8. Excused for good cause

Updates and background for this project (Digest)

• Reasons in other jurisdictions
• Guidelines
• Right of appeal
• Deferral

8.2 In New South Wales the Sheriff may excuse a person 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”.¹ A person who has been summoned for jury service may also be excused by the Sheriff or by the Court or Coroner from attendance for jury service on the grounds of good cause for the whole or any part of the time that his or her attendance is required.² A person does not, however, have good cause to be excused on the ground that the person is entitled to be exempted as of right if that person was entitled but failed without reasonable cause, to claim exemption in response to the questionnaire earlier sent out with the notice of inclusion.³

8.3 In many instances the decision is made on the day of the trial, either by a local officer of the Sheriff authorised to exercise that power or by the Judge, usually by the latter when the claim to be excused is questionable. In the 2005/2006 financial year, 39,896 potential jurors were excused for good cause before attending, and of those who attended for jury service, 9,490 were excused by the Sheriff and 2,541 by a Judge.

8.4 In Australia, excusal for good cause is dealt with in several ways. Some jurisdictions provide express legislative guidance for determining what constitutes “good cause”. For example, in Tasmania and Victoria the good causes for which the Sheriff may excuse a person from service are listed in the statute and include illness and incapacity, substantial hardship or inconvenience, caregiving, religious beliefs, and “any other matter of special urgency or importance”.⁴ In other jurisdictions such as New South Wales, good cause is not defined by statute and there is no legislative guidance for determining what constitutes good cause.⁵ The Sheriff has, however, developed guidelines for the assistance of the Office of the Sheriff, and the website of that office provides some limited guidance as to the procedure which those who seek to be excused must follow.

8.5 The NSW Jury Task Force in 1993 considered that there was merit in having a limited automatic class of exclusion leaving those who would be entitled “as of right” to apply to be excused on the grounds that “in their particular case there would be undue hardship or inconvenience”.⁶ This would involve a significant change for those who fall within the exemption as of right category, who could previously elect to be removed from the list, but who could serve if they wished. They would now have to serve unless they could provide a good reason not to. It might also involve a substantial change in the work of the jury section of the Sheriff’s Office.⁷

8.6 In England and Wales, Lord Justice Auld observed that any applications to be excused would have to be tested carefully according to “the individual circumstances” of each case “otherwise there could be a reversion to the present widespread excusal of such persons by reason only of their positions or occupations”.⁸

ISSUE 8.1

Should those, or some of those, within the present category of exemption as of right, be required instead to apply to be excused from jury service by demonstrating a good cause?

8.7 In other jurisdictions, excuses that qualify as “good cause” for which the Sheriff may, at his or her discretion, excuse a person from attendance for jury service include the following:

• illness, poor health or incapacity;⁹
• pregnancy;¹⁰
• substantial or undue personal hardship (including financial) or inconvenience resulting from attendance for jury service;¹¹
• excessive time or excessive inconvenience in travelling to court;¹²
• substantial inconvenience to the public (or a section of the public) resulting from the person’s attendance for jury service;¹³
• the existence of caregiving obligations in circumstances where suitable alternative care is not readily available;¹⁴
• the person is one of two or more partners from the same business partnership, or one of two or more employees in the same establishment, who have been summoned to attend as jurors on the same day;¹⁵
• the existence of religious or conscientious beliefs of the person that are incompatible with jury service;¹⁶
• having already performed jury service within the previous 3 years;¹⁷
• the advanced age of the person;¹⁸ and
• any matter or circumstance variously described as being of special or sufficient weight, importance or urgency.¹⁹

8.9 A number of these reasons are treated as grounds for a person to be excused as of right in some jurisdictions but as excuses qualifying as good cause in others. For example, in New South Wales a person with the caregiving duties previously mentioned is eligible to claim exemption as of right whereas in Tasmania, where all categories of exemption as of right have been removed, a caregiver may only claim excusal on the grounds of good cause.²¹

