Inclusive Juries—Access for People Who Are Deaf, Hard of Hearing, Blind or Have Low Vision: Report (html)

17. Peremptory challenges and stand asides

The nature of peremptory challenges is that a defendant does not have to disclose their reasoning. They are often instinct[ive] decisions based on very little information such as appearance, a potential juror’s behaviour during empanelment or their occupations.^[1]
—Law Institute of Victoria

Overview

• A potential juror may be excluded during the jury empanelment process through legal challenges, including ‘stand asides’ and ‘peremptory challenges’. These challenges aim to ensure that the accused receives a fair trial.

• The Commission is concerned that these challenges may be exercised solely based on perceptions about the impact of a person’s disability. Excluding people from the subject groups in this way would undermine jury representativeness and the effectiveness of the recommended reforms.

• The Commission does not recommend major changes to the exercise of peremptory challenges and stand asides. The best way to prevent challenges being exercised against people in the subject groups on the basis of misconceptions or stereotypes is through education of the legal profession. In Chapter 18 we also recommend improving community understanding of adjustments and the abilities of people with disabilities.

• If reforms are implemented, data should be collected and analysed to establish whether people in the subject groups are disproportionately challenged and whether further action is needed to address this.

Challenging potential jurors

17.1 We consider two types of challenges in this report: ‘peremptory challenges’ and ‘stand asides’.^[2]

17.2 Once a panel of potential jurors has been allocated to a trial, the parties (in a civil trial), or the accused and the Crown (in a criminal trial) can challenge potential jurors peremptorily, that is, without giving reasons.^[3] These challenges prevent a potential juror from serving in the trial. If a person is challenged they return to the jury pool and may be selected for a panel on a different trial.

17.3 Currently, people in the subject groups are unlikely to reach the challenge stage of jury selection because they are excused earlier in the process. If reforms are implemented to enable people in the subject groups to serve with reasonable adjustments, we are concerned that challenges may be used in a discriminatory way to prevent them from becoming jurors.^[4] This would undermine the effectiveness of reform.

17.4 It is impossible to conclusively determine how great the risk is of this occurring, because the parties do not have to provide reasons for exercising peremptory challenges or stand asides. However, stereotypes and biases about people with disabilities may play out in the challenge context.

17.5 An accused, or the Crown, determines whether a potential juror should be removed based on limited information, namely:

• their number (or sometimes name)

• current occupation^[5]

• physical appearance

• demeanour.^[6]

17.6 A person in the subject groups may be more likely to stand out from other jurors because of their physical appearance or the presence of an adjustment. We understand from our consultations and research that the community and the legal profession may still hold some misconceptions about the abilities of people in the subject groups (see Chapter 9). For these reasons, people with disabilities may be more likely to be challenged on discriminatory grounds.

Peremptory challenges

What is the purpose of peremptory challenges?

17.7 The purpose of peremptory challenges is to ensure that the jury is impartial and the trial is fair.^[7] Another purpose is to ‘allow the accused in a criminal trial to have some say in who tries them, thereby improving their confidence in the process’.^[8] The right to make peremptory challenges is ‘a fundamental right that allows the accused to influence the composition of the jury’.^[9] Case law suggests that the right must not be infringed or be subject to interference.^[10] The judge should ensure that the accused understands that they have a right to challenge potential jurors and they know how to exercise that right.^[11]

17.8 In 2014 the Commission published its report, Jury Empanelment. That report made recommendations about three aspects of the jury empanelment process:

1) peremptory challenges and the Crown right to stand aside

2) calling of the panel in court by name or number

3) the use of additional jurors.

17.9 The Commission examined whether peremptory challenges should be retained and if so, how they should operate.

17.10 The report noted a number of negative aspects of peremptory challenges. However, the Commission concluded that peremptory challenges are necessary. They enhance parties’ confidence in the jury, and provide a safeguard in case other processes have failed to remove potential jurors who are biased, unwilling or unable to serve. The Commission recommended retaining peremptory challenges but reducing their number, a change that is reflected in the current law.^[12]

17.11 Historically, the accused personally exercised peremptory challenges. Reforms following the Commission’s report mean that the peremptory challenges can be exercised by the accused’s legal practitioner.^[13] The aim of this reform was to respond to the situation where an accused might not be comfortable speaking up in court.^[14]

The flaws of peremptory challenges

Guesswork about impartiality

17.12 In our report on jury empanelment we noted that because jury deliberations in Victoria are confidential, there are no studies that indicate the effectiveness of peremptory challenges in achieving an impartial jury.^[15]

17.13 In Juries in the 21st Century, Horan concludes that there is no direct link between juror characteristics and verdict preference.^[16] In fact, many studies indicate no link at all. Some studies do indicate a connection between a juror’s values and attitudes and verdict preference.^[17] But because the jury selection system does not provide practitioners with information about jurors’ values and attitudes, Horan concludes that ‘it is safe to say that the challenges made by Australian barristers are guesswork’.^[18] As Horan recognises, it is ‘not possible for a defendant to know whether a citizen is going to be favourable to their defence based on what they look like and their occupation’.^[19]

