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

7.1 In NSW, there are two provisions which give the Sheriff the power to excuse a person from attendance for jury service. First, the Sheriff may excuse a person from attendance for jury service for good cause, at any time before being summoned, because of “any matter of special importance or any matter of special urgency”.¹ Secondly, the Sheriff (or Court or Coroner) may excuse a person who has been summoned for jury service for “good cause” for the whole or any part of the time that his or her attendance is required.²

7.2 The first provision must be taken as applying only to those people who have received a notice of inclusion, but who have not yet been summoned. It has been interpreted by the Sheriff as requiring the disclosure of a good cause to be excused, as well as circumstances amounting to “special importance” or “special urgency”.

7.3 At present, “good cause” is not defined by statute, and there is no legislative guidance for determining what constitutes good cause.³ The Sheriff has, however, developed guidelines for the assistance of that office, and the website of the Office of the Sheriff provides some limited guidance as to the procedure which those who seek to be excused must follow.

7.4 The Sheriff’s guidelines attempt to distinguish between applications for excusal at the notice of inclusion stage and those made in response to a summons. However, there is a substantial degree of overlap between the criteria listed in the guidelines, for example, in the areas of education, machinery of government, and conduct of business.⁴ We understand that, in practice, an application to be excused, which is made at the notice of inclusion stage, will not normally be granted if it can be dealt with later under the “good cause” provision after a summons has been issued. Hence, the category of members of particular religious bodies⁵ is listed in the guidelines only as a ground of excusal for good cause once a summons has been issued,⁶ even though it might be more appropriately listed as a ground for excusal at the notice of inclusion stage.

7.5 As previously noted, a person does not currently have good cause to be excused on the ground that he or she is entitled to be exempted as of right if that person was entitled, but failed, without reasonable cause, to claim exemption in response to the questionnaire sent out with the notice of inclusion.⁷ In practice, however, it is likely that any person who omitted to make that claim when receiving the notice of inclusion will be excused if the claim is made to a court after service of the summons.

7.6 Commonly, applications to be excused are dealt with by the Office of the Sheriff on the paper in advance of a trial. Depending on the location of the courthouse, applications made on the day of the trial will be considered in the first instance by a Sheriff’s officer or, if at the Downing Centre in Sydney, by an administrative officer. Where there is any doubt over the genuineness of the claim or its strength, the issue is normally reserved for the trial judge or for the coroner holding the inquest.

7.7 The Sheriff’s internal guidelines for the exercise by his or her officers of the discretion to excuse recognise that there are many potential grounds for such an application. They include, for example, the fact that the potential juror has booked and paid for a holiday during the period of the trial, or is suffering a temporary illness, or has university or TAFE commitments or examinations, or cannot be replaced in his or her employment because of staff shortages or other exigencies of business.

7.8 While not bound by the guidelines, and generally not privy to them, since they have not been made available outside the office, judges and coroners routinely excuse jurors for similar reasons. They also excuse jurors when, following the preliminary information given to the jury panel as to the nature of the charge or action and the identities of those involved, members of the panel seek to be excused because of an inability to give impartial consideration to the case.⁸

7.9 The Sheriff may require that any request to be excused be supported by a statutory declaration annexing, for example, a medical certificate or travel itinerary, or a letter from an employer, while a judge or coroner can require the person seeking to be excused to give evidence on oath. In exercising their power to excuse jurors, judges rarely give attention to the restriction that relates to people who, after receipt of the notice of inclusion, failed to claim, without reasonable excuse, their entitlement to exemption under the Act.⁹ This arises because they do not have the relevant information placed before them, and also because, faced with an application to be excused on the basis of a demonstrated right to exemption, by an obviously unwilling juror, they are likely to take the pragmatic course of letting that juror go. Otherwise, they can be almost certain that there will be a peremptory challenge, since the parties normally prefer that obviously unwilling jurors are not empanelled.

