3. Peremptory challenges and the Crown right to stand aside

Introduction

  1. 3.1 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.
  2. 3.2 Peremptory challenges result in the immediate, permanent exclusion of the challenged person from selection on that jury.1 A prospective juror who is stood aside is not permanently excluded from the jury panel, and if selected again, the Crown must challenge that juror for cause if they wish them to be excluded.2
  3. 3.3 The 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.
  1. 3.4 The Commission’s consultation paper asked a number of questions addressing the following broad categories:
  • Should peremptory challenges be retained?
  • Are there viable alternatives to peremptory challenges?
  • If peremptory challenges are retained:

- Is the number of challenges appropriate?

- Should there be restrictions on the use of peremptory challenges?

- Is the process for peremptory challenges appropriate?

 

  1. 3.5 This chapter describes the current law and practice of peremptory challenges and stand asides in Victoria and other comparable jurisdictions. The chapter then sets out the key issues raised by the terms of reference in relation to peremptory challenges and stand asides. Finally, the Commission’s conclusions and recommendations for reform in this area are set out.

The purpose of peremptory challenges and stand asides

Peremptory challenges

  1. 3.6 The stated function of peremptory challenges is to provide a safeguard to ensure the jury is impartial and the trial is fair.3 They provide a way for parties to quickly and expediently remove prospective jurors they know or believe may not be impartial.
  2. 3.7 The Commission was informed during consultations that peremptory challenges are used for other related purposes, namely:
  • To provide an expedient means of removing prospective jurors who appear to be unable or unwilling4 to serve—for example, a prospective juror who appears to have a disability which makes them incapable of fulfilling the duties of jury service.5
  • To allow the accused in a criminal trial to have some say in who tries them, thereby improving their confidence in the process.
  • To allow parties to influence the composition of a jury so that it is more likely to be receptive to their case.
  1. 3.8 The Commission discusses each of these purposes in more detail later in this chapter.

Stand asides

  1. 3.9 The Crown right to stand aside has a different purpose than peremptory challenges in Victoria—namely, to ensure that the trial is fair and is conducted according to law.6
  2. 3.10 The Victorian Director of Public Prosecutions (DPP (Vic)) has published detailed guidelines on the exercise of the right to stand aside, which limit the circumstances in which it can be exercised.7 These 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 2000 (Vic) (Juries Act) to avoid the trial being fundamentally flawed in such a way as to cause the trial to miscarry.8
  3. 3.11 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 prospective juror is obviously hostile to the process, or the prospective juror is otherwise incapable of discharging their duty due to a disability or some other reason.9 However, the Crown must not be seen to select a jury favourable to the Crown and stand asides should never be based on generic factors such as age, gender, race, physical appearance or occupation.10  
  4. 3.12 The 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.11

  1. 3.13 The Commonwealth Director of Public Prosecutions (CDPP)12 has published similar guidelines on the use of stand asides, which emphasise that ‘it is not the function of the prosecutor to seek to achieve a jury that will favour the prosecution. The primary duty of the prosecutor is to be fair.’13
  2. 3.14 The guidelines also state:

If a prosecutor has information concerning a potential juror that suggests he or she may unduly favour the prosecution the prosecutor should either challenge or stand aside the potential juror or make the information available to the defence. There is no corresponding obligation on the defence.14

  1. 3.15 As with the DPP (Vic) guidelines, the CDPP guidelines state that decisions to challenge must not be based on gender, race, religion or age.15 Although the practice of jury vetting is prohibited,16 both the DPP (Vic) guidelines and the CDPP guidelines state that it may be appropriate to stand aside a juror who is known to have a prior conviction, even if that conviction does not disqualify him or her from jury service.17
  2. 3.16 The CDPP guidelines also state that one of the aims of the prosecutor should be to select a jury that is ‘generally representative of the community’.18 This suggests that there may be a role for the prosecution to stand aside prospective jurors with certain characteristics to ‘even up’ the representativeness of particular juries in response to a defence strategy or where the ballot does not result in a representative jury. However, the Melbourne office of the CDPP told the Commission that it does not use stand asides in this way.19

Current law

The number of challenges available in Victoria

Victorian criminal trials

  1. 3.17 In Victorian criminal trials (which usually have 12 jurors),20 an accused is entitled to peremptorily challenge up to six prospective jurors21 and the Crown is entitled to stand aside up to six prospective jurors.22  
  2. 3.18 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,23 and up to four peremptory challenges each where there are three or more accused.24 Similarly, there are up to 10 stand asides where there are two accused,25 and four stand asides for each accused where there are three or more accused.26 Victoria is the only Australian jurisdiction where this kind of reduction occurs.27

Victorian civil trials

  1. 3.19 In Victorian civil trials (which usually have six jurors),28 parties are entitled to challenge three prospective jurors.29 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.30 For example, in a trial involving one plaintiff and two defendants (who each have different lawyers), the plaintiff would be able to challenge three prospective jurors, and each defendant would similarly be entitled to challenge three prospective jurors.
  2. 3.20 The Commission was advised that proceedings with multiple separately represented defendants are common, while proceedings with separately represented plaintiffs are rare.

Other forms of challenge

  1. 3.21 There are two other forms of challenge available to parties during the jury empanelment process: challenge for cause and challenge to the array.

Challenge for cause

  1. 3.22 Parties may challenge an unlimited number of individual prospective jurors ‘for cause’.31 This is a different type of challenge that requires the party to provide a reason to the trial judge as to why the prospective juror should not be part of the jury. Challenges for cause are very rare in Victoria. Challenge for cause is discussed in more detail at [3.201]–[3.216].

Challenge to the array

  1. 3.23 Parties have a common law right to challenge the entire panel. This is known as a ‘challenge to the array’. A challenge to the array requires the party to establish that
    there has been bias on the part of the Juries Commissioner or the pool supervisor or some other default in respect of the constitution of the panel.32 This form of challenge
    is also rare.

Challenges in other jurisdictions

  1. 3.24 Peremptory challenges and stand asides exist in one form or another in all Australian jurisdictions and most other common law jurisdictions for both criminal and civil jury trials.
  2. 3.25 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.
  3. 3.26 Appendices D and E set out the number and nature of peremptory challenges and stand asides in each Australian jurisdiction and New Zealand.
  4. 3.27 The trend in Victoria and other jurisdictions33 has been to reduce the number of challenges available over time.34 At the same time, there has been a countervailing trend to expand the pool of citizens available for jury selection.35
  5. 3.28 In Victoria, the number of peremptory challenges available in criminal proceedings was reduced from 20 in 185736 to 15 in 1876,37 to eight in 1928,38 to six in 1993.39 The reductions to the numbers available where there are multiple accused were also introduced in 1993.40
  6. 3.29 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 the ground that challenges, particularly where multiple accused are involved, can ‘lead to distortions in the representative nature of the jury’.41
  7. 3.30 Peremptory challenges have been abolished progressively in the United Kingdom over the past 25 years, as they were considered unnecessary and open to abuse. In 1988, England and Wales was the first jurisdiction to abolish peremptory challenges.42 The reduction and final abolition of peremptory challenges in England and Wales was precipitated by a number of high-profile cases involving multiple defendants, and accusations that these defendants pooled their challenges in an attempt to ‘rig’ the jury in their favour.43  
  8. 3.31 A 1993 Royal Commission study found that the reintroduction of peremptory challenges was favoured by 56 per cent of defence barristers in England and Wales, but opposed by 56 per cent of prosecution barristers and 82 per cent of judges.44 Peremptory challenges were considered again by Lord Justice Auld’s review of the criminal courts in England and Wales in 2001. That review found there were ‘very few proposals for change as to jury challenge’ and, as a result, did not recommend the reintroduction of peremptory challenges.45
  9. 3.32 Parties in England and Wales can still challenge a prospective juror for cause,46 and the Crown has retained its right to stand aside prospective jurors.47
  10. 3.33 Scotland abolished peremptory challenges in 1995.48 However, a prospective juror may be removed without cause with the consent of both parties in Scotland.49
  11. 3.34 Northern Ireland abolished peremptory challenges in 200750 as part of a series of broader reforms replacing the use of non-jury Diplock courts.51

The information available to the parties

  1. 3.35 Parties use the information they have about a prospective juror to inform decisions about whether or not they should be challenged.
  2. 3.36 In Victoria, very limited information about prospective jurors is available. For both criminal and civil trials in Victoria, this information is limited to the prospective juror’s:
  • name (if the judge chooses to identify the prospective jurors by name rather than number—see Chapter 4)
  • current occupation52
  • physical appearance and demeanour.53
  1. 3.37 From a prospective juror’s physical appearance, their gender and age-range are usually apparent, and certain assumptions might also be made about their ethnicity and socio-economic status.
  2. 3.38 There are differences in the type of information available to parties in other Australian jurisdictions and the time at which the information is available. These are set out in Appendix F. In some jurisdictions the address54 or suburb55 is available to the parties and in all jurisdictions except Victoria and New South Wales, parties are able to view a list of prospective jurors with this information prior to or at the time of empanelment. In New South Wales, jurors are identified by number only56 and parties have nothing more than physical appearance on which to base challenges.
  3. 3.39 A very different approach is taken in the United States, where lawyers ask questions about the prospective juror, either by submitting questions to the court for the judge to ask, or questioning the prospective juror directly.57 This process is known as a ‘voir dire’. The aim of the questions is usually to determine the biases, prejudices and views of prospective jurors. For example, in a case involving possession or sale of illegal drugs, prospective jurors might be questioned about whether they have strong personal views or experiences that relate to the charges.58 The answers to these questions then inform lawyers’ decisions in exercising their party’s peremptory challenges.

The peremptory challenge and stand aside process

  1. 3.40 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.

