Jury Research and Practice Conference
Brisbane, Queensland, 14 November 2008
Joseph Waugh
Legal Officer, NSW Law Reform Commission
The NSWLRC has just considered exemption from jury service and the Queensland Law Reform Commission is about to consider it.1 This area of law reform has been characterised by incremental advances and retreats. This is justified in part by the important considerations that must be balanced when reforming any aspect of the law relating to juries, not least of which is any change that may impact on the fairness of the trial.
The NSWLRC last year completed a report on Jury Selection.2 It was released in January this year.
The Attorney General had asked the Commission to report on the “operation and effectiveness” of the jury selection system and, in particular, whether “the current statutory qualification and liability for jury service remain appropriate”.
Leaving aside the question of disqualification based on criminal charge and conviction, I will focus on the categories of ineligibility and exemption as of right. Each of these two categories has a particular consequence. Those who are ineligible cannot serve and their presence on a jury, however inadvertent, will generally lead to invalidity of the trial if the irregularity is discovered before verdict. Exemption as of right, on the other hand, allows people to choose whether they serve or not. Most people appear to exercise that right when offered.
There were two general concerns when considering these categories:
- First, it is thought that juries are not as representative of the community as they could be; and
- Secondly, it is thought that the burden of jury service was being placed unequally on some parts of the community.
Representativeness is seen as an essential feature of trial by jury. It is not about achieving representation by particular groups on particular juries but about ensuring that everyone who is qualified to serve, regardless of background, age, race or ethnic origins, has an opportunity to serve.3 Reforms in NSW in both 1977 and 1996 were said to be motivated by the fact that the jury rolls in NSW had become unrepresentative of the general community.4 However, studies have tended to suggest otherwise.5
The LRC’s report is also set in the context of the recommended and actual winding back of the categories of exemption not only in NSW but in the other States and also in overseas jurisdictions.
The Commission’s report is the most recent in a long line of reviews in NSW going back over 30 years.6
In recent years, there have been substantial reviews and reforms in Victoria, Tasmania and England and Wales.7 Over the past 30 years reviews in Western Australia, Queensland, New Zealand and South Australia have all recommended winding back of the exemption provisions to some degree.8
The first list of exemptions from jury service in NSW was enacted in 1829.9 The exempt included judicial officers, members of the legislature, government office holders, clergy, practising lawyers, gaolers, medical practitioners and apothecaries, military and naval officers on full pay, licensed pilots and masters of vessels, police, school masters and parish clerks. Eligibility for jury service was expanded in 1947 when the property qualification was removed and the right to serve on juries was extended to women if they wished to apply,10 however, the exemptions remained more or less static, with the addition of one or two other categories, until 1977.
The current Jury Act,11 which came into force in 1977, was the first major change to categories of exemption in NSW in 150 years.
The 1977 Act drew on a 1965 English review which set up the categories of disqualification, ineligibility and exemption as of right.12 The 1977 Act made women, bank officers and most state public servants liable to serve for the first time. Following the English reforms, rather than removing some categories altogether, the 1977 Act created a category of those who could serve but who could claim exemption if they wished: including clergymen, practising dentists, medical practitioners, pharmacists and members and secretaries of all statutory corporations, boards and authorities, people over the age of 65, pregnant women, carers of the aged or ill and children under the age of 18. Over the next couple of years a number of other office holders and employment groups were added to the list of the ineligible.13 The least logical being commercial agents and private inquiry agents and members of the Security Service of the State Rail Authority (SRA). (Many of these exemptions would appear to be the result of lobbying rather than a desire to improve the composition of the jury.)
In 1986, the NSWLRC completed a major review of juries in criminal trials in NSW.14 The LRC concluded that “the group of people from which a jury is selected in a modern criminal trial in NSW is reasonably representative of the community at large”.15 This was confirmed by empirical studies conducted in 1985.16 However, amendments passed in 1987 extended ineligibility for some groups.17 The right to claim exemption was also extended to members of the rescue corps established under the Mines Rescue Act 1925 and various officers in the Mechanical Branch of the SRA.
By 1993, the narrowing of the grounds was once again seen as desirable. At the time, 42% of those selected for the most recent draft jury roll for the Sydney district were removed on the basis of disqualification, ineligibility or exemption as of right. The NSW Jury Task Force concluded that juries were not representative of the community as a whole because of the numbers who were disqualified, ineligible and entitled to exemption as of right.18 The Task Force noted that there were already pressures to increase the categories of exemption – for example from the State Chamber of Commerce for business owner-operators and sole traders. The Task Force decided that to create further categories of exemption would place a greater burden on those remaining and that business people etc were already adequately catered for by the system of excuse and deferral.
