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1.1-c1-s1
1.1 Introductory Remarks
# 1.1 Introductory Remarks 1. A number of studies into the jury system have suggested that it is highly beneficial for the judge to provide the jury with information at the beginning of a trial, to assist them in performing their role.[^1] 2. It is suggested that "the process of being empanelled as a member of the ...
[^1]: See, e.g. Parliament of Victoria Law Reform Committee, *Jury Service in Victoria*, Final Report (1991); New South Wales Law Reform Commission, [*Criminal Procedure: The Jury in a Criminal Trial*](../customXml/item1.xml) (Report No 48, March 1986); New Zealand Law Commission, [*Juries in Criminal Trials*](../custo...
1.1-c1-s2
1.1 Introductory Remarks
4. While the Juries Commissioner provides some of this information to jurors prior to the trial, it has been suggested that it is also advantageous for the judge to address these matters when jurors are beginning to focus more clearly on their jury service.[^3] 5. Studies have shown that jurors who are given such info...
[^1]: See, e.g. Parliament of Victoria Law Reform Committee, *Jury Service in Victoria*, Final Report (1991); New South Wales Law Reform Commission, [*Criminal Procedure: The Jury in a Criminal Trial*](../customXml/item1.xml) (Report No 48, March 1986); New Zealand Law Commission, [*Juries in Criminal Trials*](../custo...
1.2-c1-s1
1.2 Jury Empanelment
# 1.2 Jury Empanelment Warning: **Part 6 of the *****Juries Act 2000***** (Vic) establishes a set of steps that must be followed when ****empanelling**** a jury. Failure to follow the applicable steps will lead to the jury being unlawfully ****constituted, and**** will result in the trial being viewed as a nullity (**...
[^1]: JH Phillips, ‘Can the Jury Cope?’ (1987) 61(9) *Australian Law Journal* 479.
1.2-c2-s1
1.2 Excusing Jurors
## Excusing Jurors
[^2]: Ibid.
1.2-c2-s2
1.2 Excusing Jurors
1. After providing the jury panel with this information, the court must ask whether any people on the panel seek to be excused from jury service on the trial (*Juries Act 2000 *s 32(2)). The court may excuse a potential juror if it is satisfied that the person: 1. Will not be able to consider the case impartially; or ...
[^2]: Ibid.
1.2-c2-s3
1.2 Excusing Jurors
7. There is no absolute right of an accused person to be told the ground on which a prospective member of the jury applies to be excused from serving or, if the application is refused, the ground of the refusal (*R v Lewis *(2000) 1 VR 290). 8. There is also no requirement for a judge to hear and determine application...
[^2]: Ibid.
1.2-c2-s4
1.2 Excusing Jurors
Last updated: 11 July 2018
[^2]: Ibid.
1.2.1-c1-s1
1.2.1 Charge: Jury Empanelment
# 1.2.1 Charge: Jury Empanelment Members of the jury panel, in a moment I am going to give you a final opportunity to apply to be excused from sitting on the jury for this trial. Please listen carefully to what I am about to say, so that you will know whether you should apply. ## Possible prejudicial knowledge It ...
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1.2.1-c2-s1
1.2.1 Duration of the trial
## Duration of the trial This trial is expected to last until [*insert anticipated end date*]. During the trial, you will need to attend court [*specify sitting days and hours. Advise of any anticipated breaks in the trial*]. The Juries Commissioner has already given you several opportunities to apply to defer jury se...
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1.2.1-c3-s1
1.2.1 Other Reasons
## Other Reasons Finally, there may also be some personal reason why you feel you cannot be a juror in this case. The law recognises that a person can be excused from being on a jury if they will be unable to consider the case impartially or if they are unable to serve for any other reason. Consider whether you will b...
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1.2.1-c4-s1
1.2.1 Applying to be excused
## Applying to be excused In a moment my associate will call each of your [numbers/names], and ask you to answer "present". If you want to apply to be excused, you should answer "excuse". Once everybody’s [name/number] has been called, I will hear the applications to be excused. If your reason for wanting to be excuse...
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1.3-c1-s1
1.3 Selecting a Foreperson
# 1.3 Selecting a Foreperson 1. It is necessary to choose a foreperson to communicate with the judge and to announce the verdict. Other than serving these roles, the foreperson has no higher status or different function than the other jurors (*Ng v R* (2003) 217 CLR 521 (Kirby J)). 2. Depending on the nature of the...
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1.3.1-c1-s1
1.3.1 Charge: Selecting a Foreperson
# 1.3.1 Charge: Selecting a Foreperson My associate is about to ask you to select a foreperson. The foreperson will speak on your behalf. He or she will be the person who asks me any questions you may have, and who tells me anything else that you want to say. At the end of the trial, it is the foreperson who will del...
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1.4-c1-s1
1.4 The Role of Judge and Jury
# 1.4 The Role of Judge and Jury ## Role of the Jury 1. The role of the jury is to determine the facts, apply relevant principles of law to those facts, and return a verdict (*R v Dao* (2005) 156 A Crim R 459; *R v Nguyen *[2006] VSCA 158; *Azzopardi v R* (2001) 205 CLR 50). 2. This requires the jury to: - De...
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1.4-c2-s1
1.4 Role of the Judge
## Role of the Judge 1. The judge must instruct the jury about so much of the law as they need to know in deciding the real issue or issues in the case (*Azzopardi v R* (2001) 205 CLR 50; *RPS v R *(2000) 199 CLR 620). 2. This requires the judge to: 1. Instruct the jury about the elements of the offences and the o...
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1.4-c2-s2
1.4 Role of the Judge
- Determining the admissibility of evidence; - Determining whether there is evidence which, if it is believed, could establish the facts in issue (*Stingel v The Queen *(1990) 171 CLR 312); - Determining whether inferences can legitimately be drawn from the evidence (*Metropolitan Railway Co v Jackson *(1877) 3 App C...
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1.4-c2-s3
1.4 Role of the Judge
7. The judge has power to exclude the jury from the courtroom while hearing arguments on the admissibility of evidence or determining other applications. This power may be exercised whether or not the accused consents (*R v Hendry *(1989) 88 Cr App R 187; *Demirok v R* (1977) 137 CLR 20; *Peacock v R *(1911) 13 CLR 619...
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1.4-c3-s1
1.4 Need for a Direction
## Need for a Direction 1. The judge must always direct the jury about the roles of the judge and jury (*RPS v R *(2000) 199 CLR 620; *R v Sinclair *(1989) 44 A Crim R 449). 2. This direction should usually be given at the commencement of the trial, as well as after the completion of all the evidence and the presen...
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1.4.1-c1-s1
