4. Calling of the panel by name or number

Introduction

  1. 4.1 As discussed in Chapter 2, prospective jurors from the jury pool are balloted onto particular trials to form jury panels.1 In the regions, often the entire jury pool makes up the jury panel.
  2. 4.2 After the panel has proceeded to the courtroom, the judge directs the names or numbers of all prospective jurors to be called out.2 This process is referred to as the ‘calling of the panel’. The calling of the panel is effectively a roll call to check that all prospective jurors who were balloted to the panel are in attendance and that there are no prospective jurors or others on the panel who are not meant to be there.
  3. 4.3 No other Australian jurisdictions require the panel to be called out prior to the ballot to select the members of the jury. In all other jurisdictions, only the names or numbers of jurors who are balloted to be on the jury are called out in court, rather than those of the entire jury panel.
  4. 4.4 This chapter first discusses the identification of jurors by name or number in court and then discusses the process of calling the panel.

Current law on the identification of jurors by name or number

  1. 4.5 Currently, in Victoria, a judge may direct that the jury panel be called by number rather than name ‘if the court considers that the names on a panel should not be read out in open court’.3
  2. 4.6 As there are no criteria to guide the court as to when it may be appropriate to call the jury panel by number rather than name, the decision is entirely within the discretion of the judge.
  3. 4.7 Victoria is the only jurisdiction in Australia that enables the court to decide whether to identify prospective jurors in court by name or number without providing any criteria to guide the court’s decision.
  4. 4.8 In Queensland and Tasmania, the court has the discretion to identify jurors by number if the judge considers that, ‘for security or other reasons, the persons’ names should not be read out in open court’.4  
  5. 4.9 In five jurisdictions, courts do not have a choice. In New South Wales, Western Australia and South Australia, prospective jurors are always identified in court by number.5 In the Australian Capital Territory and the Northern Territory, prospective jurors are always identified in court by name.6

The development of the law in Victoria

  1. 4.10 Prior to the enactment of the Juries Act 2000 (Vic), the Juries Act 1967 (Vic) provided for the identification of jurors by name only.7 The Juries Act 2000 (Vic) originally adopted the formulation used in Queensland (and later Tasmania), namely that prospective jurors should be identified by name unless the court considered ‘for security or other reasons, the persons’ names should not be read out in open court’.8

2002 amendment

  1. 4.11 An amendment to the Juries Act in 2002 made the calling of the panel in court discretionary, rather than mandatory.9 Pursuant to this amendment, the calling of the panel is only required if directed by the judge. The rationale for this amendment was to address the security concerns of jurors about the repeated calling of their
    names in court.10
  2. 4.12 The Commission understands, however, from its own observations of jury empanelments and from the Juries Commissioner that the panel is always called in court, either by name or number.11 Consequently, it would seem that the 2002 amendment has not achieved the purpose it was intended to address.
  3. 4.13 Further discussion on calling the panel is at [4.87]–[4.95] below.

2006 amendment

  1. 4.14 An amendment to the Juries Act in 2006 (2006 amendment) removed reference to ‘security or other reasons’, and instead provided that the court can direct that numbers be used to identify prospective jurors if it ‘considers names should not be read out in open court’.12
  2. 4.15 The Explanatory Memorandum for the amendment indicates that, like the 2002 amendment, it was introduced in response to the concerns of jurors about their privacy and security. The Explanatory Memorandum states:

The amendment will promote the use of [number to identify jurors] by judicial officers by ensuring that it need not be formally justified in reference to any rationale but instead has equal standing at law with the use of names as juror identifiers. This is necessary in order to respond to heightened calls to protect the privacy and security of prospective jurors who may otherwise feel personally exposed and/or at risk through their participation in the trial process.13  

