Nick Gadd: Welcome to Old Law New Law, a podcast by the Victorian Law Reform Commission. I’m Nick Gadd. In this special episode I’ll be talking to Paul Dore, the Victorian Juries Commissioner, a man who’s passionate about juries. In aide ranging interview we’ll be talking about what a juries commissioner actually does, and discussing the place of law reform. We’ll hear Paul’s views about inclusiveness, about technology, how to improve the juror experience, and his special area of interest juror welfare. What are the impacts of traumatic trials on jurors, and what can be done to help?
Paul Dore: So Mark tells a story of packing up his daughter to go walk her in the park, and the child, 5-6 -year-old saying ‘Dad why are you putting a knife in the back of your pants?’ And he was at a point where he wasn’t going out of the house to walk the dog without arming himself.
Nick: Welcome Paul.
Paul: Morning Nick.
Nick: The role of Juries Commissioner was established by the Juries Act 2000 and is responsible for the administration of juries in Victoria. So can you give us the big picture please, why does Victoria need a Juries Commissioner?
Paul: The Juries Act split three traditional functions of the Sheriff that operates in other jurisdictions into three distinct roles, so we have a Sheriff who does civil enforcement, we have a Juries Commissioner who administers the Juries Act, and we have a Director of Court Security. In every other jurisdiction, the sheriff is responsible for those three functions. So why does Victoria need a Juries Commissioner? Because it sets a role in legislation that is only focussed on juries.
Nick: So is Victoria the only state with a juries commissioner?
Paul: It is yeah. And there’s not many of them anywhere else in the world either.
Nick: OK, so that’s what the Act says. And what does the role involve day to day?
Paul: I start my day knowing that the state of Victoria is divided into 14 jury districts, Melbourne is one, the biggest, 13 other regional circuit jury districts. Ultimately I’m responsible for as I said the administration and operation of the system of trial by jury which simply means our main task, we’re a team of about 30 staff, half of them based in Melbourne half scattered across the state, is to get a group of people who are available and eligible to serve on a jury, into a courtroom every time a judge is about to start a trial by jury either in the Supreme or County Court, civil or criminal. Now what we do is, we assess the eligibility and the availability and whether somebody is disqualified from jury service. We send out notices of selection to over 300,000 citizens a year across the state, and we help courts get about 500 to 600 jury trials started and running.
Nick: Yeah so you mentioned the figure there of around 500 to 600 jury trials, in Victoria in a year, and I guess that’s actually quite a small proportion of the total number of trials, isn’t it? The vast majority of trials don’t involve a jury.
Paul: Exactly yeah, jury trials are only run when somebody is charged with an indictable offence and has to be heard in the Supreme or County Court. And I must say that when I throw the number 500 to 600 jury trials, that’s the number of juries that are empanelled, not necessarily the number of trials. Cos sometimes a trial will start and then for reasons outside anyone’s control they have to stop with that jury and restart, so there might be a second jury or a third jury. You know I’d say they’re probably in the 350 to 400 range.
Nick: OK, so let’s talk a bit about you, Paul.Can you tell us a little bit about how you reached this point? And as you have described yourself, a beer drinking, hockey loving Canadian, how did you wind up as Juries Commissioner of Victoria Australia?
Paul: Well I’ve got to correct the record on a couple of those thigs, first of all I prefer wine to beer these days, and I am an Australian citizen as well, but I moved to Australia in 1994, my wife – then fiancée – was Australian so we settled here, so that was it. And quite frankly I had to find a job. I was lucky that a few years earlier I had travelled around Australia, and met some really good people who worked at the youth justice centre in Parkville. So I touched base there, I had a, you know I was able to say that I’ve got a social work degree, and got a job in youth justice. And then made my way up through the youth justice world, and in 2007 took up the inaugural role of chief operating officer at the Supreme Court of Victoria, which was an amazing opportunity, and I was acting CEO of the Supreme Court for about 13 months, and it was great, and then the opportunity to take up the role of Juries Commissioner came about in 2012 and I was successful in obtaining that, and immediately got passionate about the work. And I’ve enjoyed it ever since.