1.4.1 Charge: The Role of Judge and Jury
# 1.4.1 Charge: The Role of Judge and Jury ## Introduction Serving on a jury may be a completely new experience for some, if not all, of you. To help you perform that role properly, I will now describe your duties as jurors and the procedures that we will follow during the trial. I will also explain to you some of ...
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1.4.1-c2-s1
1.4.1 Roles of Judge, Jury and Counsel
## Roles of Judge, Jury and Counsel Members of the jury, you represent one of the most important institutions in our community – the institution of trial by jury. Our legal system guarantees any individual charged with a criminal offence the right to have the case presented against him or her determined by twelve inde...
[^1]: This charge is drafted for use in cases involving one accused. If the case involves multiple accused, it will need to be modified accordingly. [^2]: This sentence will need to be modified if the accused is unrepresented. [^3]: This section will need to be modified if the accused is unrepresented.
1.4.1-c2-s2
1.4.1 Roles of Judge, Jury and Counsel
## Role of the Judge It is my role, as the judge, to ensure that this trial is fair and conducted in accordance with the law. I will also explain to you the principles of law that you must apply to make your decision. You must accept and follow all of those directions. I want to emphasise that it is not my responsibi...
[^1]: This charge is drafted for use in cases involving one accused. If the case involves multiple accused, it will need to be modified accordingly. [^2]: This sentence will need to be modified if the accused is unrepresented. [^3]: This section will need to be modified if the accused is unrepresented.
1.5-c1-s1
1.5 Decide Solely on the Evidence
# 1.5 Decide Solely on the Evidence 1. The jury must be directed to base their verdict solely on the evidence given before them in the trial. In reaching their verdict they must disregard any knowledge they may otherwise have acquired about the case (*Glennon v R *(1992) 173 CLR 592; *Murphy v R* (1989) 167 CLR 94; ...
[^1]: If the accused is self–represented, the jury should be told that his or her addresses and arguments are also not evidence. [^2]: Jurors may communicate with court officials about administrative or technical matters (such as setting up equipment) (*Dempster* (1980) 71 Cr App R 302; *R v Barnowski* [1969] SASR 386)...
1.5-c1-s2
1.5 Decide Solely on the Evidence
4. The principle that questions asked of witnesses are not evidence must be approached with caution when applied to puttage by defence counsel to prosecution witnesses. It may unfairly undermine the defence case to say that if the witness rejected the puttage then there is no evidence to support that proposition. Such ...
[^1]: If the accused is self–represented, the jury should be told that his or her addresses and arguments are also not evidence. [^2]: Jurors may communicate with court officials about administrative or technical matters (such as setting up equipment) (*Dempster* (1980) 71 Cr App R 302; *R v Barnowski* [1969] SASR 386)...
1.5-c1-s3
1.5 Decide Solely on the Evidence
8. The judge should also tell the jury to disregard any feelings of prejudice or sympathy they may have in relation to the accused (*Glennon v R *(1992) 173 CLR 592).
[^1]: If the accused is self–represented, the jury should be told that his or her addresses and arguments are also not evidence. [^2]: Jurors may communicate with court officials about administrative or technical matters (such as setting up equipment) (*Dempster* (1980) 71 Cr App R 302; *R v Barnowski* [1969] SASR 386)...
1.5-c1-s4
1.5 Decide Solely on the Evidence
## External Communications 9. The jury should be told to avoid speaking to any people in the precincts of the court (*R v Skaf* (2004) 60 NSWLR 86). 10. The jury should also be told not to discuss the case with anyone other than their fellow jurors, and to do that only in the privacy of the jury room (*R v Skaf* (2...
[^1]: If the accused is self–represented, the jury should be told that his or her addresses and arguments are also not evidence. [^2]: Jurors may communicate with court officials about administrative or technical matters (such as setting up equipment) (*Dempster* (1980) 71 Cr App R 302; *R v Barnowski* [1969] SASR 386)...
1.5-c2-s1
1.5 Juror Enquiries
## Juror Enquiries 1. It is an offence for a juror to "make an enquiry" for the purpose of obtaining information about a party to the trial or any matter relevant to the trial, except in the proper exercise of his or her functions as a juror (*Juries Act 2000 *(Vic) s 78A(1)). 2. "Making an enquiry" is defined to i...
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1.5-c3-s1
1.5 Independent Research
## Independent Research 1. It is highly desirable for judges routinely to instruct the jury not to undertake any independent research (by internet or otherwise) concerning: - The parties to the trial; - Any other matter relevant to the trial; or - The law applicable to the case (*Martin v R* (2010) 28 VR 579; *...
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1.5-c4-s1
1.5 Private Views and Experiments
## Private Views and Experiments 1. The jury should be told they must not, either individually or as a group: - Make a private visit to the scene of the alleged offence; - Attempt any private experiment concerning any aspect of the case; or - Cause or request anyone else to do one of these things (*R v Skaf* (2...
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1.5-c5-s1
1.5 Jury Room Experiments
## Jury Room Experiments 1. As material objects produced in evidence and admitted as exhibits are part of the evidence in a trial, the jury are entitled to examine them and have regard to them in reaching their verdict. They may touch and handle them, and may engage in a limited amount of simple experimentation with...
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1.5-c6-s1
1.5 Irrelevance of Sentence
## Irrelevance of Sentence 1. The judge should not tell the jury what the consequences of their verdict will be, unless required to do so by statute. This is because the question of sentence is the exclusive province of the trial judge, and is not relevant to the jury’s determination (*Lucas v R* (1970) 120 CLR 171;...
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1.5-c7-s1
1.5 Pre-trial Publicity
## Pre-trial Publicity
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1.5-c7-s2
1.5 Pre-trial Publicity
1. Where there has been pre-trial publicity about a case, or the people involved in a case, the judge has a responsibility to avoid unfairness to either party (*Glennon v R *(1992) 173 CLR 592; *R v Vjestica *[2008] VSCA 47; *R v Dupas* (2009) 28 VR 380). 2. In most cases, it will be possible to overcome any potential...
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1.5-c7-s3
