Jury Directions Act 2015

Part 1—Preliminary

1 Purposes

The purposes of this Act are—

(a) to reduce the complexity of jury directions in criminal trials; and

(b) to simplify and clarify the issues that juries must determine in criminal trials; and

(c) to simplify and clarify the duties of the trial judge in giving jury directions in criminal trials; and

(d) to clarify that it is one of the duties of legal practitioners appearing in criminal trials to assist the trial judge in deciding which jury directions should be given; and

(e) to assist the trial judge to give jury directions in a manner that is as clear, brief, simple and comprehensible as possible; and

(f) to provide for simplified jury directions in relation to specific issues; and

(g) to re-enact the Jury Directions Act 2013 with amendments; and

(h) to amend the Evidence Act 2008 in relation to corroboration directions; and

(i) to make consequential and other amendments.

2 Commencement

(1) Section 1, Division 4 of Part 10 and this section come into operation on the day after the day on which this Act receives the Royal Assent.

(2) Division 1 of Part 5 comes into operation on the same day as section 3 of the Crimes Amendment (Sexual Offences and Other Matters) Act 2014 comes into operation.

(3) Subject to subsection (4), the remaining provisions of this Act come into operation on a day or days to be proclaimed.

(4) If a provision referred to in subsection (3) does not come into operation before 29 June 2015, it comes into operation on that day.

3 Definitions

In this Act—

accused has the same meaning as in the Criminal Procedure Act 2009;

alternative offence means an offence in respect of which the jury may, in accordance with any Act or any other law, find the accused guilty if the jury is not satisfied that the accused is guilty of an offence charged;

S. 3 def. of commercial sexual services inserted by No. 38/2022 s. 42, amended by No. 7/2022 s. 70A (as amended by No. 38/2022 s. 59).

commercial sexual services has the same meaning as in section 35 of the Crimes Act 1958;

defence includes an exception, exemption, proviso, excuse or qualification to an offence, whether or not it accompanies any description of the offence in an enactment;

defence counsel means a legal practitioner representing an accused;

direction includes an explanation under section 63 or 64;

S. 3 def. of gender identity inserted by No. 38/2022 s. 42.

gender identity has the same meaning as in the Equal Opportunity Act 2010;

general directions means directions concerning matters relating to the conduct of trials generally, including—

(a) the roles of the trial judge, the jury and counsel; and

(b) the empanelment of a jury and the selection of a foreperson; and

(c) trial procedure; and

(d) the need to decide issues on the basis of admissible evidence only; and

(e) the need to decide each charge separately according to the evidence relating to that charge; and

(f) the assessment of witnesses; and

(g) the presumption of innocence and the burden and standard of proof, including what must be proved beyond reasonable doubt; and

(h) the drawing of conclusions and the distinction between direct and circumstantial evidence; and

(i) jury deliberations and verdicts;

legal practitioner has the same meaning as in the Criminal Procedure Act 2009;

requested direction means a direction that the trial judge is requested to give to the jury under section 12;

S. 3 def. of sexual offence inserted by No. 38/2022 s. 42.

sexual offence has the same meaning as in the Criminal Procedure Act 2009;

S. 3 def. of sexual orientation inserted by No. 38/2022 s. 42.

sexual orientation has the same meaning as in the Equal Opportunity Act 2010;

trial judge has the same meaning as in the Criminal Procedure Act 2009.

4 Application of Act

This Act applies despite any rule of law or practice to the contrary.

S. 4A inserted by No. 37/2017 s. 3.

4A Application of Act to criminal proceedings without juries

(1) This section applies to—

(a) a summary hearing or committal proceeding under the Criminal Procedure Act 2009; and

S. 4A(1)(ab) inserted by No. 32/2024 s. 835.

(ab) a pre-trial hearing under Division 5 of Part 5.5 of the Criminal Procedure Act 2009; and

(b) an appeal or case stated under the Criminal Procedure Act 2009; and

(c) an appeal or case stated under Part 5.4 of the Children, Youth and Families Act 2005; and

(d) a special hearing under Division 3 of Part 5A of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; and

(e) an appeal under section 24AA or 38ZE of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.

(2) The court's reasoning with respect to any matter in relation to which Part 4, 5, 6 or 7 makes provision—

(a) must be consistent with how a jury would be directed in accordance with this Act; and

(b) must not accept, rely on or adopt—

(i) a statement or suggestion that this Act prohibits a trial judge from making; or

(ii) a direction that this Act prohibits a trial judge from giving.

Part 2—General

5 Guiding principles

(1) The Parliament recognises that—

(a) the role of the jury in a criminal trial is to determine the issues that are in dispute between the prosecution and the accused; and

(b) in recent decades, the law of jury directions in criminal trials has become increasingly complex; and

(c) this development—

(i) has made jury directions increasingly complex, technical and lengthy; and

(ii) has made it increasingly difficult for trial judges to comply with the law of jury directions and avoid errors of law; and

(iii) has made it increasingly difficult for jurors to understand and apply jury directions; and

(d) research indicates that jurors find complex, technical and lengthy jury directions difficult to follow.

(2) The Parliament further recognises that it is the responsibility of the trial judge to determine—

(a) the matters in issue in the trial; and

(b) the directions that the trial judge should give to the jury; and

(c) the content of those directions.

(3) The Parliament further recognises that it is one of the duties of legal practitioners appearing in a criminal trial to assist the trial judge in his or her determination of the matters referred to in subsection (2).

(4) It is the intention of the Parliament that a trial judge, in giving directions to a jury in a criminal trial, should—

(a) give directions on only so much of the law as the jury needs to know to determine the issues in the trial; and

(b) avoid using technical legal language wherever possible; and

(c) be as clear, brief, simple and comprehensible as possible.

(5) It is the intention of the Parliament that this Act is to be applied and interpreted having regard to the matters set out in this section (to be known as the guiding principles).

6 Particular form of words not required for direction

In giving a direction to the jury, the trial judge need not use any particular form of words.

7 Correction of statements or suggestions that are contrary to Act

(1) Subject to subsection (2), the trial judge must—

(a) correct a statement or suggestion by the prosecution or defence counsel (or, if the accused is unrepresented, the accused) that is prohibited by this Act; and

(b) correct a statement or suggestion prohibited by this Act that is in a question from the jury.

Sections 33, 42 and 51(1) prohibit certain statements and suggestions.

(2) The trial judge need not correct a statement or suggestion referred to in subsection (1) if there are good reasons for not doing so.

A good reason may be that counsel has already corrected a prohibited statement or suggestion at the invitation of the trial judge.

8 Power to extend or abridge time

(1) The court, by order, may extend or abridge any time fixed—

(a) by or under this Act; or

(b) by any order extending or abridging time made under this section—

if the court considers that it is in the interests of justice to do so.

(2) It is not necessary that an order be made under subsection (1) if a ruling made, or direction given, by the court provides for the extension or abridgement of time.

(3) The court may extend time under subsection (1) before or after the time expires.

(4) More than one extension of time may be granted under subsection (1).

(5) Unless the court otherwise orders, no material in support of an order under subsection (1) need be filed.

Part 3—Request for directions

9 Purposes of Part

The purposes of this Part are—

(a) to assist the trial judge to discharge his or her duty to determine—

(i) the matters in issue in the trial; and

(ii) the directions that he or she should give to the jury; and

(iii) the content of those directions; and

(b) to ensure that legal practitioners appearing in a criminal trial discharge their duty to assist the trial judge in his or her determination of the matters referred to in paragraph (a); and

(c) to provide for the directions that the trial judge should give to the jury if the accused is not represented by a legal practitioner.

10 Application of Part

(1) This Part does not apply to—

(a) general directions; or

(b) a direction that the trial judge is required to give, or not to give, to the jury under any provision of this or any other Act.

(2) This Part does not preclude the giving of a direction, that is consistent with this Act, that the trial judge considers necessary at any time before the close of all evidence.

(3) In determining under subsection (2) whether a direction is necessary, the trial judge must have regard to the submissions, if any, of the prosecution and defence counsel.

11 Counsel to assist in identification of matters in issue

After the close of all evidence and before the closing address of the prosecution—

(a) the prosecution must inform the trial judge whether it considers that the following matters are open on the evidence and, if so, whether it relies on them—

(i) any alternative offence, including an element of any alternative offence;

(ii) any alternative basis of complicity in the commission of the offence charged and any alternative offence; and

(b) defence counsel must then inform the trial judge whether he or she considers that the following matters are or are not in issue—

(i) each element of the offence charged;

(ii) any defence;

(iii) any alternative offence, including an element of any alternative offence;

(iv) any alternative basis of complicity in the commission of the offence charged and any alternative offence.

12 Legal practitioners must request that particular directions be given or not given

After the matters in issue have been identified in accordance with section 11, the prosecution and defence counsel must each request that the trial judge give, or not give, to the jury particular directions in respect of—

(a) the matters in issue; and

(b) the evidence in the trial relevant to the matters in issue.

13 Unrepresented accused

(1) Subject to subsection (2), if the accused is not represented by a legal practitioner, the trial judge must comply with this Part as if the accused had informed the trial judge that all matters referred to in section 11(b) were in issue and had requested every direction that it was open to the accused to request under section 12, had the accused been represented by a legal practitioner*.*

(2) The trial judge need not give the jury a direction if the trial judge considers that—

(a) there are good reasons for not giving the direction; or

(b) it is otherwise not in the interests of justice to give the direction.

Section 14 sets out the matters the trial judge must have regard to in determining whether there are good reasons for not giving a direction.

14 Trial judge must give requested directions

(1) The trial judge must give the jury a requested direction unless there are good reasons for not doing so.

(2) In determining whether there are good reasons for not giving a requested direction to the jury, the trial judge must have regard to—

(a) the evidence in the trial; and

(b) the manner in which the prosecution and the accused have conducted their cases, including—

(i) whether the direction concerns a matter not raised or relied on by the accused; and

(ii) whether the direction would involve the jury considering the issues in the trial in a manner that is different from the way in which the accused has presented his or her case.

15 Trial judge must not give direction that has not been requested

Subject to section 16, the trial judge must not give the jury a direction that has not been requested under section 12.

16 When trial judge must give direction regardless of parties' views

(1) The trial judge must give the jury a direction if the trial judge considers that there are substantial and compelling reasons for doing so even though the direction has not been requested under section 12.

(2) Before giving a direction under this section, the trial judge must—

(a) inform the prosecution and defence counsel (or, if the accused is unrepresented, the accused) that the trial judge is considering giving the direction; and

(b) invite submissions from the prosecution and defence counsel (or the accused, as the case may be) about the direction and whether there are substantial and compelling reasons for giving the direction.

17 Abolition of common law obligation to give certain directions does not limit section 16(1)

The abolition by section 16(1) of the Jury Directions Act 2013 of the common law obligation on a trial judge to give certain directions does not limit the obligation of the trial judge under section 16(1) of this Act to give directions.

1 Section 16(1) of the Jury Directions Act 2013 abolished any rule of common law under which a trial judge in a criminal trial was required to direct the jury about—

(a) any defences and alternative offences open on the evidence but which had not been identified as such during the trial; or

(b) any alternative basis of complicity in the offence charged and any alternative offence in issue.

2 Section 16 of the Jury Directions Act 2013 abolished the rule attributed to Pemble v R [1971] HCA 20; (1971) 124 CLR 107 and the application of Pemble in the context of complicity, for example Gilbert v R [2000] HCA 15; 201 CLR 414 and R v Nguyen [2010] HCA 38; (2010) 242 CLR 491.

