Contempt of Court: Consultation Paper (html)

5. Juror contempt


5.1 This chapter considers what the terms of reference describe as ‘juror contempt’.

5.2 As noted in Chapter 2, ‘juror contempt’ is not a discrete area of the law of contempt of court. Rather, juror contempt encompasses contempt in the face of the court by jurors, for example by refusing to answer questions or to be sworn or make an affirmation, as well as other conduct by jurors which may also constitute a breach of the Juries Act 2000 (Vic). At common law, contempt by jurors can also be characterised as a manifestation of contempt by breach of duty by a person officially connected with court proceedings.[1]

5.3 This chapter therefore describes the different manifestations of common law juror contempt as well as the statutory provisions regulating juries. It describes the use of jury trials in Victoria, identifies some of the current issues with the laws regulating jurors and identifies a number of reform options. A number of questions are then posed for consideration.

5.4 The chapter begins by noting the importance of Victoria’s jury trial system.

The importance of trial by jury

5.5 A jury is a group of citizens randomly selected from the Victorian electoral roll to determine questions of fact and apply the law to those facts to reach a verdict in criminal and civil trials.[2]

5.6 Trial by jury helps to ensure that an accused person receives a fair trial according to law and that members of the community are directly involved in the judicial process.[3] Jury trials help to safeguard the rights of the accused by limiting the power of the state, and to ensure that justice is administered in accordance with community standards.[4]

5.7 Juries therefore play a critical role in the administration of justice in Victoria, particularly in the criminal justice system. Jurors take an oath or affirmation to faithfully and impartially try the issues before them and give a true verdict according to the evidence put before them in court.[5]

Jury trials in Victoria

5.8 Juries may be used in criminal cases to try parties accused of indictable offences and to help determine an accused person’s fitness to stand trial.[6] Juries may also be used in certain civil proceedings.[7] Generally, criminal trials have 12 jurors and civil trials have six jurors.[8]

5.9 Jury trials are held in the Supreme Court of Victoria and County Court of Victoria.[9]

5.10 In 2016–17, 30 criminal jury trials were conducted in the Supreme Court and 371 criminal jury trials in the County Court of Victoria.[10] During the same period, 50 civil jury trials were conducted in the Supreme Court of Victoria and 60 civil jury trials in the County Court of Victoria.[11]

The regulation of juror conduct

5.11 The Victorian jury system is maintained and protected by statute, the law of contempt of court and other common law offences.[12]

5.12 The fundamental purpose of these laws is to preserve the integrity of the trial process by ensuring on the one hand that jury members are not interfered with, and on the other that jurors make decisions based solely on the evidence put before them in court. A suite of laws have developed to ensure that jurors are ‘shielded’ or ‘quarantined’ from extraneous information.

5.13 These laws address a range of behaviours relating to juries, which can be broadly classified as either misbehaviour by jurors or interference with jurors.

5.14 Significantly, particular conduct can at the same time constitute both a statutory and a common law offence, including contempt of court. The Juries Act expressly provides, however, that the courts cannot punish a person more than once for the same act or omission.[13]

The Juries Act 2000 (Vic) and the Jury Directions Act 2015 (Vic)

5.15 The two main statutes which regulate juries in Victoria are:

• the Juries Act which regulates the system of trial by jury

• the Jury Directions Act which regulates the instructions, known as ‘directions’, given to juries during trials.

5.16 Under the Juries Act it is an offence for a juror to, among other things:

• fail to answer questions, fail to produce a document or to give an answer that is false or misleading[14]

• fail to inform the Juries Commissioner of their disqualification or ineligibility for service[15]

• supply false or misleading information[16]

• fail to attend for jury service[17]

• refuse to be sworn or make an affirmation[18]

• make enquiries about trial matters.[19]

5.17 In addition, the Juries Act provides that it is an offence for a member of a jury to disclose their deliberations.[20]

5.18 Significantly, the Juries Act preserves the power of a court to deal with a contempt of court summarily of its own motion.[21] However, the Juries Act also protects against double jeopardy by providing that if an act or omission constitutes any two or more of the following:

• an offence against the Juries Act

• an offence against the common law or

• conduct that the court can deal with summarily under Division 2 of the Juries Act or

• a contempt of the court

the offender is liable to be prosecuted or dealt with in any or all of the applicable ways but is not liable to be punished more than once for the same act or omission.[22]

5.19 In contrast with the Juries Act, the Jury Directions Act does not contain any offence provisions. Instead, the purpose of this Act is to regulate the instructions given to juries during trials.

