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Jury Directions Bill 2015
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
Part 1--Preliminary
Clause 1 sets out the purposes of the Bill. This Bill continues the effect of
the Jury Directions Act 2013, with some refinements, and
addresses a number of additional problematic jury directions.
This is reflected in the purposes of the Bill, which are--
· to reduce the complexity of jury directions in criminal
trials;
· to simplify and clarify the issues that juries must
determine in criminal trials;
· to simplify and clarify the duties of the trial judge in
giving jury directions in criminal trials;
· to clarify that it is one of the duties of legal practitioners
appearing in criminal trials to assist the trial judge in
deciding which jury directions should be given;
· to assist the trial judge to give jury directions in a
manner that is as clear, brief, simple and
comprehensible as possible;
· to provide for simplified directions in relation to
specific issues;
· to re-enact the Jury Directions Act 2013 with
amendments;
581026 1 BILL LA INTRODUCTION 16/3/2015
· to amend the Evidence Act 2008 in relation to
corroboration directions; and
· to make consequential and other amendments.
Clause 2 provides for the commencement of the Bill.
Subclause (1) provides that section 1, Division 4 of Part 10 and
this section come into operation on the day after the day on
which this Act receives the Royal Assent. Division 4 of Part 10
relates to the commencement of a provision in the Criminal
Procedure Act 2009.
Subclause (2) provides that Division 1 of Part 5 (which deals
with directions on consent and reasonable belief in consent in
sexual offence trials) comes into operation on the same day as
section 3 of the Crimes Amendment (Sexual Offences and
Other Matters) Act 2014. Section 3 of that Act is intended to
commence on 1 July 2015. This subclause will ensure that the
new directions in sexual offence trials will commence on the
same day as the substantive reforms to sexual offence laws.
Subclause (3) provides that, subject to subclause (4), the
remaining provisions of this Act come into operation on a day or
days to be proclaimed.
Subclause (4) provides that if a provision referred to in subclause
(3) does not come into operation before 29 June 2015, it comes
into operation on that day.
Clause 3 defines various words and expressions used in the Bill.
These definitions replicate the definitions in section 3 of the
Jury Directions Act 2013, except for amended cross-references
and a minor amendment, as noted below.
The definitions of accused, legal practitioner and trial judge
adopt the meaning used in the Criminal Procedure Act 2009.
Alternative offence is defined to mean an offence in respect of
which the jury may, in accordance with any Act or any other law,
find the accused guilty if the jury is not satisfied that the accused
is guilty of an offence charged. For example, if the accused is
charged with murder, the jury may find the accused guilty of
manslaughter. This definition is relevant to Part 3 and Division 1
of Part 4 of the Bill, which relate to the jury direction request
provisions and post-offence conduct directions, respectively.
2
Defence is defined to include an exception, exemption, proviso,
excuse or qualification to an offence, whether or not it
accompanies any description of the offence in an enactment.
This is a broad definition designed to avoid arguments about
whether something is a defence or not. This is important for the
operation of Part 3 of the Bill, which requires the parties to
identify the directions they want in respect of any defences.
Defence counsel is defined to mean a legal practitioner
representing an accused.
Direction is defined to include an explanation of the phrase
"proof beyond reasonable doubt" under clause 63 or 64.
It is an inclusive definition which will cover matters that may be
referred to as "warnings" or "comments" by the trial judge, or
information given by the trial judge. This inclusive definition
ensures that no particular wording is required in explanations
given under clauses 63 and 64.
General directions is defined to mean directions concerning
matters relating to the conduct of trials generally including the
functions of the trial judge and jury, the burden and standard of
proof and the drawing of conclusions. Clause 10 of the Bill
provides that the jury direction request provisions in Part 3 of the
Bill do not apply to these general directions.
Paragraph (g) of this definition has been expanded to clarify that
this paragraph includes directions on what must be proved
beyond reasonable doubt. This change makes clear, for the
avoidance of doubt, that the directions referred to in clause 61 are
not subject to the jury direction request provisions in Part 3 of the
Bill.
Requested direction is defined to mean a direction that the trial
judge is requested to give under clause 12.
Clause 4 provides that the Bill applies despite any rule of law or
practice to the contrary. The Bill will replace aspects of the
common law on jury directions. Where the Bill abolishes a
particular common law rule, a specific abolition provision is
provided (see clauses 30, 34, 37, 40, 44, 54 and 62). Clauses 17
and 24 refer to abolition provisions in the Jury Directions Act
2013.
3
Part 2--General
Clause 5 replicates section 5 of the Jury Directions Act 2013 and sets out
guiding principles for the Bill. The Bill is designed to effect a
cultural change. The guiding principles will facilitate and
support this cultural change, as subclause (5) makes clear.
First, the principles recognise the role of the jury in a criminal
trial, as the main purpose of jury directions is to assist the jury to
determine the issues in dispute in the trial. This principle
encourages jury directions that assist the jury to perform its role.
The principles recognise some of the particular problems with the
law of jury directions that have made it difficult for the jury to
perform this role. They acknowledge that the law of jury
directions in criminal trials has become increasingly complex.
This development--
· has made jury directions increasingly complex,
technical and lengthy;
· has made it increasingly difficult for trial judges to
comply with the law of jury directions and avoid errors
of law; and
· has made it increasingly difficult for jurors to
understand and apply jury directions.
The guiding principles recognise that research indicates that
jurors find complex, technical and lengthy directions difficult to
follow.
The principles also recognise that it is the responsibility of the
trial judge to determine the matters in issue in the trial, and the
directions that should be given to the jury (including the content
of those directions), and that it is one of the duties of legal
practitioners to assist the trial judge in determining these matters.
This is designed to encourage dialogue between counsel and the
trial judge to determine what directions should be given.
This principle is particularly reflected in the jury direction
request provisions in Part 3.
This principle is also closely linked to the role of the jury to
determine the issues in the trial. Counsel and the trial judge
should be encouraged to work together to ensure that the
directions given will help the jury perform its role.
4
Finally, the principles reflect that in giving directions, trial judges
should give directions on only so much of the law as the jury
needs to know to determine the issues in the trial, avoid technical
legal language wherever possible, and be as clear, brief, simple
and comprehensible as possible.
The principle that the trial judge should direct on only so much
of the law that is necessary to determine the issues in the trial
derives from in R v AJS [2005] VSCA 288. Clause 65, which
sets out the trial judge's obligations when summing up, directly
reflects this principle.
Encouraging the trial judge to avoid technical language and be
clear, brief, simple and comprehensible reflects the fact that
juries struggle with complex, technical and lengthy jury
directions. For juries to be able to perform their role, it is
important the trial judges deliver directions that they can
understand and apply. Other clauses in the Bill, which set out the
content of directions on specific issues, and explain the meaning
of "proof beyond reasonable doubt" follow this principle by
avoiding complexity and technical language.
Subclause (5) provides that it is the intention of the Parliament
that the Act be applied and interpreted having regard to these
principles.
Clause 6 replicates section 6 of the Jury Directions Act 2013. It provides
that in giving directions, trial judges need not use any particular
form of words. This will allow trial judges to tailor directions to
the particular case, and ensures that trial judges do not commit an
error if they do not follow the words in the legislation.
Clause 7 requires the trial judge to correct statements or suggestions that
are prohibited by the Bill and that are either made by the
prosecution or defence counsel (or an unrepresented accused), or
contained in a jury question.
This is a new provision. As the note indicates, clauses 33
(Prohibited statements and suggestions in relation to children's
evidence), 42 (Prohibited statements and suggestions in relation
to accused who does not give evidence or call witness), and 51(1)
(Prohibited statements and suggestions in relation to
complainants) prohibit certain statements or suggestions.
5
Subclause (2) qualifies the requirement in subclause (1), by
providing that the trial judge is not required to correct such a
statement or suggestion if there are good reasons for not doing
so. For example, the trial judge may decide not to correct a
statement made by counsel if counsel has already corrected his or
her own statement.
Clause 8 replicates section 7 of the Jury Directions Act 2013. It allows
the court to extend or abridge any time fixed by or under this Bill
if the court considers that it is in the interests of justice to do so.
This provision will apply to clause 19 of the Bill.
Part 3--Request for directions
Part 3 of the Jury Directions Act 2013 provides a framework for
determining the directions that the trial judge should give to the jury and the
content of those directions. This encourages directions targeted to the issues
in the trial as identified by counsel through discussion with the trial judge.
This Part replicates some of the current Part 3 provisions and refines other
provisions, as noted below.
Clause 9 replicates section 8 of the Jury Directions Act 2013. It provides
that the purposes of this Part are to assist the trial judge to
discharge his or her duty to determine the matters in issue in the
trial, the directions that he or she should give to the jury and the
content of those directions and to ensure that legal practitioners
discharge their duty to assist the trial judge to determine those
matters. It is also a purpose to provide for directions that the trial
judge should give if the accused is unrepresented.
Clause 10 is an application provision.
Subclause (1) replicates section 9 of the Jury Directions Act
2013. It makes it clear that this Part does not apply to "general
directions" as defined in clause 3. Trial judges will continue to
be required to give general directions irrespective of the jury
direction request provisions in this Part. This subclause also
makes it clear that this Part does not apply to a direction that the
trial judge is required to give, or not to give, to the jury under any
provision of this Bill or any other Act.
6
Subclauses (2) and (3) are new provisions that relate to directions
"in running". Directions in running are directions given during
the course of the trial (for example when the particular evidence
is called) rather than as part of the summing up. For example,
short directions on tendency evidence are often given when the
evidence is adduced in the trial, as well as longer directions being
provided in the summing up.
Subclause (2) clarifies that Part 3 of the Bill does not affect
giving directions that the trial judge considers necessary at any
time before the close of the evidence. This clarifies that
the request process does not apply to such directions.
However, these directions must be consistent with the Act.
For example, a direction given before the close of the evidence
on other misconduct evidence must be consistent with the content
of the direction prescribed in Division 2 of Part 4 of the Bill.
