1. Introduction

Updates and background for this project (Digest)

• Background to the reference
• Use of juries
• Underlying principles and themes

BACKGROUND TO THE REFERENCE

1.1 This reference has been stimulated by two main concerns. First, the extent to which juries have become unrepresentative of the community because of the numbers of people who are either disqualified, ineligible to serve or who exercise their entitlement to be excused as of right or apply to be excused for good reason. Secondly, the fact that the burden of serving on juries is shared inequitably or in circumstances where the resource is not used to the best economic and efficient advantage.

1.2 Further, a review of the legislation in NSW is timely in light of the fact that substantial reforms concerning the composition of juries and the conditions of service have occurred in other jurisdictions,¹ and the fact that the last formal review of the Jury Act 1977 (NSW) occurred in 1993-1994.²

USE OF JURIES

1.3 Although juries may be used in criminal trials in the Supreme and District Courts,³ in the Coroner’s Court⁴ and in some civil trials,⁵ their use has diminished significantly in recent years.

Criminal trials

1.4 In the Supreme Court or District Court, an accused person who elects to go to trial will normally be tried by a judge and jury. Such a person may, however, be tried by judge alone where:

• that person makes an election before the date fixed for trial;
• the judge is satisfied that he or she made the election having sought and received advice about the election from a legal practitioner;
• all other accused persons in the trial make a similar election;
• each of the accused persons in the trial make an election with respect to all of the offences with which they have been charged;
• the Director of Public Prosecutions consents to the elections.⁶

1.6 In 2005, only 0.4% of criminal cases overall proceeded to a defended hearing in the Supreme Court and District Court.¹⁰ This is consistent with the findings in our Report on majority verdicts by juries that, in 2003, only 0.5% of criminal cases overall proceeded to a defended hearing in the Supreme Court and District Court.¹¹ Although there has been no refinement of the statistics to identify the percentage of cases tried by a judge and jury, it would appear that juries continue to determine the question of guilt in less than 0.5% of all criminal trials in NSW.

Coroner’s inquests and inquiries

1.7 Coroners are empowered to conduct inquests into deaths or suspected deaths¹² and inquire into fires and explosions.¹³ Such inquests or inquiries are usually held before a coroner without a jury.¹⁴ However, they must be held before a coroner with a jury where directed by the Minister or State Coroner,¹⁵ or where requested by a relative of the person who has died or is suspected of having died, or the secretary of any organisation of which the person was a member immediately before the death or suspected death.¹⁶

1.8 It is understood that juries are rarely used in Coroner’s inquests or inquiries. Recent cases of the use of 6 person coronial juries include: in 2000, an inquest into the death of a man at the Star City casino;¹⁷ in 2002, an inquest into the shooting death of a man during a police siege,¹⁸ and an inquest into the death of a camper from a falling tree;¹⁹ and in 2005, an inquest into the death of an employee in a mining accident at Broken Hill.²⁰

Civil trials

1.9 Juries are not available for civil matters in the Local Courts and are now used very infrequently in the Supreme Court and District Court.

1.10 Until 1965 all actions for personal injuries could be tried by a judge and jury. During that year, legislation was passed removing that right in proceedings where the plaintiff claimed damages for personal injuries arising out of the use of a motor vehicle.²¹ Prior to this, trial by a jury had become the norm for disputed issues of fact in common law trials, being supported both by those who represented plaintiffs and those who represented the insurers of defendants, although it was open to the parties to dispense with a jury by consent. A statutory and inherent power in the Court to dispense with a jury was also recognised but it was not often invoked.

1.11 In most instances the trial was by a jury of four people, although a power did exist, and continues to exist,²² to order that there be a jury of twelve.