  1. 4.16 While the Explanatory Memorandum states that the amendment seeks to place number as a juror identifier on an equal footing with name, the Commission does not consider it achieves this aim, as the statutory formulation appears to favour name as the default.
  2. 4.17 It is also possible that the amendment was intended to address the lack of clarity around when it may be appropriate to use number rather than name to identify prospective jurors and whether it was necessary to make out a security concern to justify use of numbers.
  3. 4.18 A number of cases on the application of the provision highlight the different ways in which judges had interpreted the proviso that name be used except for ‘security or other reasons’.
  4. 4.19 In R v Strawhorn14 the Crown applied for prospective jurors to be identified by number on the grounds that jurors may be concerned about their security because the case involved evidence about high-profile gangland members and their activities. In making the order, the Court did not make findings on the security risk to jurors, but rather considered there was ‘good reason’ to empanel by number.15
  5. 4.20 Similarly, in R v Juric–Ruling (Calling of Jury Panel by Numbers)16 the Court did not make a definitive finding about juror security, but directed that jurors be identified by number to guard against juror intimidation. The Court also remarked that it considered identifying jurors by number would ‘aid juror concentration’.17
  6. 4.21 In R v Goldman18 the Crown applied for an order that jurors be identified by number on the grounds there was a risk of attempted interference with the jury, as the accused had previously intimidated a prosecution witness. In granting the order, the court found that there was a risk of jury interference and that the witness intimidation could lead jurors to be concerned about their safety.
  7. 4.22 In DPP v Ivanovic19 the Court ruled that no special reason was required for the calling of the panel by number rather than name. Rather, the Court considered that ‘[t]he requirement of ‘other reason’ is satisfied if the court considers it is good management to use numbers rather than names.’20
  8. 4.23 These cases demonstrate that prior to the 2006 amendment some judges (and some lawyers) considered there was a need to make out a security concern in order to justify calling the panel by number, while other judges did not consider that was necessary, relying instead on ‘other reasons’ to justify their decision.

Current practice

Use of name or number

  1. 4.24 According to the Juries Commissioner, the practice of current judges in relation to the identification of prospective jurors in court is mixed. Some identify prospective jurors by name in all but exceptional circumstances, while some identify prospective jurors almost exclusively by number. Others make the decision on a case-by-case basis.21
  2. 4.25 The VLRC juror survey, observations of empanelments, and consultations with judges confirm that the practice is mixed.  
  3. 4.26 The data from the juror survey shows that prospective jurors were identified by name in 65 per cent of trials attended by respondents, and by number in 26 per cent of trials attended by respondents.22 This data may not, however, reflect the actual rate of the different modes of identifying prospective jurors. The way in which the survey was distributed meant there were likely to have been multiple respondents from the same panel, which, given the size of the survey, could skew the results.23 Nonetheless, even if the rate of use of the different modes is not accurate, the survey still demonstrates a variation in practice among judges.
  4. 4.27 Three of the four Supreme Court judges and one County Court judge consulted by the Commission said they empanel by name as the default, but may empanel by number if they consider the nature of the case warrants calling by number. One County Court judge who practises in both the civil and criminal jurisdictions said that she empanels by number in criminal trials, but sometimes empanels by name in civil trials.
  5. 4.28 One Supreme Court judge and four of the five County Court judges the Commission consulted said that they had previously empanelled by name, as that had always been the practice, but now empanel exclusively by number.

Reasons for using name

  1. 4.29 The rationales favouring use of name advanced by the judges the Commission consulted were:
  • It is important that the accused perceives the trial to be fair and prospective jurors’ names may provide the accused with information about ethnicity that they may consider necessary to ensure an impartial jury. This rationale may have greater salience in certain types of trials in which ethnicity or religion may be an issue.
  • The information available to the accused about prospective jurors is minimal compared with information that was previously available.24 As the level of information previously available did not create a problem for jurors, the identification of jurors by name should not be a source of concern.
  1. 4.30 One judge commented that she initially resisted using numbers, as she did not think it was polite to refer to people by number. The Commission notes that politeness was also used as a rationale by the Supreme Court of Queensland in R v Patel (No 4) for using name to identify jurors.25
  2. 4.31 An argument put forward in favour of using name by some defence practitioners the Commission consulted was that using prospective jurors’ names can help a party, lawyer or judge to identify if they know the prospective juror.26 Knowledge of a party, lawyer or judge may make the prospective juror unsuitable, as they may not be impartial.
  3. 4.32 The judges consulted by the Commission did not consider this argument particularly compelling as a justification for using name to identify prospective jurors. Some judges described practices they have adopted to assist prospective jurors to identify parties and counsel in order to alleviate this problem, such as requiring counsel to stand and face the jury panel, or providing the panel with a written list that includes the names of the lawyers and parties.
  4. 4.33 The Commission notes that such practices may assist prospective jurors to identify whether they know a party or a lawyer, but will not help parties and lawyers to identify whether they know prospective jurors.

