5. Additional jurors

Introduction

  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 current law and use of additional jurors, the law in other jurisdictions and alternatives to empanelling additional jurors.
  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, possible alternative processes to minimise the effect on jurors and the option of not balloting off.

Current law and process

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).1 The 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 personally and financially—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 current Juries Act applies the additional juror provision to both civil and criminal trials and removes the requirement that empanelling additional jurors could only occur where the court considers the trial will last three months or more. This effectively leaves the decision to empanel additional jurors to the court’s discretion. 
  5. 5.9 Section 48 of the Juries Act requires a ballot to be held to reduce the number of jurors to 12 for criminal cases or six for civil cases if there are additional jurors remaining when the jury is required to retire to consider its verdict. The foreperson may not be balloted off, although they are included in the ballot.3

Other Australian jurisdictions

  1. 5.10 All Australian jurisdictions make provision for either additional or reserve jurors for criminal trials, although the numbers vary significantly. Victoria,4 New South Wales,5 South Australia,6 Western Australia7 and the Australian Capital Territory8 make provision for additional jurors, whereas Tasmania,9 Queensland10 and the Northern Territory11 make provision for reserve jurors. Victoria,12 Tasmania13 and Queensland14 also make provision for additional or reserve jurors for civil trials. Appendix G shows the relevant provisions in each jurisdiction.
  2. 5.11 The distinction between additional and reserve jurors is that reserve jurors know from the beginning that they may be removed if there are extra jurors remaining at the end of the trial, whereas under the additional juror system, all jurors are equal in status until the ballot.15

Alternatives to empanelling additional jurors

  1. 5.12 The consultation paper discussed two alternatives for avoiding the need to empanel additional jurors. These were:
  • Gaining a better understanding of juror attrition, including juror illness and trial duration estimates.
  • Continuing trials with a reduced jury.

Gaining a better understanding of juror attrition

  1. 5.13 There was agreement that gaining a better understanding of juror attrition and more accurate trial duration estimates would be useful in minimising the need to empanel additional jurors. However, all of the judges and the legal practitioners that the Commission consulted considered that this of itself was not sufficient to prevent trials being aborted due to juror attrition and that the additional juror system is required as an extra safeguard. 
  2. 5.14 Based on preliminary consultations, the consultation paper concluded that trial duration estimates are generally accurate.16 However, some County Court judges did not agree with this assessment.17 One judge cited an example of a trial that had run five weeks over its estimated duration. These judges commented that trial duration estimates may be inaccurate due to:18
  • the failure to take counsels’ addresses and judicial directions (called ‘charges’) into account (it was also noted that charges have generally become longer in response to the high rate of successful appeals)19
  • the nature and complexity of trials, particularly sex offence trials
  • the use of technology—pre-recorded evidence can take some time to hear and technical hitches sometimes occur.20
  1. 5.15 One County Court judge commented that trial management processes are often not sufficient to deal effectively with factors that affect the duration of trials.
  2. 5.16 One juror mentioned that the trial he had been on had run significantly over time as there had been an eight-day adjournment because the accused was sick.21
  3. 5.17 One civil law practitioner also commented that it is often difficult to provide an accurate assessment of trial duration at the stage at which such estimates are required, as there is often insufficient information available at that time.22
  4. 5.18 It is clear that there is a range of reasons that trials run over time, many of which are not within the court’s control. Consequently, while trial management processes can always be improved,23 there will always be circumstances that lead to trials lasting longer than estimated.

Continuing trial with a reduced jury

  1. 5.19 The Juries Act allows trials to continue with a reduced jury (10 jurors for criminal trials and five for civil trials).24 New South Wales25 and England and Wales26 allow trials to continue with fewer jurors. However, neither the current Juries Act provision for continuing trials with a reduced jury or further reducing the minimum number of jurors was considered sufficient or appropriate by the judges consulted to deal with juror attrition in all circumstances.
  2. 5.20 A number of judges consulted by the Commission noted that though they will order the continuation of a trial with a reduced jury in appropriate circumstances—for example, if the trial is significantly progressed—they are reluctant to do this without the agreement of the parties.  
  3. 5.21 The legal practitioners consulted by the Commission considered that continuing a trial with a reduced jury was not ideal. Victoria Legal Aid and the Victorian Director of Public Prosecutions (DPP (Vic)) did not support the option of enabling the continuation of trials with fewer than 10 jurors.27
  4. 5.22 Victoria Legal Aid explained its reasoning for this position as follows:

VLA believes that reducing a jury to less than ten as explored in the consultation paper would result in the integrity of a verdict being compromised, or at least give the impression of such to an accused and the community. The fewer jurors that are present the less representative the jury becomes and the more susceptible it becomes to bias or undue influence from more dominant jurors. This can compromise the quality of discussions and negatively affect the decision making process. Given the fundamental role of a jury to an accused’s trial (and often personal liberty) it would be unacceptable to allow a jury of less than ten to proceed to deliberations.28

