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Jury Directions and Other Acts
Amendment Bill 2017
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
Part 1--Preliminary
Clause 1 sets out the purposes of the Bill. The Bill builds on the Jury
Directions Act 2015, by addressing a number of problematic
jury directions and discouraging or abolishing certain common
law directions. The Bill also amends a number of related
provisions in other Acts. These aims are reflected in the
purposes of the Bill, which are--
• to amend the Jury Directions Act 2015 in relation to--
• criminal proceedings that do not involve a jury;
• directions on evidence of a previous
representation;
• directions on doubts regarding the truthfulness or
reliability of the evidence of a victim;
• directions on the giving of evidence by an
accused;
• directions on the interest an accused or a witness
has in the outcome of a trial;
• directions on a prosecution witness's motive to
lie;
581027 1 BILL LA INTRODUCTION 21/2/2017
• directions about differences in a complainant's
account of an alleged sexual offence;
• directions about majority verdicts and
persevering to reach a unanimous verdict;
• directions about the order in which certain
matters are considered in jury deliberations;
• to amend the Criminal Procedure Act 2009 to repeal
provisions relating to an exception to the hearsay rule
and the giving of evidence by alternative means, and to
make further provision in relation to documents that are
given to juries;
• to amend the Evidence Act 2008 in relation to an
exception to the hearsay rule;
• to amend the Evidence (Miscellaneous Provisions)
Act 1958 to repeal provisions relating to the giving of
evidence by alternative means;
• to amend the Juries Act 2000 in relation to--
• peremptory challenges in criminal trials; and
• the failure of a jury to reach a unanimous verdict;
and
• to make minor amendments of a statute law revision
nature.
Clause 2 provides for the commencement of the Bill.
Subclause (1) provides that sections 21 and 23 come into
operation on the day after the day on which the Act receives
the Royal Assent.
Subclause (2) provides that subject to subsection (3), the
remaining provisions of the Act come into operation on a
day or days to be proclaimed.
Subclause (3) provides that if a provision of the Act does not
come into operation before 1 October 2017, it comes into
operation on that day.
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Part 2--Amendment of Jury Directions Act 2015
Clause 3 inserts new section 4A of the Jury Directions Act 2015.
New section 4A--Application of Act to criminal proceedings
without juries
New section 4A makes provision in relation to how the Jury
Directions Act 2015 applies to magistrates and judges, including
appellate judges and magistrates of the Children's Court, hearing
criminal proceedings without juries.
New section 4A(1) sets out the proceedings to which this section
applies, including summary hearings, committal proceedings,
appeals and cases stated. For example, the section applies to
proceedings in which Court of Appeal judges exercise either
appellate or original criminal jurisdiction.
New section 4A(2) provides that the court's reasoning with
respect to any matter in relation to which Part 4, 5, 6 or 7 makes
provision must be consistent with how a jury would be directed
in accordance with the Jury Directions Act 2015. For example,
the Act provides that forensic disadvantage to an accused due
to delay may only be taken into account if the court is satisfied
that the accused has actually experienced a significant forensic
disadvantage. It is appropriate that a magistrate hearing a
criminal case involving delay and forensic disadvantage uses
this same reasoning.
New subsection (2) also provides that the court must not
accept, rely on or adopt a statement or suggestion that the
Jury Directions Act 2015 prohibits a trial judge from making,
or a direction that the Jury Directions Act 2015 prohibits a trial
judge from giving. Where the Act specifically prohibits a trial
judge making a statement or suggestion, or giving a direction
(for example, because it would be incorrect or misleading), it
would be inappropriate for a magistrate or judge to reason in
accordance with that statement, suggestion or direction.
This section does not impose any additional procedural
requirements on magistrates or judges. For example, this
section does not require magistrates and judges to comply with
the procedural requirements of the Jury Directions Act 2015,
such as--
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• the jury direction request provisions in Part 3; or
• preconditions to the giving of directions where Part 3
does not apply (for example, section 52(1)); or
• notice provisions (for example, section 19).
By imposing the broad requirement that courts reason
consistently with "how a jury would be directed", the section will
operate similarly to a hearing in which the parties had requested
every direction that it would have been open to request
(unless there would have been good reasons not to give a
requested direction).
