4. Disqualification on the grounds of criminality

Updates and background for this project (Digest)

• General reasons for disqualification
• People who have been charged or convicted
• People awaiting trial or sentencing
• Identifying people with criminal histories

GENERAL REASONS FOR DISQUALIFICATION

4.2 In NSW it has been suggested that this category of disqualification is justified because people who have “come into conflict with the law, particularly those who have served gaol sentences, could bear some ill will towards the Crown and so increase the probability of disagreement in criminal proceedings”.² This justification may lose some of its strength now that majority verdicts are available in most criminal trials,³ as has been the case for many years in civil trials.

4.3 In addition to resentment arising from their treatment by the criminal justice system, it has also been assumed that criminality and dishonesty will make such people unsuitable candidates for jury service.⁴ One review simply referred to excluding those “whose recent criminal record indicates that they may not be fitted to pass judgment on their fellow citizens”.⁵ Another review observed that a person who had been convicted and sentenced might “find it difficult to regard the police dispassionately”.⁶ In Queensland it has been additionally suggested that the defence might object to people who are under probation or community service orders serving on the grounds they might “have a stake in trying to please the authorities”.⁷ In more general terms, it has been suggested that confidence in the administration of justice may suffer if “a person with a recent and serious criminal record is allowed to serve as a juror”.⁸ The New Zealand Law Commission considered that the appearance of justice was probably the strongest argument in favour of excluding people with criminal records from jury service.⁹

4.4 The Victorian Parliamentary Law Reform Committee considered that the disqualification of anyone who has served a prison sentence at any time within the previous 5 years was justified “because of a probable community expectation that these persons have attributes which are incompatible with jury service”.¹⁰

4.5 In England, the Royal Commission on Criminal Justice raised the question whether, “contrary to general belief, the role played by jurors with prior criminal convictions is indistinguishable from the role played by any other category of juror”. However, it considered that any changes to the law could only take place after a proper study into the possible influence of such people on jury verdicts.¹¹ Some anecdotal evidence considered by the UK Departmental Committee on Jury Service suggested that around 1965, a time when only those convicted of “infamous” crimes were excluded from juries, the presence of jurors with known criminal records did not apparently result in perverse verdicts.¹²

4.6 It has also been suggested that a large proportion of the Indigenous population of NSW may be excluded by such provisions.¹³

4.7 The question has been asked whether the availability to the Crown of a right of peremptory challenge might not be an additional way of ensuring that those with a criminal background do not serve as jurors “in the interests of justice”.¹⁴ For such a right to be exercised, the prosecution would need access to the personal details of the potential jurors, which is presently not permitted.¹⁵ One preliminary submission to this Commission suggested the adoption of a more subjective test, so that people who were not “fit and proper” to serve as jurors could be excluded,¹⁶ it being argued that the term “fit and proper” is already being applied in numerous pieces of legislation in NSW.¹⁷

4.8 Queensland formerly had a provision that disqualified any person “of bad fame or repute”.¹⁸ Such a test would, however be very subjective, and could require some form of inquiry akin to that which is seen in the US, and which could be the cause of delay and dispute. The Queensland Supreme Court’s Litigation Reform Commission rejected this provision as an “arbitrary and subjective” category of exclusion.¹⁹

PEOPLE WHO HAVE BEEN CHARGED OR CONVICTED

Custodial sentences for adult offenders

4.9 Disqualifications of people who are sentenced have generally been based on length of sentence and time since conviction, and these differ from jurisdiction to jurisdiction. For example, some jurisdictions will specify a sentence of a particular length as a permanent bar on serving.²⁰ Some, like NSW, make no such provision. Other jurisdictions are very strict. For example, Queensland maintains an absolute ban on people who have ever been convicted of an indictable offence or sentenced to imprisonment.²¹

4.10 Some specify that a person must have served a particular period of imprisonment within a certain number of years.²² For example, in NSW any term of imprisonment served in the previous 10 years will disqualify a person from jury service.²³

4.11 Two substantially competing principles need to be balanced:

• allowing people who have served their time, undertaken rehabilitation, and become eligible voters to become fully functioning members of society;²⁴
• ensuring that the jury system is impartial.²⁵

Is society justified in branding a person who has been punished and must be presumed to have expiated his offences, as irresponsible and not to be trusted to carry out one of the duties of citizenship?²⁶

Legal barriers to social and civic participation, such as disqualification from jury service, not only serve as a constant reminder to offenders that they are not permitted to truly re-integrate, but may help to persuade them that any efforts to do so are wasted.²⁷

given the emphasis of modern penological theory on rehabilitation and recent legislation which provides that criminal records shall be expunged after a certain time, it may be that people who have served their sentence or paid their fine should not now have their right to serve on a jury taken away from them altogether.²⁸