1.12 In 1970, the Supreme Court Act 1970 (NSW) provided, as a general principle, that proceedings in civil cases should be tried without a jury unless the Court otherwise ordered.²³ There were several exceptions or qualifications to this general rule in the Common Law Division in that:

• a prima facie entitlement to have issues of fact tried by a jury was established where a party filed a requisition for a jury and paid the prescribed jury fee;²⁴
• running down cases were not to be tried by a jury unless all the parties consented or unless the Court, on the application of one party so ordered;²⁵
• where there were issues of fact on a charge of fraud, or a claim in respect of defamation, malicious prosecution, false imprisonment, seduction or breach of promise of marriage, the trial was to be by jury;²⁶
• where issues of fact arose in relation to a defence under certain workers’ compensation provisions they were to be tried without a jury.²⁷

1.14 The effect of this decision was to limit the number of common law cases where applications were made, or orders successfully sought, to dispense with juries in work injury cases or defamation cases which, by 1988, represented the bulk of litigation in the Supreme Court.

1.15 In 2001, amendments introduced a presumption in both the Supreme and District Courts of trial without a jury unless “the Court is satisfied that the interests of justice require a trial by jury in the proceedings”.²⁹ This followed upon a jury decision in which a plaintiff was awarded $2.5m in damages for injuries received as the result of corporal punishment administered to him while a school pupil.³⁰ Following this amendment, the use of civil juries in the Supreme Court and District Court has all but ceased, save for proceedings for defamation.³¹

1.16 The limited use of juries in civil trials can be demonstrated by reference to the following statistics provided by the Supreme Court for the years 2004-2006:³²

2004	s 7A defamation trials	32	settled on or prior to hearing	11
			heard	21
	other cases (mainly medical negligence claims)	13	settled on or prior to hearing	10
			heard	3
2005	s 7A defamation trials	40	settled on or prior to hearing	15
			heard	25
	other cases	6	settled on or prior to hearing	4
			heard	2
2006 (to 30 September)	s 7A defamation trials	17	settled on or prior to hearing	4
			heard	13
	other cases	4	settled on or prior to hearing	2
			heard	2
TOTALS		112	settled on or prior to hearing	46
			heard	66

1.17 Although civil juries are routinely used in defamation trials in the District Court (for s 7A issues and now for the wider purposes for which there is provision in the Defamation Act), they are all but non-existent for other civil trials. Of the 12 civil jury trials so far listed in the District Court in the 2006 calendar year, only 4 have proceeded to trial. In 2005, there were 4 jury trials in the District Court.

1.18 Other developments that have seen a decrease in the use of juries in civil trials have been the amendments to the workers’ compensation legislation which have substituted modified rights to common law damages, with various thresholds and ceilings. The consequent decline in common law claims for work-related injuries has been substantial and this, combined with the presumption of trial without a jury in the Supreme Court and District Court, means that there will now be very few common law claims, other than defamation cases, tried by juries.

Defamation proceedings

1.19 The role of juries in defamation proceedings has changed over the years, as has the extent of their possible commitment. Prior to amendments in 1994, the jury was required to consider virtually all of the factual issues.³³ In 1994 their role was confined to the issue whether the imputations pleaded were conveyed and whether they were defamatory,³⁴ with the result that jury trials in relation to these issues seldom lasted more than one or two days. The introduction of uniform law in 2005³⁵ means that juries will now be required to determine all factual issues other than damages. This has expanded the potential involvement of juries in defamation proceedings.

1.20 The incidence of jury trials in these cases will now increase, although plaintiffs may seek to avoid this consequence by bringing proceedings in the Supreme Court of the ACT, where trials will continue to take place without a jury.³⁶

1.21 By reason of the limited use of juries other than in criminal trials, this Issues Paper and the reference will largely concentrate on juries in the criminal jurisdiction.

Cost of jury service

1.22 The Sheriff has provided the following estimate of jury costs for the 2005-2006 financial year:

Jury fees and travel ……………	$6,500,000
Staffing for jury management ..	1,916,528
Meals and refreshments ………	400,000
Supplies (including jury views)	40,000
Postage and stationery ………...	300,000
TOTAL…………………………....	9,156,528

1.23 For the period 1 July 2005 to 12 May 2006, $4,840,135 was paid in fees to jurors who were empanelled to serve, and $945,635 was paid to those who reported for service and were held in reserve or were kept waiting at court for more than 4 hours pending possible empanelment. The Sheriff has expressed concern that there is a degree of wastage in relation to this group of people who are summoned but not required to serve that could be overcome by better court management procedures.

