Jury Directions and Other Acts Amendment Bill 2017 | Sue Pennicuik

Jury Directions and Other Acts Amendment Bill 2017

I am pleased to rise to speak on the Jury Directions and Other Acts Amendments Bill 2017. This bill amends the Jury Directions Act 2015 and makes related amendments to other acts, including the Criminal Procedure Act 2009 and the Juries Act 2000.
Tuesday, August 22, 2017 - 11:45am
Speaker:
Sue Pennicuik

Ms PENNICUIK (Southern Metropolitan) — I am pleased to rise to speak on the Jury Directions and Other Acts Amendments Bill 2017. This bill amends the Jury Directions Act 2015 and makes related amendments to other acts, including the Criminal Procedure Act 2009 and the Juries Act 2000. It aims to build upon the work that was done in previous reforms to jury directions, which first began with the Jury Directions Act 2013. The current Jury Directions Act 2015 made improvements to that act, which it replaced, and it added new provisions to clarify and simplify jury directions on issues such as unreliable evidence, delay and credibility.

The amendments in this bill are based on a report by the Department of Justice and Regulation called Jury Directions: A Jury-Centric Approach Part 2. The expert advisory group was established by the department to assist in the reform process. That advisory group comprised high-level representatives from the Court of Appeal, the Supreme Court, the County Court, the Office of Public Prosecutions, Victorian Legal Aid, the Victorian Bar and the Judicial College of Victoria, as well as academics specialising in jury research. Members of the Criminal Law Review have also made a contribution to the department's report, outlining the recommendations implemented in this bill.

It is interesting to read the opening statement of the special counsel, Greg Byrne, in the report, where he says:

Lord Justice Moses described the traditional approach to jury directions as 'a system designed to ensure, in any but the simplest of cases, that the path we require [the jury] to follow should be as obscure, as tortuous and as arduous as could possibly be devised.

I think we often hear that it can be quite difficult for juries, particularly in complicated trials, to follow proceedings. That is why it is important to make sure that juries are given clear, understandable directions from judges in criminal trials.

The opening statement to the report goes on to say:

The aim of jury directions is to ensure a fair trial with the jury verdict representing the application of the law to the facts as found by the jury. However, after reviewing many empirical studies measuring jury comprehension, Ogloff and Rose concluded that 'jurors appear largely incapable of understanding judicial instructions as they are traditionally delivered by the judge … The overwhelming weight of the evidence is that [jury] instructions are not understood and therefore cannot be helpful.

We are now in the seventh year of reform of jury directions to make them more clear, concise, accurate and understandable by juries. The bill before us addresses a number of problematic areas to provide for more clear and simple directions to juries, such as the giving of evidence by an accused, the interest an accused or witness has in the outcome of a trial, a prosecution witness's motivation to lie and differences in a complainant's account of an alleged sexual offence. In particular that is addressed under clause 7, in new section 54D. That is, we believe, a helpful provision in giving effect to important research in the area of sexual offences and how victims react to trauma.

Under new section 54D, in particular section 54D(2)(c), where the trial judge considers that there is evidence in the trial that suggests a difference in the complainant's account of the offence charged that is relevant to the complainant's credibility or reliability, it is mandatory rather than discretionary for a judge to direct a jury that experience shows that people may not remember all the details of a sexual offence or may not describe a sexual offence in the same way each time; that trauma may affect different people in different ways, including by affecting how they may recall events at different times; that it is common for there to be differences in accounts of a sexual offence; and so forth.

We too have had representations made to us about this particular provision, new section 54D, which requires a judge to inform a jury that people may not remember all the details of the offence or may describe it differently on different occasions due to trauma et cetera. While we understand the points being made by those who raise concerns with this particular provision, as Mr Rich-Phillips referred to, we do believe the evidence is that juries do require direction regarding these types of matters.

The other issue that pertains to jury directions in sexual offence cases is that under the act they are not mandatory. We have on previous occasions raised the issue that not only is there the evidence about what I have just been describing — about how complainants can be traumatised by the experience and have different recollections at different times et cetera — but the evidence also points to the fact that within the community there are still stereotyped attitudes towards sexual offences, and these are carried, of course, into criminal trials by jurors who share those stereotyped attitudes and who can, without careful direction by judicial officers, perhaps not come to the right conclusions with regard to the evidence that is given by complainants in such cases. That is why we have always taken the view that there should be mandatory directions.