Nick: It’s clear from the things that you’ve said and thIngs of yours that you’ve written that I’ve read that you’re really passionate about juries, what is it about being Juries Commisisoner that you really love?
Paul: I didn’t know much about juries. Like most people who come to do jury service my understanding of jury service was based on American TV and that’s not even based on American reality from what I understand, So you know I had all these misconceptions about juries. On day one I sat in the jury orientation. There was a pool, 200 or 300 people, I just sat in the back and listened to the orientation and information. I learned a lot from that, and made some changes, not that it was bad or otherwise but I just thought, ‘I don’t really understand half of what I was just told, I wonder how these people who don’t work in courts feel?’ And then I went up into the courtroom with the panel for the empanelment. And I gotta declare, I was stunned at what was presented to us. The judge’s staff member got up to arraign the accused, and read out the most horrific things that one human can do to another, and asked ‘How plead you?’ and it was ‘Not guilty’, and then, ‘Let’s go. We’re gonna hear excuses’ and I thought ‘Holy smoke, if that was me, I think I would have liked to have been a bit more prepared.’ And that just got me really thinking. It’s not a criticism of courts, it’s not a criticism of jury managers, it’s not a criticism of anybody. But everybody who goes into a courtroom is there for a reason, and jurors, but for having a summons, would never be in a courtroom. And I think they go in thinking they’re going to have the ‘Twelve Angry Men’ sort of experience from American TV or the scene from ‘The Simpsons’ where he’s talking about what ‘sequestered’ means and Homer’s just trying to work the system so he can get free food. I think people don’t realise how serious it is and how confronting it could be and I just thought ‘Wow. If we’re doing this to 25,000 people a year who show up for jury service…’ I just got very passionate about it.
Nick: Let’s talk a bit about who the people are, these 25,000 people who show up for jury service, about 5,000 or 6,000 of whom end up serving. There is a popular myth that juries tend to attract particular types of people: retired people, unemployed people, is there any truth in that? How does our system seek to ensure that juries are representative of the community?
Paul: Well the short answer to the first question is no. The myth is wrong. We did some research–I’m embarrassed to say it’s ten years old, but we know things haven’t changed at least in the composition. 24 per cent of people said that their highest education level was high school, and almost 40 per cent said it was university or post-grad. So we’re not getting students fresh out of VCE. 75 per cent of people were employed in the public service or the private sector. You’ve got to remember that in Victoria, your employer—if you attend for jury service whether you attend for a day, a week, a month or a year, and we have had trials that have gone nine months, your employer is obliged to make up your pay to that which you reasonably would have expected to be paid had you not been on jury service. So there’s no financial disadvantage to doing jury service, so we don’t have the unemployed lined up at the door looking for $40 bucks a day. We only pay $40 dollars a day for the first six days, and $80 dollars a day for every day after that. When we surveyed jurors, we surveyed everybody who attended over a six-month period across the state, so we had a good representation of people attending. Eight per cent of those people said they were self-funded retirees, and even a smaller number said they were either students, unemployed or Centrelink beneficiaries. Students can apply to be excused, if you’re a full-time student we say ‘We don’t want to mess around with your studies, if you can juggle your studies and your lectures, great, but you don’t have to.’ But that then takes me to whether we’re getting a representation of the community, because as you know people who are deaf or blind can’t serve on a jury. Certainly you have to speak English, you have to understand English well enough to do jury service. Now we do have a great part of our community who can’t communicate in English, and therefore are ineligible for jury service. So the answer to your second question ‘Are we getting a cross-section of the community’—probably not, but we’re not getting a small cohort of retirees, students and the unemployed.