UNDERLYING PRINCIPLES AND THEMES

1.24 It is not the purpose of this reference to question the merits or desirability of trial by jury. However, it is important to consider some of the underlying principles and themes that relate to juries and jury service.

Rights and duties of citizenship

1.25 Jury duty is an important civic duty and those who become involved in criminal trials have an expectation that they will be determined by a judge and jury. Trial by jury is said to be “for the benefit of the community as a whole as well as for the benefit of the particular accused”.³⁷

1.26 Reducing categories of exemption from jury service is seen as spreading “the obligation of jury service more equitably among the community”.³⁸ If a large number of people are exempted or excused from jury service then a higher burden is imposed on those who are still eligible.³⁹

Representation

1.27 Representation in this context refers to a representative sample of the whole population. Perfect representation is obviously not possible since the process of jury selection is one involving random selection from a relatively small pool. Representation is not about achieving representation by particular groups on particular juries, but rather, as the New Zealand Law Commission has suggested:

What is required is that all persons who are eligible to serve on juries, including those who are younger or older, or from ethnic minorities, do have an equal opportunity to serve.⁴⁰

1.29 In 1965, the UK Departmental Committee on Jury Service stated that:

A jury should represent a cross-section drawn at random from the community, and should be the means of bringing to bear on the issues that face them the corporate good sense of that community. This cannot be in the keeping of the few, but is something to which all men and women of good will must contribute.⁴²

1.31 Concerns have sometimes been expressed that “citizens with better education or in high status employment [are] invariably excluded from jury duty”.⁴⁶ The Auld review of the criminal courts in England and Wales saw this trend as a particular concern in relation to “long and complex cases” where “a range of experience and intellect is most needed”.⁴⁷ It may be argued that if those who are exempted represent sections of the community with particular skills and experience, then the expectation that trial by jury will involve an informed and careful consideration of the issues is at risk.

1.32 In a survey conducted in Western Australia in 1983, 88.9% of respondents felt that “highly educated persons such as professors, school teachers, doctors, [and] clergymen,” should not continue to be exempt from jury service.⁴⁸

People from culturally and linguistically diverse backgrounds

1.33 There is a danger that the absence of particular minority groups from juries may render them open to a charge of bias in some cases.⁴⁹

1.34 The Australian Law Reform Commission, in its report on multiculturalism and the law, considered that the exclusion of people who are not registered to vote and who have an inadequate command of English meant that juries were not truly representative of the community. This was seen as affecting the “perceived legitimacy” of the jury system. The Commission noted that some people from culturally diverse backgrounds fear that “jurors’ hostility and suspicion towards people of non-English speaking backgrounds may prejudice the chances of a fair trial where the accused or any witnesses or victims belong to particular ethnic minorities”.⁵⁰

Indigenous people

1.35 This danger of bias has been further highlighted in the Australian context by reference to the apparent under-representation of Indigenous people on juries compared with the over-representation of them as criminal defendants. The NSW Bureau of Crime Statistics and Research has reported that the rate of Indigenous appearances in Court on criminal charges is 13 times that of non-Indigenous Australians, and that their rate of imprisonment is 10 times that of non-indigenous Australians.⁵¹ A 1994 Australian Institute of Judicial Administration review noted that Indigenous people comprise 7% of the prison population but less than 0.5% of jurors.⁵² In 1986, a study conducted by the NSW Law Reform Commission reported that 0.4% of jurors were of Aboriginal origin, compared with 0.6% of people of Aboriginal origin in the general population.⁵³ More recent figures show that in 2001, Aboriginal people made up 1.9% of the NSW population⁵⁴ and, in 2004, Aboriginal people made up 16.8% of the NSW prison population.⁵⁵

1.36 A number of reasons have been provided for the low proportion of Indigenous jurors in NSW, including:

• the greater likelihood that members of transient populations will not be included in the electoral roll (from which the jury roll is compiled);⁵⁶
• the strict disqualification provisions that apply to people with criminal records;⁵⁷
• the fact that, in some regional districts, Indigenous jurors may be known or related to Indigenous defendants, particularly in light of their extended concept of family relationships;⁵⁸ and
• lower literacy rates and the ineffectiveness of written communication may mean that some people do not respond to jury notices.