5.20 As recommended by the Commission in its report on jury directions,[23] the Jury Directions Act includes guiding principles which note that Parliament recognises that, among other things:

• The law of jury directions in criminal trials has become increasingly complex in recent decades.

• This development

– has made jury directions increasingly complex, technical and lengthy

– has made it increasingly difficult for trial judges to comply with the law of jury directions and avoid errors of law, and

– has made it increasingly difficult for jurors to understand and apply jury directions.

• Research indicates that jurors find complex, technical and lengthy jury directions difficult to follow.[24]

5.21 The guiding principles also expressly provide that the Parliament intends that a trial judge, in giving directions to a jury in a criminal trial, should

• give directions on only so much of the law as the jury needs to know to determine the issues in the trial

• avoid using technical legal language wherever possible

• be as clear, brief, simple and comprehensible as possible.[25]

Forms of contempt by jurors

5.22 There have been few Victorian cases involving contempt by jurors. Jurors who have attended jury service while intoxicated have been found in contempt.[26] However, a jury foreman who sent a letter to a judge in the County Court of Victoria in 2017 discussing trial matters and suggesting the judge could privately respond was not considered to be in contempt, although the judge would have referred the matter to the DPP for consideration of contempt if the letter had had a ‘nefarious purpose’.[27] Similarly, a juror was held not to be in contempt for procuring signatures from other jurors on a petition to the Attorney-General which described jury deliberations after a trial, but would have been if the communications contained ‘deliberate misstatements or threats, or otherwise displayed an intention to defeat the due course of justice’.[28]

5.23 However, the Supreme Court of South Australia found two jurors in a criminal case guilty of contempt in 2016 after they contravened the trial judge’s direction by researching trial matters online and discussing the information they found with other jurors.[29] In contrast, the New South Wales Court of Criminal Appeal made no finding of contempt in 2004 after two jurors visited a park relevant to the case during jury deliberations, but mentioned contempt ‘to indicate, for the information of jurors in other trials, the potential seriousness with which the law views this type of misconduct’.[30]

Jurors accessing information

5.24 Jurors take an oath to ‘faithfully and impartially’ try the issues before them and to ‘give a true verdict according to the evidence’ presented in the trial which has been found to be admissible.[31] There is nevertheless a risk that jurors may independently access information about trials and may make decisions based on information that was not presented and tested in court. As a consequence, there remains a risk that an accused person may not receive a fair trial.

5.25 The internet has exacerbated existing difficulties with preventing juror research and exposure to prejudicial, and potentially inaccurate, material. Jurors can readily search for information about cases, and courts can struggle to shield jurors from material that is now so easy to access and share. Jurors may seek information about trials, or be unwittingly exposed to prejudicial material. This section focuses on jurors who actively seek information about trials.

5.26 Examples of jurors conducting research during trials in Victoria include jurors downloading material about the meaning of ‘beyond reasonable doubt’,[32] downloading and printing descriptions of words from Wikipedia and,[33] and using the Concise Oxford Dictionary to look up a word mentioned at trial.[34]

5.27 Except for the reported decisions, there is limited information about the number of Victorian cases in which jurors have conducted research.[35]

5.28 However, the Victorian Court of Appeal observed in 2008:

In recent years, there have been occasions when jurors have engaged in inappropriate conduct with the potential to compromise a trial. Internet searches relating to information that is both inadmissible at trial, and prejudicial to the accused, may necessitate a discharge of the jury or, failing that, on appeal an order for a new trial. In general, these cases have

involved internet searches of a kind that bear specifically upon the evidence in the trial, and the particular circumstances and history of the accused.[36]

5.29 To address this issue a new section, section 78A, was inserted into the Juries Act in 2008. In introducing this amendment, the then Attorney-General for Victoria, the Hon. Mr Rob Hulls MP stated:

In light of advances in technology, there are ever-increasing opportunities for jurors to undertake research relating to trial participants and events. A number of appeals in New South Wales have emphasised the damage caused by undirected juror investigations, not only to the viability of public prosecutions, but also to the peace of mind of victims of crime. Such investigations can lead to jurors accessing potentially irrelevant and prejudicial material, which will affect the result of the trial. The bill prohibits jurors from undertaking investigations to ensure that a jury’s decision is based solely on the evidence heard and seen in court.[37]

5.30 Section 78A of the Juries Act provides that a juror in a trial, or panel member for a trial, must not make an enquiry for the purpose of obtaining information about a party to the trial or any matter relevant to the trial, except in the proper exercise of their functions as a juror.[38] Making an enquiry includes:

• consulting with another person

• conducting any research by any means, such as using the internet to search an electronic database for information

• viewing or inspecting a place or object that is relevant to the trial

• conducting an experiment

• requesting another person to make an enquiry.[39]

5.31 The penalty for this offence is 120 penalty units.[40]

Jurors disclosing information

5.32 Like jurors seeking extraneous information about a trial, jurors disclosing information about deliberations to people outside of the jury is not a new concern. However, the internet, social media networks and modern technologies such as the smartphone expand the reach and impact of juror communications. A juror’s Facebook post about a high-profile trial, for instance, could be communicated to the juror’s Facebook friends, sent by the juror’s friends to other people or seen by other people if the Facebook page is public, then screenshotted, reported in the media and communicated to larger audiences through a variety of media. In 2016, defence lawyers sought a mistrial in the Supreme Court of Queensland after a juror deliberating in a high-profile murder case made several Instagram posts about her role as a juror.[41]

5.33 It is unclear whether disclosure by jurors of deliberations after a trial in Victoria constitutes contempt of court, although the courts have expressed disapproval of such actions.[42]

5.34 Under the Juries Act, a juror, or former juror, cannot disclose statements made, opinions expressed, arguments advanced or votes cast in jury deliberations if they have reason to believe the information will, or is likely to, be published to the public. The penalty for this offence is 600 penalty units or imprisonment for five years.[43] Disclosure offences are indictable.[44] Statutory exceptions allow jurors to disclose information to certain people and for specific purposes.[45]

Possible reforms to contempt by jurors

Amendments to the Juries Act 2000 (Vic)

5.35 Currently, juror behaviour is regulated under the Juries Act and the common law, including the law of contempt. The Juries Act preserves the court’s common law powers to deal with a contempt of court summarily of its own motion.[46]

5.36 There are important questions about statutory and common law powers that regulate jurors:

• Do existing provisions under the Juries Act adequately address problematic juror behaviour?

• What amendments, if any, to the Juries Act are required?

• Should the common law of contempt continue to apply to jurors, given the few cases involving contempt by jurors and provisions under the Juries Act that regulate juror behaviour?

• If the common law of contempt should continue to apply to jurors, should behaviour that constitutes a common law contempt by jurors be replaced by statutory provisions in the Juries Act 2000 (Vic), or another statute?

Education of jurors

5.37 Potential jurors are given information about jury duties when they are in the jury pool.[47] There is also publicly available information about the role of juries and provisions that regulate juror behaviour.[48]

5.38 In 2017, the New Zealand Law Commission (NZ Commission) recommended a review of educational information provided to people called for jury service and jurors to ensure it provided adequate guidance on the problems, risks and consequences if jurors undertake their own research.[49] The Commission commented that jurors should be told why doing their own research poses a risk to fair trials.[50] It also recommended that jurors and potential jurors be educated about why there are restrictions on disclosing deliberations and the consequences of breaching these restrictions, with an increased focus on the impropriety of jurors posting information online.[51]

5.39 The Law Commission of England and Wales recommended that the Department of Education look at ways to encourage schools to teach children about the role and importance of jury service.[52] It considered that jurors are more likely to comply with their obligations if they understand why the obligations are important.[53]

5.40 A possible reform may be a review of the information and material currently provided to potential jurors during the selection and empanelment process. If necessary, these materials could be redeveloped to include, for instance, an explanation of why prohibitions on juror research and disclosure of deliberations are critical to fair trials, and potential consequences of breaching these prohibitions.[54]

The juror oath

5.41 In Victoria, jurors take an oath or affirmation to ‘faithfully and impartially’ try the issues before them and to ‘give a true verdict according to the evidence’.[55] Possible amendments to the juror oath to address concerns about juror research and disclosure of deliberations have been considered in other jurisdictions.