1.5 Pre-trial Publicity
5. If a judge determines that a warning alone will be insufficient to counter the effects of pre-trial publicity, they may conduct the trial in whatever manner is appropriate to counter those effects, within the ordinary procedural constraints. This includes adjourning the trial until the influence of prejudicial publi...
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1.5-c8-s1
1.5 Notifying the Judge About Irregularities
## Notifying the Judge About Irregularities 1. The jury should be directed that if it becomes apparent to any of them, in the course of the trial, that another juror has made an independent inquiry in relation to any aspect of the case, that should be brought immediately to the attention of the judge. This includes ...
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1.5.1-c1-s1
1.5.1 – Charge: Decide Solely on the Evidence[^1]
# 1.5.1 – Charge: Decide Solely on the Evidence[^1]
[^1]: This document was last updated on 17 May 2019. [^2]: If the accused is unrepresented, the jury should be told that what s/he says in his/her addresses, or when questioning witnesses, is also not evidence.
1.5.1-c1-s2
1.5.1 – Charge: Decide Solely on the Evidence[^1]
## Introduction: What is Evidence? I have told you that it is your task to determine the facts in this case, and that you should do this by considering all of the evidence presented in the courtroom. I now need to tell you what is and what is not evidence. The **first** type of evidence is what the witnesses say. It...
[^1]: This document was last updated on 17 May 2019. [^2]: If the accused is unrepresented, the jury should be told that what s/he says in his/her addresses, or when questioning witnesses, is also not evidence.
1.5.1-c1-s3
1.5.1 – Charge: Decide Solely on the Evidence[^1]
The **third** type of evidence is what is called an “admission”. Admissions are facts that the prosecution and defence agree about. When that happens, no other evidence is required – the admissions are treated as established facts. I will tell you about any admissions that have been made in this case when relevant. No...
[^1]: This document was last updated on 17 May 2019. [^2]: If the accused is unrepresented, the jury should be told that what s/he says in his/her addresses, or when questioning witnesses, is also not evidence.
1.5.1-c2-s1
1.5.1 No Sympathy or Prejudice
## No Sympathy or Prejudice It is your duty to decide this case **only** on the basis of that evidence. You must ignore all other considerations. In particular, you should dismiss any feelings of sympathy or prejudice you may have, whether it is sympathy for, or prejudice against, the accused or anyone else. No such ...
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1.5.1-c3-s1
1.5.1 No Outside Information
## No Outside Information When you retire to consider your verdict, you will have heard or received in court, or otherwise under my supervision, all the information that you need to make your decision. Unless I tell you otherwise, you must not base your decision on any information you obtain outside this courtroom. F...
[^3]: If there has been significant pre-trial publicity about the case or the parties involved, it may be necessary to give a more detailed warning. See 1.5 Decide Solely on the Evidence for further information.
1.5.1-c3-s2
1.5.1 No Outside Information
Third, acting on outside information would be false to the oath or affirmation you took as jurors to give a true verdict according to the evidence. You would cease being a juror, that is, a judge of the facts, and have instead taken on the role of an investigator. If one of your fellow jurors breaches these instructio...
[^3]: If there has been significant pre-trial publicity about the case or the parties involved, it may be necessary to give a more detailed warning. See 1.5 Decide Solely on the Evidence for further information.
1.5.1-c4-s1
1.5.1 Consequences of breaching instructions
## Consequences of breaching instructions You may have a question about what could happen if you acted on outside information or conducted your own research. The immediate outcome is that the jury may need to be discharged and the trial may have to start again. This would cause stress and expense to the witnesses, th...
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1.5.1-c5-s1
1.5.1 Warnings About Discussing the Case
## Warnings About Discussing the Case As judges of the facts, it is also important that you are careful to avoid any situations that could interfere with your ability to be impartial, or that could make you appear to be biased towards one side or the other. You must therefore be careful not to get into conversation w...
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1.5.1-c5-s2
1.5.1 Warnings About Discussing the Case
At the end of the trial, you will have access to a Juror Support Program. A Juries Victoria staff member will give you more information about that in due course. Some of you might have a regular doctor or psychologist you speak to about distressing experiences. But as a juror there are limits on what you can say durin...
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1.5.1-c6-s1
1.5.1 Consequences of breaching instructions revisited
## Consequences of breaching instructions revisited You have already heard what can happen when jurors disregard the instruction not to conduct their own research. Similar consequences can follow if you discuss the case with others. You must therefore also let me know if someone tries to discuss the case with you, or...
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1.6-c1-s1
1.6 Assessing Witnesses
# 1.6 Assessing Witnesses
[^1]: See Common Law Intoxication for information about other directions that may be necessary in cases involving intoxication.
1.6-c1-s2
1.6 Assessing Witnesses
1. It is for the jury, who have seen and heard the witnesses, to decide whether they accept their evidence. They are free to accept or reject the whole of a witness’s evidence, or to accept some of the evidence and reject the rest (*Cubillo v Commonwealth* (2000) 174 ALR 97; *Flint v Lowe* (1995) 22 MVR 1; *S v M* (198...
[^1]: See Common Law Intoxication for information about other directions that may be necessary in cases involving intoxication.
1.6-c1-s3
1.6 Assessing Witnesses
5. The judge, prosecutor or defence counsel must not suggest in any way to the jury that an interest in the outcome of the trial is a factor to take into account in assessing the evidence of witnesses generally (*Jury Directions Act 2015* s 44H, as amended in 2017). 6. This is because the jury will likely conclude tha...
[^1]: See Common Law Intoxication for information about other directions that may be necessary in cases involving intoxication.
1.6-c1-s4
1.6 Assessing Witnesses
Last updated: 2 October 2017
[^1]: See Common Law Intoxication for information about other directions that may be necessary in cases involving intoxication.
1.6.1-c1-s1
1.6.1 Charge: Assessing Witnesses
