3. Current structure of exemption
Updates and background for this project (Digest)
3.1 In NSW there are currently two categories of people who cannot serve as jurors because they are either disqualified or ineligible, and two categories who can be excused from service, namely those who are entitled to be exempted as of right, and those who may be excused for good cause.
3.2 In 1994 it was reported that, in the most recent draft jury roll for the Sydney district, 42% of those selected were removed on the basis of disqualification, ineligibility and exemption as of right.1 This can be compared with South Australia where, in 2002, approximately 55% of persons summoned for jury service applied to be excused, to have their service deferred or successfully claimed an ineligibility to serve.2
3.3 The model adopted by the UK Departmental Committee on Jury Service in 1965 became the basis for the regime established in NSW in 1977 as well as in various other Australian jurisdictions.3 The earlier position in England and Wales was that “every person whose name is included in the jurors book as a juror… shall be liable to serve as such, notwithstanding that he may have been entitled by reason of some disqualification or exemption to claim that he ought not to be marked in the electors list as a juror”.4 Only female members of vowed religious communities were “not liable to serve on any jury”.5
3.4 In NSW it is an offence for a potential juror not to inform the Sheriff that he or she is disqualified or ineligible to serve.6 It is also an offence to provide false or misleading information to the Sheriff when claiming to be disqualified or ineligible or entitled to be exempted as of right.7
3.5 However, a jury verdict is not invalidated only by reason of the fact that a member of the jury was disqualified from serving as a juror or ineligible to do so.8
3.6 Exemption as of right or excusal for good cause depends upon self-disclosure to the Sheriff or to the Court, as, in a practical sense, does deletion from the jury roll by reason of disqualification or ineligibility.
DISQUALIFICATION
3.7 In NSW a person is disqualified from serving as a juror9 if he or she is:
1 A person who at any time within the last 10 years in New South Wales or elsewhere has served any part of a sentence of imprisonment (not being imprisonment merely for failure to pay a fine).
2 A person who at any time within the last 3 years in New South Wales or elsewhere has been found guilty of an offence and detained in a detention centre or other institution for juvenile offenders (not being detention merely for failure to pay a fine).
3 A person who is currently bound by an order made in New South Wales or elsewhere pursuant to a criminal charge or conviction, not including an order for compensation, but including the following:
(a) a parole order, a community service order, an apprehended violence order and an order disqualifying the person from driving a motor vehicle,
(b) an order committing the person to prison for failure to pay a fine,
(c) a recognizance to be of good behaviour or to keep the peace, a remand in custody pending trial or sentence and a release on bail pending trial or sentence.10
3.8 The principal reason for disqualifying people who have been defendants in the criminal justice system is the belief that their past criminal behaviour, and its consequences through the justice system, may impact upon their ability to be impartial.11
3.9 Undischarged bankrupts are still excluded in Victoria and the ACT,12 but that reason for disqualification has been removed from the list in other jurisdictions.13
3.10 In 1993, the Criminal Procedure Division of the Queensland Litigation Reform Commission recommended that there be only one category of automatic exemption that encompasses both disqualification and ineligibility.14
INELIGIBILITY
3.11 In NSW a person is ineligible to serve as a juror15 if he or she is:
1 The Governor.
2 A judicial officer (within the meaning of the Judicial Officers Act 1986).
3 A coroner.
4 A member or officer of the Executive Council.
5 A member of the Legislative Council or Legislative Assembly.
6 Officers and other staff of either or both of the Houses of Parliament.
7 An Australian lawyer (whether or not an Australian legal practitioner).
8 A person employed or engaged (except on a casual or voluntary basis) in the public sector in law enforcement, criminal investigation, the provision of legal services in criminal cases, the administration of justice or penal administration.
9 The Ombudsman and a Deputy Ombudsman.
10 A person who at any time has been a judicial officer (within the meaning of the Judicial Officers Act 1986) or a coroner, police officer, Crown Prosecutor, Public Defender, Director or Deputy Director of Public Prosecutions or Solicitor for Public Prosecutions.
11 A person who is unable to read or understand English.
12 A person who is unable, because of sickness, infirmity or disability, to discharge the duties of a juror.16
3.12 A person is also ineligible if he or she is exempted under the Jury Exemption Act 1965 (Cth),17 which, in general, excludes various Commonwealth office holders.
3.13 The UK Departmental Committee on Jury Service recommended that ineligibility should apply to those connected with the administration of law and justice.18 The principal concern appeared to be the desirability of preserving the system’s appearance of impartiality. Sometimes the question of impartiality of a particular juror would seem best dealt with in the context of an application to be excused in a particular trial since the mere holding of a particular office within a broad range of ineligible occupations, may have no bearing whatsoever for that trial.
