SIMPLIFICATION OF JURY DIRECTIONS PROJECT A REPORT TO THE JURY DIRECTIONS ADVISORY GROUP AUGUST 2012 COMPLICITY INFERENCES AND CIRCUMSTANIAL EVIDENCE OTHER MISCONDUCT EVIDENCE JURY WARNINGS/UNRELIABLE EVIDENCE SIMPLIFICATION OF JURY DIRECTIONS PROJECT A REPORT TO THE JURY DIRECTIONS ADVISORY GROUP AUGUST 2012 PREFACE: EXECUTIVE SUMMARY vi-x CHAPTER 1: INTRODUCTION: THE NEED FOR SIMPLIFICATION Background 1 Approach and Method 6 Scope of the Problem: Research into the Intelligibility of Jury Directions 7 CHAPTER 2: COMPLICITY Overview 17 The Current Law and Its Critics 18 The Need for Statutory Reform 25 A. Historical background 26 B. The derivative basis of complicity 28 C. Likiardopoulos v The Queen 30 D. Should liability in complicity be primary and not derivative? 32 The Basic Forms of Complicity 35 A. Assisting and Encouraging 35 B. Group Activity 38 C. The Charge Book approach 38 D. Problems of nomenclature 40 E. The Position in England: Secondary Parties 42 Codifying the Law of Complicity 44 Some Specific Conceptual Difficulties 45 A. The Fault Element 45 B. The Commonwealth Criminal Code 49 C. Recklessness and divergence 54 D. The New South Wales Law Reform Commission Report on Complicity 58 Miscellaneous Problems 65 A. Aiding and Abetting – Protection of the Victim 65 B. Joint Principals - Offending outside the Scope of Accessorial Liability 65 C. Innocent Agency 66 Acting in Concert – The Victorian Approach 66 A. Lowery and King 66 B. Osland v The Queen 67 Extended Common Purpose 70 A. Johns v The Queen 71 B. McAuliffe v The Queen 72 C. Gillard v The Queen 74 D. Criticisms of the doctrine 74 Confusion and Misunderstanding 78 Simplification of Jury Directions – Is Legislative Reform Required? 80 i Exceptions to Complicity 86 A. Withdrawal 86 B. Exceptions for Victims who are Complicit 88 Other Matters 88 A. Omissions 88 B. Causation 89 C. Incitement 90 A Possible Model for Statutory Reform 92 The Fair Work Act Model 93 A Guide to the Proposed Legislation 95 (i) Outline 95 (ii) Proposed Section 324 96 (iii) Proposed Subsection (1)(a) 96 (iv) Proposed Subsection (1)(b) 96 (v) Proposed Section 324(2) 98 (vi) Proposed Section 324(3)(a) 98 (vii) Proposed Section 324(3)(b) 99 (viii) Proposed Section 324A 99 (ix) Proposed Section 324A(2) 100 (x) Section 324A(3) 101 (xi) Proposed Section 324B 101 (xii) Proposed Section 324C 101 (xiii) Proposed Section 324D 102 Conclusion 102 Update i CHAPTER 3: INFERENCES AND CIRCUMSTANTIAL EVIDENCE Overview 105 Standard of Proof for Facts 106 A. General principles: Chamberlain and Shepherd 106 B. Identifying ‘Indispensable Intermediate Facts’ 108 C. Current directions about the standard of proof 110 (i) Clear Cable cases 111 (ii) Clear Chain cases 111 (iii) Ambiguous cases 112 D. Main exceptions to the Shepherd principles 113 (i) Confessions and admissions 114 (ii) Evidence of post-offence conduct 114 (iii) Tendency, coincidence and context evidence 118 E. Evidence of ‘practical importance’: A unifying theme? 124 F. Risk of prejudice or misunderstanding 126 G. Other possible exceptions to the Shepherd principles 128 (i) Motive 128 (ii) DNA evidence 129 H. Content of the ‘prudential direction’ 130 I. Issues concerning the Shepherd direction 131 (i) Difficulties with juror comprehension 132 (ii) Trespassing on the jury’s role 134 (iii) Causing the jury’s deliberations to be ‘short-circuited’ 135 (iv) No need for a direction 135 ii (v) Fertile grounds for appeal 136 J. Other jurisdictions 136 (i) New Zealand 137 (ii) Canada 137 (iii) England 139 (iv) United States 141 K. Options for reform 141 Option 1: No additional facts 142 Option 2: Objectively essential facts 142 Option 3: Sole or substantial evidence 145 Option 4: Evidence the Judge considers to be of practical importance 146 Option 5: Evidence the jury considers to be essential or significant 148 Option 6: Prejudicial facts 150 Option 7: Defined categories of evidence 151 L. Proposed Legislation 152 M Commentary on the proposed legislation 154 (i) Title 154 (ii) Proposed Section A 154 (iii) Proposed Section B 154 (iv) Proposed Section C 155 (v) Proposed Section D 156 Excluding Competing Inferences 156 A. When must a Hodge direction currently be given? 157 B. When must a Hodge warning currently be given? 160 C. Should a Hodge direction or warning be given? 161 D. Suggested Criminal Charge Book alterations 164 Other Directions About Inferences and Circumstantial Evidence 164 A. Defining ‘inference’ and ‘circumstantial evidence’ 164 (i) Should the word ‘inference’ be used? 165 (ii) Should the phrase ‘circumstantial evidence’ be used? 166 (iii) How should the concepts be explained? 