Criminal juries in Victoria

Criminal juries in Victoria Australia

Don Just barrister Melbourne

Introduction

Source of jury panel

Empanelment

Empanelment to retirement

Discharge without verdict

During retirement

Verdict or disagreement

After verdict or disagreement

In Australia, the law and practice relating to criminal juries are mainly State matters. This page is concerned with the position in the State of Victoria. The positions in other States are not greatly different.

There are usually numerous criminal jury trials taking place in Melbourne and provincial centres. Most are heard in the County Court but some, including all murder and attempted murder cases, are in the Supreme Court of Victoria The Commonwealth jurisdiction of these and other State courts is created by the Judiciary Act (Cth) and subject to Constitution of Australia s.80; see further Brownlee v R (2001) 207 CLR 278 .

The law and procedure for criminal juries in Victoria has been developed and varied from a British model introduced to Victoria in the mid 1800's. The model had a history of many centuries: see M. Macnair "The Origins of the Jury"; Canada School Net "The Jury in Criminal Cases - British Development".

There is provision for grand jury as pre-trial process: Crimes Act s.354. This is rare, though see Application by Shaw [2001] VSCA 175. The usual pre-trial process is by Magistrates' Court committal then presentment or indictment: see notes Pre-trial procedure.

Source
Every adult resident in Victoria and on the electoral roll is liable to serve as a juror. There are three groups of exceptions.

(1) Disqualified from serving: Juries Act 2000 schedule 1. For example convicted of an indictable offence and sentenced to more than 3 years' imprisonment; undergoing a community-based order, parole or other sentencing order, imprisoned for over three months within the last five years, undischarged bankrupt.

(2) Ineligible to serve: Juries Act 2000 schedule 2. For example holders of judicial office, legal practitioners and staff, police and staff; employees of Office of Corrections, Community Services, persons with physical disability rendering incapable to serve, inadequate English, or mentally ill.

(3) Right to be excused Juries Act 2000 s.8. For example illness or poor health, incapacity, distance to travel to the place for jury service is if the place is in Melbourne over 50 kilometres or outside Melbourne over 60 kilometres, travel to the place for jury service would take excessive time or cause excessive inconvenience, substantial hardship, substantial financial hardship, substantial inconvenience to the public, the care of dependants and alternative care not reasonably available for those dependants, advanced age, being practising member of a religious society or order the beliefs or principles of which are incompatible with jury service, any other matter of special urgency or importance.

In the event of insufficient jurors, it is permitted to "pray a tales": Juries Act 2000 s.41.

Challenge to the array
Objection to the method of jury procurement: R v Badenoch [2004] VSCA 95; R v Thomas [1958] VR 97; R v Grant [1972] VR 423; R v Greer (1996) 84 A Crim R 482.

Calling over
Juries Act 2000 s.31.
(1) When the panel is present in the court, the proper officer may, if so directed by the court--
(a) call out their names or, if the court makes a direction under sub-section (3), their number, one after another; and
(b) document those who answer to their names or numbers....

The "proper officer" is the Judge's associate: R v Katsuno [1998] 4 VR 414; R v Weston [1999] VSC 185. Calling by number: R v Strawhorn [2006] VSC 251.

Court information for panel
Juries Act 2000 s.32.
(1) The court must inform the panel, or cause them to be informed, of the following information--
(a) the type of action or charge;
(b) the name of the accused in a criminal trial or the names of the parties in a civil trial;
(c) the names of the principal witnesses expected to be called in the trial;
(d) the estimated length of the trial;
(e) any other information that the court thinks relevant.

Excuses by Court
Juries Act 2000 s.32.
(2) The court must then call on persons on the panel to seek to be excused from jury service on the trial.
(3) The court may excuse a person from jury service on the trial if the court is satisfied that the person--
(a) will be unable to consider the case impartially; or
(b) is unable to serve for any other reason.
(4) Unless the court otherwise orders, a person excused from jury service under sub-section (3) must return to the jury pool and may be selected or allocated to a panel in another trial.

