Referral to the Commission
1.1 In February 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, and
• the process for balloting off additional jurors when the jury retires to consider
1.2 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.
1.3 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 page vii.
1.4 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.
• To consider the issue of social media and jury deliberations.
Other relevant reviews
1.5 There have been a number of reviews of jury selection and empanelment processes in other jurisdictions that have considered the issues in the terms of reference. Jury selection and other aspects of jury service have been reviewed by:
• the Northern Territory Law Reform Committee
• the Queensland Law Reform Commission
• the Law Reform Commission of Western Australia
• the New South Wales Law Reform Commission
• the Law Commission of New Zealand
• the Law Reform Commission of Ireland.
1.6 The Commission has considered these reports in reviewing the issues raised by the terms of reference.
1.7 The Commission has also considered the Victorian Parliament Law Reform Committee’s 1996–97 reports on jury service in Victoria where they are relevant to the terms of reference.
1.8 The Commission established an advisory committee comprising individuals with expertise in matters relevant to this reference. The role of the committee was to provide ongoing advice to the Commission on issues raised by the terms of reference. Members of the advisory committee did not sit as representatives of any entity or organisation. A list of advisory committee members is attached as Appendix A to this report.
1.9 The Commission organised a number of preliminary meetings in July and August 2013 with key stakeholders including the Juries Commissioner’s Office, legal practitioners, jury researchers and judges to gather information about jury empanelment processes. These meetings assisted the Commission with the preparation of its consultation paper, but did not form part of the Commission’s formal consultation process.
1.10 The Commission released its jury empanelment consultation paper (consultation paper) in October 2013. The consultation paper provided information about the current jury empanelment processes, how they operate and the issues identified with them. The consultation paper also asked a series of questions related to the terms of reference. These questions formed the basis for formal consultations and submissions.
Formal consultation process
1.11 Throughout October and November 2013, the Commission conducted formal face-to-face and telephone consultations with a range of experts and stakeholders, including jurors. A full list of formal consultations is attached as Appendix B to this report.
Expert and stakeholder consultations
1.12 The experts and stakeholders the Commission consulted included:
• judges of the Supreme Court of Victoria and County Court of Victoria
• the Victorian Director of Public Prosecutions
• the Melbourne office of the Commonwealth Director of Public Prosecutions
• the Juries Commissioner and Juries Commissioner’s Office (JCO) staff
• Victorian regional court administrators
• jury administrators in other Australian jurisdictions and New Zealand
• Law Institute of Victoria members
• a family member of a victim of crime.
1.13 A particular focus of the Commission’s consultation process was obtaining the views and experiences of people who had participated in the jury empanelment process.
1.14 To achieve this, the Commission conducted seven consultations in Shepparton, Geelong, Bendigo and Morwell with 42 people who had recently participated in a jury empanelment. The Commission also observed eight jury empanelments (four in Melbourne and four in regional centres).
VLRC juror survey
1.15 To obtain the views of more individuals who had been involved in jury empanelments in Victoria, the Commission developed an online juror survey using an online survey tool, Survey Monkey. The Victorian Law Reform Commission juror survey (VLRC juror survey) was also available in printed form. See Appendix H.
1.16 The survey was aimed at jurors who had attended empanelments—both those who had been selected for a jury and those who had not been selected. The survey specified that jurors must not disclose any information about jury deliberations (as this is an offence under the Juries Act), but rather sought information and views on the processes relevant to the terms of reference.
1.17 The survey was available through a link on the Commission’s website between October and mid-November 2013. JCO and court staff in Melbourne and in the regions also distributed paper copies of the survey during that period.
1.18 There were 381 responses to the survey—241 from metropolitan Melbourne and
127 from regional Victoria.
Phone consultation with additional jurors
1.19 The Juries Commissioner also wrote to jurors who had served on juries within the last six months on which more than 12 (for criminal trials) or six (for civil trials) jurors had been empanelled, alerting them to the Commission’s review and inviting them to contact the Commission. As with the survey, the information sent with the letter specified that jurors must not disclose any information about jury deliberations.
1.20 The Commission spoke over the phone to five jurors who responded to this letter. This process assisted the Commission to hear the views of jurors who had been balloted off and those who had remained on juries on which more than the regular number of jurors had been empanelled.
1.21 The Commission is extremely grateful to the Juries Commissioner, Paul Dore, Senior Deputy Juries Commissioner, Melanie McClure and Juries Commissioner’s Office and court staff in Melbourne and the regions for their assistance in informing jurors about the review and in distributing the VLRC juror survey. The Commission would not have been able to conduct such extensive consultation with jurors without this help.
1.22 The Commission received a total of 18 written submissions, nine from organisations or statutory officers and nine from individuals. Two submissions from individuals were confidential and not referred to in this report, in line with the Commission’s submissions policy. The Commission has withheld the names of five jurors who made submissions, pursuant to section 65 of the Juries Act 2000 (Vic).
1.23 The organisations and statutory officers that made submissions were:
• Victoria Legal Aid
• Victorian Director of Public Prosecutions
• Criminal Bar Association
• Common Law Bar Association
• Juries Commissioner
• Victorian Equal Opportunity and Human Rights Commission
• Liberty Victoria
• Ethnic Communities’ Council of Victoria
• Crime Victims Support Association Inc.
1.24 A full list of submissions is attached as Appendix C to this report. With the exception of the confidential submissions, the submissions may be viewed on the Commission’s website.
1.25 These submissions, together with the Commission’s formal consultations, have informed the Commission’s final report and its recommendations.
The Victorian Parliament Law Reform Committee comprehensively reviewed these issues in 1996 and 1997 and its recommendations were largely adopted by the Victorian government when it enacted the Juries Act 2000 (Vic). See: 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 Victorian Parliament Law Reform Committee’s report is available at <http://www.parliament.vic.gov.au/lawreform/inquiries/article/1616>.
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_communiques/2012_communiques.html>.
Northern Territory Law Reform Committee, Report on the Review of the Juries Act, Report No 37 (2013).
Queensland Law Reform Commission, A Review of Jury Selection, Report No 68 (2011).
Law Reform Commission of Western Australia, Selection, Eligibility and Exemption of Jurors: Final Report, Report No 99 (2010).
New South Wales Law Reform Commission, Jury Selection, Report No 117 (2007).
Law Commission of New Zealand, Juries in Criminal Trials, Report No 69 (2001).
Law Reform Commission of Ireland, Jury Service, Report No 107 (2013).
See above n 1.
Victorian Law Reform Commission, Jury Empanelment, Consultation Paper No 18 (2013).
Juries Act 2000 (Vic) s 78(2).
Thirteen survey respondents did not identify whether the trial was in Melbourne or regional Victoria.
Additional jurors are discussed in Chapter 5.
Victorian Law Reform Commission, Jury empanelment: received submissions (4 April 2014) <http://www.lawreform.vic.gov.au/projects/jury-empanelment/submissions/jury-empanelment-received-submissions>.