The task force recommended a reduction in the grounds for exemption in accordance with the then, yet to be released AIJA report.19 The AIJA report concluded that there was no logic to the categories of exemption or exclusion and recommended a significant reduction.20
Following these reports, the last significant (albeit relatively modest) amendments to the relevant provisions of the Jury Act were made in 1996.21 These removed from the list of ineligible people – Departmental Heads and Members of the Public Service Board, commercial agents and private inquiry agents and the spouses of various ineligible people.
Employees of various departments such as police, corrective services, Attorney General’s, etc were reclassified according to function, rather than employer as were the employees of various emergency and rescue services who could claim exemption as of right.
The categories of those who could claim exemption as of right was also reduced slightly so that 65-69 year olds and members and secretaries of statutory corporations, boards and authorities could no longer claim exemption.
The LRC’s recent report has recommended a further winding back of categories of exemption. This is more in line with the current regimes in Victoria, Tasmania and SA.22
The Commission has recommended that the following no longer be ineligible:
- Officers and other staff of the state parliament;
- Legal practitioners except for those employed in the public sector in prosecution or defence work;
- Public sector employees involved in the administration of justice;
- People with sickness, infirmity or disability who can now claim to be excused for good cause; and
- Judicial officers and police and other law enforcement officers but only 3 years after they cease to hold the relevant appointments.
The Commission has also recommended the abolition of the categories of those entitled to claim exemption as of right – leaving them to apply, on a case by case basis, to be excused for good cause. This raises questions of establishing appropriate administrative procedures to deal with their applications to be excused.
Who is left? Serving and recent judicial officers, members of the Executive Council (ie Cabinet), serving and recent police and other law enforcement officers, corrective services and juvenile justice officers, the Ombudsman and Deputy Ombudsman, public sector lawyers engaged in prosecution, defence and criminal appeal work, and people who meet the exemption based on previous jury service. (MPs are a special category because the ancient immunities of members of parliament will allow them to claim exemption if called.)
Is it possible to go further? Other jurisdictions have. For example, England and Wales and New York.23
The changes in England and Wales were the result of Lord Justice Auld’s proposals in his 2001 review of the Criminal Courts of England and Wales.24 His view was that “no-one should be automatically ineligible or excusable from jury service simply because he or she is a member of a certain profession or holds a particular office or job”.25 In particular he dealt with concerns about “those closely connected with the criminal justice system” such as police or prosecutors who might not “approach the case with the same openness of mind as someone unconnected with the legal system” : “I do not know why the undoubted risk of prejudice of that sort should be any greater than in the case of many others who are not excluded from juries and who are trusted to put aside any prejudices they may have. Take, for example shopkeepers or house-owners who may have been burgled, or car owners whose cars may have been vandalised, many government and other employees concerned in one way or another with public welfare and people with strong views on various controversial issues, such as legalisation of drugs or euthanasia.”.26
Lord Justice Auld’s recommendations have been implemented so that in England and Wales there is now only a list of disqualifications based on criminal charge and conviction27 and a list of qualifications requiring a potential juror to be enrolled as an elector, aged between 18 and 70 years and not “mentally disordered”.28
It is interesting to note that, since the NSWLRC Report was handed down, the Courts in England and Wales have qualified some of the Auld reforms.29 The view is that in removing the categories of ineligibility, Parliament did not intend to remove the accused’s right to a fair trial. Part of this right is that the tribunal of fact must be seen to be impartial.
The Courts have noted that there is nothing that renders jurors who are police, employees of the Crown Prosecution Service and prison officers inherently biased. However, an assessment must be made on the facts of each case.
So, in the case of police jurors an assessment must be made of such matters as whether there is a conflict over police evidence in the case and whether the police officer is acquainted with any of the police witnesses. In the case of the Crown Prosecution Service, the Courts have concluded that CPS employees should not be empanelled in cases where the CPS is the prosecuting authority. In the case of Prison officers the courts have asked whether the officer has, by virtue of his or her position, come into possession of information about the defendant.
A serious problem with all of this is the legal challenges that may arise where the information about a juror’s occupation is brought to the attention of the authorities during or after the trial. The Court of Appeal, acknowledging the need for courts to make a decision on a case by case basis, has called for procedures to identify jurors who are from the previously mentioned categories, so that the judge can make a proper assessment of the appearance of bias in a particular case before empanelment.
The fair trial issue has added importance in England because of the European Convention’s fair trial requirements. But it is an established principle of Australian law that the accused has a right not to be tried unfairly.30 There is little doubt that a partial tribunal would breach this requirement.
The LRC recommendations as they currently stand have preserved ineligibility for the most sensitive of the categories and have therefore saved NSW courts from the need to conduct a case by case assessment when people from these categories are presented for empanelment.