RIGHT TO BE EXEMPTED
3.14 In NSW the following people may be exempted from jury service as of right:19
1 Clergy.
2 Vowed members of any religious order.
3 Persons practising as dentists.
4 Persons practising as pharmacists.
5 Persons practising as medical practitioners.
6 Mining managers and under-managers of mines.
7 A person employed or engaged (except on a casual or voluntary basis) in the provision of fire, ambulance, rescue, or other emergency services, whether or not in the public sector.
8 Persons who are at least 70 years old.
9 Pregnant women.
10 A person who has the care, custody and control of children under the age of 18 years (other than children who have ceased attending school), and who, if exempted, would be the only person exempt under this item in respect of those children.
11 A person who resides with, and has full-time care of, a person who is sick, infirm or disabled.
12 A person who resides more than 56 kilometres from the place at which the person is required to serve.
13 A person who:
(a) within the 3 years that end on the date of the person’s claim for exemption, attended court in accordance with a summons and served as a juror, or
(b) within the 12 months that end on the date of the person’s claim for exemption, attended court in accordance with a summons and who was prepared to, but did not, serve as a juror.
14 A person who is entitled to be exempted under section 39 on account of previous lengthy jury service.20
3.15 The UK Departmental Committee on Jury Service saw the entitlement to be excused as of right as being available for “persons who, while well fitted to be jurors, should, because of the importance of their other duties to the community, be entitled to decline to serve”:
The duties of some, but not all, of these professions, are so important that it would be against the public interest to compel them to give up their work temporarily in order to act as jurors
but added:
equally, individual members of these professions who on particular occasions are able to spare the time should not be prevented, as they are now, from doing so.21
3.16 The Committee also noted the extreme difficulty in drawing a line between those whose work necessitated them being excused as of right and those whose work did not. Two grounds were identified where it considered it appropriate for a person to be excused as of right, mainly where that was in the public interest because of:
- “the special and personal duties to the state of the individual members of the occupation”; and
- “the special and personal responsibilities of individual members of the occupation for immediate relief of pain or suffering”.22
The Committee noted that any right to be excused effectively gave certain people “a statutory right to choose to contract out of one of the ordinary responsibilities of citizenship”.23
3.17 The Victorian Parliamentary Law Reform Committee observed that the initial hopes of the Departmental Committee that members of the group with the right to be exempted might nevertheless elect to serve, were not realised. The Victorian experience was that “persons who have a right to be excused from jury service almost always exercise the right”.24 In that State it was observed, in 1996, that the right to be excused was the “main cause of under-representation within the jury system”.25 This is likely also to be the case in NSW.
3.18 The Auld review of the criminal courts of England and Wales considered that while there may be “good reason” for excusing people when they must perform “important duties over the period covered by the summons”, there was no reason why they should be entitled to be excused as of right “simply by virtue of their position”.26 Obviously the removal of a right of exemption would greatly increase the number of eligible people available for jury service.27
EXEMPTION FOR GOOD CAUSE
3.19 In New South Wales a person may be excused from attendance for jury service, at any time before being summoned, for good cause because of “any matter of special importance or any matter of special urgency”.28 A person who has been summoned for jury service may also be excused from attendance for jury service on the grounds of good cause.29 Most jurisdictions have a provision allowing a person to be excused from attendance for jury service on the grounds of “good cause”, “reasonable cause”, or “good reason”.
3.20 Commonly applications to be excused are dealt with by the Sheriff, although where there is any doubt over the genuineness of the claim or its strength, the issue is usually reserved for the trial judge or the coroner holding the inquest. The Sheriff’s officers are assisted by guidelines in exercising the discretion to excuse.30 There are many potential grounds for such an application including, for example, the fact that the potential juror has booked and paid for a holiday during the period of the trial, or is suffering a temporary illness, or has university or TAFE commitments or examinations, or cannot be replaced in their employment because of staff shortages or other exigencies of business. The Sheriff may require the request to be supported by a statutory declaration annexing, for example, a medical certificate or travel itinerary, while a judge can require the person seeking to be excused to give evidence on oath.
