Hansard debates

Ordered that second-reading speech be incorporated into Hansard on motion of Ms MIKAKOS (Minister for Families and Children).

Ms MIKAKOS (Minister for Families and Children) — I move:

That the bill be now read a second time.

Incorporated speech as follows:

Introduction

Ensuring that the justice system is fair is one of the most serious obligations of any government.

Trial by jury is a fundamental aspect of Victoria's criminal justice system. Jurors perform an essential role in this system, by deciding whether the accused person before them is guilty or not guilty. Jury directions are the directions a trial judge gives to a jury to help them to make this decision. Accordingly, it is vitally important that these directions be as helpful, relevant and fair as possible.

In recent years, it became clear that the law of jury directions in Victoria required significant reform. This law was spread across both the common law and legislation. Sometimes, the law required trial judges to give conflicting directions on the same issue. Frequent amendments to criminal offences also resulted in increasingly complex directions. This resulted in trial judges giving a range of highly detailed and often complicated directions, which took longer to deliver in Victoria than any other state in Australia.

Research shows that jurors are less likely to listen to, understand or apply directions that are long, complex or of questionable usefulness. This is obviously of considerable concern, given the role that juries play in our criminal justice system. It is also very difficult for trial judges to give such directions. Not surprisingly, this can lead to judicial error and, in turn, to appeals and retrials. These problems contribute to court delays and cause further stress to victims of crime, witnesses and their families. Retrials are also costly to the community, and create understandable community concern, particularly if they appear to be due to technical rather than substantive issues.

It was clear that major reforms were required to the law of jury directions, and to the culture surrounding the giving of jury directions in our courts. This process of review began with the Victorian Law Reform Commission's 2009 report on jury directions.

The Jury Directions Act 2013, which commenced on 1 July 2013, was a significant first step to simplify jury directions. The centrepiece of that act is the jury direction request provisions in part 3. These provisions create a new framework for determining which directions are given in a trial. Together with the act's guiding principles, these provisions encourage a collaborative culture between trial judges and counsel. This culture places appropriate weight on forensic decision making by the parties, by requiring discussions about which directions should be given and the content of those directions. The act also supports trial judges giving a short and tailored summing up, encourages better ways of communicating with juries, and simplifies problematic jury directions on post-offence conduct and the meaning of 'proof beyond reasonable doubt'.

The act has been very well received by the courts and other stakeholders. However, more needs to be done. This bill will continue the effect of the Jury Directions Act, but will improve it by restructuring the legislation and making some refinements to ensure that the provisions work as effectively as possible.

In 2014, the act was amended to include new directions on family violence. Amendments setting out directions on consent, and reasonable belief in consent, in rape and sexual assault trials were also passed, but have not yet commenced. These directions are also included in this bill, with one exception, but have been restructured to better align with the bill's framework.

The bill will also reform the law on a number of other problematic jury directions, to ensure that unnecessary directions are not given, and to simplify and clarify the directions that are given. A number of these directions were examined in the simplification of jury directions project report produced in August 2012 by the team led by the Honourable Justice Weinberg of the Court of Appeal. I thank Justice Weinberg and his team for their work in producing this very comprehensive report, and I thank the Supreme Court for making Justice Weinberg available for that project. Other directions addressed in the bill were examined as part of the ongoing review of jury directions being conducted by the Department of Justice and Regulation.

The department has prepared a report, Jury Directions — A Jury-Centric Approach, which sets out in detail the reasons for the reforms. The title of the report highlights that ensuring that jury directions assist juries in performing their task is central to improving jury directions.

The bill has been discussed in detail by the expert advisory group established by the department to assist in the jury directions reform process. The advice of the advisory group has been of vital assistance to the reform process, including the development of the new provisions in this bill. I would like to thank the members of the advisory group for their work to date, and for their ongoing contribution, over more than five years, to this very important reform process.

