Warning! These directions were introduced the Jury Directions and Other Acts Amendment Act 2017. There has not yet been appellate guidance on the operation of these provisions. This information should be used with caution. Further information about the Jury Directions and Other Acts Amendment Act 2017 is available in the Department of Justice and Regulation report, ‘Jury Directions: A Jury-Centric Approach Part 2’.
Following amendments which commenced on 1 October 2017, the Jury Directions Act 2015 contains provisions for a mandatory statutory direction about how the jury assesses differences in a complainant’s account.
The requirement to give this direction only applies in cases that relate 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 (Jury Directions Act 2015 s54A).
For this purpose, ‘sexual offence’ is defined in s3 of the Criminal Procedure Act 2009 to mean
an offence under Subdivision (8A), (8B), (8C), (8D), (8E), (8F) or (8FA) of Division 1 of Part I of the Crimes Act 1958 or under any corresponding previous enactment; or
an attempt to commit an offence referred to in paragraph (a); or
an assault with intent to commit an offence referred to in paragraph (a).
The judge is only required to give the direction if, after hearing prosecution and defence submissions, the judge thinks there is evidence in the trial that suggests a difference in the complainant’s account of the alleged sexual offence that is relevant to the complainant’s credibility or reliability (Jury Directions Act 2015 s54D).
Background to the direction
This direction was introduced by the Jury Directions and Other Acts Amendment Act 2017. It applies to trials that commence on or after 1 October 2017.
The direction is intended to address common misconceptions that occur in sexual offence trials: that a ‘real’ victim would remember all details of an offence, and be consistent in how they describe the offending whenever they are asked to do so (Victoria, Parliamentary Debates, Legislative Assembly, 22 February 2017, 18 (Martin Pakula, Attorney-General); see further Department of Justice and Regulation, Jury Directions: A Jury-Centric Approach Part 2, February 2017, pp 19-22).
While it remains up to a jury to assess whether the differences are relevant to the complainant’s credibility and reliability, the directions set out in Jury Directions Act 2015 s54D(2) are intended to assist a jury to deal with any differences in the complainant’s account on an informed basis, rather than relying on unconscious misconceptions.
Meaning of difference
Jury Directions Act 2015 s54C, as amended in 2017, provides an inclusive list of what constitutes a ‘difference’ in the complainant’s account. It includes:
A gap in that account;
An inconsistency in that account; and
A difference between that account and another account.
This definition appears to cover both incomplete accounts (such as where a complainant does not reveal all alleged offending in the first interview with police) and inconsistent accounts (both inconsistencies that emerge between police statements or that emerge in the course of cross-examination). For a discussion of the significance of inconsistencies that emerge in cross-examination, see Failure to Challenge Evidence (Browne v Dunn) and Ward v R  VSCA 37.
When is the direction required?
There are two conditions which must be met before the judge is required to give a differences in account direction:
The case must be 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 (Jury Directions Act 2015 s54A); and
The judge, after hearing submissions from the prosecution and defence counsel, 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 (Jury Directions Act 2015 s54D).
Unlike many directions under the Jury Directions Act 2015, the request process in Part 3 does not apply to this direction. Instead, the onus is on the judge to identify when the direction is required. This is similar to how the direction on delay in complaint operates. See Effect of Delayed Complaint on Credit.
Timing of Direction
The direction on differences appears designed to be given after evidence of differences emerges in the trial. This may be contrasted with the direction on delay in complaint, which is designed to be given before any evidence is adduced in the trial (compare Jury Directions Act 2015 ss52 and 54D).
The Act is silent on whether the direction should be given as a direction in running when inconsistencies emerge, or whether the judge should wait until final directions. The timing of the direction may be at the discretion of the judge, taking into account matters such as the significance of the differences, the likely length of the trial and any other matters that appear relevant.
The judge may repeat the direction on differences at any time in the trial (Jury Directions Act 2015 s54D(3), as amended in 2017).
Content of the direction
Where a judge thinks that there is evidence suggesting such a difference, the judge must inform the jury that:
It is up to the jury to decide whether the offence charged, or any alternative offence, was committed; and
Differences in a complainant’s account may be relevant to the jury’s assessment of the complainant’s credibility and reliability; and
Experience shows that:
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
Trauma may affect different people differently, including by affecting how they recall events; and
It is common for there to be differences in accounts of a sexual offence; and
Both truthful and untruthful accounts of a sexual offence may contain differences; and
It is up to the jury to decide:
Whether or not any differences in the complainant’s account are important to assessing the complainant’s credibility and reliability; and
Whether they believe all, some or none of the complainant’s evidence.