2. Jury trials in Victoria

Introduction

  1. 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. 2.2 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.
  3. 2.3 Lastly, there is a discussion of the jury selection and empanelment processes and the importance of following empanelment processes for the integrity of a trial.

The purpose of jury trials

  1. 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. 2.5 Jury trials are said to serve a number of important purposes, principally:
  • safeguarding the rights of the accused by limiting the power of the state
  • ensuring justice is administered in line with the community’s standards, rather than just those of judges, who may not be considered representative of the broader community2
  • 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
  1. 2.6 Two important principles underpin jury trials and are necessary to meet the purposes described above. They are representativeness and impartiality.

Representativeness

  1. 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 members of the accused’s own community on the jury.5 However, for the purposes of this report, the Commission adopts the definition used by the Victorian Parliament Law Reform Committee in its 1996–97 review of jury service in Victoria. In that report representativeness was defined as:

an accurate reflection of the composition of [Victorian] society, in terms of ethnicity, culture, age, gender, occupation, socio-economic status (etc).6

  1. 2.8 To achieve representativeness, the jury selection and empanelment process uses random selection. However, there are rules and processes 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. 2.9 While it is outside the Commission’s terms of reference to consider these rules and processes 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

  1. 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 exercise their functions in the case fairly.
  2. 2.11 Impartiality is central to the concept of a fair trial. For example, the International Covenant on Civil and Political Rights8 and Victoria’s Charter of Human Rights and Responsibilities9 both provide a right to a hearing before a ‘competent, independent and impartial’ tribunal.
  3. 2.12 Impartiality is achieved through the random selection process,10 as well as the ability of a court to excuse prospective jurors who may not be impartial or who are unable to serve,11 and the various categories of challenge that are available and discussed in Chapter 3.

The availability of jury trials in Australia

  1. 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.12
  2. 2.14 Jury trials are available in the Federal Court for the offences of engaging in cartel conduct,13 although to date no jury trials for these offences have been held in the Federal Court.14
  3. 2.15 The Federal Court of Australia Act 1976 (Cth) also preserves the power of that Court to order civil jury trials.15 A Federal Court jury trial was ordered for a defamation matter in 2009,16 but the matter settled before the trial commenced.17 To date there have been no other civil jury trials ordered by the Federal Court.18
  4. 2.16 Two criminal jury trials have been conducted by the High Court, although the most recent of these occurred in 1942.19

Criminal trials

  1. 2.17 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. 2.18 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 the accused has elected to be tried by judge alone without a jury.20 As noted at [1.4], the Commission was not asked to consider whether juries are desirable, or to consider alternatives to jury trials.
  3. 2.19 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. With the exception of the cartel offences noted at [2.14], jury trials for federal offences are heard in state and territory courts. In trials for federal offences in state courts, state procedural laws (including the Juries Act 2000 (Vic)) will be applied, so long as they are not inconsistent with section 80 of the Constitution or Commonwealth laws.21 In particular, state laws regarding juries will not be applied if they are inconsistent with the ‘essential features’ of a trial by jury that are protected by section 80 of the Constitution.22

Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) matters

  1. 2.20 Juries are also used in procedures under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (CMIA). The CMIA applies where a question is raised about the fitness of a person accused of an indictable criminal offence to stand trial because of disordered or impaired mental processes or where a defence of mental impairment is raised. The CMIA provides for investigation into the unfitness of an accused, and a process to be followed where the accused has been found unfit.
  2. 2.21 Under the CMIA, a jury is required:
  • to determine the question of unfitness to stand trial in an investigation presided over by a judge23
  • where there is a special hearing24
  • where a defence of mental impairment is raised.25

Civil trials

  1. 2.22 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.26
  2. 2.23 In Victoria, jury trials are available as of right on application by the plaintiff or defendant in civil proceedings for which a common law remedy is sought.27 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.28
  3. 2.24 However, even where a plaintiff or defendant requests a trial by jury, the court may still order the trial to be by judge alone.29 Further, the court may order that some questions of fact be determined by a jury and others by judge alone.30
  4. 2.25 Civil jury trials are held significantly more often in Victoria than in other Australian jurisdictions.31

The number of jury trials in Victoria

  1. 2.26 Jury trials make up a very small proportion of court cases in Victoria.32 There were a total of 584 Supreme and County Court jury trials in 2012–13. Of those, 501 were criminal matters and 83 were civil matters. 448 jury trials were held in Melbourne and 136 were held in regional Victoria.33
  2. 2.27 A total of 6446 jurors were empanelled—4958 in Melbourne and 1488 in the regions.34

The law regulating jury trials in Australia

  1. 2.28 The jury selection and empanelment process is regulated by state and territory law,35 although the Federal Court of Australia Act 1976 (Cth) now provides for jury trials in the Federal Court for the federal cartel offences noted at [2.14].36
  2. 2.29 While there are many similarities between the laws, there are also some differences. For example, while all Australian jurisdictions allow peremptory challenges, the number of challenges that can be made is not consistent.37

The law regulating jury trials in Victoria

  1. 2.30 Juries in Victoria are regulated by 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. 2.31 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).
  3. 2.32 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 (this does not occur in regional areas where the whole jury pool constitutes the jury panel. See [2.52])
  • selection of the jury from the jury panel.
  1. 2.33 The Commission’s review is primarily38 concerned with processes that occur as part of the fifth step. The steps are illustrated in Figure 1 below.

