Jury Trial Lawyers
In Victoria, indictable criminal offences (more serious crimes) that go to a criminal trial are typically decided by a jury. Indictable matters can also be heard by a judge if it is in the interests of justice to do so and if by consent. Juries are used for almost all Supreme and County Court criminal trials and some civil trials.
If you are facing a criminal trial at the County Court or Supreme Court of Victoria, the decision to have your case determined by a jury should not be made without first obtaining experienced legal advice. Contact us to make an appointment with one of our lawyers for advice and support today. Every criminal case is different, which means that in some circumstances, electing to have your matter determined by a judge alone rather than a jury may be more favourable for your case.
What is a jury trial?
A jury trial is a criminal trial determined in court by adult citizens selected randomly from the community for jury service. Subject to some exclusions and exceptions, any Australian eligible to vote can be summoned as a juror to attend court for jury service.
Jury service members are chosen by ballot and sworn in by the court. In Victoria, 12 jury members are generally selected (though a larger number may be selected in some cases) and empanelled before the commencement of a trial. The Juries Act 2000 (Vic) governs Jury service in Victoria.
Jury trials for criminal matters are held in the County Court and the Supreme Court of Victoria. However, most jury trials are run in the County Court (the equivalent to the District Court in other states).
What are the advantages of a jury trial?
Every trial is different, and the decision to have a jury trial or trial by judge alone can bring both advantages and disadvantages to your case. One of the most obvious advantages of having a jury trial is that a random sample of citizens selected from the community reflects a more diverse set of life experiences and values. This reduces the impact of individual bias or prejudice when examining evidence in a case and increases the probability of a balanced and fair verdict being achieved.
What are the disadvantages of a jury trial?
Some trials are extremely complex and require very careful application of the law. In such cases, it may be in the accused person’s best interests to have their case determined by a judge alone. Another disadvantage of having a jury is that jury trials are less efficient. Trials by a judge alone are typically completed quickly and are more cost-effective. Lastly, in some cases, jurors may have a strong personal bias or be more likely to be influenced by public opinion than the evidence presented at trial.
If you have been charged with an indictable offence in the Magistrates’ Court, you can elect to have your matter determined in a higher court by a judge alone or jury rather than a magistrate. However, it is often in an accused person’s best interests to have their matter determined summarily by a magistrate because the maximum penalty that a magistrate can impose is lower than in the County or Supreme Court (see ‘Jurisdiction of the Magistrates’ Court‘ for more).
The role of the jury
Juries play a fundamental role in civil and criminal court proceedings and allow for community participation in the administration of justice. The jury’s role is to determine the facts, apply the relevant principles of the law to those facts (as directed) and return a verdict (R v Dao (2005) 156 A Crim R 459; R v Nguyen  VSCA 158). While a judge will also be involved in the trial to direct the jury about the relevant law that applies, the jury alone will determine the verdict and the facts of a case (R v Johnston (1986) 43 SASR 63).
The Director of Public Prosecutions initiates a criminal trial on behalf of the community, and the community determines the verdict via a jury. Allowing community participation directly in the administration of justice seeks to ensure community standards are satisfied, thereby increasing community confidence in the legal system.
Decision solely on the evidence presented
The judge must direct the jury that their verdict be based solely on the evidence given before them. In doing so, the jury must disregard any outside knowledge they may have acquired about the case (Glennon v R (1992) 173 CLR 592; Murphy v R (1989) 167 CLR 94; R v VPH 4/3/94 NSW CCA; R v Vjestica  VSCA 47). Jurors must not talk about the case with anyone except the other jurors in the privacy of the jury room and jury deliberations must take place in the privacy of the jury room when all jurors are present.
The jury should be directed that the following matters constitute evidence for their consideration:
- The answers to questions asked in court;
- Documents and exhibits admitted into evidence;
- Formal Admissions.
The jury should be directed that the following matters do not constitute evidence:
- Questions asked of witnesses (unless a witness agrees with the proposition) (R v Johnston  NSWCCA 58; R v Lowe (1997) 98 A Crim R 300; Lander v R (1989) 52 SASR 424; R v Robinson  Qd R 387);
- Counsels’ addresses and arguments (R v Parsons  VSCA 92; R v Lowe (1997) 98 A Crim R 300);
- Addresses and comments from the judge (R v Boykovski and Atanasovski (1991) A Crim R 436).
The role of a lawyer in a jury trial
Your lawyer will play a fundamental role in your case leading up to your trial, whether it is a trial by jury or by judge alone. If your matter is listed for trial, your legal representative will appear before a judge or jury on your behalf and present your defence. This includes preparing and delivering an opening address about the case, leading evidence and cross-examining witnesses. Your lawyer’s role is to ensure the jury and the sentencing judge have all the information needed to reach a fair and just decision.
