Contempt of Court: Report (html)

9. Juror contempt

Overview

• Jurors may commit contempt in various ways, such as refusing to answer questions, disclosing the deliberations of a jury, or conducting their own research on matters before a trial.

• Most of these kinds of contempt are also offences under the Juries Act 2000 (Vic). There is still a need to retain the law of contempt to deal with juror misconduct not covered by those offences or where it is more appropriate for it to be punished as a contempt.

• The Juries Act should be changed to make it more effective by adjusting penalties (including how penalties are imposed) and making it clear who is responsible for investigating and prosecuting offences under the Act.

• The Juries Act should be changed to ban jurors from publishing information that reveals that they are jurors.

• Jurors should be required to swear or affirm that they will not conduct any research independently and will not disclose the deliberations of the jury.

• Jurors should be encouraged to ask more questions of the judge through changes in the law and guidance.

• Judges and jurors should receive more education and guidance on the uses and impacts of social media.

What is juror contempt and what is its purpose?

9.1 Juries play a key role in the justice system in Victoria, especially in criminal trials. Jury trials safeguard the rights of the accused, ensure justice is administered according to community standards, and enable the community to participate directly in the administration of justice.^[1] The Supreme Court of Victoria and the County Court of Victoria hold trials by jury.

9.2 The law of contempt regulates the conduct of jurors through ‘juror contempt’, discussed in this chapter, and sub judice contempt, which is discussed in Chapter 10. Juror conduct is also regulated by other common law offences,^[2] the Jury Directions Act 2015 (Vic) and the Juries Act 2000 (Vic). Together, these laws protect the fairness of a trial by ensuring that juries reach verdicts on the facts and evidence before them.

9.3 Although juror contempt is often referred to as a specific form of contempt, it is not a distinct category of the law of contempt of court. Jurors can commit contempt in many different ways. For example, a juror may be dealt with for contempt for refusing to answer a question, or for refusing to be sworn or to make an affirmation. This falls within the category of contempt by conduct interfering with a court proceeding discussed in Chapter 7. This conduct is also an offence under the Juries Act.^[3]

9.4 As discussed in the consultation paper, there have been few cases in Victoria involving contempt by jurors.^[4]

Dealing with juror contempt

9.5 The Juries Act makes it an offence to:

• fail to answer a question or produce a document without a reasonable excuse when asked by the Juries Commissioner or court

• supply false or misleading information to the Juries Commissioner to evade jury service

• fail to appear for jury service

• refuse to be sworn or to make an affirmation

• impersonate a juror

• identify a person attending for jury service

• disclose or publish the deliberations of a jury

• make enquiries about trial matters, if the person is a juror or on the panel for a trial.^[5]

9.6 The Juries Act also provides that the Act does not affect the power of a court to deal with a contempt of court.^[6] This is different from the position in other states or territories, where legislation either does not expressly address the overlap with contempt,^[7] or specifies the circumstances when a juror can be dealt with for contempt.^[8]

9.7 The consultation paper asked whether the courts still needed a general power to deal with jurors for contempt, given the offences in the Juries Act and, if so, how the law should be restated.^[9]

Responses

9.8 Stakeholders addressing these questions all supported the courts’ continuing power to deal with jurors for contempt.^[10] The Commission was told that the offences in the Juries Act did not cover all possible types of juror misconduct.^[11]

9.9 Stakeholders submitted that the law of contempt provided a ‘catch all’,^[12] and enabled courts to deal with types of ‘unforeseen types of conduct’ not covered by the Juries Act.^[13] The Director of Public Prosecutions (DPP) submitted that the courts should still be able to deal with juror conduct as a contempt, even if the same conduct could be prosecuted under the Juries Act.^[14]

9.10 These views were supported by academics with expertise in juror decision making and juror behaviour. They told the Commission that a general power to punish contempt by jurors allows for flexibility in dealing with misconduct that has not been conceived of yet—and in the age of the internet, new and novel types of misconduct can always emerge.^[15]

Commission’s conclusions: courts should be able to deal with jurors for contempt

9.11 The Commission agrees that the courts that hold jury trials must be able to deal with jurors for contempt. This power is needed to address new circumstances or conduct not covered by the Juries Act or other legislation. There are no statutory criminal offences applicable to jurors who disobey their oath or do not comply with directions given by the judge during a trial.

