Jury Directions and Other Acts Amendment Bill

MR DIMOPOULOS (Oakleigh) — It gives me pleasure to speak on Jury Directions and Other Acts Amendment Bill 2017. It is obviously an important bill, as other speakers have said, including the Attorney-General in his second-reading speech. The bill seeks to reduce errors in jury directions and improve communication to juries so that we have clearer communication and therefore better justice outcomes. Hopefully we will have a more efficient justice system through the reduction of retrials and appeals.

There are many elements to this bill, but I just want to speak on a handful of them. This bill primarily amends the Jury Directions Act 2015 but also some other acts. In relation to the points I want to make in terms of how it is cleaning up jury directions, I am drawing from the Attorney-General’s second-reading speech, particularly in relation to one of the messes it tries to clean up, which is directions on previous representations. As the Attorney-General said, a previous representation is a statement made outside of the court proceedings, such as a witness’s earlier statement to police, which is something that is commonplace. Jury directions on this evidence aim to instruct juries on how they may or may not use the evidence and, where relevant, its potential unreliability. Directions on the use of this evidence are working well and do not need specific legislative intervention. The Jury Directions Act 2015 already contains directions on unreliable evidence.

The Attorney-General went on to say in his speech that, however, the common law currently requires trial judges to give additional directions on previous representations that are confusing or unhelpful for jurors. For example, judges must sometimes direct that evidence from a witness who heard a statement is not independent proof of the facts stated. This direction could be misunderstood by jurors to mean that a complainant’s evidence needs to be independently confirmed, which is not correct.

The bill will clarify and simplify this area of the law by making it clear that this and other problematic common-law directions are not required. While trial judges may still give such directions if appropriate, these provisions will reassure trial judges that they do not need to ‘appeal proof’ their trials, so to speak, by giving these directions in each case. That is a pretty significant example of what this bill seeks to clean up at the moment.

There are others — for example, differences in a complainant’s account, and I think the member for Hawthorn mentioned that in his contribution. Again, drawing from the Attorney-General’s contribution to the house — and this is a very important one — defence counsel often use differences in accounts to discredit a complainant’s credibility or reliability. Jury directions are quite an old tradition. More contemporary research shows that people retain and recall memories differently — that seems like common sense now — and truthful accounts often contain differences. For example, an August 2016 report published by the Royal Commission into Institutional Responses to Child Sexual Abuse found that in the sample study defence counsel raised inconsistencies within the complainant’s own evidence in more than 90 per cent of cases.

Trauma can also exacerbate the normal variability of memory. However, these issues are not commonly understood, and there is a misconception that if you are a genuine victim and you are telling the truth, you will remember all the details of an offence against you and describe that offence consistently each and every time to any person in any context. I think we all know from our personal experience that that is not true, regardless of how traumatic the event. The bill will allow trial judges to address this misconception in appropriate cases. The direction will include that people may not remember all the details of a sexual offence, for example, or describe an offence consistently each time and that it is common for there to be differences in accounts. However, the direction will also emphasise that it remains up to the jury to decide whether any differences are important and whether they believe some, all or none of the complainant’s evidence. It is up to them to believe or not to believe; that is the role of a jury.

There are quite a few of these things, including, for example, the archaic notion that in a majority decision a jury must deliberate for at least 6 hours, which has caused problems in situations where jurors are deadlocked or other situations where they know the result far earlier than 6 hours. This bill seeks to remove that requirement and replace it with something more applicable to a range of cases.

Another interesting one is jury empanelment and peremptory challenges. The bill seeks to amend the Juries Act 2000 to provide that an accused person must have an adequate opportunity to view the faces of prospective jurors. My understanding of how that happens is that the traditional practice has been for potential jurors to walk in front of the accused or counsel for the accused. There were a couple of cases in recent memory where that did not happen and the jurors went straight to the jury box. Depending on the shape and infrastructure of the courtroom, going straight to the jury box may or may not lead to the accused seeing the prospective jurors’ faces. This bill seeks to amend that by providing that the accused must have an opportunity to see the faces of prospective jurors.

There are really important things to consider, such as the evidence of the accused, interest in the outcome of the trial, as the Attorney-General said, and a whole range of other very important provisions. This bill is the third step in a process to clean up jury directions, a process that commenced in 2013. Under this government there was the Jury Directions Act 2015 and the bill we have before us today. This is a really important area of improvement in criminal justice. Juries need to be assisted, but assisted in a way that is to some extent neutral because they are the ultimate deciders of guilt or otherwise.

I am going to resist the temptation to have a go at the opposition, which is unusual because opposition members do not resist the temptation to have a go at the government. For example, the member for Gippsland South talked about a crime wave that actually commenced under his government. In response to the member for Hawthorn and his general position that anything that this government does is apparently not done as well as he would do it, I want to remind the member for Hawthorn and the opposition that when they had a go at interfering with the court system they really made a mess of it, including in regard to the base sentencing changes they sought to bring in. The Attorney-General has described a number of times in this chamber the mess they made.

The Attorney-General has asked the Sentencing Advisory Council to provide him with the most effective legislative mechanism to provide sentencing guidance to the courts in a way that is consistent in approach and promotes public confidence in the criminal justice system, unlike the approach of the previous government, which was torn to shreds by anyone with any knowledge of the criminal justice system, such as really junior people — I say tongue-in-cheek — like President Maxwell and the Victorian Court of Appeal, which said:

The baseline provisions are therefore incapable of being given any practical operation. As we have explained, that is the consequence of the legislature having expressed its intention not by reference to a starting point taken from sentencing law, but by reference to an end point taken from the field of statistics.

The Court of Appeal goes on in terms of the mess the previous government made of its intervention in the court system. I am pleased the opposition is not opposing this bill, but unlike the intervention of those opposite, our reforms to the Jury Directions Act 2015 and the reforms we propose under this bill are good-quality reforms that were prepared in consultation with an eminent advisory board. I commend the bill to the house.