Jane Goodman Delahunty: That has happened, and in fact if you track some of the ways that peremptory challenges are exercised, it seems pretty clear that that's one of the constructs or ideas in the lawyers' minds is that perhaps that somebody appears to be similar in some ways to the defendant they'll be more favorable, and dissimilar will be less favourable. Certain groups such as lawyers and people with certain disabilities are ineligible to serve on juries. A lack of understanding of the process and grounds for challenge for cause. Age, gender, race. Employers are also required to pay their employees "make-up pay", that is, the usual pay the employee would have earned from working, less the jury duty payment received from the state. 91 Office of the Director of Public Prosecutions (Queensland), Director’s Guidelines (April 2013) 45. 6 The number of peremptory challenges available to each separately represented party in a civil jury trial should be reduced from three to two. See further [3.226]. Generic descriptions such as ‘public servant’, ‘academic’ or ‘retired’ should be avoided as they do not assist the parties to make an informed decision with respect to a peremptory challenge.127, Table 1: Perceived basis for peremptory challenges129, Perceived basis for peremptory challenge129, A person’s capacity to serve on a jury or ability to be impartial cannot be discerned from a person’s gender, race, age, disability or physical feature, and a process that accepts the misconception that it can, only serves to promote inaccurate and often prejudicial stereotypes.144, It allows the defence to eliminate persons who are perceived, rightly or wrongly, to be potentially prejudiced against the defence. 229 Criminal Justice (Scotland) Act 1995 (Scot) c 20, s 8. Where two or more persons are jointly charged, each is entitled to challenge 3 jurors peremptorily. Jacqueline Horan: Each side has the right to elect that one of the persons that's been chosen from the group of citizens that comes to court that day does not sit on that jury. 254 A County Court judge consulted by the Commission identified this as one of the advantages of the New South Wales empanelment process: Consultation 22 (Judges of the County Court of Victoria). Many of the people have very strong views pro or against the death penalty. 221 Consultation 10 (Deputy sheriff, Queensland). 140 See Judicial College of Victoria, Victorian Criminal Charge Book, [1.5.2]. This article reviews peremptory challenge procedures in use in Australian jurisdictions. 19 Consultation 14 (Acting deputy director and professional development officer, Commonwealth Director of Public Prosecutions, Melbourne Office). 30 Ibid s 35(3), (4). This can be a very stressful and intimidating task for those accused who are vulnerable or whose verbal presentation may act to prejudice them in the eyes of prospective jurors.274. Separately represented parties have the right to three challenges each, but they may consent to join their challenges. Jacqueline Horan: That idea that young females should be taken off sexual assault cases is not always wise. But they're also entitled to find out an awful lot more about jurors, and Jane Goodman Delahunty, you alluded to that before. In this context, it is considered that abolition of peremptory challenge should limit the defendant’s ability to ‘pack a jury’ and thereby reduce the risk of perverse verdicts.’. Scenario 2: Using three peremptory challenges to exclude women. What's the rationale for it? If each accused only had two challenges, as the Commission is proposing, then the combined eight challenges available to the accused would be very unlikely to exclude all the women, with one or two likely to remain. Are there viable alternatives to peremptory challenges? Challenge for cause and a peremptory challenge Challenge for cause is the request made by the defendant or victim “that a prospective juror be dismissed because there is a specific and forceful reason to believe the person cannot be fair, unbiased or capable of serving as a juror” (Challenge … 245 Jacqueline Horan and David Tait, ‘Do Juries Adequately Represent the Community? 241 Consultations 24 (Assistant sheriff, manager jury and court administration, NSW); 10 (Deputy sheriff, Queensland). What do you both think about peremptory challenges? 86 See, eg, Submissions 10 (Victoria Legal Aid); 16 (Criminal Bar Association). There was a high degree of understanding about why peremptory challenges exist. 66 Challenge on ground of ineligibility or disqualification. Again, this occurred despite an earlier report by the Law Commission of New Zealand which recommended that no change be made: Law Commission of New Zealand, Juries in Criminal Trials, Report No 69 (2001) 91. 203 Submission 12 (Victorian Director of Public Prosecutions). Jane Goodman Delahunty: One of the most important rationales that exists is that it gives the defendant the -- certainly the right, the opportunity, to have some say in who is finally empanelled as a decision-maker on his or her case, and that even if this isn't a very meaningful right, because oftentimes it turns out in practice that the Defence counsel, or the barristers, don't even consult with the client at the time that the peremptory challenges are exercised, so it's more symbolic and there's no discussion back and forth as to whether a particular juror ought, or ought not to be challenged. 