2. Identifying qualified jurors
Updates and background for this project (Digest)
ENROLMENT AS AN ELECTOR
2.1 In NSW “every person who is enrolled as an elector for the Legislative Assembly... is qualified and liable to serve as a juror”.1 This is dependent upon age and citizenship as is the case in most Australian jurisdictions.2
Citizenship
2.2 The requirement of citizenship arises from the electoral qualifications, which includes citizens, as well as British subjects who were enrolled as electors immediately before 26 January 1984.3 Permanent residency does not suffice, although there have been various proposals in other Australian jurisdictions to extend the franchise to permanent residents.
2.3 For example, a 1993 Queensland review argued that extending the franchise to permanent residents would broaden the group from which jurors are selected and “may facilitate a more frequent representation of racial and ethnic groups on juries”.4
2.4 The Victorian Parliamentary Law Reform Committee accepted, as a matter of principle, that there was merit in allowing permanent residents to serve as jurors. However, the Committee also acknowledged the current administrative difficulties in establishing an accurate database of non-citizen permanent residents.5 Reasons given for removing the citizenship limitation included that it:
- reduces the representativeness of juries;6
- encroaches on an accused’s “right to have a trial by his or her peers”;7
- prevents people who have a sufficient commitment to the community (that is, permanent residents) from participating in the administration of justice.8
2.5 In New Zealand a person is eligible to serve if he or she is registered as an elector.9 This includes not only citizens but also those who have been permanent residents of New Zealand and have “at some time resided continuously in New Zealand for a period of not less than one year”.10 In England and Wales resident aliens were once able to serve as jurors if they had been domiciled in England or Wales for 10 years or more.11
2.6 The Commission recognises that there would be practical difficulties involved in making non-citizens, such as permanent residents, qualified to serve as jurors when they are not included on the electoral roll. For that to work there would need to be a database, accessible to the Sheriff, that maintains a current record of the addresses of such people, which would require the co-operation of the Commonwealth Department of Immigration. Absent some such system, or alternatively one that allowed voluntary registration of permanent residents, there could be insurmountable problems in locating such people with an escalation of administrative costs.
Age
2.7 Citizens over the age of 18 are qualified to vote12 and are, therefore, qualified to be enrolled as jurors.
2.8 Some jurisdictions specify an upper age limit beyond which people are not qualified to serve. For example, in SA a person is qualified if they are “not above the age of 70 years”.13 In NSW the qualification is not limited by an upper age, although a person aged 70 years or above has a right to claim exemption. Exemptions based on age are dealt with in Chapter 7.14
Disqualified from voting
2.9 Under NSW law, a number of people, despite being citizens and over 18 years of age, are disqualified from being enrolled as electors.15 They are:
- people meeting various classifications under the Mental Health Act 1958 (NSW);
- people convicted of an offence and currently serving a sentence of imprisonment of 12 months or more for that offence;
- people holding a temporary entry permit or who are prohibited immigrants.16
IDENTIFYING POTENTIAL JURORS
Compiling the jury roll
2.10 The jury roll for a jury district that serves a particular court is compiled from the names of those people enrolled as electors for the Legislative Assembly in that district. A jury district usually comprises such electoral districts or parts or electoral districts that are closest to the court in question. At least once every 12 months, the Sheriff must select at random from the relevant electoral rolls a number of people who may be included on each jury roll. Each list of names of people so selected is referred to in the legislation as a “supplementary jury roll”. The Sheriff must, when deciding the number of people to include on a supplementary jury roll, estimate the number of people who may be required to serve from time to time, allowing for people who are not qualified, or who are ineligible or who will duly claim exemption from service.17
2.11 The Sheriff sends a notice to each person whose name is included on the supplementary jury roll for a jury district, informing that person of the intention to include him or her on the jury roll, and describing the classes of people who are disqualified, ineligible or entitled to claim exemption as of right.18 The notice must contain a questionnaire to be completed by a respondent claiming disqualification, ineligibility or exemption from jury service.19
2.12 The Sheriff is under a duty to delete from the supplementary jury roll the names of persons whom the Sheriff determines are disqualified, ineligible or who have successfully claimed exemption from serving as jurors.20 A right of appeal lies to a Local Court by any person dissatisfied with the Sheriff’s determination not to delete his or her name.21 The current practice is that, after 28 days, the names of those who have not been removed from the supplementary jury roll are duly included on the roll for the jury district and are thereafter liable to be summoned to serve as jurors. A person remains on the jury roll for a period of 15 months, or such other period, not exceeding two years, as may be prescribed by regulation.22
Need for a separate jury roll?
