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A guide to the question trails

1. These question trails are for use in criminal jury trials. They provide a procedure to be followed by juries in their deliberations. They set out sequentially the relevant questions that must be answered in the affirmative by the jury before guilt is proved.
2. In the process of providing this sequence of questions for the jury to answer, the questions require negative or affirmative answers to the elements of the particular charge. By requiring the jury to proceed through the elements of the charge, the question trails can provide a format for deliberation, and reduce (but not eliminate) the possibility of jury error.
3. If the question trails are read and understood by the prosecution and defence before the trial, they will allow the parties to focus on what elements are in issue in the trial. They should encourage an appreciation of what is at issue in the trial right from the start, which can reduce the time of a trial and promote a just result.
4. The question trails are no more than guidelines for the assistance of all those involved in the court process. They are generally modelled on a specific fictional fact scenario, to reflect what can be directed on in a specific notional trial. Obviously, that means that the words of the question trails will always be changed at trial.
5. The question trails cannot anticipate the various scenarios that arise in a trial, and there will have to be different or adapted trails used. It is accepted that these question trails, in the context of a particular trial, may not be suitable and may require significant modification. They do not have any force of law and can be departed from by trial judges. They are guidelines only. The trial judge has ultimate responsibility to determine how they are used and what they say.
6. That being said, each question trail sets out every element of the charge the Crown must prove in order to establish guilt. This approach is consistent with appellate authority to the effect that trial judges must direct the jury on all elements of the offence unless a particular element has been expressly conceded. It will be for the trial judge and counsel to determine whether an element has been expressly conceded and therefore whether a question in the question trail can be removed. In the absence of an express concession, trial judges should include all questions contained in the question trail.
7. These question trails were completed and reflect the law as at 1 October 2019.

 

Drafting principles applied to the question trails

8. Certain principles have been followed in drafting the question trails, and these are discussed below.
9. The burden and standard of proof are set out at the top of all question trails. This will tie in with, and reinforce, the directions given to the jury by the trial judge on the topic. In addition, each question is worded in a way that requires jurors to address the standard of proof: “Are you sure that…”.
10. In considering the affirmative and negative answers, the jury is asked to consider first whether the question should be answered in the negative. This reflects the presumption of innocence. A negative answer will usually mean that the Crown has failed to prove an element to the necessary standard and it will follow that there should be a verdict of not guilty on that charge. If the question involves an affirmative answer to proof of an element, this will lead the jury to the next question about the next element that must be proved. If, in the end, there are affirmative answers to all the elements, a guilty verdict will follow.
11. The question trails are structured so that there is a separate question for each element of the charge. Where there are two possible mental states resulting in guilt—often intention and recklessness—there are usually two separate questions.
12. Where necessary, explanatory notes for the jury are set out below the questions to define terms or explain words or concepts. Whenever an explanatory definition or note is necessary, it is set out in full, even if this repeats the same definition or note used earlier in the trail. On occasions there are also notes set out as a general comment on how the question trail is to be used. Where it is thought to be helpful, explanations of the notional fact scenario are provided at the beginning of the question trail.
13. Where possible, only words that are in common use are adopted. Where a word not in common use is an intrinsic part of the alleged offence, that word is explained. An effort has been made to achieve consistency of definitions and explanations. Separate to the question trails, there is a summary of the definitions that are used or that may be relevant.
14. No attempt has been made to provide question trails for every potential charge. The question trails provided are for the charges that arise, or are expected to arise, on a regular basis. Obviously, the fact examples chosen are for guideline purposes only, and are not intended to be in any way comprehensive.

 

Conclusion

15. These question trails should be seen as a trial tool. They can be used by counsel in preparation for a trial and, subject to the trial judge’s approval or direction, during a trial prior to the deliberation stage. The trial judge will determine when it is appropriate for the question trails to be given to the jury. If question trails are given to jurors, it can be expected that they will be referred to and explained by the trial judge in the course of summing up.
16. Te Kura Kaiwhakawā | The Institute of Judicial Studies welcomes any comments or suggestions about these question trails. They will be subject to regular review and updating. Comments or suggestions should be sent to: benchbooks@justice.govt.nz