17.14 Similarly, Findlay and Duff question the usefulness of peremptory challenges to ensure impartiality. They argue that because peremptory challenges are ‘based predominantly on appearance, there must necessarily be a large element of arbitrariness’ and they are often ‘devoid of much logical “substance”’.^[20]

17.15 When interviewed by The Age about representativeness of juries and peremptory challenges, barrister and criminal justice spokesperson for the Australian Lawyers Alliance Greg Barns described jury selection as a ‘primitive exercise’. He commented that ‘it’s a hunch you take. You want a jury of a particular type of cohort … It’s all witchcraft, no one does any testing’.^[21]

17.16 As we noted in Chapter 10, the United States jury selection system is quite different from the Australian system because it includes a ‘voir dire’ examination.^[22] Nevertheless, research in the United States has highlighted that the peremptory challenge process is still no better than a guessing game: ‘Most of the time, attorneys have little idea how specific jurors are apt to respond to the arguments and evidence they offer at trial’.^[23]

Peremptory challenges are discriminatory

17.17 Jury selection is not directly covered by federal or state discrimination laws in Australia.^[24] County Court consultees observed that:

The exercise of a peremptory challenge does not fall within any of the prohibited heads of discrimination (such as the provision of goods and services) under discrimination law. This means that they can be exercised on discriminatory grounds.^[25]

17.18 Many judges consulted by the Commission for the jury empanelment report considered reliance on stereotypes about people with certain characteristics to be unscientific and ineffectual in determining whether a prospective juror was suitable. One County Court judge quoted in that report questioned whether the law should continue to facilitate the exclusion of prospective jurors on bases which would amount to prohibited discrimination in other spheres of life.^[26]

17.19 Daniel Stubbs told us:

It is worth thinking about challenges in line with discrimination legislation, both under State and international law. Whether a person can or cannot serve should be determined in line with discrimination law.^[27]

Peremptory challenges undermine representativeness

17.20 The main way that the jury system seeks to achieve representativeness is by random selection.^[28] Discriminatory use of challenges can impact the representative nature of juries by eliminating people with certain characteristics.

17.21 In our jury empanelment inquiry we heard from criminal defence practitioners who suggested that peremptory challenges are sometimes used to remove people with disabilities if they may ‘undermine their client’s prospects of a fair trial’. They aim to exclude those who:

should have sought to excuse themselves from the panel, for example, because they know the accused or another party, or who appear to have a sensory or other disability that would impede their ability to listen, view or process the evidence in the trial.^[29]

17.22 In Chapter 5 we noted that peremptory challenges are exercised against women more often than men. While reasons are not provided for exercising peremptory challenges, the data suggests that women are challenged more than twice as often as men.^[30]

17.23 The Commission is concerned to avoid a similar outcome for people from the subject groups. There will be little advantage in changing the law if people from the subject groups get challenged off the jury anyway at the last minute.

The approach of other law reform agencies to disability and challenges

17.24 The New South Wales Law Reform Commission (NSWLRC) notes that:

For meaningful change to take place, considerable effort would be required to educate and instil confidence in lawyers and the general public as to the competence of deaf or blind people to serve as jurors. Unless such a perception becomes widespread and not merely patchy, in practice blind or deaf people may well continue to be excluded from juries.^[31]

17.25 A later NSWLRC report suggested that the issue of peremptory challenges should be ‘kept under review’.^[32] While not specifically addressing the impact on people with disabilities, that report identifies some of the impacts of peremptory challenges that may lead to under-representation of Indigenous people. These impacts include further alienation from the criminal justice system, reduced opportunity for ‘the perspective of Aboriginality to be understood by juries’ and reduced chances that an accused will be tried by a jury with an Indigenous member.^[33]

Community responses: peremptory challenges exercised on discriminatory grounds

17.26 In the consultation paper we asked for feedback about what action might reduce the likelihood of peremptory challenges being used to exclude jurors solely based on their disability. We suggested some reform ideas for community feedback:

1) guidelines for the Victorian Bar outlining that challenges should not be exercised solely on the basis of disability

2) a statement by the judge discouraging the use of challenges on discriminatory grounds.

17.27 The courts and legal professionals were wary of interfering with the right to peremptory challenges.^[34] The community, on the other hand, favoured reform. Only a handful of responses supported both of the reform ideas we suggested.^[35] Disability advocates and community members did not think it was acceptable to challenge people solely on the grounds of disability and supported taking action to prevent this.^[36]

17.28 Daniel Stubbs acknowledged that it ‘would be impossible to know on what basis a challenge is being exercised because a reason doesn’t have to be given’. However, he also commented:

The use of challenges could be likened to a form of indirect discrimination and not dissimilar from common misconceptions about disabled people in the workplace ie that they are unproductive and inefficient employees.^[37]

17.29 Legal professionals were not comfortable with peremptory challenges excluding people with disabilities but did not think that anything could be done about it. Consultees from the Supreme Court told us:

peremptory challenges are essentially a discriminatory process so it is hard to see how they can really be changed so that people are not discriminated against on the basis of disability.^[38]

17.30 Criminal solicitor Peter Ward commented that:

I support what you are saying (that you shouldn’t challenge people in [a] discriminatory way) but there is no effective way to regulate this.

