6.5 & 6.6 – The Jury System  v=-nbUVMCD8tE v=-nbUVMCD8tE 1

2 The Jury System: Our legal system is predicated on the concept of both ‘Trial By Jury’ and ‘Trial By Ones’ Peers’ 2

3 The Jury System: Juries are used in the original jurisdiction of both County and Supreme Courts NOT PART of the Magistrates Courts. NOT USED in appeals Compulsory composition of 12 in criminal cases where the accused pleads Not Guilty 3

4 The Jury System: A criminal jury MUST try for a unanimous verdict!! If not – a majority decision for crimes other than Commonwealth offences, Treason or Murder. A majority is 11 of 12 A ‘hung jury’ occurs if the majority can not be made. This means neither Guilt or Innocence and the accused can be retied later 4

5 The Jury System: The finding of guilt must be BEYOND REASONABLE DOUBT If a juror has any doubt, no matter how small, they MUST determine the accused ‘NOT GUILTY’ 5

6 The Jury System: In Civil cases a jury of six can be used, but is optional. Either side can choose to empannel a jury. A civil jury can reach a majority verdict of 5 to 1. Civil cases are determined on the ‘Balance of Probabilities’ 6

Empanelling a jury 7

Jury Members None of the following is permitted regarding the jury members 1. Photographed 2. Filmed 3. Interviewed 4. Names published 5. Identifying information to the defendant or all parties in a civil case 6. Provide opinions to the media 8

Disqualified This category is for those who are not allowed because they have done something to make them unsuitable  Convicted of an offence in past 2 years  Currently on a bond or probation  Served more than 3 years in prison  In the past 5 years; under 3 months jail, or specific order  In the past 10 years; parole, prison over 3 months  On bail for an indictable offence  Undischarged bankrupt 9

Ineligible Due to being employed in the legal industry these people are ineligible;  Police officers, court officials, judges, lawyers, bail justices Some categories of people are ineligible due to being unsuitable to undertake the task of a juror;  Intellectual disability, other mental health issues, physically handicapped, inadequate English 10

Excused Some people wish to be excused for good reason either temporarily or permanently  Illness, poor health, disability, old, inconvenience to the individual or the public,  Financial hardship (self employed)  Primary carers  Too far to travel  Practising religious order making them incompatible with jury service 11

Deferrals  A person can apply to have their jury service deferred to a more convenient time. There must be a good reason;  Teacher during prior to exam period  VCE/University student  Holiday booked  Wedding 12

Exemptions These people may be granted an exemption for a period of time;  Selected into jury pool but didn’t sit on a jury  3 years exemption if you have served on a jury  Jurors from lengthy trials 13

Procedure for jury empanelment  This process gives the prosecution and defence an opportunity to have a say in who forms the jury.  When the jury pool is assembled in the court they are provided with the following information 1. The type of case 2. Names of all parties (Civil) or name of defendant (Criminal) 3. Names of key witnesses 4. Anticipated length of trial 5. Any other relevant material determined by the court Provides Jury members with a final opportunity to request to be excused 14

Criminal Jury  Verdict reached on the basis of the evidence only  Experiences of the jury members i.e., occupation, previous knowledge of the case etc., needs to be taken into account during empanelment 15

The process of empanelment 1. Jury pool attends court room. Jurors name or number and occupation readout 2. Juror walks past the accused and to the jury box (Can be challenged/ stood a side). 3. Challenged (Peremptory) – no reason required – 6 opportunities for either side. Number increases with more defendants (For cause) – Valid reason provided – (No limit). Reason such as occupation my be considered valid by the judge. If judge does not accept, person will become a jury member 4. If challenge successful, juror returns to the jury pool and await the same process in a separate trial. 5. Once empanelled, the members must then swear on OATH of the AFFIRMATION (Task of being a jury member to be carried out faithfully and impartially) 6. Jury retires to the jury room to elect a foreperson. This person becomes the spokes person for the jury. Also Reads out the verdict. 16

Case Study  Boris Beljajev  Jury and adversary system the Beljajev case.doc Jury and adversary system the Beljajev case.doc 17

Civil Jury  Used at the request of either party (Plaintiff or defendant)  6 members – 8 if a lengthy trial  Can award an amount of damages 1. Jury pool attends the court. 12 names drawn with the names and occupations provided to solicitor of the plaintiff 2. Plaintiff counsel can cross out up to three names with no reason 3. List then provided to defendants counsel. Can cross out 3 names without reason 4. For cause challenges available 5. Oath or Affirmation taken and foreperson elected. 18

Juries and an effective legal system 19

Could they get a fair trial? 20

Factors contributing to the entitlement to a fair and unbiased hearing  Eligibility for jury service If you are 18 and on the electoral role you are eligible  Ineligible and disqualification Removes people who are perceived to have a prejudice  Balloting process Names drawn at random – assists with cross-section of society  Self-excusing from a trial Removes bias if offender known etc.  Challenge process May challenge a jury member is bias perceived  Rules of evidence Only relevant evidence presented to the jury  Role of the Judge Judges seek to have juries only consider relevant material. i.e., suppression of names/movies etc.  Unanimous Verdict Beyond reasonable doubt – deemed to be fair. 21

Factors contributing to the entitlement to a fair and unbiased hearing  Democratic and human rights Ordinary people make decisions and implement an independent judiciary 22

Factors that weaken the entitlement to a fair and unbiased hearing  Ineligibility requirements Those who would/are excused, would their inclusion undermine the impartiality of a jury?  No guarantee of a cross-section Is there a better way? Current practice could get like minded/like occupation people together.  Bias can be hidden Someone with strong opinions and convictions may slip through.  Who are one’s peers Ethnic, generational differences. Should it be the same?  Media influence It may be impossible that a jury or jury member has no knowledge of the case being tried.  Legal Complexity Issues hard to understand. Legal professionals can be influential and intimidating 23

Effective access to the legal system  80% of matters determined in the Magistrates Court  Less than 5% of cases determined in the county and supreme courts require a jury  Cost of using a jury is high  Juries only come into play when a case has been instigated. 24

Timely resolution of disputes  Jury trial takes longer to determine than a determination made without one  May hinder than help a speedy resolution 25

How does the jury system hinder the timely resolution of disputes  The empanelment process Increased time to empanel, excuse, challenge jurors. Can take days to undertake BELJAJEV Case - The jury - 77 days lost due to juror illness, death of foreperson, judge’s concerns over jurors’ exhaustion. Frequent adjournments due to illness of witnesses and jurors. 26

How does the jury system hinder the timely resolution of disputes  The need for explanation No legal training, no/minimal court experience. Every step is explained. Counsel tale longer to present evidence to ensure understanding.  The rules of evidence Jury removed from the court when legal argument is being undertaken. This is not a rare occurrence.  Judges misdirection of juries 2/3 of retrials in 2010 resulted from mistakes by judges in child sex cases. New trial required.  Deliberation time Time limits to reach a verdict are rarely adhered to. More time for a jury to decide is more efficient than a retrial with possibly the same result. 27

Your Turn  Complete Jury System Summary work sheet  Complete Q 1 – 6 on page 162  Complete Q 1 – 7 on page