Inclusive Juries—Access for People Who Are Deaf, Hard of Hearing, Blind or Have Low Vision: Report (html)

2. What is a jury and how is it selected?

Jurors contribute in an extraordinary and fundamental way to the delivery of justice in Victoria. Juries are the voice of the community’s conscience, independent of both the judiciary and the government.^[1]
—Paul Dore, Juries Commissioner of Victoria

Overview

• Juries play a fundamental role in our legal system. They allow the community to be directly involved in the administration of justice.

• The Victorian jury system is busy. Jury trials for civil and criminal matters occur in the Supreme Court of Victoria and the County Court of Victoria. Most jury trials are run in the County Court.

• Some steps in the jury selection process are determined by random ballot. Random selection presents challenges for planning the provision of reasonable adjustments and judicial assessments. It is difficult to anticipate whether a person who attends court in response to a jury summons will ultimately serve as a juror and on what trial they may serve.

What is the role of a jury?

2.1 The role of the jury is to decide the facts, apply relevant principles of law to those facts, and return a verdict.^[2]

2.2 In Victoria there is no constitutional right to a jury trial but its use for serious offences is widely supported and established.^[3] Victoria Legal Aid stated in its submission: ‘The jury’s role in criminal trials is one of the most important features of our criminal justice system’.^[4] The County Court referred to the jury as a ‘little parliament’ which serves to ‘ensure a measure of democratic participation, and therefore, democratic legitimacy, to the administration of justice’.^[5]

2.3 The purposes of jury trials are:

• safeguarding the rights of the accused by limiting the power of the state

• ensuring that justice is in line with the community’s standards, rather than just those of judges, who may not be considered representative of the broader community^[6]

• enabling the community to participate directly in the administration of justice, and thereby increasing acceptance of trial outcomes and confidence in the legal system more generally.^[7]

Jury administration

2.4 In Victoria the jury selection process is regulated by the Juries Act 2000 (Vic) (the Act). The Juries Commissioner is responsible for jury administration through Juries Victoria.^[8] The Juries Commissioner has ‘oversight and fulfilment of the state’s role in providing citizens for jury service in the superior courts’.^[9] This statutory role is unique to Victoria. In other Australian states and territories, this responsibility lies with the court sheriff.^[10]

The number of jury trials in Victoria

2.5 In Victoria juries are used for almost every Supreme and County Court criminal trial and for some civil trials.^[11] During the coronavirus (COVID-19) pandemic, some trials were heard by judges alone.^[12]

2.6 Jury trials are mandatory for indictable criminal matters (serious criminal offences).^[13] These criminal trials are initiated by the Director of Public Prosecutions on behalf of the community. The community is involved in determining the verdict via a jury.

2.7 In contrast, civil matters involve the resolution of disputes between parties, and jury trials are not mandatory. In civil trials the jury, if there is one, determines findings of fault or damages. The availability of a jury in a civil trial depends on the remedy sought and the way in which the parties initiate the proceedings. A civil party may apply for a jury trial; but the court decides whether this occurs.^[14]

2.8 In 2018-19, before the coronavirus (COVID 19) pandemic, the County Court heard 306 criminal jury trials in Melbourne and 110 criminal jury trials in regional Victoria. The County Court heard 31 civil jury trials in Melbourne and nine in regional courts. The Supreme Court heard 39 criminal jury trials in Melbourne and seven in regional Victoria. It heard 16 civil jury trials in Melbourne and six in regional Victoria.^[15]

How is a jury selected?

2.9 Twelve jurors are generally selected for criminal trials and six jurors for civil trials.^[16]

2.10 A person summonsed to attend jury service is not automatically included in a jury. The stages in the jury selection process are shown in the figure below.

2.11 These stages were described in detail in Chapter 3 of the consultation paper.^[17] A brief description follows.

Random selection from the electoral roll

2.12 At the request of the Juries Commissioner, the Victorian Electoral Commission randomly selects several thousand people at a time from the Victorian electoral roll to serve on juries in districts in which they reside.^[18] Juries Victoria mails the notice of selection and questionnaire to those people selected from the roll.^[19]

2.13 Random selection is an important feature of the jury system.^[20] It is tied to the notion that a jury should be representative of the community. It guards against bias by ensuring that those that determine the outcome of a trial have not been chosen by the court or the parties.^[21] Random selection occurs at various points in the jury selection process. It means that it will not be known which trial, if any, a person will be balloted to until the last minute. This makes it difficult to plan for the provision and assessment of reasonable adjustments. Reform needs to work within the confines of the random selection process.