Nick: Now one thing that you’ve been very concerned about in your career is the welfare of jurors. In 2013 Victoria conducted a survey called the Victorian Juror Satisfaction Survey asking the opinions of jurors about their experiences. Can you tell us what the key findings were of that survey?
Paul: Overwhelmingly people were satisfied with—enjoyed the experience. Said it was a positive experience and that they reported being satisfied with the treatment, the interactions they had with court staff and jury staff. Basically the research says that a person who goes through the whole process is more likely to understand it, appreciate it, maybe even respect it. So a person who is randomly selected, sits through the orientation, gets into a courtroom, gets selected, sits on a trial, for a couple of weeks, reaches a verdict, gets thanked by the judge, gets told about our juror support program, and gets on with their life—research says that generally people, they appreciate it. What people don’t like, and this came out in our survey, is two things: the waiting time, so oftentimes things move a little slower in courts and in jury world than you would expect, and the use of technology. Now this is 2013 so this is a bit old data, but the feedback was, come kicking and screaming please into the 21st century. But we’ve done a lot in that space.
Nick: Let’s talk a bit about law reform because as Juries Commissioner you’ve contributed to a number of inquiries that the VLRC has done around juries, for example in 2014 the report on Jury Empanelment. You made a submission as Juries Commissioner calling for peremptory challenges and the parade to be abolished, and you wrote in that submission: ‘I do not think we have to make the experience any more daunting than it necessarily has to be.’ And the VLRC did recommend reducing the number of challenges, and getting rid of the parade, and I think that’s happened now. Do you think there are other things that we could or should do to make the experience of jury service less daunting?
Paul: Yes, and when I heard you just quote me, I’m really glad I used the word ‘necessarily has to be’ because I understand that the court process is a very serious deal. The state are bringing charges against a citizen that could if found guilty alter that person’s life for a very long time. And equally a decision of the jury will impact everybody who’s in that trial. There are in my view some traditions in courts that are only for those who are participating in those traditions. So, things are changing, but you know, you just have to be on the corner or Lonsdale Street and William Street, people in robes and wigs and, you know, the Supreme Court building itself, the Chief Justice now and the Chief Justice before her both have acknowledged that that building, while it’s a beautiful heritage building, is not a great place to be holding modern trials. But go in it for a heritage tour, it’s beautiful. But it is intimidating beyond intimidating. Some of the processes, a lot of what I’m talking about is the expectations of the judges and the parties, that real formality, it’s necessary, but not really. I mean you look at what people are doing in the Koori Courts, you know they’ve really made it a community focus.
Nick: More recently you contributed to another VLRC inquiry to do with inclusive juries, access for people who are deaf, hard of hearing, blind or have low vision, and as we mentioned before, people in those groups, although the law doesn’t explicitly exclude them, in practice there are barriers that prevent them from being able to serve. Now that the report has been published I can ask you what your thoughts are about it and what outcomes are you hoping for?
Paul: I’m really pleased with it, because I’ve had a number of instances where I’ve had to tell people who are deaf or hard of hearing, ‘Sorry’, and they’ve referred it on to the Human Rights Commission and I’ve had to respond. And even in that report there was a submission by a man from Vic Deaf, he and I have had a lot of conversations about this, because he was advocating for one person who was deaf, and then 18 months later he got randomly selected himself. So, you know, it was great. I’m really pleased with it. I know there is additional cost and logistics around it, but the cheap option is not a good excuse to not go with it, so I’m really pleased with the report.
Nick: I’m speaking with Paul Dore, Victoria’s Juries Commissioner. I’d like to return now to the topic of juror welfare, which is a particular interest of yours. In 2018 you were the recipient of a Churchill Fellowship, which you used to go to Canada, the United States and the United Kingdom, to research juror support programs. Can you give me an overview of what your project was all about, and what motivated you to undertake it?
Paul: The motivation was, it was very early in my career as Juries Commissioner that I recognised that juror welfare, the juror experience more broadly, was important, and at times I thought not a priority. And the truth is it’s not a priority for a Juries Commissioner, but we just need to keep it in mind. Our priority is doing what the legislation tells us to do, which is –
Nick: You have to get the bodies in the room.