3.25 In Australia, the number of challenges available to parties varies by jurisdiction, as does the natu… 62 The court must permit a legal practitioner to assist the accused on application by them: Juries Act 2000 (Vic) s 39(3). Damien Carrick: So it's not controversial in the UK. See Carol Chase and Colleen Graffy, ‘A Challenge for Cause against Peremptory Challenges in Criminal Proceedings’ (1997) 19 Loyola of Los Angeles International and Comparative Law Review 507, 516. Three forms of challenge were recognised: challenge to array, challenge for cause and peremptory challenge. Each year about 170,000 Australians are summoned for jury duty, but for a range of reasons, they don't all serve as jurors. v. Alabama, 511 US 127 (1994). Last Month, the Victorian Law Reform Commission released a report recommending changes to the way juries are selected for trials. 20 Juries Act 2000 (Vic) s 22(2). Jury nullification (US), jury equity (UK), or a perverse verdict (UK) generally occurs when members of a criminal trial jury believe that a defendant is guilty, but choose to acquit the defendant anyway, because the jurors consider that the law itself is unjust, that the prosecutor has misapplied the law in the defendant's case, or that the potential punishment for breaking the … The Court dismissed this application finding that ‘unless it is shown that this is a result of some deliberate contriving of the sheriff, it does not appear to me that this constitutes a ground for setting aside the panel’ (McInerney J at 425). The Crown, however, must not be seen to select a jury to produce one that is favourable to the Crown, as this is not consistent with the role of the Prosecution in the conduct of a trial.11, If a prosecutor has information concerning a potential juror that suggests he or she may unduly favour the prosecution the prosecutor should either challenge or stand aside the potential juror or make the information available to the defence. Jacqueline Horan: Well very interestingly, they have a process where they will question the potential jurors about their views on the death penalty, and if you are against the death penalty, or it will hinder your ability to come to a true verdict on the facts of the case, then you are disqualified from serving on that jury. 79 Consultation 35 (Manager, jury services, Western Australia). 75 Consultation 24 (Assistant sheriff, manager jury and court administration, NSW). The prosecution and the defence may challenge (refuse) up to three jurors each without giving a reason (peremptory challenge). This figure accounts for larger panels required for longer or complex trials. 150 Cheryl Thomas, Are Juries Fair? There's a great quote from a barrister that just said, 'You know, a grunge dresser with tattoos can just as easily have a copy of The Fin. 170 Queensland Law Reform Commission, A Review of Jury Selection, Report No 68 (2011) 314 [10.112]. Jurors identify their occupation in the questionnaire they complete when initially contacted by the Juries Commissioner’s Office (JCO). 89 These last three characteristics may be known from the person’s appearance. And the typical kind of case where you might see it happen is, for example, a sexual assault case, where there are many examples quoted of lawyers challenging on behalf of the defence, to remove people who they think might be favourable towards the victim and unfavourable towards the defendant who's usually male and so challenging all of the women from the panel, leaving in some cases an exclusively male panel. 35 The Hon. An earlier reduction had been made in 2000, when the number of peremptory challenges available was reduced from eight to five: Jury Amendment Act 2000 (WA) s 9. Jane Goodman Delahunty: Exactly. For example, if on a given day the courts required four criminal jury panels of 33 prospective jurors, the pool size would not be 132 prospective jurors (four times 33). Peremptory challenges should be retained for civil jury trials. So it's incredibly intrusive on the individual citizen's personal information. This followed the recommendations of the New South Wales Law Reform Commission’s report into juries in criminal trials: New South Wales Law Reform Commission, Criminal Procedure: The Jury in a Criminal Trial, Report No 48 (1986) 50–51 [4.58]. Now that took a long time, and when you're looking at a Supreme Court case costing $40,000 a day, every minute is several hundred dollars of taxpayers' money. 238 Submission 12 (Victorian Director of Public Prosecutions). So in South Australia, we learned that teachers are regarded as jurors who ought to be challenged and struck from the panel, perhaps because... Jane Goodman Delahunty: I'm not sure exactly about the content of that stereotype, but perhaps they're regarded as more critical, perhaps they're regarded as more analytical, thinking too hard, and people are worried that jurors who work that hard might be unfavourable. Jacqui, you spoke about attire; Jane you spoke about profession. Damien Carrick: Jacqueline Horan and Jane Goodman Delahunty, you've looked very closely t what the laws are in different places, and you've spoken to judges and lawyers and people who are part of this system. To provide an expedient means of removing prospective jurors who appear to be unable or unwilling. Damien Carrick: And I'm wondering, in terms of the way a jury -- the people who are left, the people who are finally empanelled, if the defence have knocked out a certain category of people and it's obvious that they've done that, the jury might arc up and react to that obvious manipulation of the group. Damien Carrick: Jacqueline Horan, there have been cases in Australia where race and jury have been really touchy issues. The JCO then standardises these responses in accordance with the Australian and New Zealand Standard Classification of Occupation Guidelines. I felt the process was undignified and intimidating. The defence strategy is to use all of its six peremptory challenges to challenge women who are balloted from the panel for the jury. However, aside from these guidelines, there is nothing restricting the use of stand asides. 