5. Additional jurors

 

  1. 5.1 The terms of reference ask the Commission to give consideration to section 48 of the Juries Act 2000 (Vic) (Juries Act) and whether it is necessary or desirable for the jury to be reduced to 12 (or six for civil trials) before the jury retires to consider its verdict. The Commission is to have particular regard to the effect of this provision on jurors.
  2. 5.2 Section 48 applies where additional jurors are empanelled pursuant to section 23 of the Juries Act.
  3. 5.3 The first part of the chapter considers the purpose of empanelling additional jurors, the law in other jurisdictions and alternatives for dealing with possible juror attrition over the course of a trial. This includes examining the evidence for the need to empanel additional jurors, particularly in view of the ability to continue a trial with a reduced jury.
  4. 5.4 The second part of the chapter considers the process set out in section 48 of the Juries Act for the discharging of additional jurors, including the evidence of the effect on additional jurors and alternative processes.

The law in Australia

Victoria

  1. 5.5 Section 23 of the Juries Act allows a court to empanel an additional three jurors in a criminal trial and an additional two jurors in a civil trial. Victoria introduced a provision for empanelling additional jurors in 1990, as an amendment to the Juries Act 1967 (Vic).1The provision was carried over to the current Juries Act.
  2. 5.6 The purpose of the provision is to ensure there will be sufficient jurors on the jury when the jury retires to consider its verdict, particularly in long trials. This is important, as aborting a trial has significant costs—both personal and financial—for everyone involved, including the jury, victims, witnesses and the accused.
  3. 5.7 When first introduced into the Juries Act 1967 (Vic), the additional juror provision was limited to criminal trials where the court was of the opinion that the trial would last for three months or more. The second reading speech for the amendment does not explain why the period of three months was chosen.2
  4. 5.8 The Juries Act applied the additional juror provision to both civil and criminal trials and removed the requirement that empanelling additional jurors could only occur where the court considers the trial will last three months or more. This effectively left the circumstances of the application of the provision to the court’s discretion.

 

Other Australian jurisdictions

  1. 5.9 All Australian jurisdictions make provision for either additional or reserve jurors for criminal trials, although the numbers vary significantly. Victoria, New South Wales, South Australia, Western Australia and the Australian Capital Territory make provision for additional jurors, whereas Tasmania, Queensland and the Northern Territory make provision for reserve jurors. Victoria, Tasmania and Queensland also make provision for additional or reserve jurors for civil trials.
  2. 5.10 The distinction between additional and reserve jurors is that reserve jurors are selected in the knowledge that they may not have to deliberate, whereas additional jurors are equal in status to the other jurors. This distinction is discussed further at [5.57] below.
  3. 5.11 For a table that sets out the position in each jurisdiction, see Appendix D of the pdf version of this consultation paper.

Overseas jurisdictions

  1. 5.12 Some other jurisdictions provide for additional or reserve jurors. They are used both federally and in most states in the United States3 and in Canada.4 England, Wales, Scotland and New Zealand do not use additional or reserve jurors.
  2. 5.13 The Hong Kong Jury Ordinance provides for criminal and civil juries of seven jurors,5 which may be increased to nine jurors by order of the judge. However, where this occurs, the extra two jurors are not considered ‘additional’. They deliberate and return the verdict as full members of the jury.
  3. 5.14 The Scottish, New Zealand and Canadian governments considered the case for additional jurors but did not recommend them as a way of safeguarding against juror attrition in lengthy trials. However, as noted above at [5.12], the Canadian government has since enacted a provision enabling the empanelment of additional jurors.
  4. 5.15 The Scottish review rejected the option of additional jurors because there was insufficient evidence of the need for such a measure6 and adopting it would present practical difficulties, such as accommodating the additional jurors.7
  5. 5.16 The New Zealand review also identified operational difficulties with accommodating additional jurors, such as the capacity of courtrooms to accommodate them.8 Other issues were:
  • The distress of additional jurors who were not required to deliberate and the possible flow-on effect on the willingness of the community to participate in jury service.9
  • The impact on deliberations—for example, the impact of informal discussions during trial adjournments; and the risk that jurors who think they may not have to deliberate may not bring their full attention to the trial.10
  1. 5.17 The Canadian review identified problems associated with the discharge of jurors just before deliberations. These were concerns about how to keep the discharged juror from commenting on the jury and its deliberations, and how to ensure the safety of discharged jurors, particularly in organised crime cases, given that the court has no control over the discharged juror.11
  2. 5.18 In contrast, the Law Reform Commission of Ireland recommended that courts should be empowered to empanel up to three additional jurors where the judge estimates the trial will last for more than three months. The Law Reform Commission of Ireland recommended that where additional jurors remain when the jury retires to consider its verdict they should be balloted off the jury.12