1.37 The High Court, in 1993, considered that one of the “unchanging elements” of the principle of representation is that “the panel of jurors be randomly or impartially selected rather than chosen by the prosecution or the State”.⁵⁹ In an earlier case, the Court had observed that random selection was one of the characteristics of a jury that offered “some assurance that the accused will not be judged by reference to sensational or self-righteous pre-trial publicity or the passions of the mob”.⁶⁰

1.38 The principle of random selection is expressly mentioned in the statutes of most Australian jurisdictions, including NSW.⁶¹

1.39 The right of peremptory challenge is to an extent inconsistent with the principle of random selection.⁶² The alternative is to confine the right of challenge to challenge for cause or to create a system for jury vetting of the kind seen in some States in the US. A certain level of peremptory challenge is generally considered not to offend the principles of random selection. There is a greater risk that the practice of jury vetting may overstep the mark.⁶³ It is not, however, the purpose of this reference to question the existing practice which permits both peremptory challenge and challenge for cause, or to consider any form of jury vetting which would permit exploration of the personal histories or attitudes of potential jurors.

1.40 Attention will, however, be given to the categories of people who are disqualified, ineligible or entitled to exemption as of right, since their exclusion or exemption from service can have a direct impact on the representativeness of the jury.⁶⁴

Participation

1.41 It has been suggested that “participation by the community helps to ensure that the justice system remains in touch with and accountable” to all the citizens of a State.⁶⁵ The NSW Jury Task Force in 1993 considered that jury service gave members of the community “the opportunity to contribute to law making, in the sense that juries help keep the judiciary in touch with current community thinking”.⁶⁶

1.42 Jury service is seen as an important point of contact between the court system and the public at large.⁶⁷ In the UK in 1965 the Departmental Committee on Jury Service considered jury service to be a “valuable social and educational experience” and agreed with those who argued that “it is desirable for as many people as possible, from all walks of life, to play their part in the administration of justice”.⁶⁸ The NSW Law Reform Commission, in its review of the jury in criminal trials, observed:

The jury system is... an important link between the community and the criminal justice system. It ensures that the criminal justice system meets minimum standards of fairness and openness in its operation and decision-making, and that it continues to be broadly acceptable to the community and to accused people. The participation of laypeople in the system itself validates the administration of justice and, more generally, incorporates democratic values into that system.⁶⁹

It gives people an important role as jurors - as stakeholders - in the criminal justice system. Seeing the courts in action and participating in that process maintains public trust and confidence in the law.⁷⁰

1.43 Participation can be a burden in some cases. Currently the burden is unequally shared. Some people may be called upon too frequently, although whether this is the case is difficult to ascertain in the absence of statistics, and in circumstances where prior jury service, particularly recent service, can provide a good reason to be exempted or excused. If it does in fact occur then it is more likely to be the case in regional areas than in metropolitan areas.⁷¹

1.44 The Auld review in the UK observed that avoidance of jury service by many in the community “is unfair to those who do their jury service, not least because, as a result of others’ avoidance of it, they may be required to serve more frequently and for longer than would otherwise be necessary”.⁷²

1.45 The extent to which citizens may be called upon to perform jury service will vary according to their place of residence, and the incidence of trials at courts within the prescribed limit of their residence. In the Sydney metropolitan district in 2004 there were some 2,200,000 enrolled electors. In that same year 406 criminal matters proceeded to trial in the Supreme Court and District Court in Sydney and South West Sydney, requiring, about 5000 jurors.⁷³ If every enrolled elector was eligible to be a juror, and if 2004 was typical, this would suggest that, in any given year, each person on the electoral roll would stand an approximate 1 in 450 chance of actually serving. However, that chance would increase once people who are disqualified, ineligible, entitled to exemption or excused for good cause are removed from the available pool. The situation will, of course, be different in regional areas.

