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PARLIAMENT OF VICTORIA
Jury Directions Amendment Bill 2013
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1 Purposes 1
2 Commencement 2
PART 2--AMENDMENT OF JURY DIRECTIONS ACT 2013 3
3 Amendment of purposes 3
4 Amendment of definition 3
5 New section 6A inserted 3
6A Correction of statements or suggestions that are
contrary to Act 3
6 Application of Part 3 4
7 Section 10 substituted 4
10 Counsel to assist in identification of matters in issue 4
8 Unrepresented accused 5
9 Section 13 substituted 5
13 Trial judge must not give direction that has not been
requested 5
10 When trial judge must give direction regardless of parties'
views 6
11 New sections 19A and 19B inserted 6
19A What must be proved beyond reasonable doubt 6
19B Abolition of common law obligation to give certain
directions 7
12 Prosecution notice of evidence to be relied on as evidence of
incriminating conduct 8
13 Consequential amendment of Part 6 9
14 Part 7 substituted 9
PART 7--OTHER MISCONDUCT EVIDENCE 9
29 Application of Part 9
30 Definitions 10
31 Direction on other misconduct evidence adduced by
the prosecution 10
32 Direction on other misconduct evidence adduced by
accused about a co-accused 11
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Clause Page
33 Direction to avoid risk of improper use of other
misconduct evidence 12
34 Abolition of common law rules 13
PART 8--UNRELIABLE EVIDENCE 13
35 Definition 13
36 Direction on unreliable evidence 14
37 Prohibited statements and suggestions in relation to
children's evidence 15
38 Abolition of common law rules 16
PART 9--IDENTIFICATION EVIDENCE 16
39 Definition 16
40 Direction on identification evidence 17
41 Abolition of common law rules 18
PART 10--DELAY AND FORENSIC DISADVANTAGE 19
42 Definition 19
43 Direction on significant forensic disadvantage 19
44 Abolition of common law rules 20
PART 11--DELAY AND CREDIBILITY (SEXUAL
OFFENCES) 21
45 Application of Part 21
46 Part 3 does not apply 21
47 Definitions 21
48 Prohibited statements and suggestions in relation to
complainants 21
49 Direction on delay in complaint or lack of complaint 22
50 Additional direction on delay in complaint or lack of
complaint 24
51 Abolition of common law rules 24
PART 12--FAILURE TO GIVE EVIDENCE OR CALL
WITNESS 25
52 Direction on accused not giving evidence or calling
witness 25
53 Prohibited statements and suggestions in relation to
accused who does not give evidence or call witness 26
54 Direction on prosecution not calling or questioning
witness 27
55 Abolition of common law rules 27
PART 13--TRANSITIONAL PROVISIONS 28
56 Transitional provisions 28
15 Schedule amended 28
2 Jury Directions Amendment Act 2013 28
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Clause Page
PART 3--AMENDMENT OF EVIDENCE ACT 2008 29
16 Section 20 repealed 29
17 Section 116 repealed 29
18 Corroboration requirements 29
19 Unreliable evidence 30
20 Warnings in relation to children's evidence 30
21 Section 165B repealed 30
22 New Part 4 of Schedule 2 inserted 31
PART 4--TRANSITIONAL PROVISIONS FOR
JURY DIRECTIONS AMENDMENT ACT 2013 31
21 Application of Act as amended 31
PART 4--AMENDMENT OF CRIMES ACT 1958 32
23 Section 61 substituted 32
PART 5--REPEAL OF AMENDING ACT 33
24 Repeal of amending Act 33
ENDNOTES 34
571339B.I-9/12/2013 iii BILL LA INTRODUCTION 9/12/2013
PARLIAMENT OF VICTORIA
Introduced in the Assembly
Jury Directions Amendment Bill 2013
A Bill for an Act to amend the Jury Directions Act 2013, the
Evidence Act 2008 and the Crimes Act 1958 and for other purposes.
The Parliament of Victoria enacts:
PART 1--PRELIMINARY
1 Purposes
The purposes of this Act are--
(a) to amend the Jury Directions Act 2013 in
5 relation to--
(i) the operation of Part 3 of that Act; and
(ii) directions on proof beyond reasonable
doubt; and
(iii) notice of evidence to be relied on as
10 evidence of incriminating conduct; and
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Part 1--Preliminary
s. 2
(iv) directions on other misconduct
evidence; and
(v) directions on unreliable evidence; and
(vi) directions on identification evidence;
5 and
(vii) directions on delay and forensic
disadvantage; and
(viii) directions on delay and credibility in
sexual offence cases; and
10 (ix) directions on a failure to call a witness
or to give evidence; and
(b) to amend the Evidence Act 2008 in relation
to corroboration directions; and
(c) to make consequential and other
15 amendments.
2 Commencement
(1) Subject to subsection (2), this Act comes into
operation on a day or days to be proclaimed.
