Jury Directions Report

Executive Summary from the NSW Law Reform Commission Jury Directions report  [PDF] -

Trial by judge and jury is a central feature of our criminal justice system. Although jury trials make up a relatively small proportion of the total number of criminal trials in NSW, they generally involve the determination of serious criminal charges that carry a potential sentence of imprisonment.

This report is about the directions that judges give to juries in the course of a criminal trial, and particularly at the summing up. These directions are designed to help jurors understand as much of the law and the issues that arise in the case as they need to make proper use of the evidence and to reach a verdict.

There is growing awareness that jury directions are not always working well in guiding jurors in their task. There are concerns that jury directions are becoming too complex and uncertain to meet their intended purposes, and that they rely on outmoded communication methods that may confuse rather than assist the jury

The system of jury directions may also exacerbate inefficiencies in the trial process. There are concerns that lengthy and complex directions unnecessarily prolong already lengthy trials.

Juries also face many challenges that arise from the impact on the criminal trial process of recent technological and scientific innovations, including:

• the increasing volume of evidence (for example, audio and video evidence from surveillance devices); 

• the increasing complexity of the evidence (for example, expert evidence in relation to DNA profiling and statistical analysis); 

• jurors’ changing expectations as to the type of evidence that is presented and the ways in which it is presented. A framework for reform

We have considered a range of options for devising a general approach to reform. Options that we have considered and rejected are:

• replacing the existing framework, which rests partly on the common law and partly on statute, with a statutory scheme or code; and 

• retaining the existing framework and supplementing it through the introduction of model jury directions (that have been developed and approved for use otherwise than through legislation) which judges are expected to use.

Our preferred approach is to retain the existing framework, and strengthen it through:

• refinement and encouragement of greater use of the suggested directions contained in the Judicial Commission of NSW’s Criminal Trial Courts Bench Book (“Bench Book”); and  

• the adoption of trial management strategies to facilitate the jury’s task, by - encouraging greater pre-trial management; - enhancing the participation of jurors in the trial process in particular by informing them, so far as is possible, of the issues and the law that they will be expected to apply to the case; - increasing the use of aids aimed at enhancing jurors’ understanding of the evidence and their ability to apply the directions that they are given; and - removing any existing impediments to the provision of various forms of assistance; 

• providing greater direction in relation to the process by which juries reason their decision through the use of special verdicts or question trails.

This approach accepts the desirability of the Bench Book including suggested directions that can be tailored to the individual case and that can evolve in response to appellate decisions.

The main concerns to be addressed are to ensure that:

• jury directions and the trial process provide appropriate help (in the context of a fair trial) to jurors to follow the evidence, to understand the issues, and to apply the directions to the evidence and issues; and 

• jury directions and the trial process do not add unnecessarily to the complexity and length of the trial.

Formulating jury directions

It is important to ensure that jury directions are comprehensible to a cross-section of the community, while accurately stating the relevant law. We consider that the Judicial Commission of NSW Criminal Trial Courts Bench Book Committee should continue to undertake a comprehensive review of the suggested directions contained in the Bench Book and, as part of this review, undertake empirical testing in relation to any proposed directions. (Recommendations 3.1 and 3.5)

We recommend that the Bench Book should provide guidance to judges in delivering directions by setting out:

•  an outline of the general principles that would assist in identifying when a jury direction is required and the content of that direction; (Recommendation 3.3) 

• a basic guide on the composition and delivery of directions, and on the construction and delivery of a summing up, including the use of plain English principles; (Recommendation 3.4(a)-(c)) 

• guidance on giving practical advice to jurors as to how they might go about their deliberations and on responding to jury questions; (Recommendation 3.4(d)-(e) 

• a checklist against which a proposed summing up could be compared for completeness.

The Bench Book should also include suggested directions in relation to offences arising under laws of the Commonwealth. (Recommendation 3.2)

Directing the jury on the criminal standard of proof

The standard of proof that must be reached before a person can be convicted of a criminal offence is proof “beyond reasonable doubt”. It is crucial that this direction is readily comprehensible and consistently applied.

However, empirical studies and anecdotal evidence from case law and other judicial commentary suggest that jurors may not so readily understand the meaning of “beyond reasonable doubt”. This position is exacerbated by the general prohibition, in Australia, against any explanation of the expression.

Other jurisdictions permit an explanation of “beyond reasonable doubt” and, in some cases, allow an alternative formulation of the direction. We conclude that there is a strong case for providing additional guidance to juries on the standard of proof and see merit in considering alternative formulations that may enhance jurors’ understanding of such a fundamental aspect of the criminal process.

