Mark Twain once wrote of juries in the Wild West: “I desire to tamper with the jury law. I wish to so alter it as to put a premium on intelligence and character, and close the jury box against idiots, blacklegs, and people who do not read newspapers. But no doubt I shall be defeated.” (Roughing It, 1872).
Juries have been part of Victoria’s justice system since 1847. Empanelment is the process of selecting the members of a jury that will hear a case from amongst the pool of persons summoned for jury duty. In 2010-11, 63,016 Victorians were called for jury service in the Supreme and County courts, selected at random from the electoral rolls. Of these, 6857 were empanelled to serve on 616 jury trials.
Jury service in Victoria is governed by the Juries Act 2000 (Vic). This has the purposes of equitably spreading the obligation of jury service amongst the public; making juries representative of the Victorian community; and permitting the adoption of new technologies for the selection of jurors.
It is important to ensure that our justice system makes the best use of the time citizens give to attending jury duty, that their commitment is given due respect, and that the empanelment takes place in a way that best promotes procedural fairness and the interests of justice. The VLRC is considering whether procedural, administrative and legislative changes should be made to improve the system of empanelment of jurors in civil and criminal trials.
Most jury trials occur in the criminal jurisdictions of the Supreme and County Courts. In civil trials, the jury consists of six persons, with a maximum of eight if the court orders. In criminal trials, the jury consists of 12 persons, with a maximum of 14 if the court orders.
In both the civil and criminal jurisdictions, the calling in court of a jury panel is by name or, if the court directs, by number. One of the matters the Commission is asked to review is whether the calling of jurors should be by number and not by name.
In civil trials, each party is allowed to challenge peremptorily three potential jurors, and an unlimited number for cause. In criminal trials, an accused is allowed to challenge peremptorily six potential jurors if there is only one accused, five potential jurors if there are two accused, and four potential jurors if there are three or more accused. As with civil trials, in criminal trials there is no limit of challenges for cause. The prosecution may require to stand aside jurors on the same proportional basis as that stated above for accused. One of the matters the Commission is asked to review is peremptory challenges by accused and standing aside by prosecution.
Where there are more than six jurors empanelled in civil trials or more than 12 jurors empanelled in criminal trials, a ballot must be held, at the time of retirement to consider the verdict, to reduce the jury to six in civil trials and 12 in criminal trials. One of the matters the Commission is asked to review is whether the jury reduction provision should be retained.
The Attorney-General, the Hon. Robert Clark, asked the Commission to review and report on whether changes are needed to ensure that the jury empanelment process operates justly, effectively and efficiently. The terms of reference (available in full on the VLRC website) state that the review should:
• consider peremptory challenges in criminal and civil trials and the Crown right to stand aside jurors in criminal trials with regard to:
- resourcing implications
- the representativeness of the jury
- the impartiality of the jury
- procedural fairness
- the effects on jurors.
• have regard to reviews of peremptory challenges and the Crown right to stand aside jurors in other jurisdictions, both within Australia and internationally. Consider existing alternative mechanisms and recommend new procedural, administrative and legislative changes if appropriate to do so.
• consider the introduction of the practice of empanelling juries by number in every (or most) instance in the context of procedural fairness and the effects on and protection of jurors.
• consider whether it is necessary or desirable for the jury to be reduced to 12 (or 6 as the case requires) before the jury retires to consider its verdict, with particular regard to the effects on jurors.
The Commission is to report by 31 May 2014.