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The decision to empanel additional jurors

  1. 5.19 While the court makes the decision to empanel additional jurors, the Juries Commissioner’s Office (JCO) advised that it generally encourages courts to consider empanelling additional jurors for trials expected to last for more than three weeks.13
  2. 5.20 The judgment in DPP (Cth) v Thomas (Ruling No. 10) provides some guidance about the circumstances in which it may be appropriate for additional jurors to be empanelled under section 23 of the Juries Act. In that case, the judge noted:14

The usual circumstances [in which additional jurors may be empanelled] are where there is an extremely lengthy trial and it is statistically not remote that there will be one or more persons who will be unable to continue to serve as jurors, for example through illness or other unfortunate circumstance, over a lengthy period … This is not such a case. This case is a three-week case at the outside.

  1. 5.21 In New South Wales, the court may only empanel additional jurors if the court expects a trial to last for more than three months.15
  2. 5.22 While there is provision for this timeframe to be changed by regulation,16 no regulations have been made since the introduction of the provision in 2007. The second reading speech for the amendment explained that:17

The court will need to be satisfied the trial is likely to last for at least three months before it can appoint additional jurors … The bill initially limits the circumstances where additional jurors may be appointed to the longest trials where the risk of a trial being abandoned is the greatest. However, the bill also allows the kind of proceedings where additional jurors may be appointed to be prescribed by regulation so that this can be altered later if the experience with the new provisions suggests this is warranted.

  1. 5.23 The fact that there has been no change to the three-month default since its introduction six years ago suggests that there has not been a need to change it as the minimum trial duration for which additional jurors may be empanelled. This may be because New South Wales takes a more flexible approach than other jurisdictions to allowing trials to continue with a reduced number of jurors. This is discussed further at [5.43]. Alternatively, it may indicate that in cases of less than three months duration there is little juror attrition. Other Australian jurisdictions do not impose similar conditions for empanelling additional jurors, although the law in South Australia requires a judge to consider there are ‘good reasons’ for additional jurors18 and the law in the Australian Capital Territory requires a judge to ‘consider it appropriate’.19

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The empanelment of additional jurors and juror attrition
in Victoria

  1. 5.24 Additional jurors were empanelled in a small minority of Victorian jury trials. In 2012–13, additional jurors were empanelled in five per cent of trials (six per cent in Melbourne and two per cent in the regions). In 2011–12, additional jurors were empanelled in four per cent of trials (five per cent in Melbourne and four per cent in the regions). This is a strong contrast to Western Australia, where additional jurors were reportedly empanelled in approximately 73 per cent of jury trials from July to December 2009.20
  2. 5.25 A total of 56 additional jurors were empanelled in Victoria in 2012–13, 52 in Melbourne and four in the regions. This is a slight increase from 2011–12, where 51 additional jurors were empanelled in Victoria, 42 in Melbourne and nine in the regions.
  3. 5.26 A fairly high proportion of additional jurors were balloted off: 34 per cent in 2012–13 and 39 per cent in 2011–12.
  4. 5.27 The reasonably high balloting rate suggests that judges are empanelling additional jurors more often than is needed. However, further analysis of the length and nature of trials for which additional jurors are empanelled and the reasons for juror attrition is required before any recommendations can be made as to how to refine the decision to empanel additional jurors so as to reduce the need to ballot.

Alternatives to empanelling additional jurors

  1. 5.28 As noted at [5.6], the purpose of empanelling additional jurors is to safeguard against juror attrition in long trials. However, there are alternatives to empanelling additional jurors that could be used alone or in conjunction to minimise juror attrition in long trials. These include:
  • making long and complex cases triable by judge alone
  • gaining a better understanding of the causes of jury attrition
  • providing for the continuation of a trial with a reduced jury
  • retaining all jurors where additional jurors have been empanelled
  • having reserve jurors instead of additional jurors.

Making long and complex cases triable by judge alone

  1. 5.29 The question of trial by judge alone is not within the Commission’s terms of reference.

Gaining a better understanding of the causes of juror attrition

  1. 5.30 Gaining a better understanding of the causes of juror attrition may help identify measures that could be taken to minimise attrition. Two factors worthy of consideration in this regard are:
  • illness and carer commitments
  • assessments of the duration of the case.
 