4.13 The question then becomes at what point to draw the line in terms of seriousness of the offence and the length of time since the sentence was served. The UK Departmental Committee on Jury Service concluded that “any disqualification should be as limited as is consistent with the proper administration of justice and the maintenance of public confidence in the jury system”.³⁰ In Victoria, different periods of disqualification apply dependent on the sentence served: for example, 2 years disqualification for anyone sentenced for any offence; 5 years disqualification for anyone sentenced to imprisonment for an aggregate of less than 3 months; 10 years disqualification for anyone sentenced to imprisonment for an aggregate of 3 months or more; and disqualification for life for anyone convicted of treason or of an indictable offence and sentenced to an aggregate of 3 years or more.³¹ Other Australian jurisdictions also stipulate different periods of disqualification for different sentences.³²

4.14 Questions arise as to whether the fact of sentencing or the length of sentence imposed should be the appropriate measure for determining if a person is disqualified. For example, it has been suggested that “disqualification should not be determined by reference to the period of imprisonment, but instead should take into account the nature of the offence committed”.³³ However, there would be formidable difficulties involved in identifying all of the offences which ought to disqualify a person from serving as a juror.³⁴

ISSUE 4.1

Should people who have been subject to custodial sentences continue to be disqualified from jury service?

What level of penalty ought to disqualify a person from jury service?

How long after the termination of the sentence should a person continue to be disqualified?

4.15 As the legislation is currently structured, the disqualification period for young offenders is less than that for adult offenders, and is defined in somewhat different terms in that it depends on the person having “been found guilty of an offence”, an expression which is potentially ambiguous. Moreover it is a definition that may not adequately reflect the available sentencing discretion and practice in relation to young offenders.³⁵

4.16 The Victorian Parliamentary Law Reform Committee considered that a disqualification period of 5 years was too long for young offenders, preferring instead a period of 2 years from the end of the sentence. The Committee weighed up the competing considerations of:

• the “law’s concession to youth” so that young offenders “especially should be allowed to put their former offending into the past”; and
• the fact that young people “sentenced to detention are often guilty of quite serious criminal conduct”.³⁶

ISSUE 4.2

Should separate provision be made for the disqualification of young offenders?

Should there be any modification of the disqualification criteria for those people who have been dealt with as a juvenile, but who have now attained their majority?

4.17 NSW currently disqualifies people bound by orders of a court in criminal proceedings including parole orders, community service orders, apprehended violence orders, orders disqualifying a person from driving and recognizances.³⁷ Most other Australian jurisdictions include a similar range of non-custodial orders as a ground for disqualifying people from jury service.³⁸

4.18 As noted earlier, the current wording of this head of disqualification does not embrace all of the potential sentencing orders that are available which do not involve a term of imprisonment. Nor does it provide for those who are subject to preventative detention and other similar orders³⁹ or for those who might be excluded from the Commonwealth electoral roll by virtue of membership of a declared unlawful association.⁴⁰ Similarly no mention is made of those who may be the subject of child protection orders⁴¹ or the subject of a registration requirement⁴² or the subject of extended supervision or continuing detention orders. Such people might otherwise fall outside the earlier criteria for disqualification.

4.19 The Victorian Parliamentary Law Reform Committee recommended the repeal of provisions that disqualified people who were subject to a recognizance or a community based order. One reason for doing so was that “most people would accept that persons in these categories in general should be permitted to serve... unless there is some specific reason for their exclusion”.⁴³ The Committee preferred to rely on the trial judge’s ability to exclude people in individual cases where the interests of justice so require. However, the Committee recommended the disqualification (for a period of 5 years) of those who were subject to an “intensive corrections order” or a suspended sentence.⁴⁴ A review by the Tasmanian Department of Justice questioned whether it was fair that a person subject to a probation order without conviction should be disqualified, when a person who is convicted but fined is not disqualified.⁴⁵

4.20 The Victorian Parliamentary Law Reform Committee also considered a suggestion that people subject to an intervention order under the Crimes (Family Violence) Act 1987 (Vic) should be disqualified. The Committee concluded that such people should not be disqualified because the orders “do not result from a criminal proceeding and they do not constitute a criminal sanction”.⁴⁶

ISSUE 4.3

What non-custodial or other orders should disqualify a person from jury service?

4.21 The current grounds of disqualification were formulated prior to later legislation which has provided for additional sentencing options such as home detention, compulsory drug treatment detention, and which also provided for a different regime for the enforcement of fines, and for the use of community service, and of imprisonment as a final sanction. These are not listed specifically in the indicative list of orders that may be made “pursuant to a criminal charge or conviction”, although most would probably fall within the general category. The current grounds also do not specify the nature of the charge or conviction or offence which should trigger their application.

