Report 117 (2007) - Jury selection - Law Reform Commission : Lawlink NSW

2.1 There are a number of terms employed to indicate the inclusion or exclusion of people from among those who may serve as jurors. People who are permitted to serve as jurors are generally referred to as being “qualified” or “eligible” to serve. Those who are not permitted to serve as jurors are generally referred to as being “disqualified” or “ineligible” to serve. In NSW at present, the two different terms of exclusion, “disqualification” and “ineligibility” refer to distinct groups. The basic distinction is that people who are excluded because of criminal history are “disqualified”, while people who are excluded for other reasons, such as occupation or incapacity, are “ineligible”. The NSW regime of qualification, disqualification and ineligibility follows the essential features of the model adopted by the Departmental Committee on Jury Service in England and Wales in 1965.¹

2.2 Categories of inclusion and exclusion can often be different sides of the same coin. For example, people who are unable to speak English can be excluded by either a statement that such people are ineligible, or by a statement that only people who can speak English are qualified to serve. Also, the qualification that, for example, people be enrolled as electors can also carry with it the disqualifications that apply to enrolment as an elector, such as, mental incapacity or imprisonment for more than 12 months.

2.3 The composition of the jury and the obligations and incidents of service have changed from time to time to keep pace with contemporary demands and conditions,² as is illustrated in the following brief history of jury service in NSW.

2.4 There is some doubt whether the right to trial by jury was extended to NSW’s first British settlers in what was then a convict colony.³The free settlers persistently petitioned the Governor and the United Kingdom administration for the granting of the right, but, apart from the use of juries by coroners, it was not until the 1820s that anything approximating jury trial was available in the Colony. In 1823, the Imperial New South Wales Act provided for a Supreme Court. In that court, criminal trials were to be conducted by a judge and a jury of seven commissioned officers of the army or navy.⁴ Civil actions, which were otherwise to be conducted by the Chief Justice and two assessors (who needed to be magistrates or justices of the peace), could be tried by a jury of 12 men, provided the parties to the action agreed to such a course.⁵ The property qualification for membership of such a jury was the possession, in NSW, of a freehold estate of 50 acres or more of cleared land or a freehold dwelling house or tenement valued at �300 or more.⁶ The 1823 Act also allowed for the establishment of a lower court structure, consisting of Courts of General or Quarter Sessions.⁷ The criminal matters in Quarter Sessions were tried by juries of 12, following an order by the NSW Supreme Court, in 1824, that the justices of the peace in the district of Sydney were to conduct jury trials, as was the practice in England. This included the compilation of jury lists.⁸ In practice, the justices of the peace excluded all people with prior criminal convictions.⁹

2.5 In 1828, the New South Wales Constitution Act continued the arrangements for the Supreme Court,¹⁰ but this time gave the Court discretion to order a jury trial in civil matters on the application of one of the parties.¹¹ The Act also effectively terminated the trial of criminal matters by civilian juries in the Courts of Quarter Session, but left open the possibility that provision for such trials could be made by local ordinance.¹²

2.6 In 1829, NSW legislation first provided for the qualification of jurors, for exemption (with their consent), and for disqualification.¹³ Civil juries were to be constituted by 12 people. Males aged between 21 and 60 having real estate producing income of at least �30 per annum, or personal property worth at least �300, were competent jurors. Those who were exempt included judicial officers, Members of the Legislative Council, people holding offices under the Government, clergy, practising lawyers, gaolers, medical practitioners and apothecaries, military and naval officers on full pay, licensed pilots and masters of vessels employed in the service of the Crown, police, school masters, and parish clerks. The Act further provided for parties to request a special jury comprising justices of the peace, bank directors, city councillors and people of the degree of esquire or higher.¹⁴ An Act passed in 1832 continued the 1829 arrangements,¹⁵ but also provided for criminal trials by 12 civilians in a limited range of cases where the Governor, members of the Executive Council, or Military or Naval officers had an interest.¹⁶