Determination of liability for jury service

2.14 The notice of selection includes a questionnaire (jury eligibility form) about a person’s circumstances which will inform Juries Victoria’s assessment of their liability to take part in jury service. ^[22] Information about eligibility and availability is entered into Jury Victoria’s jury management system.

2.15 There are three types of exceptions to jury service:

1) those ineligible to serve

2) those excused from service

3) those disqualified from serving.^[23]

2.16 People who are ineligible to serve include lawyers, some public servants and those involved in the administration of justice.^[24] People who cannot communicate in or understand English are also ineligible.^[25] This means that people who use Deaf Interpreters will be ineligible to serve on a Victorian jury (see Chapter 3).

2.17 People can apply to be excused by the Juries Commissioner for good reason, or to defer their jury service to a better time.^[26] 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. It is at this early stage that people in the subject groups usually seek to be excused.^[27]

2.18 Other people are disqualified (usually for a limited period) if they have been convicted of certain serious offences or are on bail/remand or are undischarged bankrupts.^[28]

Summons

2.19 Juries Victoria issues a summons to potential eligible jurors two to three weeks ahead of the court attendance date.^[29] Information about eligibility, deferral and excuse categories is provided with the summons.^. The Juries Commissioner also provides an online orientation program for people who are summonsed. It includes short video clips and information about what to expect during the selection process, payment for jury duty, employer obligations, dress code and meals, juror responsibilities and the need to be available for two weeks. This is sent to potential jurors seven days before their summons date.^[30]

2.20 After a person receives a summons and before they become a member of a panel (see further discussion below), they can apply to be excused or to defer their service.^[31] The Act also gives the Juries Commissioner and the court the power to excuse potential jurors.^[32] We discuss excuse further in Chapter 16.

2.21 Potential jurors who have not applied for or been granted an excusal or deferral must confirm that they will attend court.

The jury pool

2.22 Potential jurors are required to attend court and become part of a large group known as the ‘jury pool’.^[33] People who attend court on any given day make up the pool from which ‘panels’ for individual trials are balloted. Juries Victoria does not summons on the basis of individual court needs but based on the collective needs of both courts.^[34]

2.23 In Melbourne, according to Juries Victoria, ‘400 people are summonsed to attend on a Monday to cover trials for a Monday and a Tuesday; 350 on Wednesday to cover Wednesday and Thursday and 150 on a Friday’.^[35] Jury pools are smaller in each region or court circuit location.^[36] During the pandemic there have been much smaller jury pools.^[37]

2.24 In Melbourne, the jury pool assembles in the County Court building in the jury pool room/area. The pool is available for any number of Supreme and County Court trials beginning on a given day.^[38] The jury pool is given an orientation program by Juries Victoria, explaining the role of a juror, rate of pay and the selection process. Questions about jury service are answered by the pool supervisor and a short video is shown about what to expect in court.^[39]

2.25 The jury pool supervisor outlines that a person will need to be available for jury duty for up to two weeks, the average length of a trial.^[40] Information is also provided about the possible grounds for excuse.^[41] Another estimate of the duration of jury duty is provided to the pool when the Juries Commissioner draws a ballot for a panel for a particular trial. The Juries Commissioner will also inform the entire pool if there is a particularly long trial starting that will require longer jury service. If a person is unavailable to serve on a trial because of its length this is another opportunity to seek to have service deferred or to be excused.^[42] This process helps to minimise the number of excuse applications heard in court.^[43]

Random selection from the jury panel

2.26 Once all people who have been excused from the pool leave the jury pool room, ballot cards are generated from the pool list for each potential juror and are placed in the ballot box. Juries Victoria will randomly select people from a ballot box to form a jury panel.^[44] Groups of 25–40 people (‘jury panels’), then go into courtrooms where the trials will be held.^[45]

Criminal trials

2.27 In criminal trials, the accused is sitting in the dock when the panel enters the courtroom. When the panel is seated the judge directs that the accused is formally charged with offences (a process known as ‘arraignment’). Charges are read out and the accused pleads to each charge.^[46]