Factors influencing the decision to empanel additional jurors

  1. 5.23 There are no criteria guiding the empanelment of additional jurors in Victoria, unlike in New South Wales, where a court may only empanel additional jurors if the court expects a trial to last for more than three months.29 This raises the potential for different practices among trial judges.
  2. 5.24 The Juries Commissioner advised that the Juries Commissioner’s Office (JCO) generally encourages courts to consider empanelling additional jurors for trials expected to last for more than three weeks.30
  3. 5.25 However, the judges consulted by the Commission commented that while case duration is important, it is not the only factor judges consider when deciding whether to empanel additional jurors. Other factors mentioned were:
  • the time of year—for example, whether it is ‘flu season’, or the proximity of the trial to holidays
  • the nature of the trial—for example, if evidence is likely to be particularly harrowing
  • the impact on jurors of being balloted off. This is discussed further below at [5.43]–[5.51].
  1. 5.26 A JCO staff member consulted by the Commission commented that she was aware of one County Court judge who routinely empanels additional jurors even in relatively short cases, as a result of his experience of losing a number of juries to attrition.
  2. 5.27 This evidence demonstrates that judges take a range of factors into account in deciding whether to empanel additional jurors.  

Rate of empanelment of additional jurors

Victoria

  1. 5.28 Table 4 shows the number of additional jurors empanelled in Victoria in 2011–12 and 2012–13.

Table 4: Number of additional jurors empanelled in Victoria

 

2011–12

2012–13

Melbourne

42

52

Regions

9

4

Total

51

56

 

 

  1. 5.29 Additional jurors were empanelled in a small minority (five per cent)31 of Victorian jury trials in 2012–13. A total of 56 additional jurors were empanelled in 2012–13, 52 in Melbourne and four in the regions.
  2. 5.30 The rate of empanelment is similar to 2011–12 where 51 additional jurors were empanelled in Victoria—42 in Melbourne and nine in the regions—four
    per cent of Victorian jury trials (five per cent of trials in Melbourne and four per cent in the regions).32
  3. 5.31 The JCO advised that all of the additional jurors in 2011–12 and 2012–13 were empanelled for criminal trials.
  4. 5.32 However, two respondents to the Commission’s survey said they had been empanelled on a jury for a civil trial where more than six jurors had been empanelled. The anomaly between the JCO data and the Commission’s survey data about the type of trial on which additional jurors were empanelled could be explained in one case by the date of the trial (it was earlier than 2011). Alternatively, the anomaly could be an error in the survey response or in data entry by the Commission.

Other jurisdictions

  1. 5.33 Jury administrators in most other Australian jurisdictions told the Commission that the empanelment of additional or reserve jurors is rare, and only occurs for lengthy trials.
  2. 5.34 Western Australia, however, routinely empanels additional jurors, even for short trials. The Commission was advised that additional jurors were empanelled in 80 per cent of trials in Western Australia between January and October 2013.33
  3. 5.35 In the United States, alternate jurors are also frequently empanelled, even for quite short trials.34  

Rate of balloting off of additional jurors

Victoria

  1. 5.36 In Victoria, additional jurors were balloted off in around a third of cases in which additional jurors were empanelled: 34 per cent (19 jurors) in 2012–13 and 39 per cent
    (20 jurors) in 2011–12.

Other jurisdictions

  1. 5.37 While exact figures were not available, the Commission was advised that the rate of balloting off in both Western Australia and the United States where additional jurors are routinely empanelled was quite high.35

Effect of balloting off on jurors

Data sources

  1. 5.38 The Commission gathered information on the effects of balloting off on jurors from a number of different data sources—jurors, judges, the Juries Commissioner and court staff involved in discharging additional jurors.

Jurors

  1. 5.39 The Commission gathered the views of jurors about the balloting off process using the following methods:
  • face-to-face consultation
  • phone consultation
  • submissions
  • the VLRC juror survey.
  1. 5.40 From the above methods, the Commission obtained the views of 60 jurors who had been on juries on which additional jurors had been empanelled (two had served on civil trials36 and the remaining 58 on criminal trials). They included:
  • six balloted-off jurors (all of whom had served on criminal trials)
  • 31 jurors who had remained on the jury following a ballot.37

Judges

  1. 5.41 As judges order the ballot and discharge balloted-off jurors, they have close involvement with the ballot system. The judges the Commission spoke to had strong views about the effects of the balloting-off process on jurors.

Juries Commissioner and court staff

  1. 5.42 In addition to jurors serving on a jury of more than 12, the Commission also spoke with the Juries Commissioner and court staff who are involved in the discharge of additional jurors. The Juries Commissioner’s submission also contains comments about the balloting off of additional jurors.38

The effects on balloted-off jurors

  1. 5.43 Balloted-off jurors had a mixture of responses to being balloted off. Based on the Commission’s data, most feel very disappointed and frustrated at not being able to deliberate and return the verdict.
  2. 5.44 For example, feelings of disappointment by balloted-off jurors who responded to the VLRC juror survey were expressed in the following way:

I felt as if I had died, having no input to the final decisions.

Extremely disappointed. Dissatisfied that after a large & conscientious investment of time & energy I may as well not have been there. Angry about the time lost & an opportunity missed in my career while away from work.

I felt empty. Having been part of the process from the beginning, and taking my responsibilities seriously, I would have liked to be part of final decision making process.