2.7 In 1833, an accused arraigned in the Supreme Court was given the right to request a trial by a jury of 12 civilians, instead of trial by a military jury of seven.¹⁷ The criminal juries composed of civilians were made subject to the same exemptions as the civil juries, but the disqualification on the grounds of criminal conviction was removed, except in the case of those serving current sentences or who had been convicted of any treason, felony or other infamous crime.¹⁸ The 1833 Act also made civilian juries available to the Courts of Quarter Sessions once again.¹⁹

2.8 Military juries were finally abolished altogether in 1839 and all criminal issues of fact were to be tried by juries of 12.²⁰Civil juries of four (special juries) were introduced in 1844, the parties still retaining an option to apply for juries of 12, called “common juries”. Trial by assessors was then abolished.²¹

2.9 The law on juries and jurors was consolidated in 1847,²² incorporating the liability of all men over 21 years of age with property of prescribed value to serve on common juries, and retaining provisions for special juries. The 1847 Act provided that certain people were “absolutely freed and exempted from being returned and from serving upon any juries whatsoever” and were not to be “inserted in the lists” prepared under the Act.²³ These people included judicial officers, members of the Executive and Legislative Councils, certain public servants and officers of the City of Sydney, clergy, practising lawyers, practising medical practitioners and pharmacists, military and naval personnel on full pay, licensed pilots and masters of vessels, police, schoolmasters and parish clerks, household officers and servants of the Governor, certain bank employees and people who were “incapacitated from discharging the duty of jurymen by disease or infirmity”. People over 60 years of age were also entitled to claim an exemption.

2.10 The Jury Act 1901 (NSW) adopted the adult propertied male qualification for jury service,²⁴disqualifying unnaturalised men resident in NSW for less than seven years and those convicted of named serious crimes.²⁵The Act listed those qualified and liable who could claim an exemption, mirroring more or less the 1847 provisions, but adding gaolers and certain members of the “volunteer force”.²⁶ The Act provided that all crimes and misdemeanours prosecuted in the Supreme Court, the Circuit Courts and the Courts of Quarter Sessions were to be tried by juries of 12.²⁷Civil issues of fact and assessments of damages were still to be tried by special juries of four,²⁸unless either party applied for a jury of 12.²⁹The police were responsible for compiling jury rolls at the direction of the Sheriff.

2.11 These provisions were repeated in the Jury Act 1912 (NSW), which was not repealed until 1977, when the present Jury Act was passed. In 1947, the right to serve on juries was extended to women if they applied,³⁰ and the property qualification was abolished.³¹At the same time, the special jury was abolished.³²The provision requiring special petty sessions to be called to consider the jury lists for each jury district and to remove those who were disqualified and exempt was amended to give the justices the power to remove “the names of all men who in the opinion of the justices are, from the nature of their calling, liable to suffer undue hardship from being called to serve as jurors or whose call so to serve would occasion undue public inconvenience”.³³ In 1968, it became obligatory for women to be included on the jury roll, but a woman could elect to discontinue her liability.³⁴

2.12 When the current Jury Act was introduced in 1977, the Attorney General stated that the stage had been reached where the jury rolls then in use were not truly representative of the ordinary citizen because of an outmoded selection system and the proliferation of people who could claim exemption from jury service.³⁵ The primary aim of the new Act was to ensure:

2.14 In order to qualify as a juror, a person must be enrolled as an elector for the NSW Legislative Assembly and not fall within one of the categories of disqualification or ineligibility.

2.15 In NSW, “every person who is enrolled as an elector for the Legislative Assembly... is qualified and liable to serve as a juror”.³⁷ This is dependent upon age and citizenship. The requirement of citizenship arises from the fact that electoral qualification extends only to citizens and British subjects who were enrolled as electors immediately before 26 January 1984.³⁸ Permanent residency does not suffice. Citizens over the age of 18 years are qualified to vote³⁹ and are, therefore, qualified to be enrolled as jurors.

