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

10.1 Once the summonses have been issued, and any applications made in advance of the trial to be excused from service have been dealt with, the Sheriff returns a panel of the names of those summoned to attend, together with cards bearing the name of each person. Only those who are qualified and liable and who have not been duly excused may be included on the return.¹

10.2 The Sheriff then allocates an identification number to each person and records the number next to the person’s name on the return and on the person’s card. The person is informed of his or her identification number when attending under the summons, and is thereafter to be addressed or referred to only by that identification number.²

10.3 Potential jurors are then given a further opportunity to seek to be excused from service. First, by application to an administrative officer at the Downing Centre or to a Sheriff’s Officer elsewhere, and then to the trial judge.³

10.4 The jury is then selected from those present who remain on the panel by ballot in open court.⁴ At this stage, the parties to the proceeding are given an opportunity to challenge those who are selected.⁵ Once the challenges are exhausted, 12 jurors are duly sworn. The question of additional or reserve jurors, which would bring the number of jurors above 12, is dealt with later in this chapter.⁶

10.5 In most cases,⁷ jurors will be unaware, until the day of the trial, of the identity of the accused or the nature of the case to be heard, and will have no opportunity before that day of seeking to be excused because of personal concerns in relation to the case. The possibility of jurors being affected by actual or ostensible bias arises from time to time as a result of the juror having some interest in the proceedings, or some relationship with the participants, or some prior experience as a victim of a similar crime to that before the court. The issue may arise before the jury is empanelled or once the trial is under way, when a juror belatedly realises that some potential problem of a conflict of interest, or personal knowledge of the case or participants, may exist. In such a case, it often becomes necessary to discharge the jury and recommence the trial with a new jury. This is obviously undesirable as it is expensive, delays proceedings, and inconveniences the discharged jurors.

10.6 The current practice in NSW is for counsel to inform the panel of jurors in waiting, at the commencement of the trial, of the names of the parties in civil proceedings or of the defendants in criminal proceedings, as well as the names of the principal witnesses that will be called and the general nature of the case.⁸ Commonly, the judge will provide additional advice as to the likely length of the trial and of the need for any jurors who have medical, financial or other issues that may prevent them from seeing out the trial to disclose that issue. The trial judge will then call upon the members of the jury panel to apply to be excused if they consider that they are not able to give impartial consideration to the case or have other as yet undisclosed problems in serving as a juror on that trial.

10.7 Where a juror makes that application, he or she is usually invited to state briefly the reason for the application, so as to avoid any abuse of the system. A similar procedure applies in proceedings before a coroner.⁹ In almost every instance where a potential juror provides an apparently acceptable response to that call, he or she will be stood aside from the trial without further investigation, and either excused or asked to remain available, in case the balance of the panel is required for another trial. It is, however, a common experience that a juror faced with such a problem will not respond to the call and, as a result, later find themselves empanelled as a juror in that trial. The lack to response can be because of shyness or lack of attention to the preliminary directions or statements of counsel. Such concerns could be overcome to an extent by encouraging jurors to make their application by means of a short written explanation which may be passed to the trial judge. We understand that this is already the practice in some courts in NSW. Reasons given in writing might include such matters as the potential juror having been sexually abused as a minor, or that he or she was a victim in a recent armed robbery, or that the potential juror knows the background of one of the witnesses,¹⁰ or that the additional information disclosed has raised some concern that had been previously overlooked.

10.8 We generally support the retention of the current pre-trial disclosure procedure. We suggest that even greater attention should be given to informing members of the jury panel, in advance of their attendance in court, of the importance of this part of the jury selection process, and of their need to consider their personal situations very closely.

10.9 We also consider it desirable, particularly for long trials, to allow the panel to have some time to absorb the additional information and to give careful attention to their personal situation. The length of time allowed should be at the discretion of the trial judge, depending on the complexity, likely length of the trial, and the nature of the evidence followed. We understand that it is the practice of some judges in lengthy trials in NSW to allow prospective jurors the morning recess to give them some time to consider their position before empanelment. Even lengthier periods may be appropriate in some cases. For example, in the South Australian Snowtown murder trial,¹¹ the trial judge allowed the 300 panel members a full week to consider their position before empanelment proceeded. In suitable cases, any time allowed for this purpose could be used in determining any outstanding pre-trial legal issues.

