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Mandatory jury directions in sexual assault trials in Victoria: less a model than a cautionary tale?

journal contribution
posted on 2014-01-01, 00:00 authored by Marilyn McMahonMarilyn McMahon, J Willis
Jury directions in relation to the issue of consent in trials of sexual offence cases are mandated in two jurisdictions in Australia (Victoria and the Northern Territory). The Australian Law Reform Commission, in conjunction with the New South Wales Law Reform Commission, has recommended that provisions similar to those in Victoria should be contained in relevant legislation in all States and Territories. However, a recent series of cases in Victoria has revealed significant problems in relation to the mandatory jury directions. These difficulties have generated increasingly elaborate and complex directions. The complexity of these directions not only presents considerable challenges for judges but also may overwhelm, rather than assist, members of the jury. The Court of Appeal of Victoria has called for “urgent and wholesale reform”. In the light of these concerns, it is suggested that the Victorian mandatory directions do not provide a model for other jurisdictions. Rather, the Victorian experience can be seen as a cautionary tale of the problems and pitfalls of such directions. Recently, the Victorian government has passed the Jury Directions Act 2013. This Act sets out “guiding principles” that should determine the content, and use, of jury directions. These guiding principles should form the basis for any jury directions with respect to sexual offences.

History

Journal

Criminal law journal

Volume

38

Pagination

287-306

Location

Rozelle, NSW

ISSN

0314-1160

Language

English

Publication classification

C1 Refereed article in a scholarly journal, C Journal article

Copyright notice

2014, Law Book Co

Issue

5

Publisher

Lawbook Co.

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