Swinburne has helped to make the job of juries easier – reducing retrials, costs and victim trauma.

Understanding a judge’s instructions can be harder than it looks in the movies.

Trial by jury is fundamental to the Australian justice system – juries made up of members of the public make decisions about their fellow citizens in criminal trials in all Australian states and territories. However, the effectiveness of juries relies on how well they understand the judge’s instructions to them.

Between 2010 and 2011 in Victoria, 136 retrials – or 10% of appeals – were ordered because of errors made by the jury based on their understanding of the judge’s directions. These appeals and retrials are very expensive and add to the trauma experienced by victims of crime and their families, particularly in cases involving sexual offences.

We explored the problem

Research at the Swinburne Centre for Forensic Behavioural Science has explored jurors’ abilities to understand and apply legal instructions, to find out how to better instruct juries. This research showed that different approaches to directing the jury significantly improves their capacity to apply the judge’s instructions. This helps to ensure their verdicts are delivered in accordance with the law.

This understanding has contributed to significant law reform. The research was used in reports on jury instructions and jury decision-making prepared by the law reform commissions in:

  • Queensland (2009)
  • Victoria (2009)
  • New South Wales (2012)

culminating in the creation of the Victorian Jury Directions Act 2013. The Act changes the way that judges can direct the jury.

The Act has also reduced the time it takes judges to direct the jury. For example, 10 years ago, for a 20-day trial in Victoria, judges would spend an average of six hours directing the jury before they considered their verdict. Now, the average time judges spend directing the jury has been reduced to just over two hours – a 288% reduction.

Importantly, the research and the Jury Directions Act have also reduced the number of appeals based on juries’ incorrect understanding of judges’ instructions. For example, it is now rare that the Victorian Court of Appeal orders a retrial based on jury direction-related grounds of appeal – as opposed to the large number of retrials that occurred previously. This has resulted in significant cost savings and reduced strain on victims.

  • "… the work of the Professor [James Ogloff] was invaluable, indeed vital, to the initiation and success of law reform relating to juries which was truly innovative and provided a national exemplar for all other states and territories …

    Indeed the greatest contribution made by the Professor and others has been the significant reduction in appeals in jury trials … I feel I cannot do sufficient justice to the Ogloff work in a mere testimonial, save to say the administration of criminal justice in Victoria is the better for that contribution.”

    The Honourable Marilyn Warren AC , Former Chief Justice of Victoria

The research

The research was conducted at the Centre for Forensic Behavioural Science, which moved from Monash University to Swinburne in January 2014. Professor James Ogloff AM and Dr Ben Spivak from the Centre for Forensic Behavioural Science, and Professor Jonathan Clough from the Faculty of Law at Monash University, worked with the Supreme Court of Victoria and the Department of Justice and Regulation to investigate jury decision-making. Their studies included:

  • a survey of almost 200 criminal trial judges from Australia and New Zealand about their practices with juries
  • interviews with 50 trial court judges
  • empirical research investigating methods of jury direction with more than 1000 adults called for jury duty.

The work of the centre draws on psychological, criminological and legal research approaches. Swinburne is the only Australian university to offer an undergraduate course in psychology and forensic science. With the establishment of the centre, course offerings extended to the Doctor of Psychology (Clinical and Forensic Psychology), the Graduate Diploma in Forensic Psychology, the graduate program in forensic behavioural science and a PhD program.

Project lead: Professor James Ogloff

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