A significant amount of preparation is required before a trial, including communicating and negotiating with the prosecution, obtaining expert reports, proofing witnesses to be called to give evidence on behalf of the defence and keeping you advised during the process.
If you have a matter listed for trial, please ensure that you contact our office today and arrange an appointment with one of our experienced trial lawyers. We cannot stress enough the importance of having an experienced legal team to fight for your case and defend your rights.
The role of the judge
Where a jury is used, the judge’s role is to ensure proper procedures are followed and to make decisions about questions of law in relation to a particular case. The jury are the sole judges of the facts of a case. However, the judge can remind the jury of the facts and assist them in understanding those facts (Brownlee v R (2001) 207 CLR 278). Many decisions about the application of the law, such as determining the admissibility of evidence or determining other applications, are made in the absence of the jury.
The judge’s role also includes:
- Determining whether there is evidence that can establish the facts in issue (Stingel v The Queen (1990) 171 CLR 312);
- Determining whether particular inferences can legitimately be drawn from the evidence (Metropolitan Railway Co v Jackson (1877) 3 App Cas 193; Cofield v Waterloo Case Co Ltd (1924) 34 CLR 363); and
- Exercising control over court proceedings to protect the accused’s right to a fair trial (R v Boykovski and Atanasovski (1991) A Crim R 436).
Once both parties have presented their evidence, the judge instructs the jury on the areas of the case in which it is their responsibility to decide. The judge asks the jury to retire to the jury room to consider their verdict in the privacy of the jury room with all jurors present.
For every criminal offence, there are specific ‘elements’ of which the jury must be satisfied beyond reasonable doubt to reach a guilty verdict. If the jury is not satisfied with this standard of proof, they must return a verdict of not guilty. If the jury finds the accused person guilty, it is then the role of the judge to decide the appropriate sentence (penalty).
Empanelling a jury
In Victoria, 12 jury members must be selected and empanelled before the commencement of courtroom proceedings for a criminal trial. The procedure for selecting and empanelling a jury is set out in the Juries Act 2000 (Vic). If a person is selected for jury service, they are sent a summons to attend the Jury Commissioner’s Office. These members are among the jury pool from which prospective jurors are randomly chosen to form a jury panel.
After providing the jury panel with information, including the type of charge/s, name of the accused, names of witnesses expected to be called, and the estimated length of the trial, the court will ask whether anyone on the panel seeks to be excused from jury service on the trial (Juries Act 2000 s32(2)).
A potential juror may be excused by the court if the court is satisfied that the person:
- will be unable to consider the case impartially; or
- is unable to serve for any other reason (Juries Act 2000 s32(3)).
In the County Court, jurors are selected randomly from the jury panel by the judge’s associate. Each member walks to their seat in the jury box until the required number of jurors are selected.
The accused person has a right to challenge selected jurors and is entitled to know the juror’s occupation before deciding whether to exercise that right. If a challenge to a prospective juror is exercised, the juror is excluded from the jury panel.
If there is only one accused person, the defence can challenge three jurors; if there are two or more accused persons, the defence can challenge two jurors per accused person (see Juries Act 2000 s 39 ). The decision on whether to challenge jurors should be made with experienced legal advice from your lawyer.
Order of proceedings for a jury trial
Unless otherwise directed by the court, at least 28 days before the trial is listed to commence, the prosecution must serve on the defence and file in court a summary of the prosecution opening (Criminal Procedure Act 2009 (CPA) s182). Once this has occurred, the defence must serve its response on the prosecution and file the response in court at least 14 days before the trial’s commencement (CPA s183).
Following the empanelment of a jury and any preliminary directions given by the judge, the prosecution will give an opening address to the jury (CPA s224). The defence must then immediately present their response to the prosecution opening (CPA s225). Both the opening address and response must be restricted to matters set out in the above-stated material served on each party and filed in court under sections 182 and 183 of the CPA.
At any time during a trial, the trial judge may address the jury on the issues in the trial, the relevance of any admissions made, directions given or matters determined prior to the commencement of the trial or any other matters relevant to the jury in performing its function and understanding the trial process (CPA s222).
At the close of the prosecution case, the defence is entitled to make a submission that there is no case to answer, to call other witnesses or not to call any witnesses (CPA s226). The judge has discretion over whether the jury is present or absent when this occurs.
If the defence intends to give evidence or call other witnesses, the defence can give an opening address to the jury outlining the evidence that the accused proposes to give or call (CPA s231). After the close of all evidence, before the closing address from the defence, the prosecution is entitled to address the jury to sum up the evidence (CPA s234).
The defence is then entitled to give a closing address to the jury to sum up the evidence (CPA s235). If during the closing address, the defence asserts facts that are not supported by any evidence that is before the jury, the trial judge may grant leave to the prosecution to make a supplementary address to the jury (CPA s236).