Inclusive Juries—Access for People who are Deaf, Hard of Hearing, Blind or Have Low Vision: Consultation Paper (html)

3. Inclusive juries—current law in Victoria

3.1 In this chapter we consider the role of the jury in Victoria, the number of jury trials and the jury selection process. This chapter examines the current law, which in practice has the effect of excluding people in the subject groups from serving as jurors. We also examine peremptory challenges and stand asides that occur late in the selection process. This provides the background to the consideration of how the system can be reformed to accommodate people in the subject groups serving on juries.

Jury trials in Victoria

The role of the jury

3.2 The role of a jury in both criminal and civil trials is to determine questions of fact, and to apply the law as stated by the judge, to those facts to reach a verdict.[1] The judge’s role is to ‘determine a question of law, such as what evidence can be presented in court’.[2]

3.3 The Commission identified the important purposes of jury trials in its 2014 report,

Jury Empanelment:[3]

• Safeguarding the rights of the accused by limiting the power of the state.

• Ensuring justice is administered in line with the community’s standards, rather than just those of judges, who may not be considered representative of the broader community.[4]

• Enabling the community to participate directly in the administration of justice, thereby increasing acceptance of trial outcomes, as well as confidence in the legal system more generally.[5]

The number of jury trials

3.4 In Victoria, jury trials operate for every Supreme and County Court criminal trial and for some civil cases.[6] In both 2018 and 2019 there were 599 jury trials,[7] the majority in the County Court. In 2019 the County Court heard 470 criminal and 56 civil jury trials whereas the Supreme Court heard 45 criminal and 28 civil jury trials.[8] Regional circuit courts heard 136 jury trials in 2019.[9] The number of trials in regional jury districts varies depending on the location. For example, in 2019 the number ranged from 3 jury trials at Horsham to 33 at Ballarat.[10]

How is a jury selected?

3.5 In Victoria the jury selection process is regulated by the Juries Act 2000 (Vic).[11] The Juries Commissioner is responsible for jury administration through Juries Victoria.[12]

3.6 Twelve jurors are generally selected for criminal trials and six jurors for civil trials.[13]

3.7 A person summoned to attend for jury service is not automatically included in a jury. There are five key stages in the jury selection process (see the diagram on page 20)

Figure 1: Jury selection and empanelment process

3.8 It is difficult to predict if a prospective juror will actually serve on a jury. The outcomes of some of the steps in the selection process are determined by random selection or ballot. Others depend on the outcome of challenges made by the parties. The challenge is how to ensure that supports can assist a juror through the empanelment process and remain at the ready to assist them as a juror in a trial if they are selected. Given the small number of people in the subject groups compared to the entire community, it is likely that only a small number of people from these groups will be summoned to serve on a jury and even fewer will ultimately be selected. The system must be flexible enough to respond to the few people who may need supports to serve. These challenges are not insurmountable, and we are keen to hear community ideas about possible solutions (see Chapters 7 and 8).

1 Random selection from the electoral roll

3.9 At the request of the Juries Commissioner, the Victorian Electoral Commission randomly selects the required number of people from each jury district.[14] This becomes the jury roll for that district until a new one is prepared.[15]

3.10 Victoria has 14 jury districts, one in Melbourne and a jury district for each circuit town.[16] The jury districts are Bairnsdale, Ballarat, Bendigo, Geelong, Hamilton, Horsham, Latrobe Valley, Melbourne, Mildura, Sale, Shepparton, Wangaratta, Warrnambool and Wodonga.[17]

2 Determination of liability for jury service

3.11 Juries Victoria sends out a questionnaire (jury eligibility form) to all people on the jury roll, or as many people as the Juries Commissioner deems appropriate.[18] Answers to the questionnaire assist Juries Victoria to determine who is liable and qualified to serve.[19] There are three types of exceptions to eligibility for jury service: ‘those ineligible to serve, those excused from service and those disqualified from serving’.[20]

3.12 Categories of people who are ineligible to serve include lawyers, public servants and those involved in the administration of justice.[21] Others are disqualified (usually for a limited period) if they have been convicted of specified serious offences or are on bail/remand or undischarged bankrupts.[22] Being excused from service means that a person has a reason for being unable to attend or to sit on a jury for a particular case.