People might challenge a potential juror on the basis of disability. But people interpret disability in different ways. Some would think you’ll be a softie. Others might think you’ll be a bit cross about your lot in life and embittered. It is very difficult to make generalisations about this.

In the current system you don’t know why a person has been challenged so there is no way to regulate the exercise of that choice. Everyone hides their prejudice in this process.^[39]

17.31 In general, the legal community did not think that it was likely that challenges would be used against people in the subject groups. Consultees from the Victorian Criminal Bar Association told the Commission:

it would be very unlikely that a peremptory challenge would be used against a disabled person. Now that there are only three peremptory challenges available, you need to be very careful about using them. They are now mainly used for something obvious (eg you wouldn’t want an auditor on the jury of a fraud case). It is less likely people would use peremptory challenges for a person with a disability. However, it could be possible to make an application for cause. But the judge could refuse that application.^[40]

Does the Bar need guidelines?

17.32 The Law Institute of Victoria (LIV) suggested that it ‘may be helpful to provide guidelines to the Victorian Bar, which outline that exclusion [via peremptory challenge] should not be on discriminatory grounds’.^[41] The LIV noted that the ‘benefit of providing such guidelines would be to educate barristers not to adopt discriminatory practices’ but that ultimately they were entitled to exercise peremptory challenges as they wish.^[42]

17.33 Victorian Criminal Bar Association consultees were not in favour of guidelines for the Bar. However, they noted that when the law changes the Victorian Bar will provide a professional development session about the change, and often someone will write a paper about it. They further commented that the provision of professional development training by the Victorian Bar:

is especially likely if there are changes to the Juries Act. There have been numerous changes to the law (especially regarding evidence) over the past few years and criminal barristers have had no choice but to keep up to date with these changes. The same is likely to happen here.^[43]

17.34 Associate Professors Bruce Baer Arnold and Wendy Bonython were of the view that ‘courts should be very wary of unsubstantiated “social sorting” through peremptory challenges’ and that amendments to legislation should be ‘accompanied by practice guidelines and training […] to clearly indicate that inclusion is the default position’.^[44]

Should the judge make a statement?

17.35 The intended aim of this idea was that a statement by the judge could provide a useful reinforcement of the principles of equity and inclusion. This proposal received limited support.^[45] Most disability advocates did not support a judicial statement because it would draw too much attention to the person with disability.

17.36 Legal professionals were opposed to it on the grounds that it would be ineffectual, or at least its effectiveness could not be measured, because:

• the accused does not need to provide reasons for exercising challenges

• challenges can be exercised on any grounds.

17.37 Consultees from the Supreme Court opposed the idea, noting that:

one or more forms of discrimination would likely be unintentionally left out. The only real way to ensure that peremptory challenges are not used on the basis of misconceptions of the abilities of jurors with hearing or vision loss is to educate the legal profession.^[46]

17.38 The view of a consultation participant from the LIV was that:

it might be more practical/beneficial instead to educate barristers, parties, and jurors about the capabilities of a person with a disability to serve as a juror and how supports work. The judge could read out a statement to the Court. Barristers need to better understand that having sensory disability does not mean that the person has any issues with their cognitive abilities. In fact, people who are deaf/blind may well bring unique skills that would benefit a jury. This approach might mean less challenges are made on the ground of disability later on (it might not too).^[47]

17.39 The view of consultees from the Victorian Criminal Bar Association was that:

It is probably unwise for the judge to make a comment about not exercising the challenge on a discriminatory ground. It is better not to draw attention to the point at all.^[48]

17.40 In the United States, where people with disabilities have been serving for decades, no attention is drawn to the person serving with supports.^[49]

17.41 Consultees from the County Court suggested:

A simple direction could be given, eg that there is a person with a disability on the [panel] and that accommodations can be made, and the judge is satisfied that they can fully participate. Or that it is permissible for a person with a disability to serve and necessary accommodations have been made. This will avoid embarrassment and be more effective than any other proposed directions about not being discriminatory because, in reality, the nature of peremptory challenges means that the defence is not precluded from applying discriminatory criteria. They may be discriminating for a myriad of reasons that we do not know about.^[50]

The law about peremptory challenges should not be changed

17.42 In England and Wales peremptory challenges have been abolished with reportedly no detrimental effect.^[51]

17.43 There is, however, little appetite to do away with peremptory challenges in Victoria at present. In our consultations with the courts, representative legal bodies and legal professionals, no support was expressed for challenges to be abolished or further reduced.^[52] For example, the LIV submitted that ‘it is ‘essential that this wide discretion remain without reasons being required, regardless of the perceived basis of peremptory challenges’. To do otherwise would be to ‘fundamentally change this process founded in affording a defendant a fair and impartial trial’.^[53]

17.44 There is not enough evidence to determine whether peremptory challenges will, in fact, be used to prevent people from the subject groups from serving as jurors. It may also be premature to call for their abolition without assessing the effect of reforms in enabling people to serve with adjustments, and the effect that the lower number of challenges has on jury representativeness.