Subclause (3) provides that in determining whether to give a
direction before the close of the evidence, the trial judge must
have regard to any submissions of the prosecution or defence
counsel. Requiring the trial judge to consider the views of parties
is consistent with the approach in Part 3 of the Bill. The parties
may already know that they will not request a direction on the
same evidence as part of the summing up.
Clause 11 is based on section 10 of the Jury Directions Act 2013, with the
addition of new obligations on the prosecution. This clause
requires both the prosecution and defence counsel to inform the
trial judge of certain matters, after the close of all evidence and
before the prosecution's closing address. This reflects the
obligations of the parties in assisting the trial judge to determine
the matters in issue.
The prosecution must inform the trial judge whether it considers
that the following matters are open on the evidence and if so,
whether it relies on them--
· any alternative offence, including an element of any
alternative offence; and
· any alternative basis of complicity in the commission of
the offence charged and any alternative offence.
This is a new provision, which will facilitate defence counsel
fulfilling their obligations under paragraph (b).
7
Paragraph (b) (which replicates section 10 of the Jury Directions
Act 2013) requires defence counsel to inform the trial judge
which of the following matters are or are not in issue: each
element of the offence charged; any defence; any alternative
offence (including an element of such an offence); and any
alternative basis of complicity in the offence charged (and any
alternative offence).
In conjunction with clause 12, this provision is intended to
prompt a discussion between the trial judge and counsel about
which matters are in issue and, therefore, which directions are
necessary and the content of such directions. This can be
contrasted with the law prior to the Jury Directions Act 2013,
where the trial judge had the sole responsibility for determining
these matters.
Different rules apply if the accused is unrepresented--
see clause 13.
Clause 12 replicates section 11 of the Jury Directions Act 2013.
This clause requires the prosecution and defence counsel to
request that the trial judge give, or not give, particular directions
to the jury in respect of the matters in issue, and evidence in the
trial relevant to the matters in issue. This will occur after the
matters in issue have been identified under clause 11.
Counsel are best placed to determine which directions may be
required in a particular case. Discussing these with the judge
will further refine these issues, and assist to determine which
directions are relevant and appropriate. These discussions will
also minimise the risk of errors due to, for example, directions
being overlooked or incomplete directions being given.
Different rules apply if the accused is unrepresented--
see clause 13.
In most cases, trial judges will give directions that counsel
has requested, and will not give directions that have not been
requested or that counsel has requested not be given--
see clauses 14 and 15. This is a significant change from the
common law rules that applied prior to the Jury Directions Act
2013 (see, for example, Pemble v R [1971] HCA 20).
8
Clause 13 replicates section 12 of the Jury Directions Act 2013, with
amended cross-references.
When the accused is unrepresented, the trial judge must generally
comply with this Part as if the accused had informed the trial
judge that all matters referred to in clause 11(b) were in issue and
had requested every direction that it was open to the accused to
request under clause 12, had they been represented by a legal
practitioner.
However, this general rule does not apply if the trial judge
considers that there are good reasons for not giving the direction,
or it is otherwise not in the interests of justice to give the
direction.
The provision balances the right of the accused to conduct their
own defence with protections to ensure that the accused is not
disadvantaged because they are not aware of which directions
they may request, or because they ask the trial judge not to give
an important direction.
Clause 14 replicates section 14 of the Jury Directions Act 2013.
It provides that the trial judge must give a requested direction
unless there are good reasons for not doing so.
Again, this reflects that counsel are best placed to determine
which directions are necessary in the particular case, and that
their decisions should be respected (subject to clause 16).
The Bill gives trial judges guidance in determining whether there
are good reasons for not giving a requested direction, by listing
matters that must be considered. These are the evidence in the
trial and the manner in which the parties have conducted their
cases. These matters emphasise that directions should be given
where they are consistent with the case the accused has put
before the jury and the forensic decisions of counsel.
Clause 15 simplifies and clarifies section 13 of the Jury Directions Act
2013 by providing that the trial judge must not give a direction
that has not been requested under clause 12 unless clause 16
applies. Section 13 of the Jury Directions Act 2013 currently
provides that the trial judge "need not" give such a direction.
This implies that there may be reasons other than the application
of the residual obligation for a trial judge to give a direction that
has not been requested. These amendments clarify that the only
9
reason why a trial judge would give a direction that has not been
requested is if the residual obligation applies.
As with the rest of this Part, this provision reflects that counsel
are best placed to determine which directions are necessary in
the particular case, and that their decisions should be respected
(subject to clause 16).
Clause 16 simplifies and clarifies section 15 of the Jury Directions Act
2013 by requiring trial judges to give a direction if the trial judge
considers that there are substantial and compelling reasons to
give the direction. Subclause (1) provides that this residual
obligation applies even though the direction has not been
requested under section 12. This would include where a party
has omitted to request the direction, and where a party has
requested that the direction not be given.
The current test in section 15 of the Jury Directions Act 2013
refers to a "substantial miscarriage of justice". The new test will
separate the meaning of this clause from the interpretation of
"substantial miscarriage of justice" in the Criminal Procedure
Act 2009, and will avoid complexities in both the wording of the
test and the application of the test by trial judges. These changes
will make clear when the residual obligation must be exercised
and ensure that appropriate weight is given to the forensic
decision making of the parties.
The new test is intended to focus the trial judge on whether a
direction was requested and if not, the reasons why it was not.
If there are substantial reasons for both giving and not giving a
direction, the trial judge would assess whether the reasons for
giving the direction are "compelling" (that is, they substantially
outweigh the reasons for not giving the direction).
As is the case currently, it is anticipated that this provision will
only be used in very limited circumstances, for example, if
counsel is incompetent.
Current section 15 of the Jury Directions Act 2013 applies
"despite sections 13 and 14" (clauses 14 and 15 of this Bill).
It is not necessary to reflect this in this clause. It is already clear
in clause 15 that that clause is subject to clause 16. It is not
necessary that clause 14 be subject to clause 16 given that
clause 16 focuses on when a direction has not been requested.
Clause 14 already requires a trial judge to give a requested
direction unless there are good reasons for not doing so.
10
Before relying on this provision, subclause (2) requires the trial
judge to inform the parties that he or she is considering giving the
direction, and allow the parties to make submissions on the
proposed direction. The words "is considering giving" replace
the words "intends to give" in current section 15(2) of the Jury
Directions Act 2013, to avoid any implication that the trial judge
has already decided to give the direction before seeking counsel's
views.
It is appropriate to provide this safeguard at trial in order to
protect the rights of the accused, and to minimise appeals given
that the Court of Appeal has the power to set aside a conviction
where a substantial miscarriage of justice has occurred.
Clause 17 provides that the abolition by section 16(1) of the Jury
Directions Act 2013 of the common law obligation to give
certain directions does not limit the obligation of the trial judge
under clause 16(1) of this Bill to give directions.
As note 1 indicates, section 16(1) of the Jury Directions Act
2013 abolished any common law rule under which a trial judge
was required to direct the jury about any defences and alternative
offences open on the evidence, but which had not been identified
as such during the trial. That provision also abolished any
common law obligation on the trial judge to direct the jury on
any alternative basis of complicity in the offence charged or any
alternative offence in issue.
As note 2 indicates, section 16 of the Jury Directions Act 2013
abolished the rule attributed to Pemble v R [1971] HCA 20;
(1971) 124 CLR 107 and the application of Pemble in the context
of complicity, for example Gilbert v R [2000] HCA 15; 201
CLR 414 and R v Nguyen [2010] HCA 38; (2010) 242 CLR 491.
This rule was problematic in theory and practice, and contributed
to a significant number of appeals based on errors in jury
directions.
As note 3 indicates, section 14(2)(c) of the Interpretation of
Legislation Act 1984 operates to ensure that the repeal of
section 16 of the Jury Directions Act 2013 by this Bill does not
revive anything not in force or existing at the time of the repeal.
Note 4 provides that clause 4 applies generally to override any
rule of law or practice to the contrary of this Bill.
11
Part 4--Evidential directions
Division 1--Post-offence conduct
Prior to the Jury Directions Act 2013, the law on post-offence conduct or
consciousness of guilt evidence resulted in directions to the jury that were
lengthy, complex, difficult to understand and prone to error. These problems
could be attributed to cases such as Edwards v R [1993] HCA 63 and
Zoneff v R [2000] HCA 28. Part 6 of the Jury Directions Act 2013
abolished complex common law requirements and provides a new procedure
for the giving of directions on post-offence conduct, to encourage shorter and
clearer directions that are less susceptible to error. The provisions in that Part
also provide for a mandatory direction that the trial judge must give if the
prosecution relies on evidence of "conduct" as evidence of "incriminating
conduct" and other directions that defence counsel may request.
This Division replicates Part 6 of the Jury Directions Act 2013, except for
minor amendments to current sections 23 and 28 of that Act--see clauses 19
and 24.
Clause 18 replicates section 22 of the Jury Directions Act 2013. It defines
the terms conduct, incriminating conduct and offence charged.
Conduct means the telling of a lie by the accused, or any other
act or omission of the accused, which occurs after the event or
events alleged to constitute the offence charged. It could, for
example, include fleeing the location of the offence, concealing
evidence in relation to the offence and so on. The broad
definition acknowledges that the ways in which evidence may
amount to an implied admission of guilt are not closed and that
in most instances, post-offence conduct consists of lies.
Incriminating conduct is defined to mean conduct that amounts
to an implied admission by the accused of having committed an
offence charged or an element of an offence charged, or which
negates a defence to an offence charged. This is so the accused
does not need to make an implied admission in relation to the
specific offence charged. The advantage of using the term
"implied admission of guilt" is that it will be readily recognised
by practitioners and judges, as it is used in the Evidence Act
2008 and is also used in cases concerning post-offence conduct.
Offence charged is defined to include any alternative offence.
An alternative offence is defined in clause 3.
12
Clause 19 is based on section 23 of the Jury Directions Act 2013.
Subclauses (1) and (2) set out the notice requirements for the
prosecution where it seeks to rely on evidence of conduct as
evidence of incriminating conduct. These subclauses replicate
section 23(1) and (2) of the Jury Directions Act 2013.