There is no necessity for public disclosure of the contents of any written material: R v Lewis [2000] VSCA 140. The provision requires any excusing to precede empanelment: R v Panozzo [2003] VSCA 184.

Selecting jury
Juries Act 2000 s. 36.
(1) After the procedures set out in sections 31 and 32 have been completed in a criminal trial, the proper officer must select persons from the panel and call out the name or number and occupation of those persons and, if there are 2 or more persons with the same name and occupation, their date of birth until the required number, after allowing for all challenges for cause that have been upheld and each arraigned person's right of challenge under section 39, is selected.
(2) The persons selected are the jury to try the issues in the trial.

R v Dooley [1972] VR 55 - occupations required. There is no entitlement to question potential jurors.

Number of jurors
Criminal trial is by 12 jurors : Juries Act 2000 s.22. There is power to empanel 15 jurors for reasons such as the expected length of trial, with any excess number ultimately remaining corrected by ballot:ss. 23, 48; including for Commonwealth offences Ng v R [2003] HCA 20.

Challenge to individual jurors ("to the polls")
Juries Act 2000 s.39
Peremptory challenges in criminal trials
(1) Each person arraigned is allowed to challenge peremptorily--
(a) 6 potential jurors, if only 1 person is arraigned in the trial; or
(b) 5 potential jurors, if 2 persons are arraigned in the trial; or
(c) 4 potential jurors, if 3 or more persons are arraigned in the trial.
(2) In a criminal trial, each peremptory challenge must be made as the potential juror comes to take his or her seat and before he or she takes it.
(3) On the application of a person arraigned, the court must permit a legal practitioner who represents the person, or the clerk of the legal practitioner, to assist the person in making a peremptory challenge.

The right of peremptory challenge is of fundamental nature and non-amenable to infringement, interference or limitation:R v Cherry [2005] VSCA 89; Johns v R (1979) 141 CLR 409. Inadvertent excessive number of challenges: R v Lee [1880] VLR (L.) 225.

Though rare in practice, challenge for cause is unlimited: Juries Act 2000 s.34, s.37, s.40. A ground is bias, though presumably this is not exhaustive: Murphy v R (1989) 167 CLR 94; Bush v R (1993) 115 ALR 654; R v Shelley (1990) 48 A Crim R 139; R v Power [1920] VLR 28; R v Harrison [1957] VR 117; R v Hall [1971] VR 293; R v Dooley [1972] VR 55.

Prosecution challenge
Peremptory challenges are allowed to the same total number available to accused.
Juries Act 2000 s.38
38. Crown right to stand aside jurors in criminal trials
(1) The Crown may require to stand aside--
(a) 6 potential jurors, if only 1 person is arraigned in the trial; or
(b) 10 potential jurors, if 2 persons are arraigned in the trial; or
(c) 4 potential jurors for each person arraigned in the trial, if 3 or more persons are arraigned.

"Vetting" by the Crown occurred until 1999: R v Robinson [1989] VR 289; R v Su [1997] 1 VR 1; R v Katsuno [1998] 4 VR 414. In Katsuno v R (1999) 199 CLR 40 , the High Court held the manner in which it was being practised contravened Juries Act 1967 s.21 because the Jury Commissioner had been making the panel list available to the Chief Commissioner of Police prior to the delivery of a copy of the panel in open court.

Judicial stand down
Juries Act 2000 s.12. Court may determine that a person not perform jury service
(1) If a court thinks it is just and reasonable to do so, the court may, on its own motion, or on an application under sub-section (2), order that a person not perform jury service--
(a) for the whole or part of the jury service period; or
(b) for a longer period specified by the court; or
(c) permanently.

Inherent powers to stand down a juror: R v Cullen [1951] VLR 335. Available until time jurors sworn: R v Searle [1993] 2 VR 367.

