10th Greek Australian Legal and Medical Conference
Mykonos, Greece 2005

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HOW ARE JURIES FOR MEDICAL NEGLIGENCE TRIALS SELECTED?

Dr Jacqueline Horan[1]

MOCK JURY SELECTION PERFORMANCE SCRIPT[2]

ALISHA MOHOMAD V. GEORGE GIANNOPOULOS

SCENE: Court room in the Supreme Court of Victoria.
CAST: Judge - Professor The Hon. J H Phillips AC
Associate/Tipstaff – Dr Jacqueline Horan
Counsel for the plaintiff – Mr Dennis Wheelahan QC
Counsel for the defendant - Mr George Beaumont QC
Jury panel of 12

Associate: (Turns off the main lights, leaving the spotlights on the stage. Waits a few seconds before knocking loudly twice). Silence, all stand please and remain standing.

(Judge enters, bows to the court room & those in the court room bow back)

All persons having business before this Honourable Court are commanded to give their attention and they shall be heard. Be seated please.

Judge: Call the case please (to the Associate)

Associate: Alisha Mohomad and George Giannopoulos.

Mr Wheelahan: If the Court pleases, I appear on behalf of the plaintiff. (Counsel stand when they are addressing the court).

Judge: Thank you Mr Wheelahan

Mr Beaumont: If the Court pleases, I appear on behalf of the defendant.

Judge: Thank you Mr Beaumont. Are there any preliminary matters that the parties wish to raise before the jury is empanelled?

PART 1 FIRST APPLICATION TO DISPENSE WITH THE JURY

Mr Wheelahan: Yes, Your Honour. The plaintiff seeks an order dispensing with the jury. The plaintiff relies on two grounds in making this application.

First, the expert evidence in this case is too complex for the jury to understand. The plaintiff alleges that the defendant obstetrician provided negligent treatment to her during childbirth, which resulted in her losing her child.[3] The crux of this case is a conflict of medical opinion as to the nature of the plaintiff’s condition during childbirth. The differences between the plaintiff’s and defendant’s experts’ evidence is subtle but crucial to the case. The differences between the two expert opinions are so subtle that it creates circumstances of unusual difficulty and will be beyond the ability of the jury to comprehend the evidence.

The second ground is that due to the expense and inconvenience of calling a number of interstate and country expert medical witnesses, it is in the interests of the efficient administration of justice to grant the application. Dr David Dennis is from Sydney and charges $3,000 a day for his attendance in Victoria. Dr Dennis has also indicated a difficulty in travelling to Melbourne this week. Dr Ann Kennedy is from country Victoria. The plaintiff would be put to a significant financial burden in calling the two witnesses and providing accommodation for them while they waited to be called before the jury.

Judge: Would the two witnesses be required to attend should the matter proceed without a jury?

Mr Wheelahan: They may be required to attend for cross-examination purposes if the defendant so requires. However, the time spent waiting for the jury trial process will be much longer than if the trial was heard by judge-alone.

Judge: Personally, I would do away with all civil juries in the State, instantly and retrospectively. I think it leads to, quite frankly, perfectly obvious miscarriages of justice in these Courts every week...I’ve been astounded here in the last six weeks calling the personal injuries list, how many parties seek juries. I think it’s prima facie evidence of professional negligence myself, for a party to seek a jury.[4] Mr Beaumont, what is your position on this application?

Mr Beaumont: Your Honour, this application should have been made years ago. These proceedings have been on foot for 9 years. The plaintiff should have enquired as to the expert’s availability months ago when the date for hearing was set down.

First, expert evidence in this case is not too complex for the jury to understand. Juries have been determining medical negligence trials for decades if not centuries. Just because a scientific question involves competing expert opinions does not make it inappropriate for jury decision.[5]

As Justice Clarke observed in the 1987 NSW Supreme Court decision of Peck v. Email Ltd, evidence of ‘unusual difficulty’ is required before a jury should be dispensed with. It is submitted that this case presents no ‘unusual difficulty’ over and above the average medical negligence trial. There are only two experts giving evidence and there is nothing to suggest that the jury will not be able to competently analyse their evidence.