Acting President, we do have some amendments, which I would like to have circulated, to that effect with regard to mandatory jury directions. There are some other amendments as well that could be circulated at the same time in regard to the terms 'victim' and 'complainant'.

Greens amendments circulated by Ms PENNICUIK (Southern Metropolitan) pursuant to standing orders.

Ms PENNICUIK — As I was saying, the Greens have in debating previous bills, where there has been the opportunity to do so, attempted to make jury directions in sexual offence cases mandatory rather than discretionary. This would mean that judicial officers would need to ensure that all juries have a clear understanding about the legal requirements in sexual offence cases. This has been called for by groups such as the Centre Against Sexual Assault and the Federation of Community Legal Centres, which assist people in sexual assault cases, and by the Victorian Law Reform Commission. However, these have not been supported in the past. Given that this is another opportunity to do so, even though this particular amendment may be outside the scope of the bill, I do have a motion to put before the committee that the committee be able to consider such amendments.

As I was saying, we feel it is very important that juries in all sexual offence case are given clear directions by judicial officers as to the law, and in particular with regard to consent and other matters that may be raised in such cases. This is to make sure that juries are applying the law over and above the attitudes they may have brought with them into the courtroom.

The bill also does a few other things. It abolishes common-law directions on the truthfulness and reliability of a victim's evidence. It provides that problematic common-law directions on previous representation evidence are not required. It provides directions about majority verdicts and persevering to reach a unanimous verdict in that a judicial officer would encourage juries to persevere if they were to report back that they are unable to reach a unanimous verdict. It allows the judicial officer to decide the timing of whether or not, or at what time, the judicial officer may advise the jury that if they cannot reach a unanimous verdict they may be able to reach a majority verdict. It also removes the 6-hour time limit that currently exists.

Importantly, the bill provides legislative backing for a general jury guide to assist jurors during the trial and their deliberations. We believe this is an important initiative to demystify criminal proceedings for juries and to help them in performing the very important role that they play for the community. Such a guide may contain general information about the process of criminal trials, including the role of the jury, the judge and the parties; the usual order of events in a trial; information about legal concepts that are relevant to criminal trials, including information about the presumption of innocence and the requirement for proof beyond reasonable doubt; and general information about jury deliberations and processes.

The bill provides directions about the order in which certain matters are considered in jury deliberations and applies relevant aspects to the Jury Directions Act 2015 to criminal proceedings that do not involve a jury. That was a matter that was raised by Mr Rich-Phillips and also by the Scrutiny of Acts and Regulations Committee (SARC). I have had a look at the issues raised by SARC, and also at the minister's response to those, about how judicial officers, in the absence of a jury, would in fact apply what would be jury directions to themselves when considering cases in those circumstances, and I am satisfied with the response given by the Attorney-General in regard to that matter.

The other amendment that I have circulated is about the use of the terms 'complainant' and 'victim' in jury directions in all court cases. I have queried why the term 'complainant' is not preferred in almost all cases, rather than the term 'victim', as 'complainant' is a neutral term that does not allow for conscious or unconscious bias to be formed by a jury, a judge or anyone else against an accused. The bill continues to use the term 'complainant' for sexual offence cases, which provides for a jury to determine whether a complaining witness is a victim or not — which is a fundamental principle of law.

In raising this query regarding the appropriate use of the terms 'victim' and 'complainant' with the Attorney-General, I was informed that the Victorian Law Reform Commission (VLRC) in its recent report states that in the majority of cases:

… there is no dispute that the victim is truly a victim …What is in dispute is whether it was the accused who committed the crime … In sexual offence cases …

where a person can give consent to sexual acts —

the issue may be whether the alleged victim is a victim or a voluntary consenting party.

So the term 'complainant' is used.

