Jury Empanelment: Consultation Paper (html)

4. Calling the panel by number or name

The law in Australia

4.1 The mode of calling the panel varies across jurisdictions. See Appendix C.

Victoria

4.2 Prior to 2000, there was no option to call the panel by number in Victoria.

4.3 The original provision to enable the panel to be called by number rather than name was introduced in the Juries Act 2000 (Vic) (Juries Act). This provision enabled a court to direct that the panel be called by number if it considered ‘that for security or other reasons the names on a panel should not be read out in open court’.^[1]

4.4 This provision was amended in 2006 to provide that a judge may direct that the jury panel be called by number rather than name ‘if the court considers that the names on a panel should not be read out in open court’.^[2]

Other Australian jurisdictions

4.5 Queensland and Tasmania provide that a jury panel may be called by number only if the judge considers that ‘for security or other reasons, the persons’ names should not be read out in open court’. ^[3]

4.6 In New South Wales and Western Australia, panels are called by number only.^[4]

4.7 In the Australian Capital Territory, the Northern Territory and South Australia, the panel is called by name.^[5] There is no provision for the calling of a panel by number.

The criteria for calling the panel by number rather than name

4.8 As noted at [4.3], in Victoria, prior to October 2006, a court could only call a panel by number for ‘security or other reasons’, as is currently the case in Queensland and Tasmania.

4.9 An amendment to the Juries Act in 2006 removed the reference to ‘security or other reasons’, and instead provided that numbers may be ordered ‘if the court considers names should not be read out in open court’.^[6]

4.10 The 2006 amendment was likely a response to a line of cases that considered the application of section 31(3) of the Juries Act and the requirement that the decision be justified by reference to ‘security or other reasons’. In one of those cases, DPP v Ivanovic,^[7] there was no argument raised in relation to the security of jurors. In the other three cases, the security of jurors was raised.

4.11 In Ivanovic, the prosecution applied for the panel to be called by number, following the discharge of the previous jury as a result of the jury list for that jury being misplaced. In that case, the court ruled that no special reason was required for the calling of the panel by number rather than name. Rather, the court considered that ‘[t]he requirement of “other reason” is satisfied if the court considers it is good management to use numbers rather than names’.^[8]

4.12 The security of jurors was raised in the first case to consider section 31(3) of the Juries Act, R v Juric,^[9] and in the subsequent cases of R v Goldman^[10] and R v Strawhorn.^[11]

4.13 In Juric, the defence applied to revoke an order that the jurors be identified by number which the court had made in relation to the previous discharged jury. The court did not make a definitive finding on the security risk to jurors, but ordered the panel be called by number as a precaution against juror intimidation.

4.14 In Goldman, the Crown argued that, as the accused had attempted to interfere with a witness, there were grounds to consider that the accused and his associates (with whom he had been indicted to stand trial for burglary and theft in other proceedings) may try to interfere with the jury. The court in Goldman found that there was a risk of interference with the jurors and that both the Crown and defence case could lead jurors to be concerned about their security. Consequently, the Court considered it was appropriate to empanel by number.

4.15 In Strawhorn, the application was made on the basis that the Crown case would involve evidence relating to high-profile gangland members and activities, and that this could give the jurors the impression that their security was at risk. The court in Strawhorn did not make findings on the security risk to jurors, but rather based its decision on being satisfied that there was ‘good reason’ to empanel by number.^[12]

4.16 These cases highlight the difficulty associated with the requirement that the decision to empanel by number be justified by reference to ‘security or other reasons’. The cases show that even though concern for security was not a requirement under this formulation, it was perceived to be so, both by the Crown (which in Goldman and Strawhorn made the application on that basis) and the defence (which opposed the practice in each case on the grounds that it could prejudice the jury against the accused).

4.17 The explanatory memorandum for the 2006 amendment explains that the amendment seeks to place number as a juror identifier on an equal footing to name to assure jurors that their privacy and security will be protected. This purpose clearly focuses on the perceptions of jurors rather than the need for the judge or a party to show that an objective security risk exists. It states:^[13]

The amendment will promote the use of this capability by judicial officers by ensuring that it need not be formally justified in reference to any rationale but instead has equal standing at law with the use of names as juror identifiers. This is necessary in order to respond to heightened calls to protect the privacy and security of prospective jurors who may otherwise feel personally exposed and/or at risk through their participation in the

trial process.

4.18 It is unclear whether the provision as drafted meets the stated intention of placing the calling of the panel by number on an ‘equal standing at law’ with the calling of jurors by name, as it appears to favour name as the default position.

The practice in Victoria

4.19 The Juries Commissioner’s Office (JCO) has advised that its policy for balloting jurors onto a panel is to always ballot by number.