Illness and carer commitments
  1. 5.31 A 2007 report by the Australian Institute of Criminology noted that the most common reasons cited by jury administrators for discharge of jurors was illness or the need to care for a family member.21 The New South Wales Law Reform Commission also identified death or illness as a common ground for the discharge of individual jurors.22
  2. 5.32 There may be measures that could be adopted to accommodate sick jurors and avoid discharge. One option is to adjourn the trial until the juror is well enough to attend. However, this is costly and disruptive to proceedings, so cannot be considered viable in cases where a juror requires more than a few days off.23
  3. 5.33 Another option in circumstances where a juror should not attend court because of illness, but would otherwise be well enough to participate in the proceedings (for example, where a juror is in the contagious phase of an illness, but otherwise feels well), could be to link the juror from their home to the court through video. This idea was suggested by the former Victorian Juries Commissioner at a conference on jury research and innovation in 2009. Videolink technology is already available in the Supreme and County Courts, to provide for a range of matters, including evidence in certain circumstances.24
Assessments of the duration of the case
  1. 5.34 In its discussion of juror attrition in long trials, the New South Wales Law Reform Commission commented that better assessments of trial duration for long trials would prevent attrition by ensuring that the jurors who were selected were available for the duration of the trial. It recommended that:25

greater attention should be given to the establishment of an accurate time estimate during the case management process, and the provision of sufficient information to the Sheriff before the trial, and to the members of the jury panel. Otherwise, there will continue to be a need to discharge juries soon after the commencement of lengthy trials, with the obvious adverse consequences to the parties, to the discharged jurors, and to the court lists.

  1. 5.35 There are two aspects to this recommendation. The first is the provision of accurate information by parties, allowing for a more accurate assessment of the length of the trial. The second is the provision of information to jury administrators and jury panels, to enable them to make a better assessment of jurors’ availability for a lengthy trial.
  2. 5.36 Neither aspect appears to be a significant issue in Victoria. Laws regulating trial procedure enable courts to require information about the length of trials from parties in criminal cases26 and to make directions as to the length of trial, including by reducing the number of witnesses and examination of those witnesses in civil cases.27
  3. 5.37 These trial management procedures seem to be generally effective. Information gathered through the Commission’s preliminary consultations supported the view that, while trials occasionally run longer than estimated, the estimates are usually accurate. Both the JCO and legal practitioners indicated that trials are generally finished within the estimated timeframe and often before.28
  4. 5.38 The first opportunity the JCO has to ask prospective jurors about their availability for lengthy trials is at the pool stage. Jurors have indicated their availability to serve on trials for 7–10 days during the dates specified on the jury questionnaire. The JCO issues summonses on that basis.
  5. 5.39 If a jury for a long trial is required on the day, the JCO advises the pool about the estimated length of the trial and has the power to excuse people who are not available because of the length of the trial.29 Amendments to the Juries Act in 200630 and 200831 introduced this power to ensure prospective jurors are able to serve for the duration of the trial and to avoid the judge having to undertake this process at the jury selection stage in court.
  6. 5.40 Based on the above, generally, trial duration appears to be accurately assessed and the information communicated well to the JCO and jurors. However, when a trial does run significantly over time, this can be a substantial burden upon the jurors.

Providing for the continuation of a trial with a reduced jury

  1. 5.41 An alternative to empanelling additional jurors in case of attrition is to continue a trial with a reduced jury if one or more jurors are unable to continue after the trial starts.
  2. 5.42 There is provision for the continuation of a trial with a reduced number of jurors in Victoria,32 New South Wales,33 Queensland,34 Western Australia (for civil trials only),35 South Australia,36 Tasmania 37 and the Australian Capital Territory.38 There is no provision for continuation of a trial with a reduced jury in the Northern Territory.
  3. 5.43 In all jurisdictions except New South Wales, criminal trials cannot continue with fewer than 10 jurors. In New South Wales, a criminal trial can continue with fewer than 10 jurors with the consent of the parties,39 or with a minimum of eight jurors where the trial has been in progress for more than two months, without the consent of the parties,40as long as this would not give rise to the risk of a substantial miscarriage of justice (in which case the court must discharge the whole jury).41
  4. 5.44 In England and Wales, a trial must continue as long as there are no fewer than nine jurors.42
  5. 5.45 Allowing trials to continue with fewer than 10 jurors (such as in New South Wales and England and Wales), would lessen the need to empanel additional jurors. However, the Australian case law on this issue indicates a clear preference for a trial with 12 jurors.43 The stated rationale for this preference is the long historical tradition of a jury being constituted by 12 jurors, a tradition that should not be lightly displaced, as well as the reduction in representativeness that occurs when a jury of 12 is reduced.
  6. 5.46 A defence practitioner consulted by the Commission was of the view that a jury of 12 increases the legitimacy of the verdict. In his opinion, this was particularly important in cases involving allegations of serious crime.
  7. 5.47 A further argument made against continuing a trial with a reduced jury is that the smaller the jury, the more likely it is that individual juror biases will influence the outcome as the quality of group deliberation decreases.44

