The Victorian Law Reform Committee determined that the word “peer” likely originated from the Latin for “par” which meant “equal”. In this vein, the Australian judiciary takes the position that under the laws of Australia, “all individuals are equal. ” Even so, there are certain requirements that have to be met in order to qualify for jury duty to the extent that a jury of one’s peers should be representative of fair-minded and objective individuals.
The underlying concept is to achieve a panel that at the very least appears to be impartial. Section 11 of the Juries Act 1927 (South Australia) provides that any person who is eligible and registered to vote in South Australia is qualified to serve as a juror. The maximum age is 70. By virtue of Section 12(1) “a person is disqualified from jury service” if that person has been previously convicted of a criminal offence: “for which death or life imprisonment is a mandatory, or the maximum penalty.
” A person sentence to a custodial sentence for “a term exceeding two years”, or a person who has “served” any part of a custodial sentence or “has been on probation or parole” within ten years “immediately preceding the relevant date” is not eligible for jury duty. Moreover, a person whose driver’s licence has been revoked by the court for more than 6 months within the five years prior to “the relevant date” or has received a custodial sentence during that five year period cannot serve as a juror.
A person who has an outstanding criminal charge likewise cannot serve as a juror nor can a person who “at the relevant date” is bond over “to be of good behaviour. ” Section 11 sets the tone for the creation of one’s peers and Section 12 obviously veers off into establishing impartiality. There is a general presumption that persons who have been held up to scrutiny by the criminal justice system and may have been found guilty may have a particular bias either in favour of or against the accused person.
In order to prevent the appearance of bias, a jury of one’s peers must be representative of a fair and impartial panel. In keeping with this mandate, competence becomes important to the concept of fairness and is encapsulated in Section 13 of the Juries Act. Section 13 disqualifies prospective jurors who are “mentally or physically unfit to carry out the duties of a juror” or who cannot understand or speak English for the purpose of carrying “out the duties of a juror. ” Schedule 3 of the Juries Act 1927 speaks more powerfully to the notion of peers by disqualifying from jury service government officials.
The list includes “the Governor,” as well as “the Lieutenant Governor and their spouses;” Crown ministers and their spouses, Parliamentary members, judges, magistrates and their spouses, as well as “justices of the peace who perform court duties and their spouses”; lawyers in practice, police officers and their spouses; government employees “whose duties are connected with investigation of offences, the administration of justice or the punishment of offenders;” and court personnel. It is obvious that the meaning of the word “peer” in relation to jury service carries with it an intent to protect the right of an individual to a fair trial.
This right is founded on the principle that individual liberties are to be protected from state autonomy. Those who insist upon jurors representing the accused or the victim is therefore a misapplication of the term “jury of one’s peer”. As demonstrated by the Juries Act 1927 and the Magna Carta 1215, a jury of one’s peers intends to do no more than to suggest that the accused is judged not by government officials but by responsible and fair-minded individuals from the community. The Law Reform Committee of Victoria provides a simplified definition of jury peers as representing “a representative selection or sample of a larger population”.
In other words the notion of a juror of one’s peer should merely: “… reflect a broad cross-section of people selected from the same legally defined community as the accused. Consequently, systematic exclusion of particular groups within the community should be prohibited. ” The random selection of jurors within the parameters set by the Juries Act 1927 is the best method of ensuring that jurors meet the impartial criteria and are broadly representative of the accused. This approach was indorsed by the Victorian Law Reform Committee.
If the definition of a jury of one’s peers were to be applied in such a way as to ensure that the jury members represent the specific characteristics of the accused, the jury selection process would invariably involve a prolonged jury vetting process. The Victorian Law Reform Committee submits that: “Selecting jurors based upon the particular characteristics of the accused or the victim in order to obtain this form of representatives is impossible to achieve because the community can be divided up into many groups based on factors such as gender, race, socio-economic background and education. ”