(2) If a provision of this Act does not come into
20 operation before 30 June 2014, it comes into
operation on that day.
__________________
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Jury Directions Amendment Bill 2013
Part 2--Amendment of Jury Directions Act 2013
s. 3
PART 2--AMENDMENT OF JURY DIRECTIONS ACT 2013
3 Amendment of purposes
For section 1(f) and (g) of the Jury Directions See:
Act No.
Act 2013 substitute-- 12/2013.
LawToday:
5 "(f) to provide for simplified jury directions in www.
legislation.
relation to specific issues.". vic.gov.au
4 Amendment of definition
In section 3 of the Jury Directions Act 2013, in
paragraph (g) of the definition of general
10 directions, after "proof" insert ", including what
must be proved beyond reasonable doubt".
5 New section 6A inserted
After section 6 of the Jury Directions Act 2013
insert--
15 "6A Correction of statements or suggestions
that are contrary to Act
(1) Subject to subsection (2), the trial judge
must--
(a) correct a statement or suggestion by the
20 prosecution or defence counsel (or, if
the accused is unrepresented, the
accused) that is prohibited by this Act;
and
(b) correct a statement or suggestion
25 prohibited by this Act that is in a
question from the jury.
Note
Sections 37, 48(1) and 53 prohibit certain statements
and suggestions.
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(2) The trial judge need not correct a statement
or suggestion referred to in subsection (1) if
there are good reasons for not doing so.
Example
5 A good reason may be that counsel has already
corrected a prohibited statement or suggestion at the
invitation of the trial judge.".
6 Application of Part 3
At the end of section 9 of the Jury Directions Act
10 2013 insert--
"(2) This Part does not preclude the giving of a
direction, that is consistent with this Act, that
the trial judge considers necessary at any
time before the close of all evidence.
15 (3) In determining under subsection (2) whether
a direction is necessary, the trial judge must
have regard to the submissions, if any, of the
prosecution and defence counsel.".
7 Section 10 substituted
20 For section 10 of the Jury Directions Act 2013
substitute--
"10 Counsel to assist in identification of
matters in issue
After the close of all evidence and before the
25 closing address of the prosecution--
(a) 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
30 them--
(i) any alternative offence, including
an element of any alternative
offence;
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(ii) any alternative basis of complicity
in the commission of the offence
charged and any alternative
offence; and
5 (b) defence counsel must then inform the
trial judge whether he or she considers
that the following matters are or are not
in issue--
(i) each element of the offence
10 charged;
(ii) any defence;
(iii) any alternative offence, including
an element of any alternative
offence;
15 (iv) any alternative basis of complicity
in the commission of the offence
charged and any alternative
offence.".
8 Unrepresented accused
20 In section 12(1) of the Jury Directions Act 2013,
for "10" substitute "10(b)".
9 Section 13 substituted
For section 13 of the Jury Directions Act 2013
substitute--
25 "13 Trial judge must not give direction that
has not been requested
Subject to section 15, the trial judge must not
give the jury a direction that has not been
requested under section 11.".
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10 When trial judge must give direction regardless of
parties' views
(1) For section 15(1) of the Jury Directions Act
2013 substitute--
5 "(1) The trial judge must give the jury a direction
if the trial judge considers that there are
substantial and compelling reasons for doing
so even though the direction has not been
requested under section 11.".
10 (2) In section 15(2) of the Jury Directions Act
2013--
(a) in paragraph (a), for "intends to give"
substitute "is considering giving"; and
(b) in paragraph (b), for "whether the direction is
15 necessary to avoid a substantial miscarriage
of justice" substitute "whether there are
substantial and compelling reasons for giving
the direction".
(3) The note at the foot of section 15 of the Jury
20 Directions Act 2013 is repealed.
11 New sections 19A and 19B inserted
After the heading to Part 5 of the Jury Directions
Act 2013 insert--
"19A What must be proved beyond reasonable
25 doubt
Unless an enactment otherwise provides, the
only matters that the trial judge may direct
the jury must be proved beyond reasonable
doubt are--
30 (a) the elements of the offence charged or
an alternative offence; and
(b) the absence of any relevant defence.
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Notes
1 If the trial judge directs the jury about a matter referred
to in paragraph (a) or (b) in the form of a factual
question under section 19(2) or (3), the trial judge must
5 direct the jury that it must be satisfied of that matter
beyond reasonable doubt.
2 Sections 37AAA(c) and 45 of the Crimes Act 1958
refer to specific matters that must be proved beyond
reasonable doubt.
10 Examples
The trial judge may relate the evidence in the trial to
directions under section 19A in many different ways, for
example--
· when directing the jury that an element must be proved
15 beyond reasonable doubt, the trial judge may refer to
the evidence relied on by the prosecution to prove that
element and direct the jury that it must be satisfied that
that evidence proves that element beyond reasonable
doubt; or
20 · where the only evidence relied on by the prosecution to
prove an element is an alleged admission made by the
accused, the trial judge may refer to the alleged
admission and direct the jury that it must be satisfied
that that evidence proves that element beyond
25 reasonable doubt.