Reasons for using number

  1. 4.34 The judges who use name as a default said that the types of cases in which they consider it may be appropriate to use number are those where there is a perceived security risk, such as the trial of a high-profile accused.
  2. 4.35 The judges who always empanel by number said that they had changed their practice in response to reports from the Juries Commissioner that number is the strong preference of jurors and prospective jurors.
  3. 4.36 One judge explained that using number helps alleviate any concerns jurors may have about their privacy and security and helps them to concentrate on the task at hand.
  4. 4.37 One judge commented that since adopting number, she has noticed a significant drop in the number of excuse applications.

Cultural change

  1. 4.38 A few judges the Commission consulted noted that resistance to identifying jurors by number was diminishing both among judges and the profession. Some judges recounted that barristers regularly used to oppose the use of number to identify jurors, but that now only a handful of older barristers raise this as an issue.

Issues associated with the current law

Criminal trials

Prejudice to the accused

  1. 4.39 As noted at [4.7], there are no criteria in the Juries Act to guide the use of the judicial discretion to empanel by name or number. Consequently, judges adopt a variety of approaches according to their personal preference or understanding of when it is appropriate to empanel by number.
  2. 4.40 The use of number in some cases and not others may give prospective jurors the impression that there is something about the particular case that warrants extra security measures, such as juror anonymity.27
  3. 4.41 For example, the Criminal Bar Association submitted that:

Empanelment by number risks creating a paradigm of potential prejudice against an accused person in the mind of jurors that is both undesirable and unnecessary particularly given the presumption of innocence. The message conveyed to potential jurors by empanelment by number flies in the face of the presumption of innocence. This may be compounded in situations where you have jurors empanelled by number who have previously sat on a jury where empanelment was by name.28

  1. 4.42 The Juries Commissioner expressed a similar concern:

It only takes one judge to routinely call the panel by number and another judge to do so only in exceptional circumstances to create a system where citizens are left confused and unnecessarily concerned for their own security.29  

  1. 4.43 This problem was illustrated by the discharge of a jury in a murder trial in the Supreme Court in 2013. In that case, the judge ordered that the jury be discharged following concerns raised by jurors, in a note handed to the judge, about being empanelled by name. The judge ordered the discharge because the jury’s concerns could be viewed as prejudicial towards the accused.30
  2. 4.44 Judges had different views about whether a consistent practice in relation to the mode of empanelling was important. All the Supreme Court judges the Commission consulted were in favour of retaining the judicial discretion to decide whether to empanel by name or number. Consistency of practice was not considered to be of primary importance by these judges.
  3. 4.45 Similarly, the Victorian Director of Public Prosecutions (DPP Vic)31 and Victoria Legal Aid32 favoured retaining judicial discretion to call the panel by name or number, although Victoria Legal Aid submitted that judges should be required to give practitioners oral reasons prior to the trial for a decision to empanel by number.
  4. 4.46 In contrast, one County Court judge who has always empanelled by name considered consistency to be more important than his own personal preference for empanelling by name. In that judge’s view, it would be preferable to have a consistent mode of empanelment to avoid concerns that number was used only because there was a security issue.
  5. 4.47 Some judges the Commission consulted explained that to reduce the likelihood of prospective jurors forming this impression, they tell the jury panel that they will be identified by number, that using number is routine, and that no special significance should be attached to the practice.33
  6. 4.48 However, the Commission observed some empanelments where the panel was called by number where no comment was made by the judge about the process. Data from the juror survey also shows that not all judges address the panel when identifying prospective jurors by number. Respondents who were empanelled by number were asked whether the judge had made any comments about the practice. Thirty-one out of the 80 respondents to this question (39 per cent) responded that the judge had not made any comments.34

