Jury Directions and Other Acts Amendment Act 2017

Authorised by the Chief Parliamentary Counsel Authorised Version i Jury Directions and Other Acts Amendment Act 2017 No. 37 of 2017 TABLE OF PROVISIONS Section Page Part 1—Preliminary 1 1 Purposes 1 2 Commencement 3 Part 2—Amendment of Jury Directions Act 2015 4 3 New section 4A inserted 4 4 Direction on significant forensic disadvantage 5 5 New Divisions 7, 8, 9 and 10 of Part 4 inserted 5 6 Prohibited statements and suggestions in relation to complainants 12 7 New Division 3 of Part 5 inserted 12 8 New Division heading inserted in Part 7 15 9 New Divisions 2 and 3 of Part 7 inserted 15 10 Schedule 1 amended 18 Part 3—Amendment of Criminal Procedure Act 2009 20 11 Jury documents 20 12 New section 223A inserted 20 13 Repeal of provisions relating to giving of evidence 22 14 Section 377 substituted 22 15 New section 448 inserted 22 16 Statute law revision 23 Part 4—Amendment of Evidence Act 2008 24 17 Exception—criminal proceedings if maker available 24 18 New Part 7 of Schedule 2 inserted 25 Part 5—Amendment of Evidence (Miscellaneous Provisions) Act 1958 26 19 Section 42V repealed 26 20 New section 166 inserted 26 -- 1 of 32 -- Section Page ii Authorised by the Chief Parliamentary Counsel Part 6—Amendment of Juries Act 2000 27 21 Peremptory challenges in criminal trials 27 22 Failure to reach unanimous verdict in criminal trials 27 23 Schedule 6 amended 28 Part 7—Repeal of amending Act 29 24 Repeal of amending Act 29 ═══════════════ Endnotes 30 1 General information 30 -- 2 of 32 -- Authorised by the Chief Parliamentary Counsel Authorised Version 1 Jury Directions and Other Acts Amendment Act 2017† No. 37 of 2017 [Assented to 29 August 2017] The Parliament of Victoria enacts: Part 1—Preliminary 1 Purposes The purposes of this Act are— (a) to amend the Jury Directions Act 2015 in relation to— (i) criminal proceedings that do not involve a jury; and Victoria -- 3 of 32 -- Part 1—Preliminary Jury Directions and Other Acts Amendment Act 2017 No. 37 of 2017 2 Authorised by the Chief Parliamentary Counsel (ii) directions on evidence of a previous representation; and (iii) directions on doubts regarding the truthfulness or reliability of the evidence of a victim; and (iv) directions on the giving of evidence by an accused; and (v) directions on the interest an accused or a witness has in the outcome of a trial; and (vi) directions on a prosecution witness's motive to lie; and (vii) directions about differences in a complainant's account of an alleged sexual offence; and (viii) directions about majority verdicts and persevering to reach a unanimous verdict; and (ix) directions about the order in which certain matters are considered in jury deliberations; and (b) to amend the Criminal Procedure Act 2009— (i) to repeal provisions relating to an exception to the hearsay rule and the giving of evidence by alternative means; and (ii) to make further provision in relation to documents that are given to juries; and (c) to amend the Evidence Act 2008 in relation to an exception to the hearsay rule; and -- 4 of 32 -- Part 1—Preliminary Jury Directions and Other Acts Amendment Act 2017 No. 37 of 2017 3 Authorised by the Chief Parliamentary Counsel (d) to amend the Evidence (Miscellaneous Provisions) Act 1958 to repeal provisions relating to the giving of evidence by alternative means; and (e) to amend the Juries Act 2000 in relation to— (i) peremptory challenges in criminal trials; and (ii) the failure of a jury to reach a unanimous verdict; and (f) to make minor amendments of a statute law revision nature. 2 Commencement (1) Sections 21 and 23 come into operation on the day after the day on which this Act receives the Royal Assent. (2) Subject to subsection (3), the remaining provisions of this Act come into operation on a day or days to be proclaimed. (3) If a provision of this Act does not come into operation before 1 October 2017, it comes into operation on that day. -- 5 of 32 -- Part 2—Amendment of Jury Directions Act 2015 Jury Directions and Other Acts Amendment Act 2017 No. 37 of 2017 4 Authorised by the Chief Parliamentary Counsel Part 2—Amendment of Jury Directions Act 2015 3 New section 4A inserted After section 4 of the Jury Directions Act 2015 insert— "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 (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 -- 6 of 32 -- Part 2—Amendment of Jury Directions Act 2015 Jury Directions and Other Acts Amendment Act 2017 No. 37 of 2017 5 Authorised by the Chief Parliamentary Counsel (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.". 