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

4.3 We take the view that the categories of people who are excluded from serving as jurors should be governed by this consideration, and that this heading should be confined to those who have an integral and substantially current connection with the administration of justice, most particularly criminal justice, or with the formulation of policy affecting its administration, and to those who perform special or personal duties to the State.

4.4 We also note that there is a degree of overlap between some of the categories, as well as some imprecision in their definition, which could give rise to an uncertainty as to the extent of their reach. This uncertainty is undesirable in the current system because of the consequences of ineligible people being empanelled and serving, as well as the penalties that may be imposed on people who provide false information concerning their eligibility. The possibility that the presence of an improperly empanelled juror will lead to a retrial⁴ has led to the Sheriff’s Office erring on the side of caution in excusing potential jurors and, thereby, reducing the number of people available to serve.

4.6 We accept that the Governor and any person acting as Governor should continue to be ineligible because the holder of that office represents the Crown, in whose name prosecutions are conducted. A person “acting as Governor” will usually either be the Chief Justice (as Lieutenant Governor) or President of the Court of Appeal, who would each be independently ineligible as current judicial officers.⁵

4.7 Judicial officers and coroners are permanently ineligible in all Australian jurisdictions.⁶ In the United States, it has become common for judges to serve on juries, and some judges have written positively about their experience,⁷ regarding it as an opportunity which has enhanced their performance as judges by reason of the insight gained into the workings of a jury. Several judges in this State have indicated that they would welcome a similar opportunity.

4.8 The Auld review recommended the removal of this category of ineligibility. It did, however, identify one practical difficulty in rendering judicial officers eligible for jury service, namely, that “potential judge/jurors may often know or be known to the trial judge or advocates or others involved in the trial”. Lord Justice Auld noted that this could compromise their independence and/or, “dependent on their seniority or personality”, inhibit the trial judge or advocates in “their conduct of the [particular] case”.⁸ The solution, it was suggested, lay in the ability of the judicial officer in question to seek to be excused from service in that trial.

4.9 As a result of amending legislation in response to the Auld review,⁹ judicial officers in England and Wales are now eligible for jury service and routinely serve as such. The Department for Constitutional Affairs has issued guidelines which contemplate the deferral of service where judicial officers seek to be excused on the grounds that they may be known to one of the parties involved in a trial. In the normal course of events, the guidelines encourage deferral to an alternative court where similar reasons for an application may not exist.¹⁰

4.10 Some submissions suggested that judicial officers and coroners, as a class, should now be eligible to serve.¹¹ Most other submissions, however, suggested that judicial officers and coroners should continue to be ineligible.¹²

4.11 One submission noted that the geographic concentration of courts and the relatively small size of the legal profession means that judicial officers serving as jurors in NSW are likely to know the trial judge and to be known by the lawyers in the case. Deferral to another time in another court may, therefore, not be so effective a solution in this State. It was also said to be undesirable to disrupt the business of courts whose judicial officers are called away as jurors, even though they are highly likely to be the subject of a peremptory challenge or to be exempted for good cause, either because they are too close to the judge or lawyers in the trial, or because they have had some prior knowledge of the accused when appearing for, or sitting in judgment on, him or her.¹³ There is also the further consideration that Supreme Court judges may have to stand aside from the Court of Criminal Appeal in any appeal involving that party if they served as a juror in his or her trial.

4.12 We agree that, for these reasons, judicial officers and coroners should continue to be excluded from juries while they remain in office. We have, however, considered whether former judicial officers or coroners should continue to be excluded, and whether they should be eligible to serve where they have not held a permanent or acting commission for a certain number of years. Differing views were expressed in our consultation with representatives from the criminal justice system. Some people at that meeting suggested that retired judicial officers should be immediately available to serve as jurors, while others recommended a qualifying or cooling-off period.¹⁴

4.13 Given the current compulsory age of retirement of 72 years for judicial officers or 75 years for acting judges, there may not be much opportunity for them to serve as jurors. However, it is a fact that many judicial officers do retire before reaching the compulsory retirement age. They would have no difficulty in performing jury service, subject to the need to apply to be excused if they feel that they are still too close to the judge, or the lawyers, or the parties involved.

4.14 The satisfactory experience of service by judges in the US and England and Wales leads us to the view that judicial officers and coroners should be eligible to serve as jurors once a period of three years has passed from the date of the termination of their last commission as a judicial officer or acting judge. This would provide a reasonable period of absence from direct contact with the criminal law and from those who are involved in its administration.

4.15 We accept that Ministers of the Crown as members of the Executive Council¹⁵ and its officers should continue to be ineligible to serve as jurors while holding such office. Reasons for this position include:

4.17 In common law jurisdictions, the question of eligibility or otherwise of Members of Parliament is generally governed by two distinct sources of law.¹⁸ First, by an immunity that attaches at common law to Members of Parliament that prevents members being compelled to attend other courts because of the superior claims of Parliament to their attendance. Secondly, by statute rendering Members of Parliament ineligible for jury service, or granting them an exemption as of right.

4.18 One of the ancient privileges that attaches to a Member of Parliament is the right to exemption from jury service. The immunity was confirmed by a resolution of the House of Commons in 1826, which stated that it is “amongst the most ancient and undoubted privileges of Parliament that no Member shall be withdrawn from his attendance on his duty in Parliament to attend any other court”.¹⁹ May’s Parliamentary Practice has observed that, while it is unlikely that any house of Parliament would treat the summoning of a Member for jury service as a breach of its privileges, it could treat as a breach of its privileges “any refusal to excuse a Member... who is summoned as juror from attending or serving, or any attempt to punish [that Member] for not attending or for refusing to serve as a juror”.²⁰

4.19 The question of the application of this ancient immunity to Members of the Parliament of NSW has been the subject of some controversy.²¹ This arises from the fact that the NSW Parliament is the only parliament in Australia which has not legislated to define its privileges, arguably leaving to it only those powers that are necessary “for the proper exercise of the functions it was intended to execute”.²² However, the weight of opinion appears to be in support of the continued existence of the immunity from jury service.²³

4.20 The extent of the immunity is also uncertain. One commentator has suggested that Members of the House of Commons, if otherwise qualified to serve as jurors, were liable to serve when the Parliament was not sitting.²⁴ If the immunity is related to the privilege of freedom from arrest, it could arguably be said to apply until 40 days after a prorogation or dissolution of the Parliament and for 40 days before the next appointed meeting.²⁵

4.21 In NSW, a person is ineligible to serve as a juror if he or she is a Member of the Legislative Council or the Legislative Assembly.²⁶ This is still the case in all other Australian jurisdictions.²⁷ Some jurisdictions also ban former Members of Parliament from jury service for certain periods of time, such as five or 10 years.²⁸

4.22 The 1965 UK Departmental Committee on Jury Service recommended that members and officers of both Houses of Parliament should only be entitled to be excused as of right because of their “special and personal duties to the state”.²⁹ This was the case in England and Wales until recent amendments which removed the right of Members of Parliament to claim exemption as of right. Lord Justice Auld, in his 2001 review, did not consider Members of Parliament separately from the holders of other positions who were then able to claim exemption as of right in England and Wales. He noted that, while there may be good reason to excuse such people “where it is vital that they are available to perform their important duties over the period covered by the summons”, he did not see any reason why their position alone should entitle them to be excused as of right.³⁰