Criminal trials in Victoria

  1. 3.41 Following the calling of the panel, the arraignment, introductory remarks from the trial judge and the hearing of excuses, the associate to the trial judge draws a card with the name or number and occupation of the prospective juror from the ballot box.59 The name or number60 and occupation of the prospective juror is called out.61
  2. 3.42 The prospective juror must then stand and walk in front of the accused and then towards the jury box. Depending on the architecture of the courtroom, this may involve the prospective juror taking a circuitous route to the jury box. This process is commonly referred to as the ‘parade’.
  3. 3.43 Although the parade is standard practice in Victoria, it is not specifically provided for in the Juries Act, and is not the practice in any other Australian jurisdiction. The Commission is aware of at least one Victorian judge who does not require prospective jurors to parade in front of the accused in this way. This judge instead requires the prospective juror to simply turn and face the accused if balloted.
  4. 3.44 If the accused (usually assisted by a lawyer)62 says ‘Challenge’ or the Crown says ‘Stand aside’ before the prospective juror sits down in the jury box,63 the prospective juror must resume his or her seat with the rest of the panel in the body of the court. In Victoria, challenges must be voiced by the accused unless there is a ‘very good reason’ to depart from this ‘usual practice’.64
  5. 3.45 If challenged, the prospective juror cannot be recalled for that trial and his or her ballot card is set aside.65
  6. 3.46 If stood aside, the prospective juror remains part of the jury panel.66 If the stood aside juror is selected again, and the Crown wishes to exclude the person from the jury, they must challenge for cause.67
  7. 3.47 The jury is selected once all the jurors are seated in the jury box.68

Civil trials in Victoria

  1. 3.48 Following the calling of the panel, introductory remarks from the trial judge and the hearing of excuses, the associate to the trial judge draws the cards for prospective jurors from the ballot box.69 In a typical civil proceeding with six jurors, one plaintiff and one defendant, 12 names or numbers are drawn to allow for three challenges for each party. If there are more than two separately represented parties, three additional names or numbers for each additional party will be drawn to allow all separately represented parties to exercise their three challenges.70
  2. 3.49 The associate calls out the name or number and occupation of each prospective juror selected.71 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. The barristers, who sit facing the judge, usually turn to look at each prospective juror as they stand.
  3. 3.50 A list of the prospective jurors is then provided to the parties. First the plaintiff’s lawyers and then the defendant’s lawyers strike three names from the list, leaving six jurors (or more if additional jurors are empanelled). This is done in writing. Unlike criminal trials, where the accused voices the challenge, the parties themselves are usually not directly involved in the challenge process.
  4. 3.51 The names or numbers of the six jurors who remain on the list are then called. Those jurors proceed to the jury box and are the jury for the trial.72

Processes in other jurisdictions

  1. 3.52 Other jurisdictions in Australia and New Zealand do not require prospective jurors to parade in front of the accused in criminal trials.73 In these jurisdictions, balloted jurors simply walk directly towards the jury box, without necessarily passing in front of the accused.
  2. 3.53 The requirement in Victoria that the accused ‘voice’ the challenges is also not present in other comparable jurisdictions. In these jurisdictions, lawyers representing the parties generally voice challenges unless the accused is self-represented.
  3. 3.54 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 (New South Wales and Tasmania)
  • striking out names from a jury list prior to the issuing of a summons (Western Australian civil trials). 

Challenging out of the jury box

  1. 3.55 In New South Wales, for both criminal and civil trials, a full jury is balloted and seated in the jury box before any challenges are exercised. Once in the jury box, the prospective jurors’ numbers are called a second time and they are required to stand. At this point, the parties have the opportunity to challenge the prospective jurors. Challenged jurors then exit the jury box.74 Once all the jurors have been called, further prospective jurors are balloted to take the place of the challenged jurors. If parties have any challenges remaining, the new prospective jurors’ numbers are called and the parties have the opportunity to challenge those new prospective jurors. The process continues until all challenges are exhausted, or the parties do not wish to exercise any more challenges.75 A similar process is used in Tasmania.76

Striking prospective jurors from a jury list, prior to issuing of the summons

  1. 3.56 For civil jury trials in Western Australia, prior to the issuing of summonses, each party may strike out up to six names from a randomly generated list of 32 names.77 Six names are then drawn at random from the remaining 20 and those six individuals are summonsed as jurors for the trial.78
  2. 3.57 Although these laws are still in force, there has not been a civil jury trial in Western Australia since 1995.79

Other notable differences in practice

  1. 3.58 The Commission’s survey of in-court empanelment processes across Australia and New Zealand has revealed a number of other notable differences between jurisdictions:
  • There is no calling of the panel in other Australian jurisdictions and New Zealand.80
  • The jury panel sits outside the courtroom in the Tasmanian Supreme Court in Hobart, and prospective jurors only enter the courtroom if their name or number is called over a public address system.81
  • In New Zealand, only prospective jurors who are balloted might seek to be excused. There is no excuse process prior to the ballot.82
  • In South Australia, prospective jurors are inducted and sworn in for a month at the beginning of their service. They are not sworn in again for each trial in which they participate.83
  1. 3.59 It is evident that the requirements and practices of jury empanelment vary widely across Australia and New Zealand. Later in this chapter, the Commission considers the Victorian process, and whether there is a need to change any aspects of this process.84

The use of peremptory challenges and stand asides

Peremptory challenges

  1. 3.60 An average of five prospective jurors were challenged per criminal trial in 2012–13. Figures for 2011–12 were similar: 5.2 prospective jurors were challenged per criminal trial in that year.
  2. 3.61 Although statistics are not available for the use of challenges in civil trials, each party in a civil matter routinely exercises all of their three challenges as a result of the way in which the challenge process works in civil trials.85
  3. 3.62 Criminal defence practitioners advised that their primary purpose in exercising peremptory challenges is to remove individuals who they or their client considers may undermine their client’s prospects of a fair trial.86
  4. 3.63 This includes prospective jurors who:
  • should have sought to excuse themselves from the panel, for example, because they know the accused or another party,87 or who appear to have a sensory or other disability that would impede their ability to listen, view or process the evidence in the trial88
  • 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, because of assumptions based on characteristics known to the defence such as name, occupation, gender, age and ethnic background.89
  1. 3.64 Civil law practitioners consulted by the Commission shared some of the same concerns as criminal practitioners, but noted that their primary focus in challenging is usually to ensure the jury will be receptive to their client’s case. For example, in a workplace injury matter, business or human resource managers might be seen as less sympathetic to the plaintiff, while prospective jurors with an obvious trade union affiliation might be seen by a defendant employer to be hostile to their case.

Crown right to stand aside

  1. 3.65 Stand asides are used far less frequently in criminal trials than peremptory challenges. The JCO advised that in 2012–13 only 76 stand asides were made, compared with 2405 challenges.
  2. 3.66 As outlined at [3.9]–[3.16] above, the policy of both the Victorian and Commonwealth Directors of Public Prosecutions is to only use stand asides to ensure the jury is impartial, balanced and complies with the requirements of the Juries Act. The strategic use of stand asides to achieve a jury that is more receptive to the prosecution case is prohibited, as is the use of stand asides based on the age, gender or race of the prospective juror. These prosecution policies go a long way to explaining the significant disparity between the use of peremptory challenges and stand asides.
  3. 3.67 Some defence practitioners consulted felt that prosecutors were often too sparing in their exercise of stand asides. Both defence practitioners and prosecutors explained that informal agreements are sometimes made for the prosecution to stand aside a prospective juror who is known to the defence, or a prospective juror who clearly shows they do not wish to be on the jury. This is done so the accused does not have to ‘waste’ a peremptory challenge for this purpose. However, there appears to be no consistent practice, and the discretion to make such agreements rests with the individual prosecutor.
  4. 3.68 Statistics from other Australian jurisdictions were not readily available, but anecdotal evidence from jury administrators in other states suggests that the Crown exercises its challenges more sparingly in Victoria than in some other Australian jurisdictions.90
  5. 3.69 One explanation for this could be more flexible prosecution policies in other states. For example, the Queensland Director of Public Prosecutions guidelines simply state that:

Selection of a jury is within the general discretion of the prosecutor. However, no attempt should be made to select a jury that is unrepresentative as to race, age, sex, economic or social background.91

  1. 3.70 There may also be state-specific cultural practices among prosecutors that influence the use of challenges.

Resourcing implications

  1. 3.71 The cost of peremptory challenges, particularly when compared to the overall cost of jury trials, is not significant.
  2. 3.72 The most significant resourcing implication arising from peremptory challenges and stand asides is the increase in the jury panel size they necessitate. The most significant portion of this cost is borne by Victorian employers, rather than the Victorian government.
  3. 3.73 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.
  4. 3.74 Standard panel sizes for 12-person juries92 are as follows:
  • 20–25 persons in civil panels93
  • 30–33 persons in criminal panels.94
  1. 3.75 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)95 should not be attributed to peremptory challenges and stand asides, but rather to the likely number of applications for excuse.  
  2. 3.76 The panel size in turn determines the pool size required. Peremptory challenges add to the cost of the empanelment process by 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.96
  3. 3.77 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 for the first day is approximately $46 per person. This comprises the $40 jury service fee paid to the pool member, and approximately $6 in administrative costs to the JCO.
  4. 3.78 In most cases, this $46 cost to government is likely to be significantly less than the cost incurred by a prospective juror’s employer through the requirement that they pay the balance of their staff member’s salary,97 and lose their productivity for at least one day.
  5. 3.79 The peremptory challenge process also lengthens the time needed for empanelment, which adds to cost. However, in most cases this is a matter of minutes, and is insignificant compared with the time taken for excuses and the judge’s initial address to the panel.
  6. 3.80 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,98 which involved12 people accused of terrorist offences, required over 1000 prospective jurors to attend over two days, in part to deal with the combined total of 96 peremptory challenges and stand asides available to the parties.99 However, empanelments of this scale are rare.

The representativeness of the jury

  1. 3.81 In this section, the Commission considers the impact of peremptory challenges on the representativeness of the jury. The impact of stand asides is not considered, as they are so infrequently used.100
  2. 3.82 The section first discusses the concept and importance of representativeness and how representativeness is achieved in the jury system. The actual and potential effect of peremptory challenges on representativeness is then examined. Lastly, the section considers the basis of challenges, including the views of prospective jurors on why they had been challenged.

What is jury representativeness?

  1. 3.83 The notion of ‘trial by one’s peers’ is fundamental to the development of the jury system. Historically, jurors were drawn from a very narrow band of society, specifically male property owners.101 However, in modern jury trials the notion of ‘representativeness’ of the community has become the guiding principle. This was reflected in the second reading for the Juries Act, where the Attorney-General stated that:

A jury must be representative of the community if a person is to be tried by his or her peers.102

  1. 3.84 As the Victorian Parliament Law Reform Committee acknowledged in its 1996 report, it would be ‘logically and administratively impossible’ to ensure that individual juries are representative of the whole community.103 The Commission endorses the Committee’s view that jury representativeness might best be understood as meaning ‘an accurate reflection of the composition of [Victorian] society, in terms of ethnicity, culture, age, gender, occupation, socio-economic status (etc)’.104

The importance of representativeness

  1. 3.85 Together with impartiality, representativeness of the community is one of the key goals and benefits of jury trials. The importance of representativeness is reflected in the purposes of the Juries Act, one of which is to ‘[make] juries more representative of the community’.105
  2. 3.86 The representative nature of juries contributes to the legitimacy of their decisions, and lends credibility to the justice system as whole.106 As Mark Findlay notes:

An essential consideration regarding the link between juries and justice legitimacy is community participation … it is better for democratic governance that jurors sit in the courtroom, rather than it remain the exclusive domain of legal professionals.107

  1. 3.87 Further, representativeness contributes to impartiality by bringing a diversity of views to the examination of the issues in the case. This diversity is said to balance individual biases.108
  2. 3.88 A related benefit of representativeness is civic participation. Studies have shown that a positive experience of jury duty enhances citizens’ faith, not only in the criminal justice system, but also in government more broadly. The studies also suggest that the benefits of participation may go beyond the individual to family and friends.109

How representativeness is achieved

  1. 3.89 The main way that the jury system seeks to achieve representativeness is by random selection.110 Prospective jurors are selected randomly from the electoral roll, and balloted randomly from the jury pool and jury panel.
  2. 3.90 However, a number of the jury selection rules and processes prior to empanelment reduce the representativeness of the jury pool compared with society in general by interfering with the random nature of the selection.111 For example:
  • Not all Victorian citizens are on the electoral roll,112 and certain groups may be under-represented.113 Those who are not on the electoral roll, or who are of no fixed address, will not receive a questionnaire.
  • Certain groups such as lawyers and people with certain disabilities are ineligible to serve on juries,114 while others are disqualified from jury service (usually for a limited period of time) as a result of being convicted of serious offences.115
  • Some individuals seek an exemption from jury service as a result of personal circumstances such as advanced age, ill health, residing far from the nearest court, financial hardship caused by jury service,116 being a primary carer or student during working hours.117
  • For longer trials, the Juries Commissioner may also excuse people who are unavailable to sit on a trial due to the likely length of the trial.118
  1. 3.91 These processes operate to filter the random sample of the population so that the jury pool that attends for jury service is already less than representative of the Victorian community.

