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

9.2 Some understanding of the numbers of people who might be called in NSW for jury service, and who may have to be processed at the summons and attendance stage, can be gained by reference to the following statistics provided by the Sheriff’s Office, in relation to those who were summoned from the jury rolls and who eventually served as jurors during the 2006 calendar year.³

9.4 Currently there is a two-stage process to determine juror eligibility or entitlement to exemption, first, after receipt of a notice of inclusion and then after receipt of a summons.

9.5 The Commission has recommended that summonses should be issued directly to eligible people living within a predetermined radius of a particular court, without notices of inclusion having been circulated beforehand to identify and remove those who are excluded from jury service.⁴ An explanatory notice would be sent with the summons identifying the grounds of exclusion, and explaining the procedures to be followed by those who are excluded or who wish to be excused for cause. In order for this procedure to work effectively, there will need to be a provision that allows for the withdrawal of a summons on proof that a person is excluded according to specified criteria or that good cause exists to be excused.⁵ Many of the applications could be dealt with on paper, and if made good, followed by a notice of withdrawal of the summons.

9.6 Currently, in NSW, jurors need only be given seven days notice of the date when they are required to attend, unless a judge of the court “otherwise orders”.⁶ The usual notice period is 4-5 weeks. This is sometimes followed up by a written notice advising of the cancellation of a summons if it is known, more than two weeks in advance, that a panel will not be required on the date specified in the summons. However, this is rare and usually only occurs in regional areas where there may only be one trial listed on the date for return of the summons, and that trial has been cancelled or adjourned.⁷

9.7 A court may require a jury to be empanelled at much shorter notice when, for example, a trial judge wishes to recommence an aborted trial or where insufficient jurors report for duty in relation to a trial which is otherwise ready to proceed, albeit some days later. In these cases, where the Sheriff is unable to draw upon jurors who have been summoned to attend at another court in the same jury district, but are not required at that court,⁸ the Sheriff’s officers can deliver the jury summonses in person, since it is no longer possible to select bystanders from the precincts of the court if it is found that there are insufficient jurors available to complete the empanelment.⁹ There are instances of summonses being given at short notice of only two weeks or less.

9.8 The issue of a summons with a short notice period was reported as giving rise to considerable inconvenience to business, the more so when final confirmation that a person is required to attend is given only within one or two days preceding the trial.¹⁰ This may lead unnecessarily to jurors seeking to be excused, who, if given more time, would have been able to make alternative arrangements that would have allowed them to serve.

9.9 Submissions suggested various periods of notice for attendance.¹¹ In our view, the period of notice for attendance pursuant to the summons should be at least four weeks, although we recognise that it will be necessary to preserve the possibility of the courts requiring summonses to be issued with a shorter period for attendance where occasion requires, and where jurors cannot be drawn from other courts within the same jury service area.

9.10 Obvious problems can arise for potential jurors where trials are listed, but are cancelled at the last minute or disposed of by way of a late guilty plea. Our attention was drawn in particular to the inconvenience caused to jurors when they are advised only the night before the nominated date for attendance that they are not required, even though they may have made alternative arrangements for absence from work or from their homes.¹²

9.11 No ready solution to this problem was offered, since it is inevitable that there will be cases listed for trial where a late plea is offered, or an adjournment granted because of the illness or unavailability of a witness, or the discovery of new evidence that requires investigation. The best that can be achieved is to encourage the courts to implement more intensive case management which might identify these events earlier and to maintain continual communication with the Sheriff’s Office concerning their requirements. This could go some way to minimising the disruption and inconvenience to jurors resulting from late advice that their services are not needed. It might also alleviate the problem whereby jurors are summoned and then excused, but are then lost to the system for a period because of their consequential entitlement to an exemption.¹³

