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Jury challenges halved

Jury challenges halved

By Victorian Law Reform Commission

Criminal Procedure Justice 

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The VLRC recommendation that the number of challenges should be reduced from six to three in criminal trials has been passed.

Snapshot

  • Recent reforms passed that were recommended by the VLRC include:
  • changes to the ways juries are empanelled
  • reforms to the law regarding cash payments to scrap metal dealers.

In late 2017 several pieces of legislation were passed by the Victorian parliament implementing reforms that were recommended by the Victorian Law Reform Commission (VLRC).

These included changes to succession laws, changes to the ways juries are empanelled, and reforms to the law regarding cash payments to scrap metal dealers. Changes to succession laws were covered in the December 2017 LIJ.

Changes to jury empanelment

The VLRC’s review of jury empanelment in 2014 resulted in 16 recommendations for reforms to the ways juries are empanelled in criminal and civil trials. Among the most important related to peremptory challenges. The VLRC took the view that peremptory challenges should be retained as they can enhance the accused’s confidence in the trial process and are a quick way of removing obviously biased or unwilling jurors. However, the VLRC recommended that the number of challenges should be reduced from six to three in criminal trials and from three to two in civil trials. Likewise, it was recommended that the number of stand asides available to the prosecution should be reduced so that it is equal to the total number of challenges available to the defence.

The VLRC’s reasoning was that challenges have the capacity to reduce the representativeness of juries. For example, if an accused uses all their six challenges to remove women jurors, the jury will end up over-represented with males rather than reflecting the actual demographics of the community. It was clear to the VLRC that peremptory challenges are often based on discriminatory, stereotype-based judgments.

These recommendations regarding challenges have been implemented in the Justice Legislation Amendment (Court Security, Juries and Other Matters) Act 2017.

A further reform implemented by this Act is the new s30A which requires that a potential juror must be identified in court by number, not name, unless the court considers that it is in the interests of justice to identify by name. The VLRC found that there was overwhelming support among jurors for identification by number rather than by name, in the interests of personal security and privacy.

Another recommendation was that jury parades should be abolished. Parades involve the juror walking in front of the accused on their way to the jury box, while the accused has the opportunity to make a challenge. Most judges and lawyers the VLRC spoke to regarded the parade as archaic, unnecessary and demeaning. Jurors told us that they found the parade intimidating. It is necessary for the accused to have a clear view of the juror’s face, however, the VLRC concluded that it is not necessary for jurors to parade. This recommendation was implemented by the Jury Directions and Other Acts Amendment Act 2017, which stated in s21:

(2A) Each person arraigned must be given a reasonable opportunity to make each peremptory challenge that is allowed under subsection (1).

(2B) Without limiting subsection (2A), each person arraigned must be given an adequate opportunity to view the face of the potential juror before the potential juror is seated.

(2C) Nothing in this section requires a potential juror to walk past each person arraigned.

Cash for scrap

It has become unlawful for scrap metal dealers in Victoria to deal in cash. This recommendation emerged from the VLRC’s 2016 report “Use of Regulatory Regimes in Preventing the Infiltration of Organised Crime into Lawful Occupations and Industries”. The VLRC found that cash-based transactions make it easier to conceal unlawful dealings and may facilitate money-laundering. Unlike cash, electronic payments establish an audit trail that identifies the purchaser and other details of the transaction.

The Justice Legislation Amendment (Protective Services Officers and Other Matters) Act 2017 amended the Second-Hand Dealers and Pawnbrokers Act 1989 to specify that a second-hand dealer who buys or sells scrap metal must not pay for or receive payment for scrap metal in cash.

Since its establishment in 2000, the VLRC has commenced 39 inquiries. Of the 36 that have been completed, around 70 per cent have resulted in legislative change, while bills relating to other inquiries are being considered by parliament. During 2018 the VLRC will deliver two more reports to the Attorney-General: its review of the Victims of Crime Assistance Tribunal, and Access to Justice – Litigation Funding and Group Proceedings.

This column is contributed by the VLRC. For further information ph 8608 7800 or see www.lawreform.vic.gov.au.


Disclaimer: Views expressed by commentators are not necessarily endorsed by the Law Institute of Victoria Ltd (LIV). No responsibility is accepted by the LIV for the accuracy of information contained in the comments and the LIV expressly disclaims any liability for, with respect to or arising from any such views.

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