3 By virtue of section 14(2)(c) of the Interpretation of Legislation Act 1984 the repeal of section 16 of the Jury Directions Act 2013 by this Act does not revive anything not in force or existing at the time of the repeal.

4 Section 4 applies generally to override any rule of law or practice to the contrary of this Act.

Part 4—Evidential directions

Division 1—Post-offence conduct

18 Definitions

conduct means the telling of a lie by the accused, or any other act or omission of the accused, which occurs after the event or events alleged to constitute an offence charged;

incriminating conduct means conduct that amounts to an implied admission by the accused—

(a) of having committed an offence charged or an element of an offence charged; or

(b) which negates a defence to an offence charged;

offence charged includes any alternative offence.

19 Prosecution notice of evidence to be relied on as evidence of incriminating conduct

(1) The prosecution must give notice of evidence of conduct that it proposes to rely on as evidence of incriminating conduct by serving on the accused and filing in court at least 28 days before the day on which the trial of the accused is listed to commence—

(a) a notice of intention to rely on evidence of incriminating conduct, in the form required by rules of court, if any; and

(b) a copy of the evidence on which the prosecution intends to rely.

(2) A notice under subsection (1) must be served in accordance with Part 8.3 of Chapter 8 of the Criminal Procedure Act 2009.

(3) The trial judge may dispense with the requirements of subsection (1)(a) or (b) if—

(a) during a trial the prosecution first becomes aware of evidence of conduct that it proposes to rely on as evidence of incriminating conduct; and

(b) the prosecution gives oral notice to the court and the accused of its intention to rely on evidence of incriminating conduct; and

(c) it is in the interests of justice to dispense with those requirements.

(4) If under subsection (3) the trial judge dispenses with the requirement of subsection (1)(b), the prosecution must identify orally to the court and the accused the evidence of conduct that it proposes to rely on as evidence of incriminating conduct.

See section 8 for extension or abridgment of time.

20 Evidence of incriminating conduct

(1) The prosecution must not rely on evidence of conduct as evidence of incriminating conduct unless—

(a) the prosecution has given notice in accordance with section 19; and

(b) the trial judge determines that, on the basis of the evidence as a whole, the evidence of conduct is reasonably capable of being viewed by the jury as evidence of incriminating conduct.

A trial judge may make a determination under paragraph (b) even where the evidence of conduct relates only to an alternative offence.

(2) Subsection (1) applies even if the evidence of conduct may be admissible for another purpose.

21 Mandatory direction on use of evidence of incriminating conduct

(1) If the prosecution relies on evidence of conduct as evidence of incriminating conduct, the trial judge must direct the jury that—

(a) the jury may treat the evidence as evidence that the accused believed that he or she had committed the offence charged or an element of the offence charged, or that he or she had negated a defence to the offence charged, only if it concludes that—

(i) the conduct occurred; and

(ii) the only reasonable explanation of the conduct is that the accused held that belief; and

(b) even if the jury concludes that the accused believed that he or she had committed the offence charged, it must still decide, on the basis of the evidence as a whole, whether the prosecution has proved the guilt of the accused beyond reasonable doubt.

(2) In giving a direction under this section, a trial judge need not refer to each act or omission of the accused.

Section 6 provides that a trial judge need not use any particular form of words in giving a direction to the jury. For example, in relation to the direction referred to in subsection (1)(a)(ii), if the evidence concerns an element of an offence, the trial judge could refer to "knew" rather than "believed" to better describe what the incriminating conduct, if accepted, may prove.

22 Additional direction on incriminating conduct

If the trial judge gives, or proposes to give, a direction under section 21, defence counsel may request under section 12 that the trial judge also direct the jury that—

(a) there are all sorts of reasons why a person might behave in a way that makes the person look guilty; and

(b) the accused may have engaged in the conduct even though the accused is not guilty of the offence charged; and

(c) even if the jury thinks that the conduct makes the accused look guilty, that does not necessarily mean that the accused is guilty.

Section 14 requires the trial judge to give this direction, if requested, unless there are good reasons for not doing so. Section 16 requires the trial judge to give a direction if the trial judge considers that there are substantial and compelling reasons for doing so.

23 Direction to avoid risk of improper use of evidence

(1) If evidence is given of conduct but the prosecution does not rely on the evidence as evidence of incriminating conduct, defence counsel may request under section 12 that the trial judge—

(a) direct the jury that there are all sorts of reasons why a person might behave in a way that makes the person look guilty; and

(b) warn the jury that even if the jury thinks that the accused engaged in the conduct, it must not conclude from that evidence that the accused is guilty of the offence charged.

Section 14 requires the trial judge to give this direction, if requested, unless there are good reasons for not doing so. Section 16 requires the trial judge to give a direction if the trial judge considers that there are substantial and compelling reasons for doing so.

(2) Without limiting section 14, it is a good reason for not giving the requested direction if the trial judge considers that there is no substantial risk that the jury might use the evidence as evidence of incriminating conduct.

24 Abolition of common law rules continues

Except as provided by this Division, a trial judge is not required to give the jury a direction regarding evidence because it is evidence of incriminating conduct or may be improperly used as evidence of incriminating conduct.

1 Section 28(3) of the Jury Directions Act 2013 abolished rules of common law based on Edwards v R [1993] HCA 63; (1993) 178 CLR 193 and Zoneff v R [2000] HCA 28; (2000) 200 CLR 234.

2 By virtue of section 14(2)(c) of the Interpretation of Legislation Act 1984 the repeal of section 28 of the Jury Directions Act 2013 by this Act does not revive anything not in force or existing at the time of the repeal.

3 Section 4 applies generally to override any rule of law or practice to the contrary of this Act.

4 Section 28(2) of the Jury Directions Act 2013 has been superseded by sections 61 and 62 of this Act.

Division 2—Other misconduct evidence

25 Application of Division

This Division applies despite any obligation arising from section 95 of the Evidence Act 2008.

26 Definitions

coincidence evidence has the same meaning as in the Evidence Act 2008;

other misconduct evidence means—

(a) coincidence evidence; or

(b) tendency evidence; or

(c) evidence of other discreditable acts and omissions of an accused that are not directly relevant to a fact in issue; or

(d) evidence that is adduced to assist the jury to understand the context in which the offence charged or any alternative offence is alleged to have been committed;

tendency evidence has the same meaning as in the Evidence Act 2008.

27 Direction on other misconduct evidence adduced by the prosecution

(1) Defence counsel may request under section 12 that the trial judge direct the jury on other misconduct evidence adduced by the prosecution.

(2) In giving a direction referred to in subsection (1), the trial judge must—

(a) identify how the other misconduct evidence is relevant (whether directly or indirectly) to the existence of a fact in issue in the trial and direct the jury not to use the evidence for any other purpose; and

(b) if the evidence forms only part of the prosecution case against the accused, inform the jury of that fact; and

(c) direct the jury that it must not decide the case based on prejudice arising from what the jury has heard about the accused.

(3) In giving a direction referred to in subsection (1), the trial judge need not—

(a) explain further what the jury should consider in deciding whether to use the other misconduct evidence; or

(b) identify impermissible uses of the other misconduct evidence; or

(c) refer to any other matter.

Section 14 requires the trial judge to give this direction, if requested, unless there are good reasons for not doing so. Section 16 requires the trial judge to give a direction if the trial judge considers that there are substantial and compelling reasons for doing so.

28 Direction on other misconduct evidence adduced by accused about a co-accused

(1) The prosecution or counsel for a co-accused may request under section 12 that the trial judge direct the jury on other misconduct evidence adduced by the accused about the co-accused.

(2) In giving a direction referred to in subsection (1), the trial judge must—

(a) identify how the other misconduct evidence is relevant (whether directly or indirectly) to the existence of a fact in issue in the trial and direct the jury not to use the evidence for any other purpose; and

(b) direct the jury that it must not decide the case based on prejudice arising from what the jury has heard about the co-accused.

(3) In giving a direction referred to in subsection (1), the trial judge need not—

(a) explain further what the jury should consider in deciding whether to use the other misconduct evidence; or

(b) identify impermissible uses of the other misconduct evidence; or

(c) refer to any other matter.

Section 14 requires the trial judge to give this direction, if requested, unless there are good reasons for not doing so. Section 16 requires the trial judge to give a direction if the trial judge considers that there are substantial and compelling reasons for doing so.

29 Direction to avoid risk of improper use of other misconduct evidence

(1) If other misconduct evidence (other than tendency evidence) is adduced, the prosecution or defence counsel may request under section 12 that the trial judge warn the jury not to use the evidence as tendency evidence.

Section 14 requires the trial judge to give this direction, if requested, unless there are good reasons for not doing so. Section 16 requires the trial judge to give a direction if the trial judge considers that there are substantial and compelling reasons for doing so.

(2) Without limiting section 14, it is a good reason for not giving the requested direction if the trial judge considers that there is no substantial risk that the jury might use the evidence as tendency evidence.

30 Abolition of common law rules

(1) Except as provided by this Division, a trial judge is not required to direct the jury regarding the use of other misconduct evidence.

(2) Any rule of common law to the contrary of this section is abolished.

Division 3—Unreliable evidence

31 Definition

evidence of a kind that may be unreliable includes—

(a) evidence in relation to which Part 3.2 (hearsay evidence) or 3.4 (admissions) of the Evidence Act 2008 applies; and

(b) evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like; and

(c) evidence given by a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the trial; and

(d) evidence given by a witness who is a prison informer; and

(e) oral evidence of questioning by an investigating official (within the meaning of the Evidence Act 2008) of an accused where the questioning has not been acknowledged by the accused.

32 Direction on unreliable evidence

(1) The prosecution or defence counsel may request under section 12 that the trial judge direct the jury on evidence of a kind that may be unreliable.

(2) In making a request referred to in subsection (1), the prosecution or defence counsel (as the case requires) must specify—

(a) the significant matters that may make the evidence unreliable; or

(b) if the request concerns evidence given by a child, the significant matters (other than solely the age of the child) that may make the evidence of the child unreliable.

(3) In giving a direction referred to in subsection (1), the trial judge must—

(a) warn the jury that the evidence may be unreliable; and

(b) inform the jury of—

(i) the significant matters that the trial judge considers may cause the evidence to be unreliable; or

(ii) if the direction concerns evidence given by a child, the significant matters (other than solely the age of the child) that the trial judge considers may make the evidence of the child unreliable; and

(c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.

1 Section 14 requires the trial judge to give this direction, if requested, unless there are good reasons for not doing so. Section 16 requires the trial judge to give a direction if the trial judge considers that there are substantial and compelling reasons for doing so.

2 Section 115(7) of the Evidence Act 2008 and Division 4 of this Part provide for warnings and information about identification evidence.

3 Section 164(4) of the Evidence Act 2008 provides that in a criminal proceeding the judge must not—

(a) warn the jury that it is dangerous to act on uncorroborated evidence or give a warning to the same or similar effect; or

(b) give a direction relating to the absence of corroboration.

4 Section 164(5) of the Evidence Act 2008 provides that in a criminal proceeding for the offence of perjury or a similar or related offence, the judge must direct the jury that it may find the accused guilty only if it is satisfied that the evidence proving guilt is corroborated.