2.28 The judge then informs the panel about the trial: for example, the type of charge, the names of the accused (in a criminal trial) or parties (in a civil trial), witnesses, and the estimated length of the trial. The panel numbers are read out and the court then calls on potential jurors who seek to be excused. The court may excuse a person if satisfied that the person will be unable to consider the case impartially or is unable to serve for any other reason. A person who is excused by the judge stays in their seat but their ballot card does not go into the ballot box.^[47] That person will subsequently return to the jury pool room to potentially serve on another trial.^[48]

2.29 Each remaining jury panel member’s card is then placed in the ballot box. Panel members are selected from the ballot box, one at a time. The parties are then able to challenge potential jurors to exclude them from the jury.^[49] The only information that parties are given to base challenges on are the person’s juror number (or name if directed by the judge) and their current occupation.^[50] The physical appearance and demeanour of the potential jurors is revealed by their presence.^[51] The Act provides that each person who is arraigned must be given ‘an adequate opportunity to view the face of the potential juror’ before they are seated.^[52]

2.30 The two most common types of challenges: ‘peremptory challenges’ and the Crown ‘stand aside’ in criminal trials, are discussed in Chapter 17.

2.31 Potential jurors who are not challenged proceed to the jury box. When the required number of jurors (usually 12)^[53] are in the jury box, they are sworn or affirmed^[54] as the jury. The remainder of the panel returns to the pool (unless the court orders otherwise).^[55]

Civil trials

2.32 In civil trials, after the court has provided information to the panel about the trial and excuses have been heard by the judge, ballot cards are drawn from a ballot box. Selected persons have their identifying number (or name if directed by the judge) and occupation called out.^[56] A list is created of the persons selected. The parties strike names off the list according to their respective challenges. This is done in writing.^[57] The remaining names on the list (usually six) are the jury for the trial.^[58] On being empanelled, jurors must take an oath or make an affirmation in open court.^[59]

People who are not selected

2.33 People who are not selected to serve as a juror by the end of the day are generally sent home, ‘their jury service having been completed simply by making themselves available to potentially serve on a trial’.^[60] Sometimes trial scheduling requirements may mean that people in the pool may have to return on another day.^[61]

People in the subject groups

2.34 Part 2 (Chapters 11-19) of this report considers the changes that will need to occur at the various stages of the jury selection process to reduce barriers to participation for people in the subject groups.

1. Paul Anthony Dore, To Develop a Systemic Approach to Juror Support Programs in Australia (Report, Winston Churchill Trust, 2018) 31.

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2. Judicial College of Victoria, ‘1.4 The Role of Judge and Jury’, Victorian Criminal Charge Book (Online Manual) [1] <www.judicialcollege.vic.edu.au/eManuals/CCB/index.htm#19193.htm>, citing R v Dao [2005] VSCA 196, (2005) 156 A Crim R 459; R v Nguyen [2006] VSCA 158; Azzopardi v The Queen [2001] HCA 25, (2001) 205 CLR 50.

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3. The Criminal Procedure Act 2009 (Vic) sets out the procedure for hearing and determining criminal offences in Victoria. For indictable offences, this procedure includes trial by jury: Criminal Procedure Act 2009 (Vic) pt 2.4. Unlike in Victoria, there is constitutional recognition of a right to trial by jury for Commonwealth offences tried on indictment: Commonwealth of Australia Constitution Act 1900 (Cth) s 80.

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4. Submission 8 (Victoria Legal Aid).

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5. Submission 14 (County Court of Victoria).

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6. Victorian Law Reform Commission, Jury Empanelment (Report No 27, May 2014) 8 [2.5], citing Mark Findlay, ‘Juries Reborn’ [2007] (90) Reform 9.

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7. Victorian Law Reform Commission, Jury Empanelment (Report No 27, May 2014) 8 [2.5], citing Mark Findlay, ‘The Essence of the Jury’ (2000) 12(2) Legaldate 5. The strengths of the jury system are also canvassed in Law Reform Committee, Parliament of Victoria, Jury Service in Victoria (Final Report, December 1997) vol 3 [1.11]–[1.15], including that a jury is free to determine cases equitably by not being bound by precedent; encouraging respect for the law, a sense of duty to society and an understanding of legal rights; ensuring a judge is free from the obligation to determine facts.

