News: Over a dozen High Court holdings abolished in Victoria

Yesterday, Victoria’s Parliament passed a law that overturns over a significant number of High Court holdings on the law governing criminal trials. The notes to the Jury Directions Bill 2015 state that it ‘abolishes’ (or confirms the prior abolition of) rules stated by the High Court in the following cases:

  • Pemble v R [1971] HCA 20,  Gilbert v R [2000] HCA 15 and R v Nguyen [2010] HCA 38, on jury directions on defences, offences and bases for complicity that were not argued by the prosecution or defence.
  • Edwards v R [1993] HCA 63 and Zoneff v R [2000] HCA 28, on jury directions on so-called ‘consciousness of guilt’ evidence.
  • Longman v R [1989] HCA 60Crampton v R [2000] HCA 60 and Doggett v R [2001] HCA 46, on jury directions on how the defence may have been disadvantaged due to the time elapsed between an alleged offence and the trial
  • Weissensteiner v R [1993] HCA 65Azzopardi v R [2001] HCA 25 and Dyers v R [2002] HCA 45, on jury directions on the defendant’s failure to explain evidence or to call particular witnesses at the trial
  • Kilby v R [1973] HCA 30 and Crofts v R [1996] HCA 22, on jury directions on the credibility of rape complaint evidence
  • Shepherd v R [1990] HCA 56, on the proof of facts that are indispensable to the prosecution case.

The BIll also refines other aspects of the law on jury directions that have repeatedly been addressed in the High Court, including directions on so-called ‘similar fact’ evidence, identification evidence and the meaning of ‘proof beyond reasonable doubt’.

The sheer number of cases addressed by the BIll is only part of the story. The Jury Directions Bill 2015 is actually a comprehensive repudiation of one of the High Court’s main contributions to Australia’s criminal law: its development and refinement over recent decades of every trial judge’s obligation to ensure that a trial is fair through the delivery of warnings to the jury about the dangers of some types of evidence. Despite the Court’s good intentions, its decisions on so-called ‘mandatory’ jury directions have been repeatedly criticised (notably by state appellate judges) for requiring excessive and pointless jury instructions, prompting repeated and technical appeals, and undermining the reform and enforcement of sexual offence laws. Under the new BIll, which will commence by late June this year, trial judges will generally be banned from giving any factual warnings or instructions unless requested to do so by the lawyers for the prosecution or defence. Tellingly, the main instigator and developer of this new approach were judges in Victoria’s Court of Appeal, especially Justice Mark Weinberg. The Bill passed Victoria’s Parliament with bipartisan support and no vocal opposition (although an earlier version of the Bill was defeated last year, a victim of political shenanigans.)

The Victorian parliament’s demonstration of the authority of Australia’s legislatures to abolish High Court doctrines comes as the New South Wales government considers overturning the Court’s recent ruling on the powers of that state’s anti-corruption agency and a new judgment from the Court on sexual provocation in South Australia may reignite legislative efforts to alter an earlier Court ruling on that issue. However, the power of Australian parliaments to alter Court doctrines is subject to two potential barriers. First, parliaments are restricted by the federal constitution, which the High Court interprets. It is possible (but unlikely) that the Jury Directions Bill 2015 could be challenged as a breach of constitutional doctrines on the integrity of state courts. Second,the interpretation of all statutes, including reform ones, is in the hands of Australia’s courts. The success of the Jury Directions Bill will partly depend on  a provision preserving the judge’s obligation to give directions not requested by the party if there are ‘substantial and compelling reasons’ to do so, a formulation that will likely be the subject of a future High Court ruling.

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About Jeremy Gans

Jeremy Gans is a Professor in Melbourne Law School, where he researches and teaches across all aspects of the criminal justice system. He holds higher degrees in both law and criminology. In 2007, he was appointed as the Human Rights Adviser to the Victorian Parliament's Scrutiny of Acts and Regulations Committee.