s165

However, there are areas where it is possible and indeed desirable that the judge impart judicial wisdom to a jury, a wisdom gained by the courts through the repeated conduct of trials. Section 165 requires the judge, if requested to do so, and where evidence is of a kind that may make it unreliable, so warn the jury, unless there is good reason not to do so.

It cannot be doubted the courts and, in particular, judges and magistrates have experience in the criminal law that exceeds that of jurors.

It is argued that jurors lacking of experience is beneficial when comes to the consideration of verdict. Jurors are free of the cynicism that plagues lawyers, and have broad experiences of life outside the law.

However, there are areas where it is possible and indeed desirable that the judge impart judicial wisdom to a jury, a wisdom gained by the courts through the repeated conduct of trials. Section 165 requires the judge, if requested to do so, and where evidence is of a kind that may make it unreliable, so warn the jury, unless there is good reason not to do so.

The section provides a non-exhaustive list of circumstances that might result in a determination that the evidence might be unreliable. If that determination is made, there is a jury, and a party requests it, the court is required to “warn the jury that the evidence may be unreliable”, “inform the jury of matters that may cause it to be unreliable” and “warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it” unless there is good reason not to.

The question of whether or not there is good reason not to give the warning can often be a vexed one, but a good example is available in GAR v R (No 3) [2010] NSWCCA 165, where the court found that “the possibility of concoction and the issues of credit associated therewith were plainly before the jury as a result of the cross-examination and the address of counsel”, and as such the court had no additional experience to offer.

 

Rose

R v Rose [2002] NSWCCA 455

“Visual identification evidence of a particular person is no more reliable because the person being identified is not the accused. Nor does the potential unreliability of such evidence diminish because it is being led in civil proceedings rather than in a criminal trial. “

“The trial judge is required to make a discretionary judgment in all the circumstances of the case whether to give a warning and what the content of the warning should be”