Victoria Releases Jury Empanelment Report
Friday 5 September 2014 @ 1.31 p.m. | Crime | Legal Research
The Commission's report on its review of jury empanelment, especially in criminal trials was tabled in the Victorian Parliament on 3 September 2014.
Background to the Report
The Attorney-General, the Hon. Robert Clark, asked the Commission to review and report on whether changes are needed to ensure that the jury empanelment process operates justly, effectively and efficiently.
The terms of reference state that the review should:
• consider peremptory challenges in criminal and civil trials and the Crown right
to stand aside jurors in criminal trials with regard to:
- resourcing implications
- the representativeness of the jury
- the impartiality of the jury
- procedural fairness
- the effects on jurors;
• have regard to reviews of peremptory challenges and the Crown right to stand aside
jurors in other jurisdictions, both within Australia and internationally. Consider
existing alternative mechanisms and recommend new procedural, administrative and legislative
changes if appropriate to do so;
• consider the introduction of the practice of empanelling juries by number in every
(or most) instance in the context of procedural fairness and the effects on and protection
of jurors; and
• consider whether it is necessary or desirable for the jury to be reduced to 12 (or
6 as the case requires) before the jury retires to consider its verdict, with particular
regard to the effects on jurors.
During October and November 2013, the Victorian Law Reform Commission consulted with people who have been involved in jury selection in regional Victoria and Melbourne.
Recommendations Made by the Law Reform Commission
The report contains 16 recommendations including:
Challenge for cause
- The Juries Act 2000 (Vic) should specify:
- the grounds on which a challenge for cause can be founded; and
- the process for conducting a challenge for cause.
Peremptory challenges and stand asides should be retained
2. Peremptory challenges and the Crown right to stand aside should be retained for criminal jury trials. Peremptory challenges should be retained for civil jury trials.
Reducing the number of challenges available
Criminal trials
3. The number of peremptory challenges available to a single accused in a criminal trial should be reduced from six to three.
4. Where there is more than one accused, each accused should be entitled to exercise two peremptory challenges.
5. The number of stand asides available to the Crown in a criminal trial should be equal to the total number of peremptory challenges available to all the accused persons for that trial.
Civil trials
6. The number of peremptory challenges available to each separately represented party in a civil jury trial should be reduced from three to two.
7. Where there are multiple separately represented plaintiffs or defendants who do not consent to join in their peremptory challenges, adjustments to the number of challenges should be made to ensure that all the plaintiff/s have an equal total number of challenges to the total number available to the defendant/s, or as close to an equal number as is possible in the circumstances. To achieve this, where necessary the number of challenges available to the plaintiff/s or defendant/s should be increased to match the number available to their opponents.
The effect of the Crown right to stand aside
8. A prospective juror who is stood aside by the Crown should be permanently removed from the ballot for that trial.
Peremptory challenge process
Criminal trials
9. Prospective jurors should not be required to parade in front of the accused. Judicial officers should ensure that the accused and their legal representatives have the opportunity to see prospective jurors as their names are balloted, and have a reasonable period of time in which to exercise their challenges.
10. Prior to the empanelment, the accused should be given the option as to whether they wish to exercise their challenges personally or through their legal representatives.
Civil trials
11. Judicial officers should direct barristers and solicitors to sit facing the panel so they do not need to turn around each time a prospective juror is balloted.
Calling of the panel by name or number
Name or number
12. Prospective jurors should be identified in court by number only.
Calling of the panel
13. If Recommendation 12 is adopted, the Juries Act should be amended to provide that the panel should always be called in court.
Additional jurors
Balloting off or enlarged jury
14. Section 48 of the Juries Act 2000 (Vic) should be repealed.
Guidance on the empanelment of additional jurors
15. To regularise the empanelment of additional jurors there should be statutory criteria guiding the discretion to empanel additional jurors.
These should include:
- the length of the trial
- the nature of the trial
- any other factor that may impact on juror attrition.
The definition of ‘majority verdict’
16. A ‘majority verdict’ should be defined as the agreement of all jurors except one for both criminal and civil trials.
There are some interesting changes recommended for the jury empanelment system, however most interesting for criminal lawyers is the reduction of peremptory challenges and also the changes to the definition of majority verdict.
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