9. Management of jury service
Updates and background for this project (Digest)
9.1 The system of jury selection, empanelment and management needs to be designed with the interests of potential jurors in mind particularly bearing in mind the responsible performance of a civic duty that jury service entails, which can occasion personal hardship, financial hardship and a good deal of inconvenience and distress. The more the system is designed to accommodate the concerns and needs of jurors, the less likely it is that some will seek exemption on the grounds of inconvenience or hardship.
9.2 The 1994 AIJA review of the NSW jury system observed:
When discussing the management of juries we are talking of a limited and precious resource. The requirement that citizens perform jury duty is an imposition on the freedom of the individual, and therefore juror usage not only must be efficient and economical from an administrative point of view, but also must recognise the legitimate concerns, apprehensions, expectations and frustrations of citizens participating in jury duty.1
9.3 The Tasmanian review of jury service in 1999 observed that the jury selection processes generally appeared to have been “designed with the interests of the system in mind”, the interests of jurors playing “little part in their development”.2
9.4 In this section we outline some of the conditions or incidents of service as a juror that may lessen its attraction to lay citizens and encourage reliance on rights to exemption or applications to be excused.
SELECTION AND EMPANELMENT
9.5 The current system for selection and empanelment in NSW has been examined earlier. In this section we identify some of the problems that arise in implementing that procedure.
Selection boundaries
9.6 In NSW the current practice is to include on the jury rolls the registered electors resident in the postcode areas from the electoral districts closest to the relevant courts. Each electoral district or part of an electoral district serves only one court or group of courts.3 So, for example, in the Sydney South region, the electorates surrounding the Sydney District Court and Supreme Court complexes are used to compile the jury roll for those courts, while the electorates surrounding Parramatta are used to compile the jury roll for the District Court at Parramatta. This division occurs, notwithstanding the fact that people living in or around Parramatta would not be able to claim an exemption as of right based on the 56km distance criterion if called upon to serve at the Sydney District Court.
9.7 Basing jury rolls on electoral districts has caused problems in regional areas, for example, where the roll is drawn from an electoral district the boundaries of which do not necessarily represent a 56 km radius from the location of the courthouse, or the nearest courthouses at which people on that roll may be summoned to attend.4 In some areas the result may be a substantial reduction in the available jury pool for that courthouse.
9.8 We propose to make inquiries to identify what proportion of State electors, if any, are not included on a jury roll because of the current 56 km limit and as to whether this imposes additional burdens on those living nearest to some regional courthouses.5
9.9 Options other than establishing jury pools based on electoral districts include using postcode districts, local government areas and/or census collection districts. In its submission to the Victorian Parliamentary Law Reform Committee, the Victorian State Electoral Office preferred the use of census collection districts (which are smaller than postcode districts) on the basis that postcode districts change quite frequently.6 The jury districts in Tasmania are defined by census collection districts.7
9.10 Questions arise as to the most effective method of determining the geographic areas from which jurors are to be selected for particular courthouses and whether jurors should be available for selection for only one courthouse when they are within easy reach of more than one courthouse. This question is relevant not only to potential jurors in the Sydney region but also to potential jurors who live in electoral districts between major regional centres.
Volunteers
9.11 It is sometimes suggested that interested people could make themselves available to serve as jurors by registering or notifying that willingness to the Sheriff.8 It is believed by some that this would get around the problem of those who are unwilling to serve.
9.12 This approach would be undesirable for a number of reasons, since:
Matters impacting upon the convenience of jurors
Sufficient notice of attendance
9.13 Currently in NSW a juror need only be given 7 days notice of the date when they are required to attend unless a judge of the court “otherwise orders”.11 The usual notice period is 4 to 5 weeks. However, a court may require a jury to be empanelled at much shorter notice, sometimes of even a day or two. Such short notice may be given when, for example, a trial judge wishes to recommence an aborted trial. In these cases Sheriff’s officers deliver the jury summonses in person.
9.14 One submission to this review has drawn attention to instances of summonses being given at short notice of only two weeks or less. The short notice is said to involve considerable inconvenience to some businesses, the more so when final confirmation that a person is required to attend is given only within one or two days preceding the trial.12 This may lead unnecessarily to jurors seeking to be excused, who, if given more time, would have been prepared to serve.
9.15 In Tasmania, potential jurors must be given at least 14 days notice of attendance.13 The Tasmanian review of jury service in 1999 considered that three weeks notice was “totally inadequate”, observing that it was “far too short for a person to reorganise their business and personal affairs”.14
9.16 One preliminary submission received by the Commission suggested that “a system which provides more regular and advance notice for jury duty may mitigate these difficulties somewhat”.15
Attendance on the wrong day
9.17 There has been a recent case where a juror attended on the wrong day and was mistakenly empanelled. An appeal to the NSW Court of Criminal Appeal was upheld quashing the conviction on the basis that the empanelment of the jury was invalid and ineffective.16 It has been suggested that the Act should be amended to meet this situation when jurors attend the court in response to a summons.17
Case management
9.18 There has been a perennial complaint that jurors are unnecessarily kept waiting around and that their time is often wasted.18 That there is always room for improvement in this regard has generally been accepted.19 The fact that complaints continue to be made reinforces the point that the system places less consideration on the needs and interests of jurors than it does on the system itself.
9.19 One preliminary submission identified the problem of jurors attending court in response to a summons only to be told that the trial is not proceeding, particularly where the parties are not ready to proceed or where there has been a last minute plea. It has been suggested that this is one of the principal causes of jury service being depicted in a bad light.20 Not only are individuals inconvenienced by having to attend when not required, they are also potentially lost to the system for 12 months because they are entitled to claim a right of exemption as having attended and been willing to serve.21 The submission suggested that some form of penalty as to costs should be imposed.22
9.20 Equally problematic and annoying for jurors is the taking of lengthy breaks during the trial while legal argument takes place in relation to the admissibility of evidence and so on.23 With proper management a trial judge should take steps to avoid such interruptions, which do involve a waste of jurors’ time, by:
- dealing, so far as practicable, with all such questions, including potential questions as to the joinder of co-accused or severance of the indictment, pre-trial;
- deferring argument on such issues until they can be determined outside normal court hours; or by
- similar techniques which would minimise mid-trial interruptions in the orderly flow of the evidence, addresses and summing up.