4 Direction on significant forensic disadvantage In section 39(3)(b)(ii) of the Jury Directions Act 2015, for "complainant's" substitute "victim's". 5 New Divisions 7, 8, 9 and 10 of Part 4 inserted After Division 6 of Part 4 of the Jury Directions Act 2015 insert— "Division 7—Previous representations 44A Definition In this Division— previous representation has the same meaning as in the Evidence Act 2008. 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. -- 7 of 32 -- Part 2—Amendment of Jury Directions Act 2015 Jury Directions and Other Acts Amendment Act 2017 No. 37 of 2017 6 Authorised by the Chief Parliamentary Counsel 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. 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. -- 8 of 32 -- Part 2—Amendment of Jury Directions Act 2015 Jury Directions and Other Acts Amendment Act 2017 No. 37 of 2017 7 Authorised by the Chief Parliamentary Counsel 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. Notes 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. 2 Section 4 applies generally to override any rule of law or practice to the contrary of this Act. Division 8—Doubts regarding truthfulness or reliability of victim's evidence 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. Note 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. -- 9 of 32 -- Part 2—Amendment of Jury Directions Act 2015 Jury Directions and Other Acts Amendment Act 2017 No. 37 of 2017 8 Authorised by the Chief Parliamentary Counsel 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. Notes 1 This provision abolishes the rule attributed to R v Markuleski (2001) 52 NSWLR 82. 2 Section 4 applies generally to override any rule of law or practice to the contrary of this Act. Division 9—Accused giving evidence, interest in outcome of trial 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. Notes 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 -- 10 of 32 -- Part 2—Amendment of Jury Directions Act 2015 Jury Directions and Other Acts Amendment Act 2017 No. 37 of 2017 9 Authorised by the Chief Parliamentary Counsel interest does or may affect the credibility of the witness or the accused. 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. Notes 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. -- 11 of 32 -- Part 2—Amendment of Jury Directions Act 2015 Jury Directions and Other Acts Amendment Act 2017 No. 37 of 2017 10 Authorised by the Chief Parliamentary Counsel 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. Note 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. 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. Notes 1 Subsection (1) abolishes the rule attributed to Robinson v R [1991] HCA 38; (1994) 180 CLR 531. -- 12 of 32 -- Part 2—Amendment of Jury Directions Act 2015 Jury Directions and Other Acts Amendment Act 2017 No. 37 of 2017 11 Authorised by the Chief Parliamentary Counsel 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. Division 10—Whether a prosecution witness has a motive to lie 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. Note 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. -- 13 of 32 -- Part 2—Amendment of Jury Directions Act 2015 Jury Directions and Other Acts Amendment Act 2017 No. 37 of 2017 12 Authorised by the Chief Parliamentary Counsel 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. (2) Any rule of common law to the contrary of subsection (1) is abolished. Notes 1 Subsection (2) abolishes directions based on Palmer v R [1998] HCA 2; 193 CLR 1. 2 Section 4 applies generally to override any rule of law or practice to the contrary of this Act.". 6 Prohibited statements and suggestions in relation to complainants In the heading to section 51 of the Jury Directions Act 2015, for "complainants" substitute "complainants, delay and unreliability". 7 New Division 3 of Part 5 inserted After Division 2 of Part 5 of the Jury Directions Act 2015 insert— "Division 3—Differences in complainant's account 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. 54B Part 3 does not apply Part 3 does not apply to this Division. -- 14 of 32 -- Part 2—Amendment of Jury Directions Act 2015 Jury Directions and Other Acts Amendment Act 2017 No. 37 of 2017 13 Authorised by the Chief Parliamentary Counsel 54C Definitions In this Division— 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; sexual offence has the same meaning as in the Criminal Procedure Act 2009. 