Jury Empanelment: Consultation Paper (html)

2. Jury trials in Victoria

Introduction

2.1 This chapter provides information about jury trials in Victoria as contextual information to the three jury empanelment processes that are the subject of the terms of reference.

2.2 First, there is a brief discussion of the purpose of jury trials and the key principles of representativeness and impartiality that underpin them. The chapter then provides an overview of the availability of jury trials for criminal and civil matters and the number of jury trials conducted in Victoria, and a discussion of the jury selection and empanelment processes.

2.3 Lastly, this chapter explains the importance of following empanelment processes for the integrity of a trial.

The purpose of jury trials

2.4 The role of the jury in both criminal and civil trials is to determine questions of fact and to apply the law, as stated by the judge, to those facts to reach a verdict. In criminal trials, the jury’s role is to determine guilt or otherwise.^[1] In civil trials, the jury’s role is to decide fault and damages. Juries in civil trials may also give a special verdict (as well as a general verdict) on a range of issues, for example fair comment, privilege and justification in defamation cases.

2.5 Jury trials are said to serve a number of important purposes. For example:

• safeguarding the rights of the accused by limiting the power of the state and the judiciary

• ensuring justice is administered in line with the community’s standards, rather than the views of unrepresentative elites such as judges^[2]

• enabling the community to participate directly in the administration of justice, thereby increasing acceptance of trial outcomes, as well as confidence in the legal system more generally.^[3]

2.6 Two important principles underpin jury trials and are necessary to meet the purposes described above. They are representativeness and impartiality.

Representativeness

2.7 There is some debate about what representativeness means in the context of jury trials.^[4] For example, it could be argued that representativeness requires that members of the accused’s own community be on the jury.^[5] However, for the purposes of this consultation paper, we adopt the definition used by the Victorian Parliament Law Reform Committee in its 1996–97 review of jury service in Victoria:^[6]

an accurate reflection of the composition of [Victorian] society, in terms of ethnicity, culture, age, gender, occupation, socio-economic status (etc).

2.8 To achieve representativeness, the jury panel and the jury are selected randomly. However, there are rules in the selection and empanelment processes that operate to filter out certain groups, thereby reducing representativeness. For example, the eligibility and qualification criteria filter out certain professional groups, people with certain types of impairments and people convicted of certain offences. Similarly, excuse categories operate to exclude more members of some groups than others.^[7]

2.9 While it is outside the Commission’s terms of reference to consider these rules and their effects on representativeness, they are mentioned here as contextual information relevant to how peremptory challenges and stand asides impact on representativeness. These issues are discussed in Chapter 3.

Impartiality

2.10 The second key principle underpinning jury trials is impartiality. In the context of jury trials, impartiality means that jurors do not have biases or preconceived notions that influence their ability to judge the evidence in the case fairly.

2.11 Impartiality is central to the concept of a fair trial. For example, the International Covenant on Civil and Political Rights^[8] and Victoria’s Charter of Human Rights and Responsibilities^[9] both include a right to a hearing before a ‘competent, independent and impartial’ tribunal.

2.12 Impartiality is achieved through the random selection process,^[10] as well as the ability of a court to excuse a person on the basis of their knowledge of a party or a witness,^[11] and the various categories of challenge that are available and discussed in Chapter 3.

The availability of jury trials

2.13 Jury trials are available in all states and territories in Australia for indictable criminal matters and in most states and territories for certain types of civil proceedings.

Criminal trials

2.14 Whether a jury trial is available for offences under state and territory criminal laws depends on whether the offence with which a person has been charged is indictable and whether the trial proceeds by way of indictment. The categorisation of offences in Australian jurisdictions is usually stated in the legislation, or provided for by reference to the maximum penalty that can be imposed for the offence.

2.15 In five Australian jurisdictions—New South Wales, South Australia, Western Australia, Queensland and the Australian Capital Territory—whether a trial for an indictable offence proceeds as a jury trial may also depend on whether there has been an application for the accused to be tried by judge alone without a jury.^[12]

2.16 Jury trials are compulsory where the prosecution of a federal offence proceeds by way of indictment. This is because section 80 of the Commonwealth Constitution guarantees trial by jury in such circumstances.^[13]

Civil trials

2.17 The availability of jury trials for civil proceedings depends on the type of remedy sought and the way in which the parties initiate the proceeding.^[14]

