Improving the Justice System Response to Sexual Offences: Report (html)

20. Juries and sexual offence trials

Overview

• In sexual offence trials, juries decide whether an accused person is guilty beyond a reasonable doubt of the charges brought against them.

• Jurors, like anyone in the community, may have misconceptions about sexual violence. This may affect their assessment of the facts.

• Sexual offence trials are also complex. A juror’s job of assessing the facts in line with the law is a difficult one.

• This chapter sets out our recommendations for improving sexual offence trials by supporting jury decision making. We recommend:

– giving more jury directions

– a greater use of independent experts

– giving jury directions more effectively

– consistent guidance on the meaning of ‘beyond reasonable doubt’

– improving research on juror understanding, countering misconceptions and supporting the jury’s task in sexual offence trials.

What jurors believe and understand is critical in sexual offence trials

20.1 In sexual offence trials in the County Court of Victoria juries decide if an accused is guilty. This is where most sexual offence trials happen.^[1]

20.2 The role of the jury in a trial is to decide questions of fact, and to apply the law as stated by the judge to those facts to reach a verdict.

20.3 This chapter addresses two key issues about the jury’s role in sexual offence trials. First, jurors are members of the community. They bring into the jury room their beliefs and understandings about sex, gender and sexual violence. Research shows that these include misconceptions about sexual violence (see Chapter 3). Some studies suggest that jurors are more influenced by their own attitudes to rape than by the evidence at trial.^[2]

20.4 Secondly, jurors have a hard task in sexual offence trials. These trials can be complicated and confusing for people without legal training.^[3] Jurors can find it hard to understand how to apply the law to the facts, especially when the law is complex. They can also find it hard to understand some concepts, like the meaning of the standard of proof required in criminal trials (‘beyond reasonable doubt’).^[4]

20.5 These issues are not unique to sexual offence trials. But they are likely to be more important in these trials. As we discuss in Chapter 3, misconceptions about sexual violence are widespread – everybody has their own beliefs and experiences, often deeply held.^[5] In Chapter 14, we discuss past efforts to make sexual offence laws less complex.

20.6 Sexual offending requires proof that someone did not consent and also often happens in private. This means there is more focus on interpreting how people behaved, and there is less likely to be other evidence to help jurors decide what happened (see Chapter 19).

20.7 For criminal trials in sexual offence cases to result in just outcomes, juries must have the information and tools they need to make the right decisions.

Jurors need help to deal with misconceptions

20.8 In the issues paper, we suggested four different ways to address concerns about misconceptions in jury trials:

• changing the role or nature of the jury by replacing juries with judges (‘judge-alone trials’) or with specialised (‘professional’) jurors

• improving jury education when someone becomes a juror

• improving the use of jury directions

• improving the use of expert evidence.^[6]

20.9 We are not recommending any change to the role or nature of the jury. There was also relatively little support for improving jury education about sexual violence before jurors sat on trials.^[7] This chapter briefly addresses not changing the role or nature of the jury below. The rest of the chapter focuses on jury directions and expert evidence.

The role or nature of the jury should not change

20.10 Victoria introduced judge-alone trials for six months in 2020, due to coronavirus (COVID-19) restrictions. But these were not used often.^[8]

20.11 In our issues paper, we suggested that trials by judges alone could avoid the concern that jurors hold misconceptions about sexual violence because of their experience, especially if judges have expertise in hearing sexual offence cases. There might be other benefits. For example, a complainant may also find a trial by a judge less frightening.

20.12 Judge-alone trials have been considered elsewhere. The New Zealand Law Commission considered alternatives to juries (such as professional jurors) in a model for a specialist court. However, it did not recommend shifting away from jury trials.^[9] The New Zealand Government is looking to study this further.^[10] A recent review in Scotland also recognised there may be merit in judge-alone trials but thought this needed further study.^[11]

20.13 Most of the submissions to this inquiry opposed changing the role or nature of the jury system.^[12] They told us that:

• Judges had their own beliefs and understandings that may include misconceptions.^[13]

• Juries play an important role in representing the community within the justice system – it would send the wrong signal to remove their role in these cases.^[14]

• Research indicates that jurors take their role seriously and that a properly instructed and supported jury makes better decisions than a single judge.^[15]

• there is no evidence that judge-alone trials result in better experiences for complainants or fewer acquittals and there is not enough evidence about their use in Victoria.^[16]

20.14 Some people supported the use of professional jurors as a way to address misconceptions and the complexity of sexual offence trials.^[17] The Criminal Bar Association strongly opposed their use because these jurors could be biased in favour of complainants, which would ‘undermine the fundamental importance of having an impartial and representative jury’.^[18]

20.15 Some features of Victoria’s criminal justice system, such as the jury system, serve fundamental purposes. Changes require caution and strong evidence that they will achieve their aims (see Chapter 19). We are persuaded that it is not clear that replacing the jury, either with a judge or with professional jurors, would deal with juror misconceptions. There are serious risks that would require further study, such as the impacts of this change on a fair trial. We see juries as an important feature of the criminal justice system. They represent the community and contribute to public trust in the system. At this stage, the case for a major change has not been made.

Jury directions could be strengthened to counter misconceptions about sexual violence

What are jury directions?

20.16 In a trial, the judge gives directions to a jury to help them understand the law before they reach a verdict. Victoria has made many recent reforms to jury directions.^[19]

20.17 Jury directions are found in the Jury Directions Act 2015 (Vic). The Victorian Criminal Charge Book provides further guidance.^[20] Judges may express jury directions in their own way.^[21]

20.18 In trials for sexual offences, one aim of jury directions is to counter the misconceptions that jurors might hold.^[22] Jurors may make decisions, or be encouraged by lawyers to make decisions, based on these misconceptions.^[23] A recent transcript analysis of rape trials in the County Court of Victoria (see Chapter 1 for details) found cases where these misconceptions were called on by the prosecution and defence.^[24]

20.19 The jury directions for sexual offences, which are based on research,^[25] cover:

• consent

• why people might not report or ‘delay’ reporting

• the effects of trauma and memory on the evidence given by people who have experienced sexual offending (see Table 20).^[26]

20.20 The Act also prohibits, or requires a judge to correct, specific statements or suggestions made by counsel or in jury questions. For example, statements or suggestions that a complainant is ‘less credible’ or ‘require[s] more careful scrutiny’ because they did not report the incident earlier.^[27]

20.21 We note the Royal Commission into Institutional Responses to Child Sexual Abuse recommended each state and territory should develop jury directions about children and the impact of child sexual abuse. The Victorian Government accepted this recommendation.^[28]

Table 20: Jury directions about sexual violence

Jury directions can counter misconceptions

20.22 There is evidence that jury directions have some effect on the use of misconceptions, but it is unclear how much.^[36] For example, jurors may settle on a story of what happened early in the trial, based on misconceptions.^[37] Jury directions can restore a complainant’s credibility ‘from a debit balance’ because of misconceptions ‘back to a … neutral balance.’^[38] Jury directions may correct some misconceptions more effectively than others.^[39]

20.23 Researchers face many challenges in this work. It is hard to identify the effect of attitudes and jury directions on a verdict because there are many other factors involved, such as the facts, the parties and what was discussed. As jurors in trials cannot be interviewed for secrecy reasons, studies must rely on mock jurors.^[40]

20.24 There are gaps in what we know about jury directions. For example, we need more research on:

• the extent to which jurors understand the language used in jury directions^[41]

• whether the structure of setting out what is wrong and then correcting it may be counterproductive, and even reinforce the misconceptions^[42]

• how misconceptions are used and circulated in trials and discussions by jurors^[43]

• whether jury directions are more effective than other ways of correcting misconceptions, such as expert evidence—there are mixed views on whether jury directions are as effective as expert evidence (discussed later).^[44]

20.25 The timing of jury directions may also be important. It can help to give jury directions earlier in the trial and repeat them during the trial.^[45]

20.26 More research on jury directions and how to make them effective is needed. While we think legislation should allow these directions to be given, it is important to evaluate them (discussed below).

More jury directions are needed

20.27 The County Court of Victoria, Victoria Police and others submitted there was a need for more jury directions concerning sexual violence.^[46] Some referred to a widely accepted resource on challenging misconceptions by the Australian Institute of Family Studies and Victoria Police: Challenging Misconceptions about Sexual Offending: Creating an Evidence‑based Resource for Police and Legal Practitioners.^[47]

20.28 The New South Wales Law Reform Commission (NSWLRC) also recently made recommendations for jury directions (see box).