Attendance on more than one day before empanelment
9.21 There appears to be no provision limiting the period of time which a person must attend in response to a summons,24 although in practice there is an expectation that most jurors will be allocated a trial or discharged on the day of attendance. The current practice in the Sydney District Court is to summon panels of jurors on Monday for trials commencing on Monday or Tuesday and to summon panels of jurors on Wednesday for trials that commence on that day, meaning that no potential juror has to wait for more than 2 days before empanelment.25
9.22 A practice also exists whereby separate panels can be joined where there is an insufficiency of jurors in attendance, even though these panels have been summoned separately for the Supreme and District Courts.26
9.23 Attendance on more than one day without selection can be a substantial negative aspect for some potential jurors, particularly if they are advised that they are to regard themselves as on call for a nominated period.
9.24 The Victorian Parliamentary Law Reform Committee proposed the introduction of a “one trial or one day” system whereby people would be required to attend for only one day if they were not empanelled. This aimed to reduce the inconvenience experienced by persons summoned for jury service.27
When individual jurors are discharged
9.25 If, after a jury is empanelled but before the trial proper has commenced, a juror is discharged, the usual practice is for the remaining 11 jurors to be discharged. One submission to this review has suggested that it would be appropriate, in those circumstances, to include the remaining 11 jurors in another panel for that trial to be supplemented from a waiting pool28 or to return them to the general pool for potential selection in another trial.29
Length of trial
9.26 It has been generally observed that people may be particularly unwilling to attend for jury service because of the danger of being allocated a lengthy trial. One preliminary submission noted that some prospective jurors panic prematurely because of their knowledge of some notoriously long trials. Many prospective jurors do not understand that they may not even be empanelled, for example, because defendants plead guilty at the last minute, or because their names are not called, or because they become subject of a peremptory challenge.30
9.27 The Sheriff’s Office currently has a system of identifying the lengthier trials and of giving potential jurors the opportunity to elect to serve on a shorter trial. However, it remains the fact that for lengthy trials, and particularly those which involve controversial or notorious issues, panels of up to 100 jurors are often required, so as to allow for jurors to be excused, and for the peremptory challenges which are often extended by consent in these cases.31
9.28 One preliminary submission suggested that it might be useful to examine whether it would be possible for key personnel who might otherwise be excused for good cause, to be allocated to panels for short trials.32
Dealing with bias and conflicts of interest
9.29 The possibility of jurors being affected by actual or ostensible bias can arise from time to time as a result of the juror having some interest in the proceedings or some relationship with the participants. This is likely to occur more frequently if the traditional categories of ineligibility are abolished or reduced. The issue may arise before the trial commences or once the trial is under way.
Before or at the commencement of proceedings
9.30 The current practice in NSW is for counsel to inform the panel of jurors in waiting, at the commencement of proceedings, of the names of the parties in civil proceedings or of the defendants in criminal proceedings, as well as the names of the principal witnesses that will be called and the general nature of the case.33 The trial judge will then call upon the jurors on the panel to apply to be excused if they consider that they are not able to give impartial consideration to the case. Where a juror makes that application he or she is usually invited to state briefly the reason for the application so as to avoid abuse of the system. A similar procedure applies in proceedings before a Coroner.34 The reasons given at this stage could include, for example, that the juror was recently a victim of a similar offence to the one being tried, or knows one of the witnesses or one of the parties. Any application that is made at this time is dealt with as an application for good cause.
9.31 The Law Reform Commission of WA observed that such concerns were best dealt with by the potential juror disclosing the circumstances of this kind to the appropriate authorities in advance of the hearing. In this context the Commission recommended that examples of potential conflicts be brought to the attention of each jury panel, such as relationships (either personal or by reason of employment) with the judge, any legal practitioners in the case or the accused.35
After the commencement of proceedings
9.32 If, after empanelment, circumstances emerge that may affect an individual juror’s ability to give the case an impartial consideration, then the judge has the power to discharge that juror and to determine whether to continue the trial with the remaining members of the jury.36
9.33 The Queensland Jury Act has a provision that allows a juror to report to the Attorney-General or Director of Public Prosecutions any suspicion which that juror has concerning the existence of bias or fraud on the part of any other juror, or the commission by that juror of an offence related to his or her membership of the jury or the performance of his or her functions as a member of the jury.37 In NSW there have been instances where jury misconduct has been reported in relation to private views38 or in relation to private inquiries by jurors designed to obtain additional information about the accused on trial.39 If these came to light during the trial, the jury would normally be discharged without proceeding to a verdict. If they are not discovered until after the trial, this may well constitute grounds for a successful appeal leading to a retrial.
ACCOMMODATING JURORS
9.34 It has been suggested, from time to time, that improving the conditions for the physical accommodation of jurors during the trial might make jury service more palatable and result in potential jurors being less inclined to seek exemption.
9.35 Generally, juror accommodation both before empanelling and during deliberations is seen as sub-standard.40 This appears to be a trend in jury reviews across all jurisdictions.41 The problems apply particularly to the assembly or waiting stage, for which the accommodation provided is either cramped or non-existent or arranged on an ad hoc basis away from the courthouse. Additionally many jury rooms are very small with only limited privacy for toilet facilities or for exercise.
9.36 There have been some proposals for flexible sitting hours to allow jurors to go about essential business or see to other personal matters.42 Such arrangements involve a difficult balancing exercise in that providing breaks in sittings,43 while convenient or desirable for some jurors, may prolong trials unnecessarily and impose “avoidable” costs on jurors and their employers.44
9.37 The provision of business facilities like facsimile machines and computer terminals which could be used during breaks in the sittings has also been suggested as a means of reducing the inconvenience of jury service, as could some relaxation of the current practice of discouraging jurors from bringing mobile telephones to court.45 There would, however, be a need to achieve some certainty as to their proper use so as to discourage the kinds of external inquiries that jurors may make about the accused and the trial that are forbidden by law. While it would be impractical, and unduly expensive, for substantial improvement to be made to many of the physical facilities reserved for jurors in many of the existing court houses in NSW, there would seem to be merit in ensuring that the need for comfortable facilities is built into future planning, both in relation to assembly and waiting rooms and also in relation to the jury rooms themselves.