9.12 The court should retain its power to deal with contempt by jurors under the category of contempt relevant to the misconduct. For example, a juror who refuses to be sworn or comply with a judicial direction may commit a contempt by conduct that interferes with a court proceeding (see Chapter 7).

9.13 Other juror misconduct, such as a juror making enquiries about trial matters or disclosing jury deliberations, could be dealt with under the proposed Act’s general category of contempt, discussed in Chapter 4.

9.14 The courts should continue to be able to deal with a juror for contempt where appropriate, even if the same conduct is covered by the Juries Act or other legislation. This is consistent with the approach taken by the Commission in Chapter 5.

Recommendation

66 The Supreme Court of Victoria and the County Court of Victoria should continue to be able to deal with jurors for contempt where a juror’s conduct satisfies any category of contempt specified in the proposed Act.

Reforms to the Juries Act

9.15 The consultation paper asked whether there was any need to change the Juries Act to deal with juror misconduct and if so how.^[16]

9.16 Stakeholders expressed support for the Juries Act. The Commission was told the Act made it clear to jurors what their obligations were and what conduct was permitted.^[17] The Act enabled jurors to regulate their own conduct and address misconduct by another juror.^[18]

9.17 However, stakeholders identified four issues with the Juries Act:

• Some of the offences may be more effectively penalised using an infringement notice with a fixed penalty rather than a prosecution.

• The penalty for a juror making enquiries about trial matters is too low and is inconsistent with other juror offences under the Act.

• There is a need to clarify who is responsible for investigating and prosecuting juror offences under the Act.

• There is a need to modernise the restrictions on identifying a juror.

9.18 Some of these issues extend beyond the Commission’s terms of reference. It is beyond the scope of this inquiry to consider the penalties for offences by persons other than jurors,^[19] and procedures for investigating and prosecuting other offences under the Juries Act. However, there would be benefit in the government reviewing these broader issues.

Infringement notices

9.19 Juries Victoria submitted that some of the offences in the Juries Act would be more effective if restated as offences punishable by a fine imposed by an infringement notice,^[20] rather than a fine imposed by the court.^[21] These offences were:

• failure to complete a juror questionnaire^[22]

• failure to attend for jury service as summoned^[23]

• failure to attend for jury service when empanelled as a juror.^[24]

9.20 Juries Victoria identified these offences as suitable for restatement because a juror either did or did not comply with the obligation (for example, a person either attended for jury service or did not).^[25] In New South Wales, the failure of a potential juror to attend for jury service is dealt with by ‘penalty notice’.^[26]

9.21 The Commission was told that prosecuting such offences can be time-consuming and expensive. To prosecute a failure to attend jury service, the Juries Commissioner must apply to the Supreme Court with affidavit evidence for the court to exercise its powers under its civil jurisdiction.^[27] The Juries Commissioner must also prove the failure of the juror to attend beyond reasonable doubt.^[28]

Commission’s conclusions: restate some offences as infringement offences

9.22 The Commission agrees with Juries Victoria that there are practical and procedural advantages in restating these juror offences as offences punishable by fine imposed by infringement notice (infringement offences).

9.23 To ensure these juror offences are suitable for an infringement notice, sections 67 (the failure to complete a juror questionnaire), 71(1) (the failure to attend for jury service as summoned) and 71(3) (the failure to attend for jury service when empanelled as a juror) would need to be recast as strict liability offences, with the effect that the references to ‘without reasonable excuse’ would need to be removed. Section 67 would need to be recast as a positive obligation to comply. Similar amendments would need to be made to sections 71(1) and (3) and section 71(2) would need to be removed.

9.24 Such amendments would remove the court’s discretion, for example, to sentence a person to imprisonment under the Juries Act if that person fails to attend jury service.^[29] However, as Justice Forrest has noted, ‘it is the penalty itself that delivers the real message to members of the community about this vital civic function’.^[30]

Recommendation

67 Sections 67, 71(1) and 71(3) of the Juries Act should be restated as offences punishable by fine imposed by infringement notice.