3.13 It is at this first stage that people in the subject groups usually seek to be excused by Juries Victoria.

3 Summons

3.14 When Juries Victoria is notified that a trial is imminent, it issues a summons to prospective jurors on the list of those eligible to serve. [23] Juries Victoria also provides information about eligibility, deferral and excuse categories.[24]

3.15 When a person receives a summons they can again apply to be excused from jury service.[25] The Act gives the Juries Commissioner the power to excuse someone if there is a ‘good reason’ for doing so. Good reasons listed in the Act include illness or poor health, substantial hardship to the person and advanced age.[26]

3.16 The Juries Commissioner may also permanently excuse a person for reasons including:

• continuing poor health

• disability

• advanced age.[27]

4 The jury pool

3.17 Prospective jurors are required to attend court and become part of the ‘jury pool’. The jury pool is then reduced to a smaller group called the ‘panel’ from which the jury will ultimately be selected.

3.18 The size of each day’s jury pool is determined the day before, based on information received from court staff about prospective empanelments.[28]

3.19 In Melbourne, the jury pool assembles in the County Court building and is available for any number of Supreme and County Court trials beginning on a given day. The jury pool is given an orientation program by Juries Victoria explaining the role of a juror and the selection process. The jury pool supervisor provides information about the expected length of the trial and the rate of pay, and reiterates the grounds for excuse.[29] This is another opportunity for people to seek to be excused, for example if a person is unavailable to serve on a trial because of its length.[30] This process helps to minimise the number of excuse applications heard in court.[31]

3.20 The Act provides the court with various powers to excuse a prospective juror on its own motion or on application from the Juries Commissioner if there are good reasons, if it is just and reasonable to do so or if a person may not be able to perform the duties of a juror.[32]


3.21 The old Supreme Court building has poor accessibility. Where a Supreme Court empanelment is beginning and a person in the pool uses a wheelchair, the Juries Commissioner approaches the person and encourages them not to go into the ballot for the Supreme Court trial. The person would be balloted in the County Court instead. The Commission understands that this has occurred approximately 25 times over the past two years. Each time the person has opted out of the Supreme Court ballot.[33]

5 Selection from the jury panel

3.22 Once all people who have been excused by the Juries Commissioner’s Office from the pool leave the jury pool room, ballot cards are generated from the pool list for each prospective juror and are placed in the ballot box.[34] Jurors are randomly selected from that ballot box to form a panel. The average panel size for civil trials in 2019 was 24.6 in the County Court and 25.8 in the Supreme Court, and the average panel size for criminal trials was 33.5 in the County Court and 42.2 in the Supreme Court.[35] In 2019 the average jury panel overall was 31.2 people in Melbourne and 40.3 in regional Victoria.[36]

3.23 The jury panel is then taken to the court room where the trial will be held. The judge informs the panel about the type of charge, the names of the accused and witnesses, and the length of the trial.[37] The court calls on prospective jurors who seek to be excused by the trial judge.[38] The judge may excuse a person from service if satisfied that the person will be unable to consider the case impartially or is unable to serve for any other reason.[39] A person who is excused must return to the jury pool and may be selected or allocated to a different jury panel.[40]

Criminal trial

3.24 In criminal trials the accused is brought before the court and the jury panel to be formally charged with offences (a process known as ‘arraignment’). Charges are read out and the accused pleads to each charge.[41]

3.25 Once a panel of prospective jurors has been allocated to a trial the parties are able to challenge prospective jurors to exclude them from the jury. These are called ‘peremptory challenges’ and the Crown right to stand jurors aside in criminal trials (‘stand asides’) and are discussed further below.[42] Prospective jurors who are not challenged proceed to the jury box. When the required number of jurors (usually 12) are in the jury box, they are sworn or affirmed as the jury.[43]

Civil trial

3.26 In civil trials 12 ballot cards are drawn from the box. The parties strike names off the list according to their respective challenges. This is done in writing. The names of the remaining jurors (usually six) are then called out and sworn or affirmed.[44]

Can people who are deaf, hard or hearing, blind or who have low vision serve on juries in Victoria?


3.27 The Act does not specifically exclude people who are deaf, hard of hearing, blind or who have low vision from serving as jurors in Victoria. Following the 1996 Parliamentary Law Reform Committee report, Jury Service in Victoria, the earlier prohibition preventing people ‘unable to hear or speak’ serving on juries was removed.[45]

3.28 The Act now specifies that a person is ineligible to serve if they are ‘unable to communicate in or understand the English language adequately’ or have ‘a physical disability that renders the person incapable of performing the duties of jury service’.[46]

3.29 Supports may render the person capable of performing jury service. The Act, however, lacks guidance about the consideration and provision of supports, without which jury service is often not practically possible.

