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JURY DIRECTIONS AMENDMENT BILL 2013

  Jury Directions Amendment Bill 2013

                        Introduction Print


              EXPLANATORY MEMORANDUM


                              Clause Notes

                      PART 1--PRELIMINARY
Clause 1   sets out the purposes of the Bill. This Bill builds on the reforms
           to the law of jury directions in the Jury Directions Act 2013.
           The Bill amends the Jury Directions Act 2013 in relation to the
           operation of Part 3 of that Act and notice of evidence to be relied
           on as evidence of incriminating conduct.
           The Bill amends the Jury Directions Act 2013 to simplify and
           clarify directions on--
             ·      proof beyond reasonable doubt;
             ·      other misconduct evidence;
             ·      unreliable evidence;
             ·      identification evidence;
             ·      delay and forensic disadvantage;
             ·      delay and credibility in sexual offence cases;
             ·      a failure to call a witness or give evidence.
           The Bill also--
             ·      amends the Evidence Act 2008 in relation to
                    corroboration directions; and
             ·      makes consequential and other amendments.




571339                               1         BILL LA INTRODUCTION 9/12/2013

 


 

Clause 2 provides for the commencement of the Bill. Subclause (1) provides that the Act will commence on a day or days to be proclaimed. Subclause (2) provides that if a provision of the Act does not commence before 30 June 2014, it comes into operation on that day. PART 2--AMENDMENT OF THE JURY DIRECTIONS ACT 2013 Clause 3 amends the purposes of the Jury Directions Act 2013 by replacing sections 1(f) and (g), which refer to reforms on the meaning of proof beyond reasonable doubt and to directions on post-offence conduct, with a general statement that a purpose of the Act is to provide for simplified jury directions in relation to specific issues. Clause 4 amends paragraph (g) of the definition of general directions in section 3 of the Jury Directions Act 2013 by clarifying that this paragraph includes directions on what must be proved beyond reasonable doubt. This is to make clear, for the avoidance of doubt, that the directions referred to in clause 11 (new section 19A) are not subject to the jury direction request provisions in Part 3 of the Jury Directions Act 2013. Clause 5 inserts a new section 6A into the Jury Directions Act 2013. New section 6A(1) requires the trial judge to correct statements or suggestions that are prohibited by the Act and that are either made by the prosecution or defence counsel (or an unrepresented accused), or contained in a jury question. As the note indicates, new sections 37 (Prohibited statements and suggestions in relation to children's evidence), 48(1) (Prohibited statements and suggestions in relation to complainants) and 53 (Prohibited statements and suggestions in relation to accused who does not give evidence or call witness) of the Jury Directions Act 2013 prohibit certain statements or suggestions. New section 6A(2) qualifies the requirement in subsection (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 2

 


 

statement made by counsel if counsel has already corrected his or her own statement. Clause 6 amends section 9 of the Jury Directions Act 2013, by inserting new subsections (2) and (3) which 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 providing longer directions in the summing up. New section 9(2) clarifies that Part 3 of the Jury Directions Act 2013 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 new Part 7. New subsection (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 Jury Directions Act 2013. The parties may already know that they will not request a direction on the same evidence as part of the summing up. Clause 7 substitutes section 10 of the Jury Directions Act 2013 to reflect the obligations of both the prosecution and defence counsel in assisting the trial judge to determine the matters in issue. Section 10 currently requires defence counsel to inform the trial judge whether certain matters are or are not in issue. New section 10 specifically requires the prosecution to first 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; · any alternative basis of complicity in the commission of the offence charged and any alternative offence. 3

 


 

This will facilitate defence counsel advising whether it considers that these matters (and the matters currently covered by section 10(a) and (b) of the Jury Directions Act 2013) are or are not in issue. Clause 8 substitutes "10(b)" for "10" in section 12(1) of the Jury Directions Act 2013 to take account of the amendments to section 10 made by clause 7 of the Bill. Clause 9 substitutes section 13 of the Jury Directions Act 2013 to provide that, subject to section 15, the trial judge must not (rather than "need not" as it is currently described in the Jury Directions Act 2013) give a direction that has not been requested under section 11. These amendments clarify that the only reason why a trial judge would give a direction that has not been requested is if the residual obligation in section 15 of the Jury Directions Act 2013 applies. Clause 10 amends section 15 of the Jury Directions Act 2013 to replace the "substantial miscarriage of justice" test with a new test that requires the trial judge to give a direction if the trial judge considers that there are substantial and compelling reasons to give the direction. Amended section 15(1) provides that this residual obligation applies despite the fact that the direction has not been requested under section 11. 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 new test will separate the meaning of section 15 from the interpretation of "substantial miscarriage of justice" in the Criminal Procedure Act 2009, and will avoid the trial judge having to predict how the Court of Appeal may deal with an issue on appeal when determining whether to exercise the residual obligation. 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" (i.e. they substantially outweigh the reasons for not giving the direction). Section 15 no longer applies "despite sections 13 and 14". Clause 9 makes it clear that section 13 is subject to section 15. It is not necessary that section 14 be subject to section 15 given 4