10.10 Another common problem that emerges in practice relates to those cases where, after empanelment, jurors realise that the likely length of the trial is such that it will clash with other unavoidable commitments or pre-arranged travel plans, or will cause them undue financial hardship. Although we address the last mentioned problem later, the frequency with which this problem arises calls for particular attention to be given to it by Sheriff’s officers at the jury assembly stage, and again by the trial judge when the matter is called for trial in the presence of the jury panel.

10.11 This means that greater attention should be given to the establishment of an accurate time estimate during the case management process, and the provision of sufficient information to the Sheriff before the trial, and to the members of the jury panel. Otherwise, there will continue to be a need to discharge juries soon after the commencement of lengthy trials, with the obvious adverse consequences to the parties, to the discharged jurors, and to the court lists.

10.12 There are several forms of challenge available to the parties to a trial. The parties may present a challenge for cause (in the interests of justice, and so on),¹² they can ask that a juror stand aside by consent (that is, where defence and prosecution both agree), and they can challenge the array. The trial judge may also discharge the jury, or terminate the selection process, if the panel is clearly unrepresentative.¹³ The trial judge may also stand down a juror if he or she is unfit to serve, for example, on the basis of physical and mental infirmity, including conduct and appearance which raise a genuine concern as to that person’s fitness to perform the task of a juror.¹⁴ Each of these forms of challenge or setting aside a juror or panel is uncontroversial.

10.13 Additionally, in NSW, both the defence and the prosecution can exercise the ancient right, during the empanelment process, to make a peremptory challenge to a juror. In this respect, NSW has allowed the prosecution the same right as the defence, although in previous times,¹⁵ and in some other jurisdictions, the prosecution has instead had a right to stand aside potential jurors.¹⁶ The difference is of some importance in that jurors who are stood aside remain available to be empanelled if, after the peremptory challenges have been exhausted, there are insufficient panel members available to complete the ballot.

10.14 In a criminal trial before a judge and jury in NSW, each accused has three peremptory challenges without restriction, while the Crown, or prosecution, has three peremptory challenges without restriction for each person prosecuted.¹⁷ This means that, in a trial of two accused, the accused between them have six peremptory challenges, and the Crown also has six peremptory challenges. It also means that for that trial, excluding the possibility of additional challenges for cause, or the need to excuse individual jurors who show personal cause to be excused, a panel of at least 24 people is required in practice in order to empanel a jury of 12 people. For each additional accused, the size of the required panel must be increased by at least six more people. It may be necessary to have an even larger panel if the Crown and the prosecution agree to increase the number of peremptory challenges, although the fact of any such agreement is not normally known until a case is called on for trial.

10.15 Where, in the limited circumstance now available, civil proceedings are heard by a judge and jury (normally a jury of four people, although this can be increased by order of the court to 12)¹⁸ each party to those proceedings has the number of peremptory challenges, without restriction, that is equal to half the number of jurors required to constitute the jury for that trial. In a two party trial, using a four person jury, that means that a panel of at least eight people is required.

10.16 Chief Justice Barwick once described the right of challenge, and particularly the right of peremptory challenge as lying “at the very root of the jury system”¹⁹ as it then existed, and additionally observed that, if the right was denied to an accused, the subsequent proceedings could not “yield a lawful conviction”.²⁰ The NSW Court of Criminal Appeal similarly said that the existence of this power was an “essential element of trial by jury”,²¹ although it was there recognised not to be immutable, since it has changed over the years,²² for example, in relation to the number of challenges that are permitted.²³

10.19 In our earlier report, The Jury in a Criminal Trial,²⁸ we gave consideration to the competing arguments in relation to the continuing relevance of the right to peremptory challenge. While supporting its retention, we recommended that the number of the challenges available to each defendant should be reduced from 20 in murder cases, and eight in other cases, to that which presently exists, with the Crown having the number of challenges that is equal to the sum of the challenges available to the defendants.