3.21 The justification for permitting people to be excused for good cause, and the process involved, are discussed below.31
ISSUES ARISING
Merging the categories
3.22 In some other States, the categories are somewhat more confined than they are in NSW. For example, Tasmania only has categories of disqualification and ineligibility. Only people over the age of 70 may be excused as of right,32 although they may be excused for “good reason”.33 The same situation applies in Victoria.34 In Queensland, there is a single category of those who are ineligible to serve,35 but there is also a list of criteria for excusing potential jurors.36 In England and Wales there are no categories of exemption as of right or ineligibility, only a relatively short list of qualifications, including that a juror not be a “mentally disordered person” and a list of disqualifications based on criminal charge or conviction.37
3.23 A question arises whether there is any point in maintaining some of the categories as separate. This is particularly the case with respect to the categories of disqualification and ineligibility which appear to have the same consequence. It is, therefore, difficult to see why they should be separated unless the ineligibility criteria are clearly and directly linked to additional criteria relating, for example, to current office or substantial connection with some aspect that may have a direct bearing on a potential trial.
Reducing the grounds
3.24 In the following chapters we examine more closely the various categories of people within the grounds of disqualification, ineligibility and entitlement to exemption as of right as well as the rationale for their exclusion.
3.25 Some are excluded simply because they are persons “whose professional or expert duties are so important to the community and so exacting that they ought not to be permitted to serve”.38 However, the 1993 report of the NSW Jury Task Force observed that, while few would argue with some exclusions, it was “difficult to understand why a number of these groups should continue to be ineligible to serve as jurors”.39
3.26 The 1994 Australian Institute of Judicial Administration review of jury management in NSW also noted that the list of exemptions appeared “far too wide” and that some were “difficult to reconcile”. It noted that the existing categories of ineligibility “may not only create a non-representative jury roll, but also reduce the franchise in such a way that the burdens of jury service, and its challenges, are not evenly shared among the citizens of New South Wales”.40
3.27 The trend has clearly been to reduce the number of exemptions that are available. For example, Tasmania and SA have substantially reduced the categories of those who are ineligible or entitled to claim exemption.41 Reviews have consistently questioned the assumptions underlying many of the categories of those who are ineligible or entitled to exemption as of right42 and recommended a reduction in the categories.43
3.28 The NSW Jury Task Force in 1993 considered that the “maintenance of the present system is likely to encourage more special interest groups to claim an entitlement to exemption as of right in the future”.44 It may be observed that the Victorian provisions relating to ineligibility, which were enacted in 2000, have already been subject to five separate sets of amendments.45
3.29 The State of New York and England and Wales provide a precedent for the removal of most or all categories of exemption and the substitution of a system permitting potential jurors to be excused for good cause, with or without deferral.46
Civil juries
3.30 Not all of the categories of exemption listed above would be strictly relevant to civil trials. For example, there would be fewer reasons for exempting those associated with the administration of the law and justice from jury service in the case of civil trials. Also the question of impartiality that may apply when people with criminal records serve as jurors in criminal cases may not apply so readily in civil cases. One possible approach might be to make people who are unable to serve on criminal juries available to serve on civil juries. This would, however, be subject to concerns about representativeness and random selection.
3.31 Conversely, there may also be some categories of exemption that are appropriate to juries in civil trails which would not be strictly relevant for juries in most criminal trials. There is at least one precedent for treating civil juries differently from criminal juries. In Victoria people associated with the business of liability insurance were previously ineligible to serve on any civil jury.47 An equivalent provision is not included in the current Act. This followed a recommendation by the Victorian Parliamentary Law Reform Committee which surmised that the category was originally intended to “prevent juries becoming tainted with knowledge about insurance and insurable risk”. The Committee considered that the availability of insurance is now “quite well known in the community and that a judge’s direction to disregard matters relating to insurance will be acted upon by the jury”.48
FOOTNOTES
1. M Findlay, Jury Management in New South Wales (Australian Institute of Judicial Administration Inc, 1994) at 38.
2. South Australia, Sheriff’s Office, South Australian Jury Review (2002) at 15.
3. For example, in Victoria: Parliament of Victoria, Law Reform Committee, Jury Service in Victoria (Final Report, 1996) Vol 1 at para 3.2. See also Law Reform Commission of Western Australia, Exemption from Jury Service (Report, Project No 71, 1980) at para 3.7.
4. Juries Act 1922 (Eng) s 2(1).
5. Juries Act 1922 (Eng) s 8(2)(b).
6. Jury Act 1977 (NSW) s 61.
7. Jury Act 1977 (NSW) s 62.
8. Jury Act 1977 (NSW) s 73.
9. Jury Act 1977 (NSW) s 6(a).
10. Jury Act 1977 (NSW) Sch 1.
11. See Parliament of Victoria, Law Reform Committee, Jury Service in Victoria (Final Report, 1996) at para 3.15-3.16.
12. Juries Act 2000 (Vic) Sch 1 cl 8; Juries Act 1967 (ACT) s 10(b).
13. See Law Reform Commission of Western Australia, Exemption from Jury Service (Report, Project No 71, 1980) at para 3.62-3.64; and Parliament of Victoria, Law Reform Committee, Jury Service in Victoria (Final Report, 1996) at 32.