Retaining all jurors where additional jurors have been empanelled

  1. 5.48 A further option that would eliminate the need to ballot off additional jurors is not to reduce the jury when the jury retires to deliver its verdict, effectively expanding the jury to include the additional jurors remaining at that time.
  2. 5.49 Under this option, the jury that deliberates in a criminal trial may have up to 15 jurors and the jury that deliberates in a civil trial may have up to eight jurors.
  3. 5.50 While most jurisdictions empanel 12 jurors for criminal trials, there are a few exceptions. For example, Scottish courts empanel 15 jurors and Hong Kong courts empanel seven jurors.
  4. 5.51 There is widespread acceptance of the importance of a jury of 12 in criminal trials in Australia, although it has been acknowledged that it is acceptable to deviate from this number.45
  5. 5.52 If the option to allow more than 12 jurors in criminal trials and six jurors in civil trials to deliberate and return the verdict were to be considered, the majority verdict provisions would have to be calibrated, so they continued to reflect the same proportion of the jury in each case. This would be relatively easy to do. For example, Victoria’s provisions specifying the number of jurors necessary for a majority verdict46 could instead specify that a majority verdict is a verdict with which all but one of the jurors agrees.
  6. 5.53 An issue with having a larger jury deliberate and return the verdict is that the party with the onus of proof (the prosecution in criminal trials and the plaintiff in civil trials) would have to convince a larger number of jurors of their case.
  7. 5.54 Allowing larger juries to deliberate would also introduce an inconsistency in jury size across trials and could be considered unfair in the individual case. A reduced jury may be seen as more advantageous than a larger jury to the party with the burden of proof.
  8. 5.55 A further question to consider is whether the dynamics of decision-making within a larger jury are likely to be different from those in a smaller jury. Some research suggests that there are higher levels of conflict and lower levels of participation in decision-making in bigger groups.47

 

Having reserve jurors instead of additional jurors

  1. 5.56 As noted at [5.9], Queensland, Tasmania and the Northern Territory have a system of reserve jurors instead of additional jurors. Reserve jurors are subject to the same selection process as the rest of the jury and have the same role, except they do not retire with the jury to decide the verdict unless they have replaced a juror who has died or been discharged.48
  2. 5.57 The main difference between additional jurors and reserve jurors is that reserve jurors know from the beginning of the trial that they may not be needed, whereas additional jurors do not, as the ballot to reduce the jury does not occur until just before the jury retires to consider its verdict.
  3. 5.58 On one hand, a reserve juror’s knowledge that they may not be required to deliberate may assist in managing their expectations and reduce their disappointment if, in fact, they are not required to deliberate.
  4. 5.59 On the other hand, as the New South Wales Law Reform Commission noted, a reserve juror’s knowledge that they may not be required to deliberate may mean that they will not pay as much attention to the proceedings as they would if they were a regular member of the jury.49
  5. 5.60 The effectiveness of the reserve juror system was not discussed in reports by the Northern Territory or Queensland Law Reform Commission on jury service. The Law Reform Commission of Ireland preferred additional jurors over reserve jurors on the basis of the reservations about the reserve juror system expressed by the New South Wales Law Reform Commission.50

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Discharging additional jurors

