Jury Empanelment: Consultation Paper (html)

1. Introduction

Referral to the Commission

1.1 In March 2013, the Attorney-General, the Hon. Robert Clark MP asked the Commission,

under section 5(1)(a) of the Victorian Law Reform Commission Act 2000 (Vic), to review

and report on three aspects of jury empanelment in Victoria, namely:

• peremptory challenges in criminal and civil trials and the Crown right to stand aside in criminal trials

• the calling of the jury panel by name or number

• the process for balloting off additional jurors when the jury retires to consider its verdict.

1.2 The terms of reference relate to both criminal and civil trials.

1.3 The Commission has been asked to review and report on whether changes are needed to ensure that the jury empanelment process operates justly, effectively and efficiently.

1.4 The terms of reference ask the Commission, among other things, to consider the effects of these processes on jurors. The full terms of reference are set out at on page 4.

The Commission’s approach

Scope of the review

1.5 The terms of reference are focused on three distinct aspects of the jury empanelment

process. The Commission will examine relevant implications of the processes in question.

In particular, the balloting off of additional jurors raises the issue of whether additional

jurors should be empanelled in the first place, and the alternatives to managing juror

attrition that exist in Victoria and other jurisdictions.

1.6 The terms of reference do not ask the Commission:

• To consider whether juries are desirable or to consider alternatives to jury trials.

• To review the question of the eligibility of persons for jury service or the processes and operation of jury selection leading up to jury empanelment (although these are described

in Chapter 2 for context). The Victorian Parliament Law Reform Committee comprehensively reviewed these issues in 1996 and 1997 and its recommendations were largely adopted

by the Government of Victoria when it enacted the Juries Act 2000 (Vic) (Juries Act).[1]

• To consider the issue of social media and jury deliberations.[2]

Other relevant reviews

1.7 There have been several recent reviews of jury selection and empanelment processes in other Australian states and in New Zealand that consider the issues in the terms of reference. We have considered reports by:

• the Northern Territory Law Reform Committee[3]

• the Queensland Law Reform Commission[4]

• the Law Reform Commission of Western Australia[5]

• the New South Wales Law Reform Commission[6]

• the Law Commission of New Zealand.[7]

1.8 Another recent review that considers these issues is the Law Reform Commission of Ireland’s report on jury service.[8]

1.9 The Commission has also considered the Victorian Parliament Law Reform Committee’s 1996–97 report (mentioned at [1.6]) where it is relevant to the terms of reference.

Advisory committee

1.10 The Commission has established an advisory committee comprising individuals with expertise in matters relevant to this reference. The role of the committee is to provide ongoing advice to the Commission on issues raised by the terms of reference. Members of the advisory committee do not sit as representatives of any entity or organisation.

1.11 The advisory committee consists of:

• Professor Jonathan Clough, jury researcher, Monash Law School

• Mr Peter Kidd SC, Senior Crown Prosecutor

• Mr Peter Morrissey SC, criminal law barrister

• Ms Peta Murphy, Senior Public Defender, Victoria Legal Aid

• Ms Katherine Rynne, Senior Registrar Loddon Mallee, Magistrates’ Court of Victoria

• Mr Robert Stary, Principal, Robert Stary Lawyers

• Ms Andrea Tsalamandris, Partner, Adviceline Injury Lawyers.

Preliminary meetings

1.12 The Commission organised a number of preliminary meetings with the Juries Commissioner’s Office and with key stakeholders including legal practitioners, jury researchers and judges to gather information about jury empanelment processes.

1.13 The input from these persons and groups is reflected in this paper. This input, which was most helpful, was not intended to be formal input from the entities involved, but rather to provide guidance for the inquiry. The preliminary meetings do not form part of the Commission’s formal consultations for this reference. Formal consultations will be conducted in conjunction with the publication of this consultation paper, along with a call for public submissions.

Consultation paper

1.14 The preliminary consultations, along with discussions with the advisory committee and other research undertaken by the Commission, form the basis of this consultation paper.

1.15 The consultation paper provides information about the current jury empanelment processes and how they operate and the issues identified with them. Chapter 2 of the consultation paper describes the current jury selection and empanelment processes in Victoria. Chapters 3–5 discuss the substantive issues about each of the processes raised in the terms of reference. There are questions at the end of Chapters 3–5 about whether and how these processes can be improved and whether alternatives to these processes could more effectively meet the same aims.

1.16 The Commission is interested to hear your views about these issues. Your responses to the questions in the consultation paper will assist the Commission to better understand the nature of the issues and to determine the most appropriate response in its recommendations.

1.17 Information about how to provide the Commission with a submission is on page vii.

To allow the Commission time to consider your views before deciding on final recommendations, submissions are due by 15 November 2013.

Formal consultation process

1.18 The next stage of the reference will involve consulting widely with interested organisations and people to gather information and comments on the operation of the jury empanelment processes, identifying additional issues and developing and testing any options for reform.

1.19 Invitations to attend these consultations will be circulated to relevant participants and information will also be available from the Commission’s website. The Commission intends to hold a number of consultations in regional areas, as well as in Melbourne.

1.20 The Commission is particularly interested in hearing from people who have experienced the jury empanelment process, as an important part of the terms of reference is to consider the effects of these processes on jurors. The Commission would like to hear from prospective jurors who were challenged and did not serve, as well as jurors who have served. It is important to note that the Commission is not seeking information about jury deliberations. It is an offence under the Juries Act for a person who has served as a juror to reveal any information about the deliberations of that jury.[9]

1.21 In addition, the Commission will seek to consult with judges, legal practitioners and victims groups.

1.22 The feedback and information that the Commission receives from submissions and formal consultations, combined with additional research, will inform its final recommendations to the Attorney-General. A report setting out the Commission’s recommendations will be provided to the Attorney-General by the reporting date of 31 May 2014. The Attorney-General must table the report in the Victorian Parliament. The Victorian Government then decides whether to implement the Commission’s recommendations.

  1. Victorian Parliament Law Reform Committee, Jury Service in Victoria: Final Report Volume 1, (1996); Victorian Parliament Law Reform Committee,

    Jury Service in Victoria: Final Report Volume 2: Report on Overseas Investigations (1997); Victorian Parliament Law Reform Committee, Jury Service
    in Victoria: Final Report Volume 3: Report on Research Projects
    (1997). The Government response to the Law Reform Committee’s report is

    available at <http://www.parliament.vic.gov.au/lawreform/inquiries/article/1616>.

  2. The Standing Council on Law and Justice is currently considering this issue. See Standing Council on Law and Justice Communiqué,

    October 2012, 3–4, <http://www.sclj.gov.au/sclj/standing_council_decisions.html>.

  3. Northern Territory Law Reform Committee, Report on the Review of the Juries Act, Report No 37 (2013).

  4. Queensland Law Reform Commission, A Review of Jury Selection, Report No 68 (2011).

  5. Law Reform Commission of Western Australia, Selection, Eligibility and Exemption of Jurors: Final Report, Report No 99 (2010).

  6. New South Wales Law Reform Commission, Jury Selection, Report No 117 (2007).

  7. Law Commission of New Zealand, Juries in Criminal Trials, Report No 69 (2001).

  8. Law Reform Commission of Ireland, Jury Service, Report No 107 (2013).

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