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

8.2 In NSW, the current practice is to include, on the jury rolls, the registered electors who are resident in the postcode areas for the electoral districts closest to the relevant courts.

8.3 The Act states that each jury district is to comprise “such electoral districts or parts of electoral districts” as the Sheriff may determine “from time to time”.¹ Each existing jury district has, therefore, been administratively determined by the Sheriff. The districts are not formally gazetted in NSW as they are required to be in other Australian jurisdictions.

8.4 The electoral districts and their boundaries are themselves determined from time to time when redistributions are made following enquiry by the Electoral District Commissioners.² However, the Sheriff has not carried out the exercise of determining new jury districts following electoral redistributions for more than 10 years.

8.5 Regulations have been passed that prevent overlap between existing jury districts so that each jury district serves only one court or group of courts.³ So, for example, in the Sydney South region, the electorates surrounding the Sydney District Court and Supreme Court complexes are used to compile the jury roll for those courts, while the electorates surrounding Parramatta are used to compile the jury roll for the District Court at Parramatta. The divisions between these jury districts have been set for administrative convenience. They were not fixed, for example, by reference to the 56 km distance criterion for the exemption⁴ of those who might otherwise be called upon to serve at the Sydney District Court.

8.6 The Sheriff obtains the names and addresses and dates of birth of people living within relevant electoral districts, obtaining snapshots, at regular intervals, from the electoral rolls held by the NSW Electoral Commission. The responsibility for establishing and managing the electoral rolls has to date rested with the Australian Electoral Commission on behalf of the State and Territory electoral commissions.

8.7 At least once every 12 months, the Sheriff selects at random, from the relevant electoral rolls, a number of people who are potentially available for inclusion in the jury roll for each jury district. The list of people so selected is referred to in the legislation as a “supplementary jury roll”.⁵ In order to determine the number of people to include on a supplementary jury roll, the Sheriff must estimate the number of people who may be required to serve from time to time. In doing so, the Sheriff must allow for people who are not qualified, or who are ineligible or who will duly claim exemption as of right from service,⁶ or are likely to be excused.

8.8 The Sheriff sends a notice to each person whose name is included on the supplementary jury roll for each jury district, informing that person of the intention to include him or her on the roll, and describing the classes of people who are disqualified, ineligible or entitled to claim exemption as of right. The notice must contain a questionnaire to be completed by a respondent claiming disqualification, ineligibility or exemption from jury service and specifying the relevant basis for the claim.⁷

8.9 The Sheriff is under a duty to delete from the supplementary jury roll the names of people whom the Sheriff determines are disqualified, ineligible or who have successfully claimed exemption from serving as jurors.⁸ A right of appeal lies to a Local Court by any person dissatisfied with the Sheriff’s determination not to delete his or her name.⁹

8.10 The current practice is that, after 28 days, the names of those who have not been removed from the supplementary jury roll are included on the roll for the jury district. These people are thereafter liable to be summoned to serve as jurors. A person remains on the jury roll for a period of 15 months, or such other period, not exceeding two years, as may be prescribed by regulation.¹⁰ The 15-month period means that, given the Sheriff’s practice of creating a new supplementary roll at least every 12 months, there will be at least three months during which people from the previous supplementary roll are on the jury roll together with those from the current supplementary roll.

8.11 There are a number of problems that arise under the current system relating to both the use of the electoral roll and the current means of determining jury districts.

8.12 The use of the electoral roll as the sole source for identifying and locating those who are to receive a notice of inclusion on the jury roll, and subsequently a summons, raises a number of questions, particularly that of its accuracy over time.

8.13 The accuracy of the jury rolls currently depends on the fact, as contemplated by the statutes in most jurisdictions, that the Sheriff extracts data from the Electoral Commission on at least an annual basis. However, information from these “snapshots” can readily become out of date within this period as people change address or die. For example, it was reported to us that of the 4.3 million electors in NSW, approximately 500,000 change address in any one year.¹¹

8.14 At present, there is no mechanism in place whereby the Sheriff can check the accuracy of the jury roll before sending out notices. The RTA database, for example, is only consulted when the State Debt Recovery Office is engaged to enforce a penalty for a juror’s non-attendance.¹² The provisions in other Australian jurisdictions which potentially give the police a role in checking the eligibility of potential jurors¹³ are inconsistent with the NSW provisions that ensure their anonymity, and are accordingly not employed.