I had a strong preference to see it through, particularly after a long case. Was disappointed to be balloted off.

  1. 5.45 The Juries Commissioner, who has personally debriefed balloted-off jurors, described their reactions as ‘sad and confused at best or incandescent with rage at worst’.39
  2. 5.46 One regional JCO jury keeper who had observed the balloting off of an additional juror told the Commission that the balloted-off juror had sat on the steps of the courthouse for the entire duration of the jury’s deliberation so that he could still feel like he was a part of the process.40
  3. 5.47 All the judges the Commission consulted said that in their experience jurors who are balloted off feel terrible, as they have invested significant amounts of time and effort in the trial.
  4. 5.48 Some balloted-off jurors described mixed emotions of frustration and relief. For example, a balloted-off juror who responded to the VLRC juror survey said ‘[I felt] relieved and frustrated. I wanted to stay but the trial had run over by 5 weeks and I had commitments at work.’
  5. 5.49 Another balloted-off juror who responded to the VLRC juror survey said he was very disappointed, but also added he was ‘content to have borne some civic responsibility while marginally relieved to be absolved of the responsibility of deliberation’.
  6. 5.50 A balloted-off juror the Commission spoke with over the phone also described her feelings as ‘mixed’. On the one hand, she had spent three weeks thinking about the case, so she felt that it had been a waste of time. On the other hand, she felt relieved that she did not have the responsibility for making a decision that could send a person to jail.
  7. 5.51 The Juries Commissioner’s submission states that ‘a smaller number [of balloted-off jurors] are genuinely relieved’.41  

The effects on the remaining jury

  1. 5.52 The VLRC juror survey asked remaining jury members how they felt about a jury member being balloted off.
  2. 5.53 The dominant theme of the comments was that remaining jury members felt sorry for the balloted-off juror or jurors and considered that their time had been wasted. For example, remaining jury members described feeling:

Clearly sorry for the jury member. Having had to sit through approximately four weeks of a court proceeding and then not being able to be involved in the deliberation is bordering on being cruel.

Dismay that these people had attended court for a period of many weeks, investing their time and concentration, only to be dismissed. They were denied the opportunity to have input into the deliberation process, which apart from determining the innocence or guilt of the accused, provides a forum for discussion and debriefing for the members of the jury panel.

Disappointed for them to have gone so far and not completed the process of a juror.

  1. 5.54 A number of remaining jury members also commented on the loss of the balloted-off members’ input into deliberations:

One of these jury members was pivotal in a lot of the organisation and information gathering and sharing. It felt like we lost two supporters at a time of the journey we needed everyone around.

[D]isappointed in losing contributors to earlier discussion.

  1. 5.55 Another theme arising from the comments of remaining jurors was the effect of the ballot on the dynamic of the jury. For example:

The immediate removal of the evicted jurors, while understandable, was a bit of a wrench. We had been supporting one another through a fairly emotional experience so it was difficult to have the two jurors removed.

It added a great deal more stress to everyone in that jury.

I felt somewhat disappointed as you do form a relationship with all the jurors.

  1. 5.56 A number of judges the Commission consulted expressed concern about the impact of the ballot on the remaining jury at a crucial time when the jury needed to concentrate. These judges considered that the ballot, and the timing of the ballot, had a destabilising effect on the remaining jury and distracted them from deliberations. The ballot was described by one judge as a bad start to a tense process.42
  2. 5.57 Recognising that a particular individual may be central to the jury’s deliberations, one judge consulted by the Commission said that if balloting remains, he may adopt the practice of advising the jury during the course of the trial that they can nominate a new foreperson43 if they wish to avoid the possibility of a particular person being balloted off.
  3. 5.58 The comments of a few remaining jury members indicate that they accepted the balloting off process and were not particularly upset about it. For example:

I was foreman, so was not in the mix. So unaffected.

As we were informed of the process at the start I did not have any feelings.

We were forewarned by the judge that this would happen.

Alternatives to balloting off

Not balloting off

  1. 5.59 The consultation paper asked for views about the option of not balloting off additional jurors—that is, having an enlarged jury of up to 15 jurors in criminal trials and up to eight jurors in civil trials if additional jurors remain when the jury is required to retire to deliberate and return the verdict.
  2. 5.60 This option was strongly supported by all of the judges consulted by the Commission on the basis that balloting off had such negative effects on individual jurors and the jury as a whole.
  3. 5.61 It was also supported by some jurors who had been on juries on which additional jurors had been empanelled. For example, a respondent to the VLRC juror survey said:

Jurors who have made sacrifices to uphold the law should not be arbitrarily removed because 12 is a magic number. Fourteen can deliberate and make just as good a decision as 12. For arguments sake so could 10. As long as the jury number is greater than eight there should be a broad enough range of expertise and views to determine the facts of the case. The courts should be less hung up on tradition about this. What evidence is there that shows that 12 is the optimum number?

