VersionNo. 010

Jury Directions Act2015

No. 14 of 2015

Version incorporating amendments as at
28 February 2018

TABLE OF PROVISIONS

SectionPage

1

SectionPage

Part 1—Preliminary

1Purposes

2Commencement

3Definitions

4Application of Act

4AApplication of Act to criminal proceedings without juries

Part 2—General

5Guiding principles

6Particular form of words not required for direction

7Correction of statements or suggestions that are contrary to Act

8Power to extend or abridge time

Part 3—Request for directions

9Purposes of Part

10Application of Part

11Counsel to assist in identification of matters in issue

12Legal practitioners must request that particular directions be given or not given

13Unrepresented accused

14Trial judge must give requested directions

15Trial judge must not give direction that has not been requested

16When trial judge must give direction regardless of parties' views

17Abolition of common law obligation to give certain directions does not limit section 16(1)

Part 4—Evidential directions

Division 1—Post-offence conduct

18Definitions

19Prosecution notice of evidence to be relied on as evidence of incriminating conduct

20Evidence of incriminating conduct

21Mandatory direction on use of evidence of incriminating conduct

22Additional direction on incriminating conduct

23Direction to avoid risk of improper use of evidence

24Abolition of common law rules continues

Division 2—Other misconduct evidence

25Application of Division

26Definitions

27Direction on other misconduct evidence adduced by the prosecution

28Direction on other misconduct evidence adduced by accused about a co-accused

29Direction to avoid risk of improper use of other misconduct evidence

30Abolition of common law rules

Division 3—Unreliable evidence

31Definition

32Direction on unreliable evidence

33Prohibited statements and suggestions in relation to children's evidence

34Abolition of common law rules

Division 4—Identification evidence

35Definition

36Direction on identification evidence

37Abolition of common law rules

Division 5—Delay and forensic disadvantage

38Definition

39Direction on significant forensic disadvantage

40Abolition of common law rules

Division 6—Failure to give evidence or call witness

41Direction on accused not giving evidence or calling witness

42Prohibited statements and suggestions in relation to accused who does not give evidence or call witness

43Direction on prosecution not calling or questioning witness

44Abolition of common law rules

Division 7—Previous representations

44ADefinition

44BDirection not required regarding repetition of previous representation

44CDirection not required regarding evidence of person who saw, heard or perceived complaint

44DDirection not required regarding complaint made in general terms

44EAbolition of common law rules

Division 8—Doubts regarding truthfulness or reliability of victim'sevidence

44FProhibited direction in relation to doubts regarding truthfulness or reliability of victim's evidence

44GAbolition of common law rules

Division 9—Accused giving evidence, interest in outcome of trial

44HProhibited statements and suggestions in relation to interest in outcome of trial

44IDirection on accused giving evidence or interest of accused in outcome of trial

44JProhibited directions in relation to evidence of an accused

44KAbolition of common law rules

Division 10—Whether a prosecution witness has a motive to lie

44LDirection on prosecution witness's motive to lie

44MAbolition of common law rules

Part 5—Sexual offences

Division 1—Consent and reasonable belief in consent

45Application of Division

46Direction on consent

47Direction on reasonable belief in consent

Division 2—Delay and credibility

48Application of Division

49Part 3 does not apply

50Definitions

51Prohibited statements and suggestions in relation to complainants, delay and unreliability

52Direction on delay in complaint or lack of complaint

53Additional direction on delay in complaint or lack of complaint

54Abolition of common law rules

Division 3—Differences in complainant's account

54AApplication of Division

54BPart 3 does not apply

54CDefinitions

54DDirection on difference in complainant's account

Part 6—Family violence

55Application of Part

56Part 3 does not apply

57Definition

58Request for direction on family violence

59Content of direction on family violence

60Additional matters for direction on family violence

Part 7—General directions

Division 1—Proof beyond reasonabledoubt

61What must be proved beyond reasonable doubt

62Abolition of common law obligation to give certain directions

63When trial judge may explain "proof beyond reasonable doubt"

