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

3.3 There are two principal reasons for excluding people who have been defendants in the criminal justice system. The first is the possibility that their past criminal behaviour, and its consequences as a result of their involvement in the justice system, may impact upon their ability to be impartial,⁴ or make them amenable to improper influence from criminal associates. The second concerns the importance of preserving the public confidence in the jury system, which might potentially be threatened if it became publicly known that people with the requisite criminal records, or facing trial, had been allowed to serve on a jury.⁵

3.4 Although it would require an enormous effort to determine, with any precision, the number of electors in NSW who would currently fall within the ambit of the disqualification provisions applicable at the present time, it can be noted that a recent BOCSAR study showed that, by 2005, 1 in every 200 people who had been born in NSW in 1984, and, therefore, aged 21 years, had received a prison sentence.⁶

3.5 The Commission received mixed responses in the submissions which dealt with the current heads of disqualification. For example, some submissions argued that people should not be disqualified simply because they have served a custodial sentence or have been placed on some form of conditional release.⁷ It was contended that rehabilitation was an important goal of sentencing which should not be arbitrarily assumed to have failed.⁸ It was further argued that restoration to the ordinary incidents of citizenship, such as jury service, is an important step in the reintegration and rehabilitation process.⁹ Some submissions contended that those within the heads of disqualification applicable to people awaiting trial should be allowed the benefit of the presumption of innocence, and entitled to participate as jurors.¹⁰ Others, however, argued for the retention of the status quo, with some slight modifications.¹¹

3.6 Although the NSW Police proposed a further category of people who should be excluded as “not fit or proper to serve”, because of their background or disqualification from performing certain functions or holding certain forms of employment under various statutes,¹² we are of the view that this would be too broad as a criterion for exclusion, and that it would be very difficult to apply. We consider that these concerns would be better addressed by maintaining appropriate grounds for exclusion on the basis of criminal history, and by the remedies of setting aside by consent or of challenging for cause, where some additional circumstance is identified that would make it undesirable for the juror to serve.

3.7 We next examine the current grounds of disqualification and identify those areas that we consider require greater definition or amendment. In this respect, it is apparent that, while the various relevant criteria are, on a first impression, stated in clear and precise terms, on deeper analysis, definitional problems emerge which need to be addressed, so as to provide greater certainty as to those who are either disqualified or subject to any other ground of ineligibility. It is important that these definitional problems are addressed because of the current undesirable consequences arising from the empanelment of people who are disqualified or ineligible to serve as jurors. (x-ref)

3.8 As we have noted, the Jury Act provides for disqualification of people within this category as follows:

3.9 There was general agreement, in the submissions received and consultations, that people who are currently serving sentences of imprisonment should be excluded.¹⁴

3.10 Obviously, such people could not, in a practical sense, serve as jurors if they were detained in full-time custody, and some would, in any event, lose the right to remain on the electoral roll, which is a precondition to being able to serve as a juror.¹⁵

3.11 Some uncertainty, however, exists as to whether this head of disqualification is confined to those who are serving a sentence in full-time custody, or by way of periodic or home detention; or extends additionally to those who are subject to sentences of imprisonment that have been suspended. We are of the view that any uncertainty in this respect should be rectified, as these are clear cases where impartiality and community confidence in juries would be called into question if such people were permitted to serve, although released into the community.

3.12 In NSW, the service of any part of a sentence of imprisonment within the previous 10 years will currently disqualify a person from jury service.¹⁶

3.13 There are some practical problems in the interpretation and/or application of this item in addition to the uncertainty already noted concerning the kind of sentences of imprisonment to which it applies, for example, suspended sentences and home detention. They include the fact that:

3.14 There is no uniformity in the legislation of the States or Territories concerning the circumstances in which the serving of a sentence of imprisonment will lead to disqualification, or as to the length of any consequent disqualification. Some jurisdictions draw a distinction based on whether the sentence was imposed for a summary or indictable offence, while others draw a distinction based on the length of the sentence or aggregate sentences imposed.

