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Jury Directions Get Leaner and Meaner

on January 1 | in Featured, Law | by | with No Comments

Sweeping changes made by the Jury Directions Act 2013 apply to indictments filed from 1 July onwards.

The Act is a major initiative aimed at simplifying and shortening the judge’s charge in criminal jury trials.

Key Changes

  • A new set of “guiding principles” that judges must take into account
  • A directions request procedure under which trial counsel only get the directions they ask for
  • “Integrated directions” – composite  directions that replace the traditional  mini-law lecture and evidence summary
  • New “beyond reasonable doubt” directions
  • Written notice is required before consciousness of guilt evidence can be led

Guiding Principles

s5(4) says that directions must be confined to the issues and “as clear, brief, simple and comprehensible as possible”.  Why legislate the obvious?  The authors of the new Act believed that some judges give juries too many directions in an attempt to “appeal proof” their charge.

In practice s5(4) will mean a renewed focus on whether directions sought by the parties are really necessary.

Directions Request Procedure

Immediately after the close of evidence, defence must tell the judge exactly what is in issue.  Both parties must then tell the judge what directions they want.

The judge must give any direction requested unless there are “good reasons” not to do so: s14.

Here’s the rub. If you don’t ask for a direction: (a) the judge is not obliged to give it, (b) you can’t complain about its absence on appeal unless you can show that a substantial miscarriage of justice resulted.

The exceptions are (a) general directions, (b) directions required by legislation (eg 6AAA of the Crimes Act), and (c) directions necessary to avoid a substantial miscarriage of justice: s15.

The aim is to abolish the Pemble rule that currently requires the judge to direct on any issue open on the evidence, even if it is not explicitly raised by defence.  (The rule is retained in the case of unrepresented accused).

Integrated Directions

Integrated directions combine questions of fact, law, and / or the parties’ cases.  For example, in a kidnapping case where the accused is alleged to have driven the complainant away in a locked car, the jury may be directed to acquit the accused unless they answer affirmatively the question: “Are you satisfied that A took C to a place different from the place she wanted to go, and locked the doors while driving?”

s19 allows a trial judge to give an integrated direction in place of a separate directions of fact and law on the same issue.

Trial judges no longer have to give comprehensive summaries of evidence and arguments: ss 17 – 18.

Burden of Proof

s21(1) frees judges from the common law shackles that prevent them defining the phrase “beyond reasonable doubt”.

Under s21(1), if a jury question the meaning of the phrase, the judge give directions that include:

  • “it is almost impossible to prove anything with absolute certainty when reconstructing past events … and … the prosecution does not have to do so.”
  • “a reasonable doubt is not an imaginary or fanciful doubt or an unrealistic possibility.”

These directions are taken from model New Zealand and Canadian directions, and are currently discouraged in Australia under common law: see R v Hettiarachchi [2009] VSCA 270 and Benbrika v R [2010] VSCA 281 at [141] and n99.

Unfortunately, the Act has not adopted the direction – used in Canada, New  Zealand and the UK –that being satisfied beyond reasonable doubt is the same as being “sure.” Overseas, this direction provides essential balance to the instructions about absolute certainty and imaginary or fanciful doubts.  There is a real risk that without this direction, juries will set the burden of proof too low.

Consciousness of Guilt

The Act renames consciousness of guilt as “incriminating conduct” evidence, and requires written notice before it can be led against an accused.

Otherwise the law – now codified in Part 6 – is essentially unchanged from that set out in R v Ciantar (2006) 16 VR 26:  admissibility turns on whether the evidence as a whole supports the inference that the conduct is an implied admission; and the jury must be directed they may only draw the inference if that is the only reasonable explanation for the accused’s conduct: ss 24 – 25.

Warnings about incriminating conduct evidence – such as that people tell lies for innocent reasons – are not required unless requested by counsel (s26) or are otherwise necessary to avoid a substantial miscarriage of justice (s15).

Future Changes

The governing is considering recommendations for further provisions to be included in the Act to deal with

  • Complicity
  • inferences and circumstantial evidence
  • tendency and coincidence evidence, and unreliable evidence.

The recommendations are set out in a report written by Weinberg JA.

Conclusion

The Jury Directions Act 2013 is one of the most significant pieces of criminal law legislation in the last few years.  The main impacts for practitioners are:

  • Increased responsibilities on trial counsel to specifically request directions beneficial to their case
  • Appeals based on a failure to give unrequested directions are less likely to succeed
  • Shorter directions, confined to the issues as defined by trial counsel
  • New directions on beyond reasonable doubt that will may increase conviction rates

Overall, the Act is likely to increase the influence of advocacy and trial counsel’s forensic decisions upon the outcome of the case.

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