17.45 The Commission takes the view that the suggestions it put forward in the consultation paper—namely, a statement from the judge discouraging the use of challenges on discriminatory grounds or guidelines for the Bar—would not be helpful.

17.46 Instead, reform to the Juries Act and practice and procedures, together with practical education about the new laws and disability awareness training, will help to guard against prejudice and misconceptions later in the selection process. Reform will be greatly assisted by leadership from judges.

The judge should give a simple direction

17.47 The Commission agrees with the suggestion from County Court consultees that the judge make a brief and simple direction before the exercise of challenges if needed that there is a person from the subject groups on the panel and that adjustments have been made to enable them to serve.^[54] In Chapter 12 we recommended that this statement is made before the panel is brought into the courtroom, so that only counsel and the accused are present. This idea was also supported by the LIV.^[55] It would help to shift misconceptions that may be held by counsel.

17.48 This may only be required for a short period, until the concept of people in the subject groups serving on juries becomes more routine. Ultimately, the aim would be to achieve an experience similar to that in the United States, where jurors with disabilities are so commonplace that no attention is drawn to them at all.

The legal profession should be educated about reforms

17.49 The best way to reduce the likelihood of challenges being used in a discriminatory way against people in the subject groups is education of the legal profession about the new provisions in the Juries Act and adjustments.^[56] This approach was overwhelmingly supported in community responses.^[57]

17.50 Most community responses supported education for the legal profession. As the academics involved in the mock trial noted:

Education is essential to addressing and preventing discriminatory use of the peremptory challenges. Counsel would be more mindful of the optics of the challenge if they have been given training on the need not to discriminate.^[58]

17.51 Juries Victoria commented in submissions that it:

supports education and training for the judiciary, court and JV staff and the legal profession on the importance of inclusive juries, on respectful interactions with people with vision, hearing or other impairments, and on unconscious bias.^[59]

17.52 Vision Australia submitted:

In our view, the cumulative impact of continuing education, disability awareness training, explicit guidelines and statements, and a gradual increase in the number of people who are blind or have low vision serving on juries, will be most effective in ensuring that disability is not a factor in exclusions or challenges. It will therefore be essential to include such measures along with legislative reform, since legislation alone is unlikely to be the catalyst for the significant cultural change that is required in the legal profession.^[60]

17.53 Disability awareness training and practical legal training on the application of the new laws should be provided regularly to legal professionals. These recommendations are discussed in Chapter 18.

Collecting data about peremptory challenges

17.54 As the reasons for exercising peremptory and stand aside challenges do not need to be given, it is impossible to know the basis on which these challenges are made.

17.55 The Juries Commissioner told us that basic data is recorded about jurors and potential jurors, namely the potential jurors’ sex, age and occupation, as well as whether a juror was challenged or not. We can detect some trends about challenges from this data.

17.56 It would not be possible to collect data on the number of people peremptorily challenged based on disability because reasons do not have to be given. However, we recommend that Juries Victoria collects data on the number of people who request adjustments to serve, and the number who are provided with those adjustments but are peremptorily challenged during the empanelment process. This will provide an insight into whether people in the subject groups are disproportionately challenged, the effectiveness of law reform and the representativeness of Victorian juries.

17.57 A longitudinal survey could be conducted asking counsel about the effect of changes and requesting information about challenges exercised on the basis of disability (and other factors).

17.58 The issue of the discriminatory use of peremptory challenges and stand asides should be reconsidered after the new provisions have been in operation for five years. We discuss the review of new legislative provisions in Chapter 19. This will allow sufficient time to see how the new laws are working and what effect the reduction in the number of peremptory challenges and stand asides is having on jury representativeness.

Stand asides

17.59 The Crown’s power to stand aside potential jurors is exercised differently to peremptory challenges.^[61] Stand asides ensure that the jury is impartial, and the trial is fair and conducted according to law.^[62] Unlike the defendant’s exercise of peremptory challenges, the Crown cannot challenge a potential juror to produce a ‘favourable’ jury.^[63] The Crown can only challenge a potential juror if their inclusion on the jury would undermine the jury’s integrity.^[64]

17.60 In the jury empanelment report we recommended that the Crown should continue to be able to stand aside potential jurors in criminal trials because stand asides are ‘an important safeguard to ensuring a competent and impartial jury’.^[65] It was recommended that the number of stand asides available be equal to the total number of peremptory challenges.^[66] The number of stand asides in criminal trials has since been reduced to three, equal to the peremptory challenges available to a single accused.^[67]

Crown policy guides the exercise of stand asides

17.61 The Victorian Director of Public Prosecutions (DPP) has a policy on the exercise of the stand aside power. The policy states that the Crown ‘must never use its power to stand aside a potential juror based on factors such as age, sex, occupation, ethnic origin, religion, marital status or economic, cultural or social background’.^[68] This list does not prohibit the use of stand asides based on disability. According to the policy, stand asides are to be used sparingly. The Crown’s paramount concern is that the jury is impartial and that it complies with the Act.^[69] Examples included in the guidelines are situations where the potential juror knows a participant of the trial, or where it is reasonably apprehended that the potential juror will be biased, or demonstrates behaviour such as hostility towards court procedures.^[70]

17.62 The Commission has considered whether ‘disability’ (or some other language that applies specifically to people in the subject groups) should be added to the list of characteristics in the DPP policy, and whether that would help to prevent stand asides being used discriminatorily against potential jurors from the subject groups.