S. 33 (Heading) amended by No. 42/2018 s. 29.

33 Prohibited statements and suggestions in relation to reliability of children's evidence

The trial judge, the prosecution and defence counsel (or, if the accused is unrepresented, the accused) must not say, or suggest in any way, to the jury that—

(a) children as a class are unreliable witnesses; or

(b) the evidence of children as a class is inherently less credible or reliable, or requires more careful scrutiny, than the evidence of adults; or

(c) a particular child's evidence is unreliable solely on account of the age of the child; or

(d) it would be dangerous to convict on the uncorroborated evidence of a witness because that witness is a child.

1 Section 7 provides for correction of statements or suggestions to the contrary of this provision.

2 Section 164 of the Evidence Act 2008 relates to corroboration.

34 Abolition of common law rules

(1) Except as provided by this Division, a trial judge is not required to direct the jury regarding evidence of a kind that may be unreliable.

Division 4—Identification evidence

35 Definition

identification evidence means an assertion by a person, or a report of an assertion by a person, to the effect that—

(a) he or she recognises, or does not recognise, a person or object as the person or object that he or she saw, heard or perceived on the relevant occasion; or

(b) the general appearance or characteristics of a person or object are similar, or are not similar, to the general appearance or characteristics of the person or object that he or she saw, heard or perceived on the relevant occasion—

and includes—

(c) visual identification evidence within the meaning of section 114 of the Evidence Act 2008; and

(d) picture identification evidence within the meaning of section 115 of the Evidence Act 2008.

Section 115(7) of the Evidence Act 2008 requires particular jury directions in relation to picture identification evidence.

36 Direction on identification evidence

(1) The prosecution or defence counsel may request under section 12 that the trial judge direct the jury on identification evidence.

(2) In making a request referred to in subsection (1), the prosecution or defence counsel (as the case requires) must specify the significant matters that may make the evidence unreliable.

(3) In giving a direction referred to in subsection (1), the trial judge must—

(a) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it; and

(b) inform the jury of the significant matters that the trial judge considers may make the evidence unreliable; and

(c) inform the jury that—

(i) a witness may honestly believe that his or her evidence is accurate when the witness is, in fact, mistaken; and

(ii) the mistaken evidence of a witness may be convincing; and

(d) if relevant, inform the jury that a number of witnesses may all be mistaken; and

(e) if relevant, inform the jury that mistaken identification evidence has resulted in innocent people being convicted.

Section 14 requires the trial judge to give this direction, if requested, unless there are good reasons for not doing so. Section 16 requires the trial judge to give a direction if the trial judge considers that there are substantial and compelling reasons for doing so.

37 Abolition of common law rules

(1) Except as provided by this Division, a trial judge is not required to direct the jury regarding the unreliability of identification evidence.

Division 5—Delay and forensic disadvantage

38 Definition

forensic disadvantage means a disadvantage
(that is more than the mere existence of delay) to the accused in—

(a) challenging, adducing or giving evidence; or

(b) conducting his or her case—

because of the consequences of delay due to the period of time that has elapsed between the alleged offence and the trial.

39 Direction on significant forensic disadvantage

(1) Defence counsel may request under section 12 that the trial judge direct the jury on forensic disadvantage experienced by the accused.

(2) The trial judge may direct the jury as referred to in subsection (1) only if the trial judge is satisfied that the accused has experienced a significant forensic disadvantage.

(3) In giving a direction referred to in subsection (1), the trial judge—

(a) must inform the jury of—

(i) the nature of the disadvantage experienced by the accused; and

(ii) the need to take the disadvantage into account when considering the evidence; and

(b) must not say, or suggest in any way, to the jury that—

(i) it would be dangerous or unsafe to convict the accused; or

S. 39(3)(b)(ii) amended by No. 37/2017 s. 4.

(ii) the victim's evidence should be scrutinised with great care.

Section 14 requires the trial judge to give this direction, if requested, unless there are good reasons for not doing so. Section 39(2) qualifies the threshold for giving a requested direction. Section 16 requires the trial judge to give a direction if the trial judge considers that there are substantial and compelling reasons for doing so.

40 Abolition of common law rules

Any rule of common law under which a trial judge is required or permitted to direct the jury on a disadvantage to the accused in challenging, adducing or giving evidence or conducting his or her case because of delay is abolished.

Longman v R [1989] HCA 60; (1989) 168 CLR 79, followed in Crampton v R [2000] HCA 60; (2000) 206 CLR 161 and applied in relation to the corroborated evidence of a complainant in Doggett v R [2001] HCA 46; (2001) 208 CLR 343.

Division 6—Failure to give evidence or call witness

41 Direction on accused not giving evidence or calling witness

(1) If the accused does not give evidence or call a particular witness, defence counsel may request under section 12 that the trial judge direct the jury on that fact.

(2) In giving a direction referred to in subsection (1), the trial judge must explain—

(a) the prosecution's obligation to prove that the accused is guilty; and

(b) that the accused is not required to give evidence or call a witness (as the case requires); and

(c) that the jury should not guess or speculate about what might have been contained in—

(i) the evidence that was not given by the accused; or

(ii) the evidence that might have been given by a witness who was not called—

as the case requires; and

(d) that the fact that the accused did not give evidence or call a witness (as the case requires)—

(i) is not evidence against the accused; and

(ii) is not an admission by the accused; and

(iii) must not be used to fill gaps in the evidence adduced by the prosecution; and

(iv) does not strengthen the prosecution case.

Section 14 requires the trial judge to give this direction, if requested, unless there are good reasons for not doing so. Section 16 requires the trial judge to give a direction if the trial judge considers that there are substantial and compelling reasons for doing so.

42 Prohibited statements and suggestions in relation to accused who does not give evidence or call witness

The trial judge, the prosecution and defence counsel (or, if the accused is unrepresented, the accused) must not say, or suggest in any way, to the jury that, because an accused did not give evidence or call a particular witness (as the case requires), the jury may—

(a) conclude that the accused is guilty from that fact; or

(b) use the failure of the accused to provide an explanation of facts, which must be within the knowledge of the accused, to more safely draw an adverse inference based on those facts which, if drawn, would prove the guilt of the accused; or

(c) draw an inference that the accused did not give evidence or call a witness (as the case requires) because that would not have assisted his or her case.

Section 7 provides for correction of statements or suggestions to the contrary of this provision.

43 Direction on prosecution not calling or questioning witness

(1) If the prosecution does not call or question a particular witness, defence counsel may request under section 12 that the trial judge direct the jury on that fact.

(2) The trial judge may direct the jury as referred to in subsection (1) only if the trial judge is satisfied that the prosecution—

(a) was reasonably expected to call or question the witness; and

(b) has not satisfactorily explained why it did not call or question the witness.

(3) In giving a direction referred to in subsection (1), the trial judge may inform the jury that it may conclude that the witness would not have assisted the prosecution's case.

Section 14 requires the trial judge to give this direction, if requested, unless there are good reasons for not doing so. Section 43(2) qualifies the threshold for giving a requested direction. Section 16 requires the trial judge to give a direction if the trial judge considers that there are substantial and compelling reasons for doing so.

44 Abolition of common law rules

(1) Except as provided by this Division, a trial judge is not required to direct the jury—

(a) when the accused does not give evidence or call a witness; or

(b) when the prosecution does not call or question a witness.

1 This provision abolishes directions based on the rule attributed to Weissensteiner v R [1993] HCA 65; (1993) 178 CLR 217 and applied in Azzopardi v R [2001] HCA 25; (2001) 205 CLR 50 and the rule attributed to Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 and applied to the accused and prosecution in criminal cases in Dyers v R [2002] HCA 45; (2002) 210 CLR 285.

Pt 4 Div. 7 (Heading and ss 44A–44E) inserted by No. 37/2017 s. 5.

Division 7—Previous representations

S. 44A inserted by No. 37/2017 s. 5.

44A Definition

previous representation has the same meaning as in the Evidence Act 2008.

S. 44B inserted by No. 37/2017 s. 5.

44B Direction not required regarding repetition of previous representation

If evidence is given of a previous representation, the trial judge is not required to direct the jury that repeating a previous representation does not make the asserted fact true.

S. 44C inserted by No. 37/2017 s. 5.

44C Direction not required regarding evidence of person who saw, heard or perceived complaint

(1) This section applies if—

(a) evidence is given of a previous representation by a person who saw, heard or otherwise perceived the representation being made; and

(b) the representation is a complaint, made by the victim of an alleged offence, about the commission of the offence.

(2) The trial judge is not required to direct the jury that the evidence of the previous representation does not independently confirm the victim's evidence of the commission of the alleged offence.

S. 44D inserted by No. 37/2017 s. 5.

44D Direction not required regarding complaint made in general terms

(1) This section applies if—

(a) evidence is given of a previous representation; and

(b) the representation is a complaint, made by the victim of an alleged offence, about the commission of the offence; and

(c) the complaint is made in general terms.

(2) The trial judge is not required to direct the jury not to substitute the evidence of the previous representation for evidence relating to a specific charge.

S. 44E inserted by No. 37/2017 s. 5.

44E Abolition of common law rules

Any rule of common law under which a trial judge is required to give the jury a direction referred to in this Division is abolished.

1 This provision abolishes directions based on—

• Papakosmas v R (1999) 196 CLR 297; and

• R v Stoupas [1998] 3 VR 645; and

• R v HJS [2000] NSWCCA 205.

Pt 4 Div. 8 (Heading and ss 44F, 44G) inserted by No. 37/2017 s. 5.

Division 8—Doubts regarding truthfulness or reliability of victim's evidence

S. 44F inserted by No. 37/2017 s. 5.

44F Prohibited direction in relation to doubts regarding truthfulness or reliability of victim's evidence

In a trial in which more than one offence is charged, the trial judge must not direct the jury that if the jury doubts the truthfulness or reliability of the victim's evidence in relation to a charge, that doubt must be taken into account in assessing the truthfulness or reliability of the victim's evidence generally or in relation to other charges.

This section prohibits the trial judge from giving a particular direction to the jury. This does not limit the obligation of the trial judge to refer the jury to the way in which the prosecution and the accused put their cases in relation to the issues in the trial—see section 65.

S. 44G inserted by No. 37/2017 s. 5.

44G Abolition of common law rules

Any rule of common law under which a trial judge is required or permitted to give the jury a direction referred to in section 44F is abolished.

1 This provision abolishes the rule attributed to R v Markuleski (2001) 52 NSWLR 82.

Pt 4 Div. 9 (Heading and ss 44H–44K) inserted by No. 37/2017 s. 5.

Division 9—Accused giving evidence, interest in outcome of trial

S. 44H inserted by No. 37/2017 s. 5.

44H Prohibited statements and suggestions in relation to interest in outcome of trial

The trial judge, the prosecution and defence counsel (or, if the accused is unrepresented, the accused) must not say, or suggest in any way, to the jury that—

(a) an interest in the outcome of the trial is a factor to take into account in assessing the evidence of witnesses generally; or

(b) the evidence of an accused is less credible, or requires more careful scrutiny, because any person who is on trial has an interest in the outcome of that trial.

1 Section 7 provides for correction of statements or suggestions to the contrary of this provision.

2 The trial judge, the prosecution and defence counsel (or, if the accused is unrepresented, the accused) may say or suggest that a witness, or an accused, has a particular interest in the outcome of the trial and this interest does or may affect the credibility of the witness or the accused.

S. 44I inserted by No. 37/2017 s. 5.

44I Direction on accused giving evidence or interest of accused in outcome of trial

(1) Defence counsel may request under section 12 that the trial judge direct the jury on either or both of the following—

(a) the giving of evidence by the accused;

(b) the interest that the accused has in the outcome of the trial.