Subclauses (3) and (4) are new provisions that allow the trial
judge to dispense with the requirements of subclause (1)(a) or (b)
in certain circumstances. Clause 8 allows the court to extend or
abridge the time fixed under this clause, but does not empower
the court to dispense with the additional requirements under
subclause (1), such as notice requirements and providing a copy
of the relevant evidence. The incriminating conduct may only
arise during the trial (for example, when the accused gives
evidence). Subclauses (3) and (4) will facilitate efficient trial
procedure, while still ensuring that the prosecution appropriately
identifies conduct that it proposes to rely on as evidence of
incriminating conduct.
In conjunction with clause 20, this process requires early and
careful identification of such evidence.
As the Bill re-enacts the Jury Directions Act 2013, section 16 of
the Interpretation of Legislation Act 1984 operates. In a trial
that commences after the repeal of the Jury Directions Act
2013, a notice served under section 23 of that Act as in force
before its repeal is taken to have been served under this clause.
Clause 20 replicates section 24 of the Jury Directions Act 2013, except for
an amended cross-reference. It provides that the prosecution
must not rely on evidence of conduct as evidence of
incriminating conduct unless the prosecution has given notice in
accordance with clause 19 and the trial judge determines that, on
the basis of the evidence as a whole, the evidence of conduct is
reasonably capable of being viewed by the jury as evidence of
incriminating conduct. In conjunction with clause 19, this clause
recognises the need for the careful identification of this kind of
evidence. This procedure departs from the law that applied prior
to the Jury Directions Act 2013 and will make clear that the
prosecution is not relying on evidence of conduct as
incriminating conduct whenever it does not comply with the
procedure and the trial judge does not allow the evidence to be
used in that way.
13
This applies even if the evidence of conduct may be admissible
for another purpose--see subclause (2).
Clause 21 replicates section 25 of the Jury Directions Act 2013.
It provides for a mandatory direction to be given by the trial
judge where the prosecution relies on evidence of conduct as
evidence of incriminating conduct. The direction requires the
trial judge to tell the jury that it may treat the evidence as
evidence that the accused believed that he or she had committed
the offence charged (or an element of the offence charged or
negated a defence to the offence charged) only if it concludes that
the conduct occurred and the only reasonable explanation of the
conduct is that the accused held that belief.
The trial judge must further direct the jury that even if the jury
concludes that the accused believed that he or she had committed
the offence charged, it must still decide, on the basis of the
evidence as a whole, whether the prosecution has proved the guilt
of the accused beyond reasonable doubt.
There is no need for the trial judge to refer to each act or
omission of the accused under this clause. This departs from
common law requirements that applied prior to the Jury
Directions Act 2013 in relation to this type of evidence.
For example, where the prosecution relies on a record of
interview with the accused which contains hundreds of lies, there
is no need for the trial judge to refer to each lie. The provision
envisages that the trial judge could refer to the net effect of the
numerous lies.
Clause 22 replicates section 26 of the Jury Directions Act 2013, except for
amended cross-references. It provides for an additional direction
that may be given by the trial judge on evidence the prosecution
relies on as evidence of incriminating conduct. The trial judge
may give this direction if requested by defence counsel under
clause 12.
Basing this direction on a request links this clause with Part 3 of
the Bill, and reflects that the accused may not want the trial judge
to give such a direction (because, for example, it may highlight to
the jury that the accused has acted in a way that makes him or her
look guilty).
14
If a direction is given, it will involve the trial judge telling the
jury that--
· there are all sorts of reasons why a person might behave
in a way that makes the person look guilty; and
· the accused may have engaged in the conduct even
though the accused is not guilty of the offence charged;
and
· even if the jury thinks that the conduct makes the
accused look guilty, that does not necessarily mean that
the accused is guilty.
The three components of the direction capture the essence of
existing cautionary directions in a way that will be
understandable to the jury. The trial judge will not be required to
direct the jury on other matters in addition to this. For example,
in contrast to the current law, the trial judge need not identify
possible motivations for the accused's incriminating conduct.
Clause 23 replicates section 27 of the Jury Directions Act 2013, except for
amended cross-references. It provides for a direction to avoid the
risk of improper use of evidence where the prosecution does not
rely on evidence as evidence of incriminating conduct, but
defence counsel requests that a direction be given so that the jury
will not impermissibly use the evidence in that way. As with the
preceding clause, this direction is based on a request by defence
counsel under clause 12.
The direction has two components--
· directing the jury that there are all sorts of reasons why
a person might behave in a way that makes the person
look guilty; and
· warning the jury that even if the jury thinks that the
accused engaged in the conduct, it must not conclude
from that evidence that the accused is guilty of the
offence charged.
These directions protect against the risk that the jury may misuse
post-offence conduct evidence. While similar in content to
common law directions that warn against this line of reasoning,
the provision operates on the basis that defence counsel is best
placed to identify the potential harm to their case from such
evidence.
15
In line with Part 3, the trial judge will not be obliged to give
a direction if there are good reasons for not doing so.
Subclause (2) provides that it is a good reason for not giving a
direction requested under this clause if the trial judge considers
that there is no substantial risk that the jury might use the
evidence as evidence of incriminating conduct.
Clause 24 provides that the trial judge is not required to give the jury a
direction regarding evidence because it is evidence of
incriminating conduct or may be improperly used as evidence
of incriminating conduct except as provided by this Division.
However, this Division does not prohibit a trial judge from doing
so. The trial judge will not fall into error just because the trial
judge provides some additional direction.
This provision is designed to ensure that all of the trial judge's
obligations in relation to post-offence conduct, or incriminating
conduct are set out in this Division. There is no residual
application of the common law that the trial judge must apply.
A direction given in accordance with the Division will be
sufficient.
As note 1 indicates, section 28(3) of the Jury Directions Act
2013 abolished rules of common law based on Edwards v
R [1993] HCA 63; (1993) 178 CLR 193 and Zoneff v R [2000]
HCA 28; (2000) 200 CLR 234.
As note 2 indicates, section 14(2)(c) of the Interpretation of
Legislation Act 1984 operates to ensure that the repeal of
section 28 of the Jury Directions Act 2013 by this Bill does not
revive anything not in force or existing at the time of the repeal.
Note 3 provides that clause 4 applies generally to override any
rule of law or practice to the contrary of this Bill.
Section 28(2) of the Jury Directions Act 2013 is not replicated
in the Bill. That subsection refers to matters that the jury is not
required to consider in determining whether evidence of
incriminating conduct establishes, or assists in establishing, guilt.
The amendments to the law in this area made by clauses 61
and 62 of the Bill are of general application and make the
specific abolition of Shepherd v R [1990] HCA 56 in
section 28(2) redundant. Accordingly, the notes no longer
refer to Shepherd v R [1990] HCA 56, and note 4 indicates that
section 28(2) of the Jury Directions Act 2013 has been
superseded by clauses 61 and 62 of this Bill.
16
Division 2--Other misconduct evidence
This Division reforms the law on tendency, coincidence, context and
relationship evidence directions by replacing common law rules on these
directions with new provisions.
Clause 25 provides that this Division applies despite any obligation arising
from section 95 of the Evidence Act 2008. Section 95 restricts
the use to which evidence may be put, for example, by providing
that evidence that is not admissible to prove a particular matter
must not be used to prove that matter even if it is relevant for
another purpose.
Section 95 of the Evidence Act 2008 may be interpreted as
requiring trial judges to direct juries on impermissible uses.
This clause makes it clear that clauses 27 and 28, which
specifically provide that judges need not direct juries on
impermissible uses of the evidence, apply despite section 95 of
that Act.
Clause 26 contains definitions for this Division. Coincidence evidence
and tendency evidence are defined in the Evidence Act 2008.
Other misconduct evidence is a new term that is defined to
mean--
(a) coincidence evidence; or
(b) tendency evidence; or
(c) evidence of other discreditable acts and omissions of an
accused that are not directly relevant to a fact in issue;
or
(d) evidence that is adduced to assist the jury to understand
the context in which the offence charged or any
alternative offence is alleged to have been committed.
Paragraphs (c) and (d) provide broad definitions of evidence that
would be described as relationship or context evidence under the
common law.
Clause 27 allows defence counsel to request, under clause 12, a direction on
other misconduct evidence adduced by the prosecution.
Subclause (2) sets out the minimum, and sufficient, requirements
of such a direction. A direction which complies with these
requirements will provide sufficient and valuable assistance to
the jury to properly consider such evidence.
17
These requirements focus on how the evidence is relevant, and
require the trial judge to direct the jury not to use the evidence for
any other purpose. Where the evidence forms only part of the
prosecution case against the accused, the trial judge must inform
the jury of that fact. The trial judge must also direct the jury that
it must not decide the case based on prejudice arising from what
the jury has heard about the accused.
For clarity, subclause (3) sets out what the trial judge need not do
in a direction. This new section significantly simplifies the
requirements of directions on other misconduct evidence.
Together with clauses 28 and 29, the section will operate to
ensure that judges no longer need to comply with complex
common law requirements when giving these directions
(for example, they will no longer need to identify in detail the
permissible and impermissible uses of the evidence).
Clause 28 provides for directions on other misconduct evidence adduced
by an accused about a co-accused. The provision is based on
clause 27, with relevant amendments to remove the reference to
the prosecution case, as this is not relevant where the evidence is
adduced by an accused.
Clause 29 allows parties to request a direction to avoid the risk of the jury
improperly using other misconduct evidence (other than tendency
evidence) as tendency evidence. Like many of the directions
under the Bill, requests will be made under clause 12 of the Bill.
Consistent with clause 23(2), subclause (2) provides that it is a
good reason for not giving this direction if there is no substantial
risk that the jury might use the evidence as tendency evidence.
Clause 30 abolishes common law rules to the contrary of this Division.
Division 3--Unreliable evidence
This Division reforms the law on unreliable evidence directions, including
directions about children's evidence, by replacing sections 165 and 165A
of the Evidence Act 2008 and common law rules with new provisions.
The new provisions continue the overall effect of the current provisions, with
improvements consistent with the rest of the Bill.