Security of jurors

  1. 4.49 A key concern about the use of name is that jurors are able to be easily identified and found through their name. This was one of the main concerns of jurors and prospective jurors favouring the use of number. These views are set out in more detail at [4.62]–[4.77].
  2. 4.50 The Commission asked the court staff and JCO staff it consulted whether they were aware of any incidents of juror harassment. None of these staff was aware of any incidents of harassment. However, one juror from a regional area reported that she had been harassed by a family member of an accused on whose jury she had served. In that case, the panel had been identified by name.
  3. 4.51 A few judges the Commission consulted did not consider that there had to be a justification for any juror concerns about security. Rather, these judges considered that using number was an effective way of avoiding the issue arising at all.35
  4. 4.52 The protection of jury members from threats or intimidation has been identified as central to the institution of trial by jury. As the Court in Ronen v The Queen stated:

It is self-evident that the institution of trial by jury requires the protection of jury members from threats and intimidation. It would be a disaster for the institution if jurors were to be susceptible to intimidation that could influence their findings. For the jury to remain ‘the community’s guarantee of sound administration of criminal justice’, it must be protected from outside intimidatory influences.36

Privacy of jurors

  1. 4.53 Distinct from the security of jurors, privacy was also identified as a reason for supporting the use of number to publicly identify jurors and prospective jurors. Even if there are no concerns about security, many jurors and prospective jurors considered that their details, including their names should only be available on a ‘need to know’ basis.
  2. 4.54 Privacy was acknowledged as a separate concern in the Second Reading Speech debate on the 2002 amendment to the Juries Act that made the calling of the panel discretionary instead of mandatory.37
  3. 4.55 Speaking in support of the amendment, the Hon. Peter Katsambanis MLC said:

In this day and age we place more store on a person’s individual privacy and the privacy of their name and particularly their residential address. Many jurors have made the comment to me and to other members of Parliament that they feel as though what they consider to be private information is made public in a way that may in some cases not be in their own best interests. We want jurors to feel safe and secure and to know that their privacy will be protected. We want to encourage more people to serve on juries.38

The use of name as a basis for exercising peremptory challenges

  1. 4.56 The primary argument advanced by defence practitioners and judges who use name as the default mode of identifying prospective jurors is that a prospective juror’s name may provide the accused with information relevant to the decision to challenge.39 For example, the Criminal Bar Association submitted that:

The use of name is particularly important when matters of ethnicity or religion are issues at trial.40

  1. 4.57 This argument was used by defence lawyers to argue against applications to call the panel by number in a number of cases.41 It was also used (unsuccessfully) in Ronen v The Queen42 to challenge the provision for calling the panel by number only in the Jury Act 1977 (NSW) on the grounds that it was contrary to the right to jury trial in section 80 of the Constitution.  

Civil trials

  1. 4.58 Most of the above arguments in relation to criminal trials do not apply to civil trials. As the Common Law Bar Association noted in its submission:

While there may be a perception of risk to personal safety on the part of jurors in criminal cases involving serious violence, this perception is very unlikely to arise in a
civil case.43

  1. 4.59 However, the arguments in relation to the use of number to protect the privacy of prospective jurors apply to both criminal and civil trials, as does the argument in relation to the use of name as a basis for peremptory challenges.
  2. 4.60 The Common Law Bar Association supported the current position that allows the judge the discretion to decide how to identify prospective jurors. While it does not specifically address the use of name as a basis for peremptory challenges, the Common Law Bar Association’s submission states:

To continue to provide a sense that persons with possible predispositions might be excluded by peremptory challenges at least the current information is desirable.44

  1. 4.61 There was a range of views among the civil law practitioners that the Commission consulted. Most supported identifying prospective jurors by name.45 However, one practitioner told the Commission that she never relies on name as a basis for peremptory challenges and does not consider that prospective jurors’ names are required.46

The effects on jurors

Jurors’ preferences in criminal and civil trials

Consultations with jurors

  1. 4.62 The Commission consulted with 42 jurors and prospective jurors from regional areas who had attended empanelments. Almost all of these expressed a preference for being identified in court by number. The reasons given for preferring number were:
  • There is no reason for the accused or parties to know your name.
  • It is very easy for someone to find out where you live from your name, particularly in regional areas.
  1. 4.63 When asked whether it could be valid for name to be used to identify a person’s ethnicity, a few people responded that a person’s appearance is as good an indication of ethnicity as name, and therefore name is not required for this purpose.
  2. 4.64 A number of jurors and prospective jurors consulted also considered that occupation should not be read out, while others considered that occupation may be valid information on which to base a challenge.