2.16 In NSW, a number of people, despite being citizens and aged 18 years or over, are disqualified from being enrolled as electors⁴⁰ and, as a result, are not qualified to serve as jurors.⁴¹ They are:⁴²

2.18 The electoral roll is generally accepted as the basis from which jurors are selected. However, some submissions supported supplementing the roll by reference to other databases. These submissions dealt with two distinct problems – the problem of under-enrolment or incorrect enrolment of those who are already qualified to register as electors; and the problem of resident non-citizens not being entitled to serve.

2.19 The problem of under-enrolment. Concerns have been expressed that sole reliance upon the electoral roll may give rise to a significant under-representation on juries of a number of groups, most significantly Indigenous people and young people.⁴⁵ There is precedent in the United States for supplementing the jury lists by reference to other databases to include citizens who have otherwise not enrolled to vote.⁴⁶

2.20 As already noted, Indigenous people are generally less likely than other members of the community either to be enrolled as electors or enrolled at the correct address, and this is likely to be one of the contributing factors to their apparent under-representation on juries.⁴⁷

2.21 It is also possible that a significant number of young people aged 18 to 25 years are currently not being called on to serve as jurors because they have not been correctly enrolled. A sample audit undertaken by the Australian Electoral Commission in March 2006 showed that 93.6% of the eligible population were enrolled for the correct electoral division. However, the Electoral Commission also estimates that the participation of eligible 18 to 25 year olds at 30 June 2006 was only 76.7%.⁴⁸ On the other hand, figures provided by the Sheriff’s Office for the 2005-2006 financial year show only a substantial under-representation of 18 and 19 year-olds, with people aged 20-41 years being relatively evenly represented across that age group. The 20-41 years age group, however, appears to be relatively under-represented on juries compared with those aged 42-59 years.

2.22 The under-representation in particular age groups is likely to be due to a number of factors including their mobility, child care responsibilities, tardiness in enrolling to vote between electoral cycles, delays in including updated electoral information in jury lists, and to the fact that those in their late teens and twenties may be excused from service because of TAFE and university commitments.

2.23 The situations described above could be alleviated by accessing more up-to-date electoral data for the purpose of summoning jurors, by cross-checking with records from other government agencies for current addresses, and by some of the procedures which we later examine in relation to the exercise of the discretion to excuse jurors for cause. These matters are dealt with more fully in chapter 7.

2.24 Permanent residents and those with temporary visas. There have been various proposals in other Australian jurisdictions to extend eligibility for jury service to permanent residents,⁴⁹ and several submissions supported such a change.⁵⁰ Reasons offered included that:

2.25 Although there was some support for allowing permanent residents to serve as jurors, there was no support for visitors or holders of temporary visas doing so.⁵⁴ Several submissions recognised that the inclusion of permanent residents would involve considerable administrative complexity, since there is no readily accessible database from which they could be selected.⁵⁵ It was noted that the alternative of allowing permanent residents to register to serve would undermine the principle of random selection,⁵⁶ while one submission suggested that citizenship should continue to be an important requirement since its acceptance indicates a willingness to participate in the duties of citizenship.⁵⁷

2.26 It should also be noted that, since 95% of people living in Australia are citizens (and 75% of those who were born overseas are citizens),⁵⁸ the problem of apparent under-representation, particularly among more recent arrivals, may be more due to the requirement that jurors understand English⁵⁹ and to the exercise of the right of peremptory challenge⁶⁰ than to them not acquiring status as an elector.

2.27 Commission’s conclusion. While it would be desirable to increase the involvement of some minority groups so as to reinforce the representative nature of juries, it would seem to be impractical and unduly expensive to include permanent residents, due to the absence of any accessible and up to date listing of their names and current addresses.⁶¹ Otherwise, we are satisfied that citizenship should remain the criterion for jury eligibility, since it represents an acceptance of the laws of the community and a commitment to important mutual rights and obligations. We do not see any case for pursuing those who are eligible but neglect to enrol as electors; nor do we see any case for allowing temporary residents to serve as jurors.