2.13 The existence of a separate jury roll arises from the days when there were no electoral rolls and the list was compiled based on a property qualification and posted on church doors. In later years it served a function whereby every three years those who were disqualified or ineligible from the pool of potential jurors were removed from the roll. However, if the exemptions are largely removed, then it would seem just as convenient to use the Electoral roll as it stands on the day that a summons is issued.
2.14 Summoning directly from the electoral roll may also have some other administrative benefits. For example, the current practice of sending out notices of inclusion may confuse some recipients who mistake the document for a notice requiring their attendance, with the result that the Sheriff’s Office must deal with many telephone inquiries. This process could, therefore, be streamlined if the procedure was altered so as to permit summoning directly from the electoral roll. Also, if the right to claim an exemption were retained for some groups of people, the Sheriff’s current practice of excluding such people when they respond to the notice of inclusion, rather than including them and deferring the claim until such time as a summons is served reduces the number of people who could potentially serve, if prepared, at that later date.
2.15 There is precedent for summoning directly from the electoral rolls. In Queensland, the Principal Electoral Officer prepares jury rolls by listing all persons aged between 18 and 70, who live within a certain distance of the relevant court and who are on the electoral roll. The Officer then forwards the lists to the Sheriff who posts notices to randomly selected persons 6 weeks in advance of the court sittings for which jurors are required. These notices include a questionnaire designed to identify those who are ineligible or disqualified from service and also gives the opportunity for others to claim exemption as of right. A computer then randomly selects the names of those who will comprise the jury panels from which the juries will be selected.23 In England and Wales, potential jurors are now also summoned directly from the electoral rolls.24
2.16 In the ACT the jury roll is compiled by removing from the electoral roll those who are dead, not qualified, exempt or excused from serving.25
2.17 The Tasmanian review noted that with the advent of computers, “there is no reason why panels cannot be drawn directly from the whole jury roll”. Although the review also noted there were advantages in having discrete lists that were active for specified periods as this would enable “the Sheriff to ascertain those potential jurors who will serve during a given period”.26 The Tasmanian review also noted that the practice of notifying people of their inclusion on the jury roll had the disadvantage of increasing the administrative workload of the Sheriff’s office and of adding the costs involved in mailing out to all potential jurors.27
2.18 One preliminary submission to the Commission proposed dispensing with notices of inclusion and summoning directly from the electoral roll. This would make every person on the electoral roll a potential juror.28 A similar “one-step process for jury roll creation and summoning” was proposed in NSW in 1995 following a review of the system by Andersen Consulting. However, the proposal also involved potential jurors seeking to be excused by way of an “interactive” telephone system.29 At the time, concerns were expressed about the ability to administer the telephone aspect of the proposed scheme in a way that ensured compliance.30 The creation of the one-step process, however, was not challenged.
Using the electoral roll to identify and locate potential jurors
2.19 NSW uses the Electoral roll as the sole source for identifying and locating those who are to receive a notice of inclusion on the jury roll. This excludes those who are entitled to register as electors but neglect or refuse to do so.
