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Victorian Law Reform CommissionJury Empanelment Reference

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Terms of reference

Peremptory challenges and Crown right to stand aside

Calling of the panel by name or number Additional jurors

Particular focus on the effects of these processes on jurors

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VLRC process

Consultation paper available 7 October

Research including preliminary consultation with lawyers, jury researchers and some judges. This presentation reflects views and issues raised in those consultations, not VLRC views.

Consultation and submissions – October-November 2013

Final report due May 2014

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Peremptory challenges

Available in all jurisdictions in Australia– Number differs - 8/accused in Qld & ACT down to 3/ accused in NSW, SA & WA– Trend to reduce the number over time - justified in terms of cost (smaller jury pool

required) and to prohibit ‘jury stacking’ where there are multiple accused.

Abolished in England and Wales in 1988, Scotland in 1995 and Northern Ireland in 2007, but remain in Ireland.

Reviewed as part of broader jury service reviews by law reform commissions in NSW (1986, 2007), Western Australia (2010), Queensland (2011), Northern Territory (2013) and New Zealand (2001) and Ireland (2013).

All reviews found advantages and disadvantages of peremptory challenges, but none recommended abolition.

Some different emphases placed on purpose and value of peremptory challenges eg: LRCWA found that the involvement of the accused was a key reason to retain peremptory challenges, while QLRC found this to be the ‘least persuasive’ argument on the grounds that the challenge is rarely exercised by the accused themselves.

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Tensions associated with peremptory challenges

Jury representativeness– Studies (using a variety of methodologies) generally do not

show juries are unrepresentative Main anomaly found was that jurors tended to be better educated

than average for the state

– Juries Commissioner’s Office data for 2012-13 indicates there is a gender imbalance in criminal trial juries, but not civil trial juries

Criminal trials Civil trials

Attending for jury service 51% 51%

Excused 53% 53%

Challenged 66% 54%

Women on juries 44% 51%

Jury selection: women

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Tensions associated with peremptory challenges

Perceptions of justice Observers often have negative impressions of the process:

– Lack of understanding of purpose of challenges

– Requirement to ‘parade’ in front of accused (criminal trials only) ‘catwalk’ intimidating for jurors to walk in front of the accused challenge before juror ‘takes their seat in the jury box’ - can be like a

game

– Perception of jury ‘stacking’ where there is a ‘run’ of challenges to jurors with certain characteristics (eg: young women)

not a ‘good look’

Compare LRCWA - ‘peremptory challenges should be retained to make sure that accused persons believe that they have had a fair trial and the accused, the state and the public at large have confidence in the jury system’.

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Tensions associated with peremptory challenges

Stereotypes v evidence-based process

Introduces ‘discrimination’ into jury selection process – However, given the accused liberty is at stake, the opportunity to

‘reduce risk’ through peremptory challenges may be justified

Most defence counsel acknowledge that juries follow instructions and work diligently– Can judicial direction effectively cure biases? – Does dynamic of 12 jurors deliberating dilute particular biases?

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Alternatives to peremptory challenges

Challenge for cause– Rarely used in Australia– Process not well understood– Usually insufficient information available– Can be resource intensive

Questioning of jurors in special circumstances– Parties can apply to question jurors if there are ‘special reasons’

and further examine based on responses (s 47, Jury Act 1995 (Qld))

– Responses can then be used as a basis to challenge for cause– Used for first time in Patel case

Challenge by consent– Available in Scotland & New Zealand– Sometimes occurs in practice so as not to ‘waste’ a peremptory

challenge

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Calling of panel by name or number

Vic NSW Qld SA WA Tas ACT NT

Name or number

Number Name or number ‘if security or other reason’

Name Number Name or number ‘if security or other reason’

Name Name

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Calling of the panel by name or number

Allowing choice of name or number may give jurors impression that accused is particularly dangerous

Name sometimes used as basis for peremptory challenges

Name as a prompt for recognising prospective juror - particularly important in regional areas

JCO survey 2013– 73% respondents in Melbourne prefer number– 52% respondents in regions prefer number

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Additional jurors

Additional jurors may empanelled as a buffer against juror attrition in long trials– Only empanelled in Victoria in 5% cases– 34% balloted off

Jurors who are balloted off usually feel frustrated and angry

May impact on decision-making dynamic

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Alternatives to balloting off additional jurors

Enlarged jury where additional jurors remain– Unfair to party with burden of proof?– How might larger jury affect deliberation and decision-making?

Reserve jurors – know from the beginning they may not deliberate– Used in Tasmania, Queensland and the Northern Territory

Discharge by consensus Continuation of trial with reduced jury

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Contact us

VLRC Jury empanelment team

Nicole Schlesinger

Martin Wimpole

T: 03 8608 7830

E: nicole.schlesinger@lawreform.vic.gov.au

Submissions due 15 November 2013