10.20 The right to peremptory challenge can impact upon the process of juror selection in a number of negative ways. The Commission received a number of submissions concerning its continued existence,²⁹ not all of which spoke in favour of it. However, its retention was generally supported in the consultations,³⁰ and it continues to be available in all other Australian States, where the availability to the parties of the names and occupations of the jurors, and in some cases the suburbs where they live, provides some limited information of relevance to its exercise. As a result, we do not propose to make any general recommendation concerning its retention. We do, however, draw attention to the issues surrounding its use and, in the light thereof, suggest that one minor amendment be introduced, and that its use be monitored with a view to its eventual abolition if it is assessed as not serving any legitimate purpose.

10.21 Potential cause of juror frustration and humiliation. The reaction of a juror who takes the trouble to attend in response to a jury summons, only to be challenged, is likely to be that his or her day was wasted, particularly if that juror is released within four hours and does not receive any attendance allowance.

10.22 For some jurors, the exercise of the challenge can be an occasion for potential offence and embarrassment since it can be seen as being a reflection on their integrity and impartiality, or an indication that they are, in some way, strange and unrepresentative of the general community.

10.23 As a result, it may leave people who were previously enthusiastic about serving, with an unfavourable impression of the system,³¹ and a lack of willingness to comply with any subsequent jury notice or summons. That this is the case is supported by the reactions reported to staff of the Sheriff in NSW, and of the Juries Commissioner in Victoria. It can also be unsettling for those who are in fact empanelled, who may fear that the process of selection is being distorted or manipulated.

10.24 The fact that the right is exercised publicly, and in circumstances where the challenged juror is the focus of the attention of everyone present in court, and is standing in the jury box, can only add to the humiliation of the occasion. A procedure that could alleviate some of these problems has been adopted for the challenge of potential jurors in civil trials in Victoria, whereby the people called are recorded on a list and each party is then given the opportunity of crossing out the names or numbers of the people they wish to challenge. The remaining people are then empanelled as the jury.³²

10.25 The arbitrary and subjective nature of the challenge. In accordance with current NSW practice, and in order to preserve the anonymity of jurors, the parties know neither the names, residential addresses nor occupations of those people within the jury pool whose names are drawn at random during the empanelment procedure. They or their counsel have only the short time available between the time of the number of potential jurors being called, and the brief moment when that person is asked to stand for the purpose of the exercise of the challenge in order to determine whether to avail themselves of that right. In practice, the decision whether or not the defence will make a challenge rests with counsel, who rarely consult with the accused on the question.

10.26 Except in those cases where a potential juror may be identifiable, as can be the case in regional towns, or is a person with a public profile, the right has to be exercised on appearance alone, and according to any number of theories held by counsel as to the desirable composition of the jury for a particular kind of trial. None of these theories has been or can be objectively tested for its reliability.³³ No reason is required, and a decision to challenge may be made by reference to age, gender, dress, physiognomy, and racial or ethnic background to the extent that such background can be detected from appearance alone.

10.27 It has been observed that the removal, in NSW, of the ability of counsel to know the names, occupations and addresses of potential jurors may be an impediment to the proper exercise of the right to peremptory challenge.³⁴ In SA, while jurors are identified by number only in open court, a list with each juror’s name, suburb and occupation is made available to counsel prior to the exercise of the right to challenge.

10.28 What is involved, in essence, is an arbitrary exercise dependent upon guesswork and dubious mythology as to those who might best respond to the case of the prosecution or defence, respectively.³⁵ This is not necessarily conducive to securing a fair, impartial, or representative jury. It can, in fact, have the opposite effect, although, as we noted in our earlier Report, such value as the right does have lies in its participatory aspect, so far as it theoretically allows the defendant to have an involvement in the empanelment.³⁶

10.29 Wasted resources. The availability of this right of challenge requires a larger jury pool to be assembled than would be the case if there was no such right. This adds to the overall cost of the jury system by reason of the additional processing needed, and by reason of the need to pay allowances to jurors who are ready to serve but who are ultimately challenged.³⁷ There is also a personal cost and inconvenience to those jurors who are challenged and released from their jury summons.