  1. 5.62 In a similar vein, a submission from a member of a jury on which more than 12 jurors had been empanelled stated:

It is my opinion that faith would be better kept in jury trials were no juror removed from the final deliberations who did not wish to be… I do not believe that a jury of some 13 people would be any more difficult in conference than 12.44

  1. 5.63 Of the organisations and statutory officers that made submissions to the reference, Victoria Legal Aid45 and the Juries Commissioner46 supported the option of an enlarged jury. The DPP (Vic) and the Criminal Bar Association did not support this option.47
  2. 5.64 The Commission considers the key questions that arise in relation to this option are:
  • Would a jury of more than 12 jurors for criminal trials function effectively?48
  • How would an enlarged jury operate where either a unanimous verdict49 or a majority verdict is required?
  • Is inconsistency of jury size across the legal system a problem?

Would a jury of more than 12 jurors function effectively?

  1. 5.65 It is difficult to assess whether a jury of more than 12 jurors would function effectively, as there is little evidence to draw on. The Commission has considered the Scottish system (which is the only similar legal system to allow for a criminal jury of more than 12 jurors), case law on jury size and jury size studies.
The Scottish system
  1. 5.66 Criminal juries in Scotland are made up of 15 jurors and more than 12 jurors may deliberate and return a verdict. However, crucially, a guilty verdict can be delivered by a simple majority (that is, eight jurors).50
  2. 5.67 The Commission was unable to find any data on the rate of unanimous versus majority verdicts in criminal trials in Scotland and has been informed that none exists.51 Therefore, the Scottish criminal jury system cannot be used as a source of information about how a jury of more than 12 jurors may function at the deliberation and verdict stage, particularly where unanimity is required.52
  3. 5.68 Jury size was reviewed, along with other aspects of juries in criminal trials, by the Scottish Government in 2008–2009.53 The overriding rationale for the review was cost.54 The review and submissions did not compare the functioning of a jury of 15 jurors with a jury of fewer than 15 jurors in any detail.55 The review ultimately expressed support for retaining a jury size of 15 for reasons including:
  • there is less likely to be juror intimidation
  • a larger jury is less likely to be unbalanced by individual prejudices
  • a larger jury is more likely to include a mix of gender, ethnicity, experience and social awareness.56
Case law on jury size
  1. 5.69 Despite the widespread acceptance of the importance of a jury of 12 in criminal trials in Australia, it has been accepted that deviating from this number does not breach the essential characteristics of a jury trial.
  2. 5.70 Challenges have been made to the application of both the provisions for continuation of trial with a reduced jury57 and additional juror provisions in state laws to trials for federal offences, on the grounds that such provisions breach the requirement in section 80 of the Constitution for a trial by jury for federal offences.58
  3. 5.71 The arguments advanced in challenging the reduced jury provisions included that 12 jurors are required to meet the requirements of a valid trial by jury in section 80.
  4. 5.72 The High Court rejected this argument and instead, following the United States,59 adopted a functional approach. The functional approach considers the purpose of jury trials and the features of jury trials that are required to meet those purposes. The key features of jury trials identified as necessary to meet the core purposes of a jury trial were that the group is large enough:
  • to promote group deliberation
  • for a cross-section of community opinion to be expressed and shared among the jurors and to reflect, in a general way, the views of minorities in the community
  • to guard against the force of personality of one or more jurors.60
  1. 5.73 The functional approach was endorsed in a later case of Ng v The Queen61 in response to a challenge to the application of the additional juror provisions to a trial for a federal offence. As Justice Kirby noted:

If fewer than twelve jurors is acknowledged as conformable to the constitutional “jury”, the validity of a provision allowing for more than twelve, so as to ensure that the function of the jury is fulfilled, becomes difficult to resist. Once a criterion is adopted by reference to considerations of community representativity and effective deliberations, legislative measures aimed at ensuring the retention of those qualities become constitutionally permissible.62

  1. 5.74 These cases show that provisions allowing for both a reduced jury and additional jurors conform with the essential features of a jury trial. It is important to note, however, that the cases on additional jurors deal with an enlarged jury up until the point that the jury retires to consider its verdict. They do not deal with an enlarged jury for the purposes of deliberation and verdict.63
Jury size studies
  1. 5.75 In response to a series of American Supreme Court cases on the constitutionality of juries of fewer than 12 jurors, a number of empirical studies on the effects of jury size were undertaken in the 1970s through to the 1990s.64
  2. 5.76 These studies are limited to the examination of the functioning of 12-person juries versus six-person juries. In its review of jury size, the Scottish government expressed reservations about applying the jury size research findings to a larger jury size of 15.65 Nonetheless, it is possible that at least some of the findings are applicable to juries of more than 12 jurors.
  3. 5.77 While there have been criticisms of the methodologies used in some of the jury size studies, the following factors have been identified as relevant to jury decision-making processes:
  • Larger juries are more likely to be representative, and contain representation from minorities
  • Larger juries spend more time in deliberation, but have a higher quality of deliberation because of the wider diversity of opinions
  • Larger juries have better recall of probative evidence, as the cumulative process of memory recall improves with larger group size
  • Larger juries are less likely to reach consensus.66
  1. 5.78 These findings suggest that there are both positive and negative aspects to larger juries.

How would an enlarged jury operate where a verdict requiring unanimity or a majority verdict is required?