Swearing
Juries Act 2000 s.42.
On being empanelled, jurors must be sworn in open court in the form of Schedule 3 applicable to the case.
SCHEDULE 3
SWEARING OF JURORS ON EMPANELMENT
Criminal Trial
You and each of you swear by Almighty God that you will faithfully and impartially try the issues between the Crown and [name of accused] in relation to all charges brought against [name of accused] in this trial and give a true verdict according to the evidence.

Choice of foreperson
R v Leggatt [1971] VR 705. Change: R v Lonsdale [1915] VLR 269.

Putting in charge
Once in charge, jury alone can return a verdict: R v Paprounas [1970] VR 865. Where accused pleads guilty to a lesser alternative count, not guilty to the greater count and the prosecution is not satisfied to abandon the greater count, the jury is to be put in charge on both counts: R v Broadbent [1964] VR 733; DPP v Collins [2004] VSCA 179. It is likewise where an accused facing separate counts pleads before the jury guilty to any of the counts. In the event of judicially directed acquittal, it is still for the jury to find not guilty. It is likewise with judicially directed verdict of guilty. The latter can only occur where there has been plea of guilty before jury, either by way of mixed pleas on initial arraignment before jury, or as in R v Vasic [2005] VSCA 38, during trial, change of plea from not guilty to guilty. Even where there has been plea of guilty before jury, there should not be directed verdict of guilty if there remains substantial issue as to there being legal or evidentiary basis for it, or mistake or confusion as explanation for it; a plea of guilty is an admission of all the legal elements but an admission is never necessarily of the truth.

Segregation of jury
Exceptional and rare. R v Voss [1963] VR 22; R v Gay [1976] VR 577.

Investigation of occurrences involving a juror
R v Vjestica [2008] VSCA 37; R v ALH [2003] VSCA 129; R v Boland [1974] VR 849; R v Zampaglione (1981) 6 A Crim R 287; R v Ousley (1996) 87 A Crim R 326 (threat to juror’s employment).

Discharge of a juror
Juries Act 2000 s. 43.
A judge may, during a trial, discharge a juror without discharging the whole jury if--
(a) it appears to the judge that the juror is not impartial; or
(b) the juror becomes incapable of continuing to act as a juror; or
(c) the juror becomes ill; or
(d) it appears to the judge that, for any other reason, the juror should not continue to act as a juror.
44. Continuation of trial with reduced jury
(1) Subject to sub-sections (2) and (3), if a juror dies or is discharged during a trial, the judge may direct that the trial shall continue with the remaining jurors...
(3) A criminal trial cannot continue with less than 10 jurors.
(4) The verdict of the remaining jurors is a sufficient verdict.

R v Sharp [2005] VSCA 44; Wu v R (1999) 199 CLR 40 on similar NSW provision.

In R v Chirgwin [1918] VLR 160 it was reported by the jury foreman after retirement that a juror had missed some evidence due to (partial) deafness. The judge did not discharge the juror but read out his notes in a manner the juror could hear.

Questioning by jurors
R v Lo Presti [1992] 1 VR 696. To be directed through judge: R v Pathare [1981] 1 NSWLR 124. Not to be encouraged: R v Cvijic, Ct of Crim App, 21 Feb 1986.

Exhibits and materials
Exhibits are ordinarily produced before the jury and, subject to practicability and safety, sent in with the jury deliberation. The jury may be permitted to have materials other than exhibits which have arisen consequent to a directions hearing, also transcripts, addresses, charts, judge's summing up etc: Crimes (Criminal Trials) Act 1999 s.19. As to use of charts and transcripts etc to understand the evidence, see also Butera v R (1987) 164 CLR 180; R v O'Neill [2001] VSCA 227 .

Counsel addresses to jury
Prosecution opening. Not to argue the case: R v Dimauro, Ct of Crim App, 11 May 1993.
Defence reply to prosecutor’s opening: Crimes (Criminal Trials) Act 1999 s.13; R v Shalala [2007] VSCA 199.
Opening to defence case, final addresses by prosecution and defence, supplementary submissions for prosecution: Crimes Act ss.417, 418; R v Coman [1955] VLR 289.