# 1.6.1 Charge: Assessing Witnesses In order to decide what the facts are in this case, you will need to assess the witnesses who give evidence. It is up to you to decide how much or how little of the testimony of any witness you will believe or rely on. You may believe all, some or none of a witness’s evidence. It is...
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1.7-c1-s1
1.7 Onus and Standard of Proof
# 1.7 Onus and Standard of Proof ## Presumption of Innocence 1. At common law, a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law (*Woolmington** v DPP* [1935] AC 462; *Howe v R* (1980) 32 ALR 478). 2. The presumption is not that the accused is not...
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1.7-c2-s1
1.7 Onus of Proof
## Onus of Proof ## Offences 1. Except for limited statutory exceptions, in criminal trials the onus of proving the accused’s guilt always lies on the prosecution. Accused people do not need to prove their innocence (*Woolmington** v DPP* [1935] AC 462; *He Kaw Teh v R* (1985) 157 CLR 523; *Chugg v Pacific Dunlop...
[^1]: Provocation is no longer a partial defence to murder (*Crimes Act 1958* s 3B). This provision applies to offences committed on or after 23 November 2005.
1.7-c2-s2
1.7 Onus of Proof
- Accidental (*Woolmington** v DPP* [1935] AC 462; *Griffiths v R* (1994) 125 ALR 545); - Involuntary as a result of a state of sane automatism (*Bratty v AG for Northern Ireland* [1963] AC 386; *Ryan v R* (1967) 121 CLR 205;* R v Falconer* (1990) 171 CLR 30); - A result of duress (*Crimes Act 1958* s 322O; *R v Bone...
[^1]: Provocation is no longer a partial defence to murder (*Crimes Act 1958* s 3B). This provision applies to offences committed on or after 23 November 2005.
1.7-c2-s3
1.7 Onus of Proof
5. The prosecution only needs to disprove a defence if there is evidence, or other relevant material, which gives rise to that defence (*R v Lobell* [1957] 1 QB 547; *Bullard v R* [1957] AC 635; *R v Howe* (1958) 100 CLR 448; *Bratty v AG for Northern Ireland* [1963] AC 386;* Spautz v Williams* [1983] 2 NSWLR 506). 6....
[^1]: Provocation is no longer a partial defence to murder (*Crimes Act 1958* s 3B). This provision applies to offences committed on or after 23 November 2005.
1.7-c2-s4
1.7 Onus of Proof
- If the qualification is* part of the definition of the grounds of liability* (known as a “proviso”), the onus of proof will be on the prosecution to prove that the proviso does not apply. - If the qualification is a *new matter*, which does not form part of the primary grounds of liability, but is a special exceptio...
[^1]: Provocation is no longer a partial defence to murder (*Crimes Act 1958* s 3B). This provision applies to offences committed on or after 23 November 2005.
1.7-c2-s5
1.7 Onus of Proof
11. However, while the form of the language may provide assistance, ultimately the question is to be determined upon considerations of substance rather than form (*Dowling v Bowie* (1952) 86 CLR 136; *Chugg v Pacific Dunlop Ltd* (1990) 170 CLR 249). 12. The question is whether it is possible to discern a legislative i...
[^1]: Provocation is no longer a partial defence to murder (*Crimes Act 1958* s 3B). This provision applies to offences committed on or after 23 November 2005.
1.7-c3-s1
1.7 Standard of Proof
## Standard of Proof 1. If the onus of proof is on the prosecution, the court is not to find the prosecution case proved unless it is satisfied that it has been proved beyond reasonable doubt (*Evidence Act 2008* s 141(1)). 2. If the onus of proof is on the accused, the court is to find the case of an accused prove...
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1.7-c3-s2
1.7 Standard of Proof
6. The prosecution must prove all of the elements of the offence beyond reasonable doubt (*Thomas v R* (1960) 102 CLR 584;* La Fontaine v R* (1976) 136 CLR 62; *Van Leeuwen v R* (1981) 55 ALJR 726; *Chamberlain v R* (No 2) (1984) 153 CLR 521; *Hoch v R* (1988) 165 CLR 292; *R v Falconer *(1990) 171 CLR 30). 7. The pro...
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1.7-c3-s3
1.7 Standard of Proof
11. In some cases, there will be critical evidence that would allow a jury to decide the case on that evidence alone. Types of evidence that might have this character include confessions, identification evidence and DNA evidence. In such cases, it may be appropriate for the judge to identify clearly for the jury the im...
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1.7-c3-s4
1.7 Standard of Proof
## Meaning of “Beyond Reasonable Doubt”
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1.7-c3-s5
1.7 Standard of Proof
14. The following paragraphs summarise common law authorities on the meaning of beyond reasonable doubt. While the primary explanation of the meaning of beyond reasonable doubt is now found in *Jury Directions Act 2015 *s 64 (see Charging the Jury, below), the following principles may be relevant if the jury asks furth...
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1.7-c3-s6
1.7 Standard of Proof
19. Although in England the term “beyond reasonable doubt” is seen to be synonymous with the term “sure” (see, e.g. *R v Hepworth and Fearnley* [1955] 2 QB 600; *R v **Onufrejczyk* [1955] 1 QB 388), this is not the case in Australia (*Thomas v R* (1960) 102 CLR 584; *Dawson v R* (1961) 106 CLR 1;* R v Punj* [2002] QCA ...
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1.7-c4-s1
1.7 Charging the Jury
## Charging the Jury ## Requirements
[^2]: Although judges may not need to give this direction, in *Martin v R* (2010) 28 VR 579; [2010] VSCA 153 it was held that until the precise scope of *Juries Act 2000* s 78 has been determined, it would be “wise” to do so. See 1.5 Decide Solely on the Evidence for further information concerning *Juries Act 2000* (Vi...
1.7-c4-s2
1.7 Charging the Jury
1. In all criminal cases the judge is required to direct the jury, in clear language, that the onus of proof is on the prosecution (*Thomas v R* (1960) 102 CLR 584; *La Fontaine v R* (1976) 136 CLR 72; *Bartho v R* (1978) 19 ALR 418; *Van Leeuwen v R* (1981) 36 ALR 591; *R v **Schonewille* [1998] 2 VR 625). 2. The jud...
[^2]: Although judges may not need to give this direction, in *Martin v R* (2010) 28 VR 579; [2010] VSCA 153 it was held that until the precise scope of *Juries Act 2000* s 78 has been determined, it would be “wise” to do so. See 1.5 Decide Solely on the Evidence for further information concerning *Juries Act 2000* (Vi...
1.7-c4-s3
1.7 Charging the Jury
6. The judge must give the jury an explanation of the phrase "beyond reasonable doubt" unless there are good reasons for not doing so. This explanation must be given before any evidence is adduced in the trial unless there are good reasons for not doing so (*Jury Directions Act 2015* s 63(1), (2)). The judge must have ...
[^2]: Although judges may not need to give this direction, in *Martin v R* (2010) 28 VR 579; [2010] VSCA 153 it was held that until the precise scope of *Juries Act 2000* s 78 has been determined, it would be “wise” to do so. See 1.5 Decide Solely on the Evidence for further information concerning *Juries Act 2000* (Vi...