8.15 The continued use of “snapshots” of the electoral roll causes considerable wastage in time and money for the Sheriff’s Office. This arises from the need to process the notices of inclusion and summonses for people who are no longer within the jury district and, for that reason, fail to respond, and from thereafter attempting to enforce what may incorrectly appear to be a deliberate non-compliance with the summons.

8.16 If the information available to the Sheriff and used in summoning jurors was updated on a more regular basis, it would increase the chance of members of more transient populations who have, at some stage, registered as electors, being accurately recorded in jury rolls, and as a consequence, becoming available to serve as jurors. It would also reduce the incidence of notices of inclusion and summons being incorrectly issued. There would also be savings because of a reduction in the number of notices and summons required and fewer investigations of cases where there was no response.

8.17 There are a number of additional problems caused by the way in which the current jury districts have been established and maintained.

8.18 First, the failure to revise the current jury districts means that there a currently a number of “black spots” within which potential jurors are effectively disenfranchised, for example, Liverpool, where jury trials are no longer held, and Katoomba, where jury trials are only held occasionally. People in these jury districts are never or seldom called, despite living within 56 km of other courthouses where jury trials are held. There are also black spots in many parts of rural NSW which are regarded as too remote from court towns or cities because they lie more than 56 km from a courthouse, with the consequence that the residents of these areas, would, if called, be able to invoke their right to be excused.

8.19 Secondly, there are substantial geographic overlaps in the regions between the various courts, such as along the eastern part of NSW between Kiama and Newcastle, or the regions around Bathurst, Orange and Parkes. The regulation that prevents addresses being within two jury districts means that some people who live within reasonable travelling distance of a busy court may never be called for jury duty because they are included in the jury district for another nearby court that is less busy.

8.20 Thirdly, in regional areas, the current boundaries combined with the 56 km exemption have the effect of substantially reducing the available jury pool for some courthouses. It also imposes excessive obligations on residents who live close to those courts.

8.21 Finally, when people change their address to a location outside their current jury district, but still within the 56 km limit from a courthouse served by that district, the current practice is to remove them from the roll, at either the notice of inclusion or summons stage. However, many of those people would still be capable of serving as jurors at that courthouse.

8.22 The Electoral Commission for NSW has informed us of the possibility of developing a smart electoral roll that would provide a more complete and accurate register of electors.

8.23 Such a system would allow the Electoral Commission to access data from trusted agencies, such as the Registry of Births, Deaths and Marriages, Australia Post, the Board of Studies, the Roads and Traffic Authority and the Rental Bond Authority, to identify those who may be eligible to register as electors and thereby facilitate the Commission in encouraging them to register.

8.24 It could also provide the Electoral Commission with prompt information of any changes of address or deaths notified to the trusted agencies. This would have the clear advantage of maintaining a real time electoral roll, which would be considerably more accurate than that which can be produced under the current system, which depends upon individuals notifying the Australian Electoral Commission of any changes.

8.25 Any such system could be further enhanced by the use of readily available geographic information systems, so as to attach a geopositioning code to individual residential properties. Each property could then be given particular attributes, such as a relevant State electoral district and local government area which would then be applicable to resident electors at those addresses.

8.26 We would fully support the adoption of a smart electoral roll, with the features mentioned, as a means of overcoming some of the problems identified in this report.

8.27 If adopted, the Sheriff’s Office could have direct access to the electoral records, on a real time basis, in place of the current system of relying on a CD obtained from the Electoral Commission at intervals.

8.28 As already noted, each residential property entered on the roll could be given particular attributes. These could include eligibility for jury service at any courts within a specified area. A jury service area for each court, equivalent to the former “jury districts”, could be identified by drawing its boundaries and then linking it to the relevant geopositioning code for each property within those boundaries. The Electoral Commission would be able to provide the Sheriff with the relevant details of all electors within the jury service areas so determined.

8.29 Such a system could also permit the Sheriff to access the electoral database and manipulate data in particular fields, while leaving the core of the database intact. These fields could contain additional relevant information, including information about exemptions by reason of previous jury service, ineligibility on the grounds of criminal convictions or otherwise, as well as permanent excusal or excusal for nominated periods (for example, because of absence overseas), and deferral.

8.30 Even greater accuracy of the electoral rolls could be achieved if the Sheriff were to report back to the Electoral Commission any previously unidentified or yet to be notified changes in relation to people who were summoned to attend for jury duty but were found to have moved or died.

