The proposal reported on in the media that there was consideration to reduce jury sizes from 12 to 8 is wrong and should not be implemented. Rather than rush through such a fundamental change to a core institution of our criminal justice system the Parliament ought to introduce practical measures which will significantly increase the number of cases which can be dealt with, without interfering with established rights of citizens.
Instead of reducing fundamental protections and rights of citizens, Liberty Victoria urges that practical measures be introduced that will lead to the resolution of outstanding trials. The majority of criminal charges can be resolved. Chief among such measures should be the capacity for the County and Supreme Courts to provide meaningful sentence indications to accused persons – which provide an accurate indication to accused persons of the sentence they will receive. Liberty Victoria strongly urges the government to introduce such measures as a matter of priority.
Sentence indications have been a part of the Victorian criminal justice system in various forms for many years. They play a fundamental role in the administration of justice in the Magistrates’ Court – the court that deals with by far the highest number of cases in the state.
In that jurisdiction a Magistrate is permitted to indicate to an accused the precise sentence they would impose in the event that an accused person pleads guilty. In the vast majority of matters, sentencing indications are accepted by accused and pleas of guilty entered after an indication. In the County and Supreme Courts sentence indications are limited to whether or not the Court would impose an immediate custodial sentence. The result is that a large portion of cases simply cannot be resolved via a sentence indication due to the County Court and Supreme Court being prohibited from indicating the length of any prison term they would impose.
The courts have appropriately recognised the additional utilitarian benefit of the entry of pleas of guilty during the COVID-19 pandemic.[1] Combining those principles with the capacity to provide meaningful sentence indications will significantly reduce the backlog, save considerable amounts of time and money, lead to certainty for victims and avoid the need for witnesses to give evidence.
While sentence indications are not appropriate in all cases, there are a substantial number of cases which do fall within such a scheme. There are many matters which would otherwise run to trial that would resolve if such a process were available — including many cases where the accused is on remand.
Noting that this process has been in place in the Magistrates’ Court for years – in fact it is a fundamental part of administration of justice in that jurisdiction – there is no downside to the introduction of this proposal to the higher courts. Many have advocated for its introduction for a considerable period prior to the pandemic. In our view now is the perfect time for its introduction.
In relation to the proposal to reduce jury sizes to 8 Liberty Victoria is implacably opposed to such a measure. Any such reform should only ever come about following extensive research and consultation with stake holders. It is clear that no such research has been undertaken to assess the consequences of such a change.
The community rightly has faith in the jury system – in part due to the representative nature of a jury. It is 12 citizens chosen at random from the community. It is intended to embody range of life experience of our community as well as its ethnic and gender diversity.
Making a change such as this would be wrong at any time. To introduce such a change swiftly, without research underpinning it and for the purpose of expedience is in our view inconsistent with the aims of achieving just outcomes in criminal cases.
Sam Norton
Senior Vice President
Liberty Victoria
For enquiries contact Liberty Victoria at
info@libertyvictoria.org.au or phone 03 9670 6422
[1] See for eg DPP v Bourke [2020] VSC 130 [32].