Reforms to simplify criminal trials

Judges in criminal trials will be able to give clear, simple and brief directions to juries under recommendations from the Victorian Law Reform Commission to modernise the criminal justice system.

The proposals are contained in the Commission’s Jury Directions: Final Report which was tabled in Parliament today by Attorney-General Rob Hulls.

Chairperson of the Commission, Professor Neil Rees, said the law governing directions that judges must give to a jury had become complicated, confusing and was in need of reform.

“Because the law regarding jury directions is so complex it threatens to undermine the right to a fair trial which lies at the heart of the criminal justice system,” Professor Rees said.

“The law is located in a number of different places – legislation, cases interpreting the legislation and the common law – making it difficult for judges to determine when to give directions and what to include in the direction.

“This lack of certainty and clarity in the law means that judges must often give the jury lengthy and technical directions, which sometimes results in retrials being ordered by appeal courts because of error in those directions.”

Professor Rees said that a key Commission recommendation was replacing the various sources of law with one piece of legislation that clearly sets out what directions are mandatory and those which are discretionary.

“The statute would require all jury directions to be as clear, brief and comprehensible as possible making it simpler for judges to give directions and easier for juries to understand them,” he said.

“Recommendations proposed by the commission seek to strengthen and enhance the principles of fairness that underlie the institution of trial by jury.”

Key recommendations in the Jury Directions: Final Report include:

  • Providing the jury with a written ‘outline of charges’, which identifies the elements of the offences the accused is charged with, and a ‘jury guide’ which contains a list of questions designed to assist the jury to reach a fair verdict.
  • Modernising the judge’s obligation to refer the jury to the relevant evidence by permitting the judge to provide the jury with written transcripts of proceedings.
  • Reducing the obligation for the trial judge to instruct the jury about matters not raised by counsel during the trial.
  • Restricting the opportunity for counsel to argue on appeal that the trial judge made an error in directing the jury when that error was not raised the error with the trial judge prior to the verdict being delivered.
  • Providing training to newly appointed judges and a refresher course for existing judges on the new legislation concerning directions.
  • Encouraging the Bar Council to consider establishing a specialist skills training course and accreditation scheme for criminal barristers who conduct criminal trials and considering whether accredited specialist barristers should receive a fee loading.
  • Introducing a Public Defenders scheme – the defence equivalent of Crown Prosecutors – along the lines of the schemes in New South Wales and Queensland.

Professor Rees said the final report followed publication of a consultation paper in September last year and extensive consultations with the judiciary, criminal bar, Office of Public Prosecutions, Judicial College of Victoria and other stakeholders.

The Commission held a symposium in February this year with members from the New Zealand, New South Wales, Queensland and Tasmanian law reform commissions as well as leading academics to consider the law of jury directions in other jurisdictions.

A consultative committee of judges, barristers and academics assisted the commission team which included the Honourable Geoff Eames QC AO, a retired Justice of the Supreme Court of Victoria.

Professor Rees said Mr Eames had played a major role in the preparation of this report and the Commission benefited greatly from his extensive trial and appellate court experience including 15 years on the Victorian bench and a period as Acting Justice of the Supreme Court of the Northern Territory.

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