5.42 The Law Commission of England and Wales recommended in 2013 that the oath be amended to include an agreement to base the verdict only on the evidence presented in court and not to seek or disclose information about the case.[56] It also recommended that jurors sign a written declaration acknowledging that they have been warned not to conduct trial-related research.[57]

5.43 In 2017, the NZ Commission noted that its oath and affirmation implicitly required jurors not to privately obtain or use extraneous material before or during the trial in order to reach a verdict, but that jurors may not always understand that implicit requirement.[58] Like the Law Commission of England and Wales, the NZ Commission recommended the oath and affirmation be amended so that jurors explicitly agree to base their verdict solely on the evidence presented in court and not to undertake research, to ensure that jurors specifically turn their minds to this issue.[59] The Law Commission did not, however, recommend that the oath and affirmation include a promise by jurors not to disclose information, citing concerns that this would make the oath and affirmation ‘overly long’.[60]

5.44 A possible reform may be amendments to the current wording of the oath and affirmation under the Juries Act to specify that jurors have a duty not to independently conduct trial-related research or disclose information about deliberations.

Jury directions

5.45 Jurors are given directions by the trial judge throughout the trial.

5.46 Courts today generally assume that juries can follow judicial directions and make decisions based only on the evidence presented in court, even if they have been exposed to irrelevant or prejudicial material.[61] However, some judicial officers have questioned this assumption.[62]

5.47 The extent to which jury directions can prevent juror misconduct or cure prejudice where misconduct has occurred, and whether existing directions are adequate for this purpose, are key questions in this reference.

5.48 Judicial officers have suggested the need for more precise jury directions in cases where jurors’ understanding of directions has been questioned. For instance, in Martin v R, the Court of Appeal found that judicial officers would be wise to instruct juries that the prohibition in section 78A(1) of the Juries Act extends to searching legal dictionaries or texts ‘in an attempt to elaborate the meaning of [beyond reasonable doubt]’.[63]

5.49 The NZ Commission recommended that jurors be reminded about prohibitions on conducting research and investigations throughout a trial, given jurors must process a lot of new information at the outset of a trial.[64] It also encouraged judicial officers to consider the desirability of giving juries comprehensive directions about asking questions, in order to dissuade jurors from conducting their own enquiries and to reinforce that it is preferable to raise questions with the judge.[65]


20 Does the Juries Act 2000 (Vic) adequately regulate the conduct of jurors and potential jurors? If not, what amendments to the Juries Act 2000 (Vic) should be made?

21 To the extent courts have the power to deal with juror contempt at common law, is there a need to retain this power?

22 If the law of juror contempt is to be retained, should the common law be replaced by statutory provisions? If so:

(a) How should it be defined?

(b) What fault elements, if any, should be required?

(c) Should conduct already covered by other statutory offence provisions be excluded?


23 Do current jury directions adequately instruct juries about determining cases only on the evidence, prohibitions on research and disclosure and asking questions of the trial judge? If not, what reforms are required?

24 How well are jurors and potential jurors currently educated about their functions and duties during the selection and empanelment process? How should they be educated about, and assisted in performing, their functions and duties?

5.50 The Law Commission of England and Wales said jurors needed to understand they are permitted to ask questions about the evidence heard in court, and should be empowered to do so.[66] Jurors who are deterred from asking questions may be tempted to undertake research themselves.[67] It recommended a direction to juries that would reflect the ‘correct balance between being too explicit in seeking questions from jurors, which could lead to judges being inundated and time wasted with unanswerable or irrelevant questions, and deterring jurors from asking proper and pertinent questions’.[68]

5.51 Currently, the Judicial College of Victoria publishes bench notes and sample directions that guide judicial officers in instructing juries about determining cases on the evidence and prohibitions on juror research and disclosure of deliberations. These include directing jurors to avoid online research and posting on social media about the case, explaining why these actions are problematic and describing the consequences of breaching the prohibitions.[69] The College also provides some guidance on directing juries about asking questions of the judge.[70]

5.52 The Commission may consider proposed reforms to the content and delivery of jury directions to adequately inform jurors about their functions and duties. Such reforms could be proposed statutory amendments or non-statutory reforms.

