Written by Conor O’Brien, partner Doogue O’Brien George Solicitors. Conor is an Accredited Specialist.
Earlier this month the Jury Directions Bill 2015 was introduced to Parliament and I, for one, am pleased to see a reasonable attempt at the simplification of trails heard in Victoria before juries. For a long while now, jury directions have been getting more complex and increasingly, more difficult for juries to understand.
The Bill addresses a number of directions that are being simplified, including;
- Delay in credibility
- What must be proved beyond reasonable doubt
- Delay in forensic disadvantage
- Unreliable evidence
Which I feel are areas that invite a level of objective clarification for those serving on a jury.
The quote of the attorney general Martin Pakula, “importantly, this will help to reduce the stress and trauma of unnecessary appeals and retrials that are experienced by victims of crime and their families” is, however, not something I can agree with.
Although it is not a popular viewpoint to have, the person most stressed in a criminal jury trial is the accused. The state is putting them on trial and is making a valid attempt to take away their liberty and put them in goal. The aim of any reforms should, in actuality, be to enhance the fairness or the jury system for the accused. The idea that the trauma of unnecessary appeals is such that you should legislate for it is, to me, an absurd proposition. Appeals show that the system is working and retrials further demonstrate that the system is working. Victoria can proudly boast a strong and admired Court of Appeal that will look at a case and have the courage to determine the need for a retrial; justice has not been served.
The basis of our system is far more complicated than simply being one where we need to cater for the alleged victim’s emotional feelings.
For those of us who have dealt with trials for years, we have witnessed so many occasions in which complainants in sexual offences lie. There are many trials where they are proven to have lied. This is a contentious issue and in no way should discount the fact that making an allegations of sexual assault is really difficult when it is true. It is acknowledged by all sensible and level-headed people that it is incredibly stressful for a victim of sexual assault to make a complaint. However, on the flipside of that coin, it is also incredibly easy to make a complaint of sexual assault that is not true. And this happens on a regular basis. We see this proven, both by the statistics of findings of not guilty by juries and also, by the ridiculous nature of some of the allegations.
There seems to be a great number of allegations made at present where the complainant between the ages of 4-6 comes forward with a complaint some 20 years or more later. Many of criminal lawyers deal with these trials and are able to establish that the alleged offender was not even present or the factual basis is just nonsense. I find the appropriate starting point is to have a very healthy scepticism about the evidence of child complainants in these situations. It seems to be almost axiomatic that a great deal of these complainants have psychological or psychiatric illness. It is, actually, an unfortunate game of chicken-and-egg whereby it is claimed that the catalyst for their problems is some offence committed when they were 4 or 5 years old. I ask you, the reader, to sit back and think about what you can remember from that age of 4, 5 and 6. Try to be honest about looking at that stage at the world from the eyes of children. And bring it to the present unadorned or untainted with events from the subsequent 20 years. If the behaviour is not traumatic, i.e. behaviour before the offending, can you honestly attest that a person remembers such a benign conversation word for word? Or, if the event involves the touching of a person without a sexualized context, then can there really be a catalyst for a strong memory of that event?
It occurs to me that we are losing something significant in our criminal justice process when these matters are being prosecuted without a good hard look at the evidence presented.
That said, all of that the work being conducted on the Bill is much to the credit of all involved. We can all agree that juries being engaged in more positive way is something that we should all be pleased about.