Penalty for making enquiries about trial matters

9.25 The maximum penalty for the offence under section 78A of the Juries Act of a juror or panel member making enquiries about trial matters is low compared with other juror offences under the Act. The maximum penalty for a juror or panel member committing this offence is 120 penalty units,^[31] compared to a maximum penalty under the Act of 600 penalty units or five years imprisonment for identifying a juror or disclosing juror deliberations.^[32]

9.26 The Judicial College of Victoria stated that this discrepancy made it difficult to frame guidance to jurors.^[33]

9.27 The absence of reported cases indicates that offences under the Juries Act are rarely prosecuted. The Juries Commissioner has referred suspected offences under section 78A for investigation six times since March 2012.^[34] The Juries Commissioner also advised that, given what we know about how people rely on their devices and the internet, it was reasonable to suspect that jurors conduct their own research more than we are aware of.^[35]

Commission’s conclusions: increase the penalty for making enquiries about trial matters

9.28 Given changing juror behaviour and the potential consequences, the penalty for the breach of section 78A is too low. The current penalty level does not reflect the seriousness of the potential consequences, which include discharging the jury or retrial.^[36]

9.29 The penalty should be increased to align with the maximum penalties for breach of other juror offences under the Act. That is, a maximum of 600 penalty units or five years imprisonment.

9.30 Offences are only one part of managing juror behaviour. There must also be juror education and other measures to manage juror behaviour.

Recommendation

68 The penalty for breach of section 78A of the Juries Act should be amended to align with the penalties for breach of sections 77 and 78 of the Act, with the effect that the maximum penalty for breach of section 78A should be increased to 600 penalty units or five years imprisonment.

Investigating and prosecuting offences under the Juries Act

9.31 The Juries Act provides several ways to deal with juror offences under the Act. For example, the Act provides for:

• prosecution as an indictable offence—if information or images are published that identify or can identify a person attending for jury service^[37]

• prosecution as an indictable offence, but only with the consent of the DPP—if a person publishes, or a juror discloses, the deliberations of a jury^[38]

• examination on oath by a judge—if a juror or panel member makes enquiries about trial matters^[39]

• imposition of a fine by a court ‘in a summary way’—if a person fails to attend for jury service, answer a question or produce a document, or if a person gives false or misleading answers, or refuses to be sworn or make an affirmation.^[40]

9.32 In practice, the DPP has no investigative powers, so any referral to the DPP usually requires a request to Victoria Police to investigate.

9.33 The Juries Act provides that the DPP or the Juries Commissioner may request the Chief Commissioner of Police to investigate a complaint about a disclosure of or publication about a jury deliberation. However, if a complaint is made to the Juries Commissioner during a trial, it must be referred to the trial judge.^[41]

9.34 The Juries Commissioner advised that, in relation to jurors making enquiries about trial matters, the procedure for investigating and prosecuting is ad hoc. Usually the Juries Commissioner, at the request of a judge, asks the police to investigate the matter. The Juries Commissioner also told the Commission that, in a recent case, a judge had referred the matter directly to the DPP.^[42]

Commission’s conclusions: clarify the Juries Act

9.35 To ensure greater clarity and certainty, the Act should be amended to simplify the processes for investigating and prosecuting juror offences under the Juries Act. It should specify more clearly who is empowered to undertake such investigations and prosecutions.

9.36 As Appendix K illustrates, the Juries Act creates offences for persons other than jurors and specifies a range of procedures for these different offences. Simplifying the procedures for investigation and prosecution and making them more consistent requires consideration of the Juries Act as a whole. This has implications for the resourcing of the agencies involved.

9.37 The Commission does not make any recommendations beyond requiring that the Act specify who can investigate and prosecute juror offences and, where an investigation by Victoria Police is requested, Victoria Police must report the outcome of their investigation to the requesting agency. Other stakeholders did not address this issue, which requires more consultation and consideration.

Recommendation

69 The Juries Act should be amended to expressly state who can investigate and bring a prosecution for juror offences under the Act, and to require that, where an investigation by Victoria Police is requested, Victoria Police must report to the requesting agency the outcome of their investigation.

Modernising restrictions on identifying jurors

9.38 Stakeholders identified a need to modernise the restriction in section 77 of the Juries Act that prohibits a person from identifying a person as a juror. These restrictions needed to reflect the reality of modern life, in which most people are active on social media.^[43]

9.39 As the Tasmania Law Reform Institute has noted, jurors are ‘the person on the street. It follows that they tweet, blog, post, share, message, chat, like, follow and comment like everyone else’.^[44]

9.40 Stakeholders identified several risks that arose from this changed reality:

• Jurors may self-identify themselves by, for example, posting selfies of themselves attending jury service.^[45]

• Jurors may be easier to locate online, creating a greater risk that jurors will be identified and cyberstalked or otherwise interfered with.^[46]

Commission’s conclusions: prohibit jurors from self-identifying

9.41 To ensure the identity of jurors is protected, the Juries Act should be amended to prohibit jurors (including persons called for jury service but not empanelled and released and persons who have previously attended for jury service or served as a juror) from self-publishing information or images of themselves which identify them as attending jury service; for example, by posting images of themselves in a jury room or the jury pool room. Jurors should be given early and clear advice about the prohibition and the reasons for it.