64How explanation may be given in response to jury question

Division 2—Perseverance and majorityverdicts

64ADefinition

64BRestriction on when direction to persevere may be given

64CTrial judge need not give direction to persevere before giving majority verdict direction

64DAbolition of common law rules

Division 3—Jury deliberations

64EDirections on order in which offences to be considered

64FDirections on order in which elements, defences and issues in dispute to be considered

64GAbolition of common law rules

Part 8—Trial judge's summing up

65Trial judge's obligations when summing up

66Trial judge required to identify only evidence necessary for determination of issues

67Trial judge may give integrated directions

Part 9—Transitional provisions

68Transitional provisions

Schedule 1—Transitional provisions

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Endnotes

1General information

2Table of Amendments

3Amendments Not in Operation

4Explanatory details

1

VersionNo. 010

Jury Directions Act2015

No. 14 of 2015

Version incorporating amendments as at
28 February 2018

1

Part 1—Preliminary

Jury Directions Act2015
No. 14 of 2015

The Parliament of Victoria enacts:

Part 1—Preliminary

1Purposes

The purposes of this Act are—

(a)to reduce the complexity of jury directions in criminal trials; and

(b)to simplify and clarify the issues that juries must determine in criminal trials; and

(c)to simplify and clarify the duties of the trial judge in giving jury directions in criminal trials; and

(d)to clarify that it is one of the duties of legal practitioners appearing in criminal trials to assist the trial judge in deciding which jury directions should be given; and

(e)to assist the trial judge to give jury directions in a manner that is as clear, brief, simple and comprehensible as possible; and

(f)to provide for simplified jury directions in relation to specific issues; and

(g)to re-enact the Jury Directions Act 2013 with amendments; and

(h)to amend the Evidence Act 2008 in relation to corroboration directions; and

(i)to make consequential and other amendments.

2Commencement

(1)Section 1, Division 4 of Part 10 and this section come into operation on the day after the day on which this Act receives the Royal Assent.

(2)Division 1 of Part 5 comes into operation on the same day as section 3 of the Crimes Amendment (Sexual Offences and Other Matters) Act 2014 comes into operation.

(3)Subject to subsection (4), the remaining provisions of this Act come into operation on a day or days to be proclaimed.

(4)If a provision referred to in subsection (3) does not come into operation before 29June 2015, it comes into operation on that day.

3Definitions

In this Act—

accused has the same meaning as in the Criminal Procedure Act 2009;

alternative offence means an offence in respect of which the jury may, in accordance with any Act or any other law, find the accused guilty if the jury is not satisfied that the accused is guilty of an offence charged;

defence includes an exception, exemption, proviso, excuse or qualification to an offence, whether or not it accompanies any description of the offence in an enactment;

defence counsel means a legal practitioner representing an accused;

direction includes an explanation under section 63 or 64;

general directions means directions concerning matters relating to the conduct of trials generally, including—

(a)the roles of the trial judge, the jury and counsel; and

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

(c)trial procedure; and

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

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

(f)the assessment of witnesses; and

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

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

(i)jury deliberations and verdicts;

legal practitioner has the same meaning as in the Criminal Procedure Act 2009;

requested direction means a direction that the trial judge is requested to give to the jury under section 12;

trial judge has the same meaning as in the Criminal Procedure Act 2009.

4Application of Act

This Act applies despite any rule of law or practice to the contrary.

S. 4A insertedby No. 37/2017 s.3.

4AApplication of Act to criminal proceedings without juries

(1)This section applies to—

(a)a summary hearing or committal proceeding under the Criminal Procedure Act 2009; and

(b)an appeal or case stated under the Criminal Procedure Act 2009;and

(c)an appeal or case stated under Part 5.4 of the Children, Youth and Families Act 2005; and

(d)a special hearing under Division 3 ofPart 5A of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; and

(e)an appeal under section 24AA or 38ZE of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.

