Foreword - jury empanelment consultation paper

Jury trials are held where people are charged with very serious criminal offences and for some types of civil matters, such as personal injury, medical negligence and defamation. Juries play an important role in reflecting the views of the community in the administration of justice. The jury empanelment process is the final and most public of the jury selection processes, as it generally takes place in open court. The empanelment process therefore has the potential to influence the community’s views of the administration of justice.

The Commission has been asked to review three aspects of the jury empanelment process—peremptory challenges and the Crown right to stand aside, calling of the panel in court by name or number, and the use of additional jurors. In each of the three aspects, the Commission has been asked in particular to consider its effect upon jurors.

In Victoria, peremptory challenges are challenges that can be made by an accused to prospective jurors based on the limited information available to him or her. This information is the prospective juror’s name (in some cases), their occupation and their appearance. In contrast to challenge for cause, no reason has to be given for peremptorily challenging a prospective juror. The prosecution has a similar right, known as the Crown right to stand aside. However, this right is rarely used. Critics of peremptory challenges consider they are largely based upon stereotypes and have little value, as they are not a useful predictor of how the juror will fulfil the juror’s function. The peremptory challenge process is also criticised as humiliating to the prospective juror. Supporters of peremptory challenges consider that they are an important way of ensuring the accused has a fair trial. The Commission has been asked to consider the impact of peremptory challenges and stand asides on cost, representativeness, impartiality, and procedural fairness; and to consider the effect on jurors.

The Commission has also been asked to consider the related question of calling of the jury panel by name or number. Currently, the Juries Act 2000 (Vic) allows a judge to decide whether to call the jury panel by name or number. This provision was introduced in response to concerns about the safety and protection of jurors. Name is one of the few pieces of information about the prospective juror available to the parties as a basis upon which to exercise their challenges. However, many consider it should not be used for that purpose and the practice of empanelling by number is increasing, although its use is not consistent. A significant proportion of jurors who responded to the Juries Commissioner’s Office juror feedback survey indicated that they would prefer to be empanelled by number.

The third matter under consideration by the Commission is the use of additional jurors in long trials as a precaution against juror attrition. Where additional jurors remain at the time the jury is required to retire to consider its verdict, a ballot is conducted to reduce the jury to 12 (or six for civil trials). Balloted jurors are reportedly often very frustrated by not being able to conclude the task they started. The removal of jurors at this point can also affect the group’s decision-making dynamic.

I encourage anyone who has experienced these processes, as well as the community generally, to make a submission to the Commission by 15 November 2013. It is an offence under the Juries Act for a person who has served as a juror to reveal any information about the deliberations of that jury, and accordingly no former juror should reveal any such information in a submission to the Commission.

The Hon. Philip Cummins
Chair, Victorian Law Reform Commission

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