7.10 The practice of judges dealing with applications for excusal varies. Some deal with the applications in chambers, in the absence of the parties, if the application is supported by a medical certificate or other documentation. Other judges only deal with the applications in court in the presence of the parties. Some require the applicant to be sworn or to make an affirmation while others allow the application to be made orally from the well of the court. It is recognised that the occasion of making the application in open court can be a deterrent or a cause of embarrassment, particularly if the reasons involve personal medical matters or require disclosure, for example in a sexual assault prosecution, that the potential juror had been the victim of such an assault. While a degree of flexibility is sensible, it seems desirable that, where an applicant wishes the relevant grounds to be dealt with discreetly, he or she should be permitted to reduce them to a document to be handed up to the judge. Generally, counsel do not become involved in the excusal process, and we see no reason for any alteration of that practice, or for their being involved in any way in the application, except as observers where the application is made in court.

7.11 In 2006, 39,688 potential jurors were excused for good cause before attending, and, of those who attended for jury service, a further 9,428 were excused by the Sheriff and 2,457 by a judge.¹⁰

7.12 Subject to the following recommendations, we generally support the continuance of a system whereby the Sheriff or the court can excuse a potential juror for good cause after he or she has received a summons. Such a system is particularly necessary if, as the result of our recommendations, the categories of ineligibility and entitlement to be exempted as of right are to be substantially reduced or eliminated. Moreover, it has the advantage of flexibility. This position was supported by the majority of submissions.¹¹

7.13 If our recommendations concerning the way in which jurors should be summoned directly from the electoral rolls, without the intermediate step of issuing a notice of inclusion are accepted, then the first of the existing powers of the Sheriff to excuse people from serving as jurors would be redundant. If not, then we question the value of maintaining separate tests for the application of the two provisions, having regard to their overlap.

7.14 We consider it desirable for the Act to establish a general definition of “good cause” that would encompass situations where:

7.16 Before excusing a potential juror, the Sheriff or court should, in our view, be able to consider allowing a deferral or allocation to a panel for a short trial.

7.17 Many submissions were generally supportive of a discretion to grant deferrals in some cases.¹⁵ However, some submissions, while considering it desirable in theory, warned that, in practice, the administrative difficulty in implementing the system would outweigh the benefits arising from giving people the opportunity to seek deferral to a more convenient time.¹⁶

7.18 The New York Jury Project has observed that a discretionary system allowing for deferral relies on the ability of officials to distinguish between “situations where a citizen can make alternate arrangements if allowed to defer service to a more convenient time” and those where a more general or lengthier release from service is appropriate.¹⁷ Under the guidelines in place in England and Wales, the relevant officer is encouraged to grant a deferral in the first instance. These include Members of Parliament, who can be offered deferral to a time when parliamentary duties permit, as well as students and teachers or lecturers, who should be offered deferral to a period outside of term time. Those seeking to be excused on the grounds of work commitments can also be offered a deferral to a time which better accommodates work commitments unless an exemption is clearly necessary.¹⁸

7.19 The New Zealand Law Commission has also recommended the adoption of a deferral system, preferring it to the adoption of a stricter set of guidelines for excusing jurors. The Commission expected that under such a system:

7.21 We recognise that there can be problems with managing a system whereby people are offered alternative times that are more suitable. The New York Jury Project observed that allowing multiple deferrals “does not foster public respect for the jury system”.²²

7.22 We consider it appropriate that potential jurors, if otherwise eligible to be excused, should be allowed one opportunity to defer and to nominate dates within the coming 12 months when they will be available (and for how long). Depending on the nature of the reason for being excused and for receiving a deferral, it may be possible to allocate a juror to a panel for short trials. We consider, however, that multiple deferrals should be discouraged by an appropriate exercise of discretion.

7.23 The system proposed would be one of deferral to a particular date or dates, rather than keeping a potential juror on call for later in the same week or fortnight. Allowing deferral to a fixed date or range of dates would not offend the principal of random selection, as the deferred jurors have already been randomly selected, they still stand to be selected from the jury pool to which they have been deferred, and there will generally be no means of predicting on which trial they will serve, if any.

