Appearing in the district or supreme court for the first time in a criminal law matter can be quite nerve wrecking, even if it’s just as part of the Jury. We put together some answers to a few of the questions we often get asked about going to trial for a criminal matter and the Jury empanelment process.
Does a criminal trial in the District and Supreme Court involve a jury?
Yes. A criminal trial hearing in either the District Court or the Supreme Court runs differently from a trial hearing heard summarily in the Magistrates Court. The District and Supreme Courts are higher courts of jurisdiction which hear and determine more serious criminal offences and generally involve the empanelment of a jury at the commencement of the trial. The empanelled jury ultimately determines the facts of the case and delivers the verdicts.
If you are going to trial in the District or Supreme Court, The Law Offices of Andrew Williams will discuss and explain to you the procedure and formalities involved at the commencement of the trial. The following is an overview of the processes involved at the beginning of a criminal law trial determined in the higher courts of jurisdiction in Perth, and what roles certain people play.
Who are the people in the court room and where do they appear?
At the commencement of the trial, the accused appears in the dock. This is a secure area in the court room where the accused is flanked by security officers.
Both defence counsel and counsel for the prosecution appear at the bar table. Defence counsel appear from the end of the bar table that is closest to the accused, while counsel for the prosecution appear at the other end of the bar table further away from the accused but closer to jury box where the empanelled jury sit.
The judge appears from what is called “the bench”. Below the judge there is a second bench where the clerk of arraigns appears. The clerk of arraigns acts at the judge’s administrative assistant during the course of the trial.
At the back of the court there is a large number of people who form what is called “the panel”. These people have been selected from the wider community for jury duty. Each person on the panel has been delegated a specific number to allow for anonymity and to protect their identity. They are all prospective members of the jury because if their number is called they are required to come forward and take up a position in the jury box.
What is the process for empanelment of, or choosing a jury?
At the commencement of the trial the accused person is arraigned. An arraignment process is essentially the process where the charge is read out to the accused person by the clerk of arraigns. The clerk of arraigns will then ask the accused person how they plead to the charge. The accused is asked whether they plead guilty or not guilty to the charge. The charge is read from a document called an ‘indictment’. This document specifies the alleged offence.
Before the empanelment process begins, the trial judge gives an express warning to the members of the panel that if they are acquainted in some way with the accused, or have any personal knowledge about the case, or if they know any of the witnesses in the case that the prosecution proposes to call then they should bring that to the attention of the judge if and when they are called. This warning helps to ensure there is nothing standing in the way of an empanelled juror being true to their oath or affirmation to deliver a verdict according to the evidence produced before them.
What then takes place is a ballot. Multiple cards or tickets are placed into a box by the clerk of arraigns. Each card placed into the box has a number written on it which corresponds with a number assigned to a member of the panel. The box is then shaken, following which the clerk of arraigns pulls out and calls each person’s number one at a time. As each number is called, the person with the corresponding number is required to come forward and take up a position in the jury box. This continues until 12 people have been empanelled on the jury.
What if a person is called who I don’t want on my jury?
Before the court proceedings commence both defence counsel and counsel for the prosecution are provided with a copy of the jury list. This list specifies next to each number (that has been assigned to the prospective juror) that person’s name, address and the occupation.
Every accused person has a right eliminate up to three jurors that are called from the panel. This is referred to as the right to challenge a juror. Though the accused person retains the right to challenge at all times during the empanelment, any challenges are done by defence council.
As defence counsel, have a copy of the jury list with the personal details of each panel member, enabling some kind of understanding (albeit limited) about each person called. Sometimes the challenge might be based a person’s occupation, or it might just be the way the person’s demeanour comes across that can influence legal counsel to make the decision to challenge a juror.
Counsel for the prosecution also have a right to challenge up to three jurors. The right of challenge can take place at the time when the juror is called or it can take place in the moments before the juror is sworn in. If the juror has commenced making the oath or affirmation, the right to challenge that juror will fall away.
How many people are selected to go on the jury?
A jury of twelve people will always be ultimately selected to bring the verdict of guilty or not guilty. This verdict is required to be unanimous, with all twelve jurors agreeing on the same verdict of guilty or not guilty.
What if the trial is expected to continue for a long time and one of the jurors falls ill and cannot attend court?
Often, and particularly in criminal trials expected to continue for any length of time, the judge orders that more than twelve people are empanelled. This process helps safeguard against the trial being unable to continue due to the absence of a juror.
If more than twelve people are empanelled in a trial (which often happens), another ballot occurs when all of the evidence is complete and the judge has delivered his/her address or “charge” as it is called. The final ballot whittles the number of the members of the jury down to twelve and it is those final twelve who are to determine the case and deliver their unanimous verdict.