20.29 A victim survivor told us, in relation to potential jury directions to correct misconceptions about flirtation and clothing:

20.30 The Criminal Bar Association stated that there was no need for further reform.^[51] Victoria Legal Aid said that certain jury directions may not be needed if forensic medical evidence could be provided instead.^[52]

20.31 While we recognise there has already been significant reform, we agree that there is value in extending the jury directions on sexual violence. The directions available do not cover all the misconceptions that play out in sexual offence trials. We later discuss how the transcript analysis revealed lines of questioning that ‘inferred’ consent to later sexual activity from things such as flirting and the complainant’s clothing.^[53]

20.32 We have identified below the topics that should be further addressed in jury directions, based on what we heard in this inquiry as well as the NSWLRC recommendations and overseas practice. Jury directions on these topics should be introduced under the Jury Directions Act 2015 (Vic).

Jury directions should cover the diverse contexts of, and responses to, sexual violence

20.33 We endorse and recommend the NSWLRC recommendations (see box) to use jury directions to counter misconceptions related to:

• the presence or absence of emotion or distress when a person reports or gives evidence

• the relevance of a person’s appearance (including their clothing), their use of drugs and alcohol, and their presence at a location (for example, a nightclub).^[54]

20.34 In addition, we recommend a new direction to address the misconception that perceived flirtatious or sexual behaviour (such as holding hands or kissing) implies consent to later sexual activity.

20.35 In New Zealand, the Sexual Violence Legislation Bill seeks to allow jury directions to address misconceptions about the complainant ‘dressing provocatively, acting flirtatiously, or drinking alcohol or taking drugs’.^[55]

20.36 Dr Bianca Fileborn and colleagues submitted:

an accused’s subjective interpretation of the survivors’ ‘everyday’ behaviour (such as clothing, tone of voice, being ‘friendly’ …) is used to establish that the accused held a ‘reasonable’ belief in consent. This is at odds with a communicative model, under which consent is actively and continually conveyed by all parties involved in a sexual encounter.^[56]

20.37 Rape & Sexual Assault Research & Advocacy submitted an example from a case where:

By his own evidence, the defendant’s belief in consent was entirely tied to the complainant’s alleged ‘invitation’ to ‘kneel down’ next to her, and her ‘flirting,’ which he described as ‘just talking’ and rubbing his leg.^[57]

20.38 The transcript analysis highlighted examples of questions related to these misconceptions. An example of questions related to flirtation is provided in the box below.

20.39 The transcript analysis revealed that the complainant’s clothing is not highlighted in ‘explicit or outrageous’ ways to shame women about what they were wearing at the time of the assault. But it can still be brought up in sexual offence trials to suggest implied consent to sexual activity.^[59] Examples are provided below in the next box.

20.40 We also endorse and recommend the NSWLRC proposed direction that ‘non-consensual sexual activity can occur in many different circumstances and between different kinds of people’.^[61] The comparable Victorian direction states that people who do not consent to a sexual act with a particular person on one occasion may have had consensual sexual activity with that person or another person.^[62] This would take jury directions on the meaning of consent further by providing more specific examples of relationships and contexts.

20.41 The NSWLRC jury direction specifies that this direction should include people who know, are married to, or are in a relationship with one another. This would address common misconceptions about intimate partner and family violence.^[63]

20.42 Based on feedback we received in consultations and submissions, we recommend extending this jury direction to two other commonly misunderstood contexts raised in this inquiry:

• The sex industry. The direction should address the relationship between a consumer of sexual content or services and the worker providing the content or services.^[64]

• LGBTIQA+ people. The direction should address relationships between people of the same or different sexual orientations or gender identities.^[65]

20.43 Finally, we recommend a jury direction to make it clear that people who have experienced sexual violence may continue a relationship or communication after the sexual violence. Maintaining a relationship with the person who has perpetrated the sexual violence is an example of ‘counterintuitive behaviour’.^[66] This jury direction would aim to counter juror beliefs that if a complainant maintained a relationship or communication with the accused then the alleged sexual violence must not have occurred.

Jury directions in other contexts could be explored in the future

20.44 Victoria already has a jury direction regarding the lack of physical injury.^[67] However, the Victorian Institute of Forensic Medicine (VIFM) also proposed the need for a jury direction to address the absence of genital injury being identified by a forensic medical examination of a person who had experienced sexual assault. They said there was a risk that, without a direction, jurors may place too much weight on the absence of injury, even though genital injury is not common in sexual assault and sexual assault can occur without genital injury.^[68]

20.45 The VIFM also noted that its research had indicated that people were experiencing sexual violence at the first meeting set up through a dating app.^[69] There may be value in countering a belief that the use of dating apps did not of itself imply consent to sexual activity in person.

20.46 Victoria has jury directions to counter misconceptions about family violence—for example, that people may not report or seek help for family violence. These jury directions apply only if self-defence or duress are in issue.^[70] The County Court of Victoria suggested that removing this requirement would help address the misconception about complainants staying with an abusive partner.^[71] We note that our recommendation on counterintuitive behaviours should achieve this aim as well.

20.47 In our issues paper, we asked if there should be a jury direction that a doubt based on an established misconception cannot be a ‘reasonable doubt’.^[72] The County Court of Victoria and Criminal Bar Association cautioned against such a direction.^[73]

20.48 These areas could be explored as subjects for jury directions in the future. But given the limited feedback we received, and the concerns expressed, we have not recommended they should be addressed in a jury direction.

Jury directions should be given early in the trial

20.49 In our issues paper we asked if the timing or frequency of jury directions could be improved.^[74] Jury directions are usually given near the end of a trial during the judge’s charge to the jury. This is in line with the request procedure in the Jury Directions Act which requires parties to request directions to be given after the close of all evidence.^[75]

20.50 Some directions, on the other hand, can or must be given early in the trial (or ‘mid-trial’). These include jury directions related to differences in the complainant’s account and delay in reporting.^[76] The transcript analysis revealed that the most common mid-trial direction was related to delay in reporting.^[77]

20.51 Professor Jane Goodman-Delahunty explained that jurors start deliberating early and throughout the trial: ‘If you only give them the rules of the game right at the end, it’s difficult to retrospectively undo the process of the decision.’^[78]

20.52 The County Court of Victoria said that judges were giving jury directions throughout the trial more often. It told us:

There are different views about the advantages and disadvantages of the timing of directions: if a direction is given before the evidence is led, it is in a bit of a vacuum. If you give it immediately afterwards, it has some context, but it’s possible that the jury has already formed a view as a result of hearing the evidence.^[79]

20.53 The NSWLRC recently highlighted the value of earlier jury directions, as is also the practice in England and Wales.^[80] The NSWLRC recommended that judges should be able to repeat directions at any time in the trial, such as when summing up.^[81]

20.54 We agree with research that suggests that hearing a jury direction early in the trial would mean jurors have an informed position in their minds before they hear the complainant’s evidence and before they form any opinions based on misconceptions.^[82]

20.55 We recommend that jury directions should be given before or during the evidence, and that judges should be able to repeat them at any time in the trial. This can be done if counsel requests, or if the judge considers that there is evidence in the trial that requires the direction to be given. A similar model to the timing of the current direction on delay or lack of reporting could be adopted.

20.56 This new procedure should apply both to existing and the proposed new directions for addressing misconceptions.

The use of expert evidence could improve

How is expert evidence used now?

20.57 In Victoria, experts can give evidence in sexual offence trials. They can, for example, give their expert opinion about the impact of child sexual abuse on the development and behaviour of children.^[83] This use of expert evidence was recommended by the Royal Commission into Institutional Responses to Child Sexual Abuse.^[84]

20.58 The prosecution usually decides if experts are needed in each case. We heard in this inquiry that expert evidence could be used more often. Expert evidence could be used to counter misconceptions. It could reduce the risk of jurors using their own biases to reach conclusions that are not supported by the evidence.^[85]

20.59 Researchers who undertook the transcript analysis stated that the cases they analysed rarely used expert evidence. They said that because of:

the frequency with which rape myths were engaged, and the prevalence of assertions and implications that the complainant had not behaved in the manner ‘expected’ of rape victims, consideration should be given to more active use of this form of expert evidence.^[86]

20.60 Expert evidence may address the same topics as jury directions, as well as:

• how memory works (including when and how people repress or recover memories)

• behaviours that may seem counterintuitive, such as a victim survivor maintaining a relationship with the accused

• the power dynamics and characteristics of family violence.^[87]

20.61 Research suggests that expert evidence can be an effective alternative to jury directions. It can reduce juror misconceptions about sexual violence, especially when carefully prepared and timed.^[88]

20.62 Expert evidence has some advantages over jury directions. It can be called when there is a topic that does not have a jury direction, and it can add context and detail beyond a jury direction. It can adapt to emerging research more quickly than jury directions, which require legislation. Leverick notes that:

expert testimony might be more memorable as the expert will only be testifying about a single issue and jurors will be less likely to switch off and miss important information.^[89]