2.20 The English Royal Commission on Criminal Justice in 1993 observed that the electoral roll seemed to be “the best available means of ensuring that juries reflect the composition of the population as a whole”. It also commented on the need to encourage people from ethnic minority communities to register to vote.31 However, in 2001, Lord Justice Auld noted that the use of the electoral roll in England resulted in an “under-representation of those in their early 20s, ethnic minorities and the more mobile sections of the community, such as those living in rented accommodation”.32
2.21 The extent to which such comments can be applied to the circumstances in NSW is debatable given that registration as an elector is compulsory in Australia but not in England. A sample audit undertaken by the Australian Electoral Commission in March 2006 showed that 93.6% of the eligible population were enrolled for the correct electoral division. However, the Electoral Commission has also reported that the estimated participation of eligible 18 to 25 year olds at 30 June 2006 was only 76.7%.33 The use of the electoral roll as the source for identifying and locating potential jurors has also given rise to concerns in NSW about the representation of more transient communities, for example, Indigenous people who do not register as electors.34
2.22 Problems also arise as the result of eligible voters not reporting changes of address promptly, raising for consideration the possibility of the Sheriff being able to cross check personal details and addresses with other databases to identify those who are disqualified, and to ascertain current addresses.
Supplementing the roll by reference to other sources
2.23 Including people on the jury roll identified from sources other than the electoral roll could broaden the group from which jurors are selected and “facilitate a more frequent representation of racial and ethnic groups on juries”.35 The extent to which this is achieved may depend on whether or not people other than eligible but unregistered voters could be added as a result.
2.24 Lord Justice Auld proposed supplementing or cross-checking the existing jury roll, so as to include persons who were entitled to registration as an elector,36 by reference to other sources such as the authorities responsible for driver licensing and motor vehicle registration, social security and revenue collection and telephone directories.37
2.25 New York has followed this approach and now allows its commissioner of jurors to refer to a wide range of sources in selecting citizens to serve:
The commissioner of jurors shall cause the names of prospective jurors to be selected at random from the voter registration lists, and from such other available lists of the residents of the county as the chief administrator of the courts shall specify, such as lists of utility subscribers, licensed operators of motor vehicles, registered owners of motor vehicles, state and local taxpayers, persons applying for or receiving family assistance, medical assistance or safety net assistance, persons receiving state unemployment benefits and persons who have volunteered to serve as jurors by filing with the commissioner their names and places of residence.38
Such provisions may be necessary in the US because of low voter registration rates. In 2004, 72% of voting-age citizens were registered to vote and only 58% of citizens aged 18-24 were registered.39
2.26 Proposals to supplement the pool of potential jurors derived from the electoral roll have also been made in Australia, including by adding holders of driver licences40 as well as names obtained from the Department of Social Security and the Taxation Office.41 However, unlike the proposals of the Auld review and the system in New York, some of these appear to envisage the possibility of going beyond entitlement to vote as a qualification by including permanent residents and others as well as those citizens who are eligible to register but have not done so. Otherwise adding only those currently entitled to vote but who are not registered would produce a smaller increase in Australia because of the high levels of voter registration.
Cross-checking the roll
2.27 The potential sufficiency of a jury pool can be affected by the fact that the addresses on the electoral roll are very often not up to date, with the consequence that many potential jurors do not receive the notice of inclusion, or a jury summons. In the 2005/2006 financial year, 172,000 notices of inclusion were sent to prospective jurors and 102,390 summonses. Of these, 13,000 were returned to sender, representing approximately 5% of all notices of inclusion and summonses sent out. This compares with figures in South Australia where, in 2002, approximately 5.5% of jury summonses were returned to sender.42
2.28 This also occasions practical difficulty in the administrative costs of the Sheriff and the enforcement of what may appear to be a non-compliance with the summons. The problems could be reduced if the Sheriff’s Office had the authority to match data against the records of other bodies, such as the Roads and Traffic Authority since changes of address could be identified before the Sheriff’s Office sends out notices of inclusion or summonses. At present the RTA database is only consulted when the State Debt Recovery Officer is enforcing the penalty for non-attendance.43
2.29 Information about criminal records and charges. The ability to cross-check against information held by Corrective Services, the Courts and NSW Police in relation to criminal records, pending trials and bail is also desirable so that people disqualified from jury service are not given a notice of inclusion in the first place or subsequently summoned to serve.44 There have been reported incidents where people with convictions have been empanelled despite their disqualification,45 since the current system depends on self-disclosure or, less commonly, on the potential juror with a criminal history being identified by counsel or by a police officer associated with the trial.