2.18 In Victoria, jury trials are available as of right upon application by the plaintiff or defendant in civil proceedings for which a common law remedy is sought.^[15] If one party to the proceedings wishes the matter to be tried by a jury and the other party does not, the party who does not want the matter to be tried by jury must persuade the court to dispense with the jury trial.^[16]

2.19 However, even where a plaintiff or defendant requests a trial by jury, the court may still order the trial to be by judge alone.^[17] Further, the court may order some questions of fact to be determined by a jury and others by judge alone,^[18] although this procedure is unusual.^[19]

The number of jury trials in Victoria

2.20 Jury trials make up a very small proportion of court cases in Victoria. The vast majority of criminal court cases are heard summarily in the Magistrates’ Courts and most civil matters are determined without a jury. There were 579 Supreme and County Court jury trials in 2011–12. Of those, 446 were in Melbourne and 133 were in regional Victoria.^[20] In 2012–13 there were 584 jury trials in Victoria. Of those, 448 were in Melbourne and 136 were in regional Victoria.^[21]

The law regulating jury trials in Australia

2.21 The jury selection and empanelment process is regulated by state and territory law.^[22] While there are many similarities between the laws, there are also some differences. For example, while all state and territory laws allow peremptory challenges, the number of challenges that can be made is not consistent.^[23]

The law regulating jury trials in Victoria

2.22 The law regulating jury trials in Victoria is the Juries Act 2000 (Vic) (Juries Act). The Juries Act sets out who is eligible for jury duty, how a jury is to be selected and empanelled, and how a jury is to operate.

2.23 The Juries Commissioner is a statutory role established under the Juries Act, responsible for jury administration in Victoria through the operations of the Juries Commissioner’s Office (JCO).

2.24 There are five steps in the selection and empanelment of jurors under the Juries Act:

• random selection from the Victorian electoral roll

• determination of liability for jury service

• summons

• selection of a panel from the jury pool

• selection from the jury panel.

2.25 In some instances where only one trial is listed for the day, the JCO will only summons the number of people required for the panel (with some extras to account for absentees and excuses). In these instances the entire jury pool makes up the panel and attends court, so steps four and five are combined.

2.26 The Commission’s review is primarily^[24] concerned with processes that occur as part of the fifth step. The steps are illustrated in Figure 1.

Random selection from the electoral roll

2.27 Victoria has 14 jury districts, one in Melbourne and a jury district for each court circuit.^[25] The jury districts are assigned by the Governor in Council by order published in the Victoria Government Gazette.^[26]

2.28 The Victorian jury districts are Bairnsdale, Ballarat, Bendigo, Geelong, Hamilton, Horsham, Latrobe Valley, Melbourne, Mildura, Sale, Shepparton, Wangaratta, Warrnambool and Wodonga.^[27]

2.29 At the request of the Juries Commissioner, the Victorian Electoral Commission randomly selects the required number of people from each district using a computer-generated selection process. This becomes the jury roll for the district until a new jury roll is prepared.^[28]

2.30 For Melbourne, jury rolls are generated about five times a year. For some of the smaller regional courts, jury rolls are generated to coincide with the circuit, that is, around three times a year.

2.31 Certain categories of people are disqualified from jury service^[29] and certain categories of people are ineligible for jury service.^[30] As noted in Chapter 1, qualification and eligibility for jury service are not included in the terms of reference for this review, but affect representativeness by filtering out certain categories of people.^[31]

Determination of liability for jury service

2.32 All people on the jury roll, or as many people as the Juries Commissioner considers appropriate, are then sent a jury eligibility questionnaire by the JCO that must be completed and returned within a specified time.^[32] In Melbourne, prospective jurors may complete this questionnaire using the Jury Questionnaire Online System (JQOS). This system will be progressively rolled out to other jury districts.

2.33 Based on the responses to the questionnaire, the JCO makes an assessment of the person’s eligibility and qualification to serve on a jury.^[33] Information from the jury questionnaire is entered by the JCO into the Jury Information Management System (JIMS) or automatically uploaded from JQOS into JIMS.

