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Legislative Assembly
 
Jury Directions and Other Acts Amendment Bill 2017

21 March 2017
Second reading
FRANK McGUIRE  (ALP)

 


Mr McGUIRE (Broadmeadows) — The Andrews Labor government is simplifying and improving the way information is provided to juries in criminal trials. The Jury Directions and Other Acts Amendment Bill 2017 clarifies that jury parades are not an essential part of the jury empanelment process.

Reforms also allow trial judges to address misconceptions that victims in sexual offence trials should be able to remember all the details of the offence and describe it consistently every time. Trial judges will be able to explain to jurors that victims often describe offences differently at different times. The new laws will also remove the mandatory 6-hour minimum time frame for jury deliberations before a majority verdict can be accepted in a criminal trial. This means that trial judges will be able to make directions sooner if a jury becomes deadlocked early in its deliberations — a practical reform. These reforms follow a number of changes the Labor government has made to jury directions to help reduce delays, deliver shorter trials and ensure fewer costly appeals and retrials, which is significant in minimising the possible stress and harm caused to victims and their families and also to reduce court costs.

Jurors are faced with a difficult task in criminal trials. Reform of the law in relation to jury directions aims to make that task easier by ensuring that the directions given to jurors are clear and assist in their decision-making process. The government is always working to improve the experience of the criminal justice system for victims, which I support. Importantly directions that jurors can more easily understand and apply will enhance the integrity of jury verdicts, which is critical, and also of the criminal trial process itself.

Key amendments in the bill aim to deliver a more realistic understanding on critical issues such as differences in a complainant's account. Put simply, complainants in sexual offence trials often describe the offence differently to different people at different times. It is a common misconception that a real victim would remember all the details of an offence and describe that offence consistently each time. The bill will allow trial judges to address this misconception. The direction will include the statement that people may not remember all the details of a sexual offence or describe an offence consistently each time and that it is common for there to be differences in accounts. This better reflects the reality that people retain and recall memories differently and that truthful accounts may often contain differences. That is a critical reform that takes a more realistic approach on a critical issue.

Evidence of the accused's interest in the outcome of the trial and motive to lie is another key component part of the reform. This bill clarifies what can and cannot be said about an accused's interest in the outcome of a trial or a prosecution witness's motive to lie. Directions on evidence of the accused's interest in the outcome of the trial and motive to lie will remind the jury of the onus of proof and guide it on how to assess an accused's or prosecution witness's evidence fairly.

The bill will make it clear that trial judges are not required to give certain unhelpful common-law directions on previous representation. The proposition here is that a previous representation is a statement made outside the court proceedings, such as a witness's earlier statement to police. Common law currently requires trial judges to give additional directions on previous representations that are confusing or which can be unhelpful for jurors — for example, judges must sometimes direct that evidence from a witness who heard a statement is not independent proof of the facts stated. This direction can be misunderstood by jurors to mean that a complainant's evidence needs to be independently confirmed, which is not correct.

This amendment of directions on jury deliberations will allow trial judges to direct juries on the order in which certain matters such as offences or elements of offences are considered in jury deliberations. The example cited here is that currently a judge cannot direct a jury to consider the offence of murder before considering the alternative offence of manslaughter. This distinction is arbitrary and gives juries little assistance in structuring their deliberations. The amendment is intended to provide clear guidelines to juries in appropriate cases and increase the efficiency of jury deliberations.

Alternative means for giving evidence is also addressed in this bill. The Criminal Procedure Act 2009 currently requires trial judges to warn jurors not to draw any adverse inference about the accused or give a witness's evidence any greater or lesser weight just because a witness gives evidence by alternative means, such as CCTV. These directions are meant to minimise the risk of prejudice to the accused. However, closed-circuit television or video recordings are now commonplace and it is unlikely that jurors would draw adverse inferences from the use of such arrangements. These directions are therefore unnecessary and are being repealed.

On majority verdicts the bill amends the Juries Act 2000 to give trial judges greater discretion to decide when to accept a majority verdict by removing the mandatory 6-hour minimum for deliberations before a majority verdict can be accepted. This means that if the jury indicates that it has become deadlocked even early in its deliberations, trial judges need not wait before directing the jury about returning a majority verdict. Again, that will help with the effectiveness and efficiency of the process.

On peremptory challenges and jury parades, most judges in Victoria use what is termed a 'jury parade' as part of the jury selection process in a criminal trial, where each potential juror walks in front of the accused. During selection an accused may make a limited number of peremptory challenges to prospective jurors. Some judges have used a different practice which has led to recent appeals where convictions were overturned on the basis that the accused did not have an adequate opportunity to view prospective jurors' faces, which affected their ability to exercise their right to challenge jurors.

The bill amends the Juries Act 2000 to provide that an accused person must have a reasonable opportunity to exercise a peremptory challenge, and that this requires the accused to have an adequate opportunity to view the faces of prospective jurors but that a jury parade is not required in order to satisfy this proposition. These changes will ensure ongoing clarity and are aimed at avoiding confusion in this area of the law. This change to peremptory challenges is prospective. The bill will not affect any previous cases where there was insufficient opportunity allowed for an accused person to exercise their peremptory challenge.

In summing up, I think this bill addresses a number of issues in a practical way. This is a good series of reforms that the Attorney-General has brought to the house. I am glad to see that the opposition is not opposing the provisions in this legislation. This bill forms part of a series of reforms that the Andrews Labor government is bringing to the Parliament to make the jury system easier for people to be a part of. It will help them be able to make a more considered contribution and also stop the need for any further retrials. On that basis I commend the bill to the house.

The ACTING SPEAKER (Ms Spence) — Order! The member for Essendon.