However, it is not feasible to recommend the introduction of a legislative formulation that would apply in NSW alone. We therefore recommend that the NSW Government should ask the Standing Council on Law and Justice to consider developing uniform legislation on directing juries about the criminal standard of proof in criminal trials in all Australian jurisdictions. (Recommendation 4.1)

We also consider that a range of formulations should be considered, and subjected to empirical testing to ensure that the chosen formulation is more easily understood, consistently applied and does not result in a change in the standard required. (Recommendation 4.2)

Assisting jurors in areas requiring special knowledge

We propose ways of assisting juries where the assessment of particular types of evidence requires some form of special knowledge. These forms of assistance include the use of expert evidence and, the use of specific directions and the introduction of procedural reforms.

DNA evidence

DNA evidence presents problems in trials because of the impact it can have on juries, in particular because of its complexity and also because the expectations of many jurors who have been influenced by popular media depictions.

We propose three approaches to assist juries in dealing with DNA evidence:

• The development of a suggested direction in relation to DNA evidence, that can be adapted to each individual case and which notes the limitations of DNA evidence, identifies issues that may arise in the trial concerning, for example,  crime scene or laboratory contamination or innocent explanation, explains the implications of the statistical match probability, and emphasises that DNA evidence must be considered in the context of all of the other evidence in the case. (Recommendation 5.1)  

• The introduction of a practice note in relation to the pre-trial disclosure of DNA evidence in order to identify with precision the DNA issues that need to be left to the jury and to facilitate the presentation of the evidence, and ultimately the framing of a jury direction. (Recommendation 5.2)  

• The preparation of a standard audio-visual presentation that can be tendered in evidence to provide jurors with a basic understanding of DNA evidence so as to place them in a position to assess that evidence and any issue relating to it. (Recommendation 5.3)

Expert evidence and procedural reform

The current practice of leading the evidence for the prosecution and the defence in separate blocks may not be the best way to present conflicting expert evidence to the jury. In order to allow the jury more effectively to assess expert evidence and any issues that arise, we propose consideration be given to:  permitting, in appropriate cases, expert evidence called by the prosecution and defence to be given in a block;  permitting the trial judge to give directions as to the order in which such witnesses should be cross-examined; and  ensuring that expert witnesses are subject to the Expert Witness Code of Conduct. (Recommendation 5.4)

Child sexual abuse – expert evidence and directions

Jurors may bring misconceptions to a trial in relation to the capacity of children to give reliable evidence, and in relation to the way in which children might behave in response to sexual abuse. These misconceptions should be addressed by the NSW Government asking the Standing Council on Law and Justice to consider:  commissioning further research on the issue;  amending the uniform Evidence Acts to facilitate the reception of expert evidence concerning the misconceptions; and clarifying the extent to which a judicial direction could be given in relation to the misconceptions. (Recommendation 5.5(1))

We also recommend that the Bench Book include a suggested direction concerning those aspects of childhood development and response to sexual abuse that may be relevant for an understanding and assessment of the reliability of the evidence of child sexual abuse victims. (Recommendation 5.5(2))

Identification from still and video footage

Recognition or identification of suspects through the use of CCTV and similar technology, is likely to be relied on increasingly in the future. We, therefore, recommend that the Bench Book include a commentary on the considerations that arise in this context and a suggested direction to acquaint the jury with the possible difficulties that can arise in relation to the identification or recognition of people from still and video images. (Recommendation 5.6)

Indigenous witnesses

We have considered the directions currently given in a number of Australian jurisdictions in relation to various cultural and linguistic factors that can be relevant to an assessment of the evidence of Indigenous witnesses. In our view, the question of the content of directions that may be required in the NSW context should be the subject of further consideration by the Judicial Commission, involving consultation with NSW Indigenous and other communities and experts in the fields of culture and linguistics of relevance to those individual communities. (Paragraphs 5.123-5.133)

We have also considered an alternative approach of making express provision to allow expert evidence to be led in relation to linguistic or cultural differences either generally or in relation to a particular witness’s evidence. However, we consider that it would be appropriate for this to be the subject of a more specific consultation process and inquiry than we have been able to undertake. (Paragraphs 5.134- 5.137)

Assistance to the jury

We have considered a number of measures that could assist jurors in engaging more effectively in the trial process and in understanding and applying the directions they are given. Consistent with our general approach, our recommendations aim to encourage, rather than compel, the adoption of best practice for effective communication.