Secondly, convenience and the cost of obtaining medical experts are not relevant factors for the court to base a decision to dispense with a jury. Such circumstances arise in every case and are not exceptional to this case. There is no evidence that supports the conclusion that jury trials take longer and witnesses spend more time waiting around than if the trial was heard without a jury.[6]

If the Court pleases (counsel sits down).

Judge: Mr Wheelahan, do you wish to add anything further?

Mr Wheelahan: No, Your Honour.

Judge: Mr Wheelahan, your application should have been made years ago and you have not provided a reason for the delay. However much I might dislike jury trial or find the alternative more convenient, I am bound to proceed with a jury when one had been lawfully summoned, unless particular circumstances special to the case permitted dispensing with the jury.

I am not justified in exercising my discretion on the basis of the number of medical witnesses who would have to be called from different parts of the country. The experts may be required to attend for cross-examination whatever the mode of trial.

Secondly, the plaintiff’s submission that the medical evidence in this case is too complex for the jury to understand is more problematic. I have considered the nature of the scientific investigation raised in this case. This is very much a line-ball decision. Whilst this case will raise relatively complex medical questions, I cannot be satisfied that this case presents any unusual difficulty over and above the average medical negligence trial.[7] This application is refused. Are there any other matters that the parties wish to raise?

Mr Wheelahan & Mr Beaumont: No, Your Honour

PART 2 THE JURY EMPANELMENT

Judge: (to the audience) Members of the jury panel, the trial about to be heard is a civil trial; it is expected to last about 7 days.[8] The claim bought by the plaintiff against the defendant is that the defendant, Dr Giannopoulos, an obstetrician, provided negligent treatment to Mrs Ahmed the plaintiff during childbirth, which resulted in the loss of her baby. I will now read a list of witnesses for this trial. The reason that I am providing you with this information is that if you know any of the parties in this case, or any of the witnesses in the case, or if there is any other reason why you can not or are unable to properly participate in this trial or properly consider the evidence you should say ‘excuse’ when your name is called. I will then hear your excuses on oath. The names of the witnesses are Dr David Dennis and Dr Ann Kennedy.

(To the associate) Madam Associate please call over the panel.

Associate: Ladies and Gentlemen summoned as jurors. As your names are called, please answer in a loud voice ‘present’. If you wish to be excused, answer ‘excuse’. (Associate takes the name cards from the ballot box).

  1. Conn Constantinou present
  2. Jamila Abdul present
  3. Peter Lalor present
  4. Jonathon Halfpenny present
  5. Shakira bin Omar present
  6. William Guthrie Spence present
  7. David Temple present
  8. Gabriele Medley present
  9. Graham Burrows present
  10. Norman Gallagher present
  11. Fatima Ahmed present
  12. Mal Holler excuse

Mr Holler your request to be excused will now be heard. Please make your way to the witness box. (Mr Holler, who is seated close to the front of the room, moves into the witness box and the Associate hands him a bible).

EXCUSE

Associate: What is your full name?

Mr Holler: Malcolm Holler

Associate: Raise the bible in your right hand and repeat after me.

I swear by almighty god (juror repeats this phrase)

that I will give true answers (juror repeats)

to all questions put to me by the Honourable court. (juror repeats)

Please place the bible down.

Judge: Mr Holler why do you wish to be excused?

Mr Holler: Your Honour, I am a little diffident in putting this forward to you but it is important to me. I am a member of a golf club for 20 years and I play pennant every Wednesday. We have never won before but this year we have been on a winning streak the final is in a week’s time. I would hate to let the team down at this stage.

Judge: You have reserves that can fill in for you when a player is not available.

Mr Holler: Yes, Your Honour but they are not as good as I am.

Judge: I regard jury duty as very important and I will not excuse you. Please return to your seat. (Mal Holler returns to his seat).

(To the Associate) Please empanel the jury.

Associate: Ladies and gentlemen of the jury, as your names are called, please stand up and remain standing until the next name is called. (When a name is called, the member of the jury panel quickly stands and remains standing for a few moments until the next name is called)

  1. Conn Constantinou general practitioner
  2. Jamila Abdul home duties
  3. Peter Lalor mining union representative
  4. Jonathon Halfpenny union secretary
  5. Shakira bin Omar event organiser
  6. William Guthrie Spence shearer’s union president
  7. David Temple union treasurer
  8. Gabriele Medley pathologist
  9. Graham Burrows psychiatrist
  10. Norman Gallagher builders’ union representative
  11. Fatima Ahmed university lecturer
  12. Mal Holler lawyer’s union registrar

Judge: Madam Associate, please hand the list of the 12 prospective jurors to the plaintiff’s counsel, who may strike off three names. Then hand the list to the defendant’s counsel who may also strike off three names. (The parties follow the Judge’s instructions. The Associate retrieves the list and returns to her seat).