7.24 A significant number of submissions opposed or questioned the creation of a statutory list of potential reasons for exercising the discretion to excuse for good cause, on the grounds that any such list would tend to give rise to a de facto right to claim an exemption, or would, at least, provide a template of potential excuses that could be abused by those who set out to avoid jury service.²³ Some submissions preferred a statutory list of “good reasons” to encourage more consistent decisions,²⁴ while others simply emphasised the need to have a clear, well-publicised list that would introduce greater certainty and consistency.²⁵

7.25 In our view, it would be appropriate for guidelines to be prepared and published that could assist the Sheriff’s exercise of discretion in excusing jurors for good cause, or in deferring the time at which those who seek to be excused might still be required to serve. In outlining the matters that may be appropriately included in the guidelines, the Commission has had regard to the guidelines that currently apply in other Australian jurisdictions.²⁶

7.26 The guidelines should be published, but should not be included in the Jury Act, or so worded as to harden into de facto entitlements to exemption. Their application should follow the example in England and Wales and envisage deferral in the first instance, or allocation to a short trial where that might relieve the inconvenience or hardship which would otherwise be occasioned.

7.27 Most of the possible reasons to be excused which could be included in the guidelines are self-evident, although to some extent they have been examined earlier in this report in relation to the existing categories of ineligibility or exemption as of right.

7.30 Currently, conscientious objection to jury service is not a ground of exemption as of right in NSW. The Sheriff’s guidelines do, however, recognise conscientious objection on the grounds of religious belief in so far as they allow consideration to be given to excusing Christadelphians, Seventh Day Adventists, Jehovah’s Witnesses and Brethren²⁸ from jury service.²⁹ On occasions, members of other groupings, religious or otherwise, have applied to trial judges, and have been excused for this reason. The basis for such decisions is that, while their particular claim to objection might not withstand scrutiny, it is inevitable that they will be challenged if not excused, or alternatively that the judge does not wish to run the risk of having a hung jury as the result of the objecting juror refusing to participate in the verdict.

7.31 A few submissions supported conscientious objection being added as a ground for exemption as of right, in the event that such exemption was maintained.³⁰ One submission, however, suggested that such an exemption should be “worded in such a way that it is less likely to be used as a pretext for people who object simply to the inconvenience of performing jury service”,³¹ since it is easy to claim adherence to some faith or religious group or philosophy that embraces such a tenet, yet difficult to disprove the legitimacy of such a claim.

7.32 Some submissions rejected conscientious objection as an additional ground for exemption as of right, preferring it to remain a ground for excuse so long as it could be objectively substantiated.³² One submission considered that there should be no provision for conscientious objection.³³

7.33 Another submission suggested that people who seek to be excused on the ground of their conscientious beliefs should be prepared to pay a fine or perform some other form of community service, in recognition of the fact that otherwise they expect to receive the benefits and entitlements of community membership.³⁴ Although no submission expressly made the point, those who claim to be excused for this reason are effectively passing to others the burden of ensuring that the criminal justice system requiring trial by jury continues to operate, and would presumably expect it to continue to do so if they were themselves the victims of crime or charged with some criminal offence.

7.34 Making conscientious objection to jury service a ground for a person to be excused is consistent with the Victorian Parliamentary Law Reform Committee’s recommendation. The Committee preferred that it be available as a ground for a person to be excused from service for cause, rather than as a ground of exemption as of right, since the need for a satisfactory demonstration of its existence would reduce the risk of it being abused by those who lack a genuinely-held belief.³⁵ We agree with this view. In particular, we consider it undesirable that people who genuinely hold such beliefs should be forced to serve with the consequent risk of them refusing to take part in the deliberations which are essential to the return of a verdict. The availability of majority verdicts in all cases other than those involving offences under Commonwealth laws does not completely address this concern. In many instances, a judge, informed after empanelment that a member of the jury has indicated an intention not to participate in the jury discussions or to participate in a verdict, would feel constrained to discharge the jury. Whether this occurs or not, the parties to the trial would, in any event, be denied the opportunity of having the full jury assess the case on its merits. Accordingly, we recognise that the demonstrated existence of a conscientious objection to jury service should be included in the guidelines as a ground to be excused for cause.

7.35 The plight of small business owners, and of sole practitioners, has been raised formally from time to time,³⁶ and is frequently raised in support of an application to be excused for good cause by reason of the interruption to the running of the business or practice, and the risk of a possible loss of clients or of income.³⁷ Some submissions also raised the issue of the apparent unfairness of the current system to proprietors of small business, especially in light of the poor remuneration offered to jurors and the calls upon their time.³⁸

7.36 We accept that, in appropriate cases, this can provide good cause for a juror to be excused or deferred upon sufficient proof of the likely adverse effect to the business or practice, and of the absence of suitable alternative arrangements. Additionally, there would be occasion for such a person to be excused if he or she works in a business or practice with fewer than 25 staff members and another member of the staff is serving as a juror at the same time, or has served as such during the preceding 12 months. Accordingly, we consider it appropriate for this to take its place in the guidelines.