19B Abolition of common law obligation to
give certain directions
Any rule of common law under which a trial
judge in a criminal trial is required to direct
30 the jury that a matter, other than a matter
referred to in section 19A, must be proved
beyond reasonable doubt is abolished.
Notes
1 This provision abolishes--
35 · the rule attributed to Shepherd v R [1990]
HCA 56; (1990) 170 CLR 573 that in
appropriate cases a jury must be directed that it
must be satisfied beyond reasonable doubt of an
indispensable intermediate fact; and
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· the rule attributed to R v Sadler [2008]
VSCA 198 that a jury must be directed that it
must be satisfied beyond reasonable doubt of
uncharged acts that the jury would use as a step
5 in their process of reasoning towards guilt; and
· any other rule that requires a jury to be directed
that it must be satisfied beyond reasonable doubt
of any matter other than a matter referred to in
section 19A.
10 2 Section 4 applies generally to override any rule of law
or practice to the contrary of this Act.".
12 Prosecution notice of evidence to be relied on as
evidence of incriminating conduct
After section 23(2) of the Jury Directions Act
15 2013 insert--
"(3) The trial judge may dispense with the
requirements of subsection (1)(a) or (b) if--
(a) during a trial the prosecution first
becomes aware of evidence of conduct
20 that it proposes to rely on as evidence
of incriminating conduct; and
(b) the prosecution gives oral notice to the
court and the accused of its intention to
rely on evidence of incriminating
25 conduct; and
(c) it is in the interests of justice to
dispense with those requirements.
(4) If under subsection (3) the trial judge
dispenses with the requirement of subsection
30 (1)(b), the prosecution must identify orally to
the court and the accused the evidence of
conduct that it proposes to rely on as
evidence of incriminating conduct.".
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13 Consequential amendment of Part 6
(1) In the note at the foot of section 26 of the Jury
Directions Act 2013, for "that is necessary to
avoid a substantial miscarriage of justice"
5 substitute "if the trial judge considers that there
are substantial and compelling reasons for doing
so".
(2) In the note at the foot of section 27(1) of the Jury
Directions Act 2013, for "that is necessary to
10 avoid a substantial miscarriage of justice"
substitute "if the trial judge considers that there
are substantial and compelling reasons for doing
so".
(3) Section 28(2) of the Jury Directions Act 2013 is
15 repealed.
(4) In note 1 at the foot of section 28 of the Jury
Directions Act 2013, omit "and the application of
Shepherd v R [1990] HCA 56; (1990) 170 CLR
573 to post-offence conduct".
20 (5) After note 2 at the foot of section 28 of the Jury
Directions Act 2013 insert--
"3 Section 28(2) was superseded by sections 19A
and 19B.".
14 Part 7 substituted
25 For Part 7 of the Jury Directions Act 2013
substitute--
"PART 7--OTHER MISCONDUCT EVIDENCE
29 Application of Part
This Part applies despite any obligation
30 arising from section 95 of the Evidence Act
2008.
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30 Definitions
In this Part--
coincidence evidence has the same meaning
as in the Evidence Act 2008;
5 other misconduct evidence means--
(a) coincidence evidence; or
(b) tendency evidence; or
(c) evidence of other discreditable
acts and omissions of an accused
10 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
15 any alternative offence is alleged
to have been committed;
tendency evidence has the same meaning as
in the Evidence Act 2008.
31 Direction on other misconduct evidence
20 adduced by the prosecution
(1) Defence counsel may request under
section 11 that the trial judge direct the jury
on other misconduct evidence adduced by
the prosecution.
25 (2) In giving a direction referred to in subsection
(1), the trial judge must--
(a) identify how the other misconduct
evidence is relevant (whether directly
or indirectly) to the existence of a fact
30 in issue in the trial and direct the jury
not to use the evidence for any other
purpose; and
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(b) if the evidence forms only part of the
prosecution case against the accused,
inform the jury of that fact; and
(c) direct the jury that it must not decide
5 the case based on prejudice arising
from what the jury has heard about the
accused.
(3) In giving a direction referred to in subsection
(1), the trial judge need not--
10 (a) explain further what the jury should
consider in deciding whether to use the
other misconduct evidence; or
(b) identify impermissible uses of the other
misconduct evidence; or
15 (c) refer to any other matter.
Note
Section 14 requires the trial judge to give this direction, if
requested, unless there are good reasons for not doing so.
Section 15 requires the trial judge to give a direction if the
20 trial judge considers that there are substantial and
compelling reasons for doing so.
32 Direction on other misconduct evidence
adduced by accused about a co-accused
(1) The prosecution or counsel for a co-accused
25 may request under section 11 that the trial
judge direct the jury on other misconduct
evidence adduced by the accused about the
co-accused.