1.46 Lord Justice Auld considered it possible that, once patterns emerge following the removal of most categories of exemption, “local increases” could be permitted in the period during which a person may be excused for previous jury service.⁷⁴

Engendering public confidence

1.47 People are more likely to accept jury verdicts if they are seen as being representative, so the jury has a role in legitimising the system of which it is part.⁷⁵ For example, the High Court observed in 1986 that the:

essential conception of trial by jury helps to ensure that, in the interests of the community generally, the administration of criminal justice is, and has the appearance of being, unbiased and detached.⁷⁶

The nature of the jury as a body of ordinary citizens called from the community to try the particular case offers some assurance that the community as a whole will be more likely to accept a jury’s verdict than it would be to accept the judgment of a judge or magistrate who might be, or be portrayed as being, over-responsive to authority or remote from the affairs and concerns of ordinary people.⁷⁷

1.48 The general opinion in the community is that “normally, the jury trial is the fairest form of trial available”.⁷⁸ However, in order to ensure a fair trial, it is important that a jury is composed in a way that avoids bias or apprehension of bias. As discussed later in this report this does have a bearing on the representative nature of the jury and the retention of certain categories of disqualification or exclusion.

1.49 Some jurisdictions give the judge an express power to discharge a jury in certain circumstances where its composition might make the trial unfair or appear to be unfair. For example, in NSW, the presiding judge has the power to discharge the jury if “the exercise of the rights to make peremptory challenges has resulted in a jury whose composition is such that the trial might be or might appear to be unfair”.⁷⁹ This power is, however, rarely exercised. In other jurisdictions it is considered that the principle of random selection is generally sufficient to ensure fairness and that any power to discharge should only be exercised where the competence of the jurors is in question.⁸⁰

1. In, eg, Victoria: Juries Act 2000 (Vic), and Parliament of Victoria, Law Reform Committee, Jury Service in Victoria (Final Report, 1996); Tasmania: Juries Act 2003 (Tas), and Tasmania, Department of Justice and Industrial Relations, Review of the Jury Act 1899 (Legislation, Strategic Policy and Information Resources Division, Issues Paper, 1999); England and Wales: Criminal Justice Act 2003 (Eng), R E Auld, Review of the Criminal Courts of England and Wales (HMSO, 2001); New York: The Jury Project (Report to the Chief Judge of the State of New York, 1994).

2. NSW, Report of the NSW Jury Task Force (1993); and M Findlay, Jury Management in New South Wales (Australian Institute of Judicial Administration Inc, 1994).

3. Criminal Procedure Act 1986 (NSW) s 121.

4. See Coroners Act 1980 (NSW) s 18.

5. Civil actions are generally to be tried without a jury unless a jury is required in the interests of justice: Supreme Court Act 1970 (NSW) s 85; District Court Act 1973 (NSW) s 76A. See also Defamation Act 2005 (NSW) s 21.

6. Criminal Procedure Act 1986 (NSW) s 132.

7. Constitution (Cth) s 80; Brown v The Queen (1986) 160 CLR 171.

8. Crimes Act 1900 (NSW) s 476; and Crimes Act 1914 (Cth) s 4J.

9. Crimes Act 1900 (NSW) s 495-496A; and Crimes Act 1914 (Cth) s 4JA.

10. NSW, Bureau of Crime Statistics and Research, NSW Criminal Court Statistics 2005, Tables 1.3 and 3.2.

11. NSW Law Reform Commission, Majority Verdicts (Report 111, 2005) at para 1.6-1.7.

12. Coroners Act 1980 (NSW) s 13.

13. Coroners Act 1980 (NSW) s 15.

14. Coroners Act 1980 (NSW) s 18(1).

15. Coroners Act 1980 (NSW) s 18(3).

16. Coroners Act 1980 (NSW) s 18(2).

17. S Gibbs, “Jury shown Star City death video” Sydney Morning Herald (9 May 2000) at 8.

18. “Jury clears marksman” Daily Telegraph (11 May 2002) at 7.

19. J Bartlett, “Jury to decide camper inquest” Herald (Newcastle) (30 May 2002) at 1.

20. “Inquest prompts mine safety recommendations” ABC Premium News (11 February 2005).

21. These were referred to as “running down cases”. See Motor Vehicles Third Party Insurance Amendment Act 1965 (NSW) and Law Reform (Miscellaneous Provisions) Act 1965 (NSW).