Clause 4 amends existing section 39(3)(b)(ii) of the Jury Directions
Act 2015 to refer to "victim", rather than "complainant". In the
Jury Directions Act 2015 references to "complainants" are
generally confined to sexual offence trials. Section 39 relates to
directions on significant forensic disadvantage. These directions
arise most often in sexual offence trials, but may also arise in
other criminal trials. Accordingly, it is appropriate that the
provision refer generally to victims.
Clause 5 inserts new Divisions 7, 8, 9 and 10 of Part 4 of the Jury
Directions Act 2015. These new Divisions deal with general
evidential directions requiring reform.
New Division 7--Previous representations
This Division provides that certain common law directions
on previous representations are not required. Trial judges will
still be required to direct on the use of previous representation
evidence (i.e. how the evidence is relevant in the trial) and, if
relevant, its potential unreliability. Directions on use are given
under the Evidence Act 2008. These directions appear to be
working well, and do not require specific provisions in the
Jury Directions Act 2015. If an unreliable evidence direction
is required, this would be governed by section 32 of the
Jury Directions Act 2015.
However, the common law sometimes requires or encourages
trial judges to give additional directions on previous
representations. These directions are often unnecessary,
confusing or unhelpful to jurors. For example, the direction
addressed in new section 44B is self-evident, while the direction
addressed in new section 44C may mislead the jury into thinking
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that a complaint needs to be independently corroborated
(which is incorrect). The Jury Directions Act 2015 aims to
support trial judges to give directions that are as relevant and
helpful as possible. Accordingly, this Division discourages the
use of these specific common law directions by providing that
they are not required.
New section 44A provides that the definition of previous
representation has the same meaning as in the Evidence
Act 2008.
New section 44B provides that the trial judge is not required to
direct the jury that repeating a previous representation does not
make the asserted fact true.
New section 44C applies if evidence of a complaint by an
alleged victim is given by a person who saw, heard or otherwise
perceived the complaint being made. The section provides that
the trial judge is not required to direct the jury that this evidence
does not independently confirm the victim's evidence of the
commission of the alleged offence.
New section 44D applies if evidence is given of a previous
representation about the commission of the alleged offence that
was made in general terms by the victim. The section provides
that the trial judge is not required to direct the jury not to
substitute the evidence of the previous representation for
evidence relating to a specific charge.
New section 44E abolishes any rule of common law under which
a trial judge is required to give the jury a direction referred to this
Division.
As Note 1 provides, this provision abolishes directions based on
Papakosmas v R (1999) 196 CLR 297, R v Stoupas [1998]
3 VR 645 and R v HJS [2000] NSWCCA 205.
New Division 8--Doubts regarding truthfulness or reliability of
victim's evidence
This Division abolishes the problematic Markuleski direction,
which provides that if the jury doubts the truthfulness or
reliability of a complainant's evidence in relation to a charge,
that doubt must be considered by the jury in assessing the
truthfulness or reliability of the complainant's evidence generally
or in relation to other charges. The Markuleski direction is
inconsistent with the direction that the jury must consider each
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charge separately, may lead to impermissible tendency reasoning,
and is likely to confuse jurors rather than assist them.
New section 44F provides that, in a trial in which more than
one offence is charged, the trial judge must not give a Markuleski
direction. The section refers to victims rather than complainants
as the direction is not limited to sexual offence trials.
The prohibition does not extend to counsel. It would be
inappropriate to prevent defence counsel from arguing along
these lines on behalf of an accused. As the Note provides, if
counsel has made a Markuleski type argument, the trial judge
may refer to that argument when complying with section 65 of
the Act (Trial judge's obligations when summing up).
New section 44G abolishes any rule of common law under which
a trial judge is required or permitted to give the jury a Markuleski
direction. Note 1 refers specifically to R v Markuleski (2001)
52 NSWLR 82.
New Division 9--Accused giving evidence, interest in outcome
of trial
This Division addresses the related topics of the evidence of an
accused and interest in the outcome of the trial.
New section 44H clarifies what can and cannot be said on interest
in the outcome of a trial. The common law prohibits the trial
judge from directing the jury as a general consideration that
interest in the outcome of the trial is a factor to consider when
assessing witnesses. Where the accused is the witness, such a
direction would undermine the presumption of innocence.