20.63 However, expert evidence may not be effective where, for example, the evidence does not relate closely to the facts of the case; is given too late; or where the expert is not well prepared to appear in court.^[90]

20.64 Expert evidence about sexual offending is commonly used in New Zealand, and is given by medical practitioners, clinical psychologists, academics and scientists.^[91]

20.65 Judges on New Zealand’s pilot sexual violence court (see Chapter 18) told us that expert evidence on counterintuitive behaviour was:

enormously valuable, and counsel accept that. There’s rarely an arm wrestle over counter-intuitive evidence coming in – often now it will be admitted in agreed fact form and becomes part of the landscape of the trial.^[92]

People supported increasing the use of expert evidence

20.66 Many stakeholders supported greater use of expert evidence in sexual offence trials than is currently the case.^[93] The County Court of Victoria told us:

Expert witnesses in criminal proceedings assist in addressing misconceptions about sexual offending. More regular use of expert witnesses could help address cultural change. The use of more expert witnesses in sexual offence matters could also inform the advice that defence counsel provides to an accused, which could lead to more matters resolving.^[94]

20.67 The County Court of Victoria suggested a panel of experts available to both the prosecution and defence:

an expert panel is able to be more quickly and more flexibly applied to sexual offence proceedings [than jury directions]. The amendments or creation of jury directions can be a lengthy process.^[95]

20.68 Victoria Police also supported using expert evidence more often:

a jury may hear expert evidence and may accept or reject it. This is appropriate in increasing jury awareness and understanding of the nature and effects of sexual offending.^[96]

20.69 A victim survivor of institutional child sexual abuse in the 1970s explained that expert evidence could have supplied historical context helping jurors to understand her situation. She explained that, in those days, girls were brought up to be ‘good little girls’ and not make trouble. Sex was never discussed, and gender roles were much more about girls taking care of boys and men. Present-day jurors might not have understood this.^[97]

20.70 Researchers who undertook the transcript analysis of cases involving intoxication found that medical or scientific expert evidence about alcohol or other drug consumption was rarely presented to juries. They stated that:

it would be preferable for the jury to receive better guidance on the relationship between [alcohol or other drugs] consumption and cognitive functions like consent formation, and the ways in which intoxication does (and does not) impact on memory and recall of events.^[98]

20.71 The Office of Public Prosecutions expressed concerns that using expert evidence more often could lead to more appeals, in cases where the expert evidence is found to be inadmissible.^[99]

20.72 Conflicts may also arise between the use of expert evidence and a jury direction.^[100] For example, a judge can direct the jury that there may be ‘good reasons’ why a person did not report, or delayed in reporting, a sexual offence, such as threats or being sworn to secrecy. But if the judge’s explanation falls within what could qualify as expert evidence, there could be grounds for an appeal^[101]

We recommend an expert panel on sexual violence

20.73 We agree that expert evidence should be used widely in sexual offence trials. Expert evidence complements jury directions, especially if a topic is not addressed in jury directions, and it can provide context and detail.

20.74 The best way to make using experts accessible is through a panel drawn from a pool of approved experts. This could be modelled on the intermediaries scheme (see Chapter 15).^[102] It is important that whoever maintains the panel is independent in order to maintain the neutrality of the courts. In Chapter 22 we recommend introducing a Commission for Sexual Safety. This Commission could work with the Department of Justice and Community Safety to establish and maintain such a panel. This is discussed more in that chapter.

20.75 Experts will need to be approved and reviewed from time to time to ensure the evidence is of high quality.^[103] We recommend that the expert panel should be available for sexual offence cases in the Magistrates’ Court of Victoria and the County Court of Victoria.

20.76 We also recommend that, as the County Court of Victoria suggested, the prosecution, defence and, if there are good reasons to do so, the judge should be able to call on the expert panel.^[104] There is a similar model in the Federal Court of Australia where, in some circumstances, an expert may be appointed as an independent adviser to the court.^[105] The judge should have the power to call independent expert evidence on a relevant issue, such as counterintuitive behaviour. This may be useful where a party (usually the prosecution) has not called expert evidence but it would assist jurors and ensure a fair trial.

20.77 Expert evidence should be given efficiently and flexibly, building on current practices.^[106] For example, it could be given through joint expert reports, or statements of differing expert opinions relied on by each party.^[107] If the experts agreed, their evidence could be given through ‘signed notices to admit evidence’ rather than in person.^[108]

20.78 As with jury directions, expert evidence may be more effective when introduced early in the trial. For example, in New Zealand an expert can give an opinion on counterintuitive behaviour even before the complainant has given evidence.^[109]

20.79 We still need more research and evaluation to better understand how effectively expert evidence counters misconceptions in the Victorian context, what could make it more effective and how it compares to jury directions.^[110] We discuss research below and evaluations of these recommendations in Chapter 6.

20.80 It is also important that people working in the criminal justice system know when and how to call expert evidence and are aware of the risks about using expert evidence. We discuss training on this in Chapter 18.

The tasks of jurors should be made easier

Integrated jury directions should be used more

20.81 Reforms in Australia and other countries have supported jurors to make decisions. Resources supplied to jurors include checklists, flowcharts, jury guides and plain English directions.^[111]

20.82 The most novel of these are integrated jury directions, also known as ‘fact-based directions’, ‘route to verdict’, ‘pinpoint instruction’ or ‘question trails’. They combine legal and factual issues into questions the jury must decide. They can be complemented by written aids and tools.^[112]

20.83 In its review of jury directions, the Victorian Department of Justice and Regulation (as it was then) provided an example of question trails:

For example, the element ‘the touching is sexual’ in the offence of sexual assault is easily converted into the jury question ‘Are you satisfied that the touching was sexual?’ or ‘Are you satisfied that when Albert touched Betty’s buttocks, that the touching was sexual?’^[113]

20.84 There is promising research suggesting the effectiveness of integrated directions.^[114] They can assist jurors by giving them a starting point for deliberations, focus decision making, and reduce the time taken to reach a decision.^[115] Their use was also supported in the Victorian Department of Justice and Regulation review of jury directions.^[116]

20.85 The law allows judges to give integrated jury directions.^[117] However, we heard that they were not used as often as they could be because judges were unfamiliar with them and some thought that they took up too much time.^[118]

20.86 In Victoria, judges mostly deliver jury directions orally, and each judge decides how to use any written aids. This approach has been described as ‘ad hoc’.^[119] As Greg Byrne PSM explains:

A significant amount of responsibility for ensuring that jury directions effectively guide jurors has been placed in the hands of the trial judge: it is the trial judge’s duty to tailor jury directions to the specific circumstances of each case.^[120]

20.87 In New Zealand integrated directions are standard practice and judges have become good at delivering these directions. Its courts have produced supporting materials, including 140 model question trails.^[121]

20.88 The Juries Commissioner and other jury experts supported integrated jury directions being more widely used.^[122] We agree that such directions should be used more often, and recommend that the Judicial College of Victoria, in consultation with the County Court of Victoria, should develop supporting material along the New Zealand model, and training in its use.

Jurors should have guidance on ‘beyond reasonable doubt’

Jurors find it hard to understand ‘beyond reasonable doubt’

20.89 The standard of proof is one of the most important aspects of the criminal trial. To convict someone, jurors must find that the prosecution has proved its case ‘beyond a reasonable doubt’.