1.7-c4-s4
1.7 Charging the Jury
## Explaining beyond reasonable doubt 10. When explaining the meaning of beyond reasonable doubt, the judge may: - Refer to the presumption of innocence and the prosecution's obligation to prove that the accused is guilty (J*ury Directions Act 2015* s 64(1)(a); see also *R v ALP* [2002] VSCA 210; *R v Henderson* ...
[^2]: Although judges may not need to give this direction, in *Martin v R* (2010) 28 VR 579; [2010] VSCA 153 it was held that until the precise scope of *Juries Act 2000* s 78 has been determined, it would be “wise” to do so. See 1.5 Decide Solely on the Evidence for further information concerning *Juries Act 2000* (Vi...
1.7-c4-s5
1.7 Charging the Jury
11. *Jury Directions Act 2015* ss 63 and 64 reverse the common law principle which restricted a judge's ability to explain the meaning of beyond reasonable doubt. 12. These explanations are capable of applying in a trial for a Commonwealth offence. They are picked up by *Judiciary Act 1903 *s 68 and are not inconsiste...
[^2]: Although judges may not need to give this direction, in *Martin v R* (2010) 28 VR 579; [2010] VSCA 153 it was held that until the precise scope of *Juries Act 2000* s 78 has been determined, it would be “wise” to do so. See 1.5 Decide Solely on the Evidence for further information concerning *Juries Act 2000* (Vi...
1.7-c4-s6
1.7 Charging the Jury
- It is for them to decide if the accused has proved the matter; - The proof required is less than that required of the prosecution to prove the accused’s guilt (i.e. proof beyond a reasonable doubt); and - The onus may be discharged by evidence which satisfies them, on the balance of probabilities, of that which the...
[^2]: Although judges may not need to give this direction, in *Martin v R* (2010) 28 VR 579; [2010] VSCA 153 it was held that until the precise scope of *Juries Act 2000* s 78 has been determined, it would be “wise” to do so. See 1.5 Decide Solely on the Evidence for further information concerning *Juries Act 2000* (Vi...
1.7-c4-s7
1.7 Charging the Jury
18. The phrase “beyond reasonable doubt” should not be equated with terms such as “sure” or “certain”. While this is permissible in England (see, e.g. *R v Hepworth and Fearnley* [1955] 2 QB 600; *R v **Onufrejczyk* [1955] 1 QB 388), and was done in early Australian cases (see, e.g. *Brown v R* (1913) 17 CLR 570; *Hick...
[^2]: Although judges may not need to give this direction, in *Martin v R* (2010) 28 VR 579; [2010] VSCA 153 it was held that until the precise scope of *Juries Act 2000* s 78 has been determined, it would be “wise” to do so. See 1.5 Decide Solely on the Evidence for further information concerning *Juries Act 2000* (Vi...
1.7-c4-s8
1.7 Charging the Jury
22. The jury’s function is not to determine the guilt or innocence of the accused, but to determine whether the accused is guilty beyond reasonable doubt. An accused should be acquitted even if the jury are satisfied that he or she is probably guilty (i.e. probably not innocent), but are not satisfied beyond reasonable...
[^2]: Although judges may not need to give this direction, in *Martin v R* (2010) 28 VR 579; [2010] VSCA 153 it was held that until the precise scope of *Juries Act 2000* s 78 has been determined, it would be “wise” to do so. See 1.5 Decide Solely on the Evidence for further information concerning *Juries Act 2000* (Vi...
1.7-c4-s9
1.7 Charging the Jury
24. It is wrong to suggest that it is for the jury to choose between the prosecution’s version of events and the accused’s version. The issue is not which version of events the jury accepts, but whether the prosecution has negatived the accused’s version as a reasonable possibility (*Murray v R* (2002) 211 CLR 193). 2...
[^2]: Although judges may not need to give this direction, in *Martin v R* (2010) 28 VR 579; [2010] VSCA 153 it was held that until the precise scope of *Juries Act 2000* s 78 has been determined, it would be “wise” to do so. See 1.5 Decide Solely on the Evidence for further information concerning *Juries Act 2000* (Vi...
1.7-c4-s10
1.7 Charging the Jury
28. It is not necessary that the judge’s directions accord precisely with the terms endorsed in *De Silva v The Queen *(2019) 268 CLR 57. Issues in the trial may make it inappropriate to give this exact direction (*Krivosic** v The King *[2024] NSWCCA 166, [96]–[97]). 29. For example, where the prosecution seeks to re...
[^2]: Although judges may not need to give this direction, in *Martin v R* (2010) 28 VR 579; [2010] VSCA 153 it was held that until the precise scope of *Juries Act 2000* s 78 has been determined, it would be “wise” to do so. See 1.5 Decide Solely on the Evidence for further information concerning *Juries Act 2000* (Vi...
1.7-c4-s11
1.7 Charging the Jury
32. It is appropriate to give a *Liberato *direction if there is a reasonable likelihood that the jury will otherwise obtain the impression that they must believe the evidence on which the accused relies to be true before that evidence can give rise to a reasonable doubt about his or her guilt (*R v Niass* [2005] NSWCC...
[^2]: Although judges may not need to give this direction, in *Martin v R* (2010) 28 VR 579; [2010] VSCA 153 it was held that until the precise scope of *Juries Act 2000* s 78 has been determined, it would be “wise” to do so. See 1.5 Decide Solely on the Evidence for further information concerning *Juries Act 2000* (Vi...
1.7-c4-s12
1.7 Charging the Jury
### *Sample **Misdirections** (Things that Should Not Be Said)* Onus of Proof
[^2]: Although judges may not need to give this direction, in *Martin v R* (2010) 28 VR 579; [2010] VSCA 153 it was held that until the precise scope of *Juries Act 2000* s 78 has been determined, it would be “wise” to do so. See 1.5 Decide Solely on the Evidence for further information concerning *Juries Act 2000* (Vi...
1.7-c4-s13
1.7 Charging the Jury
37. It is a misdirection to refer to the “task of the defence in trying to satisfy you that the accused did not intend” to commit the crime (*Thomas v R* (1960) 102 CLR 584). 38. It is wrong to direct the jury that they must acquit the accused if they are satisfied that the prosecution has not made out its case. Such ...
[^2]: Although judges may not need to give this direction, in *Martin v R* (2010) 28 VR 579; [2010] VSCA 153 it was held that until the precise scope of *Juries Act 2000* s 78 has been determined, it would be “wise” to do so. See 1.5 Decide Solely on the Evidence for further information concerning *Juries Act 2000* (Vi...
1.7-c4-s14
1.7 Charging the Jury
44. In giving a *Liberato* direction, a judge must not say that if the jury rejects the accused’s evidence and puts it aside, then it does not raise a reasonable doubt and they will be satisfied of guilt (*Platt v The Queen* [2020] VSCA 130, [19]–[26]). 45. It is wrong to say “If on the evidence that you do accept, yo...