9.38 Several reviews have emphasised a more general sensitivity to the needs of jurors, not only in terms of physical accommodation, but also in terms of communication and general efficiency of the system.46
ENFORCEMENT OF COMPLIANCE WITH JURY DUTY
Failure to attend
9.39 In the 2005/2006 financial year, of the approximately 40,000 people who were finally required to attend,47 12,202 failed to attend.
9.40 The New Zealand Department for Courts, in 2001, confirmed that only 15-25 per cent of jurors who are summoned in New Zealand actually attend for service.48 Note that in New Zealand, all reasonable steps are taken to ensure that any person who is disqualified or ineligible is removed from the jury list before summonses are issued.49
Procedure and penalties
9.41 The Act imposes a penalty not exceeding 20 penalty units on anyone who fails to attend for jury service.50 However, the Act also allows the Sheriff, in the first instance, to serve a notice on a person who fails to attend for jury service requiring payment of 10 penalty units ($1,100).51
9.42 The current practice is for the Sheriff’s Office to write to a person who fails to attend, requesting an explanation. At this stage the person may provide a good reason for failure to attend, choose to pay the fine of 10 penalty units, or choose to have the matter heard before a Local Court. The Sheriff’s Office tries to clarify the contentious issues with the person who failed to attend before the matter goes to a Local Court. Approximately 10 matters per month go before a Local Court. In the four years, April 2002-March 2006, 64 people were fined in the Local Courts for failure to attend for jury service. Fines imposed ranged from $25 to $2,000. Charges were dismissed for a further 45 people and one person was dismissed subject to a good behaviour bond.
9.43 If the person fails to respond to the initial letter or to a reminder, the Sheriff will issue a penalty notice for failure to attend for jury service.52 This replaced an earlier system for summary disposal before a Magistrate.53 A penalty notice for failure to attend imposes a fine of 15 penalty units.54 Some 2,000 penalty notices are issued for failure to attend in each year. Many of these are withdrawn because the electoral roll did not correctly record the person’s address. In the 2005/2006 financial year only 165 penalty notices were eventually paid.
9.44 A question arises whether fines or penalties of this order actually achieve deterrence or are regarded as an acceptable cost of avoiding service. It has been suggested that the number of people making penalty payments in response to the initial notice has been reduced since the penalty was increased to $1,100.55 It is not clear, at this stage, whether this has also resulted in increased compliance.
9.45 One preliminary submission raised concerns that the current effective penalty of $1,100 may still not be sufficient to deter those who are on a “reasonable income”. However, it also suggested that stricter enforcement or harsher penalties might be “self-defeating” as matters that could alienate the community.56
JURORS’ EMPLOYMENT
9.46 There are two related concerns, namely protecting a juror’s employment during service, and preventing, where desirable, the continued employment of some juror’s during the period of jury service.
Protecting jurors’ jobs
9.47 An employer in NSW cannot dismiss an employee, or injure him or her in employment or prejudicially alter his or her position for the reason that the person has been summoned to serve as a juror, or threaten any of the above actions. Actions and threats of action of this kind constitute offences and each carry a separate penalty of 20 penalty units ($2,200) where an employer is convicted of such an offence. The court may order that the employer pay compensation and reinstate the employee.57 Failure to give effect to an order for reinstatement also constitutes an offence, which carries a similar penalty of 20 penalty units. The onus is placed on the employer to show that the dismissal or other detriment was not because of the juror’s service.58
9.48 The NSW provision was first introduced in 1947 at the same time that the qualification to serve as a juror was extended from a property based franchise to all males who were enrolled to vote.59 It was modelled on provisions in the Industrial Arbitration Act 1940 (NSW) which offered similar protections to employees who were dismissed or treated prejudicially as a result of industrial union activities, so long as the activities did not interfere with the performance of the employee’s duties.60 The provision, which was not introduced in response to any particular incident, was intended to overcome the problems of proof associated with citing an employer for contempt of court.61
9.49 Notwithstanding these provisions, there is still evidence of people complaining that their employment is jeopardised, particularly by lengthy jury service, or that they have missed important career opportunities as a result of jury service.62 There has also been at least one very recent report of a juror being dismissed as a result of prolonged jury service.63 Consideration may need to be given to the status of these provisions in the light of recent amendments to Federal workplace legislation, and the extent to which proceedings can be maintained for unfair dismissal. If they no longer have effect,64 then this could provide a very strong incentive for jurors who are concerned about job security to seek to be excused from jury service, or even simply pay the fine for non-attendance.
9.50 It has been suggested that the current penalty is insufficient and should be substantially increased.65 In some other jurisdictions the amount of the fine is already higher and there is the possibility of a sentence of imprisonment. In the ACT, for example, a fine of up to 50 penalty units (that is, $5,000 for individuals and $25,000 for corporations) can be imposed and/or imprisonment for 6 months.66
9.51 It is understood that during the period April 2002-March 2006 only one employer has been fined in the Local Courts for dismissing an employee who was summoned to jury service. It is unlikely that there has only been one instance of an employee being dismissed or injured or prejudiced in their employment over this period, but statistics as to the incidence of such conduct do not exist. It is also understood that the Sheriff’s Office deals informally with some instances of threatened dismissals of employees who undertake jury service.
Employment during jury service
9.52 The problem has been raised of employers requiring jurors to work at times when they are not required for jury service, possibly as a condition of having their current salary or wage maintained. In some cases, this practice is said to have had a negative effect on jurors who have become physically exhausted by the end of a trial of several weeks. It has been suggested that a provision should be added forbidding employers from requiring that jurors work during the times when they are not required for jury service.67 This was the case under some Federal award provisions that formerly applied to Victoria, whereby employees on afternoon or night shifts who were required to serve as jurors for more than half a day were not required to report for work until the expiration of their jury service.68 Provisions of this sort could have the effect of reducing the incentive of some jurors to seek to be excused from jury service.