The effect of peremptory challenges on representativeness

  1. 3.92 Some practitioners and organisations argued that the number of peremptory challenges and stand asides available is not sufficient to substantially impact on the representativeness of juries.
  2. 3.93 For example, in defending the current number of peremptory challenges, Victoria Legal Aid argued that:

the availability of six peremptory challenges does not substantially alter the representativeness of the jury or undermine the randomised selection process.119

  1. 3.94 This view was also expressed by a number of practitioners the Commission consulted.
  2. 3.95 However, the Commission considers that the six peremptory challenges currently available to the accused in Victoria can and do impact on representativeness. This is illustrated by the data on the average gender composition of juries set out below.
  3. 3.96 The Commission further illustrates the potential for peremptory challenges to impact on gender representativeness in individual cases through two scenarios. These demonstrate the potential for six peremptory challenges and three peremptory challenges respectively, to alter the gender composition of a jury in a criminal trial.

The composition of Victorian juries

  1. 3.97 Empirical studies suggest that Victorian juries are roughly representative of the Victorian community in relation to age and occupation.120 However, these studies and JCO data also show that women are under-represented on Victorian criminal juries.121 This under-representation can be directly attributed to peremptory challenges, and is not replicated in civil juries.
  2. 3.98 Women make up an average of 52 per cent of jury panels following excuses. This means they should be represented at a rate of 6.24 women to 5.76 men on a jury of 12.
  3. 3.99 However, JCO data shows that women make up on average only 44 per cent of jurors on criminal trials, or 5.28 women on a jury of 12.
  4. 3.100 The JCO data also shows that the rate of challenges to women at criminal trial empanelments is double that of challenges to men. For every man challenged, two women are challenged. This pattern was consistent over 2011–12 and 2012–13.

The potential impact of peremptory challenges

  1. 3.101 The above data on the gender composition of juries shows that on average across Victoria, women are under-represented on criminal trial juries. However, it is possible that the under-representation of women could be more exaggerated in individualtrials.
  2. 3.102 Scenario 1 shows the potential for six peremptory challenges targeted to exclude women to alter the gender composition of the jury. Scenario 2 shows the potential for three peremptory challenges targeted to exclude women to alter the gender composition of the jury.
  3. 3.103 Both scenarios assume that the panel is 52 per cent women and 48 per cent men (which is the average panel composition)122 and that the Crown does not exercise any stand asides (which is the usual practice).123

Scenario 1: Using six peremptory challenges to exclude women

The defence strategy is to use all of its six peremptory challenges to challenge women who are balloted from the panel for the jury.

Eighteen people are selected from the panel (to take into account six challenges for a jury of 12). Of these, 9.36 will be women and 8.64 will be men.

As a result of exercising all of the peremptory challenges to exclude women, the jury will be comprised of 3.36 women (9.36 women minus six women) and 8.64 men, or 28 per cent women and 72 per cent men.

Scenario 2: Using three peremptory challenges to exclude women

In this scenario, the accused has only three peremptory challenges. As in Scenario 1, the defence strategy is to use all of the peremptory challenges to challenge women who are balloted from the panel for the jury.

Fifteen people are selected from the panel (to take into account three challenges for a jury of 12). Of these 7.8 will be women and 7.2 will be men.

As a result of exercising all of the peremptory challenges to exclude women, the jury will be comprised of 4.8 women (7.8 women minus three women) and 7.2 men, or 40 per cent women and 60 per cent men.

  1. 3.104 These scenarios demonstrate that using six available peremptory challenges to exclude women can significantly skew the gender composition of a jury in any particular case, whereas using three available peremptory challenges to exclude women has a less significant impact.

The use of peremptory challenges to balance the composition of the jury

  1. 3.105 Some criminal law practitioners argued that peremptory challenges may be used to balance the representation on the jury where an over-representation of prospective jurors with certain characteristics are balloted from the panel.124
  2. 3.106 The Commission observed an empanelment where, of the 17 prospective jurors drawn from the ballot for the jury, 13 were women and only four were men. Despite the accused using five challenges, all of which were to women,125 eight of the final 12 jurors selected were women. However, the Commission also observed criminal jury empanelments with the opposite outcome—where women were challenged disproportionately, and the final jury was composed largely of men.  
  3. 3.107 The Commission acknowledges that peremptory challenges can be, and probably are, used to balance the composition of the jury in some instances. However, this does not negate the potential for peremptory challenges to significantly skew representation of groups with certain characteristics if used in the way described in the scenarios.

The basis of challenges

  1. 3.108 The Commission asked defence practitioners and civil law practitioners what they based their peremptory challenges on. The Commission also asked prospective jurors what they thought the basis of the challenge to them was. Some submissions from jurors and prospective jurors also stated their views on the basis of challenges they had observed.126
  2. 3.109 Defence practitioners and civil law practitioners told the Commission that they mainly used occupation as a basis for the exercise of peremptory challenges. This accorded with the views of jurors and prospective jurors expressed in consultations and through the juror survey (see Table 1 at [3.116]).
  3. 3.110 In addition, the Common Law Bar Association submitted that more accurate information should be required about prospective jurors’ occupation to enable challenges to be used more effectively:

Prospective jurors should be required to provide meaningful descriptions of their occupation or former occupation. Generic descriptions such as ‘public servant’, ‘academic’ or ‘retired’ should be avoided as they do not assist the parties to make an informed decision with respect to a peremptory challenge.127

  1. 3.111 A submission by a personal injury lawyer also expressed concern that ‘the occupation is sometimes so generic as to be virtually meaningless’.128
  2. 3.112 Defence practitioners consulted by the Commission stated that teachers and nurses were routinely challenged.
  3. 3.113 Other examples of common stereotypes influencing the use of peremptory challenges in criminal trials are:
  • Young women, counsellors, social workers and nurses may be more sympathetic to victims in sexual offence cases.
  • White-collar professionals may be less sympathetic to the accused in an assault or affray case than tradespeople.
  • Professionals with relevant expertise may disregard expert evidence in certain cases— for example, an accountant in a complex fraud case, or a doctor in a case where medical evidence is at issue.
  1. 3.114 Examples of common stereotypes influencing the use of peremptory challenges in civil trials are:
  • Human resource professionals and managers are less likely to be sympathetic to the plaintiff in a work injury matter.
  • Doctors may be sympathetic to a defendant doctor in a medical negligence matter.
  • Those in lower-paid professions may make lower compensation awards than those in higher-paid professions.

 

  1. 3.115 In responses to the VLRC juror survey, roughly half of the jurors who had been peremptorily challenged in criminal and civil trials cited their occupation as the likely basis for the challenge. Almost 20 per cent of the 72 survey respondents who had been challenged in criminal trials considered the challenge was based on their gender. However, none of the 22 respondents for civil trials considered gender had been the basis for the challenge against them. A significant proportion of respondents for civil and criminal trials stated that they did not know the basis of the challenge against them.
  2. 3.116 The survey data is set out in Table 1 below:

Table 1: Perceived basis for peremptory challenges129

Perceived basis for
peremptory challenge
129

Criminal trials

Civil trials

Occupation

38 (52.8%)

10 (45.5%)

Gender

14 (19.4%)

0

Age

13 (18.1%)

1 (4.5%)

Appearance

6 (8.3%)

0

Race

0

0

Don’t know

23 (31.9%)

11 (50%)

 

Impartiality of the jury

  1. 3.117 Impartiality is the other core principle underpinning Victoria’s system of trial by jury. The right to trial before an impartial jury is a component of the broader right to a hearing free from bias, which exists both at common law130 and under Victoria’s Charter of Human Rights and Responsibilities.131
  2. 3.118 Defence practitioners argue that peremptory challenges are ‘one of the fundamental safeguards against a jury that is, or is perceived to be, biased or unfairly constituted’.132 Many practitioners considered that there were circumstances in which peremptory challenges safeguarded the impartiality of the jury in a way that no other available mechanism could.
  3. 3.119 However, peremptory challenges are not the only mechanisms available to achieve impartiality.

Other means of promoting impartiality

  1. 3.120 Impartiality is also promoted by a range of jury selection and trial processes and practices. These include:
  • Random selection of prospective jurors from the electoral roll and during the jury empanelment process.133
  • The excuse process, which allows prospective jurors who may not be impartial to apply to be excused from particular trials134 (for example, where prospective jurors know one of the parties, or may have been involved in an incident similar to the one at trial).
  • Challenge for cause and challenge to the array.135
  • The common law discretion judges have to exclude a prospective juror.136
  • Crown stand asides.137
  • The fact that a jury involves group decision-making, not individual decision-making, which is likely to have the effect of diluting individual biases.138
  • The fact that jurors swear an oath or make an affirmation that they will ‘faithfully and impartially try the issues’ and ‘give a true verdict according to the evidence’.139
  • The direction given by the judge to the jury that they must only take into account the evidence presented at trial, and must disregard any preconceptions they may have.140 This direction is backed up by the prohibition on jurors accessing information about the case or the parties other than through the evidence presented at trial.141
  1. 3.121 Peremptory challenges are therefore just one of several mechanisms used to achieve an impartial jury.

Use of challenges to achieve an impartial jury

  1. 3.122 Jury deliberations in Victoria are confidential, and there are no studies that demonstrate the effectiveness of peremptory challenges in achieving an impartial jury.