3.15 The periods of potential disqualification also vary markedly, in that, in some instances, the fact of conviction and service of a sentence of imprisonment will lead to a life disqualification,²¹ whereas, in other instances, depending on the nature of the offence, and/or the term of the sentence, the period of disqualification may be one of only five years.²²

3.16 In some States, there is a sliding differential scale for disqualification so that different periods of disqualification apply dependent on the sentence served. For example, in Victoria, there is a two years disqualification for anyone sentenced for any offence; five years disqualification for anyone sentenced to imprisonment for an aggregate of less than three months; 10 years disqualification for anyone sentenced to imprisonment for an aggregate of three months or more; and disqualification for life for anyone convicted of treason or of an indictable offence and sentenced to an aggregate of three years or more.²³

3.17 One result of this is that eligibility to serve as a juror may vary according to the current place of residence of the juror. For example, some people may be barred for life in some jurisdictions but eligible, after a lapse of time, in another. No doubt the differences between the jurisdictions are attributable to local issues and to the different dates of enactment of the relevant legislation. In recognition of the mobility of Australian citizens between States and Territories, there is a case for securing uniformity, particularly as the various State and Territory Acts contemplate that the fact of conviction and consequent length of sentence, wherever imposed, will determine the relevant period of disqualification. We do not, however, consider it within our terms of reference to make any recommendation to that effect. Rather, our purpose is to identify criteria for exclusion which would eliminate any existing anomalies or uncertainties and satisfy the requirements of justice within NSW.

3.18 This brings us back to the question, which was addressed in several submissions and consultations, as to whether past offenders, who have served sentences of imprisonment, should have a greater opportunity to re-exercise the civic act of jury duty after a period of rehabilitation.²⁴

3.20 In considering the period of exclusion which would follow the expiry of the sentence, the question becomes whether some line or lines should be drawn in terms of seriousness of the offence involved, as indicated either by its nature or by the length of the sentence imposed. The UK Departmental Committee on Jury Service concluded in this regard that “any disqualification should be as limited as is consistent with the proper administration of justice and the maintenance of public confidence in the jury system”.²⁷

3.21 Some submissions supported a general reduction of the 10-year period during which a person who has served his or her sentence should be ineligible to serve,²⁸ while others proposed relating the period of the ineligibility to the length of the sentence that was served or to particular kinds of offence.²⁹ Some proposed confining the disqualification only to cases where the sentence had been imposed in relation to an indictable offence.³⁰

3.22 One submission, which questioned the retention of any significant period of disqualification, noted that “people with convictions, particularly for minor offences have the same interest as the wider population in protecting their communities against the kind of serious crimes that merit a jury trial”.³¹

3.23 The reach of the current provision is somewhat broad, and could possibly allow people to serve as jurors who should be excluded for life. At the same time, it may unnecessarily exclude those who need not be excluded for as long as 10 years, for example, those sentenced to a short term of imprisonment for some minor summary offence, and who have not re-offended. We consider that this criterion could be usefully redrawn to provide for:

3.25 Additionally, in the context of proceedings under the Mental Health (Criminal Procedure) Act 1990 (NSW), we consider it appropriate to exclude those who are subject to limiting terms from this sliding scale, since such terms do not follow a conviction but rather a finding, on the limited evidence available, that the accused committed the offence charged.³⁵ Such a finding is provisional, and will be displaced in the event of the accused recovering his or her mental health and then being tried according to law. The preferable course, accordingly, would be to provide for the ineligibility of such people during the currency of the limited term, and thereafter to leave their situation to be governed according to the outcome of any subsequent trial. Alternatively, they could be independently excused on the grounds of their continuing incapacity, either as a result of their disqualification from being an elector³⁶ or as a result of their being excused for cause. Similar considerations apply to those who are charged under Commonwealth legislation, who are found unfit to be tried, and become the subject of a detention order following the finding of a prima facie case.³⁷

3.26 Next, we consider it necessary to include a proviso similar to that appearing in most other Australian jurisdictions creating an exception where the sentence of imprisonment has subsequently been quashed on appeal, either wholly, or converted to a non-custodial sentence, or becomes the subject of a pardon.

3.27 We do not, however, favour attempting an exercise which would define, in any more specific way than that outlined above, a regime that would fix varying periods of disqualification related to specific offences. Any such exercise would become extremely complex, would be largely subjective, and would fail to take into account the varying degrees of objective and subjective criminality involved in individual offences within each category.

