Court to decide whether judge has power to ask if juror is vaccinated

For our free coronavirus pandemic coverage, learn more here.

The Court of Appeal will consider whether judges in Victoria have the power to find out whether a potential juror is vaccinated against COVID-19.

While there have been rulings made overseas on the issue, it is set to be one of the first times a court in Australia has considered the vaccination status of juries.

A remote plea hearing in the County Court in June last year, after jury trials were suspended.Credit:Joe Armao

But the question may be rendered a moot point following a separate move from Attorney-General Jaclyn Symes to introduce an amendment to the law in parliament on Thursday afternoon.

The proposed change, contained in an amendment to the Terrorism (Community Protection) Act, will allow the state’s Juries Commissioner to collect proof of vaccination status of Victorians called up to jury duty, and if proof isn’t shown, the commissioner can defer the service for that specific trial. The Commissioner would have the power until October next year.

The Court of Appeal case, to be heard on Friday, arose from a development in a County Court criminal trial when defence barrister Paul Kounnas sought to have the judge question members of the jury about their vaccination status, in order for his client to be trialled by only double-jabbed jurors.

The judge in the case ruled the court did not have the power to inquire about the vaccination status, saying the legislation did not allow judges to make such inquiries.

The question of vaccinated jurors has been dealt with in other jurisdictions.

The Supreme and District courts in NSW made it a policy last month that jurors, and all those attending court when in-person cases resumed, to be double-vaccinated.

In Tasmania, Supreme Court Justice Robert Peace decided that he would inquire about the vaccination of jurors for the alleged murder trial he was presiding over, citing health and safety reasons. There were no challenges to the move.

In the US, the response has been mixed. The defence team in a case about the opioid crisis successfully challenged a ruling that only vaccinated New Yorkers could serve on the jury.

US District Judge Edward Davila was unchallenged when he dismissed nine members of the jury pool because they weren’t vaccinated in the high-profile California fraud trial of Theranos founder Elizabeth Holmes.

Monash University associate professor and jury researcher Jacqui Horan said courts should be able to inquire about the vaccination status of a juror, but the responsibility should rest with the Juries Commissioner, so people aren’t publicly shamed in the court.

“Like any business, you’re required to check-in your patrons by vaccination, and it should be the same for courts,” Professor Horan said.

“The courts have an obligation to the other 11 jurors to keep them safe.”

Victorian courts, already facing a massive backlog due to in-person hearings and trials being suspended due to the pandemic, do not need further delays to trials if an unvaccinated juror fell ill, Professor Horan said.

“If that case gets thrown out and we have to start again because of that, it’s a huge amount of expense to the community that we just can’t afford,” Professor Horan said.

“More importantly, it’s about the duty to victims and duty to the defendants.”

Shadow Attorney-General Tim Smith said he understood the problems unvaccinated jurors posed to the running of a trial, but said the government rushed through the change without proper consultation.

“For something as profound as this to be rammed through in the afternoon is completely unacceptable,” Mr Smith said.

“The Andrews government must refer this to the scrutiny of acts and regulations committee and should have done so weeks ago.”

The Morning Edition newsletter is our guide to the day’s most important and interesting stories, analysis and insights. Sign up here.

Most Viewed in National

From our partners

Source: Read Full Article