3.1 Directions Under Jury Directions Act 2015 1

3.1 – Directions Under Jury Directions Act 2015[1]

1. The Jury Directions Act 2015 codifies the law on:
2. obligation of parties to request directions;
3. the content of directions on matters including post-offence conduct, other misconduct evidence, unreliable evidence, identification evidence, delay and forensic disadvantage, failure to give or call witnesses, delay and credibility and family violence;
4. the judge’s obligations when summing up;
5. the meaning of proof beyond reasonable doubt.
6. This topic focuses on the request for direction process.
7. The Act applies to trials commencing on or after 29 June 2015 (Jury Directions Act 2015 s2, Schedule 1). A trial commences when the accused is arraigned in the presence of the jury panel from which the trial jury is drawn (Criminal Procedure Act 2010 s210).

Guiding Principles

1. The Jury Directions Act 2015 contains the following guiding principles:
2. the role of a jury is to determine the issues that are in dispute between the prosecution and the accused;
3. in recent decades, the law of jury directions in criminal trials has become increasingly complex;
4. as jury directions have become complex, technical and lengthy, it has been increasingly difficult for trial judges to comply with the law and has been increasingly difficult for jurors to understand and apply directions;
5. research indicates that jurors find complex, technical and lengthy directions difficult to follow;
6. it is the responsibility of the trial judge to determine the matters in issue, the directions that should be given and the content of the directions; and
7. one of the responsibilities of legal practitioners appearing in a criminal trial is to assist the judge to determine the matters in issue, the directions that should be given and the content of the directions (Jury Directions Act 2015 s5).
8. The Act states that it is Parliament’s intention that when giving directions, the judge should:

a) give directions on only so much of the law as the jury needs to know to determine the issues in the trial; and

b) avoid using technical legal language whenever possible; and

c) be as clear, brief, simple and comprehensible as possible (Jury Directions Act 2015 s5).

1. The Act also states that it is to be applied and interpreted having regard to the guiding principles (Jury Directions Act 2015 s5).

Requests for Directions

1. Part 3 of the Jury Directions Act 2015 creates a process for parties to request directions, and sets out the consequences of a party requesting or failing to request a direction.
2. The purpose of Part 3 is to assist the judge to identify the matters in issue between the parties, the directions that should be given and the content of those directions and ensure that legal practitioners discharge their duty to assist the trial judge to determine those matters (Jury Directions Act 2015 s9).
3. Part 3 also sets out how the judge determines what directions to give if the accused is not represented by a legal practitioner.
4. The Act does not prevent judges giving directions which are consistent with the Act which the judge considers necessary before the close of the evidence. However, in deciding whether to give a direction in running, the judge must have regard to the submissions of the parties (Jury Directions Act 2015 s10).

Directions Request Process

1. Part 3 of the Jury Directions Act 2015 sets out a process for judges to ask prosecution and defence counsel about the issues in the case at the end of the trial. It is good practice for trial judges to discuss these matters early in the trial, and use the process required under the Jury Directions Act 2015 to identify any changes in the position of the parties.
2. After the close of the evidence and before closing addresses, the prosecution must inform the trial judge whether it considers the following matters are open and whether it relies on them-

i) any alternative offence, including an element of any alternative offence;

ii) any alternative basis of complicity in the commission of the offence charged and any alternative offence

1. Once the prosecution has provided this information to the trial judge, defence counsel must inform the trial judge whether or not the following matters are in issue:

a) each element of the offences charged;

b) any defences;

c) any alternative offences and the elements of any alternative offences;

d) any alternative bases of complicity for the offences charged or any available alternative offences (Jury Directions Act 2015 s11).

1. After prosecution and defence counsel set out the matters that are or are not in issue, the prosecution and defence counsel must ask that the judge give or not give particular directions about:

a) the matters in issue; and

b) the evidence in the trial relevant to the matters in issue (Jury Directions Act 2015 s12).

1. The judge will usually seek requests for directions before final addresses and give the parties an opportunity to make further requests after final directions and after the judge’s charge.
2. Vague terms such as “the directions given in the previous trial” or “delay, impact on credibility” should be avoided in favour of clear identification of any directions sought (Horton v R [2015] VSCA 319 at [34] per Redlich JA).
3. The judge must give the jury any directions that are requested, unless there are good reasons for not doing so. The Act specifies that in determining whether there are good reasons for not giving a direction, the judge must consider:

a) the evidence in the trial;

b) the manner in which the parties have conducted their cases, including whether the direction raises a matter not relied on by the accused and whether the direction would involve the jury considering the issues in a manner different from the way the accused presented his or her case (Jury Directions Act 2015 s14).