4.20 However, whether a panel is called by name or number in court varies according to the judge’s decision. The Commission’s preliminary consultation with judges and legal practitioners confirmed that some judges empanel exclusively by number, some exclusively by name, and others usually by name unless it is a particularly high-profile case. For example, in the recent Supreme Court case of R v Xypolitos the jury was discharged after expressing concerns to the judge about their names being called in court. In explaining her decision to discharge the jury, the judge stated:^[14]

My practice is to empanel by name and occupation, and, indeed, an application has to be made for a jury to be empanelled by number and there have to be proper reasons for that…There’s nothing about the circumstances of this case, there’s nothing about the accused that would render it necessary for a jury to be empanelled by number.

As noted at [4.9], since 2006, the Juries Act has not required that there be reasons for the court to direct that the panel be called by number.

4.21 The defence practitioners consulted by the Commission considered that the practice of calling by number was increasing. Some defence practitioners said that some judges ask for the parties’ views when the judge proposes to empanel by number.

4.22 As the cases cited above show, the parties may also make an application for empanelment to be by number.

Jurors’ preferences

4.23 A significant majority of jurors who responded to the JCO juror feedback survey in both 2011 and 2013 stated that they would prefer to be empanelled by number, rather than

by name.

4.24 The results from the survey are set out in Table A.

Table A: Preferred empanelment mode

^[15][16]

4.25 The juror feedback survey results from 2013 show that, while still a minority, a significantly higher proportion of jurors in regional areas prefer to be empanelled by name (30.59 per cent) than in Melbourne (12.51 per cent).

4.26 A possible reason why a higher percentage of jurors prefer to be empanelled by name in regional areas than in Melbourne may be that a name can help to identify whether a proposed juror knows one of the parties, witnesses or lawyers.^[17] This issue is more salient in regional areas than in Melbourne because of the comparative size of the populations. The use of name as an aid to identify knowledge of a party is discussed in more detail

at [4.32].

4.27 The juror feedback surveys also show that safety and security are of concern to jurors. The survey asked respondents to rate the most important aspects of the service provided by the court and the JCO. ‘Safety and security’ was rated one of the top two most important aspects for 14 per cent of respondents in 2011 and for 31 per cent in 2013.^[18] Respondents who had been empanelled were more likely to consider safety and security to be important than those who had only been in the jury pool (17 per cent for empanelled jurors compared with 11 per cent for pool jurors in 2011; and 21.7 per cent for empanelled jurors compared with 15.5 per cent for pool jurors in 2013).

The arguments for calling the panel by number

4.28 The main arguments for calling the panel by number are:

• It provides jurors with a level of comfort that they will not be at risk by serving

on a jury.

• The juror’s name does not provide any information that is relevant or useful

for the trial.

4.29 The decision in R v Xypolitos referred to at [4.20] illustrates the first point. In that case, the judge ordered that the jury be discharged following concerns raised by jurors, in a note handed to the judge, about being empanelled by name. The judge ordered the discharge because the jury’s concerns could be viewed as being prejudicial towards the accused.^[19]

The arguments against calling the panel by number

4.30 All the defence practitioners and civil law practitioners that the Commission consulted said that they preferred the panel to be called by name.

4.31 The following three arguments were made against calling a panel by number:

• Name may be used as a prompt for recognising a prospective juror.

• Name may provide information useful for a peremptory challenge.

• Calling by number can prejudice the accused.

Name as a prompt for recognising a prospective juror

4.32 Some defence practitioners consulted by the Commission stated that calling the panel by name may help them to work out whether they know the prospective juror. Jurors who know a party, a witness or a legal practitioner in the case should seek to be excused, but sometimes this does not occur, as the juror may not recognise the person. If an empanelled juror realises afterwards that they know a party, witness or legal practitioner on the case, the jury may be discharged.

4.33 This issue can also arise where jurors are called by name (that is, where the prospective juror and the legal practitioner do not recognise each other’s names). However, the legal practitioners who expressed this view considered that providing the person’s name reduces the risk of this occurring.

4.34 The Commission was told by one practitioner who had practised in the regions that calling by name is especially important in regional areas where the likelihood of jurors knowing a party, witness or legal practitioner was higher because of the smaller populations.

Name as the basis for exercising a peremptory challenge

4.35 All the defence practitioners and civil law practitioners consulted by the Commission stated that they sometimes used name as a basis for peremptory challenges where it was considered that nationality or ethnicity could affect the juror’s impartiality. All the legal practitioners acknowledged that a person’s name is an imperfect tool for judging a person’s ethnicity, and that ethnicity is an imperfect tool for judging a person’s values or sympathies. However, they stated that they sometimes used name to exclude a juror of the apparent same nationality or ethnicity, or of a nationality or ethnicity considered to be antagonistic to the accused or plaintiff (in civil matters) as a ‘risk management’ strategy.