(2) In giving a direction referred to in subsection (1), the trial judge must explain that—

(a) the accused is not required to give evidence; and

(b) the fact that the accused has given evidence does not change the prosecution's obligation to prove that the accused is guilty; and

(c) the jury must assess the evidence of the accused in the same way that the jury assesses the evidence of any other witness; and

(d) the jury must not give less weight to the evidence of the accused just because any person who is on trial has an interest in the outcome of that trial.

1 Section 14 requires the trial judge to give this direction, if requested, unless there are good reasons for not doing so. Section 16 requires the trial judge to give a direction if the trial judge considers that there are substantial and compelling reasons for doing so.

2 Section 41 provides for a direction on an accused not giving evidence or calling a particular witness.

S. 44J inserted by No. 37/2017 s. 5.

44J Prohibited directions in relation to evidence of an accused

The trial judge must not direct the jury about any of the following matters in relation to the evidence of an accused—

(a) whether the accused is under more stress than any other witness;

(b) that the accused gave evidence because—

(i) a guilty person who gives evidence will more likely be believed; or

(ii) an innocent person can do nothing more than give evidence.

This section prohibits the trial judge from giving directions to the jury about particular matters. This does not limit the obligation of the trial judge to refer the jury to the way in which the prosecution and the accused put their cases in relation to the issues in the trial—see section 65.

S. 44K inserted by No. 37/2017 s. 5.

44K Abolition of common law rules

(1) Any rule of common law under which a trial judge is prohibited from directing the jury on the interest a witness or an accused may have in the outcome of a trial is abolished.

(2) Any rule of common law under which a trial judge is required or permitted to direct the jury about the matters referred to in section 44J in relation to the evidence of an accused is abolished.

1 Subsection (1) abolishes the rule attributed to Robinson v R [1991] HCA 38; (1994) 180 CLR 531.

2 Subsection (2) abolishes directions based on—

• R v Haggag [1998] VSC 355; (1998) 101 A Crim R 593; and

• R v McMahon [2004] VSCA 64; (2004) 8 VR 101; and

• R v Buckley [2004] VSCA 185; (2004) 10 VR 215.

3 Section 4 applies generally to override any rule of law or practice to the contrary of this Act.

Pt 4 Div. 10 (Heading and ss 44L, 44M) inserted by No. 37/2017 s. 5.

Division 10—Whether a prosecution witness has a motive to lie

S. 44L inserted by No. 37/2017 s. 5.

44L Direction on prosecution witness's motive to lie

(1) If the issue of whether a witness for the prosecution has a motive to lie is raised during a trial, defence counsel may request under section 12 that the trial judge direct the jury on that issue.

(2) In giving a direction referred to in subsection (1), the trial judge must explain—

(a) the prosecution's obligation to prove that the accused is guilty; and

(b) that the accused does not have to prove that the witness had a motive to lie.

Section 14 requires the trial judge to give this direction, if requested, unless there are good reasons for not doing so. Section 16 requires the trial judge to give a direction if the trial judge considers that there are substantial and compelling reasons for doing so.

S. 44M inserted by No. 37/2017 s. 5.

44M Abolition of common law rules

(1) Except as provided by this Division, a trial judge is not required or permitted to direct the jury on the issue of whether a witness for the prosecution has a motive to lie.

1 Subsection (2) abolishes directions based on Palmer v R [1998] HCA 2; 193 CLR 1.

Pt 4 Div. 11 (Heading and s. 44N) inserted by No. 42/2018 s. 30.

Division 11—Language and cognitive skills of child witness

S. 44N inserted by No. 42/2018 s. 30.

44N Direction on language and cognitive skills of child witness

(1) If, before any evidence is adduced in the trial and after hearing submissions from the prosecution and defence counsel (or, if the accused is unrepresented, the accused), the trial judge considers that the reliability or credibility of a child witness is likely to be in issue, the trial judge—

(a) must direct the jury in accordance with subsection (4) before any evidence by the child is adduced, unless there are good reasons for not doing so; and

A good reason may be that the child is 17 years old and the trial judge considers that the direction is unnecessary because the child has well developed language and cognitive skills.

(2) If, at any other time during the trial, the trial judge considers that the reliability or credibility of a child witness is likely to be in issue, the trial judge must direct the jury in accordance with subsection (4) as soon as is practicable, unless there are good reasons for not doing so.

(4) In giving a direction under this section, the trial judge must inform the jury that—

(a) children can accurately remember and report past events; and

(b) children are developing language and cognitive skills, and this may affect—

(i) whether children give a detailed, chronological or complete account; and

(ii) how children understand and respond to the questions they are asked; and

(c) experience shows that, depending on a child's level of development, they—

(i) may have difficulty understanding certain language, whether because that language is complicated for children or complicated generally; and

1 Hypothetical, ambiguous, repetitive, multi-part or yes/no questions.

2 The use of the passive voice, negatives and double negatives.

(ii) may have difficulty understanding certain concepts, whether because those concepts are complicated for children or complicated generally; and

Relative concepts such as time, duration, measurement or frequency.

(iii) may not request the clarification of a question they do not understand; and

(iv) may not clarify an answer they have given that has been misunderstood.

(5) This section does not limit what the trial judge may include in any other direction to the jury in relation to the evidence of a child witness.

Part 5—Sexual offences

Pt 5 Div. 1AA (Heading and ss 44O, 44P) inserted by No. 38/2022 s. 43.

Division 1AA—Early indication of likely directions under this Part

S. 44O inserted by No. 38/2022 s. 43.

44O Application of Division

This Division applies to a criminal proceeding that relates (wholly or partly) to a charge for a sexual offence or a charge for an offence of conspiracy or incitement to commit a sexual offence.

S. 44P inserted by No. 38/2022 s. 43.

44P Trial judge may request indication from parties

(1) Before the trial commences, the trial judge may request that the prosecution and defence counsel (or, if the accused is unrepresented, the accused) each inform the trial judge of whether it is likely that evidence will be adduced in the trial that would provide a good reason for giving a direction for which this Part provides.

(2) If the trial judge is informed under subsection (1) that it is likely that evidence will be adduced that would provide a good reason for giving a particular direction, the trial judge is not required to form a view, at that time, about whether to give that direction.

(3) Nothing in this section prevents the prosecution, defence counsel or the accused from later requesting, or making submissions in relation to, the giving of a direction about which the trial judge was not informed under subsection (1).

Pt 5 Div. 1 (Heading) substituted by No. 38/2022 s. 44.

Division 1—Consent and reasonable belief in consent (offences after 1 July 2015)

S. 45 amended by No. 6/2017 s. 15.

45 Application of Division

This Division applies to a criminal proceeding that relates (wholly or partly) to a charge for an offence against any provision in Subdivision (8A), (8B), (8C) or (8D) of Division 1 of Part I of the Crimes Act 1958 or a charge for an offence of conspiracy, incitement or attempt to commit an offence against any of those provisions.

Note to s. 45 inserted by No. 47/2016 s. 26, substituted as Notes by No. 38/2022 s. 45.

1 Subdivision (8A) provides for rape, sexual assault and associated sexual offences.

2 Subdivision (8B) provides for sexual offences against children.

3 Subdivision (8C) provides for incest offences.

4 Subdivision (8D) provides for child abuse material offences.

5 These Subdivisions of Division 1 of Part I of the Crimes Act 1958 came into operation on 1 July 2015.

46 Direction on consent

(1) The prosecution or defence counsel may request under section 12 that the trial judge direct the jury on consent.

(2) In making a request referred to in subsection (1), the prosecution or defence counsel (as the case requires) must specify—

(a) in the case of a request for a direction on the meaning of consent—one or more of the directions set out in subsection (3); or

(b) in the case of a request for a direction on the circumstances in which a person is taken not to have consented to an act—one or more of the directions set out in subsection (4).

Note to s. 46(2) amended by Nos 47/2016 s. 27(1), 5/2018 s. 19, substituted by 38/2022 s. 15(1).[1]

Section 36 of the Crimes Act 1958 provides that consent means free and voluntary agreement. Section 36AA of that Act sets out circumstances in which a person does not consent.

(3) For the purposes of subsection (2)(a), the prosecution or defence counsel may request that the trial judge—

(a) inform the jury that a person can consent to an act only if the person is capable of consenting and free to choose whether or not to engage in or allow the act; or

S. 46(3)(b) amended by No. 38/2022 s. 46(1).

(b) inform the jury that where a person has given consent to an act, the person may withdraw that consent either before the act takes place or at any time while the act is taking place.

S. 46(3)(c) substituted by No. 47/2016 s. 27(2), repealed by No. 38/2022 s. 46(2).

S. 46(3)(d)(e) inserted by No. 47/2016 s. 27(2), repealed by No. 38/2022 s. 46(2).

(4) For the purposes of subsection (2)(b), the prosecution or defence counsel may request that the trial judge—

(a) inform the jury of the relevant circumstances in which the law provides that a person does not consent to an act; or

Note to s. 46(4)(a) amended by Nos 47/2016 s. 27(3), 38/2022 s. 15(2).

Section 36AA of the Crimes Act 1958 sets out these circumstances.

S. 46(4)(b) amended by Nos 47/2016 s. 27(4), 38/2022 s. 15(3).

(b) direct the jury that if the jury is satisfied beyond reasonable doubt that a circumstance referred to in section 36AA of the Crimes Act 1958 existed in relation to a person, the jury must find that the person did not consent to the act.

Section 14 requires the trial judge to give this direction, if requested, unless there are good reasons for not doing so.
Section 16 requires the trial judge to give a direction if the trial judge considers that there are substantial and compelling reasons for doing so.

47 Direction on reasonable belief in consent

(1) The prosecution or defence counsel may request under section 12 that the trial judge direct the jury on reasonable belief in consent.

(2) In making a request referred to in subsection (1), the prosecution or defence counsel (as the case requires) must specify one or more of the directions set out in subsection (3).

(3) For the purposes of subsection (2), the prosecution or defence counsel may request that the trial judge—

S. 47(3)(a) amended by Nos 47/2016 s. 28(1), 38/2022 s. 16.

(a) direct the jury that if the jury concludes that the accused knew or believed that a circumstance referred to in section 36AA of the Crimes Act 1958 existed in relation to a person, that knowledge or belief is enough to show that the accused did not reasonably believe that the person was consenting to the act; or

(b) direct the jury that in determining whether the accused who was intoxicated had a reasonable belief at any time—

(i) if the intoxication was self-induced, regard must be had to the standard
of a reasonable person who is not intoxicated and who is otherwise in the same circumstances as the accused at the relevant time; and

S. 47(3)(b)(ii) amended by No. 47/2016 s. 28(2).

(ii) if the intoxication is not self-induced, regard must be had to the standard of a reasonable person intoxicated to the same extent as the accused and who is in the same circumstances as the accused at the relevant time; or

S. 47(3)(c) inserted by No. 47/2016 s. 28(3), repealed by No. 38/2022 s. 47.

S. 47(3)(d) inserted by No. 47/2016 s. 28(3).

(d) direct the jury that in determining whether the accused had a reasonable belief in consent, the jury must consider what the community would reasonably expect of the accused in the circumstances in forming a reasonable belief in consent; or

S. 47(3)(e) inserted by No. 47/2016 s. 28(3).

(e) direct the jury that in determining whether the accused had a reasonable belief in consent, the jury may take into account any personal attribute, characteristic or circumstance of the accused.