Peremptory challenges based on the characteristics of the prospective juror

  1. 3.123 Some practitioners acknowledged that they use peremptory challenges to exclude prospective jurors they believe will not be impartial because they have a particular characteristic. Examples of this kind of challenge are noted at [3.113]–[3.114].
  2. 3.124 Equal opportunity and human rights law prohibits discrimination based on certain characteristics (such as gender, race, age and disability) in many areas of public life. One of the principles that underpin these laws is that a person’s characteristics are not a fair or effective way to judge that person’s abilities.
  3. 3.125 While jury selection is not directly covered by these laws,142 the same argument about the use of prospective juror characteristics to determine suitability for a jury was made in submissions from the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) and the Juries Commissioner.143
  4. 3.126 For example, VEOHRC’s submission stated that:

A person’s capacity to serve on a jury or ability to be impartial cannot be discerned from a person’s gender, race, age, disability or physical feature, and a process that accepts the misconception that it can, only serves to promote inaccurate and often prejudicial stereotypes.144

  1. 3.127 VEOHRC further submitted that, to the extent that peremptory challenges rely on stereotypes and assumptions, ‘it is unclear that the current peremptory challenge process is… an effective means, by which the fairness of jury trials can be achieved’.145
  2. 3.128 Similarly, many judges consulted also considered reliance on stereotypes about people with certain characteristics to be unscientific and ineffectual in determining whether a prospective juror was suitable for a jury. One County Court judge questioned whether the law should continue to facilitate the exclusion of prospective jurors on bases which would amount to prohibited discrimination in other spheres of life.146
  3. 3.129 Jury researcher Jacqueline Horan has reviewed the literature on studies of the link between juror characteristics and verdict preference.147 Taken as a whole, these studies do not demonstrate a direct link between juror characteristic and verdict preference. Many studies indicate no link at all between juror characteristics and verdict preference. Any correlation that individual studies suggest is highly specific, for example, to the nature of the case (such as where a defence of ‘battered woman syndrome’ is advanced) or to the strength of the evidence. Some studies, however, do indicate a connection between a juror’s values and attitudes and verdict preference. The absence of a link between characteristic and verdict preference and the presence of a link between values and attitude and verdict preference highlight that a juror’s characteristics are not an effective indicator of their values and attitudes. As the jury selection system does not provide practitioners with information about jurors’ values and attitudes, Horan concludes that ‘it is safe to say that the challenges made by Australian barristers are guesswork’.148
  4. 3.130 In addition, the notion that an ‘impartial’ jury can be achieved by removing individuals with perceived biases might also be questioned. A key justification for the ‘representative’ jury is the idea that individual biases may be evened out through diversity of views and backgrounds contained within the jury as a whole.149 As British jury researcher Cheryl Thomas has stated, ‘[j]uror-level research can rightly be criticised for not taking into account the importance of group decision-making by juries.’150

Peremptory challenges based on the demeanour of the prospective juror

  1. 3.131 In defending the use of peremptory challenges to achieve an impartial jury, defence practitioners placed particular emphasis on the use of peremptory challenges to exclude prospective jurors who ‘present as being potentially partial or biased against the accused.’151 Examples of this included prospective jurors glaring at the accused, or prospective jurors who displayed obvious distress when the charges were read out.
  2. 3.132 Most judges the Commission consulted also considered that it was legitimate to exclude prospective jurors who display behaviour suggesting bias. For example, one Supreme Court judge said that, even though she considered that there was little merit in the stereotypes and mythology that inform characteristic-based challenges, the use of peremptory challenges in these circumstances justified their availability.152
  3. 3.133 Judges and practitioners consulted by the Commission did not consider challenge for cause to be sufficient to exclude prospective jurors whose mere demeanour suggested bias.153 Consequently, without the availability of peremptory challenges, there was a concern that there would be no way to exclude such people from a jury and that this would undermine the confidence of participants in the system.  

An impartial jury or a receptive jury?

  1. 3.134 Although both criminal defence and civil law practitioners said they use challenges to remove prospective jurors who are known or believed not to be impartial, they also acknowledged that they use challenges to achieve a jury that is receptive to their client’s case.
  2. 3.135 The Commission considers that an impartial jury is qualitatively different from a receptive jury. In the Commission’s view a receptive jury is one that is considered more likely to decide in favour of a particular party.
  3. 3.136 This distinction is acknowledged in the DPP (Vic)’s policy, where achieving a ‘receptive’ jury is described as a legitimate goal for the accused, in contrast to the prosecution’s more limited role in securing an impartial jury.154
  4. 3.137 To the extent that using peremptory challenges to achieve a receptive jury is effective, the parties’ competing strategies are likely to cancel each other out to some extent in civil trials, where both the plaintiff and defendant exercise their challenges in the same manner.155
  5. 3.138 However, in criminal trials, where the Crown’s exercise of stand asides is very limited,156 the impact of the use of peremptory challenges to achieve a receptive jury is likely
    to be greater.157
  6. 3.139 A relative of a victim of crime consulted by the Commission expressed particular concern about this. She argued that far from ensuring an impartial jury, peremptory challenges may turn a representative, impartially selected sample of the community into a group which is more likely to be biased in favour of the accused.158 In her view, this is not fair. Some jurors consulted by the Commission expressed a similar view, as have some jury researchers.159

Procedural fairness

  1. 3.140 The common law requirement of procedural fairness is concerned with the fairness of the process through which a criminal or civil matter is determined. Although the exact content of procedural fairness depends on the individual circumstances of the case, in general, it has two main aspects:160
  • The hearing rule—the right of a party to be heard before a competent tribunal.
  • The bias rule—the right of a party to have that matter determined by a decision maker who is free from bias and is seen to be unbiased.
  1. 3.141 This section discusses whether peremptory challenges are an essential component of procedural fairness in a jury trial. It then discusses the benefits of procedural engagement by the parties through peremptory challenges. Finally, it discusses the role of peremptory challenges in ensuring the competence of the jury through the removal of jurors who are unwilling or unable to perform the task.  

The requirements of procedural fairness

  1. 3.142 As noted at [3.140], procedural fairness requires that a party have the opportunity to be heard by a competent and fair tribunal. Peremptory challenges are one way this can be achieved.
  2. 3.143 Further, so long as peremptory challenges are part of the jury empanelment process under legislation, a failure to allow an accused to exercise his or her peremptory challenges is a procedural error significant enough to amount to an appealable error.161
  3. 3.144 However, this does not mean that peremptory challenges are, in and of themselves, required for procedural fairness. It has been recognised that aspects of the jury empanelment system can be modified or abolished by Parliament.162
  4. 3.145 As noted at [3.30]–[3.34], Parliament abolished peremptory challenges in England and Wales in 1988, and subsequently in Scotland (1995) and Northern Ireland (2007). Although the abolition was criticised by some practitioners at the time,163 a major review of criminal courts in England and Wales conducted in 2001 did not recommend reintroduction.164

Involvement of the accused in criminal trials

  1. 3.146 Defence practitioners consulted by the Commission considered that one of the most important purposes of peremptory challenges is to involve the accused in the trial. For example, Victoria Legal Aid argued that ‘peremptory challenges provide a critical opportunity for accused people to be directly involved in their trial’.165
  2. 3.147 It was argued that involving the accused through the exercise of peremptory challenges improved their acceptance of and confidence in the process, the outcome of the trial and even the criminal justice system more broadly. For example, the Criminal Bar Association stated that the peremptory challenges process ‘significantly contributes to the accused’s sense of involvement with and confidence in the process’.166
  3. 3.148 In consultations with judges and defence practitioners, the comfort that peremptory challenges provide to the accused emerged as one of the most important arguments in favour of their retention.167 Several practitioners emphasised that the decision to challenge is one of the only forms of control the accused has in a trial process that is otherwise quite disempowering.
  4. 3.149 Many of these practitioners acknowledged that this control may be somewhat illusory, as challenges based on stereotypes or the idiosyncratic personal preferences of the accused are unscientific, and therefore unlikely to achieve their intended goal. Further, it was noted that common assumptions, for example, that persons accused of sexual offences should challenge young women, could in fact be detrimental to the accused, as the jury may form negative views about the accused on the basis of such a strategy.168
  5. 3.150 Nonetheless, giving the accused the opportunity to challenge jurors—regardless of the effectiveness of those challenges—was seen by judges and defence practitioners consulted by the Commission as important in itself because it provides the accused with a level of active participation, and therefore contributes to the accused’s perception that the process has been fair.
  6. 3.151 The New Zealand Law Commission’s 2001 review of juries in criminal trials found the involvement of the accused was an important justification for the retention of
    peremptory challenges:

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 will sit in judgment on him. If that measure were lost, the accused would be likely to feel a considerable degree of injustice upon conviction.169

  1. 3.152 Many prospective jurors the Commission consulted placed value on the right of the accused to participate in the peremptory challenge process. Some saw this right as connected to the accused’s entitlement to the presumption of innocence. Several made statements to the effect that, ‘If I were on trial, I would want to have this right.’ There were also some prospective jurors who felt strongly that the accused should not have this right; that the accused should be tried by a random sample of the community.
  2. 3.153 In contrast, the Queensland Law Reform Commission considered the involvement of the parties the ‘least persuasive’ argument in favour of peremptory challenges. It noted that it is very often the parties’ lawyers who make the strategic decisions about peremptory challenges, rather than the parties themselves.170
  3. 3.154 A number of practitioners the Commission consulted rejected the idea that the accused was purely the mouthpiece for their lawyer, and stated that while they provided advice on exercising challenges to their clients, they always emphasised to their clients that the decision to challenge was ultimately their own.171
  4. 3.155 It is possible that the culture of client involvement in decisions about challenges is stronger in Victorian criminal trials because of the requirement that the accused voice the challenge, which does not exist in other jurisdictions.172

Views of victims

  1. 3.156 While acknowledging that peremptory challenges can provide comfort to the accused, some prospective jurors and individuals questioned whether this value should be placed above other values, such as non-discrimination and rationality in the jury selection process.
  2. 3.157 For example, the Crime Victims Support Association Inc. quoted the view (expressed by jury researchers Jacqueline Horan and Jane Goodman-Delahunty) that:

The benefit of enhanced perceptions of justice through the participation of the defendant in the jury empanelment process is now outweighed by the community ridicule that such a superficial, biased and embarrassing process brings to the justice system.173

  1. 3.158 A family member of a victim of crime consulted by the Commission expressed the view that the peremptory challenges process is one-sided, as the accused is afforded the ‘luxury’ of involvement in peremptory challenges, while victims are not.174

Procedural fairness considerations in civil trials

  1. 3.159 Procedural fairness considerations featured less prominently in consultations concerning civil jury trials. This is likely because, in civil jury trials, the parties are usually not directly involved in the empanelment process. While plaintiffs are often present at the empanelment (defendants typically are not), peremptory challenges are decided and made by the parties’ barristers and solicitors without their input.
  2. 3.160 The main concern raised by plaintiff practitioners was that in cases involving one plaintiff and multiple, separately represented defendants, there is an imbalance in the number of challenges available to the opposing sides.175 The Common Law Bar Association’s submission stated that:

The availability of 3 challenges per party might be seen as somewhat unfair to plaintiffs if there are several defendants as the challenges will be likely to give greater representation to those jurors thought likely to favour the defendant position.176

  1. 3.161 This issue was also acknowledged by judges consulted by the Commission.177 Defendant practitioners noted that the interests of separately represented defendants can in some cases be quite hostile to one another. In such cases, each defendant’s challenges may be based on different considerations. However, it was also acknowledged that separately represented defendants sometimes ‘gang up’ on the plaintiff in the exercise of challenges, and use them in a manner which they perceive to be disadvantageous to the plaintiff’s case. To the extent that peremptory challenges do provide parties with a strategic advantage,178 this is arguably unfair to the plaintiff in such cases.