1. Subject to a residual obligation, the trial judge must not give the jury a direction which has not been requested (Jury Directions Act 2015 s15).
2. Under the Jury Directions Act 2013, the equivalent to section 15 only removed the obligation on a judge to give directions which were not requested. Under the 2015 Act, “the trial judge must not give the jury a direction that has not been requested under section 12” (emphasis added). Under the new provision, judges may only give directions which are general directions (and hence not subject to a request), requested directions, or directions under the residual obligation. There is no power for judges to give directions outside these three categories on a discretionary or prudential basis.

Residual Obligation to Give Directions Not Requested

1. As the trial judge has the responsibility to determine the matters in issue, the directions that are required and the content of the directions, the judge has a residual obligation to give a direction if there are substantial and compelling reasons for doing so, even though the direction has not been sought (Jury Directions Act 2015 s16).
2. Reasons will not be substantial and compelling “unless they are of considerable importance and strongly persuasive in the context of the issues in the trial” (Gul v R [2017] VSCA 153 at [48]).
3. One situation in which there will be substantial and compelling reasons is where the judge considers that the failure to seek the direction is due to incompetence (Gul v R [2017] VSCA 153 at [48] per Ashley and Priest JJA).
4. Prior to the commencement of the Jury Directions Act 2015, the residual obligation required judges to give a direction where it was necessary to avoid a substantial miscarriage of justice. This test was modified by the 2015 Act to remove the requirement for trial judges to predict how the Court of Appeal may deal with the issue (Explanatory Memorandum, Jury Directions Bill 2015). This new test applies to all trials that commence on or after 29 June 2014.
5. Where a judge considers that a direction is necessary under the residual obligation, he or she must inform the parties that he or she is considering giving the direction and invite submissions about the direction and whether there are substantial and compelling reasons for giving the direction (Jury Directions Act 2015 s16).
6. The residual obligation sets a higher threshold for when a direction is necessary than the common law obligation from R v Miletic that the judge give “any direction that is necessary and practical, in the circumstances of the case, to avoid a perceptible risk of miscarriage of justice” (R v Miletic [1997] 1 VR 593).
7. While the old residual obligation used the same language as the criminal appeal provisions, it did not adopt the jurisprudence that had arisen under Criminal Procedure Act 2009 s276. The appeals test invites attention to the strength of the evidence and the impact of the jury’s verdict. Such considerations are inappropriate as a test for whether a direction is necessary at trial (Xypolitos v R [2014] VSCA 339).
8. Under the 2013 Act, the residual obligation was a test of necessity, which was narrower than the common law test. Under the 2013 Act, the judge was required to consider whether there would, not might, be a substantial miscarriage of justice in the absence of the direction. In Xypolitos v R, the Court of Appeal held that this:

[R]equires a state of affirmative satisfaction by the trial judge that the direction is of such central importance to one or more issues in the trial that, if the accused is convicted, a failure to give the direction will have occasioned a miscarriage of justice. If the circumstances, considered objectively, did not require such a conclusion, the failure to give the direction would not have amounted to an error in the trial. The trial judge, applying formulations such as that of Barwick CJ in R v Storey, must be satisfied that in the absence of the direction, the appellant will have lost a ‘real chance of acquittal’, or that had the direction been given ‘a reasonable jury might well have acquitted.’ (see also Tukuafu v R [2014] VSCA 345, [91]; Horton v R [2015] VSCA 319 per Redlich JA).

1. In most cases, the obligation to identify the directions required and the issues in dispute falls on counsel (Xypolitos v R [2014] VSCA 339; Horton v R [2015] VSCA 319 per Redlich JA).
2. The new terms of the residual obligation are more stringent than under the 2013 Act, and the above extract from Xypolitos must be read in that light (Keogh v R [2018] VSCA 145 at [76]; Dunn v R [2017] VSCA 371 at [82]).
3. The residual obligation operates in the context of the trial as it has been conducted by the parties. The judge must consider the issues in the case (as identified in accordance with ss11 and 12 of the Jury Directions Act 2015), the forensic decisions of counsel and the way the defence has sought to answer the charge (Gul v R [2017] VSCA 153 at [48]-[49]. See also Dunn v R [2017] VSCA 95 at [22]; Keogh v R [2018] VSCA 145 at [77]; Arico v R [2018] VSCA 135 [132]-[133] (per Maxwell ACJ and Weinberg JA).
4. The potential for a direction to be detrimental to the defence case, either generally or on some charges, can exclude the possibility that there are substantial and compelling reasons to give a direction that was not requested (The Queen v Falzon [2018] HCA 29 at [48]. See also Keogh v R [2018] VSCA 145 at [80]-[82]).
5. Subject to the residual obligation, the Jury Directions Act 2015 expressly abolishes the common law requirement to direct on defences or alternative offences open on the evidence which have not been identified as reasonably open during the trial. The judge is also not required to direct on alternative bases of complicity which have not been identified as reasonably open during the trial (Jury Directions Act 2015 s17).