Juror orientation

We recognise the importance of good orientation practices for jurors, as a means of enhancing their understanding of the role that they are expected to perform. We support the continuing refinement of the information that is provided to jurors during the orientation process, and consider that the jury handbook, or similar written advice prepared by the Judicial Commission should be routinely provided to jurors, and be available for reference during the trial. (Recommendation 6.1)

Majority verdicts

In order to avoid the risk of the jury being confused by any references during the course of a trial to the potential availability of a majority verdict, we recommend that the Bench Book should include, in the preliminary directions for trials involving  offences against NSW law, a statement to the effect that the jury will be asked to return a unanimous verdict; and a majority verdict may be permitted in certain circumstances that will be explained if the occasion arises. (Recommendation 6.2)

Access to a transcript of the proceedings

Having access to the trial transcript can, in appropriate cases, help jurors accurately recall the evidence, counsels’ addresses, and the judge’s directions. We recommend that s 55C of the Jury Act 1977 (NSW) - which currently provides that a copy of all or part of the transcript of evidence at a trial may be supplied to the jury upon the jury’s request, if the judge considers it is appropriate and practicable to do so – should be amended to make it clear that copies can also be provided of the transcript of the addresses and summing up, and to delete any pre-condition that is dependent upon the request of the jury. (Recommendation 6.3)

In order to facilitate access to the transcript consideration should be given, at least in long and complex trials, to providing jurors with the means of accessing transcripts electronically, and in a searchable form. (Recommendation 6.4)

Access to pre-trial audio and video recordings and transcripts

The Bench Book should provide: guidance concerning the considerations that apply in relation to the prerecorded evidence of witnesses, and to the other audio and video recordings and relevant transcripts that may properly be admitted as exhibits; and suggested directions as to the ways in which the jury should approach each type of recording. (Recommendation 6.5)

Questions from the jury

The jury’s ability to ask the trial judge questions is an important way to help jurors understand the directions and the issues at trial.

In order to overcome the reluctance of some jurors to ask questions, the Bench Book should include:  more positive statements in suggested directions to encourage jurors to ask questions to clarify the evidence, the law, or the issues in the trial; and  guidance to courts as to the way in which questions can be encouraged and managed. (Recommendation 6.6(a) and (b))

The Jury Guide issued by the Office of the Sheriff, should also be amended to make it clear that jurors can ask questions during the trial in relation to the evidence, and not only after they have retired to consider the verdict. (Recommendation 6.6(b))

Judge’s preliminary address to the jury

We recommend that s 161 of the Criminal Procedure Act 1986 (NSW) should be amended to permit the judge to deliver a preliminary address to the jury before the closing addresses of counsel. (Recommendation 6.7) We envisage that this would not constitute a full address but might involve a summary of the elements of the offence(s) charged, of any defences and of any relevant legal issues. It would be given only in appropriate cases, after consultation with counsel, for example, where the judge has considered it desirable to provide, in advance of the addresses of counsel, written directions to the jury. Provision of written summaries of evidence and addresses

The Jury Act 1977 (NSW) currently permits the delivery of written directions of law but does not address the issue of whether the jury can be provided with a written summary of the evidence or addresses of counsel. We consider that the ability of the judge, in appropriate cases, to provide such components of the summing up to the jury in writing, should be clarified. (Recommendation 6.9)

Integrated summing up and question trails

A “question trail” is a visual representation of an integrated summing up which restructures the summing up into a series of steps that logically follow on from each other. Each step presents a question of fact, tailored to the legal concepts involved. Instead of an explicit explanation of the law, the legal issues are incorporated into the questions of fact that arise in the trial. They are usually presented as a diagram or flow chart to present the sequential list of questions.

Courts in Australia and overseas have increasingly supported their use. Research suggests that jurors find it easier to understand concrete, factual scenarios, which break down the complexity of the issues they must consider into smaller, more manageable segments, rather than more abstract discussions of legal concepts.

We support the use of integrated directions and written question trails, provided they are used where appropriate, after consultation with counsel and with an explanation to the jury as to their use. We recommend that the Criminal Procedure Act 1986 (NSW) be amended to authorise their use. (Recommendation 6.10)

The summing up – use of visual aids

Empirical evidence suggests that the use of visual aids in the presentation of information in the courtroom can improve jurors’ comprehension levels.

