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Retrial approved after trial judge fails to direct jury
A man accused of aggravated assault has been granted a retrial due to the trial judge’s failure to appropriately disclose directions to the jury post-empanelment.
Naomi Neilson
The appellant, whose identity has been redacted, was found guilty on all eight charges of aggravated assault but argued the trial judge failed to appropriately address the jury as to their obligations to the court and failed to account for a criminal law act.
The key concern was the judge failed to direct the jury either at all, or at least not until summing up, as to the obligations to decide the case only on the evidence heard during the trial, to not discuss with anyone outside the jury and to notify the judge of departure.
“The trial judge ought to have given post-empanelment directions to effect contended by the appellant,” noted appeal judges. “The instructions provided during the jury pool induction, guidance notes in the jury room, and the trial judge’s reference in summing up their obligation to decide the case were not a sufficient substitute.”
The information before the Supreme Court found the panel came from a jury pool that had its induction weeks prior. During this pool, jury members were selected for all three trials, and it is likely the trial judge assumed all jurors had already heard directions.
“However, on this appeal, the respondent quite properly accepted that whatever some jurors may have been told in earlier trials was of no moment in the present case. In any event, the information before the court does not provide any evidential foundation for any assumption by any trial judge that all jurors had sat in previous trials that month.
“To the contrary, the information that is available [suggests] that this was the first trial for at least some of the jurors,” the Supreme Court of South Australia noted.
The court added directions should be given as a matter of course and at the outset of each trial. The extent to which aspects of the directions that may require emphasis will be at the discretion of the judge and should remain that way.
“However, there is no good reason to not give the jury any direction in relation to these matters, and sound reasons for routinely giving such directions.”
The appellant’s second proposed ground of appeal involved a contention that the trial judge erred in failing to direct the jury as to self-defence either at all, or in terms of the conformity with s15 of the Criminal Law Consolidation Act 1935 (SA).
The appellant’s submissions on appeal included a contention that the trial judge should have left the issue of self-defence to the jury in respect of each of the alleged instances of violent offending. This count has been granted a retrial.
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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