2.28 In NSW, a person is currently disqualified from serving as a juror⁶² if he or she has been subject to aspects of the criminal justice system, including if they have served any part of a sentence of imprisonment in the past 10 years, or are subject to certain orders of a court pursuant to a criminal charge or conviction, including a remand in custody and a release on bail pending trial or sentence. These categories of disqualification are dealt with in Chapter 3.

2.29 Currently, in NSW, a person is ineligible to serve as a juror⁶³ if he or she falls within a number of occupational categories. These include the Governor, judicial officers and coroners, Members of Parliament and the Executive Council, officers and other staff of the Houses of Parliament, Australian lawyers, the Ombudsman and deputy Ombudsman. Also included are public sector employees engaged in law enforcement, criminal investigation, the provision of legal services in criminal cases and the administration of justice or penal administration, as well as former members of certain of the professions and occupations mentioned. The categories of ineligibility include, additionally, those who are “unable to read or understand English” and those who are “unable, because of sickness, infirmity or disability, to discharge the duties of a juror”.

2.30 A person is also ineligible if he or she is exempted under the Jury Exemption Act 1965 (Cth), which excludes various Commonwealth office holders and employees.⁶⁴

2.31 All of these categories of ineligibility are dealt with in Chapters 4 and 5 of this Report.

2.32 There would appear to be no point in maintaining separate headings of disqualification and ineligibility since they have the same consequences, namely, an inability to serve as a juror, and a potential for prosecution for any failure to inform the Sheriff of any applicable ground of disqualification or ineligibility,⁶⁵ or for the provision of false or misleading information to the Sheriff when claiming to be disqualified or ineligible.⁶⁶ The validity of a jury verdict, once delivered, does not depend upon any distinction between these headings since it will not be invalidated only by reason of the fact that a juror was disqualified from serving or was ineligible to do so.⁶⁷ This may reflect the fact that most, if not all, of the categories of disqualification and ineligibility largely depend on self-reporting, since the Sheriff currently has limited power or opportunity to inquire into the background of potential jurors. Otherwise, the saving provision is designed to achieve a finality in litigation.

2.33 Submissions generally agreed that there is no need to maintain the distinction between disqualification and ineligibility for jury service.⁶⁸

2.34 We see merit in combining the categories previously listed under “disqualification” and “ineligibility” into a single heading of exclusion from jury service. This is the case in Queensland,⁶⁹ where it was recommended in 1993 that there be only one category of automatic exemption that encompasses both disqualification and ineligibility.⁷⁰

2.35 For the remainder of this Report, when referring to the existing law, we will continue to use the categories of ineligibility and disqualification. However, when making recommendations for reform, we will refer to the single concept of “exclusion”.

2.36 We also see merit in revising and removing some of the categories that currently fall within these separate headings, either because we consider that they are unjustified or because we consider that greater definition is required.

2.37 In reducing the categories of exclusion, it should be noted that some people are currently excluded because they were considered to be those “whose professional or expert duties are so important to the community and so exacting that they ought not to be permitted to serve”.⁷¹ However, the 1993 report of the NSW Jury Task Force observed that, while few would argue with some exclusions, it was “difficult to understand why a number of these groups should continue to be ineligible to serve as jurors”.⁷²

2.38 The 1994 Australian Institute of Judicial Administration review of jury management in NSW noted that the existing categories of ineligibility “may not only create a non-representative jury roll, but also reduce the franchise in such a way that the burdens of jury service, and its challenges, are not evenly shared among the citizens of New South Wales”.⁷³

2.39 Other reviews have consistently questioned the assumptions underlying many of the categories of those who are excluded⁷⁴ and recommended a reduction in the categories.⁷⁵ Similar concerns exist in relation to the far-reaching grounds of disqualification arising by reason of the potential juror having a criminal conviction or other contact with the criminal justice system.

