Jury Directions Bill 2012 (Vic)

1. Criminal Law Review Jury Directions Bill 2012 (Vic) A new approach Presenter: Greg Byrne Title: Director Date: 8 February 2013

2. Criminal Law Review Overview • Background to the development of the Bill • Evidence of the problems (Victoria) • Objectives of reforms • Jury Directions Bill 2012 • Guiding principles • Jury Direction request provisions • Trial judge’s summing up • Proof beyond reasonable doubt • Post-offence conduct • Reflections

3. Criminal Law Review Background to the development of the Bill • Courts sought reform • Reference to VLRC  Report • Jury Directions Advisory Group (JDAG) • Criminal Law Review papers • Jury Directions: A New Approach (report is on-line) • Jury Directions Bill 2012 • Further Bill(s) • Weinberg’s Simplification of Jury Directions report (on-line)

4. Criminal Law Review Evidence of problems (Victoria)

5. Criminal Law Review Evidence of problems (Victoria)

6. Criminal Law Review Objectives of reforms – the Bill • Jury Directions Bill has five important objectives: • To reduce errors in jury directions • To make the issues that the jury must determine much clearer • To improve the way in which information is provided to juries • To reduce delay by shortening jury directions • To reduce the number of retrials, which will reduce the stress and trauma to victims of crime

7. Criminal Law Review Objectives of reforms – fair trial requirements • Ensuring a fair trial • Underlying common law driver of jury directions • Does this restrict reforms? (Jago’s case) • Justice Neave – focus has been on legal correctness • Research has shed light on whether jury directions are achieving their objective • New directions also seek to deliver a fair trial • Existing laws do not always deliver a fair trial • New approaches are required

8. Criminal Law Review Jury Directions Bill 2012 • Guiding principles • The role of the jury in a criminal trial is to determine the issues that are in dispute between the prosecution and the accused. • 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.

9. Criminal Law Review Jury Directions Bill 2012 – Direction requests • Defence counsel must indicate what is/is not in issue (at close of evidence) • Prosecution and defence must indicate which (discretionary) directions they want / do not want • TJ must give requested direction unless there are good reasons for not doing so • TJ must assume unrepresented accused has requested all directions open on the evidence • TJ need not give a direction not requested unless necessary to avoid a substantial miscarriage of justice

10. Criminal Law Review Jury Directions Bill 2012 – Direction requests • Ultimate responsibility for directions remains with the TJ • The dialogue between TJ and counsel is critical • Focus on what is really in issue – helps the jury • Shorter directions – helps the jury • Reduce issues being discovered on appeal • The defence have greater control – can avoid ‘protective’ directions that have a backfire effect • The parties know their case better than anyone • Requesting every direction is not necessarily in client’s best interests

11. Criminal Law Review Jury Directions Bill 2012 – Trial judge’s summing up • Explain only so much of the law as is necessary • Refer to the way Pros’n and Acc’d have put their cases but need not summarise closing addresses • Need not give a summary of the evidence but must identify so much of the evidence as is necessary to assist the jury (factors to consider) • TJ may use question trial to give directions • TJ may give integrated directions

12. Criminal Law Review Jury Directions Bill – Proof beyond reasonable doubt • Where a jury asks a question about the meaning of proof beyond reasonable doubt, the TJ may answer • Answer draws on Lifchus (Canada) and Wanhalla (NZ) • Presumption of innocence • Probably guilty or very likely guilty not sufficient • Almost impossible to prove past events with absolute certainty • A reasonable doubt is not an imaginary or fanciful doubt or an unrealistic possibility

13. Criminal Law Review Jury Directions Bill 2012 – Post-offence conduct • Short / simplified directions (Edwards, Zoneff, Shepherd abolished) • Pros’n must give notice of POC evidence • TJ must rule whether evidence can be relied upon as POC evidence • Mandatory direction re the limited way in which the jury may use the evidence • Defence may request cautionary direction • Defence may request direction to avoid risk of evidence being improperly used

14. Criminal Law Review Reflections • Long development process • Strong support from courts, including Court of Appeal • Distilled into a 20 page Bill • Will impact every trial • Changing the way in which the trial judge works • Changing the way counsel work • Changing the way the trial judge and counsel work together • Changing the issues on appeal • Questions