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12 March 1991 - Current

Jury Directions Bill 2015
Page 676
18 March 2015
ASSEMBLY Statement of compatibility MARTIN PAKULA

Mr PAKULA (Attorney-General) tabled following statement in accordance with Charter of Human Rights and Responsibilities Act 2006:

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (the 'charter'), I make this statement of compatibility with respect to the Jury Directions Bill 2015.

In my opinion, the Jury Directions Bill 2015, as introduced to the Legislative Assembly, is compatible with human rights as set out in the charter. I base my opinion on the reasons outlined in this statement.


The bill re-enacts the Jury Directions Act 2013 (the JDA 2013), in order to restructure the act, and includes additional jury directions reforms to clarify the law on key evidential directions and further clarify the obligations of the parties and the trial judge under the act.

The Jury Directions Bill (the bill) will:

provide a framework for requesting jury directions

regulate important evidential directions on post-offence conduct, other misconduct evidence, unreliable evidence, identification evidence, delay and forensic disadvantage and failure to give evidence or call witness

reform directions that apply in sexual offence cases, on consent and reasonable belief in consent, and delay and credibility

provide directions on family violence

regulate directions on what must be proved beyond reasonable doubt and the meaning of proof beyond reasonable doubt, and

provide a framework for the trial judges summing up at the end of a trial.

Human rights issues

Human rights protected by the charter that are relevant to the bill

The general purpose of jury directions is to ensure that the accused is tried in accordance with the relevant law. This is an important aspect of ensuring a fair trial. Therefore, the bill as a whole is relevant to the right of a person charged with a criminal offence to have the charge decided by a competent, independent and impartial court or tribunal after a fair and public hearing as set out in section 24 of the charter, and the rights in criminal proceedings in section 25 of the charter.

In particular:

part 3 of the bill which re-enacts part 3 of the Jury Directions Act 2013 and part 4 (evidential directions), part 5 (directions on sexual offences), and part 6 (directions on family violence) which provide specific jury directions for problematic areas of the law are particularly relevant to the right to a fair trial in section 24 of the charter, and

part 7 of the bill (general directions) is particularly relevant to the right to be presumed innocent until proved guilty set out in section 25(1) of the charter.

Clause 33 of the bill is also relevant to the right to protection of children in section 17 of the charter.

Are the relevant charter rights actually limited by the bill?

In my opinion, the bill does not limit the fair trial rights under the charter. The aim of the Jury Directions Act 2013 was to assist judges in providing simple and clear directions on the law and the evidence in the case that jurors are likely to listen to, understand and apply. Re-enacting the act and including additional jury directions reforms furthers these aims. This will assist in ensuring a fair trial, and protecting rights in criminal proceedings, in particular the right to be presumed innocent, rather than limiting these rights.

Right to a fair trial — section 24

The jury direction request provisions, in part 3 of the bill, are particularly relevant to the right to a fair trial. These clauses re-enact provisions in the Jury Directions Act 2013 which created a new framework for determining what directions should be given in the criminal trial. In my opinion, this framework does not limit the right to a fair trial, but instead enhances the right by:

enhancing the integrity of the trial and decision making by juries, by encouraging short jury directions that are based on the matters that are actually in issue in the trial, therefore, making the directions easier for the jury to understand and apply.

basing the framework on counsel requesting jury directions. This ensures that directions are generally not given by the trial judge against the wishes of defence counsel who is normally best placed to determine what is in the interest of the accused.

including protections for unrepresented accused, by assuming that the accused has requested all relevant directions. This recognises the right of accused persons to represent themselves (in particular, under section 25(2)(d) of the charter), while at the same time avoiding placing an unfair burden on the unrepresented accused by requiring them to request relevant directions, which might compromise their ability to receive a fair trial under section 24.

retaining a residual obligation for the trial judge to give a direction that has not been requested if there are substantial and compelling reasons to do so. Although it is not anticipated that trial judges will regularly give such directions, this is an important safeguard for a fair trial, for example, to ensure appropriate directions are given when counsel erroneously requests that certain directions not be given.

Part 4 (evidential directions), part 5 (sexual offences), and part 6 (family violence) of the bill regulate a number of specific jury directions. These provisions are designed to simplify and clarify these specific jury directions which are problematic at common law or in legislation. These provisions build on the framework set out in part 3 of the bill, and further enhance the right to a fair trial in relation to these problematic areas of law.

Presumption of innocence — section 25(1)

Part 7 of the bill includes provisions related to the concept of 'proof beyond reasonable doubt'. This concept is closely related to the right to be presumed innocent until proved guilty which is protected in section 25(1) of the charter.

Clause 58 of the bill simplifies and clarifies jury directions on what must be proved beyond reasonable doubt. It provides that, unless an enactment otherwise provides, the only matters that the trial judge may direct the jury must be proved beyond reasonable doubt are the elements of the offence or the absence of any relevant defence. The changes in the bill remove the requirement laid down by the High Court in Shepherd v The Queen (1990) 170 CLR 573 that the jury must also be satisfied beyond reasonable doubt of indispensable intermediate facts. Knowing when to give this direction is highly complex, can be difficult for a jury to apply, and is better addressed by the approach used in this bill.

In my opinion, clause 58 engages, but does not limit the right to be presumed innocent. The elements that make up an offence, and the absence of relevant defences, are the key matters that the jury should consider and be satisfied of beyond reasonable doubt. Where certain facts are particularly important to a case, they will generally be so closely related to an element (or the absence of a defence) that directing the jury that they must be satisfied beyond reasonable doubt of that element (or of the absence of that defence) subsumes any need for the jury to separately be satisfied beyond reasonable doubt of the fact.

Clause 58 will enhance the right to be presumed innocent until proved guilty. By providing the jury with clear and simple directions on the important question of what must be proved beyond reasonable doubt, the jury is more likely to understand and correctly apply the law.

Clauses 60–61 re-enact part 5 of the Jury Directions Act 2013, which allow trial judges to explain the meaning of 'proof beyond reasonable doubt' if asked by the jury. The concept of proof beyond reasonable doubt is essential to a criminal trial. Improving juror comprehension of the concept will increase the likelihood of a fair trial generally, as well as enhancing the presumption of innocence.

Protection of children — section 17

Clause 33 of the bill prohibits the trial judge and parties from making certain statements and suggestions about the reliability and credibility of children's evidence. These prohibit statements or suggestions that relate to common misconceptions about the reliability of children's evidence. This enhances the protection of children under section 17 of the charter, by helping to ensure that misconceptions that discriminate against children are not relied on in a trial.

The Hon. Martin Pakula, MP