COMPENSATION TO JURORS
9.53 Although the question of compensation in the form of attendance, travelling and refreshment fees is not identified directly in our terms of reference, it will be covered in this review since the adequacy of these fees has a direct and significant relationship to the willingness of some people to serve as jurors, and accordingly has some relevance to the categories of exemption or excusal.
9.54 In NSW “a person is entitled to be paid for attendance for jury service at a court or coronial inquest only if the person attends for service in accordance with the summons and does not then successfully apply to be excused from service”.69 Such payments may include, where relevant, an attendance fee, a travelling allowance and a refreshment allowance.70
9.55 The question of compensating jurors for attendance at court has had a long and controversial history. The modern debate commenced with the UK Mersey Committee which reported in 1913:
We regard jury service... as one of the duties which every citizen owes to the State, and we do not consider that the performance of this duty should be paid for. But we distinguish between remuneration for the service, and payment of the out-of-pocket expenses which the performance of the service may entail. These out-of-pocket expenses ought ... [to be] paid to all jurymen summoned (whether they are actually called into the jury box or not) according to fixed scales.71
9.56 While the NSW attendance fees goes beyond the category of out-of-pocket expenses, some would argue that they still fall short of being an adequate remuneration for the performance of the service.
9.57 It is generally believed that improvements in the remuneration and conditions of jury service would encourage more people to participate in the system and reduce the number of applications to be excused or of the exercise of claims to exemption as of right.72 Such improvements may also be a way of making juries, particularly in longer trials, more representative than they are at present. Clearly there are self-employed people or proprietors of small businesses who cannot afford to be away from work for any lengthy period,73 not only because of the loss of income, but also because of the destructive effects of their absence on the viability of the business. Such people will generally seek to be excused and the judge will often grant their application. If the application is refused it is almost inevitable that there will be a peremptory challenge since no party wishes a disgruntled juror to be empanelled.
Attendance allowances
9.58 In NSW the attendance fee varies according to the length of the trial as follows:74
Attendance fee
Day of attendance | Fee per day
$ |
| 1st: | |
| (a) if a person attends for less than 4 hours on that day but is not selected for jury service | Nil |
| (b) if a person attends for less than 4 hours on that day and is selected for jury service | 41.80 |
| (c) if a person attends for more than 4 hours on that day (whether or not the person is selected for jury service) | 83.90 |
| 2nd–5th | 83.90 |
| 6th–10th | 97.50 |
| 11th and subsequent days | 113.70 |
| If a person attending for jury service is paid his or her full wage or salary on a day of attendance by his or her employer (not being an amount that is the difference between the person’s full wage or salary and the attendance fee) | Nil |
The attendance allowance is treated as income for both taxation and social security purposes.
Continuing normal salary or wages
9.59 The final item in the above table provides that employees, whose employers continue to pay their full salary during the period of the jury service are not entitled to receive any attendance fees. It also assumes that an employer who elected to continue paying an employee during jury service could make the usual wage or salary payment less the attendance fee, allowing the juror to claim the attendance allowance from the Sheriff.75 A common provision in many awards and enterprise agreements in NSW required an employer to make up the difference between the attendance allowance and the juror’s normal wage.76 Such arrangements would appear to reflect a recommendation of the NSW Law Reform Commission in 1986 that jurors, whose employers continued to pay them during jury service, should not be advantaged over those whose employers did not.77 It is also consistent with the NSW Jury Task Force’s recommendation that any persons being paid a full wage or salary by their employer during the course of jury service should not receive an additional attendance allowance.78
9.60 The current practice of the Sheriff’s office is to deny the attendance allowance to jurors who are State government employees who are entitled to special leave on full pay during jury service79 and those whose private sector employers are known to continue paying a full wage or salary for the duration of jury service. All other employees may claim the attendance allowance. This system, however, depends upon the honesty of the employees in reporting receipt of the allowance and the diligence of the employers in recouping the allowance if they have paid their employees fully for the period of service.80
9.61 Although the Jury Act provides that “an employer shall not dismiss a person in his or her employment or injure the person in his or her employment or alter his or her position to his or her prejudice by reason of the fact that the person is summoned to serve as a juror”,81 it seems to have been assumed that this provision, the breach of which constitutes an offence, does not prevent an employer suspending the payment of the employee’s wages or salary during the trial.82 This assumption does not sit entirely comfortably with the subsequent provision of the Act to the effect that, where an employer is convicted of the offence mentioned, the Court may order that the employer pay the employee a specified sum by way of reimbursement for the salary or wages lost by the employee, and that the employee be reinstated in his or her old or a similar position. Having regard to the interpretation which has been placed on the primary provision mentioned above, it would seem that this provision for reimbursement and reinstatement has been assumed as applicable only to the circumstance where the employee has been dismissed, or demoted, or denied some opportunity for promotion, or otherwise penalised, in each case, for the sole reason that he or she has been required to serve as a juror, and does not of itself require the employer to maintain the juror’s current salary or wage.
9.62 It is not known to what extent employers require jurors to use up their annual leave entitlements during their period of service, nor is it clear whether it would be lawful for them to require that an employee does this.83 Having regard to the reasons for employees having an annual leave entitlement, it would seem undesirable for employers to be permitted to take that course. When such matters come to the attention of the Sheriff’s Office, the current practice is to advise employers that requiring employees to use annual leave entitlements in order to serve on a jury amounts to prejudice under the provisions that protect a juror’s employment during jury service.84
9.63 In Victoria, employees who have been summoned as a juror and who have attended court are entitled to be reimbursed by their employer an amount equal to the difference between the amount of compensation for jury service and the amount that they would have been entitled to receive in respect of their ordinary hours of work had they not been summoned for jury service.85 So far as the current research by the Commission shows, Victoria is the only jurisdiction in Australia that has an express general provision which has the effect of ensuring that the salary or wages of jurors is maintained during their jury service.
