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6.5 & 6.6 – The Jury System

https://www.youtube.com/watch?v=-nbUVMCD8tE

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The Jury System:

Our legal system is predicated

on the concept of both‘Trial By Jury’ and

‘Trial By Ones’ Peers’

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The Jury System:

Juries are used in the original jurisdiction of both County and Supreme Courts

NOT PART of the Magistrates Courts.

NOT USED in appeals

Compulsory composition of 12 in criminal cases where the accused pleads Not Guilty

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The Jury System:

A criminal jury MUST try for a unanimous verdict!!

If not – a majority decision for crimes other than Commonwealth offences, Treason or Murder. A majority is 11 of 12

A ‘hung jury’ occurs if the majority can not be made.

This means neither Guilt or Innocence and the accused can be retied later

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The Jury System:

The finding of guilt must be BEYOND REASONABLE DOUBT

If a juror has any doubt, no matter how small, they MUST determine the accused ‘NOT GUILTY’

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The Jury System:

In Civil cases a jury of six can be used, but is optional.

Either side can choose to empannel a jury.

A civil jury can reach a majority verdict of 5 to 1.

Civil cases are determined on the ‘Balance of Probabilities’

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Empanelling a jury

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Jury Members

None of the following is permitted regarding the jury members

1. Photographed

2. Filmed

3. Interviewed

4. Names published

5. Identifying information to the defendant or all parties in a civil case

6. Provide opinions to the media

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Disqualified

This category is for those who are not allowed because they have done something to make them unsuitable

Convicted of an offence in past 2 years

Currently on a bond or probation

Served more than 3 years in prison

In the past 5 years; under 3 months jail, or specific order

In the past 10 years; parole, prison over 3 months

On bail for an indictable offence

Undischarged bankrupt

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Ineligible

Due to being employed in the legal industry these people are ineligible;

Police officers, court officials, judges, lawyers, bail justices

Some categories of people are ineligible due to being unsuitable to undertake the task of a juror;

Intellectual disability, other mental health issues, physically handicapped, inadequate English

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Excused

Some people wish to be excused for good reason either temporarily or permanently

Illness, poor health, disability, old, inconvenience to the individual or the public,

Financial hardship (self employed)

Primary carers

Too far to travel

Practising religious order making them incompatible with jury service

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Deferrals

A person can apply to have their jury service deferred to a more convenient time. There must be a good reason;

Teacher during prior to exam period

VCE/University student

Holiday booked

Wedding

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Exemptions

These people may be granted an exemption for a period of time;

Selected into jury pool but didn’t sit on a jury

3 years exemption if you have served on a jury

Jurors from lengthy trials

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Procedure for jury empanelment

This process gives the prosecution and defence an opportunity to have a say in who forms the jury.

When the jury pool is assembled in the court they are provided with the following information

1. The type of case

2. Names of all parties (Civil) or name of defendant (Criminal)

3. Names of key witnesses

4. Anticipated length of trial

5. Any other relevant material determined by the court

Provides Jury members with a final opportunity to request to be excused

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Criminal Jury

Verdict reached on the basis of the evidence only

Experiences of the jury members i.e., occupation, previous knowledge of the case etc., needs to be taken into account during empanelment

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The process of empanelment

1. Jury pool attends court room. Jurors name or number and occupation readout

2. Juror walks past the accused and to the jury box (Can be challenged/ stood a side).

3. Challenged

(Peremptory) – no reason required – 6 opportunities for either side. Number increases with more defendants

(For cause) – Valid reason provided – (No limit). Reason such as occupation my be considered valid by the judge. If judge does not accept, person will become a jury member

4. If challenge successful, juror returns to the jury pool and await the same process in a separate trial.

5. Once empanelled, the members must then swear on OATH of the AFFIRMATION (Task of being a jury member to be carried out faithfully and impartially)

6. Jury retires to the jury room to elect a foreperson. This person becomes the spokes person for the jury. Also Reads out the verdict.

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Case Study

Boris Beljajev

Jury and adversary system the Beljajev case.doc

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Civil Jury

Used at the request of either party (Plaintiff or defendant)

6 members – 8 if a lengthy trial

Can award an amount of damages

1. Jury pool attends the court. 12 names drawn with the names and occupations provided to solicitor of the plaintiff

2. Plaintiff counsel can cross out up to three names with no reason

3. List then provided to defendants counsel. Can cross out 3 names without reason

4. For cause challenges available

5. Oath or Affirmation taken and foreperson elected.

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Juries and an effective legal system

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Could they get a fair trial?

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Factors contributing to the entitlement to a fair and unbiased hearing

Eligibility for jury service

If you are 18 and on the electoral role you are eligible

Ineligible and disqualification

Removes people who are perceived to have a prejudice

Balloting process

Names drawn at random – assists with cross-section of society

Self-excusing from a trial

Removes bias if offender known etc.

Challenge process

May challenge a jury member is bias perceived

Rules of evidence

Only relevant evidence presented to the jury

Role of the Judge

Judges seek to have juries only consider relevant material. i.e., suppression of names/movies etc.

Unanimous Verdict

Beyond reasonable doubt – deemed to be fair.

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Factors contributing to the entitlement to a fair and unbiased hearing

Democratic and human rights

Ordinary people make decisions and implement an independent judiciary

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Factors that weaken the entitlement to a fair and unbiased hearing

Ineligibility requirements

Those who would/are excused, would their inclusion undermine the impartiality of a jury?

No guarantee of a cross-section

Is there a better way? Current practice could get like minded/like occupation people together.

Bias can be hidden

Someone with strong opinions and convictions may slip through.

Who are one’s peers

Ethnic, generational differences. Should it be the same?

Media influence

It may be impossible that a jury or jury member has no knowledge of the case being tried.

Legal Complexity

Issues hard to understand. Legal professionals can be influential and intimidating

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Effective access to the legal system

80% of matters determined in the Magistrates Court

Less than 5% of cases determined in the county and supreme courts require a jury

Cost of using a jury is high

Juries only come into play when a case has been instigated.

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Timely resolution of disputes

Jury trial takes longer to determine than a determination made without one

May hinder than help a speedy resolution

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How does the jury system hinder the timely resolution of disputes

The empanelment process

Increased time to empanel, excuse, challenge jurors. Can take days to undertake

BELJAJEV Case - The jury - 77 days lost due to juror illness, death of foreperson, judge’s concerns over jurors’ exhaustion. Frequent adjournments due to illness of witnesses and jurors.

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How does the jury system hinder the timely resolution of disputes

The need for explanation

No legal training, no/minimal court experience. Every step is explained. Counsel tale longer to present evidence to ensure understanding.

The rules of evidence

Jury removed from the court when legal argument is being undertaken. This is not a rare occurrence.

Judges misdirection of juries

2/3 of retrials in 2010 resulted from mistakes by judges in child sex cases. New trial required.

Deliberation time

Time limits to reach a verdict are rarely adhered to. More time for a jury to decide is more efficient than a retrial with possibly the same result.

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Your Turn

Complete Jury System Summary work sheet

Complete Q 1 – 6 on page 162

Complete Q 1 – 7 on page 164