This prohibition also extends to comments or questions by the
prosecution. The scope of the prohibition on trial judges and the
prosecution is uncertain, and has led to appeals and retrials, while
juries do not receive assistance on how to assess interest in the
outcome of the trial.
New section 44H provides that the trial judge and the parties
must not say or suggest in any way to the jury that--
• an interest in the outcome of the trial is a factor to take
into account in assessing the evidence of witnesses
generally; or
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• the evidence of an accused is less credible, or requires
more careful scrutiny, because any person who is on
trial has an interest in the outcome of that trial.
As Note 1 indicates, section 7 provides for correction of
statements or suggestions to the contrary of this provision.
An accused will always have a general interest in the outcome of
the trial. While this section prohibits statements on this general
interest, Note 2 makes it clear that the trial judge and the parties
may say or suggest that a witness, or an accused, has a particular
interest in the outcome of the trial and this interest does or may
affect the credibility of the witness or the accused. For example,
a particular interest may relate to the protection of a third party or
avoiding a civil claim.
Differentiating between generalisations and statements or
suggestions relevant to the particular person is consistent with the
approach taken in section 51 of the Jury Directions Act 2015.
New section 44I sets out directions on the giving of evidence by
the accused and the interest of the accused in the outcome of the
trial. New section 44I(1) provides that defence counsel may
request a direction under section 12 on either or both of these
matters.
New subsection (2) provides that in giving a direction referred to
in new subsection (1), the trial judge must explain that--
• the accused is not required to give evidence; and
• the fact that the accused has given evidence does not
change the prosecution's obligation to prove that the
accused is guilty; and
• the jury must assess the evidence of the accused in the
same way that the jury assesses the evidence of any
other witness; and
• the jury must not give less weight to the evidence of the
accused just because any person who is on trial has an
interest in the outcome of that trial.
These directions will remind the jury of the onus of proof, and
highlight that that onus has not changed because the accused has
given evidence. The directions on assessment of the evidence
will assist the jury to assess the accused's evidence fairly.
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As is the case generally with directions requested under Part 3,
counsel should request the parts of the direction they would like
given. Not all parts of the direction in new subsection (2) will be
relevant or useful in each trial.
Note 1 refers to the procedure under Part 3 of the Jury
Directions Act 2015. To assist readers, Note 2 refers to
section 41, which provides for directions when an accused
does not give evidence or does not call a particular witness.
New section 44J prohibits certain common law directions relating
to the evidence of an accused that are confusing, unhelpful and
arguably inaccurate. This section provides that the trial judge
must not direct the jury--
• about whether the accused is under more stress than any
other witness; or
• that the accused gave evidence because--
• a guilty person who gives evidence will more
likely be believed; or
• an innocent person can do nothing more than
give evidence.
In relation to the first direction, the accused may, or may not, be
under more stress than any other witness. This depends on the
particular accused, complainant and witnesses. The second
direction is likely to confuse jurors rather than adding to their
understanding of this issue.
The Note clarifies the interaction between this section and
section 65 of the Act, consistent with the Note to new
section 44F.
New section 44K(1) abolishes any rule of common law
prohibiting a trial judge from directing the jury on the interest
a witness or an accused may have in the outcome of a trial.
As Note 1 indicates, this abolishes the rule attributed to
Robinson v R [1991] HCA 38; (1994) 180 CLR 531.
New section 44K(2) abolishes any rule of common law requiring
or permitting jury directions on the matters referred to in new
section 44J. As Note 2 provides, this abolishes directions based
on R v Haggag [1998] VSC 355; (1998) 101 A Crim R 593,
R v McMahon [2004] VSCA 64; (2004) 8 VR 101 and
R v Buckley [2004] VSCA 185; (2004) 10 VR 215.
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New Division 10--Whether a prosecution witness has a motive
to lie
If the question of a prosecution witness's motive to lie is raised
during a trial, trial judges must currently give lengthy directions
that are unclear in scope and may reinforce outdated notions
that victims, particularly of sexual offences, frequently lie.