S. 47(4) inserted by No. 47/2016 s. 28(4).

(4) A good reason for not giving the direction set out in subsection (3)(e) is that the personal attribute, characteristic or circumstance—

(a) did not affect, or is not likely to have affected, the accused's perception or understanding of the objective circumstances; or

(b) was something that the accused was able to control; or

(c) was a subjective value, wish or bias held by the accused, whether or not that value, wish or bias was informed by any particular culture, religion or other influence.

Section 14 requires the trial judge to give this direction, if requested, unless there are good reasons for not doing so.
Section 16 requires the trial judge to give a direction if the trial judge considers that there are substantial and compelling reasons for doing so.

Pt 5 Div. 1A (Headings and ss 47A–47I) inserted by No. 38/2022 s. 48.

Division 1A—Consent and reasonable belief in consent (offences before, on or after 1 July 2015)

Subdivision 1—Preliminary

S. 47A inserted by No. 38/2022 s. 48, amended by No. 26/2023 s. 60 (ILA s. 39B(1)).

47A Application of Division

(1) This Division applies to a criminal proceeding that relates (wholly or partly) to a charge for a sexual offence or a charge for an offence of conspiracy or incitement to commit a sexual offence.

S. 47A(2) inserted by No. 26/2023 s. 60.

(2) If an absence of consent is not an element of the sexual offence, this Division applies in relation to the acts alleged to constitute the offence charged in the same way that it applies in relation to acts constituting an offence of which absence of consent is an element.

S. 47A(3) inserted by No. 26/2023 s. 60.

(3) For an offence of conspiracy or incitement to commit a sexual offence, subsection (2) applies in relation to the acts alleged to constitute, or that would constitute, the sexual offence that is the subject of the conspiracy or incitement.

S. 47A(4) inserted by No. 26/2023 s. 60.

(4) In giving a direction set out in a provision of this Division in a proceeding to which subsection (2) applies, the trial judge may use a form of words that reflects that an absence of consent is not an element of the sexual offence, regardless of whether or how consent is referred to in that provision.

In a proceeding for an offence under section 49B of the Crimes Act 1958 (sexual penetration of a child under the age of 16), the trial judge considers there are good reasons to give a direction under section 47C(1)(a) (a direction on the absence of physical injury, violence or a threat). The trial judge gives the direction in section 47D by informing the jury that experience shows that—

(a) there are many different circumstances in which sexual offending against a child may occur; and

(b) sexual offending against a child may occur without the child being physically injured or subjected to violence, or threatened with physical injury or violence.

S. 47A(5) inserted by No. 26/2023 s. 60.

(5) Nothing in subsection (2), (3) or (4) affects or takes away from section 6.

S. 47B inserted by No. 38/2022 s. 48.

47B Part 3 does not apply

Subdivision 2—Trial judge's obligation to give directions

S. 47C inserted by No. 38/2022 s. 48.

47C Trial judge must give directions on consent and reasonable belief in consent

(1) The trial judge must give the jury whichever of the following directions the trial judge considers there are good reasons to give—

(a) a direction on the absence of physical injury, violence or a threat (described in section 47D);

(b) a direction on responses to a non-consensual sexual act (described in section 47E);

(c) a direction on other sexual activity (described in section 47F);

(d) a direction on personal appearance and irrelevant conduct (described in section 47G);

(e) a direction on non-consensual sexual acts between all sorts of people (described in section 47H);

(f) a direction on general assumptions not informing a reasonable belief in consent (described in section 47I).

(2) In determining whether there are good reasons for giving a direction under this section, the trial judge must have regard to the submissions, if any, of the prosecution and defence counsel (or, if the accused is unrepresented, the accused).

(3) If the trial judge is to give a direction under this section, the direction must be given at the earliest time in the trial that the trial judge determines is appropriate.

(4) However, subsection (3) does not prevent the trial judge from giving a direction under this section at any time during the trial, including—

(a) before any evidence is adduced in the trial; and

(b) in the trial judge's summing up to the jury.

(5) A direction under this section may be given—

(a) at the request of the prosecution or defence counsel (or, if the accused is unrepresented, the accused); or

(6) The trial judge may repeat a direction under this section at any time in the trial.

Subdivision 3—Directions on consent

S. 47D inserted by No. 38/2022 s. 48.

47D Direction on the absence of physical injury, violence or a threat

For the purposes of this Division, a direction on the absence of physical injury, violence or a threat is a direction informing the jury that experience shows that—

(a) there are many different circumstances in which people do and do not consent to a sexual act; and

(b) people who do not consent to a sexual act may not be—

(i) physically injured or subjected to violence; or

(ii) threatened with physical injury or violence.

S. 47E inserted by No. 38/2022 s. 48.

47E Direction on responses to a non‑consensual sexual act

For the purposes of this Division, a direction on responses to a non-consensual sexual act is a direction informing the jury that experience shows that—

(a) people may react differently to a sexual act to which they did not consent, and there is no typical, proper or normal response; and

(b) people who do not consent to a sexual act may not protest or physically resist the act.

The person may freeze and not do or say anything.

S. 47F inserted by No. 38/2022 s. 48.

47F Direction on other sexual activity

For the purposes of this Division, a direction on other sexual activity is a direction informing the jury that experience shows that people who do not consent to a sexual act with a particular person on one occasion may have, on one or more other occasions, engaged in or been involved in consensual sexual activity—

(a) with that person or another person; or

(b) of the same kind or a different kind.

S. 47G inserted by No. 38/2022 s. 48.

47G Direction on personal appearance and irrelevant conduct

For the purposes of this Division, a direction on personal appearance and irrelevant conduct is a direction informing the jury that it should not be assumed that a person consented to a sexual act just because the person—

(a) wore particular clothing; or

(b) had a particular appearance; or

(c) drank alcohol or took any other drug; or

(d) was present in a particular location; or

1 The complainant attended a nightclub.

2 The complainant went to the accused's home.

(e) acted flirtatiously.

S. 47H inserted by No. 38/2022 s. 48.

47H Direction on non-consensual sexual acts occurring between all sorts of people

For the purposes of this Division, a direction on non-consensual sexual acts occurring between all sorts of people is a direction informing the jury that experience shows that—

(a) there are many different circumstances in which people do and do not consent to a sexual act; and

(b) sexual acts can occur without consent between all sorts of people, including—

(i) people who know each other;

(ii) people who are married to each other;

(iii) people who are in a relationship with each other;

(iv) people who provide commercial sexual services and people for whose arousal or gratification such services are provided;

(v) people of the same or different sexual orientations;

(vi) people of any gender identity, including people whose gender identity does not correspond to their designated sex at birth.

People who are transgender, non-binary, genderqueer or gender fluid.

Subdivision 4—Directions on reasonable belief in consent

S. 47I inserted by No. 38/2022 s. 48.

47I Direction on general assumptions not informing a reasonable belief in consent

For the purposes of this Division, a direction on general assumptions not informing a reasonable belief in consent is a direction that informs the jury that—

(a) a belief in consent based solely on a general assumption about the circumstances in which people consent to a sexual act (whether or not that assumption is informed by any particular culture, religion or other influence) is not a reasonable belief; and

(b) if a belief in consent is based on a combination of matters including a general assumption of that kind, then, to the extent that it is based on that general assumption, it is not a reasonable belief.

Each of the following is an example of a general assumption of the kind referred to in this section—

(a) a general assumption that a person who gets drunk and flirts with another person consents to a sexual act with that other person;

(b) a general assumption that a person who dresses in a way that is considered sexually provocative, and who visits another person's home, consents to a sexual act with that other person.

Division 2—Delay and credibility

S. 48 amended by No. 6/2017 s. 16.

48 Application of Division

This Division applies to a criminal proceeding that relates (wholly or partly) to a charge for a sexual offence or a charge for an offence of conspiracy or incitement to commit a sexual offence.

S. 49 amended by No. 38/2022 s. 49.

49 Part 3 does not apply

50 Definitions

delay in making a complaint includes where—

(a) the complainant has not pursued, or continued to pursue, the complaint in a timely manner; and

(b) the complainant has not made a complaint at the first, or a subsequent, reasonable opportunity to complain;

S. 50 def. of sexual offence repealed by No. 38/2022 s. 50.

sexual offence case means a criminal proceeding referred to in section 48.

S. 51 (Heading) amended by No. 37/2017 s. 6.

51 Prohibited statements and suggestions in relation to complainants, delay and unreliability

(1) The trial judge, the prosecution and defence counsel (or, if the accused is unrepresented, the accused) must not say, or suggest in any way, to the jury that—

(a) the law regards complainants in sexual offence cases as an unreliable class of witness; or

(b) complainants in sexual offence cases are an unreliable class of witness; or

S. 51(1)(c) amended by No. 38/2022 s. 51(1).

(c) complainants who delay in making a complaint or do not make a complaint are, as a class, less credible or require more careful scrutiny than other complainants; or

S. 51(1)(d) inserted by No. 38/2022 s. 51(2).

(d) complainants who provide commercial sexual services are, as a class, less credible or require more careful scrutiny than other complainants; or

S. 51(1)(e) inserted by No. 38/2022 s. 51(2).

(e) complainants who have a particular sexual orientation are, as a class, less credible or require more careful scrutiny than other complainants; or

S. 51(1)(f) inserted by No. 38/2022 s. 51(2).

(f) complainants who have a particular gender identity (including complainants whose gender identity does not correspond to their designated sex at birth) are, as a class, less credible or require more careful scrutiny than other complainants.

People who are transgender, non-binary, genderqueer or gender fluid.

(2) The trial judge must not say, or suggest in any way, to the jury that, because the complainant delayed in making a complaint or did not make a complaint—

(a) it would be dangerous or unsafe to convict the accused; or

(b) the complainant's evidence should be scrutinised with great care.

1 The trial judge is not required to inform the jury about the matters set out in this section.

2 Section 7 provides for correction of statements or suggestions to the contrary of section 51(1).

3 The trial judge, the prosecution and defence counsel (or, if the accused is unrepresented, the accused) may say or suggest that the particular complainant's delay in making a complaint or lack of a complaint does, or may, affect the complainant's credibility.

52 Direction on delay in complaint or lack of complaint

(1) If, before any evidence is adduced in the trial and after hearing submissions from the prosecution and defence counsel (or, if the accused is unrepresented, the accused), the trial judge considers that there is likely to be evidence in the trial that suggests that the complainant delayed in making a complaint or did not make a complaint, the trial judge—

(a) must direct the jury in accordance with subsection (4) before any evidence about delay in making a complaint or lack of complaint is adduced; and

(2) If, at any other time during the trial, the trial judge considers that there is evidence in the trial that suggests that the complainant delayed in making a complaint or did not make a complaint, the trial judge must direct the jury in accordance with subsection (4) as soon as is practicable.

S. 52(2A) inserted by No. 38/2022 s. 52(1).

(2A) A direction under this section may be given—

(4) In giving a direction under this section, the trial judge must inform the jury that experience shows that—

(a) people may react differently to sexual offences and there is no typical, proper or normal response to a sexual offence; and

(b) some people may complain immediately to the first person they see, while others may not complain for some time and others may never make a complaint; and

S. 52(4)(c) amended by No. 38/2022 s. 52(2).

(c) delay in making a complaint in respect of a sexual offence is a common occurrence; and

S. 52(4)(d) inserted by No. 38/2022 s. 52(3).

(d) there may be good reasons why a person may not complain, or may delay in complaining, about a sexual offence.

