Jury

Jury

• Comprised of 12 peers, fellow citizens who are impartial and passive:

  • Do not ask questions, present evidence, or argue.

• In indictable cases, jury decides if prosecution has proven guilt beyond reasonable doubt

• Verdict usually unanimous, sometimes majority accepted.

• District and Supreme Court criminal trials only.

• Request judge-only trial if 12 impartial jurors cannot be empaneled (e.g., highly publicized cases risking bias).

• Jury’s role complements the judge:

  • Jury decides guilt.

  • Judge ensures fair trial and sentences in post-trial.

Arraignment

formal reading of the charges on the indictment to the accused, who stands in the dock and pleads guilty or not guilty to each charge.

After arraignment

• The judge introduces all involved (witnesses, lawyers, etc.)

• Jurors with conflicts of interest (e.g. knowing parties or emotional distress) are expected to excuse themselves to ensure impartiality.

Empanelment process

• Jurors are randomly selected from the electoral roll and sent a summons to attend court

• Jurors’ numbers are drawn at random

• As each juror steps forward, prosecution and defense may challenge their selection before they are seated.

• This continues until 12–18 jurors are selected (12 deliberate, extras are used in longer trials) from a jury pool of 30-50 in the public gallery of the courtroom.

• Once selected, jurors take an oath or affirmation to give a true verdict based on the evidence.

  • Jurors then retire to choose a foreperson, who speaks on behalf of the jury.

Jury challenges and types

challenges protect the right to an impartial trial. peremptory and challenges for cause.

• peremptory

• challenges for cause

Peremptory challenges

• No reason required

• Each party (defence and prosecution) gets 3 challenges without cause (reduced from 5 in 2011 WA reforms).

• Used based on juror number, name, occupation, or in-court behaviour.

• Example: Challenging a nurse if accused is charged with assaulting a nurse.

• The 2011 Jury Legislation Amendment Act (WA) reduced the number of peremptory challenges to prevent jury stacking (influencing outcome by choosing jurors with bias).

• Risk: Potential abuse to bias the jury (e.g., excluding all women from a jury).

Challenges for Cause

• Unlimited

• Must provide a valid reason (e.g. bias, conflict of interest).

• The Crown (the prosecutors) previously had an unlimited right to stand aside jurors, which has now been limited.

Jury purpose

Juries are meant to protect against arbitrary or oppressive use of criminal justice by authorities.

Jury charge

After closing addresses, the judge instructs the jury by:

• Summarizing the evidence without expressing personal opinions on its weight

• Explaining the legal tests relevant to each charge

• Emphasizing the standard of proof — conviction requires proof beyond reasonable doubt

• The jury charge guides jurors to apply law to facts based solely on evidence presented.

• As juries don’t give reasons for their verdicts, any errors in the judge’s directions means the jury may have been misled in their verdict, can lead to an appeal.

Jury process for verdict

• Jurors retire to deliberate. If more than 12 were impaneled, some are randomly excluded to leave 12 deliberating jurors.

• Traditionally, a unanimous verdict (all agree guilty or not guilty) is required.

Hung jury and process

• A jury unable to reach unanimity is called a hung jury. The prosecution then decides whether to retry or drop the case.

• Section 114 of the Criminal Procedure Act 2004 (WA) allows for a majority verdict if:

  • Jurors have deliberated for over three hours

  • At least 10 out of 12 jurors agree

• Majority verdicts aim to prevent retrials caused by a few jurors blocking consensus but may reduce protection for the accused.

• Majority verdicts are not allowed for murder or Commonwealth indictable offences, which require unanimous verdicts.

Jury misconduct examples

Misconduct can lead to miscarriages of justice. Common forms include:

• Conducting independent research- undermines court’s ability to make decisions based on reliable evidence

• Visiting crime scenes without permission

• Communicating with non-jurors- undermines impartiality through influence from others

• Failing to pay attention during trial

• Intimidation or coercion by other jurors

Judge’s directions about misconduct

Judges instruct jurors not to:

• Conduct any research related to the case

• Discuss the case outside the presence of all jurors

Consequences of misconduct

• Undermines natural justice- impartiality compromised due to outside influence, if jury considers evidence not presented in court, the right to fair hearing compromised because accused cannot challenge/ respond, ignorance of court procedures undermines legitimacy of trial

• Undermines reliability of evidence- evidence may be influenced or unreliable, right to fair hearing