For example, trial judges must direct the jury that the absence of
a motive to lie cannot enhance a complainant's credibility as there
are many reasons people may lie. Confusingly, juries are then
told not to speculate about any motive to lie. This Division
ensures that directions on motive to lie focus on the burden of
proof and are fair to both the accused and the victim.
New section 44L(1) provides that if the issue of whether a
witness for the prosecution has a motive to lie is raised during
a trial, defence counsel may request under section 12 that the
trial judge direct the jury on that issue. The direction may be
requested both where defence counsel or the accused alleges
that a prosecution witness has a specific motive to lie, and where
no specific motive is raised and the question of motive to lie is
raised inadmissibly (for example, by a prosecution witness asking
"Why would I lie?").
New section 44L(2) provides that in giving this direction, the trial
judge must explain the prosecution's obligation to prove that the
accused is guilty, and that the accused does not have to prove that
the witness had a motive to lie.
It is appropriate that the trial judge reinforce the onus of proof in
giving a direction on whether a prosecution witness has a motive
to lie but the question should otherwise be treated neutrally
(that is, left to the jury to assess).
New section 44M(1) provides that except as provided by this
Division, a trial judge is not required or permitted to direct the
jury on the issue of whether a witness for the prosecution has a
motive to lie. New subsection (2) abolishes any rule of common
law to the contrary. This abolishes problematic common law
directions based on Palmer v R [1998] HCA 2; 193 CLR 1
(see Note 1). The Palmer direction provides that if the jury
rejects the alleged motive of the witness to lie (for example,
because the jury accepts the evidence given by the witness in
rebuttal of the allegation raised by defence counsel) or decides
that the witness did not have a motive to lie, this cannot enhance
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the credibility of the witness. This only removes one reason to
reject the witness's evidence. Such a direction is unfair to the
witness, and unfairly advantageous to the accused.
Abolishing the Palmer direction, and confining directions on
motive to lie to the direction set out in new section 44L, will
ensure that it is left to the jury to decide how motive to lie
(or lack of such a motive) affects the witness's credibility, as is
appropriate.
Clause 6 amends the heading to section 51 of the Jury Directions
Act 2015, by substituting "complainants" with "complainants,
delay and unreliability". This is a more accurate heading for
that section and helps to differentiate that section from new
section 54A.
Clause 7 inserts new Division 3 of Part 5 of the Jury Directions Act 2015.
Part 5 contains directions relevant to sexual offence trials.
New Division 3--Differences in complainant's account
Research demonstrates that people make and recall memories
differently, and that differences in accounts of an alleged sexual
offence are common. For example, an August 2016 report
(Powell, M., Westera, N., Goodman-Delahunty, J., and
Pichler, A.S., "An Evaluation of how Evidence is Elicited from
Complainants of Child Sexual Abuse") published by the Royal
Commission into Institutional Responses to Child Sexual
Abuse found that in the sample study, defence counsel raised
inconsistencies within the complainant's own evidence in more
than 90% of cases.
Research further demonstrates that the normal variability of
memory can be further exacerbated by the impact of trauma, such
as that experienced by victims of sexual assault. However, these
issues are not commonly understood, and instead, juries may be
under the misconception that a true victim will always give a
complete and consistent account of a sexual offence.
Research also indicates that both truthful and untruthful
accounts may contain differences. For example, a 2006
study (Zajac, R., and Hayne, H., "The Negative Effect of
Cross-Examination Style Questioning on Children's Accuracy:
Older Children are Not Immune") found that children changed
over 40% of correct responses during cross-examination style
questioning.
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New Division 3 does not prevent defence counsel from arguing
how differences may affect the credibility of a particular
complainant. However, where there are differences in accounts,
this Division aims to ensure that that the jury deals with those
differences on an informed basis, by addressing these common
misconceptions by way of a "corrective" direction.
New section 54A provides that this Division applies to a criminal
proceeding that relates (wholly or partly) to a charge for a sexual
offence or a charge for an offence of conspiracy or incitement to
commit a sexual offence. As new section 54B provides, Part 3
(Request for directions) does not apply to this Division.
New section 54C defines difference in an account to include a
gap or inconsistency in that account, and a difference between
that account and another account. Sexual offence has the same
meaning as in the Criminal Procedure Act 2009.