Associate: The names of the jurors have been chosen. As your name is called take your seat in the jury box. (The Associate indicates with her hand where the jury box is).

The below listed jurors should be seated close to the stage. When their name is called the jurors take their seat in the jury box).

  1. Peter Lalor mining union representative
  2. Jonathon Halfpenny union secretary
  3. William Guthrie Spence shearer’s union president
  4. David Temple union treasurer
  5. Norman Gallagher builders’ union representative
  6. Mal Holler lawyer’s union registrar

PART 3 SECOND APPLICATION TO DISPENSE WITH THE JURY

Judge: Is there any reason to retain the balance of the jury pool?

Mr Wheelahan: Yes, Your Honour. The plaintiff wishes to make an application in relation to the composition of the jury. It would be appropriate for the jury and the jury panel to leave the court room.

Judge: Very well, ladies and gentlemen of the jury and jury panel please follow the Associate out of the court room. (Jury follow the Associate & leave the courtroom) Yes, Mr Wheelahan.

Mr Wheelahan: Your Honour, the plaintiff makes an application to the court for the jury to be dismissed on the basis that it is racist and sexist for the defendant to strike out the names of the only three women on the jury panel of similar religious and cultural background to my client. A jury of men of Anglo-Saxon heritage will not fully understand the life-style and cultural circumstances of my client who comes from a migrant Muslim background.

In the 1981 unreported decision of R. v. Smith, Judge Martin of the NSW District Court discharged the all white jury after the prosecution challenged the only 3 aboriginal members of the jury panel.[9] The defendant was an Aboriginal man. Judge Martin said ‘it is a very important principle of our system of justice that justice must not only be done, it must appear quite clearly to be done.’

If this case proceeds with this jury then, whilst justice might be done it will certainly not be seen to be done.

This approach has been accepted as a rule of law in the USA where it is illegal for parties in a US civil case to strike out jurors on the basis of race or gender.[10]

The plaintiff submits that by removing the only three women of similar cultural background to the plaintiff, the defendant has deprived the plaintiff of having her trial heard before a ‘trial by one’s peers’.

Judge: Mr Beaumont?

Mr Beaumont: Your Honour, the defendant opposes this application.

In the 1972 Victorian Supreme Court decision of R. v. Grant and Lovett, Grant, an Aboriginal labourer defendant challenged the jury panel composition on the basis that there was not a single Aboriginal person or person with a similar occupation on the panel of jurors. The Court determined that although the jury panel was not of a composition to the liking of the defendant, unless it is shown that this is a result of some deliberate contriving of the sheriff, the jury shall remain.[11] There is no such evidence before the Court today. There is also no evidence to prove that the defendant has been sexist or racist in striking off the names of the three of the jury panel members.

Secondly, my learned friend suggested you rely on the US rules where it is illegal to strike out on the basis of race and gender. However, the jury empanelment process in the US is so different as to be beyond being able to make a valid comparison.[12]

I note that even though the plaintiff’s first application today was that the complexity of the expert medical evidence was too difficult for a jury to understand, the plaintiff chose to strike off three doctors from the jury panel; these were the only three members of the jury panel that have had any experience with medical matters. The defendant is left with a jury that given their common union background could be perceived as being likely to favour the plaintiff in the circumstances and yet the defendant has requested the jury and confirms his request to have his case determined by a jury. In the circumstances, the plaintiff’s application should be refused.

Judge: Thank you Mr Beaumont.