 


 

that section 15 focuses on when a direction has not been requested. Section 14 already requires a trial judge to give a requested direction unless there are good reasons for not doing so. Subclause (2) substitutes "is considering giving" for "intends to give" in section 15(2), to avoid any implication that the trial judge has already decided to give the direction before seeking counsel's views. Subclause (3) repeals the note at the foot of section 15. The note was relevant to the "substantial miscarriage of justice" test, and it is no longer necessary given the amendments to section 15(1). Clause 11 inserts new sections 19A and 19B into the Jury Directions Act 2013. These sections reform the law on directions on what must be proved beyond reasonable doubt by replacing common law rules with new provisions. New section 19A 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 new section 19A provides that if the trial judge directs the jury on one of the matters referred to in subsection (1) in the form of a factual question under section 19(2) or (3), the trial judge must direct the jury that it must be satisfied of that matter beyond reasonable doubt. The direction under new section 19A need not be provided in a vacuum. Consistent with the obligations in the guiding principles in section 5 of the Jury Directions Act 2013, 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 new section 19B, new section 19A 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). 5

 


 

Note 2 to new section 19A refers to enactments that provide that other matters must be proved beyond reasonable doubt. These are-- · section 37AAA(c) of the Crimes Act 1958, which provides that if a jury is satisfied beyond reasonable doubt of a circumstance of consent in sexual offence trials, they must find that the complainant was not consenting; and · section 45 of the Crimes Act 1958 which provides that if an accused pleads not guilty to an offence of sexual penetration of a child under 16, the jury must be satisfied beyond reasonable doubt of a circumstance of aggravation, as described in section 45(2). New section 19B abolishes common law obligations to direct that matters not referred to in section 19A 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 satisfied beyond reasonable doubt of a matter other than a matter referred to in section 19A. Clause 12 inserts new section 23(3) and (4) in the Jury Directions Act 2013 to allow the trial judge to dispense with the requirements of section 23(1)(a) or (b) in certain circumstances. Section 23 requires the prosecution to give notice of evidence that it proposes to rely on as evidence of incriminating conduct. Section 7 allows the Court to extend or abridge the time fixed under section 23, but does not empower the Court to dispense with the additional requirements under section 23, 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). The amendments made by this clause will facilitate the effective operation of the Court, while still ensuring that the prosecution appropriately identifies conduct that it proposes to rely on as evidence of incriminating conduct. 6

 


 

Clause 13 makes consequential amendments to Part 6 of the Jury Directions Act 2013. Subclauses (1) and (2) reflect the new "substantial and compelling reasons" test in section 15, by referring to the new test in the notes at the foot of sections 26 and 27(1), respectively. Section 28(2) of that Act 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 clause 11 are of general application and make the specific abolition of Shepherd v R [1990] HCA 56 in section 28(2) redundant. Accordingly, subclause (3) repeals section 28(2) of the Jury Directions Act 2013, subclause (4) removes the reference to the application of Shepherd v R [1990] HCA 56 to post-offence conduct and subclause (5) adds a note referring to new sections 19A and 19B. Clause 14 substitutes a number of new Parts into the Jury Directions Act 2013. Each of the new Parts deals with a specific jury directions topic. New Part 7--Other misconduct evidence This Part reforms the law on tendency, coincidence, context and relationship evidence directions by replacing common law rules on these directions with new provisions. New section 29 provides that this Part 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 may be interpreted as requiring trial judges to direct juries on impermissible uses. This section makes it clear that new sections 31 and 32, which specifically provide that judges need not direct juries on impermissible uses of the evidence, apply despite section 95. 7

 


 

New section 30 contains definitions for this Part. 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. Subparagraphs (c) and (d) provide broad definitions of evidence that would be described as relationship or context evidence under the common law. New section 31 allows defence counsel to request, under section 11 of the Jury Directions Act 2013, a direction on other misconduct evidence adduced by the prosecution. New section 31(2) sets out the minimum requirements of such a direction. A direction which complies with these minimum requirements will provide sufficient and valuable assistance to the jury to properly consider such evidence. 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, new section 31(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 new sections 33 and 34, 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). 8