Removal of prospective jurors who are unwilling or unable to serve on a jury

  1. 3.162 Using peremptory challenges to remove prospective jurors who are unwilling or unable to serve effectively on a jury contributes to procedural fairness, as such prospective jurors, while not necessarily biased, may pose a threat to a fair trial in contravention of the hearing rule explained at [3.140].179
  2. 3.163 Both criminal and civil law practitioners stated that they use peremptory challenges to exclude prospective jurors who clearly do not want to serve on the jury, as they considered an unwilling juror less likely to do the ‘work’ necessary to properly determine the facts in question. At the empanelment stage, this unwillingness might be apparent from their demeanour, or the fact that they have unsuccessfully sought to be excused by the trial judge. The DPP (Vic)’s policy also acknowledges the potential of such jurors to undermine the integrity of the jury.180
  3. 3.164 Other groups considered potentially damaging to the prospects of a fair trial were prospective jurors who are not capable of performing the role due to an impairment or difficulty with the English language.181 These groups are ineligible for jury service, but the Juries Commissioner’s Office relies on prospective jurors with such impediments to jury service identifying themselves.  
  4. 3.165 Both legal practitioners and judges told the Commission that people in these categories do sometimes end up on jury panels. For example, it sometimes becomes apparent during the empanelment or the trial that a prospective juror has a hearing impairment which makes them unable to hear the evidence.182 During its observations of empanelments, the Commission also noticed that, following the judge’s instruction, prospective jurors sometimes identify themselves as having inadequate hearing.
  5. 3.166 VEOHRC expressed concern about the use of peremptory challenges to exclude prospective jurors based on perceived inability to perform the role:

whether a person is capable of jury service is more properly addressed in the eligibility process (and an assessment of whether reasonable adjustments may be required to enable a person to fulfil the duties of a juror), and is not an assessment that can be made by the parties in the challenge process solely on the basis of a person’s appearance.183

The effect of peremptory challenges on jurors

  1. 3.167 There is an increasing understanding of jury service as a right as well as a civic duty.184 Both the Juries Commissioner and VEOHRC submitted that excluding prospective jurors through peremptory challenges impinged on this right.
  2. 3.168 VEOHRC expressed concern about the exclusion of certain categories of people from jury participation on discriminatory grounds.185 The Juries Commissioner expressed similar concerns that peremptory challenges ‘serve to confuse, discriminate and otherwise offend citizens who have both a right and a civic responsibility to serve on a jury’.186
  3. 3.169 To better understand the experiences and views of those who had participated in jury empanelments, the Commission undertook a number of consultations across Victoria with people who had been involved in jury empanelment. The Commission also conducted a paper-based and online survey.187

Understanding of the purpose of peremptory challenges

  1. 3.170 The survey and the Commission’s consultations revealed a high level of understanding of the purpose of peremptory challenges.
  2. 3.171 A large majority of survey respondents (78.8 per cent of those who participated in criminal empanelments and 84.8 per cent of those who participated in civil empanelments) said that they understood why peremptory challenges exist.
  3. 3.172 Most of the explanations provided by respondents fell into the following broad categories:
  • to ensure impartiality
  • to ensure the appearance of impartiality
  • to exclude prospective jurors who may not be sympathetic to the parties
  • to balance the jury so it is representative.
  1. 3.173 A possible explanation for the high level of understanding of the purpose of peremptory challenges among jurors and prospective jurors is the induction process—in particular the induction video—which was considered clear and informative.
  2. 3.174 Though many participants described the peremptory process as intimidating, they generally considered that given what was at stake for the accused, the process was necessary and justified.

Reactions of people who were challenged

  1. 3.175 Prospective jurors who were challenged were asked to tick a box to indicate the option that best described how they felt about being challenged. The options were ‘relieved’, ‘didn’t mind’, ‘disappointed/frustrated’, ‘embarrassed’ or ‘upset/angry’.
  2. 3.176 Nearly 60 per cent of respondents challenged in criminal trials were either relieved (15.3 per cent) or didn’t mind being challenged (44.4 per cent).
  3. 3.177 Around 40 per cent of respondents challenged in criminal trials were disappointed/frustrated (29.2 per cent), embarrassed (5.6 per cent) or upset/angry (5.6 per cent).
  4. 3.178 More than 90 per cent of those who were challenged in civil trials responded that they were relieved or did not mind.

The challenge process

  1. 3.179 The consultation discussion and survey questions on the challenge process focussed particularly on the requirement to parade in front of the accused (in criminal trials) and to stand to be identified (in civil trials).
  2. 3.180 Both prospective jurors who had been challenged or who were selected for the jury (that is, individuals who had experienced the process) and prospective jurors who were on the panel but were not selected (that is, individuals who observed the process only) were asked for their views about the process.
  3. 3.181 Respondents to the survey were able to write free text answers to the questions. The Commission identified themes from the responses and categorised them. Some responses fell into more than one category.

Criminal trials

  1. 3.182 There were 148 respondents who had experienced the parade process and 138 respondents who had observed the parade process.
  2. 3.183 Around half of those who had either experienced or observed the challenge process for a criminal trial were unconcerned about the parade or considered that, while it may be uncomfortable for the prospective juror, it is justified. For example, one respondent who had experienced the parade said:

[I felt] quite uneasy, but I understand the need for it.

  1. 3.184 Another respondent who had observed the parade said:

[it is] daunting, however, at this stage the accused is innocent.

  1. 3.185 However, around 45 per cent of jurors who had experienced the parade indicated that they felt intimidated or nervous or that they were on display. Some of these reactions were very strong. For example, respondents in this group said:

I felt like I was being judged.

[I felt] embarrassed, exposed, humiliated.

I felt the process was undignified and intimidating.  

  1. 3.186 In consultations, some participants said they were anxious about the parade, but most accepted it as a necessary component of the challenge procedure, as they generally felt it was important to allow the accused to see them. However, when presented with the alternative of simply standing and facing the accused,188 rather than parading, all participants preferred this alternative.189

Civil trials

  1. 3.187 The Commission did not have the opportunity to consult with any prospective jurors who had attended empanelments for civil trials. Consequently, the information below is based solely on the juror survey.
  2. 3.188 There were 26 respondents who had experienced the process of having to stand to be identified and 33 respondents who had observed the process, but had not been selected in the ballot.
  3. 3.189 Fewer respondents who had attended an empanelment for a civil trial expressed concern or discomfort about the challenge process.
  4. 3.190 Around 60 per cent of respondents who had experienced the process were unconcerned about it. Around 66 per cent of prospective jurors who had observed the process were unconcerned about it.
  5. 3.191 Around 23 per cent of jurors who had experienced the process gave responses that were categorised as feeling nervous, uncomfortable, or on display.
  6. 3.192 Fewer prospective jurors who had observed the process thought that the process was uncomfortable or intimidating (15 per cent). However, of these, nearly two-thirds accepted the process, despite considering it uncomfortable.
  7. 3.193 The critical comments about the civil challenge process were generally less forceful than for the criminal process. For example:

[it] seems demeaning like you are being judged or that you have done something wrong.

[I] understand why it is currently done, but it seemed a little bit judgemental and intimidating for the people standing while barristers look them up & down/make notes.

Should peremptory challenges be retained?

  1. 3.194 A majority of consultation participants thought peremptory challenges should be retained, while a minority strongly objected to them. These objections tended to be based more on an objection to the accused having the right to influence the composition of the jury, rather than the effect of the process on prospective jurors. Those who held this view argued that the jury should be composed of a random sampling of society, and ‘tampering’ with this sample was unjust. Some participants also thought that the use of stereotypes as a basis for challenges was foolish or discriminatory, and should not be facilitated through peremptory challenges.
  2. 3.195 Survey responses for those who participated in jury empanelments also showed greater support for retaining peremptory challenges. For criminal trials, 49 per cent favoured retaining peremptory challenges, while 37.9 per cent thought they should be abolished.190
  3. 3.196 Support for peremptory challenges in civil trials was even stronger, with 52.5 per cent in favour and only 23.7 per cent against.191  

Conclusions drawn from the Commission’s consultations and survey

  1. 3.197 While consultation and survey results were mixed, a number of themes emerged:
  • There was a high degree of understanding about why peremptory challenges exist.
  • There were more people in favour of retaining peremptory challenges than abolishing them.
  • Many jurors and prospective jurors do not like the ‘parading’ in front of the accused in criminal trials, but many also recognise the right of the accused to see them as important and fair to the accused.
  • Fewer concerns were expressed about the process for civil jury empanelments.
  1. 3.198 The Commission observed that those who disagreed with peremptory challenges tended to hold this view strongly, but broadly speaking, peremptory challenges have qualified support among those who have participated in the empanelment process.

Alternatives to peremptory challenges and restrictions on use

  1. 3.199 In reviewing the purpose and adequacy of peremptory challenges, the Commission has considered various other ways of excluding biased prospective jurors or prospective jurors who are unwilling or unable to serve—some of which already exist in legislation or common law, or are adopted informally in practice. These alternatives are:
  • challenge for cause
  • pre-trial questioning of prospective jurors
  • challenges by consent
  • judicial discretion to discharge jurors
  • restrictions on the use of peremptory challenges.
  1. 3.200 Each of these alternatives and safeguards is discussed below.

Challenge for cause

  1. 3.201 An unlimited number of challenges for cause are available to parties in criminal and civil jury empanelments in Victoria.192 Yet despite this, challenges for cause are very rarely used. The most likely explanation for this is the ready availability of peremptory challenges. There is also a very limited understanding among practitioners as to grounds and process for challenge for cause.