There is no evidence to suggest that the selection of this jury was anything other than the usual jury selection process. The whole essence of the jury system is random selection. A trial judge who intervened in the selection of the jury to ensure that particular groups are represented would be undermining the very essence of the jury system. The application is refused. (To the Associate) Can you please bring in the 6 empanelled jurors and advise the remaining jurors that they are no longer needed. (The 6 jurors resume their seats in the jury box)

Associate: (To the jurors) Please advise me now if any of you do not wish to take the oath on the Bible. (Silence) Members of the jury please stand and take up the bible in your right hand; do each of you, swear by almighty god that you will faithfully try the issues between the plaintiff and the defendant in this case and give a true verdict according to the evidence. Beginning at this end (pointing) repeat after me. I swear by almighty god to do so. (Repeated six times) Thank you. Auditorium lights turned on.

Epilogue

The aim of this performance is to raise awareness of contentious issues surrounding the jury selection process, particularly in relation to medical negligence trials. As many of you who know his Honour Professor Phillips, the scathing attack on the jury system that he made during the performance was not reflective of his opinion of the jury system. His Honour was however quoting Judge Christie of the NSW District Court in the case of Gerlach v. Clifton Bricks. In that case, Judge Christie shared his personal opinion of the civil jury system with the parties on an application to dispense with the jury:

‘Personally, I would do away with all civil juries in the State, instantly and retrospectively. I think it leads to perfectly obvious miscarriages of justice in these Courts every week...I’ve been astounded here in the last six weeks calling the personal injuries list, how many parties seek juries. I think it’s prima facie evidence of professional negligence myself, for a party to seek a jury.’[13]

The facts of the jury selection process just performed for you were loosely based on the application to dispense with the jury made in Gerlach’s case. However, in Gerlach’s case the jury was dispensed with on the basis that the plaintiff would be put to a significant financial burden by the calling and providing of accommodation for the inter-state and country medical witnesses whilst they waited to be called before the jury. When Gerlach’s case reached the High Court on appeal, all but one of the High Court Judges took issue with Judge Christie’s dislike of the jury system. A lively debate ensued during the hearing of this case in the High Court. Numerous contentious issues surrounding the civil jury system were raised by the High Court Judges. The debate also emphasised the fact that most of the arguments made for and against the retention of the civil jury system are based on anecdote, personal experience and professional gossip.

Whilst the jury selection performance raised several issues, I will briefly highlight three of the main issues.

  1. Are juries adequately representative of the community?
  2. Is it appropriate to allow discriminatory factors to be used by the parties in the jury selection procedures?
  3. Are medical negligence cases too complex for the average juror to understand?

1. Are juries adequately representative of the community?

The modern jury is promoted as being ‘representative’ of community members. ‘(T)he lifeblood of the jury system is that citizen participation is the epitome of a free society’.[14] The juries’ ability to represent the community in the legal system encourages the community to take ownership of their laws. As Lord Devlin explains: ‘It is good for a nation when its people feel that in the gravest matters justice belongs in part to them’.[15] Some commentators do not accept that the jury can lay claim to being truly representative of the community. The retired Supreme Court of Victoria judge, Howard Nathan argues that ‘Juries do not represent the community. They are selected from those who can serve rather than those who should serve.’[16] Those who ‘can’ serve refers to groups in the community such as retirees and the un-employed who are perceived to have the time to serve as jurors. Those who ‘should’ serve refers to professionals in our community (such as lawyers and doctors). Added to this concern is the fact that parties to a dispute further interfere with the random process by challenging potential jurors without giving a reason. It is argued by some jury commentators such as Howard Nathan, that jury exemptions, exclusion and challenges are so numerous and haphazard that an unbalanced and unrepresentative proportion of society serve on juries.[17]

Each party to a civil jury trial has 3 peremptory challenges. The parties are not required to explain their choices. The peremptory challenge process is justified on the basis that parties have little right to complain that the system is ‘rigged’ when they are, in part, responsible for the jury selection. In this sense, the peremptory challenge process works to prevent criticism of the legal system from disaffected litigants.[18]

However, challenging jurors is an inexact science, usually based on nothing more than gut feelings of counsel and their rudimentary perception of the person who stands before them for a mere few seconds. The only information available to the parties about the potential jurors is their name and occupation.

