Jury Directions and Other Acts Amendment Bill 2017 (VIC)

Friday 24 February 2017 @ 10.24 a.m. | Crime | Legal Research

The Victorian Parliament has seen the recent introduction of the Jury Directions and Other Acts Amendment Bill 2017. The Bill builds on previous reforms to the Jury Directions Act 2015 (VIC) to improve the jury direction process. The Bill aims to clarify the content of particular directions while discouraging abolishing certain unhelpful and confusing directions and at the same time introduce new directions to address common misconceptions. It also removes the arbitrary time requirements for jury deliberations.

Background to the Bill

Victorian has been strenuously reforming its jury directions process for some years. This Bill is the third tranche of jury direction reforms commenced under a previous government. The Jury Directions Act 2013 (VIC) was the first tranche and created a new framework for determining which directions are given in a criminal trial as well as a facilitating a collaborative culture between trial judges and counsel by requiring discussions on which directions should be given as well as the content of the directions.

Subsequently, the Jury Directions Act 2015 (VIC) was introduced to make improvements to the 2013 Act. Essentially, the Act added new provisions to clarify and simplify jury directions on issues such as unreliable evidence, and delay and credibility.

Current Bill

The Bill sets out to address certain problematic jury directions inside the 2015 Act. Firstly, the Bill deals with directions regarding previous representation. Under common law, the trial judge is required to direct that evidence from a witness who heard a statement is not independent proof of the facts state. According to Victorian Attorney General Martin Pakula, “This direction could be misunderstood by jurors to mean that a complainant's evidence needs to be independently confirmed, which is not correct.” The Bill will essentially remove this common law requirement as well as others. Judges may still give such directions where appropriate but will no longer be required to do so.

Secondly, the Bill will clarify what can and can’t be said about the evidence given by an accused in relation to the accused’s interest in the outcome of the trial. Mr Pakula explained:

“For example, trial judges and parties will be prohibited from suggesting that an accused's evidence is less credible or requires more scrutiny than the evidence of other witnesses. However, consistent with other credibility directions in the Jury Directions Act, trial judges and the parties will continue to be able to comment on how a witness's or accused's particular interest in the outcome of the trial does or may affect their credibility.”

Thirdly, the Bill will clarify directions regarding a complainant’s motive to lie. Currently, this is an extremely confusing set of directions. The Bill will ensure that these directions will focus on the burden of proof; namely that the accused does not have to show that the complainant had a motive to lie and that the prosecution bears the burden of proof. Other than this, the trial judge is not allowed to direct on a motive to lie.

Fourthly, the trial judge will be allowed to give directions to clear up instances where there are differences in a complainant’s accounts.

“The direction will include that people may not remember all the details of a sexual offence or describe an offence consistently each time, and that it is common for there to be differences in accounts. However, the direction will also emphasise that it remains up to the jury to decide whether any differences are important and whether they believe some, all or none of the complainant's evidence.”

The Bill also deals with directions regarding the jury deliberation process. Trial judges will no longer be allowed to give a direction to persevere in criminal matters immediately before, at the same time as, or immediately after directions are given about how a jury may return a majority verdict. The Bill will also allow trial judges to direct on the exact order on which a jury may consider the offences charged. These amendments will ensure that the jury deliberation process will be guided sufficiently with little room for confusion. 

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Sources:

Jury Directions and Other Acts Amendment Bill 2017, Bill, Explanatory Memorandum and Second Reading Speech as Published on LawOne

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