3.28 What is required is a clear and workable set of criteria which potential jurors can understand, which is shorn of the anomalies or uncertainties which currently exist in relation to this item, and which could be detected by automated inquiry of the national criminal database, in similar fashion to that available in Victoria, or at least by extending to the Sheriff access to the criminal history database maintained by the NSW Police.

3.29 As the legislation is currently structured, the effective disqualification period for people who have been detained in a detention centre or other institution for juvenile offenders is three years, and is defined in somewhat different terms, in that it depends on the person having “been found guilty of an offence”.³⁸ This expression is potentially ambiguous, although it most probably embraces offenders who have pleaded guilty to a charge. Moreover, it is a definition that may not adequately reflect the available sentencing discretions and practices in relation to young offenders.³⁹

3.30 Otherwise, it shares similar definitional difficulties to those discussed in relation to adult imprisonment, namely, whether the three-year period dates from release from detention, or from the expiry of the control order or sentence as a whole, and what the position is where the relevant sentence or order is later quashed on appeal or converted to a non-custodial sentence, or where a pardon is granted. Additionally, it applies to a person who is detained for any period, irrespective of the nature and seriousness of the offence, or of the duration of the sentence or control order.

3.31 Some submissions supported a shorter period of exclusion for young people who have served a period in custody,⁴⁰ chiefly upon the basis that their rehabilitation would be encouraged by their reintegration into society with full rights once they had attained the age of 18 years. Others suggested the disqualification should only apply to those dealt with according to law in the District or Supreme Courts.⁴¹

3.32 This head of disqualification is likely to apply to a relatively small group of offenders. In the 2005/2006 financial year, 468 young people were admitted to detention centres or other institutions for juvenile offenders under control orders.⁴²

3.33 Some of these offenders may have attained the age of adulthood. A discretion exists in a sentencing judge, when sentencing an offender under the age of 21 years, to direct that they serve the whole or any part of that sentence as a juvenile offender⁴³ although, effectively, not beyond the age of 21.5 years.⁴⁴

3.34 Conversely, some young offenders who commenced their detention in Juvenile Justice Centres may be transferred to a correctional centre, including an adult correctional centre, for example, when the Director General is satisfied that their behaviour warrants such an order.⁴⁵ Those offenders and other offenders who, while juveniles, were dealt with according to law for serious crimes and transferred from a detention centre to an adult correctional centre would presumably be subject to the longer period of disqualification under item 1 of the Schedule.

3.35 Otherwise, the potential size of the group caught by this category is limited by the fact that juror eligibility depends upon the person attaining the age of 18 years, and by the further fact that control orders, in particular, tend to be relatively short, the average being in the order of six months.⁴⁶

3.36 We recognise the force of the argument that the rehabilitation of young offenders, and their reintegration into society as quickly as possible, and with full rights, is important. However, the rate of recidivism for young offenders is high. A study of 5,476 young people aged between 10 and 18 years who made their first appearance in the Children’s Court in 1995 showed that, by the end of 2003, 68% of them had reappeared at least once in a criminal court.⁴⁷

3.37 To a significant extent, regrettably, those young people who fall foul of the criminal justice system tend to come from dysfunctional and deprived backgrounds, to have low levels of literacy and to have substance abuse problems. Moreover, many are likely to be living on the streets, disinterested in registering as electors, and difficult to trace because of their itinerant lifestyle.⁴⁸ While these factors may mean that it is impractical for such young persons to serve as jurors, we also recognise that a rehabilitated offender with a background of offending in adolescent years may be better placed than others to understand or interpret offending by similarly situated defendants.

3.38 While we have considered whether the three years disqualification is excessive, particularly for those who may have offended once and been subjected to a short term control order, we have concluded that any variation in that period would involve little more than tokenism. Such a change would have little impact on the jury pool, and would overlook the pragmatic considerations relative to juvenile offending and the associated anti-social attitudes.