2.30 In the ACT the Sheriff can give any police officer a copy of the list of prospective jurors so that he or she may determine if any people are disqualified.46 In SA there is a provision compelling the Commissioner of Police, at the request of the sheriff, to investigate and report on any matter relevant to determining whether a person is disqualified or not.47 Similar provisions are in place in Tasmania and Victoria,48 except that, in Tasmania the Commissioner of Police must also furnish a report, at the request of the Director of Public Prosecutions, on any people who have committed, or are alleged to have committed, “non-disqualifying” offences in Tasmania or elsewhere.49 In Victoria there was formerly also an informal system whereby the Police Commissioner passed a list including acquittals and non-disqualifying criminal convictions to the Director of Public Prosecutions to assist in exercising the right of peremptory challenge.50
ISSUE 2.4
Should it be possible to use other sources of information to:
(a) cross-check entries in the electoral roll, for example as to their current address or possible disqualification;
(b) supplement the names of potential jurors derived from the electoral roll by including those who are entitled to register as electors but have not done so?
What other sources of information should be used to identify potential jurors?
ABILITY TO READ OR UNDERSTAND ENGLISH
2.31 Adequate ability to communicate in and/or understand the English language is a ground of ineligibility51 or disqualification52 in all jurisdictions, including NSW.53 Questions of degree arise as to what is involved in an ability to read or understand or communicate in English.54
2.32 The 1965 UK Departmental Committee on Jury Service recommended that “no one should be qualified to serve on a jury who cannot read, write, speak and understand English without difficulty”.55
2.33 The Victorian Parliamentary Law Reform Committee considered that the question of literacy levels was best dealt with by making people ineligible who are unable to read or understand English,56 a test which currently reflects the ineligibility provision in NSW.57
2.34 In other jurisdictions, for example, in the US, the ability to communicate in English is expressed as a ground of eligibility.58
FOOTNOTES
1. Jury Act 1977 (NSW) s 5.
2. Juries Act 2000 (Vic) s 5(1); Juries Act 1957 (WA) s 4; Juries Act 1927 (SA) s 11(a); Juries Act 2003 (Tas) s 6(1); Juries Act 1963 (NT) s 9(1); Juries Act 1967 (ACT) s 9. See also Juries Act 1974 (Eng) s 1(1)(a).
3. Parliamentary Electorates and Elections Act 1912 (NSW) s 20(1)(b).
4. Supreme Court of Queensland, Litigation Reform Commission, Reform of the Jury System in Queensland (Report of the Criminal Procedure Division, 1993) at 6.
5. Parliament of Victoria, Law Reform Committee, Jury Service in Victoria (Final Report, 1996) at para 3.9-3.11.
6. Parliament of Victoria, Law Reform Committee, Jury Service in Victoria (Final Report, 1996) at para 3.7.
7. Parliament of Victoria, Law Reform Committee, Jury Service in Victoria (Final Report, 1996) at para 3.7.
8. Parliament of Victoria, Law Reform Committee, Jury Service in Victoria (Final Report, 1996) at para 3.9.
9. Juries Act 1981 (NZ) s 6.
10. Electoral Act 1993 (NZ) s 74(1).
11. Juries Act 1870 (Eng) s 8.
12. Parliamentary Electorates and Elections Act 1912 (NSW) s 20(1)(a).
13. Juries Act 1927 (SA) s 11(b).
14. Para 7.20-7.27.
15. This does not include the Commonwealth provisions which exclude from Commonwealth electoral rolls people who are members of proscribed “unlawful” organisations: Crimes Act 1914 (Cth) s 30FD.
16. Parliamentary Electorates and Elections Act 1912 (NSW) s 21.
17. Jury Act 1977 (NSW) s 12.
18. See para 3.7, 3.11, 3.14.
19. Jury Act 1977 (NSW) s 13(1)(c).
20. Jury Act 1977 (NSW) s 14.
21. Jury Act 1977 (NSW) s 14(2), s 15.
22. Jury Act 1977 (NSW) s 15A.
23. Jury Act 1995 (Qld) Pt 4. See Queensland, Criminal Justice Commission, The Jury System in Criminal Trials in Queensland (Issues Paper, 1991) at 10.
