Jury Empanelment: Report (html)

6. Other issues

Introduction

6.1 This chapter discusses a number of issues related to the jury system that were raised with the Commission in the course of this reference, but are outside the terms of reference.

6.2 While the Commission has not made recommendations in relation to these issues, it considers it important to raise the issues as part of a general examination of the jury empanelment process.

6.3 The issues discussed in this chapter are:

• issues particular to the regions

• the excuse process

• the return of discharged jurors to the jury pool.

Issues particular to the regions

6.4 As outlined in Chapter 1, the Commission visited four regional centres—Shepparton, Bendigo, Geelong and Morwell—to observe jury empanelments. The Commission also spoke to court staff and jury keepers in these regions.

Court buildings

6.5 The Commission observed that the older court buildings in Shepparton and Bendigo pose some difficulties for jury trials.

6.6 The jury pool rooms in both of these regions are small and do not comfortably accommodate a large number of prospective jurors. Jury pools are often quite large in regional areas, to account for the possibility that there will be an increased number of excuses based on knowledge of a party or witness.

6.7 In Bendigo, on the day the Commission attended, the jury induction was held in the foyer of the courtroom to accommodate the large jury pool. The design of the building meant that it was difficult to hear the induction.^[1]

6.8 In Shepparton, on the day the Commission attended, around 80 prospective jurors were in the jury pool. Approximately 15 prospective jurors were required to stand in the courtroom for over an hour during the empanelment process because there were not enough seats.

6.9 The Commission observed that the acoustics were particularly poor in the Shepparton court. This was mentioned by the judge in the context of excuses and a few people did apply to be excused on the grounds that they could not hear well in the courtroom.^[2]

6.10 The Commission was told that in some of the smaller regions, inductions are conducted outside, as there are inadequate facilities.

Increased attendance for jury service

6.11 Another issue raised by court staff was the fact that in the regions, prospective jurors are more likely to be summoned to attend for jury service several times, as there is a smaller population to draw on.

6.12 The court staff the Commission spoke to were keenly aware of this issue and emphasised the importance of providing good service to and reducing the burdens on prospective jurors in regional areas. One senior registrar noted that word travels quickly in the regions, and one person’s bad experience may influence the way others view jury service.^[3]

Delays associated with the discharge of juries

6.13 In the regions, a jury pool is summoned for a period of three days during the visit of the circuit. The jury pool is generally discharged once the jury is selected and sworn in. If the jury is discharged on the first or second day, generally the trial will be delayed until a new pool attends on the fourth day because of the difficulty of calling in more prospective jurors outside of the three-day cycle.

6.14 Where only one courtroom is available for jury trials (as is the case in most regional areas), delays can have a flow-on effect because trials cannot be scheduled concurrently.

Excuses

6.15 In Chapter 2, the Commission outlined the various stages at which a person who is randomly selected may seek to be excused from jury service. The final opportunity occurs during the jury empanelment process. It is at this point that the trial judge must advise the panel of:

• the type of case or charges to be heard

• the name/s of the parties

• the names of the principal witnesses

• the estimated length of the trial.^[4]

6.16 The judge must also advise the panel of ‘any other information that the court thinks relevant’,^[5] which often includes further background information about the case.

6.17 Based on this information, panel members are then called on to seek to be excused from jury service on the grounds that they consider they may be unable to consider the case impartially, or are unable to serve for any other reason.^[6]

6.18 Panel members are also given another opportunity at this stage to seek excusal on grounds they might have advised the Juries Commissioner’s Office of earlier, such as medical grounds, pre-booked travel commitments, or serious financial hardship arising from having to attend for jury service.

6.19 Typical grounds for excusal at this stage might be:

• The prospective juror knows a party, lawyer or a key witness involved in the trial.

• The prospective juror has a personal connection to that particular case.

• The circumstances of the case are such that the prospective juror does not believe they can decide the issues impartially (for example, the case may involve culpable driving, and the prospective juror has lost a family member in similar circumstances).

6.20 An average of 4.6 prospective jurors are excused during each jury empanelment in Victoria. This number can increase significantly in regional trials (where the parties or witnesses may be known to many panel members), in long trials, in particularly unpleasant cases, and in cases of high notoriety.

6.21 As the Commission notes in Chapter 3, the opportunity for prospective jurors to seek excusal at this stage is an important way in which the impartiality of the jury is protected.^[7]

Process for excuses in Victoria

6.22 Beyond specifying what information must be provided to prospective jurors, the Juries Act 2000 (Vic) (Juries Act) does not provide any detail about the excuse process. The Commission’s consultations and observations revealed that a variety of different methods are used by judges.

