcome the problem that the Jury Guide contains information that I simply would not have permitted the jury to have.
2.In the end, the jury would be left with a printed copy of a Jury Guide that contains both information that is inconsistent with my preliminary directions and information that I would not have permitted the jury to have.
3.I discharged the jury without verdict on the grounds that the jury was given access to material, a Jury Guide (and Deliberation Guide), that they were not authorised to have. The Jury Guide contained information that was not consistent with the preliminary directions of law I had given to the jury. The Jury Guide also contained information I considered to be capable of misleading the jury about the role of the judge, the role of counsel, and about matters relating to practice and procedure.
4.As a number of the members of the jury had read the Jury Guide, I considered the only option to ensure that a fair trial could be had was to discharge the jury.
5.The necessity to discharge the jury was not attributable to the fault of either party.
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ANNEXURE A
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