4.23 In Victoria, Members of Parliament and the Governor were previously entitled to exemption as of right. The Victorian Parliamentary Law Reform Committee recommended they should be redesignated as ineligible because of the need to maintain the separation of powers between the executive, legislative and judicial branches of government.³¹ In Victoria, ineligibility now applies to anyone who has been a Member of Parliament at any time within the preceding 10 years.³²

4.24 The Law Reform Commission of Western Australia also considered that Members of Parliament should be ineligible because it is “inappropriate that a person who is involved in the making of laws should be able to serve on a jury which may be called upon to decide whether there has been a breach of any such law”. The Commission additionally concluded that Members of Parliament should be excluded because the Parliament’s power to punish for contempt meant that members could be called upon to exercise a judicial or quasi-judicial function.³³

4.25 Some submissions considered that the continued ineligibility of Members of Parliament could no longer be justified.³⁴ One submission added that the direct participation as jurors in criminal trials could usefully enhance members’ knowledge and appreciation of the workings of the justice system.³⁵

4.26 Others referred to the doctrine of separation of powers as a reason for the continued ineligibility of Members of Parliament.³⁶ However, the doctrine of separation of powers does not, in our view, provide any logical basis for the exclusion of Members of Parliament because jurors serve in a private capacity. The doctrine has no basis historically, since the common law immunity derives from the Parliament’s historical status as a court.

4.27 Two submissions, in supporting the continued ineligibility of Members of Parliament, suggested that some members in high profile cases that attract media attention could be subjected to intense pressure, to the detriment of their political careers and duties.³⁷ There was also a concern that their profile within the community might jeopardise their anonymity and personal safety if they were to serve. Such concerns, however, fail to take account of the prohibition on, and substantial penalties for, publishing, broadcasting or otherwise disclosing “any information which is likely to lead to the identification of a juror or former juror in a particular trial or inquest”.³⁸ Moreover, they fail to recognise that there are other well-known members of the community who would be recognised if required to sit as jurors, who do not have any entitlement to exemption as of right or to ineligibility, and whose only opportunity to avoid jury duty is to seek to be excused for cause.

4.28 It appears to be the case that the modern enactments making Members of Parliament ineligible for jury service go further than the ancient immunity. The provisions, for example, that formerly applied in Victoria, and England and Wales, granting members the right to claim exemption, were consistent with the immunity.

4.29 On the assumption that the current provisions of the Jury Act 1977 (NSW), making Members of Parliament ineligible to serve, have not, by implication, repealed the common law immunity, the repeal of these provisions now would allow the common law immunity to take effect again.³⁹

4.30 The case for the continued ineligibility of Members of Parliament as jurors is, in our view, not as strong as that for Ministers of the Crown (as members of the Executive Council). Barring any other grounds for ineligibility, or any right to be excused, they can always apply to be excused for cause, particularly if the trial is itself a high profile trial.⁴⁰ In individual cases where a Member of Parliament has made public pronouncements in relation to the criminal law, or in relation to a course of criminal activity, which may give rise to an apprehension of bias he or she could be stood aside, excused for cause or even challenged for cause.

4.31 Our preferred position is to recommend the repeal of the ineligibility that currently applies to Members of Parliament, although preserving it for those members who are Ministers of the Crown. However, we recognise that in so doing, the common law immunity from jury service that attaches to Members of Parliament may remain. The preservation of this immunity, and its extent, is more properly one for Parliament itself to determine. Accordingly we recommend that Parliament should give consideration to the question of the preservation of the statutory ineligibility and common law immunity of its members in relation to jury service and the extent of that immunity.

4.32 In NSW, ineligibility applies to “officers and other staff of either or both of the Houses of Parliament”.⁴¹ It is the broadest exemption available in this context of all the Australian jurisdictions.

4.33 Most submissions considered that people in this category should no longer be ineligible to serve.⁴² Two submissions considered that they should be ineligible to serve,⁴³ one of them citing the doctrine of separation of powers as a justification.⁴⁴

4.34 We do not see sufficient reason for the continuation of this category of ineligibility. It includes staff members whose position is not dissimilar from that of the personal staff of ministers or of public servants, who are currently eligible to serve, as well as those whose responsibilities have nothing to do with the development of policy or legislation. It will still be possible for people within this category to seek to be excused when parliamentary duties necessitate their personal attendance, for example, during sittings. The ability to be excused for good cause would be particularly relevant to senior officers whose attendance is necessary for the proper functioning of the Parliament while in session, such as the Clerks of each House, the Usher of the Black Rod and the Serjeant-at-Arms.⁴⁵

4.35 Lawyers are currently the subject of exclusion under several separate categories. Since there is an overlap, we shall deal with each category in this section, although we note that the general category concerned with Australian lawyers effectively excludes lawyers as a class, for life, whether or not they also fall into other categories of disqualification.

4.36 In NSW, “an Australian lawyer (whether or not an Australian legal practitioner)” is currently ineligible to serve as a juror.⁴⁶ Although a somewhat imprecise definition,⁴⁷ it is assumed that it is intended to embrace any person admitted to the legal profession in NSW, or any other Australian jurisdiction, whether or not they currently hold a practising certificate.⁴⁸

4.37 While Victoria has a similar provision to the one in NSW,⁴⁹ in all other Australian jurisdictions the restriction is limited to practising lawyers.⁵⁰

4.38 A traditional justification for excluding lawyers from juries is that they are thought to possess “legal knowledge and experience” that could possibly result in them exercising an “undue influence” on other jurors, and even usurping the role of the judge.⁵¹ However, it has also been pointed out that equally they may assist in helping fellow jurors to clarify the issues,⁵² inter alia, because of their experience in analysing facts and marshalling evidence.

4.39 Lord Justice Auld considered it “unlikely” that lawyers would exercise undue influence on their fellow jurors because of their status or position, suggesting that “people no longer defer to professionals or those holding particular office in the way they used to do”.⁵³ He noted that in a number of US States, where judges, lawyers and other relevant professionals have served on juries, experience has shown that “their fellow jurors have not allowed them to dominate their deliberations”.⁵⁴ In England and Wales, the provisions making law and justice professionals ineligible to serve have now been repealed,⁵⁵ although the right to seek to be excused or deferred has been preserved. The current guidelines suggest that an application on the basis that such a juror may be known to one of the parties in the trial should normally result in the juror’s service being deferred or in the juror being moved to a trial in “an alternative court where the excusal grounds may not exist”.⁵⁶ Similarly to judicial officers, lawyers now commonly serve as jurors without any apparent difficulty.

