How do laws change? Improving the law on juries

Attitudes change, communities change, and laws go out of date, so laws need to be continually updated to stay fresh. So how does this happen?

The Victorian Law Reform Commission is the key organisation that gives advice to the government about laws that need improvement.

Here, we take a look at the work done by the Victorian Law Reform Commission in 2014 on jury empanelment – the process of selecting people to serve on a jury. The Attorney-General asked the Victorian Law Reform Commission to review the law of jury empanelment to ensure they operated justly, effectively and efficiently.

The Victorian Law Reform Commission was given ‘terms of reference’ by the Attorney-General, meaning it had to limit its research to certain issues. It began by researching the laws on empanelment of juries in Victoria and in other states.

The law on empanelment of juries in Victoria under consideration

So, how does the process of jury duty work? Jury duty begins when you receive a letter saying that you must attend court on a particular day as you may be needed for jury service. On that day, you will join a number of other people who have also received this letter, who all report to the ‘jury pool’ at the court. Of this group, around 30 people are chosen as the jury panel for a criminal trial. Then, 12 – 15 people (including some extras in case it is a long trial or jurors drop out) will be randomly chosen from the panel to make up the jury of 12 in a criminal trial (or six in a civil trial).

The parade

So you’re sitting in the court room and your name or number has been called out. What now? Well, if you are in Victoria you have to ‘parade’ in front of the person accused of the crime. Surprisingly, ‘parades’ are not just an element of high fashion shows but also a very real part of the Victorian justice system. Parading is what it sounds like, and you have to walk to the jury box past the accused so that the accused can get a good look at you. If this is not done, there may be later grounds for an appeal against conviction because the jury was not empanelled properly.

After seeing you parade, but before you take your place in the jury box, the person accused of the crime can decide whether they want to ‘challenge’ you, without giving any reason.

When the accused person challenges you, this means you are excluded from the jury. The accused does not have to give a reason for this. Under current laws, the accused can challenge up to six members of the jury in a criminal trial without giving any reason.

The Commission published a consultation paper and asked for public submissions. This is an important part of the process as it allows any interested member of the public to get involved. The Commission also developed an online survey about the jury empanelment process, which was completed by 381 respondents.

You can find some interesting public submissions on juries here.

What was the problem?

Under Victorian law, juries are supposed to be representative of the community. That’s why people are randomly selected to take part. However, the Commission concluded that the process of challenging jury members undermines this goal. For example, where an accused person challenges six female members of the jury, this has an impact on the gender balance, with the result that the jury is not representative of the community as a whole. The same applies if people of a particular cultural group or occupation are excluded.

People who had served as jurors told the Commission that the parade caused them stress and discomfort.

What did the Victorian Law Reform Commission recommend?

The VLRC made 16 recommendations. Some of the key ones were:

  • that the number of challenges be reduced in criminal trials from six to three.
  • that the process of ‘parading’ jurors be abolished.
  • that jurors should always be identified in court by number, not by name

Proposed reform to the law

Partly due to the Victorian Law Reform Commission’s investigation and report, new legislation on juries is being considered in the Victorian parliament. So, which key recommendation has been included in the Jury Directions and Other Acts Amendment Bill 2017? That jurors should no longer have to ‘parade’ in front of the accused, as long as the accused has an adequate opportunity to see their face.

So there you have it. Law reform in action.

This page was last updated on March 01, 2018