We consider that the use of such aids, for example presentation software, can potentially supplement the oral summing up both in relation to the directions and the summary of the issues and evidence. We recommend the amendment of the Jury Act 1977 (NSW) to confirm the permissible use of such aids in the summing up where they would be of assistance and the inclusion of good practice guidance in the Bench Book. (Recommendation 6.11)

Setting the scene for the jury – early issue identification

We have considered ways in which the issues in a criminal trial can be identified for the jury from the outset, through the use of pre-trial case management, opening addresses and preliminary directions from the judge.

Pre-trial disclosure and trial management

We support the use of pre-trial disclosure and trial management as a means of establishing the real issues in the trial from the outset. Such approaches can result in shorter and more streamlined trials, and reduce the burden on juries. They can also help in establishing a clear framework for counsel’s opening addresses and provide a basis from which the judge can give meaningful introductory directions. This will better enable the jury to follow the evidence and place it and the directions in their proper context. 

We recommend that the Trial Efficiency Working Group be reconvened to consider possible reforms to existing trial management procedures, particularly the ways in which they might be used on a more consistent and frequent basis. The Trial Efficiency Working Group should look at the legislation from the jury perspective, and consider whether further improvement could be made to facilitate jury decisionmaking, without affecting the fairness of the trial. (Recommendation 7.1)

A roadmap for the jury

The opening addresses of counsel, and the preliminary remarks of the trial judge which precede those addresses, each have a role to perform in informing the jury of the nature of the charge(s) and of the issues likely to arise.

We see merit in the jury being provided with written guidance, from the outset, in relation to the way that the proceedings are expected to unfold. This could include the provision of a roadmap or chronology or summary of some or all of the facts, a copy of the indictment, a statement of the elements of the offence(s) charged, a summary of the issues, and preliminary directions of law in relation to those elements and issues.

Accordingly we recommend that the Trial Efficiency Working group look at possible amendments to the Criminal Procedure Act 1986 (NSW) with a view to conferring a discretionary power in the court to require the prosecution to prepare (with defence agreement) the relevant documentation and to present outlines of issues and summaries of the elements of the offence and any relevant defences, together with any necessary preliminary directions. The provision of any of these documents should remain a matter for the discretion of the judge, following consultation with counsel, depending on the complexity and circumstances of the individual case. (Recommendation 7.2)

Formulating jury directions

The Judicial Commission of NSW Criminal Trial Courts Bench Book Committee should continue to undertake a comprehensive review of the suggested directions contained in the Criminal Trial Courts Bench Book. This review should ensure that the directions are comprehensible to a cross-section of the community, while accurately stating the relevant law.

The Criminal Trial Courts Bench Book should include suggested directions in relation to offences arising under laws of the Commonwealth.

The Criminal Trial Courts Bench Book should include an outline of the general principles that would assist judges to identify when a jury direction is required and the content of that direction. The outline should state that:

(a) jury directions should aim to inform jurors about as much of the law as they need to know to decide the issues of fact and reach a verdict;

(b) the judge should direct the jury whenever necessary to protect the fairness of the trial and to promote the public interest in seeing that justice is done;

(c) jury directions must be legally accurate and fairly state the case for the accused and prosecution;

(d) jury directions should be tailored to the particular circumstances of the case;

(e) the judge’s role is to hold the balance between the contending parties and not to enter the fray, for example, by advancing an argument in support of the prosecution case that was not put by the prosecution; and

(f) jury directions should be as clear, simple, brief and comprehensible as possible without compromising their legal accuracy.

The Criminal Trial Courts Bench Book should set out a basic guide and checklist for jury directions, including:

(a) general guidance on how directions should be composed and delivered;

(b) general guidance on how a summing up should be constructed and delivered;

(c) general guidance on the use of plain English principles, in particular on forms of legalese and sentence construction that can affect the comprehensibility of directions;

(d) a template for use by the judge in giving practical advice to jurors as to how they might go about their deliberations; (e) advice on how to respond to jury questions about directions; and

(f) a checklist against which a proposed summing up could be compared for completeness.

The Judicial Commission of NSW Criminal Trial Courts Bench Book Committee should undertake empirical testing and consultation with experts in plain English communication, in order to assess the comprehensibility of any proposed directions.

Directing the jury on the criminal standard of proof

(1) The NSW Government should ask the Standing Council on Law and Justice to consider developing uniform legislation on directing juries about the criminal standard of proof in all Australian jurisdictions.