  1. 5.79 The Juries Act allows a court to accept a majority verdict in relation to most types of criminal offences.67 Verdicts in relation to murder, treason or certain drug trafficking offences and all offences under federal law must be unanimous.68 Courts may also accept a majority verdict in civil trials.69 There is no requirement for unanimity in relation to verdicts in civil trials.
  2. 5.80 Not balloting off additional jurors has implications for the requirement for a unanimous verdict in some criminal trials and for the definition of ‘majority verdict’ for both criminal and civil trials.
Criminal trial verdicts requiring unanimity
  1. 5.81 If a jury consisted of up to 15 jurors, the agreement of all 15 jurors would be required for verdicts requiring unanimity.70
  2. 5.82 The case law on jury size does not identify the ability to reach a consensus as a functional requirement of a jury.71 However, as studies of jury size suggest that consensus is more difficult in larger groups, the Commission considers this a relevant factor in assessing the option of an enlarged jury, particularly in relation to verdicts requiring unanimity.
  3. 5.83 As noted at [5.77], studies of the effect of jury size suggest that larger juries are less likely to reach consensus than smaller groups. This finding is based on the theory of conformity and persuasion in small groups. According to this theory, a minority of one is more likely to acquiesce to the majority view than a larger minority (which is more likely to occur in a larger group).72
  4. 5.84 Applying the theory to 12-person and six-person juries, the studies suggest that a minority of two in a jury of 12 is more likely to hold steadfast than a minority of one in a jury of six, who is more likely to conform with the majority.
  5. 5.85 From this it could be argued that, as the burden of proof in criminal cases lies with the prosecution, the prosecution’s task in convincing more than 12 jurors of the guilt of an accused for offences requiring a unanimous verdict could be more difficult if juries are larger. The Acting Commonwealth Deputy Director of Public Prosecutions, Melbourne Office stated that he did not support the option of an enlarged jury because of this.73 The DPP (Vic) also does not support the option of an enlarged jury.74
  6. 5.86 While there is no burden of proof on an accused to prove innocence, the same argument could be made in relation to acquittals, as acquittals also must be unanimous where the verdict for an offence must be unanimous.
  7. 5.87 However, research on juries that fail to reach a verdict75 also identifies the strength of the evidence as an important factor in determining whether a jury will reach a verdict or not. The research, and the experience of the courts, indicates that a significant percentage of cases where juries failed to reach a verdict occurred where the evidence was considered ambiguous.76
  8. 5.88 Therefore, while the non-conformity effect suggests that minorities are more likely to hold out in larger groups (and therefore unanimity may be more difficult to achieve), whether there will be a minority view present in the first place is likely to depend on the strength of the evidence—a factor that is independent of jury size.
Majority verdicts
  1. 5.89 The option of a jury of more than 12 jurors in a criminal trial or more than six jurors in a civil trial also raises the issue of how to define a majority verdict.
  2. 5.90 Under the Juries Act, a majority verdict in a criminal trial is defined as a verdict agreed by all jury members but one. The definition also applies to instances where the jury is reduced because of the discharge of one or more jurors, so that a majority may consist of 10 jurors where the jury has been reduced to 11 and nine jurors where the jury has been reduced to 10.77 Majority verdicts in criminal trials have been available in Victoria since 1994.78
  3. 5.91 The Juries Act also allows the court to accept majority verdicts in civil trials.79 A majority verdict in a civil trial is similarly defined as a verdict agreed by all jury members but one and also applies to instances where the jury is reduced because of the discharge of a juror, so that a majority may consist of four jurors where the jury has been reduced to five.80
  4. 5.92 Different jurisdictions have adopted different ways of defining ‘majority verdict’. The main ways are:
  • the current Victorian model—that is, the agreement of all jurors but one, regardless of the size of the jury81
  • different definitions of ‘majority’ according to the size of the jury—that is, allowance for two dissenters where the jury consists of 12 jurors, but one dissenter where there is a reduced jury of 11 or 1082
  • specifying a set number of jurors who must agree for a majority.83
  1. 5.93 The Commission considers that the definitions of majority verdicts are integrally connected to the rationales underlying them.
  2. 5.94 According to the Second Reading Speech for the amendment that introduced the majority verdict provisions, the current Victorian provisions for criminal trials were introduced to allow verdicts to be entered in trials where ‘a single determined juror holds out doggedly and for peculiar or improper reasons against the common view of the remaining 11’.84 This type of juror is commonly referred to as a ‘rogue juror’. The possible existence of a rogue juror who may derail the trial process is used as a key argument to support majority verdicts.85 Those jurisdictions that rely on this rationale have adopted a definition of majority as all jurors but one.86
  3. 5.95 The Commission notes that majority verdict provisions justified by reference to the rogue juror argument do not aim simply to make it easier for a jury to achieve unanimity but rather to prevent a rogue juror from derailing an otherwise unanimous verdict.
  4. 5.96 In contrast, other jurisdictions have articulated different rationales to support the introduction of majority verdicts. For example, majority verdicts were introduced in England and Wales in 196787 (where a majority of 10 is allowed where the jury consists of 12 jurors) to prevent jurors being bribed or intimidated by one of the parties or their supporters into agreeing with the majority.88 This was also apparently the rationale used in South Australia (where majority verdicts were introduced in 1927)89 and Tasmania (where majority verdicts were introduced in 1936).90
  5. 5.97 Further rationales for majority verdicts are that they allow a more ‘honest’ verdict by alleviating pressure on jurors to achieve conformity, they avoid ‘compromise verdicts’ (where jurors are persuaded to agree with the majority because of bullying, or exhaustion, or where jurors barter their agreement on one charge for securing their preferred outcome on another), and that they produce cost savings, as deliberations are quicker and easier.91
  6. 5.98 Another notable difference between jurisdictions in relation to majority verdicts is the amount of time that a jury is required to deliberate before a majority verdict may be accepted. In Australia, the range is between two and eight hours for criminal trials92 and between three and six hours for civil trials.93
  7. 5.99 While the differences in minimum deliberation times indicate that the time requirements are somewhat arbitrary,94 the rationale for the time requirements is that a minimum time will promote full and proper deliberation, including listening to and considering the minority view.95
Is inconsistency of jury size across the legal system a problem?
  1. 5.100 Were the option of not balloting off additional jurors adopted, jury sizes could be inconsistent. For example, in criminal trials where up to 15 jurors may be empanelled, the jury could be made up of 15 jurors, or less, if fewer were empanelled, or if there had been juror attrition during the trial.
  2. 5.101 Similarly, in civil trials where up to two additional jurors may be empanelled, the jury could be made up of eight or fewer jurors.
  3. 5.102 The Criminal Bar Association expressed concern about this proposition:

