This article was produced by the Commission and appeared in the March 2008 issue of the Law Institute Journal.
On 2 January this year the government asked the Victorian Law Reform Commission (VLRC) to review the necessity and complexity of jury directions in criminal trials, as well as the need for judges to summarise evidence.
The exact terms or reference are:
The Victorian Law Reform Commission is to review and to recommend any procedural, administrative and legislative changes that may simplify, shorten or otherwise improve the charges, directions and warnings given by judges to juries in criminal trials. In particular, the Commission should:
(a) identify directions or warnings which may no longer be required or could be simplified;
(b) consider whether judges should be required to warn or direct the jury in relation to matters that are not raised by counsel in the trial;
(c) clarify the extent to which the judge need summarise the evidence for the jury.
In conducting the review the Victorian Law Reform Commission should have regard to:
- the themes and principles of the Attorney-General’s Justice Statement (2004);
- the rights enshrined in Victoria’s Charter of Human Rights and Responsibilities;
- the overall aims of the criminal justice system including:
- the prompt and efficient resolution of criminal trials; and
- procedural fairness for accused people.
The Commission is to report by 1 March 2009.
A starting point for the review will be to look at why appellate courts have called for certain jury directions to be given and whether those reasons are still valid today.
There is concern among some lawyers and judges about jury directions that are unnecessary or unnecessarily complex, which can lead to confused jurors and grounds for highly technical appeals.
When giving the terms of reference to the VLRC, Attorney-General Rob Hulls said there had been a significant number of cases where a conviction had been overturned on the ground that the trial judged failed to give particular instructions to the jury. At the subsequent retrials the relevant warning or direction was given but the outcome was the same as the original trial.
While juror comprehension is not a specific term of reference, the VLRC will need to examine local and international research on juror reactions to directions when assessing whether some directions need to be simplified to achieve their objectives.
The Attorney-General has indicated the possibility of establishing another more detailed review of the content of directions following delivery of the Jury Directions report.
The VLRC has made recommendations about jury directions in its Sexual Offences Final Report and the Uniform Evidence Law Final Report, in which the Victorian, Australian and New South Wales commissions called for a general review of jury directions.
In the Sexual Offences Report the VLRC recommended changes to restrict the Longman warning, which concerns the reliability of evidence because of delay, to cases where evidence justifies its use. The government implemented this recommendation in the Crimes (Sexual Offences) (Further Amendment) Act 2006.
In the Evidence report the VLRC recommended the uniform Evidence Acts be amended to require parties to request the court give the Longman warning. The request must be supported by evidence of significant forensic disadvantage being caused by a delay in reporting the crime.
The New South Wales Law Reform Commission is also currently reviewing jury directions but its terms of reference are broader than Victoria’s. As well as looking at the complexity and necessity of directions and evidence summation, it is investigating how judges give directions and the use of “model directions”, juror comprehension of directions, the use of aids to supplement a judge’s oral summation, and any other related matter.
The VLRC plans to release a consultation paper towards the second half of this year, to be followed by the final report in March next year.