In criminal trials, maintaining fairness and preventing jury bias is critical to ensuring justice. The courts can uphold this principle through the BRS direction. A judicial instruction designed to limit how certain evidence can be considered by the jury.

What is a BRS Direction?

A BRS direction is named after the decision in BRS v The Queen. It refers to a judge’s instruction to the jury that restricts the way they may use specific pieces of evidence. The aim is to prevent jurors from giving undue weight to material that could unfairly prejudice the accused, particularly evidence that could trigger emotional reactions or assumptions not grounded in law or fact.

Purpose of the Direction

The BRS direction serves several important functions:

• Restricting Use: It ensures evidence is only considered for its lawful and intended purpose.
• Avoiding Prejudice: It guards against jurors forming conclusions based on emotion or irrelevant information.
• Upholding Fairness: It helps preserve the integrity of the trial process and protects the rights of the accused.

When is a BRS Direction Applied?

Judges may give a BRS direction in several common situations, including:

• Limited-Relevance Evidence: When evidence is admissible for a specific reason but may easily be misunderstood or misused by the jury.
• Tendency and Coincidence Evidence: When such evidence is presented, a direction may be necessary to clarify that it should not be used to suggest a general criminal disposition.
• Contextual Evidence: Evidence offered to explain background or context may need limiting instructions to ensure it isn’t taken as proof of guilt.

How is a BRS Direction Given?

• Requested by Lawyers: Legal representatives may apply for a BRS direction during the trial.
• Judicial Discretion: Judges may decide on their own that a direction is required to protect the fairness of the trial.
• Appropriate Timing: The direction is typically given when the relevant evidence is introduced and reinforced during the judge’s summing up before the jury retires to deliberate.

Legal Foundation

The authority for issuing a BRS direction is grounded in both legislation and case law:

• Evidence Act 1995 (NSW), Section 136: This provision allows a judge to limit the use of evidence where there is a risk of unfair prejudice.
• Relevant Case Law: Named after BRS v The Queen [1997] HCA 47; (1997) 191 CLR 275.

About Post Author

Brian Walker

B.Acc., GradDipLegPrac, Juris Dr
Barrister & Accountant.
Former Criminal Defence Solicitor. Former Federal Prosecutor for the Commonwealth Director of Public Prosecutions prosecuting Commonwealth crimes relating to drugs and child exploitation. Former Australian Federal Police member litigating proceeds of crime matters. Former Australian Taxation Office employee investigating offshore tax evasion matters.

Post Created by Jesslyn Duong-Yuan, paralegal.

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