The clear concern is that not balloting off jurors prior to verdict will give rise to substantial inequalities of justice where verdicts may be delivered by different numbers of jurors in different trials.96

  1. 5.103 The Commission notes that the current system already allows for verdicts to be delivered by juries of different sizes in cases where juries fall below 12 in criminal trials or six in civil trials after a decision has been made to continue a trial with a reduced jury. In other words, allowing for a jury of more than 12 or six would not create the potential for inconsistency of jury size (as this already exists). However, it would allow for a potentially wider variation in jury size (between 10 and 15 for criminal trials and between five and eight for civil trials).

Discharge by consensus among jurors or by request

  1. 5.104 Another alternative to balloting off discussed in the consultation paper was allowing one or more jurors to be discharged by consensus or on request. This alternative would involve a judge discharging one or more additional jurors who agreed or requested to be discharged prior to the verdict, so that there were no more than 12 jurors.
  2. 5.105 Few submissions expressed an opinion on this option. One submission that supported this option stated:

Any juror in a jury over twelve should be allowed to submit his/her name for consideration for exclusion before the jury of twelve considers the verdict. If someone chooses to leave then a ballot should not be necessary.97

  1. 5.106 The DPP (Vic) did not support this option.98
  2. 5.107 There is evidence that judges have refused to discharge where the jury or individual jury members requested this as an alternative to balloting. One County Court judge consulted by the Commission described a case in which the jury approached her and asked whether either all jury members could remain on the jury or, alternatively, whether they could agree among themselves who should be discharged. She responded that she was required to follow the law and so held the ballot to discharge two additional jurors.99
  3. 5.108 A jury member consulted by the Commission stated that in the trial she served on, one juror had an interstate commitment on the day of the ballot. That person asked the judge whether he could be discharged. The judge refused and instead adjourned the trial until the juror returned and then conducted the ballot.100
  4. 5.109 The Commission considers that there are a number of issues associated with discharging by consensus or on request as an alternative to balloting. As noted in the consultation paper, discharge by consensus would only work where a juror wanted to leave. Difficulties would arise where more jurors wanted to leave than were required to leave (for example, if there were 13 jurors and two wanted to leave).
  5. 5.110 A further issue identified in the consultation paper was the possibility of pressure being applied to an unpopular jury member to ‘agree’ to leave. A defence practitioner consulted by the Commission expressed this concern about the option of discharge by consensus, stating that if such a process was adopted ‘the bossy ones will stay’.101

All jurors stay, but only 12 vote

  1. 5.111 Two jurors who had been on a jury on which more than 12 jurors had been empanelled suggested that if there are more than 12 jurors remaining when the jury retires to consider its verdict, all jurors should remain on the jury, but only 12 jurors vote.102
  2. 5.112 A taskforce reviewing California’s jury system in 1996 made a similar recommendation to mitigate the negative effect on alternate jurors of not being able to participate in deliberations and deliver the verdict in cases they had served on.
  3. 5.113 The recommendation was that alternate jurors in civil cases who remained at the end of the trial be permitted to observe deliberations, but not participate.103  
  4. 5.114 Alternate jurors—used in the United States—are similar to reserve jurors (and different from additional jurors—see [5.11]) in that they know in advance that they are the alternate. Consequently, in contrast to the current Victorian system, for such a reform, no ballot would be required at the end of the trial to identify the jurors who are to deliberate and vote and those alternate jurors who do not.
  5. 5.115 Unless the current Victorian system of additional jurors is replaced with a system of reserve jurors,104 this option does not solve the problem associated with the ballot, as a ballot would still be required to identify the 12 jurors who would vote.