9.42 As to the risk of cyberstalking, the Commission considers this a question of interference. Such conduct can be dealt with through the laws of contempt (for example, as conduct that interferes with those involved in court proceedings discussed in Chapter 4). In serious cases and consistent with the Commission’s recommendations in Chapter 5, it may be more appropriate for such conduct to be dealt with as a criminal offence under the relevant provisions of the Crimes Act 1958 (Vic).

Recommendation

70 Section 77 of the Juries Act should be amended to expressly prohibit jurors (including persons called for jury service but not empanelled and released, and persons who have previously attended for jury service or served as a juror) from self-publishing information about or images of themselves that can identify them as a person attending for jury service.

Managing the impact of the internet on jurors

9.43 The internet has significantly changed how news is produced, circulated and accessed. Traditional media no longer dominates. Content is published and shared across different media and platforms by many more people both within and outside Victoria.^[47]

9.44 These changes affect how jurors understand evidence and directions in the courtroom.^[48]

9.45 These changes make it more difficult to protect jurors from prejudicial publicity. As discussed in Chapter 10, these changes make restrictions such as sub judice contempt less effective.

9.46 Courts and researchers are increasingly challenging the assumption that jurors need to be protected from prejudicial publicity.^[49] The courts are increasingly assuming that juries follow judicial directions and make decisions based on the evidence before them, even if they have been exposed to irrelevant or prejudicial material.^[50]

9.47 This part of the chapter considers ways to help jurors manage the risks of being exposed to prejudicial material.^[51] Chapter 10 discusses other ways for courts and the law to manage jurors who have been exposed to such material.

The juror oath

9.48 Jurors take an oath or affirmation to ‘faithfully and impartially’ try the issues before them and to ‘give a true verdict according to the evidence’.^[52] However, there is still a risk that jurors may independently access information about trials, and may make decisions based on information not presented and tested in court.^[53]

9.49 While this risk is not new, the risk has become greater in the age of the internet. It is now much easier for jurors to search for information about cases. Material is easily accessed and shared on social media,^[54] so jurors may be exposed to prejudicial material even without searching for it.

9.50 The Juries Act prohibits jurors from making enquiries about trial matters and from disclosing information about deliberations to people outside the jury.^[55]

9.51 The consultation paper identified that one way to reinforce these prohibitions would be to require jurors to swear or affirm that they would not make enquiries about trial matters or disclose information about jury deliberations.^[56] This was recommended by the Law Commission of England and Wales (Law Commission E&W) and the New Zealand Law Commission (NZ Commission).^[57]

Responses

9.52 Stakeholders divided on this proposal. The Commission was told by the Supreme Court that amending the oath and affirmation was ‘not considered likely to be an effective means of reinforcing obligations on the jury’. Rather, engagement with the jury is ’a better means of reinforcing the obligation than a recitation of additional words’.^[58]

9.53 In contrast, Victoria Legal Aid submitted that this proposal was ‘a practical approach’ that was ‘unlikely to have negative consequences’.^[59] Academics with expertise in juror decision making suggested that different methods may influence different jurors’ behaviour in different ways and swearing a direct oath not to conduct research may, for some jurors, create a more binding obligation.^[60]

Commission’s conclusions: extend the juror oath and affirmation

9.54 There is merit in extending the jurors’ oath and affirmation to a promise not to make independent enquiries about trial matters and not to disclose information about deliberations.

9.55 As the Law Commission E&W and the NZ Commission have concluded, this could reinforce the prohibitions and create a greater sense of obligation for at least some jurors.

Recommendation

71 The wording of the juror oath and affirmation in the Juries Act should be amended to specify that jurors should not independently conduct trial-related research or disclose information about deliberations.