8 A prospective juror who is stood aside by the Crown should be permanently removed from the ballot for that trial. name (if the judge chooses to identify the prospective jurors by name rather than number—see Chapter 4), challenging ‘out’ of the jury box, instead of challenging as the person proceeds towards the jury box (New South Wales and Tasmania). Bill C-75 intends to completely abolish section 634, the provision that allows for peremptory challenges to potential jurors. 73 The Commission understands from discussions with jury administrators in other Australian states and territories that the architecture of their courtrooms may at times result in prospective jurors walking in front of the accused, but it is not a strict requirement. However, the practice of challenging jurors prior to reaching the jury box (as in Victoria) was not adopted in the Juries Act 2003 (Tas). Damien Carrick: What are the arguments in favour of this system of peremptory challenges? And there was a request by the counsel at that stage for a new jury to be formed, that didn't give the perception of it being biased. So it clearly is a process that changes the community representation, and the values and the cross-section of attitudes to be debated. And also Psychology Professor Jane Goodman Delahunty at Charles Sturt University. But for quite a few that's as far as they get, because at that point barristers give all the potential jurors 'the once over'. This figure accounts for larger panels required for longer and complex trials. Judicial officers should ensure that the accused and their legal representatives have the opportunity to see prospective jurors as their names are balloted, and have a reasonable period of time in which to exercise their challenges. 83 Consultation 17 (Acting jury manager, South Australia). 1. Both sides had jury trial consultants in this case. 88 People with a physical disability ‘that renders the person incapable of performing the duties of jury service’ are ineligible to serve as jurors; see Juries Act 2000 (Vic) sch 2, cl 3(a). Damien Carrick: Fascinating, because the fear of the prosecutors perhaps is that such people will just let somebody off rather than allow them to go to the firing squad, or the gas chamber, or the electric chair. This article reviews peremptory challenge procedures in use in Australian jurisdictions. This approach was affirmed in R v Badenoch [2004] VSCA 95 (27 May 2004), [66]–[72] where the Aboriginal defendant unsuccessfully argued that the jury panel should be discharged because it was unrepresentative of the Mildura community (it did not contain anyone who was Aboriginal). The jury panel sits outside the courtroom in the Tasmanian Supreme Court in Hobart, and prospective jurors only enter the courtroom if their name or number is called over a public address system. And you are far more likely to get a conviction -- almost inevitably many social scientists have argued, once you have a death-qualified jury you can predict the outcome. the names of the principal witnesses, and, legislative prohibitions on challenges based on discriminatory grounds such as race. This article reviews peremptory challenge procedures in use in Australian jurisdictions. The initial list of juries to be summoned comes from our electoral roll, and you are called to the court that is closest to where you live, within a certain limit of approximately 100 kilometres, and because of that, for example, we do have a high representation of people from the Aboriginal community in some states that are defendants. That's the program for this week; thanks to producer Erica Vowles, and also to technical producer this week, Nick Mierish. Many try, successfully or unsuccessfully, to excuse themselves. And didn't escape their attention, and consequently it's likely that they might have had a dim view of the defendant before they ever began the trial. Each year about 170,000 Australian are summoned for jury duty. Damien Carrick: Jacqueline Horan, Senior Lecturer at the University of Melbourne Law School. However, Commonwealth offences are prosecuted according to the criminal procedure rules of the jurisdiction in which the offence was committed: Consultation 14 (Acting deputy director and professional development officer, Commonwealth Director of Public Prosecutions, Melbourne Office). 271 See also the discussion at above n 2. It's a policy matter that they allow the jury to be as representative as possible. 189 Consultations 12 (Prospective jurors post-empanelment, Geelong, Victoria); 20 (Prospective jurors post-empanelment, Morwell, Victoria). 9 Prospective jurors should not be required to parade in front of the accused. 94 The average size of a criminal panel is 39. 