3. Peremptory challenges

 

Introduction

  1. 3.1The Commission’s terms of reference are to consider peremptory challenges in criminal and civil trials, and the Crown right to stand aside jurors in criminal trials with regard to:

    resourcing implications

    the representativeness of the jury

    the impartiality of the jury

    procedural fairness

    the effects on jurors.

  2. 3.2 The Commission has also been asked to consider the approach of other jurisdictions in Australia and overseas, and existing alternative mechanisms, with a view to recommending whether any procedural, legislative or administrative changes should be made.
  3. 3.3 This chapter describes the current law and practice of peremptory challenges in Victoria and other comparable jurisdictions, and how they have developed over time. The chapter then sets out the key issues raised by the terms of reference in relation to peremptory challenges. Finally, options for reform are considered, together with questions to guide submissions and consultations.

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Peremptory challenges and the Crown right to stand aside

  1. 3.4 Peremptory challenges and the Crown right to stand aside (‘stand asides’) are challenges to prospective jurors during the final stage of the selection of the jury. They are made by the parties and do not require any reason to be provided for the challenge.
  2. 3.5 Peremptory challenges result in the immediate, permanent exclusion of the challenged person from the jury panel.1 In contrast, a prospective juror who is stood aside is not permanently excluded from the jury panel and may be balloted again at random.2
  3. 3.6 Peremptory challenges are allowed in both criminal and civil jury trials in Victoria,3 and stand asides are allowed in criminal trials.4 The only exception is investigations made under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).5
  4. 3.7 Peremptory challenges and stand asides are different from challenges for cause because, as the name suggests, a reason must be provided when challenging for cause. Challenges for cause are discussed at [3.119][3.131] below.

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Current law

  1. 3.8 Peremptory challenges exist in one form or another in all Australian jurisdictions and most other common law jurisdictions for both criminal and civil jury trials.
  2. 3.9 The main exception to this is the United Kingdom, where peremptory challenges were abolished in England and Wales in 1988,6 Scotland in 19957 and Northern Ireland in 2007.8
  3. 3.10 In Australia, the number of challenges available to parties varies by jurisdiction, as does the nature of the Crown right to challenge, the information available to the parties, and the process for challenges.

The number of challenges available

  1. 3.11 In Victorian criminal trials (which usually have 12 jurors),9 an accused is entitled to peremptorily challenge up to six prospective jurors10 and the Crown is entitled to stand aside up to six prospective jurors.11 The number of peremptory challenges and stand asides available to each party decreases where there is more than one accused in criminal proceedings. There are up to five peremptory challenges for each accused where there are two accused,12 and up to four peremptory challenges each where there are three or more accused.13 Similarly there are up to 10 stand asides where there are two accused,14 and four stand asides for each accused where there are three or more accused.15
  2. 3.12 In Victorian civil trials (which usually have six jurors),16 parties are entitled to challenge three prospective jurors.17 In cases involving multiple plaintiffs or defendants, each individual plaintiff or defendant may challenge up to three prospective jurors unless they are represented by the same legal practitioner.18 So, for example, in a trial involving one plaintiff and two defendants (who all have different lawyers), the plaintiff would be able to challenge three jurors, and each defendant would similarly be entitled to challenge three jurors.
  3. 3.13 The number of peremptory challenges and stand asides available does not increase in Victoria where additional jurors are empanelled,19 as is the case in some other jurisdictions.20
  4. 3.14 Appendices A and B set out the number and nature of peremptory challenges and stand asides in each Australian jurisdiction.
  5. 3.15 Regardless of the current number of peremptory challenges and stand asides available, the trend in Victoria and other jurisdictions21 has been to reduce the number of challenges available over time.22
  6. 3.16 In Victoria, the number of peremptory challenges available in criminal proceedings was reduced from 15 (or 20 for capital offences) in 1890,23 to eight in 1928,24 to six in 1993.25 Reductions to the numbers available where there are multiple accused were also introduced in 1993.26
  7. 3.17 The most recent reductions were justified on the basis that they would ‘produce significant savings in the administration of the jury system’. They were further justified on grounds that challenges, particularly where multiple accused are involved, can ‘lead to distortions in the representative nature of the jury’.27
  8. 3.18 The number of challenges available has been debated in other jurisdictions in recent years on the ground that the number of challenges can affect the representativeness of juries. For example, the Law Commission of New Zealand found that ‘[s]ix challenges is enough to fulfil the [core functions of peremptory challenges]28 while not being enough to upset the random nature of the balloting process’.29 Similarly, a jury researcher stated that six challenges were not sufficient to fundamentally alter the representativeness of juries.30 This is because pre-empanelment selection processes are still essentially random,31 and a party cannot actively select jurors.

The nature of the Crown right to challenge

  1. 3.19 The Crown in Victoria has a right to stand aside, but not to peremptorily challenge. The nature of the Crown’s right to challenge varies between jurisdictions and has changed over time in Victoria.
  2. 3.20 In some jurisdictions the Crown has a right to both peremptorily challenge and stand aside,32 whereas in other jurisdictions the Crown has peremptory challenges only.33 In Victoria and Tasmania, the Crown only has a right to stand aside.
  3. 3.21 The Crown right to stand aside was first specifically provided for in Victorian legislation
    in 1928.34 At that time, there was no limit on the number of stand asides available to
    the Crown.
  4. 3.22 In 1993, the Crown right to stand aside was abolished and replaced with a right to peremptorily challenge equivalent to that of the defence.35While the second reading speech for the amendment did not explain why the nature of the right was changed, it explained that the introduction of the cap on the number of challenges available addressed ‘a concern that any reduction in the number of challenges available to the defence is unfair unless the prosecution’s right is similarly restricted’.36
  5. 3.23 The Crown right to stand aside was reintroduced in the current Juries Act 2000 (Vic) (the Juries Act), although the number available remained at six.37
  6. 3.24 The return to stand asides was likely based on a recommendation of the Victorian Parliament Law Reform Committee’s 1996 report on Jury Service in Victoria.38 On the basis of evidence from the Director of Public Prosecutions, the Law Reform Committee recommended that a right in the Crown to peremptorily challenge prospective jurors should be substituted for a right in the Crown to stand aside.39
  7. 3.25 The second reading speech for the Juries Act stated that the 1993 reforms had ‘created the misleading impression that the prosecution has the same right as the accused to have persons excluded from the jury’ and that ‘[i]t 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.’40
  8. 3.26 The Director of Public Prosecutions has published detailed guidelines on the exercise of the right to stand aside.41The guidelines distinguish stand asides from peremptory challenges as follows:

Whilst the Crown’s right to stand aside is comparable to the Accused’s peremptory right to challenge, the criteria for exercising the rights are quite different. The Accused can justifiably exercise the right of challenge to seek a jury receptive of the defence case.
The Crown, however, must not be seen to select a jury to produce one that is favourable to the Crown, as this is not consistent with the role of the Prosecution in the conduct
of a trial.42

  1. 3.27 The guidelines explain that the Crown’s paramount concern with respect to a jury is that it be impartial, balanced, and comply with all the necessary requirements of the Juries Act to avoid the trial being fundamentally flawed in such a way as to cause the trial to miscarry.43
  2. 3.28 The guidelines state that it is appropriate for the Crown to exercise the right to stand aside if it becomes apparent that a prospective juror’s inclusion could in some way undermine the integrity of the jury, or the jury system as a whole. For example, if there is a reasonable basis for apprehended bias, the juror is obviously hostile to the process,
    or the juror is otherwise incapable of discharging their duty due to a disability or some other reason.44
  3. 3.29 The guidelines emphasise that the Crown must not be seen to select a jury favourable to the Crown and that stand asides should never be used on the basis of generic factors such as age, gender, race, physical appearance or occupation.45

The information available to the parties

  1. 3.30 Very limited information about prospective jurors is available to the parties in Victoria before challenges are made. For both criminal and civil trials in Victoria, this information is limited to the person’s:
  • name (if the judge chooses to call the panel by name rather than number—
    see Chapter 4)
  • current occupation46
  • physical appearance.47
  1. 3.31 There are some differences in the type of information available to parties in other Australian jurisdictions and the point in time at which the information is available. For example, in some jurisdictions the address48 or suburb49 is available to the parties and in most jurisdictions parties are able to see the information prior to empanelment.50 The differences between Australian jurisdictions are set out in Appendix C.
  2. 3.32 A very different approach is taken in the United States, where lawyers ask questions about the juror, either to the court or to the juror directly.51 This process is known as a ‘voir dire’. The answers to these questions then inform lawyers’ decisions in exercising their party’s peremptory challenges.

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The peremptory challenge and stand aside process

  1. 3.33 The peremptory challenge and stand aside process differs between criminal and civil trials in Victoria. There are also some differences in process between jurisdictions in Australia. The effect of the process on jurors is discussed at [3.114]–[3.117] below.

Criminal trials

  1. 3.34 Following the calling of the panel, introductory remarks from the trial judge, the hearing of excuses and the arraignment, the associate to the trial judge draws a card with the name or number and occupation of the prospective juror from the ballot box. The name or number52 and occupation of the prospective juror is called out.53
  2. 3.35 The prospective juror must then stand and walk in front of the accused and then towards the jury box.54
  3. 3.36 If the accused (usually assisted by a lawyer)55 says ‘Challenge’ or the Crown says ‘Stand aside’ before the prospective juror sits down in the jury box,56 the prospective juror must resume his or her seat with the rest of the panel in the body of the court. Challenges must be voiced by the accused unless there is a ‘very good reason’ to depart from this ‘usual practice’.57
  4. 3.37 If challenged, the prospective juror’s ballot card is set aside and cannot be recalled for that trial.58
  5. 3.38 If stood aside, the prospective juror’s ballot card is immediately returned to the box and may be redrawn.59 If the same prospective juror’s card is redrawn and the Crown wishes to exclude the person from the jury, they must challenge for cause.60
  6. 3.39 The jury is selected once 12 jurors are seated in the jury box.61

Civil trials

  1. 3.40 Following the calling of the panel, the associate to the trial judge draws the cards for prospective jurors from the ballot box. In a typical civil proceeding with one plaintiff and one defendant, 12 names are drawn to allow for three challenges for each party. If there are more than two separately represented parties, three additional names for each additional party will be drawn to allow all separately represented parties to exercise their three challenges.62
  2. 3.41 The associate calls out the name or number and occupation of each prospective juror selected.63 As his or her name or number and occupation is called out, the prospective juror must stand until the next name or number is called. As the barristers usually sit at the bar table with their backs to the panel, they usually will turn to look at each prospective juror as they stand.
  3. 3.42 A list of the prospective jurors is then provided to the parties. First the plaintiff and then the defendant or defendants strike three names from the list, leaving six jurors. This is done in writing.
  4. 3.43 The names or numbers of the remaining six jurors on the list are then called. The jurors who are called proceed to the jury box and, once sworn in, are the jury for the trial.

Other Australian jurisdictions

  1. 3.44 The peremptory challenge and stand aside process in most other jurisdictions is similar to that in Victoria.
  2. 3.45 Victoria is, however, unique among Australian jurisdictions in the strict practice of requiring prospective jurors to walk in front of the accused in criminal trials.64
  3. 3.46 The other major differences in the challenge process between jurisdictions are:
  • challenging ‘out’ of the jury box, instead of challenging as the person proceeds towards the jury box
  • using a combination of the written strike-out process and a balloting process.
  1. 3.47 In New South Wales, for both criminal and civil trials, a full jury is balloted and seated in the jury box. Once in the jury box, the jurors’ numbers are called a second time. Both the Crown and the defence then have the opportunity to challenge prospective jurors out of the box.65 As a prospective juror is challenged off the jury, a new prospective juror is balloted on to take his or her place. This process continues until the full number of unchallenged jurors is seated in the jury box. A similar process is used in Tasmania.66
  2. 3.48 For civil jury trials in Western Australia, each party challenges by striking off up to six names from a list of at least 20. The jury is selected by ballot from the remaining unchallenged jurors.67

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Use of peremptory challenges and stand asides

  1. 3.49 The Commission conducted a number of preliminary consultations with legal practitioners about their experiences of exercising peremptory challenges and stand asides, including the basis upon which they exercise their challenges.