4.40 One submission to the Victorian Parliamentary Law Reform Committee’s review suggested that the ineligibility of lawyers was originally based on the fact that lawyers in the 19th century were a “fairly small group with a good network of communication”.⁵⁷ This is certainly not the case today. The practising profession in NSW is now very large and dispersed. Moreover, it is a profession that is characterised by widely divergent areas of practice and specialisation, some of which have no contact with the criminal law and where, for many, obtaining a qualification as a lawyer provides little more than a background to their employment in government service or in the corporate business world.

4.41 The contention that lawyers would overawe or control the jury is unsupported by experience elsewhere, ignores the obligation of jurors to decide cases in accordance with the directions of the trial judge, and fails to take account of the role of the jury, which is to find facts.⁵⁸ Moreover, there seems to be no reason in principle or otherwise to exclude lawyers who do not have any professional contact with the administration of the criminal law.

4.42 It is our view that this category is unjustifiably wide and that lawyers as a class should now be eligible to serve as jurors, subject to the exceptions noted below with respect to those public sector lawyers who are employed or engaged in the provision of legal services in criminal cases, or who hold certain defined offices central to the administration of the criminal justice system, and who currently fall, additionally, within the specific category of exclusion applicable to such people.

Crown Prosecutors, Public Defenders, Director or Deputy Directors of Public Prosecutions and Solicitors for Public Prosecutions

4.43 We accept that the case for maintaining the ineligibility of Crown Prosecutors, Public Defenders, Directors or Deputy Directors of Public Prosecutions and Solicitors for Public Prosecutions, is significantly stronger than that which applies to Australian lawyers as a class, by reason of their very close connection with the administration of the criminal justice system, both in relation to the prosecution of individual cases and the development of policy. We are satisfied that such ineligibility should continue. However, by reason of our recommendations in relation to the other group of lawyers which would fall within the class of Australian lawyers as a whole, we consider that it would be appropriate to add to this sub-group, those who hold the offices of Solicitor General, Crown Advocate and the Crown Solicitor. They are routinely expected to advise on matters concerning the criminal law, and on occasions to appear in the Court of Criminal Appeal, or in the High Court, in criminal appeals. Their connection with the criminal justice system is as intimate as that of the holders of the other specific offices mentioned.

4.44 Their continued ineligibility under the present law on a permanent basis⁵⁹ is less obvious. There was, in fact, some support, in consultations, for lawyers within this group being eligible to serve as jurors upon retirement.⁶⁰ One argument in favour of permitting service after retirement was that officers within this grouping have regularly been appointed as judges, with power to conduct judge alone trials, and there is no question of them having to wait out a qualifying period before commencing judicial duties.⁶¹

4.45 In our view, it would be appropriate that the ineligibility of lawyers within this category should expire three years after they cease to hold a relevant office. This would represent a sufficient period of separation from direct involvement in the criminal law and it would be consistent with the period that we consider appropriate for retired judicial officers⁶² and law enforcement officers.⁶³

People employed or engaged in the public sector in the provision of legal services in criminal cases

4.46 Although, as we have noted, some submissions supported the removal of exemptions for all lawyers,⁶⁴ some other submissions supported the continued ineligibility of those principally or substantially engaged in the provision of legal services in criminal cases, whether on behalf of the prosecution or defence.⁶⁵

4.47 The touchstone for ineligibility for those that fall within this sub-category is that they provide “legal services”. Although consistent with the definition adopted in the Legal Profession Act 2004 (NSW), that expression means “work done or business transacted, in the ordinary course of legal practice”,⁶⁶ a question does arise as to whether those who are currently ineligible under this heading include paralegals and other employees who provide support services for public sector agencies engaged in the prosecution or defence of criminal cases.

4.48 Clearly, this head of ineligibility applies to lawyers employed or engaged by the Director of Public Prosecutions, the Solicitor for Public Prosecutions, the Legal Aid Commission, and the Aboriginal Legal Service. The argument for their continued ineligibility is much the same as that for police officers. The prosecution or defence of criminal cases is their primary day-to-day concern and they are too intimately connected with the matters that are likely to come before the courts. Their presence on a jury would inevitably give rise to an appearance of bias if their office or position were known, and inevitably they would be subject to a challenge for cause.

4.49 Having regard to the manner in which these agencies carry out their functions, there is a case for extending the ineligibility to paralegals who provide support services for such agencies directly related to the prosecution or defence of criminal cases. The Legal Profession Act 2004 (NSW) s 7 does not appear to acknowledge specific categories of employee, and it may be necessary to deal with this group by way of a note to the schedule. Otherwise, there is a risk of a public perception of bias arising from their access to knowledge not otherwise available to the public, or from their identification with the prosecution or defence as the case may be.

4.50 The position is less compelling, however, for administrative and clerical staff, particularly those of the Office of the DPP, the Public Defender and the Legal Aid Commission, who are not directly involved in matters before the courts and who would not seem to be currently ineligible. In our view, there is no reason for their inclusion within the general category of persons ineligible on this ground, although they would have the capacity to seek to be excused for cause if they felt that the particular nature of their duties affected their impartiality.

4.51 We consider that the exclusion should apply to lawyers and paralegals within this group only so long as they are employed or engaged in the public sector in the relevant field. We do not see any need for a cooling-off period in their case, and note that, unlike the ineligibility attaching to senior officers last considered, the current legislation only provides for their ineligibility during the period of their engagement or employment.

Lawyers in private practice who are employed or engaged in the provision of legal services in criminal cases

4.52 Lawyers in private practice who, from time to time, or in some cases regularly, conduct criminal trials or appeals on behalf of defendants or on behalf of the Crown currently fall within the general exclusion of lawyers as a class. However, if that ground of ineligibility as a class is removed, a question arises whether they should, nevertheless, remain ineligible for reasons similar to those applicable to their counterparts in the public sector.

4.53 We see no reason why those who have a casual or occasional involvement in the defence or prosecution of criminal cases should be excluded from service as jurors. If they have a potential problem with a particular case or client, they could be expected to act professionally and apply to be excused.

4.54 This leaves for consideration the question whether those with a substantial involvement in the practice of criminal law should be excluded from juries. We recognise that any test of ineligibility depending on a criterion of “substantial involvement in the practice of the criminal law” or some similar criterion, would potentially raise questions of degree. This could give rise to a doubt about their eligibility, and consequently about the regularity of the empanelment of the jury. These factors, if identified during or after a trial, could, under the current law, give rise to the discharge of the jury during the trial, or to a post verdict appeal against conviction on the basis that a juror was improperly empanelled.

4.55 In deciding on the exclusion of this group of lawyers, a number of points should be considered. Previously, one reason advanced for excluding defence lawyers from juries was that, because of particular police practices, such as verballing and the planting of exhibits, they were likely to be antagonistic towards the police to the point where they might routinely reject their evidence. However, modern methods of gathering evidence, including taped interviews with suspects, surveillance footage, telephone and listening device intercepts, and scientific analysis have made juries less reliant on the kinds of evidence given by police that attracted criticism in the past. In eliminating undesirable police practices, they have removed one of the chief grounds for lawyers’ alleged antagonism towards the police.⁶⁷

4.56 Additionally, a characterisation of lawyers in private practice as being unable to give an unbiased consideration to all of the evidence presented in a case unfairly stigmatises them and falsely assumes that they have less interest in maintaining law and order than other members of the community.