New section 54D(1) provides that if, after hearing submissions
from the parties, the trial judge considers that there is evidence
in the trial that suggests a difference in the complainant's account
of the offence charged that is relevant to the complainant's
credibility or reliability, the trial judge must direct the jury in
accordance with new section 54D(2). This is similar to the
process in section 52 of the Act (Direction on delay in complaint
or lack of complaint) but does not apply before any evidence is
adduced in the trial (as differences in accounts will only arise
after evidence is given).
New section 54D(2) sets out the content of the direction.
Subsections (2)(a) and (b) provide context by reminding the jury
that it is up to the jury to decide whether the offence charged, or
any alternative offence, was committed, and that differences in a
complainant's account may be relevant to the jury's assessment of
the complainant's credibility and reliability.
Subsection (2)(c) addresses the misconceptions referred to above,
by providing that experience shows that--
• people may not remember all the details of a sexual
offence or may not describe a sexual offence in the
same way each time; and
• trauma may affect different people differently, including
by affecting how they recall events; and
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• it is common for there to be differences in accounts of
a sexual offence (e.g. people may describe a sexual
offence differently at different times, to different people
or in different contexts); and
• both truthful and untruthful accounts of a sexual offence
may contain differences.
Subsection (2)(d) then reminds jurors that it is up to them to
decide whether or not any differences in the complainant's
account are important in assessing the complainant's credibility
and reliability, and whether they believe all, some or none of the
complainant's evidence.
New section 54D(3) allows the trial judge to repeat such a
direction at any time in the trial.
New section 54D(4) provides 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.
Clause 8 inserts a new heading "Division 1--Proof beyond reasonable
doubt" before section 61 of the Jury Directions Act 2015, to
allow for new Divisions 2 and 3 to be inserted into Part 7.
Clause 9 inserts new Divisions 2 and 3 of Part 7 of the Jury Directions
Act 2015. Part 7 relates to general directions.
New Division 2--Perseverance and majority verdicts
If a jury is having difficulty reaching a unanimous verdict after a
reasonable period of deliberation, trial judges can currently give a
direction encouraging the jury to persevere to reach a unanimous
verdict, while in some cases simultaneously explaining that the
jury may return a majority verdict. This is unhelpful and
confusing for jurors. Accordingly, this Division clarifies when
directions about perseverance and majority verdicts may be
given.
New section 64A defines majority verdict direction as an
explanation that it is possible, or may be possible in some
circumstances, for the jury to return a majority verdict instead of
a unanimous verdict.
12
As the Note indicates, section 46 of the Juries Act 2000 provides
for majority verdicts. Section 46 allows majority verdicts for all
Victorian criminal offences except murder, treason and certain
major drug offences. This Bill does not amend that part of
section 46. (Clause 22 amends other parts of section 46.)
New section 64B provides that the trial judge must not direct
the jury to persevere to reach a unanimous verdict at the same
time as (or immediately before or immediately after) the trial
judge gives a majority verdict direction. By separating the
perseverance and majority verdict directions, each direction will
be clearer and more helpful for the jury in understanding what it
may or must do.
New section 64C allows the trial judge to give a majority verdict
direction regardless of whether the judge has asked the jury to
persevere to reach a unanimous verdict. A trial judge is in the
best position to decide whether it is appropriate to ask the jury
to persevere in a particular case. This section addresses the
statement in R v Ahmet; DPP v Ahmet [2009] VSCA 86 that it
is preferable for the trial judge to direct the jury to persevere to
reach a unanimous verdict before the trial judge gives a majority
direction (see the Note to new section 64C).
New section 64D abolishes any rule of common law under
which a trial judge is required or permitted to direct the jury
to persevere to reach a unanimous verdict at the same time as
(or immediately before or immediately after) the trial judge gives
a majority verdict direction.
Note 1 provides that this provision abolishes the rule attributed to
R v Muto & Eastey [1996] 1 VR 336 and applied in R v Ahmet;
DPP v Ahmet [2009] VSCA 86.
New Division 3--Jury deliberations
This Division allows trial judges to direct on the order in which
juries must consider certain matters, such as the offences charged
and any defences. Presently, trial judges can only direct the jury
as to the sequence in which verdicts must be delivered in court.