Jury directions and questions from the jury

9.56 Trial judges give juries directions to help jurors understand their role, including the need to make decisions based only on the evidence before them. Jury directions are also often used to manage the impact of prejudicial publicity in criminal trials.^[61]

9.57 As discussed in the consultation paper, there are concerns that:

• jurors do not always understand jury directions^[62]

• jurors sometimes ignore judicial directions and carry out their own research^[63]

• jurors may come across information unintentionally^[64]

• jury directions may be counter-productive, by alerting jurors to media which they seek out.^[65]

9.58 The Law Commission E&W and the NZ Commission recommended a range of measures to manage these risks. These included:

• updating jury warnings and directions to take account of technological developments and providing specific examples^[66]

• consistently and frequently explaining to jurors why they should make their decisions based only on the evidence before them and not conduct their own research^[67]

• making it clearer to juries in directions and in legislation that jurors can ask questions and how they should do so.^[68]

9.59 The Judicial College of Victoria publishes bench books and model jury directions, including information on how to direct juries to ask questions of the judge.^[69] The Criminal Charge Book specifies that information about matters such as note taking and asking questions should be provided to a jury,^[70] and that the role of the foreperson includes asking questions of the judge.^[71]

9.60 Court Services Victoria has recently piloted a Jury Guide for Criminal Trials, which helps jury members fulfil their role. The Guide notes in relation to the judge’s role:

If you have a question you may discuss it with the other members of your jury (as they may know the answer) or, you may ask me [the presiding judge]. To ask me [the presiding judge] a question, please provide the question in writing (if possible) to my staff to give to me. If the question is urgent, bring it to the attention of my staff as soon as possible.^[72]

9.61 However, there is limited information in both the Criminal Charge Book and the Jury Guide about the kinds of question that can be asked or when the judge should give juries the opportunity to ask such questions. As the Juries Commissioner told the Commission, while members of a jury pool are told they can ask questions, they are not given specific guidance on the timing or process for doing so during the trial.^[73]

9.62 A report prepared for the Victorian Department of Justice recommended that juries be directed not to research trial matters. The directions should include references to social media, be written in plain language, and should clearly explain the consequences of not following the directions.^[74]

9.63 Accordingly, the consultation paper asked whether current jury directions adequately instructed juries on their obligations and what reforms were required.^[75]

Responses

9.64 Juries Victoria submitted that most jurors found it hard to understand why they should not research trial matters, and that the instruction was ‘inconsistent with contemporary human behaviour, where almost every piece of information is questioned’.^[76] This view was supported by academics with expertise in juror decision making and juror behaviour, who pointed out that such directions are ‘contrary to how [jurors] have been taught to learn, evaluate information and problem-solve’.^[77]

9.65 The Commission was told that ‘greater attention should be paid to improving the content, delivery and reinforcement of “do not research” instructions to jurors’.^[78] Jury directions should reflect how people engage with information and the internet, and be realistic about the risks of exposure to prejudicial material.^[79]

9.66 Stakeholders generally supported encouraging jurors to ask questions.^[80] The Supreme Court said that this approach acknowledged ‘the natural urge of jurors committed to the fact-finding task to seek out answers, but directs it in an appropriate way’.^[81]

9.67 Academics with expertise on juror decision making stated it was better to bring misunderstandings and misconceptions to light in the courtroom. Even if a judge could not answer the question, this could help the jury to understand their task.^[82] Jury questions can reveal fundamental misunderstandings or errors that can be addressed by the judge.^[83]

Commission’s conclusions: more guidance for jurors and judges

9.68 There is a need for more specific and detailed guidance for jurors, and judges on the kinds of question that jurors can ask during the trial and the timing of them. The guidance should include examples of questions. Jurors should be given regular opportunities to ask questions during a trial.

9.69 If the law made clear that jurors could ask the judge questions, it would help dissuade jurors from looking outside the courtroom for answers to their questions. Changes to the Juries Act should enable the jury foreperson, on behalf of jurors, to ask questions of the judge.

Recommendations

72 The Juries Act should be amended to expressly enable the jury foreperson to ask questions in writing of the presiding judge on behalf of a juror or jurors.

73 The Judicial College of Victoria should develop further guidance materials and, in consultation with the courts, provide specific training for judicial officers on:

• how and when to prompt a jury to ask questions of the presiding judge during a trial

• how to encourage jurors to ask questions more often, including examples of the types of question on which juries may seek answers.

Educating jurors and judges about social media

9.70 Potential jurors are given training and information about their role by Juries Victoria before they are empanelled on a jury.