 


 

New section 32 provides for directions on other misconduct evidence adduced by an accused about a co-accused. The provision is based on section 31, with relevant amendments to remove the reference to the prosecution case, as this is not relevant where the evidence is adduced by an accused. New section 33 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 Act, requests will be made under section 11 of the Jury Directions Act 2013. Consistent with section 27(2) of the Act, new section 33(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. New section 34 abolishes common law rules to the contrary of this Part. New Part 8--Unreliable evidence This Part 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 Jury Directions Act 2013. As is the case currently, the Part 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. The Part 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. New section 35 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-- (a) it does not include section 165(1)(b), as identification evidence is dealt with in new Part 9, or section 165(1)(g), as proceedings against deceased estates are not relevant to criminal trials; and 9

 


 

(b) 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. New section 36 allows the parties to request, under section 11 of the Jury Directions Act 2013, 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. New section 36(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. The notes to the section alert readers to related provisions, such as the provisions on identification evidence and corroboration directions. New section 37 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 new sections 48(1) and 53, the section addresses common misconceptions that should not be suggested to the jury at all, by either the parties or the trial judge. New section 37(d) differs from section 165A(1)(d) 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, 10

 


 

section 164 of the Evidence Act 2008 relates to corroboration directions generally. The first note refers to new section 6A, which provides for the correction of statements or suggestions that contravene this section. New section 38 abolishes common law rules to the contrary of this Part. New Part 9--Identification evidence This Part 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. New section 39 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. New section 40 allows parties to request a direction on identification evidence under section 11 of the Jury Directions Act 2013. Consistent with new Part 8 (which deals with unreliable evidence), the party making the request must specify the significant matters that may make the evidence unreliable. If the trial judge gives a direction, new section 40(3) sets out the minimum, and sufficient, content of the direction. Section 40(3)(a) and (b) are consistent with the equivalent sections in the unreliable evidence section (new sections 36(3)(b) and (c)). Section 40(3)(c) to (e) require the trial judge to highlight specific factors relevant to identification evidence. Section 40(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. Section 40(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 11

 


 

negative identification evidence (for example, where a witness says the perpetrator did not look like the accused). New section 41 abolishes common law rules to the contrary of this Part. New Part 10--Delay and forensic disadvantage This Part 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. New section 42 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. New section 43(1) provides that defence counsel may request a direction on forensic disadvantage experienced by the accused under section 11 of the Jury Directions Act 2013. New section 43(2) qualifies the threshold in section 14 of the Act 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, new section 43(2) (in conjunction with new section 44) makes it clear that the trial judge may only give a forensic disadvantage direction if satisfied 12

 


 

that the accused has experienced a significant forensic disadvantage. If the trial judge gives a direction, new section 43(3) sets out the minimum, and sufficient, requirements of the direction. New section 43(3)(a) mirrors the requirements of section 165B(2) of the Evidence Act 2008. New section 43(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. New section 44 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 new Part 10. Note 1 to clause 44 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. New Part 11--Delay and credibility (sexual offences) This Part 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 Part 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 Part addresses the misconceptions that a genuine sexual offence victim would complain about the 13

 


 

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. New section 45 provides that this Part applies to a criminal proceeding that relates (wholly or partly) to a charge for a sexual offence. New section 46 provides that Part 3 of the Jury Directions Act 2013 does not apply to this Part (except to new section 50). Unlike the majority of the Act, most of the directions in this Part will not depend on a request from counsel. New section 47 defines terms used in this Part. 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 new section 45. New section 48(1) 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. New section 48(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. New section 48(1)(b) is quite similar to subsection (1)(a) and is included to capture what counsel or the trial judge might express as their own, or another person's, view. 14

 


 

New section 48(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 (as is reflected in note 3) and the trial judge may refer to these statements when summing up. For example, under this Part, 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). New section 48(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. New section 49 sets out when a direction under new section 49(4) must be given on delay in complaint or lack of complaint. New section 49(1) provides that the trial judge must give a section 49(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. New section 49(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 section 49(4) direction as soon as is practicable. 15

 


 

The trial judge may also repeat a direction at any time in the trial, under new section 49(3). New section 49(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 · 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, new section 49(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 Part 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. New section 49(5) clarifies that, for example, the trial judge may give a direction on how the jury may consider conflicting expert evidence. New section 50 provides that the prosecution may request, under section 11 of the Jury Directions Act 2013, 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. New section 51 abolishes common law rules to the contrary of this Part. 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. 16