(2) In giving a direction referred to in subsection
30 (1), the trial judge must--
(a) identify how the other misconduct
evidence is relevant (whether directly
or indirectly) to the existence of a fact
in issue in the trial and direct the jury
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not to use the evidence for any other
purpose; and
(b) direct the jury that it must not decide
the case based on prejudice arising
5 from what the jury has heard about the
co-accused.
(3) In giving a direction referred to in subsection
(1), the trial judge need not--
(a) explain further what the jury should
10 consider in deciding whether to use the
other misconduct evidence; or
(b) identify impermissible uses of the other
misconduct evidence; or
(c) refer to any other matter.
15 Note
Section 14 requires the trial judge to give this direction, if
requested, unless there are good reasons for not doing so.
Section 15 requires the trial judge to give a direction if the
trial judge considers that there are substantial and
20 compelling reasons for doing so.
33 Direction to avoid risk of improper use of
other misconduct evidence
(1) If other misconduct evidence (other than
tendency evidence) is adduced, the
25 prosecution or defence counsel may request
under section 11 that the trial judge warn the
jury not to use the evidence as tendency
evidence.
Note
30 Section 14 requires the trial judge to give this
direction, if requested, unless there are good reasons
for not doing so. Section 15 requires the trial judge to
give a direction if the trial judge considers that there
are substantial and compelling reasons for doing so.
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(2) Without limiting section 14, it is a good
reason for not giving the requested direction
if the trial judge considers that there is no
substantial risk that the jury might use the
5 evidence as tendency evidence.
34 Abolition of common law rules
(1) Except as provided by this Part, a trial judge
is not required to direct the jury regarding
the use of other misconduct evidence.
10 (2) Any rule of common law to the contrary of
this section is abolished.
Note
Section 4 applies generally to override any rule of law or
practice to the contrary of this Act.
15 __________________
PART 8--UNRELIABLE EVIDENCE
35 Definition
In this Part--
evidence of a kind that may be unreliable
20 includes--
(a) evidence in relation to which
Part 3.2 (hearsay evidence) or 3.4
(admissions) of the Evidence Act
2008 applies; and
25 (b) evidence the reliability of which
may be affected by age, ill health
(whether physical or mental),
injury or the like; and
(c) evidence given by a witness who
30 might reasonably be supposed to
have been criminally concerned in
the events giving rise to the trial;
and
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(d) evidence given by a witness who
is a prison informer; and
(e) oral evidence of questioning by an
investigating official (within the
5 meaning of the Evidence Act
2008) of an accused where the
questioning has not been
acknowledged by the accused.
36 Direction on unreliable evidence
10 (1) The prosecution or defence counsel may
request under section 11 that the trial judge
direct the jury on evidence of a kind that may
be unreliable.
(2) In making a request referred to in subsection
15 (1), the prosecution or defence counsel
(as the case requires) must specify--
(a) the significant matters that may make
the evidence unreliable; or
(b) if the request concerns evidence given
20 by a child, the significant matters
(other than solely the age of the child)
that may make the evidence of the child
unreliable.
(3) In giving a direction referred to in subsection
25 (1), the trial judge must--
(a) warn the jury that the evidence may be
unreliable; and
(b) inform the jury of--
(i) the significant matters that the
30 trial judge considers may cause
the evidence to be unreliable; or
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(ii) if the direction concerns evidence
given by a child, the significant
matters (other than solely the age
of the child) that the trial judge
5 considers may make the evidence
of the child unreliable; and
(c) warn the jury of the need for caution in
determining whether to accept the
evidence and the weight to be given to
10 it.
Notes
1 Section 14 requires the trial judge to give this direction,
if requested, unless there are good reasons for not
doing so. Section 15 requires the trial judge to give a
15 direction if the trial judge considers that there are
substantial and compelling reasons for doing so.
2 Section 115(7) of the Evidence Act 2008 and Part 9 of
this Act provide for warnings and information about
identification evidence.
20 3 Section 164(4) of the Evidence Act 2008 provides that
in a criminal proceeding the judge must not--
(a) warn the jury that it is dangerous to act on
uncorroborated evidence or give a warning to the
same or similar effect; or
25 (b) give a direction relating to the absence of
corroboration.
4 Section 164(5) of the Evidence Act 2008 provides that
in a criminal proceeding for the offence of perjury or a
similar or related offence, the judge must direct the jury
30 that it may find the accused guilty only if it is satisfied
that the evidence proving guilt is corroborated.
37 Prohibited statements and suggestions in
relation to children's evidence
The trial judge, the prosecution and defence
35 counsel (or, if the accused is unrepresented,
the accused) must not say, or suggest in any
way, to the jury that--
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(a) children as a class are unreliable
witnesses; or
(b) the evidence of children as a class is
inherently less credible or reliable, or
5 requires more careful scrutiny, than the
evidence of adults; or
(c) a particular child's evidence is
unreliable solely on account of the age
of the child; or
10 (d) it would be dangerous to convict on the
uncorroborated evidence of a witness
because that witness is a child.