Peremptory challenges

  1. 3.50 A number of criminal defence practitioners advised that their primary purpose in peremptorily challenging is to remove people that they or their client consider may undermine their prospects of a fair trial.
  2. 3.51 This includes prospective jurors who:
  • should have sought to excuse themselves from the panel, for example because they know the accused or another party,68 or who appear to have a sensory or other disability that would impede their ability to listen, view or process the evidence in the trial69
  • clearly do not want to serve on the jury (which might be apparent from their demeanour, or the fact they have unsuccessfully sought to be excused)
  • have displayed some behaviour which suggests they may not be impartial, such as scowling at the accused
  • may be biased (in the opinion of the accused or their lawyer) on the basis of assumptions made about the person’s characteristics that are known to the defence: name (in some cases), gender, race, age and occupation.
  1. 3.52 Civil practitioners consulted by the Commission tended to focus on ensuring a jury that was likely to be sympathetic to their client’s case. For example, in personal injury trials (where the amount of damages is often at issue) people on low incomes might be seen as undesirable by the plaintiff.70 Similarly, people with an obvious trade union affiliation might be perceived by a defendant employer to be hostile to their case.71

Stand asides

  1. 3.53 Stand asides are used far less frequently in criminal trials than accused peremptory challenges. The JCO advised that in 2012–13 only 76 stand asides were made, compared with 2405 peremptory challenges.
  2. 3.54 As outlined at [3.26][3.29] above, the Director of Public Prosecutions’ policy is to only use stand asides to ensure the jury is impartial, balanced, and complies with the requirements of the Juries Act.
  3. 3.55 Some defence practitioners stated that the defence sometimes asked the Crown to stand aside jurors where it is obvious that the person should have sought to be excused.

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Resourcing implications

  1. 3.56 The most significant resourcing implication arising from peremptory challenges and stand asides is the impact on the size of the panel and pool.
  2. 3.57 The Juries Commissioner’s Office (JCO) advised that in Victoria the standard formula for assessing a jury panel size is to add an additional person to the panel for each challenge available to the parties. So, for each criminal trial involving one accused, the JCO provides an additional 12 people to allow for six peremptory challenges and six stand asides. Allowances are also made for excuses and challenges for cause.
  3. 3.58 The JCO advised that standard panel sizes for 12-person juries72 are as follows:
  • 20–25 persons in civil panels73
  • 30–33 persons in criminal panels.74
  1. 3.59 The JCO advised that larger panels are often required in regional areas because the prospective jurors are more likely to know one of the parties or a witness. However, as knowledge of a party is a reason to be excused, the larger size of regional panels (in theory at least) should not be attributed to peremptory challenges and stand asides, but rather to the likely number of applications for excuse.75
  2. 3.60 The panel size, in turn, determines the pool size required. So peremptory challenges add to the cost of the empanelment process, requiring more people to attend for jury service than would otherwise be the case. However, the relationship between the size of the pool and the size of the panel required is not a simple one-to-one relationship—the JCO does not bring in an extra prospective juror for every possible challenge. This is because prospective jurors who are not selected for one trial return to the jury pool and may be selected for another jury.76
  3. 3.61 The JCO advised that there is a fixed cost associated with having jury trials in Victoria (such as staffing and facilities at the JCO and the courts). On top of this, the cost associated with each prospective juror attending for jury service is approximately $46 per juror. This comprises the $40 jury service fee paid to the pool member, and approximately $6 in administrative costs to the JCO.
  4. 3.62 In addition to the cost to the government of larger jury pools, employers bear the cost and inconvenience of having to pay the salary of the staff member called for jury service,77 and lose the benefit of their productivity for at least one day.
  5. 3.63 In 2012–13, there were 584 jury trials in Victoria. Out of a total of 23,577 prospective jurors who attended court, 6446 jurors were empanelled. There were 2701 excuses78 and approximately 3000 challenges.
  • 5948 jurors were empanelled for criminal trials,79 and of these a total of 2481 jurors were challenged by the parties (2405 challenges by accused persons80 and 76 stand asides). There was an average of five challenges per criminal jury trial empanelment.
  • 498 jurors were empanelled for civil trials81 and approximately 500 jurors were challenged.82
  1. 3.64 Similarly, in 2011–12, 6440 jurors were empanelled out of a total of 23,701 prospective jurors who attended court.83 There were also 2946 excuses and approximately 3150 juror challenges/stand asides in 2011–12.
  2. 3.65 The Commission also heard that the challenge process lengthens the time needed for empanelment, which adds to cost. However, this was not considered particularly significant when compared with the time taken for excuses and the judge’s initial address to the panel.84
  3. 3.66 In complex trials involving multiple accused, peremptory challenges can create logistical complexities as well as greatly increased costs. For example, the Victorian Supreme Court trial of R v Benbrika & Ors,85 which involved12 people accused of terrorist offences, required the attendance of over 1000 prospective jurors.86 The empanelment occurred over two days. The combined 96 available challenges to the parties was the main reason that the pool and the panel had to be so large, although the complexity and length of the trial also contributed to the size of the panel.

