Contributor: W Benjamin Lindner
Criminal juries decide whether an alleged offender is “guilty” or “not guilty”. Civil juries decide the amount of compensation awarded to the claimant (if any). The Juries Act 2000 (Vic) outlines those who are liable, disqualified or ineligible for jury service.
Jury service in Victoria is governed by the Juries Act 2000 (Vic) (“Juries Act”). All references to legislation in this section refer to the Juries Act unless otherwise stated.
• Criminal juries consist of 12 people who decide whether a person on trial in the County or Supreme Courts is guilty or not guilty. When a criminal trial is expected to be lengthy, there can be up to 15 people on the jury. If necessary, at the end of the trial, and before the jury retires to consider its verdict, the jury is reduced by ballot to 12 people.
• Civil juries determine what compensation or damages (if any) a person should receive. A civil jury consists of six people, but can (in some cases) be increased to eight people.
For detailed information about jury service and access to the Victoria Law Foundation’s free publication, the Juror’s Handbook, visit the Court Services Victoria website (www.courts.vic.gov.au).
Every person aged 18 years or above who is enrolled to vote for the Legislative Assembly and Legislative Council of Victoria (i.e. the Victorian Government) can serve on a jury in Victoria.
This is unless a person is:
• disqualified from jury service; or
• ineligible for jury service (s 5).
People who are disqualified from jury service are set out in the Juries Act (sch 1) and include those who:
• within the past two years have been sentenced for an offence by a court;
• within the past two years have been convicted or found guilty of an offence and placed on an undertaking to the court;
• at any time have been convicted of one or more indictable offences and sentenced to a total of three years or more in prison;
• within the past five years have been in prison for less than three months; or served an intensive correction order, suspended sentence or sentence at a youth training centre; or served a community based order or a community corrections order;
• within the past 10 years have been in prison for more than three months (excluding any imprisonment for failure to pay a fine) or have been on parole;
• are on bail for an indictable offence;
• are undischarged bankrupts.
People who are ineligible for jury service are set out in the Juries Act (sch 2) and include those who are, or who in the past 10 years have been:
• a judge, magistrate or holder of a judicial office;
• a bail justice;
• admitted to legal practice in Victoria;
• a member of the police force;
• an ombudsman or an employee of an ombudsman.
Also included as ineligible under schedule 2 of the Juries Act are people who:
• are employed in connection with a legal practice by a person admitted to practice law in Victoria;
• have a physical disability that prevents them from performing jury service duties;
• are patients within the meaning of the Mental Health Act 2014 (Vic);
• have an intellectual disability within the meaning of the Disability Act 2006 (Vic);
• are under a guardianship or administration order;
• are unable to communicate in, or adequately understand, English.
If a person is liable for jury service (that is, they are a voter who is not disqualified or ineligible) then they may apply to be temporarily or permanently excused from jury service for a good reason (ss 8, 9). The Juries Commissioner makes this decision (see “Contacts”).
The circumstances that amount to good reasons to be excused from jury service are set out in the Juries Act and include:
• illness or poor health;
• too long a distance to travel to jury service;
• substantial hardship to the person if made to attend jury service;
• substantial inconvenience to the public if the person is made to attend jury service;
• care of dependants where alternative care is not reasonably available;
• advanced age.
To get excused from jury service, a person must prove to the Juries Commissioner that they have a good reason by giving evidence under oath (either oral or by affidavit), or by supplying a statutory declaration, or by other means deemed appropriate by the commissioner (ss 8(4), 9(5)). If the commissioner refuses an application to be excused from or defer jury service, the commissioner must notify the applicant of the decision.
If a person is unhappy with the commissioner’s decision, they can appeal to the commissioner. An appeal must be lodged within 14 days of receiving the commissioner’s notification of their decision, or before the date on which jury service begins (whichever is sooner). The Supreme or County Court decides the appeal.
A court can excuse a person from jury service (s 11) and decide that a person not perform jury service if this is just and reasonable (s 12).
The Supreme Court and the County Court of Victoria hear cases in Melbourne and also in Ballarat, Bendigo, Geelong, Hamilton, Horsham, Mildura, Sale, Shepparton, Wangaratta and Warrnambool. The County Court can also sit in Bairnsdale, Kerang and Morwell. The electoral district(s) around each of these towns is the jury district for that town, so people enrolled in that jury district are liable to serve as jurors in cases heard in that town (s 18).
At least every 12 months the Juries Commissioner must notify the Electoral Commissioner of the number of people that will be required for jury service in a jury district. The Electoral Commissioner then randomly selects people who are qualified and liable for jury service in that district and sends the roll to the Juries Commissioner. A person selected for the jury roll is not eligible to be selected again for at least 12 months (s 19).