The grounds for challenge for cause

  1. 3.202 The grounds for challenge for cause are not set out in the Victorian Juries Act. Grounds are specified in the Jury Act 1995 (Qld) and the Criminal Procedure Act 2004 (WA). The grounds specified in those Acts are that the person is not qualified for jury service or the person is not impartial.193  
  2. 3.203 In Murphy v The Queen,194 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 Wales195 relied on by the trial judge, which provided that the grounds for challenge for cause were:

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.196

Challenge for cause in practice

  1. 3.204 A challenge for cause is determined by the trial judge.197 The jury panel is usually excluded from the hearing of the challenge to avoid any prejudice, but this does not always occur.
  2. 3.205 The Juries Act does not specify the process for challenges for cause in any detail. The Commission’s consultations revealed confusion among practitioners about how the process worked.
  3. 3.206 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.198 Second, if the judge is satisfied there are proper grounds to challenge the prospective 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 these answers may further permit the examination or cross-examination of the person on oath.199 After considering the evidence and submissions of the parties, the judge must uphold or dismiss the challenge.200

Challenge for cause as an alternative to peremptory challenges

  1. 3.207 Some individuals and academics have argued that challenge for cause should be used in place of peremptory challenges, as challenges for cause are a reasoned, justified, and transparent method of jury selection.201 Many jurors and prospective jurors consulted also felt that if they were to be excluded from a jury, a reason should be provided to justify this.
  2. 3.208 However, practitioners and judges consulted by the Commission did not consider that challenge for cause could adequately replace the function of peremptory challenges. In particular, challenge for cause would not allow defendants to exclude prospective jurors based on ‘gut feeling’. For example, an accused would no longer be able to exclude a prospective juror because they thought the prospective juror had given them a ‘dirty look’.202 This is because of the difficulty in establishing cause, given the very limited information about prospective jurors available to parties.
  3. 3.209 The DPP (Vic) submitted that challenges for cause are designed to be used where one of the parties has pre-existing information about a prospective juror, and they therefore have a different purpose to peremptory challenges. Accordingly, challenges for cause and peremptory challenges should not be treated as alternatives to each other.203  
  4. 3.210 Other obstacles to the use of challenge for cause were identified as:
  • A lack of understanding of the process and grounds for challenge for cause.
  • The time, cost, and logistical complexities involved in hearing a challenge for cause.204
  • The potential embarrassment to prospective jurors of a challenge for cause hearing.205
  1. 3.211 The expediency of peremptory challenges compared with challenges for cause was cited by the Law Reform Commission of Western Australia,206 Queensland Law Reform Commission,207 Law Commission of New Zealand208 and the Law Reform Commission of Ireland209 as a reason to retain them.
  2. 3.212 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’.210 The Law Commission of New Zealand 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 prospective juror’s unsuitability.211
  3. 3.213 However, it is noteworthy that in recommending the abolition of peremptory challenges in Scotland, the Scottish government found that:

Experience since peremptory challenge was abolished in England and Wales suggests that abolition would not result in a significant rise in challenge on cause shown.212

  1. 3.214 Nonetheless, the Commission does not believe that the availability of challenge for cause provides an appropriate alternative to peremptory challenges. The Commission accepts the arguments of practitioners and judges that challenge for cause:
  • is unlikely to provide a remedy in certain circumstances where a prospective juror’s behaviour or demeanour indicates that they may be biased
  • is a more time consuming, and therefore costly process
  • is a more invasive, and potentially more upsetting process for the juror than a peremptory challenge, particular where the basis for the challenge is concern about the juror’s ability to perform the role.
  1. 3.215 The Commission does, however, consider that challenges for cause have an important function where pre-existing information indicates that a prospective juror is not impartial, or is ineligible to serve. Challenge for cause also provides an additional safeguard in the event a party exhausts all their peremptory challenges, and the party has grounds on which to base a challenge.
  2. 3.216 Given the lack of understanding of the grounds and process for challenge for cause apparent from the Commission’s consultations, there would be benefit in providing legislative guidance, similar to that in the Jury Act 1995 (Qld),213 to assist practitioners and judicial officers in making a challenge for cause.  

Recommendation

1 The Juries Act 2000 (Vic) should specify:

Pre-trial questioning of jurors in special circumstances

  1. 3.217 Pre-trial questioning of jurors is conducted extensively in the United States through the ‘voir dire’ process.214 As noted at [3.39], the purpose of this pre-trial questioning is to identify possible prejudice or bias in prospective jurors. 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 for people selected to serve as jurors to be questioned when the court reaches the final stage of the jury selection process.215 This occurs after the jury has been sworn in (following the exercise of any peremptory challenges), but before the panel is discharged.216 The questions are put by the judge in a manner decided by the judge.217 Once the answers are received, the judge may allow the parties to cross-examine the juror under oath to determine whether they are impartial.218 Parties may then elect to challenge the juror for cause, which the judge must uphold or dismiss.219
  2. 3.218 Pre-trial questioning has only been used twice in Queensland—first by the Supreme Court of Queensland in 2013 in the matter of R v Patel (No 4),220 and then again in the District Court trial of the same defendant later that year. The Queensland deputy sheriff has advised that while administratively workable, the questioning process in these trials was resource intensive and somewhat burdensome for jurors.221
  3. 3.219 There was little support for the adoption of a ‘pre-trial questioning’ mechanism in Victoria similar to that in the Queensland Jury Act 1995, which as noted above, may involve counsel cross-examining potential jurors. While one submission supported the introduction of pre-trial questioning of jurors for civil jury trials,222 there was generally significant anxiety about moving towards an ‘American’ model of jury empanelment.
    The DPP (Vic), for example, argued that such an approach is:

potentially embarrassing for jurors… will create a new lawyer-based jurisprudence…
will inevitably require jury directions (jury directions are already complex and need not
be made more so) and… fail[s] a cost/benefit analysis.223

  1. 3.220 The Commission agrees with the submission of the DPP (Vic). There is a vast United States jurisprudence on the interrogation of jurors by counsel.224 That method is time-consuming and intrusive. The Commission considers it would add no benefit to Victorian jurisprudence on jury selection and if adopted would significantly change the Victorian culture on jury selection.  
  2. 3.221 While more limited in scope, the Commission considers that the excuse process under section 32 of the Juries Act already provides an adequate means for the identification and excusal of prospective jurors who are not able to fairly try the issues in the case. The Juries Act requires judges to inform jurors in all cases of:
  • the type of case or charges to be heard
  • the name/s of the parties
  • the names of the principal witnesses, and
  • the estimated length of the trial.225
  1. 3.222 The judge must also inform the jury panel of ‘any other information that the court thinks relevant’.226 This can often include further background information about the case.
  2. 3.223 Based on this information, the judge will then call on panel members to provide any reasons why they should be excused from jury service because they will be unable to consider the case impartially, or any other reason why they are unable to serve.227 The potential juror gives evidence in response to questions by the trial judge. Counsel are not permitted to cross-examine potential jurors.
  3. 3.224 This process might lead a judge to excuse prospective jurors if they have personal knowledge of the parties or particular familiarity with relevant witnesses, or where they have been personally involved in an incident similar to the one at trial and therefore do not believe they can approach the case impartially. In high-profile cases, where there has been substantial pre-trial publicity of the accused or a witness is publicly well known, the judge usually asks the jury panel whether, as a result of what they have heard about the case, there is any juror who feels that they cannot consider the case impartially. However, in asking this, judges usually explain to jurors that they will be guided and given directions by the judge throughout the trial on how they are to perform the jury function impartially and decide solely on the evidence admitted at trial.
  4. 3.225 The Commission considers that the Victorian procedure provides an adequate safeguard to the impartiality of the jury (together with the other safeguards outlined at [3.120]). It is also a less time-consuming and costly process, and is significantly less invasive for prospective jurors. Accordingly, the Commission does not consider that it is necessary or desirable to allow pre-trial questioning of jurors in Victoria, either as an exception along the lines of the Queensland Jury Act 1995, or more generally as in the United States voir
    dire process.

Challenges by consent

  1. 3.226 Challenges by consent228 exist in Scotland as an alternative to peremptory challenges, which were abolished in 1995.229 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.230
  2. 3.227 A similar process exists in New Zealand, where a party may apply to the judge to ‘stand by’ a prospective juror with the consent of the other party. Judges may also direct a prospective juror to stand by on their own motion.231 However, in New Zealand parties are provided in advance with a list containing the prospective juror’s name, occupation, address and date of birth, which allows them to confer on potential challenges prior to the empanelment.232
  3. 3.228 In Victoria, the current empanelment process provides very limited opportunity for challenges to be made by consent, as parties have no information about prospective jurors prior to the calling of the panel. However, as noted at [3.67], defence practitioners told the Commission that they sometimes ask the Crown to exercise its right to stand aside where one of the prospective jurors is known to them or their client, and the Crown sometimes does so. They might also ask the Crown to stand aside a prospective juror who appears to be unable or unwilling to perform the task (for example, if the prospective juror has unsuccessfully sought to be excused). This is, in effect, a challenge by consent.
  4. 3.229 Although some individuals felt that providing a formal challenge by consent might be a useful option, most considered it unnecessary, as they considered the current informal system to be adequate. For example, the DPP (Vic) submitted that such an approach ‘would create an unnecessary complication’.233
  5. 3.230 The Commission agrees with the DPP (Vic) that formal challenges by consent should not be introduced as they would add little to current practice and may create unnecessary complexity.

Judicial discretion to exclude prospective jurors

  1. 3.231 Trial judges have an inherent common law power to discharge234 or stand aside235 a prospective juror from a panel on the basis that he or she is not able to properly perform his or her duties.
  2. 3.232 The Commission does not consider that it is necessary to codify this element of the common law. This discretion is valuable but rarely used, and there appears to be no compelling need for it to be specified in the Juries Act.

Safeguarding the representativeness of the jury

  1. 3.233 In the consultation paper, the Commission considered two ways of minimising the impact of peremptory challenges on the representativeness of the jury that exist in other jurisdictions:
  • legislative prohibitions on challenges based on discriminatory grounds such as race
    or gender
  • a judicial discretion to discharge an unrepresentative jury.

Prohibition on discriminatory challenges

  1. 3.234 The use of peremptory challenges on certain discriminatory grounds is prohibited by law in the United States.236 VEOHRC argued that similar prohibitions should be introduced if peremptory challenges were to be retained in Victoria:

At a minimum, the exercise of peremptory challenges should be subject to criteria – such as those in the DPP’s guidelines – prohibiting their exercise purely on age, gender, religious, racial, cultural or other similar grounds that would be discriminatory in any other context.237

  1. 3.235 The DPP (Vic) disagreed, arguing that ‘such prohibitions may be seen to curtail the basis for peremptory challenges such as procedural engagement by the accused’.238  
  2. 3.236 While the Commission agrees with VEOHRC that challenges based on discriminatory characteristics are generally undesirable (and largely ineffectual), if peremptory challenges are to be retained, the Commission does not consider that prohibitions on such conduct are practical or enforceable. Peremptory challenges, by definition, do not require further rationale or explanation, so to require this would fundamentally change their character, and make them more akin to challenges for cause. Review of peremptory challenges on these grounds is also likely to prove difficult and time-consuming.239
  3. 3.237 The Commission considers that a more effective means of reducing discrimination caused by peremptory challenges is to reduce the number of challenges available to the parties. This is considered at [3.249]–[3.279].