6.23 As noted at [6.15], the judge is required to provide certain information to the jury so that they can decide whether to seek to be excused. Some judges provide this information in writing—for example, by providing the panel with a written list of witnesses. Others prefer to read out the names of key witnesses.

6.24 The Commission also observed and was told about a range of processes for taking excuses, including by:

• sworn oral application

• unsworn oral application

• written application signed by the prospective juror

• unsigned written application.

6.25 Some judges adopt a standard procedure for all trials, whereas others vary their practice depending on the nature of the case. For example, a judge may typically take excuses by swearing in prospective jurors to provide an oral excuse application, but allow written excuses for cases involving sensitive issues such as sexual abuse.

6.26 Sometimes a prospective juror’s written or oral excuse application can lead to further questioning by the trial judge. The trial judge may also confer with the parties to see if they have any concerns about the prospective juror participating on the jury.

Issues arising from the Commission’s consultations and observations

6.27 Judges consulted by the Commission felt that a flexible approach to hearing excuses was important to cater for different cases and circumstances. Some of the judges consulted by the Commission were interested in the excuse-taking practices of other judicial officers, and considered that there would be benefit in greater collaboration within and across the courts in this area.^[8]

6.28 In its observations, the Commission also noted the varying approaches of judicial officers in granting excuses. While jury service is not voluntary,^[9] judges have a broad discretion to grant excuses.^[10] Some judges took a fairly hard line with prospective jurors and emphasised the importance of jury service, whereas others excused most or all of the prospective jurors who applied without further questioning them.

6.29 As noted in Chapter 3, many practitioners consulted stated they would be likely to challenge a prospective juror who had unsuccessfully sought to be excused, as such prospective jurors are generally considered to be unwilling to serve and therefore may not bring their full commitment to the task.^[11]

6.30 One practice the Commission observed that may be of benefit in empanelments generally, was to provide a second opportunity for panel members to seek excusal immediately following the determination of excuse applications. This gives more timid prospective jurors, or prospective jurors who did not immediately appreciate that they should seek to be excused, another chance to do so. In making this suggestion, the Commission notes that the empanelment process can seem quite foreign to prospective jurors, many of whom have never before been inside a courtroom.

The return of discharged jurors to the jury pool

6.31 The Juries Regulations 2011 (Vic) provide that a discharged jury must be returned to the jury pool.^[12] It is likely that this regulation was introduced to promote the efficient use of jurors.^[13]

6.32 However, there is no bar on discharged jury members being selected for a panel for the same trial.

6.33 The Victorian Director of Public Prosecutions expressed concern about this given the possibility of the discharged jury being exposed to prejudicial information^[14] and the Director’s Policy on Juries identifies this situation as one where it would be appropriate to stand aside a prospective juror who was balloted for the jury.^[15]

6.34 The Commission considers this issue should be reviewed by the government in consultation with the Juries Commissioner and the legal profession.

1. The Commission is aware that plans have been approved to upgrade justice facilities in Bendigo, including providing an additional courtroom and enhanced court facilities: Attorney-General (Vic), ‘Builder named for Bendigo court precinct development’ (Media Release, 20 December 2013) <http://www.premier.vic.gov.au/media-centre/media-releases/8806-builder-named-for-bendigo-court-precinct-development.html>.

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2. Funding for the redevelopment of the Shepparton court complex was also recently announced by the government: Attorney-General (Vic) and Deputy Premier (Vic), ‘New court complex for Shepparton’ (Media Release, 1 May 2014) <http://www.premier.vic.gov.au/media-centre/media-releases/9788-new-court-complex-for-shepparton.html>.

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3. Consultation 3 (Senior registrar, registrar and jury keeper, Shepparton Law Courts, Victoria).

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

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5. Ibid s 32(1)(e).

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6. Ibid ss 32(2)–(3).

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7. [3.120].

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8. Consultation 22 (Judges of the County Court of Victoria).

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9. Juries Act 2000 (Vic) s 5(1).

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10. Ibid s 32(3).

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11. See [3.163].

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12. Juries Regulations 2011 (Vic) reg 9(2).

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13. This is one of the stated objectives of the Juries Regulations 2011 (Vic). See reg 1(a).

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14. Submission 12 (Victorian Director of Public Prosecutions).

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15. Director of Public Prosecutions, Director’s Policy No 6: Juries (21 February 2014) 7.

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