Overview of the bill

The bill will repeal the Jury Directions Act 2013 and replace it with a new, reorganised Jury Directions Act 2015 that will:

continue the overall effect of the current Jury Directions Act 2013, with some refinements, in particular, to further clarify the obligations of the parties and the trial judge

reduce the length and complexity of specific evidentiary directions on:

other misconduct evidence

unreliable evidence

identification evidence

delay and forensic disadvantage

the failure to give or call evidence

delay and credibility

what must be proved beyond reasonable doubt, and

amend the Evidence Act 2008 to abolish corroboration directions (in most cases).

Continuing the effect of the Jury Directions Act

The bill will continue the overall effect of the current Jury Directions Act 2013. For example, the current definitions, guiding principles, jury direction request provisions, and provisions on summing up and the use of integrated directions, will all continue to have effect under the new act. The provisions on the meaning of 'proof beyond reasonable doubt' and post-offence conduct will also continue in effect, along with the directions on family violence and on consent and reasonable belief in consent in rape and sexual assault trials. However, the bill will refine some of the current provisions, to improve their effectiveness.

Restructure of the legislation

The bill will restructure the legislation, for example, by grouping directions in broad themes, such as 'general directions' and 'evidential directions'. For continuity, and given its pivotal nature, current part 3 of the act will remain part 3 of the new act.

The restructure will make the new act easier to navigate, and facilitate the addition of future provisions in a logical manner. The new provisions in the bill are discussed below, in the order in which they will appear in the new act.

Amendments to current part 3 of the Jury Directions Act

Part 3 of the Jury Directions Act 2013, which contains the request process for determining what jury directions to give in a trial, is fundamental to the jury direction reforms. It is therefore important that this part is framed in a way that best achieves the aims of the jury direction reforms. The bill will retain the overall effect of part 3, but will amend those provisions to improve their operation, and clarify the obligations of the parties. In particular, the bill will clarify aspects of the trial judge's residual obligation to direct the jury on matters that the parties have not requested.

The bill will clarify that if a party does not request a direction, the trial judge must not give the direction unless the residual obligation applies. The bill will also amend the test for determining whether the residual obligation applies. Under the bill, the trial judge will be required to give a direction if there are 'substantial and compelling reasons' for doing so, rather than the current test of whether it is necessary to do so to avoid a 'substantial miscarriage of justice'. The new test will avoid complexities in both the wording of the test and the application of the test by trial judges. These changes will make clear when the residual obligation must be exercised and ensure that appropriate weight is given to the forensic decision making of the parties.

Directions on other misconduct evidence

The term 'other misconduct evidence' is used in the bill to describe evidence of discreditable acts of the accused (other than those directly related to the offence charged) which are relied on to help to prove the accused's guilt. For example, this evidence may be used to show that the accused had a tendency to behave in a certain way.

Errors in directions on this kind of evidence are one of the most common grounds of appeal. It is difficult for trial judges to determine whether a direction is required because of conflicting case law on the issue. This risks trial judges giving unnecessary directions to 'appeal-proof' their summing up. These directions are also very difficult for juries to understand and apply.

The Weinberg report recommended legislative reform to abolish complex common-law distinctions between different types of other misconduct evidence. It also recommended simplifying the content of these directions so that they provide useful assistance to the jury on how to approach this complicated evidence, without overburdening the jury. The bill follows these recommendations, with some minor amendments for consistency with the rest of the proposed new act or to further simplify the law.

Directions on unreliable evidence

Certain types of evidence may be unreliable, for example, when the evidence is given by a witness who is criminally concerned in the events that led to the trial. Directions on such evidence may be required to ensure that the jury is careful when using the evidence. A related issue is children's evidence. While evidence given by a particular child may be unreliable, it is important that directions do not reinforce misconceptions about the unreliability of children as a class, or the unreliability of a child's evidence based solely on the age of that child.

The Evidence Act currently regulates these directions. The Weinberg report examined these provisions and concluded that they are generally working well. Accordingly, the bill will retain the overall effect of the current provisions. However, the bill will move the provisions to the new Jury Directions Act, restructure the provisions, and improve them for consistency with the rest of the act.

