4. Trial proceedure

Commentary

This part sets out the usual procedure for the commencement of a criminal trial.

It rests on the proposition that the brochures and video material provided to and shown to jurors will, together with the judge’s opening remarks, sufficiently inform jurors about the nature of their role and what they can and cannot do.

However, there may be cases where, because of publicity, media interest, concern about jury interference or the like, a judge may consider giving the jury a document to be referred to during the judge’s opening remarks which deals with some of the following:

  • The respective role of judge and juror
  • The nature of a criminal trial
  • The onus and standard of proof
  • The importance of not discussing the trial with any person outside the jury
  • That jurors should discuss the case only in the jury room, and with all jurors
  • The duty of jurors to bring irregularities in the conduct of the trial to the judge’s attention
  • Reporting any jury/juror’s misconduct to the judge
  • The prohibition against independent enquiry and investigation, with particular emphasis upon the use of the Internet
  • The need to ignore media reporting
  • The principal issues in the case

Even if there are no particular concerns about the misunderstanding of the jury’s role or jury interference, a judge may consider it appropriate to give the jury a document to accompany their opening remarks which might include (for example) the fundamental principles which apply to a criminal trial and the elements of a defence or any of the matters listed above.

If a judge wishes to give a jury a document during their opening remarks, it is prudent for the judge to show the document to counsel before the opening and invite submissions on it.

Opening the court

  1. Bailiff opens court.
  2. Judge deals with any renewed applications for excusal:
    1. The associate hands the juror’s card to the judge and the affected panellist comes to the bench to discuss the matter.
    2. The court microphone should be muted whilst the issue is discussed with the juror.
    3. If excused, the associate writes the name, number and period of excusal in the notebook and on the jury form and removes the panellist’s card.
  3. Prosecutor and defence counsel announce their appearances.