(2)The court's reasoning with respect to any matter inrelation to which Part 4, 5, 6 or7 makes provision—

(a)must be consistent with how a jury would be directed in accordance with this Act; and

(b)must not accept, rely on or adopt—

(i)a statement or suggestion that thisAct prohibits a trial judge from making; or

(ii)a direction that this Act prohibits atrial judge from giving.

Part 2—General

5Guiding principles

(1)The Parliament recognises that—

(a)the role of the jury in a criminal trial is to determine the issues that are in dispute between the prosecution and the accused; and

(b)in recent decades, the law of jury directions in criminal trials has become increasingly complex; and

(c)this development—

(i)has made jury directions increasingly complex, technical and lengthy; and

(ii)has made it increasingly difficult for trial judges to comply with the law of jury directions and avoid errors of law; and

(iii)has made it increasingly difficult for jurors to understand and apply jury directions; and

(d)research indicates that jurors find complex, technical and lengthy jury directions difficult to follow.

(2)The Parliament further recognises that it is the responsibility of the trial judge to determine—

(a)the matters in issue in the trial; and

(b)the directions that the trial judge should give to the jury; and

(c)the content of those directions.

(3)The Parliament further recognises that it is one of the duties of legal practitioners appearing in a criminal trial to assist the trial judge in his or her determination of the matters referred to in subsection (2).

(4)It is the intention of the Parliament that a trial judge, in giving directions to a jury in a criminal trial, 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 wherever possible; and

(c)be as clear, brief, simple and comprehensible as possible.

(5)It is the intention of the Parliament that this Act is to be applied and interpreted having regard to the matters set out in this section (to be known as the guiding principles).

6Particular form of words not required for direction

In giving a direction to the jury, the trial judge need not use any particular form of words.

7Correction of statements or suggestions that are contrary to Act

(1)Subject to subsection (2), the trial judge must—

(a)correct a statement or suggestion by the prosecution or defence counsel (or, if the accused is unrepresented, the accused) that is prohibited by this Act; and

(b)correct a statement or suggestion prohibited by this Act that is in a question from the jury.

Note

Sections 33, 42 and 51(1) prohibit certain statements and suggestions.

(2)The trial judge need not correct a statement or suggestion referred to in subsection (1) if there are good reasons for not doing so.

Example

A good reason may be that counsel has already corrected a prohibited statement or suggestion at the invitation of the trial judge.

8Power to extend or abridge time

(1)The court, by order, may extend or abridge any time fixed—

(a)by or under this Act; or

(b)by any order extending or abridging time made under this section—

if the court considers that it is in the interests of justice to do so.

(2)It is not necessary that an order be made under subsection (1) if a ruling made, or direction given, by the court provides for the extension or abridgement of time.

(3)The court may extend time under subsection (1) before or after the time expires.

(4)More than one extension of time may be granted under subsection (1).

(5)Unless the court otherwise orders, no material in support of an order under subsection (1) need be filed.

Part 3—Request for directions

9Purposes of Part

The purposes of this Part are—

(a)to assist the trial judge to discharge his or her duty to determine—

(i)the matters in issue in the trial; and

(ii)the directions that he or she should give to the jury; and

(iii)the content of those directions; and

(b)to ensure that legal practitioners appearing in a criminal trial discharge their duty to assist the trial judge in his or her determination of the matters referred to in paragraph (a); and

(c)to provide for the directions that the trial judge should give to the jury if the accused is not represented by a legal practitioner.

10Application of Part

(1)This Part does not apply to—

(a)general directions; or

(b)a direction that the trial judge is required to give, or not to give, to the jury under any provision of this or any other Act.

(2)This Part does not preclude the giving of a direction, that is consistent with this Act, that the trial judge considers necessary at any time before the close of all evidence.

(3)In determining under subsection (2) whether a direction is necessary, the trial judge must have regard to the submissions, if any, of the prosecution and defence counsel.