Directions on identification evidence

Research and experience show that identification evidence is notoriously unreliable because it relies on a witness's memory and recall. It can also be overly persuasive, as honest, but mistaken, witnesses can be very convincing. There are many known cases in which mistaken identification evidence has contributed to wrongful convictions.

The bill will provide a simple, streamlined and comprehensive framework for giving directions on identification evidence. The bill will adopt a single, broad definition of identification evidence, and use the jury direction request provisions to provide greater clarity to trial judges in determining whether to give a direction. The bill will also set out the minimum content of a direction on identification evidence that is simple and clear, but that highlights particular problems with this type of evidence.

Directions on delay and forensic disadvantage

The common-law 'Longman direction' on delay and forensic disadvantage is one of the most problematic and controversial jury directions. It has been heavily criticised by law reform commissions and stakeholders.

Where there has been a delay between the alleged offence and the complaint, the Longman direction requires the trial judge to tell the jury that it would be dangerous to convict on the complainant's evidence alone unless, after scrutinising the evidence with great care, considering the circumstances relevant to its evaluation, and paying heed to the warning, it is satisfied of the truth and accuracy of that evidence. This direction arises most frequently in sexual offence trials.

There are currently provisions in both the Crimes Act 1958 and the Evidence Act on delay and forensic disadvantage. The bill will replace these provisions with new provisions that are based on the Evidence Act provision, with some improvements. For example, the bill will make it clear that directions may only be given if the accused has experienced significant forensic disadvantage, and must not include the problematic phrases 'dangerous or unsafe to convict' or 'scrutinise with great care'.

Directions on the failure to give or call evidence

The bill will simplify directions that are given when the accused does not give or call evidence and when the prosecution does not call or question a witness.

In relation to when the accused does not give evidence or call witnesses, the bill will set out a clear and simple direction that the trial judge must give the jury, if requested by defence counsel, based on the common-law Azzopardi direction. The bill will prohibit the trial judge from giving the overly complex common-law Weissensteiner and Jones v. Dunkel directions. These directions are difficult for trial judges to apply and are difficult for a jury to understand.

The bill will also remove distinctions between what the co-accused can say on this issue, and what the other parties and the trial judge can say. These reforms will lead to simpler directions that are easier for the jury to understand and apply.

Directions on non-communication of consent

The bill will include new jury directions on consent and reasonable belief in consent. These restructure the directions in the Crimes Amendment (Sexual Offences and Other Matters) Act 2014 for consistency with the rest of the bill, and include an amendment to one of the directions. The relevant direction states that the fact that a person does not say or do anything to indicate consent to a sexual act is enough to show that the act took place without the person's consent. This direction is problematic as it suggests that a person may not do or say anything to consent to sexual activity but nonetheless, may be taken to have potentially consented to the activity by the law of rape.

The bill removes this direction and instead, amends the list of circumstances in the Crimes Act in which a person does not consent to include where the person does not say or do anything to indicate consent, and where, having initially consented to an act, the person later withdraws that consent. This will be clearer to the jury and more effective than the jury direction. It will also make clear that a person should not engage in a sexual act with another person without the other person having clearly communicated her or his consent.

Directions on delay and credibility

Part of the Kilby-Crofts direction requires trial judges in sexual offence cases to direct the jury that a complainant's failure to report a sexual offence at the earliest possible opportunity may cast doubt on the complainant's credibility and the jury should take this into account in evaluating the credibility of the allegations made by the complainant.

The law in this area is highly problematic because the direction is based on inaccurate assumptions about the behaviour of victims of sexual assault, namely, that a genuine complainant can be expected to make their complaint very soon after the offence. Research shows that potential jurors can have misconceptions about how complainants should behave, expecting them to immediately complain about the offending. In addition to perpetuating these misconceptions, the law currently requires trial judges to give competing and contradictory directions, which are confusing for jurors.