8.31 The recommendations which we make in this Report concerning the enrolment and selection procedure assume that a smart electoral roll could be established in the near future. They also assume that the Sheriff will be able to have direct electronic access, on a real time basis, to the electoral rolls, regardless of whether a new system of updating and maintaining the rolls is adopted.

8.32 We consider that the Sheriff should have the ability to cross-check the information available from the electoral rolls with information from other trusted agencies. The cross-checking would achieve two purposes.

8.33 First, pending the possible establishment of a smart electoral roll, it would ameliorate some of the problems of ensuring the accuracy of information contained on the electoral rolls. For example, RTA and utility records could be used to check current addresses, and the registers of births, deaths and marriages could be checked for deaths and name changes.

8.34 Secondly, it would allow the Sheriff to check the National Criminal Register, or alternatively, NSW Police records, as well as Corrective Services and Juvenile Justice records, for grounds of ineligibility referable to contact with the criminal justice system or to current custodial status.¹⁴

8.35 One submission objected to the Sheriff having the power to undertake cross-checks of information with other databases on the grounds of privacy, since the information would be “extracted for a purpose substantially different from the purpose for which it was provided”.¹⁵ The answer to any such concern is that, with current technology, cross-checking can be conditional upon maintaining appropriate standards of information security.¹⁶ In any event, access by the Electoral Commission in the way previously mentioned, to information from other databases, is subject to an exception from statutory privacy requirements.¹⁷ This in itself provides some additional support for the adoption of the smart electoral roll, since it would be the Electoral Commission that would undertake the cross-checks in relation to information concerning addresses, name changes and deaths supplied by electors. The compilation of records is the responsibility of government agencies, undertaken for the better administration of the justice system, and it is difficult to see any infringement of privacy involved in the capacity for the Sheriff to make cross-checks in connection with the operation of the jury system.

8.36 The question of law enforcement agencies and security agencies having an opportunity to vet the list of potential jurors, so as to identify those with criminal histories or with suspected involvement in terrorist activities that might otherwise render them unsuitable or amenable to challenge for cause, has been raised for consideration.¹⁸ In Victoria, there was previously an informal system whereby the Police Commissioner passed a list, including acquittals and non-disqualifying criminal convictions, to the Director of Public Prosecutions to assist in exercising the right of peremptory challenge.¹⁹

8.37 Although the possibility of juror vetting has some apparent attraction in the case of terrorist trials, where jurors might potentially be exposed to information of a classified or sensitive nature, we do not support conferring any right in law enforcement or security agencies to vet potential jurors. Such a procedure would:

8.39 If our recommendations are accepted in relation to the existing categories of people who are disqualified, ineligible or entitled to claim exemption as of right, there would be little purpose in continuing the existing procedure for establishing a supplementary jury roll and for sending out notices of inclusion.

8.40 The existing procedure should, in our view, be replaced. People living within the jury service area for the trial court whose names are contained on an electoral roll should be summoned directly from that roll. They should then be given an opportunity to make an application in relation to any remaining ground of ineligibility or exemption, or to be excused from the nominated sittings, or to be deferred, for cause. This approach was supported by the Sheriff, who regards the existing procedure as cumbersome and wasteful of resources.²²

8.41 A person who receives a summons should also receive information about the nature and obligations of jury service. This information should be in major community languages so that those who are unable to read and communicate in English and are therefore not qualified to serve are able to inform the Sheriff accordingly.

8.42 There is already precedent for summoning jurors directly from the electoral rolls in NSW and in other jurisdictions, and for deferring any decision on a claim to be ineligible or excused until after the summons is served. In NSW, the Act no longer requires a jury roll to be established for every jury district. This means that, in districts where trials are held infrequently, for example, Katoomba, the jury roll is, in practice, established from the relevant electoral rolls whenever juries are required, at which time the summonses are also sent out.²³ Applications to be excused and claims to disqualification, ineligibility, or exemption as of right are dealt with following responses to the notice of inclusion questionnaires sent out at the same time as the summonses.²⁴

8.43 In Queensland, the Principal Electoral Officer prepares jury rolls by listing all people aged between 18 and 70 years who live within a certain distance of the relevant court and who are on the electoral roll. Potential jurors are then summoned from this roll six weeks in advance of the court sittings for which jurors are required.²⁵ In England and Wales, potential jurors are also summoned directly from the electoral rolls.²⁶

8.44 On the other hand, the Victorian system provides for a preliminary questionnaire to be sent to people whose names are on the electoral roll for the relevant jury district, advising that they will be summoned for service within a nominated 4-6 week time frame. This gives the recipients an opportunity to apply to be excused and also to apply for deferral to a more suitable time. About 30% of the recipients of the questionnaire are removed from the pool at this stage. The remaining people are then sent summonses for particular dates within the previously nominated 4-6 week period. They are again given the opportunity to apply to be excused and also to apply for deferral to a more suitable time. A further 30% of the people summoned are removed from the pool at this stage. The remaining people must attend for service on the day indicated in the summons.