183 Submission 14 (Victorian Equal Opportunity and Human Rights Commission). The man's lawyer succeeded in having the trial moved from Townsville to Brisbane after he showed the judge a survey of 400 Townsville residents, which found that most have negative attitudes towards indigenous Australians, especially those from Palm Island. 71 Juries Act 2000 (Vic) s 33(1)(a). Jacqueline Horan: That's right. 113 Victorian Electoral Commission studies have indicated that Aboriginal Victorian and Victorians from certain culturally and linguistically diverse communities face barriers to enrolment not experienced by the general population. 49 Criminal Procedure (Scotland) Act 1975 (Scot) c 21, s 130(3A). Review under their arm these days, because we are so multicultural, and a name doesn't tell you much about a person. Jacqueline Horan: You'd have to look at the demographics of that community to see if 99% of people are what the jury is, and if that's the case, then the cards have fallen the way that they have, because there wasn't much choice really. http://www.vicdeaf.com.au/news.asp?aid=661&t=first-deaf-auslan-user-summ... 4. Its guidelines apply to those prosecutions nationally. Jurors should clearly understand that being eliminated from the jury panel by a peremptory challenge is no reflection upon their ability or integrity. 36 An Act for Regulating Juries (1857, Vic). 212 The Scottish Office Home and Health Department, Firm and Fair: Improving the Delivery of Justice in Scotland (1994) 17 [3.9]. 55 Jury Act 1995 (Qld) s 29(2); Supreme Court of South Australia, Criminal Practice Directions 2007, 1 December 2013, [7.1]. This second rationale is similar to the rationale for the abolition of peremptory challenges in the United Kingdom, referred to at [3.30]. 179 The Commission notes that jury service in Victoria is not voluntary. Can you tell me about some of the responses you received? [1520 30] * * * … The potential embarrassment to prospective jurors of a challenge for cause hearing. References to explore reforms on jury selection processes are pending before the Law Reform Commissions in Western Australia and Queensland. 52 Jurors identify their occupation in the questionnaire they complete when initially contacted by the Juries Commissioner’s Office (JCO). 228 Criminal Procedure (Scotland) Act 1975 (Scot) c 21, s 130(3A). An exception this rule is where a ‘special hearing’ is being conducted under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) following a finding that the accused is not fit to stand trial. So immediately the representative nature of the jury panel is tarnished by the exclusion of a certain sector of the community. This is discussed in Chapter 5. 7 Director of Public Prosecutions, Director’s Policy No 6: Juries (21 February 2014). 258 For example, if the accused exercised two of their three challenges initially, they would be able exercise their remaining challenge on one of the two jurors balloted to replace them. And that's becoming more common in every jurisdiction. Let's go into some problematic territory. 208 Law Commission of New Zealand, above n 33, 87–89 [225], [229]. A Case Study of Civil Juries in Victoria’ (2007) 16(3) Journal of Judicial Administration 179, 198. Jacqueline Horan: When it comes to particularly empanelment by number... Damien Carrick: In other words, where there are places in Australia where they don't know the name or occupation, there's just a number assigned to a particular person as they walk in the door? 215 Jury Act 1995 (Qld) s 47(1). 157 See also [3.103], where the Commission considers the potential effect of peremptory challenges on the demographic composition of a jury. The neutral explanation lawyers can cite for a peremptory challenge can include trivial matters such as a prospective juror’s age, body language or … Damien Carrick: Jacqueline Horan, when it comes to jury selection, there was of course the OJ Simpson case, which I think many people will remember. Up until that point, the Crown could stand a juror aside without having to show cause. ... 63 Peremptory challenges in excess of permitted number. Because really, the peremptory challenge process is a de-selection process. And the other aspect is, that it introduces biases into the system, that all the citizens who come for jury duty sit there and see barristers give them, the jurors, the potential jurors, the look up-and-down, and within 30 seconds, they say 'Challenge', and very embarrassingly, the person has to sit down. 173 Submission 8 (Crime Victims Support Association Inc.), quoting Horan and Goodman-Delahunty, above n 99, 185. 39 Juries (Amendment) Act 1993 (Vic) s 6(2). They've taken a completely different approach to this whole issue of jury empanelment. Jacqueline Horan: In the US they've done a lot of research on this issue and the bottom line is that it's not very helpful just by looking at a person, to know how they're going to decide any kind of criminal case. Other potential jurors may be challenged for cause, i.e. Except for the right of peremptory challenge, a defendant’s power to ensure a … 67 Juries Act 2000 (Vic) s 38(4). Currently in Canada, there are two ways to challenge a juror: peremptory challen 196 Cited by Mason CJ and Toohey J at (1989) 167 CLR 94, 102. Eighteen people are selected from the panel (to take into account six challenges for a jury of 12). 