Random selection from the electoral roll

  1. 2.34 Victoria has 14 jury districts, one in Melbourne and a jury district for each circuit town.39 The jury districts are assigned by the Governor in Council by order published in the Victoria Government Gazette.40
  2. 2.35 The Victorian jury districts are Bairnsdale, Ballarat, Bendigo, Geelong, Hamilton,
    Horsham, Latrobe Valley, Melbourne, Mildura, Sale, Shepparton, Wangaratta, Warrnambool and Wodonga.41
  3. 2.36 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 process. This becomes the jury roll for the district until a new jury roll is prepared.42
  4. 2.37 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.
  5. 2.38 Certain categories of people are ineligible for jury service, including lawyers, public servants involved in the administration of the justice system and holders of certain public offices.43 Others are disqualified from jury service (usually for a limited period of time) as a result of findings of guilt or convictions in relation to certain serious offences, because they are on bail or remand or are undischarged bankrupts.44 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.45

Determination of liability for jury service

  1. 2.39 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.46 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.47
  2. 2.40 Based on the responses to the questionnaire, the JCO makes an assessment of the person’s eligibility and qualification to serve on a jury.48 Information from the jury questionnaire is entered by the JCO into the Jury Information Management System (JIMS) or automatically uploaded from JQOS into JIMS.
  3. 2.41 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.49 The jury list contains the name, address, date of birth and, if known, occupation of the prospective jurors.50
  4. 2.42 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 a disqualifying offence in Victoria or another jurisdiction.51 The JCO must then remove any disqualified people from the jury list.52

Summons

  1. 2.43 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.53
  2. 2.44 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.54 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

  1. 2.45 Prospective jurors are required to report to the JCO on the day listed in the summons. On reporting, the JCO confirms the person’s identity. The person then becomes part of the jury pool.
  2. 2.46 A jury pool supervisor checks that everyone who has been issued with a summons is present.55 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,56 an address by a jury pool supervisor and a DVD on the jury empanelment process, We the Jury.
  3. 2.47 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.
  4. 2.48 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 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.
  5. 2.49 The process then differs depending on whether the trial is being held in Melbourne or a regional area.
  6. 2.50 In Melbourne, where multiple trials are held on the same day, a large jury pool is summonsed for a particular day, and various groups of jurors known as a ‘jury panel’, are selected from the jury pool to be prospective jurors for the different trials.
  7. 2.51 To generate the jury panels from the jury pool, a jury pool supervisor randomly selects the required number of ballot cards from the ballot box.57 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.58
  8. 2.52 Jury panels are not used in the regions, as jury trials are rarely held concurrently.59 Consequently, in the regions, the entire jury pool that attends in response to the summons constitutes the jury panel.

Selection from the jury panel

  1. 2.53 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. 2.54 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.60
  3. 2.55 On direction of the judge, the judge’s associate then calls out the name or number of the panel members. The panel members must indicate their attendance by saying ‘Present’. Some judges request that panel members indicate whether they wish to be excused at this time by saying ‘Excuse’ instead of ‘Present’. The judge’s associate must record the attendance.61
  4. 2.56 The judge then determines the applications from the people who wish to be excused.62 Applications to be excused may be made in writing or orally, depending on the process preferred by the judge.63 A person who is excused must return to the jury pool and may be selected or allocated to a different jury panel.64 If the person is not excused, they are returned to the jury panel and are liable to be selected for the jury.
Criminal trials
  1. 2.57 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.65
  2. 2.58 Prospective jurors are then selected from the ballot box one at a time. As their name or number and occupation is called out,66 the prospective juror stands and walks towards the jury box. In Victoria, the practice is almost invariably to require prospective jurors to walk in front of the accused on their way to the jury box.
  3. 2.59 The accused may peremptorily challenge six prospective jurors and the prosecution may stand aside six prospective jurors.67 This is done by calling out ‘Challenge’ or ‘Stand aside’ before the prospective juror takes his or her place in the jury box.68 If a person is peremptorily challenged, they are permanently excluded from the jury. If a person is stood aside, they return to their seat but remain part of the panel.69 Peremptory challenges and stand asides are discussed in detail in Chapter 3.
  4. 2.60 Prospective jurors who are not challenged proceed to the jury box. When the required number of jurors (usually 12) is in the jury box, they are sworn or affirmed as the jury.70
Civil trials
  1. 2.61 In civil trials, 12 cards (or more where there are multiple plaintiffs or defendants)71 are drawn from the ballot box. The names or numbers and occupations of those drawn are called72 and the prospective jurors stand so that the lawyers for the parties can identify who they are.
  2. 2.62 The plaintiff’s legal practitioner and then the defendant’s legal practitioner each strike three names for each plaintiff or defendant from the list.73 This is done in writing. The names or numbers of the remaining jurors (usually six)74 are then called out and, once sworn or affirmed, constitute the jury.

The importance of following the empanelment process

  1. 2.63 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. 2.64 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’,75 or if there has been a substantial miscarriage of justice for any other reason.76
  3. 2.65 While not every procedural irregularity will result in such an outcome (as not all irregularities will result in a substantial miscarriage of justice),77 courts have held that an appeal must be allowed where the procedural irregularity results in the jury being unlawfully constituted.78
  4. 2.66 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 has been sworn in.79
  5. 2.67 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.

Footnotes

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