>>> "Sylvia Else" <syl...@not.here.invalid> wrote in message
>>> news:a6c0jeFq2nU2@mid.individual.net...
>>>> On 14/07/2012 7:37 AM, David Barnett wrote:
>>>>> In article <a6ahb2F10...@mid.individual.net>,
>>>>> syl...@not.here.invalid says...
>>>>>> I was susprised to see a judge direct a verdict of guilty (though one
>>>>>> not followed by the jury) in Silk. I was under the impression that
>>>>>> the
>>>>>> House of Lords had made it abundantly clear that a judge cannot do
>>>>>> any
>>>>>> such thing.
>>>>>> "18. We would accordingly allow the appeal, quash the appellant's
>>>>>> conviction and answer the certified question by saying that there
>>>>>> are no
>>>>>> circumstances in which a judge is entitled to direct a jury to
>>>>>> return a
>>>>>> verdict of guilty."
>>>>>> Sylvia.
>>>>> I am pleased to see at last a thread that interests me &
>>>>> relevant to the newsgroup.
>>>>> Of course, Sylvia, you are only doing a nitpick, but what
>>>>> appears to be a valid one.
>>>>> I, myself, don't worry about faults in a TV show, as long
>>>>> as it is entertaining.
>>>>> If it takes a nitpick to start a discussion of a TV show,
>>>>> please nitpick away.
>>>>> I certainly enjoy SILK & I thank the ABC for showing 2
>>>>> seasons of it.
>>>> It's a nitpick, indeed, and Silk is of course fictional. Still, some
>>>> people gain their understanding of the law from such programs, so it
>>>> serves some purpose to point out errors.
>>> Bearing in mind that it's in the UK, and the law, practice and procedure
>>> in other jurisdictions can easily be very different.
>> I was looking for indications of the situation in Australia. The only
>> relevant case I found was
>> this presumably being in part because it's settled law, together with
>> the limited time for which cases, other than High Court cases, are
>> available in Austlii.
>> Anyway, I found that decision a little odd. On the one hand it seems
>> to be saying very clearly that judges cannot direct a jury to convict.
>> But on the otherhand, has accepted the procedure adopted by the judge
>> (paragraph 5).
> Does the cited case say clearly that judges can not direct a jury to
> convict?
> I dont belive this case clearly says that at all .
> In the original case the presiding Judge did not direct the jury to
> convict, therefore in this appeal no decision was required on that point.
> In this appeal only one of the 5 Justices (Murphy) mentions this point
> and since he was not required to decide on this point his comments are
> purely obiter dicta.
> Of the other 4 Justices in the appeal;
> Barwick CJ at #4 expressly states that "There is no need to consider
> whether he [the presiding Judge] could have directed a verdict, as this
> course was not followed
> Mason J adopts Barwick's judgement, so he also does not consider the issue.
> McTiernan also states there was no error or irrugualrity in the trial
> and so he also does not consider if a Judge can direc5t a jury.
> Jacobs J says "Whether he could have directed a verdict of guilty to be
> entered does not arise:" so he does not address the question either.
> Thus in the cited case only 1 out of of 5 Justices addresses the point,
> and in the event his comments are only obiter as he was not required to
> decide on this point.
> So it is hard to see how this case can be cited to "very clearly" state
> that point,
> even if the proposition that a judge should not direct a jury to convict
> may well be valid
Indeed, JACOBS J says, at paragraph 8
"In R. v. Brown and Brian (1949) VLR 177 the Full Court of the Supreme Court of Victoria took the view that a verdict of guilty could not be entered but it is clear that they also took the view that the trial judge could direct the jury to return a verdict of guilty as was done in the present case (1949) VLR, at p 180."
Unless I'm completely misreading that, he's saying that a direct verdict of guilty was returned by the jury.
appears to be a majority verdict in which it was held that a judge can direct a jury to convict. This surprises me, because, amongst other things, it does, as observed by Murphy J, mean that the accused has not been tried by a jury, as required by s80 of the Constitution.
Yet it also seems that there is nothing a judge can do if a jury refuses to obey the direction.
> Yet it also seems that there is nothing a judge can do if a jury refuses > to obey the direction.
** Jurys were " invented " in order to give ordinary citizens the power over rule the decisions of politically appointed (and hence corrupt) and also mostly incompetent judges.
The compelling motive was to restore some semblance of public faith in the legal process, which had fallen to a dangerously low level.
> >> "Sylvia Else" <syl...@not.here.invalid> wrote in message
> >>news:a6c0jeFq2nU2@mid.individual.net...