20.90 The High Court of Australia has decided that the meaning of ‘beyond reasonable doubt’ is ‘understood well enough by the average [person] in the community’.^[123] The Victorian Criminal Charge Book instructs that it is an error for a judge to ‘intrude upon the jury’s function by attempting to define it, unless the jury seeks further assistance’.^[124]

20.91 If the judge is asked, the law states that the judge can give a jury direction to explain this by:

• referring to the presumption of innocence and the prosecution’s obligation to prove the accused is guilty

• indicating that it is not enough for the prosecution to persuade the jury that the accused is probably guilty or very likely to be guilty

• indicating that it is almost impossible to prove anything with absolute certainty when reconstructing past events and the prosecution does not have to do so

• indicating that the jury cannot be satisfied that the accused is guilty if the jury has a reasonable doubt about whether the accused is guilty, or

• indicating that a reasonable doubt is not an imaginary or fanciful doubt or an unrealistic possibility.^[125]

20.92 The Victorian Department of Justice and Regulation took this approach in its review of jury directions.^[126] It considered that requiring the judge to make a direction may cause problems where there was no issue about the meaning of ‘beyond reasonable doubt’, and that integrated jury directions would be more helpful in addressing this concern.^[127]

20.93 Jurors can find it hard to understand what ‘beyond reasonable doubt’ means. While juries can ask the judge to explain what this means, they may be reluctant to do so.^[128] Similar concerns prompted us to recommend in our 2020 inquiry on contempt of court that there should be more guidance materials to encourage juries to ask questions earlier and more often.^[129]

20.94 For example, some studies have found that, when asked to explain what this standard means in numbers, jurors range widely in their understanding of what is needed. One study found that jurors thought the standard varied from needing to be 50 per cent sure to 99 per cent sure, with an average of 90 per cent.^[130] Their understanding of the standard of proof may also depend on how much they understand jury directions and the type of offence and sentence, as well as their language and communication skills.^[131]

20.95 The High Court of Australia has recently acknowledged that today, ‘views might reasonably differ’ on how well understood the term ‘beyond reasonable doubt’ is. As it notes, juries do ‘with relative frequency’ ask judges to explain its meaning, and experience overseas shows that ‘more is required by way of explication’.^[132]

20.96 How jurors understand ‘beyond reasonable doubt’ is important because it is a critical step to deciding if the accused is guilty or not guilty. If they believe that there should be no doubt or have different interpretations of how much doubt is reasonable, this raises questions about the fairness of verdicts. If jurors differ on the standard, this can also lead jurors to disagree and ‘in the most extreme case, to a hung jury’.^[133]

Judges should always direct juries on the meaning of ‘beyond reasonable doubt’

20.97 Jury experts told us the standard of proof should be explained clearly.^[134] Our recommendation in this chapter for using integrated jury directions will help jurors apply the standard more appropriately.

20.98 We also see value in using jury directions to improve jurors’ understanding of the meaning of ‘beyond reasonable doubt’. A study in New South Wales using mock jurors found that directions did encourage them to lower their stringent standards. However, each person still differed on where they set the standard, and some people still held on to their high standards.^[135]

20.99 Understanding the standard of proof is a key part of a criminal trial. While these concerns apply to all criminal trials, this factor may have a greater effect in sexual offence cases. As the County Court of Victoria told us, the standard of ‘beyond reasonable doubt’ ‘is a high bar for cases that are more likely to involve “word on word”^[136] evidence’ such as sexual offences.^[137]

20.100 The climate has shifted since Victorian jury directions were last reviewed. There seems to be a greater acceptance that such a direction would be useful. As the Victorian Court of Appeal has stated:

In due course, consideration should be given to removing the precondition to the power of explanation in the Jury Directions Act. It is not clear to us why, as a matter of policy, the power of a judge to assist a jury in this respect should depend for its exercise upon the jury first having asked a question.^[138]

20.101 We agree with this view. Some jurors may not realise that they are interpreting the standard too strictly or too loosely, and so will not think to ask. Others might be reluctant to ask. Given how crucial the question is to verdicts, we do not think that whether the direction is given should depend on whether the jurors happen to ask for it. Consistency could lead to informed and fairer jury decisions.

20.102 We are not convinced that explaining the meaning of ‘beyond reasonable doubt’ is likely to confuse jurors. However, it makes sense for this area to be tested and researched further (discussed below).

20.103 Our terms of reference limit our review to trials of sexual offences. As noted above, the problem of ‘beyond reasonable doubt’ is likely to be more serious in these cases, but further research would be useful in considering whether a requirement to explain the meaning of ‘beyond reasonable doubt’ should apply to other criminal trials as well.

Jury reforms need to be implemented well and evaluated

20.104 People working in the criminal justice system reported that jury reforms to date have been successful. For example, they have made jury directions simpler to understand, improved juror attitudes and reduced appeals based on misdirection.^[139]

20.105 While there have been positive advances, we heard that jury directions may continue to be difficult for jurors to understand because of the concepts or the language used.^[140] We heard there were opportunities to modernise the language of jury directions to remove any actual or perceived stigma. For example, a judge of the County Court of Victoria told us the word ‘delay’ is ‘pejorative’ and the phrase ‘passage of time’ could be used instead.^[141]

20.106 As explained in this chapter, ongoing research is also needed to better understand:

• how jurors approach their task and understand all the evidence

• how they are affected by misconceptions about sexual violence

• how effective jury directions and expert evidence are, and when to use one or the other.

• how to improve juror understanding of ‘beyond reasonable doubt’

• the effectiveness of integrated jury directions.^[142]

20.107 Given how important juries are to sexual offence trials, it is critical that reform work in this area is done well and we continue to build our understanding of ‘what works’ for jurors.

20.108 Greg Byrne PSM pointed to the need for regular review of jury directions, including as science and research advanced.^[143] Previously, the Jury Directions Advisory Group (JDAG) developed jury directions by bringing together representatives of the justice system. But this body is not permanent.^[144] We heard that a similarly collaborative and multi-disciplinary model for implementation and evaluation would be beneficial for improving the jury system.^[145]

20.109 Greg Byrne PSM submitted a proposal for an ongoing and permanent advisory body for juries, set up as an independent statutory agency. This would be a collaborative and multi-disciplinary body, and include judges and lawyers, academics with expertise in jury research, former jurors and the Juries Commissioner.^[146]

20.110 The functions of such a body could include:

• developing and implementing evidence-informed ways to educate jurors and dispel misconceptions, including through jury directions and expert evidence

• developing and implementing evidence-informed strategies and materials to improve the understanding of jurors

• researching and evaluating these measures

• advising the government, judiciary, courts, legal profession and other bodies on jury directions and other functions of the jury

• promoting understanding of juries through public information and education.^[147]

20.111 We see the value of a body like this to achieving the best jury system possible for sexual offence trials. The justice system relies on a jury that is able to understand the evidence and is properly equipped to make decisions that support a fair trial. Evidence-informed reforms are critical so that jurors are effectively assisted with their important task.

20.112 While a permanent jury advisory body is a sensible suggestion for implementation and evaluation, it extends beyond the terms of reference for this inquiry. Recommending such a body for sexual offence trials would be overly narrow since the proposal could benefit all jury trials. However, the Victorian Government should consider the proposal as a potential way of implementing these reforms.

20.113 To ensure jury trials for sexual offences become more evidence-informed, we recommend that the Victorian Government should commission ongoing research on improving juror understanding, countering misconceptions and supporting the jury’s task in sexual offence trials. The research should assess the effectiveness of jury directions, expert evidence and other measures that aim to support the jury’s task in deciding if the accused is guilty or not guilty. It should find ways to improve these measures.

20.114 In Chapter 6, we recommend that the impact of reforms coming out of this report should be evaluated. This should include any reforms relating to juries.

1. A magistrate decides sexual offence cases in the Magistrates’ Court of Victoria.

   ↑

2. See, eg, James Chalmers, Fiona Leverick and Vanessa E Munro, ‘The Provenance of What Is Proven: Exploring (Mock) Jury Deliberation in Scottish Rape Trials’ (Scottish Jury Research Working Paper No 2, 2019) <https://www.gla.ac.uk/media/Media_704446_smxx.pdf>; Fiona Leverick, ‘What Do We Know about Rape Myths and Juror Decision Making?’ (2020) 24(3) The International Journal of Evidence & Proof 255; Louise Ellison and Vanessa E Munro, ‘Reacting to Rape: Exploring Mock Jurors’ Assessments of Complainant Credibility’ (2009) 49(2) The British Journal of Criminology 202.

   ↑

3. Submission 42 (Greg Byrne PSM); Jane Goodman-Delahunty and Ryan Essex, ‘Judicial Directions and the Criminal Standard of Proof: Improving Juror Comprehension’ (2014) 24(2) Journal of Judicial Administration 75, 76–7.

   ↑

4. Greg Byrne and Chris Maxwell, ‘Putting Jurors First: Legislative Simplification of Jury Directions’ (2019) 43(3) Criminal Law Journal 180, 191; Criminal Law Review, Department of Justice and Regulation (Vic), Jury Directions: A Jury-Centric Approach (Report, March 2015) 124–5 <https://www.justice.vic.gov.au/jury-directions-reports>; Jane Goodman-Delahunty and Ryan Essex, ‘Judicial Directions and the Criminal Standard of Proof: Improving Juror Comprehension’ (2014) 24(2) Journal of Judicial Administration 75.