[^2]: Although judges may not need to give this direction, in *Martin v R* (2010) 28 VR 579; [2010] VSCA 153 it was held that until the precise scope of *Juries Act 2000* s 78 has been determined, it would be “wise” to do so. See 1.5 Decide Solely on the Evidence for further information concerning *Juries Act 2000* (Vi...
1.7-c4-s15
1.7 Charging the Jury
Standard of Proof
[^2]: Although judges may not need to give this direction, in *Martin v R* (2010) 28 VR 579; [2010] VSCA 153 it was held that until the precise scope of *Juries Act 2000* s 78 has been determined, it would be “wise” to do so. See 1.5 Decide Solely on the Evidence for further information concerning *Juries Act 2000* (Vi...
1.7-c4-s16
1.7 Charging the Jury
46. It is a misdirection to tell the jury to consider the words “beyond”, “reasonable” and “doubt” separately, and to consider their own understanding of the word “reasonable” (*R v Reeves* (1992) 29 NSWLR 109). 47. It is undesirable to suggest to a jury that they may have doubts as to minor matters and nonetheless co...
[^2]: Although judges may not need to give this direction, in *Martin v R* (2010) 28 VR 579; [2010] VSCA 153 it was held that until the precise scope of *Juries Act 2000* s 78 has been determined, it would be “wise” to do so. See 1.5 Decide Solely on the Evidence for further information concerning *Juries Act 2000* (Vi...
1.7-c4-s17
1.7 Charging the Jury
54. The following definitions of “proof beyond reasonable doubt” have been held to be misdirections:
[^2]: Although judges may not need to give this direction, in *Martin v R* (2010) 28 VR 579; [2010] VSCA 153 it was held that until the precise scope of *Juries Act 2000* s 78 has been determined, it would be “wise” to do so. See 1.5 Decide Solely on the Evidence for further information concerning *Juries Act 2000* (Vi...
1.7-c4-s18
1.7 Charging the Jury
- Feeling “sure” or “really sure” (*R v Punj* [2002] QCA 333); - Coming to a feeling of “comfortable satisfaction” that the accused is guilty (*Thomas v R* (1960) 102 CLR 584; *Green v R* (1971) 126 CLR 28); - Satisfied “to a point of reasonable certainty” (*R v Hildebrandt *(1963) 81 WN (Pt 1) (NSW) 143); - Satisfi...
[^2]: Although judges may not need to give this direction, in *Martin v R* (2010) 28 VR 579; [2010] VSCA 153 it was held that until the precise scope of *Juries Act 2000* s 78 has been determined, it would be “wise” to do so. See 1.5 Decide Solely on the Evidence for further information concerning *Juries Act 2000* (Vi...
1.7-c4-s19
1.7 Charging the Jury
56. In responding to a jury question regarding the meaning of “beyond reasonable doubt”, a trial judge is not bound to choose between the options set out in *Jury Directions Act 2015* s 64(1), but may combine multiple options. The answer given, however, needs to disabuse a jury of any erroneous belief regarding the mea...
[^2]: Although judges may not need to give this direction, in *Martin v R* (2010) 28 VR 579; [2010] VSCA 153 it was held that until the precise scope of *Juries Act 2000* s 78 has been determined, it would be “wise” to do so. See 1.5 Decide Solely on the Evidence for further information concerning *Juries Act 2000* (Vi...
1.7-c4-s20
1.7 Charging the Jury
63. It is important that the trial judge does not expand or qualify the direction in such a way as to distract the jury from its task of determining the accused’s guilt beyond reasonable doubt (*R v Lancefield* [1999] VSCA 176). 64. The appropriate way in which to explain the onus or standard of proof will depend on t...
[^2]: Although judges may not need to give this direction, in *Martin v R* (2010) 28 VR 579; [2010] VSCA 153 it was held that until the precise scope of *Juries Act 2000* s 78 has been determined, it would be “wise” to do so. See 1.5 Decide Solely on the Evidence for further information concerning *Juries Act 2000* (Vi...
1.7-c4-s21
1.7 Charging the Jury
67. If the jury asks whether “reasonable doubt” has an independent definition or is to be determined by jurors, it is desirable to tell it that it is the individual opinions of jurors about what level of “doubt” is “reasonable” that should be applied. Each individual juror must form his or her own view of the matter (*...
[^2]: Although judges may not need to give this direction, in *Martin v R* (2010) 28 VR 579; [2010] VSCA 153 it was held that until the precise scope of *Juries Act 2000* s 78 has been determined, it would be “wise” to do so. See 1.5 Decide Solely on the Evidence for further information concerning *Juries Act 2000* (Vi...
1.7-c4-s22
1.7 Charging the Jury
### *Counsel’s Influence* 69. Historically, it was sometimes thought necessary to amplify the directions about onus and standard of proof because of counsel’s arguments during the trial (*Green v R* (1971) 126 CLR 28; *Thomas v R* (1960) 102 CLR 584; *R v Wilson* (1986) 42 SASR 203; *R v Lancefield* [1999] VSCA 176)...
[^2]: Although judges may not need to give this direction, in *Martin v R* (2010) 28 VR 579; [2010] VSCA 153 it was held that until the precise scope of *Juries Act 2000* s 78 has been determined, it would be “wise” to do so. See 1.5 Decide Solely on the Evidence for further information concerning *Juries Act 2000* (Vi...
1.7.1-c1-s1
1.7.1 Charge: Onus and Standard of Proof
# 1.7.1 Charge: Onus and Standard of Proof It is a critical part of our justice system that people are presumed to be innocent, unless and until they are proved guilty. So before you may return a verdict of guilty, the prosecution must satisfy you that [each of] the accused is guilty of the charge[s] in question. As ...
null
1.7.1-c1-s2
1.7.1 Charge: Onus and Standard of Proof
However, for now you should know that it is only if you find that the prosecution has proven all of the elements of a charge beyond reasonable doubt that you may find the accused guilty of that charge. If you are not satisfied that the prosecution has done this, your verdict in relation to that charge must be “Not Guil...
null
1.8-c1-s1
1.8 Separate Consideration
# 1.8 Separate Consideration ## Multiple Accused 1. If two or more accused stand trial together, the judge must direct the jury that they are to consider the case against each accused separately (*R v Harbach* (1973) 6 SASR 427;* R v Nessel* (1980) 5 A Crim R 374; *R v Minuzzo and Williams* [1984] VR 417; *R v Mi...
[^1]: If the evidence against one accused is not admissible against a second accused, and this creates a risk that the second accused will be impermissibly prejudiced, the judge may need to consider ordering separate trials (see, e.g. *R v Hauser* (1982) 6 A Crim R 68; *Webb v R* (1994) 181 CLR 41).
1.8-c2-s1
1.8 Multiple Counts
## Multiple Counts 1. If the presentment contains multiple counts, the judge must direct the jury that they have to consider each of the counts separately (*R v PMT* (2003) 8 VR 50; *MFA v R* (2002) 213 CLR 606; *KRM v R* (2001) 206 CLR 221; *R v TJB* [1998] 4 VR 621;* R v Robertson* [1998] 4 VR 30; *R v J** (No** *...
[^2]: If evidence which is admissible in relation to one count is admissible in relation to another count as “similar fact evidence”, an appropriate direction as to the permissible and impermissible uses of such evidence will be needed (see 4.17 Tendency Evidence and 4.18 Coincidence Evidence). [^3]: If evidence which ...