‘More often than not, this feeling is a snap reaction to a person’s sex, race, appearance or demeanour. To an experienced legal eye things like age, occupation, clothes, grooming and even lapel badges can be important. People too may be excluded because of national origin or race.’[19]

As the jury selection performance highlights, the system does not prevent the lawyers from challenging jurors based solely on a discriminatory factor such as gender, race or occupation. Is it unfair that the only three people with medical expertise were challenged off? Does the defendant Dr Giannopoulos have the right to be tried by his peers? Anecdotally, it is thought that plaintiffs in medical negligence claims deliberately eliminate those with any medical expertise and those with a high level of education. It is thought that the peremptory challenge practice of trial lawyers results in juries being comprised of citizens with little formal education, the presumption being that those with little formal education are less able to understand the type of scientific dispute between medical specialists that may arise in the course of a contemporary trial.[20]

There is no doubt that the exemptions, exclusions and challenges do result in minor distortions to the randomness of the jury selection process. However, in 2001 I conducted an empirical survey of all civil jurors in Victoria.[21] As part of my empirical study, a demographic profile was taken and this shows that prima facie Victorian civil juries are adequately representative of the Victorian community despite these distorting factors. My survey revealed that the average civil juror is better educated than the average Victorian. A Victorian civil juror in 2001 was 12% more likely to have tertiary education than the average Victorian citizen. The proposition that retirees dominate the jury system is also not made out in the survey. Older Victorians are in fact under-represented in the civil jury system. Civil juries were dominated by middle-aged citizens.[22] The overall result of the basic demographic profile taken of the 2001 respondent civil jurors is that the civil jury is adequately representative of the Victorian community.

2. Is it appropriate to allow discriminatory factors to be used by the parties in the jury selection procedures?

Is it unfair that Mrs Mahomed, the plaintiff did not have the right to have a representative of the same cultural and religious background as herself? Is an all male jury adequately representative?

The defendant in the jury selection performance eliminated the only three women on the jury panel who happened to have Arab sounding names. Whilst there is no evidence to show the defendant’s reasons for his challenges, it is likely that those three were targeted on the basis that they would be the most sympathetic to the plaintiff. Such use of challenges does promote the perception that the jury selection process allows parties to be racist and sexist in their choices.

Since a landmark ruling of the US Supreme Court in 1991, it is illegal for parties in a civil case to strike out jurors on the basis of race.[23] Three years later, this was extended to prevent challenges purely on the basis of gender.[24] There are two major problems with the US approach. First, it is difficult to monitor, because parties will ensure that they justify their challenges with reasons that are not based on racism or sexism.[25] Secondly, there is a solid ‘floodgates’ argument. If you allow this limitation for racial minorities then it should, in all fairness, be extended to religious minorities, those with physical disabilities, homosexuals and all other minority groups. It is difficult to know where to draw the line. Australian and UK courts have declined to follow the approach taken in the US because of the floodgates argument.[26] The parties’ right to peremptorily challenge jurors becomes meaningless when numerous restrictions are placed upon the process. The randomness of the system would be further interfered with and the jury system would become even less representative.

In any event, the results of my 2001 empirical research show that the gender and race mix in civil juries adequately reflects the Victorian community. Despite the automatic exemptions for pregnant women and child-carers, the data show that women were adequately represented in the civil jury system. Victorians born in non-English speaking countries are only slightly under-represented on the civil jury (4.5%). Concerns that jury exemptions, exclusions and challenges are so numerous and haphazard that the civil jury is made up of an unrepresentative proportion of society is not supported by my empirical research.

3. Are medical negligence cases too complex for the average juror to understand?

The crux of many civil and criminal jury trials today is the evidence given by medical experts. Is it unreasonable to expect an inexpert jury to decide between conflicting pieces of expert medical evidence?[27] By its very nature, expert medical evidence is foreign to jurors and outside their common knowledge, otherwise the trial judge would not permit it. Given that, in most trials, the opposing experts work from the same fact scenario, the difference between the conflicting expert opinions is likely to be subtle but crucial.

Respondents to my survey (civil jurors and civil jury trial judges) were confident that the civil jury is capable of understanding complex evidence. The respondent civil jury trial judges placed a proviso on this conclusion: the competency of the jury was contingent upon the competency of counsel. If the expert evidence presented by the parties was presented adequately, then the jury was capable of the task of decision-maker. The results of my empirical research do not indicate a need for expert decision-makers to interpret complex evidence. As one civil jury trial judge explained, the jury is capable of understanding expert evidence as long as competent counsel lead it: ‘[I]f counsel is not competent no evidence is readily understood (by judge or jury).’

