Victorian Numbered Acts

JURY DIRECTIONS AND OTHER ACTS AMENDMENT ACT 2017 (NO. 37 OF 2017) - SECT 5

After Division 6 of Part 4 of the Jury Directions Act 2015 insert —

" Division 7—Previous representations

        44A     Definition

In this Division—

"previous representation" has the same meaning as in the Evidence Act 2008 .

        44B     Direction not required regarding repetition of previous representation

If evidence is given of a previous representation, the trial judge is not required to direct the jury that repeating a previous representation does not make the asserted fact true.

        44C     Direction not required regarding evidence of person who saw, heard or perceived complaint

    (1)     This section applies if—

        (a)     evidence is given of a previous representation by a person who saw, heard or otherwise perceived the representation being made; and

        (b)     the representation is a complaint, made by the victim of an alleged offence, about the commission of the offence.

    (2)     The trial judge is not required to direct the jury that the evidence of the previous representation does not independently confirm the victim's evidence of the commission of the alleged offence.

        44D     Direction not required regarding complaint made in general terms

    (1)     This section applies if—

        (a)     evidence is given of a previous representation; and

        (b)     the representation is a complaint, made by the victim of an alleged offence, about the commission of the offence; and

        (c)     the complaint is made in general terms.

    (2)     The trial judge is not required to direct the jury not to substitute the evidence of the previous representation for evidence relating to a specific charge.

        44E     Abolition of common law rules

Any rule of common law under which a trial judge is required to give the jury a direction referred to in this Division is abolished.

Notes

1     This provision abolishes directions based on—

              •     Papakosmas v R (1999) 196 CLR 297; and

              •     R v Stoupas [1998] 3 VR 645; and

              •     R v HJS [2000] NSWCCA 205.

2     Section 4 applies generally to override any rule of law or practice to the contrary of this Act.

Division 8—Doubts regarding truthfulness or reliability of victim's evidence

        44F     Prohibited direction in relation to doubts regarding truthfulness or reliability of victim's evidence

In a trial in which more than one offence is charged, the trial judge must not direct the jury that if the jury doubts the truthfulness or reliability of the victim's evidence in relation to a charge, that doubt must be taken into account in assessing the truthfulness or reliability of the victim's evidence generally or in relation to other charges.

Note

This section prohibits the trial judge from giving a particular direction to the jury. This does not limit the obligation of the trial judge to refer the jury to the way in which the prosecution and the accused put their cases in relation to the issues in the trial—see section 65.

        44G     Abolition of common law rules

Any rule of common law under which a trial judge is required or permitted to give the jury a direction referred to in section 44F is abolished.

Notes

1     This provision abolishes the rule attributed to R v Markuleski (2001) 52 NSWLR 82.

2     Section 4 applies generally to override any rule of law or practice to the contrary of this Act.

Division 9—Accused giving evidence, interest in outcome of trial

        44H     Prohibited statements and suggestions in relation to interest in outcome of trial

The trial judge, the prosecution and defence counsel (or, if the accused is unrepresented, the accused) must not say, or suggest in any way, to the jury that—

        (a)     an interest in the outcome of the trial is a factor to take into account in assessing the evidence of witnesses generally; or

        (b)     the evidence of an accused is less credible, or requires more careful scrutiny, because any person who is on trial has an interest in the outcome of that trial.

Notes

1     Section 7 provides for correction of statements or suggestions to the contrary of this provision.

2     The trial judge, the prosecution and defence counsel (or, if the accused is unrepresented, the accused) may say or suggest that a witness, or an accused, has a particular interest in the outcome of the trial and this interest does or may affect the credibility of the witness or the accused.

        44I     Direction on accused giving evidence or interest of accused in outcome of trial

    (1)     Defence counsel may request under section 12 that the trial judge direct the jury on either or both of the following—

        (a)     the giving of evidence by the accused;

        (b)     the interest that the accused has in the outcome of the trial.

    (2)     In giving a direction referred to in subsection (1), the trial judge must explain that—

        (a)     the accused is not required to give evidence; and

        (b)     the fact that the accused has given evidence does not change the prosecution's obligation to prove that the accused is guilty; and

        (c)     the jury must assess the evidence of the accused in the same way that the jury assesses the evidence of any other witness; and

        (d)     the jury must not give less weight to the evidence of the accused just because any person who is on trial has an interest in the outcome of that trial.

Notes

1     Section 14 requires the trial judge to give this direction, if requested, unless there are good reasons for not doing so. Section 16 requires the trial judge to give a direction if the trial judge considers that there are substantial and compelling reasons for doing so.

2     Section 41 provides for a direction on an accused not giving evidence or calling a particular witness.

        44J     Prohibited directions in relation to evidence of an accused

The trial judge must not direct the jury about any of the following matters in relation to the evidence of an accused—

        (a)     whether the accused is under more stress than any other witness;

        (b)     that the accused gave evidence because—

              (i)     a guilty person who gives evidence will more likely be believed; or

              (ii)     an innocent person can do nothing more than give
evidence.

Note

This section prohibits the trial judge from giving directions to the jury about particular matters. This does not limit the obligation of the trial judge to refer the jury to the way in which the prosecution and the accused put their cases in relation to the issues in the trial—see section 65.

        44K     Abolition of common law rules

    (1)     Any rule of common law under which a trial judge is prohibited from directing the jury on the interest a witness or an accused may have in the outcome of a trial is abolished.

    (2)     Any rule of common law under which a trial judge is required or permitted to direct the jury about the matters referred to in section 44J in relation to the evidence of an accused is abolished.

Notes

1     Subsection (1) abolishes the rule attributed to Robinson v R [1991] HCA 38; (1994) 180 CLR 531.

2     Subsection (2) abolishes directions based on—

              •     R v Haggag [1998] VSC 355; (1998) 101 A Crim R 593; and

              •     R v McMahon [2004] VSCA 64; (2004) 8 VR 101; and

              •     R v Buckley [2004] VSCA 185; (2004) 10 VR 215.

3     Section 4 applies generally to override any rule of law or practice to the contrary of this Act.

Division 10—Whether a prosecution witness has a motive to lie

        44L     Direction on prosecution witness's motive to lie

    (1)     If the issue of whether a witness for the prosecution has a motive to lie is raised during a trial, defence counsel may request under section 12 that the trial judge direct the jury on that issue.

    (2)     In giving a direction referred to in subsection (1), the trial judge must explain—

        (a)     the prosecution's obligation to prove that the accused is guilty; and

        (b)     that the accused does not have to prove that the witness had a motive to lie.

Note

Section 14 requires the trial judge to give this direction, if requested, unless there are good reasons for not doing so. Section 16 requires the trial judge to give a direction if the trial judge considers that there are substantial and compelling reasons for doing so.

        44M     Abolition of common law rules

    (1)     Except as provided by this Division, a trial judge is not required or permitted to direct the jury on the issue of whether a witness for the prosecution has a motive to lie.

    (2)     Any rule of common law to the contrary of subsection (1) is abolished.

Notes

1     Subsection (2) abolishes directions based on Palmer v R [1998] HCA 2; 193 CLR 1.

2     Section 4 applies generally to override any rule of law or practice to the contrary of this Act.".