> >>> On 14/07/2012 7:37 AM, David Barnett wrote:
> >>>> In article <a6ahb2F10...@mid.individual.net>,
> >>>> syl...@not.here.invalid says...
> >>>>> I was susprised to see a judge direct a verdict of guilty (though one
> >>>>> not followed by the jury) in Silk. I was under the impression that the
> >>>>> House of Lords had made it abundantly clear that a judge cannot do any
> >>>>> such thing.
> >>>>> "18. We would accordingly allow the appeal, quash the appellant's
> >>>>> conviction and answer the certified question by saying that there
> >>>>> are no
> >>>>> circumstances in which a judge is entitled to direct a jury to return
> >>>>> a
> >>>>> verdict of guilty."
> >>>>> Sylvia.
> >>>> I am pleased to see at last a thread that interests me &
> >>>> relevant to the newsgroup.
> >>>> Of course, Sylvia, you are only doing a nitpick, but what
> >>>> appears to be a valid one.
> >>>> I, myself, don't worry about faults in a TV show, as long
> >>>> as it is entertaining.
> >>>> If it takes a nitpick to start a discussion of a TV show,
> >>>> please nitpick away.
> >>>> I certainly enjoy SILK & I thank the ABC for showing 2
> >>>> seasons of it.
> >>> It's a nitpick, indeed, and Silk is of course fictional. Still, some
> >>> people gain their understanding of the law from such programs, so it
> >>> serves some purpose to point out errors.
> >> Bearing in mind that it's in the UK, and the law, practice and procedure
> >> in other jurisdictions can easily be very different.
> > I was looking for indications of the situation in Australia. The only
> > relevant case I found was
> > this presumably being in part because it's settled law, together with the
> > limited time for which cases, other than High Court cases, are available
> > in Austlii.
> > Anyway, I found that decision a little odd. On the one hand it seems to be
> > saying very clearly that judges cannot direct a jury to convict. But on
> > the otherhand, has accepted the procedure adopted by the judge (paragraph
> > 5).
> > Even though the judge did not expressly direct the jury to convict, and
> > even though he said that he was asking whether the jury found the accused
> > guilty or not guilty, it then appears that he proceeded immediately to ask
> > the jury foreman, and only after receiving the verdict confirmed that it
> > was the opinion of the others.
> > The foreman would reasonbably have felt that he was being asked as a
> > formality, in that he was being given no opportunity to ask the other
> > jurors what they thought, and the others might then have felt that they
> > were also being asked as a formality. Thus regardless of whether the judge
> > intended the effect of his words to be a directed verdict of guilty, that
> > may have been how they were interpreted by the jury. The procedure adopted
> > would also have tended to make it difficult for the jury to decide
> > collectively whether they wanted to enter any other verdict.
> > The particular case was not one where it's at all likely that the jury
> > would have found any differently had they felt they had a genuine choice,
> > but the principle stands.
> > Clearly, any defence lawyer who's hoping for a perverse verdict, must,
> > during his or her closing speech, make it abundantly clear to the jury
> > that even if they feel that the judge is directing them to find the
> > accused guilty, and even if the judge does not allow the jury time to
> > consider first, they still have that option of entering a not guilty
> > verdict.
> The sequence of events is that the judge's directions to the jury follows
> the closing speeches. The defence (or the prosecution) might have something
> to say about those directions, of course.
Not sure what Australian state judges do, but New Zealand judges will
consider any concerns that the lawyers have with the summing up when
the jury is sent out. If the judge accepts the concerns (eg the judge
slipping up or overlooking something) the jury will be recalled for an
amendment to a summing up. This is by far preferable to an appeal and
possible re-trial.
In some cases it is a pity that juries are not able to be more
explicit. For example with a murder conviction it could be useful for
an appeal court to know if the jury convicted on the basis that the
offender intended to kill, or intended to inflict serious injuries
likely to result in death, or possibly one of the other criteria for
murder.
Sylvia Else wrote:
> On 14/07/2012 12:54 AM, Phil Allison wrote:
>> "Stupider than Anyone Else on planet Earth "
>>>> I was susprised to see a judge direct a verdict of guilty (though
>>>> one not followed by the jury) in Silk.
> Ok, so you've figured it out. I didn't say it had just been aired.
Delayed reaction? I remember the episode, but not in enough detail any more to comment on your OP.
> Sylvia Else wrote:
>> On 14/07/2012 12:54 AM, Phil Allison wrote:
>>> "Stupider than Anyone Else on planet Earth "
>>>>> I was susprised to see a judge direct a verdict of guilty (though
>>>>> one not followed by the jury) in Silk.
>> Ok, so you've figured it out. I didn't say it had just been aired.