FOOTNOTES
1. Queensland Law Reform Commission, “Jury Selection Review” (terms of reference issued 7 April 2008): «http://www.qlrc.qld.gov.au/publications/Terms_of_reference_Jury_Selection__PDF_version.PDF».
2. NSWLRC, Jury Selection, Report 117 (2007).
3. NSWLRC, Jury Selection, Report 117 (2007) [1.24]. See also New Zealand, Law Commission, Juries in Criminal Trials, Report 69 (2001) [135].
4. NSW, Parliamentary Debates (Hansard) Legislative Assembly, 24 February 1977, 4475; NSW, Report of the NSW Jury Task Force (1993) 23. See also M Findlay, Jury Management in New South Wales (Australian Institute of Judicial Administration, 1994) 173.
5. See, eg, J Horan and D Tait, “Do juries adequately represent the community? A Case Study of Civil Juries in Victoria” (2007) 16 Journal of Judicial Administration 179; and J Goodman-Delahunty, N Brewer, J Clough, J Horan, J R P Ogloff, D Tait, and J Pratley, Practices, Policies and Procedures that Influence Juror Satisfaction in Australia, Research and Public Policy Series No 87 (Australian Institute of Criminology, 2008).
6. See, eg, NSWLRC, Conscientious Objection to Jury Service, Report 42 (1984); NSWLRC, Criminal Procedure: The Jury in a Criminal Trial, Report 48 (1986); NSW, Report of the NSW Jury Task Force (1993), M Findlay, Jury Management in New South Wales, (Australian Institute of Judicial Administration Inc, 1994); NSWLRC, Blind or Deaf Jurors, Report 114 (2006).
7. Victoria: Juries Act 2000 (Vic), and Parliament of Victoria, Law Reform Committee, Jury Service in Victoria, Final Report (1996); Tasmania: Juries Act 2003 (Tas), and Tasmania, Department of Justice and Industrial Relations, Review of the Jury Act 1899, Issues Paper (Legislation, Strategic Policy and Information Resources Division, 1999); England and Wales: Criminal Justice Act 2003 (Eng), R E Auld, Review of the Criminal Courts of England and Wales (HMSO, 2001).
8. Law Reform Commission of Western Australia, Exemption from Jury Service, Report, Project No 71 (1980); Supreme Court of Queensland, Litigation Reform Commission, Reform of the Jury System in Queensland, Report of the Criminal Procedure Division (1993); New Zealand, Law Commission, Juries in Criminal Trials, Report 69 (2001); and South Australia, Sheriff’s Office, South Australian Jury Review (2002).
9. Juries for Civil Issues Act of 1829 (NSW) (10 George IV No 8) s 2-5
10. Jury (Amendment) Act 1947 (NSW).
11. Jury Act 1977 (NSW).
12. United Kingdom, Home Office, Report of the Departmental Committee on Jury Service, Cmnd 2627 (1965). Other Australian jurisdictions also adopted these categories: see, eg, Parliament of Victoria, Law Reform Committee, Jury Service in Victoria, Final Report (1996) Vol 1, [3.2]; Law Reform Commission of Western Australia, Exemption from Jury Service Report, Project No 71 (1980) [3.7].
13. See, eg, Jury Act (Amendment) Regulation 1980 (NSW) cl 3 and cl 4;
14. NSWLRC, Criminal Procedure: The Jury in a Criminal Trial, Report 48 (1986).
15. NSWLRC, Criminal Procedure: The Jury in a Criminal Trial, Report 48 (1986) [4.2].
16. NSWLRC, The Jury in a Criminal Trial: Empirical Studies, Research Report 1 (1986).
17. Jury (Amendment) Act 1987 (NSW) Sch 1(23).
18. NSW, Report of the NSW Jury Task Force (1993) 23.
19. NSW, Report of the NSW Jury Task Force (1993) 25.
20. M Findlay, Jury Management in New South Wales (Australian Institute of Judicial Administration, 1994) 172-174.
21. Jury Amendment (Qualifications) Regulation 1996 (NSW) Sch 1.
22. Juries Act 2000 (Vic) Sch 2; Juries Act 1927 (SA) Sch 3; and Juries Act 2003 (Tas) Sch 2.
23. See The Jury Project, Report to the Chief Judge of the State of New York (1994).
24. R E Auld, Review of the Criminal Courts of England and Wales (HMSO, 2001).
25. R E Auld, Review of the Criminal Courts of England and Wales (HMSO, 2001) 140.
26. R E Auld, Review of the Criminal Courts of England and Wales (HMSO, 2001) 147.
27. Juries Act 1974 (Eng), s 1(3), Sch 1.
28. Juries Act 1974 (Eng), s 1(1).
29. R v Abdroikof [2007] 1 WLR 2679; R v Khan [2008] 3 All ER 502.
30. See Dietrich v The Queen (1992) 177 CLR 292, 299.