Notes
1 Section 6A provides for correction of statements or
15 suggestions to the contrary of this provision.
2 Section 164 of the Evidence Act 2008 relates to
corroboration.
38 Abolition of common law rules
(1) Except as provided by this Part, a trial judge
20 is not required to direct the jury regarding
evidence of a kind that may be unreliable.
(2) Any rule of common law to the contrary of
subsection (1) is abolished.
Note
25 Section 4 applies generally to override any rule of law or
practice to the contrary of this Act.
__________________
PART 9--IDENTIFICATION EVIDENCE
39 Definition
30 In this Part--
identification evidence means an assertion
by a person, or a report of an assertion
by a person, to the effect that--
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(a) he or she recognises, or does not
recognise, a person or object as
the person or object that he or she
saw, heard or perceived on the
5 relevant occasion; or
(b) the general appearance or
characteristics of a person or
object are similar, or are not
similar, to the general appearance
10 or characteristics of the person or
object that he or she saw, heard or
perceived on the relevant
occasion--
and includes--
15 (c) visual identification evidence
within the meaning of section 114
of the Evidence Act 2008; and
(d) picture identification evidence
within the meaning of section 115
20 of the Evidence Act 2008.
Note
Section 115(7) of the Evidence Act 2008
requires particular jury directions in
relation to picture identification
25 evidence.
40 Direction on identification evidence
(1) The prosecution or defence counsel may
request under section 11 that the trial judge
direct the jury on identification evidence.
30 (2) In making a request referred to in subsection
(1), the prosecution or defence counsel (as
the case requires) must specify the
significant matters that may make the
evidence unreliable.
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(3) In giving a direction referred to in subsection
(1), the trial judge must--
(a) warn the jury of the need for caution in
determining whether to accept the
5 evidence and the weight to be given to
it; and
(b) inform the jury of the significant
matters that the trial judge considers
may make the evidence unreliable; and
10 (c) inform the jury that--
(i) a witness may honestly believe
that his or her evidence is accurate
when the witness is, in fact,
mistaken; and
15 (ii) the mistaken evidence of a witness
may be convincing; and
(d) if relevant, inform the jury that a
number of witnesses may all be
mistaken; and
20 (e) if relevant, inform the jury that
mistaken identification evidence has
resulted in innocent people being
convicted.
Note
25 Section 14 requires the trial judge to give this direction, if
requested, unless there are good reasons for not doing so.
Section 15 requires the trial judge to give a direction if the
trial judge considers that there are substantial and
compelling reasons for doing so.
30 41 Abolition of common law rules
(1) Except as provided by this Part, a trial judge
is not required to direct the jury regarding
the unreliability of identification evidence.
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(2) Any rule of common law to the contrary of
subsection (1) is abolished.
Note
Section 4 applies generally to override any rule of law or
5 practice to the contrary of this Act.
__________________
PART 10--DELAY AND FORENSIC
DISADVANTAGE
42 Definition
10 In this Part--
forensic disadvantage means a disadvantage
(that is more than the mere existence of
delay) to the accused in--
(a) challenging, adducing or giving
15 evidence; or
(b) conducting his or her case--
because of the consequences of delay
due to the period of time that has
elapsed between the alleged offence
20 and the trial.
43 Direction on significant forensic
disadvantage
(1) Defence counsel may request under section
11 that the trial judge direct the jury on
25 forensic disadvantage experienced by the
accused.
(2) The trial judge may direct the jury as
referred to in subsection (1) only if the trial
judge is satisfied that the accused has
30 experienced a significant forensic
disadvantage.
(3) In giving a direction referred to in subsection
(1), the trial judge--
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(a) must inform the jury of--
(i) the nature of the disadvantage
experienced by the accused; and
(ii) the need to take the disadvantage
5 into account when considering the
evidence; and
(b) must not say, or suggest in any way, to
the jury that--
(i) it would be dangerous or unsafe to
10 convict the accused; or
(ii) the complainant's evidence should
be scrutinised with great care.
Note
Section 14 requires the trial judge to give this direction, if
15 requested, unless there are good reasons for not doing so.
Section 43(2) qualifies the threshold for giving a requested
direction. Section 15 requires the trial judge to give a
direction if the trial judge considers that there are substantial
and compelling reasons for doing so.
20 44 Abolition of common law rules
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
25 conducting his or her case because of delay
is abolished.
Notes
1 This provision abolishes the rule attributed to
Longman v R [1989] HCA 60; (1989) 168 CLR 79,
30 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.
2 Section 4 applies generally to override any rule of law
35 or practice to the contrary of this Act.
__________________
571339B.I-9/12/2013 20 BILL LA INTRODUCTION 9/12/2013
Jury Directions Amendment Bill 2013
Part 2--Amendment of Jury Directions Act 2013
s. 14
PART 11--DELAY AND CREDIBILITY
(SEXUAL OFFENCES)
45 Application of Part
This Part applies to a criminal proceeding
5 that relates (wholly or partly) to a charge for
a sexual offence.