7.37 School teachers and lecturers at tertiary institutions are no longer exempt in NSW.³⁹ However, teachers and lecturers have generally been excused for good cause if they are scheduled to supervise or assess students approaching examinations, or if they are scheduled to supervise or process an HSC assessment task, or if the service is to take place in the first two weeks of a term or semester.⁴⁰

7.38 TAFE and university students also do not fall within any of the categories of ineligibility or exemption in NSW. However, the Sheriff’s guidelines do recognise that a student can be excused when jury service is likely to occur at a time when he or she is required to attend his or her educational institution, or when essential examinations, assessments or practical exercises are scheduled, and that the student would be seriously disadvantaged or delayed in completing his or her studies.⁴¹

7.39 We accept that such cases should continue to be assessed on an individual basis in the light of the nature and importance of the commitments of the teacher, lecturer or student. We do, however, note that in suitable cases the difficulty can be overcome by a deferral of service to a later more convenient time, or even an allocation to a short trial. A degree of flexibility would be important in these cases, as would encouragement of young people to perform jury service so as to redress the slight age imbalance in the number of those serving, and so as to expose them to an important aspect of the civic process involved in the justice system.

7.40 To avoid the need for repeat applications, we consider it appropriate for a power to be conferred on the Sheriff, with a right of appeal to the District Court, to excuse jurors who can demonstrate an ongoing cause to be excused, either permanently where that cause is shown to be permanent in nature, or for a limited period where it may not be of that degree.

7.41 Precedent for such an approach may be found, for example, in Victoria, where the Juries Commissioner may permanently excuse a person from jury service, whether or not that person has in fact been summoned for jury service. The Juries Commissioner must be satisfied that there is good reason for permanently excusing a person. “Good reason” includes, but is not limited to, continuing poor health, disability and advanced age.⁴² An applicant who is dissatisfied with the decision of the Juries Commissioner may appeal to the Supreme Court or County Court.⁴³

7.42 Tasmania makes substantially similar provision,⁴⁴ except that “good reason” is limited to a person’s continuing poor health or disability, or that “the beliefs or principles of the religious society or body of which the person is a practising member are incompatible with jury service”.⁴⁵

The Sheriff should have the power, with a right of appeal to the District Court, to excuse jurors who can demonstrate an ongoing cause to be excused, either permanently or for a limited period.

7.43 At present, there is no express provision in NSW permitting an appeal to the court from a decision of the Sheriff (or equivalent officer) refusing to grant a claim for excusal for good cause.⁴⁶ There is a de facto appeal, in that an applicant who has been denied excusal by the Sheriff can always renew the application before a judge, although many jurors feel reluctant to reapply once they have been refused, particularly if this has to occur in open court, because of the embarrassment involved.

7.44 Submissions generally supported a right to a redetermination following the exercise of the Sheriff’s discretion.⁴⁷ We see merit in this course, and consider it appropriate to provide a means whereby an applicant, whose application to be excused or deferred has been refused by the Sheriff, to bring forward a further application to a judge of the court in which the proceedings are listed for trial, for redetermination on a day before the day of the trial. This would be an alternative to reserving it for the trial judge.

7.45 We acknowledge that many potential jurors will continue to make their applications on the day of the trial. However, providing an avenue to seek a redetermination from a duty judge in advance of the date on the summons would provide greater certainty for those who, if their applications to be excused are not successful, may need to make alternative arrangements with respect to work, or other commitments. It would also assist the Sheriff in assembling a sufficient panel for any pending trial.

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3. See M Findlay, Jury Management in New South Wales (Australian Institute of Judicial Administration Inc, 1994), 41 and 175.

4. Sheriff’s Office of NSW, Jury Act, 1977: Policy and Practice Guidelines (November 2005), [2.6.2], [2.6.5], [2.6.6], [3.4.2], [3.4.3], [3.4.5].