  1. LexisNexis, Halsbury’s Laws of Australia (online at 25 September 2018) 105 Contempt, ‘2 Criminal Contempt’ [105–70]. See (E) ‘Breach of Duty by Persons Officially Connected with Court Proceedings’, in particular [105–170].

  2. For an overview of the purposes, availability and laws of jury trials in Victoria, see Victorian Law Reform Commission, Jury Empanelment (Report No 27, May 2014) 8–17.

  3. See, eg, Alqudsi v R (2016) 258 CLR 203, 208 [2] (French CJ).

  4. Victorian Law Reform Commission, Jury Empanelment (Report No 27, May 2014) 8 (citations omitted).

  5. Juries Act 2000 (Vic) s 42, sch 3.

  6. Juries Act 2000 (Vic) s 3 (definition of ‘criminal trial’); Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) ss 7(3), 11(2)–(6), 12, 16–18.

  7. Juries Act 2000 (Vic) s 3 (definition of ‘civil trial’).

  8. Juries Act 2000 (Vic) ss 22–3.

  9. See Juries Act 2000 (Vic) s 3 (definition of ‘court’).

  10. Supreme Court of Victoria, Annual Report 2016–17 (2017) 55. As at the time of writing, the Supreme Court of Victoria’s annual report for 2017–18 had not been tabled in Parliament.

  11. Ibid.

  12. Dupas v R (2010) 241 CLR 237, 244 [16]. Common law offences include perversion of the course of justice and embracery.

  13. Juries Act 2000 (Vic) s 86.

  14. Ibid s 68.

  15. Ibid s 69.

  16. Ibid s 70.

  17. Ibid ss 71 and 72.

  18. Ibid s 73.

  19. Ibid s 78A.

  20. Ibid s 78.

  21. Ibid s 84.

  22. Ibid s 86.

  23. Victoria Law Reform Commission, Jury Directions, Final Report (2009) 8, 13 and Recommendations 4 and 5.

  24. Jury Directions Act 2015 (Vic) s 5(1).

  25. Ibid s 5(4).

  26. R v Allen (1886) 12 VLR 341; R v Tomlinson (Supreme Court of Victoria, Beach J, 16 January 1996).

  27. In the matter of IH, a juror [2017] VCC 2042 [25].

  28. Re Mann; Re King; Ex parte A-G (Vic) [1911] VLR 171, 171.

  29. Registrar of Supreme Court of South Australia v S [2016] SASC 93.

  30. R v Skaf (2004) 60 NSWLR 86, 97 [239].

  31. Juries Act 2000 (Vic) s 42, sch 3.

  32. Martin v R (2010) 28 VR 579, 579–80 [2]–[3], [57]–[58] (Ashley JA).

  33. Benbrika v R (2010) 29 VR 593, 640 [194].

  34. Benbrika v R (2010) 29 VR 593, 646 [226]–[228] (citations omitted); R v Benbrika (Rulings No 35.01–35.11) [2009] VSC 142 [118].

  35. Data provided to the Commission by the County Court of Victoria indicates that in 2017 a jury was discharged because of juror investigations, and that in both 2016 and 2018 a jury was discharged because the jury saw inappropriate material.

  36. Benbrika v R (2010) 29 VR 593, 644 [214]. However Maxwell P, Nettle and Weinberg JJA also stated that the case was not one where the internet searches bore specifically on the evidence in the trial, or the history and circumstances of the accused.

  37. Victoria, Parliamentary Debates, Legislative Assembly, 29 May 2008, 2064 (Rob Hulls, Attorney-General).

  38. Juries Act 2000 (Vic) s 78A.

  39. Ibid s 78A(5).

  40. Ibid s 78A(1).

  41. Alexandra Blucher, ‘Gable Tostee Juror’s Instagram Posts a Sign Jury Act Must Roll with the Times, Legal Experts Say’, ABC News (Web Page, 21 October 2016) <>.