4.57 In any case, the practice of the criminal law in NSW is so structured that those who specialise or practice substantially in this field, are readily identifiable, and will be likely to self identify, so that no difficulty should arise if someone with an obvious connection with the accused or witnesses is summoned or presents for empanelment and does not apply to be excused. Otherwise, the case for the maintenance of an appearance of justice is less compelling than that which would apply to lawyers employed or engaged in the public sector in the provision of legal services in these cases.

4.58 Accordingly, we do not recommend that any separate category of exclusion should apply to those who fall within this group of lawyers, or to their staff.

4.59 The approach outlined in the preceding discussion would accord with the general tenor of many submissions. They accepted that there was no reason why lawyers should be excluded as a class,⁶⁸ and that the continuing ineligibility of any particular category of lawyers should be justified by reason of some close connection with the criminal justice system that would make it undesirable, in the interests of maintaining an appearance of justice, that a member of that category should serve as a juror.

4.60 This would still leave it open for individual lawyers falling outside the excluded categories to be excused for good cause, if their practice, responsibilities or friendships were such that they could not bring (or appear to bring) an unbiased mind to the trial.⁶⁹

4.61 We recognise, however, that the limitation to practising lawyers in some jurisdictions is seen by some as a “sensible compromise”.⁷⁰ If adopted as the touchstone, it would exclude those who we have singled out for particular exclusion, although along with a much wider group of lawyers.

4.62 If the decision is made that Australian lawyers should continue to be ineligible, then the class of ineligible lawyers should in our view be confined (as a fall-back option) to those currently practising as such in NSW.⁷¹ This was supported by some submissions.⁷² As already noted, this is effectively the case in all other Australian jurisdictions, except Victoria.⁷³

4.63 As we have noted, the Act renders ineligible certain people who are currently “employed or engaged (except on a casual or voluntary basis) in the public sector in the fields of:

4.65 As we have observed, the Act renders ineligible people who are currently “employed or engaged (except on a casual or voluntary basis) in the public sector in law enforcement [or] criminal investigation”,⁷⁵ as well as separately excluding those who fall within the specific category of “Police officer”.⁷⁶ Together, these criteria would exclude those who are centrally involved in the investigation and prosecution of criminality, that is members of the core agencies, namely the NSW Police Force, the Australian Federal Police, the Australian Crime Commission, the NSW Crime Commission, the Police Integrity Commission, and the Independent Commission Against Corruption. For those who fall within the more general subcategories relating to “law enforcement” and “criminal investigation”, the ineligibility continues for so long as they are employed or engaged in the relevant positions. However, those who have at any time been a “police officer” are currently ineligible on a permanent basis.⁷⁷ The existence of this distinction gives rise to a question as to the identification of those who fall within the more general subcategories.

4.66 Serving police officers are expressly ineligible in most Australian jurisdictions.⁷⁸ However, the restriction on members of law enforcement or criminal investigation agencies other than police, and on retired police officers, goes further in NSW than most Australian jurisdictions. The other States have expressed the ineligibility or exemption by reference to “members of the Police Force”⁷⁹ or “Police Officers”.⁸⁰ Victoria is the only other State to exclude retired officers permanently.⁸¹ Tasmania excludes former police officers for 10 years,⁸² and WA excludes them for five years.⁸³

4.67 In 1965, the UK Departmental Committee on Jury Service considered it essential to the public confidence in the impartiality and lay character of the jury that all “those whose work is connected with the detection of crime and the enforcement of law and order must be excluded”.⁸⁴ The Committee also went so far as to state that civilian employees of the police service should also be ineligible on the grounds that, if they are employed for some time, “no matter in what capacity” they will:

4.69 The New York Jury Project concluded that the exemption of police officers was not justified because of the “large number of cases that do not implicate the special training or presumed biases of ... police officers, on which they could sit without any problem at all”.⁸⁸ This is not the case in NSW, where the vast majority of jury trials are of criminal matters.

4.70 Some submissions supported the removal of ineligibility for people falling within this category,⁸⁹ while many other submissions supported their continued exclusion.⁹⁰ Some of those who supported the continued exclusion of “police officers” considered that the ineligibility should extend only for a limited period after retirement,⁹¹ for the reason that, while actual or perceived biases could apply equally to retired officers as they could to serving officers, they would diminish over time.⁹² There was some lesser support in consultations for former police officers being eligible to serve immediately upon retirement.⁹³

4.71 It is our view that serving members of the core law enforcement agencies mentioned at the commencement of this section who are actually engaged in criminal investigation and law enforcement should continue to be ineligible. This follows from the fact that the vast majority of jury trials are criminal, and from the further fact that the primary job of these officers is the detection and charging of crime, so that it is likely that they would be aware of, or have access to, information concerning suspects that would not be available to private citizens and could not be adduced in evidence. In our view, it is important to maintain the community confidence in the impartiality and fairness of the jury system, which might be threatened if police or those centrally involved in criminal law enforcement were permitted to serve as jurors.

4.72 However, we do not consider that their ineligibility should be permanent. It is a fact that many members of the core law enforcement agencies, and particularly the NSW Police Force, hold such positions for relatively short periods,⁹⁴ and that career change is now very common. After a sufficient period, such people should be free of the attitudes, associations and access to information that could lead to actual or perceived bias. We recommend that in this case the period of ineligibility be one of three years from retirement.

4.73 We next note that the sub-categories “law enforcement” and “criminal investigation” are not defined, and that any imprecision as to their breadth could give rise to uncertainty and difficulty in the administration of the Jury Act. Similar definitional uncertainty arises in relation to the potential reach of the expression “employed or engaged” in these areas, for example, concerning whether they are confined to investigators or extend to support and administrative staff.

4.74 As we have observed, the case for ineligibility is persuasive in relation to those people whose functions are exclusively, or principally, involved in detecting and investigating criminality, and in initiating or conducting prosecutions in relation to matters that are generally regarded as criminal offences.⁹⁵ Less clear is the position of the staff of other agencies providing support or forensic services for regular law enforcement agencies, such as the Australian Government Analytical Laboratories,⁹⁶ the NSW Department of Forensic Medicine, the Division of Analytical Laboratories (including related agencies such as the Department of Forensic Science Criminalistics), CrimTrac and Austrac; or that of the staff of other regulatory or government bodies which, as part of their wider charter, have some involvement in detecting and investigating or referring criminal activity to other law enforcement agencies for investigation or prosecution. These bodies include, at a Federal level, inter alia, the security agencies, the Australian Taxation Office, the Australian Customs Service, the Australian Securities and Investments Commission, and the Australian Competition and Consumer Commission.⁹⁷

4.75 At the State level, there are a number of agencies with responsibilities for the enforcement of regulatory provisions, and for the enforcement of specific areas of legislation which create offences punishable by fine or otherwise. Their employees can be involved, for example, in investigating and prosecuting breaches in relation to road and public transport, fisheries, national parks, waterways, local government, occupational health and safety, cruelty to animals, the environment, and so on. Some of the employees of these agencies or departments hold office as special constables,⁹⁸ while some who formerly held such office now derive their investigative and arrest powers under specific legislation.