2.40 The trend in other States, and in England and Wales, has been to reduce the number of exemptions that are available, including categories of ineligibility. For example, Tasmania and SA have substantially reduced these categories,⁷⁶ as has Victoria.⁷⁷ In England and Wales, the categories of ineligibility formerly included in the Juries Act 1974 (Eng) have been replaced by a list of qualifications. These include that a juror be registered as a Parliamentary or local government elector, be not less than 18 nor more than 70 years of age, have been ordinarily resident for any period of at least five years since attaining the age of 13, and not be a “mentally disordered person”.⁷⁸ There is also a list of disqualifications based on criminal charge or conviction.⁷⁹

2.41 Both England and Wales and the State of New York provide a precedent for the removal of most or all categories of exemption arising by reason of a juror’s office or employment, and the substitution of a system permitting potential jurors to be excused for good cause, with or without deferral.⁸⁰ We propose a system of excuse and deferral in chapter 7.⁸¹

2.42 We are of the view that limiting the current categories of exclusion would assist in widening the jury pool and spreading the burden of service. We next consider how these categories should be limited or modified.

Table of contents

1. The UK recommendations were also adopted in other Australian jurisdictions. For example, in Victoria: Parliament of Victoria, Law Reform Committee, Jury Service in Victoria, Final Report (1996) Vol 1, [3.2]. See also Law Reform Commission of Western Australia, Exemption from Jury Service Report, Project No 71 (1980), [3.7].

3. R v Valentine (1871) 10 SCR 113, 133; Myerson v Smith’s Weekly Publishing Co Ltd (1924) 41 WN (NSW) 58, 59; and R W Miller and Co v Wilson (1932) 32 SR (NSW) 466, 475. See also J M Bennett, “The Establishment of Jury Trial in New South Wales” (1961) 3 Sydney Law Review 463, 463-464.

8. R v The Magistrates of Sydney (NSW Supreme Court, 14 October 1824, Forbes CJ, reported in Australian, 21 October 1824). See also G D Woods, A History of Criminal Law in New South Wales: The Colonial Period, 1788-1900 (Federation Press, 2002), 57.

9. G D Woods, A History of Criminal Law in New South Wales: The Colonial Period, 1788-1900 (Federation Press, 2002), 58.

33. Jury Act 1912 (NSW) s 13(3), inserted by Jury (Amendment) Act 1947 (NSW) s 5(d)(i).

40. This does not include the Commonwealth provisions which exclude from Commonwealth electoral rolls people who are members of proscribed “unlawful” organisations: Crimes Act 1914 (Cth) s 30FD.

43. We note that the High Court has recently held invalid amendments in 2006 to the Commonwealth Electoral Act 1918 (Cth) that rendered ineligible to vote prisoners serving any sentence of imprisonment for a federal offence, while upholding the validity of the pre-2006 legislation which confined such ineligibility to prisoners serving a sentence of three years or longer: see Roach v Electoral Commissioner �http://www.highcourt.gov.au/media/Roach� at 3 September 2007. The reasons for the decision are unavailable at the date of this Report, but seem unlikely to apply to the NSW legislation considered here.

44. This category presumably applies to British subjects who were on the electoral roll before 26 January 1984. It was added as part of a series of amendments in Parliamentary Electorates and Elections (Amendment) Act 1982 (NSW) which resulted from a meeting of Commonwealth and State ministers which dealt with the discrimination involved in including British subjects on the electoral rolls but excluding permanent residents of non-British origin.

45. NSW Public Defender’s Office, Submission, 2; Redfern Legal Centre, Submission, 14; NSW Bar Association, Submission, 1; J Goldring, Submission, 1; Aboriginal Legal Service, Submission.

46. For example, in New York, the Commissioner of Jurors may refer to “such other available lists of the residents of the county as the chief administrator of the courts shall specify, such as lists of utility subscribers, licensed operators of motor vehicles, registered owners of motor vehicles, state and local taxpayers, persons applying for or receiving family assistance, medical assistance or safety net assistance, persons receiving state unemployment benefits and persons who have volunteered to serve as jurors by filing with the commissioner their names and places of residence”: New York, Judiciary Law (Consol 2007) � 506.