92 Additional jurors are often empanelled for longer trials. One or two additional jurors may be empanelled in some civil trials: s 23(b). And then after that, they all went through a voir dire process where they had to go into a room, and sit with the judge, the prosecutor, the defence counsel, and they were six feet away from OJ Simpson when they were asked, cross-examined with a series of questions. In the rare event that two balloted jurors share a name and occupation, their date of birth is read out. Damien Carrick: So you'd say, 'Get rid of them'? See also Submission 18 (Peter Burt). [I] understand why it is currently done, but it seemed a little bit judgemental and intimidating for the people standing while barristers look them up & down/make notes. But the second option is, well what do we do about those situations? With so much reform activity in Australia, a thorough consideration of the relevance of the peremptory challenge process in the 21st … 169 Law Commission of New Zealand, above n 33, 89 [229]. But presumably that would mean OK, say for instance you have a sexual assault case. 167 This was the primary rationale advanced by both Supreme Court judges (Consultation 13 (Judges of the Supreme Court of Victoria)) and the Criminal Bar Association (Submission 16 (Criminal Bar Association)). Now had this situation taken place in the USA, defence lawyers might have tried another strategy to identify any bias. Damien Carrick: Because a death-qualified jury will have all sorts of other attitudes as well as attitudes towards the death penalty. 13 Commonwealth Director of Public Prosecutions, Guidelines and Directions Manual: Jury Issues (10 September 2012) 1. They can be made either by the defence or the Crown and no reason needs to be provided for the challenge. See Katsuno v The Queen (1999) 199 CLR 40, 58 (Gaudron, Gummow and Callinan JJ). 33 Most recently in Western Australia, where the number of peremptory challenges available in criminal jury trials was reduced from five to three in 2011: see Juries Legislation Amendment Act 2011 (WA) s 4. As a result of exercising all of the peremptory challenges to exclude women, the jury will be comprised of 4.8 women (7.8 women minus three women) and 7.2 men, or 40 per cent women and 60 per cent men. is unlikely to provide a remedy in certain circumstances where a prospective juror’s behaviour or demeanour indicates that they may be biased, is a more time consuming, and therefore costly process. Even if it's not meaningfully exercised, the idea is that at least there is this symbolic right, and that as a result of that, perhaps if the verdict is unfavourable, a defendant will be more inclined to accept it because they have participated and through the participation there might be a greater sense that at least the community members were whomever they would have preferred to empanel. In the course of your research, you spoke to a number of lawyers and judges around the country, and you asked them about the thinking behind decisions to strike out a potential juror, and you got some really, really interesting responses. Fifteen people are selected from the panel (to take into account three challenges for a jury of 12). They can be made either by the defence or the Crown and no reason needs to be provided for the challenge. In Australia a jury generally consists of 12 persons, with the usual requirement for eligibility as a juror being that a person is enrolled as an elector in the State or Territory. 127 Submission 17 (Common Law Bar Association). The JCO then standardises these responses in accordance with the Australian and New Zealand Standard Classification of Occupation Guidelines. This included evidence of racial bias in jury selection. An eye-opening report from Berkeley Law's Death Penalty Clinic finds that racial discrimination is a consistent aspect of jury selection in California. 206 Law Reform Commission of Western Australia, above n 33, 22–23. To assess arguments for and against the peremptory challenge process and the appropriateness of this procedure in the court system of the 21st century in Australian jurisdictions, some understanding of the aims of the jury system is essential. This could be overcome by challenges prior to a person reaching the jury box and adopting the practice from other jurisdictions that all jurors are sworn in together.257. Jacqueline Horan: In the UK, they've abolished peremptory challenges, and they did so as a kneejerk reaction to a trial in 1985 where it was very obvious that the defendants pooled their challenges and really pinpointed the types of person that they wanted on the jury, and a report came out in relation to fraud trials, which picked up this whole manipulation of the jury system and interference with the whole basis of the jury being representative, and said, 'We should no longer have peremptory challenges in fraud trials', and the next thing you know, the government abolished peremptory challenges for all trials. 129 Jurors were able to select more than one basis on which they believed they had been challenged. 109 Horan and Goodman-Delahunty, above n 99, 182. The Racial Justice Act was repealed in June 2013. See also Mark Findlay, Jury Management in New South Wales (Australian Institute of Judicial Administration, 1994) 48. 106 Horan and Goodman-Delahunty, above n 99, 173. Where two or more persons are jointly charged, each is entitled to challenge 3 jurors peremptorily. 233 Submission 12 (Victorian Director of Public Prosecutions). may be biased, in the opinion of the accused or their lawyer, because of assumptions based on characteristics known to the defence such as name, occupation, gender, age and ethnic background.
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