1.8-c2-s2
1.8 Multiple Counts
- Combining more than one count in the presentment is a procedure of convenience, but that such convenience should not be permitted to usurp a just outcome, which entitles the parties to have each count considered by reference only to the evidence which applies to that count; and - If they decide to convict or acquit ...
[^2]: If evidence which is admissible in relation to one count is admissible in relation to another count as “similar fact evidence”, an appropriate direction as to the permissible and impermissible uses of such evidence will be needed (see 4.17 Tendency Evidence and 4.18 Coincidence Evidence). [^3]: If evidence which ...
1.8-c2-s3
1.8 Multiple Counts
5. These directions will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part (*MFA v R* (2002) 213 CLR 606). 6. The jury should not be told that each count “must be given the same ultimate determination because you will ultimately be asked… your verdict in ...
[^2]: If evidence which is admissible in relation to one count is admissible in relation to another count as “similar fact evidence”, an appropriate direction as to the permissible and impermissible uses of such evidence will be needed (see 4.17 Tendency Evidence and 4.18 Coincidence Evidence). [^3]: If evidence which ...
1.8-c2-s4
1.8 Multiple Counts
9. The fact that a complainant fails to give any evidence about a particular offence charged does not mean the tribunal of fact could decide that the complainant has made a prior inconsistent statement. The prosecution opening (which often includes statements about the evidence the prosecutor expects to call) and the i...
[^2]: If evidence which is admissible in relation to one count is admissible in relation to another count as “similar fact evidence”, an appropriate direction as to the permissible and impermissible uses of such evidence will be needed (see 4.17 Tendency Evidence and 4.18 Coincidence Evidence). [^3]: If evidence which ...
1.8-c3-s1
1.8 Related Matters
## Related Matters ## Tendency Warning 1. At common law, it was considered prudent to warn the jury against “tendency reasoning” in cases involving multiple counts, as well as the “separate consideration” direction (see *R v J (No.2)* [1998] 3 VR 602; *R v TJB *[1998] 4 VR 621). 2. Under the *Jury Directions Act...
null
1.8.1-c1-s1
1.8.1 Charge: Separate Consideration Multiple Accused
# 1.8.1 Charge: Separate Consideration Multiple Accused In this trial there are [*insert number*] accused. The prosecution says each of them is guilty. Each of them says they are not guilty. So there are really [*insert number*] trials [all] being heard together. It would be inconvenient and a great waste of time and...
null
1.8.2-c1-s1
1.8.2 Charge: Separate Consideration Multiple Charges
# 1.8.2 Charge: Separate Consideration Multiple Charges In this trial, the prosecution has brought [*insert number*] charges against the accused. While these are separate matters, they are [all] being dealt with in the one trial. This is done for convenience, as it would be expensive and time-consuming to hold a separ...
null
1.9-c1-s1
1.9 Alternative Charges
# 1.9 Alternative Charges 1. The prosecution is entitled to include charges in an indictment that are presented in the alternative. Where this occurs, the jury cannot return a verdict on an alternative charge until it returns a verdict on the principal charge (*LLW v R* (2012) 35 VR 372; [2012] VSCA 54; *Medici v R*...
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1.9.1-c1-s1
1.9.1 Charge: Alternative Charges
# 1.9.1 Charge: Alternative Charges This charge should be given as part of the preliminary directions where the indictment contains alternatives. This model charge assumes that there is only one incident which involves alternatives. Where there are multiple incidents involving alternatives, this charge will need to be...
null
1.10-c1-s1
1.10 Trial Procedure
# 1.10 Trial Procedure ## Order of Proceedings
[^1]: This provision overrides the practice of the prosecution not addressing the jury a second time when the accused was unrepresented (see, e.g. *R v Ginies* [1972] VR 494). The prosecution may now determine whether or not to give a closing address if the accused is unrepresented (*R v Marijancevic* [1982] VR 936; *R...
1.10-c1-s2
1.10 Trial Procedure
1. To help set the jury at ease, and provide a framework for understanding the nature of the trial, it may be desirable to outline the way in which the trial is likely to proceed. 2. Unless the court otherwise directs, the prosecution must serve on the defence and file in court a summary of the prosecution opening at ...
[^1]: This provision overrides the practice of the prosecution not addressing the jury a second time when the accused was unrepresented (see, e.g. *R v Ginies* [1972] VR 494). The prosecution may now determine whether or not to give a closing address if the accused is unrepresented (*R v Marijancevic* [1982] VR 936; *R...
1.10-c1-s3
1.10 Trial Procedure
10. The prosecution will then call their witnesses. At the close of the prosecution case, the defence must choose whether to make a submission that there is no case to answer, to choose to give evidence or call other witnesses, or not give evidence or call witnesses (*Criminal Procedure Act 2009* s 226). It is at the j...
[^1]: This provision overrides the practice of the prosecution not addressing the jury a second time when the accused was unrepresented (see, e.g. *R v Ginies* [1972] VR 494). The prosecution may now determine whether or not to give a closing address if the accused is unrepresented (*R v Marijancevic* [1982] VR 936; *R...
1.10-c1-s4
1.10 Trial Procedure
17. The power to allow the prosecution to make a supplementary submission under s 236 is limited to cases in which the defence asserts facts which are unsupported by evidence. It does not extend to cases in which the defence makes illogical, extravagant or dishonest defence arguments. It is for the judge to deal with s...
[^1]: This provision overrides the practice of the prosecution not addressing the jury a second time when the accused was unrepresented (see, e.g. *R v Ginies* [1972] VR 494). The prosecution may now determine whether or not to give a closing address if the accused is unrepresented (*R v Marijancevic* [1982] VR 936; *R...
1.10-c2-s1
1.10 Juror Questions
## Juror Questions ## Clarifying Law and Evidence 1. Jurors may question a judge about the evidence presented in a case, or about the relevant law. Judges are under a duty to ensure that jurors receive all of the assistance they require to discharge their task properly (*R v Southammavong; R v Sihavong *[2003] NS...
[^2]: Jurors may communicate with court officials about administrative or technical matters (such as setting up equipment) (*Dempster* (1980) 71 Cr App R 302; *R v Barnowski* [1969] SASR 386).
End of preview. Expand in Data Studio