S. 52(4A) inserted by No. 38/2022 s. 52(4).

(4A) In giving a direction under this section, the trial judge may give an example of a good reason referred to in subsection (4)(d).

S. 52(4B) inserted by No. 38/2022 s. 52(4).

(4B) An example given in accordance with subsection (4A) need not be based on the evidence given in the trial.

S. 52(5) amended by No. 42/2018 s. 31.

(5) This section does not limit what the trial judge may include in any other direction to the jury in relation to evidence given by an expert witness.

S. 53 repealed by No. 38/2022 s. 53.

54 Abolition of common law rules

Any rule of common law under which a trial judge is required to direct the jury that—

(a) a complainant's delay in making a complaint or lack of complaint may cast doubt on the reliability of the complainant's evidence; and

(b) the jury should take this into account when evaluating the credibility of the allegations made by the complainant—

is abolished.

1 This provision abolishes the rules attributed to
Kilby v R [1973] HCA 30; (1973) 129 CLR 460 and Crofts v R [1996] HCA 22; (1996) 186 CLR 427.

Pt 5 Div. 3 (Heading and ss 54A–54D) inserted by No. 37/2017 s. 7.

Division 3—Differences in complainant's account

S. 54A inserted by No. 37/2017 s. 7.

54A Application of Division

This Division applies to a criminal proceeding that relates (wholly or partly) to a charge for a sexual offence or a charge for an offence of conspiracy or incitement to commit a sexual offence.

S. 54B inserted by No. 37/2017 s. 7.

54B Part 3 does not apply

S. 54C (Heading) substituted by No. 38/2022 s. 54(1).

S. 54C inserted by No. 37/2017 s. 7.

54C Definition

S. 54C def. of difference amended by No. 38/2022 s. 54(2)(a).

difference in an account includes—

(a) a gap in that account; and

(b) an inconsistency in that account; and

(c) a difference between that account and another account.

S. 54C def. of sexual offence repealed by No. 38/2022 s. 54(2)(b).

S. 54D inserted by No. 37/2017 s. 7.

54D Direction on difference in complainant's account

(1) If, after hearing submissions from the prosecution and defence counsel (or, if the accused is unrepresented, the accused), the trial judge considers that there is evidence in the trial that suggests a difference in the complainant's account of the offence charged that is relevant to the complainant's credibility or reliability, the trial judge must direct the jury in accordance with subsection (2).

(2) In giving a direction referred to in subsection (1), the trial judge must inform the jury that—

(a) it is up to the jury to decide whether the offence charged, or any alternative offence, was committed; and

(b) differences in a complainant's account may be relevant to the jury's assessment of the complainant's credibility and reliability; and

(c) experience shows that—

(i) people may not remember all the details of a sexual offence or may not describe a sexual offence in the same way each time; and

(ii) trauma may affect different people differently, including by affecting how they recall events; and

(iii) it is common for there to be differences in accounts of a sexual offence; and

People may describe a sexual offence differently at different times, to different people or in different contexts.

(iv) both truthful and untruthful accounts of a sexual offence may contain differences; and

(d) it is up to the jury to decide—

(i) whether or not any differences in the complainant's account are important in assessing the complainant's credibility and reliability; and

(ii) whether the jury believes all, some or none of the complainant's evidence.

S. 54D(2A) inserted by No. 38/2022 s. 55.

(2A) A direction under this section may be given—

S. 54D(4) amended by No. 42/2018 s. 32.

(4) This section does not limit what the trial judge may include in any other direction to the jury in relation to evidence given by an expert witness.

Pt 5 Div. 4 (Heading and ss 54E–54H) inserted by No. 38/2022 s. 56.

Division 4—Continuation of relationship or communication after sexual offence

S. 54E inserted by No. 38/2022 s. 56.

54E Application of Division

This Division applies to a criminal proceeding that relates (wholly or partly) to a charge for a sexual offence or a charge for an offence of conspiracy or incitement to commit a sexual offence.

S. 54F inserted by No. 38/2022 s. 56.

54F Part 3 does not apply

S. 54G inserted by No. 38/2022 s. 56.

54G Definition

evidence of a post-offence relationship means evidence that suggests that, after the offence charged is alleged to have been committed, the complainant—

(a) continued a relationship with the accused; or

(b) otherwise continued to communicate with the accused.

S. 54H inserted by No. 38/2022 s. 56.

54H Direction on evidence of post-offence relationship

(1) If, before any evidence is adduced in the trial and after hearing submissions from the prosecution and defence counsel (or, if the accused is unrepresented, the accused), the trial judge considers that in the trial there is likely to be evidence of a post-offence relationship, the trial judge—

(a) must direct the jury in accordance with subsection (5) before any such evidence is adduced; and

(2) If, at any other time during the trial, the trial judge considers that there is evidence of a post-offence relationship, the trial judge must direct the jury in accordance with subsection (5) as soon as is practicable.

(3) A direction under this section may be given—

(4) The trial judge may repeat a direction under this section at any time in the trial.

(5) In giving a direction under this section, the trial judge must inform the jury that experience shows that—

S. 54H(5)(a) amended by No. 26/2023 s. 61(a).

(a) people may react differently to a sexual offence, and there is no typical, proper or normal response; and

S. 54H(5)(b) amended by No. 26/2023 s. 61(b).

(b) some people who are subjected to a sexual offence will never again contact the person who subjected them to the offence, while others—

(i) may continue a relationship with that person; or

(ii) may otherwise continue to communicate with them; and

S. 54H(5)(c) amended by No. 26/2023 s. 61(c)(i).

(c) there may be good reasons why a person who is subjected to a sexual offence—

S. 54H(5)(c)(i) amended by No. 26/2023 s. 61(c)(ii).

(i) may continue a relationship with the person who subjected them to the offence; or

(ii) may otherwise continue to communicate with that person.

(6) In giving a direction under this section, the trial judge may give an example of a good reason referred to in subsection (5)(c).

(7) An example given in accordance with subsection (6) need not be based on the evidence given in the trial.

Pt 5 Div. 5 (Heading and ss 54I–54K) inserted by No. 38/2022 s. 56.

Division 5—Whether complainant is distressed or emotional while giving evidence

S. 54I inserted by No. 38/2022 s. 56.

54I Application of Division

This Division applies to a criminal proceeding that relates (wholly or partly) to a charge for a sexual offence or a charge for an offence of conspiracy or incitement to commit a sexual offence.

S. 54J inserted by No. 38/2022 s. 56.

54J Part 3 does not apply

S. 54K inserted by No. 38/2022 s. 56.

54K Direction on whether complainant is distressed or emotional while giving evidence

(1) If the complainant is to give evidence, the trial judge must direct the jury in accordance with subsection (5) unless there are good reasons for not doing so.

A good reason may be that, while there is no question that a sexual offence was committed, the main fact in issue is whether the accused is the offender. In those circumstances, the jury may not need to assess the truthfulness of the complainant's evidence.

(2) The trial judge must give the direction before the complainant gives evidence unless there are good reasons for not doing so.

(3) In determining whether there are good reasons for—

(a) not giving the direction at all; or

(b) not giving the direction before the complainant gives evidence—

the trial judge must have regard to the submissions, if any, of the prosecution and defence counsel (or, if the accused is unrepresented, the accused).

(4) The trial judge may repeat a direction under this section at any time in the trial.

(5) In giving a direction under this section, the trial judge must inform the jury that experience shows that—

(a) because trauma affects people differently, some people may show obvious signs of emotion or distress when giving evidence about a sexual offence, while others may not; and

(b) both truthful and untruthful accounts of a sexual offence may be given with or without obvious signs of emotion or distress.

Part 6—Family violence

55 Application of Part

This Part applies to a criminal proceeding in which self-defence or duress in the context of family violence is in issue.

56 Part 3 does not apply

Part 3 does not apply to this Part.

57 Definition

In this Part—

family violence has the same meaning as in section 322J(2) of the Crimes Act 1958.

58 Request for direction on family violence

(1) Defence counsel (or, if the accused is unrepresented, the accused) may request at any time that the trial judge direct the jury on family violence in accordance with section 59 and all or specified parts of section 60.

(2) The trial judge must give the jury a requested direction on family violence, including all or specified parts of section 60 if so requested, unless there are good reasons for not doing so.

(3) If the accused is unrepresented and does not request a direction on family violence, the trial judge may give the direction in accordance with this Part if the trial judge considers that it is in the interests of justice to do so.

(4) The trial judge—

(a) must give the direction as soon as practicable after the request is made; and

(5) The trial judge may repeat a direction under this Part at any time in the trial.

S. 58(6) amended by No. 42/2018 s. 33.

(6) This Part does not limit what the trial judge may include in any other direction to the jury in relation to evidence given by an expert witness.

59 Content of direction on family violence

In giving a direction under section 58, the trial judge must inform the jury that—

(a) self-defence or duress (as the case requires) is, or is likely to be, in issue in the trial; and

(b) as a matter of law, evidence of family violence may be relevant to determining whether the accused acted in self-defence or under duress (as the case requires); and

(c) in the case of self-defence, evidence in the trial is likely to include evidence of family violence committed by the victim against the accused or another person whom the accused was defending; and

(d) in the case of duress, evidence in the trial is likely to include evidence of family violence committed by another person against the accused or a third person.

60 Additional matters for direction on family violence

In giving a direction requested under section 58, the trial judge may include any of the following matters in the direction—

(a) that family violence—

(i) is not limited to physical abuse and may include sexual abuse and psychological abuse;

(ii) may involve intimidation, harassment and threats of abuse;

(iii) may consist of a single act;

(iv) may consist of separate acts that form part of a pattern of behaviour which can amount to abuse even though some or all of those acts may, when viewed in isolation, appear to be minor or trivial;

(b) if relevant, that experience shows that—

(i) people may react differently to family violence and there is no typical, proper or normal response to family violence;

(ii) it is not uncommon for a person who has been subjected to family violence—

(A) to stay with an abusive partner after the onset of family violence, or to leave and then return to the partner;

(B) not to report family violence to police or seek assistance to stop family violence;

(iii) decisions made by a person subjected to family violence about how to address, respond to or avoid family violence may be influenced by—

(A) family violence itself;

(B) cultural, social, economic and personal factors;

(c) that, as a matter of law, evidence that the accused assaulted the victim on a previous occasion does not mean that the accused could not have been acting in self-defence or under duress (as the case requires) in relation to the offence charged.

Part 7—General directions

Pt 7 Div. 1 (Heading) inserted by No. 37/2017 s. 8.

Division 1—Proof beyond reasonable doubt

61 What must be proved beyond reasonable doubt

Unless an enactment otherwise provides, the only matters that the trial judge may direct the jury must be proved beyond reasonable doubt are—

(a) the elements of the offence charged or an alternative offence; and

(b) the absence of any relevant defence.

1 If the trial judge directs the jury about a matter referred to in paragraph (a) or (b) in the form of a factual question under section 67(2) or (3), the trial judge must direct the jury that it must be satisfied of that matter beyond reasonable doubt.

Note 2 to s. 61 amended by No. 47/2016 s. 29.

2 Section 46(4)(b) refers to specific matters that must be proved beyond reasonable doubt.

The trial judge may relate the evidence in the trial to directions under section 61 in many different ways, for example—

• when directing the jury that an element must be proved beyond reasonable doubt, the trial judge may refer to the evidence relied on by the prosecution to prove that element and direct the jury that it must be satisfied that that evidence proves that element beyond reasonable doubt; or

• where the only evidence relied on by the prosecution to prove an element is an alleged admission made by the accused, the trial judge may refer to the alleged admission and direct the jury that it must be satisfied that that evidence proves that element beyond reasonable doubt.