167 B. Anti-speculation direction 168 C. Probative value of circumstantial evidence 170 (i) Undervaluation of circumstantial evidence 170 (ii) Overvaluation of direct evidence 174 (iii) Conclusion 174 Suggested Criminal Charge Book alterations 175 Suggested Charge 176 A. Commentary on the Suggested Charge 177 Chapter 4: OTHER MISCONDUCT EVIDENCE (Tendency, Coincidence and Context) Summary 180 Background 181 Current Charges 184 Issues Regarding Other Misconduct Evidence 188 A. Identifying when directions are required 189 (i) Understanding other misconduct evidence 191 (ii) The probative value of context evidence 198 (iii) Tendency, coincidence and relevance: Phillips v The Queen 201 iii B. Content of the directions 202 (i) Language of the warning 204 (ii) Permissible and impermissible reasoning 205 (iii) Consideration and criticism of the anti-substitution direction 208 (iv) Need for precision in directions 209 C. Effectiveness of the direction 212 (i) Continued need for the direction 215 (ii) Timing of the direction 219 (iii) Explaining the rationale for the direction 221 Other Approaches 224 (i) New South Wales 225 (ii) Queensland 228 (iii) Western Australia 230 (iv) New Zealand 232 (v) England 241 (vi) Canada 247 (vi) United States of America 251 Reform Options 254 A. Option 1 – Language changes 254 B. Option 2 – Remove the obligation to explain how the evidence may be used, while maintaining the need to warn against misuse 259 C. Option 3 – Codify and reform the necessary content of the warnings 260 D. Draft amendment provisions 262 Commentary on the Proposed Legislation 264 (i) Proposed Section A 264 (ii) Proposed Section B 265 (iii) Proposed Section C 266 (iv) Proposed Section D 267 (v) Proposed Section E 270 Sample Directions 271 (i) Tendency evidence 271 (ii) Coincidence evidence led to prove Identity – Not cross-admissible 271 (iii) Coincidence evidence led to prove Identity – Cross-admissible 272 (iv) Coincidence evidence led to prove credit – Cross-admissible 272 (v) Context evidence 273 CHAPTER 5: JURY WARNINGS / UNRELIABLE EVIDENCE Unreliable Evidence 277 A. The current law in Victoria 277 B. Why examine this topic? 280 C. ‘Evidence of a kind that may be unreliable’ 282 D. Categories of evidence listed in s 165 284 (i) Should the categories of evidence be exhaustive? 284 (ii) Should the categories be amended? 284 (iii) Hearsay/Admissions 284 (iv) Evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like 289 (v) Accomplice/criminally concerned witness 291 (vi) Prison Informers 295 (vii) Evidence of police questioning not acknowledged in writing by accused 300 iv E. No good reasons for not giving a direction 305 F. The residual common law obligation – s 165(5) 305 G. Content of a direction 309 H. Proposed Section – Unreliable Evidence Direction 310 I. Draft amendment provisions 312 (i) Section A 314 (ii) Section B(1) 314 (iii) Section B(2) 315 (iv) Section B(3) 316 (v) Section B(4) 316 (vi) Section B(5) 317 (vii) Section B(6) 317 (viii) Section B(7) 320 (ix) Section C 320 J. Possible reforms to the Criminal Charge Book 320 Warnings in relation to children’s evidence 323 A. The current law 323 B. Why examine this provision? 325 C. Proposed section – Children’s evidence directions 325 D. Draft amendment provisions 326 (i) Section D(1) 327 (ii) Section D(2) 327 (iii) Section D(3) 329 E. Possible reforms to the Criminal Charge Book 329 Corroboration warnings 331 A. The current law 331 B. Why examine this provision? 332 C. Recommendation – no change to s 164(3) 335 Responses from stakeholders 336 SCHEDULE 337 A selection of responses provided on behalf of organisations consulted during the course of preparation of the report v PREFACE EXECUTIVE SUMMARY 1.1 This report (hereafter described as ‘the Report’), prepared by Weinberg JA and staff from the Judicial College of Victoria and the Department of Justice, considers in detail a number of areas of law which currently give rise to jury directions which are extremely complex, and often described as unintelligible. For reasons that will be later explained, four areas have been chosen for close analysis. These are: (a) complicity; (b) inferences and circumstantial evidence; (c) evidence of other misconduct – tendency and coincidence; and (d) jury warnings – unreliable evidence 1.2 The Report builds upon recent work carried out in both this country and overseas upon jury directions by the Victorian Law Reform Commission and other law reform bodies. That work has concluded that jury directions are, by and large, unduly complex and in need of reform. The recommendations contained in the Report are designed to address the issues identified by those bodies and to reduce the undue complexity and length of jury directions currently given in this State. 1.3 The Report considers the approaches taken to jury directions in other jurisdictions in Australia and overseas. It highlights practices and parts of model charges in those jurisdictions which, if used as a model for reform in this State, might reduce the complexity and length of jury directions. 1.4 In preparing the Report the authors consulted with a number of judges and practitioners with substantial experience in conducting criminal trials.