Stand asides appear less likely to be used in a discriminatory way

17.63 In consultations, the OPP and the Supreme Court noted that stand asides are used rarely,^[71] and much less frequently and with more restrictions than peremptory challenges. Our jury empanelment report noted that in 2012–2013 only 76 stand asides were made compared to 2405 peremptory challenges.^[72] The Juries Commissioner has told us that 49 people were stood aside in 2018 and 62 in 2019, far fewer than those who were peremptorily challenged (1082 in 2018 and 1108 in 2019).^[73]

17.64 Considering this guiding policy, it appears less likely that stand asides will be used in a discriminatory way against people in the subject groups than peremptory challenges. The OPP referred to its common law duty to act as a ‘model litigant’.^[74] The Victorian model litigant guidelines, originally issued in 2001 and revised in 2021, set standards for how the state should behave as a party to legal proceedings.^[75] Being a model litigant requires that the state and its agencies, as parties to litigation, ‘act with complete propriety, fairly and in accordance with the highest professional standards’.^[76]

The legal profession’s view: stand asides

17.65 The OPP, the County Courts and Juries Victoria thought that the DPP’s stand aside policy should remain unchanged.^[77] County Court consultees suggested that it would be a matter for the OPP to consider changing its guidelines.^[78] Juries Victoria submitted that it ‘does not feel peremptory challenges and stand asides should be altered in response to the inclusion of persons in the subject groups in the jury process’.^[79]

17.66 The OPP pointed to another consideration:

because disability is so broad, and because disability can be overcome with supports which does not apply to age, gender, religion etc. Removing the power of the OPP to stand aside might actually create an issue for the person with a disability.^[80]

17.67 The example the OPP provided was if the potential juror could fulfil the role of juror with reasonable adjustments, but felt extremely anxious about doing so, and the judge refused to allow them to be excused. In this situation a stand aside could be used to overcome the decision of the judge.^[81]

17.68 Ultimately, the OPP concluded that, regardless of what is contained in the policy, it would be ‘very unlikely that a stand aside would be used solely on the grounds of disability because it would be contrary to model litigant principles’.^[82]

17.69 There was limited community support for amending DPP guidelines for stand asides to expressly state that disability is not a ground for the exercise of stand asides.^[83] These views were mostly based on the overarching view that people with disabilities should not be discriminated against. Vision Australia commented:

Our strong view is that the guidelines must emphasise that disability is not a legitimate ground for a stand aside. Even though it would be difficult to monitor the effectiveness of such a guideline in practice, we believe that it would complement other measures aimed at creating a more inclusive culture in the jury system.^[84]

The Commission’s conclusion: the DPP’s guiding policy should change

17.70 Despite stand asides being rarely used and the Crown’s obligation to act as a model litigant, the Commission’s view is that the DPP’s guiding policy should be amended to guard against the discriminatory exercise of the challenge in relation to people in the subject groups and to educate the profession and to bring the policy in line with the law (once amended).

17.71 The OPP made the following comment about amending the guiding policy:

The paramount concern of the OPP in this area is ensuring that the accused person receives a fair trial. Accordingly, we would consider amending the Director’s Policy to include ‘vision/hearing loss’ as a reason not to stand aside a juror. However, it would be premature to do so without the legislative and other infrastructural support necessary for an accused person to receive a fair trial with a significantly vision or hearing-impaired person on the jury.^[85]

17.72 The Commission acknowledges that there will be drafting challenges because we are only recommending that the policy is altered to apply to people who are deaf, hard of hearing, blind or who have low vision. The difficulty will be ensuring that the policy does not become so long that it is disregarded. We are confident these drafting challenges can be overcome.

The importance of education in addressing discrimination

17.73 As Daniel Stubbs noted in consultation: ‘Education is very important’.^[86] In Chapter 18 we recommend disability awareness training and professional development for legal professionals. The goal of training for the OPP should be to educate prosecutors, to reduce the chances of stand asides being exercised in a discriminatory way against people in the subject groups. Training should include information about the types of adjustments that are available, and how they work in practice, and tackle misconceptions and a lack of understanding about the tools that people with disabilities use to navigate and participate in community life.

17.74 The OPP referred to the profession’s progress and adaptability in consultation:

The legal profession has come a long way in the last ten years and we have demonstrated how adaptable we are. There are so many witnesses and victims who use supports. They are listened to respectfully and their views are considered and taken into account in the justice process. In practice the profession runs with it and does not discriminate. The profession has come a long way and so has the use of supports in the court room.^[87]

17.75 As noted above, judges could also have a role in providing information to Crown prosecutors, as the County Court recommended in its submission.^[88]

Collecting data about stand asides and people in the subject groups

17.76 For the same reasons outlined in relation to peremptory challenges, the OPP or Juries Victoria should collect data about the use of stand asides to remove potential jurors from the subject groups.

