Chief Justice puts jury question trails online

Written question trails – a key judicial tool for guiding juries to reach legally-correct verdicts in criminal trials – are to be made public for the first time.

Dame Helen Winkelmann

Chief Justice Dame Helen Winkelmann

Chief Justice Dame Helen Winkelmann says 140 hypothetical fact scenarios with sample question trails will be offered on the Courts of New Zealand website.

Each question trail gives a series of logically-sequenced questions, designed to enable jurors to work through the elements of the charge the Crown must prove to establish guilt.

The jury must answer each question in the affirmative before guilt is proven. The burden and standard of proof are set out at the top of all question trails.

A trial develops organically and critical issues can change in the course of the proceeding so the jury gets the question trail just before it retires – when the key issues have been settled.

Judges are responsible for modifying the question trails, depending on the facts of each particular case. They are guidelines only; they have no force of law.

Until now, a judge would typically draft a question trail and consult with the prosecution and defence just prior to summing up and giving the question trail to the jury.

There is little opportunity to reflect, or to discuss or modify the question trails, many defence lawyers say.

But with model question trails for a variety of offences now being publicly available, the Crown and defence counsel – and the defendant – can identify the key issues before the trial begins and use the question trail to help plan their trial strategy.

Dame Helen says the move is fairer to the defence bar and should improve the functioning of trials generally because “everyone is focused on the same elements.

“Our thinking is that it supports transparency of the process so people know exactly what’s going on. It removes the magic notion of it.

“We think it also evens up the playing field because the Crown solicitors and the Crown are institutions which are repeat litigants….so they can collect their own templates and standard forms. But criminal barristers, because they’re not institutions, tend not to build institutional resource of that nature,” Dame Helen says.

“So, the Crown will come into the courtroom already knowing what the question trail will look like but the defence bar is unlikely to [have this information] because of the variety of offences they defend, and just because of the nature of their business.”

In Dame Helen’s view, there’s no doubt that question trails are helpful for juries.

“I’ve done trials where the jury had to give more than 90 verdicts,” she says. “It makes it so much easier if you can give them a question trail book which they can go through, count by count, and fill it in.”

Standard question trails have for some years been available to the judiciary as part of a judge’s Bench Book, which sets out the various legal issues that might arise at trial, including evidential and procedural matters.

It also gives judges detailed guidance on how they should direct juries on particular issues.

In some jurisdictions, such as Canada, the UK and many Australian states, Bench Books are available to lawyers. This is not the case in New Zealand although the profession has for years sought access to them.

“The reason why New Zealand has proceeded so tentatively is because we haven’t had the resources to keep them up to date,” Dame Helen says.

“But the Ministry of Justice has been more supportive in recent years of this Bench Book work because of the understanding that they’re such a critical tool for judges.”

Level playing field
Not surprisingly, the profession supports the move to make question trails publicly available.

NZ Bar Association President Kate Davenport QC says though every fact scenario will have a different question trail, the Crown has always been in a better position than the defence bar to build up its own sets of templates.

“That’s what our members who practise in the criminal bar have always said. You have to save the ones you get in various trials whereas the Crown gets access to much more information so it will certainly level the playing field in that way,” she says.

“I think it’s a great idea. It’s a really helpful thing for defence and Crown counsel, and probably for defendants as well as it will enable them to understand what elements have to be proved and what they need to address. I think it’s a fantastic thing to have that transparency.”

Davenport says making the entire Bench Books public would also help the profession.

“Templates they have for giving directions on admissibility in criminal trials would be invaluable, especially if you were a junior, to inform your own actions and decisions.”

Credit must be given to the Chief Justice, Davenport says, for making the decision to put resources into the project.

“This is something I think every lawyer feels is a good thing because the might of the state is behind the prosecution and it’s good to have the same availability of the material for the defence.”

Marie Dyhrberg QC, ADLS Vice President and a senior criminal barrister, says putting question trails online will give lawyers guidelines and help with trial preparation.

“At least you’ll get consistency and your court preparation could include what you think an ideal question trail should be,” she says.

“Ahead of time, it could give defence counsel access to information that you would think would be reliable and objective.”

New Zealand Law Society President Tiana Epati says she is pleased the question trails include hypothetical fact situations and “trickier questions such as party liability and attempts”.

Like Davenport, Epati believes defence lawyers typically don’t have access to the same resources as the Crown, which can pool information across several Crown solicitors’ offices.

“The defence has to rely on its own ability and the reality is that it’s not the same,” she says. “It’s not an equality of arms.”

Making question trails available to both prosecution and defence allows everyone to go into a trial with some broad understanding of what the key questions will be, she says. “You’re all singing off the same song sheet.”

It also reinforces that the onus of proof is on the Crown – something Epati believes isn’t always spelt out clearly enough in question trails.

“Whose job is it to prove this? That can often be forgotten. More often than not, the question trail will say ‘are you sure?’ rather than ‘has the Crown made you sure?’

“I have seen too many question trails framed like that. It’s actually quite powerful because it’s a consistent reminder that the defence has to prove nothing unless we’re in a reversal of onus situation which is quite rare.”

Because question trails are designed for nonlawyers and usually drafted in plain language, Epati says they’re “a perfect resource” to show a client early in the court process. They are the questions a jury will likely be asked and will help clarify what’s in dispute and what isn’t.

“They’re a gift [enabling you to] sit down with a client and get proper instructions,” she says.

Overall, trials should be more streamlined as neither side should get bogged down in irrelevant questions and issues.

“Having full access to question trails prior to a trial will help focus everyone’s attention on what the ultimate questions are going to be,” Epati says.

“You start at the end: what is the jury going to be asked? You can use this as a template for your trial preparation.”

There is little research available on jury feedback on the effectiveness of question trails as an aid to juror deliberations.

But our appellate courts consider question trails, combined with the judge’s oral summing up, to be best practice in criminal trials as they help keep the jury focused on the technical task at hand and ensure jurors don’t get side-tracked into “prejudicial, sympathetic or other impermissible reasoning processes” (Rawle v R [2019] NZCA 249). 

Question trails and explanatory information can be found on the Courts of New Zealand website https://www.courtsofnz.govt.nz/for-lawyers/question-trails

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