62 Abolition of common law obligation to give certain directions

Any rule of common law under which a trial judge in a criminal trial is required to direct the jury that a matter, other than a matter referred to in section 61, must be proved beyond reasonable doubt is abolished.

1 This provision abolishes—

• the rule attributed to Shepherd v R [1990] HCA 56; (1990) 170 CLR 573 that in appropriate cases a jury must be directed that it must be satisfied beyond reasonable doubt of an indispensable intermediate fact; and

• the rule attributed to R v Sadler [2008] VSCA 198 that a jury must be directed that it must be satisfied beyond reasonable doubt of uncharged acts that the jury would use as a step in their process of reasoning towards guilt; and

• any other rule that requires a jury to be directed that it must be satisfied beyond reasonable doubt of any matter other than a matter referred to in section 61.

S. 63 substituted by No. 38/2022 s. 57.

63 Trial judge must explain "proof beyond reasonable doubt"

(1) The trial judge must give the jury an explanation of the phrase "proof beyond reasonable doubt" unless there are good reasons for not doing so.

(2) The trial judge must give the explanation before any evidence is adduced in the trial unless there are good reasons for not doing so.

(3) In determining whether there are good reasons for—

(a) not giving the explanation at all; or

(b) not giving the explanation before any evidence is adduced in the trial—

the trial judge must have regard to the submissions, if any, of the prosecution and defence counsel (or, if the accused is unrepresented, the accused).

(4) If the trial judge determines that there are good reasons for not giving the jury the explanation before any evidence is adduced in the trial, the trial judge must give that explanation to the jury at the earliest time in the trial that the trial judge determines is appropriate.

(5) The trial judge may also give the jury the explanation if the jury asks the trial judge—

(a) a direct question about the meaning of the phrase "proof beyond reasonable doubt"; or

(b) a question that indirectly raises the meaning of that phrase.

(6) The trial judge may repeat an explanation given under this section at any time in the trial.

(7) In repeating an explanation given under this section, the trial judge is not required to give that explanation in exactly the same way that it was first given.

(8) Nothing in this section limits any other power of the trial judge to give the jury an explanation of the phrase "proof beyond reasonable doubt".

S. 64 (Heading) amended by No. 38/2022 s. 58(1).

64 How explanation may be given

S. 64(1) amended by No. 38/2022 s. 58(2).

(1) In explaining the phrase "proof beyond reasonable doubt" under section 63, the trial judge may—

(a) refer to—

(i) the presumption of innocence; and

(ii) the prosecution's obligation to prove that the accused is guilty; or

(b) indicate that it is not enough for the prosecution to persuade the jury that the accused is probably guilty or very likely to be guilty; or

(c) indicate that—

(i) it is almost impossible to prove anything with absolute certainty when reconstructing past events; and

(ii) the prosecution does not have to do so; or

(d) indicate 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

(e) indicate that a reasonable doubt is not an imaginary or fanciful doubt or an unrealistic possibility.

S. 64(2) substituted by No. 38/2022 s. 58(3).

(2) If the trial judge explains the phrase "proof beyond reasonable doubt" in response to a question asked by the jury as described in section 63(5), the trial judge may adapt the explanation to address the particular question asked.

Pt 7 Div. 2 (Heading and ss 64A–64D) inserted by No. 37/2017 s. 9.

Division 2—Perseverance and majority verdicts

S. 64A inserted by No. 37/2017 s. 9.

64A Definition

majority verdict direction means an explanation that it is possible, or may be possible in some circumstances, for the jury to return a majority verdict instead of a unanimous verdict.

Section 46 of the Juries Act 2000 provides for majority verdicts.

S. 64B inserted by No. 37/2017 s. 9.

64B Restriction on when direction to persevere may be given

The trial judge must not direct the jury to persevere to reach a unanimous verdict at the same time as (or immediately before or immediately after) the trial judge gives a majority verdict direction.

S. 64C inserted by No. 37/2017 s. 9.

64C Trial judge need not give direction to persevere before giving majority verdict direction

The trial judge may give a majority verdict direction to the jury whether or not the trial judge has previously directed the jury to persevere to reach a unanimous verdict.

R v Ahmet; DPP v Ahmet [2009] VSCA 86 includes a statement that it is preferable for the trial judge to direct the jury to persevere to reach a unanimous verdict before the trial judge gives a majority verdict direction. Under this provision, it is not necessary to do so.

S. 64D inserted by No. 37/2017 s. 9.

64D Abolition of common law rules

Any rule of common law under which a trial judge is required or permitted to direct the jury to persevere to reach a unanimous verdict at the same time as (or immediately before or immediately after) the trial judge gives a majority verdict direction is abolished.

R v Muto & Eastey [1996] 1 VR 336 and applied in
R v Ahmet; DPP v Ahmet [2009] VSCA 86.

Pt 7 Div. 3 (Heading and ss 64E–64G) inserted by No. 37/2017 s. 9.

Division 3—Jury deliberations

S. 64E inserted by No. 37/2017 s. 9.

64E Directions on order in which offences to be considered

(1) This section applies to a trial in which there is more than one offence in respect of which the jury may return a verdict.

Section 421 of the Crimes Act 1958 provides that on an indictment for murder a person found not guilty of murder may be found guilty of other offences, including manslaughter.

(2) The trial judge may direct the jury on the order in which the jury must consider the offences.

In a homicide trial, the trial judge may direct the jury to consider the offence of manslaughter only if the jury first finds the accused not guilty of murder.

(3) Nothing in subsection (2) prevents the trial judge from directing the jury on the order in which the jury may consider the offences.

S. 64F inserted by No. 37/2017 s. 9.

64F Directions on order in which elements, defences and issues in dispute to be considered

(1) The trial judge may direct the jury on the order in which it must consider the following matters—

(a) some or all of the elements of an offence charged or an alternative offence;

(b) defences to an offence charged or an alternative offence;

(c) the matters in issue;

(d) an alternative basis of complicity in the commission of an offence charged or an alternative offence.

This may take the form of an integrated direction or factual question under section 67.

(2) Nothing in subsection (1) prevents the trial judge from directing the jury on the order in which the jury may consider the matters referred to in that subsection.

S. 64G inserted by No. 37/2017 s. 9.

64G Abolition of common law rules

Any rule of common law under which a trial judge is not permitted to direct the jury on the order in which it must consider any of the following matters is abolished—

(a) the offences in respect of which the jury may return a verdict;

(b) the elements of an offence charged or an alternative offence;

(c) defences to an offence charged or to an alternative offence;

(d) the matters in issue;

(e) an alternative basis of complicity in the commission of an offence charged or an alternative offence.

Stanton v R [2003] HCA 29; (2003) 198 ALR 41 and followed in Medici v The Queen [2013] VSCA 111 and Smith v The Queen [2013] VSCA 112.

Part 8—Trial judge's summing up

65 Trial judge's obligations when summing up

In his or her summing up to the jury, the trial judge—

(a) must explain only so much of the law as is necessary for the jury to determine the issues in the trial; and

(b) must refer the jury to the way in which the prosecution and the accused have put their cases in relation to the issues in the trial but need not summarise the closing addresses of the prosecution and the accused; and

(c) need not give a summary of the evidence but, in accordance with section 66, must identify so much of the evidence as is necessary to assist the jury to determine the issues in the trial; and

(d) may use a combination of oral and written components.

66 Trial judge required to identify only evidence necessary for determination of issues

(1) The trial judge is required to identify only so much of the evidence given in the trial as is necessary to assist the jury to determine the issues in the trial.

(2) In determining whether and if so to what extent identification of evidence is necessary under subsection (1), the trial judge must have regard to—

(a) the facts in issue; and

(b) the complexity of the facts in issue; and

(c) the length of the trial; and

(d) the complexity of the evidence; and

(e) the submissions and addresses of the prosecution and the accused; and

(f) any reference to the way in which the prosecution and the accused have put their cases in relation to the issues in the trial; and

See section 65(b).

(g) any special needs or disadvantages of the jury in understanding or recalling the evidence; and

(h) any transcript of the evidence in the trial or any other document provided to assist the jury to understand the evidence.

Section 223 of the Criminal Procedure Act 2009 provides for the trial judge to give the transcript of the evidence in the trial and certain other documents to the jury for the purpose of helping the jury to understand the issues or the evidence.

(3) In addition to the requirements of subsection (2), the trial judge may have regard to any other matter that he or she considers appropriate.

67 Trial judge may give integrated directions

(1) In this section—

integrated directions means directions referred to in subsection (3).

(2) The trial judge may give to the jury directions that contain, or are in the form of, factual questions that address matters that the jury must consider or be satisfied of in order to reach a verdict, including the elements of the offence and any relevant defences.

(3) The trial judge may give integrated directions that combine the factual questions referred to in subsection (2) with—

(a) directions on the evidence and how the evidence is to be assessed; or

(b) references to the way in which the prosecution and the accused have put their cases in relation to the issues in the trial; or

(c) any evidence identified under section 66.

(4) A trial judge who addresses a matter—

(a) by a factual question need not also address the matter in any other direction; or

(b) in integrated directions need not also address the matter in directions that are not integrated directions.

Part 9—Transitional provisions

68 Transitional provisions

Schedule 1 has effect.

Pt 10 (Heading and ss 69–81) repealed by No. 14/2015 s. 81.

Schedule 1—Transitional provisions

1 Jury Directions Act 2015

(1) A provision of this Act (other than Division 1 of Part 5) applies to a trial that commences
(within the meaning of section 210 of the Criminal Procedure Act 2009) on or after the day on which that provision comes into operation.

(2) Division 1 of Part 5 applies to a proceeding that relates to a charge for an offence alleged to have been committed on or after the commencement of that Division.

(3) For the purposes of subclause (2), if an offence is alleged to have been committed between 2 dates, one before and one on or after the commencement of Division 1 of Part 5, the offence is alleged to have been committed before that commencement.

(4) Notes inserted in the Evidence Act 2008 by Division 2 of Part 10 of this Act do not form part of that Act.

Sch. 1 cl. 2 inserted by No. 47/2016 s. 30.

2 Crimes Amendment (Sexual Offences) Act 2016

(1) The amendments made to this Act by sections 27 and 28 of the Crimes Amendment (Sexual Offences) Act 2016 apply only to a trial that commences (within the meaning of section 210 of the Criminal Procedure Act 2009) on or after the day on which those sections come into operation if the offence to which the trial relates is alleged to have been committed on or after the commencement of Division 1 of Part 5.

(2) For the purposes of subsection (1), if an offence is alleged to have been committed between 2 dates, one before and one on or after the commencement of Division 1 of Part 5, it is alleged to have been committed before that commencement.

Sch. 1 cl. 3 inserted by No. 6/2017 s. 17.

3 Crimes Legislation Further Amendment Act 2017

The amendments made to this Act by Part 5 of the Crimes Legislation Further Amendment Act 2017 apply to a trial that commences (within the meaning of section 210 of the Criminal Procedure Act 2009) on or after the day on which Part 5 of the Crimes Legislation Further Amendment Act 2017 comes into operation.

Sch. 1 cl. 4 inserted by No. 37/2017 s. 10.