10.30 The possibility of discrimination. Absent prosecution guidelines,³⁸ the exercise of the right to a peremptory challenge allows the parties to remove people purely on age, gender, religious, racial, cultural, social, economic or similar grounds, which would be regarded as discriminatory in any other context. Of particular concern in this respect, at least anecdotally, has been the challenging of Indigenous jurors in cases where the defendant is Indigenous.³⁹

10.31 Allowing legal representatives to exercise an unfettered discretion to exclude a limited number of people from a jury, without explanation, and in circumstances that are not reviewable, may cause harm to the jury system in a number of ways. First, it leaves open the possibility that a jury may, on some occasions, appear to have been selected on a discriminatory basis, giving rise to a potential question as to whether the jury’s decision in that case has been influenced by reason of some form of bias. This is regardless of whether the right to peremptory challenge is in fact exercised in a discriminatory fashion.

10.32 The exclusion, by peremptory challenge, of members of racial or other minorities, will not only impact upon the appearance of impartiality of juries, but it may also impact on the way that juries deliberate. It has been suggested that where a person from a minority group is being tried, the presence of a member of that group on the jury may force other jurors to abandon, at least overtly, arguments that depend upon prejudices about that group, and may lead to more thorough assessment of the evidence.⁴⁰

10.33 While the DPP Guidelines (NSW) prevent challenges on the grounds of race, religion, gender, age, and marital status and on cultural, social or economic grounds,⁴¹ the Commonwealth DPP, the NSW Bar Association and the NSW Law Society have not adopted any similar guidelines or ethical codes. In America, challenges on some discriminatory grounds, such as race or gender, are not permitted by the courts.⁴²

10.34 Abuse by potential jurors. There is also anecdotal evidence to the effect that jurors who wish to avoid jury service can adopt a ploy of dressing or behaving in a way that is likely to provoke a challenge. In the past, for example, it was accepted that the wearing of a Returned Services League badge, or of a business suit would almost certainly attract a defence challenge, that is, unless the accused was also a returned member of the Defence Forces or a businessperson. Under current conditions, more extreme behaviour and dress may be required to encourage a challenge, but the potential for it remains.

10.35 Other forms of challenge meet the needs of justice. Most, if not all, reasons for the availability of a peremptory challenge can be met by the other bases for challenge previously mentioned.⁴³

10.36 Alternatives not a sufficient answer. One submission was received suggesting that alternatives such as challenges for cause and standing aside by consent are not as effective in excluding “unsuitable” people from juries, and that they “could be productive of unfair disadvantage to the prosecution in particular”.⁴⁴

10.37 Involvement of the accused. The benefit of the right of an accused to exercise a peremptory challenge is associated with the public affirmation that such a person can participate in the selection of his or her peers in the jury which will be required to make a determination of guilt or otherwise. So understood, it is assumed that the accused will have a greater confidence in the trial process, and an opportunity to object to those who might be perceived to be prejudiced or unlikely to bring an impartial mind to the case.⁴⁵ That assumption, however, rests upon the expectation, rarely realised, that the accused will in fact have an input into the decision to make a challenge, and that it is possible to determine prejudice from appearance alone within the short time available for that assessment.

10.38 Various origins have been suggested for protecting that involvement of the accused, one of them being that the system of peremptory challenge “is a survival from earlier conditions in which a litigant could be expected to have general knowledge of most jurors’ reputations”.⁴⁶ It can also be noted that the right of challenge of the defendant in criminal cases had its origin in a time when a defendant strictly had a right to be tried by one of the older methods of proof, by compurgation or ordeal. Then, his or her consent was required before he or she could be convicted by a jury. In the 14th century, the right to challenge appeared to be one balancing factor in a system where jury trials were weighted in favour of the Crown: the jury was selected by officers of the Crown; the defendant was not allowed to produce witnesses and was also not permitted the assistance of counsel.⁴⁷ None of those factors is applicable today, and the perceived benefit to the accused of the preservation of the right is less than obvious.

10.39 Securing a representative jury. Under a system where the defendant has traditionally been allowed to challenge a limited number of people, it has also been argued that a benefit lies in conferring an equivalent right in the prosecution, so as to redress any apparent skewing of the representative balance of the jury resulting from the exercise of the defendant’s right. This was the reason for replacing the right of the prosecution to stand aside jurors with a right of peremptory challenge.