1. Submission 7 (Law Institute of Victoria).

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2. Other challenges are available. A challenge to the array is available at common law and challenges for cause are available under the Juries Act 2000 (Vic) ss 34, 37. See also Chapter 4.

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3. Ibid ss 35, 38, 39. Three peremptory challenges are available to the accused and the Crown in a criminal trial and two to the parties of a civil trial.

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4. We note that Spencer et al referred to comments by legal professionals that they may use peremptory challenges to remove jurors because including them would add ‘an unfamiliar layer of uncertainty to what is an already complex process’. At the same time, Spencer et al concluded that most legal professionals supported removing barriers to jury service for people who are deaf. David Spencer et al, ‘Justice Is Blind as Long as It Isn’t Deaf: Excluding Deaf People from Jury Duty—an Australian Human Rights Breach’ (2017) 23(3) Australian Journal of Human Rights 332, 344-345.

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5. In Victorian Law Reform Commission, Jury Empanelment (Report No 27, May 2014) 25 [3.36] we explain that: ’Jurors identify their occupation in the questionnaire they complete when initially contacted by the Juries Commissioner’s Office (JCO). The JCO then standardises these responses in accordance with the Australian and New Zealand Standard Classification of Occupation Guidelines. If a person is retired, they are asked to list their previous occupation. If a person is a student, they are commonly asked by the trial judge what they are studying. In the rare event that two prospective jurors share the same name and occupation, their identifying numbers are read out to distinguish between them: Juries Act 2000 (Vic) s 31(2)’.

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6. This is evident from the process for empanelment in both criminal and civil trials: see Victorian Law Reform Commission, Jury Empanelment (Report No 27, May 2014) 26–27 [3.40]–[3.51].

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7. Johns v The Queen (1979) 141 CLR 409; (High Court of Australia, Barwick CJ, Gibbs, Stephen, Mason and Murphy JJ, 8 August 1979) [15] (Gibbs J). See Victorian Law Reform Commission, Jury Empanelment (Report No 27, May 2014) 21 [3.6]–[3.8].

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8. Victorian Law Reform Commission, Jury Empanelment (Report No 27, May 2014) 21 [3.7].

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9. Judicial College of Victoria, ‘11.1 Selecting a Jury’, Victorian Criminal Proceedings Manual (Online Manual, 30 August 2021) [67] <https://www.judicialcollege.vic.edu.au/eManuals/VCPM/index.htm#27318.htm>.

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10. R v Cherry [2005] VSCA 89, (2005) 12 VR 122; Johns v The Queen (1979) 141 CLR 409.

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11. Judicial College of Victoria, ‘11.1 Selecting a Jury’, Victorian Criminal Proceedings Manual (Online Manual, 30 August 2021) [65] <https://www.judicialcollege.vic.edu.au/eManuals/VCPM/index.htm#27318.htm>, citing Johns v The Queen (1979) 141 CLR 409; R v Harrington (1977) 64 Cr App R 1, (Court of Appeal, Shaw LJ, Swanwick and Mars-Jones JJ, 17 May 1976).

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12. Victorian Law Reform Commission, Jury Empanelment (Report No 27, May 2014) 54–5 [3.249]–[3.260]. The number of peremptory challenges in criminal trials has since been reduced from six to three when there is a single person arraigned, and reduced from three to two for each party in a civil jury trial: Juries Act 2000 (Vic) s 39(1)(a) and s 35, respectively. If two or more persons are arraigned in a criminal trial, the accused can stand aside two potential jurors each (s 39(1)(b)). The number of jurors who can be peremptorily challenged was reduced by the Justice Legislation Amendment (Court Security, Juries and Other Matters) Act 2017 (Vic).

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13. Juries Act 2000 (Vic) s 39(3). A clerk of a legal practitioner may also exercise the right.

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14. Victorian Law Reform Commission, Jury Empanelment (Report No 27, May 2014) 60 [3.293]–[3.296].

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15. Ibid 37 [3.122].

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16. Jacqueline Horan, Juries in the 21st Century (The Federation Press, 2012) 38–42.

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17. Victorian Law Reform Commission, Jury Empanelment (Report No 27, May 2014) 38 [3.129], citing Jacqueline Horan, Juries in the 21st Century (The Federation Press, 2012) 29–42.

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18. Ibid.

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19. Jacqueline Horan, ‘All about Juries: Why Do We Actually Need Them and Can They Get It “Wrong”?’, The Conversation (Online, 7 March 2019) <http://theconversation.com/all-about-juries-why-do-we-actually-need-them-and-can-they-get-it-wrong-112703>.

    ↑

20. Mark Findlay and Peter Duff, Jury Management in New South Wales (Australian Institute of Judicial Administration, 1994) 52.

    ↑

21. Rachael Dexter, Craig Butt, Eleanor Marsh and Nicole Precel, ‘Why There Are More Men than Women on Juries’, The Age (online, 4 December 2019) <https://www.theage.com.au/national/victoria/why-there-are-more-men-than-women-on-juries-20190821-p52jer.html>.