   ↑

5. See, eg, Kim Webster et al, Australians’ Attitudes to Violence against Women and Gender Equality: Findings from the 2017 National Community Attitudes towards Violence against Women Survey (NCAS) (Research Report No 03/2018, ANROWS Australia’s National Research Organisation for Women’s Safety, 2018) 8–9 <https://www.anrows.org.au/publication/australians-attitudes-to-violence-against-women-and-gender-equality-findings-from-the-2017-national-community-attitudes-towards-violence-against-women-survey/>; Violeta Politoff et al, Young Australians’ Attitudes to Violence against Women and Gender Equality: Findings from the 2017 National Community Attitudes towards Violence against Women Survey (NCAS) (Insights No 01/2019, ANROWS Australia’s National Research Organisation for Women’s Safety, 2019) 28 <http://ncas.anrows.org.au/wp-content/uploads/2019/05/2017NCAS-Youth-SubReport.pdf>; Fiona Leverick, ‘What Do We Know about Rape Myths and Juror Decision Making?’ (2020) 24(3) The International Journal of Evidence & Proof 255.

   ↑

6. Victorian Law Reform Commission, Sexual Offences: Key Issues in the Criminal Justice System (Issue Paper B, October 2020) [5]–[12], [18]–[24], Questions 1, 4; Victorian Law Reform Commission, Sexual Offences: The Trial Process (Issues Paper E, October 2020) [32]–[35], Question 4.

   ↑

7. Submissions 10 (Carolyn Worth AM and Mary Lancaster), 45 (Victims of Crime Commissioner); Consultation 6 (Dr Emma Henderson and Dr Kirsty Duncanson).

   ↑

8. Ten applications for judge-only trials in the County Court of Victoria related to sexual offence cases during this period (as at 2 December 2020): Data provided by the County Court of Victoria to the Victorian Law Reform Commission, 20 January 2021. See also Adam Cooper and David Estcourt, ‘Victoria to Hold First Judge-Only Trial, but Lawyers Favour Jury System’, The Age (online, 5 July 2020) <https://www.theage.com.au/national/victoria/victoria-to-hold-first-judge-only-trial-but-lawyers-favour-jury-system-20200705-p5594e.html>; COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic) s 32.

   ↑

9. Law Commission (New Zealand), The Justice Response to Victims of Sexual Violence: Criminal Trials and Alternative Processes (Report No 136, December 2015) [6.40]–[6.48] <https://www.lawcom.govt.nz/our-projects/alternative-models-prosecuting-and-trying-criminal-cases?id=1270>.

   ↑

10. Office of the Under-Secretary to the Minister for Justice (Domestic and Sexual Violence Issues) (NZ), Improving the Justice Response to Victims of Sexual Violence (Cabinet Paper, 2 July 2019) [87] <https://www.justice.govt.nz/assets/Documents/Publications/7236-Proactive-release-SV-response-final.pdf>.

    ↑

11. Lord Justice Clerk’s Review Group, Improving the Management of Sexual Offence Cases (Report, Scottish Courts and Tribunal Service, March 2021) [5.52] <https://www.scotcourts.gov.uk/docs/default-source/default-document-library/reports-and-data/Improving-the-management-of-Sexual-Offence-Cases.pdf?sfvrsn=6>.

    ↑

12. Submissions 7 (Dr Bianca Fileborn, Dr Rachel Loney-Howes, Dr Tully O’Neill and Sophie Hindes), 40 (Law Institute of Victoria), 47 (Criminal Bar Association), 59 (County Court of Victoria), 63 (Office of Public Prosecutions); Consultation 26 (Greg Byrne PSM, Legal Policy Consultant, Greg Byrne Law).

    ↑

13. Submissions 7 (Dr Bianca Fileborn, Dr Rachel Loney-Howes, Dr Tully O’Neill and Sophie Hindes), 45 (Victims of Crime Commissioner); Consultations 6 (Dr Emma Henderson and Dr Kirsty Duncanson); 26 (Greg Byrne PSM, Legal Policy Consultant, Greg Byrne Law).

    ↑

14. Submissions 41 (Office of the Public Advocate), 59 (County Court of Victoria); Consultations 4 (Judicial College of Victoria), 27 (Juries Commissioner).

    ↑

15. Submission 59 (County Court of Victoria); Consultations 4 (Judicial College of Victoria), 27 (Juries Commissioner). See also Fiona Leverick, ‘What Do We Know about Rape Myths and Juror Decision Making?’ (2020) 24(3) The International Journal of Evidence & Proof 255, 273–4.

    ↑

16. Submissions 7 (Dr Bianca Fileborn, Dr Rachel Loney-Howes, Dr Tully O’Neill and Sophie Hindes), 45 (Victims of Crime Commissioner).

    ↑

17. Submission 14 (Gatehouse Centre, Royal Children’s Hospital); Consultation 10 (Professor Jane Goodman-Delahunty). Dr Emma Henderson also expressed support: Consultation 6 (Dr Emma Henderson and Dr Kirsty Duncanson).

    ↑

18. Submission 47 (Criminal Bar Association). See also Submission 53 (Liberty Victoria).

    ↑

19. See, eg, Criminal Law Review, Department of Justice and Regulation (Vic), Jury Directions: A Jury-Centric Approach (Report, March 2015) <https://www.justice.vic.gov.au/jury-directions-reports>; Jury Directions and Other Acts Amendment Act 2017 (Vic).

    ↑

20. Judicial College Victoria, ‘3.1 Directions Under Jury Directions Act 2015’, Criminal Charge Book (Online Manual, 14 May 2021) <https://www.judicialcollege.vic.edu.au/eManuals/CCB/index.htm#46024.htm>.

    ↑

21. Jury Directions Act 2015 (Vic) s 6.

    ↑

22. Greg Byrne and Chris Maxwell, ‘Putting Jurors First: Legislative Simplification of Jury Directions’ (2019) 43 Criminal Law Journal 180, 194; Emma Henderson and Kirsty Duncanson, ‘A Little Judicial Direction: Can the Use of Jury Directions Challenge Traditional Consent Narratives in Rape Trials?’ (2016) 39(2) University of New South Wales Law Journal 750; John Willis and Marilyn McMahon, ‘Educating Juries or Telling Them What to Think? Credibility, Delay in Complaint, Judicial Directions and the Role of Juries’ (2017) 41(1) Criminal Law Journal 27.

    ↑

23. For example, asking the victim survivor why she did not resist or fight back in any way. See Judicial College (UK), Crown Court Compendium (Compendium Part I, December 2020) 20-3 <https://www.judiciary.uk/publications/crown-court-compendium-published/>; Sarah Zydervelt et al, ‘Lawyers’ Strategies for Cross-Examining Rape Complainants: Have We Moved beyond the 1950s?’ (2017) 57(3) The British Journal of Criminology 551, 3.

    ↑

24. Dr Julia Quilter and Luke McNamara, Qualitative Analysis of County Court of Victoria Rape Trial Transcripts (Report to the Victorian Law Reform Commission) (forthcoming).

    ↑

25. Chris Maxwell and Greg Byrne, ‘Making Trials Work for Juries: Pathways to Simplification’ [2020] (11) Criminal Law Review 1034, 1047.

    ↑

26. Jury Directions Act 2015 (Vic) pt 5.

    ↑

27. Ibid ss 7, 51(1)(c).

    ↑

28. Royal Commission into Institutional Responses to Child Sexual Abuse: Criminal Justice Report (Parts VII to X and Appendices, 2017) Recommendation 70; Victorian Government, ‘Victorian Government Response to the Royal Commission into Institutional Child Sexual Abuse’, VIC.GOV.AU (Web Page, 20 July 2021) <https://www.vic.gov.au/victorian-government-response-royal-commission-institutional-responses-child-sexual-abuse>.

    ↑

29. Jury Directions Act 2015 (Vic) s 7.

    ↑

30. Ibid s 33.

    ↑

31. Ibid s 51.

    ↑

32. Ibid ss 46–47.

    ↑

33. Ibid s 52.

    ↑

34. Ibid s 54D.

    ↑

35. Ibid s 44N.

    ↑

36. Fiona Leverick, ‘What Do We Know about Rape Myths and Juror Decision Making?’ (2020) 24(3) The International Journal of Evidence & Proof 255, 274; Jonathan Clough et al, ‘The Judge as Cartographer and Guide: The Role of Fact-Based Directions in Improving Juror Comprehension’ (2018) 42(5) Criminal Law Journal 278, 297.

    ↑

37. Fiona Leverick, ‘What Do We Know about Rape Myths and Juror Decision Making?’ (2020) 24(3) The International Journal of Evidence & Proof 255, 272–3.

    ↑

38. Suzanne Blackwell, Fred Seymour and Sarah Mandeno, Expert Evidence about Memory in New Zealand Sexual Violence Trials and Appellate Courts 2001 to 2020 (Report, New Zealand Law Foundation, June 2020) 31–2 <https://apo.org.au/node/306776>.