2.34 The JCO generates a jury list, as required, from the people on the jury roll in each district who appear to be liable for jury duty.^[34] The jury list contains the name, address, date of birth and, if known, occupation of the prospective jurors.^[35]

2.35 The JCO sends the jury list to the Chief Commissioner of Police who checks whether any people on the list have been found guilty or convicted of disqualifying offences in

Victoria or another jurisdiction or are on bail or remand or are undischarged bankrupts.^[36] The JCO must then remove any disqualified people from the jury list.^[37]

Summons

2.36 When the JCO is notified that jury trials are imminent, it issues a summons and information about eligibility, deferral and excuse categories to prospective jurors on the jury list. The summons must be served no less than 10 days before the person is required to attend for jury service.^[38]

2.37 This is the second opportunity in the selection process prospective jurors have to seek to have their jury service deferred or to be excused entirely on this occasion.^[39] If their service is not deferred or they are not excused by the JCO, they are required to attend for jury service.

The jury pool

2.38 Prospective jurors are required to report to the JCO on the day listed in the summons. Upon reporting, the JCO confirms the person’s identity. The person then becomes part of the jury pool.

2.39 A jury pool supervisor checks that everyone who has been issued with a summons is present.^[40] The jury pool is then given a comprehensive orientation program that lasts approximately 40 minutes. The orientation consists of written information in the form of a juror’s handbook,^[41] an address by a jury pool supervisor and a DVD on the jury empanelment process, We the Jury.

2.40 A jury pool supervisor provides further information about jury service, including the expected length of trials, the rate of pay and the requirement for confidentiality during deliberations, and provides an opportunity for people to ask questions. He or she also reiterates the categories of excuse and invites people who wish to be excused to go to the JCO counter for a determination. People who are not excused are sent back to the jury pool room.

2.41 Once all people who have been excused have left, a jury pool supervisor confirms the names and occupations of the remaining prospective jurors in the pool. Ballot cards with the name and number and occupation of each prospective juror are generated from this list. The ballot cards for the jury pool are placed in the ballot box in the jury pool room.

2.42 When a court needs a jury, a jury pool supervisor randomly selects the required number of ballot cards from the ballot box to form a jury panel.^[42] The jury panel is the group of prospective jurors who are sent to the courtroom and from which the jury is selected. The average size of a jury panel in a criminal trial where there is one accused is 30–33 for a 7–10 day trial. The average size of a panel in a civil trial is 20–25 for a trial of up to 10 days in duration.^[43]

Selection from the jury panel

2.43 The jury panel is then taken by a court officer and a JCO staff member to the courtroom where the trial is to be heard. The ballot cards of the jury panel are handed to the judge’s associate, who places them in the court’s ballot box.

2.44 The court must inform the panel of the type of action or charge, the name of the accused in a criminal trial or the names of the parties in a civil trial, the names of the principal witnesses expected to be called in the trial, the estimated length of the trial and any other information that the court thinks relevant.^[44]

2.45 On direction of the judge, the judge’s associate then calls out the name or number and occupation of the panel members. The panel members must indicate their attendance by saying ‘Present’ or indicate whether they wish to be excused by saying ‘Excuse’. The judge’s associate must record the attendance.^[45]

2.46 The judge then determines the applications from the people who wish to be excused.^[46] The application to be excused may be made in writing or orally at the discretion of the judge. A person who is excused must return to the jury pool and may be selected or allocated to a different jury panel.^[47] If the person is not excused, they remain part of the jury panel and are liable to be selected for the jury.

Criminal trials

2.47 In criminal trials, the accused is then arraigned before the panel. The charges in the indictment are read out and the accused pleads to each charge on the indictment.^[48]

2.48 Prospective jurors are then selected from the ballot box one at a time. Each person is required to walk in front of the accused towards the jury box.

2.49 The accused may peremptorily challenge six prospective jurors and the prosecution may stand aside six prospective jurors.^[49] This is done by calling out ‘Challenge’ or ‘Stand aside’ before the prospective juror takes his or her place in the jury box.^[50] If a person is peremptorily challenged, they are permanently excluded from the jury. If a person is stood aside, their card goes back into the ballot box and they may be selected again.^[51] Peremptory challenges and stand asides are discussed in detail in Chapter 3.

2.50 Prospective jurors whose card is selected and who are not challenged sit in the jury box. When the required number of jurors (usually 12) is in the jury box, they are sworn in as the jury.^[52]

Civil trials

2.51 In civil trials, 12 cards (or more where there are multiple separately represented plaintiffs or defendants)^[53] are drawn and the names or numbers and occupations of the prospective jurors are drawn up into a list.

2.52 As explained in Chapter 3, the plaintiff’s legal practitioner and then the defendant’s legal practitioner each strike three names for each plaintiff or defendant from the list. The remaining jurors (usually six)^[54] are the jury.