9.12 An issue arose as to whether limits should be placed on the number of days that a potential juror is required to attend before empanelment. There appears to be no provision limiting the period of time which a person is required to attend or hold himself or herself available to attend in response to a jury summons,¹⁴ although in practice there is an expectation that most jurors will be allocated to a trial or released from their summons on the day of attendance. There is some evidence of jurors being released within four hours in order to avoid the payment that must otherwise be made for their attendance,¹⁵ where it becomes apparent that they will not be needed.¹⁶

9.13 The District and Supreme Courts advise the Sheriff, on a continuing basis, of their expected listings. They also warn in advance of any trials that are likely to be lengthy or where larger than usual panels are required. This generally occurs because of the probability of there being a large number of applications to be excused or because of the need to accommodate the potential exercise of a significant number of peremptory challenges, for example, where there are multiple defendants. With the assistance of this information, the Sheriff has to estimate the size of the jury panels required for any relevant day.

9.14 The current practice in the Sydney District Court is to have panels of jurors summoned on Monday for trials commencing on Monday or Tuesday and to have panels of jurors summoned on Wednesday for trials that commence on that day, meaning that, other than in special circumstances, no potential juror has to wait for more than two days before empanelment.¹⁷

9.15 This practice is not readily capable of adaptation for the Supreme Court because of the significantly reduced number of criminal cases listed in that court each week,¹⁸ and the greater length of trials, which rarely occupy less than two weeks sitting time, and often last much longer. Its practice is to have panels summoned for dates that accord with the dates for which an individual trial or trials are listed to commence, normally on Mondays. Sometimes, those trials have to be held back because an earlier trial allocated to the nominated trial judge has run over time, or because of the need to determine some pre-trial issue or preliminary question. In these cases, the jury panel is kept on standby, although not normally for longer than a week.

9.16 Where the trial is likely to be particularly lengthy or controversial, it has, on occasions, been the practice, after empanelment of a jury, to hold the remainder of the panel on standby for up to another week. This is a safeguard against the possibility of the empanelled jury having to be discharged because of some problem emerging during the opening, or a late realisation by a juror that he or she may have a personal problem or some knowledge of the people involved in the trial. The power to appoint additional jurors, which we address in Chapter 10, should at least go some way to address such problems.

9.17 It is accepted that attendance on more than one day without selection can be a great inconvenience for some potential jurors, particularly if they are advised that they are to regard themselves as on call for a nominated period. There is also a cost involved in paying jurors for attendance on days when they are not required.

9.18 The Victorian Parliamentary Law Reform Committee proposed the introduction of a “one trial or one day” system, with the aim of reducing the inconvenience experienced by people summoned for jury service.¹⁹ Such a system is workable in Victoria because juries for both the Supreme Court and County Court in the Melbourne district are summoned to the same central location and the likely demand for juries is predicted through the Victorian Jury Commissioner’s purpose-designed computer system. In NSW, the current practice in the District Court seems to provide a reasonable accommodation. However, such a system would not currently be workable in the Supreme Court in Sydney, having regard to the nature of its caseload, and the fact that its potential jurors are summoned to a separate location. In fact, the introduction of an inflexibly applied one trial or one day system, without a change to other practices and procedures currently in place, would be likely to result in more work for the Sheriff’s Office, and inconvenience to a greater number of potential jurors than is presently the case. Any change in the other direction, for example, the adoption of the system in SA, requiring jurors to be available for one month, would also produce greater inconvenience than the current system.

9.19 We do not underestimate the difficulty which the Sheriff and the courts face in ensuring that sufficient jurors are present to allow trials to commence on the date for which they are listed, while avoiding the inconvenience to those who are summoned but not required, or who, alternatively, are required to remain on call for a period until they are either empanelled or released. Effective case management, and trial judges’ awareness of the need to accommodate the convenience of potential jurors are important in resolving this problem.

9.20 In 2006, of the 61,032 people who were required to attend for jury service, 13,417 (approximately 22%) failed to answer the summons.

9.21 The Jury Act allows a court to impose a penalty not exceeding 20 penalty units ($2,200) on anyone who fails to attend for jury service without reasonable excuse.²⁰ However, the Act also permits the Sheriff, in the first instance, to serve a notice on a person who fails to attend for jury service requiring the payment of 10 penalty units ($1,100)²¹ which, if paid, will apply in full satisfaction of the potentially higher court-imposed penalty.

