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Thursday, 29 October 2009

Charge Book becoming essential reading

The VLRC's report on jury directions came out in June and suggested a number of different reforms. One of the proposals was more frequent reference by judges to the Judicial College's Charge Book.

In R v Said [2009] VSCA 244 the Court of Appeal delivered its strongest encouragement yet for increased use of the Charge Book.

Maxwell P said:
28. As Ashley JA has already noted, none of the complaints which we are upholding in respect of the charge in the present case would have been sustainable had the charge book charge been used. It is most unfortunate that this appeal was made necessary because of what were avoidable errors. Not only has the appeal involved time and cost for the court and the parties, but the conviction must be quashed and a retrial ordered.

29. This case illustrates just how important a resource the charge book is for trial judges, and how important it is that it be used for its intended purpose, that is, to minimise the risk of appealable error. The charge book contains much more than the model charges. Each part of the charge book provides references to relevant decisions, and guidance as to when and how particular topics need to be addressed (depending always on the circumstances of the particular trial). The charge book is accessible on-line and there is every reason to think that judges can — and should — avail themselves of the assistance which it provides.

30. The charge book is a living document. For example, following comments which the Court made in Hendy, the model charge on self-defence was modified to remove the passage which had given rise to debate in that case. It is also important to emphasise that it is not an academic document. The model charges are reviewed and edited by experienced trial judges and experienced appeal judges, who have worked very hard with the Judicial College of Victoria, over several years, to arrive at formulations which are both faithful to the requirements of the law and cognisant of the practicalities of running trials. I want to express this Court’s appreciation of the work that has gone into the charge book, and to reiterate the hope that that work will continue to pay dividends.

31. Every time appealable error is avoided, every time the community is saved the time and expense of an appeal and a retrial, the vital importance of the charge book is reinforced.

Said was a trial in the County Court of a charge of recklessly causing serious injury. It could even be described as a relatively simple case. Self-defence was in issue and the judge's directions were found to be in error. Criticism (in the traditional, indirect fashion of appellate courts) was made of all the parties to the proceeding for not referring to the Charge Book.

While talk of juries might seem irrelevant to the summary jurisdiction, magistrates are required to direct themselves prior to the commencement of fact-finding (Fleming v R (1998) CLR 250), and practitioners are obliged to assist them in doing so correctly. The assumption that magistrates "know the law" is as likely to be wrong in the Magistrates' Court as it has proven to be elsewhere.

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