10.40 Corrective against a failure to grant a challenge for cause. It has been suggested that the peremptory challenge promotes the administration of justice by providing an easy remedy against judicial error in refusing to grant a challenge for cause, by allowing for the removal of a potential juror who may harbour resentment as the result of such an unsuccessful challenge.⁴⁸

10.41 Some alternatives to complete abolition of the peremptory challenge have been identified, including:

10.42 In light of the general support which currently appears to exist for the retention of this right of challenge, we confine ourselves to the suggestion that the ability of trial counsel to agree to an extension of the statutory number of challenges should be subject to leave being given by the judge, pursuant to application made before the date fixed for trial. This would have the advantage of avoiding the need for the Sheriff to assemble an unnecessarily large panel against the contingency of counsel agreeing to enlarge the number of challenges. Otherwise, we consider that the continued availability of the right of peremptory challenge be kept under review to ensure that it does in fact advance the fairness of trial by jury, and does not in fact involve a distortion of the process.

10.43 A matter that clearly impacts on the effectiveness of the jury selection system is the ability to empanel, in appropriate cases, more than 12 jurors to allow for a possible decrease in the number of jurors between empanelment and the time at which the jury retires to deliberate.⁴⁹ Individual jurors may be discharged for cause at any time after empanelment.⁵⁰ Where this happens, the trial can continue with the remaining jurors provided that the membership of the jury does not fall below the minimum number specified in the legislation,⁵¹ and provided that the court exercises its discretion in favour of continuing the trial.⁵² The legislation empowers the judge to allow a criminal jury to reduce to 10 in number, or below 10 with the written agreement of the prosecution and defence, or to eight where the trial has been in progress for two months.⁵³ Even where the membership of the jury has not reached the statutory minimum, the court will exercise its discretion to abort the trial where the jury has ceased to be “an appropriate body of persons representative of the community in whose judgment confidence is imposed”.⁵⁴

10.44 Provision for the empanelment of more than 12 jurors reduces the risk that membership of the jury will fall below the statutory minimum number or that the court will exercise its discretion against the continuance of the trial before membership falls below the statutory minimum. It therefore goes some way to avoid a retrial, which would be the result of the discharge of the whole jury. A retrial would necessarily involve delay; additional costs, particularly to the prosecuting and Legal Aid authorities; potential hardship to witnesses who may be required to give evidence again; and unfairness to the accused, especially if bail has been refused and the accused is subsequently acquitted. There is also the risk of the loss of witnesses who are unavailable or unwilling to give their evidence again.

10.45 The problem of leakage of jury membership is likely to be most acute in long trials. Some jurors’ circumstances may change in ways that were not expected at the outset of the trial.⁵⁵ Additionally, some jurors may simply find themselves, contrary to their own expectations, unable to cope with protracted proceedings, or with harrowing evidence over such a period of time. Moreover, it is unlikely, in a major trial involving a high degree of public interest – for example, a terrorist trial – that the parties would agree in the first two months to reduce the jury below 10 members. Nor is it necessarily desirable that such a trial be determined by a jury comprised of fewer than 10 members, or the case that a trial judge would allow the trial to continue in those circumstances.⁵⁶

10.46 To address these problems, we recommended in our 1986 Report that the Jury Act should be amended to give the trial judge power to empanel up to three additional jurors where the trial is estimated to take more than three months.⁵⁷ The recommendation was not implemented. Meanwhile, trials have increased in length, particularly in the Supreme Court, where it is not uncommon for criminal trials to last a number of months, and, on occasion, longer than six months.⁵⁸

10.47 In all Australian jurisdictions other than NSW, the danger that the number of jurors in a particular trial might drop below an acceptable minimum number is met by allowing for the swearing of more than 12 jurors.⁵⁹ There are two models.⁶⁰ First, the ACT, SA, Victoria and WA variously provide for the initial empanelment of up to between three and six “additional” jurors; if more than 12 jurors remain when the jury retires to deliberate, a ballot is conducted to reduce the jury to 12 members.⁶¹ Secondly, Queensland, Tasmania and the NT variously provide for up to two or three “reserve” jurors who, if not used to replace a discharged juror, are themselves discharged once the jury commences its deliberations.⁶² The essential difference between the two models is that whereas additional jurors are members of the jury panel until they are discharged, reserve jurors do not form part of the jury, even though they are exposed to all the evidence, unless and until they replace a discharged juror.