4 Jury Directions and Other Acts Amendment Act 2017

(1) The amendments made to this Act by a provision of the Jury Directions and Other Acts Amendment Act 2017 apply to a trial that commences (within the meaning of section 210 of the Criminal Procedure Act 2009) on or after the day on which that provision comes into operation.

(2) Section 4A as inserted by section 3 of the Jury Directions and Other Acts Amendment Act 2017 applies, on and after the commencement of section 3 of that Act, to a summary hearing, committal proceeding, appeal, case stated or special hearing referred to in section 4A(1) for which the specified day is on or after that commencement.

(3) In this section—

(a) for a committal proceeding under the Criminal Procedure Act 2009, the day on which the committal hearing commences; and

(b) for a case stated under the Criminal Procedure Act 2009 or Part 5.4 of the Children, Youth and Families Act 2005, the day of the commencement of the hearing from which the question of law arises; and

(c) in any other case, the day of the commencement of the summary hearing, the hearing of the appeal, or the special hearing (as the case requires).

Sch. 1 cl. 5 inserted by No. 42/2018 s. 34.

5 Victims and Other Legislation Amendment Act 2018

(1) The amendments made to this Act by a provision of the Victims and Other Legislation Amendment Act 2018 apply to—

(a) a trial that commences (within the meaning of the Criminal Procedure Act 2009) on or after the day on which that provision comes into operation; and

(b) a summary hearing, committal proceeding, appeal, case stated or special hearing referred to in section 4A(1) for which the specified day is on or after the day on which that provision comes into operation.

(2) In this section—

(a) for a committal proceeding under the Criminal Procedure Act 2009, the day on which the committal hearing commences; and

(b) for a case stated under the Criminal Procedure Act 2009 or Part 5.4 of the Children, Youth and Families Act 2005, the day of the commencement of the hearing from which the question of law arises; and

(c) in any other case, the day of the commencement of the summary hearing, the hearing of the appeal, or the special hearing (as the case requires).

Sch. 1 cl. 6 inserted by No. 38/2022 s. 94.

6 Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022

(1) An amendment made to this Act by a provision of Part 2 of the Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022 applies to—

(a) a trial that commences (within the meaning of the Criminal Procedure Act 2009) on or after the commencement of that provision of Part 2; or

(b) a summary hearing, committal proceeding, appeal, case stated or special hearing referred to in section 4A(1) for which the specified day is on or after the commencement of that provision of Part 2—

if the offence to which the trial, summary hearing, committal proceeding, appeal, case stated or special hearing relates is alleged to have been committed on or after the commencement of that provision of Part 2.

(2) An amendment made to section 46 or 47 by a provision of Part 4 of the Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022 applies to—

(a) a trial that commences (within the meaning of the Criminal Procedure Act 2009) on or after the commencement of that provision of Part 4; or

(b) a summary hearing, committal proceeding, appeal, case stated or special hearing referred to in section 4A(1) for which the specified day is on or after the commencement of that provision of Part 4—

if the offence to which the trial, summary hearing, committal proceeding, appeal, case stated or special hearing relates is alleged to have been committed on or after the commencement of that provision of Part 4.

Sch. 1 cl. 6(2A) inserted by No. 26/2023 s. 62(1).

(2A) On and after the commencement of Part 8 of the Justice Legislation Amendment Act 2023, subclause (2) no longer applies.

See clause 7(1) for the transitional arrangements that apply to the amendments referred to in subclause (2) on and after the commencement of Part 8 of the Justice Legislation Amendment Act 2023.

(3) For the purposes of subsections (1) and (2), if an offence is alleged to have been committed between 2 dates, one before and one on or after the commencement of either—

(a) a provision of Part 2 of the Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022; or

(b) a provision of Part 4 of that Act—

it is alleged to have been committed before that commencement.

(4) An amendment made to this Act (other than to section 46 or 47) by a provision of Part 4 of the Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022 applies only to—

(a) a trial that commences (within the meaning of the Criminal Procedure Act 2009) on or after the commencement of that provision of Part 4; or

(b) a summary hearing, committal proceeding, appeal, case stated or special hearing referred to in section 4A(1) for which the specified day is on or after the commencement of that provision of Part 4.

(5) In this section—

(a) for a committal proceeding under the Criminal Procedure Act 2009, the day on which the committal hearing commences; and

(b) for a case stated under the Criminal Procedure Act 2009 or Part 5.4 of the Children, Youth and Families Act 2005, the day of the commencement of the hearing from which the question of law arises; and

(c) in any other case, the day of the commencement of the summary hearing, the hearing of the appeal, or the special hearing (as the case requires).

Sch. 1 cl. 7 inserted by No. 26/2023 s. 62(2).

7 Justice Legislation Amendment Act 2023

(1) On and after the commencement day, an amendment referred to in clause 6(2) applies to—

(a) a trial that commences (within the meaning of the Criminal Procedure Act 2009) on or after that day; or

(b) a summary hearing, committal proceeding, appeal, case stated or special hearing referred to in section 4A(1) for which the specified day is on or after that day—

irrespective of when the offence to which the trial, summary hearing, committal proceeding, appeal, case stated or special hearing relates is alleged to have been committed.

(2) An amendment made to this Act by sections 60 and 61 of the Justice Legislation Amendment Act 2023 applies only to—

(a) a trial that commences (within the meaning of the Criminal Procedure Act 2009) on or after the commencement day; or

(b) a summary hearing, committal proceeding, appeal, case stated or special hearing referred to in section 4A(1) for which the specified day is on or after the commencement day.

(3) In this clause—

commencement day means the day on which Part 8 of the Justice Legislation Amendment Act 2023 comes into operation;

(a) for a committal proceeding under the Criminal Procedure Act 2009, the day on which the committal hearing commences; and

(b) for a case stated under the Criminal Procedure Act 2009 or Part 5.4 of the Children, Youth and Families Act 2005, the day of the commencement of the hearing from which the question of law arises; and

(c) in any other case, the day of the commencement of the summary hearing, the hearing of the appeal, or the special hearing (as the case requires).

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Endnotes

1 General information

See www.legislation.vic.gov.au for Victorian Bills, Acts and current Versions of legislation and up-to-date legislative information.

Minister's second reading speech—

Legislative Assembly: 18 March 2015

Legislative Council: 16 April 2015

The long title for the Bill for this Act was "A Bill for an Act to simplify and clarify the law on jury directions in criminal trials and for other purposes."

The Jury Directions Act 2015 was assented to on 12 May 2015 and came into operation as follows:

Sections 1, 2, Part 10 Division 4 (section 80) on 13 May 2015: section 2(1);

Sections 3–44, 48–79, 81, Schedule 1 on 29 June 2015: section 2(4);

Part 5 Division 1 (sections 45–47) on 1 July 2015: section 2(2).

INTERPRETATION OF LEGISLATION ACT 1984 (ILA)

Style changes

Section 54A of the ILA authorises the making of the style changes set out in Schedule 1 to that Act.

References to ILA s. 39B

Sidenotes which cite ILA s. 39B refer to section 39B of the ILA which provides that where an undivided section or clause of a Schedule is amended by the insertion of one or more subsections or subclauses, the original section or clause becomes subsection or subclause (1) and is amended by the insertion of the expression "(1)" at the beginning of the original section or clause.

Interpretation

As from 1 January 2001, amendments to section 36 of the ILA have the following effects:

• Headings

All headings included in an Act which is passed on or after 1 January 2001 form part of that Act. Any heading inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. This includes headings to Parts, Divisions or Subdivisions in a Schedule; sections; clauses; items; tables; columns; examples; diagrams; notes or forms. See section 36(1A)(2A).

• Examples, diagrams or notes

All examples, diagrams or notes included in an Act which is passed on or after 1 January 2001 form part of that Act. Any examples, diagrams or notes inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, form part of that Act. See section 36(3A).

• Punctuation

All punctuation included in an Act which is passed on or after 1 January 2001 forms part of that Act. Any punctuation inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. See section 36(3B).

• Provision numbers

All provision numbers included in an Act form part of that Act, whether inserted in the Act before, on or after 1 January 2001. Provision numbers include section numbers, subsection numbers, paragraphs and subparagraphs. See section 36(3C).

• Location of "legislative items"

A "legislative item" is a penalty, an example or a note. As from 13 October 2004, a legislative item relating to a provision of an Act is taken to be at the foot of that provision even if it is preceded or followed by another legislative item that relates to that provision. For example, if a penalty at the foot of a provision is followed by a note, both of these legislative items will be regarded as being at the foot of that provision. See section 36B.

• Other material

Any explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of an Act.
See section 36(3)(3D)(3E).

2 Table of Amendments

This publication incorporates amendments made to the Jury Directions Act 2015 by Acts and subordinate instruments.

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Jury Directions Act 2015, No. 14/2015

• Assent Date: 12.5.15
• Commencement Date: S. 81 on 20.6.15: s. 2(4)
• Note: S. 81 repealed Pt 10 (ss 69–81) on 29.6.16
• Current State: This information relates only to the provision/s amending the Jury Directions Act 2015

Crimes Amendment (Sexual Offences) Act 2016, No. 47/2016

| Assent Date: | 6.9.16 | | Commencement Date: | Ss 27(2), 28(2)–(4) on 26.9.16: Special Gazette (No. 289) 20.9.16 p. 1; ss 26, 27(1)(3)(4), 28(1), 29, 30 on 1.7.17: s. 2(2) |

Crimes Legislation Further Amendment Act 2017, No. 6/2017

| Assent Date: | 15.3.17 | | Commencement Date: | Ss 15–17 on 1.4.17: s. 2(2) |

Jury Directions and Other Acts Amendment Act 2017, No. 37/2017

| Assent Date: | 29.8.17 | | Commencement Date: | Ss 3–10 on 1.10.17: s. 2(3) | | Current State: | This information relates only to the provision/s amending the Jury Directions Act 2015 |

Justice Legislation Amendment (Victims) Act 2018, No. 5/2018

| Assent Date: | 27.2.18 | | Commencement Date: | S. 19 on 28.2.18: s. 2(1) |

Victims and Other Legislation Amendment Act 2018, No. 42/2018

| Assent Date: | 11.9.18 | | Commencement Date: | Ss 29–34 on 29.10.18: Special Gazette (No. 480) 16.10.18 p. 1 | | Current State: | This information relates only to the provision/s amending the Jury Directions Act 2015 |

Sex Work Decriminalisation Act 2022, No. 7/2022 (as amended by No. 38/2022)

| Assent Date: | 1.3.22 | | Commencement Date: | S. 70A on 1.12.23: s. 2(3) |

Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022, No. 38/2022

| Assent Date: | 6.9.22 | | Commencement Date: | Ss 42–58, 94 on 1.1.23: s. 2(6); ss 15, 16 on 30.7.23: s. 2(5) |

Justice Legislation Amendment Act 2023, No. 26/2023

| Assent Date: | 10.10.23 | | Commencement Date: | Ss 60–62 on 11.10.23: s. 2(1) |

Youth Justice Act 2024, No. 32/2024

| Assent Date: | 10.9.24 | | Commencement Date: | S. 835 on 30.9.25: s. 2(2) |

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3 Explanatory details

1. Note to s. 46(2): The amendment proposed by section 43 of the Justice Legislation Amendment (Victims) Act 2018, No. 5/2018 (repealed) is not included in this publication as the words "section 36" do not appear in the note at the foot of section 46(2).

Section 43 reads as follows:

43 Jury Directions Act 2015

In the note at the foot of section 46(2) to the Jury Directions Act 2015, for "section 36" substitute "Section 36". ↑