9.22 The current practice is for the Sheriff’s Office to write to a person who fails to attend, requesting an explanation. At this stage, the person may provide a satisfactory reply, or may elect to pay the lower penalty ($1,100), or choose to have the matter heard before a Local Court. If the person does none of this, the Sheriff will issue a penalty notice.²² A penalty notice for failure to attend attracts a fine of 15 penalty units ($1,650).²³

9.23 Many of the 2,000 penalty notices that are issued for failure to attend in each year are withdrawn when it is found that the electoral roll did not correctly record the person’s address. In the 2005/2006 financial year, only 165 penalty notices were eventually paid.

9.24 The Sheriff’s Office tries to clarify any contentious issues before a matter goes to a Local Court and, if satisfied at that stage, it may allow the matter to be discontinued without penalty. Approximately 10 matters per month go before a Local Court, although not all result in convictions. For example, in the four years, October 2002-September 2006, 66 people were fined in the Local Courts for failure to attend for jury service, in amounts ranging from $25 to $2,000, with a median figure of $300. Charges were dismissed for a further 38 people, and one person was dismissed conditional upon entering into a good behaviour bond. Although each of the cases that went to court would need to be assessed on its own facts, in relation to the adequacy of the sentence, it would be undesirable if an impression was gained that the offence was not regarded by the courts as serious, or that jury service could be avoided by acceptance of a modest court-imposed fine, or penalty. This has particular relevance for long trials where there could well be a greater incentive to accept a penalty or fine than to serve and suffer a significant economic loss.

9.25 A question does arise whether fines or penalties of the order outlined above, particularly those imposed by the courts, actually achieve deterrence, or are regarded as an acceptable cost of avoiding jury service. It has been suggested that the number of people making penalty payments in response to the initial notice reduced after the penalty was increased, in 1999, from a prescribed sum of no more than two penalty units²⁴ to an amount equal to 10 penalty units ($1,100) where the matter was dealt with by the Sheriff.²⁵ It is not clear, at this stage, whether this and the subsequently increased penalty notice amount of 15 penalty units ($1,650) have resulted in increased compliance, or whether defaulting jurors prefer to take a chance of receiving a lesser fine in the Local Court.

9.26 One preliminary submission raised concerns that the option of paying a penalty of only $1,100 is not sufficient to deter those who are on a “reasonable income”. However, it also suggested that stricter enforcement, or harsher penalties, might alienate the community and be “self-defeating”.²⁶ Some submissions were satisfied with the current level of penalties and did not support any increase.²⁷ One submission suggested dealing more severely with people who do not obey a jury summons on three or more occasions, possibly by prosecution.²⁸

9.27 The range of penalties for failure to attend in response to a jury summons varies across Australia. Penalties range from $500 in the NT²⁹ to $550 in the ACT,³⁰ $750 in Queensland,³¹ $1,250 in SA,³² $3,000 in Tasmania,³³ and $3,303.60 in Victoria, where the penalty is indexed on an annual basis.³⁴ Queensland, Tasmania and Victoria each allow for a sentence of imprisonment as an alternative, up to two months in the case of Queensland and up to three months in the case of Tasmania and Victoria. Western Australia simply provides that the court “may impose summarily such fines as the court thinks fit”.³⁵ These jurisdictions all appear to rely on the penalty being imposed by a court. None of them would appear to have the NSW system of fines and penalty notices that apply at different points in the enforcement process.