Paul: Yeah, and we got to do that in a way that nobody could ever accuse us of just running a sausage factory. We are sensitive to the reality that we are taking people out of their routine, into foreign places, putting them in strange places with rituals, and then asking them with eleven other strangers to make a very serious decision. All that being said, there is this aspect of welfare and, you know, ‘Do no harm’, please send somebody out no worse off than they came in. We do have to have systems in place that just do no harm. So that was the starting point, I knew there had been some thinking around this, I knew there had been some activity around this, particularly in my home country of Canada. The work they were doing came out of the advocacy of one man, named Mark Farrant, who was a juror in a trial in Ontario, it was a horrific trial, long story short is, Mark finished his jury service, had got feelings that he was not quite right, phoned the court and said I’m not quite right, they said, basically, ‘Can’t help you’, he was stunned to find that out, and before he knew it he was in the hands of a private counsellor, and diagnosed with some very serious post-traumatic stress syndrome.
Nick: Having been a juror on, was it a murder trial?
Paul: I think it was a murder trial but it was definitely a trial of significant violence. So Mark tells a story of packing up his daughter to go walk her in the park, and the child, 5-6 year old saying ‘Dad why are you putting a knife in the back of your pants?’ And he was at a point where he wasn’t going out of the house to walk the dog without arming himself. So Mark was great, he got in contact with some other jurors, some who served on the Paul Bernardo trial, they wrote what they called ‘Twelve angry letters’, so they wrote to the Attorney-General. And Mark’s advocacy got him into parliament, he was presenting before committees, the Just Committee they called it, the Justice and Human Rights Committee. And because I got an invitation to present to that Just Committee in Parliament, I then made contact with Mark and I started to form the idea that a juror support program would be good. There had been some research by Cheryl Thomas in the UK, I’d read that, and knew that she was looking into juries and juror welfare. And I knew from a colleague who previously had done a Churchill fellowship that there was this group in the United States, it was this network of court administrators based in Virginia so I knew I could go there and get some information. So it was never meant to be an academic piece of work, it was always going to be an experiential piece of work, and it expanded beyond the mental health welfare of people to be more broad, doing everything you can, before during and after a trial, and not just psychological support.
Nick: I think you wrote in your report that when you went and met some of these people, you met Mark Farrant and other people who were doing good work, but you also say, well you discovered that there was in some quarters, people were not even really aware of the need for juror support. Was that surprising to you?
Paul: It was surprising. There were so many ‘a-ha’ moments that I had, and people I was talking to, going ‘I never thought of that, yeah you’re right’ and I’d get that from them, as well. A good example is the Summonsing Office in the UK. What was interesting about that was, and this comes up in the VLRC’s report around deaf jurors, this reasonable adjustments stuff. They routinely have on their summons that says ‘If you think you need any support, any sort of reasonable adjustments, call us’ and they’ve got a reasonable adjustments officer that will call you, organise a visit to the court, show you round – so if you’re in a wheelchair or—and that’s a flag also for people to say, ‘Well look I might have pre-existing mental health issues’ or ‘I’m a victim of crime’—that kind of stuff, it’s a flag. So it’s not so much that people didn’t realise there’s a need, they just weren’t able to say, ‘Ah, that’s a little slice of support, that if we bundle it up’. And so what we’ve done the last 18 months or so around juror support is, we’ve got a model now where it is not just juror support but it’s ‘Prepare, Prevent, Respond’. And this is a model that people in healthcare or anywhere else would say ‘It’s a no-brainer’. You know we can do a lot of work that would just bring down the anxiety and uncertainty and just let people do their jobs.