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8. Juries Act 2000 (Vic) ss 60–4; Victorian Government, ‘Juries Victoria’, What Is Jury Service? (Web Page) <https://www.juriesvictoria.vic.gov.au/about-juries-victoria/what-is-jury-service>.

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9. Paul Anthony Dore, To Develop a Systemic Approach to Juror Support Programs in Australia (Report, Winston Churchill Trust,
   
   2018) 4.

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10. Ibid 4.

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11. Ibid 5.

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12. The COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic) inserted Chapter 9 into the Criminal Procedure Act 2009 (Vic) (‘CPA’) to temporarily change the CPA in response to the COVID-19 pandemic. These changes introduced judge alone trials for the first time in Victoria, for a brief period, ending in April 2021: Supreme Court of Victoria, Trial by Judge Alone COVID-19 Emergency Protocol (Report, May 2020); Judicial College of Victoria, Judge Alone Trial Applications (Report, 2021); Karin Derkley, ‘Judge-Alone Trials Help Reduce Backlog: Chief Judge Kidd’, Law Institute of Victoria (Web Page, 19 August 2020) <https://www.liv.asn.au/Staying-Informed/LIJ/LIJ/August-2020/Judge-alone-trials-help-reduce-backlog–Chief-Judg>.

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13. These are known as ‘indictable’ criminal offences. For discussion: see Victorian Law Reform Commission, Jury Empanelment (Report No 27, May 2014) 10 [2.13].

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14. Ibid 11 [2.22]–[2.24].

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15. Supreme Court of Victoria, Annual Report 2019-2020 (Report, March 2021) 64.

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16. Juries Act 2000 (Vic) s 22. The Court may enlarge the jury list, pool or panel if an order is made under section 16. See also Victorian Law Reform Commission, Jury Empanelment (Report No 27, May 2014) [2.30]–[2.67].

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17. Juries Victoria has published a video that explains jury service in Victoria: see Department of Justice and Community Safety (Vic), ‘What Is Jury Service?’, Juries Victoria (Web Page, 2021) <https://www.juriesvictoria.vic.gov.au/about-juries-victoria/what-is-jury-service>.

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18. Juries Act 2000 (Vic) s 20. See also: Rodolfo Monteleone, Improving Efficiency and Effectiveness of the Victorian Jury System (Report, Winston Churchill Trust, 3 February 2012) 13.

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19. Juries Victoria has created a video for individuals explaining the ‘Notice of Selection’ stage: see Department of Justice and Community Safety (Vic), ‘Notice of Selection’, Juries Victoria (Web Page, 2021) <https://www.juriesvictoria.vic.gov.au/individuals/notice-of-selection>; Paul Anthony Dore, To Develop a Systemic Approach to Juror Support Programs in Australia (Report, Winston Churchill Trust, 2018) 5.

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20. The purpose of the Juries Act includes ‘to provide for the operation and administration of a system of trial by jury that (a) equitably spreads the obligation of jury service amongst the community; and (b) makes juries more representative of the community’. Section 4 of the Juries Act requires that ‘If this Act requires that one or more persons be selected, the selection must be random’: see Juries Act 2000 (Vic) ss 1, 4.

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21. Law Reform Committee, Parliament of Victoria, Jury Service in Victoria (Final Report, December 1997) vol 3 [3.8]–[3.10]; Victorian Law Reform Commission, Jury Empanelment (Report No 27, May 2014) 2 [2.8]; Rodolfo Monteleone, Improving Efficiency and Effectiveness of the Victorian Jury System (Report, Winston Churchill Trust, 3 February 2012) 22.

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22. Juries Act 2000 (Vic) s 20. See also: Paul Anthony Dore, To Develop a Systemic Approach to Juror Support Programs in Australia (Report, Winston Churchill Trust,
    
    2018) 5.

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

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24. Juries Act 2000 (Vic) sch 2.

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25. Ibid.

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26. Ibid ss 8 and 7, respectively.

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27. Information provided by Juries Victoria to Victorian Law Reform Commission, 6 October 2020.

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28. Juries Act 2000 (Vic) sch 1.

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29. Ibid s 27. See also Department of Justice and Community Safety (Vic), ‘What Is Jury Service?’, Juries Victoria (Web Page, 2021) <https://www.juriesvictoria.vic.gov.au/about-juries-victoria/what-is-jury-service>.