The ‘13th person’ rule

3.30 The most significant barrier for people in the subject groups arises because of the long-standing common law rule that the jury must be kept separate to preserve the confidentiality of the deliberation process and validity of a verdict.[47] This means that non-jurors, including Auslan interpreters or communication supporters, are barred from jury deliberations.

3.31 The Victorian Criminal Proceedings Manual outlines the Victorian requirements for selecting a jury and the operation of Victorian laws to facilitate an additional person for

a juror:

In the absence of express statutory provisions, there is no power for a judge to empanel an interpreter for a juror, or allow a non-juror to be present during jury deliberations. At least in Queensland (and likely also in Victoria), this means that a person who is deaf is not eligible for jury service.[48]

3.32 The rule was re-affirmed by the High Court in Lyons v State of Queensland in 2016.[49]

The majority confirmed that:

[the] prohibition on the presence of a 13th person in the jury room protects the jury from the suggestion of external influence and promotes the frank exchange of views.[50]

3.33 The High Court confined itself to adjudicating on the Queensland law, and left it open to the state legislatures to determine the appropriateness of allowing interpreters in the jury room:

It may be, as the appellant submits, that the secrecy of the jury’s deliberations would not be compromised by the presence of an accredited Auslan interpreter in the jury room during the jury’s deliberations. Nonetheless… Queensland law does not permit an Auslan interpreter to be present during the jury’s deliberations.[51]

What happens in practice for the subject groups?

3.34 In practice, because there is no express obligation to provide supports to people in the subject groups, it is likely that if they are selected for jury duty they are left with no real option other than to seek to be excused or they are deemed ineligible to serve.

3.35 In 2014 Mr Brett Phillips, a deaf man, was summoned to serve in Victoria and requested an Auslan interpreter to assist him. Mr Phillips explained that the Juries Commissioner had told him:

that they would not be able to provide Auslan interpreters, and that essentially deaf people were not able to serve on juries given the fact our presence on the jury would necessitate a ‘13th person’ which is a breach of jury legislation in Victoria.[52]

3.36 Mr Phillips said that people who are deaf should be given the opportunity to serve. He rejected the argument about the 13th person rule, noting that Auslan interpreters are qualified and accredited and abide by a strict code of ethics that includes confidentiality and impartiality.[53]

Excused early

3.37 The Commission understands that most people in the subject groups are excused from jury service in response to the questionnaire (the jury eligibility form) at the earliest stage of the selection process.[54] Current practice does not capture information about disability nor enquire as to what supports might be needed to assist people to serve. Instead the Commission understands that people generally raise the issue of disability themselves with Juries Victoria.

3.38 The questionnaire asks whether a person wishes to be permanently excused due to advanced age or medical reasons, or excused on a particular occasion for medical reasons.[55] Information can be provided on the form for consideration by Juries Victoria. No question about disability is included in the form. The Commission understands that most people identify that they have a disability in the ‘medical reasons’ sections.[56]

3.39 A handful of people are excused later in the process in response to a summons.[57]


1 Do you have any experience of not being able to serve as a juror in Victoria because you are deaf, hard of hearing or blind or have low vision? What happened? Did you excuse yourself or were you excused by the Juries Commissioner or the court

Peremptory challenges and stand asides

3.40 The law gives parties various rights to challenge the selection of prospective jurors without providing any reasons.[58] The two challenges to be considered under the terms of reference are peremptory challenges and stand asides. They are available to parties at the final stage of the selection of the jury. If exercised, the challenges prevent a prospective juror from serving in the trial. The number of challenges available to the parties has been reduced following recommendations by the Commission in its 2014 report, Jury Empanelment.[59]

3.41 There is concern that by exercising these challenges the parties reduce the breadth of the community represented on juries. For example, women are more likely to be challenged in sexual assault trials than men.[60]

3.42 Currently, people in the subject groups are unlikely to reach the challenge stage of the jury selection process because they are excused much earlier. If reforms improve the participation of people in the subject groups there is a risk that they may be removed by the parties through challenges. If those challenges are made solely on the basis of disability this would undermine the effectiveness of reform. The Commission is keen to hear community views about whether this is likely to be a problem and if so, whether anything can be done to reduce the likelihood of it occurring.

