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LAW REFORM COMMITTEE Jury Service in Victoria FINAL REPORT Volume 3 DECEMBER 1997 LOAN COPY (PLEASE RETURN TO THE PROCEDURE OFFICE) PARLIAMENT OF VICTORIA LAW REFORM COMMITTEE Jury Service in Victoria FINAL REPORT VOLUME 3 REPORT ON RESEARCH PROJECTS Ordered to be Printed Melbourne Government Printer December 1997 76 Session 1996-97 COMMITTEE MEMBERSHIP CHAIRMAN Mr Victor Perton, MP DEPUTY CHAIR Mr Neil Cole, MP MEMBERS Mr Florian Andrighetto, MP Hon Carlo Furletti, MLC Hon Monica Gould, MLC Mr Peter Loney, MP Mr Noel Maughan, MP Mr Allster Paterson, MP Mr John Thwaites, MP The Committee's address is — Level 8, 35 Spring Street MELBOURNE VICTORL\ 3000 Telephone inquiries — (03) 9651 3644 Facsimile — (03) 96513674 Email — [email protected] Internet— http : / / www^. vicnet.net.au / -lawref ui Jury Service in Victoria—Final Report: Volume 3 COMMITTEE STAFF EXECUTIVE OFFICER and DIRECTOR OF RESEARCH Mr Douglas Trapnell RESEARCH OFFICERS Mr Mark Cowie (until 10 November 1995) Ms Padma Raman (from 3 March 1997) Ms Rebecca Waechter (until 18 November 1997) ADDITIONAL RESEARCH ASSISTANCE Ms Angelene Falk OFFICE MANAGERS Mrs Rhonda MacMahon (until 18 October 1996) Ms Lyn Petersen (from 2 December 1996 to 1 June 1997) Ms Angelica Vergara (from 11 August 1997) Jury Service in Victoria—Final Report: Volume 3 CONTENTS Committee Membership iii Committee Staff v Functions of the Committee xi Terms of Reference xiii INTRODUCTION 1 1 HISTORY 3 Section 1: The Jurisprudential Rationale for the Jury as an Institution Within the Civil and Criminal System 3 Role of the Jury 4 Importance of the Jury System 4 Strengths and Weaknesses in the Jury System 7 The Erosion of Trial by Jury 9 Section 2: Historical Aspects of Jury Service 12 Introduction 12 Early Development of the Jury System in England and its Subsequent Evolution up to the Mid-Nineteenth Century 13 Introduction of the Jury System into the Colony of New South Wales and its Evolution up to 1851 27 The Introduction of the Jury System into the Colony of Victoria and its Evolution up to 1900 32 The Nature of the Right to Jury Trial in Victoria 36 2 COMPLEX TRIALS 39 Introduction 39 Juror Competence and Comprehension 43 Issues of Competence 43 Jury Service in Victoria—Final Report: Volume 3 Issues of Comprehension 46 Juries and Complex Trials 50 The Anatomy of Complex Cases 54 Definitions of Complexity 54 Commercial Cases 57 Expert Evidence 59 Forensic Evidence 65 Scientific/Medical Evidence 66 Alternatives to Existing Methods of Trial by Jury in Complex Cases 68 Judge Alone Trials 69 Trial by Bench of Judges 79 Trial by Judge and Assessors 80 Special Juries 84 Aids to the Jury in Complex Cases 91 Juror Information and Education 92 Documentary Evidence 95 Note Taking by Jurors 99 Jury Access to Transcripts of Evidence 102 Questioning of Witnesses by Jurors 104 Courtroom Facilities 107 Procedural Reforms 109 Pre-Trial Procedures 109 Presentation of Evidence 114 Judges' Instructions to the Jury 117 Trial Management 122 Jury Size and Additional Jurors 123 Conclusion 125 VIU Contents 3 GENDER ISSUES 129 Section 1: The Representative Jury 129 Introduction 129 The Role of Trial by Jury 129 Historical Basis of Jury Concepts 130 Judgement by Peers 130 Judgement by a Representative Jury 131 Problems with the Concept of a 'Representative Jury' 133 Evolution of the Jury 134 The Ideology of the Impartial Jury 134 Conclusion 136 Section 2: Representation of Women on the Jury 136 Introduction 136 The History of Women's Participation in the Victorian Jury System 137 Current Status of the Law 138 Perceptions of the Involvement of Women in Victorian Juries 138 The Present Representation of Women on Victorian Juries 139 The Statistical Picture 139 Questionnaire 140 Discussion 143 The Unequal Status of Women in Australian Society 144 Equal Gender Representation in all Cases 146 Equal Gender Representation Legitimises the Judicial Process 146 Equal Gender Representation Ensures Reflection of Community Values 147 Implementation of Federal Government Policy 149 Representation of Women on Juries in Sexual Offence Cases 154 Background 154 Gender Equality on Juries in Sexual Offence Cases 155 The Use of Peremptory Challenges to exclude Women in Sexual Offence Cases 158 Recognition of the Rights of Victims 160 ix Jury Service in Victoria—Final Report: Volume 3 Alternative Means of Ensuring Equal Representation in Jury Selection 161 The Use of the Peremptory Challenge 161 Juror Education 163 Qualification for Jury Service Section 3: The Jury in a Multicultural Society 164 Introduction "164 National Agenda for a Multicultural Australia 165 Cultural Diversity in Victoria 166 Representation of NESB Persons on Victorian Juries 167 The Disproportionate Impact of the English Language Requirement 170 A Quota System 171 Representation of an Accused's Ethnicity on a Jury 172 The Position in Other Jurisdictions 173 The Accused's Right to a Fair Trial 176 Characteristics of the Accused's