This article was produced by the commission and appeared in the September 2009 issue of the Law Institute Journal.
Judges in criminal trials will be required to give clear, simple and brief directions to juries under recommendations from the Victorian Law Reform Commission to modernise the justice system.
The proposals are contained in the commission’s Jury Directions: Final Report which was tabled in Parliament by Attorney-General Rob Hulls in July.
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.
He said at the heart of the criminal justice system is the right to a fair trial and the law regarding jury directions threatens to undermine this important principle.
Currently the law is located in legislation, the common law and court rules making it difficult for the judiciary to determine when to give directions and what to include in the direction.
This lack of certainty and clarity in the law has led judges to give lengthy, complex and unnecessary directions, which in turn has resulted in many retrials ordered on appeal.
Professor Rees said key among the commission’s recommendations was a proposal to replace 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, simple and comprehensible as possible making it easier for judges to give direction and for juries to understand them.
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 Final Report: Jury Directions include:
- Providing the jury with written instructions including an ‘outline of charges’ which identifies the elements of the offences the defendant is charged with and a ‘jury guide’ which contains a list of questions designed to assist the jury to make a fair verdict.
- Reducing the obligation on the judge in summing up to re-state the evidence presented and allowing the provision of written transcripts of proceedings to the jury.
- Reducing the obligation for the trial judge to instruct the jury on matters not raised by counsel during the trial.
- Restricting counsel from arguing on appeal that the trial judge made an error in directing the jury, unless counsel has raised the error with the trial judge prior to a verdict being made.
- Providing training to newly appointed judges and refresher course for existing judges on the new legislation and direction requirements.
- Establishing a specialist skills training course and accreditation scheme for criminal barristers to 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 place 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 guided the project which was headed up by the Honourable Geoff Eames 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 as Acting Justice of the Supreme Court of the Northern Territory.
The Jury Directions: Final Report is available on the commission’s website: www.lawreform.vic.gov.au