46 Part 3 does not apply
Part 3 does not apply to this Part (except
section 50).
10 47 Definitions
In this Part--
delay in making a complaint includes
where--
(a) the complainant has not pursued,
15 or continued to pursue, the
complaint in a timely manner; and
(b) the complainant has not made a
complaint at the first, or a
subsequent, reasonable
20 opportunity to complain;
sexual offence has the same meaning as in
the Criminal Procedure Act 2009;
sexual offence case means a criminal
proceeding referred to in section 45.
25 48 Prohibited statements and suggestions in
relation to complainants
(1) The trial judge, the prosecution and defence
counsel (or, if the accused is unrepresented,
the accused) must not say, or suggest in any
30 way, to the jury that--
(a) the law regards complainants in sexual
offence cases as an unreliable class of
witness; or
571339B.I-9/12/2013 21 BILL LA INTRODUCTION 9/12/2013
Jury Directions Amendment Bill 2013
Part 2--Amendment of Jury Directions Act 2013
s. 14
(b) complainants in sexual offence cases
are an unreliable class of witness; or
(c) complainants who delay in making a
complaint or do not make a complaint
5 are, as a class, less credible or require
more careful scrutiny than other
complainants.
(2) The trial judge must not say, or suggest in
any way, to the jury that, because the
10 complainant delayed in making a complaint
or did not make a complaint--
(a) it would be dangerous or unsafe to
convict the accused; or
(b) the complainant's evidence should be
15 scrutinised with great care.
Notes
1 The trial judge is not required to inform the jury about
the matters set out in this section.
2 Section 6A provides for correction of statements or
20 suggestions to the contrary of section 48(1).
3 The trial judge, the prosecution and defence counsel
(or, if the accused is unrepresented, the accused) may
say or suggest that the particular complainant's delay in
making a complaint or lack of a complaint does, or
25 may, affect the complainant's credibility.
49 Direction on delay in complaint or lack of
complaint
(1) If, before any evidence is adduced in the trial
and after hearing submissions from the
30 prosecution and defence counsel (or, if the
accused is unrepresented, the 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
35 or did not make a complaint, the trial
judge--
571339B.I-9/12/2013 22 BILL LA INTRODUCTION 9/12/2013
Jury Directions Amendment Bill 2013
Part 2--Amendment of Jury Directions Act 2013
s. 14
(a) must direct the jury in accordance with
subsection (4) before any evidence
about delay in making a complaint or
lack of complaint is adduced; and
5 (b) may give the direction before any
evidence is adduced in the trial.
(2) If, at any other time during the trial, the trial
judge considers that there is evidence in the
trial that suggests that the complainant
10 delayed in making a complaint or did not
make a complaint, the trial judge must direct
the jury in accordance with subsection (4) as
soon as is practicable.
(3) The trial judge may repeat a direction under
15 this section at any time in the trial.
(4) In giving a direction under this section, the
trial judge must inform the jury that
experience shows that--
(a) people may react differently to sexual
20 offences and there is no typical, proper
or normal response to a sexual offence;
and
(b) some people may complain
immediately to the first person they see,
25 while others may not complain for
some time and others may never make
a complaint; and
(c) delay in making a complaint in respect
of a sexual offence is a common
30 occurrence.
(5) This section does not limit any direction that
the trial judge may give the jury in relation to
evidence given by an expert witness.
571339B.I-9/12/2013 23 BILL LA INTRODUCTION 9/12/2013
Jury Directions Amendment Bill 2013
Part 2--Amendment of Jury Directions Act 2013
s. 14
50 Additional direction on delay in complaint
or lack of complaint
The prosecution may request under
section 11 that the trial judge direct the jury
5 that there may be good reasons why a person
may not complain, or may delay in
complaining, about a sexual offence.
Note
Section 14 requires the trial judge to give this direction, if
10 requested, unless there are good reasons for not doing so.
Section 15 requires the trial judge to give a direction if the
trial judge considers that there are substantial and
compelling reasons for doing so.
51 Abolition of common law rules
15 Any rule of common law under which a trial
judge is required to direct the jury that--
(a) a complainant's delay in making a
complaint or lack of complaint may
cast doubt on the reliability of the
20 complainant's evidence; and
(b) the jury should take this into account
when evaluating the credibility of the
allegations made by the complainant--
is abolished.
25 Notes
1 This provision abolishes the rules attributed to
Kilby v R [1973] HCA 30; (1973) 129 CLR 460
and Crofts v R [1996] HCA 22; (1996) 186 CLR 427.
2 Section 4 applies generally to override any rule of law
30 or practice to the contrary of this Act.