9.64 State government employees in NSW have been given similar protection by way of a regulation86 and some NSW awards and work place agreements have achieved a similar protection.87 Employers were also required, under Federal awards, to compensate employees for the loss of pay arising from jury service (that is, the usual wage for the period less any jury attendance allowances). However, recent amendments to Commonwealth workplace legislation have removed this protection.88 It has been suggested that this amendment, without any change to the law in NSW, may significantly increase the number of people seeking to avoid jury service.89 It should be noted that the Commonwealth legislation expressly does not exclude State laws relating to “attendance for service on a jury”90 although the extent to which this extends to State law granting jurors an entitlement to be reimbursed by their employers is open to question.91
9.65 The Victorian solution, which involves making employers bear a substantial part of the costs of jury service, does not command general support. Some consider that employers ought not to have to bear the burden of what is essentially a civic responsibility rather than an industrial matter:
a citizen’s civic duty to attend jury service is a reflection of the relationship between a citizen and the community. As such, an individual performing jury service is in no way linked to the employment relationship with an individual employer. The relationship is between the individual and the State. If it can be construed that during the performance of jury duty the individual becomes the employee of the State, then it is the state’s responsibility to compensate the individual appropriately for their service.92
9.66 The New Zealand Law Commission in 2001, commented:
Putting the cost onto employers, particularly for long periods of service, would be a significant burden for them, especially for small businesses. It is possible that this could lead to more employers seeking to have their staff excused from jury service rather than paying for the leave. Given that jury service is a benefit to the community, it seems reasonable that the community, through taxes, should pay for that benefit, rather than putting the burden onto employers.93
Others, however, would counter that “jury service is a civic duty, and corporate citizens also have a part to play”.94
Amount of payment
9.67 In NSW in 1978, the juror allowance for the first five days of a trial was in line with the average weekly minimum wage.95 The NSW Jury Task Force in 1993 was unanimously of the view that attendance allowances were “inadequate” and needed to be increased.96 Payment for actual loss of earnings was considered and rejected as too administratively costly.97 An additional concern with compensating some jurors more than others is that it could create the appearance of unfairness and suggest that the contribution of some jurors is valued more highly than that of others.98 The Task Force, however, concluded that the allowances should be set at the 1985 levels (which were based on the 1982 average weekly minimum wage with the addition of the National Wage Increase of 8.5%), adjusted for movements in the CPI (75% only).99 In 1995, the scale of juror attendance fees was rationalised and the amounts to be paid were increased.100 Since that date the amounts have been increased by regulation on an annual basis so that the current allowances are now 26% greater than they were in 1995.
9.68 In NSW there have recently been calls to increase the allowance substantially, pointing out that the maximum payment of $568.50 per week (after 10 days’ service) is well below the average full time adult weekly earnings of $1,035 per week.101
9.69 The UK Departmental Committee on Jury Service in 1965 gave consideration to the practice then in place of compensating jurors according to the rates set for the attendance of “general witnesses”. It concluded that the rates should be set at a more realistic level, opting for the scale of subsistence allowances for members of local authorities.102
9.70 The English Royal Commission on Criminal Justice in 1993 observed that the compensation offered in England was “wholly inadequate to compensate for loss of earnings in most cases, especially for those who are self-employed”.103 This appears to have been a concern from time to time in most Australian jurisdictions.104 It has been reported that jurors in a recent five months trial in NSW requested an additional week’s allowance because of the effect on their health and well-being.105 Another District Court jury was recently discharged because the jury allowance was insufficient for one juror to meet her financial obligations when her employer stopped her salary for the duration of her jury service.106
9.71 The South Australian Sheriff’s Office in 2002 suggested that inadequate compensation to jurors may be “eroding community confidence in the jury system as a fundamental institution of the criminal justice system”.107 It cited the example of a surgeon summoned for jury service who believed that the low level of juror payments implied that the court system did not value the contribution of jurors. It has also been claimed in that State recently that increasing numbers of people are refusing to perform jury service because it is costing them too much in lost earnings.108 South Australia pays a minimum of $20 per day if the juror is paid a full wage during the jury service together with a further sum of up to $80 upon proof of loss as a result of jury service.
9.72 The Supreme Court of Queensland’s Litigation Reform Commission considered the possibility of setting jurors’ fees within a given range depending on actual economic loss. In this way, jurors who were not engaged in paid employment and who suffered no actual economic loss would be paid the minimum fee. The Commission ultimately rejected any such proposal on a number of grounds, including that it was arguably “inequitable to pay people different rates for performing identical functions.109
9.73 The Victorian Parliamentary Law Reform Committee proposed that the burden of compensation for jury service should be borne by the community rather than by individuals and small businesses. The Committee, therefore, proposed a daily amount based on the average weekly salary.110
9.74 Some other reviews have considered the possibility that a juror should be put “in the same financial position as he or she would have been in but for the jury service”, including payments for overtime.111
Compensation to employers
9.75 One preliminary submission raised the possibility of providing compensation to employers who continue paying employees while they are performing jury service.112 While some may view the contribution by employers of their staff to jury service as part of their civic duty, one submission has been received pointing out that some employers have had to bear the costs of hiring additional staff or paying overtime to existing staff members to cover periods when employees are absent on jury service, and to this extent they are subsidising the system.113
Recoupment of personal expenses
9.76 One preliminary submission raised the possibility of jurors claiming for the fees paid for substitute care rendered necessary by the jury service.114 In New Zealand, jurors are entitled to claim for the actual and reasonable costs of childcare incurred because of attendance for jury service.115
9.77 Such an approach is also possible under the provisions in England and Wales which make allowance for regulations to prescribe payment to a juror for financial loss arising from his or her jury service:
where in consequence of his attendance for that purpose he has incurred any expenditure (otherwise than on travelling and subsistence) to which he would not otherwise be subject or he has suffered any loss of earnings, or of benefit under the enactments relating to social security, which he would otherwise have made or received.116
Travelling allowance
9.77 The provisions for the travelling allowance are as follows:
On each day of attendance, for one journey each way between the place of residence of a person attending for jury service, as shown on the jury roll, and the court or inquest attended, the person is entitled to be paid at the rate of 28.10 cents per kilometre with:
(a) a minimum payment of $3.95 each way (being a minimum payment for 14 kilometres each way), and
(b) a maximum payment of $28.10 each way (being a maximum payment for 100 kilometres each way),
whether or not public transport is used.117
9.79 In 1995 the travelling allowance was based on the “specified journey rate” prescribed by the Public Sector Management Act 1988 (NSW). The 1995 figure followed recommendations by the Jury Taskforce which considered that jurors’ travelling allowances should “reflect, as closely as possible, actual travel costs”.118 The travelling allowance has been adjusted every year since 1995 at the same time that the jurors’ attendance allowances are increased. However, the increase in automotive fuel prices in the period since 1997 is in the order of 84%,119 a substantially larger increase than the 27% increase in the travel allowance in the same period.120 The mileage rate would have to be in the order of 40.6 cents per kilometre in order to reflect changes in the price of fuel since 1997.