Nick: I’d like to just drill down a little bit and quote you back at yourself again. We have said that most people have a very positive experience, when they serve on a jury, and we shouldn’t overstate the likeliness of trauma or people having a negative reaction, but it can happen. And you’ve said that juror support is not just about minimising the bad things but emphasising the positives, and in your report you said: ‘You can do one good thing like introduce a jury support program, but you can do a lot of other things around the edges of the juror experience that will contribute to a more positive, purposeful experience.’
Paul: And that’s what I was trying to eloquently say when you asked the last question is, one of the things that I don’t think courts do very well, they don’t recognise that nobody understands what’s going on except for the main actors in what’s going on. So the lawyers get it and the judge gets it. And the judge’s staff get it. The witnesses don’t. The victims don’t. And the jurors don’t.
Nick: Before we started recording you mentioned to me a conference that you’ve just attended at Monash University about the emerging challenges in sexual assault trials and some interesting things that emerged from that.
Paul: Well, that conference a couple of weeks ago, do you know who got the biggest reaction? The group, the ten-minute presentation that got the biggest reaction, the most questions, and quite honestly the most shaking of heads saying ‘it’s just not good enough’ were the architects. The architects who got up to talk about good design of buildings. And every victim got up and said ‘Well, go tell that to the Supreme Court on William Street. You know what I had to do when I was a victim? Sit in a little room and it was just daunting, terrible.’ So there are things we can do around the edges that have got nothing to do with the law. Jurors say this. ‘OK. I get it. I’ve gotta sit here and listen. I’ll do my best. Could you at least put me in a room with some natural lighting when I’m deliberating?’ So there’s just a lot we can do. And good examples of that design are, in recent order, the Bendigo law courts that just opened, and three or four years earlier the Shepparton law courts.
Nick: What is better about them?
Paul: Oh, they’re just open sp—Particularly in, look and this is not so much in jury spaces although they’re great jury spaces, but in family violence areas, in children’s court, in Koori courts, they’re just more welcoming, well designed, user experience sort of spaces.
Nick: I’m speaking with Paul Dore, Victoria’s Juries Commissioner.
I read a book by Jacqueline Horan ‘Juries in the 21st Century’, and it’s actually a few years old now, but she said that the jury system is both benefiting from technology but also struggling to keep up with it. And she refers to the example of jurors using Google to do their own research, or potentially going on Facebook, social media and committing contempt of court by talking about the trial. So what’s your take on all of that, the challenges posed by technology and social media?
Paul: I’ve gotta say Jacqui’s book is one of a few on my bookshelf, and I refer to it often, so it’s still very valuable. Well, it’s a major issue. Let me tell you how major it is. We have about half a dozen referrals to Victoria Police on the hop right now, for jurors who are suspected of doing their own research, some of them you’ve seen in the media. So it is serious, and it’s serious for this reason. Before Google, doing your own research took a little effort, so most people probably didn’t do it. And it’s all around jurors not understanding a bit of information, or wanting a bit more information, not understanding a bit of evidence or what was said in court, and just going ‘Oh that doesn’t really make sense to me, so I’m gonna go see if I can—’ Most of those people did it cos they thought they were helping.
Nick: People who did their own research.
Paul: Yeah. So they thought they were helping themselves and the court process and the rest of the jurors better understand. The issue is, from a court point of view, is that juries are directed to only consider that which is presented in court. And that which has had the opportunity to be contested. But Google now just makes it—I could say anything to you and if you don’t believe me you just Google it.
Nick: But who knows if that information I’m getting is reliable or not.
Paul: Well that’s the other bit. So there’s two issues. One is, let’s say you’re getting information that is reliable. The parties have the right to contest that information, right, so that’s why judges have already made the decision on what evidence is gonna be presented, and what won’t be allowed. For instance, judges will say, ‘You’re not allowed to bring any evidence about prior convictions, because that will prejudice the jury, and the jury could maybe think, just because Paul robbed the bank ten other times, and has done 20 years in jail for that, doesn’t mean he robbed the bank on the eleventh time, so he’s gotta have a fair trial on these’—But the other part is, of course, the information on the internet can be, and is often wildly false. So it is really important that courts get their heads around this, but the issue is this. That the genie’s out of the box, I mean there’s no way we’re gonna teach the jurors of the next generation—we’ve gotta explain to people why you can’t do it—
Nick: Is that something that the judges explain or do you have to explain it?