4.76 Not all of the members of staff of these agencies are employed directly in law enforcement or investigations; and, for most of them, their areas of concern are unlikely to be prosecuted in jury trials. Where they have had professional contact in relation to a particular case, or where they may be required to give evidence in relation to support services provided for such a case, they could expect to be excused for cause. Accordingly, we do not recommend that ineligibility attach as a class to the employees of these other agencies which might fall peripherally within the category of law enforcement if construed widely.

4.77 For similar reasons, we also do not consider that clerical, administration and support staff of the core policing agencies earlier mentioned should be excluded from jury service. Such an approach would be consistent with the narrower criteria in other States and Territories which apply only to sworn officers.

4.78 For more abundant clarity, we consider that it would be appropriate to include a description of the agencies in respect of which this category of ineligibility should apply, either in the schedule itself or by regulation, in place of the current somewhat general but imprecise criterion based simply on the employment or engagement of individuals in “law enforcement” or “criminal investigation”. The current criterion for ineligibility related simply or generally to employment or engagement in the public sector in law enforcement or criminal investigation would then be redundant. We consider that it would be provident to make it clear by note that the exclusion does not extend to clerical, administrative or support staff of these agencies.

4.79 Currently, those employed or engaged in the public sector in the administration of justice or penal administration are ineligible to serve as jurors.⁹⁹ Although the expression “administration of justice” is potentially ambiguous, several other jurisdictions include provisions of similar breadth. Victoria, like NSW, renders ineligible a person who is “employed or engaged... in the public sector” in the “administration of justice or penal administration”.¹⁰⁰ WA has provisions that essentially exempt Public Service staff and contractors engaged in assisting the Attorney General or Minister for Corrective Services to administer their respective Acts.¹⁰¹ SA refers to people “employed in a department of the Government ... whose duties of office are connected with the administration of justice or the punishment of offenders”.¹⁰² Tasmania also refers to people whose “duties or activities” are connected with “the administration of justice or punishment of offenders” but does not expressly limit them to government employees. The NT provisions exempt public sector employees in “an Agency primarily responsible for law and the administration of justice, prisons and correctional services or the administration of courts”.¹⁰³ Queensland, on the other hand, specifically identifies only detention centre employees and corrective services officers.¹⁰⁴

4.80 Some submissions supported the removal of ineligibility for people in this class,¹⁰⁵ while several submissions supported the continued exclusion of such people.¹⁰⁶ Some of those who supported continued ineligibility considered that it should also extend for a limited period after retirement.¹⁰⁷ As presently formulated, it only applies as a ground of ineligibility while the relevant employment or engagement continues.

4.81 There is considerable uncertainty as to the precise extent of this category of ineligibility so far as it applies to those within the justice sector which, in our view, needs to be addressed. There is also some degree of overlap with the other criteria which can give rise to uncertainty in its application. These include a possible overlap with the sub-categories last considered, as well as with the sub-categories applicable to Crown Prosecutors, Public Defenders, Directors and Deputy Directors of Public Prosecutions, Solicitors for Public Prosecutions, and to those employed or engaged in the public sector in the provision of legal services in criminal cases.

4.82 First, there is a question whether the expression “administration of justice” should be interpreted in its widest sense, or confined to the administration of criminal justice. In particular, there is a question as to whether it extends to those who are employed or engaged by any or all of the several courts, commissions or tribunals which exist, or by the Judicial Commission of NSW, the Mental Health Review Tribunal, the Attorney General’s Department (including Courts Services, for which Sheriff’s Officers work, and the Criminal Law Review Division), the NSW Law Reform Commission, the Sentencing Council of NSW, Community Justice Centres, the Crown Solicitor’s Office, the Bureau of Crime Statistics and Research, the Office of the Protective Commissioner, the Office of the Public Guardian, the Anti-Discrimination Board, Privacy NSW, the Victims Compensation Tribunal, Victims Services, the Office of the Legal Services Commissioner, the Professional Standards Council, and several other similar agencies which could be considered as broadly falling within the justice portfolio.

4.83 Secondly, assuming this ground of ineligibility applies to all or some of these agencies and statutory appointees, then questions arise as to which staff members this category embraces, and whether it applies, for example, to secretarial, administrative and clerical staff, or only to those holding offices directly associated with the administration of justice in its most general sense. Alternatively, the ground may only apply to those who work for the courts and agencies such as the Criminal Law Review Division or Sentencing Council, which are most directly concerned with the administration of the criminal law.

4.84 The category of people employed or engaged in the public sector in the administration of justice would, however, require greater definition either in the Schedule or by regulation, if it were to remain as a category of exclusion. It would need to be confined to those whose positions or duties bring them into direct contact with the criminal law, such that their impartiality or the appearance of justice might be in question. Otherwise, the potential would remain for uncertainty in relation to the eligibility of employees of the several organisations mentioned, which could ultimately impact upon the regularity of a trial.

4.85 Our preferred view is that exclusion should not apply to people employed or engaged in the administration of justice in its wider sense, that is, save for those who are directly involved in the criminal justice system and who would be excluded by reason of the categories previously mentioned, including judicial officers, the holders of statutory offices, and lawyers engaged in the provision of legal services in the public sector. Others who might potentially have been caught by the current general classification should still be able to apply to be excused for cause when they consider that their current office might jeopardise their impartiality or the appearance of justice.

People employed or engaged in the public sector in the administration of justice should be eligible for jury service, save so far as they would be ineligible by reason of other grounds of ineligibility.

4.86 People employed or engaged in the public sector in penal administration stand in a different position, and we are of the view that there is a proper case for their continuing ineligibility, subject to some greater definition of the expression “penal administration”. A particular reason for the ineligibility of Corrective Services and Juvenile Justice officers, and of staff of those agencies, such as those who are employed in Corrections Health, is that, in the course of their employment, they regularly come into contact with people who have been remanded in custody pending trial or who have been convicted and sentenced to imprisonment after trial by a jury. This would present particular problems of personal safety within the correctional environment if they happened to serve on juries in trials involving such inmates.¹⁰⁸ Similar risks could arise if it became known that they had served as jurors on trials of the associates of these inmates.

4.87 Moreover, there is a risk that, through contact with these offenders, they would acquire specialised knowledge of their antecedents and character that would not be admissible in a criminal trial, and that could extend beyond the bare bones of their criminal histories. The perception of possible bias, the risk of identification, and the risk of personal harm arising from their continual close contact with people in custody collectively justify the continued exclusion of Corrective Services, Juvenile Justice officers and staff who have direct contact with offenders subject to the penal system. The perception of possible bias and the risk of identification could also apply to members of the Parole Authority, the Serious Offenders Review Council, the Mental Health Review Tribunal, and officers of the Probation and Parole Service and Justice Health.