  1. 5.61 The process for discharging additional jurors is set out in section 48 of the Juries Act. Subsection 48(1) requires that if there are more than 12 jurors (for criminal trials) or six jurors (for civil trials) remaining when the jury is required to retire to consider its verdict,
    a ballot must be taken to reduce the number to 12 or six.
  2. 5.62 Subsection 48(2) excludes the foreperson from being balloted off the jury. Subsection 48(3) provides that where a trial is not concluded at the time of a verdict, because there are additional charges to be considered, or because other accused are to be tried, the jurors who were balloted off the jury must return to the jury and continue as part of it for the rest of the trial. Subsection 48(4) provides that a fresh ballot must be undertaken each time the jury retires to consider its verdict.
  3. 5.63 Subsection 48(5) provides that, unless the trial is to continue after the verdict is given, jurors who are balloted off the jury are to be discharged and remain liable for further jury service unless otherwise ordered by the court.
  4. 5.64 Subsection 48(6) provides that the jurors who remain on the jury are also liable for further jury service unless the court orders otherwise.
  5. 5.65 The other Australian jurisdictions that provide for additional jurors provide for a similar method of balloting them off.51 The jurisdictions that provide for reserve jurors provide that reserve jurors are to take the place of a discharged juror by lot or in another way decided by the judge and any excess reserve jurors are to be discharged when the jury retires to consider its verdict.52

The impact on jurors of being balloted off

  1. 5.66 The current Juries Commissioner and the former Juries Commissioner told the Commission that most additional jurors who were balloted off a jury felt frustrated and angry. They suggested that this was because jurors invest emotionally in the trial they serve on and are frustrated at not being able to complete their function. Jurors remaining on the jury also felt distressed by the removal of the balloted jurors.
  2. 5.67 One reason put forward to explain the frustration of jurors in this situation was that juries, particularly juries in long trials, form close working relationships, at least for the duration of the trial. The balloting of additional jurors disrupts these relationships, and as noted above, causes distress to the remaining jurors.
  3. 5.68 An unknown factor is the impact on the deliberations of the remaining jury of the views previously expressed by the balloted-off jurors. The term ‘deliberations’ refers to the discussions the jury has after retiring to consider its verdict. However, it is accepted (though not formally acknowledged) that jurors discuss issues in the course of the trial.
  4. 5.69 Both the former and current Juries Commissioners told the Commission that not all jurors balloted off reacted in this way, and that a minority were relieved not to have to deliberate and deliver a verdict.

Alternative methods for discharging additional jurors by ballot or reducing the impact on jurors

Discharge by consensus

  1. 5.70 An alternative to discharging additional jurors by ballot is to discharge additional jurors by consensus. In consultation, one legal practitioner noted that this had occurred in a trial in which he had participated.53 In that case, there was one additional juror at the time the jury was to retire to consider its verdict. One juror had advised the jury foreperson that he had urgent personal business he wished to attend to and would like to be the juror discharged. Rather than conducting a ballot the court consented to his discharge.
  2. 5.71 Clearly, discharge by consensus would only work where one or more jurors want to be discharged before deliberations. However, an option would be for the judge to ask whether any juror wished to be discharged before deliberations as the first option for reducing the jury.
  3. 5.72 There are, however, significant issues of principle and practice associated with this proposed model. Based on studies of the dynamics of group decision-making, the jury researchers the Commission spoke to expressed concern that there could be pressure exerted on a juror who was considered to be troublesome by the other members of the jury (for example, because he or she did not agree with the others) to ‘agree’ to be discharged.

 

Expectation management

  1. 5.73 While not an alternative to balloting off additional jurors, one way of reducing the impact of balloting off additional jurors could be for judges to give more information or reminders to the jury about the ballot throughout the course of the trial. This could help jurors to feel less disappointed and frustrated when the ballot occurs.
  2. 5.74 This option was supported by some jury researchers and practitioners the Commission spoke to, were the balloting system to remain.
  3. 5.75 However, the former Juries Commissioner did not consider that doing this would significantly reduce the impact on jurors, as it is not the element of surprise that produces the frustration and disappointment, but the fact that jury members become invested in their role, and that the group dynamic is disrupted.

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Questions

  1. 23 Should the Juries Act 2000 (Vic) be amended to enable the continuation of trials with a reduced jury where there are fewer than 10 jurors (to lessen the need to empanel additional jurors)?
  2. 24 Should the jury consist of all the remaining jurors where additional jurors remain at the time the jury retires to consider its verdict?
    If yes:
  • Should this be for all cases, or are there circumstances in which it may not be appropriate?
  • If it should not be for all cases, what are the factors a court should take into account in deciding whether a jury should consist of all the remaining jurors?
  1. 25 Should Victoria adopt the reserve juror model in preference to the additional juror model as a way of avoiding balloting additional jurors?
  2. 26 Should judges be able to order discharge of one or more additional jurors by consensus?
  3. 27 Could the provision of more information to juries by the judge during a trial about the possibility of balloting off individual jurors reduce the impact of the balloting process on the jury?

 

Footnotes

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