 


 

New Part 12--Failure to give evidence or call witness This Part 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 Part replaces section 20 of the Evidence Act 2008 and complex common law rules with new provisions. New section 52 provides that, if the accused does not give evidence or call a particular witness, defence counsel may request a direction under section 11 of the Jury Directions Act 2013. This provision and new section 53 will replace section 20 of the Evidence Act 2008 (see clause 16 of the Bill). New section 52(2) sets out the minimum 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-- (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 requires); and (c) 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 (d) 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. New section 53 sets out certain matters that the trial judge and parties are prohibited from saying or suggesting in any way to the jury. Under new section 53(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. 17

 


 

Under new section 53(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 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 new section 53(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, new section 6A provides that the trial judge must correct the statements or suggestions of parties or jury questions to the contrary of this provision. New section 54 provides that defence counsel may request a direction under section 11 of the Jury Directions Act 2013 when the prosecution does not call or question a witness. This replaces the Jones v Dunkel direction for the prosecution with a statutory direction. New section 54(2) qualifies the threshold in section 14 of the Jury Directions Act 2013 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 18

 


 

the judge would find that there are good reasons not to give the direction under section 14 of the Jury Directions Act 2013. New section 55(1) provides that except as provided by this Part, a trial judge is not required to direct the jury when the accused does not give evidence or call witnesses, or when the prosecution does not call or question a witness. New section 55(2) abolishes common law rules to the contrary of subsection (1). The note clarifies that this 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). New Part 13--Transitional provisions New section 56 provides that the Schedule to the Jury Directions Act 2013 continues to have effect. The Schedule currently provides the transitional provision for the commencement of the Jury Directions Act 2013. Clause 15 inserts new clause 2 into the Schedule to the Jury Directions Act 2013. New clause 2 provides that the Act as amended by Part 2 of the Jury Directions Amendment Act 2013 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 Part 2 comes into operation. Under section 210 of the Criminal Procedure Act 2009 a trial commences when the accused pleads not guilty on arraignment in the presence of the jury panel (or the first part of the panel). The amendments made by Part 2 of the Jury Directions Amendment Act 2013 will apply to trials that commence after Part 2 of the Act comes into operation, even if, for example the trial is a retrial and the original trial (and appeal) occurred before the Act came into force or there was an earlier trial before the Act came into force, where the jury was discharged without verdict. PART 3--AMENDMENT OF THE EVIDENCE ACT 2008 Clause 16 repeals section 20 of the Evidence Act 2008. A note will be added into the Evidence Act 2008 that will make it clear that new Part 12 of the Jury Directions Act 2013 contains provisions on the failure to give evidence or call witnesses in criminal trials. 19

 


 

Clause 17 repeals section 116 of the Evidence Act 2008 (other than the heading). The section, which relates to identification evidence directions in criminal proceedings, is no longer required given new Part 9 of the Jury Directions Act 2013. A note will be added to the Evidence Act 2008 that make it clear that new Part 9 of the Jury Directions Act 2013 contains provisions relating to identification evidence in criminal trials. Clause 18 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 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 19 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. New Part 8 of the Jury Directions Act 2013 deals with unreliable evidence directions in criminal trials. New notes will be added into the Evidence Act 2008 that will make this clear. 20

 


 

Clause 20 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. New Part 8 of the Jury Directions Act 2013 deals with children's evidence directions in criminal trials. New notes will be added into the Evidence Act 2008 that will make this clear. Clause 21 repeals section 165B of the Evidence Act 2008, except for the heading. The section, which relates to delay and forensic disadvantage directions, is no longer required given new Part 10 of the Jury Directions Act 2013. A note will be added into the Evidence Act 2008 that will make it clear that new Part 10 of the Jury Directions Act 2013 contains provisions relating to delay and forensic disadvantage that apply in criminal trials. Clause 22 inserts new Part 4 in Schedule 2 to the Evidence Act 2008, to provide that amendments made by Part 3 of the Jury Directions Amendment Act 2013 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 Part 3 comes into operation. This will operate in the same way as the transitional provision in clause 15 of this Bill. PART 4--AMENDMENT OF CRIMES ACT 1958 Clause 23 substitutes a note in place of section 61 of the Crimes Act 1958, to reflect that section 61 has been replaced by new Parts 10 and 11 of the Jury Directions Act 2013. PART 5--REPEAL OF AMENDING ACT Clause 24 provides for the automatic repeal of this Act on 1 February 2015. 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). 21

 


 

 


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