49. Supreme Court of Queensland, Litigation Reform Commission, Reform of the Jury System in Queensland, Report (Criminal Procedure Division, 1993), 6; Parliament of Victoria, Law Reform Committee, Jury Service in Victoria, Final Report (1996), [3.7]-[3.11].

50. NSW Bar Association, Submission, [3]; Office of the DPP (NSW), Submission; Legal Aid Commission of NSW, Submission, 3-4; NSW Public Defender’s Office, Submission, 2; M J Stocker, Submission, 4; NSW Young Lawyers, Submission, 2.

55. Legal Aid Commission of NSW, Submission, 4. NSW Bar Association, Submission, [5]; NSW Jury Task Force, Submission, 1.

58. Australian Bureau of Statistics, Measures of Australia’s Progress (1370.0, 2004). It should be noted that there is a high level of citizenship among some nationalities, eg, Greece (98%), Hungary (97.1%), the Lebanon (97%), Egypt (96.3%) and Vietnam (96%). Nationalities with sizeable numbers of non-citizens include: UK, New Zealand, Italy, Malaysia, Germany and the People’s Republic of China: Australia, Department of Immigration and Multicultural Affairs, Population Flows: Immigration Aspects (2007), 95.

67. Jury Act 1977 (NSW) s 73. It should be noted, however, that, if the disqualification or ineligible status of a juror is identified before verdict, the trial is a nullity: Petroulias v The Queen [2007] NSWCCA 134.

68. NSW Bar Association, Submission, [9]; NSW Public Defender’s Office, Submission, 3; Redfern Legal Centre, Submission, 5; G J Samuels, Submission; NSW Jury Taskforce, Submission, 1; NSW Young Lawyers, Submission, 4. But see J Goldring, Submission, 2.

70. Supreme Court of Queensland, Litigation Reform Commission, Reform of the Jury System in Queensland, Report of the Criminal Procedure Division (1993), 3-4.

71. NSW, Parliamentary Debates (Hansard) Legislative Assembly, 24 February 1977, 4478, quoting United Kingdom, Home Office, Report of the Departmental Committee on Jury Service, Cmnd 2627 (1965), [93].

73. M Findlay, Jury Management in New South Wales (Australian Institute of Judicial Administration Inc, 1994), 173.

74. See United Kingdom, Home Office, Report of the Departmental Committee on Jury Service, Cmnd 2627 (1965), [98]; NSW, Report of the NSW Jury Task Force (1993), 23-25; Supreme Court of Queensland, Litigation Reform Commission, Reform of the Jury System in Queensland, Report of the Criminal Procedure Division (1993), [2.5]-[2.11].

75. See M Findlay, Jury Management in New South Wales (Australian Institute of Judicial Administration Inc, 1994), 173; Parliament of Victoria, Law Reform Committee, Jury Service in Victoria, Final Report (1996), [3.149]; R E Auld, Review of the Criminal Courts of England and Wales (HMSO, 2001), 149, 151.

77. Although it should be noted that the Victorian provisions relating to ineligibility, which were enacted in 2000, have already been subject to five separate sets of amendments: Juries Act 2000 (Vic) Sch 2. See Juries (Amendment) Act 2002 (Vic) s 10; Major Crime (Special Investigations Monitor) Act 2004 (Vic) s 18; Major Crime Legislation (Office of Police Integrity) Act 2004 (Vic) s 29; Public Administration Act 2004 (Vic) s 117(1), Sch 3 [108.2]; Legal Profession (Consequential Amendments) Act 2005 (Vic) s 18, Sch 1 [54.2].

80. Juries Act 1974 (Eng); New York, Judiciary Law (Consol 2007) art 16 . See also M Findlay, Jury Management in New South Wales (Australian Institute of Judicial Administration Inc, 1994), 173, footnote 4.