11Counsel to assist in identification of matters in issue

After the close of all evidence and before the closing address of the prosecution—

(a)the prosecution must inform the trial judge whether it considers that the following matters are open on the evidence and, if so, 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; and

(b)defence counsel must then inform the trial judge whether he or she considers that the following matters are or are not in issue—

(i)each element of the offence charged;

(ii)any defence;

(iii)any alternative offence, including an element of any alternative offence;

(iv)any alternative basis of complicity in the commission of the offence charged and any alternative offence.

12Legal practitioners must request that particular directions be given or not given

After the matters in issue have been identified in accordance with section 11, the prosecution and defence counsel must each request that the trial judge give, or not give, to the jury particular directions in respect of—

(a)the matters in issue; and

(b)the evidence in the trial relevant to the matters in issue.

13Unrepresented accused

(1)Subject to subsection (2), if the accused is not represented by a legal practitioner, the trial judge must comply with this Part as if the accused had informed the trial judge that all matters referred to in section 11(b) were in issue and had requested every direction that it was open to the accused to request under section 12, had the accused been represented by a legal practitioner.

(2)The trial judge need not give the jury a direction if the trial judge considers that—

(a)there are good reasons for not giving the direction; or

(b)it is otherwise not in the interests of justice to give the direction.

Note

Section 14 sets out the matters the trial judge must have regard to in determining whether there are good reasons for not giving a direction.

14Trial judge must give requested directions

(1)The trial judge must give the jury a requested direction unless there are good reasons for not doing so.

(2)In determining whether there are good reasons for not giving a requested direction to the jury, the trial judge must have regard to—

(a)the evidence in the trial; and

(b)the manner in which the prosecution and the accused have conducted their cases, including—

(i)whether the direction concerns a matter not raised or relied on by the accused; and

(ii)whether the direction would involve the jury considering the issues in the trial in a manner that is different from the way in which the accused has presented his or her case.

15Trial judge must not give direction that has not been requested

Subject to section 16, the trial judge must not give the jury a direction that has not been requested under section 12.

16When trial judge must give direction regardless of parties' views

(1)The trial judge must give the jury a direction if the trial judge considers that there are substantial and compelling reasons for doing so even though the direction has not been requested under section 12.

(2)Before giving a direction under this section, the trial judge must—

(a)inform the prosecution and defence counsel (or, if the accused is unrepresented, the accused) that the trial judge is considering giving the direction; and

(b)invite submissions from the prosecution and defence counsel (or the accused, as the case may be) about the direction and whether there are substantial and compelling reasons for giving the direction.

17Abolition of common law obligation to give certain directions does not limit section 16(1)

The abolition by section 16(1) of the Jury Directions Act 2013 of the common law obligation on a trial judge to give certain directions does not limit the obligation of the trial judge under section 16(1) of this Act to give directions.

Notes

1Section 16(1) of the Jury Directions Act 2013 abolished any rule of common law under which a trial judge in a criminal trial was required to direct the jury about—

(a)any defences and alternative offences open on the evidence but which had not been identified as such during the trial; or

(b)any alternative basis of complicity in the offence charged and any alternative offence in issue.

2Section 16 of the Jury Directions Act 2013 abolished the rule attributed to Pemble v R [1971] HCA 20; (1971) 124 CLR 107 and the application of Pemble in the context of complicity, for example Gilbert v R [2000] HCA 15; 201 CLR 414 and R v Nguyen [2010] HCA 38; (2010) 242 CLR491.

3By virtue of section 14(2)(c) of the Interpretation of Legislation Act 1984 the repeal of section 16 of the Jury Directions Act 2013 by this Act does not revive anything not in force or existing at the time of the repeal.

4Section 4 applies generally to override any rule of law or practice to the contrary of this Act.

Part 4—Evidential directions

Division 1—Post-offence conduct

18Definitions

In this Division—

conduct means the telling of a lie by the accused, or any other act or omission of the accused, which occurs after the event or events alleged to constitute an offence charged;

incriminating conduct means conduct that amounts to an implied admission by the accused—

(a)of having committed an offence charged or an element of an offence charged; or

(b)which negates a defence to an offence charged;

offence charged includes any alternative offence.

19Prosecution notice of evidence to be relied on as evidence of incriminating conduct