    ↑

39. Fiona Leverick, ‘What Do We Know about Rape Myths and Juror Decision Making?’ (2020) 24(3) The International Journal of Evidence & Proof 255, 272–3.

    ↑

40. James Chalmers, Fiona Leverick and Vanessa E Munro, ‘The Provenance of What Is Proven: Exploring (Mock) Jury Deliberation in Scottish Rape Trials’ (Scottish Jury Research Working Paper No 2, 2019) 1–2 <https://www.gla.ac.uk/media/Media_704446_smxx.pdf>.

    ↑

41. Jennifer Temkin, ‘“And Always Keep a-Hold of Nurse, for Fear of Finding Something Worse”: Challenging Rape Myths in the Courtroom’ (2010) 13(4) New Criminal Law Review 710, 721–4; Submission 42 (Greg Byrne PSM).

    ↑

42. Jennifer Temkin, ‘“And Always Keep a-Hold of Nurse, for Fear of Finding Something Worse”: Challenging Rape Myths in the Courtroom’ (2010) 13(4) New Criminal Law Review 710, 725–6.

    ↑

43. Louise Ellison and Vanessa E Munro, ‘Better the Devil You Know? “Real Rape” Stereotypes and the Relevance of a Previous Relationship in (Mock) Juror Deliberations’ (2013) 17(4) The International Journal of Evidence & Proof 255, 299; Louise Ellison and Vanessa E Munro, ‘A Stranger in the Bushes, or an Elephant in the Room? Critical Reflections Upon Received Rape Myth Wisdom in the Context of a Mock Jury Study’ (2010) 13(4) New Criminal Law Review: An International and Interdisciplinary Journal 781.

    ↑

44. Jane Goodman-Delahunty, Annie Cossins and Kate O’Brien, ‘A Comparison of Expert Evidence and Judicial Directions to Counter Misconceptions in Child Sexual Abuse Trials’ (2011) 44(2) Australian & New Zealand Journal of Criminology 196; Fiona Leverick, ‘What Do We Know about Rape Myths and Juror Decision Making?’ (2020) 24(3) The International Journal of Evidence & Proof 255, 270–3; Olivia Smith and Tina Skinner, ‘How Rape Myths Are Used and Challenged in Rape and Sexual Assault Trials’ (2017) 26(4) Social & Legal Studies 441, 460.

    ↑

45. Annie Cossins, ‘Expert Witness Evidence in Sexual Assault Trials: Questions, Answers and Law Reform in Australia and England’ (2013) 17(1) The International Journal of Evidence & Proof 74, 94–5; Emma Henderson and Kirsty Duncanson, ‘A Little Judicial Direction: Can the Use of Jury Directions Challenge Traditional Consent Narratives in Rape Trials?’ (2016) 39(2) University of New South Wales Law Journal 718, 727–31; Fiona Leverick, ‘What Do We Know about Rape Myths and Juror Decision Making?’ (2020) 24(3) The International Journal of Evidence & Proof 255, 272–3.

    ↑

46. Submissions 22 (knowmore legal service), 42 (Greg Byrne PSM), 59 (County Court of Victoria), 68 (Victoria Police); Consultation 41 (Individual views of the Honourable Justice Chris Maxwell AC and Judicial Registrar Tim Freeman).

    ↑

47. Australian Institute of Family Studies (Cth) and Victoria Police, Challenging Misconceptions about Sexual Offending: Creating an Evidence‑based Resource for Police and Legal Practitioners (Report, 2017) <https://www.police.vic.gov.au/sites/default/files/2019-01/For-Internet–Challenging-Misconceptions-Report.pdf>.

    ↑

48. New South Wales Law Reform Commission, Consent in Relation to Sexual Offences (Report No 148, September 2020) Recommendations 8.3, 8.6, 8.7 <https://www.lawreform.justice.nsw.gov.au/Documents/Publications/Reports/Report%20148.pdf>.

    ↑

49. Ibid Recommendations 8.4, 8.5. See also Jury Directions Act 2015 (Vic) s 46(3)(c)(ii), (d).

    ↑

50. Consultation 59 (Ashleigh Rae, Nicole Lee, Penny).

    ↑

51. Submission 47 (Criminal Bar Association).

    ↑

52. Consultation 49 (Victoria Legal Aid).

    ↑

53. Julia Quilter and Luke McNamara, Qualitative Analysis of County Court of Victoria Rape Trial Transcripts (Report to the Victorian Law Reform Commission) (forthcoming).

    ↑

54. There are similar directions in England and Wales: Judicial College (UK), Crown Court Compendium (Compendium Part I, December 2020) 20-8, Examples 7–8 <https://www.judiciary.uk/publications/crown-court-compendium-published/>.

    ↑

55. Sexual Violence Legislation Bill 2019 (NZ) cl 16.

    ↑

56. Submission 7 (Dr Bianca Fileborn, Dr Rachel Loney-Howes, Dr Tully O’Neill and Sophie Hindes).

    ↑

57. Submission 34 (Rape & Sexual Assault Research & Advocacy). See also Rachael Burgin and Asher Flynn, ‘Women’s Behavior as Implied Consent: Male “Reasonableness” in Australian Rape Law’ (2021) 21(3) Criminology & Criminal Justice 334.

    ↑

58. Julia Quilter and Luke McNamara, Qualitative Analysis of County Court of Victoria Rape Trial Transcripts (Report to the Victorian Law Reform Commission) (forthcoming).

    ↑

59. Ibid.

    ↑

60. Ibid.

    ↑

61. New South Wales Law Reform Commission, Consent in Relation to Sexual Offences (Report No 148, September 2020) Recommendation 8.3.

    ↑

62. Jury Directions Act 2015 (Vic) s 46(3)(e).

    ↑

63. New South Wales Law Reform Commission, Consent in Relation to Sexual Offences (Report No 148, September 2020) Recommendation 8.3. A similar recommendation was made in Law Commission (New Zealand), The Second Review of the Evidence Act 2006 (Report No 142, February 2019) [12.78] <https://www.lawcom.govt.nz/our-projects/second-review-evidence-act-2006>.

    ↑

64. Submission 50 (Project Respect); Consultations 33 (Rebecca, a member of the Victim Survivors’ Advisory Council); 45 (Sex Work Law Reform Victoria).

    ↑

65. Consultation 40 (Roundtable consultation with Transgender Victoria, Bisexual Alliance and Drummond Street Services). For a discussion of myths in this context: see, eg, Shaez Mortimer, Anastasia Powell and Larissa Sandy, ‘“Typical Scripts” and Their Silences: Exploring Myths about Sexual Violence and LGBTQ People from the Perspectives of Support Workers’ (2019) 31(3) Current Issues in Criminal Justice 333; Meredith GF Worthen, ‘Rape Myth Acceptance Among Lesbian, Gay, Bisexual, and Mostly Heterosexual College Students’ (2021) 36(1–2) Journal of Interpersonal Violence NP232 <https://pubmed.ncbi.nlm.nih.gov/29294932/>.

    ↑

66. Australian Institute of Family Studies (Cth) and Victoria Police, Challenging Misconceptions about Sexual Offending: Creating an Evidence‑based Resource for Police and Legal Practitioners (Report, 2017) 12 <https://www.police.vic.gov.au/sites/default/files/2019-01/For-Internet–Challenging-Misconceptions-Report.pdf>.

    ↑

67. Jury Directions Act 2015 (Vic) s 46(3)(c)(ii).

    ↑

68. Consultation 42 (Victorian Institute of Forensic Medicine.

    ↑

69. Submissions 61 (Victorian Institute of Forensic Medicine), 71 (Victorian Institute of Forensic Medicine and Victorian Forensic Paediatric Medical Service). See also Janine Rowse, Caroline Bolt and Sanjeev Gaya, ‘Swipe Right: The Emergence of Dating-App Facilitated Sexual Assault. A Descriptive Retrospective Audit of Forensic Examination Caseload in an Australian Metropolitan Service’ (2020) 16(1) Forensic Science, Medicine, and Pathology 71.

    ↑

70. Jury Directions Act 2015 (Vic) ss 58–60.

    ↑

71. Submission 59 (County Court of Victoria).

    ↑

72. Victorian Law Reform Commission, Sexual Offences: The Trial Process (Issues Paper E, October 2020) Question 4.

    ↑

73. Submissions 47 (Criminal Bar Association), 59 (County Court of Victoria).

    ↑

74. Victorian Law Reform Commission, Sexual Offences: The Trial Process (Issues Paper E, October 2020) Question 4.

    ↑

75. Jury Directions Act 2015 (Vic) ss 11–12.

    ↑

76. Ibid ss 52, 54D.

    ↑

77. Julia Quilter and Luke McNamara, Qualitative Analysis of County Court of Victoria Rape Trial Transcripts (Report to the Victorian Law Reform Commission) (forthcoming).