The Attorney-General referred to the use of the term 'victim' in other legislation relating to criminal law to justify its use throughout this bill; however, some of the instances of its use elsewhere are for very discrete or specific purposes, such as sections 79 and 108C of the Evidence Act 2008, which refer to 'victim' not in the context of the actual complainant in the case before the court but in reference to expert opinion being provided relating to the behaviour of children who have been victims of sexual offences. Here it would not be appropriate to use the term 'complainant'.

The term 'victim' is used in certain other pieces of legislation, and also in part 6 of the jury directions bill for family violence provisions. The use of the term 'victim' under this part is, however, only in relation to very discrete and specific circumstances — that is, within the context of family violence — and is needed to cover situations where the victim is in fact a deceased person and so could not be referred to as a complainant.

While section 6 of the act provides that in giving a direction to the jury, trial judges need not use any particular form of words, I think it is preferable to be consistent and in the interests of justice to use the term 'complainant' rather than 'victim' wherever possible so as not to lead a jury, for example, as to the guilt or innocence of the accused. While it can be argued that in the majority of cases there may be little dispute that a victim truly is a victim — the question is whether the accused committed the crime — there are still cases where the alleged victim is not a victim and in fact may have made a false allegation, and this must be accounted for even with the provisions in the bill relating with general application.

I also think the word 'victim' has as a lot of other connotations around it, and I do believe that the word 'complainant' is a more neutral term. I was interested when reading through Jury Directions: A Jury-Centric Approach to see that in part 5 the report talks about doubts regarding the truthfulness or reliability of a complainant's evidence, known as the Markuleski direction, which is actually repealed by this bill. In that particular chapter, which talks about general application, not just in sexual offences, the term 'complainant' is used. In fact throughout the report there is a bit of interchangeability in the use of the terms.

The report does not actually go to the issue of the uses of the terms 'victim' and 'complainant', but I have thought about it and discussed it with a number of people and I think it would be an improvement if legislation erred on the side of using less emotive terms, or less loaded terms, and more neutral terms.

With those comments, the Greens are supportive of the reforms in the bill. We would just like to see jury directions in sexual offence cases being mandatory, and we do have this issue with regard to the use of those terms that I have mentioned, 'complainant' and 'victim', and their appropriateness.

And in committee...

Ms PENNICUIK (Southern Metropolitan) — I move:

That it be an instruction to the committee that they have power to consider amendments and new clauses to amend the Jury Directions Act 2015 to change the circumstances in which directions on consent and reasonable belief in consent are to be given in a criminal proceeding relating to a sexual offence.

As I mentioned in my second-reading contribution, the Greens have raised this issue before in this Parliament that jury directions in sexual offence cases should be mandatory rather than discretionary, meaning that judicial officers would need to ensure that all juries have a clear understanding about the legal requirements in sexual offence cases. This is something that is being called for by groups such as the Centre Against Sexual Assault and the Federation of Community Legal Centres, who assist people in sexual assault cases, and by the Victorian Law Reform Commission.

Many surveys and studies have shown that there are still existing attitudes in the community with regard to blaming people who have been sexually assaulted — blaming the victims, so to speak. There are in fact some recent surveys showing worrying trends among young men in particular — not only amongst young men but amongst the general community — with regard to sexual offence cases. Of course we know the vast majority of cases do not actually proceed to court. Many sexual offences are not even being reported let alone proceeding to court, so we believe it is important, given these prevailing attitudes in the community, that in these cases, that in all cases which come to court with regard to sexual offences, jury directions about the legal requirements and other matters in the case are always given to the juries in the interests of a fair trial, in the interests of justice for all parties and in terms of making clear to juries what their responsibilities and roles are with regard to those particular cases.

Motion agreed to.

Committed.

Ms PENNICUIK (Southern Metropolitan) — I move:

1.     Clause 1, page 2, line 3, omit “victim” and insert “complainant”.

This is an amendment to clause 1 to omit the word 'victim' and insert the word 'complainant'. I understand that this is a test for my amendments numbered 4 to 11 and amendment 15, which make a similar change to a number of other clauses or parts of clauses. This is with regard to the desire to see in the act the use of the word 'complainant' rather than 'victim', because it is a much more neutral word than 'victim'. I think it would be preferred in most cases as it is a neutral term that does not allow for conscious or unconscious bias to be formed by a jury, a judge or anyone else against an accused. The bill uses the term 'complainant' for sexual offence cases and provides for a jury to determine whether a complainant witness is a victim or not. That is because in sexual offence cases the issue of consent is central to the matters at hand.