ISSUE 4.4

Should the grounds be amended so as to reflect in a more precise and currently relevant way, the criteria for disqualification?

4.22 In NSW a person is disqualified who has been remanded “in custody pending trial or sentence” or released “on bail pending trial or sentence”.⁴⁷ Some other jurisdictions also disqualify from service those who have been remanded in custody or released on bail.⁴⁸ South Australia disqualifies those who have been charged with an offence punishable by imprisonment but the charge has not yet been determined.⁴⁹

4.23 The English Royal Commission on Criminal Justice in 1993 expressed concern that it was “possible for a person to sit on a jury while on bail for an offence that is similar to the one for which the defendant is to be tried” and recommended that people on bail should be disqualified from jury service.⁵⁰ A subsequent government report considered that a pending trial might “improperly affect” such a juror’s attitude to the proceedings.⁵¹

4.24 The Victorian Parliamentary Law Reform Committee, however, considered that the presumption of innocence required that those charged with offences not be disqualified from jury service.⁵² This was also the view adopted by the New Zealand Law Commission.⁵³

4.25 One submission received by the Commission has suggested that the omission from this category of people who are awaiting trial or sentence, but for whom bail has been dispensed with, appeared to be “inadvertent”, citing an occasion on which such a person charged with dangerous driving had served on a District Court jury.⁵⁴

ISSUE 4.5

Should people who are awaiting trial or sentencing be disqualified from jury service?

Should this category be varied so as to include those awaiting trial or sentence, who have been released unconditionally or otherwise?

4.26 As noted earlier, there is no foolproof system for vetting the electoral roll to exclude those people who fall within this category of disqualification. Cross-checks with police and court records, with adult and juvenile correctional systems, or with the Probation and Parole Service or Juvenile Justice are not made, and the Sheriff does not have on-line access to the records of these bodies. Exclusion accordingly depends substantially on truthful self-reporting in response to the questionnaire that the Sheriff sends with the notice of inclusion on the jury roll.

1. Jury Act 1977 (NSW) s 6(a); Sch 1. See para 3.7 above.

2. NSW, Parliamentary Debates (Hansard) Legislative Assembly, 24 February 1977, at 4478-4479.

3. Jury Amendment (Verdicts) Act 2006 (NSW).

4. Queensland, Criminal Justice Commission, The Jury System in Criminal Trials in Queensland (Issues Paper, 1991) at 11. See also New Zealand, Law Commission, Juries in Criminal Trials (Report 69, 2001) at para 179.

5. United Kingdom, Home Office, Report of the Departmental Committee on Jury Service (Cmnd 2627, 1965) at para 99.

6. United Kingdom, Home Office, Report of the Departmental Committee on Jury Service (Cmnd 2627, 1965) at para 134.

7. Supreme Court of Queensland, Litigation Reform Commission, Reform of the Jury System in Queensland (Report of the Criminal Procedure Division, 1993) at 5.

8. United Kingdom, Home Office, Report of the Departmental Committee on Jury Service (Cmnd 2627, 1965) at para 134.

9. New Zealand, Law Commission, Juries in Criminal Trials (Report 69, 2001) at para 179.

10. Parliament of Victoria, Law Reform Committee, Jury Service in Victoria (Final Report, 1996) at para 3.43.

11. England and Wales, Royal Commission on Criminal Justice (Report, 1993) at 132.

12. United Kingdom, Home Office, Report of the Departmental Committee on Jury Service (Cmnd 2627, 1965) at para 132.

13. See NSW, Report of the NSW Jury Task Force (1993) at 22; Redfern Legal Centre, Preliminary submission.

14. See 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.

15. See the juror confidentiality provisions: Jury Act 1977 (NSW) s 29 and s 37.

16. NSW Police, Preliminary submission at 2.

17. Firearms Act 1996 (NSW) s 11(3)(a); Security Industry Act 1997 (NSW) s 15(1)(a); Passenger Transport (Taxi-cab Services) Regulation 2001 (NSW) cl 5; and Passenger Transport (Bus Services) Regulation 2000 (NSW) cl 5A.

18. Jury Act 1929 (Qld) s 7(1)(e).

19. Supreme Court of Queensland, Litigation Reform Commission, Reform of the Jury System in Queensland (Report of the Criminal Procedure Division, 1993) at 5.

20. 3 years in Tasmania and Victoria: Juries Act 2003 (Tas) Sch 1 cl 1; Juries Act 2000 (Vic) Sch 1 cl 1. 2 years in WA and SA: Juries Act 1957 (WA) s 5(b)(i); Juries Act 1927 (SA) s 12(1)(b). 1 year in the ACT: Juries Act 1967 (ACT) s 10(a).