After receiving the jury roll from the Electoral Commissioner, the Juries Commissioner sends a questionnaire to either all the people, or the necessary number of people, on the jury roll (s 20). A person receiving a questionnaire has 14 days to fill it out and send it back unless the Juries Commissioner gives a longer time. If a person fails to send the questionnaire back then they remain liable for jury service. It is an offence to fail to answer a question or give false or misleading information, with a maximum penalty of 30 pu or three months imprisonment (s 68). The purpose of the questionnaire is for the Juries Commissioner to work out who is qualified and liable for jury service.
From the lists of people liable for jury service, panels of people are chosen at random for each jury district and these people are sent a summons to attend jury service. The summons must be served at least 10 days before the juror is to attend court (s 27).
If for some reason a person cannot attend jury service as demanded by the summons, they should immediately contact the Juries Commissioner. It may be that a person can be excused or have their jury service deferred if they have a good reason (see “Who can be excused from jury service?”).
It is an offence not to attend jury service after receiving a summons; the maximum penalty is 30 pu or three months imprisonment (s 71).
If a person is empanelled (i.e. chosen for a jury) it is an offence to fail to attend court without a reasonable excuse (s 71). The maximum penalty is 60 pu or six months imprisonment.
Jurors are paid for each day’s attendance, whether or not they serve on a jury (s 51). The payment is at a prescribed rate under the Juries (Fees, Remuneration and Allowances) Regulations 2001 (Vic), which is currently $40 a day for the first six days, and $80 a day for each day thereafter. If a trial lasts more than a year, the payment rises to $160 per day. People summoned for jury service should bring their summons with them, as this is the authority to get paid.
If a person is an employee, they are entitled to be reimbursed by their employer the difference between the amount paid by the court and the amount they could reasonably expect to have received from their employer if they had not been performing jury service (s 52). An employee must notify (in writing) their employer as soon as possible of the date of their jury service, the duration of the jury service, and the amount of income to be reimbursed by the employer (s 53).
Employers should note that it is an offence, carrying hefty penalties, to terminate or threaten to terminate the employment of an employee, or otherwise prejudice the position of an employee, because that employee attends jury service (ss 76, 83).
People summoned for jury service go into a jury “pool”. When a jury is required for a trial, the jury pool supervisor selects a group of jurors (called a “panel”) for the trial. The panel is assembled in the jury pool room where the jurors are shown a video of the final step in the jury selection process (called “empanelment”). This makes sure that prospective jurors are familiar with the procedure before entering a court for empanelment.
The panel of jurors is then taken to a court that requires a jury. One of the judge’s staff announces that if your name is called, you must walk in front of the accused person in the dock, and then to the jury box, unless you hear the accused call “challenge”. The judge’s associate calls out the name and occupation of each panel member. Sometimes, the panel members are referred to by a number and occupation, rather than by name (s 36).
The defence can challenge jurors, and the prosecution can ask jurors to be stood aside. If there is one accused person, the defence can challenge three jurors; if there are two or more accused people, the defence can challenge two jurors per accused person (e.g. if there are two accused people, the defence can challenge four jurors). Likewise, the prosecution can stand aside three jurors if there is one accused person; if there are two or more accused people, the prosecution can stand aside two jurors for each accused person. The jurors who are not challenged or stood aside are on the jury for that trial (s 36(2)).
The jury’s role is to decide the case based on the evidence presented during the trial. Evidence may be submitted as oral evidence from witnesses, or physical evidence (i.e. exhibits). The judge tells (or “directs”) the jury everything it needs to know about the law to be applied in the case. The jury:
• decide the facts of a case;
• apply the law as the judge directs;
• bring in a verdict.
It is important that the facts of a case are discussed only with other members of the jury, and not with friends and family. All discussions should only take place inside the jury room. If assistance or clarification is required, jurors can ask the judge through the foreperson. It is a criminal offence to conduct any research of your own (i.e. you must not search the internet for any matter associated with the case), go to a scene of an offence, conduct any experiment, or request any other person to make enquiries (s 78A).
Jurors are not permitted to discuss any facts or legal issues with the judge’s staff, who can only assist jurors with administrative matters (e.g. refreshments in the jury room). Also, jurors are forbidden from disclosing the identity of another juror, or the details of any jury discussions about the case. This also applies after a trial is finished. Jurors should report anyone who seeks to talk to them after a trial to the Juries Commissioner (see “Contacts”).