Legal RAG Bench ‍⚖️

Legal RAG Bench by Isaacus is a reasoning-intensive benchmark for assessing the end-to-end, real-world performance of production-grade legal RAG systems.

Legal RAG Bench is composed of 4,876 passages sampled from the Judicial College of Victoria’s Criminal Charge Book alongside 100 complex, handwritten questions demanding expert-level knowledge of Victorian criminal law and procedure to be answered correctly.

Legal RAG Bench is the first open dataset for the evaluation of legal RAG systems to label both relevant passages as well as the correct answers to questions, enabling apples-to-apples assessments of the relative impact of information retrieval and generative models on end RAG performance.

Kanon 2 Embedder currently delivers the fewest errors on Legal RAG Bench out of Gemini 3 Pro, GPT-5.2, Text Embedding 3 Large, and Gemini Embedding 001. It also ranks first on the Massive Legal Embedding Benchmark, the most comprehensive benchmark for legal embeddings.

Decomposed error rates for each combination of frontier embedding model and LLM on Legal RAG Bench.

Usage 👩‍💻

Legal RAG Bench may be loaded like so using the Hugging Face 🤗 datasets Python library:

import datasets

# Load passages in Legal RAG Bench.
corpus = datasets.load_dataset("isaacus/legal-rag-bench", name="corpus", split="test")

# Load question-answer-passage triplets from Legal RAG Bench.
qa = datasets.load_dataset("isaacus/legal-rag-bench", name="qa", split="test")

Structure 🗂️

Passages in the Legal RAG Bench corpus are stored in the corpus subset, with each entry having the following fields:

  • id (string): a unique identifier for the passage.
  • text (string): the text of the passage, formatted in Markdown.

Questions, answers, and the IDs of relevant passages are stored in the qa subset, with each entry having the following fields:

  • id (string): a unique identifier for the question.
  • question (string): the text of the expert-written question.
  • answer (string): the text of the expert-written answer to the question.
  • relevant_passage_id (string): the unique identifier of the passage in the corpus subset that is most relevant to the question.

The corpus and qa subsets of Legal RAG Bench both currently have only a single split, test.

Methodology 🧪

Legal RAG Bench was constructed by downloading each section of the Criminal Charge Book Book as Microsoft Word documents and converting them into Markdown. A complex set of heuristics was leveraged to break sections up into their full hierarchy, such as chapters and subchapters. Where necessary, sections were further chunked using the semchunk semantic chunking algorithm such that no chunk was over 512 tokens in length as determined by the original Kanon tokenizer.

After building a corpus of 4,876 passages, passages were randomly sampled to produce 100 handwritten, complex, and meaningfully challenging questions that, to the maximum extent possible, would require each of those passages alone to be answered correctly. Questions were deliberately designed to be lexically dissimilar from relevant passages in order to stress test the semantic understanding of evaluated models.

License 📜

This dataset is licensed under CC BY NC 4.0 which allows for non-commercial use of this dataset as long as appropriate attribution is made to it.

Citation 🔖

If you use this dataset, please cite the Massive Legal Embeddings Benchmark (MLEB) as well.

@misc{butler2026legalragbench,
      title={Legal RAG Bench: an end-to-end benchmark for legal RAG}, 
      author={Abdur-Rahman Butler and Umar Butler},
      year={2026},
      eprint={2603.01710},
      archivePrefix={arXiv},
      primaryClass={cs.CL},
      url={https://arxiv.org/abs/2603.01710}, 
}

@misc{butler2025massivelegalembeddingbenchmark,
      title={The Massive Legal Embedding Benchmark (MLEB)}, 
      author={Umar Butler and Abdur-Rahman Butler and Adrian Lucas Malec},
      year={2025},
      eprint={2510.19365},
      archivePrefix={arXiv},
      primaryClass={cs.CL},
      url={https://arxiv.org/abs/2510.19365}, 
}
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