As is the case currently, the Division contains an inclusive definition of
evidence of a kind that may be unreliable, giving counsel and the trial judge
broad discretion to determine whether to request and give, respectively, an
unreliable evidence direction.
18
The Division also reflects research on children's cognitive and recall skills
that demonstrates that children's evidence is not inherently less reliable than
adults' evidence, but that the reliability of a particular child's evidence may be
influenced by factors specific to that child.
Clause 31 defines evidence of a kind that may be unreliable.
The evidence of children is covered by paragraph (b) of
the definition. The definition is based on the definition of this
term in section 165 of the Evidence Act 2008, except that--
· it does not include section 165(1)(b) of the Evidence
Act 2008, (as identification evidence is dealt with in
Division 4 of Part 4 of this Bill), or section 165(1)(g) of
the Evidence Act 2008, (as proceedings against
deceased estates are not relevant to criminal trials); and
· paragraph (e) of the definition is broader than
section 165(1)(e) of the Evidence Act 2008.
For example, the category will now cover exceptional
cases where the confession or admission is admitted
without having been recorded in writing.
Clause 32 allows the parties to request under clause 12 a direction on
unreliable evidence.
The party making the request must specify the significant matters
that may affect reliability. If the trial judge gives a direction, this
requirement will assist the trial judge in determining the
appropriate content of the direction. In the case of evidence
given by a child, these significant matters must not relate solely
to the age of the child, as is the case under section 165A of the
Evidence Act 2008.
Subclause (3) sets out the minimum, and sufficient, requirements
of a direction. These requirements are based on current
sections 165(2)(a) and 165A(2) of the Evidence Act 2008.
However, the section clarifies that the trial judge need only
inform the jury of the significant matters (other than solely the
age of the child, in the case of evidence given by a child) that the
judge considers may affect the reliability of the evidence.
Sections 165 and 165A may currently require the judge to inform
the jury of all "matters" or "reasons" why the evidence may be
unreliable, not just those that are significant.
19
The notes to this clause alert readers to related provisions, such
as the provisions on identification evidence and corroboration
directions.
Clause 33 prohibits certain statements and suggestions about children's
evidence. Unlike section 165A(1) of the Evidence Act 2008,
this provision extends the prohibition to the parties as well as the
trial judge. This is because, consistent with clauses 42 and 51(1),
the clause addresses common misconceptions that should not be
suggested to the jury at all, by either the parties or the trial judge.
Clause 33(d) differs from section 165A(1)(d) of the Evidence
Act 2008 to clarify that the trial judge and the parties must not
suggest that it would be dangerous to convict on the
uncorroborated evidence of a witness because that witness is a
child. As is reflected in the second note, section 164 of the
Evidence Act 2008 relates to corroboration directions generally.
The first note refers to clause 7, which provides for the correction
of statements or suggestions that contravene this section.
Clause 34 abolishes common law rules to the contrary of this Division.
Division 4--Identification evidence
This Division reforms the law on identification evidence directions by
replacing sections 116 and 165(1)(b) of the Evidence Act 2008 and common
law rules with new provisions.
Clause 35 defines identification evidence. This definition is broader than
the definition of identification evidence in the Evidence Act
2008 dictionary. In particular, the new definition covers both
positive and negative identification, extends to the identification
of both objects and people, and is not limited to identification of
the accused. It covers the various types of identification evidence
at common law (namely identification, recognition, similarity and
comparison evidence). It also includes visual and picture
identification evidence as defined in the Evidence Act 2008.
Clause 36 allows parties to request under clause 12 a direction on
identification evidence. Consistent with clause 32 (which deals
with unreliable evidence), the party making the request must
specify the significant matters that may make the evidence
unreliable.
20
If the trial judge gives a direction, subclause (3) sets out
the minimum, and sufficient, content of the direction.
Subclause (3)(a) and (b) are consistent with the equivalent
sections in the unreliable evidence section (clauses 32(3)(b)
and (c)).
Subclauses (3)(c) to (e) require the trial judge to highlight
specific factors relevant to identification evidence.
Subclauses (3)(c) and (d) reflect studies and experience that
show how convincing an honest (but mistaken) witness can
be, and that a number of witnesses may all be mistaken.
Subclause (3)(e) reflects the well-documented reality that
mistaken identification evidence has led to the conviction of
innocent people. This aspect of the direction must be given
"if relevant", as it will not be relevant in relation to negative
identification evidence (for example, where a witness says the
perpetrator did not look like the accused).
Clause 37 abolishes common law rules to the contrary of this Division.
Division 5--Delay and forensic disadvantage
This Division reforms the law on directions on delay and forensic
disadvantage by replacing section 165B of the Evidence Act 2008,
section 61(1A) to (1F) of the Crimes Act 1958 and common law rules
(in particular, the problematic common law "Longman direction") with new
provisions based on section 165B.
Clause 38 defines forensic disadvantage broadly to mean a disadvantage to
the accused in challenging, adducing or giving evidence, or
conducting his or her case because of the consequences of delay
due to the period of time that has elapsed between the alleged
offence and the trial. The definition makes it clear that forensic
disadvantage means more than the mere existence of delay.
This new definition covers not just the accused's evidence but the
accused's ability to gather evidence and challenge the
prosecution's case. Like section 165B of the Evidence Act 2008,
the definition refers to the "consequences of delay" and provides
that forensic disadvantage is "more than the mere existence of
delay", to highlight that the basis for the direction is not the mere
fact of a delay, but the consequences that flow from that delay.
21
Clause 39 provides that defence counsel may request under clause 12 a
direction on forensic disadvantage experienced by the accused.
Subclause (2) qualifies the threshold in clause 14 by providing
that the trial judge may only give a direction if satisfied that the
accused has experienced a significant forensic disadvantage.
These provisions are based on section 165B(2) of the Evidence
Act 2008. However, unlike section 165B(2), which leaves
open the possibility of the trial judge giving a direction even if
there is no significant forensic disadvantage, subclause (2)
(in conjunction with clause 40) makes it clear that the trial judge
may only give a forensic disadvantage direction if satisfied that
the accused has experienced a significant forensic disadvantage.
If the trial judge gives a direction, subclause (3) sets out
the minimum, and sufficient, requirements of the direction.
Subclause (3)(a) mirrors the requirements of section 165B(2) of
the Evidence Act 2008.
Subclause (3)(b) prohibits trial judges from saying or suggesting
in a direction that it would be dangerous or unsafe to convict the
accused, or that the complainant's evidence should be scrutinised
with great care. This extends the prohibition in section 165B(4)
of the Evidence Act 2008. These directions most often arise in
sexual offence trials. These expressions are prohibited because
they may reinforce common misconceptions about the reliability
of complainants' evidence in sexual offence trials, and be
misinterpreted by jurors as a coded direction from the trial judge
to acquit the accused.
Clause 40 abolishes any rule of common law under which a trial judge is
required or permitted to direct the jury on a disadvantage to the
accused in challenging, adducing or giving evidence or
conducting his or her case because of delay. This is to ensure
that directions on delay and forensic disadvantage are only given
in accordance with this Division. Note 1 to this clause states that
the provision specifically abolishes the rule attributed to
Longman v R [1989] HCA 60; (1989) 168 CLR 79 which was
followed in Crampton v R [2000] HCA 60; (2000) 206 CLR 161
and applied in relation to the corroborated evidence of a
complainant in Doggett v R [2001] HCA 46; (2001) 208
CLR 343.
22
Division 6--Failure to give evidence or call witness
This Division reforms the law on directions given when the accused does not
give evidence or call a witness, or when the prosecution does not call or
question a witness without a satisfactory explanation. This Division replaces
section 20 of the Evidence Act 2008 and complex common law rules with
new provisions.
Clause 41 provides that, if the accused does not give evidence or call a
particular witness, defence counsel may request under clause 12
a direction. This provision and clause 42 will replace section 20
of the Evidence Act 2008 (see clause 70 of the Bill).
Subclause (2) sets out the minimum, and sufficient, content of the
direction. The content of this direction is based on Azzopardi v
The Queen (2001) 205 CLR 50. The trial judge must explain--
· the prosecution's obligation to prove that the accused is
guilty; and
· that the accused is not required to give evidence or call
a witness (as the case requires); and
· that the jury should not guess or speculate about what
might be contained in the evidence not given by the
accused, or that might have been given by a witness
who was not called (as the case requires); and
· that the fact that the accused did not give evidence or
call a witness is not evidence against the accused, is not
an admission by the accused, must not be used to fill
gaps in the evidence adduced by the prosecution, and
does not strengthen the prosecution case.
Clause 42 sets out certain matters that the trial judge and parties are
prohibited from saying or suggesting in any way to the jury.
Under clause 42(a), they are prohibited from saying or suggesting
that because the accused did not give evidence or call a particular
witness the jury may conclude that the accused is guilty from that
fact. This is based on section 20 of the Evidence Act 2008.
However, it is broader in scope because it applies to all
witnesses, not just members of the accused's family.
Under clause 42(b), the trial judge and the parties must not say or
suggest that the jury may use the failure of the accused to provide
an explanation of facts, which must be within the knowledge of
23
the accused, to more safely draw an adverse inference based on
those facts which, if drawn, would prove the guilt of the accused.
This provision prohibits the trial judge from giving the complex,
and rarely given, direction from Weissensteiner v The Queen
(1993) 178 CLR 217 and prohibits parties from explaining the
reasoning in Weissensteiner to the jury.
Under clause 42(c), the trial judge and the parties must not say or
suggest that the jury may draw an inference that the accused did
not give evidence or call a witness because that would not have
assisted his or her case. This provision prohibits the trial judge
from giving the direction in Jones v Dunkel (1959) 101 CLR 298
(as applied to criminal cases in Dyers v R (2002) 210 CLR 285).
As the note indicates, clause 7 provides that the trial judge must
correct the statements or suggestions of parties or jury questions
to the contrary of this provision.
Clause 43 provides that defence counsel may request under clause 12 a
direction when the prosecution does not call or question a
witness. This replaces the Jones v Dunkel direction for the
prosecution with a statutory direction.