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 -- 15 of 32 -- Part 2—Amendment of Jury Directions Act 2015 Jury Directions and Other Acts Amendment Act 2017 No. 37 of 2017 14 Authorised by the Chief Parliamentary Counsel (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 Example 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. (3) The trial judge may repeat a direction under this section at any time in the trial. (4) This section does not limit any direction that the trial judge may give the jury in relation to evidence given by an expert witness.". -- 16 of 32 -- Part 2—Amendment of Jury Directions Act 2015 Jury Directions and Other Acts Amendment Act 2017 No. 37 of 2017 15 Authorised by the Chief Parliamentary Counsel 8 New Division heading inserted in Part 7 Before section 61 of the Jury Directions Act 2015 insert the following heading— "Division 1—Proof beyond reasonable doubt". 9 New Divisions 2 and 3 of Part 7 inserted After section 64 of the Jury Directions Act 2015 insert— "Division 2—Perseverance and majority verdicts 64A Definition In this Division— 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. Note Section 46 of the Juries Act 2000 provides for majority verdicts. 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. -- 17 of 32 -- Part 2—Amendment of Jury Directions Act 2015 Jury Directions and Other Acts Amendment Act 2017 No. 37 of 2017 16 Authorised by the Chief Parliamentary Counsel 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. Note 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. 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. Notes 1 This provision abolishes the rule attributed to R v Muto & Eastey [1996] 1 VR 336 and applied in R v Ahmet; DPP v Ahmet [2009] VSCA 86. 2 Section 4 applies generally to override any rule of law or practice to the contrary of this Act. Division 3—Jury deliberations 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. -- 18 of 32 -- Part 2—Amendment of Jury Directions Act 2015 Jury Directions and Other Acts Amendment Act 2017 No. 37 of 2017 17 Authorised by the Chief Parliamentary Counsel Example 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. Example 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. 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. Note This may take the form of an integrated direction or factual question under section 67. -- 19 of 32 -- Part 2—Amendment of Jury Directions Act 2015 Jury Directions and Other Acts Amendment Act 2017 No. 37 of 2017 18 Authorised by the Chief Parliamentary Counsel (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. 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. Notes 1 This provision abolishes the rule attributed to 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. 2 Section 4 applies generally to override any rule of law or practice to the contrary of this Act.". 10 Schedule 1 amended At the end of Schedule 1 to the Jury Directions Act 2015 insert— "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 -- 20 of 32 -- Part 2—Amendment of Jury Directions Act 2015 Jury Directions and Other Acts Amendment Act 2017 No. 37 of 2017 19 Authorised by the Chief Parliamentary Counsel 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— specified day means— (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).". -- 21 of 32 -- Part 3—Amendment of Criminal Procedure Act 2009 Jury Directions and Other Acts Amendment Act 2017 No. 37 of 2017 20 Authorised by the Chief Parliamentary Counsel Part 3—Amendment of Criminal Procedure Act 2009 11 Jury documents (1) In the heading to section 223 of the Criminal Procedure Act 2009, after "documents" insert "relating to trial issues and evidence". (2) In section 223(1)(ka) of the Criminal Procedure Act 2009, after "guide" insert "specific to the trial". 