4.36 This argument was also made by defence counsel in the cases of Juric, Goldman and Strawhorn discussed above.

4.37 The calling of the panel by number was challenged in the case of R v Ronen^[20] on the ground that it was contrary to the right to a jury trial in section 80 of the Constitution.^[21] The defence argument was based on the ‘right’ to know the names (and occupations)^[22] of prospective jurors in order to be able to properly exercise both their peremptory challenges and any challenge for cause. Defence counsel’s argument was summarised as follows: ^[23]

accused persons are entitled to know enough ‘to disqualify people who for their own reasons they consider will not render a fair judgment’. He argued that the prohibition against the provision of names and occupations of potential jurors meant that accused persons were deprived of that right. He submitted that, without the names and occupations of potential jury members, the challenges, both peremptory and for cause, could not properly be exercised and therefore, without that information, a proper jury trial according to law would not take place.

4.38 The court considered the history of the provision of a prospective juror’s name to the accused and concluded that there was no right to this information, even though it had been a historical practice to call prospective jurors by name. Consequently, the court considered that access to the names of prospective jurors was not an ‘essential feature’ of a jury trial for the purpose of section 80.^[24]

Calling by number can prejudice the accused

4.39 Some defence practitioners consulted by the Commission considered that calling the panel by number may give the impression that the accused is dangerous and may pose a threat to jury members. This argument was made by the defence in Juric. This issue was not raised by the civil law practitioners the Commission consulted.

4.40 Some defence practitioners considered that the perception that the accused is dangerous may be heightened where some juries are empanelled by number and others by name according to the order of the judge (as is currently the case in Victoria). If a juror is aware that they could be empanelled by number or name, and they are subsequently empanelled by number, they may think it is because the accused in the trial they are to sit on is particularly dangerous compared with other accused whose juries are empanelled by name. However, it is the practice of some judges who order empanelment by number to state to the panel that the process has nothing to do with the case or the parties and is the usual practice in that court.

4.41 On this basis, there was support from some defence practitioners for the position that, if empanelment by number is to remain in Victoria, then the option to empanel by name should be removed so that all accused are treated the same.

Questions

20 Should judges be required to call the panel:

a) only by name?

b) only by number?

c) either by name or number?

21 If judges should have a choice to call the panel by name or number:

a) Should the Juries Act 2000 (Vic) specify one of these methods as the

preferred method?

b) If yes, which method should be the preferred method?

22 If judges depart from the preferred method:

a) Should they have to provide reasons for doing so?

b) If yes, what statutory criteria or principles should guide that decision?

1. Juries Act 2000 (Vic) s 31(3), as enacted.

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2. Juries Act 2000 (Vic) s 31(3), as amended by Justice Legislation (Further Amendment) Act 2006 (Vic) s 30.

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3. Jury Act 1995 (Qld) s 41; Juries Act 2003 (Tas) s 29(7).

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4. Jury Act 1977 (NSW) ss 48–49; Juries Act 1957 (WA) ss 36–36A.

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5. Juries Act 1967 (ACT) s 31; Juries Act 1963 (NT) s 37, s 39; Juries Act 1927 (SA) s 46.

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6. Justice Legislation (Further Amendment) Act 2006 (Vic) s 30.

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7. DPP v Ivanovic [2003] VSC 388 (15 September 2003) (Ivanovic).

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8. Ibid [6].

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9. R v Juric, Ruling (Calling of Jury Panel by Numbers) (Unreported, Supreme Court of Victoria, Nettle J, 12 August 2003) (Juric).

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10. R v Goldman [2004] VSC 166 (5 March 2004) (Goldman).

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11. R v Strawhorn [2006] VSC 251 (21 June 2006) (Strawhorn).

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12. Ibid [12].

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13. Explanatory Memorandum, Justice Legislation (Further Amendment) Bill 2006, 14.

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14. Transcript of Proceedings, R v Xypolitos (Supreme Court, Curtain J, 14 August 2013) 512.

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15. Data for the regions is not available for 2011, as the survey was not conducted in regional areas in 2011.

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16. These figures do not add up to 100% as the remaining responses were ‘I don’t know’ (8.42%) or invalid (6.92%).

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17. The Commission notes that while knowledge of a legal practitioner acting in the case is not expressly included in section 32 of the Juries Act 2000 (Vic) as a reason to seek to be excused, the judge’s discretion to excuse is broad. The Commission understands that some courts tell the panel that knowledge of a legal practitioner acting in the case is a reason to seek to be excused.

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18. The most important aspect in both 2011 and 2013 was ‘How staff dealt with jurors’. ‘Safety and security’ was rated the third most important aspect in both 2011 and 2013, after ‘information about jury service’.

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19. Transcript of Proceedings, R v Xypolitos (Supreme Court, Curtain J, 14 August 2013) 516.

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20. R (Commonwealth) v Ronen [2004] NSWCCA 176 (11 June 2004) [35].

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21. This right is discussed in Chapter 2.

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22. The case challenged the Jury Act 1977 (NSW) that requires empanelment by number only and does not provide for the provision of information about occupation to the parties.

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23. R (Commonwealth) v Ronen [2004] NSWCCA 176 (11 June 2004) [35].

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24. Ibid [76], [86].

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