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Law Reform Committee LAW REFORM COMMITTEE Jury Service in Victoria FINAL REPORT Volume 3 DECEMBER 1997 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 N° 76 Session 1996–97 COMMITTEE M EMBERS 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 Alister Paterson, MP Mr John Thwaites, MP The Committee's address is — Level 8, 35 Spring Street MELBOURNE VICTORIA 3000 Telephone inquiries — (03) 9651 3644 Facsimile — (03) 9651 3674 Email — [email protected] Internet— http://www.vicnet.net.au/~lawref COMMITTEE S TAFF 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) 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 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 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
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