The VLRC juror survey

  1. 4.65 The VLRC juror survey asked whether respondents would prefer to be identified in court by name or number. Of the 367 respondents who answered this question, 308 had attended an empanelment for a criminal trial and 59 had attended an empanelment for a civil trial.
  2. 4.66 Table 2 sets out the data for criminal trials for both Melbourne and the regions. Table 3 sets out the data for civil trials.

Table 2: Preference for name or number in criminal trials

 

Melbourne

Regions

Total

Name

27 (14.2%)

21 (17.8%)

48 (15.6%)

Number

145 (76.3%)

75 (63.6%)

220 (71.4%)

No preference

18 (9.5%)

22 (18.6%)

40 (13%)

TOTAL

190

118

308

  

Table 3: Preference for name or number in civil trials

 

Melbourne

Regions

Total

Name

10 (19.6%)

1 (12.5%)

11 (18.6%)

Number

34 (66.7%)

6 (75%)

40 (67.8%)

No preference

7 (13.7%)

1 (12.5%)

8 (13.6%)

TOTAL

51

8

59

 

  1. 4.67 There is no significant difference in preference based on the type of trial respondents attended. Respondents attending both criminal and civil trials showed a clear preference for empanelment by number (71.4 per cent for criminal trials and 67.8 per cent for civil trials) over empanelment by name (15.6 per cent for criminal trials and 18.6 per cent for civil trials).
  2. 4.68 Respondents were also asked to explain their preference. The main reasons given by respondents who preferred to be empanelled by number were:
  • number preserves privacy/anonymity
  • number enhances juror security
  • number avoids assumptions being made about ethnic background.
  1. 4.69 The main reasons given by respondents who preferred to be empanelled by name were that:
  • name is more personal
  • name is more polite.

Submissions

  1. 4.70 Two public submissions from individuals addressed the question of the mode of identifying prospective jurors. One submission supported using number only,47 while the other supported judicial discretion.48 The submitter who supported judicial discretion said that he had no problem with being called by name and that he considered security concerns related to being identified by name were remote.49
  2. 4.71 The Juries Commissioner, the Ethnic Communities’ Council of Victoria and the Victorian Equal Opportunity and Human Rights Commission all supported identifying jurors by number only.50

Juries Commissioner’s Office juror satisfaction survey

  1. 4.72 The Juries Commissioner’s office (JCO) conducted a juror satisfaction survey in 2013 (JCO survey).51 Over 1900 jurors and prospective jurors responded to the JCO survey. The survey asked whether respondents preferred to be empanelled by name or number.
  2. 4.73 For 2013, across Victoria 73.8 per cent of respondents preferred to be empanelled by number, 17 per cent by name and 9.3 per cent didn’t know. These figures are similar to the results from the VLRC juror survey.
  3. 4.74 However, a regional breakdown of responses to the JCO survey shows a significant difference between Melbourne and the regions. Only 54.3 per cent of regional respondents prefer to be empanelled by number compared with 78.4 per cent of Melbourne-based respondents. A significant minority (31.9 per cent) of regional respondents preferred to be empanelled by name.
  4. 4.75 The sizeable discrepancy in preference between Melbourne and the regions shown by the JCO survey is not consistent with the VLRC juror survey findings, and is not consistent with the views of jurors and prospective jurors in the regions the Commission attended and conducted consultations.