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The representativeness of the jury

  1. 3.67 As noted in Chapter 2, a number of the jury selection rules and processes prior to empanelment reduce the representativeness of the jury pool. It is argued that peremptory challenges further threaten the representativeness of the jury.87
  2. 3.68 Data provided by the JCO and studies of jury representativeness in Australia, however, indicate that juries are generally representative of the Victorian community in respect
    of gender, age and occupation, although there is a gender imbalance on juries in
    criminal trials.88
  3. 3.69 This suggests that peremptory challenges and stand asides do not have a significant effect on the representativeness of the jury.
  4. 3.70 During the empanelment there are two means by which the composition of the jury may be affected, namely:
  • excusal of jurors by the judge
  • challenges to jurors by the parties (peremptory challenges, stand asides and challenges for cause).
  1. 3.71 A gender analysis of the data provided by the JCO for 2012–1389 indicated the following:
  • of the people summoned for jury service, 50.1 per cent were female and 49.9 per cent were male
  • of those who attended for jury service, 51 per cent were female and 49 per cent male
  • 53.3 per cent of those excused (in both criminal and civil empanelments) were women.
  1. 3.72 For criminal trials:
  • 67 per cent of the 2405 challenges were to women
  • 37 per cent of the 76 stand asides were to women
  • final jury composition was 44 per cent female and 56 per cent male.
  1. 3.73 For civil trials:
  • 54 per cent of the approximately 500 challenges were to women
  • final jury composition was 51 per cent female and 49 per cent male.
  1. 3.74 Statistics for 2011–12 were similar:
  • 6026 jurors were empanelled in criminal trials and 414 jurors were empanelled in civil trials
  • 50.1 per cent of people summonsed for jury service were women and 51 per cent of people who attended for jury service were women
  • 2946 jurors were excused, 51.7 per cent of whom were women
  • 68 per cent of the 2524 challenges in criminal jury trials were to women, and 28 per cent of the 100 stand asides were to women
  • final jury composition in criminal trials was 44 per cent female and 56 per cent male
  • for civil juries, approximately 420 challenges were made, 52 per cent of which were to women
  • final civil jury composition was 52 per cent female and 48 per cent male.
  1. 3.75 These statistics suggest that the under-representation of women on criminal juries in Victoria is primarily the result of the peremptory challenge process. This gender imbalance is not reflected in civil trials.
  2. 3.76 Despite the data showing that peremptory challenges do not significantly affect representativeness, defence practitioners involved in preliminary consultations acknowledged that the exercise of peremptory challenges can give the impression that the defence is trying to skew the representativeness of the jury. This is particularly the case where a number of prospective jurors who share the characteristics that the defence is basing its peremptory challenges on (for example, young women) are selected, and therefore challenged, consecutively.
  3. 3.77 Jury researchers involved in preliminary consultations argued that prospective jurors in the courtroom who observe peremptory challenges commonly have this impression, regardless of whether they themselves are challenged. These researchers were of the view that this has the capacity to undermine public confidence in the justice system. This issue is discussed further at [3.116][3.118] below.
  4. 3.78 In its report on jury selection, the Queensland Law Reform Commission argued that, instead of reducing representativeness, peremptory challenges can be used to correct unrepresentativeness that occurs randomly.90
  5. 3.79 In recommending the retention of peremptory challenges, the Queensland Law Reform Commission characterised peremptory challenges as ‘one of the fundamental safeguards in the Act against the selection of a jury that is, or is perceived to be, biased or unfairly unrepresentative’.91
  6. 3.80 In New South Wales and Queensland, a judge may discharge the jury if he or she considers that the exercise of peremptory challenges has resulted in a jury whose composition may cause the trial to be or appear to be unfair.92
  7. 3.81 In the United States, the Supreme Court has ruled that lawyers are prohibited from using peremptory challenges to exclude jurors solely on the grounds of their race93 or gender94 because it violates the equal protection clause of the Fourteenth Amendment to the United States Constitution.95
  8. 3.82 Such protections would be very difficult to enforce in practice in Victoria, as there is no requirement to provide a reason for a peremptory challenge. Nonetheless, the Commission acknowledges that unenforceable provisions may have a useful role in norm-setting, that is, in creating an expectation about the way in which the law should operate.

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The impartiality of the jury

  1. 3.83 In the context of juries, ‘impartiality’ means that jurors do not have biases or preconceived notions that influence their ability to fairly judge the evidence in the case. As noted in Chapter 2, impartiality is crucial to the fair trial of an accused.
  2. 3.84 As discussed at [3.50], defence practitioners consulted by the Commission said that they use peremptory challenges to try to ensure an impartial jury. Their concerns about lack of juror impartiality generally fell within one of the following three categories:
  • knowledge of a party or a witness by the prospective juror
  • the demeanour of the prospective juror
  • characteristics of the prospective juror.

Knowledge of a party or a witness

  1. 3.85 Defence practitioners indicated that peremptory challenges are sometimes used to exclude a prospective juror who should have sought to be excused because they know a party or a witness. In these circumstances, defence practitioners noted that they may ask the Crown to use its stand aside, to avoid ‘wasting’ a peremptory challenge.

Demeanour of the prospective juror

  1. 3.86 Defence practitioners also told the Commission that they use peremptory challenges to exclude persons whose actions or demeanour suggest bias or prejudice. For example, a panel member may exclaim in shock during the arraignment, or glare at the accused.