Peremptory challenges

3.43 During a criminal trial, the Act allows the accused to challenge three potential jurors peremptorily, that is, without giving reasons.[61] In a civil trial, each party can challenge peremptorily two potential jurors.[62]

3.44 The stated function of a peremptory challenge is to provide a safeguard to ensure the jury is impartial and the trial is fair.[63] They provide a way for the parties to quickly and expediently remove prospective jurors they know or believe not to be impartial. [64] However, peremptory challenges tend to be based on ‘stereotypes and assumptions’.[65]

3.45 A peremptory challenge allows the accused in a criminal trial to have some say in who tries them, so that they are likely to be more receptive to their case. This also improves the accused’s confidence in the justice process.[66]

3.46 In its report, Jury Empanelment, the Commission identified that peremptory challenges sometimes provide an expedient means of removing prospective jurors who appear to be unable or unwilling to serve—for example, a prospective juror who appears to have a disability which makes them incapable of fulfilling the duties of jury service.[67]

Stand asides

3.47 The Crown right to stand aside is exercised differently to peremptory challenges. Stand asides ensure that the jury is unbiased and the trial is conducted according to law.

3.48 In a criminal trial, the Crown has the right to stand aside three potential jurors.[68]

3.49 Stand asides are exercised less frequently and with more safeguards than peremptory challenges.[69] As a result, stand asides are not as vexed as peremptory challenges when it comes to avoiding discriminatory or arbitrary challenges. The Victorian Director of Public Prosecutions (VDPP) has published guidelines on the exercise of the right to stand aside a prospective juror. They state that the Crown’s power to stand aside should be used sparingly, that the Crown’s paramount concern is that the jury is impartial and that it complies with the Act.[70] The Crown ‘must never use its power to stand aside on the basis of factors such as age, sex, occupation, ethnic origin, religion, marital status or economic, cultural or social background.’[71] Disability is not currently included in this list and the Commission is keen to explore whether it should be added.

  1. Victorian Law Reform Commission, Jury Empanelment (Report No 27, May 2014) 8 <>.

  2. Patrick Wright, ‘Jury Duty: If You Have Questions, We Have Answers’, ABC Life (Web Page, 15 October 2019) <>.

  3. Victorian Law Reform Commission, Jury Empanelment (Report No 27, May 2014) 8 <>.

  4. Mark Findlay, ‘Juries Reborn’ [2007] (90) Reform 9, cited in Victorian Law Reform Commission, Jury Empanelment (Report No 27, May 2014) 8 <>.

  5. Mark Findlay, ‘The Essence of the Jury’ (2000) 12(2) Legaldate 5, cited in Victorian Law Reform Commission, Jury Empanelment (Report No 27, May 2014) 8 <>.

  6. Victorian Government, ‘Juries Victoria’, What Is Jury Service? (Web Page) <>. Currently some trials are conducted by the judge alone to reduce Covid backlogs: Karin Derkley, ‘Judge-Alone Trials Help Reduce Backlog: Chief Judge Kidd’, Law Institute of Victoria (Web Page, 19 August 2020) <–Chief-Judg>; Supreme Court of Victoria, Trial by Judge Alone COVID-19 Emergency Protocol (Report, May 2020) <>.

  7. Information provided from Juries Commissioner to Victorian Law Reform Commission, 6 October 2020.

  8. Ibid.

  9. Ibid.

  10. Ibid.

  11. Juries Act 2000 (Vic).

  12. Victorian Government, ‘Juries Victoria’, What Is Jury Service? (Web Page) <>; Juries Act 2000 (Vic) pt 9.

  13. The Juries Act provides that up to three additional jurors may be empanelled in criminal trials and two additional jurors in civil trials. The purpose of empanelling additional jurors is to provide a buffer against attrition for example for illness or family reasons. It also acts as a safeguard against trials being aborted due to excessive attrition: Victorian Law Reform Commission, Jury Empanelment (Report No 27, May 2014) xiii <>; Juries Act 2000 (Vic) ss 22, 23.

  14. Juries Act 2000 (Vic) ss 4, 19.

  15. Ibid s 19(4).

  16. Ibid s 18(1).

  17. Victoria, Victoria Government Gazette, No S 232, 5 September 2006 1; Victoria, Victoria Government Gazette, No G 12, 20 March 2003 44.

