April 14, 2015  |  Second reading speech

Jury Directions Bill 2015

Mr CARROLL (Niddrie) – It is my pleasure to rise to speak about the Jury Directions Bill 2015. I want to correct a bit of history that the member for Hawthorn conveniently overlooked. There is a man the member’s predecessor in the electorate of Hawthorn, former Premier Ted Baillieu, would know very well, and that is Geoff Shaw, the former member for Frankston. If the member for Hawthorn wants to tell the truth about what happened with this legislation in the previous Parliament, he should say the Liberal Party preselected and endorsed the former member for Frankston, who gave his inaugural speech on the back bench here. If the former government had kept the former member in the tent when he became an Independent, if it had looked after him, treated him with respect and consulted him on legislation, the second tranche of this jury legislation would possibly have gone through. But no, the member for Frankston was treated with contempt, and the then opposition, led by the then Leader of the Opposition, now Premier, and the then shadow Attorney-General, now Attorney-General, were also treated with contempt and not given the appropriate briefings.

We are here today because of the neglect of the previous government in consulting the opposition, doing the due diligence and making sure that in proposing legislation it was consultative and bipartisan. We have no problem with this bill; we have never had a problem with it. We all agreed on and signed up to the content, but we did not agree with the former government trying to ram through legislation, just as it rammed through the east–west link contract, which the member for Hawthorn, in his contribution on this bill, also brought up. The former government tried to ram through an airport rail link, which went through my electorate, and no-one was even told about it. Not one person was consulted.

Let us not let the coalition off the hook. It preselected Geoff Shaw. If you go to the Age of 4 April 2014, there is an article headed ‘No debate, so jury bill voted down’, and in that article there is a photograph of Mr Shaw. He voted down the legislation; he was not prepared to do it. The coalition tried to hoodwink him. In the article Mr Shaw is quoted as saying:

This bill was not afforded that opportunity. And therefore I did not vote in favour of it.

Let us call a spade a spade. We are here today purely because of the coalition.

I want to thank the Attorney-General for bringing through this reform. I also want to acknowledge the work of the Department of Justice and Regulation, which over a period of five years has done an immense amount of work in getting to this stage.

This bill is important, because we all know that juries are a complex component of the criminal justice system. They are required to apply facts to the law and work out guilt or innocence. Juries are an important component, but as the law has changed, as reforms have gone on, we have seen more juries dealing with more complex matters.

I quote Lord Mackay, who said the ‘supreme test’ for a jury direction is that it should be ‘comprehensible to an ordinary member of the public who is called to sit on a jury and who has no particular acquaintance with the law’. We must remember that juries are generally made up of members of the public who have, more often than not, no prior history with the law. It is a very good thing to make matters simple for them and to make reforms simpler and easier.

Before I got up to speak I had a quick look at the website of the Department of Justice and Regulation. The Attorney-General is quoted on that website, and his statement is worth reading into Hansard. He said:

Over the years, jury directions in Victoria have become overly long and complex, and this legislation will help deliver shorter criminal trials, and fewer appeals and retrials based on jury directions …

This legislation contains important reforms that will reduce appeals, streamline the process and help juries apply the law to the facts. In creating this legislation the government has had significant contributions from the Victorian Law Reform Commission, the Criminal Law Review, Justice Weinberg and the Judicial College of Victoria. An incredible amount of work has gone into creating this legislation. There have been various reports and there has been various commentary on it. I have looked at the report Jury Directions — A Jury-centric Approach, which goes through the process of how we got here today and outlines some of the research that has been done. The laws we are making and passing here today are important. Research over two decades has highlighted deficiencies in jury directions to date but has also pointed a way forward for making more effective jury directions. The report indicates that:

Research has shown that:

  • jurors struggle to understand jury directions containing double negatives and conceptual or complex matters
  • some jury directions have the opposite effect from that which is intended (this is known as the ‘reactance theory’)
  • there is a significant difference between jurors’ subjective beliefs in their understanding of jury directions and objective testing of their understanding
  • jurors bring certain assumptions into the jury room with them (e.g., misconceptions about sexual assault and family violence) 

—and today’s jury directions target those areas; and —

  • jurors are much better at dealing with factual issues than understanding legal issues.

The bill is an important area of reform. The Andrews Labor government has put family violence firmly and squarely as its no. 1 agenda item. It has said firmly and squarely that once the report of the Royal Commission into Family Violence comes in, all of the recommendations will be followed through and implemented.

I acknowledge that the first tranche of these jury reforms, the Jury Directions Act 2013, was passed by the Parliament in 2013, and here we are today with the second tranche of reforms. The bill we are going to pass, with bipartisan support that I welcome, will refine the operation of the act. I will go through some of the key components of the bill because they are important.

The bill is targeted at specific areas to help jurors with the directions given by judges. It will simplify directions on what must be proved beyond reasonable doubt — the only matters a trial judge may direct the jury must be proved beyond reasonable doubt are the elements of the offence and the absence of any defences. The bill will abolish complex common-law directions to the contrary that are confusing and in some instances reflect misconceptions about sexual offences. It will provide for simplified directions on ‘other misconduct evidence’ — that is, tendency, coincidence, context or relationship evidence, removing complex distinctions between these types of evidence. It will replace provisions in the Evidence Act 2008 in relation to dealing with children’s evidence with new provisions in the Jury Directions Act.

Importantly, in relation to the effect of delay on forensic disadvantage, the bill will replace statutory and common-law directions with a simplified direction that may be given when the accused has experienced a significant disadvantage because of delay. It will require a direction on delay and credibility in relevant sexual offence cases to address common misconceptions. This is designed to prevent unfair generalisations about sexual offence complainants as a class while allowing the parties to argue about delay as it relates to the specific case. The bill will also rectify a problematic direction on consent in sexual offence trials with amendments to the Crimes Act 1958 to clarify that a person does not consent to a sexual act where the person does not say or do anything to indicate consent or where, having initially consented to an act, the person later withdraws that consent.

The Jury Directions — A Jury-centric Approach report I referred to earlier has been published on the Department of Justice and Regulation website. It is essential reading. Again I congratulate all the staff at the Department of Justice and Regulation for their work on this matter to date and those involved at the Victorian Law Reform Commission as well. The reforms in the bill provide significant legal and cultural changes for criminal trials and it is likely they will be tested on appeal, so it is desirable to provide detailed information on how the reforms have been developed. The work done by staff at the Department of Justice and Regulation, and going back to the 2009 report by the Victorian Law Reform Commission, are important steps. I acknowledge again the team led by the Honourable Justice Weinberg of the Court of Appeal, which published a report in August 2012. The Jury Directions Advisory Group examined the report’s recommendations in detail and identified further improvements to refine and simplify those proposals.

I welcome the commentary from other members — we have had a lot of robust reform in this area and this is another important piece of legislation. It recognises and reorganises the provisions in the earlier legislation and includes new provisions. The bill provides a great opportunity to restructure the legislation so it flows logically and is easier to read. I welcome the opposition’s support because the bill is a great step for our criminal justice system in terms of reducing appeals, streamlining the process and the application of the law to the facts. This legislation is vital because jury directions are a vital component of the criminal justice system.

I once again congratulate the Attorney-General, and I commend the opposition on its efforts. The opposition should note that we consulted it, and it would have been nice if we had been consulted on all the previous government’s justice bills when we were in opposition, but that was not the case. Here we are today fixing up the opposition’s mess and passing vital legislation for our courts. I welcome this legislation and I wish it a speedy passage.