The results of my 2001 survey show that the protagonists in civil jury trials have confidence in the ability of the jury to understand complex medical evidence. However, it must be borne in mind that these respondents come to the issue with biases created by their intimate involvement with the civil jury system. Their opinion is not conclusive proof that jurors understand complex evidence. In answering my survey, it was apparent that some of the respondent jurors struggled with the legal terminology that it commonly used in the courtroom.[28] This suggests that the jurors may have also struggled with basic medical terminology as well. More research into this topic is needed before a conclusive answer to this issue can be determined.

I have summarised three issues that arose out of the jury selection performance. There are however many other issues to be discussed, such as the often expensive arrangements for expert medical witnesses to give their evidence. Advances in courtroom technology may well change the process whereby medical experts no longer have to wait around the courtroom before they give their evidence. I hope the jury selection performance will stimulate some good conversation over the next few days of the conference. Thank you.

[1]∗ BA, LLB (Monash), LLM (qualified Monash), PhD ( Melbourne), Lecturer, Faculty of Law, The University of Melbourne, member of the Victorian Bar.

[2]The mock jury selection performance is based on Victorian courtroom procedures. Jury empanelment processes are similar throughout Australian jurisdictions. For the purposes of this performance, artistic license has been taken with those procedures.

[3]Medical negligence in obstetrics cases is understood by medical auditors and medical statisticians to make up over half of all medical negligence claims; Robert Shepherd ‘Medical Negligence – An Overview’ Australian Orthopaedic Association Seminar (19 March 2005).

[4]This application is modelled upon a similar application that was successful before Judge Christie of the District Court of New South Wales. See the unreported decision of Gerlach v. Clifton Bricks Pty Ltd (15 May 1988). This case is discussed by the High Court of Australia in Gerlach v. Clifton Bricks Pty Ltd (2002) 76 ALJR 828, 832.

[5]Peck v. Email Ltd (1987) 8 NSWLR 430, 434.

[6]Per Justice Byrne in the 1995 unreported Supreme Court of Victoria decision of Hasner v. Pen-Insual (Vic) Lty Ltd (inliq). In that case Justice Byrne rejected the argument that dispensing with a jury would materially shorten the trial.

[7]Wilson v. Burridge [1955] VLR 433.

[8]The average duration of Victorian civil jury trials in 2001 was 7 days; Jacqueline Horan, The Civil Jury System – An Empirical Study (PhD thesis University of Melbourne, 2004) 78.

[9]On 19 October 1981 an Aboriginal man, Richard Smith was presented for trial in the Bourke District Court in NSW on a charge of receiving stolen goods. After the Crown Prosecutor had challenged the three Aborigines on the jury panel, Judge Martin discharged the all-white jury. This was the second time that Judge Martin had been presiding over a case where the Aboriginal prospective jurors were challenged by the Crown in a case involving an Aboriginal defendant. Judge Martin accepted that the Crown Prosecutor had the right to challenge the Aborigines on the jury panel.

[10]Since the 1991 landmark ruling of Edmonson v. Leesville Concrete Co Inc.,500 US 614 (1991) and J.E.B. v. Alabama ex rel. T.B 511 US 127 (1994)

[11]The Court observed that if a plaintiff is entitled to stipulate the kind of jury that is to determine their case, it is capable of infinite extension.

[12]Unlike the US, voting is compulsory in Australia and so electoral rolls are likely to be more representative of the total population than the American lists. Every juror before being selected to serve on a US jury undergoes a voir dire process where the parties to the trial rigorously question the prospective jurors about their value and belief systems and their knowledge of the subject matter that will be in question in the trial. There is nothing random about the US jury selection process. Unlike the US where the processes are completely different, the UK provides are useful comparison as our empanelment processes are similar. English case law such as R v. McCalla (mentioned above) also reflects the fact that the judge cannot interfere with the composition of the randomly chosen jury. In that case, two black defendants were unsuccessful in challenging the composition of the all-white jury. The English Court gave examples of other minority groups such as: ‘homosexuals, Freemasons, militant feminists, alcoholics, members of extreme political groups, even criminals who could argue in similar fashion that they could be distinguished from the road mass of those on the Electoral Roll. Such a fundamental change in the way juries are to be made up is not and cannot be a matter for judicial discretion.’ See also R. v. Danvers (1982) Crim L R 681 and R v Gibson (Unreported) Supreme Court, South Australia, 12/121/73 per Mark Israel and Suzi Hutchings, ‘Aboriginal People and Juries: Does the Composition of the Jury Matter?’ (1998) 75.