9.71 The Juries Commissioner advised that, when potential jurors are summoned to a juror pool room, they are provided with an orientation that combines short videos, a verbal presentation, and questions and answers. At this time, they are formally advised of the prohibition on making enquiries about trial matters.^[84]

9.72 Once jurors are empanelled, they are also given directions by judges. The Judicial College of Victoria has published relevant guidance materials, including model jury directions.^[85] Such materials are used by the judge at his or her discretion, because ‘they are best placed to determine what is appropriate and necessary in each case’.^[86]

9.73 The Judicial College of Victoria does not provide judicial officers with training on online news and information, including social media, other than as part of the program for newly appointed officers.^[87]

9.74 The Victorian Government has recently piloted a Jury Guide for jurors to refer to during a trial. This explains why a jury must decide the case on the evidence in the court, noting that a juror must not ‘research the case or the law on the internet’^[88] or ‘make your own inquiries about the case or accused, or conduct your own legal research (do not use Google, the internet, Facebook, Twitter, social media of any sort, or look anywhere else)’.^[89]

9.75 The consultation paper asked whether there was any need to improve the training and guidance given jurors and potential jurors about their functions and duties.^[90] It also asked whether there was a need to provide particular groups, such as judicial officers and jurors, with education about the potentially negative impacts of social media on the administration of justice.^[91]

Responses

9.76 Stakeholders told the Commission that jurors ‘commonly’ do not understand that they need to evaluate the evidence before them,^[92] and that jury education had a ‘very important role’.^[93] Jurors needed to be ‘informed not only about what they must do and what they cannot do’, but also about why those rules exist.^[94]

9.77 The County Court supported more training of jurors and judicial officers, including encouraging juries to ask questions.^[95]

9.78 Juries Victoria emphasised that the messaging must be ‘seamless and consistent’.^[96]

9.79 Other stakeholders emphasised the need for more training on the potentially negative impacts of social media. Media academics emphasised that social media posed ‘intense challenges’,^[97] and Australia’s Right to Know coalition submitted that jurors should be advised of the need to manage their access and use of social media.^[98] As noted in Chapter 10, research has demonstrated that social media may also have a cumulative effect of prejudicing a trial.^[99]

9.80 Victoria Legal Aid suggested there may be benefit in training judicial officers about the ‘speed and reach of social media’.^[100] These views were echoed by the Commercial Bar Association Media Law Section Working Group, which considered that such training should extend to the broader community, including potential jurors and judicial officers.^[101]

Commission’s conclusions: more training needed

9.81 There are already significant efforts to better inform jurors. However, there is a gap in training jurors about the potential impact of online news and information, including social media.

9.82 There is a need for further training and guidance for both judges and jurors on the use and potentially negative impacts of online news and information, including social media, on the administration of justice. This should include information about the cumulative impacts of such media.

Recommendation

74 The Judicial College of Victoria and the Juries Commissioner should develop further training and guidance for judges and jurors on the use and potentially negative impacts of social media on the administration of justice.

1. See Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 60 [5.5]–[5.7]; see also Juries Commissioner v Slattery [2017] VSC 3, [23]–[28]. See generally Victorian Law Reform Commission, Jury Empanelment (Report No 27, May 2014) Ch 2.

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2. For example, there is a common law offence of ‘embracery’ (attempting to corrupt, influence, instruct or induce a jury or jurors to favour one side) and of ‘perverting the course of justice’ (conduct which may lead and is intended to lead to a miscarriage of justice). Penalties for these common law offences are set out in Crimes Act 1958 (Vic) s 320.

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3. See Juries Act 2000 (Vic) ss 68, 73.

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4. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 63 [5.22].

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5. Juries Act 2000 (Vic) ss 68–78A. See also Appendix K for a more complete list of offences in the Juries Act and a list of comparable offences in other Australian jurisdictions.

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6. Juries Act 2000 (Vic) s 84.

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7. See, eg, Jury Act 1977 (NSW).

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8. See, eg, Jury Act 1995 (Qld) ss 28(2) (obligation to comply with summons), 38(5) (supplementary jurors), 53(9) (separation of jury); Juries Act 2003 (Tas) ss 51(1) (misconduct of jurors).

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9. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 67, Questions 21–2.

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10. Submissions 11 (Victoria Legal Aid), 28 (Director of Public Prosecutions), 29 (Supreme Court of Victoria), 31 (County Court of Victoria).

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11. Submissions 11 (Victoria Legal Aid), 28 (Director of Public Prosecutions), 29 (Supreme Court of Victoria), 31 (County Court of Victoria).

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12. Submission 31 (County Court of Victoria).

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13. Submission 11 (Victoria Legal Aid).