3.39 Accordingly, we do not recommend any change in this item beyond clarifying that:

3.41 NSW currently disqualifies people who are bound by orders of a court in criminal proceedings, including those who are subject to parole orders, community service orders, apprehended violence orders, orders disqualifying them from driving a motor vehicle, and recognizances.⁴⁹ Unlike the grounds for disqualification previously considered, this head of disqualification does not continue once the order has been discharged or has run its course. Most other Australian jurisdictions include a similar range of non-custodial orders as a ground for disqualifying people from jury service.⁵⁰

3.42 Some submissions contended that being subject to non-custodial orders should not be a ground for disqualification.⁵¹ One submission noted that people who are subject to such orders “have not been found to be incapable or unsuitable for living and participating in the community”,⁵² although this does need to be understood in the light of the fact that their capacity to do so is subject to the conditions or restrictions attaching to the relevant order. Another, however, preferred to retain the current provisions excluding people who are subject to non-custodial orders from serving as jurors.⁵³

3.43 In addition to the general reasons given above in relation to people with criminal histories, the determinative factor in excluding those who are bound by orders of a criminal court is that, while these orders are in force, the offender is very close to the criminal justice system. He or she is also likely, in some cases, to be under continuing supervision by the Probation and Parole Service, Juvenile Justice or other similar bodies, and potentially brought back for further consideration in the event of any breach.

3.44 Several of the orders contemplated by this category cannot be strictly said to have been made “pursuant to a criminal charge”. The legislative intention is no doubt clear, but there would be merit in rewording the item by adding the words “or consequent upon” after the words “pursuant to”.

3.45 We also propose the amendment of this item so as to make it clear that the wording is inclusive so as to encompass other potential orders which may become available in the future and which are of a similar kind.

3.46 For greater certainty, we consider it desirable that the existing list should be supplemented to include all available orders that would currently come within the description of an order made pursuant to or consequent upon a criminal charge or conviction not including an order for compensation. The advantage of express reference to these orders is to make potential jurors aware that this head of disqualification may apply in their case, otherwise there is a risk of them reading this exclusion as exhaustive in relation to the orders that give rise to disqualification. To some extent, this could be ameliorated by cross-checking with the national criminal database or with NSW Police records, although self-identification will continue to be important, particularly for people who have changed their names and places of abode.

3.48 Apprehended violence orders are expressly mentioned, and presumably include both apprehended domestic violence orders and apprehended personal violence orders.⁵⁴

3.49 The Victorian Parliamentary Law Reform Committee considered a proposal that people subject to an intervention order under the Crimes (Family Violence) Act 1987 (Vic) should be disqualified. The Committee rejected the proposal on the grounds that such orders “do not result from a criminal proceeding and they do not constitute a criminal sanction”.⁵⁵ We received several submissions to similar effect, noting that sometimes⁵⁶ such orders are made as a matter of consent, often against both parties, without any adjudication on the merits of the case, and without the party subject to the order having been charged with any offence.⁵⁷

3.50 There are potentially two categories of people bound by apprehended violence orders: those bound as a result of an application being made to a court;⁵⁸ and those who are automatically bound as a result of being convicted of or pleading guilty to a relevant offence.⁵⁹ It would seem only the second category of people would fall within item 3 of Schedule 1, which depends on the existence of an order made “pursuant to a criminal charge or conviction”.

3.51 It is by no means clear that those who are the subject of apprehended violence orders, particularly interim orders, are generally not law-abiding. It was for this reason that several submissions suggested that this head of disqualification was unnecessary.⁶⁰

3.52 However, as it is qualified by the precondition that the order be made in a context where the person bound by the order had either been charged with an offence or convicted of it, we do not favour any relaxation of this head of disqualification, so long as it is confined to the currency of the order. Any further refinement that takes into account the circumstances giving rise to the order would require an investigation that would not be justified because of the considerable administrative difficulty involved.

3.53 We do, however, recognise that some jurors may be unaware of, or fail to appreciate the significance of the fact that disqualification depends on the order being made in the context of criminal proceedings. In such cases, they would assume that the disqualification applies, additionally, to those who have become the subject of an order pursuant to a complaint not amounting to, or associated with, a charge or conviction. There would be merit in ensuring that any handbook of jury information makes this distinction clear.

3.54 We regard this category as problematic, as there are many circumstances in which a person can be disqualified from driving a motor vehicle either directly, as a consequence of a conviction for a motoring offence, or indirectly, as a sanction for a failure to pay a fine imposed at the time of such conviction. In some circumstances, the disqualification will be imposed automatically following a conviction,⁶¹ giving rise to a question whether such a disqualification can be said to arise as the result of “an order”, as distinct from an administrative act. In other cases, the disqualification will be imposed in the exercise of the court’s sentencing discretion.

