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