9.80 The current system, using a single mileage rate, replaced an earlier arrangement whereby jurors and potential jurors who used public transport rather than private motor vehicles were reimbursed the actual costs of public transport. The previous system was considered inefficient because people had to present their train and bus tickets to Sheriff’s officers for payment. The Jury Taskforce preferred a system based on mileage whereby a computer made all of the necessary calculations and issued automatic payments.121
9.81 In New Zealand, jurors are entitled to claim actual travelling costs to attend for jury service if travelling by public transport.122 If travelling by private motor vehicle, jurors are entitled to claim a travelling allowance and may also claim the actual and reasonable costs of car parking.123
Refreshment allowance
9.82 The provision for the refreshment allowance is as follows:
If a juror in either a civil or criminal matter is released by the trial judge during a luncheon adjournment, the juror is entitled to be paid a refreshment allowance of $6.10.124
9.83 As a general practice, jurors are not released at lunchtime and are supplied with lunches without cost. The refreshment allowance is made available to any juror who does not partake of the food provided by the courts. It is unlikely that this allowance has any relevance for the willingness of people to serve, assuming that the meals are adequate.
9.84 In 1993, the Jury Taskforce recommended that “jurors not be locked up at lunchtime in the absence of special circumstances” and proposed the refreshment allowance so that jurors could make their own arrangements for meals.125 While the refreshment allowance has been included in the regulation, the general practice of the courts has been not to release jurors during the luncheon adjournment.
FOOTNOTES
1. M Findlay, Jury Management in New South Wales (Australian Institute of Judicial Administration Inc, 1994) at 167.
2. Tasmania, Department of Justice and Industrial Relations, Review of the Jury Act 1899 (Legislation, Strategic Policy and Information Resources Division, Issues Paper, 1999) ch 6.
3. Jury Regulation 2004 (NSW) cl 3(1)(a).
4. NSW, Jury Task Force, Preliminary submission at 4.
5. In Victoria it was suggested that in country towns “some people may serve on a jury too often”: Parliament of Victoria, Law Reform Committee, Jury Service in Victoria (Final Report, 1996) at para 4.9.
6. Parliament of Victoria, Law Reform Committee, Jury Service in Victoria (Final Report, 1996) at para 4.16.
7. 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.
8. Tasmania, Parliamentary Debates (Hansard) House of Assembly, 19 August 2003 at 53; F Weston, “Why am I not on jury list?” (letter to the editor) Sun-Herald (8 October 2006) at 30; M J Stocker, Preliminary submission (Ministerial correspondence); G R Williams, Preliminary submission (Ministerial correspondence).
9. United Kingdom, Home Office, Report of the Departmental Committee on Jury Service (Cmnd 2627, 1965) at para 54.
10. United Kingdom, Home Office, Report of the Departmental Committee on Jury Service (Cmnd 2627, 1965) at para 54.
11. Jury Act 1977 (NSW) s 26(3).
12. Australian Business Ltd, Preliminary submission at 2.
13. Juries Act 2003 (Tas) s 27.
14. Tasmania, Department of Justice and Industrial Relations, Review of the Jury Act 1899 (Legislation, Strategic Policy and Information Resources Division, Issues Paper, 1999) ch 6.
15. Australian Business Ltd, Preliminary submission at 2. See also NSW, Office of the Director of Public Prosecutions, Preliminary submission at 5.
16. It was also held that the empanelment could not be saved by Jury Act 1977 (NSW) s 73 which applied where a disqualified or ineligible person was empanelled or where there had been an irregularity or omission or error in the relevant jury roll, card or summons prepared or issued in relation to the trial: R v Brown [2004] NSWCCA 324.
17. NSW, Jury Task Force, Preliminary submission at 3.
18. United Kingdom, The Law and Practice with Regard to the Constitution, Qualifications, Selection, Summoning, &c of Juries (Report of the Departmental Committee, Cd 6817, 1913) Vol 1 at 27.
19. See, eg, United Kingdom, Home Office, Report of the Departmental Committee on Jury Service (Cmnd 2627, 1965) at para 286-288; R E Auld, Review of the Criminal Courts of England and Wales (HMSO, 2001) at 218; Supreme Court of Queensland, Litigation Reform Commission, Reform of the Jury System in Queensland (Report of the Criminal Procedure Division, 1993) at 78; Parliament of Victoria, Law Reform Committee, Jury Service in Victoria (Final Report, 1996) at para 5.2-5.12.
20. NSW, Jury Task Force, Preliminary submission at 3.
21. Jury Act 1977 (NSW) Sch 3 item 13(b).
22. NSW, Jury Task Force, Preliminary submission at 3. If there was to be some monetary impost it may be more appropriate that it take the form of a one day attendance fee equivalent to that payable if the members of the jury who attended had been empanelled.
23. Particularly where they call for an extensive examination on the voir dire or a Basha inquiry: R v Basha (1989) 39 ACrimR 337.
24. See Jury Act 1977 (NSW) s 53. There would appear to have been a practice in England that jurors were required to serve for a fortnight and could sit on multiple trials as required during that period, and for any additional period that is occupied by the trial for which they were empanelled: See England and Wales, Royal Commission on Criminal Justice (Report, 1993) at 136.
