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Reform needed to ease judges' task

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FOR judges operating in this state, one of the most difficult and frustrating aspects of the entire court process is the necessary task of giving directions to juries about what they can and must consider as part of reaching a verdict. The process has become so layered with warnings and pointers that some judges, fearful of making a mistake, bundle as much as they possibly can into it, only further complicating what is already a difficult task of discernment for a jury.

Figures compiled as part of an academic survey of judges in 2006 found that after a trial lasting, say, 20 days, a judge in Victoria typically would spend as much as six hours - or more than an entire sitting day - going through the jury directions process. Some drag on for days and, in a couple of instances, for weeks. That is simply unacceptable for a court system that aspires to world's best practice. It is not the fault of the current crop of judges, though. It is the result of an overly prescriptive approach by successive governments as well as some decisions handed down in the earliest years of the Court of Appeal.

In 2009, a report by the Victorian Law Reform Commission found the state's jury directions process was ''conducive of judicial error''. Too often it manifests in decisions by the appeals court: more than half of the convictions quashed on appeal and sent to retrial in this state stem from judges' erroneous directions to juries.

Efforts for reform have been in train since 2010 under the guidance of the Jury Directions Advisory Group. Now a thumping 352-page report by Justice Mark Weinberg has proposed legislative changes on four key aspects (matters involving complicity; inferences and circumstantial evidence; evidence of other misconduct; and judicial warnings relating to unreliable evidence). Many more issues are being considered by the advisory group.

You might think all this is an esoteric problem only for the judges and those sitting on the jury. It is not. It is an issue crucial to all of us because when the administration of justice is fouled by unfortunate misdirections to juries, it leads to expensive appeals and retrials. Such failures only serve to undermine the public's confidence in the court system and the rule of law generally.

Judges are fallible, but they are often unfairly derided. When they are ridiculed for errors that emerge through the fearsomely complicated process of directing a jury, it is past time for reform. Clarity, simplicity and elegance of thought, as suggested by the Weinberg report, are urgently needed. Such sensible change cannot come soon enough for this state's justice system.

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