Push to consider gender quotas on Queensland juries

Kamania McKee was ‘infuriated’ after she sat through jury selection for three separate sexual assault trials in Brisbane last month.

Barrister Laura Reece served on the Palaszczuk government’s women’s safety taskforce and was counsel assisting on the DNA inquiry. Picture: Steve Pohlner

Kamania McKee was “infuriated” after she sat through jury selection for three separate sexual assault trials in Brisbane last month.

The 28-year-old watched as woman after woman was vetoed by defence lawyers and the final jury was left with a significant gender imbalance.

“I just really couldn’t believe that in this day and age there’s no requirement for some kind of equality or consideration for that in the process,” she said.

“I think we should really be looking at a quota system, or something like that, to ensure there is equality and better representation in the legal system.”

In Queensland, prosecution and defence counsel are given eight challenges to veto a potential juror without having to give a reason.

Victoria halved the number of challenges from six to three in 2014, on recommendations from its law reform commission, which found women were under-represented on juries and six challenges “can and do impact on representativeness”.

Jonathan Crowe, professor of law at Bond University, said Queensland’s Law Reform Commission should examine whether changes can be made to jury selection process given low conviction rate in sexual assault cases.

Bond University Professor of Law Dr Jonathan Crowe.

“Anecdotally, you do hear about this tendency of defence lawyers to challenge women, particularly young women, on sexual assault trials,” said Professor Crowe, also a director at Rape & Sexual Assault Research & Advocacy. “What we need in Queensland really is more data because we benefit from having a clearer picture of what’s actually happening, how these challenges are being used, and how it might be impacting on our juries.”

Women’s Legal Services Australia spokeswoman Nadia Bromley agreed governments should gather more data on the number of women on juries because “there is a lot to be learned”.

At a 2019 trial of four men charged with the gang rape of a 16-year-old girl in a north Queensland canefield, Judge Tracey Fantin was critical of defence counsel for challenging female jurors after six jurors, one woman and five men, had been selected during empanelment.

“I would consider a jury entirely comprised of men or almost entirely comprised of men to be a jury of a composition that may cause the trial to appear to be ­unfair,” she said.

Judge Fantin’s comments formed part of the men’s successful bid for a retrial with the Court of Appeal in 2020 rejecting the assumption that a jury comprised of men, or almost entirely of men, could cause a trial to appear to be unfair.

Barrister Laura Reece, who served on the Palaszczuk government’s women’s safety taskforce and was counsel assisting on the DNA inquiry, said there was no support for reform without a significant evidence base to suggest that the constitution of juries is problematic in Queensland.

“The work being undertaken across our criminal justice system to implement recommendations from the Women’s Safety and Justice Taskforce will constitute a major change to the way sexual assault matters are investigated and prosecuted,” she said.

Queensland Bar Association president Damien O’Brien said he was unaware of any evidence that miscarriages of justice were occurring due to gender composition of juries, and law changes should be evidence-based.

Criminal lawyer Bill Potts is “broadly against quotas” and said he “would have thought that in the modern society we have now, any prejudice that may have existed a long time ago against the female jurors has long past”.