Subclause (2) qualifies the threshold in clause 14 for giving the
direction. The trial judge must only give the direction if the trial
judge is satisfied that the prosecution--
· was reasonably expected to call or question the witness;
and
· has not satisfactorily explained why it did not call or
question the witness.
This qualification reflects the common law position that the
direction should only be given in exceptional circumstances.
A lower threshold would inappropriately impinge on the
prosecution's discretion to call witnesses. If the trial judge is
satisfied that this threshold has been met, it is very unlikely that
the judge would find that there are good reasons not to give the
direction under clause 14.
Clause 44 provides that except as provided by this Division, a trial judge is
not required to direct the jury when the accused does not give
evidence or call a witness, or when the prosecution does not call
or question a witness. Subclause (2) abolishes common law rules
to the contrary of subclause (1). The note clarifies that this
24
includes directions based on the rule attributed to Weissensteiner
v The Queen (1993) 178 CLR 217 and applied in Azzopardi v The
Queen (2001) 205 CLR 50 and the rule attributed to the direction
in Jones v Dunkel (1959) 101 CLR 298 (as applied to criminal
cases in Dyers v R (2002) 210 CLR 285).
Part 5--Sexual offences
This Part brings together directions that are relevant only to sexual offence
trials. The Part includes the reforms to directions on consent and reasonable
belief in consent in the Crimes Amendment (Sexual Offences and Other
Matters) Act 2014, and new provisions on delay and credibility.
Division 1--Directions on consent and reasonable belief in consent
This Division introduces new jury directions on rape and sexual assault.
It replicates the effect of Part 5 of the Crimes Amendment (Sexual
Offences and Other Matters) Act 2014, but reorganises the provisions in
that Part for greater consistency with the rest of the Bill. It also removes a
problematic jury direction to be inserted into section 61(3)(c) of the Jury
Directions Act 2013 by the Crimes Amendment (Sexual Offences and
Other Matters) Act 2014.
Clause 45 provides that this Division applies to a criminal proceeding that
relates (wholly or partly) to a charge for an offence against any
provision in Subdivision (8A) to (8D) of Division 1 of Part I of
the Crimes Act 1958.
The new jury directions in this Division will apply in relation to
the new offences in Subdivision (8A) contained in the Crimes
Amendment (Sexual Offences and Other Matters) Act 2014
as well as existing offences in Subdivision (8B) to (8D).
Sections 37, 37AAA and 37AA of the Crimes Act 1958 will
continue to apply to sexual offences in Subdivision (8A) which
are alleged to have been committed before the Crimes
Amendment (Sexual Offences and Other Matters) Act 2014
commences. This is because the directions in sections 37,
37AAA and 37AA are tailored to the fault element in those
offences, which differs from the new fault element in the
new sexual offences introduced by the Crimes Amendment
(Sexual Offences and Other Matters) Act 2014.
25
Existing jury directions under section 37 of the Crimes Act 1958
operate on the basis that it is the trial judge's responsibility to
give all relevant jury directions and not to give any directions that
are not relevant. The jury directions under this Division, in line
with most of the jury directions in the Bill, will depend on a
request under Part 3 of the Bill. Under Part 3, defence counsel
identify the issues that are or are not in dispute and then the
parties request jury directions in the light of that refinement of
the issues.
Clause 46 provides that the prosecution or defence counsel may request
under clause 12 that the trial judge direct the jury on consent.
Subclause (2) provides that, in making a request referred to in
subclause (1), the prosecution or defence counsel must specify--
· in the case of a request for a direction on the meaning of
consent--one or more of the directions set out in
subclause (3); or
· in the case of a request for a direction on the
circumstances in which a person is taken not to have
consented to an act--one or more of the directions set
out in subclause (4).
Subclause (3) sets out a list of directions concerning the meaning
of consent that the parties can request that the judge give.
These are as follows--
· inform the jury that a person can consent to an act only
if the person is capable of consenting and free to choose
whether or not to engage in or allow the act; or
· inform the jury that where a person has given consent to
an act, the person may withdraw that consent either
before the act takes place or at any time while the act is
taking place; or
· warn the jury that evidence of the following alone is not
enough to regard a person as having consented to an
act--
· evidence that the person did not protest or
physically resist; or
· evidence that the person did not sustain physical
injury; or
26
· evidence that on any particular occasion the
person consented to another act that is sexual in
nature (whether or not of the same type) with the
accused or with another person.
These directions are based on existing jury directions on consent
contained in section 37AAA of the Crimes Act 1958.
Subclause (3) does not include the jury direction in
section 61(3)(c) of the Jury Directions Act 2013 (to be inserted
by the Crimes Amendment (Sexual Offences and Other
Matters) Act 2014). That direction states that "the fact that a
person did not say or do anything to indicate consent to an act at
the time at which the act took place is enough to show that the act
took place without the person's consent".
This direction is problematic because it suggests that a jury may
conclude that a victim of sexual assault who did nothing to
indicate he or she consented to a sexual act may be found to have
possibly consented to the act. This is confusing and complicates
what should be a simple issue for the jury to determine.
Accordingly, the Bill replaces this direction with an amendment
to the list of "consent-negating circumstances" in new
section 34C of the Crimes Act 1958. Clause 69 of the Bill will
amend section 3 of the Crimes Amendment (Sexual Offences
and Other Matters) Act 2014 to insert two new paragraphs into
section 34C of the Crimes Act 1958.
The first new paragraph in section 34C will provide that
circumstances in which a person does not consent to an act
include "where the person does not say or do anything to indicate
consent to the act". This makes clear that a person should not
engage in a sexual act with another person without the other
person having clearly communicated her or his consent.
This new consent-negating circumstance will replace the jury
direction in section 61(3)(c) of the Jury Directions Act 2013.
The second new paragraph in section 34C will provide that
circumstances in which a person does not consent to an act
include "having initially given consent to an act, the person later
withdraws consent to the act taking place or continuing".
This paragraph is a corollary of the first paragraph--
it emphasises that if a person communicates their withdrawal
to a sexual act, this means that they are not consenting for the
purpose of the law on rape (and other sexual offences).
27
By emphasising the importance of communication of consent,
and capacity of a person to withdraw consent, these two additions
to section 34C further the purpose of the reforms in the Crimes
Amendment (Sexual Offences and Other Matters) Act 2014.
Subclause (4) sets out a list of directions concerning the
circumstances in which a person is taken not to have consented to
an act which the parties can request the judge to give. These are
as follows--
· inform the jury of the relevant circumstances in which
the law provides that a person does not consent to an
act;
· direct the jury that if the jury is satisfied beyond
reasonable doubt that a circumstance referred to in
section 34C of the Crimes Act 1958 existed in relation
to a person, the jury must find that the person did not
consent to the act.
These directions are based on existing jury directions on the
circumstances in which a person is taken not to have consented as
contained in section 37AAA of the Crimes Act 1958.
This provision will require the prosecution and defence counsel
to tailor their respective requests for directions based on matters
in subclauses (3) and (4) that are relevant to the particular case.
This reflects the policy in Part 3 of the Bill that the parties are
best placed, in the first instance, to determine which directions
are relevant in the particular case.
The note contains a cross reference to new section 34C of the
Crimes Act 1958 (which is intended to commence on 1 July
2015), which provides that consent means free agreement, and
sets out circumstances in which a person is taken not to have
consented to an act.
Clause 47 provides that the prosecution or defence counsel may request
under clause 12 that the trial judge direct the jury on reasonable
belief in consent.
Clause 47(2) provides that, in making a request referred to in
subclause (1), the prosecution or defence counsel must specify
one or more of the directions set out in subclause (3).
28
This provision will require the prosecution and defence counsel
to tailor their respective requests for directions based on
matters in subclause (3) that are relevant to the particular case.
This reflects the policy in Part 3 of the Bill that the parties are
best placed, in the first instance, to determine which directions
are relevant in the particular case.
New section 37G(1) of the Crimes Act 1958 provides that
whether a person reasonably believes that another person
is consenting depends upon the circumstances.
New subsection 37G(2) of the Crimes Act 1958 specifies
that, without limiting subsection (1), a relevant circumstance is
any steps that the person has taken to find out whether the other
person consents to the act or, in the case of assault with intent to
commit a sexual offence contrary to new section 42, would
consent to the act. New section 37H of the Crimes Act 1958 sets
out the effect of intoxication on whether a person reasonably
believes that another person is consenting. These new sections
are to be inserted into the Crimes Act 1958 by the Crimes
Amendment (Sexual Offences and Other Matters) Act 2014.
Clause 47(3) sets out a list of directions concerning reasonable
belief in consent, that the parties can request that the judge give.
These are as follows--
· direct the jury that if the jury concludes that a
circumstance referred to in section 34C of the Crimes
Act 1958 existed in relation to a person, that knowledge
or belief is enough to show that the accused did not
reasonably believe that the person was consenting to the
act; or
· direct the jury that in determining whether the accused
who was intoxicated had a reasonable belief at any
time--
· if the intoxication was self-induced, regard must
be had to the standard of a reasonable person
who is not intoxicated and who is otherwise in
the same circumstances as the accused at the
relevant time; and
29
· if the intoxication is not self-induced, regard
must be had to the standard of a reasonable
person intoxicated to the same extent as the
accused and who is in the same circumstances as
the accused at the relevant time.
The first of these jury directions is intended to convey to the jury
that the evidence is very strong, but not necessarily always
conclusive. It will be a matter for the jury to decide in each case
whether the evidence regarding the accused's knowledge or belief
is sufficient to prove that the person did not reasonably believe
the other person was consenting.
This approach is also less than a presumption, as there is no
shifting of the burden of proof. This differs from the approach
adopted in the Sexual Offences Act 2003 (UK) which includes
certain evidential and conclusive presumptions. That approach
has led to a number of appeals and shifting burdens of proof can
make jury directions and the issues the jury must determine very
complicated where the evidence on which the presumptions are
based is in dispute.
Division 2--Delay and credibility
This Division reforms directions on delay and credibility in sexual offence
cases by replacing sections 61(1), (2) and (3) of the Crimes Act 1958 and
common law rules (in particular, the problematic "Kilby/Crofts" direction)
with new provisions.