Characteristics of the prospective juror

  1. 3.87 Characteristics of the prospective juror suggesting a lack of impartiality were the third example that defence practitioners used to support the right to exercise peremptory challenges.
  2. 3.88 As discussed at [3.30], the only information available to defence practitioners and the accused is the prospective juror’s name (in some cases), occupation and physical appearance. From their appearance the person’s gender, age range and race are usually ascertainable. Assessments about impartiality based on these characteristics are necessarily based on assumptions and stereotypes. Defence practitioners generally acknowledged that this is the case, but defended the use of the information to stereotype in this way on the grounds that that is the only information available, and that there is sometimes an element of truth in stereotypes.
  3. 3.89 Examples given to the Commission of common stereotypes influencing the use of peremptory challenges were:
  • Young women, counsellors, nurses and doctors may be more sympathetic to victims in sexual offence cases.
  • White-collar professionals may be less sympathetic to the accused in an affray case than tradespeople.
  • Professionals with relevant expertise may second-guess expert evidence in certain cases: for example, an accountant in a complex fraud case, or a nurse in a case where medical evidence is at issue.
  • Teachers have strong views and so won’t listen impartially to the evidence presented in the case, but will construct their own theory of the case.
  1. 3.90 A few defence practitioners noted that accused persons will sometimes use peremptory challenges to exclude a prospective juror they are not comfortable with because they assume the person will not judge them fairly. An example given was that an accused may feel uncomfortable empanelling a member of a particular ethnic community (in some cases their own ethnic community) because they think such community members may judge them harshly.
  2. 3.91 The Commission notes that these stereotypes are not necessarily representative of the views of the defence practitioners it consulted, but rather were provided as examples of stereotypes they may consider when advising a client about peremptory challenges. Further, defence practitioners emphasised that whether they would recommend a challenge on the basis of this type of stereotype would depend on the nature of the defence being put forward in the particular case.
  3. 3.92 The Commission asked defence practitioners whether more information about prospective jurors or earlier access to information about prospective jurors, as is available in some jurisdictions,96 could assist them to better exercise the right to peremptory challenges.
  4. 3.93 Defence practitioners indicated that it could be useful to know more about a person’s occupation, as it is often described as a broad occupational category. For example, ‘social worker’, ‘manager’, ‘student’ or ‘retired public servant’.97 In some cases, the judge or a party will request further information, such as asking what a person is studying if they identify their occupation as ‘student’. However, there is no consistent practice of checking broad occupational categories.98
  5. 3.94 However, even where further information about a person’s characteristics is available, the assessment would still necessarily be based on stereotyped assumptions about that characteristic.
  6. 3.95 Most defence practitioners did not consider that earlier access to the information (as is the case in some other jurisdictions) would be of particular use, as assessments made for the purpose of peremptory challenges are based on a ‘gut feeling’.
  7. 3.96 A few defence practitioners considered that having the information available earlier might assist clients to feel less pressured during the peremptory challenge process.
  8. 3.97 The Director of Public Prosecutions’ guidelines support the view that basing peremptory challenges on assumptions about a person’s characteristics is valid and acceptable. As noted at [3.26] above, those guidelines state ‘[t]he Accused can justifiably exercise the right of challenge to seek a jury receptive of the defence case’.99

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Procedural fairness

  1. 3.98 Procedural fairness is seen as a key justification for peremptory challenges in criminal trials.100 This is both in the strict sense of ensuring the accused in fact receives a fair trial, and the broader sense that the accused feels that they have had a fair trial.

Involvement of the accused in criminal trials

  1. 3.99 Defence practitioners consulted by the Commission cited the involvement of the accused in selecting the jury through the peremptory challenges process as one of the most important purposes of peremptory challenges. As one defence practitioner stated, it is ‘the only small bit of control accused persons have in the trial process’.
  2. 3.100 Defence practitioners emphasised that given what is at stake for the accused, this small degree of control was critical. Even if there is only small chance that a ‘biased’ juror is removed in the peremptory challenge process, the potential consequences of not doing this are very grave.
  3. 3.101 Allowing accused persons a degree of choice in who decides their case is thought to improve the accused’s acceptance of and confidence in the process, the outcome of the trial and even the criminal justice system more broadly. The perception arguably remains beneficial to an accused even if, in reality, the challenges might have little or no impact on the outcome of the trial.101
  4. 3.102 The New Zealand Law Commission review found that this was an important justification
    for the retention of peremptory challenges:102

it allows the defence to eliminate persons who are perceived, rightly or wrongly, to be potentially prejudiced against the defence. It therefore gives the accused some measure of control over the composition of the tribunal who sit in judgment on him. If that measure were lost, the accused would be likely to feel a considerable degree of injustice upon conviction.

  1. 3.103 However, the theory of involvement may in many cases be somewhat removed from the reality.103 Often the accused only challenges on the advice of their barrister and solicitor, rather than making the decision themselves.
  2. 3.104 While the requirement that the accused voice challenges was generally supported in preliminary consultation, one defence practitioner noted that it may disadvantage the accused in certain circumstances—for example, where the accused has an impairment
    that affects his or her ability to speak clearly or has a particularly aggressive demeanour.
  3. 3.105 The Law Reform Commission of Western Australia considered that the contribution of peremptory challenges to procedural fairness went beyond the perception of the accused, to the perception of the community more generally. It stated:104

The Commission strongly believes that peremptory challenges should be retained to make sure that accused persons believe that they have had a fair trial and the accused, the state and the public at large have confidence in the jury system.

  1. 3.106 In recommending the retention of peremptory challenges the Law Reform Commission of Western Australia stated that ‘[t]he most concerning likely outcome of the abolition of peremptory challenges is the loss of confidence in the jury system’.105
  2. 3.107 By contrast, procedural fairness considerations are less prominent in civil jury empanelments. This is because in civil trials the parties are not directly involved in the empanelment process, and peremptory challenges are decided and made by their
    barristers and solicitors.

Removal of inappropriate jurors

  1. 3.108 Both criminal and civil practitioners stated that they use peremptory challenges to remove prospective jurors who clearly do not want to serve on the jury. This unwillingness might
    be apparent from their demeanour, or the fact they have unsuccessfully sought to be excused by the trial judge. Practitioners considered that an unwilling juror poses a threat
    to their client’s prospects of a fair trial.
  2. 3.109 A prospective juror may also be considered inappropriate if he or she was previously part of a jury which was discharged in relation to the same matter. This could occur because the regulations of the Juries Act require discharged jurors to return to the jury pool (unless the time period specified as their jury service in the summons has expired).106 There is nothing in the Juries Act or regulations preventing such discharged jurors from being re-selected for a new panel for the same matter.
  3. 3.110 Where the jury was discharged because they had been exposed to information that could be prejudicial to the accused, the prosecution and the defence may have concerns about those jurors’ impartiality. Unless the prospective juror seeks to be excused,107 the prosecution or defence would have to stand aside or challenge that person if they wished to exclude them from the jury.

