Mandatory Jury Directions in Sexual Assault Trials in Victoria: Less a Model than a Cautionary Tale?

(2014) 38 Criminal Law Journal 287-306

20 Pages Posted: 28 Jun 2015

See all articles by Marilyn McMahon

Marilyn McMahon

Deakin University, Geelong, Australia - Deakin Law School

John Willis

La Trobe University - Melbourne Campus

Date Written: 2014

Abstract

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.

Keywords: Mandatory jury directions, trials of sexual offences

Suggested Citation

McMahon, Marilyn and Willis, John, Mandatory Jury Directions in Sexual Assault Trials in Victoria: Less a Model than a Cautionary Tale? (2014). (2014) 38 Criminal Law Journal 287-306, Available at SSRN: https://ssrn.com/abstract=2623900

Marilyn McMahon (Contact Author)

Deakin University, Geelong, Australia - Deakin Law School ( email )

221 Burwood Highway
Burwood, Victoria 3125
Australia
61392446184 (Phone)

John Willis

La Trobe University - Melbourne Campus ( email )

Australia

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