    ↑

78. Consultation 10 (Professor Jane Goodman-Delahunty).

    ↑

79. Submission 59 (County Court of Victoria).

    ↑

80. Judicial College (UK), Crown Court Compendium (Compendium Part I, December 2020) 1-17 <https://www.judiciary.uk/publications/crown-court-compendium-published/>. See also Law Commission (New Zealand), The Second Review of the Evidence Act 2006 (Report No 142, February 2019) [12.103] <https://www.lawcom.govt.nz/our-projects/second-review-evidence-act-2006>.

    ↑

81. New South Wales Law Reform Commission, Consent in Relation to Sexual Offences (Report No 148, September 2020) [8.79]–[8.84] Recommendation 8.8 <https://www.lawreform.justice.nsw.gov.au/Documents/Publications/Reports/Report%20148.pdf>.

    ↑

82. Fiona Leverick, ‘What Do We Know about Rape Myths and Juror Decision Making?’ (2020) 24(3) The International Journal of Evidence & Proof 255, 272–3. See also Jane Goodman‐Delahunty, Annie Cossins and Kate O’Brien, ‘Enhancing the Credibility of Complainants in Child Sexual Assault Trials: The Effect of Expert Evidence and Judicial Directions’ (2010) 28(6) Behavioral Sciences & the Law 769, 780. Cf Olivia Smith and Tina Skinner, ‘How Rape Myths Are Used and Challenged in Rape and Sexual Assault Trials’ (2017) 26(4) Social & Legal Studies 441, 460.

    ↑

83. Criminal Procedure Act 2009 (Vic) s 388; Evidence Act 2008 (Vic) ss 79, 108C.

    ↑

84. Royal Commission into Institutional Responses to Child Sexual Abuse: Criminal Justice Report (Parts VII to X and Appendices, 2017) Recommendation 69.

    ↑

85. See, eg, Jacqueline Horan and Jane Goodman-Delahunty, ‘Expert Evidence to Counteract Jury Misconceptions about Consent in Sexual Assault Cases: Failures and Lessons Learned’ (2020) 43(2) UNSW Law Journal 707, 711. This was supported by a judge of the County Court: Consultation 24 (County Court of Victoria).

    ↑

86. Julia Quilter and Luke McNamara, Qualitative Analysis of County Court of Victoria Rape Trial Transcripts (Report to the Victorian Law Reform Commission) (forthcoming).

    ↑

87. Consultations 10 (Professor Jane Goodman-Delahunty), 25 (CASA senior counsellor/advocates), 37 (New Zealand District Court judges with experience on the sexual violence court pilot). See also Suzanne Blackwell, Fred Seymour and Sarah Mandeno, Expert Evidence about Memory in New Zealand Sexual Violence Trials and Appellate Courts 2001 to 2020 (Report, New Zealand Law Foundation, June 2020) <https://apo.org.au/node/306776>; Family Violence Protection Act 2008 (Vic) s 73.

    ↑

88. Annie Cossins, ‘Expert Witness Evidence in Sexual Assault Trials: Questions, Answers and Law Reform in Australia and England’ (2013) 17(1) The International Journal of Evidence & Proof 74; Jane Goodman‐Delahunty, Annie Cossins and Kate O’Brien, ‘Enhancing the Credibility of Complainants in Child Sexual Assault Trials: The Effect of Expert Evidence and Judicial Directions’ (2010) 28(6) Behavioral Sciences & the Law 769; Jacqueline Horan and Jane Goodman-Delahunty, ‘Expert Evidence to Counteract Jury Misconceptions about Consent in Sexual Assault Cases: Failures and Lessons Learned’ (2020) 43(2) UNSW Law Journal 707, 711; Fiona Leverick, ‘What Do We Know about Rape Myths and Juror Decision Making?’ (2020) 24(3) The International Journal of Evidence & Proof 255, 270–4.

    ↑

89. Fiona Leverick, ‘What Do We Know about Rape Myths and Juror Decision Making?’ (2020) 24(3) The International Journal of Evidence & Proof 255, 273.

    ↑

90. Jacqueline Horan and Jane Goodman-Delahunty, ‘Expert Evidence to Counteract Jury Misconceptions about Consent in Sexual Assault Cases: Failures and Lessons Learned’ (2020) 43(2) UNSW Law Journal 707, 716, 733–5.

    ↑

91. Suzanne Blackwell, Fred Seymour and Sarah Mandeno, Expert Evidence about Memory in New Zealand Sexual Violence Trials and Appellate Courts 2001 to 2020 (Report, New Zealand Law Foundation, June 2020) 28 <https://apo.org.au/node/306776>.

    ↑

92. Consultation 37 (New Zealand District Court judges with experience on the sexual violence court pilot).

    ↑

93. Submission 68 (Victoria Police). This was also supported by a judge of the County Court: Consultations 24 (County Court of Victoria), 25 (CASA senior counsellor/advocates).

    ↑

94. Submission 59 (County Court of Victoria).

    ↑

95. Ibid.

    ↑

96. Submission 68 (Victoria Police).

    ↑

97. Consultation 69 (Deborah, a victim survivor of sexual assault).

    ↑

98. Julia Quilter and Luke McNamara, Qualitative Analysis of County Court of Victoria Rape Trial Transcripts (Report to the Victorian Law Reform Commission) (forthcoming).

    ↑

99. Submission 63 (Office of Public Prosecutions): see, eg, Jacobs (a Pseudonym) v The Queen [2019] VSCA 285.

    ↑

100. Submissions 63 (Office of Public Prosecutions), 66 (Supreme Court of Victoria).

     ↑

101. See, eg, Jacobs (a Pseudonym) v The Queen [2019] VSCA 285; Ford (a pseudonym) v The Queen [2020] VSCA 162, (2020) 283 A Crim R 17, [67].

     ↑

102. Criminal Procedure Act 2009 (Vic) s 389H.

     ↑

103. Consultation 95 (Victoria Legal Aid (No 2)).

     ↑

104. Submission 59 (County Court of Victoria).

     ↑

105. Federal Court of Australia, Practice Note GPN-EXPT: Expert Evidence, 25 October 2016, [2.1] <https://www.fedcourt.gov.au/law-and-practice/practice-documents/practice-notes/gpn-expt>.

     ↑

106. For example, where different parties call experts for the same issue, evidence may be given by the experts one after the other or with all of the experts present in court at the same time: County Court of Victoria, Practice Note PNCR 1–2014: Expert Evidence in Criminal Trials, 24 June 2014, [11.1] <https://www.countycourt.vic.gov.au/files/documents/2018-08/practice-note-expert-evidence-criminal-trialsfinal-june-20140.pdf>.

     ↑

107. See, eg, Law Commission (New Zealand), The Justice Response to Victims of Sexual Violence: Criminal Trials and Alternative Processes (Report No 136, December 2015) Recommendation 29 <https://www.lawcom.govt.nz/our-projects/alternative-models-prosecuting-and-trying-criminal-cases?id=1270>.

     ↑

108. Submission 59 (County Court of Victoria).

     ↑

109. Consultation 37 (New Zealand District Court judges with experience on the sexual violence court pilot).

     ↑

110. Fiona Leverick, ‘What Do We Know about Rape Myths and Juror Decision Making?’ (2020) 24(3) The International Journal of Evidence & Proof 255, 274.

     ↑

111. Jonathan Clough et al, ‘The Judge as Cartographer and Guide: The Role of Fact-Based Directions in Improving Juror Comprehension’ (2018) 42(5) Criminal Law Journal 278, 279; Benjamin Spivak et al, ‘The Impact of Fact‐based Instructions on Juror Application of the Law: Results from a Trans‐Tasman Field Study’ (2020) 101(1) Social Science Quarterly 346, 349.

     ↑

112. Criminal Law Review, Department of Justice and Regulation (Vic), Jury Directions: A Jury-Centric Approach (Report, March 2015) 135 <https://www.justice.vic.gov.au/jury-directions-reports>; Benjamin Spivak, James RP Ogloff and Jonathan Clough, ‘Asking the Right Questions: Examining the Efficacy of Question Trails as a Method of Improving Lay Comprehension and Application of Legal Concepts’ (2019) 26(3) Psychiatry, Psychology & Law 441, 442–3.

     ↑

113. Criminal Law Review, Department of Justice and Regulation (Vic), Jury Directions: A Jury-Centric Approach (Report, March 2015) 84 <https://www.justice.vic.gov.au/jury-directions-reports>.