Consultations with JCO and court staff

  1. 4.76 The Commission consulted with 13 JCO and court staff—the Juries Commissioner, four regional senior registrars and regional and Melbourne-based jury keepers.
  2. 4.77 The view of most of the JCO and court staff consulted was that they consider that jurors and prospective jurors generally prefer to be empanelled by number. One senior registrar commented that as jury duty is being imposed on citizens, jurors’ preferences should take precedence over those of defence practitioners.

The Commission’s conclusions

Name or number

  1. 4.78 The Commission considers that the discretion of the court to decide to identify prospective jurors by name or number, and the variation in judges’ practices, have a number of disadvantages. Of serious concern is the potential for the varying use of the discretion to prejudice the accused in criminal trials.
  2. 4.79 The Commission also notes that the vast majority of jurors and prospective jurors prefer to be identified by number only for security and privacy reasons.
  3. 4.80 In contrast, the Commission considers that the use of name as a proxy for ethnicity, and subsequently the possible basis for the exercise of peremptory challenges, is both inappropriate and inherently unreliable. Names are no longer a useful indicator of a person’s ethnic background.
  4. 4.81 The Criminal Bar Association submitted that identifying prospective jurors by number may inherently prejudice the accused and that this effect is compounded where prospective jurors are aware of the different modes of empanelment.52  
  5. 4.82 The Commission agrees that there is a potential for prejudice where a jury is empanelled by number and prospective jurors are aware of the different modes of empanelment. However, the Commission does not consider that empanelling by number is inherently prejudicial to the accused.
  6. 4.83 Three Australian states identify jurors by number only in court. The jury administrators the Commission consulted were not aware of any ongoing issues associated with this practice.
  7. 4.84 The Commission considers that it is significant that a number of judges reported moving to empanelment by number only in recent years in response to feedback from jurors, and that the rate of challenge by defence practitioners to the decision to empanel by number has reduced significantly over time.53 This suggests there is a gradual increase in acceptance of empanelment by number by both judges and the practitioners.
  8. 4.85 Finally, the Commission does not consider the use of names as a prompt for recognising a prospective juror (and therefore challenging or standing them aside on the grounds of impartiality) to be a compelling reason to retain the discretion to identify prospective jurors by name. The Commission did not receive evidence that belated recognition of a juror by a party or judge has caused a significant problem for courts. In fact, only one instance of this was brought to the Commission’s attention.
  9. 4.86 For the above reasons the Commission recommends prospective jurors be identified in court by number only.

Recommendation

12 Prospective jurors should be identified in court by number only.

 

Calling of the panel

  1. 4.87 As noted at [4.11]–[4.12], while the Juries Act currently provides the judge with a discretion to call the panel or not, in practice, as far as the Commission is aware, the panel is always called.
  2. 4.88 This means that all prospective jurors are identified in court, not just those who are balloted to be on the jury as in other Australian states.
  3. 4.89 It is unclear whether calling the panel is a conscious exercise of judicial discretion or whether it is a result of a cultural practice that has developed in Victoria.
  4. 4.90 The Commission understands that the object of calling the panel is to confirm the attendance of all panel members and to ensure prospective jurors or others who are not on the panel cannot be selected for the jury.
  5. 4.91 The Juries Commissioner has advised that, in Melbourne, the identification cards of prospective jurors are scanned as they are called for the panel and the number of prospective jurors counted. Prospective jurors are then escorted to the court by a tipstaff and a juries officer from the JCO. The panel is counted again before entering court.
  6. 4.92 This administrative process means that it is likely that all prospective jurors who were selected for the panel will be present in the courtroom, arguably removing the need to call the panel. 
  7. 4.93 However, as the calling of the panel does not take much time and may have the benefit of allowing prospective jurors to settle in to the unfamiliar environment of the courtroom, the Commission does not consider it should be removed if prospective jurors are identified by number.
  8. 4.94 If prospective jurors are identified by number, the objective of the 2002 amendment that established a discretion as to whether to call the panel or not54 becomes redundant.
  9. 4.95 The Commission therefore recommends that if prospective jurors are to be identified by number, the panel should continue to be called in court and that the calling of the panel be mandatory.

Recommendation

13 If Recommendation 12 is adopted, the Juries Act should be amended to provide that the panel should always be called in court.

 

Footnotes

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