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

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.