4.88 Again, by reason of the ambiguity inherent in the expression “penal administration”, and its possible application to support, clerical and other staff having no direct access to or communication with offenders subject to the penal system, for whom no reason for ineligibility attaches, it would be desirable more specifically to identify the ambit of this ground of ineligibility by regulation.

Corrective Services Officers and Juvenile Justice Officers should be excluded from jury service.

Employees, members and officers of the Department of Corrective Services, Parole Board, Serious Offenders Review Council, the Mental Health Review Tribunal, Probation and Parole Service and Justice Health, who have direct access to prisoners or information about prisoners, should be excluded from jury service.

4.89 The Ombudsman and Deputy Ombudsman are both listed as people who are currently ineligible to serve.¹⁰⁹ As we observe later, the identification of these two office-holders does not reflect the current executive structure of the Office of the NSW Ombudsman and may require greater definition, either in the Act or by regulation, so as to reflect the executive structure of the Office at any given time. The current ineligibility does not extend to employees of the Office.

4.90 The Ombudsman’s Office relevantly exercises specific oversight functions in respect of police officers, correctional officers and Sheriff’s officers. It may be called on:

4.92 In Victoria, the Ombudsman, Deputy Ombudsman and employees of the Ombudsman are ineligible to serve.¹¹⁰ It is not clear on what basis they were made ineligible, save possibly because of the importance of their duties, or because of their specialised knowledge gained through performing their functions concerning complaints against the police.¹¹¹ Since 2004, the Victorian Ombudsman also holds the position of Director, Police Integrity, and, through the Office of Police Integrity, has a direct law enforcement role.¹¹² The Victorian Parliamentary Law Reform Committee, in 1996, recommended the repeal of the exemption for the Ombudsman and his or her officers,¹¹³ but that recommendation has not been accepted.

4.93 The NT similarly exempts the Ombudsman and employees in the Office of the Ombudsman.¹¹⁴ In WA, the Parliamentary Commissioner for Administrative Investigations (the formal title of the WA Ombudsman) is also ineligible to serve as a juror. The Law Reform Commission of WA recommended that this officer be ineligible on the ground that he or she “can broadly be said to act as an agent of Parliament in investigating allegations of Government maladministration”.¹¹⁵

4.94 Some submissions questioned or challenged the continued exclusion of the Ombudsman and Deputy Ombudsman.¹¹⁶ Others, however, considered that they should continue to be excluded.¹¹⁷

4.95 One submission suggested that “the personnel of supervisory bodies such as the Ombudsman ... are potentially engaged in another element of the justice system and may be called on to deal with matters that are also the subject of criminal law proceedings. However only those staff with statutory appointments have the capacity to make binding determinations and therefore ineligibility should be extended only to statutory officers of such agencies”.¹¹⁸

4.96 The Ombudsman and Assistant Ombudsman (Police) have a significant and direct role in responding to complaints concerning police, and in monitoring their compliance with relevant laws, including those relating to telecommunication interception, controlled operations, and so on, and they have direct access to many police records.

4.97 It is our view that the holders of the offices of Ombudsman and Assistant Ombudsman (Police) have a substantial involvement in activities closely connected with the criminal justice system such that their personal ineligibility should continue. Although those holding the remaining specific offices of Deputy or Assistant Ombudsmen do not have quite so direct a role in this area of the justice system, we consider that the positions are so closely allied that they should also be excluded from jury service.

4.98 The question then arises whether officers of the Ombudsman should also be excluded from jury service, as the NSW Ombudsman has argued in his submission to the Commission.¹¹⁹ The service on juries of officers of the Ombudsman potentially gives rise to perceptions of partiality or conflict of interest since they have been involved in investigating the exercise of functions by the police, correctional officers or officers of the Sheriff, or dealing with complaints about them. We, therefore, support the exclusion of such officers from juries. Given the breadth of functions of the Ombudsman’s office, the justification for this exclusion would not extend to all officers of the Ombudsman. However, the difficulty of characterising the functions of individual officers, and the movement of officers within the Office, mean that it is impossible to restrict the exclusion to those officers who are performing particular functions at any one time. We are, therefore, of the view that the exclusion should apply to all officers of the Ombudsman, other than clerical, administrative or support staff.

4.99 The restriction on the spouses (including partners)¹²⁰ of some ineligible people serving as jurors was removed in NSW in 1996. That ineligibility is still in place in South Australia.¹²¹ It also exists in the Northern Territory but is limited to the spouses and de facto partners of judges.¹²²

4.100 The exclusion of spouses, where it exists, is apparently based on a belief that “these people are so influenced by their partners that they would be unable to remain impartial as jurors”.¹²³ However, reviews have generally found no reason why a spouse or partner of a person rendered ineligible on account of his or her office or occupation should be ineligible for that reason alone.¹²⁴

4.101 Several submissions rejected the idea that spouses or partners of ineligible people should again be made ineligible.¹²⁵ One submission noted the potentially limitless category of those who could come under some form of influence from their association with, for example, prosecutors or police, including their parents, children, siblings, former spouses, best friends and so on.¹²⁶

4.102 Two submissions considered that the spouses or partners of such people should be ineligible because they would be unable to bring an unbiased mind to the case before them¹²⁷ or by reason of the risk of apprehension of bias.¹²⁸

4.103 Several law reform bodies have concluded that the question of spouses being excused should be dealt with on a case by case basis so as to cater for the individual case where a spouse or partner’s status may cause difficulties.¹²⁹ This could arise following a request to be excused for good cause, or by way of a challenge for cause. Some submissions agreed that this would be the best way to deal with such situations.¹³⁰

4.104 In our view, spouses, partners and other relatives of ineligible people should continue to be eligible to serve as jurors, subject to the possibility of being excused for good cause in particular cases.

4.105 Not all of the reasons for ineligibility listed above would be strictly applicable to jurors summoned for civil trials. For example, in the case of civil trials, there are fewer reasons for exempting from jury service those associated with the administration of law and justice, or with criminal investigations, and penal administration. The possible appearance of partiality or loss of confidence in the justice system, that could arise if people with criminal records were to serve as jurors in criminal cases, may not apply so readily in civil cases.

4.106 One approach that was considered in the Issues Paper was to create a narrower category of ineligibility for civil jury trials. This was addressed by three submissions which supported the creation of a different regime in the case of civil juries, providing for fewer categories of exclusion.¹³¹ However, the administrative difficulty involved in dealing separately with the tiny proportion of civil jury trials that are now likely to occur,¹³² and the cost ineffectiveness of any such scheme, militates against creating a separate category of exclusion for such trials.¹³³

3. United Kingdom, Home Office, Report of the Departmental Committee on Jury Service, Cmnd 2627 (1965), [101].

6. Jury Act 1977 (NSW) Sch 2 item 2; Juries Act 2003 (Tas) Sch 2 cl 2; Juries Act 2000 (Vic) Sch 2 cl 1(b); Jury Act 1995 (Qld) s 4(3)(d); Juries Act 1957 (WA) Sch 2 Part 1 cl 1(a)-(ea); Juries Act 1927 (SA) Sch 3 cl 2; Juries Act 1963 (NT) Sch 7; Juries Act 1967 (ACT) Sch 2 Part 2.1 items 2, 13, 16.