Juries receive little assistance in structuring their deliberations
despite there often being a logical order in which to consider
offences, elements or defences. The amendments allow trial
judges to provide clear guidance to juries on how to approach
deliberations.
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New section 64E(1) provides that this section applies to a trial in
which there is more than one offence in respect of which the jury
may return a verdict. For example, in a homicide trial, the jury
may return a verdict of murder or manslaughter--see section 421
of the Crimes Act 1958.
New section 64E(2) allows the trial judge to direct the jury on the
order in which the jury must consider the offences. For example,
in a homicide trial, the trial judge may direct the jury to consider
the offence of manslaughter only if the jury first finds the
accused not guilty of murder.
New section 64E(3) provides that nothing in subsection (2)
prevents the trial judge from directing the jury on the order in
which the jury may consider the offences. That is, the section
does not restrict trial judges' discretion to suggest an order in
which to consider offences (if that is more appropriate for the
particular case).
New section 64F(1) allows the trial judge to direct the jury on the
order in which it must consider elements of an offence, defences,
matters in issue, or alternative bases of complicity. The Note
provides that such a direction may take the form of an integrated
direction or factual question under section 67. Integrated
directions or question trails may be a helpful way for the trial
judge to guide the jury on the order in which to consider matters.
Similar to new section 64E(3), new section 64F(2) provides that
nothing in subsection (1) prevents the trial judge from directing
the jury on the order in which the jury may (rather than must)
consider the matters referred to in that subsection.
New section 64G abolishes any rule of common law under
which a trial judge is not permitted to direct the jury on the
order in which it must consider any of the matters covered in
new sections 64E and 64F. This provision abolishes the rule
attributed to Stanton v R [2003] HCA 29; (2003) 198 ALR 41
and followed in Medici v The Queen [2013] VSCA 111 and
Smith v The Queen [2013] VSCA 11 (see Note 1).
Clause 10 inserts transitional provisions at the end of Schedule 1 to the
Jury Directions Act 2015.
New clause 4(1) provides that the amendments made to the Jury
Directions Act 2015 by a provision of the Jury Directions and
Other Acts Amendment Act 2017 apply to a trial that
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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.
New clause 4(2) provides that new section 4A of the Act
applies, on or after the commencement of section 3 of the Act,
to a hearing in a matter referred to in new section 4A(1) for
which the specified day is on or after that commencement.
New subsection (3) defines specified day according to the
type of proceeding listed in new section 4A(1). For a
committal proceeding the specified day is the day on which the
committal hearing commences; for a case stated, the day of the
commencement of the hearing from which the question of law
arises; for a summary hearing, the hearing of an appeal or a
special hearing, the day of commencement of that hearing.
Part 3--Amendment of Criminal Procedure Act 2009
Clause 11 relates to section 223 of the Criminal Procedure Act 2009,
which provides for jury documents specific to a trial.
To differentiate between these specific jury documents and
the general jury guide provided for in new section 223A
(see clause 12), this clause amends the heading of section 223
to refer to "Jury documents relating to trial issues and evidence",
and inserts the words "specific to the trial" after "guide" in
section 223(1)(ka).
Clause 12 inserts a new section 223A of the Criminal Procedure
Act 2009, which provides for a general jury guide.
The expert Advisory Group that was formed to assist with the
jury directions reform process has developed a general jury
guide. The guide is a written document that summarises
important information relevant to all criminal trials (for example,
the role of the judge and jury, and fundamental legal concepts
such as the presumption of innocence) and contains information
to assist the jury with their deliberations. The guide is currently
being trialled in Victorian courts. New section 223A provides
legislative support for such a guide and allows for the making of
regulations to require its use in each trial.
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New section 223A(1) allows the trial judge to order, at any time
during the trial, that copies of a general jury guide be given to
the jury in any form that the trial judge considers appropriate.
If regulations are made as to timing or content, the trial judge
must comply with those requirements (see new subsection (2)).
New section 223A(3) sets out what a general jury guide may
contain, including general information about--
• the process of criminal trials; and
• legal concepts that are relevant to criminal trials; and
• jury deliberations and processes.
As new section 223A(4) provides, a general jury guide may
include pictures and diagrams.
New section 223A(5) provides that the regulations may prescribe
certain matters in relation to a general jury guide.