[13](15 May 1988) as discussed in Gerlach v. Clifton Bricks Pty Ltd (2002) 76 ALJR 828, 832.

[14]Richard Harding, `Jury performance in complex cases’ in Dennis Challinger (ed), The Jury, Seminar Proceedings No. 11, Australian Institute of Criminology, Canberra (1986) 256. See generally Jeffrey Abramson. We, the Jury. The Jury System and the Ideal of Democracy (1994)

[15]Patrick Devlin, The Judge (1979) 176

[16]Howard Nathan, ‘Head to Head: Does the jury system need a radical overhaul’ Herald Sun (Melbourne) Wednesday 20 August 1997, 18.

[17]Paul Conroy, ‘Scrap trial by jury, former judge says’ The Age (Melbourne) Friday 18 July 1997. Howard Nathan, The Civil Jury System – An Appropriate Method of Trial (Paper presented at the General Meeting of the Medico Legal Society of Victoria at the Victoria Club, Melbourne, 16 November 2002).

[18]NZLC, Juries in Criminal Trials, Part One, A discussion Paper’, Paper No 32 (1998) 99. See also James Gobert, ‘The Peremptory Challenge – An Obituary’ (1989) Criminal Law Review 528, 529.

[19] Ivan Vodanovich, The Criminal Jury in Western Australia (PhD thesis University of Western Australia 1989) 96.

[20]R v. Kingswell (1985) 159 CLR 264, 302-303.

[21]Horan, above n 7, chapter 7. A total of 414 jurors sat on 69 civil juries during the 2001 survey period. In total, 411 responses were collected from those jurors giving a 99.3% response rate. In the same year as I conducted my empirical study the Australian Bureau of Statistics (ABS) conducted a census. I relied upon the ABS 2001 Census of Population and Housing in order to create a profile of the Victorian community. I have compared some of the key characteristics of Victorians with the key characteristics of the 2001 civil jury.

[22]Victorians 65 years or order are under-represented on the civil jury by 3.5% whilst Victorians 45-64 years of age are over-represented by 5.9%.

[23]Edmonson v. Leesville Concrete Co Inc. 500 US 614 (1991)

[24]J.E.B. v. Alabama ex rel. T.B. 511 US 127 (1994).

[25]Hiroshi Fukurai, Edgar Butler and Richard Krooth, Race and the Jury (1993) 15.

[26]VLRC, Jury Service in Victoria, Final Report, v. 3 (Dec 1997) 171-2. Vodanovich, above n 17, 164. R. v. Ford (1989) 1 QB 868, 873-874.: The Chief Justice, Lord Lane observed that the essence of the British jury system is random selection. A judge should not intervene to ensure that particular groups be represented. If the jury, in a particular case, did not appear to represent a cross-section of the community, nevertheless, the parties must take the jurors as they come.

[27]Gordon Samuels, ‘Problems Relating to the Expert Witness in Personal Injuries Cases’ in Harold Glass (ed), Seminars on Evidence (1970) 139, 156 and Glanville Williams, The Proof of Guilt (3rd ed 1963) 126-128.

[28]This lack of understanding of fundamental legal concepts supports the argument that the average layperson is not capable of competently undertaking the role of decision-maker in the courts. By their answers to the questionnaire, the jurors showed that they did not understand terminology such as ‘facts of the case’ and ‘ the law of the case’. However, the fact that jurors were poor at categorising ‘ facts’ and ‘law’ does not of itself equate to juries being incompetent decision-makers. The lack of understanding of basic legal concepts does make it more likely that the civil jurors struggled to understand their task as individuals. However, this response does not give us insight into how the jurors as a group understood and applied the basic legal concepts. Judges and the parties’ legal representatives regularly use such basic legal terminology during civil jury trials. The impact of the individual jurors’ lack of understanding of basic legal concepts on the jury decision-making process is an unknown. See Jacqueline Horan, above n 7, 223-227.

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