Judicial reflections on the defence case - an update

Abstract

There continues to be much diversity of judicial opinion in Australia about the permissibility of negative judicial comments on the defence case. It is surprisingly infrequent even for one state to consider the law of other states. While there is a traditional position allowing judicial comments as long as they do not overawe the jury, are otherwise fair and error-free and clearly stated to be comments not directions, it has come increasingly under attack. In England the view has developed very recently that comments on the defence case should assist the jury as fact finder by drawing their attention to something they might otherwise overlook — by reason of their inexperience, for example. That thought may also be found in a few Australian cases and is proposed as the leading principle here: for judicial comments should solve a problem. On the other hand, the jury should not be told that judicial experience buttresses judicial comments as they might then give them too much weight.