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The effect on jurors

Jury service as a right

  1. 3.111 Recently jury duty has been conceived of as a citizen’s ‘right’.108 According to this view, processes that restrict the possibility of a person being selected for jury duty, including peremptory challenges, are seen to infringe that right.109 An example of a review of jury selection processes from this perspective is the New South Wales Law Reform Commission’s review of the participation of people with impaired hearing or vision in juries.110 This report described the ‘exclusion of a class of citizens from participating in one of the rights and responsibilities of citizenship’ as ‘excessive and unnecessary’.111
  2. 3.112 A number of Australian studies consider jury duty from a juror’s perspective.112 The Queensland Law Reform Commission report referred to a juror’s ‘right’ to serve on a jury.113
  3. 3.113 The JCO’s juror feedback survey conducted first in 2011 and again in 2013 is an indication that jury service is increasingly being viewed from this perspective in Victoria.114

The process can be upsetting for jurors

  1. 3.114 During preliminary consultations, jury researchers and the JCO advised that many surveyed jurors had expressed the view that the peremptory challenge process is upsetting and humiliating.
  2. 3.115 Defence practitioners whom the Commission consulted also acknowledged that the ‘parading’ of prospective jurors in front of the accused in criminal trials is likely to be stressful and uncomfortable for those people. One defence practitioner suggested that providing more information about the purpose of peremptory challenges and their importance to the accused may partly alleviate this stress. The Law Reform Commission of Western Australia similarly recommended that prospective jurors should be given information during the induction process about the purpose of and process for peremptory challenges, including examples of reasons why a prospective juror might be challenged in a particular trial.115
  3. 3.116 Jury researchers also considered that the peremptory challenge process could give others observing the process a negative impression of the criminal justice system.
  4. 3.117 Empirical data suggests that jurors who have been challenged are significantly more likely to conclude that juries are not representative of the community, and are likely to carry this negative perspective about jury representativeness back into the community.116
  5. 3.118 The Commission notes that this view is contrary to the conclusion drawn by the Law Reform Commission of Western Australia (discussed at [3.105] above) that peremptory challenges can increase the public’s confidence in the jury system.

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Alternatives to peremptory challenges

Challenge for cause

  1. 3.119 Some critics of peremptory challenges argue that challenge for cause should be used instead of peremptory challenges.117 On this view, parties should only be able to exclude a person from jury service for a stated and justifiable reason.
  2. 3.120 As noted at [3.9] above, challenge for cause is the only form of challenge available to accused persons in each of the jurisdictions of the United Kingdom following the abolition of peremptory challenges.

The grounds for challenge for cause

  1. 3.121 The grounds for challenge for cause are not set out in the Juries Act. Grounds are specified in the Jury Act 1995 (Qld) and the Criminal Procedure Act 2004 (WA).118 The grounds specified in those Acts are that the person is not qualified for jury service or the person is not impartial.
  2. 3.122 In Murphy v The Queen,119 the High Court considered challenge for cause as provided by section 46 of the Jury Act 1977 (NSW). Their Honours cited, without express approval, a passage from the Criminal Law in New South Wales120 relied upon by the trial judge which provided that the grounds for challenge for cause were:121

that the proposed juror does not possess the necessary qualifications or that he has some personal defects which render him incapable of discharging his duty as a juror or that he is not impartial or that he has served on another jury in respect of the same matter or that he has been convicted for some infamous crime.

Challenge for cause in practice

  1. 3.123 A challenge for cause is determined by the trial judge.122 The jury panel is usually excluded from the hearing of the challenge to avoid any prejudice.
  2. 3.124 The Juries Act does not specify the process for challenges for cause in any detail. By contrast, in Queensland a two-tiered process for challenge for cause is outlined in section 43 of the Jury Act 1995 (Qld). First, the party who makes a challenge for cause must inform the judge of the reasons for the challenge and give the judge information and materials available to the party that are relevant to the challenge.123 Second, if the judge is satisfied there are proper grounds to challenge the juror, the judge may permit the party to put questions to the person in a way and in a form decided by the judge, and based on the answers may further permit the examination or cross-examination of the person on oath.124 After considering the evidence and submissions of the parties, the judge must uphold or dismiss the challenge.125
  3. 3.125 An unlimited number of challenges for cause are already available to parties in criminal126 and civil jury empanelments.127Yet despite the availability of challenges for cause, all the practitioners consulted by the Commission stated they are rarely used. The probable explanation for this is that peremptory challenges and stand asides are a quicker and easier alternative because they:
  • have immediate effect
  • do not require a hearing
  • do not require justification or evidence supporting that justification.
  1. 3.126 The expediency of peremptory challenges compared with challenges for cause was cited by the Law Reform Commission of Western Australia,128 Queensland Law Reform Commission,129 New Zealand Law Reform Commission130 and the Law Reform Commission of Ireland131 as an advantage of peremptory challenges.
  2. 3.127 The Law Reform Commission of Western Australia also noted that an expanded role for challenges for cause ‘may seriously impinge on a juror’s right to privacy and security’.132 The New Zealand Law Reform Commission and the Law Reform Commission of Ireland similarly considered that challenges for cause could be intrusive and demeaning as legal practitioners must publicly articulate their reasons for asserting a juror’s unsuitability.133
  3. 3.128 Practitioners consulted by the Commission were generally unsure of the process for challenge for cause, and were of the view that the threshold was quite high. They also indicated that the lack of information available about prospective jurors in Victoria meant that it was very difficult to mount a challenge for cause in most cases.
  4. 3.129 Challenge for cause, either as a supplement or as an alternative to peremptory challenge, involves some significant issues. On the one hand, it may be said that the right to challenge for cause ‘has more attraction in theory than in practice’134 and is a ‘rather empty right’135 or possibly ‘a useless right’136 because its exercise requires evidence of lack of impartiality or ineligibility usually not available to the parties. On the other hand, it may be said that the very requirement for evidence of lack of impartiality or ineligibility is the justification and strength of challenge for cause, as challenges should be based on reason, rather than on speculation or stereotyping. On this view, if there is no evidence of lack of impartiality or ineligibility, parties should not be able to challenge.
  5. 3.130 The requirement for evidence or data to challenge for cause also distinguishes this type of challenge from the voir dire process used in some jurisdictions of the United States that allows parties to ‘fish’ for information in the hope that something might turn up.
  6. 3.131 A further consideration is the proper sequence of inquiry in challenge for cause. The question is not whether the prospective juror is not impartial when they first enter the courtroom. The question is whether the prospective juror, informed and bound by judicial direction as to prejudice, is capable of complying with that direction.

