Jury Empanelment: Report (html)
This report considers three distinct aspects of the jury system in Victoria:
• the use of peremptory challenges and the Crown right to stand aside jurors in criminal trials
• the identification of jurors by name or number in court
• the additional juror system, in particular the balloting off of excess jurors at the time the jury
is required to retire to consider its verdict.
The review covers both criminal and civil jury trials.
A particular focus of the review has been the effect of these processes on jurors.
The jury system and the purpose of jury trials
Jury trials are a central feature of the justice system in Victoria. The principal governing legislation is the Juries Act 2000 (Vic) (the Juries Act). Jury trials are held for indictable criminal matters and for civil proceedings in certain circumstances.
Jury trials are said to serve a number of important purposes. For example:
• safeguarding the rights of the accused by limiting the power of the state and the judiciary
• ensuring justice is administered in line with the community’s standards
• 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
Participation in jury service is increasingly being viewed as a right of citizens in a democratic society.
There were 584 Supreme and County Court jury trials in 2012–13 in Melbourne and regional Victoria.
Most Victorians who are on the electoral roll are eligible and liable for jury service. People engaged in certain types of work (broadly justice-related work) are not eligible to serve on juries. In addition, people who have been convicted of specified serious offences are disqualified from jury service for a period of time.
Prospective jurors are selected randomly from the electoral roll to form a jury pool and then randomly allocated to trials using a balloting system to form a jury panel.
The jury of 12 in a criminal trial and six in a civil trial is selected from the jury panel. This process, known as the ‘empanelment’, is set out in Chapter 2.
Peremptory challenges and the Crown right to stand aside
Once a panel of prospective jurors has been allocated to a trial, peremptory challenges and the Crown right to stand jurors aside in criminal trials (stand asides) are available to the parties as
a means of excluding prospective jurors from the jury. No explanation is required for the basis of the challenge.
The stated purpose of these mechanisms is to secure an impartial jury so the accused in criminal trials and plaintiff and defendant in civil trials have a fair trial.
However, peremptory challenges and stand asides are not the only mechanisms available to achieve impartiality. Impartiality is also promoted by a range of jury selection and trial processes and practices, including random selection, the excuse process and judicial directions on impartiality.
The use of peremptory challenges and stand asides
The Crown right to stand aside in criminal trials is infrequently used in Victoria, and the Victorian and Commonwealth Directors of Public Prosecutions have developed strict guidelines limiting the way in which it may be used. Only 76 stand asides were used in Victoria in 2012–13.
In criminal trials, the accused has six peremptory challenges and in civil trials each party has three peremptory challenges. Data from the Juries Commissioner’s Office (JCO) for 2012–13 shows that there was an average of five peremptory challenges per criminal trial. Parties routinely use all three of their peremptory challenges in civil jury trials.
The basis of the exercise of peremptory challenges
There are no guidelines around the exercise of peremptory challenges. Criminal defence practitioners and civil law practitioners told the Commission that they advise their clients to exercise their challenges to achieve a number of aims:
• To exclude prospective jurors who appear unable to fulfil their function, because, for example, they cannot hear very well.
• To exclude prospective jurors who demonstrate from their demeanour that they may not be impartial—for example, by glaring at the accused person, or exclaiming in shock when the charges are read out.
• To exclude prospective jurors they assume may not be impartial because of a certain characteristic such as the prospective juror’s occupation, age or gender.
The potential for peremptory challenges to impact on representativeness
The Commission considers that, depending on the strategy adopted, the exercise of six peremptory challenges to exclude prospective jurors with certain characteristics has the potential to impact on the representativeness of a jury.
For example, if the defence in a sex offence matter adopts a strategy of using all six of its peremptory challenges to exclude women because it is assumed that women may be sympathetic to a female victim, then the jury is likely to have a much-reduced representation of women. Scenario 1 in Chapter 3 at [3.103] illustrates this point.
The effectiveness of peremptory challenges in achieving an impartial jury
Studies on the link between characteristics and verdict preference do not support the use of characteristics as an effective or reliable indicator of sympathy or bias in jurors. The Commission does not support the use of peremptory challenges to exclude people with certain characteristics on the basis of assumptions about how groups with those characteristics may decide a case.
The Commission, however, accepts that it may be appropriate to use peremptory challenges (or stand asides) to exclude a prospective juror who has displayed behaviour that may indicate bias, who is known to one of the parties or who appears unable to fulfil the task of a juror.
Peremptory challenges and procedural fairness
The Commission accepts that the availability of peremptory challenges in criminal matters provides an accused with some involvement in the trial process and may contribute to a perception that they have been given a fair trial. This perception is independent of the effectiveness of peremptory challenges in actually achieving an impartial jury.
The Commission also accepts that for both criminal and civil trials, peremptory challenges provide an expedient and relatively non-invasive means for excluding jurors who may be perceived to be biased, or are unable or unwilling to serve.
The Commission, however, does not consider that procedural fairness requires a certain number of peremptory challenges to be available to an accused or to parties in a civil trial. Many jurisdictions have fewer peremptory challenges than Victoria and peremptory challenges have been abolished altogether in the United Kingdom.
The Commission has recommended that the number of peremptory challenges available in both criminal and civil trials be reduced, but not abolished.
This recommendation aims to balance the need for an expeditious process for excluding jurors who are not impartial or are unwilling or unable to serve, with the potential for challenges to be used to exclude prospective jurors based solely on their personal characteristics (such as their gender, age, race or occupation), or to skew the representativeness of a jury. Retaining peremptory challenges but reducing the number available also preserves the benefit provided to the accused by allowing them some involvement in the trial.
While the Commission has expressed a view about the desirability of using peremptory challenges for particular purposes, it does not recommend that guidance be provided on the exercise of peremptory challenges. Such guidance would not be practical or enforceable.