  42. See, eg, Re Matthews & Ford [1973] VR 199, 212–13; R v Gallagher [1986] VR 219, 249. A juror would have been in contempt if a petition with jurors’ signatures sent to the Attorney-General and describing deliberations included ‘deliberate misstatements or threats, or otherwise displayed an intention to defeat the due course of justice’: Re Mann; Re King; Ex parte A-G (Vic) [1911] VLR 171.

  43. Juries Act 2000 (Vic) s 78(2).

  44. Ibid s 78(10).

  45. Ibid ss 78(3), (5), (7) (12).

  46. Ibid s 84.

  47. Victorian Law Reform Commission, Jury Empanelment (Report No 27, May 2014) 15 [2.46] .

  48. See, eg, Juries Commissioner’s Office Victoria, Supreme Court of Victoria, Juror’s Handbook (2012); Court Services Victoria, ‘During Trial’, Jury Service (Web Page, 27 April 2016) <>; W Benjamin Lindner, ‘Juries’, The Law Handbook (Web Page, 30 June 2017) <>.

  49. Law Commission (New Zealand), Reforming the Law of Contempt of Court: A Modern Statute (Report No 140, 2017) 10, 76 [4.32].

  50. Ibid 76 [4.32].

  51. Ibid 11, 85–6 [4.88].

  52. Law Commission (England and Wales), Contempt of Court (1): Juror Misconduct and Internet Publications (Report No 340, 2013) 111–2 [5.12]–[5.16].

  53. Ibid 111 [5.15].

  54. See, eg, Ministry of Justice (UK), ‘Your Legal Responsibilities as a Juror’ (information sheet, March 2018).

  55. Juries Act 2000 (Vic) s 42, sch 3.

  56. Law Commission (England and Wales), Contempt of Court (1): Juror Misconduct and Internet Publications (Report No 340, 2013) 116 [5.35].

  57. Ibid 115–16 [5.31]–[5.32].

  58. Law Commission (New Zealand), Reforming the Law of Contempt of Court: A Modern Statute (Report No 140, 2017) 78 [4.41]–[4.42].

  59. Ibid 10, 78 [4.45].

  60. Ibid 86 [4.89].

  61. See, eg, R v Glennon (1992) 173 CLR 592, 603 (Mason CJ and Toohey J); General Television Corporation Pty Ltd v DPP (2008) 19 VR 68, 84 [54]; Yuill v R (1993) 69 A Crim R 450, 453–4; John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR 344, 366 [103] (Spigelman CJ, Handley JA, Campbell AJA agreeing).

  62. See, eg, R v Dupas (No 2) (2005) 12 VR 601, 627 [81] (Nettle JA) citing R v Glennon (1992) 173 CLR 592, 614–5 (Brennan J); Gilbert v R (2000) 201 CLR 414, 425 [31] (McHugh J); R v Rich (Ruling No 7) [2008] VSC 437 [14] (Lasry J).

  63. Martin v R (2010) 28 VR 579, 587 [92] (Ashley JA, Buchanan and Redlich JJA agreeing). See also MJR v R (2011) 33 VR 306, 319 [74] (Ashley JA), [75] (Weinberg JA), [76] (Harper JA).

  64. Law Commission, Reforming the Law of Contempt of Court: A Modern Statute, Report No 140 (2017) 79 [4.50], [4.52].

  65. Ibid 80 [4.57].

  66. Law Commission (England and Wales), Contempt of Court (1): Juror Misconduct and Internet Publications (Report No 340, 2013) 117 [5.39].

  67. Ibid.

  68. Ibid 117 [5.41].

  69. Judicial College of Victoria, ‘1.5.1 – Bench Notes: Decide Solely on the Evidence’, Victorian Criminal Charge Book (Web Page, 21 October 2013) <>; Judicial College of Victoria, ‘1.5.2 – Charge: Decide Solely on the Evidence’, Victorian Criminal Charge Book (Web Page, 15 November 2018) <>.

  70. See Judicial College of Victoria, ‘1.4.2—Charge: The Role of Judge and Jury’, Victorian Criminal Charge Book (Web Page, 19 December 2006) <>.

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