One of my first jobs following university was a Judges’ Associate in the District Court of South Australia. This job allowed me to work closely with members of the judiciary and observe many matters in the South Australian criminal jurisdiction, including trials of defendants. One of an Associate’s roles includes the ‘empanelment of the jury’.
It is important to note that not all criminal matters require involvement with a jury. For example, minor matters (‘summary’ or ‘minor indictable’ offences) heard in the Magistrates Court are heard by the Magistrate without the presence of a jury. However, if the alleged offence is more serious, the matter is referred to a higher court, most commonly the District Court but sometimes the Supreme Court for the most serious offences including murder. Once a matter is before the higher court, it is up to the defendant to elect whether or not they want the matter heard by a single Judge, or tried by jury.
In my blog “What does jury duty involve” you can read an overview on the jury selection process. Once the ‘jury pool’ (which is made up of several dozen people) is established for any given month, those prospective jurors may be called upon to specific court rooms for the empanelment process.
During this process, all the prospective jurors are escorted into the court room by a Sheriff’s Officer and they take a seat in the body of the court room. Each prospective juror has previously been provided with their juror number. The Judge assigned to hear the case sits at the front of the court room on a raised bench, and the accused defendant is located in the ‘dock’ behind perspex. The defendant’s solicitor is seated closest to the dock and the solicitor for the prosecution is seated furthest away from the defendant.
Both the solicitors for the defendant and prosecution have been provided with a list of jurors which provides some basic information including their name, age, gender and occupation. The solicitors have a chance to review the list for consideration later in the empanelment process.
So whilst the defendant is in the dock, the Judge asks the Judges’ Associate to ‘arraign’ the accused. This is a formal process whereby the accused is presented with details of the specific offence and is asked to plead ‘guilty’ or ‘not guilty’.
In most situations the accused pleads ‘not guilty’ and the jury empanelment process can commence, but there are some situations where the accused actually pleads ‘not guilty’ to the specific offence they have been charged with, but then simultaneously pleads ‘guilty’ to a lesser charge. This complicated matter will not be discussed in this blog.
After the ‘arraignment’ the Judge makes some introductory remarks to the prospective jurors and also introduces the solicitors for the defendant and prosecution. Before the empanelment process begins, the Judge indicates that the jurors may seek to be excused from service (generally they can approach the Judge’s bench and explain why they should be excused, and the Judge makes a decision whether or not to excuse the specific juror). For example, a juror may tell the judge that she was a victim of a sexual assault as a teenager and therefore does not feel comfortable sitting through a trial involving allegations of rape.
"During this time, either solicitor can ‘challenge’ the empanelment of that specific juror, which means the juror cannot participate in the trial and needs to sit back down."
The juror numbers are placed in a box, and one by one the Judge's Associate pulls numbers out of the box and reads the number aloud. The prospective juror with that specific number stands up and walks to the jury box. During this time, either solicitor can ‘challenge’ the empanelment of that specific juror, which means the juror cannot participate in the trial and needs to sit back down. Each solicitor (one on behalf of the defendant and one on behalf of the prosecution) is entitled to three challenges. Some examples of challenges might include:
- The trial concerns a child sex offence and one of the jurors selected is a 30 year old female primary school teacher. The solicitor for the defendant thinks this juror might be risky and might be prejudiced against the defendant.
- The trial concerns bank fraud and one of the jurors selected is a 50 year old male bank manager. The solicitor for the defendant thinks this juror might be biased against the defendant; etc.
The Judge’s Associate continues to pull out numbers and the jurors, if not challenged, take their seat in the jury box. This process continues until there are 12 jurors seated (sometimes more if the trial is particularly complicated) and then the remainder of the potential jurors in the back of the court room are excused. Once all the jurors are empanelled, the trial can commence with opening statements.
Today’s article is written by Associate Michael Irvine. Michael now practices in Civil Litigation and Employment Law. He has previous experience in the field of criminal law. If you have any queries or require assistance in criminal law, please feel free to get in touch directly with one of our lawyers practicing in that field; Toni Monteleone or Nes Alexandropoulos.