The peremptory challenge process
The Commission has also examined the peremptory challenge process used in Victoria. A feature of the challenge process in criminal trials peculiar to Victoria is the practice of requiring prospective jurors to parade past the accused person on their way to the jury box.
It appears that the purpose of this practice is to allow the accused to see the prospective juror so he or she can decide whether to challenge the prospective juror.
While many jurors consulted by the Commission indicated that they understood and supported the right of the accused to peremptorily challenge, many also felt uncomfortable about the parade process.
The Commission considers that the purpose of the parade can be achieved in a manner that is less confronting and intimidating for jurors and has made some recommendations to achieve this.
Identifying prospective jurors in court by name or number
Victoria is the only Australian jurisdiction to provide trial judges with an unfettered discretion about whether to identify prospective jurors in court by name or number. In Queensland and Tasmania, the judge has a discretion to identify prospective jurors by number where there are ‘security or other reasons’.
In New South Wales, Western Australia and South Australia, there is no judicial discretion and prospective jurors are identified in court by number only (although in Western Australia and South Australia parties have access to a list containing the name, occupation and address of jurors).
Individual trial judges in Victoria exercise their discretion in different ways. Some judges always empanel using one mode, whereas others will vary the mode depending on the nature of the trial. This means that whether prospective jurors are identified in court by name or number depends on the practice of the individual trial judge.
The lack of consistent practice has led to concerns that the use of numbers in criminal trials may give prospective jurors the impression that the accused is particularly dangerous and therefore protective measures such as juror anonymity are warranted.
Defence practitioners have generally expressed the view that it is preferable to identify prospective jurors by name for this reason. Some defence practitioners and civil law practitioners also argue that name may provide some information on which to base peremptory challenges, particularly where the trial involves ethnic or religious issues.
The Commission does not consider a person’s name to be a reliable indicator of their ethnicity or religion. Further, as noted above, the Commission does not support the use of peremptory challenges that rely on characteristic-based assumptions, in this case a prospective juror’s ethnicity or religion.
The Commission has weighed the views of judges and practitioners who support the use of name or the continuation of a judicial discretion to use name against the strong preference of jurors and prospective jurors to be identified in court by number only to preserve their security and privacy.
In recommending that prospective jurors be identified by number only, the Commission also notes the benefits of consistency of practice across all jury trials.
The additional juror system
The Juries Act provides that up to three additional jurors may be empanelled in criminal trials and two additional jurors may be empanelled in civil trials.
The purpose of empanelling additional jurors is to provide a buffer against juror attrition. It is not uncommon for jurors to be discharged during the course of a trial for illness or family reasons. The rate of discharge of jurors increases for long trials.
The Juries Act allows judges to order trials to continue with as few as 10 jurors in criminal
trials and as few as five in civil trials. This is not ideal, however, as it may be seen to detract from the legitimacy of verdicts. Consequently, judges are reluctant to use these provisions unless absolutely necessary.
Empanelling additional jurors therefore acts as an additional safeguard against trials being aborted due to excessive juror attrition. Aborted trials are very costly to both the parties and the community.
Where more than 12 jurors in criminal trials and six jurors in civil trials remain at the time that the jury is required to retire to consider its verdict, a ballot is held to reduce the number of jurors to 12 or six.
A total of 56 additional jurors were empanelled in 2012–13. About a third of those were
The effect of balloting off on jurors
Information gathered by the Commission indicates that the balloting-off process has a significant and often very negative impact on many balloted-off jurors and the remaining jury.
Many balloted-off jurors are frustrated at not being able to complete their task as jurors and angry that they have spent significant amounts of energy and time as jurors without being able to participate in deliberations and the verdict.
Most of those who remained on the jury after a ballot felt sorry for the balloted-off juror. Some remaining jury members also commented that the ballot impacted negatively on the dynamic of the jury and on deliberations.
Not balloting off
The Commission considers that balloting off should be abolished, effectively allowing an enlarged jury in instances where additional jurors remain when the jury retires to consider its verdict.
This is because of the adverse impact on both balloted-off jurors and the remaining jury. All of the judges consulted by the Commission strongly supported the abolition of balloting off because of its negative effects on individual jurors and the jury as a whole.
There is no information available about how effectively an enlarged jury would operate, as (with the exception of Scotland), no other similar jurisdiction has juries of more than 12 jurors. A concern is that it may be more difficult for larger juries to achieve unanimity—a requirement for Commonwealth offences and some state offences—and therefore for the prosecution to convict in such cases. In such cases, acquittal also requires unanimity.
Studies on the impact of jury size comparing juries of six to juries of 12 suggest that it is likely to be more difficult for larger juries to achieve consensus. However, research on how jurors deliberate and make decisions, and the experience of the courts, also demonstrate that the strength and cogency of evidence is an important factor influencing the ability of juries to achieve unanimity. Therefore, while jury size may be relevant to achieving unanimity, it is not the only factor, and consequently should not outweigh the known negative effect of balloting off on jurors.
Majority verdicts may be accepted as a verdict for most Victorian criminal offences and in all civil trials.
If balloting off is abolished, the definition of ‘majority verdict’ will need to be amended. The Commission considers that the way in which ‘majority verdict’ is defined is integrally connected to the rationale used for allowing majority verdicts. In Victoria, the rationale used to support the introduction of majority verdicts was to prevent a single ‘rogue juror’ from derailing an otherwise unanimous verdict. The Commission’s recommendation, therefore, is dependent on the applicability of that rationale to a jury of more than 12 jurors (for criminal trials) or more than six jurors (for civil trials). The Commission recommends that a majority verdict should be defined as the agreement of all jurors except one for both criminal and civil trials.