Reserve jurors

  1. 5.116 The consultation paper also discussed the option of adopting a reserve juror system instead of the additional juror system to avoid balloting off. As noted at [5.11], the distinction between reserve jurors and additional jurors is that reserve jurors know from the time they are selected that they will not deliberate and return the verdict should there be excess jurors when the jury retires to consider the verdict.
  2. 5.117 As noted at [5.10], Tasmania, Queensland and the Northern Territory have adopted the reserve juror system. The Tasmanian and Queensland jury administrators the Commission consulted indicated that the reserve juror system works well in their states.105 Both stated that reserve jurors appear to be as engaged as other jurors. The Tasmanian jury administrator stated that nine out of ten reserve jurors do not have a problem with being discharged, whereas the Queensland jury administrator said that discharged reserves are often quite disappointed.
  3. 5.118 The overwhelming majority of judges, JCO staff and Victorian court staff consulted by the Commission did not support the reserve juror system as they considered there is a risk that the reserves will not fully engage with the proceedings. One County Court judge supported the reserve juror system over the additional juror system, were the option of an enlarged jury (his preferred option) not adopted. That judge preferred the reserve system on the grounds that it did not unduly raise jurors’ expectations.106

Improving the balloting off process

  1. 5.119 If the balloting off process remains, then the options for minimising the impact of the ballot are restricted to improving the balloting process. The next section discusses possible improvements to the balloting off process.

Judicial address

  1. 5.120 The consultation paper discussed improving the management of jurors’ expectations through judicial address.
  2. 5.121 The Judicial College of Victoria’s Criminal Charge Book contains Bench Notes to guide judges in relation to certain criminal procedures. However, there are no Bench Notes on empanelling additional jurors and on balloting off additional jurors.
  3. 5.122 The reactions of some jurors who were on juries where more than 12 jurors were empanelled to the balloting off process suggest that knowledge of the process can help manage expectations.107  

Allowing jurors to say goodbye

  1. 5.123 There is no regulated process for discharging a juror who has been balloted off. Based on the information from the Commission’s consultations, the practice seems to be that once the ballot has been conducted in court, the balloted off juror exits the courtroom through the public entrance and is usually escorted to the jury pool room to complete the administrative side of the discharge.
  2. 5.124 The Juries Commissioner advised that he or his deputy personally offer debriefing for balloted-off jurors in Melbourne. Balloted-off jurors also have access to the counselling services contracted to the JCO to provide confidential counselling and support to jury members.
  3. 5.125 A balloted-off juror the Commission spoke to said that she had found being escorted quite confronting and did not know why she was being escorted.108
  4. 5.126 Some judges the Commission consulted described different practices they had adopted to discharging additional jurors. For example, one judge said that she asked the discharged jurors to wait outside the courtroom until she had finished addressing the jury. She then called the discharged jurors back in to thank them again for their service.109
  5. 5.127 A number of jurors who had been empanelled on juries of more than 12, said that they thought the process of discharging balloted-off jurors could be improved. While all jurors said that the judge on their trial had done their best to acknowledge the balloted-off juror’s contribution and service, a number of jurors thought the balloted-off juror should be given the opportunity to say goodbye to the other jury members, rather than having to leave immediately.
  6. 5.128 A JCO staff member told the Commission she was aware of one judge who offered this opportunity to balloted-off jurors.110

Access to information about verdict and sentence

  1. 5.129 As discussed above, one of the main frustrations expressed by balloted-off jurors was not being able to complete the task they had started. Information about the verdict and sentence in the case may alleviate these feelings.
  2. 5.130 The JCO advised the Commission that it is their practice to provide balloted-off jurors with a phone number they can call to find out the verdict and sentence in the case they had served on.
  3. 5.131 It is unclear to the Commission whether this practice is consistent across Victoria. One balloted-off juror told the Commission she had been advised that she would receive a letter with a number to call to find out the verdict and sentence in the trial she had served on. However, she had not received the letter and when she called, she was told that she could not have access to the information.  