3.55 One submission argued that this was an unnecessary ground for disqualification from jury service.⁶²

3.56 Moreover, similarly to the case with apprehended violence orders, some jurors may fail to appreciate that disqualification as a juror for this reason currently depends upon the existence of an order by a court disqualifying that person from driving a motor vehicle. A person would, for example, not be ineligible if his or her licence was suspended only because of accrued demerit points.⁶³

3.57 A significant number of people are disqualified from driving each year in NSW. For example, 16,000 drivers are disqualified for driving with a prescribed content of alcohol.

3.58 Apart from NSW, a disqualification from driving a motor vehicle only excludes a person from jury service in South Australia, and then only if the disqualification is for a term in excess of six months.⁶⁴ This reflects the position in the original enactment of the Jury Act 1977 (NSW) which disqualified from jury service “a person who at any time within the last 5 years in New South Wales or elsewhere... has been disqualified by order of a court from holding a licence to drive a motor vehicle or omnibus for a period in excess of 6 months”.⁶⁵ The provision was originally enacted, in 1977, to exclude from juries people convicted for driving under the influence. The government, at the time, preferred to err on the side of caution in excluding people who it considered would be unable to “point to their own good character and general fitness for the task” of serving as a juror.⁶⁶ Driving under the influence was seen as “a highly anti-social act which rarely reaches the stage of a gaol sentence unless it has resulted in either the death of or serious injury to an innocent third party”.⁶⁷ It was therefore necessary to add those disqualified from driving in order to exclude such people from juries.

3.59 By reason of the range of circumstances giving rise to disqualification, the existence of automatic disqualification provisions, and the number of people potentially affected, we are of the view that this head of disqualification should only apply where the disqualification is for 12 months or more, regardless of the method by which the disqualification is imposed. That is, whether imposed by reason of a formal court order, or by reason of an automatic disqualification following upon a conviction, the majority of people convicted for high range prescribed content of alcohol and negligent driving causing death or grievous bodily harm are disqualified from driving for at least 12 months.⁶⁸ This recommendation will not include people whose licences are suspended for accrued demerit points, as the maximum period of suspension available is only five months.⁶⁹

3.60 Given the variety of ways in which a driving disqualification can be imposed, and the different periods of disqualification that can be imposed, we consider that disqualification from driving for more than 12 months should be listed as the relevant ground of exclusion arising from driver’s licence disqualification however imposed.

3.61 Imprisonment for failure to pay a fine is a ground of disqualification in NSW, but only during the currency of the imprisonment. Such a term of imprisonment does not count as “any part of a sentence of imprisonment” for the purposes of disqualifying a person from jury service for 10 years.

3.62 It may be noted that imprisonment for failure to pay a fine is no longer available in NSW as a direct sanction and, to that extent, it might be thought unnecessary to maintain the relevant exceptions to items 1 and 2 of the schedule. However, it can still arise as a final sanction where a person fails to comply with the ascending ranges of sanctions available in the context of fine enforcement by the State Debt Recovery Office.⁷⁰

3.63 It is also the case that imprisonment for non-payment of a fine continues to be available as a sanction in other jurisdictions. Clearly, someone who is currently serving a sentence for this reason is unable physically to perform jury service. Different considerations apply once any imprisonment or detention for this reason has run its course, and the current provision is in our view appropriate.

3.64 In NSW, a person is disqualified who has been remanded “in custody pending trial or sentence” or released “on bail pending trial or sentence”.⁷¹

3.65 Some submissions contended that people awaiting trial should be entitled to serve as jurors because of the presumption of innocence.⁷² Other submissions agreed that people awaiting trial or sentencing should be disqualified.⁷³ One submission suggested that the ban should apply only in relation to people facing trial for an offence that attracts a maximum penalty of more than two years imprisonment.⁷⁴

3.66 While we recognise the importance of the presumption of innocence, we accept that people, whether bailed or not, and even where bail has been dispensed with, should continue to be ineligible to serve on juries when facing trial or sentence themselves. This is because it is difficult to see how they could give a completely detached consideration to the question of the guilt of others. Additionally, we believe that the public confidence in the justice system would be at risk if people facing trial or sentence were to serve on criminal juries.