7. See, eg, R E Auld, Review of the Criminal Courts of England and Wales (HMSO, 2001), 147-148; S S Abrahamson, “Justice and Juror” (1986) 20 Georgia Law Review 257, 276-278, 296-297; and C L Hinchcliff, “Portrait of a juror: A selected bibliography” (1986) 69 Marquette Law Review 495, 496-499.

8. R E Auld, Review of the Criminal Courts of England and Wales (HMSO, 2001), 148.

10. England and Wales, Department for Constitutional Affairs, “Guidance for summoning officers when considering deferral and excusal applications”, [18] �http://www.hmcourts- service.gov.uk/docs/guidance for_summoning officers_0405%20.doc� (accessed 20 October 2006).

11. NSW Public Defender’s Office, Submission, 4-5; M J Stocker, Submission, 6; NSW Bar Association, Submission, 4.

12. Redfern Legal Centre, Submission, 7; J Goldring, Submission, 3; NSW Jury Task Force, Submission, 1; NSW Young Lawyers, Submission, 7-8; A Abadee, Consultation.

15. Ministers are appointed from among the members of the Executive Council: Constitution Act 1902 (NSW) s 35E(1).

18. See generally R v Richards; ex parte Fitzpatrick and Browne (1955) 92 CLR 157.

19. Quoted in C J Boulton, Erskine May’s Treatise on The Law, Privileges, Proceedings and Usage of Parliament (Butterworths, 1989), 101.

20. C J Boulton, Erskine May’s Treatise on The Law, Privileges, Proceedings and Usage of Parliament (Butterworths, 1989), 101.

21. Parliament of NSW, Parliamentary Privilege, Report from the Joint Select Committee of the Legislative Council and Legislative Assembly (1985), 14-19. See also J Quick and R R Garran, The Annotated Constitution of the Australian Commonwealth (1901), 503-504.

22. Kielley v Carson (1842) 4 MooPC 63; 13 ER 255. But see K Roberts-Wray, Commonwealth and Colonial Law (Stevens and Sons, 1966), 383-387.

23. J R A Dowd, Parliamentary Privilege in New South Wales, Discussion Paper (Legislation and Policy Division, NSW Attorney General’s Department, 1991), 12.

24. E Campbell, Parliamentary Privilege in Australia (Melbourne University Press, 1965), 72.

25. C J Boulton, Erskine May’s Treatise on The Law, Privileges, Proceedings and Usage of Parliament (Butterworths, 1989), 101-102. The privilege is available to members of the Commonwealth Parliament for five days either side of a day on which the member is required to attend either the Parliament or one of its committees: Parliamentary Privileges Act 1987 (Cth) s 14.

27. Juries Act 2003 (Tas) Sch 2 cl 6; Juries Act 2000 (Vic) Sch 2 cl 1(i); Juries Act 1957 (WA) Sch 2 Part 1 cl 2; Juries Act 1927 (SA) Sch 3 cl 2; Jury Act 1995 (Qld) s 4(3)(b); Juries Act 1963 (NT) Sch 7; Juries Act 1967 (ACT) Sch 2 Part 2.1 item 14.

28. Juries Act 1957 (WA) Sch 2 Part 1 cl 2; Juries Act 2000 (Vic) Sch 2 cl 1(i).

29. United Kingdom, Home Office, Report of the Departmental Committee on Jury Service, Cmnd 2627 (1965), [148].

30. R E Auld, Review of the Criminal Courts of England and Wales (HMSO, 2001), 150.

31. Parliament of Victoria, Law Reform Committee, Jury Service in Victoria, Final Report (1996), [3.154].

33. Law Reform Commission of Western Australia, Exemption from Jury Service, Report, Project No 71 (1980), [3.12].

34. NSW Bar Association, Submission, [21]; NSW Public Defender’s Office, Submission, 5; M J Stocker, Submission, 6; NSW Jury Taskforce, Submission, 2.

35. NSW Public Defender’s Office, Submission, 5; M J Stocker, Submission, 6.

36. Legal Aid Commission of NSW, Submission, 10; Redfern Legal Centre, Submission, 8; NSW Young Lawyers, Submission, 9.

40. See also the “high public profile” excuse, Recommendation 33(l), Chapter 7.

42. NSW Bar Association, Submission, [21]; NSW Jury Taskforce, Submission, 2; M J Stocker, Submission, 6; J Goldring, Submission, 3; NSW Public Defender’s Office, Submission, 6; Redfern Legal Centre, Submission, 2.

45. Parliament of Victoria, Law Reform Committee, Jury Service in Victoria, Final Report (1996), [3.155].

47. As it is in the context of legal professional privilege: see NSW Law Reform Commission, Uniform Evidence Law, Report 112 (2006), [14.82]-[14.100].

49. Juries Act 2000 (Vic) Sch 2 cl 1(e). See Legal Profession Act 2004 (Vic) s 1.2.2 and s 1.2.3.

50. Juries Act 2003 (Tas) Sch 2 cl 3; Juries Act 1927 (SA) Sch 3 cl 2; Jury Act 1995 (Qld) s 4(3)(f); Juries Act 1957 (WA) Sch 2 Part 1 cl 1(f); Juries Act 1963 (NT) Sch 7; Juries Act 1967 (ACT) Sch 2 Part 2.1 Item 5. The NT includes articled clerks, and Victoria and the ACT include employees of practising lawyers. See Juries Act 2000 (Vic) Sch 2 cl 2(c).

51. See, eg, Victoria, Law Department, Jury Service in Victoria, Joint paper presented to the Honourable the Attorney-General by the Secretary and Assistant Secretary to the Law Department (1967), Appendix A; Queensland, Parliamentary Debates (Hansard) Legislative Assembly, 16 May 1996, 1192; New Zealand, Law Commission, Juries in Criminal Trials, Report 69 (2001), [189].

52. Law Reform Commission of Western Australia, Exemption from Jury Service, Report, Project No 71 (1980), [3.19].

53. R E Auld, Review of the Criminal Courts of England and Wales (HMSO, 2001), 147. See also Queensland, Parliamentary Debates (Hansard) Legislative Assembly, 5 December 1996, 5026.

54. R E Auld, Review of the Criminal Courts of England and Wales (HMSO, 2001), 147.

56. England and Wales, Department for Constitutional Affairs, “Guidance for summoning officers when considering deferral and excusal applications” Item 18 �http://www.hmcourts- service.gov.uk/docs/guidance_for summoning officers_0405%20.doc� (accessed 20 October 2006).

57. Parliament of Victoria, Law Reform Committee, Jury Service in Victoria, Final Report (1996), [3.83].

64. NSW Bar Association, Submission, [13]; NSW Public Defender’s Office, Submission, 4; M J Stocker, Submission, 6; Redfern Legal Centre, Submission, 7; NSW Jury Taskforce, Submission, 1; Consultation; A Abadee, Consultation. See also J Goldring, Submission, 3.