25. K Shadbolt, Preliminary consultation.
26. See Jury Act 1977 (NSW) s 51(1)(c).
27. Parliament of Victoria, Law Reform Committee, Jury Service in Victoria (Final Report, 1996) at para 5.12. See also 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. NSW, Jury Task Force, Preliminary submission at 3.
30. Redfern Legal Centre, Preliminary Submission.
31. Jury Act 1977 (NSW) s 42(2).
32. Australian Business Ltd, Preliminary Submission at 2.
33. Jury Act 1977 (NSW) s 38(7) and (8).
34. Jury Act 1977 (NSW) s 38(9).
35. Law Reform Commission of Western Australia, Exemption from Jury Service (Report, Project No 71, 1980) at para 3.20 and 3.68-3.70.
36. Jury Act 1977 (NSW) s 22.
37. Jury Act 1995 (Qld) s 70(8).
38. For example, R v Skaf [2004] NSWCCA 37.
39. Such inquiries are an offence under Jury Act 1977 (NSW) s 68C although the extent to which a juror might lawfully disclose such information, within the existing restrictions contained in Jury Act 1977 (NSW) Part 9 Div 3 are somewhat uncertain.
40. NSW, Report of the NSW Jury Task Force (1993) at 26-36.
41. Parliament of Victoria, Law Reform Committee, Jury Service in Victoria (Final Report, 1996) at para 6.26-6.30.
42. See England and Wales, Royal Commission on Criminal Justice (Report, 1993) at 134; NSW, Report of the NSW Jury Task Force (1993) at 30; M Findlay, Jury Management in New South Wales (Australian Institute of Judicial Administration Inc, 1994) at 175.
43. Usually involving half day sittings on Fridays in lengthy trials.
44. C Merritt, “It’s time to hurry up” Weekend Australian (SA 1st edition) (14 October 2006) at 3.
45. See R E Auld, Review of the Criminal Courts of England and Wales (HMSO, 2001) at 223.
46. Supreme Court of Queensland, Litigation Reform Commission, Reform of the Jury System in Queensland (Report of the Criminal Procedure Division, 1993) at 77-80; NSW, Report of the NSW Jury Task Force (1993) at 12-14; R E Auld, Review of the Criminal Courts of England and Wales (HMSO, 2001) at para 214-227.
47. Subtracting from those summoned for jury service, the people who have been excused for cause and those who have been advised in advance that they are not required.
48. See New Zealand, Law Commission, Juries in Criminal Trials (Report 69, 2001) at para 284.
49. Juries Act 1981 (NZ) s 13(2).
50. Jury Act 1977 (NSW) s 63(1).
51. Jury Act 1977 (NSW) s 64(2)(a).
52. Jury Act 1977 (NSW) s 66.
53. See M Findlay, Jury Management in New South Wales (Australian Institute of Judicial Administration Inc, 1994) at 44.
54. Jury Act 1977 (NSW) s 66(2).
55. L Anamourlis, Preliminary consultation.
56. NSW, Office of the Director of Public Prosecutions, Preliminary submission at 5.
57. Jury Act 1977 (NSW) s 69.
58. Jury Act 1977 (NSW) s 69(2). See also Juries Act 1967 (ACT) s 44AA(2).
59. Jury (Amendment) Act 1947 (NSW) s 5(mm) inserting s 84B into the Jury Act 1912 (NSW).
60. Industrial Arbitration Act 1940 (NSW) s 95. See NSW, Parliamentary Debates (Hansard) Legislative Council, Hon R R Downing, Second Reading Speech, 25 November 1947 at 1413.
61. At common law, dismissing an employee because he or she served as a juror is a contempt because it has a tendency to interfere with the administration of justice: Attorney-General v Butterworth [1963] 1 QB 696. See NSW, Parliamentary Debates (Hansard) Legislative Assembly, Mr Martin, Second Reading Speech, 13 November 1947 at 1124.
62. See, eg, “Jury duty a service out of line with modern life”, Sydney Morning Herald (29 September 2006) at 14 (letter to the editor).
63. C Merritt, “It’s time to hurry up” Weekend Australian (SA 1st edition) (14 October 2006) at 3.
64. See New South Wales v Commonwealth of Australia [2006] HCA 52 at para 948 (Callinan J).
65. K Shadbolt, Consultation.
66. Juries Act 1967 (ACT) s 44AA.
67. K Shadbolt, Consultation.
68. See, eg, Pastrycooks (Victoria) Award 1999 (AW792620CRV) cl 27.
69. Jury Act 1977 (NSW) s 72(1).
70. Jury Regulation 2004 (NSW) cl 5(1).
71. United Kingdom, The Law and Practice with Regard to the Constitution, Qualifications, Selection, Summoning, &c of Juries (Report of the Departmental Committee, Cd 6817, 1913) Vol 1 at 46.
72. See, eg, Parliament of Victoria, Law Reform Committee, Jury Service in Victoria (Final Report, 1996) at para 6.21; T Dick, “Crime doesn’t pay, but then neither does jury duty” Sydney Morning Herald (28 September 2006) at 2.
73. Parliament of Victoria, Law Reform Committee, Jury Service in Victoria (Final Report, 1996) at para 6.25; T Dick, “Crime doesn’t pay, but then neither does jury duty” Sydney Morning Herald (28 September 2006) at 2.
74. Jury Regulation 2004 (NSW) Sch 1 Scale A.
75. See also Jury Regulation 2004 (NSW) cl 5(2).
76. See, eg, Animal Welfare, General (State) Award (2001) 322 NSW Industrial Gazette 531 (Publication No B9691) cl 24(ii); Speedibake Enterprise Agreement 2003 (IRC3/6671; EA04/29) cl 18; Speedo Australia Certified Agreement 2003 (IRC3/5005; EA03/204) cl 5.6(b).
77. NSW Law Reform Commission, Criminal Procedure: The Jury in a Criminal Trial (Report 48, 1986) at para 6.41.
78. NSW, Report of the NSW Jury Task Force (1993) at 41.
79. Public Sector Employment and Management (General) Regulation 1996 (NSW) cl 94.
80. Terms in many awards and enterprise agreements required employees to produce proof of receipt of attendance allowances so that employers could adjust their pay rates accordingly: see, eg, Animal Welfare, General (State) Award (2001) 322 NSW Industrial Gazette 531 (Publication No B9691) cl 24(iii); Speedibake Enterprise Agreement 2003 (IRC3/6671; EA04/29) cl 18; Speedo Australia Certified Agreement 2003 (IRC3/5005; EA03/204) cl 5.6(b).
