Jury Directions and Other Acts Amendment Bill 2017

Debate resumed from 2 May; motion of Ms PULFORD (Minister for Agriculture).

Mr RICH-PHILLIPS (South Eastern Metropolitan) — I rise this afternoon to make some comments on the Jury Directions and Other Acts Amendment Bill 2017, which the house is considering. This is the latest tranche of legislation that the house has seen about clarifying and simplifying the framework with respect to directions to juries. It is part of an ongoing suite of amendments which has proceeded through the last two parliaments with the objective of making it easier for judges to give directions to juries and, importantly, making it easier for juries to understand the directions that are given in respect of matters that they are sitting in judgement on.

I refer to the main provisions of the bill. Clause 5 abolishes a number of common-law rules requiring judges to give certain directions relating to previous representations, reliability of evidence, interest in outcome of trials and motives to lie.

Clause 7 of the bill requires a judge in a trial involving a charge of sexual offence to inform the jury that it is common for a complainant's accounts of alleged sexual offending to differ and that both truthful and untruthful accounts may contain differences.

Clause 9 of the bill provides that a judge need not give a direction for a jury to persevere in reaching a unanimous verdict before giving a majority verdict direction. Clause 12 provides for the implementation of a general jury guide developed by an expert advisory group, which summarises important information relevant to criminal trials. Clause 22 removes the requirement that a jury deliberate for at least 6 hours before a court may discharge it or accept a majority verdict.

The coalition parties do not oppose this bill. We believe that a number of the provisions are quite reasonable in the way in which they reform the way that directions to juries operate. One of the concerns that has been raised with the coalition relates to the provisions of part 3 of the bill, and this is a matter that was raised as a concern by the Scrutiny of Acts and Regulations Committee (SARC) in its consideration of the bill. It is in relation to the fact that a court's reasoning must be consistent with how a jury would be directed and must not accept or rely on statements, suggestions or directions that a trial judge would not be able to give to a jury. So in instances where a court is sitting as a judge or as judges without a jury the court must reach its decisions in a way that would be consistent with how a jury would be directed.

Concerns have been raised by SARC that this may lead to significant limitations on how magistrates may operate and how the Court of Appeal may hear summary hearings, committal hearings and appeals from lower courts with that constraint placed around the reasoning of judges. SARC has flagged that as a concern, and that is a concern that stands with the coalition.

Another provision where there is an element of concern is in clause 7, relating to requiring a judge involved in a sexual offence trial to advise the jury that it is common for a complainant's account of alleged sexual behaviour to differ, so there may be differences — the evidence given by the complainant may differ. The way in which that direction is given and the implications that has on the conduct of the trial and the consideration of the jury is something that has been raised as a concern from within the legal profession. Obviously the intent is recognised, but the practical application of such a direction that evidence may vary, whether that is truthful evidence or untruthful evidence, risks creating confusion for a jury. The practical implication of such a direction is one that is of concern to some in the criminal jurisdiction of the legal profession, and it is one that we believe will need to be carefully monitored in its implementation as to the practical effects of giving such a direction to a jury in sexual offences trials.

The other key provisions in relation to the development of the general jury guide by an expert panel we think is a useful step forward in providing advice to jurors around their role and the way in which jury deliberations in criminal trials should be conducted, and we see that as a positive development in this bill. Likewise the provision that removes the requirement for a jury to deliberate for at least 6 hours before the court may discharge it or accept a majority verdict is also one that we see as reasonable. If a jury has determined that it is not going to reach a unanimous verdict, there seems little reason to persevere in requiring it to sit for 6 hours before determining that it can either be discharged if it is not going to reach a majority verdict or allow a majority verdict to be determined. That is a reasonable efficiency measure in improving the operation of the criminal jurisdiction of our courts. In trials where unanimous decisions are not going to be reached and where the jury has determined that they are never going to be reached, we see that as a reasonable way of expediting proceedings without, presumably, impacting on the outcomes of justice. The coalition is happy to see that provision go forward.

The coalition does not oppose the bill. We do think there are some useful measures in terms of updating the law with respect to jury directions. This is a body of work which has been underway for a period of time. It is a useful body of work in terms of simplifying directions to juries and a jury's understanding of the way in which the criminal jurisdiction operates. We do have some reservations with respect to directions in sexual trials that it is common for evidence from the victim to differ. That is an area of concern. Likewise we recognise SARC's concerns with respect to part 3 around a court's reasoning being consistent with directions that would be given to a jury, even when a court is sitting as the Court of Appeal or as a magistrate. But with the exception of those two provisions we reflect that the rest of the bill is a useful amendment to the way in which jury directions operate in this state, and the coalition will not be opposing it.

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