24. Juries Act 1974 (Eng) s 2, s 3.
25. Juries Act 1967 (ACT) s 19(2).
26. Tasmania, Department of Justice and Industrial Relations, Review of the Jury Act 1899 (Legislation, Strategic Policy and Information Resources Division, Issues Paper, 1999) ch 5.
27. Tasmania, Department of Justice and Industrial Relations, Review of the Jury Act 1899 (Legislation, Strategic Policy and Information Resources Division, Issues Paper, 1999) ch 5.
28. NSW, Jury Task Force, Preliminary submission at 2.
29. D Lennon, “Changes to the NSW Jury System”, paper presented at the 4th Biennial National Sheriff’s Conference (Brisbane, 3-5 July 1995) at 14.
30. Parliament of Victoria, Law Reform Committee, Jury Service in Victoria (Final Report, 1996) at para 5.55-5.57.
31. England and Wales, Royal Commission on Criminal Justice (Report, 1993) at 131.
32. R E Auld, Review of the Criminal Courts of England and Wales (HMSO, 2001) at 137; see also at 144.
33. Australian Electoral Commission, Annual Report 2005-2006 at 30.
34. See para 1.35-1.36.
35. Supreme Court of Queensland, Litigation Reform Commission, Reform of the Jury System in Queensland (Report of the Criminal Procedure Division, 1993) at 6.
36. R E Auld, Review of the Criminal Courts of England and Wales (HMSO, 2001) at 144-145.
37. R E Auld, Review of the Criminal Courts of England and Wales (HMSO, 2001) at 144. See also NSW, Office of the Director of Public Prosecutions, Preliminary submission at 5-6.
38. New York, Consolidated Laws - Judiciary § 506.
39. US Census Bureau, Voting and Registration in the Election of November 2004 (2006) at 1-4.
40. M Findlay, Jury Management in New South Wales (Australian Institute of Judicial Administration Inc, 1994) at 6 and 172-173; Supreme Court of Queensland, Litigation Reform Commission, Reform of the Jury System in Queensland (Report of the Criminal Procedure Division, 1993) at 6.
41. Supreme Court of Queensland, Litigation Reform Commission, Reform of the Jury System in Queensland (Report of the Criminal Procedure Division, 1993) at 6.
42. South Australia, Sheriff’s Office, South Australian Jury Review (2002) at 16.
43. L Anamourlis, Preliminary consultation; NSW, Jury Task Force, Preliminary submission at 3.
44. NSW, Jury Task Force, Preliminary submission at 4.
45. NSW Police, Preliminary Submission at 1.
46. Juries Act 1967 (ACT) s 24(4) and (5).
47. Juries Act 1927 (SA) s 12(1a).
48. Juries Act 2003 (Tas) s 23; Juries Act 2000 (Vic) s 26.
49. Juries Act 2003 (Tas) s 24. Such information is presumably used to allow challenges to particular jurors.
50. Parliament of Victoria, Law Reform Committee, Jury Service in Victoria (Final Report, 1996) at para 5.17. But see Katsuno v The Queen [1999] HCA 50.
51. Juries Act 2003 (Tas) Sch 2 cl 10; Juries Act 2000 (Vic) Sch 2 cl 3(f); Jury Act 1995 (Qld) s 4(3)(k); Juries Act 1927 (SA) s 13(b).
52. Juries Act 1957 (WA) s 5(b)(iii); Juries Act 1963 (NT) s 10(3)(c); Juries Act 1967 (ACT) s 10(c).
53. Jury Act 1977 (NSW) Sch 2 Item 11.
54. See para 7.3-7.6 below.
55. United Kingdom, Home Office, Report of the Departmental Committee on Jury Service (Cmnd 2627, 1965) at para 80.
56. Parliament of Victoria, Law Reform Committee, Jury Service in Victoria (Final Report, 1996) at 3.13.
57. Jury Act 1977 (NSW) Sch 2 Item 11.
58. See The Jury Project (Report to the Chief Judge of the State of New York, 1994) at 26-27.
