Deflecting the jury from its fundamental task

“The instructions which a trial judge gives to a jury must not, whether by way of legal direction or judicial comment on the facts, deflect the jury from its fundamental task of deciding whether the prosecution has proved the elements of the charged offence beyond reasonable doubt.”

Hargraves v The Queen; Stoten v The Queen [2011] HCA 44 (26 October 2011) at [45] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.

It was a potential breach of this for the judge to direct the jury that in assessing the defendant’s evidence they could take into account his interest in the verdict.

Other examples of possible deflection of the jury from their task mentioned here are comment on the defendant’s failure to give evidence [43] and asking the defendant in cross-examination why the complainant is lying [44].

Deflection of the jury from its fundamental task is a miscarriage of justice. Whether deflection has occurred in a particular case must be assessed in the context of the whole of the summing up and the circumstances of the case. As it turned out here, there was no miscarriage, because the jury would not have understood the judge to be saying that the evidence of a defendant must be scrutinised more carefully than that of other witnesses.

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