22. Jury Act 1977 (NSW) s 20.

23. Supreme Court Act 1970 (NSW) s 85.

24. Supreme Court Act 1970 (NSW) s 86, although subject to the Court having the power, save as hereafter mentioned, to dispense with a jury: Supreme Court Act 1970 (NSW) s 89(1).

25. Supreme Court Act 1970 (NSW) s 87, consent invariably being refused, and orders by the Court rarely being made.

26. Supreme Court Act 1970 (NSW) s 88, subject, however, to the Court having the power to order that any or all of the issues be tried without a jury where a prolonged examination of documents or scientific or local investigation were required and could not conveniently be made with a jury, or all parties consent to such an order: Supreme Court Act 1970 (NSW) s 89(2).

27. See Workers Compensation Act 1926 (NSW).

28. Pambula District Hospital v Herriman (1988) 14 NSWLR 387.

29. Courts Legislation Amendment (Civil Juries) Act 2001 (NSW) amending Supreme Court Act 1970 (NSW) s 85 and repealing s 86-89; inserting District Court Act 1973 (NSW) s 76A and repealing s 78-79A.

30. New appeal granted confined to damages assessment: Trustees of the Roman Catholic Church v Hogan [2001] NSWCA 381.

31. See Defamation Act 2005 (NSW) s 21. Under this Act, a party may elect for trial by jury, unless the Court otherwise orders (s 21(1)). The Court may, however, order that such proceedings are not to be tried by jury if they involve a prolonged examination of records, or any technical, scientific or other issue that cannot be conveniently considered and resolved by a jury (s 21(2)). See para 1.19-1.21.

32. Not reached cases and vacated fixtures are excluded.

33. Defamation (Amendment) Act 1994 (NSW).

34. Defamation Act 1974 (NSW) s 7A.

35. Defamation Act 2005 (NSW).

36. Both the ACT and SA have departed from the uniform law in this respect.

37. Brown v The Queen (1986) 160 CLR 171 at 201 (Deane J).

38. Tasmania, Parliamentary Debates (Hansard) House of Assembly, 19 August 2003 at 44. See also Supreme Court of Queensland, Litigation Reform Commission, Reform of the Jury System in Queensland (Report of the Criminal Procedure Division, 1993) at 4.

39. See Supreme Court of Queensland, Litigation Reform Commission, Reform of the Jury System in Queensland (Report of the Criminal Procedure Division, 1993) at 3.

40. New Zealand, Law Commission, Juries in Criminal Trials (Report 69, 2001) at para 135.

41. Cheatle v The Queen (1993) 177 CLR 541 at 560.

42. United Kingdom, Home Office, Report of the Departmental Committee on Jury Service (Cmnd 2627, 1965) at para 53.

43. NSW, Parliamentary Debates (Hansard) Legislative Assembly, 24 February 1977, at 4475.

44. NSW, Report of the NSW Jury Task Force (1993) at 23. This point was also raised in M Findlay, Jury Management in New South Wales (Australian Institute of Judicial Administration Inc, 1994) at 173.

45. Tasmania, Department of Justice and Industrial Relations, Review of the Jury Act 1899 (Legislation, Strategic Policy and Information Resources Division, Issues Paper, 1999) at ch 2; Supreme Court of Queensland, Litigation Reform Commission, Reform of the Jury System in Queensland (Report of the Criminal Procedure Division, 1993) at 3-4.

46. D Challinger (ed), The Jury (Australian Institute of Criminology Seminar: Proceedings No 11, 1986) at 2. See also Law Reform Commission of Western Australia, Exemption from Jury Service (Report, Project No 71, 1980) at para 3.36.

47. R E Auld, Review of the Criminal Courts of England and Wales (HMSO, 2001) at 137.

48. I M Vodanovich, “Public attitudes about the jury” in D Challinger (ed), The Jury (Australian Institute of Criminology Seminar: Proceedings No 11, 1986) at 81.

49. See England and Wales, Royal Commission on Criminal Justice (Report, 1993) at 133.

50. Australian Law Reform Commission, Multiculturalism and the Law (Report 57, 1992) at para 10.44.

51. D Weatherburn, L Snowball, B Hunter, The Economic and Social Factors Underpinning Indigenous Contact with the Justice System: Results from the NATSISS Survey (NSW Bureau of Crime Statistics and Research, Crime and Justice Bulletin, No 104, 2006) at 1.