__________________
571339B.I-9/12/2013 24 BILL LA INTRODUCTION 9/12/2013
Jury Directions Amendment Bill 2013
Part 2--Amendment of Jury Directions Act 2013
s. 14
PART 12--FAILURE TO GIVE EVIDENCE OR
CALL WITNESS
52 Direction on accused not giving evidence
or calling witness
5 (1) If the accused does not give evidence or call
a particular witness, defence counsel may
request under section 11 that the trial judge
direct the jury on that fact.
(2) In giving a direction referred to in subsection
10 (1), the trial judge must explain--
(a) the prosecution's obligation to prove
that the accused is guilty; and
(b) that the accused is not required to give
evidence or call a witness (as the case
15 requires); and
(c) that the jury should not guess or
speculate about what might have been
contained in--
(i) the evidence that was not given by
20 the accused; or
(ii) the evidence that might have been
given by a witness who was not
called--
as the case requires; and
25 (d) that the fact that the accused did not
give evidence or call a witness (as the
case requires)--
(i) is not evidence against the
accused; and
30 (ii) is not an admission by the
accused; and
571339B.I-9/12/2013 25 BILL LA INTRODUCTION 9/12/2013
Jury Directions Amendment Bill 2013
Part 2--Amendment of Jury Directions Act 2013
s. 14
(iii) must not be used to fill gaps in the
evidence adduced by the
prosecution; and
(iv) does not strengthen the
5 prosecution case.
Note
Section 14 requires the trial judge to give this direction, if
requested, unless there are good reasons for not doing so.
Section 15 requires the trial judge to give a direction if the
10 trial judge considers that there are substantial and
compelling reasons for doing so.
53 Prohibited statements and suggestions in
relation to accused who does not give
evidence or call witness
15 The trial judge, the prosecution and defence
counsel (or, if the accused is unrepresented,
the accused) must not say, or suggest in any
way, to the jury that, because an accused did
not give evidence or call a particular witness
20 (as the case requires), the jury may--
(a) conclude that the accused is guilty from
that fact; or
(b) use the failure of the accused to provide
an explanation of facts, which must be
25 within the knowledge of the accused, to
more safely draw an adverse inference
based on those facts which, if drawn,
would prove the guilt of the accused; or
(c) draw an inference that the accused did
30 not give evidence or call a witness (as
the case requires) because that would
not have assisted his or her case.
Note
Section 6A provides for correction of statements or
35 suggestions to the contrary of this provision.
571339B.I-9/12/2013 26 BILL LA INTRODUCTION 9/12/2013
Jury Directions Amendment Bill 2013
Part 2--Amendment of Jury Directions Act 2013
s. 14
54 Direction on prosecution not calling or
questioning witness
(1) If the prosecution does not call or question a
particular witness, defence counsel may
5 request under section 11 that the trial judge
direct the jury on that fact.
(2) The trial judge may direct the jury as
referred to in subsection (1) only if the trial
judge is satisfied that the prosecution--
10 (a) was reasonably expected to call or
question the witness; and
(b) has not satisfactorily explained why it
did not call or question the witness.
(3) In giving a direction referred to in subsection
15 (1), the trial judge may inform the jury that it
may conclude that the witness would not
have assisted the prosecution's case.
Note
Section 14 requires the trial judge to give this direction, if
20 requested, unless there are good reasons for not doing so.
Section 54(2) qualifies the threshold for giving a requested
direction. Section 15 requires the trial judge to give a
direction if the trial judge considers that there are substantial
and compelling reasons for doing so.
25 55 Abolition of common law rules
(1) Except as provided by this Part, a trial judge
is not required to direct the jury--
(a) when the accused does not give
evidence or call witnesses; or
30 (b) when the prosecution does not call or
question a witness.
571339B.I-9/12/2013 27 BILL LA INTRODUCTION 9/12/2013
Jury Directions Amendment Bill 2013
Part 2--Amendment of Jury Directions Act 2013
s. 15
(2) Any rule of common law to the contrary of
subsection (1) is abolished.
Notes
1 This provision abolishes directions based on the rule
5 attributed to Weissensteiner v R [1993] HCA 65;
(1993) 178 CLR 217 and applied in Azzopardi v R
[2001] HCA 25; (2001) 205 CLR 50 and the rule
attributed to Jones v Dunkel [1959] HCA 8; (1959) 101
CLR 298 and applied to the accused and prosecution in
10 criminal cases in Dyers v R [2002] HCA 45; (2002)
210 CLR 285.
2 Section 4 applies generally to override any rule of law
or practice to the contrary of this Act.
__________________
15 PART 13--TRANSITIONAL PROVISIONS
56 Transitional provisions
The Schedule continues to have effect.
__________________".
15 Schedule amended
20 In the Schedule to the Jury Directions Act 2013,
after clause 1 insert--
"2 Jury Directions Amendment Act 2013
This Act as amended by Part 2 of the Jury
Directions Amendment Act 2013 applies to
25 a trial that commences (within the meaning
of section 210 of the Criminal Procedure
Act 2009) on or after the day on which
Part 2 of that Act comes into operation.".