10.48 The absence of any provision for additional or reserve jurors in NSW has recently given rise to some concern. The Commission has received a number of submissions on the topic,⁶³ which has also been the subject of consultations.⁶⁴ These submissions and consultations have argued strongly that the law should be changed to allow for the empanelment of additional jurors in lengthy trials. They have convinced us that the case for the empanelment of additional jurors in long trials in NSW is compelling. We, therefore, reaffirm the recommendation in our 1986 Report that provision should be made to empower judges to empanel up to three additional jurors where the trial is estimated to exceed three months in length. We also reaffirm our preference for the empanelment of additional, rather than reserve, jurors. Further, we recommend that, where additional jurors have been empanelled and more than 12 jurors remain when the jury is about to retire to consider its verdict, the additional jurors should be balloted out. In formulating these recommendations and reaffirming our earlier recommendations, we make the following observations.

10.49 First, as already pointed out, the costs of a retrial of an aborted lengthy trial are very substantial.⁶⁵ The savings generated by avoiding the need for a retrial, or more than one retrial if the problem were repeated, justify the extra costs of empanelling additional jurors. Those costs include not only the allowances payable, but also modifications to court buildings to enlarge existing jury boxes and jury rooms. As our recommendation is limited to trials that are estimated to last in excess of three months, the modifications could be confined to the specially constructed courts which have been designed for the kinds of multi-party or complex trials that are likely to last in excess of three months. On our understanding, these courts could easily be altered to accommodate the extra jurors.

10.50 Secondly, the limitation of our recommendation to trials that the court estimates are likely to last more than three months is designed to ensure that the use of additional jurors does not become routine in all cases. No other Australian jurisdiction restricts the power or discretion of the court in this way. For example, the legislation in SA allows the court to empanel additional jurors in a criminal trial “[i]f the court thinks there are good reasons for doing so”.⁶⁶ In some Australian jurisdictions, the practice of the courts appears to be to avail themselves of the ability to empanel additional or reserve jurors in cases where the trial is estimated to last more than four⁶⁷ or six weeks.⁶⁸ In other jurisdictions, extra jurors are “often”⁶⁹ empanelled even where the trial is estimated to last only two or three days.⁷⁰ In our view, this goes too far: it puts unnecessary pressure on the jury resources of the State. For example, it dilutes the pool of potential jurors by excusing the additional juror who is balloted out of the jury from further jury service for the specified period.⁷¹ The problem of jury leakage in short trials is, in our view, sufficiently addressed by the court’s discretion to continue a trial where a juror has been discharged.

10.51 Thirdly, where the court has estimated that the trial will take longer than three months, the judge will need to determine how many additional jurors should be empanelled to attempt to ensure that, allowing for the likely leakage of jurors over the expected length of the trial, there will be at least 12 jurors ultimately called upon to retire and consider the verdict. The trial judge’s determination is not, however, at large. Our recommendation sets at three the maximum number of additional jurors that the trial judge can empanel. This is in line with the legislation in the NT, Queensland, SA and Victoria. In contrast, the ACT allows for up to five additional jurors, while WA allows for up to six. At the other end of the scale, Tasmania only allows for up to two reserve jurors. The point of setting a limit is to achieve a balance between the objective of obviating retrials and avoiding putting too great a strain on the jury resources of the State. While setting the maximum number is ultimately a matter of judgment, we see no reason to depart from the number that accords with the legislation in the majority of other Australian jurisdictions.

10.52 Fourthly, the availability of a system of reserve or additional jurors has the advantage of providing some degree of encouragement for an unwilling juror to seek to be excused because of the knowledge that there is someone available to replace him or her, even though otherwise that person may have felt a moral obligation to continue to serve.