Judicial discretion to discharge an unrepresentative jury

  1. 3.238 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.240 However, jury administrators in these states were not aware of any instances of the exercise of this power.241
  2. 3.239 Concern was expressed by both judges and practitioners about such a proposal in Victoria. It was argued that this was unnecessary, and requires the exercise of an almost impossible discretion for judges in determining whether the composition of the jury ‘is or appears to be unfair’.
  3. 3.240 Given the concerns expressed and the apparent lack of use of this discretion in other comparable jurisdictions, the Commission does not consider the introduction of a similar power to be desirable in Victoria.

The Commission’s conclusions

  1. 3.241 Below the Commission outlines its conclusions and recommendations for reform in relation to peremptory challenges and stand asides. In summary, the Commission recommends that peremptory challenges and stand asides be retained in criminal trials, but the number available be reduced to minimise the potential for jury manipulation, and to bring Victoria into line with New South Wales, Western Australia and South Australia.
  2. 3.242 The Commission also recommends reducing the number of peremptory challenges in civil trials, and adjustments to prevent unfairness to plaintiffs in multi-defendant proceedings. Finally, the Commission recommends minor procedural changes to minimise any negative effects the peremptory challenge process may have on prospective jurors.

Peremptory challenges and stand asides should be retained

  1. 3.243 The Commission considers that peremptory challenges should be retained in criminal and civil trials, as they serve the important functions of enhancing parties’ confidence in the jury, and providing a safeguard in the event other processes have failed to remove prospective jurors who are biased or who appear to be unwilling or unable to serve. The Crown right to stand aside jurors in criminal trials should also be retained, as it is an important safeguard to ensuring a competent and impartial jury.  

Criminal trials

  1. 3.244 As discussed at [3.144]–[3.145], the Commission does not consider peremptory challenges to be an essential component of the accused’s right to a fair trial. There is a variety of other mechanisms in the jury selection process, and criminal procedure more generally, which ensure this occurs. Criminal jury trials in the United Kingdom have been successfully run for decades without peremptory challenges, and the 2001 Auld Report into the criminal courts of England and Wales declined to recommend the reintroduction of peremptory challenges.242
  2. 3.245 Nonetheless, the Commission considers that there is a continuing important role for peremptory challenges in Victoria. In particular, there is value in the accused having the opportunity to participate in the jury selection process, and remove individuals they are particularly uncomfortable with. This participation can enhance the accused’s confidence in the trial process and the outcome. A majority of prospective jurors consulted by the Commission understood this rationale and supported it.243
  3. 3.246 Peremptory challenges and stand asides also provide a quick and efficient means of removing prospective jurors who are obviously not impartial or otherwise appear unwilling or unable to serve on a jury, avoiding the delay, cost and potential further embarrassment associated with a challenge for cause. To this end, peremptory challenges and stand asides act as an additional safeguard in the event that other processes such as exemptions and excuses have failed to exclude such persons.

Civil trials

  1. 3.247 The Commission also considers that peremptory challenges should be retained in civil jury trials. As with criminal trials, peremptory challenges provide a quick and efficient means for parties to remove prospective jurors who are known or appear to be biased in some way, or appear to be unwilling or unable to serve. However, unlike criminal trials, there is usually no active participation by the parties in civil jury empanelments, so the argument that peremptory challenges provide ‘comfort’ to the parties is less pertinent in civil jury trials.
  2. 3.248 Feedback from the VLRC juror survey indicates that people who had been part of civil jury empanelments were less negatively impacted by the process than those who participated in criminal jury empanelments.244 The available evidence also suggests that Victorian civil juries are broadly representative of the community,245 and have more balanced gender composition than Victorian criminal juries.246

Recommendation

2 Peremptory challenges and the Crown right to stand aside should be retained for criminal jury trials.

Peremptory challenges should be retained for civil jury trials.

 

Reducing the number of challenges available

Criminal trials

  1. 3.249 Despite concluding that peremptory challenges should be retained, the Commission considers that there are a number of negative aspects to peremptory challenges, chiefly:
  • They have the potential to reduce the representativeness of juries.
  • They can be unscientific, and facilitate discriminatory, stereotype-based judgments.
  • They infringe on the ability of citizens to participate on a jury.
  1. 3.250 The Commission accepts that in some cases practitioners use peremptory challenges to address an imbalance in the composition of the jury (for example, if a disproportionate number of men or women are balloted). However, consultations, data from the JCO247 and the Commission’s own observations reveal that more often than not the opposite is the case: peremptory challenges tend to diminish the representativeness of juries.
  2. 3.251 The Commission considers that peremptory challenges, when based on a characteristic of the prospective juror, are a highly questionable means to achieve an impartial jury. There is no evidence that a person’s name, appearance or occupation is a useful predictor of their capacity to fulfil the functions of a juror properly or how they will approach a particular case.248
  3. 3.252 To the extent that these characteristics are an effective guide, many practitioners consulted also openly acknowledged that they are often used to achieve a jury that is more receptive to their client’s case, rather than achieve an impartial jury. In these circumstances, peremptory challenges may be better understood as a concession afforded to the accused given that their liberty is at stake, rather than as fundamental to the assurance of an impartial jury.
  4. 3.253 Because the Commission considers that the law should not actively facilitate a party’s capacity to distort the composition of juries, it recommends that the number of peremptory challenges be reduced to minimise the use of challenges in this way. The Commission considers that the benefits of peremptory challenges outlined at [3.245]–[3.246] can be achieved by providing the accused with three challenges, while the current six challenges are excessive for these purposes, and allow for the more negative uses outlined at [3.251]–[3.252]. The significantly greater distorting potential that six challenges can have on the gender composition of the jury is illustrated by the scenarios at [3.101]–[3.104].
  5. 3.254 New South Wales, South Australia and Western Australia all provide three peremptory challenges to the accused in criminal trials, which demonstrates that criminal jury trials can operate effectively with this reduced number of peremptory challenges. The Commission considers that three peremptory challenges would still allow for their use as a safeguard where other processes such as exemptions and excuses do not exclude people who are not impartial, or who are unwilling or unable to serve, but would minimise the opportunity to use peremptory challenges to distort the representativeness of the jury.
  6. 3.255 The Commission considers that reducing the number of peremptory challenges available would be more effective than any attempt to prohibit stereotype-based challenges through regulation.249  
  7. 3.256 A reduction, rather than the abolition, of peremptory challenges addresses the Criminal Bar Association’s concern about ‘throwing the baby out with the bathwater’250—that is, it would maintain the benefits of peremptory challenges most important to the conduct of a jury trial, while minimising their more negative aspects.
  8. 3.257 The Commission considers the current approach of further reducing the number of peremptory challenges in proceedings involving multiple accused should be continued. In proceedings involving two or more accused, the number of challenges can quickly multiply. The combined effect of these challenges can have a significantly distorting effect on the composition of the jury.
  9. 3.258 The DPP (Vic) opposed the current reductions in its submission, arguing they ‘have no basis in principle’.251 The Commission disagrees, and considers the initial rationale for these reductions—to reduce ‘distortions in the representative nature of juries’252—remains relevant.253 A minimum of two challenges for each accused in multi-accused proceedings still provides the opportunity for each accused to exclude the prospective jurors they are least comfortable with. At the same time, it reduces the multiplier effect in multi-accused proceedings. This is important because it means that multiple accused would not have significantly greater scope to shape the composition of the jury because they are being tried together rather than separately.
  10. 3.259 In the interests of fairness, the Commission also considers it appropriate that the number of Crown stand asides be reduced to match the total number of peremptory challenges available to all the accused in that trial.
  11. 3.260 Finally, although the Commission notes that reducing the number of peremptory challenges is likely to result in a small cost-saving to government, these savings are likely to be insignificant when compared with the overall cost of jury trials in Victoria. Cost has therefore not been a significant consideration informing the Commission’s recommendations.

Recommendations

3 The number of peremptory challenges available to a single accused in a criminal trial should be reduced from six to three.

4 Where there is more than one accused, each accused should be entitled to exercise two peremptory challenges.

5 The number of stand asides available to the Crown in a criminal trial should be equal to the total number of peremptory challenges available to all the accused persons for that trial.

 

 

  1. 3.261 As adoption of the above recommendations will result in the accused having less opportunity to challenge prospective jurors, there is arguably a greater risk that prospective jurors who cause particular concern to the accused will be selected onto the jury. The Commission has therefore carefully considered the option of allowing the accused to exercise their challenges after a complete jury has been balloted—as is currently the case in New South Wales and Tasmania (see [3.55]).
  2. 3.262 The main advantage of this practice is that the accused has the opportunity to see the entire jury before exercising their challenges. The accused is therefore arguably better placed to identify jurors of particular concern to them.254
  3. 3.263 It could also make the experience less stressful for the accused, as they would have significantly more time to consider whether they should challenge a juror.
  4. 3.264 Similarly, it gives the accused’s lawyers additional time to confer with the prosecution about whether any of the balloted jurors should be stood aside.
  5. 3.265 However, several disadvantages of this approach have also been identified. Supreme Court judges consulted by the Commission considered that it would likely be more stressful and cumbersome for an already seated juror to be challenged, and required to exit the jury box past the other balloted jurors.255 A New South Wales jury administrator also acknowledged that the process can be awkward for the remaining jurors, as it requires them to shuffle over to allow the challenged juror past and create space for their replacement.256 These issues were identified by the Tasmanian Department of Justice in its 1998 review of jury selection, which stated:

It has been suggested that the administrative practice whereby a person can be seated in the jury box before being challenged is embarrassing to a potential juror and administratively time consuming as people shuffle backwards and forwards in the jury box. This could be overcome by challenges prior to a person reaching the jury box and adopting the practice from other jurisdictions that all jurors are sworn in together.257

  1. 3.266 The requirement that challenged jurors stand and exit the jury box past other seated jurors may prove particularly difficult for jurors with physical impairments. Older courtrooms with less accessible jury boxes (such as those in the Victorian Supreme Court and Bendigo) may pose particular problems.
  2. 3.267 If the alternative approach were to be adopted, the Commission considers that it would be necessary to allow the parties to exercise any unused challenges on further balloted jurors.258 Otherwise the parties would lose the opportunity to ‘save’ a challenge in the event that a particularly inappropriate replacement was balloted. However, while necessary, this could also make the empanelment process more complicated and time-consuming, as it may require multiple stages of balloting before all the parties’ challenges are exercised.
  3. 3.268 The Commission is also concerned that balloting out of the box may facilitate some of the more negative, stereotype-based uses of peremptory challenges identified at [3.251]–[3.252] because it focuses attention on the demographic composition of the jury as whole, rather than on concerns about the individual juror.  
  4. 3.269 Having weighed the advantages and disadvantages of balloting out of the jury box, the Commission considers that the greater juror inconvenience caused by the New South Wales and Tasmanian process is not justified. Even with a reduced number of challenges, the current process provides adequate opportunity for the accused to exercise the most important functions of peremptory challenges identified at [3.245]–[3.246]. There was also little support for substantial change to the empanelment process during consultations. Below (at [3.287]–[3.296]) the Commission proposes minor procedural changes to the current process to improve the experience of jurors and parties.