(2) The options that should be considered and tested include directions that:

(a) the jury must be satisfied beyond reasonable doubt so that it is sure that the accused is guilty; or

(b) without reference to the phrase “beyond reasonable doubt”, the prosecution proves its case if the jury is sure that the accused is guilty; or

(c) use one or more of the following explanations of the expression “beyond reasonable doubt”: (i) proof beyond “reasonable doubt” involves a very high standard of proof that requires the jury to be sure that the accused is guilty; (ii) the standard of proof required is higher than a belief that the accused person is probably guilty or even that the accused person is very likely guilty, but does not require absolute certainty; (iii) “reasonable doubt” involves a reasonable uncertainty that remains about the accused’s guilt, after careful and impartial consideration of all of the evidence; (iv) an imaginary, or fanciful or frivolous doubt, or one based on sympathy or prejudice alone does not amount to a reasonable doubt.

Any recommendation for reformulation of the direction on the criminal standard of proof should be subject to empirical testing, for the purpose of ascertaining whether the proposed formulation:

(a) is more easily understood than the current direction on reasonable doubt;

(b) is consistently applied by a large number of people; and

(c) results in individuals applying a standard of proof that is higher, lower or the same as that applied under the current direction on reasonable doubt.

Assisting jurors in areas requiring special knowledge

The Criminal Trial Courts Bench Book should include a suggested jury direction relating to the use and significance of DNA evidence.

The courts should introduce a practice note in relation to the use of DNA evidence in criminal trials that would:

(a) mandate prosecution and defence disclosure of the intention to lead such evidence, to challenge its admissibility or to dispute its accuracy; and

(b) encourage pre-trial determination of the admissibility of such evidence and identification of any issues that might need to be left to a jury in relation to that evidence.

(1) The Forensic and Analytic Science Service, the Office of the Director of Public Prosecutions and the Public Defenders Office should prepare a standard audio-visual presentation that a party can tender in evidence to provide the jury with a basic understanding of DNA evidence so as to place it in a position to assess that evidence and any issue relating to it.

(2) A practice note should require the prosecution to notify the defence that it proposes to use such a presentation and should also require defence notification of any objection to its use in the particular case, with a view to determining the visual aid’s admissibility before trial.

(1) Consideration should be given to amending the Criminal Procedure Act 1986 (NSW) and to introducing a practice note to permit expert evidence called by the prosecution and defence to be given in a block, and to permit the trial judge to give directions as to the order in which such witnesses should be cross-examined.

(2) Consideration should be given to amending the District Court Rules 1973 (NSW) so as expressly to require experts called in criminal trials to be subject to the Expert Witness Code of Conduct.

(1) The NSW Government should ask the Standing Council on Law and Justice to consider the issue of the evidence of child sexual assault victims and their response to sexual abuse in the light of this report and the report of the NSW and Australian Law Reform Commissions on Family Violence, with a view to:

(a) commissioning further research on the issue of juror and public misconceptions concerning the reliability of the evidence of children and their response to sexual abuse; and

(b) amending the uniform Evidence Acts to facilitate the reception of expert evidence concerning the reliability of the evidence of children and their response to sexual abuse, and/or clarifying the extent to which a judicial direction could be given in this respect.

(2) The Criminal Trial Courts Bench Book should include a suggested direction concerning those aspects of childhood development and response to sexual abuse that may be relevant for an assessment of the reliability of the evidence of child sexual abuse victims.

The Criminal Trial Courts Bench Book should:

(a) set out the considerations that arise when an identification of an accused is sought to be made from images captured in relation to a crime scene or connected events;

(b) confirm that the issue for the jury is whether they are satisfied that the accused is the person shown in the images and not, where a witness gives evidence of an identification made from those images, whether that identification was correctly made; and

(c) include a suggested direction that would: (i) draw attention to the considerations that the jury needs to have in mind when asked to determine whether a person shown in the image is the accused; and (ii) deal both with the cases where evidence from a witness is called in support of the images, and the cases where the exercise is confined to a jury comparison alone.

Assistance to the jury

As a matter of course on empanelment, jurors should be provided with written information to assist their orientation either in the form of the Juror Handbook or an Advice to Jurors on Empanelment prepared by the Judicial Commission of NSW and this information should remain with them throughout the trial.

The Criminal Trial Courts Bench Book should include, in the preliminary directions to the jury in trials involving offences against NSW law, a statement to the effect that:

(a) the jury will be asked to return a unanimous verdict; and

(b) a majority verdict may be permitted in certain circumstances that will be explained if the occasion arises.

Section 55C of the Jury Act 1977 (NSW) should be amended to empower the trial judge to provide the jury with a copy of the transcript of proceedings, including the transcript of the evidence, counsel’s opening and closing addresses, and the summing up, either on the request of the jury or on the judge’s own motion, where it is considered that this would be of material assistance to the jury and would not interfere with the fairness of the trial.