3.67 In recommending that people released pending sentence should be included, we note that this category will include people on “Griffiths remands”, those subject to intervention program orders,⁷⁵ and other forms of release for rehabilitation or participation in intervention programs.⁷⁶

3.68 One submission drew attention to the fact that people who are awaiting trial or sentence, but for whom bail has been dispensed with, are not caught by the existing category.⁷⁷ We consider that this is an oversight that should be addressed.

3.69 For similar reasons, we do not see any justification in relaxing this ground of disqualification during the currency of a bond, at least with respect to a good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW). People subject to the restrictions of a bond are potentially too close to the criminal justice system during its currency, given the possible consequences of a breach. Moreover, the public confidence in the system could be threatened by the knowledge that a person was able to serve as a juror, or did so, while subject to the conditions of a bond imposed as a consequence of a conviction.

3.70 It would, however, be appropriate to update the restriction by the use of the term “bond” in place of the term “recognizance” in order to reflect the current wording of the Crimes (Sentencing Procedure) Act 1999 (NSW).

3.71 We note that different considerations may apply to those subject to a bond as part of a conditional discharge⁷⁸ where, by reason of the trivial nature of the offence, or the extenuating favourable circumstances of the offender, the matter is dealt with without recording a conviction. There is a case for excepting this form of bond from the disqualification. However, the administrative difficulties in maintaining a distinction would militate against creating an exception.

3.72 Since enactment of this provision, there have been significant developments in sentencing law and practice, and in the criminal law. These have resulted in the current wording of this head of disqualification not embracing all the potential orders that are now available once a person has been charged with an offence or convicted of it, and which do not involve imprisonment as a punishment. For example, it does not provide for those who are subject to extended supervision orders,⁷⁹ or orders under anti-terrorism legislation.⁸⁰ Similarly no mention is made of those who may be subject to:

3.73 We note that if our earlier recommendations concerning items 1 and 2 are accepted, dating the relevant period of disqualification from the time of expiry of the sentence rather than from the time of release, it might be strictly unnecessary to include parole orders in this category.

3.74 At present, the Sheriff’s Office in NSW does not have direct access to criminal records or to any database maintained by Corrective Services or Juvenile Justice. It relies on people who are disqualified identifying themselves, or upon such people being identified by those who may be involved or interested in the trial for which they are called. It cannot be ruled out that juries may, from time to time, include one or more members who may fall within one of the categories of disqualification.⁸⁷ A recent case has highlighted the issue, where a disqualified driver was identified part way through a trial, resulting in the discharge of the jury in question.⁸⁸

3.75 In other jurisdictions, the Sheriff has a statutory right to obtain information about criminal histories of people who may be selected for jury service. For example, in the ACT, the Sheriff can give any police officer a copy of the list of prospective jurors so that he or she may determine if any people are disqualified.⁸⁹ In SA, there is a provision compelling the Commissioner of Police, at the request of the Sheriff, to investigate and report on any matter relevant to determining whether a person is disqualified or not.⁹⁰ A similar provision is in place in Tasmania, where the Commissioner of Police must also furnish a report, at the request of the Director of Public Prosecutions, on any people who have committed, or are alleged to have committed, “non-disqualifying” offences in Tasmania or elsewhere.⁹¹

3.76 In Victoria, which also has a similar provision,⁹² the Juries Commissioner arranges for an electronic national criminal records check to be made against all people who may potentially be required for jury service, by reference to the categories of exclusion applicable in that State. The response received may be “yes” or “no” according to whether or not that person is recorded on the register, or “pending”, in which case further investigation may be required, for example, to determine whether some entry in another State or Territory may have an equivalence to one of the Victorian disqualification categories. It also addresses this ground of disqualification by a specific question in the questionnaire given to prospective jurors.

3.77 This system may not necessarily pick up a juror who has undergone a name change and who elects not to disclose a prior conviction but, to date, there has been a high level of compliance with juror self-identification⁹³ and the system appears to work well.

Table of contents

4. See Parliament of Victoria, Law Reform Committee, Jury Service in Victoria, Final Report (1996), [3.15]-[3.16].

6. J Hua, J Baker, S Poynton, Generation Y and Crime: A Longitudinal study of contact with NSW criminal courts before the age of 21, NSW Bureau of Crime Statistics and Research, Crime and Justice Bulletin, No 96 (2006), 7.