8.10 The Victorian Parliamentary Law Reform Committee suggested an additional ground on which a person could be excused for good cause, namely “whether in the opinion of the sheriff or judge there are factors personal to the prospective juror which would justify excusal on the grounds that he or she may be unable to properly and impartially fulfil the duties of a juror”.²² This ground would deal with situations where, for example, a spouse of a lawyer engaged in the trial is empanelled.²³

8.11 The New York Jury Project simply proposed two grounds on which a potential juror could be excused for good cause, namely:

(a) the individual has a mental or physical condition that causes him or her to be incapable of performing the duties of a juror; or

(b) the individual asks to be excused because his/her service would be a continuing hardship to the individual, his/her family, or the public.²⁴


ISSUE 8.2

Should there be a statutory list of “good reasons” for excusing a person from jury service or should the power to excuse be left at large to be exercised at the discretion of the Sheriff or of the trial judge or coroner?

If the former, what reasons should be included on that list?

8.12 The absence of legislative guidance has led some jurisdictions to establish jury summoning guidelines setting out the criteria governing excusal for good cause. Because determining whether a person has good cause to be excused from attendance for jury service requires an exercise of discretion by the Sheriff, guidelines are of assistance in ensuring that the Sheriff or the Sheriff’s delegate exercises the discretion in a consistent manner, particularly in jurisdictions where good cause is not statutorily defined such as New South Wales. The use of guidelines also acts as a safeguard against the Sheriff using the discretion to “pack the jury”. In New South Wales, jury summoning guidelines have been developed by the Sheriff’s Office but they are informal in nature and are not made publicly available or routinely provided to the Courts. In other jurisdictions, such as England and Wales, where the statute merely requires a “good reason” for a person to be excused,²⁵ guidelines are formalised and made publicly available.²⁶

8.13 If the present categories of ineligibility and exemption as of right from jury service in NSW are reduced, it is likely that the number of applications by persons summoned for jury service to the Sheriff for excusal for good cause will increase. If this occurs, there is a danger that this will shift the burden of excusal to the Sheriff or to the Courts. Further should the good causes for which the Sheriff or the Courts may excuse a person from service be listed in legislation, as is the case in Tasmania and Victoria, there is a risk that this list may become a de-facto list of categories of people who may be exempted as of right. There is a similar risk where the good causes for which the Sheriff may excuse a person from service are listed in published guidelines.

8.14 Concerns have been expressed in NSW about the exercise of the discretion to excuse people for good cause. One preliminary submission to this review suggested that “good cause” needs to be stated more clearly so that employers and employees could be more certain of their rights. The statutory lists of grounds in Victoria, Queensland and Tasmania are seen as providing better grounds for relief than the current system in NSW.²⁷

ISSUE 8.3

Should there be published guidelines for excusing people from jury service?

Should they be in addition to or instead of any statutory list of reasons?

What reasons should the guidelines identify as constituting good cause?

8.15 In some jurisdictions, such as Victoria, South Australia and the United Kingdom, there is express statutory provision for an appeal to the court from a decision of the Sheriff (or equivalent officer) refusing to grant a claim to be excused for good cause.²⁸ At present, there is no express provision in New South Wales permitting such an appeal, although there is a de facto appeal in that an applicant who has been denied excusal by the Sheriff can always renew the application before a judge. However, a person who claims to be disqualified, ineligible or exempt as of right may appeal to a Local Court from a determination of the Sheriff not to exclude that person from the jury roll, or to amend the jury roll so as to have that effect.²⁹

ISSUE 8.4

Should there be a right of appeal against a decision not to excuse a person for good reason?

8.16 It is worth considering whether people who are excused for good reason may also defer their jury service either to a specified or unspecified future date, and whether the granting of any application to be excused could, or should, be made conditional on deferral, so as to ensure that such people are not unreasonably or irresponsibly avoiding their civic duty which is important for the preservation of the institution of trial by jury.

