Further Edit: I accept that fully-recorded trials and “instant replays” are still a long way off. But perhaps they have moved a step closer with the Court of Appeal refusing to state a definitive rule about appellate courts reviewing recorded evidence in R v El Moustafa [2010] VSCA 40.

There, the Court of Appeal chose to watch some of the recorded evidence of the trial to consider whether the (now repealed) s 568 Crimes Act “proviso”. Consideration was given to whether watching some portions of the trial and not others might improperly influence the Court of Appeal in reaching its decision. Perhaps the time will come when, if watching part of the evidence, they will be obliged to watch it all?

Edit: After writing this post, I came across R v Demarco [1999] VSCA 69 where the Court of Appeal (Phillips, Phillips and Buchanan) also express their concern about what was referred to as trawling for error [at 4]:

As soon as these applications were called on for hearing, counsel for the applicant announced that he was not pursuing the first ground and so the only grounds pursued were those added by amendment on 4 March. This gave rise to the criticism by counsel for the Crown that the grounds being pursued were but the product of “trawling”, by which we understood him to mean subjecting every component of a fairly long and comprehensive charge to the closest scrutiny simply in the hope of finding error. That is not to say that error may not be so discovered and, if genuinely impinging upon the fair trial of the accused, it behoves this Court to correct it. But it must be said that when grounds emerge in this fashion, we should at least consider very carefully what is now said, at a relatively late stage, to be perceived as error for the first time. That it was not so seen at the time of the trial, by those in the best position to perceive error if such it was, should not be lightly put aside.

Moreover, the task of charging the jury nowadays has been made very difficult by successive determinations of appellate courts about what should and should not be said. In this jurisdiction, it is easy to become increasingly troubled by the possibility that we are demanding too much of trial judges. Sometimes it seems that we are being invited by counsel to assess the impact of the charge on the jury as though those listening were reading and applying a statute, with the training of lawyers. That of course is far from the case: the jury consists of laymen and they are listening to an exposition of the law perhaps for the first time. That is not to say that the trial judge is absolved from the duty of conveying to the jury, as precisely as he can, what their duty is; far from it. But the impact of the charge will commonly depend more upon its thrust and its general tenor than upon a word here or word there (of which R . v. Saragozza [1984] V. R . 187 especially at 196 provides an example). Yet in this instance, we were invited to say that the trial miscarried because of a word which, it was said, was error in line 13 on p.16 of a charge that ran for nearly 250 pages.

Some of the innovations of government are greeted less than warmly by the Supreme Court. Might video replays be the exception to the rule?

Whatever the facts of the matter are, R v Fitchett [2009] VSCA 150 is a sad case. The accused is alleged to have killed both of her sons whilst suffering from depression. The Court of Appeal have found that the jury were misdirected and quashed the conviction, and a retrial is pending.

This case, along with the efforts the Brits are making to do court by teleconference, got me thinking about the directions in jury trials.

The length and complexity of the instructions that judges are obliged to give to juries grows every year. The Criminal Charge Book can be found on the JCV website. Even though it only includes the standard directions for a criminal trial – further directions relevant to the specific case are always necessary – if printed the basic requirements would easily run to the size of a phone book. The decision of what to leave in and what to leave out gets more difficult with each further nuanced decision.

A recent study casts doubt on how much of the jury charge most jurors actually understand anyway. If experienced practitioners and jurists are at odds on the fine distinctions between Edwards and Zoneff directions, it’s highly unlikely that they’re of much significance to jurors when deciding the case in front of them.

The Victorian Law Reform Commission investigated the simplification of jury directions in a report to have been tabled last month. The key change proposed is a move from a judge’s directions being mandatory to a situation where they are only required where a party requests they be given (making an appeal premised on the absence of a direction not requested at trial less likely to succeed). For some time, the Court of Appeal hasn’t been obliged to quash a verdict just because correct procedure wasn’t followed, if satisfied that it didn’t cause possible injustice. This was a result of the High Court’s interpretation of s 568 of the Crimes Act 1958 (commonly referred to as the proviso) in Weiss.

If juries are applying incorrect principles of law in their deliberations and this potentially affects the outcome of the trial, a conviction can’t stand. But given the enormous expense involved in staging a trial, isn’t there some solution short of doing the whole thing over again?

Up until now, no. But with advances in technology, it’s relatively easy to record proceedings in a courtroom. One camera fixed on the judge, one on the accused, one on each of the advocates, and a big one of the witness in the witness box. You wouldn’t need camera operators for each one; just one technician to hit the On/Off button and make sure that the audio pick-ups are working (as they do now for the remote witness technology).

In cases where an appellate court rules that a charge to a jury was defective, how about empanelling a new jury and showing them the video of the trial from start to finish? They can examine the exhibits in the case under the same conditions as jurors in a regular trial. At the point of the directions to the jury, the tape is stopped and the presiding judge charges the jury in accordance with the directions of the appellate court.

I’m sure someone will be able to point me towards the flaw in adopting this procedure, but I can’t see what it is. Is there unfairness in only allowing the accused to put his case once? I don’t think so. You could more easily argue there’s fairness in restricting the prosecution to only getting one opportunity to present their case, rather than the changes to the way evidence often comes out in subsequent re-trials. 

Before dismissing the idea, consider ss 41G and 41H of the Evidence Act 1958, which are already a few steps down this path. Under Division 3AA, the evidence of a child witness is recorded shortly after the committal, and presented as their evidence at trial. In future re-trials, s 41H(1)(i) provides that the tape will be used as their evidence in all future proceedings, unless the court is satisfied that justice requires otherwise.

There’s expense in equipping the courtrooms, of course, but most of it would overlap with the technology already in most Victorian courts for videolinks. In a couple of years, the savings in staging re-trials would have recouped the original expenditure. Importantly, witnesses and victims of crime would know that their role in criminal proceedings is likely to have been completed once they step from the witness box.

In cases where it’s not solely the jury direction that is defective – say, where evidence also wasn’t excluded when it should have been – a recording of the previous trial wouldn’t cure the defect. Due to the flow-on effect of that ruling, a new trial would be required anyway.

So perhaps recording trials isn’t a panacea. It’s probably still worth some serious thought.