7. Legal Aid Commission of NSW, Submission, 9; NSW Bar Association, Submission, [10]; J Goldring, Submission, 2.

8. NSW Bar Association, Submission, [10]; Redfern Legal Centre, Submission, 6. See also Aboriginal Legal Service, Submission, 7; J Goldring, Submissiom, 2.

9. See NSW Public Defender’s Office, Submission, 3. See also United Kingdom, Home Office, Report of the Departmental Committee on Jury Service, Cmnd 2627 (1965), [131]; New Zealand, Law Commission, Juries in Criminal Trials, Report 69 (2001), [181]; Queensland, Criminal Justice Commission, The Jury System in Criminal Trials in Queensland, Issues Paper (1991), 11. But see Commonwealth Director of Public Prosecutions, Submission, 1-2.

10. J Goldring, Submission, 2; NSW Public Defender’s Office, Submission, 4. But see Commonwealth Director of Public Prosecutions, Submission, 2-3.

11. NSW Jury Taskforce, Submnission, 1; Commonwealth Director of Public Prosecutions, Submission, 1-2; G J Samuels, Submission, 2.

14. NSW Bar Association, Submission, [10]; J Goldring, Submission, 2; Legal Aid Commission of NSW, Submission, 9.

15. Parliamentary Electorates and Elections Act 1912 (NSW) s 21. See para 2.16 above.

16. Jury Act 1977 (NSW) Sch 1 item 1. The 10-year disqualification may be compared with that applicable to similar grounds for disqualification in other States, eg: five years in WA: Juries Act 1957 (WA) s 5(b)(ii); and seven years in the NT: Juries Act 1963 (NT) s 10(3)(a)(ii).

17. Juries Act 2003 (Tas) Sch 1 cl 1(2), Juries Act 2000 (Vic) Sch 1 cl 1; Juries Act 1957 (WA) s 5(b)(i); Juries Act 1967 (ACT) s 10(a).

21. For example: Juries Act 2003 (Tas) Sch 1 cl 1(1)(a); Juries Act 1957 (WA) s 5(b)(i); Juries Act 1927 (SA) s 12(1)(a) and (b); Jury Act 1995 (Qld) s 4(3).

22. For example, Juries Act 2000 (Vic) Sch 1 cl 3(a); Juries Act 1957 (WA) s 5(b)(ii).

23. Juries Act 2000 (Vic) Sch 1 cl 1-5. Other Australian jurisdictions also stipulate different periods of disqualification for different sentences: Juries Act 1927 (SA) s 12(1); Juries Act 2003 (Tas) Sch 1 cl 1, Juries Act 1957 (WA) s 5.

25. See Parliament of Victoria, Law Reform Committee, Jury Service in Victoria, Final Report (1996), [3.23]; Tasmania, Department of Justice and Industrial Relations, Review of the Jury Act 1899, Issues Paper (Legislation, Strategic Policy and Information Resources Division, 1999), ch 2.

26. Aboriginal Legal Service, Submission, 8. The rate of imprisonment of Indigenous people is 10 times that of non-Indigenous Australians: D Weatherburn, L Snowball, B Hunter, The Economic and Social Factors Underpinning Indigenous Contact with the Justice System: Results from the NATSISS Survey, Crime and Justice Bulletin, No 104 (NSW Bureau of Crime Statistics and Research, 2006), 1.

27. United Kingdom, Home Office, Report of the Departmental Committee on Jury Service, Cmnd 2627 (1965), [140].

28. Legal Aid Commission of NSW, Submission, 9; M J Stocker, Submission, 5; Redfern Legal Centre, Submission, 6.

29. Aboriginal Legal Service, Submission, 8-9; G J Samuels, Submission; NSW Public Defender’s Office, Submission, 3.

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

40. NSW Public Defender’s Office, Submission, 4; M J Stocker, Submission, 6; J Goldring, Submission, 2; Consultation.

42. Information supplied by Jennifer Mason, Director General, Department of Juvenile Justice, 1 May 2007.

44. The eligibility ceases at 21 years, unless the term of the sentence or any non parole period will end within the following six months, in which case the detention can continue for that further period: Children (Criminal Proceedings) Act 1987 (NSW) s 19.