Paul: We explain it in general terms and the judges give directions around it, and in fact we’ve just developed a juror handbook that will help the jurors understand their obligations, they can refer to it after the judge has given their directions, and one of the things that it says is, for the rest of the trial, the judge says ‘I am your Google. You’ve got a question, ask me. I’ll let you know if I can answer it or not, some questions I can’t answer, but I’ll tell you the best I can.’ And look the worst example I have of the impact—there was a judge of the County Court, no longer there, but quite honestly was getting frustrated, angry, whatever with juries not listening to the directions around doing their own research, and he having to then discharge a jury and then continue on with a new jury. And the trial that pushed him over the edge, quite bluntly, was a six-week trial of historical sexual offending where the victim claimed, when asked ‘Why did it take you so long to go to the police?’ she said ‘Because I’m suffering from post-traumatic stress syndrome that has given me repressed memories, so I didn’t remember it until 20 years later.’ And that judge every day started the trial saying ‘Please don’t do our own research’, ended the day ‘Please don’t do your own research’, in fact gave them little cue cards ‘Don’t do your own research’. After six weeks of trial, of evidence, on a Thursday at about noon, the judge said ‘That’s all the evidence, that’s all my directions, let’s all take the afternoon off, come back tomorrow and start your deliberations.’ And when they came back, the jury, one juror came back with reams of information, paper, printed off the internet on every theory known to humankind about post-traumatic stress syndrome and repressed memories. And when that person walked into the deliberation room where there were already four or five jurors waiting for the day to start and said ‘Look what I’ve got’ they fell off the chair and said, ‘What are you doing? The judge told us not to—’ Again, the person thought they were doing the right thing, ‘I thought this would help us deliberate’. The judge had to discharge that jury and start all over again. Because, in the judge’s estimation, the accused is no longer going to get a fair trial. There’s a whole bunch of stuff, true, untrue, wildly false, that has now been introduced into the deliberation room, so, you know. And that judge said, he did some math, about a million dollars in taxpayers’ money for a six-week trial. It costs something like $25,000 or $35,000 dollars a day to run a criminal trial in the County Court. But forget the money, everybody had to go through it again. The judge—a judge, not him!—the staff, the witnesses, the complainant and the accused, who might have been not guilty.
Nick: We’ve been talking about juries as they are today, but the jury as an institution is centuries of years old, goes back as far as the Magna Carta according to some historians, although of course the jury has evolved since then, but fundamentally we have this same concept of twelve citizens deciding the facts of the case. Now Paul you’re someone who firmly believes in the value of juries. Can you sum up, in your view what are the strengths of juries that we must make sure we hold on to?
Paul: Yeah I think the greatest strength—there’s probably three interwoven strengths around this. One is, that juries bring the community into the courtroom. So by bringing the community in we bring community standards, expectations, values in and they’re part of that decision making process. Second, you mentioned 12. We often get people saying, ‘I don’t want to be on a jury, because I don’t want to be that person to make that decision.’ And we say to them, ‘Don’t worry about it. You’re one of twelve. It’s got to be a unanimous decision.’ And then the third thing is, that group decision making, I think gets to the truth quicker or more reliably than one person making a decision, no matter how smart that person is. If you ask judges, that’s the answer. The answer I just gave you is almost word for word what the chief judge, Peter Kidd would say, and has said.
Nick: That’s all we’ve got time for, but thank you very much Paul Dore, Victoria’s Juries Commissioner, for taking the time to speak with us today.
Paul: Thank you Nick.
Nick: And you can join us again next time for more ‘Old Law, New Law’.