Culture can be Given in Evidence 177 Impediments to NESB Participation on Juries 178 Citizenship 178 Conclusion 181 Challenges to Jurors 182 Peremptory Challenges and Race in America 182 Australia's Prohibition on Racial Discrimination 183 The Abolition of the Peremptory Challenge 184 Section 4: Representation of Aboriginal and Torres Strait Islander People on Victorian Juries 185 Introduction 185 Addressing the Under-representation of Aboriginal Persons on Juries 187 The Represenation of the Accused's Aboriginality on Juries 188 The Recognition of Aboriginal Customary Law 188 The ALRC Recommendations on Trial by Jury 189 Conclusion 191 FUNCTIONS OF THE COMMITTEE PARLIAMENTARY COMMITTEES ACT 1968 4E. The functions of the Law Reform Committee are- (a) to inquire into, consider and report to the Parliament where required or permitted so to do by or under this Act, on any proposal, matter or thing concerned with legal, constitutional or Parliamentary reform or with the administration of justice but excluding any proposal, matter or thing concerned with the joint standing orders of the Parliament or the standing orders of a House of the Parliament or the rules of practice of a House of the Parliament; (b) to examine, report and make recommendations to the Parliament in respect of any proposal or matter relating to law reform in Victoria where required so to do by or under this Act, in accordance with the terms of reference under which the proposal or matter is referred to the Committee. Jury Service in Victoria—Final Report: Volume 3 Xll TERMS OF REFERENCE Pursuant to section 4F (1) (a) (ii) of the Parliamentary Committees Act 1968 the Governor in Council refers the following matters to the Law Reform Committee— 1. To review and make recommendations on the criteria governing ineligibility for, and disqualification and excusal from, jury service under sections 4 and 5 of the Juries Act 1967. 2. To review and make recommendations in respect of the compilation of jury lists under Part II and the pre-selection of jurors under Part III of the Juries Act 1967. 3. To review and make recommendations in respect of the preparation of jury panels and the summoning of jurors under sections 20,20A, 21, 23, 24, 25, 26 and 27 of the Juries Act 1967. Under section 4F (3) of the Parliamentary Committees Act 1968 the Governor in Council specifies 31 October 1996 as the date by which the Committee is required to make its final report to the Parliament on this matter. Dated: 12 June 1996 Responsible Minister: JAN WADE, MP Attorney-General Victoria Government Gazette, G24,20 June 1996, pages 1567-1568 Xlll Jury Service in Victoria—Final Report: Volume 3 INTRODUCTION On the 20 September 1994 the Victorian Law Reform Committee received a reference from the Governor in Council to review and make recommendations concerning the categories of exemption from jury service imder the Juries Act 1967 (Vic.) and other matters relating to the administration of the jury system in Victoria/ These terms of reference were amended in February 1995 to include a review of the practice of jury vetting.^ On 5 March 1996 the Parliament was dissolved for the State election and the Committee's reference lapsed. Following the election a new Comrmttee was appointed on 14 May 1996 consisting of two former members and seven new members, including a new Chairman. The Committee has previously recorded its appreciation for the substantial contributions made by its former members. Terms of reference for the current inquiry were published in the Victoria Government Gazette on 20 June 1996. They are in identical form to those as amended in February 1995.^ The Law Reform Committee is a Joint Investigatory Committee of the Victorian Parliament with a statutory power to conduct investigations into matters concerned with legal, constitutional and parliamentary reform or the administration of justice." The Committee's membership, which includes lawyers and non-lawyers, is drawn from both Houses of the Victorian Parliament and all political parties are represented. In November 1996 the Committee published its recommendations on the following matters: a. the criteria governing ineligibility for, and disqualification and excusal from, jury service under sections 4 and 5 of the Juries Act 1967; Victoria, Government Gazette, G 39,29 Sept. 1994, p. 2343. Victoria, Government Gazette, G 5,9 Feb. 1995, p. 311. Victoria, Government Gazette, G 24,20 June 1996, p. 1567. Parliamentary Committees Act 1968 (Vic.), s. 4E. b. the compilation of jury lists under Part II and the pre-selection of jurors under Part III of the Juries Act 1967; and c. the preparation of jury panels and the summoning of jurors under sections 20, 20A, 21, 23, 24, 25, 26 and 27 of the Juries Act 1967.' During the Inquiry the Committee connmissioned three research papers on topics of particular importance for a complete understanding of the varied and complex issues raised by the reference.
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