  18. Juries Act 2000 (Vic) s 20.

  19. Ibid s 21.

  20. Jacqueline Horan, Juries in the 21st Century (The Federation Press, 2012) 15.

  21. Juries Act 2000 (Vic) sch 2.

  22. Ibid sch 1.

  23. Ibid s 27.

  24. Victorian Law Reform Commission, Jury Empanelment (Report No 27, May 2014) 15 <>.

  25. Juries Act 2000 (Vic) s 8(1).

  26. See ibid s 8(3) for other ‘good reasons’.

  27. Ibid s 9(4).

  28. Information provided from Juries Commissioner to Victorian Law Reform Commission, 6 October 2020.

  29. Victorian Law Reform Commission, Jury Empanelment (Report No 27, May 2014) 15 <>.

  30. Juries Act 2000 (Vic) s 29(4B).

  31. Information provided from Juries Commissioner to Victorian Law Reform Commission, 6 October 2020.

  32. Juries Act 2000 (Vic) s 11 (1), 12(2).

  33. Ibid.

  34. Ibid s 30.

  35. Information provided from Juries Commissioner to Victorian Law Reform Commission, 6 October 2020.

  36. Ibid.

  37. Juries Act 2000 (Vic) s 31(1).

  38. Ibid s 32(2).

  39. Ibid s 32(3).

  40. Ibid.

  41. Victorian Law Reform Commission, Jury Empanelment (Report No 27, May 2014) 16 <>; Criminal Procedure Act 2009 (Vic) ss 215(1), 217.

  42. Victorian Law Reform Commission, Jury Empanelment (Report No 27, May 2014) xi <>.

  43. Juries Act 2000 (Vic) ss 36–42.

  44. Victorian Law Reform Commission, Jury Empanelment (Report No 27, May 2014) 17 <>; Juries Act 2000 (Vic) ss 33-35.

  45. Parliament of Victoria, Law Reform Committee, Jury Service in Victoria (Final Report, December 1997) vol 1 [3.132] <>.

  46. Juries Act 2000 (Vic) sch 2 cl (3)(a),(f).

  47. William Blackstone, Commentaries on the Laws of England (W Clarke and Sons, 2nd ed, 1809) vol 3, 375; Sir Patrick Devlin, Trial by Jury (Stevens, 3rd rev ed, 1966) 41–42; Sir William Holdsworth, A History of English Law (Methuen, 6th rev ed, 1938) vol 11, 553–554.

  48. Judicial College of Victoria, ‘13.5.1 VARE Procedure’, Victorian Criminal Proceedings Manual (Online Manual, November 2019) [11.1] <>; Lyons v State of Queensland [2016] HCA 38, [1], [33–36]; 259 CLR 518, [1], [33–36].

  49. Lyons v State of Queensland [2016] HCA 38.

  50. Ibid [33].

  51. Ibid [37].

  52. Sylvia Varnham O’Regan, ‘Deaf Victorian Man Denied from Serving on Jury Calls for “Discriminatory” Law to Be Changed’, SBS News (online, 24 November 2014) <>.

  53. Ibid.

  54. Information provided from Juries Commissioner to Victorian Law Reform Commission, 6 October 2020.

  55. Ibid.

  56. Ibid.

  57. Ibid.

  58. Juries Act 2000 (Vic) ss 38, 39.

  59. Victorian Law Reform Commission, Jury Empanelment (Report No 27, May 2014) [3.270] <>.

  60. Ibid xi, 34 [3.103].

  61. Juries Act 2000 (Vic) s 39.

  62. Ibid s 35.

  63. Mark Findlay and Peter Duff, Jury Management in New South Wales (Australian Institute of Judicial Administration, 1994); Johns v The Queen (1979) 141 CLR 409, 428; cited in Victorian Law Reform Commission, Jury Empanelment (Report No 27, May 2014) 21


  64. Victorian Law Reform Commission, Jury Empanelment (Report No 27, May 2014) 21 <>.

  65. Ibid [3.127]. For example, teachers and nurses are challenged because of persuasive stereotypes that they have ‘strong views’ or are ‘overly sympathetic to victims’: Patrick Wright, ‘Jury Duty: If You Have Questions, We Have Answers’, ABC Life (Web Page, 15 October 2019) <>.

  66. Victorian Law Reform Commission, Jury Empanelment (Report No 27, May 2014) 21 <>.

  67. Ibid.

  68. Juries Act 2000 (Vic) s 38.

  69. Victorian Law Reform Commission, Jury Empanelment (Report No 27, May 2014) [3.65] <>.

  70. Office of Public Prosecutions (Vic), Policy of the Director of Public Prosecutions for Victoria (Policy, 17 September 2020) 18 [52] <>.

  71. Ibid. See also Commonwealth Director of Public Prosecutions, Guidelines and Directions Manual (Report, 10 September 2012) 1 <>. Other states such as Queensland and New South Wales have similar guidance. For example, New South Wales prohibits ‘attempts to select a jury that is not representative of the community, including as to age, sex, ethnic origin, religious belief, marital status or economic, cultural or social background’; The Office of the Director of Public Prosecutions, Prosecution Guidelines (Report, 2007) 47 [25] <>; Office of the Director of Public Prosecutions, Director’s Guidelines (Report, 30 June 2016) 45 [32] <>.

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