Directions of judge
Prior to retirement a jury is addressed by the trial judge ("charged") on the law and the facts. For what is required, see further site notes criminal appeals on appeal against conviction.

Bad character exposed: R v Hartwick [2005] VSCA 264; R v Hortis [2004] VSCA 143; R v Su [1997] 1 VR 1.

Other evidence or comment unduly prejudicial to accused or prosecution: R v Saffoury [1998] VSCA 36.

Juror bias: Webb v R (1994) 181 CLR 41; R v Vjestica [2008] VSCA 37; R v Goodall [2007] VSCA 63; R v ALH [2003] VSCA 129; ; R v Su [1997] 1 VR 1; R v Evans [1995] VICSC 113, (1995) 79 A Crim R 66; R v Emmet (1988) 33 A Crim R 340; R v Fielding (1991) 54 A Crim R 390; R v Sumner (1985) 19 A Crim R 210; ; R v Booth [1983] 1 VR 39; R v Stretton [1982] VR 251.

Change of plea by co-accused: R v Callaghan [1966] VR 17; R v Chee [1980] VR 303; R v McKittrick [1982] VR 637.

Co-accused absconding: R v Nolan [1961] VR 12; R v Veneris, Ct of Crim App, 7 Aug 1989.

Acquittal by direction on some counts: R v Iuliano [1971] VR 412; R v Glen [1973] VR 809.

Segregation
Barry (1953) 6 Res Judicata 139. Failure strictly to remain so was reason for retrial in R v Chaouok [1986] VR 707, however separation during retirement is now permitted.

Juries Act 2000 s.50. Court may allow jury to separate after retiring to consider verdict
(1) Subject to sub-section (2) but despite any rule of law or practice to the contrary, the court may--
(a) allow the jury to separate; or
(b) allow an individual juror to separate from the jury if, in the opinion of the court, there is good reason to do so--
after the jury has retired to consider its verdict and before the verdict is given or the jurors are discharged.
(2) A court may allow a jury or juror to separate in accordance with sub-section (1) only if each separating juror has been sworn in the form of Schedule 5.

Undertaking on oath: R v Clarke [2002] VSCA 184; R v Taylor, Ct of App, 1996, 86 A Crim R 293. Only one occasion needed: R v Patton [1998] 1 VR 7.

Perseverance directions
Sometimes known as the "exhortation": R v Muto [1995] VICSC 214, [1996] 1 VR 336; R v Rajakaruna [2004] VSCA 114; Black v R (1993) 179 CLR 44; R v Yuill (1995) 77 A Crim R 314; R v Gallagher [1986] VR 219.

Jury Questions
Discretion whether counsel heard: R v Kerr (No. 2) [1951] VLR 239; R v Hodgkinson [1954] VLR 140. R v Leggatt [1971] VR 705. To be asked and answered in open court: R v Black [2007] VSCA 61; R v Fitzgerald (1889) 15 VLR 40.

Limited separation
Immaterial separation: R v Brazel, Ct of Crim App, 26 Mar 1993.

Communication with judge
R v Yuill (1994) 34 NSWLR 179. The contents of any communication between the jury and the trial judge must be disclosed to the parties in open court and recorded. It is said one exception is where the communication concerns some subject which is unconnected with the issues which the jury have to determine - for example, a request by a juror to pass on a message to a relative about staying back late. A second is where the communication concerns some subject about which it was inappropriate for the jury to have communicated with the judge - the most obvious example being a disclosure of the voting figures when quite properly informing the judge of the existence of a disagreement..