The importance of following the empanelment process

2.53 There have been cases in which irregularities in the empanelment process have led to the discharge of the jury and in some cases, the allowance of an appeal against conviction.

2.54 The Criminal Procedure Act 2009 (Vic) provides that an appeal must be allowed if ‘as a result of an error or irregularity in or in relation to the trial there has been a substantial miscarriage of justice’,^[55] or if there has been a substantial miscarriage of justice for any other reason.^[56]

2.55 While not every process irregularity will result in such an outcome (as not all irregularities will result in a substantial miscarriage of justice),^[57] courts have held that an appeal must be allowed where the process irregularity results in the jury being unlawfully constituted.^[58]

2.56 A jury will be unlawfully constituted if it is constituted in a way other than provided by the Juries Act—for example, where a judge empanels an additional juror to take the place of an empanelled juror who is discharged after the jury was sworn in.^[59]

2.57 While not directly within the terms of reference, the Commission notes the importance of correctly following the empanelment process as set out in the Juries Act, to avoid a trial being aborted or an appeal against conviction on this basis.

1. Juries also have a role in determining fitness to stand trial where a judge orders an investigation into the fitness of the accused: Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) ss 7(3)(b), 8(2).

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2. Mark Findlay, ‘Juries Reborn’ (2007) 90 Reform 9. This point is also made by Justice Coldrey in the ‘We the Jury’ DVD that is shown to jurors as part of the induction process. The DVD is available online in individual segments: Courts and Tribunals Victoria, Jury Service—Online Videos (2 September 2013) <http://www.courts.vic.gov.au/jury-service/education-and-research/jury-service-online-videos>.

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3. Mark Findlay, ‘The Essence of the Jury’ (2000) 12 (2) Legaldate 6.

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4. See Jacqueline Horan and David Tait, ‘Do Juries Adequately Represent the Community? A Case Study of Civil Juries in Victoria’ (2007) 16 (3) Journal of Judicial Administration 179, 180–5.

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5. This has been argued in a number of cases, for example R v Grant & Lovett [1972] VR 423; R v Badenoch [2004] VSCA 95 and R v Woods & Williams (2010) 246 FLR 4.

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6. Victorian Parliament Law Reform Committee, Jury Service in Victoria: Final Report Volume 1 (1996) 7 [1.20].

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7. For example, one of the excuse categories is if the person has the care of dependants and alternative care during the person’s attendance for jury service is not reasonably available for those dependants: Juries Act 2000 (Vic) s 8(3)(h).

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8. International Covenant on Civil and Political Rights, signed 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976), art 14.

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9. Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter) s 24(1). The Charter is based on the International Covenant on Civil and Political Rights.

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10. Random and impartial selection, as opposed to selection by the prosecution or the state, was recognised as an essential feature of jury trials in the High Court cases of Cheatle v The Queen (1993) 177 CLR 541; Katsuno v The Queen (1999) 199 CLR 40 and Ng v The Queen (2003) 217 CLR 521.

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11. Juries Act 2000 (Vic) s 32(3).

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12. Criminal Procedure Act 1986 (NSW) s 132; Juries Act 1927 (SA) s 7; Criminal Code (WA) ss 651A–C; Criminal Code Act 1899 (Qld)

    ss 614–615E; Supreme Court Act 1933 (ACT) s 68B.

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13. The guarantee in section 80 applies to prosecution on indictment for federal offences only. However, as federal courts do not have the jurisdiction to try federal offences in the first instance, such offences are tried in state and territory courts, according to state and territory jury laws (Judiciary Act 1903 (Cth) s 68). As there is a variation in state and territory jury laws, federal offences are only subject to those provisions of state and territory jury laws that reflect the ‘essential features’ of jury trials. A summary of these essential features is provided in Justice Kirby’s judgment in Ng v The Queen (2003) 217 CLR 521, 533.

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14. Thomson Reuters, Halsbury’s Laws of Australia (at 15 June 2013) 5 Civil Procedure, ‘5.7 Trial and Execution of Judgments’ [5.7.870].

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15. Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 47.02(1).

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16. Halligan v Curtin [2013] VSC 124 (22 March 2013) [15] citing Trevor Roller Shutter Services Pty Ltd v Crowe (2011) 31 VR 249.

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17. Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 47.02(3).

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18. Ibid r 47.04.

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19. Thomson Reuters, above n 14 [5.7.930].