Clause 13 repeals sections 361, 375, 375A and 382 of the Criminal
Procedure Act 2009. (See also clause 19, which repeals a
similar provision of the Evidence (Miscellaneous Provisions)
Act 1958.) These provisions require certain directions to be
given to the jury if evidence is given by alternative means
(e.g. by CCTV). This clause repeals those directions.
The directions were designed to minimise the risk of prejudice
to the accused as a result of a witness giving evidence by
alternative means. For example, jurors are told not to draw an
adverse inference to the accused because of the making of the
alternative arrangements. However, as the use of alternative
means and recorded evidence is now commonplace, mandatory
directions are no longer necessary. Further, the wording of the
direction (particularly the reference to "adverse inferences") may
be difficult for jurors to understand. If jurors do understand the
directions, research shows that "limiting" directions such as these
may, by placing ideas in jurors' minds, have the opposite effect to
that which is intended.
Subclause (2) makes a consequential amendment to remove a
reference to section 382.
16
Clause 14 substitutes a Note for section 377 of the Criminal Procedure
Act 2009, which contains an exception to the hearsay rule in
relation to certain child complainants. As the Note indicates,
this matter will now be provided for in section 66 of the
Evidence Act 2008 (see clause 17).
Clause 15 inserts transitional provisions into the Criminal Procedure
Act 2009.
New section 448(1) provides that Division 3 of Part 5.7,
as amended by sections 11 and 12 of the Jury Directions
and Other Acts Amendment Act 2017, applies to a trial that
commences on or after the day on which those sections come
into operation.
New section 448(2) provides that Part 8.2, as amended by
sections 13 and 14 of the Jury Directions and Other
Acts Amendment Act 2017, applies to--
• a trial that commences on or after the day on which
those sections come into operation; and
• a summary hearing held on or after the day on which
those sections come into operation if no evidence has
been given in that hearing before that day.
Unlike a trial, a summary hearing does not have a precise
meaning under the Criminal Procedure Act 2009. Accordingly,
for more certainty, the transitional provision refers to a summary
hearing where no evidence has yet been given.
Clause 16 fixes a typographical error by removing a comma from
section 267(6A) of the Criminal Procedure Act 2009.
Part 4--Amendment of Evidence Act 2008
Clause 17 amends section 66(2) of the Evidence Act 2008 by incorporating
an amended version of section 377 of the Criminal Procedure
Act 2009. (Section 377 is repealed by clause 14.)
Both section 66 of the Evidence Act 2008 and section 377 of the
Criminal Procedure Act 2009 contain exceptions to the hearsay
rule in criminal trials if the maker of the previous representation
is available to give evidence. The provisions overlap but are
structured differently. Further, section 377 is unnecessarily
limited in scope, as it applies only to sexual offence trials and
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does not apply if the complainant turns 18 before the trial
(regardless of their age when making the representation).
In Bryan Stark v R [2013] VSCA 34, Justice Maxwell noted at
[62] that section 377 would be better placed in the Evidence
Act 2008.
This clause consolidates the 2 provisions and broadens the scope
of the exception in existing section 377. The effect of section 66
remains the same. The amended exception in relation to children
applies in any criminal proceedings if the person making the
representation is a victim of the alleged offence and was under
18 years of age when the representation was made.
Children may often delay in reporting an offence and are likely
to first tell a parent, teacher or friend. For example, if an 8 year
old child makes a complaint to their parent but the matter is not
reported until the child is over 18. A child's initial complaint or
statement about an alleged offence will often be the best evidence
of contested facts. Broadening the exception to all criminal
proceedings will ensure that serious criminal offences other than
sexual offences (e.g. family violence offences) are covered.
Including representations made by any persons before they
turn 18 reflects that there can be lengthy delays between the
alleged offending and the start of proceedings, and that it is
inappropriate to exclude relevant evidence from a child just
because they turned 18 years old before the matter reaches court.
Section 377 currently requires the evidence of the child to be
"sufficiently probative". It is not necessary to replicate this
requirement in amended section 66. Under the Evidence
Act 2008, evidence will only be admitted if it is relevant,
subject to exclusions such as the balancing test in section 137
of that Act. The Evidence Act 2008 framework, and the
special considerations that apply to child victims, also
make it unnecessary to replicate the "fresh in the memory"
requirement in existing section 377. As the Note provides,
amended section 66(2) differs from the Commonwealth Act
and New South Wales Act.