In appropriate cases, the bill will require the trial judge to address any such misconceptions early in the trial. The bill will also prohibit the trial judge and parties from saying or suggesting that sexual offence complainants are unreliable as a class. However, the bill will continue to allow the parties to make specific arguments about delay and credibility in the trial.

Directions on what must be proved beyond reasonable doubt

It is fundamental to criminal trials that to convict an accused person, the jury must be satisfied beyond reasonable doubt that the accused is guilty. It is therefore vitally important that jurors understand the directions the judge gives them on what must be proved beyond reasonable doubt.

For many years, juries were only required to be satisfied beyond reasonable doubt of the elements of the offence and of the absence of any relevant defences. However, cases such as Chamberlain v. The Queen (No. 2) (1984) 153 CLR 521 and Shepherd v. The Queen (1990) 170 CLR 573 greatly complicated this by requiring the trial judge to direct the jury that 'intermediate facts' that are 'indispensable links in a chain of reasoning towards an inference of guilt' must also be proved beyond reasonable doubt. Determining whether something is an indispensable intermediate fact is highly complex. Judges often disagree on this issue. Where such facts are in dispute, directions are consequently complicated and difficult for a jury to apply.

The bill will return the law to where it was pre-Chamberlain and Shepherd by providing that the trial judge may only direct the jury that it must be satisfied beyond reasonable doubt of the elements of the offence and the absence of any relevant defences. This will lead to shorter and simpler directions, and will clarify when trial judges must give a direction, minimising the risk of appeals. Trial judges may give these directions in the form of factual questions or integrated directions, which embed the elements of the offence into factual questions that the jury must answer to reach a verdict.

These reforms provide appropriate safeguards for the accused. The only change is that the jury does not have to consider whether a particular fact is proved beyond reasonable doubt, before they may rely on that fact. The new approach also removes the complexity of the jury being directed that in determining whether they are satisfied beyond reasonable doubt about an 'indispensable fact', or an 'essential fact', they may have regard to all of the other evidence in the case.

Where the existence of a fact is essential to a case, it will be closely related to an element of the offence. For example, where DNA evidence is the only evidence relating to identity, this will be very closely related to the identity element of the offence. Directing the jury that they must be satisfied beyond reasonable doubt of the element therefore removes any need to separately require the jury to be satisfied of other facts.

Corroboration

Corroboration of evidence is no longer required under section 164 of the Evidence Act, except in cases of perjury and similar offences, and the trial judge is not required to direct the jury on corroboration. Despite this, directions on corroboration are sometimes still given.

As discussed in the Weinberg report, these directions are problematic and unnecessary. The Weinberg report did not recommend any amendments to section 164 as it is not leading to successful appeals against conviction. However, these directions are complicated, there is a risk of 'appeal proofing', and they may backfire on the accused, as the trial judge gives a warning but then lists all the evidence capable of constituting corroboration.

Accordingly, the bill will amend section 164 of the Evidence Act to abolish corroboration directions except in the case of perjury or a similar offence. Other directions, such as unreliable evidence directions, are available to adequately highlight problems with particular evidence. However, where corroboration is required (for example, in perjury cases), the bill will make it clear that a corroboration direction is required. This will enhance transparency and clarity in this area of the law.

Conclusion

The Jury Directions Act 2013 marked a fundamental change to the legal framework for jury directions in Victoria. The bill will increase the reach and effectiveness of those reforms, by continuing the effect of that act, with some improvements, and by addressing a number of additional problematic jury directions.

These reforms will assist trial judges to give directions that are as clear, brief, simple and relevant as possible, and to address certain misconceptions that jurors may have, in a way that is fair to both the prosecution and defence. This will help to streamline criminal trials and to reduce delay in our justice system. It will also increase the likelihood of jurors understanding and applying these directions, thereby helping to increase community confidence in jury verdicts and ensuring that our criminal justice system is fair.

I commend the bill to the house.

Debate adjourned for Mr O'DONOHUE (Eastern Victoria) on motion of Mrs Peulich.

Debate adjourned until Thursday, 23 April.