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20. Courts and Tribunals Victoria, Facts & Figures (2 September 2013) <http://www.courts.vic.gov.au/jury-service/about-jury-service/

    facts-figures>.

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21. Data provided by the Juries Commissioner’s Office.

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22. Juries Act 2000 (Vic); Jury Act 1977 (NSW); Jury Act 1995 (Qld); Juries Act 2003 (Tas); Juries Act 1927 (SA); Juries Act 1957 (WA); Criminal Procedure Act 2004 (WA) pt 4 div 6; Juries Act 1967 (ACT); Juries Act 1963 (NT).

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23. See Appendices A and B.

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24. The decision to empanel additional jurors does form part of the empanelment process. The balloting of additional jurors when the jury retires to consider its verdict, however, is not part of the empanelment process.

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25. Juries Act 2000 (Vic) s 18(1).

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26. Ibid s 18(2) and (3).

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27. Victoria, Government Gazette, No G 12, 20 March 2003, 44 and No S 232 5 September 2006, 1.

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28. Juries Act 2000 (Vic) s 19(4).

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29. Ibid sch 1.

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30. Ibid sch 2.

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31. These issues were last considered in Victoria in 1996–7 as part of the review of jury service by the Law Reform Committee. Victorian Parliament Law Reform Committee, Jury Service in Victoria: Final Report: Volume 1 (1996). The current categories of eligibility and qualification in the Juries Act are based on the recommendations of that review.

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32. Juries Act 2000 (Vic) s 20. It is an offence to fail to complete and return the questionnaire without reasonable excuse: s 67.

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33. Ibid s 21.

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34. Ibid s 25.

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35. Ibid s 25(3).

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36. Ibid s 26(1)–(2). The list of disqualifying offences is at sch 1 of the same Act.

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37. Ibid s 26(3).

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38. Ibid s 27(2)(c).

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39. The first opportunity is at the questionnaire stage. See [2.32].

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40. Failure to attend for jury service without reasonable excuse is an offence: Juries Act 2000 (Vic) s 71.

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41. The juror’s handbook is also available to download from the Courts and Tribunal Service website: Courts and Tribunals Victoria, Attending Jury Service (2 September 2013) <http://www.courts.vic.gov.au/jury-service/attending-jury-service >.

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42. Juries Act 2000 (Vic) s 30.

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43. For discussion on how the size of the panel is determined, see Chapter 3.

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44. Juries Act 2000 (Vic) s 32(1).

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45. Ibid s 31(1).

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46. Ibid s 32(2), (3).

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47. Ibid s 32(4).

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48. Criminal Procedure Act 2009 (Vic) ss 215(1), 217.

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49. Juries Act 2000 (Vic). The number of peremptory challenges for each accused decreases where there are multiple accused persons (s 39). Similarly, the number of stand asides available to the prosecution is calibrated to take into account multiple accused persons (s 38).

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50. Ibid ss 38(2), 39(2).

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51. Ibid s 38(3).

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52. Up to three additional jurors may be empanelled in criminal trials: Juries Act 2000 (Vic) s 23(a). Additional jurors are discussed in Chapter 5.

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53. This is to take into account the increase in the number of peremptory challenges available where there are multiple plaintiffs or defendants. See Chapter 3.

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54. Up to two additional jurors may be empanelled in civil trials: Juries Act 2000 (Vic) s 23(b). Additional jurors are discussed in Chapter 5.

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55. Criminal Procedure Act 2009 (Vic) s 276(1)(b). The term ‘substantial miscarriage of justice’ for the purpose of this Act was discussed in Baini v The Queen (2012) 246 CLR 469. In that case, the court held that the term ‘substantial miscarriage of justice’ is not limited to situations where the jury has returned a verdict that was not open for them to make based on the evidence in the case, but also encompasses serious departures from process.

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56. Criminal Procedure Act 2009 (Vic) s 276(1)(c).

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57. See, for example, Caruso v The Queen [2012] VSCA 138 (27 June 2012), where the defence sought to appeal a conviction on the grounds that the judge had failed to provide part of the panel with certain information. In dismissing the appeal, the court drew a distinction between information a judge is required to provide and information the judge has discretion to provide. Special leave to appeal to the High Court was refused: Caruso v The Queen [2013] HCASL 1 (10 May 2013).

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58. R v Hall [1971] VR 293, 298–299; Wilde v The Queen [1987–1988] 164 CLR 365, 373.

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59. This was the case in R v Panozzo; R v Iaria (2003) 8 VR 548.

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