21. Jury Act 1995 (Qld) s 4(3)(m) and (n).

22. 3 months or more for an indictable offence in the past 5 years in Tasmania: Juries Act 2003 (Tas) Sch 1 cl 1(3); 3 months or more for any offence in the past 10 years in Victoria: Juries Act 2000 (Vic) Sch 1 cl 2.

23. Jury Act 1977 (NSW) Sch 1 item 1. 5 years in WA: Juries Act 1957 (WA) s 5(b)(ii). 7 years in the Northern Territory: Juries Act 1963 (NT) s 10(3)(a)(ii).

24. See Parliament of Victoria, Law Reform Committee, Jury Service in Victoria (Final Report, 1996) at para 3.23; 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.

25. See Parliament of Victoria, Law Reform Committee, Jury Service in Victoria (Final Report, 1996) at para 3.23; 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.

26. United Kingdom, Home Office, Report of the Departmental Committee on Jury Service (Cmnd 2627, 1965) at para 131.

27. New Zealand, Law Commission, Juries in Criminal Trials (Report 69, 2001) at para 181.

28. Queensland, Criminal Justice Commission, The Jury System in Criminal Trials in Queensland (Issues Paper, 1991) at 11.

29. Queensland, Criminal Justice Commission, The Jury System in Criminal Trials in Queensland (Issues Paper, 1991) at 11.

30. United Kingdom, Home Office, Report of the Departmental Committee on Jury Service (Cmnd 2627, 1965) at para 140.

31. Juries Act 2000 (Vic) Sch 1 cl 1-5.

32. See Juries Act 1927 (SA) s 12(1).

33. Parliament of Victoria, Law Reform Committee, Jury Service in Victoria (Final Report, 1996) at para 3.29.

34. Parliament of Victoria, Law Reform Committee, Jury Service in Victoria (Final Report, 1996) at para 3.30. See also United Kingdom, Home Office, Report of the Departmental Committee on Jury Service (Cmnd 2627, 1965) at para 141.

35. Under Young Offenders Act 1997 (NSW) and Children (Criminal Proceedings) Act 1987 (NSW).

36. Parliament of Victoria, Law Reform Committee, Jury Service in Victoria (Final Report, 1996) at para 3.55.

37. Jury Act 1977 (NSW) Sch 1.

38. Juries Act 2003 (Tas) Sch 1 cl 2; Juries Act 1927 (SA) s 12(1)(e); Juries Act 2000 (Vic) Sch 1 cl 3 and cl 4; Juries Act 1957 (WA) s 5(b)(ii)(III).

39. Under the Terrorism (Police Powers) Act 2002 (NSW) and reciprocal legislation.

40. Crimes Act 1914 (Cth) s 30FD.

41. Child Protection (Offenders Prohibition Orders) Act 2004 (NSW).

42. Child Protection (Offenders Registration) Act 2000 (NSW).

43. Parliament of Victoria, Law Reform Committee, Jury Service in Victoria (Final Report, 1996) at para 3.49.

44. Parliament of Victoria, Law Reform Committee, Jury Service in Victoria (Final Report, 1996) at para 3.52-3.53.

45. Tasmania, Department of Justice and Industrial Relations, Review of the Jury Act 1899 (Legislation, Strategic Policy and Information Resources Division, Issues Paper, 1999) ch 2.

46. Parliament of Victoria, Law Reform Committee, Jury Service in Victoria (Final Report, 1996) at para 3.61.

47. Jury Act 1977 (NSW) Sch 1 item 3(c).

48. Juries Act 2003 (Tas) Sch 1 cl 4; Juries Act 2000 (Vic) s 6 and s 7. See also Juries Act 1974 (Eng) Sch 1 cl 5.

49. Juries Act 1927 (SA) s 12(1)(f).

50. England and Wales, Royal Commission on Criminal Justice (Report, 1993) at 132.

51. Parliament of Victoria, Law Reform Committee, Jury Service in Victoria (Final Report, 1996) at para 3.56, citing Scottish Office, Home and Health Department, Firm and Fair: Improving the Delivery of Justice in Scotland (Cm 2600, 1994) at 15-16.

52. Parliament of Victoria, Law Reform Committee, Jury Service in Victoria (Final Report, 1996) at para 3.59.

53. The NZ Commission considered that the bias against the criminal justice system that might be held by such a person could equally be held by their close family members, but these people could not sensibly be excluded: New Zealand, Law Commission, Juries in Criminal Trials (Report 69, 2001) at para 184.

54. NSW, Office of the Director of Public Prosecutions, Preliminary submission at 1.