8.45 The radius for a court’s jury service area could vary according to location, for example, 40 km for metropolitan areas (including the areas served by the courts at Sydney, Parramatta, Campbelltown, Penrith, Newcastle and Wollongong) and 100 km (or more) for regional courts to take into account the arbitrariness of the current 56 km criterion for excusal, and its adverse effects in regional areas. It should be borne in mind that the use of a radius for a jury service area merely provides a convenient means for identifying prospective jurors. It does not in any way affect the right of jurors to apply to the Sheriff, or to the court, to be excused for cause where travel to and from the courthouse would impose undue difficulty or expense.²⁷

8.46 We intend that this proposed new arrangement would involve jurors within a jury service area being summoned to serve at any one of the courts within the permitted radius of their place of residence. This is contrary to the existing arrangements, whereby a particular address can be in no more than one jury district.²⁸ This would be subject to excusing them on the grounds that they have already been called, or are currently serving, as a juror at one of the other courts, and also to the right to be excused for previous service within a specified time.

8.47 It should be noted that this new arrangement for identifying jury service areas will require consequential amendments to other provisions within the Jury Act that rely on the current definition of “jury district”. For example: the provision which allows the Sheriff to require people on one jury panel who are not required at the court or inquest to which they have been summoned to attend at another court or inquest in the same jury district;²⁹ and the special provisions relating to certain coronial inquiries in the Broken Hill Jury District.³⁰

8.48 One consequence of eliminating the notice of inclusion would remove the need for a process by which a person may appeal to a Local Court if he or she is dissatisfied with the Sheriff’s determination not to delete his or her name.³¹ Evidence has been brought to the Commission of the inappropriate use of this avenue of appeal which has led to Magistrates removing people from the jury roll for reasons other than those falling within the prescribed grounds for disqualification, ineligibility and exemption as of right, or constituting a matter of “special importance” or of “special urgency”. For example, people have been removed from the roll because of their ownership of a small business or because of their business commitments,³² which are more appropriately dealt with after service of a summons, on an application to be excused for cause.

8.49 The exercise of any discretion to review the Sheriff’s decision is more appropriately left to the District Court or to a judge of the court to which the juror has been summoned.³³ Moreover, the revised system which we consider appropriate would have the advantage of permitting a decision to be made closer to the time of trial, thereby allowing a more informed decision concerning the merits of any application to be excused or, alternatively, to be allocated to a short trial or to be deferred until some later date.

8.50 While the processing of applications to be excused by reason of ineligibility or for good cause would still need to be carried out by the Sheriff after issue of the summons, in the first instance, this should not lead to any additional work by that office. On the contrary, it would replace the two separate procedures that are currently in place at the notice of inclusion stage and then at the service of the summons stage, by a single exercise following the service of the summons.

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12. L Anamourlis, Preliminary consultation; NSW, Jury Task Force, Preliminary submission at 3.

13. Juries Act 1967 (ACT) s 24(4) and (5); Juries Act 1927 (SA) s 12(1a); Juries Act 2003 (Tas) s 23; Juries Act 2000 (Vic) s 26.

18. Compare the “not fit or proper to serve” proposals of the NSW Police: para 3.6.

19. Parliament of Victoria, Law Reform Committee, Jury Service in Victoria, Final Report (1996), [5.17]. But see Katsuno v The Queen (1999) 199 CLR 40.

20. See, eg, N J King, “The American Criminal Jury” in N Vidmar (ed), World Jury Systems (Oxford UP, 2000), 112-113 and S Landsman, “The Civil Jury in America” in N Vidmar (ed), World Jury Systems (Oxford UP, 2000), 389-392.

21. New South Wales Law Reform Commission, Criminal Procedure: The Jury in a Criminal Trial, Report 48 (1986), [4.43]-[4.45].

22. See also Redfern Legal Centre, Submission, 5. But see NSW Young Lawyers, Submission, 2.

25. Jury Act 1995 (Qld) Part 4. See Queensland, Criminal Justice Commission, The Jury System in Criminal Trials in Queensland, Issues Paper (1991), 10.