9.28 It should be noted that Victoria does not currently seek to enforce the penalties for failure to attend and we understand that a similar reluctance to prosecute those who fail to comply with this obligation is shared by other States. Some of these jurisdictions rely on personal contact and follow up in the event that people do not attend for jury service on the basis that it is undesirable to force people to serve as jurors who are reluctant to do so, and that personal follow up may be more productive in altering this mindset.³⁶ Such an approach is not currently feasible in NSW given the level of inaccuracy in the current jury rolls, although it would be possible if the move was made to summon jurors from a real-time smart electoral roll.³⁷

9.29 The relevant penalties were last adjusted in NSW in 1999.³⁸ Any increase is determined by statutory amendment rather than by annual indexation.³⁹ In our view, there is a need for an ongoing review of the adequacy of penalties for non-complying jurors, particularly if our recommendations designed to enhance the jury pool are adopted, as they will make eligible for jury duty a number of people in the professions, and other well-paid occupations, who are currently not required to serve. Some of these people may be prepared to pay a penalty rather than report for jury service or to take the chance of even paying a lesser fine if the matter is dealt with in the Local Court.

9.30 We recognise that there is a need to balance enforcement with the risk of alienating the community, or forcing uncooperative people to serve as jurors. However, it is also necessary to ensure that there is a rigorous investigation of the validity of excuses offered, followed by the prosecution of those who wilfully, or without reasonable excuse, fail to attend, and that fines or penalties imposed are properly enforced. As part of the balancing process, it would also be appropriate to take into account the increasing debt and sanctions currently applicable where the State Debt Recovery Office takes enforcement action. That enforcement regime, and alternatives in relation to the available sanctions, have been under consideration by the NSW Sentencing Council.⁴⁰ The level of penalties applicable in relation to juror non-compliance would need to be considered in the event of there being a review across the board of the penalties imposed under the very many statutes that currently give rise to offences or regulatory breaches that attract penalties. We also consider that it is important to make it clear that non-compliance with a summons is regarded as a serious failure to perform an important civic duty and, as such, a serious offence. It is also important that there be a process of following up defaulters as part of an education strategy to encourage greater compliance.

There should be an ongoing review of the adequacy of penalties for people who do not respond to summonses for jury service, and a comprehensive system for following up those who fail to comply with their obligations under the Jury Act.

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3. These statistics do not take into account the additional people who were given notices of inclusion, but excluded in the course of establishing the supplementary rolls.

9. A pray a tales provision was contained in Jury Act 1912 (NSW) s 57(2). A similar provision was not included in the Jury Act 1977 (NSW).

10. Australian Business Ltd, Preliminary submission at 2. See also A Allan, Submission, 1.

11. Two weeks: Redfern Legal Centre, Submission, 12. Three weeks: NSW Young Lawyers, Submission, 20.

14. See Jury Act 1977 (NSW) s 53. There would appear to have been a practice in England that jurors were required to serve for a fortnight and could sit on multiple trials as required during that period, and for any additional period that is occupied by the trial for which they were empanelled: See England and Wales, Royal Commission on Criminal Justice Report (1993), 136.

19. Parliament of Victoria, Law Reform Committee, Jury Service in Victoria, Final Report (1996), [5.12]. See also Tasmania, Department of Justice and Industrial Relations, Review of the Jury Act 1899, Issues Paper (Legislation, Strategic Policy and Information Resources Division, 1999), ch 5.

22. Jury Act 1977 (NSW) s 66. This has replaced an earlier system for summary disposal before a Magistrate: See M Findlay, Jury Management in New South Wales (Australian Institute of Judicial Administration Inc, 1994), 44.

25. L Anamourlis, Preliminary consultation. See Courts Legislation Amendment Act 1999 (NSW) Sch 3[10].

26. NSW Office of the Director of Public Prosecutions, Preliminary submission at 5.

27. NSW Young Lawyers, Submission, 22; NSW Public Defender’s Office, Submission, 10.

36. J Goodman-Delahunty, N Brewer, J Clough, J Horan, J Ogloff, and D Tait, Practices, Policies and Procedures that Influence Juror Satisfaction in Australia, (Draft) Report to the Criminology Research Council (2007) not yet published, 66.

40. NSW Sentencing Council, The Effectiveness of Fines as a Sentencing Option: Court-imposed fines and penalty notices, Interim Report (2006).