46. Information supplied by Jennifer Mason, Director General, Department of Juvenile Justice, 1 May 2007.

47. S Chen, T Matrugliou, D Weatherburn, and J Hua, The Transition from Juvenile to Adult Criminal Careers, Crime and Justice Bulletin, No 86 (NSW Bureau of Crime Statistics and Research, 2005), 2.

48. See, eg, D Weatherburn and B Lind, Social and Economic Stress Child Neglect and Juvenile Delinquency (NSW Bureau of Crime Statistics and Research, 1997); J Baker, Juveniles in Crime - Part 1: Participation Rates and Risk Factors (NSW Bureau of Crime Statistics and Research, 1998).

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

51. NSW Public Defender’s Office, Submission, 4; Redfern Legal Centre, Submission, 6; J Goldring, Submission, 2.

55. Parliament of Victoria, Law Reform Committee, Jury Service in Victoria, Final Report (1996), [3.61].

57. Legal Aid Commission of NSW, Submission, 8-9; Redfern Legal Centre, Submission, 6.

59. That is, an offence within s 545AB or one that answers the description of a domestic violence offence: Crimes Act 1900 (NSW) s 562ZU.

60. Legal Aid Commission of NSW, Submission, 8-9; Redfern Legal Centre, Submission, 6.

65. Jury Act 1977 (NSW) Sch 1 item 3(d). This older form was abandoned in 1987 in favour of something akin to the current provision: Jury (Amendment) Act 1987 (NSW) Sch 1[22].

66. NSW, Parliamentary Debates (Hansard) Legislative Council, 2 March 1977, 4647.

67. NSW, Parliamentary Debates (Hansard) Legislative Council, 2 March 1977, 4751.

68. For the period September 2004-December 2006, of the 97% of cases of high range pca that resulted in licence disqualification, over 99% were for 12 months or more; for the period January 2005-December 2006, of the 81% of cases of mid range pca that resulted in disqualification, 81% were disqualified for 12 months or more; and for the period January 2003-December 2006, of the 57% of cases of low range pca that resulted in licence disqualification, only 7.5% were disqualified for 12 months or more: Road Transport (Safety and Traffic Management) Act 1999 (NSW) s 9(2)(a), (3)(a) and (4)(a). For the period January 2003-December 2006, of the 85% of cases of negligent driving causing death that resulted in disqualification, over 99% were disqualified for 12 months or more; of the 74% of cases of negligent driving causing grievous bodily harm that resulted in disqualification, 95% were disqualified for 12 months or more; and of the 27% of cases of negligent driving that resulted in disqualification, only 4% were disqualified for 12 months or more: Road Transport (Safety and Traffic Management) Act 1999 (NSW) s 42(1)(a), (1)(b) and (1)(c).

72. NSW Public Defender’s Office, Submission, 4; J Goldring, Submission, 2. But see Commonwealth Director of Public Prosecutions, Submission, 2-3.

73. NSW Bar Association, Submission, [12]; M J Stocker, Submission, 6; Commonwealth Director of Public Prosecutions, Submission, 2-3.

77. See NSW, Office of the Director of Public Prosecutions, Preliminary submission, 1.

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

84. Juvenile and adult drug courts and Pre-Trial Diversion of Offenders Act 1985 (NSW).

87. Such concerns have not been limited to the present regime, with concerns about people charged or convicted of serious offences serving as jurors being expressed in NSW in 1949 and England in 1965: See Sydney Morning Herald (27 March 1949), 1; United Kingdom, Home Office, Report of the Departmental Committee on Jury Service, Cmnd 2627 (1965), [95], [132].

88. This was because irregularities are only cured if discovered once the verdict has been delivered: Petroulias v The Queen [2007] NSWCCA 134.

91. Juries Act 2003 (Tas) s 24. Such information is presumably used to allow challenges to particular jurors. In Victoria, there was formerly also an informal system whereby the Police Commissioner passed a list, including acquittals and non-disqualifying criminal convictions, to the Director of Public Prosecutions to assist in exercising the right of peremptory challenge: Parliament of Victoria, Law Reform Committee, Jury Service in Victoria, Final Report (1996), [5.17]. But see Katsuno v The Queen (1999) 199 CLR 40.