The Commission’s conclusions

Balloting off or enlarged jury

  1. 5.132 This issue proved to be the most challenging of the reference and there was a divergence of views among the Commissioners. While there are clear arguments in favour of retaining balloting off, the majority of the Commission is of the view that section 48 of the Juries Act, which provides for the balloting off of additional jurors prior to the jury retiring to consider its verdict in criminal and civil trials, should be repealed.
  2. 5.133 The overwhelming input received by both the judiciary and the Juries Commissioner is that jurors find the balloting off process alienating, upsetting and unjustified. This is especially so for, but not limited to, balloted-off jurors.
  3. 5.134 As noted above at [5.45], the Juries Commissioner described the reactions of balloted-off jurors as being ‘sad and confused at best or incandescent with rage at worst’. The Commission considers that the views of the judiciary and the Juries Commissioner on the effects on jurors of the balloting-off process carry particular weight, as they are in a unique position to be aware of those effects.
  4. 5.135 The very adverse reaction of jurors to being balloted off is rational and understandable. Jurors have given up their time and made a considerable effort to perform their civic duty. It can be argued that jurors may be subjected to a number of stresses during a trial (for example, listening to traumatic evidence, or where a jury is discharged before verdict), and that being balloted off is just one of the stresses that the justice system imposes on them. However, while those other stresses are often unavoidable, the unnecessary and unjustified stress to jurors caused by the ballot should not occur.
  5. 5.136 A further issue associated with balloting off that was not raised in consultations, but to which the Commission draws attention, is the influence of the views of the balloted-off jurors on the deliberations and verdict.
  6. 5.137 At the commencement of the trial, jurors are routinely instructed by the trial judge not to discuss the case with any persons except each other and that when they discuss the case during the trial, to do so together and in the privacy of their jury room, where their discussions are and remain confidential to them.
  7. 5.138 The balloting-off process involves an artificial distinction between those discussions and the deliberation which occurs after the jury has received instructions and retires to consider its verdict. Judges do not routinely direct continuing juries to ignore the views previously expressed by the now balloted-off jurors. Even if such directions were given, they would be difficult to comply with. Consequently, the deliberations of the continuing jury are effectively unregulated with regard to views previously expressed by the balloted-off jurors.
  8. 5.139 It is unrealistic to expect the remaining jury members to ignore the views expressed by the balloted-off jurors during discussion often over weeks and sometimes over months. In light of this, the balloting off of jurors prior to deliberations must be questioned. Although the discharge of jurors due to illness or other reason also raises this concern, discharges of this type are unavoidable and do not necessarily occur immediately before the jury retires to consider a verdict as balloting off additional jurors does.
  9. 5.140 The Commission does not consider the other factors in favour of retaining balloting off outweigh the negative effect on jurors.
  10. 5.141 The Commission has considered whether improvements to the balloting off process as discussed at [5.120]–[5.131] would be a satisfactory alternative to abolishing balloting off.  
  11. 5.142 The majority of the Commission considers that such improvements would not significantly reduce the negative impact on balloted-off jurors. As the former Juries Commissioner noted, better expectation management would not make much of a difference as it is not the element of surprise that frustrates balloted-off jurors, but the fact that they have become invested in their role, and that the group dynamic is disrupted.111
  12. 5.143 The Commission understands the concerns raised by the DPP (Vic) and the Commonwealth Office of Public Prosecutions about the possible increased difficulty in persuading a jury of more than 12 of an accused’s guilt. However, as noted at [5.87]–[5.88] achieving unanimity does not appear to solely depend on jury size.
  13. 5.144 Therefore, the Commission considers that these concerns are speculative and should not outweigh the known impact of the balloting-off process on jurors.
  14. 5.145 Studies of jury size suggest that larger juries may require more time to deliberate, adding to the costs of trials. However, as each individual trial and jury will be different, there is no reliable way of identifying how much more time will be required and therefore of calculating additional cost.
  15. 5.146 The Commission does not consider that the argument raised by the Criminal Bar Association that not balloting off will introduce an inconsistency is compelling. The law already allows for verdicts by juries of fewer than 12 (for criminal trials) and six (for civil trials).
  16. 5.147 The Commission further notes that the current rate of balloting off jurors is low (a total of 19 jurors in 2012–13). While the effect of abolishing balloting off on the rate of empanelment of additional jurors is not known, based on current data it is likely that the rate of enlarged juries will also be low. Further, the Commission considers that its recommendation that legislative guidance be developed to regularise the practice of empanelling additional jurors112 will minimise the over-empanelment of additional jurors.
  17. 5.148 On balance, given the emphasis of the terms of reference on the effects on jurors and the lack of evidence that allowing more than 12 jurors to deliberate and reach a verdict will have adverse consequences, the Commission recommends abolishing balloting off pursuant to section 48 of the Juries Act.
  18. 5.149 The Commission acknowledges that, if its recommendation is adopted, Victoria would be the first Australian jurisdiction to allow juries of more than 12 to deliberate and return a verdict in criminal trials.

Guidance on the empanelment of additional jurors

  1. 5.150 The Commission considers that there is scope for further guidance about factors to take into consideration in deciding whether additional jurors should be empanelled so as to reduce the incidence of enlarged juries.
  2. 5.151 These guidelines should highlight factors to take into account when exercising the discretion to empanel additional jurors, but should not be as rigid as the New South Wales and Irish guidelines that only allow additional jurors to be empanelled when it is expected that a trial duration will go beyond a set period (three months in New South Wales and two months in Ireland).113  

Recommendations

14 Section 48 of the Juries Act 2000 (Vic) should be repealed.

15 To regularise the empanelment of additional jurors there should be statutory criteria guiding the discretion to empanel additional jurors. These should include:

 

Amendment to the definition of ‘majority verdict’

  1. 5.152 If section 48 of the Juries Act is repealed, the majority verdict provisions would need to be amended.
  2. 5.153 As noted at [5.93], the Commission considers that the way in which a majority is defined depends on the rationale used to support majority verdicts.
  3. 5.154 The current rationale for majority verdicts in Victoria is to prevent a ‘rogue juror’ from derailing an otherwise unanimous verdict.114 Unless this rationale is not considered applicable to a larger jury, then ‘majority’ should continue to be defined as the agreement of all jurors but one, regardless of the size of the jury for both criminal and civil trials.

Recommendation

16 A ‘majority verdict’ should be defined as the agreement of all jurors except one for both criminal and civil trials.

 

Footnotes

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