 

Pre-trial questioning of jurors

  1. 3.132 Another related means of juror selection is pre-trial questioning of jurors. This is done extensively in the United States through the voir dire process.137
  2. 3.133 A more limited version of juror questioning is allowed in Queensland in some circumstances. Under the Jury Act 1995 (Qld), if there are ‘special reasons’ surrounding a particular trial, parties may make an application by notice for people selected to serve as jurors to be questioned when the court reaches the final stage of the jury selection process.138 This occurs after the jury has been sworn in, but before the remainder of the panel is discharged.139 The questions are put by the judge in a manner decided by him or her.140
  3. 3.134 The applicant may suggest, and the judge may decide, questions that are to be put to persons selected to serve as jurors for the trial.141 If, after hearing the answers given by the prospective juror, the judge considers that further inquiry is justified, the judge may allow the parties to cross-examine the prospective juror under oath to determine whether they are impartial.142 After this questioning process is complete, parties may elect to challenge a prospective juror for cause, which the judge must uphold or dismiss.143
  4. 3.135 This provision was recently used for the first time by the Supreme Court of Queensland in the matter of R v Patel (No 4).144 Given the notoriety of this case, counsel for the accused (with the consent of the Crown) made application for a series of questions to be put to jurors asking whether they had heard of or had any opinions of the accused, and whether they had any race-based biases (the accused was of Indian descent).145 Fryberg J granted the application.146 The process for empanelment led to a number of jurors being discharged or excused, with several cross-examined. Only one challenge for cause was made, and this challenge was upheld by the trial judge.147

Challenges by consent

  1. 3.136 Challenges by consent148 exist in Scotland as an alternative to peremptory challenges, which were abolished in 1995.149 These challenges occur by joint application of the parties and do not require a reason for the challenge to be provided. They must occur prior to the juror being sworn.150
  2. 3.137 A process of excluding a prospective juror by consent of both parties may provide a useful alternative to peremptory challenges, including where:
  • it is obvious to both parties that a juror is ineligible or inappropriate for some reason
  • one of the parties has reason to believe that a prospective juror is not impartial (for example, they are known to the accused).
  1. 3.138 Some defence practitioners told the Commission that they sometimes ask the Crown to exercise its right to stand aside in these circumstances.151
  2. 3.139 Challenges by consent could alleviate the need for a challenge for cause hearing in some circumstances, avoiding the expense, uncertainty and potential embarrassment to the juror of that process. It may also serve at least some of the current functions of peremptory challenges (removing jurors who may be inappropriate or who are not impartial).
  3. 3.140 A similar process exists in New Zealand, where a party may apply to the judge to ‘stand by’ a juror with the consent of the other party. Judges may also direct a juror to stand by on their own motion.152

Judicial discretion to exclude prospective jurors

  1. 3.141 Trial judges also appear to have an inherent common law power to discharge153 or stand aside154 a prospective juror from a panel on the basis that he or she could not properly perform his or her duties. This power is used extremely rarely in Victoria.
  2. 3.142 However, it could provide an alternative to challenges by the parties in situations where the prospective juror is manifestly unsuitable. Plainly, though, it would be inappropriate and undesirable for the trial judge to be involved in standing aside a prospective juror except in the most exceptional circumstances.

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Questions

Retaining peremptory challenges and stand asides

  1. 3.143 As discussed in this chapter, there are both criticisms of and support for the retention of peremptory challenges and stand asides. The Commission therefore considers a threshold question to be whether peremptory challenges and stand asides should be retained.
  2. 3.144 The Commission notes that, while the general trend in Australia and other common law jurisdictions has been to reduce the number of challenges available to parties,155 law reform commissions in New South Wales, Queensland, Western Australia, Northern Territory, New Zealand and Ireland have declined to recommend they be abolished altogether.156

Question

  1. 1 Should peremptory challenges and the Crown right to stand aside be retained for criminal and civil trials in Victoria?

 

Changes to peremptory challenges

Number of challenges available to the parties

  1. 3.145 Appendix A sets out the difference between jurisdictions in relation to the number of challenges available to the parties. The current number of peremptory challenges available to accused persons in Victoria is the average for Australia jurisdictions. The approach in Victoria to the number of peremptory challenges available for civil trials is the one adopted in most other Australian jurisdictions.157

Questions

  1. 2 Is the number of peremptory challenges available to the parties in criminal trials appropriate?
  2. 3 Is the number of peremptory challenges available to the parties in civil trials appropriate?

 

Adjustment of challenges where multiple parties in criminal trials
  1. 3.146 Victoria is the only Australian jurisdiction where the number of challenges available to each accused reduces where there are multiple accused. These reductions were introduced in 1993 to address concerns that the large number of challenges available in criminal proceedings involving multiple accused can ‘lead to distortions in the representative nature of the jury’.158

Question

  1. 4 Should the number of challenges for each accused in criminal trials vary depending on how many accused there are in the proceeding?

 

 Adjustment of challenges where multiple parties in civil trials
  1. 3.147 As noted at [3.12], each separately represented party to a civil proceeding may make three peremptory challenges. In modern personal injury trials it is common that there will be one plaintiff to the proceeding and two or three defendants.159 Some civil practitioners have expressed concern that this can lead to an unequal situation, where the plaintiff has only three challenges and the defendants have six or nine.160

Question

  1. 5 Should the plaintiffs and defendants have an equal total number of challenges in all cases, regardless of how many plaintiffs and defendants there are?