The Division aims to address common misconceptions about the behaviour of
sexual offence victims generally, by prohibiting certain statements about
sexual offence complainants as a class and by requiring trial judges to give
corrective directions in certain cases. In particular, the Division addresses the
misconceptions that a genuine sexual offence victim would complain about
the offence soon after it happened and that sexual offence complainants are
unreliable.
However, the accused may still argue how delay in complaint or lack of
complaint affects the credibility of the particular complainant. The parties
may also continue to call expert evidence.
Clause 48 provides that this Division applies to a criminal proceeding that
relates (wholly or partly) to a charge for a sexual offence.
Sexual offence is defined in clause 50.
30
Clause 49 provides that Part 3 of the Bill does not apply to this Division
(except to clause 53). Unlike the majority of the Act, most of the
directions in this Division will not depend on a request from
counsel.
Clause 50 defines terms used in this Division.
Delay in making a complaint is defined broadly to include where
the complainant has not pursued, or continued to pursue, the
complaint in a timely manner, and where the complainant has not
made a complaint at the first, or a subsequent, reasonable
opportunity to complain. Specifically including these issues in
the definition is appropriate given that arguments about these
issues are common in sexual offence cases.
Sexual offence has the same meaning as in the Criminal
Procedure Act 2009, and sexual offence case refers back to
clause 48.
Clause 51 provides that the trial judge and the parties must not say, or
suggest in any way, to the jury that--
(a) the law regards complainants in sexual offence cases as
an unreliable class of witness; or
(b) complainants in sexual offence cases are an unreliable
class of witness; or
(c) complainants who delay in complaining or do not
complain are, as a class, less credible or require more
careful scrutiny than other complainants.
Subclause (1)(a) is based on section 61(1)(a) of the Crimes Act
1958 but extends the prohibition to the parties as well as the trial
judge. Subclause (1)(b) is quite similar to subclause (1)(a) and is
included to capture what counsel or the trial judge might express
as their own, or another person's, view.
Subclause (1)(c) addresses common misconceptions about
complainants (as a class) who delay in complaining or who do
not complain. This aims to ensure that the trial judge and the
parties do not make generalised statements about the effect of
delay in complaint or lack of complaint on the credibility of
sexual offence complainants. However, the parties may make
statements about the effect of delay in complaint or lack of
complaint on the credibility of the particular complainant
31
(as is reflected in note 3) and the trial judge may refer to these
statements when summing up.
For example, under this Division, defence counsel would not be
permitted to argue that the fact that the complainant took five
years to complain to police means that she is not as credible as
a complainant who complains to police straight away.
However, defence counsel could argue that the fact that the
complainant took five years to complain to police affects
her credibility due to factors specific to the complainant
(e.g. she complained to police about similar offences committed
by the accused as soon as they were alleged to have occurred).
Subclause (2) prohibits the trial judge from saying, or suggesting
in any way, to the jury that because the complainant delayed in
making a complaint or did not make a complaint, it would be
dangerous or unsafe to convict the accused or the complainant's
evidence should be scrutinised with great care. This is based on
section 61(1)(b)(iii) of the Crimes Act 1958.
Clause 52 sets out when a direction under subclause (4) must be given on
delay in complaint or lack of complaint. Subclause (1) provides
that the trial judge must give a subclause (4) direction if, before
any evidence is adduced and after hearing submissions from
counsel (or an unrepresented accused), the trial judge considers
that there is likely to be evidence in the trial that suggests that the
complainant delayed in making a complaint or did not make a
complaint. The direction must be given before any evidence
about delay is called, and may be given before any evidence is
called.
Subclause (2) provides that if at any other time in the trial, the
trial judge considers that there is evidence in the trial that
suggests that the complainant delayed in making a complaint
or did not make a complaint, the trial judge must give the
subclause (4) direction as soon as is practicable.
The trial judge may also repeat a direction at any time in the trial,
under subclause (3).
Subclause (4) requires trial judges to inform the jury that
experience shows that--
· people may react differently to sexual offences and
there is no typical, proper or normal response to a
sexual offence; and
32
· some people may complain immediately to the first
person they see, while others may not complain for
some time and others may never make a complaint; and
· delay in making a complaint in respect of a sexual
offence is a common occurrence.
These matters draw on similar directions in England and reflect
the findings of, and language used in, numerous research studies
and law reform commission reports. These matters are
commonly misunderstood by the broader community.
The provision enables such misconceptions to be addressed with
the jury if these issues are likely to arise, or do arise, in the trial.
For the avoidance of doubt, subclause (5) clarifies that this
section does not limit any direction that the trial judge may give
the jury in relation to evidence given by an expert witness.
This Division does not limit defence counsel or the prosecution
from calling expert evidence on a range of issues. For example,
defence counsel may call expert evidence on the complainant's
delay in making a complaint. Subclause (5) clarifies that, for
example, the trial judge may give a direction on how the jury
may consider conflicting expert evidence.
Clause 53 provides that the prosecution may request, under clause 12, that
the trial judge direct the jury that there may be good reasons why
a person may not complain, or may delay in complaining, about a
sexual offence. This is based on section 61(1)(b)(i) of the
Crimes Act 1958.
Clause 54 abolishes common law rules to the contrary of this Division.
Note 1 to this section refers specifically to the rules attributed to
Kilby v R [1973] HCA 30 and Crofts v R [1996] HCA 22.
Part 6--Family violence
This Part includes directions that are relevant only to trials involving family
violence. The Part replicates the effect of the new directions inserted into the
Jury Directions Act 2013 by the Crimes Amendment (Abolition of
Defensive Homicide) Act 2014, but reorganises these provisions for greater
consistency with the rest of the Bill.
Research shows that the dynamics of family violence are not well understood
in the community. The new directions are designed to proactively address
any misconceptions jurors may have about family violence at the start of a
33
trial so that self-defence claims in such cases can be fairly assessed in
context.
Clause 55 replicates section 29 of the Jury Directions Act 2013.
It provides that this Part applies to a criminal proceeding in
which self-defence or duress in the context of family violence is
in issue.
Clause 56 replicates section 30 of the Jury Directions Act 2013 by
providing that Part 3 does not apply to this Part.
Part 3 provides a framework for requests for directions after the
close of all evidence. In contrast, the new directions on family
violence may be given early in the trial, even before evidence is
adduced. This will ensure any misconceptions jurors may have
in relation to family violence are addressed at an early stage.
Clause 57 replicates section 31 of the Jury Directions Act 2013 by
defining family violence in accordance with section 322J(2) of
the Crimes Act 1958.
Clause 58 sets out a framework for requesting and giving jury directions on
family violence (because Part 3 does not apply to this Part of the
Act). This replicates sections 32(1), (3), (4), (5) and (9) of the
Jury Directions Act 2013, except for amended cross-references,
and includes a provision based on section 32(2).
Subclause (1) provides that defence counsel (or, if the accused is
unrepresented, the accused) may request at any time that the trial
judge direct the jury on family violence in accordance with
clause 59 and all or specified parts of clause 60.
This provision allows defence counsel to tailor a request for
directions based on the matters in clause 60 that are relevant to
the accused. Where matters in clause 60 are not relevant to an
accused's case, the jury will not be assisted by such information.
Subclause (2) requires the trial judge to give the jury a requested
direction on family violence, including all of specified parts of
clause 60 if so requested, unless there are good reasons for not
doing so. Like other Parts of the Bill, this provision reflects that
defence counsel is best placed, in the first instance, to determine
which directions are relevant in the particular case. However, the
trial judge has the overriding responsibility for giving directions
and if there are good reasons for not giving the directions, the
trial judge will not do so.
34
Subclause (3) applies where an accused is unrepresented and
does not request a direction on family violence. In such cases,
the trial judge may give the direction in accordance with this Part
if the trial judge considers that it is in the interests of justice to do
so. This provision balances the right of an unrepresented accused
to conduct their own defence with protections to ensure that the
accused is not disadvantaged because they are not aware that they
may request directions on family violence.
Subclause (4) requires the trial judge to give the requested
direction as soon as practicable after the request is made. For the
avoidance of doubt, this provision makes clear that the direction
may be given before any evidence is adduced in the trial.
This will ensure any misconceptions jurors may have in relation
to family violence are addressed at an early stage.
Subclause (5) provides that the trial judge may repeat a direction
under this Part at any time in the trial.
For the avoidance of doubt, subclause (6) provides that this
Part does not limit any direction that the trial judge may give
the jury in relation to evidence given by an expert witness.
These directions are general in nature and are designed to address
general misconceptions about family violence. They will not
prevent expert evidence from being called in relation to the
conduct of the accused in a particular case, or about the dynamics
of family violence generally.
Section 32(8) of the Jury Directions Act 2013, which provides
that if the accused is unrepresented, the trial judge may include
the matters in clause 60(a)-(c), is not included in the Bill as it is
not necessary, given subclauses (1) and (3).
Clause 59 sets out the content of directions on family violence. This clause
replicates section 32(6) of the Jury Directions Act 2013, except
for amended cross-references. The trial judge must inform the
jury that--
· self-defence or duress (as the case requires) is, or is
likely to be, in issue in the trial; and
· as a matter of law, evidence of family violence may be
relevant to determining whether the accused acted in
self-defence or under duress (as the case requires); and
35
· in the case of self-defence, evidence in the trial is likely
to include evidence of family violence committed by the
victim against the accused or another person whom the
accused was defending; and
· in the case of duress, evidence in the trial is likely to
include evidence of family violence committed by
another person against the accused or a third person.
Clause 60 sets out additional directions on family violence that may be
given.
Clause 60(a) replicates section 32(7)(a) of the Jury Directions
Act 2013 and provides that family violence--
· is not limited to physical abuse and may include sexual
abuse and psychological abuse;
· may involve intimidation, harassment and threats of
abuse;
· may consist of a single act; and
· may consist of separate acts that form part of a pattern
of behaviour which can amount to abuse even though
some or all of those acts may, when viewed in isolation,
appear to be minor or trivial.
These directions address common misconceptions about the
nature of family violence and reflect the definition of family
violence in section 322J of the Crimes Act 1958.