    ↑

22. For further information about peremptory challenges and the Americans with Disabilities Act, 42 USC Ch 126 §12132 (1990): see William D Goren, ‘Persons with Disabilities and Peremptory Challenges’, Understanding the ADA (Blog Post, 1 October 2012) <https://www.understandingtheada.com/blog/2012/10/01/persons-with-disabilities-and-peremptory-challenges/>. For commentary regarding disability and the use of peremptory challenges: see Matthew J Crehan, ‘The Disability-Based Peremptory Challenge: Does It Validate Discrimination against Blind Prospective Jurors’ (1997) 25 Northern Kentucky Law Review 531.

    ↑

23. Neil Kressel and Dorit Kressel, Stack And Sway: The New Science Of Jury Consulting (Basic Books, 2004) 128.

    ↑

24. See discussion in Chapter 7. See also Victorian Law Reform Commission, Jury Empanelment (Report No 27, May 2014) 37 [3.125].

    ↑

25. Consultation 9 (Consultation with two Victorian County Court Judges, Court policy staff and two Associates).

    ↑

26. Judges of the County Court of Victoria, Consultation No 22 to Victorian Law Reform Commission, Inquiry into Jury Empanelment (2014), cited in Victorian Law Reform Commission, Jury Empanelment (Report No 27, May 2014) 38 [3.128].

    ↑

27. Consultation 22 (Daniel Stubbs, Victorian Disability Worker Commissioner, in his personal capacity).

    ↑

28. Juries Act 2000 (Vic) s 4.

    ↑

29. Victorian Law Reform Commission, Jury Empanelment (Report No 27, May 2014) 29 [3.62]–[3.63].

    ↑

30. See Chapter 5.

    ↑

31. New South Wales Law Reform Commission, Blind or Deaf Jurors (Discussion Paper No 46, 2004) 3 [3.55].

    ↑

32. New South Wales Law Reform Commission, Jury Selection (Final Report No 117, September 2007) 181 [10.42] Recommendation 44.

    ↑

33. Ibid 14 [1.36]–[1.37].

    ↑

34. Consultations 2 (Law Institute of Victoria), 4 (Victorian Criminal Bar Association), 16 (Office of Public Prosecutions Victoria).

    ↑

35. Submissions 4 (Associate Professors Bruce Baer Arnold (University of Canberra) and Wendy Bonython (Bond University)), 9 (Madison).

    ↑

36. Consultations 1 (Blind Citizens Australia), 23 (Victorian Aboriginal Community Controlled Health Organisation (VACCHO)).

    ↑

37. Consultation 22 (Daniel Stubbs, Victorian Disability Worker Commissioner, in his personal capacity).

    ↑

38. Consultation 11 (Consultation with a Judge, a Tipstaff and Court policy staff, Victorian Supreme Court).

    ↑

39. Consultation 25 (Peter Ward, Partner, Galbally and O’Bryan Lawyers).

    ↑

40. Consultation 4 (Victorian Criminal Bar Association).

    ↑

41. Consultation 2 (Law Institute of Victoria).

    ↑

42. Ibid.

    ↑

43. Consultation 4 (Victorian Criminal Bar Association).

    ↑

44. Submission 4 (Baer Arnold & Bonython).

    ↑

45. Submissions 4 (Baer Arnold & Bonython), 9 (Madison), 10 (Vision Australia).

    ↑

46. Consultation 11 (Consultation with a Judge, a Tipstaff and Court policy staff, Victorian Supreme Court).

    ↑

47. Consultation 2 (Law Institute of Victoria).

    ↑

48. Consultation 4 (Victorian Criminal Bar Association).

    ↑

49. Consultation 14 (Jury Commissioner, New York State Courts in Rochester, Monroe County, United States).

    ↑

50. Consultation 9 (Consultation with two Victorian County Court Judges, Court policy staff and two Associates).

    ↑

51. Rodolfo Monteleone, Improving Efficiency and Effectiveness of the Victorian Jury System (Report, Winston Churchill Trust, 3 February 2012) 23. See also Lord Justice Robin Auld, Ministry of Justice (UK), Review of the Criminal Courts of England and Wales (Report, September 2001) ch 5 [73]–[74] <https://ials.sas.ac.uk/eagle-i/review-criminal-courts-england-and-wales-right-honourable-lord-justice-auld-september-2001>.

    ↑

52. Consultations 2 (Law Institute of Victoria), 4 (Victorian Criminal Bar Association), 9 (Consultation with two Victorian County Court Judges, Court policy staff and two Associates), 11 (Consultation with a Judge, a Tipstaff and Court policy staff, Victorian Supreme Court), 16 (Office of Public Prosecutions Victoria).

    ↑

53. Submission 7 (Law Institute of Victoria).

    ↑

54. Submission 14 (County Court of Victoria).

    ↑

55. Submission 7 (Law Institute of Victoria).

    ↑

56. The Commission acknowledges that peremptory challenges can be made by accused persons themselves either without input from their legal representative, or where they are unrepresented, and that education of legal professionals will have no impact in that scenario.

    ↑

57. Consultations 3 (Academics: Professor Jemina Napier (Heriot-Watt University), Professor Sandra Hale (University of New South Wales), Associate Professor Mehera San Roque (University of New South Wales)), 22 (Daniel Stubbs, Victorian Disability Worker Commissioner, in his personal capacity); Consultation 24 (Alastair McEwin AM, Royal Commissioner, Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, in his personal capacity).