Disagreement and majority verdicts
Juries Act 2000 s.46. Failure to reach unanimous verdict in criminal trials
(1) In this section, "majority verdict" means--
(a) if, at the time of returning its verdict, the jury consists of 12 jurors--a verdict on which 11 of them agree;
(b) if, at the time of returning its verdict, the jury consists of 11 jurors--a verdict on which 10 of them agree;
(c) if, at the time of returning its verdict, the jury consists of 10 jurors--a verdict on which 9 of them agree.
(2) If, after deliberating for at least 6 hours a jury in a criminal trial--
(a) is unable to agree on its verdict; or
(b) has not reached a unanimous verdict--
the court may discharge the jury or, subject to sub-sections (3) and (4), take a majority verdict as the verdict of the jury.
(3) A court must refuse to take a majority verdict if it considers that the jury has not had a period of time for deliberation that the court thinks reasonable, having regard to the nature and complexity of the trial
(4) A verdict that the accused is guilty or not guilty of murder or treason or an offence against a law of the Commonwealth must be unanimous.
(5) If in a criminal trial--
(a) it is possible for a jury to return a verdict of not guilty of the offence charged but guilty of another offence with which the accused has not been charged; and
(b) the jury reaches a verdict (unanimously or by majority verdict) that the accused is not guilty of the offence charged; and
(c) the jury is unable to agree on its verdict on the alternative offence after a cumulative total of at least 6 hours deliberation on both offences--
a majority verdict on the alternative offence may be taken as the verdict of the jury.

On majority verdict and directions: R v Muto [1996] 1 VR 336; R v Munro [2005] VSCA 26; R v Di Mauro [2001] VSCA 52. Not permissible for Commonwealth offences: Constitution of Australia s.80; Cheatle v R (1993) 177 CLR 541; Juries Act 2000 s.46(4).

The calculation of the six hours includes time spent listening to redirection, travelling time such as moving from the courtroom to the jury room where the two are not adjacent and time having light lunch in the jury room. What must be excluded are discrete and substantial breaks from the performance of the jury's task. The only examples that commonly occur are retirement overnight and adjournment for lunch: R v Rodriguez [1998] 2 VR 167; R v Doherty [1999] VSCA 165; R v VST [2003] VSCA 35.

On disagreement, verdict on other count should still be taken, for instance an acquittal on a greater alternative: R v Ashman [1957] VR 364.

Taking verdict
Discretion to take separately: R v Sumner (1985) 19 A Crim R 210; R v Verma (1987) 30 A Crim R 441; R v Appleby (1996) 88 A Crim R 456. Separate consideration of separate accused: R v Mitchell [1971] VR 46; R v Annikin (1987) 37 A Crim R 131, but see R v Clark [1962] VR 657.

In Victoria, if no majority verdict has been left open, the Judge's Associate asks the jury foreman: "Have you agreed upon your verdict" then, provided response has been affirmative, "Do you find X guilty or not guilty on the count of ...". Upon conclusion of taking verdict (or disagreement) on all counts, the Associate says " ... and that is the verdict of you all". The enquiry as to verdict unanimity is not to be perfunctory: Milgate v R (1964) 38 ALJR 162. It is not however practice to enquire of each juror separately. When the jury have been told that a majority verdict may be taken, the associate should conclude by saying "and that is the verdict of not less than 11 (or as the case may be) of you": R v Muto [1996] 1 VR 336.

Unanimity does not require all jurors to reach conclusion by same path of reasoning: R v Clarke [1986] VR 643. Some qualification arises with culpable driving: Beach (1994) 75 A Crim R 447.

Effect of verdict on one count to taking of verdict on other counts: R v Weeding [1959] VR 298; R v Ginies [1972] VR 394.

Special verdict
Is a finding on particular facts put by Judge, but rare in contemporary practice: Crimes Act s.569(3); R v Young [1949] VLR 226; R v Cartledge [1956] VLR 225; R v Clarke [1959] VR 645; R v Harris [1961] VR 236; R v Webb [1971] VR 147; R v Sergi [1974] VR 1; R v Kane [1974] VR 147; R v Matusevich [1976] VR 470; R v Graham [1984] VR 649; R v Bacon [1973] 1 NSWLR 87; Veen v R (1979) 143 CLR 458. It is impermissible to attempt to construct a verdict from questions: R v Brown [1949] VLR 177.