Clause 60(b) replicates section 32(7)(b) of the Jury Directions
Act 2013 and will require the trial judge to direct, in relevant
cases, that experience shows that--
· people may react differently to family violence and
there is no typical, proper or normal response to family
violence;
· it is not uncommon for a person who has been subjected
to family violence--
· to stay with an abusive partner after the onset of
family violence, or to leave and then return to the
partner;
· not to report family violence to police or seek
assistance to stop family violence;
36
· decisions made by a person subjected to family violence
about how to address, respond to or avoid family
violence may be influenced by--
· family violence itself;
· cultural, social, economic and personal factors.
Studies shows that many members of the community do not
understand how the dynamics of family violence may impact
on the behaviour of family violence victims, such as why
victims of family violence remain in abusive relationships.
These victims are often perceived to be irrational or
unreasonable. However, research shows that it is not
uncommon for victims of family violence to remain in abusive
relationships for a variety of reasons. These include fear of
retaliatory violence, concern for children, lack of finances,
lack of alternative accommodation, and love for their partner.
These new directions are designed to give jurors a better
appreciation of the factors impacting victims of family violence
(see, for example, Victorian Health Promotion Foundation,
National Survey on Community Attitudes to Violence Against
Women 2009: Changing Cultures, Changing Attitudes -
Preventing Violence Against Women, 2010; M A Anderson et al,
'"Why Doesn't She Just Leave?": A Descriptive Study of Victim
Reported Impediments to Her Safety' (2003) 18 Journal of
Family Violence 151; S Meyer, 'Why Women Stay:
A Theoretical Examination of Rational Choice and Moral
Reasoning in the Context of Intimate Partner Violence' (2012) 45
Australian & New Zealand Journal of Criminology 179; O W
Barnett, 'Why Battered Women Do Not Leave, Part 1: External
Inhibiting Factors Within Society' (2000) Trauma, Violence &
Abuse 343).
Clause 60(c) replicates section 32(7)(c) of the Jury Directions
Act 2013 and provides that, as a matter of law, evidence that the
accused assaulted the victim on a previous occasion does not
mean that the accused could not have been acting in self-defence
or under duress (as the case requires). Whether the accused was
acting in self-defence or under duress must be determined on a
case by case basis.
37
Part 7--General directions
This Part brings together general directions that do not rely on a request
under Part 3 of the Bill. The Part includes new provisions on what must be
proved beyond reasonable doubt, as well as the provisions on the meaning of
"proof beyond reasonable doubt" currently in Part 5 of the Jury Directions
Act 2013.
Clause 61 reforms the law on directions on what must be proved beyond
reasonable doubt by replacing common law rules with new
provisions.
It provides that unless an enactment otherwise provides, the only
matters a trial judge may direct the jury must be proved beyond
reasonable doubt are the elements of the offence charged, or an
alternative offence, and the absence of any relevant defence.
For the avoidance of doubt, note 1 to this clause provides that if
the trial judge directs the jury on one of the matters referred to in
paragraph (a) or (b) in the form of a factual question under
clause 67(2) or (3), the trial judge must direct the jury that it must
be satisfied of that matter beyond reasonable doubt.
The direction under this clause need not be provided in a
vacuum. Consistent with the obligations in the guiding principles
in clause 5, the trial judge should give directions that are as
"comprehensible as possible". By providing context for a
direction about the standard of proof, the trial judge can connect
evidence to the relevant element or defence and the standard of
proof for that element or defence. There are many different ways
in which this can be done, as the two examples reflect.
In conjunction with clause 62, this clause means that trial judges
must not direct that any other matters must be proved beyond
reasonable doubt, such as indispensable intermediate facts
(as required by Shepherd v R [1990] HCA 56).
Note 2 refers to enactments that provide that other matters must
be proved beyond reasonable doubt.
Clause 62 abolishes common law obligations to direct that matters not
referred to in clause 61 must be proved beyond reasonable doubt.
The note makes specific reference to the rules attributed to
Shepherd v R [1990] HCA 56 and R v Sadler [2008] VSCA 198.
The note also makes it clear that the provision abolishes any
other rule that requires a jury to be directed that it must be
38
satisfied beyond reasonable doubt of a matter other than a matter
referred to in clause 61.
Clause 63 replicates section 20 of the Jury Directions Act 2013.
It provides that a trial judge may explain the phrase
"proof beyond reasonable doubt" when the jury directly or
indirectly asks a question about the meaning of the phrase.
Prior to the Jury Directions Act 2013, the common law
restricted the trial judge from explaining what this phrase means.
Except in very limited circumstances, when asked such a
question, the trial judge was only permitted to respond by
explaining that such a doubt is one which the jury regards as
reasonable (R v Chatzidimitriou (2000) 1 VR 493).
Research suggests that this phrase is often not well understood by
jurors. Given that it is a fundamental concept in a criminal trial,
it is useful for the trial judge to be able to explain it. This clause
allows trial judges to explain the meaning of the phrase where it
is raised by the jury. The provision applies where the jury
directly or indirectly raises the issue. The provision is not
intended to limit any other power of a trial judge to explain the
meaning of the phrase.
Clause 64 replicates section 21 of the Jury Directions Act 2013. It sets out
the matters the trial judge may include in an explanation of
"proof beyond reasonable doubt" where the jury has asked a
question about the meaning of the phrase. These elements are
drawn from case law from Canada (Lifchus [1997] 3 SCR 320)
and New Zealand (R v Wanhalla [2007] 2 NZLR 573). In the
explanation the trial judge may--
· refer to the presumption of innocence and the
prosecution's obligation to prove that the accused is
guilty; or
· indicate that it is not enough for the prosecution to
persuade the jury that the accused is probably guilty or
very likely to be guilty; or
· indicate that it is almost impossible to prove anything
with absolute certainty when reconstructing past events
and the prosecution does not have to do so; or
39
· indicate that the jury cannot be satisfied that the accused
is guilty if the jury has a reasonable doubt about
whether the accused is guilty; or
· indicate that a reasonable doubt is not an imaginary or
fanciful doubt or an unrealistic possibility.
This list of matters reflects that in most cases, there is only so
much that can be said that will assist a jury before a trial judge
will necessarily reach the point that the further explanation
becomes less helpful than no explanation or may actually be
misleading.
Clause 6 provides that judges are not required to use a particular
form of words in giving a direction. In addition, clause 64(2)
makes it clear that the trial judge may adapt his or her
explanation of the phrase to respond to the particular question
asked by the jury. For example, if a jury asks whether the phrase
means that they must be "70 percent sure about guilt", the Bill is
intended to allow the trial judge to answer "no", and to then go
on to explain what the phrase does mean, using the matters in
clause 64 as guidance.
Part 8--Trial judge's summing up
This Part replicates Part 4 of the Jury Directions Act 2013, except for minor
amendments to current sections 17 and 18 of that Act. The Part simplifies
and clarifies the obligations of the trial judge in summing up trials.
Clause 65 replicates section 17 of the Jury Directions Act 2013, except for
an amended cross-reference and a minor amendment.
This clause sets out the obligations of the trial judge when giving
the summing up to the jury. The summing up occurs after the
parties' final addresses to the jury and before the jury commences
its deliberations. Most jury directions will be given to the jury as
part of the summing up. The purpose of the reforms in this area
is to encourage trial judges to give shorter, more relevant
summings up which will better assist the jury.
The clause provides that the trial judge--
(a) must explain only so much of the law as is necessary to
determine the issues in the trial; and
40
(b) must refer the jury to the way in which the prosecution
and the accused have put their cases in relation to the
issues in the trial, but need not summarise the closing
addresses of the prosecution and the accused; and
(c) need not give a summary of the evidence, but must
identify in accordance with clause 66 so much of the
evidence as is necessary to assist the jury in determining
the issues in the trial.
These obligations reflect aspects of the statement on the role of
the trial judge in R v AJS [2005] VSCA 288. In particular, the
obligations target the summing up to the law necessary to
determine the issues in the trial. However, it also changes these
obligations in important ways. For example, the clause makes it
clear that the trial judge need not summarise the parties' closing
addresses or summarise the evidence in the trial. This will help
to reduce the length of the summing up.
Clause 65(c) requires the trial judge to identify so much of the
evidence "as is necessary" to assist the jury in determining the
issues in the trial. This is an objective standard, which is
consistent with clause 65(a). This amends current section 17(c)
of the Jury Directions Act 2013, which refers to so much of the
evidence "as the trial judge considers necessary".
Clause 65(d) also clarifies that summings up can be given in a
combination of oral and written forms. Research shows that
jurors can struggle with lengthy oral directions and that their
understanding increases when they are provided with written
material. Providing part of the summing up in written form does
not undermine the principle of open justice because the evidence
and submissions have already been given orally in an open court.
Clause 66 provides that the trial judge is required to identify only so much
of the evidence as is necessary to assist the jury in determining
the issues in the trial. This replicates section 18 of the Jury
Directions Act 2013, except for consequential amendments
consistent with the amended wording of clause 65(c).
Lengthy restatements of the evidence can be counterproductive
and unhelpful. In most cases, the law currently requires a trial
judge to summarise the evidence. Clarifying when, and to what
extent, trial judges are required to identify evidence (rather than
summarise evidence) will help to encourage shorter directions
that are closely related to the issues in the trial.
41
This clause provides a list of matters to consider in determining
whether identification of the evidence is necessary and if so, to
what extent. The trial judge must have regard to--
· the facts in issue;
· the complexity of the facts in issue;
· the length of the trial;
· the complexity of the evidence;
· the submissions and the addresses of the parties;
· any reference to how the parties put their cases in
relation to the issues in the trial;
· any special needs or disadvantages of the jury in
understanding or recalling the evidence; and
· any transcript of the evidence or any other document
provided to assist the jury to understand the evidence.
The trial judge may also have regard to any other matter he or she
considers appropriate.
Clause 67 replicates section 19 of the Jury Directions Act 2013, except for
an amended cross-reference. It provides that the trial judge may
give integrated directions. An integrated direction is a way of
presenting information to the jury in a more helpful, targeted
way, in line with the obligations of the trial judge expressed in
clause 65.