Jurors should be provided with the means of accessing transcripts electronically and in a searchable form.

The Criminal Trial Courts Bench Book should provide: (a) guidance concerning the different considerations that apply in relation to the pre-recorded evidence of witnesses, and to the other audio and video recordings and relevant transcripts that may properly be admitted as exhibits; and (b) suggested directions as to the ways in which the jury should approach each type of recording.

(1) The suggested opening remarks, and the suggested directions for the summing up, in the Criminal Trial Courts Bench Book should include a more positive statement to encourage jurors to ask questions where they consider they need clarification about the evidence, the law, or the issues in the trial.

(2) The Criminal Trial Courts Bench Book should include a basic guide as to the way in which questions can be encouraged and managed.

(3) The Jury Guide issued by the Office of the Sheriff, should be amended to make it clear that jurors can ask questions during the trial in relation to the evidence and not only after they have retired to consider the verdict.

Section 161 of the Criminal Procedure Act 1986 (NSW) should be amended to permit the judge to deliver a preliminary address to the jury before the closing addresses of counsel.

The Criminal Trial Courts Bench Book should:

(a) emphasise the need for judges: (i) to ensure that oral and written directions are consistent; and (ii) to invite counsel to identify any potential deficiency or inconsistency in the directions that are given; and

(b) include a suggested direction inviting jurors, if they perceive any inconsistency or have a difficulty in understanding the oral or written directions, to seek clarification.

Section 55B of the Jury Act 1977 (NSW) should be amended to allow written summaries of the evidence and of the addresses of counsel to be given to the jury in cases where the judge considers that such written summaries would be likely to assist the jury in its deliberations.

(1) The Criminal Procedure Act 1986 (NSW) should be amended to authorise the use of question trails.

(2) The Criminal Trial Courts Bench Book should include a suggested direction about the use of question trails along with some possible examples. The model direction should:

(a) emphasise that the question trail is a guide only and is a way of working through the jury’s deliberations;

(b) make it clear that jurors do not have to address the issues in the same sequence as that set out in the question trail;

(c) explain to jurors that the question trail is intended for their individual use in coming to the jury’s verdict; and

(d) direct the jury that if, after considering all of the questions they are unanimous (or after a Black direction, agree by a majority) that one element of the offence charged has not been proved, they should return a verdict of not guilty, even if they do not agree on which particular element that is.

(3) The Criminal Trial Courts Bench Book should note that it is good practice for the judge to consult counsel on the terms of the question trail before presenting it to the jury.

Section 55B of the Jury Act 1977 (NSW) should make it clear that a judge has the power to use visual aids as part of the judge’s directions to the jury where the judge considers that this would be likely to assist the jury in its deliberations.

Setting the scene for the jury – early issue identification

(1) The Trial Efficiency Working Group should be reconvened to consider further reform of trial management in criminal proceedings on indictment, including revisiting the use of case conferencing. (2) The terms of reference of the Trial Efficiency Working Group should specifically require it to consider the ways in which improved criminal trial management could enhance jury decision-making.

The Trial Efficiency Working Group, in looking at possible amendments to the Criminal Procedure Act 1986 (NSW), should consider giving a discretionary power to the court:

(a) to require the prosecution to prepare (and to seek defence agreement to) a draft outline of the issues in the trial that would set out any or all of the following: (i) the elements of the offence or offences charged; (ii) the elements that are and are not in dispute; (iii) a summary of the prosecution case; and (iv) a reference to the defences that the defence intends to raise, based on the notice of the prosecution case and defence response required under s 137 and s 138 of the Criminal Procedure Act 1986 (NSW), and on any notice of pre-trial disclosure  required by an order made under s 141(1) of the Criminal Procedure Act 1986 (NSW).

(b) to give to the jury, at any time including at the commencement of the trial (either before or after the opening addresses): (i) a copy of the outline of issues, if one has been required; or (ii) a summary of the elements of the offence(s) charged and any relevant defences, together with preliminary directions of law in relation to the elements of the offence(s) and defence(s) so identified;

(c) to require the prosecution and the defence to identify, in the course of a pre-trial conference, any warnings or limitations on use that they consider the judge should give the jury in relation to the evidence that is likely to be admitted;

(d) to require the prosecution and the defence to provide to the court before the closing addresses, a summary of the directions of law that each consider should be given to the jury in relation to the elements of the offence(s) charged and of any defence(s) raised.