8.17 The English Royal Commission on Criminal Justice in 1993 recommended that “every effort” be made to “offer alternative dates at a time that will be more convenient if that gives an applicant an adequate opportunity to rearrange his or her affairs in order to leave time for the jury service to be performed”.³⁰ Lord Justice Auld similarly proposed that applications to be excused could be dealt with by deferral of service, citing the New York precedent.³¹ In England and Wales it is now the case that a person’s attendance may not be deferred if he or she has already been granted a deferral of attendance under the same summons.³²

8.18 The New York Jury Project proposed a tightly controlled system whereby a juror who is not entitled to be excused should be entitled to only one deferral as of right and required to nominate a date or dates on which he or she could serve within the following 6 months.³³ This Project observed that a discretionary system allowing for deferral relies on the ability of officials to distinguish between “situations where a citizen can make alternate arrangements if allowed to defer service to a more convenient time” and those where a more general or lengthier release from service is appropriate.³⁴ For example, there are many circumstances in the guidelines for England and Wales, where the relevant officer is encouraged to grant a deferral in the first instance. These include MPs who should be offered deferral to a time when parliamentary duties permit and students and teachers who should be offered deferral to a period outside of term time. Those seeking to be excused on the grounds of work commitments should be offered a deferral unless exemption is clearly necessary.³⁵

8.19 The New Zealand Law Commission has also recommended the adoption of a deferral system preferring it to the adoption of a stricter set of guidelines for excusing jurors. The Commission expected that under such a system “the existing criteria for excusal will be interpreted much more strictly, because many people who claim that ‘attendance on that occasion would cause or result in undue hardship or serious inconvenience’ will be able to defer to a more convenient time rather than be excused altogether”³⁶ .

8.20 Several Australian jurisdictions allow a person to apply for deferral to another specified period.³⁷ In Victoria, for example, this is supported up by a computer system that allows potential jurors to record their preferred dates for service. In SA, the Sheriff or Judge may excuse a person upon condition that his or her name is included among the jurors to be summoned at a “specified subsequent time” or that he or she attend in compliance with the summons as directed by the Sheriff.³⁸

8.21 There may, however, be problems with managing a system whereby people are offered alternative times that are more suitable. It has been suggested that a system of recording preferred times did not work previously in NSW. Often people who deferred came up with another excuse when the deferred date arrived.³⁹ In the Australian jurisdictions mentioned above there is no express provision that enforces a person’s subsequent choice of date. The New York Jury Project observed that allowing multiple deferrals “does not foster public respect for the jury system”.⁴⁰

8.22 One submission to this review supported the possibility of deferring service until a time that is more convenient to a prospective juror. It envisaged swapping a person who has been summoned onto a panel for a future date in order to overcome the problems of short-term illness or work commitments.⁴¹

8.23 Another alternative is to ensure that there is flexibility in the system to excuse jurors for whom service in a lengthy trial would occasion hardship or otherwise ground an application to be excused, on condition that they be available and moved to a panel allocated to a short trial.

ISSUE 8.5

What provision, if any, should be made for potential jurors to defer jury service?

Should it be possible to reallocate potential jurors to serve in a trial that would avoid or limit the hardship that may be occasioned by requiring them to serve in the trial to which their panel is allocated?

1. Jury Act 1977 (NSW) s 18A.

2. Jury Act 1977 (NSW) s 38.

3. Jury Act 1977 (NSW) s 38(2).

4. Juries Act 2003 (Tas) s 9(3); Juries Act 2000 (Vic) s 8(3).

5. See M Findlay, Jury Management in New South Wales (Australian Institute of Judicial Administration Inc, 1994) at 41 and 175.

6. NSW, Report of the NSW Jury Task Force (1993) at 25.

7. L Anamourlis, Preliminary consultation.

8. R E Auld, Review of the Criminal Courts of England and Wales (HMSO, 2001) at 151.

9. Juries Act 2003 (Tas) s 9(3)(a) and (b); Juries Act 2000 (Vic) s 8(3)(a) and (b); Jury Act 1995 (Qld) s 21(1)(e); Juries Act 1967 (ACT) s 14(a); Juries Act 1957 (WA) Sch 3; Juries Act 1927 (SA) s 16(2)(c).