Integrated directions may contain factual questions which embed
legal issues which the jury must consider or be satisfied of in
order to reach a verdict. This type of direction focuses the jury
on the factual issues, rather than expecting them to understand
lengthy directions on the legal issues. Integrated directions will
often remove the need for separate directions on the law.
For example, an integrated direction could ask "Are you satisfied
that A stabbed B with the knife?" and "Are you satisfied that
B died as a result of the stabbing?", rather than "Did A cause the
death of B?" with a separate direction explaining the law to the
jury.
42
Integrated directions can also combine the factual questions with
directions on the evidence and how it is to be assessed, references
to how the prosecution and the accused have put their cases, and
any evidence identified under clause 66.
The provision makes it clear that if a trial judge addresses a
matter by a factual question, he or she is not required to address
the matter in any other direction. Further, if a trial judge
addresses a matter in an integrated direction, he or she is not
required to also address the matter in directions that are not
integrated directions (that is, traditional jury directions, which
provide separate explanations on the law and the evidence).
Addressing the same matter in more than one way is unlikely to
be helpful to jurors, and would unnecessarily lengthen directions.
Integrated directions can be supported by the use of a written
document known as a jury guide, which is provided for in
section 223 of the Criminal Procedure Act 2009.
Part 9--Transitional provisions
Clause 68 provides that Schedule 1 has effect.
Part 10--Consequential and other amendments
Division 1--Consequential amendments
Clause 69 contains consequential amendments.
Subclause (1) repeals the Jury Directions Act 2013. This Bill
re-enacts that Act, with some amendments, and with additional
provisions.
Subclause (2) amends new section 34C(2) of the Crimes Act
1958 (to be inserted by the Crimes Amendment (Sexual
Offences and Other Matters) Act 2014) to insert two new
paragraphs. This expands the list of (inclusive) circumstances in
which a person does not consent to an act to include where--
· the person does not say or do anything to indicate
consent to the act; and
· having initially given consent to an act, the person later
withdraws consent to the act taking place or continuing.
43
As discussed under clause 46, the first new "consent-negating
circumstance" replaces the jury direction in new section 61(3)(c)
of the Jury Directions Act 2013 (to be inserted by the Crimes
Amendment (Sexual Offences and Other Matters) Act 2014).
It focuses on when a person does not does not say or do anything
to indicate consent to the act. The second new "consent-negating
circumstance" is a corollary of the first and emphasises a person's
capacity to withdraw consent to a sexual act.
The additions made to section 34C by clause 69(2) will--
· make clear that a person should not engage in a sexual
act with another person without the other person having
clearly communicated her or his consent; and
· emphasise that if a person communicates their
withdrawal to a sexual act, this means that they are not
consenting for the purpose of the law on rape (and other
sexual offences).
This will make the law clearer and further promote the policy
intent underlying the Crimes Amendment (Sexual Offences
and Other Matters) Act 2014.
Subclause (3) repeals Part 5 of the Crimes Amendment (Sexual
Offences and Other Matters) Act 2014. That Part inserts new
jury directions on consent and reasonable belief in consent.
Those directions are now contained in Division 1 of Part 5 of this
Bill.
Subclauses (4) to (8) substitute references in various Acts to
provisions of the Jury Directions Act 2013 with updated
references to provisions in the Jury Directions Act 2015.
Division 2--Amendment of Evidence Act 2008
Clause 70 relates to section 20 of the Evidence Act 2008. Subclause (1)
repeals the section, except for the heading. Subclause (2) inserts
a note into the Evidence Act 2008 at the foot of section 20 that
will make it clear that Division 6 of Part 4 of the Jury Directions
Act 2015 contains provisions on the failure to give evidence or
call witnesses in criminal trials.
44
Clause 71 inserts a note after the heading to Part 3.6 of the Evidence Act
2008. Part 3.6 of that Act relates to tendency and coincidence
evidence. The note refers to Division 2 of Part 4 of the Jury
Directions Act 2015, as that Division contains directions on
tendency and coincidence evidence (as well as other types of
other misconduct evidence).
Clause 72 substitutes a note for the note at the foot of section 115(7) of the
Evidence Act 2008, which deals with visual identification
evidence. The note refers to Division 4 of Part 4 of the Jury
Directions Act 2015, as that Division also deals with
identification evidence warnings.
Clause 73 relates to section 116 of the Evidence Act 2008, which relates
to identification evidence directions in criminal proceedings.
That section is no longer required given Division 4 of Part 4 of
the Jury Directions Act 2015. Accordingly, subclause (1)
repeals the section, except for the heading, and subclause (2)
inserts a note to make it clear that Division 4 of Part 4 of the
Jury Directions Act 2015 contains provisions relating to
identification evidence in criminal trials.
Clause 74 amends section 164 of the Evidence Act 2008, which deals with
corroboration requirements.
Subclause (1) amends section 164(3) to apply only to civil trials,
so that there is no change to the law on corroboration directions
in civil trials.
Subclause (2) inserts new sections 164(4) to (6), which relate to
corroboration directions in criminal trials. New section 164(4)
provides that, subject to new subsection (5), the judge must not
warn the jury that it is dangerous to act on uncorroborated
evidence or give a warning to the same or similar effect, or direct
the jury regarding the absence of corroboration. Currently, such
warnings or directions are "not necessary" (see section 164(3)),
but there are good policy reasons for ensuring that such
directions are not given at all.
However, new section 164(5) provides that in a criminal
proceeding for perjury or a similar or related offence, the judge
must direct the jury that it may find the accused guilty only if it
is satisfied that the evidence proving guilt is corroborated.
Sections 164(1) and (2) provide that corroboration is not
required, except in respect to an offence of perjury or a similar or
45
related offence. It is appropriate to ensure that in cases where
corroboration is required, a corroboration direction is also
required.
New section 164(6) abolishes common law to the contrary of
these new provisions.
Clause 75 makes consequential amendments to section 165(1) of the
Evidence Act 2008, which relates to unreliable evidence
directions. The amendments ensure that section 165, with
the appropriate amendments, continues to apply to civil trials.
Division 3 of Part 4 of the Jury Directions Act 2015 deals with
unreliable evidence directions in criminal trials. The new note
added by subclause (3) makes this clear.
Clause 76 makes consequential amendments to section 165A(1) of the
Evidence Act 2008, which relates to children's evidence
directions. The amendments ensure that section 165A, with
the appropriate amendments, continues to apply to civil trials.
Division 3 of Part 4 of the Jury Directions Act 2015 deals with
children's evidence directions in criminal trials. The new note
added by subclause (3) makes this clear.
Clause 77 relates to section 165B of the Evidence Act 2008. Subclause (1)
repeals the section, except for the heading, as it is no longer
required given Division 5 of Part 4 of the Jury Directions Act
2015. Subclause (2) substitutes a note for the note at the foot of
section 165B to make it clear that this Division contains
provisions relating to delay and forensic disadvantage that apply
in criminal trials.
Clause 78 inserts new Part 6 of Schedule 2 to the Evidence Act 2008 to
provide that amendments to be made by Division 2 of Part 10 of
the Jury Directions Act 2015 apply to a trial that commences
(within the meaning of section 210 of the Criminal Procedure
Act 2009) on or after the day on which Division 2 of Part 10
comes into operation.
Division 3--Amendment of Crimes Act 1958
Clause 79 substitutes a note in place of section 61 of the Crimes Act 1958,
to reflect that Division 5 of Part 4, and Division 2 of Part 5 of the
Jury Directions Act 2015 replace section 61.
46
Division 4--Minor amendment of Criminal Procedure Act 2009
Clause 80 corrects an error in section 7A of the Criminal Procedure Act
2009 (as inserted by the Crimes Amendment (Sexual Offences
and Other Matters) Act 2014). Section 7A removes time limits
on the prosecution of certain sexual offences against children
committed prior to 1991. This section was intended to
commence on the day after the Crimes Amendment (Sexual
Offences and Other Matters) Act 2014 received Royal Assent
(which was on 21 October 2014).
To ensure fairness, section 7A(2) provides that the limits on
prosecution are intended to continue to apply where the conduct
would not be an offence under the law as it stood immediately
prior to the reform. Section 7A(2) refers to "section 11" of the
Crimes Amendment (Sexual Offences and Other Matters)
Act 2014 as the reference point for determining the law ("as it
stood"), rather than "section 10". Section 11 deals with an
unrelated matter and has not yet commenced.
The likely effect of this error is that section 7A(1) cannot be
relied upon to commence a prosecution until section 7A(2) can
be given its full meaning--that is, until the question of whether
the conduct constitutes an offence under the law of Victoria
immediately before the commencement of section 11 can be
determined.
Clause 80 amends section 7A(2) of the Criminal Procedure Act
2009 to replace the reference to the commencement of section 11
with a reference to the day after the Jury Directions Act 2015
receives Royal Assent. This will provide a clear commencement
date for section 7A, to ensure that prosecutions can commence
under that section.
Division 5--Repeal of amending Part
Clause 81 provides for the automatic repeal of Part 10 of the Bill on 29 June
2016. This repeal does not affect the continuing operation of the
amendments made by the Act (see section 15(1) of the
Interpretation of Legislation Act 1984).
47
Schedule 1--Transitional provisions
Clause 1 contains transitional provisions for the Bill.
Subclause (1) provides that a provision of the Jury Directions
Act 2015 (other than Division 1 of Part 5) applies to a trial that
commences (within the meaning of section 210 of the Criminal
Procedure Act 2009) on or after the day on which that provision
comes into operation.
Subclause (2) provides that Division 1 of Part 5 (which relates to
directions on consent and reasonable belief in consent) applies to
a proceeding that relates to a charge for an offence alleged to
have been committed on or after the commencement of that
Division. Subclause (3) provides that for the purposes of
subclause (2), if an offence is alleged to have been committed
between 2 dates, one before and one on or after the
commencement of that Division, the offence is alleged to have
been committed before that commencement.
Subclause (4) provides that notes inserted into the Evidence Act
2008 by Division 2 of Part 10 do not form part of that Act.
48