 

 Adjustment of challenges where additional jurors appointed
  1. 3.148 As noted at [3.13], unlike Victoria, some other Australian jurisdictions allow parties additional challenges where additional or reserve jurors are empanelled.

Question

  1. 6 Should the number of challenges for each party in criminal or civil trials vary depending on whether additional jurors are to be empanelled?

 

 Process for challenges

  1. 3.149 As noted at [3.33][3.43], the process for challenges is different for criminal and civil trials in Victoria. There are also some differences between jurisdictions.161 Further, the Commission’s preliminary consultations have indicated that the challenge process is confronting and uncomfortable for prospective jurors. It was also considered by jury researchers that the challenge process can contribute to a negative image of the criminal justice system.
  2. 3.150 Some reforms to the challenge process may be possible through changes in practice alone (rather than law reform). It is suggested by some researchers and practioners consulted by the Commission that the requirement that juries ‘parade’ before the accused in criminal trials was unduly stressful and should be removed. Similarly, in civil jury empanelments it has been suggested that barristers could sit facing the jury, rather than turning around each time a juror’s name is called.162
  3. 3.151 The requirement that the accused voice challenges in criminal trials163 was also raised as an issue in preliminary consultations. A more flexible approach that allows for greater discretion for legal representatives to voice challenges in certain circumstances might address the concerns raised at [3.104].

Questions

  1. 7 Should there be any changes to the process for challenges during empanelment in criminal trials? If yes, what kind of changes?
  2. 8 Should there be any changes to the process for challenges during empanelment in civil trials? If yes, what kind of changes?

 

 Information available to the parties

  1. 3.152 As discussed at [3.88], one of the major criticisms of peremptory challenges is that they often involve assessing a person’s biases based on characteristics such as demeanour, gender, occupation and age range.
  2. 3.153 Some defence practitioners considered that further information might assist in more accurately assessing a person’s biases. However, an assessment of bias based on further information about a person’s characteristics will still be based on stereotyped assumptions about those characteristics.
  3. 3.154 An alternative would be to provide information about the person’s values, for example, using a process similar to the voir dire process in the United States.164 Depending on the extent of the questioning, the information obtained may be sufficient to support a challenge for cause.
  4. 3.155 However, criticisms of this process are that it affects the representativeness and impartiality of juries. It is also likely to substantially increase complexity and costs.165
  5. 3.156 A further issue associated with providing more information on which to base an assessment of a juror’s bias is the privacy, safety and security of jurors. This concern has been used to justify calling the panel by number, instead of name. This is discussed in detail in Chapter 4.

Questions

  1. 9 Is the information available to parties about prospective jurors in criminal and civil proceedings appropriate?
  2. 10 Should any more or less information be provided to the parties? If so, what kind of information should be added or removed?

 

Crown right to stand aside

  1. 3.157 As noted at [3.5], the effect of the Crown using its right to stand aside is that the stood aside juror’s ballot card goes back into the ballot box immediately. In contrast to peremptory challenges, this means that the juror’s name may be called again. If this occurs, the Crown will be required to challenge for cause if they wish to exclude the juror.

Question

  1. 11 Should the effect of the right to stand aside be the same as for
    peremptory challenges (permanent removal from the panel)?

 

Safeguarding against misuse of peremptory challenges

  1. 3.158 Judges in New South Wales and Queensland may discharge the jury if they consider that the exercise of peremptory challenges has resulted in a jury whose composition may cause the trial to be or appear to be unfair.166
  2. 3.159 A further safeguard that exists in the United States is the prohibition on gender-based or race-based uses of peremptory challenges.167 Such a prohibition would be very difficult to enforce, as there is no requirement to provide a reason for a peremptory challenge. Nonetheless, including such a provision in the law could introduce a norm that may
    affect practice over time.

Question

  1. 12 Should the Juries Act 2000 (Vic) specify restrictions or prohibitions on the way in which peremptory challenges may be used?

 

Alternatives to peremptory challenges

Challenge for cause

  1. 3.160 Challenges for cause are rarely used in Victoria. The most likely explanation for this is the availability of peremptory challenges and stand asides as an expedient alternative.
  2. 3.161 Based on the Commission’s preliminary consultations, legal practitioners perceive that challenges for cause are difficult to argue and prove given the very limited information available. Legal practitioners also expressed concern that challenges for cause would not adequately address all the circumstances which they argue justify the need for peremptory challenges (for example, where an accused is uncomfortable with a prospective juror, but would not be able to satisfy a judge that the prospective juror
    is biased).

Questions

  1. 13 Are challenges for cause an appropriate and adequate alternative to peremptory challenges?
  2. 14 Does the current law provide sufficient information to the parties upon which to base a challenge for cause? If no, what additional information should be provided?
  3. 15 Should the Juries Act 2000 (Vic) specify the criteria upon which challenges for cause can be made?
  4. 16 Should the Juries Act 2000 (Vic) provide further guidance on the process for challenge for cause?

 

Pre-trial questioning of jurors

  1. 3.162 The Queensland model of pre-trial questioning of jurors where there are special reasons is discussed at [3.133][3.135].

Question

  1. 17 Should the judge or the parties have the ability to question prospective jurors to determine their impartiality in certain circumstances?

 

Challenge by consent

  1. 3.163 Challenges by consent are available in a few jurisdictions. They are discussed above at [3.136][3.140].

Question

  1. 18 Should parties have the ability to challenge a prospective juror by consent?

 

Judicial discretion to exclude prospective jurors

  1. 3.164 The common law power of judges to exclude or stand aside prospective jurors is discussed above at [3.141][3.142]. These powers are not specified in the Juries Act.

Question

  1. 19 Should the Juries Act 2000 (Vic) specify that the trial judge has the discretion to discharge or stand aside prospective jurors in exceptional circumstances?

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