Part 3, the Common Law and Matters Not Raised

1. At common law, if any alternative lesser offences were reasonably open on the evidence, the judge was also required to direct the jury about the elements of those offences as well (Pemble v R (1971) 124 CLR 107. See Alternative Verdicts).
2. It was also an error to withdraw an element from the jury’s consideration, even if it was not contested by the accused. However, where an element was not in issue in the trial, and the evidence itself did not raise an issue as to the existence of that element, it was not necessary for the judge to direct the jury about that element (Huynh & Ors v R [2013] HCA 6; R v VN (2006) 15 VR 113; Griffiths v R (1994) 125 ALR 545; R v Simon [2010] VSCA 66).
3. At common law, if there was evidence that disclosed the possibility of a defence, the judge was also required to instruct the jury that about that defence (Fingleton v R (2005) 227 CLR 166; (2005) 216 ALR 474; Zecevic v DPP (1987) 162 CLR 645; Pemble v R (1971) 124 CLR 107; R v Thompson (2008) 21 VR 135).
4. This obligation applied even if the judge considered the evidence about a particular defence was weak or tenuous. The judge was required to direct the jury about a defence if there was evidence on which a reasonable jury could decide the issue favourably to the accused (R v Kear [1997] 2 VR 555; R v Youssef (1990) 50 A Crim R 1; Zecevic v DPP (1987) 162 CLR 645).
5. Under Part 3 of the Jury Directions Act 2015, the prosecution must indicate whether alternative offences or alternative forms of complicity are relied upon and defence counsel must indicate whether each element of the offence is in issue and whether any defences, alternative offences or alternative bases of complicity are in issue. A judge does not need to direct a jury on matters that are not in issue, subject to the residual obligation to give directions where there are substantial and compelling reasons to do so (see Gul v R [2017] VSCA 153 at [39]-[40]).
6. In addition, the Act recognises that the manner in which the parties have conducted their case is relevant to deciding if there are good reasons for not giving a direction which has been requested (see Gul v R [2017] VSCA 153 at [39]-[40]).

Exceptions to Request for Directions Process

1. The request for directions process does not apply to “general directions” or directions the judge must give or must not give under the provisions of the Jury Directions Act 2015 or another Act (Jury Directions Act 2015 s10).
2. “General directions” are defined as “directions concerning matters relating to the conduct of trials generally”. The Act contains an inclusive list of general directions which includes:

a) the role of the trial judge, the jury and counsel;

b) the empanelment of a jury and the selection of a foreperson;

c) trial procedure;

d) the need to decide issues on the basis of admissible evidence only;

e) the need to decide each charge separately according to the evidence relating to that charge;

f) the assessment of witnesses;

g) the presumption of innocence and the burden and standard of proof, including what must be proved beyond reasonable doubt;

h) the drawing of conclusions and the distinction between direct and circumstantial evidence;

i) jury deliberations and verdicts.

1. Within this Charge Book, the directions contained in Part 1: Preliminary Directions and Part 3: Final Directions (other than Chapter 3.8) are treated as general directions. The obligation to give such directions is unaffected by Part 3 of the Jury Directions Act 2015.
2. Section 10(b) provides that Part 3 of the Act does not apply to directions the judge must give or must not give under the Jury Directions Act or any other Act. In this Charge Book, at least part of the following directions must be given under an Act and so the Part 3 process does not apply:
3. Alternative Arrangements;
4. Protected Witnesses;
5. Pre-recorded Evidence;
6. Judge’s Summing Up on Evidence and Issues;
7. Incriminating Conduct (Post Offence Lies and Conduct);
8. Delayed Complaint.[2]

Obligation to Correct Prohibited Statements or Suggestions

1. The trial judge must correct any statement or suggestion by the prosecutor, defence counsel or an unrepresented accused that is prohibited by the Act. The judge must also correct a statement or suggestion prohibited by the Act that is in a question from the jury. This obligation does not depend on any request for directions. However, the judge need not correct a statement or suggestion if there are good reasons for not doing so, such as where the prosecutor or defence counsel corrects their own misstatement (Jury Directions Act 2015 s7).
2. Provisions of the Jury Directions Act 2015 which prohibit certain statements or suggestions include:
3. section 33 – Prohibitions on certain statements concerning child witnesses;
4. section 51 – Prohibitions on certain statements regarding complainants in sexual offence cases;
5. section 42 – Prohibitions on certain statements regarding the accused’s failure to give or call evidence.

Self-Represented Accused