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Clause 18 inserts transitional provisions as new Part 7 of Schedule 2 to the
Evidence Act 2008.
New clause 24 of Schedule 2 provides that amended section 66
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 section 17 of the Jury
Directions and Other Acts Amendment Act 2017
comes into operation; and
• a summary hearing held on or after the day on which
section 17 of the Jury Directions and Other
Acts Amendment Act 2017 comes into operation if no
evidence has been given in that hearing before that day.
Unlike a trial, a summary hearing does not have a precise
meaning under the Criminal Procedure Act 2009. Accordingly,
for more certainty, the transitional provision refers to a summary
hearing where no evidence has yet been given.
Part 5--Amendment of Evidence
(Miscellaneous Provisions) Act 1958
Clause 19 repeals section 42V of the Evidence (Miscellaneous Provisions)
Act 1958, which requires the judge to warn the jury not to draw
an inference adverse to the accused because a witness gave
evidence by video link. This is consistent with the repeal of
alternative evidence provisions in the Criminal Procedure
Act 2009 in clause 13.
Clause 20 inserts a transitional provision in the Evidence (Miscellaneous
Provisions) Act 1958.
New section 166 provides that Division 4 of Part IIA as
amended by section 19 of the Jury Directions and Other Acts
Amendment Act 2017 applies to a criminal trial that commences
(within the meaning of section 210 of the Criminal Procedure
Act 2009) on or after the day on which section 19 of the Jury
Directions and Other Acts Amendment Act 2017 comes into
operation.
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Part 6--Amendment of Juries Act 2000
Clause 21 inserts new section 39(2A), (2B) and (2C) in the Juries
Act 2000.
New subsection (2A) provides that each person arraigned must
be given a reasonable opportunity to make each peremptory
challenge that is allowed under section 39(1).
New subsection (2B) provides that without limiting new
subsection (2A), each person arraigned must be given an
adequate opportunity to view the face of the potential juror
before the potential juror is seated.
New subsection (2C) provides that nothing in section 39 of the
Juries Act 2000 requires a potential juror to walk past each
person arraigned. A Note at the foot of new subsection (2C)
states that the procedure of requiring each potential juror to do
this is known as a jury parade.
Clause 22 amends section 46 of the Juries Act 2000 to give trial judges
greater discretion to decide when to accept a majority verdict.
Majority verdicts are permitted in Victoria except in relation
to murder, treason, specific serious drug offences and
Commonwealth offences. This clause does not amend this law.
In trials in which a majority verdict is permitted, trial judges may
only accept a majority verdict if the jury has deliberated for at
least 6 hours. This can result in trial judges having to "fill in
time" where the jury has indicated that it has become deadlocked
early on in a simple trial. Each trial is different and the trial
judge is in the best position to determine the most appropriate
course of action where the jury indicates that it is deadlocked.
Amended section 46(2) allows the trial judge to discharge the
jury or accept a majority verdict if a jury has deliberated for a
period of time that the court thinks is reasonable, having regard
to the nature and complexity of the trial. This is the same "test"
as current subsection (3), but removes the arbitrary 6 hour time
limit. Amended section 46(5) makes the equivalent amendments
in relation to a verdict on an alternative offence.
Section 46(3) is repealed, as it is no longer necessary.
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Clause 23 inserts a transitional provision in Schedule 6 of the Juries
Act 2000.
New clause 17(1) provides that the amendments made to
section 39 by section 21 of the Jury Directions and Other
Acts Amendment Act 2017 apply only in relation to a criminal
trial that commences on or after the day on which section 21 of
the Act comes into operation.
New clause 17(2) provides that the amendments made to
section 46 by section 22 of the Jury Directions and Other
Acts Amendment Act 2017 apply only in relation to a criminal
trial that commences on or after the day on which section 22 of
the Act comes into operation.
Part 7--Repeal of amending Act
Clause 24 provides for the automatic repeal of this amending Act on
1 October 2018. This does not affect the continuing operation
of the amendments made by the Act (see section 15(1) of the
Interpretation of Legislation Act 1984).
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