28.3 In jury trials, the judge directs the jury as to the legal rules that it must apply to the evidence, including any legal limits on the use it may make of the evidence. This task also encompasses a responsibility to give an appropriate warning or caution where acting upon particular evidence involves potential ‘dangers’.
28.4 Where a warning is required, this is usually in respect of legal matters about which the court is said to have ‘special experience’ not possessed by members of the jury. The duty of a trial judge to give appropriate and adequate warnings stems from the overriding duty to ensure a fair trial. The failure to give an appropriate jury warning may lead to a miscarriage of justice.
28.5 Judges are required to give a number of specific, and sometimes quite complex, jury directions in criminal trials. These reflect both common law and statutory developments in the criminal law.
28.6 In this Inquiry, the ALRC and New South Wales Law Reform Commission (NSWLRC) only consider warnings about unreliable evidence and corroboration, and warnings about delay in complaint, in the context of sexual assault proceedings.
28.7 The Tasmania Law Reform Institute (TLRI) delivered a report on jury warnings in sexual offences cases relating to delay in complaint in 2006. In 2009 the Victorian and Queensland law reform commissions each released completed reviews of directions and warnings given by judges to juries in criminal trials. The NSWLRC’s inquiry into jury directions is ongoing.
28.8 The purpose of jury warnings in the context of sexual assault has changed over time. Historically, they served to protect the accused against an unfair conviction. Increasingly, however, they serve to ‘counter myths about sexual assault and to ensure that complainants, as well as people charged with sexual offences, are treated fairly’.
28.9 In a sexual assault trial, numerous complex directions and warnings ‘which focus on the unique characteristics of sexual assault such as delay, one witness to the offence and a lack of corroborating evidence’ may be required. The duties of the trial judge to direct the jury in a manner which is clear, intelligible, relevant, brief and insulated from appeal, and the duty of jurors to comprehend and apply each direction are problematic to discharge.
28.10 The Commissions recognise that community knowledge about sexual assault, especially in the family violence context, is limited and susceptible to influence by inaccurate misconceptions and myths. As members of the judiciary and jury are also members of the community, it stands to reason that they are vulnerable to be influenced by inaccurate understandings in making an assessment of a sexual assault case. Jury directions
go some way in providing jury members with accurate, objective information on sexual assault, and may assist in counteracting any misperceptions or adherence to rape myths in jury members or members of the judiciary.
 Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Uniform Evidence Law, Report 102, NSWLRC Report 112, VLRC FR (2005), [18.1]–[18.2].
 Queensland Law Reform Commission, A Review of Jury Directions: Report, Report 66 (2009), 50.
 Tasmania Law Reform Institute, Warnings in Sexual Offences Cases Relating to Delay in Complaint, Final Report 8 (2006).
 Victorian Law Reform Commission, Jury Directions: Final Report (2009); Queensland Law Reform Commission, A Review of Jury Directions: Report, Report 66 (2009).
 New South Wales Law Reform Commission, Jury Directions, Consultation Paper 4 (2008).
 Victorian Law Reform Commission, Sexual Offences: Final Report (2004), [7.7] (footnotes omitted). For a discussion of the popular myths surrounding sexual assault, see D Lievore, Non-Reporting and Hidden Recording of Sexual Assault: An International Review (2003), prepared for the Commonwealth Office of the Status of Women; D Boniface, ‘Ruining a Good Boy for the Sake of a Bad Girl: False Accusation Theory in Sexual Offences, and New South Wales Limitations Periods—Gone But Not Forgotten’ (1994) 6 Current Issues in Criminal Justice 54; A Cossins, ‘Complaints of Child Sexual Abuse: Too Easy to Make or Too Difficult to Prove?’ (2001) 34 Australian and New Zealand Journal of Criminology 149.
 A Cossins, Alternative Models for Prosecuting Child Sex Offences in Australia (2010), prepared for the National Child Sexual Assault Reform Committee, 67.
 For a summary of both the common law and uniform Evidence Act directions, which highlights the complexity of a trial judge’s task see, R v BWT (2002) 54 NSWLR 241, 250–251.
 Australian Institute of Family Studies, Submission FV 222, 2 July 2010.