• Compromises juror impartiality, especially with media influence

If dicovered, jury misconduct leads to

• • Jury discharge

  • Retrial

  • Emotional and psychological harm to victims, witnesses, and the accused

  • Increased public costs

Legal restrictions about jury misconduct

• Jurors cannot be questioned about deliberation discussions

• This limits our understanding of whether jurors follow judicial instructions or apply the law correctly

Statistics about jury misunderstanding

• Shows how in the absence of questioning due to legal restrictions, we’re unable to ensure that jurors apply law correctly

• Research Findings (UK Ministry of Justice, 2010):

  • Study focused on trials involving self-defense

  • Only 31% of jurors correctly identified both legal questions

  • 48% identified one

  • Around 20% couldn’t identify either

Example of jury misconduct- DPP v Lehrmann (2022): Background

• In 2021, Brittany Higgins alleged she was raped in 2019 by colleague Bruce Lehrmann.

• Incident allegedly occurred in the office of then-Defence Minister, Senator Reynolds.

• The case attracted intense media coverage and public interest.

• Legal Timeline:

  • Lehrmann pleaded not guilty in the Magistrates Court – 5 Nov 2021

  • Committed to trial in ACT Supreme Court (no District Court tier in ACT)

  • Trial ran from 4 Oct – 19 Oct 2022

  • Jury began deliberations on 27 Oct 2022

DPP v Lehrmann (2022)- Jury misconduct and aftermath

• Trial aborted after a juror was found to have brought in two research papers on sexual assault.

• Papers discovered by court staff during routine cleaning.

• Chief Justice McCallum had warned jurors 17 times not to conduct external research.

• Aftermath:

  • Dec 2022: Prosecution dropped charges, citing risk to Higgins’ mental health.

  • Aug 2023: Lehrmann announced plans for a multi-million dollar compensation claim.

  • Claimed he would’ve been found not guilty if trial had continued.

DPP v Lehrmann (2022)- Key issues for consideration

• Breach of judge’s instructions → clear jury misconduct

• Resulted in mistrial, emotional strain on both parties

• Financial and personal costs borne by:

  • The victim (mental health toll)

  • The accused (damaged reputation, legal costs)

  • Public (court resources wasted)

  • Justice system (loss of public confidence)

DPP v Edwards: background

• Background:

  • Victims: Sarah Spiers (body never found), Jane Rimmer, and Ciara Glennon

  • Disappearances: 1996–1997 in Claremont, WA

  • Murders became one of Australia’s most high-profile cold cases

Trial by judge alone DPP v Edwards Background

• Victims: Sarah Spiers (body never found), Jane Rimmer, and Ciara Glennon

• Disappearances: 1996–1997 in Claremont, WA

• Murders became one of Australia’s most high-profile cold cases

Judge alone trial

• Nov 1, 2018: Supreme Court accepted application for trial by judge alone under s118 Criminal Procedure Act 2004

• Reasons:

  • Extensive media coverage

  • Likely long duration of trial

  • Disturbing and technical nature of evidence

• Defense consented

DPP v Edwards Prosecution case types of evidence

1. DNA evidence:

   • Mr. Edwards’ DNA found under Ciara Glennon’s fingernails

   • Defense accepted DNA was his, but argued possible lab contamination

2. Fiber evidence:

   • Fibers from Telstra work pants and Telstra-issued car found on victims

   • Experts said this strongly linked Edwards to the bodies

3. Telstra Living Witnesses:

   • Multiple women testified to being offered lifts at night by a man in a white Telstra car matching Edwards’

4. Propensity evidence:

   • Edwards had previously pleaded guilty to 3 unprovoked assaults on women

   • Prosecution used this to show a pattern of violent behaviour

DPP v Edwards: Defense- burden of proof

• Called no witnesses; Edwards did not testify

• Relied on weather records from 1996 supporting a witness account that Edwards was elsewhere on the day of Spiers’ disappearance

• Accused has no obligation to prove innocence, only to create reasonable doubt

Verdict-

• Guilty: Jane Rimmer & Ciara Glennon murders

• Not Guilty: Sarah Spiers murder

  • Reason: No body or conclusive evidence

  • Propensity evidence alone not enough to prove guilt beyond reasonable doubt

  • Emphasizes burden of proof: if a reasonable alternative explanation exists, acquittal must follow because the prosecution has not proved guilt beyond a reasonable doubt.

Legal significance of DPP v Edwards

• Demonstrates careful judicial reasoning in judge-alone trials

• Emphasizes burden of proof: if a reasonable alternative explanation exists, acquittal must follow because the prosecution has not proved guilt beyond a reasonable doubt.

• Use of different types of evidence

• Highlights how forensic and circumstantial evidence is assessed by a judge over a jury