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14. Submission 28 (Director of Public Prosecutions).

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15. Consultation 2 (Academics on juror decision making and juror contempt).

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16. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 67, Question 20.

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17. Submission 28 (Director of Public Prosecutions); Consultation 2 (Academics on juror decision making and juror contempt).

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18. Consultation 2 (Academics on juror decision-making and juror contempt).

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19. Juries Act 2000 (Vic) ss 74, 76.

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20. Courts have a discretion to impose a fine up to the maximum penalty for an offence. However, an infringement penalty is a fixed amount specified in an infringement notice, and is typically used for minor offences: see Infringements Act 2006 (Vic).

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21. Submission 25 (Juries Victoria).

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22. Juries Act 2000 (Vic) s 67.

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23. Ibid s 71(1).

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24. Ibid s 71(3).

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25. Submission 25 (Juries Victoria).

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26. Jury Act 1977 (NSW) s 66.

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27. Juries Commissioner v Slattery [2017] VSC 3 [2], [9]. As this case showed, the procedure was conducted under the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 (Vic) rr 12.09, 12.10.

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28. Juries Commissioner v Slattery [2017] VSC 3 [10].

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29. Juries Act 2000 (Vic) ss 71(1), (3).

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30. Juries Commissioner v Slattery [2017] VSC 3 [31].

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31. Juries Act 2000 (Vic) s 78A(1). The value of a penalty unit is fixed by the Monetary Units Act 2004 (Vic). A penalty unit for the 2019–20 financial year is $165.22, so 120 penalty units are equivalent to $19,826: Treasurer (Vic), ‘Monetary Units Act 2004 (Vic)—Notice under Section 6, Fixing the Value of a Fee Unit and a Penalty Unit’ in Victoria, Victoria Government Gazette, No G 14, 4 April 2019, 544.

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32. See Appendix K for a list of comparative offences and penalties in other Australian jurisdictions.

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33. Consultation 10 (Judicial College of Victoria).

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34. Consultation 4 (Juries Commissioner, Victoria).

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35. Ibid.

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36. Benbrika v The Queen [2010] VSCA 281 [214], (2010) 29 VR 593.

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37. Juries Act 2000 (Vic) s 77(4).

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38. Ibid ss 78(10), (11).

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39. Ibid ss 78A, 78B.

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40. Ibid s 81.

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41. Ibid s 78.

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42. Submission 25 (Juries Victoria).

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43. See generally Tasmania Law Reform Institute, Jurors, Social Media and the Right of an Accused to a Fair Trial (Issues Paper No 30, August 2019) 14–16 [1.3.1]–[1.3.9].

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44. Ibid 18 [1.4.4].

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45. Submission 25 (Juries Victoria).

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46. Consultation 2 (Academics on juror decision making and juror contempt).

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47. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 101–2 [7.130]–[7.133].

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48. The effect of these changes is discussed further in Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 103–4 [7.139]–[7.143].

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49. For further disussion, see ibid 97–9 [7.106]–[7.115].

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50. Ibid 97 [7.104]. As discussed in Chapter 1, the Commission has assumed that the laws of evidence, which determine when prejudicial evidence is inadmissible, will continue to apply.

    ↑

51. See ibid 107–11 [7.166]–[7.169].

    ↑

52. Juries Act 2000 (Vic) s 42, sch 3.

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53. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 63 [5.24].

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54. Ibid [5.25]–[5.26].

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55. Juries Act 2000 (Vic) s 78.

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56. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 66 [5.44].

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57. Law Commission (England and Wales), Contempt of Court (1): Juror Misconduct and Internet Publications (Report No 340, December 2013) 116 [5.35]; Law Commission (New Zealand), Reforming the Law of Contempt of Court: A Modern Statute (Report No 140, May 2017) 78 [4.41]–[4.45].

    ↑

58. Submission 29 (Supreme Court of Victoria).

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59. Submission 11 (Victoria Legal Aid).

    ↑

60. Consultation 2 (Academics on juror decision making and juror contempt).

    ↑

61. The role of jury directions is discussed further in Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 109 [7.180]–[7.183].

    ↑

62. Law Commission (New Zealand), Juries in Criminal Trials Part Two—A Summary of the Research Findings (Preliminary Paper No 37, November 1999) [7.45]; New South Wales Law Reform Commission, Contempt by Publication (Report No 100, June 2003) 29 [2.50]; Jacqueline Horan, Juries in the 21st Century (The Federation Press, 2012) 73, 186.