In my second-reading debate speech I spoke about queries I raised with the Attorney-General and his reference to some particular sections of the Evidence Act 2008 — sections 79 and 108C — which refer to 'victim', but in a case where they are not talking about a complainant but are referring to a third party or they are talking about a child who is a victim of child sexual abuse, and also to another part of the act which could be referring to a deceased person, who of course could not be referred to as a complainant either. I note that in giving a direction to a jury, trial judges need not use any particular form of words; however, I think it is preferable to be consistent and in the interests of justice to use the term 'complainant' rather than 'victim' wherever possible so as not to lead a jury, for example, as to the guilt or innocence of the accused, remembering that everybody is presumed innocent until proven otherwise — which of course would be a direction given by judges to juries in many cases in any case. That is why I am moving this amendment.

Previous DocumentMsNext Document PENNICUIK — Thank you, Minister, and Mr Rich-Phillips for your remarks. I do understand those arguments, and I understand what Mr Rich-Phillips has said — that it has been traditional and it is the way it has been done — but I suppose what I am doing is challenging the way it has always been done. I understand the argument that in many cases of general application — not sexual offences cases but other criminal matters before juries — it may be that it is thought to be well established that the person is a victim, definitely something happened to them, and the matter is: did the defendant actually perpetrate the act that occurred to the victim?

I am aware of other cases where a person was deemed to be a victim of a crime and not only was the defendant found not to have committed the crime but the crime was not committed at all and the person who was being referred to in that case in the traditional way as a victim was not a victim but in fact had made a false allegation and no crime had been committed. That is why I think this use of the word 'complainant' is more neutral. I also think that the word 'victim' over many years has become a loaded term — it has a lot of baggage attached to it that the word 'complainant' does not have. I think the type of case I referred to, where not only was the alleged victim not a victim and the defendant did not commit the crime but the crime was not committed at all. I think that these sorts of cases need to be covered by the language used, and that is why I raise this issue with respect to this particular bill.

Amendment negatived.

Ms PENNICUIK — I move:

2.     Clause 1, page 2, line 11, after “directions” insert “relating to sexual offences, including directions”.

I move amendment 2 standing in my name, which is a consequential amendment to substantive amendment 12. The substantive amendment is to insert a new clause following clause 5. It seeks to make it mandatory for trial judges in sexual offence cases to give jury directions on reasonable belief in consent rather than it being at the discretion of the judge or at the request of counsel. The Greens have pursued this matter before a number of times. As I said in the second-reading debate, we believe that there is evidence in reported surveys and studies that have been done of prevailing attitudes, particularly with regard to consent, that are quite disturbing. The prevalence of a non-understanding of what consent is in sexual offence matters in the general community is quite disturbing.

Not only do we need to make sure that in all sexual offence cases the jury are given directions on this matter to make sure that they do understand what consent means — because sexual offence trials turn very much on this matter — but we need more education in the community to overturn these prevailing disturbing attitudes that are in the community with regard to the non-understanding of what is meant by withdrawing consent or not giving consent at any time. These attitudes are prevailing in the community and therefore are represented on juries, and unless juries are given directions on the issue of consent then injustices could and probably do result. So in the interest of a fair trial for everybody involved in these cases, we believe that these directions should be mandatory.

Ms PENNICUIK — I just have to take up Mr Rich-Phillips's point, as I am sure he expected. As I outlined, we are talking about serious cases here. We are talking about disturbing prevailing attitudes in the community with regard to consent and with regard to attitudes to sexual offences that carry into the courtroom in juries. That is why we believe it needs to be mandatory that until these prevailing attitudes are not there in the community juries be given directions on consent and on other legal matters with regard to the cases that are before them. I think it is a very important issue and is not to be confused, as Mr Rich-Phillips was trying to make out, with our consistent opposition to mandatory sentencing, which is a completely different issue from mandatory jury directions in sexual offence cases to overcome the prevailing disturbing attitudes that are in the community with regard to consent in those matters.