65. Legal Aid Commission of NSW, Submission, 10; Office of the DPP (NSW), Submission; NSW Young Lawyers, Submission, 8.

67. See M Cunneen, “Getting it right: Juries in criminal trials” (2007) 90 Reform 43, 43.

68. Legal Aid Commission of NSW, Submission, 10; NSW Bar Association, Submission, [13]; NSW Public Defender’s Office, Submission, 4; M J Stocker, Submission, 6; Redfern Legal Centre, Submission, 7; NSW Jury Taskforce, Submission, 1; Criminal Justice Agencies Consultation; A Abadee, Consultation. See also J Goldring, Submission, 3.

69. One submission suggested that a personal friendship with the trial judge or one of the lawyers involved in the case should be a ground of exemption for “good cause”: NSW Bar Association, Submission, [13].

70. Parliament of Victoria, Law Reform Committee, Jury Service in Victoria, Final Report (1996), [3.88].

71. That is, an Australian Lawyer in accordance with Legal Profession Act 2004 (NSW) s 6(a): NSW Bar Association, Submission, [15].

72. NSW Young Lawyers, Submission, 7; J Goldring, Submission, 3; Legal Aid Commission of NSW, Submission, 10.

73. Juries Act 2003 (Tas) Sch 2 cl 3; Juries Act 1927 (SA) Sch 3 cl 2; Jury Act 1995 (Qld) s 4(3)(f); Juries Act 1957 (WA) Sch 2 Part 1 cl 1(f); Juries Act 1963 (NT) Sch 7; Juries Act 1967 (ACT) Sch 2 Part 2.1 Item 5. But see Juries Act 2000 (Vic) Sch 2 cl 1(e); and Legal Profession Act 2004 (Vic) s 1.2.2 and s 1.2.3.

78. Juries Act 2003 (Tas) Sch 2 cl 5; Juries Act 2000 (Vic) Sch 2 cl 1(g); Juries Act 1957 (WA) Sch 2 Part 1 cl 2(h); Jury Act 1995 (Qld) s 4(3)(g); Juries Act 1963 (NT) Sch 7; Juries Act 1927 (SA) Sch 3 cl 2; Juries Act 1967 (ACT) Sch 2 Part 2.1, Item 10.

79. Juries Act 2000 (Vic) Sch 2 cl 1(g); Juries Act 1927 (SA) Sch 3 cl 2; Juries Act 1963 (NT) Sch 7.

80. Juries Act 1957 (WA) Sch 2 Part 1 cl 2(h); Juries Act 2003 (Tas) Sch 2 cl 5; Jury Act 1995 (Qld) s 4(3)(g); Juries Act 1967 (ACT) Sch 2 Part 2.1 Item 10.

84. United Kingdom, Home Office, Report of the Departmental Committee on Jury Service, Cmnd 2627 (1965), [103].

85. United Kingdom, Home Office, Report of the Departmental Committee on Jury Service, Cmnd 2627 (1965), [110].

86. R E Auld, Review of the Criminal Courts of England and Wales (HMSO, 2001), 147.

87. R E Auld, Review of the Criminal Courts of England and Wales (HMSO, 2001), 147.

88. The Jury Project, Report to the Chief Judge of the State of New York (1994), 32.

89. NSW Bar Association, Submission, [18]; M J Stocker, Submission, 6; A Abadee, Consultation.

90. Office of the DPP (NSW), Submission; NSW Public Defender’s Office, Submission, 5; Redfern Legal Centre, Submission, 7; J Goldring, Submission, 3; NSW Jury Taskforce, Submission, 1 (Police officers only); NSW Young Lawyers, Submission, 8; Commonwealth Director of Public Prosecutions, Submission, 2.

91. Two years: NSW Public Defender’s Office, Submission, 5; Redfern Legal Centre, Submission, 7.

95. Members of the AFP and members and examiners of the Australian Crime Commission are exempted under the Commonwealth Act: Jury Exemption Act 1965 (Cth) Schedule; and Jury Exemption Regulations 1987 (Cth) Reg 5(2)(h).

96. Chemists with the Australian Government Analytical Laboratories are exempted under Jury Exemption Regulations 1987 (Cth) Reg 5(2)(c) when their duties include appearing in court as expert witnesses.

97. The Jury Exemption Regulations 1987 (Cth) will exclude some of these agencies and some of these staff.

106. Office of the DPP (NSW), Submission, 1; NSW Public Defender’s Office, Submission, 5; Redfern Legal Centre, Submission, 7; J Goldring, Submission, 3; Commonwealth Director of Public Prosecutions, Submission, 2; NSW Jury Taskforce, Submnission, 1 (Corrective Services officers only); NSW Young Lawyers, Submission, 8.

107. Two years: NSW Public Defender’s Office, Submission, 5; Redfern Legal Centre, Submission, 7.

109. Jury Act 1977 (NSW) Sch 2 item 9. This category was first inserted by Jury Regulation 1977 (NSW) cl 13.

111. Parliament of Victoria, Law Reform Committee, Jury Service in Victoria, Final Report (1996), [3.130].

113. Parliament of Victoria, Law Reform Committee, Jury Service in Victoria, Final Report (1996), [3.131].

115. Law Reform Commission of Western Australia, Exemption from Jury Service, Report, Project No 71 (1980), [3.13]

116. NSW Public Defender’s Office, Submission, 6; M J Stocker, Submission, 7; NSW Bar Association, Submission, [21]; NSW Jury Task Force, Submission, 2.

117. NSW Young Lawyers, Submission, 10; Redfern Legal Centre, Submission, 8-9; B Barbour, Submission.

120. De facto partners were added in 1987: Jury (Amendment) Act 1987 (NSW) Sch 1[23].

123. M Findlay, Jury Management in New South Wales (Australian Institute of Judicial Administration Inc, 1994), 37. See also United Kingdom, Home Office, Report of the Departmental Committee on Jury Service, Cmnd 2627 (1965), [116].

124. United Kingdom, Home Office, Report of the Departmental Committee on Jury Service, Cmnd 2627 (1965), [117]; Law Reform Commission of Western Australia, Exemption from Jury Service, Report, Project No 71 (1980), [3.29]; 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. However, the South Australian Sheriff’s Office, in 2002, suggested that the practice of excluding spouses may be a safe practice to adopt and was justified in less populated areas: South Australia, Sheriff’s Office, South Australian Jury Review (2002), 14.

125. Redfern Legal Centre, Submission, 8; NSW Jury Taskforce, Submission, 1; NSW Young Lawyers, Submission, 9; M J Stocker, Submission, 6; M J Stocker, Submission, 6; NSW Public Defender’s Office, Submission, 5.

129. Parliament of Victoria, Law Reform Committee, Jury Service in Victoria, Final Report (1996), [3.76]; Law Reform Commission of Western Australia, Exemption from Jury Service, Report, Project No 71 (1980), [3.30].

131. NSW Bar Association, Submission, [20]; NSW Public Defender’s Office, Submission, 3; NSW Young Lawyers, Submission, 4.

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