Civil trials

  1. 3.270 The Commission considers that the number of peremptory challenges available to parties in civil trials should be reduced from three to two.
  2. 3.271 As with criminal trials, a reduction will minimise the opportunity for parties to exercise challenges based on assumptions and stereotypes about people with certain characteristics.
  3. 3.272 The primary basis for exercising peremptory challenges in civil trials appears to be the prospective juror’s occupation.259 It could be argued that this is not as personal a characteristic as gender, race or age and therefore is not as offensive. Further, it could be argued that as occupation is a choice, instead of an immutable characteristic, it is more reflective of a prospective juror’s values and attitudes and therefore a better indicator of how that prospective juror may decide.260
  4. 3.273 However, as the Common Law Bar Association has noted, the occupational categories used for the purposes of jury empanelment are fairly broad and non-specific.261 There is scope for significant variation in the type of work that such categories describe. The Commission’s consultations also revealed that the way in which practitioners use occupation in the exercise of challenges is not founded on a strong evidence base, but is instead largely informed by legal folklore.262
  5. 3.274 Further, the Commission considers it undesirable that certain occupational groups, such as teachers and nurses, are perceived to be routinely excluded from jury service, as it undermines confidence in the jury system.
  6. 3.275 Although a reduction from three to two is numerically small, it represents a third of the total challenges available. The effect of such a reduction becomes more significant in multi-defendant proceedings, which are relatively common in personal injury trials. In such cases, a reduction would limit the multiplier effect where peremptory challenges are provided to each separately represented party.263
  7. 3.276 The Commission is also concerned about the unequal number of challenges available to plaintiffs and defendants in proceedings involving multiple, separately represented parties. This can occur where separately represented plaintiffs or defendants do not consent to join together in their peremptory challenges, and so are provided with three challenges each.264 As noted at [3.161], this creates the potential for separately represented parties (usually defendants) with similar interests to strategically combine their additional challenges in a way that they perceive will be disadvantageous to the opposing side.  
  8. 3.277 The Commission acknowledges that this does not happen in every case, and separately represented parties’ interests are not always aligned. However, the Commission agrees with the Common Law Bar Association that, in such cases, the current position may create a perception of unfairness to the single party.265
  9. 3.278 The Commission therefore recommends that in multi-defendant proceedings, the number of challenges available to the single party be increased to match the total number available to the opposing side.
  10. 3.279 For example, in a proceeding involving one plaintiff and three separately represented defendants (who do not consent to join in their peremptory challenges), the plaintiff would have six challenges, and the defendants would have two each, a total of six for the defendants, and 12 overall.

Recommendations

6 The number of peremptory challenges available to each separately represented party in a civil jury trial should be reduced from three to two.

7 Where there are multiple separately represented plaintiffs or defendants who do not consent to join in their peremptory challenges, adjustments to the number of challenges should be made to ensure that all the plaintiff/s have an equal total number of challenges to the total number available to the defendant/s, or as close to an equal number as is possible in the circumstances. To achieve this, where necessary the number of challenges available to the plaintiff/s or defendant/s should be increased to match the number available to their opponents.

 

  1. 3.280 Recommendations 6 and 7 should be adopted together, as without the decrease in the number of challenges available to each party (Recommendation 6), Recommendation 7 would result in a significant increase in the total number of challenges in multi-party civil jury trials.
  2. 3.281 To illustrate, if the number of peremptory challenges per party is not reduced from three to two, in the example at [3.279], the plaintiff would have nine challenges and each of the defendants would have three challenges—a total of 18 challenges (nine for each side). The Commission considers that 18 peremptory challenges would be excessive for a six-person civil jury, for reasons similar to those outlined at [3.253].

The effect of the Crown right to stand aside

  1. 3.282 While the Commission accepts that the role of the Crown in standing aside prospective jurors is qualitatively different to the role of the defendant in exercising peremptory challenges,266 it is nonetheless of the view that a prospective juror who is stood aside should be permanently excluded from the jury in the same way that a peremptorily challenged juror is.  
  2. 3.283 In Victoria, Crown stand asides were temporarily replaced by Crown peremptory challenges in 1994.267 However, Crown stand asides were reintroduced in place of Crown peremptory challenges when the current Juries Act came into effect in 2001. In explaining this reversal, the Second Reading Speech for the Juries Act stated:

It is important that the role of the prosecution during the jury selection process—namely to seek the exclusion of persons only where necessary in the interests of justice—be clearly distinguished.268

  1. 3.284 This was consistent with the recommendation of the Victorian Parliament Law Reform Committee’s 1996 report into jury service in Victoria, which found that it was important that the distinct role of the Crown be made clear.269 The Committee also noted that the liability of stood-aside jurors to be re-balloted was important where the remainder of the panel had been exhausted (through challenges and excuses) and there would otherwise be insufficient panel members available to form a jury.270
  2. 3.285 While the Commission agrees with the Committee’s finding that it is important to distinguish the role of the Crown and the accused in exercising challenges, it does not agree that stood-aside jurors should remain part of the jury panel. There is no evidence that the Crown is misusing its right to stand aside prospective jurors, and the proposal to make the effect of stand asides the same as peremptory challenges was universally supported in consultations and submissions. The current process with regard to stand asides unnecessarily complicates empanelments, and is confusing to both prospective jurors and practitioners. It also has the potential to result in the empanelment of inappropriate jurors if a stood-aside juror is balloted again, and the Crown is unwilling or unable to challenge that juror for cause. Concerns about exhausting the panel are better addressed by the JCO ensuring that there are always sufficient panel members to allow for excuses and challenges.271
  3. 3.286 Although the effect should be the same, the Commission considers that the terminology of ‘stand asides’ should be retained, as it is familiar to practitioners, and highlights the distinct role of the Crown in the jury selection process. If Crown challenges were to be reclassified as ‘peremptory challenges’, the Commission is concerned that this distinct role may be eroded over time.

Recommendation

8 A prospective juror who is stood aside by the Crown should be permanently removed from the ballot for that trial.

 

The peremptory challenge process

  1. 3.287 Although there is a variety of different ways in which a jury can be empanelled (see [3.52]–[­3.59]), the Commission does not consider that there is a need for substantial changes to be made to the way in which juries are empanelled in Victoria. For example, as discussed at [3.261]–[3.269], the Commission is not proposing that the approach of challenging prospective jurors out of the jury boxshould be implemented in criminal trials. Minor procedural changes are desirable, however, to ensure that juries are empanelled efficiently, and with minimal stress for those involved.

Criminal trials

  1. 3.288 Two uniquely Victorian requirements were criticised in consultations and submissions:
  • the requirement that prospective jurors ‘parade’ in front of the accused on the way to the jury box.
  • the requirement that the accused themselves voice challenges, with little flexibility to delegate this role to their lawyers.
The parade
  1. 3.289 The parade was criticised as unnecessary, archaic and demeaning by most judges and lawyers the Commission spoke to. Submissions provided by the Juries Commissioner, the Ethnic Communities’ Council of Victoria, DPP (Vic) and VEOHRC supported its abolition.272
  2. 3.290 The VLRC juror survey shows that it provokes strongly negative reactions in some jurors and prospective jurors. Such strong reactions may extend beyond the individual to family and friends, and influence views of the criminal justice system.
  3. 3.291 While it is reasonable and necessary for the accused to have the opportunity to see the prospective jurors, the parade is an unnecessarily intimidating way to achieve this. It is a practice that appears to have persisted in Victoria largely through tradition. Juries are successfully empanelled in all other Australian jurisdictions without this requirement.
  4. 3.292 An alternative approach, already taken by at least one Victorian County Court judge consulted by the Commission, is to have the balloted juror stand and face the accused before walking towards the jury box.
Who voices the challenge
  1. 3.293 As noted at [3.245], the Commission considers that involving the accused in the jury selection is one of the most important roles of peremptory challenges. One of the ways this is achieved is through the accused voicing the challenges aloud in the courtroom. In Victoria, lawyers may only voice challenges on behalf of the accused in limited circumstances.273
  2. 3.294 However, some concern was expressed in consultations and submissions that it was not always appropriate for the accused to voice challenges themselves. Victoria Legal Aid described the concern as follows:

[W]e… advocate for a more flexible approach to the way in which peremptory challenges can be made. Currently, the accused is required to voice challenges in open court. Many accused suffer from mental and physical health problems that impede their ability to voice a challenge. This can be a very stressful and intimidating task for those accused who are vulnerable or whose verbal presentation may act to prejudice them in the eyes of prospective jurors.274

  1. 3.295 The Commission agrees that a more flexible approach is desirable. While an accused may wish to exercise their challenges themselves, they should also have the right to delegate this role to their lawyers. The routine use of lawyers to voice challenges in other Australian jurisdictions suggests that this can be done without undermining the empanelment process.
  2. 3.296 The Commission notes the concern of some practitioners that there is benefit to the accused in participating in the challenge process, and therefore recommends that the default position be that the accused voice the challenge, unless they exercise their right to delegate.

Recommendations

9 Prospective jurors should not be required to parade in front of the accused. Judicial officers should ensure that the accused and their legal representatives have the opportunity to see prospective jurors as their names are balloted, and have a reasonable period of time in which to exercise their challenges.

10 Prior to the empanelment, the accused should be given the option as to whether they wish to exercise their challenges personally or through their legal representatives.

 

Civil trials

  1. 3.297 Few concerns were expressed in relation to the civil jury empanelment process in consultations, through the juror survey and in submissions.
  2. 3.298 The most commonly raised issue was that the practice of barristers turning around to look as each prospective juror is balloted can be unnecessarily intimidating. The Common Law Bar Association acknowledged this concern, stating:275

It might be thought less intrusive… if counsel are permitted to face the pool throughout the selection process to moderate any juror discomfort based on a feeling that he or she is being scrutinized unduly.

  1. 3.299 The Commission agrees that it is preferable for barristers to sit facing the jury pool in civil empanelments to improve prospective jurors’ experience of the empanelment process.

Recommendation

11 Judicial officers should direct barristers and solicitors to sit facing the panel so they do not need to turn around each time a prospective juror is balloted.

 

 

 

Footnotes

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