52. See M Findlay, Jury Management in New South Wales (Australian Institute of Judicial Administration Inc, 1994) at 5.

53. NSW Law Reform Commission, The Jury in a Criminal Trial: Empirical Studies (Research Report 1, 1986) at para 3.29.

54. The People of New South Wales: Statistics from the 2001 Census (Community Relations Commission for a Multicultural New South Wales, 2003) at Table 2.2.

55. S Corben, NSW Inmate Census 2004: Summary of Characteristics (NSW, Department of Corrective Services, Statistical Publication No 26, 2004) at 3.

56. M Findlay, Jury Management in New South Wales (Australian Institute of Judicial Administration Inc, 1994) at 5.

57. M Findlay, Jury Management in New South Wales (Australian Institute of Judicial Administration Inc, 1994) at 5. See para 4.9-4.20 below.

58. L Anamourlis, Preliminary consultation.

59. Cheatle v The Queen (1993) 177 CLR 541 at 560.

60. Kingswell v The Queen (1985) 159 CLR 264 at 302.

61. Juries Act 2003 (Tas) s 4; Juries Act 2000 (Vic) s 4; Jury Act 1977 (NSW) s 12; Jury Act 1995 (Qld) s 26; Juries Act 1927 (SA) s 29; Juries Act 1957 (WA) s 14(2).

62. See discussions in Parliament of Victoria, Law Reform Committee, Jury Service in Victoria (Final Report, 1996) at para 6.32-6.41.

63. See Queensland, Criminal Justice Commission, Report by the Honourable W J Carter QC on his Inquiry into the Selection of the Jury for the Trial of Sir Johannes Bjelke-Petersen (1993) at 480.

64. See England and Wales, Royal Commission on Criminal Justice (Report, 1993) at 133; NSW, Report of the NSW Jury Task Force (1993) at 24; Supreme Court of Queensland, Litigation Reform Commission, Reform of the Jury System in Queensland (Report of the Criminal Procedure Division, 1993) at 3-4.

65. Tasmania, Parliamentary Debates (Hansard) House of Assembly, 19 August 2003 at 43.

66. NSW, Report of the NSW Jury Task Force (1993) at 14.

67. NSW, Report of the NSW Jury Task Force (1993) at 13.

68. United Kingdom, Home Office, Report of the Departmental Committee on Jury Service (Cmnd 2627, 1965) at para 59.

69. NSW Law Reform Commission, The Jury in a Criminal Trial (DP 12, 1985) at para 2.27.

70. United Kingdom, Hansard (House of Lords), 28 September 2000, col 995.

71. Law Reform Commission of Western Australia, Exemption from Jury Service (Report, Project No 71, 1980) at para 3.39.

72. R E Auld, Review of the Criminal Courts of England and Wales (HMSO, 2001) at 140. See also Parliament of Victoria, Law Reform Committee, Jury Service in Victoria (Final Report, 1996) at para 3.62.

73. Allowing for aborted trials and trials that had a false start.

74. R E Auld, Review of the Criminal Courts of England and Wales (HMSO, 2001) at 150.

75. See M Findlay, Jury Management in New South Wales (Australian Institute of Judicial Administration Inc, 1994) at 17. See also R E Auld, Review of the Criminal Courts of England and Wales (HMSO, 2001) at 135, 139. But see also I M Vodanovich, “Public attitudes about the jury” in D Challinger (ed), The Jury (Australian Institute of Criminology Seminar: Proceedings No 11, 1986) at 75; M Findlay, “Reforming the jury: the common ground” in D Challinger (ed), The Jury (Australian Institute of Criminology Seminar: Proceedings No 11, 1986) at 155.

76. Brown v The Queen (1986) 160 CLR 171 at 202.

77. Kingswell v The Queen (1985) 159 CLR 264 at 301.

78. R v Abdroikov [2005] 4 All ER 869 at 878 (CA).

79. Jury Act 1977 (NSW) s 47A.

80. See R v Ford [1989] QB 868 at 871; New Zealand, Law Commission, Juries in Criminal Trials (Report 69, 2001) at para 158-160.