14. Supreme Court of Queensland, Litigation Reform Commission, Reform of the Jury System in Queensland (Report of the Criminal Procedure Division, 1993) at 3-4. See para 3.22-3.23 below.
15. Jury Act 1977 (NSW) s 6(b).
16. Jury Act 1977 (NSW) Sch 2.
17. See below at para 5.51-5.53.
18. United Kingdom, Home Office, Report of the Departmental Committee on Jury Service (Cmnd 2627, 1965) at para 101.
19. Jury Act 1977 (NSW) s 7.
20. Jury Act 1977 (NSW) Sch 3.
21. United Kingdom, Home Office, Report of the Departmental Committee on Jury Service (Cmnd 2627, 1965) at para 100.
22. United Kingdom, Home Office, Report of the Departmental Committee on Jury Service (Cmnd 2627, 1965) at para 148.
23. United Kingdom, Home Office, Report of the Departmental Committee on Jury Service (Cmnd 2627, 1965) at para 151.
24. Parliament of Victoria, Law Reform Committee, Jury Service in Victoria (Final Report, 1996) at para 3.146.
25. Parliament of Victoria, Law Reform Committee, Jury Service in Victoria (Final Report, 1996) at para 3.147.
26. R E Auld, Review of the Criminal Courts of England and Wales (HMSO, 2001) at 150.
27. See NSW, Jury Task Force, Preliminary submission at 2.
28. Jury Act 1977 (NSW) s 18A.
29. Jury Act 1977 (NSW) s 38.
30. See para 8.4, 8.12.
31. See Chapter 6.
32. Juries Act 2003 (Tas) s 11.
33. Juries Act 2003 (Tas) s 6, s 9(3), Sch 1 and Sch 2.
34. Juries Act 2000 (Vic) s 5(2) and (3), s 8, Sch 1 and Sch 2.
35. Jury Act 1995 (Qld) s 4(3).
36. Jury Act 1995 (Qld) s 21.
37. See Juries Act 1974 (Eng) s 1, Sch 1.
38. NSW, Parliamentary Debates (Hansard) Legislative Assembly, 24 February 1977, at 4478, quoting United Kingdom, Home Office, Report of the Departmental Committee on Jury Service (Cmnd 2627, 1965) at para 93.
39. NSW, Report of the NSW Jury Task Force (1993) at 22. See also at 24.
40. M Findlay, Jury Management in New South Wales (Australian Institute of Judicial Administration Inc, 1994) at 173.
41. See Juries Act 2003 (Tas) Sch 1 and Sch 2; Juries Act 1927 (SA) Sch 3.
42. See United Kingdom, Home Office, Report of the Departmental Committee on Jury Service (Cmnd 2627, 1965) at para 98; NSW, Report of the NSW Jury Task Force (1993) at 23-25; Supreme Court of Queensland, Litigation Reform Commission, Reform of the Jury System in Queensland (Report of the Criminal Procedure Division, 1993) at para 2.5-2.11.
43. See M Findlay, Jury Management in New South Wales (Australian Institute of Judicial Administration Inc, 1994) at 173; Parliament of Victoria, Law Reform Committee, Jury Service in Victoria (Final Report, 1996) at para 3.149; R E Auld, Review of the Criminal Courts of England and Wales (HMSO, 2001) at para 34, para 40.
44. NSW, Report of the NSW Jury Task Force (1993) at 25.
45. Juries Act 2000 (Vic) Sch 2. See Juries (Amendment) Act 2002 (Vic) s 10; Major Crime (Special Investigations Monitor) Act 2004 (Vic) s 18; Major Crime Legislation (Office of Police Integrity) Act 2004 (Vic) s 29; Public Administration Act 2004 (Vic) s 117(1), Sch 3 [108.2]; Legal Profession (Consequential Amendments) Act 2005 (Vic) s 18, Sch 1 [54.2].
46. Juries Act 1974 (Eng); New York, Consolidated Laws - Judiciary Art 16. See also M Findlay, Jury Management in New South Wales (Australian Institute of Judicial Administration Inc, 1994) at 173, footnote 4.
47. Jury Act 1967 (Vic) s 5. See Parliament of Victoria, Law Reform Committee, Jury Service in Victoria (Final Report, 1996) at para 3.200-3.201.
48. Parliament of Victoria, Law Reform Committee, Jury Service in Victoria (Final Report, 1996) at para 3.201.