12 New section 223A inserted After section 223 of the Criminal Procedure Act 2009 insert— "223A General jury guide (1) For the purpose of helping the jury to perform its functions and understand the trial process, the trial judge may order, at any time during the trial, that copies of a general jury guide are to be given to the jury in any form that the trial judge considers appropriate. (2) Despite subsection (1), if regulations referred to in subsection (5) are made, the trial judge must order, at the prescribed time (if any) during the trial, that copies of a general jury guide that complies with those regulations be given to the jury. (3) A general jury guide may contain any of the following— (a) general information about the process of criminal trials, including information about— -- 22 of 32 -- Part 3—Amendment of Criminal Procedure Act 2009 Jury Directions and Other Acts Amendment Act 2017 No. 37 of 2017 21 Authorised by the Chief Parliamentary Counsel (i) the roles of the jury, the judge and the parties; and (ii) the usual order of events in a trial; (b) general information about legal concepts that are relevant to criminal trials, including information about— (i) the presumption of innocence; and (ii) the requirement of proof beyond reasonable doubt; (c) general information about jury deliberations and processes, including information about— (i) what to do if a juror has a question; and (ii) appointing a foreperson; and (iii) ways in which the jury may wish to organise itself, discuss the evidence and the law, and vote; (d) any other general information. (4) A general jury guide may include pictures and diagrams. (5) The regulations may prescribe— (a) matters that are to be addressed in, or the form and content of, a general jury guide that must be given to the jury; and (b) the time at which that general jury guide must be given to the jury.". -- 23 of 32 -- Part 3—Amendment of Criminal Procedure Act 2009 Jury Directions and Other Acts Amendment Act 2017 No. 37 of 2017 22 Authorised by the Chief Parliamentary Counsel 13 Repeal of provisions relating to giving of evidence (1) Sections 361, 375, 375A and 382 of the Criminal Procedure Act 2009 are repealed. (2) In section 387B of the Criminal Procedure Act 2009, for "sections 378 and 382" substitute "section 378". 14 Section 377 substituted For section 377 of the Criminal Procedure Act 2009 substitute— "Note Section 377 previously provided an exception to the hearsay rule in relation to previous representations made by a complainant under 18 years in certain circumstances. This matter is now provided for in section 66 of the Evidence Act 2008.". 15 New section 448 inserted At the end of Chapter 10 of the Criminal Procedure Act 2009 insert— "448 Transitional provision—Jury Directions and Other Acts Amendment Act 2017 (1) Division 3 of Part 5.7 as amended by sections 11 and 12 of the Jury Directions and Other Acts Amendment Act 2017 applies to a trial that commences on or after the day on which those sections come into operation. (2) Part 8.2 as amended by sections 13 and 14 of the Jury Directions and Other Acts Amendment Act 2017 applies to— (a) a trial that commences on or after the day on which those sections come into operation; and -- 24 of 32 -- Part 3—Amendment of Criminal Procedure Act 2009 Jury Directions and Other Acts Amendment Act 2017 No. 37 of 2017 23 Authorised by the Chief Parliamentary Counsel (b) a summary hearing held on or after the day on which those sections come into operation if no evidence has been given in that hearing before that day.". 16 Statute law revision In section 267(6A) of the Criminal Procedure Act 2009, for "requires,." substitute "requires.". -- 25 of 32 -- Part 4—Amendment of Evidence Act 2008 Jury Directions and Other Acts Amendment Act 2017 No. 37 of 2017 24 Authorised by the Chief Parliamentary Counsel Part 4—Amendment of Evidence Act 2008 17 Exception—criminal proceedings if maker available For section 66(2) of the Evidence Act 2008 substitute— "(2) The hearsay rule does not apply to evidence of the representation that is given by the person who made the representation or a person who saw, heard or otherwise perceived the representation being made if— (a) the person who made the representation has been or is to be called to give evidence; and (b) either— (i) when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation; or (ii) the person who made the representation is a victim of an offence to which the proceeding relates and was under the age of 18 years when the representation was made. Note Subsection (2) differs from the Commonwealth Act and New South Wales Act.". -- 26 of 32 -- Part 4—Amendment of Evidence Act 2008 Jury Directions and Other Acts Amendment Act 2017 No. 37 of 2017 25 Authorised by the Chief Parliamentary Counsel 18 New Part 7 of Schedule 2 inserted At the end of Schedule 2 to the Evidence Act 2008 insert— "Part 7—Transitional provision for Jury Directions and Other Acts Amendment Act 2017 24 Application of section 66 as amended Section 66 as amended by section 17 of the Jury Directions and Other Acts Amendment Act 2017 applies to— (a) a trial that commences (within the meaning of section 210 of the Criminal Procedure Act 2009) on or after the day on which section 17 of the Jury Directions and Other Acts Amendment Act 2017 comes into operation; and (b) a summary hearing held on or after the day on which section 17 of the Jury Directions and Other Acts Amendment Act 2017 comes into operation if no evidence has been given in that hearing before that day.". -- 27 of 32 -- Part 5—Amendment of Evidence (Miscellaneous Provisions) Act 1958 Jury Directions and Other Acts Amendment Act 2017 No. 37 of 2017 26 Authorised by the Chief Parliamentary Counsel Part 5—Amendment of Evidence (Miscellaneous Provisions) Act 1958 19 Section 42V repealed Section 42V of the Evidence (Miscellaneous Provisions) Act 1958 is repealed. 20 New section 166 inserted At the end of Part VIII of the Evidence (Miscellaneous Provisions) Act 1958 insert— "166 Transitional provision—Jury Directions and Other Acts Amendment Act 2017 Division 4 of Part IIA as amended by section 19 of the Jury Directions and Other Acts Amendment Act 2017 applies to a criminal trial that commences (within the meaning of section 210 of the Criminal Procedure Act 2009) on or after the day on which section 19 of the Jury Directions and Other Acts Amendment Act 2017 comes into operation.". -- 28 of 32 -- Part 6—Amendment of Juries Act 2000 Jury Directions and Other Acts Amendment Act 2017 No. 37 of 2017 27 Authorised by the Chief Parliamentary Counsel Part 6—Amendment of Juries Act 2000 21 Peremptory challenges in criminal trials After section 39(2) of the Juries Act 2000 insert— "(2A) Each person arraigned must be given a reasonable opportunity to make each peremptory challenge that is allowed under subsection (1). (2B) Without limiting subsection (2A), each person arraigned must be given an adequate opportunity to view the face of the potential juror before the potential juror is seated. (2C) Nothing in this section requires a potential juror to walk past each person arraigned. Note The procedure of requiring potential jurors to walk past each person arraigned is known as a jury parade.". 22 Failure to reach unanimous verdict in criminal trials (1) In section 46(2) of the Juries Act 2000— (a) for "at least 6 hours" substitute "a period of time that the court thinks is reasonable, having regard to the nature and complexity of the trial,"; (b) for "subsections (3) and (4)" substitute "subsection (4)". (2) Section 46(3) of the Juries Act 2000 is repealed. (3) In section 46(5)(c) of the Juries Act 2000, for "a cumulative total of at least 6 hours deliberation on both offences" substitute "deliberating for a period of time that the court thinks is reasonable, having regard to the nature and complexity of the trial". -- 29 of 32 -- Part 6—Amendment of Juries Act 2000 Jury Directions and Other Acts Amendment Act 2017 No. 37 of 2017 28 Authorised by the Chief Parliamentary Counsel 23 Schedule 6 amended At the end of Schedule 6 to the Juries Act 2000 insert— "17 Jury Directions and Other Acts Amendment Act 2017 (1) The amendments made to section 39 by section 21 of the Jury Directions and Other Acts Amendment Act 2017 apply only in relation to a criminal trial that commences on or after the day on which section 21 of that Act comes into operation. (2) The amendments made to section 46 by section 22 of the Jury Directions and Other Acts Amendment Act 2017 apply only in relation to a criminal trial that commences on or after the day on which section 22 of that Act comes into operation.". -- 30 of 32 -- Part 7—Repeal of amending Act Jury Directions and Other Acts Amendment Act 2017 No. 37 of 2017 29 Authorised by the Chief Parliamentary Counsel Part 7—Repeal of amending Act 24 Repeal of amending Act This Act is repealed on 1 October 2018. Note The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984). ═══════════════ -- 31 of 32 -- Endnotes Jury Directions and Other Acts Amendment Act 2017 No. 37 of 2017 30 Authorised by the Chief Parliamentary Counsel Endnotes 1 General information See www.legislation.vic.gov.au for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information. † Minister's second reading speech— Legislative Assembly: 22 February 2017 Legislative Council: 2 May 2017 The long title for the Bill for this Act was "A Bill for an Act to amend the Jury Directions Act 2015, the Criminal Procedure Act 2009, the Evidence Act 2008, the Evidence (Miscellaneous Provisions) Act 1958 and the Juries Act 2000 and for other purposes." -- 32 of 32 --