    ↑

58. Consultation 3 (Academics: Professor Jemina Napier (Heriot-Watt University), Professor Sandra Hale (University of New South Wales), Associate Professor Mehera San Roque (University of New South Wales)).

    ↑

59. Submission 13 (Juries Victoria).

    ↑

60. Submission 10 (Vision Australia).

    ↑

61. In her second reading speech of the Juries Bill in 2000, the Hon MR Thomson commented: ‘In 1993 the previous government abolished the longstanding distinction between the right of the accused in a criminal trial to challenge persons during the selection of the jury, and the prosecution’s power to stand aside persons where necessary in the interests of justice. Those amendments meant that both prosecution and defence were exercising what was to be known as a right of peremptory challenge. This created the misleading impression that the prosecution has the same right as the accused to have persons excluded from the jury. It is important that the role of the prosecution during the jury selection process – namely, to seek the exclusion of persons only where necessary in the interests of justice – be clearly distinguished. Accordingly, the bill reinstates the Crown right of stand aside, but limits the number of stand-asides allowed to the same number of peremptory challenges available to the accused’: Victoria, Parliamentary Debates, Legislative Council, 22 March 2000, 420 (Marsha Thomson).

    ↑

62. Director of Public Prosecutions (Vic), Policy of the Director of Public Prosecutions for Victoria (Report, 24 January 2022) 19 [52]–[54]. However, aside from these guidelines, there is nothing restricting the use of stand asides: see Katsuno v The Queen [1999] HCA 50, (1999) 199 CLR 40, 58 (Gaudron, Gummow and Callinan JJ).

    ↑

63. See generally Victorian Law Reform Commission, Jury Empanelment (Report No 27, May 2014) 21–2 [3.9]–[3.16].

    ↑

64. Director of Public Prosecutions (Vic), Policy of the Director of Public Prosecutions for Victoria (Report, 24 January 2022) [53].

    ↑

65. Victorian Law Reform Commission, Jury Empanelment (Report No 27, May 2014) 52 [3.243].

    ↑

66. Ibid xv, Recommendation 5.

    ↑

67. Juries Act 2000 (Vic) s 38. If two or more persons are arraigned, the Crown can stand aside two potential jurors for each person arraigned: at s 38(1)(b). The number of jurors who can be stood aside was reduced by the Justice Legislation Amendment (Court Security, Juries and Other Matters) Act 2017 (Vic).

    ↑

68. Director of Public Prosecutions (Vic), Policy of the Director of Public Prosecutions for Victoria (Report, 24 January 2022) [52]. See also Director of Public Prosecutions (Cth), Guidelines and Directions Manual (Jury Issues, Guide, 10 September 2012).

    ↑

69. Director of Public Prosecutions (Vic), Policy of the Director of Public Prosecutions for Victoria (Report, 24 January 2022) [52].

    ↑

70. Ibid [53].

    ↑

71. Consultation 11 (Consultation with a Judge, a Tipstaff and Court policy staff, Victorian Supreme Court).

    ↑

72. Victorian Law Reform Commission, Jury Empanelment (Report No 27, May 2014) 29 [3.65].

    ↑

73. Information provided by Juries Victoria to Victorian Law Reform Commission, 8 September 2021.

    ↑

74. Ibid. See also Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333, 342, (High Court of Australia, Griffith CJ, Barton and Isaacs JJ, 21 October 1912); Kenny v State of South Australia (1987) 46 SASR 268, 273, (Supreme Court of South Australia, King CJ, 27 May 1987); Yong v Minister for Immigration and Ethnic Affairs (1997) 75 FCR 155, (Federal Court of Australia, Beaumont, Burchett and Goldberg JJ, 6 June 1997).

    ↑

75. Department of Justice and Community Safety (Vic), ‘Victorian Model Litigant Guidelines’, Victoria State Government (Web Page, 22 July 2021) <https://www.justice.vic.gov.au/justice-system/laws-and-regulation/victorian-model-litigant-guidelines>.

    ↑

76. Ibid.

    ↑

77. Submissions 13 (Juries Victoria), 14 (County Court of Victoria).

    ↑

78. Consultation 9 (Consultation with two Victorian County Court Judges, Court policy staff and two Associates).

    ↑

79. Submission 13 (Juries Victoria).

    ↑

80. Consultation 16 (Office of Public Prosecutions Victoria).

    ↑

81. Ibid.

    ↑

82. Ibid.

    ↑

83. Submissions 4 (Baer Arnold & Bonython), 9 (Madison), 10 (Vision Australia).

    ↑

84. Submission 10 (Vision Australia).

    ↑

85. Consultation 16 (Office of Public Prosecutions Victoria).

    ↑

86. Consultation 22 (Daniel Stubbs, Victorian Disability Worker Commissioner, in his personal capacity).

    ↑

87. Consultation 16 (Office of Public Prosecutions Victoria).

    ↑

88. Submission 14 (County Court of Victoria).

    ↑