    ↑

63. See, eg, Benbrika v The Queen [2010] VSCA 281 [214]; Martin v The Queen [2010] VSCA 153 [57]–[58], (2010) 29 VR 579.

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64. Elizabeth Greene and Jodie O’Leary, ‘Ensuring a Fair Trial for an Accused in a Digital Era: Lessons for Australia’ in Patrick Keyzer, Jane Johnson and Mark Pearson (eds), The Courts and the Media: Challenges in the Era of Digital and Social Media (Halstead Press, 2012) 116.

    ↑

65. Ibid citing V Gordon Rose and James R P Ogloff, ‘Challenge for Cause in Canadian Criminal Jury Trials: Legal and Psychological Perspectives’ (2002) 46 Criminal Law Quarterly 210, 236.

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66. Law Commission (England and Wales), Contempt of Court (1): Juror Misconduct and Internet Publications (Report No 340, December 2013) 113 [5.24].

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67. Law Commission (New Zealand), Reforming the Law of Contempt of Court: A Modern Statute (Report No 140, May 2017) 79 [4.52].

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68. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 67 [5.49]–[5.50]; see also Law Commission (England and Wales), Contempt of Court (1): Juror Misconduct and Internet Publications (Report No 340, December 2013) 117 [5.39]; Law Commission (New Zealand), Reforming the Law of Contempt of Court: A Modern Statute (Report No 140, May 2017) 80 [4.57].

    ↑

69. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 67 [5.51].

    ↑

70. Judicial College of Victoria, ‘1.1 Introductory Remarks’, Criminal Charge Book (Online Manual, 15 June 2007) <https://www.judicialcollege.vic.edu.au/eManuals/CCB/index.htm#1262.htm>.

    ↑

71. Judicial College of Victoria, ‘1.3.1 Charge: Selecting a Foreperson’, Criminal Charge Book (Online Manual, 14 November 2006) <https://www.judicialcollege.vic.edu.au/eManuals/CCB/index.htm#1275.htm>.

    ↑

72. Court Services Victoria, Jury Guide for Criminal Trials (2019) 5.

    ↑

73. Consultation 4 (Juries Commissioner, Victoria).

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74. Jane Johnston et al, Juries and Social Media: A Report Prepared for the Victorian Department of Justice (Report, January 2013) Recommendation 1.

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75. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 68, Question 23.

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76. Submission 25 (Juries Victoria).

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77. Consultation 2 (Academics on juror decision making and juror contempt).

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78. Submission 6 (Professors Mark Pearson, Patrick Keyzer, Anne Wallace and Associate Professor Jane Johnston).

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79. Consultation 11 (Professor James Ogloff).

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80. As well as those cited below, see Submission 11 (Victoria Legal Aid).

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81. Submission 29 (Supreme Court of Victoria).

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82. Consultation 2 (Academics on juror decision making and juror contempt).

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83. Consultation 11 (Professor James Ogloff).

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84. The documents received before a person attends a jury pool room also advise potential jurors to visit the Juries Victoria website for further information: Submission 25 (Juries Victoria).

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85. Judicial College of Victoria, Criminal Charge Book (Online Manual, 2019) <https://www.judicialcollege.vic.edu.au/eManuals/CCB/index.htm#19193.htm>.

    ↑

86. Judicial College of Victoria, ‘How to Use This Publication’, Criminal Charge Book (Online Manual, 15 June 2007) <https://www.judicialcollege.vic.edu.au/eManuals/CCB/index.htm#1262.htm>.

    ↑

87. Consultation 10 (Judicial College of Victoria).

    ↑

88. Court Services Victoria, Jury Guide for Criminal Trials (2019) 8.

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89. Ibid 11.

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90. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 68, Question 24.

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91. Ibid 111, Question 30.

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92. Consultation 11 (Professor James Ogloff).

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93. Submission 29 (Supreme Court of Victoria).

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94. Ibid.

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95. Submission 31 (County Court of Victoria).

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96. Submission 25 (Juries Victoria).

    ↑

97. Submission 6 (Professors Mark Pearson, Patrick Keyzer, Anne Wallace and Associate Professor Jane Johnston).

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98. Submission 27 (Australia’s Right to Know coalition).

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99. Submission 8 (Rachel Jane Hews).

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100. Submission 11 (Victoria Legal Aid).

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101. Submission 18 (Commercial Bar Association Media Law Section Working Group).

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