Acceptance or otherwise of verdict
R v Wallace [1939] VLR 46; R v Hodgkinson [1954] VR 298; R v Weeding [1959] VR 298; R v Taffy [1960] VR 137; R v Lovett [1972] VR 413; R v Whelan [1973] VR 268; R v De Marchi [1983] 1 VR 619; Griffiths v R (1977) 137 CLR 293; Maxwell v R (1996) 184 CLR 501.

Finality of verdict
Gammage v R (1969) 122 CLR 444; Hsing v Rankin (1978) 141 CLR 182; R v Booth [1983] VR 39; Re Matthews [1973] VR 199; Re Donovan’s Application [1957] VR 333.

Recommendations by jury
To be recorded on presentment: R v Shashkoff, Ct of Crim App, 12 Oct 1983. "Rape with mitigation": R v Bruzzese [1970] VR 813; R v Webb [1971] VR 147. See also R v Tappy [1960] VR 137; R v Harris [1961] VR 236; R v Kane [1974] VR 762.

Qualifications by jury
Ambiguity - direct reconsider: Myerson v R (1908) 5 CLR 596.

Aggravating sentencing facts
Where sentence maximum varies with the presence of defined aggravating sentencing facts and there is a trial, the finding must be by the jury: Kingswell v R (1985) 159 CLR 264; R v Meaton (1986) 160 CLR 359.

Correction of mistake
Where the jury seeks to alter a verdict which has been pronounced by the foreman, the judge has a discretion whether to allow the alteration taking into account all the circumstances of the case; in particular the important considerations will be the length of time which has elapsed between the original verdict and the moment when the jury express their wish to alter it, the probable reason for the initial mistake, the necessity to ensure that justice is done not only to the defendant but also to the prosecution. The fact that the defendant has been discharged from custody is one of the factors but is not necessarily fatal to the judge’s discretion to alter the verdict to one of guilty. If the jury have been discharged and a fortiori if they have dispersed, it might well be impossible for the judge to allow the verdict to be changed. R v Ciantar [2006] VSCA 263.

Discretion to exempt from jury service
Juries Act 2000 s.13
(2) When a juror or a jury is discharged during or at the conclusion of a trial, the court may determine that the juror is, or jurors are, exempt from jury service--
(a) if the trial has required the attendance of the juror or jurors for a lengthy period; or
(b) for other good reason.

Jury materials
Materials produced by the jury in the course of deliberation should be destroyed: Medici (1995) 79 A Crim R 582; R v Smart [1983] 1 VR 265 at 297.

Non disclosure
Juries Act 2000 s.77 defines various summary offences to do with publishing to the public statements made, opinions expressed, arguments advanced or votes cast in the course of the deliberations of a jury. Such a section is to be understood generally in the sense of pre-existing common law: Re Portillo [1997] 2 VR 723; R v Anderson, Ct of App 1997. This dealt with disclosure by a former juror of what occurred in the course of the jury's deliberations: Re Donovan [1957] VR 333; Medici (1995) 79 A Crim R 582. It extends to anything that may truly be described as deliberations by the jury: Re Matthews [1973] VR 199. A court may, however, consider evidence from former jurors on matters extrinsic to their deliberations: Medici at 590; R v Young at 331. That is so even of extrinsic conduct occurring in the jury room: R v Emmett (1988) 14 NSWLR 327.

Appeal against jury verdict
There is no prosecution appeal against acquittal. For appeal against conviction to Appeal Division of the Supreme Court of Victoria, see especially Crimes Act 568(1). This does not permit a general review of the correctness of a jury verdict. Grounds are confined to matters of law and of verdict unsafeness: see further justd.com/crimappeals.