81. Jury Act 1977 (NSW) s 69(1).
82. See, eg, the recent case of the discharge of a jury in the District Court where an employer stopped the salary of a juror: G Jacobsen, “Juror cries poor and halts trial” Sydney Morning Herald (29 November 2006) at 1. Note that the UK provisions specify that detriment does not include a failure to pay remuneration during the period of jury service unless such payment is required by the juror’s employment contract: Employment Rights Act 1996 (UK) s 43M(3).
83. According to the New Zealand Law Commission, some employment contracts in that country expressly provide that employees must use their annual leave entitlement for jury service: New Zealand, Law Commission, Juries in Criminal Trials (Report 69, 2001) at para 488. Express terms in some NSW awards and enterprise agreements granted employees leave of absence during jury service: See, eg, Animal Welfare, General (State) Award (2001) 322 NSW Industrial Gazette 531 (Publication No B9691) cl 24(i); Speedibake Enterprise Agreement 2003 (IRC3/6671; EA04/29) cl 18; Speedo Australia Certified Agreement 2003 (IRC3/5005; EA03/204) cl 5.6.
84. See para 9.47, above.
85. Juries Act 2000 (Vic) s 52.
86. Public Sector Employment and Management (General) Regulation 1996 (NSW) cl 94.
87. See, eg, Animal Welfare, General (State) Award (2001) 322 NSW Industrial Gazette 531 (Publication No B9691) cl 24; Speedibake Enterprise Agreement 2003 (IRC3/6671; EA04/29) cl 18; Speedo Australia Certified Agreement 2003 (IRC3/5005; EA03/204) cl 5.6.
88. See Workplace Relations Act 1996 (Cth) s 527(2)(f).
89. See Law Society of NSW, “Jury out on IR reforms” (Media release, 30 June 2005).
90. Workplace Relations Act 1996 (Cth) s 16(3)(l).
91. See New South Wales v Commonwealth of Australia [2006] HCA 52 at para 945, 948 (Callinan J).
92. See, eg, Commerce Queensland, Policy Issue - Queensland Government’s Review of Jury Service Up For Comment (2003) at 2.
93. New Zealand, Law Commission, Juries in Criminal Trials (Report 69, 2001) at para 484.
94. Law Society of NSW, “Jury out on IR reforms” (Media release, 30 June 2005).
95. The Australian Bureau of Statistics stopped compiling statistics on the average weekly minimum wage in 1982: NSW, Report of the NSW Jury Task Force (1993) at 38.
96. NSW, Report of the NSW Jury Task Force (1993) at 39.
97. NSW, Report of the NSW Jury Task Force (1993) at 41.
98. See New Zealand, Law Commission, Juries in Criminal Trials (Report 69, 2001) at para 485.
99. NSW, Report of the NSW Jury Task Force (1993) at 39-40.
100. Jury Act 1977 - Regulation 1995 No 43 (NSW) cl 2(b).
101. S Marsden, “Law pay levels for jurors ‘unacceptable’, NSW barristers say” AAP General News Wire (20 October 2006) at 1.
102. United Kingdom, Home Office, Report of the Departmental Committee on Jury Service (Cmnd 2627, 1965) at para 294-296.
103. England and Wales, Royal Commission on Criminal Justice (Report, 1993) at 132.
104. See, eg, Parliament of Victoria, Law Reform Committee, Jury Service in Victoria (Final Report, 1996) at para 6.22.
105. S Marsden, “Law pay levels for jurors ‘unacceptable’, NSW barristers say” AAP General News Wire (20 October 2006) at 1; NSW Bar Association, “Jurors shouldn’t suffer for doing their duty” (Media Release, 20 October 2006).
106. G Jacobsen, “Juror cries poor and halts trial” Sydney Morning Herald (29 November 2006) at 1.
107. South Australia, Sheriff’s Office, South Australian Jury Review (2002) at 18.
108. C James, “Call to increase jury pay” The Advertiser (Adelaide) (21 August 2006) at 6.
109. Supreme Court of Queensland, Litigation Reform Commission, Reform of the Jury System in Queensland (Report of the Criminal Procedure Division, 1993) at 68-70.
110. Parliament of Victoria, Law Reform Committee, Jury Service in Victoria (Final Report, 1996) at para 6.24.
111. Tasmania, Department of Justice and Industrial Relations, Review of the Jury Act 1899 (Legislation, Strategic Policy and Information Resources Division, Issues Paper, 1999) ch 4.
112. NSW, Jury Task Force, Preliminary submission at 4.
113. Australian Business Ltd, Preliminary submission at 2.
114. NSW, Office of the Director of Public Prosecutions, Preliminary submission at 4.
115. Jury Rules 1990 (NZ) r 28(6).
116. Juries Act 1974 (Eng) s 19(1)(b).
117. Jury Regulation 2004 (NSW) Sch 1 Scale B.
118. NSW, Report of the NSW Jury Task Force (1993) at 42.
119. Calculated from the average retail price of 1 litre of unleaded petrol in Sydney: Australian Bureau of Statistics, Average Retail Prices of Selected Items, Eight Capital Cities (6403.0, December 1997); Australian Bureau of Statistics, Average Retail Prices of Selected Items, Eight Capital Cities (6403.0.55.001, June 2006).
120. Calculated from the travelling allowance quoted in Jury Amendment (Attendance Fees) Regulation 1997 (NSW) Sch 1.
121. NSW, Report of the NSW Jury Task Force (1993) at 42.
122. Jury Rules 1990 (NZ) r 28(4).
123. Jury Rules 1990 (NZ) r 28(4) and (5).
124. Jury Regulation 2004 (NSW) Sch 1 Scale C.
125. NSW, Report of the NSW Jury Task Force (1993) at 44.