     ↑

114. Jonathan Clough et al, ‘The Judge as Cartographer and Guide: The Role of Fact-Based Directions in Improving Juror Comprehension’ (2018) 42(5) Criminal Law Journal 278, 295–6; Chris Maxwell and Greg Byrne, ‘Making Trials Work for Juries: Pathways to Simplification’ [2020] (11) Criminal Law Review 1034, 199; Benjamin Spivak et al, ‘The Impact of Fact‐based Instructions on Juror Application of the Law: Results from a Trans‐Tasman Field Study’ (2020) 101(1) Social Science Quarterly 346.

     ↑

115. Jonathan Clough et al, ‘The Judge as Cartographer and Guide: The Role of Fact-Based Directions in Improving Juror Comprehension’ (2018) 42(5) Criminal Law Journal 278, 295–6; Benjamin Spivak et al, ‘The Impact of Fact‐based Instructions on Juror Application of the Law: Results from a Trans‐Tasman Field Study’ (2020) 101(1) Social Science Quarterly 346; Benjamin Spivak, James RP Ogloff and Jonathan Clough, ‘Asking the Right Questions: Examining the Efficacy of Question Trails as a Method of Improving Lay Comprehension and Application of Legal Concepts’ (2019) 26(3) Psychiatry, Psychology & Law 441.

     ↑

116. See Criminal Law Review, Department of Justice and Regulation (Vic), Jury Directions: A New Approach (Report, January 2013) xvi <https://www.justice.vic.gov.au/jury-directions-reports>.

     ↑

117. Jury Directions Act 2015 (Vic) s 67.

     ↑

118. Submission 42 (Greg Byrne PSM). See also Jonathan Clough et al, The Jury Project 10 Years On—Practices of Australian and New Zealand Judges (Report, Australasian Institute of Judicial Administration, April 2019) 51 <https://research.monash.edu/en/publications/the-jury-project-10-years-on-practices-of-australian-and-new-zeal>; Benjamin Spivak, James RP Ogloff and Jonathan Clough, ‘Asking the Right Questions: Examining the Efficacy of Question Trails as a Method of Improving Lay Comprehension and Application of Legal Concepts’ (2019) 26(3) Psychiatry, Psychology & Law 441, 454.

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119. Jonathan Clough et al, The Jury Project 10 Years On—Practices of Australian and New Zealand Judges (Report, Australasian Institute of Judicial Administration, April 2019) 1 <https://research.monash.edu/en/publications/the-jury-project-10-years-on-practices-of-australian-and-new-zeal>.

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120. Submission 42 (Greg Byrne PSM).

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121. Jonathan Clough et al, ‘The Judge as Cartographer and Guide: The Role of Fact-Based Directions in Improving Juror Comprehension’ (2018) 42(5) Criminal Law Journal 278, 279; ‘Question Trails’, Courts of New Zealand (Web Page) <https://www.courtsofnz.govt.nz/for-lawyers/question-trails/>.

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122. Submission 42 (Greg Byrne PSM); Consultation 10 (Professor Jane Goodman-Delahunty).

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123. Dawson v The Queen (High Court of Australia, Dixon CJ, Taylor and Owen JJ, 23 November 1961), (1961) 106 CLR . See also Darkan v The Queen [2006] HCA 34, (2015) 227 CLR 373, [69].

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124. Judicial College Victoria, ‘1.7 Onus and Standard of Proof’, Criminal Charge Book (Online Manual, 21 July 2020) [55] <https://www.judicialcollege.vic.edu.au/eManuals/CCB/index.htm#1291.htm>.

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125. Jury Directions Act 2015 (Vic) s 64. The judge can adapt the explanation to respond to the question asked by the jury.

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126. Criminal Law Review, Department of Justice and Regulation (Vic), Jury Directions: A New Approach (Report, January 2013) [7.1] <https://www.justice.vic.gov.au/jury-directions-reports>.

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127. Ibid [7.5.1].

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128. Greg Byrne and Chris Maxwell, ‘Putting Jurors First: Legislative Simplification of Jury Directions’ (2019) 43(3) Criminal Law Journal 180, 192.

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129. Victorian Law Reform Commission, Contempt of Court (Report No 40, February 2020) Recommendation 73. We also recommended changing the law to make it clear that the jury foreperson could ask questions in writing on behalf of the jury: Recommendation 72.

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130. Jane Goodman-Delahunty and Ryan Essex, ‘Judicial Directions and the Criminal Standard of Proof: Improving Juror Comprehension’ (2014) 24(2) Journal of Judicial Administration 75, 79. See also Katrin Mueller-Johnson, Mandeep K Dhami and Samantha Lundrigan, ‘Effects of Judicial Instructions and Juror Characteristics on Interpretations of Beyond Reasonable Doubt’ (2018) 24(2) Psychology, Crime & Law 117; Lily Trimboli, ‘Juror Understanding of Judicial Instructions in Criminal Trials’ (2008) 119 Crime and Justice Bulletin 1.

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131. Lily Trimboli, ‘Juror Understanding of Judicial Instructions in Criminal Trials’ (2008) 119 Crime and Justice Bulletin 1, 4; Jane Goodman-Delahunty and Ryan Essex, ‘Judicial Directions and the Criminal Standard of Proof: Improving Juror Comprehension’ (2014) 24(2) Journal of Judicial Administration 75, 90.

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132. R v Dookheea [2017] HCA 36, (2017) 262 CLR 402, [27].

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133. Katrin Mueller-Johnson, Mandeep K Dhami and Samantha Lundrigan, ‘Effects of Judicial Instructions and Juror Characteristics on Interpretations of Beyond Reasonable Doubt’ (2018) 24(2) Psychology, Crime & Law 117, 118. See also Blake M McKimmie, Emma Antrobus and Chantelle Baguley, ‘Objective and Subjective Comprehension of Jury Instructions in Criminal Trials’ (2014) 17(2) New Criminal Law Review: An International and Interdisciplinary Journal 163.

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134. Consultations 10 (Professor Jane Goodman-Delahunty), 26 (Greg Byrne PSM, Legal Policy Consultant, Greg Byrne Law).

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135. Jane Goodman-Delahunty and Ryan Essex, ‘Judicial Directions and the Criminal Standard of Proof: Improving Juror Comprehension’ (2014) 24(2) Journal of Judicial Administration 75, 92.

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136. The phrase ‘word on word’ (or ‘she said/he said’) has been said to be ‘often inaccurate’ and a ‘loaded concept’: Julia Quilter and Luke McNamara, Qualitative Analysis of County Court of Victoria Rape Trial Transcripts (Report to the Victorian Law Reform Commission) (forthcoming).

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137. Submission 59 (County Court of Victoria).

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138. Dookheea v The Queen [2016] VSCA 67, [91].

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139. Submissions 42 (Greg Byrne PSM), 44 (Dr Patrick Tidmarsh and Dr Gemma Hamilton), 47 (Criminal Bar Association), 59 (County Court of Victoria), 66 (Supreme Court of Victoria). See also Greg Byrne and Chris Maxwell, ‘Putting Jurors First: Legislative Simplification of Jury Directions’ (2019) 43(3) Criminal Law Journal 180, 200; Jonathan Clough et al, The Jury Project 10 Years On—Practices of Australian and New Zealand Judges (Report, Australasian Institute of Judicial Administration, April 2019) <https://research.monash.edu/en/publications/the-jury-project-10-years-on-practices-of-australian-and-new-zeal>; Chris Maxwell and Greg Byrne, ‘Making Trials Work for Juries: Pathways to Simplification’ [2020] (11) Criminal Law Review 1034.

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140. Submissions 10 (Carolyn Worth AM and Mary Lancaster), 42 (Greg Byrne PSM), 44 (Dr Patrick Tidmarsh and Dr Gemma Hamilton).

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141. Consultation 24 (County Court of Victoria).

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142. The secrecy of jury deliberations limits access to real jurors for research: see Juries Act 2000 (Vic) s 78.

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143. Submission 42 (Greg Byrne PSM).

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144. Its membership comprises judges of the Court of Appeal, trial judges from the Supreme Court and County Court, representatives of the Office of Public Prosecutions, Criminal Bar Association, Victoria Legal Aid and the Judicial College of Victoria, and academics with expertise in jury research: Greg Byrne and Chris Maxwell, ‘Putting Jurors First: Legislative Simplification of Jury Directions’ (2019) 43(3) Criminal Law Journal 180, 185–6.

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145. Submissions 42 (Greg Byrne PSM), 66 (Supreme Court of Victoria).

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146. Greg Byrne PSM did not see this body as replacing the functions of the Juries Commissioner or the Judicial College of Victoria, although they may be involved in implementing reforms: Submission 42 (Greg Byrne PSM).

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147. Ibid.

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