__________________
571339B.I-9/12/2013 28 BILL LA INTRODUCTION 9/12/2013
Jury Directions Amendment Bill 2013
Part 3--Amendment of Evidence Act 2008
s. 16
PART 3--AMENDMENT OF EVIDENCE ACT 2008
16 Section 20 repealed
Section 20 of the Evidence Act 2008 (other than See:
Act No.
the heading) is repealed. 47/2008.
Reprint No. 1
as at
1 January
2011
and
amending
Act Nos
29/2011,
52/2012 and
67/2013.
LawToday:
www.
legislation.
vic.gov.au
5 17 Section 116 repealed
Section 116 of the Evidence Act 2008 (other than
the heading) is repealed.
18 Corroboration requirements
(1) In section 164(3) of the Evidence Act 2008, after
10 "jury" (where first occurring) insert "in a civil
proceeding".
(2) After section 164(3) of the Evidence Act 2008
insert--
"(4) Subject to subsection (5), if there is a jury in
15 a criminal proceeding, the judge must not--
(a) warn the jury that it is dangerous to act
on uncorroborated evidence or give a
warning to the same or similar effect;
or
20 (b) direct the jury regarding the absence of
corroboration.
571339B.I-9/12/2013 29 BILL LA INTRODUCTION 9/12/2013
Jury Directions Amendment Bill 2013
Part 3--Amendment of Evidence Act 2008
s. 19
(5) In a criminal proceeding for the offence of
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
5 evidence proving guilt is corroborated.
(6) The principles and rules of the common law
that relate to jury directions or warnings on
corroboration of evidence, or the absence of
corroboration of evidence, in criminal trials
10 to the contrary of this section are abolished.
Note
Subsections (4), (5) and (6) do not appear in the
Commonwealth Act and New South Wales Act.".
19 Unreliable evidence
15 In section 165(1) of the Evidence Act 2008--
(a) after "evidence" (where first occurring)
insert "in a civil proceeding that is
evidence"; and
(b) paragraphs (d), (e) and (f) are repealed.
20 20 Warnings in relation to children's evidence
In section 165A(1) of the Evidence Act 2008--
(a) for "any proceeding" substitute "any civil
proceeding"; and
(b) in paragraph (c), for "child;" substitute
25 "child."; and
(c) paragraph (d) is repealed.
21 Section 165B repealed
Section 165B of the Evidence Act 2008
(other than the heading) is repealed.
571339B.I-9/12/2013 30 BILL LA INTRODUCTION 9/12/2013
Jury Directions Amendment Bill 2013
Part 3--Amendment of Evidence Act 2008
s. 22
22 New Part 4 of Schedule 2 inserted
After clause 20 of Schedule 2 to the Evidence Act
2008 insert--
"PART 4--TRANSITIONAL PROVISIONS FOR
5 JURY DIRECTIONS AMENDMENT ACT 2013
21 Application of Act as amended
This Act as amended by Part 3 of the Jury
Directions Amendment Act 2013 applies to
a trial that commences (within the meaning
10 of section 210 of the Criminal Procedure
Act 2009) on or after the day on which
Part 3 of that Act comes into operation.".
__________________
571339B.I-9/12/2013 31 BILL LA INTRODUCTION 9/12/2013
Jury Directions Amendment Bill 2013
Part 4--Amendment of Crimes Act 1958
s. 23
PART 4--AMENDMENT OF CRIMES ACT 1958
23 Section 61 substituted
See: For section 61 of the Crimes Act 1958
Act No.
6231. substitute--
Reprint No. 24
5 as at "Note
1 July 2013
and Subdivision (8F) previously provided for jury directions
amending concerning delay in sexual offence cases. Those matters are
Act Nos now provided for by the Jury Directions Act 2013. In
16/2004,
27/2011,
particular--
10 60/2013,
70/2013 and
· for directions concerning delay and forensic
72/2013. disadvantage, see Part 10 of that Act; and
LawToday:
www. · for directions concerning delay and credibility, see
legislation. Part 11 of that Act.".
vic.gov.au
__________________
571339B.I-9/12/2013 32 BILL LA INTRODUCTION 9/12/2013
Jury Directions Amendment Bill 2013
Part 5--Repeal of Amending Act
s. 24
PART 5--REPEAL OF AMENDING ACT
24 Repeal of amending Act
This Act is repealed on 30 June 2015.
Note
5 The repeal of this Act does not affect the continuing operation of
the amendments made by it (see section 15(1) of the
Interpretation of Legislation Act 1984).
571339B.I-9/12/2013 33 BILL LA INTRODUCTION 9/12/2013
Jury Directions Amendment Bill 2013
Endnotes
ENDNOTES
By Authority. Government Printer for the State of Victoria.
571339B.I-9/12/2013 34 BILL LA INTRODUCTION 9/12/2013
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