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30. Information provided by Juries Victoria to Victorian Law Reform Commission, 17 May 2022.

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31. Juries Act 2000 (Vic) ss 7, 8, 9.

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32. Ibid ss 11, 12.

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33. We note that legislative changes brought about due to the coronavirus (COVID-19) pandemic temporarily enable remote jury empanelling to respond to social distancing requirements.

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34. Consultation 10 (Juries Victoria).

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35. Ibid. These figures refer to the period before the coronavirus (COVID-19) pandemic which began in 2020.

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36. Information provided by Juries Victoria to Victorian Law Reform Commission, 17 May 2022.

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37. Consultation 10 (Juries Victoria).

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38. Jury panels are not used in regional areas, as jury trials are rarely held concurrently. In regional areas the entire jury pool that attends in response to the summons constitutes the jury panel. Victorian Law Reform Commission, Jury Empanelment (Report No 27, May 2014) 15 [2.52].

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39. These and other videos explaining jury service are available online: Juries Victoria, ‘Individuals’, Juror Portal (Web Page, May 2019) <https://www.juriesvictoria.vic.gov.au/individuals>; Juries Victoria, YouTube (Web Page, 2019) <https://www.youtube.com/channel/UCTgVsMpocy2oeO4CPV4hexA/videos>.

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40. Juries Victoria told us that in 2018–2019 the average length of civil and criminal trials was eight days in the County Court and 16 days in the Supreme Court: Information provided by Juries Victoria to Victorian Law Reform Commission, 6 June 2022.

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41. Victorian Law Reform Commission, Jury Empanelment (Report No 27, May 2014) 15 [2.47].

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42. The Juries Commissioner may exclude a person from a pool if the Juries Commissioner is satisfied that the person is unavailable to sit on a trial due to the likely length of the trial: Juries Act 2000 (Vic) s 29(4B). See also the general power of the Juries Commissioner to excuse people for good reason under s 8.

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43. Information provided by Juries Victoria to Victorian Law Reform Commission, 6 October 2020.

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44. Juries Act 2000 (Vic) s 30.

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45. Paul Anthony Dore, To Develop a Systemic Approach to Juror Support Programs in Australia (Report, Winston Churchill Trust,
    
    2018) 5.

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46. Criminal Procedure Act 2009 (Vic) ss 215(1), 217.

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47. Information provided by Juries Victoria to Victorian Law Reform Commission, 17 May 2022.

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48. Juries Act 2000 (Vic) s 32. The Court may also determine that a person will not perform jury service if it thinks it is just and reasonable to do so, on its own motion or on application from the Juries Commissioner under s 12.

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49. Ibid ss 37–40. See also Victorian Law Reform Commission, Jury Empanelment (Report No 27, May 2014) xi.

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50. Juries Act 2000 (Vic) ss 36(1)(b), 30A(2).

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51. Ibid ss 30A, 31. See also Judicial College of Victoria, ‘11.1 Selecting a Jury’, Victorian Criminal Proceedings Manual (Online Manual, 30 August 2021) [76] <https://www.judicialcollege.vic.edu.au/eManuals/VCPM/index.htm#27318.htm> which notes that ‘Failure to provide an adequate opportunity to see the faces of potential jurors is a fundamental interference with the right to exercise peremptory challenges and is a fundamental defect in the running of a trial’, citing Theodoropoulos v The Queen [2015] VSCA 364, (2015) 51 VR 1.

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52. Juries Act 2000 (Vic) s 39(2A)–(2C).

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53. Up to three additional jurors may be empanelled in criminal trials: ibid ss 22(2), 23(1)(a). Additional jurors are discussed in
    
    Chapter 9.

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54. See Glossary.

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55. Juries Regulations 2021 (Vic) reg 6.

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56. Juries Act 2000 (Vic) ss 33(1)(a)(ii), 30A(2).

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57. Ibid ss 33, 34, 35.

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58. Up to two additional jurors may be empanelled in civil trials: ibid ss 22(1), 23(1)(b).

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59. Ibid s 42.

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60. Department of Justice and Community Safety (Vic), ‘What Is Jury Service?’, Juries Victoria (Web Page, 2021)
    
    <https://www.juriesvictoria.vic.gov.au/about-juries-victoria/what-is-jury-service>.

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61. Information provided by Juries Victoria to Victorian Law Reform Commission, 17 May 2022.

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