10. Juries Act 1967 (ACT) s 14(b).

11. Juries Act 2003 (Tas) s 9(3)(d) and (e); Juries Act 2000 (Vic) s 8(3)(e) and (f); Jury Act 1995 (Qld) s 21(1)(a) and (b); Juries Act 1957 (WA) Sch 3.

12. Juries Act 2003 (Tas) s 9(3)(c); Juries Act 2000 (Vic) s 8(3)(d).

13. Juries Act 2003 (Tas) s 9(3)(f); Juries Act 2000 (Vic) s 8(3)(g); Jury Act 1995 (Qld) s 21(1)(c).

14. Juries Act 2003 (Tas) s 9(3)(g); Juries Act 2000 (Vic) s 8(3)(h); Jury Act 1995 (Qld) s 21(1)(d); Juries Act 1967 (ACT) s 14(c).

15. Juries Act 1927 (SA) s 16(2)(b); Juries Act 1967 (ACT) s 15.

16. Juries Act 2003 (Tas) s 9(3)(h); Juries Act 2000 (Vic) s 8(3)(j); Juries Act 1927 (SA) s 16(2)(c).

17. Juries Act 1927 (SA) s 16(2)(a).

18. Juries Act 2000 (Vic) s 8(3)(i).

19. Juries Act 2003 (Tas) s 9(3)(i); Juries Act 2000 (Vic) s 8(3)(k); Juries Act 1967 (ACT) s 14(d); Juries Act 1957 (WA) Sch 3; Juries Act 1927 (SA) s 16(2)(c). See also Jury Act 1977 (NSW) s 18A.

20. Juries Act 2003 (Tas) s 10.

21. Jury Act 1977 (NSW) Sch 3 items 10 and 11; Juries Act 2003 (Tas) s 9(3)(g).

22. Parliament of Victoria, Law Reform Committee, Jury Service in Victoria (Final Report, 1996) at para 3.192.

23. See N R Cowdery, Preliminary submission at 1.

24. The Jury Project (Report to the Chief Judge of the State of New York, 1994) at 34.

25. Juries Act 1974 (Eng) s 9(2).

26. Under Juries Act 1974 (Eng) s 9AA. See England and Wales, Department for Constitutional Affairs, “Guidance for summoning officers when considering deferral and excusal applications” «http://www.hmcourts-service.gov.uk/docs/guidance_for_summoning_officers_0405%20.doc» (accessed 20 October 2006); England and Wales, Department for Constitutional Affairs, Jury Summoning Guidance (Consultation Paper, 2003).

27. Australian Business Ltd, Preliminary Submission at 2.

28. Juries Act 2000 (Vic) s 10; Juries Act 1974 (Eng) s 9A; Juries Act 1927 (SA) s 16(5).

29. Jury Act 1977 (NSW) s 15.

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

31. R E Auld, Review of the Criminal Courts of England and Wales (HMSO, 2001) at 151.

32. Juries Act 1974 (Eng) s 9A(2), (2A).

33. The Jury Project (Report to the Chief Judge of the State of New York, 1994) at 36.

34. The Jury Project (Report to the Chief Judge of the State of New York, 1994) at 35.

35. England and Wales, Department for Constitutional Affairs, “Guidance for summoning officers when considering deferral and excusal applications” «http://www.hmcourts-service.gov.uk/docs/guidance_for_summoning_officers_0405%20.doc» (accessed 20 October 2006).

36. New Zealand, Law Commission, Juries in Criminal Trials (Report 69, 2001) at para 156.

37. Juries Act 2000 (Vic) s 7; Juries Act 2003 (Tas) s 8; Juries Act 1963 (NT) s 17A.

38. Juries Act 1927 (SA) s 16(4).

39. L Anamourlis, Preliminary consultation.

40. The Jury Project (Report to the Chief Judge of the State of New York, 1994) at 36.

41. NSW, Jury Task Force, Preliminary submission at 3.