6. Sheriff’s Office of NSW, Jury Act, 1977: Policy and Practice Guidelines (November 2005), [3.4.7].

11. NSW Bar Association, Submission, [28]; NSW Young Lawyers, Submission, 17; J Goldring, Submission, 5; Legal Aid Commission of NSW, Submission, 13-14; NSW Jury Taskforce, Submission, 3; NSW Public Defender’s Office, Submission, 9; Redfern Legal Centre, Submission, 10.

14. The Jury Project, Report to the Chief Judge of the State of New York (1994), 34.

15. NSW Public Defender’s Office, Submission, 10; J Goldring, Submission, 5; NSW Jury Task Force, Submission, 3; NSW Young Lawyers, Submission, 18; M J Stocker, Submission, 3, 9.

16. NSW Bar Association, Submission, [33]; Redfern Legal Centre, Submission, 11.

17. The Jury Project, Report to the Chief Judge of the State of New York (1994), 35.

18. England and Wales, Department for Constitutional Affairs, “Guidance for summoning officers when considering deferral and excusal applications” �http://www.hmcourts-service.gov.uk/docs/guidance_for_summoning _officers_0405%20.doc� (accessed 20 October 2006).

19. New Zealand, Law Commission, Juries in Criminal Trials, Report 69 (2001), [156].

20. Juries Act 2000 (Vic) s 7; Juries Act 2003 (Tas) s 8; Juries Act 1963 (NT) s 17A.

22. The Jury Project, Report to the Chief Judge of the State of New York (1994), 36.

23. NSW Bar Association, Submission, [31]; NSW Jury Task Force, Submission, 3; A Abadee, Consultation. See also M J Stocker, Submission, 8-9; Legal Aid Commission of NSW, Submission, 14; and Consultation.

24. NSW Public Defender’s Office, Submission, 9; NSW Young Lawyers, Submission, 17; Redfern Legal Centre, Submission, 11.

26. See Juries Act 2003 (Tas) s 9(3); Juries Act 2000 (Vic) s 8(3); Jury Act 1995 (Qld) s 21(1); Juries Act 1967 (ACT) s 14, s 15; Juries Act 1957 (WA) Sch 3; Juries Act 1927 (SA) s 16(2). See also Jury Act 1977 (NSW) s 18A.

27. Sheriff’s Office of NSW, Jury Act, 1977: Policy and Practice Guidelines (November 2005), [3.4.4].

28. When supported by a statutory declaration from a “marriage celebrant of the Brethren”.

29. Sheriff’s Office of NSW, Jury Act, 1977: Policy and Practice Guidelines (November 2005), [3.4.7].

32. NSW Public Defender’s Officer, Submission, 9; Redfern Legal Centre, Submission, 10; NSW Jury Task Force, Submission, 3; NSW Young Lawyers, Submission, 16-17.

35. Parliament of Victoria, Law Reform Committee, Jury Service in Victoria, Final Report (1996) at [3.195], [3.198]-[3.199].

36. See eg, Tasmania, Parliamentary Debates (Hansard) House of Assembly, 19 August 2003, 47.

38. M J Stocker, Submission, 7; J Goldring, Submission, 4; NSW Young Lawyers, Submission, 12, 13; NSW Bar Association, Submission, 11.

40. Sheriff’s Office of NSW, Jury Act, 1977: Policy and Practice Guidelines (November 2005), [3.45]. See also M Findlay, Jury Management in New South Wales (Australian Institute of Judicial Administration Inc, 1994), 42.

41. Sheriff’s Office of NSW, Jury Act, 1977: Policy and Practice Guidelines (November 2005), [3.4.5].

46. But see Juries Act 2000 (Vic) s 10; Juries Act 1974 (Eng) s 9A; Juries Act 1927 (SA) s 16(5).

47. NSW Bar Association, Submission, [32]; NSW Young Lawyers, Submission, 18; M J Stocker, Submission, 9. However, a number of submissions did not support an extra layer of appeal beyond redetermination by the trial judge on the day of the trial: NSW Jury Taskforce, Submission, 3; NSW Young Lawyers, Submission, 18; NSW Public Defender’s Office, Submission, 9.