10.53 Fifthly, we reject the reserve juror option on the basis that, while such jurors are expected to participate fully as jurors in the trial up to the time of deliberation, they are identified as reserve jurors from the outset. They may, as a result, regard themselves as having second-class standing and, therefore, fail to give the matter their fullest attention. The option of using additional jurors does not share this problem and is clearly the preferred model. The experience of Western Australia, where the additional juror system replaced a reserve juror system by legislative amendment in 2003, would seem to confirm this.⁷²

10.54 It remains true that the additional juror system carries the risk of considerable frustration and disappointment to those jurors who are balloted out. The dynamics of the remainder of the panel may also be disrupted. To address this risk, it is incumbent on the trial judge to give a full explanation of the system of additional jurors to the jury at the outset of the trial, so that all the members of the jury panel are aware of what may happen in respect of membership of the jury panel and of why it may happen.⁷³

10.57 The legislation in other Australian jurisdictions does not take a uniform approach to the availability of peremptory challenges to additional or reserve jurors. The ACT, Queensland and Tasmania allow for additional challenges.⁷⁴ For example, Queensland allows its base eight peremptory challenges in criminal trials to be increased to nine if there are one or two reserve jurors, and to 10 if there are three reserve jurors. On the other hand, the majority of other Australian jurisdictions (the NT, SA, Victoria and WA) do not permit further peremptory challenges to reserve or additional jurors.

10.58 While we appreciate that a greater base number of peremptory challenges is available in the Northern Territory,⁷⁵ Victoria⁷⁶ and Western Australia⁷⁷ than in New South Wales, we nevertheless favour the approach in the majority of Australian jurisdictions. As we have already indicated, we are concerned that, overall, peremptory challenges have a negative impact on juror selection.⁷⁸ We have recommended that the justification for the continued availability of peremptory challenges should be kept under review. If a need emerges for further peremptory challenges in cases where it is proposed to empanel additional jurors, it can be addressed in the course of such a review.

10.59 A jury’s verdict may not conclude the trial where it does not apply to all counts in the indictment or where it does not apply to all accused persons. For example, the trial judge may direct the jury to return a verdict of acquittal on one count before summing up the case in relation to the remaining counts.⁷⁹ It is also possible, though rare, that a jury may be instructed to retire to consider whether or not to return a verdict without hearing further evidence.⁸⁰ If, at the point of retirement in such cases, there are more than 12 jurors, a ballot will be held to exclude from the panel sufficient jurors to reduce the number to 12. In such cases, it is obviously desirable to retain the additional jurors until final retirement so as to reduce the risk of a discharge of the whole jury late in the trial with consequent waste of resources.

10.60 In our view, this is best achieved by making express provision to the effect that:

10.61 The legislation in South Australia⁸⁴ and Victoria⁸⁵ provides that, where a member of the jury has been elected as its foreperson or speaker, that person is either to be excluded from the ballot or his or her selection in the ballot is to be disregarded. We agree with this approach. It avoids the need to elect a new foreperson or speaker, which could have a disruptive effect on the deliberations of the jury.⁸⁶

Supplementing with people summoned to other courts in the same jury district

10.62 The Jury Act 1977 (NSW) currently contains a provision which allows the Sheriff to supplement the panel for a particular trial or inquest for which there are insufficient prospective jurors from among those who have been summoned to attend another court or inquest in the same jury district.⁸⁷ The provision was included when the practice of selecting bystanders in the precincts of the court⁸⁸ was abolished with the enactment of the Jury Act 1977 (NSW).

10.63 It has been brought to our attention that some judges continue to be concerned whether the provision is adequate to overcome the requirement in s 19 of the Act that a jury must consist of 12 people “returned and selected in accordance with” the Act. The concern is that, for example, a juror who has been summoned (returned) to attend at the Sydney District Court cannot be regarded as having been summoned (returned) to attend at the Supreme Court sitting at Darlinghurst or in King Street, since they are courts of a different tier. If this is correct, then the practice which has commonly been followed by some Supreme Court judges of using jurors summoned to attend at the Sydney District Court, but not required in that court, would be irregular. It is the weight that has been given to literal compliance with the requirements of s 19 of the Jury Act 1977 (NSW) by the Court of Criminal Appeal in cases such as Petroulias, Brown and Tan, that has led to some reluctance by judges to allow the panel assembled for a trial in their court to be supplemented by jurors summoned for, but surplus to the needs of, a court of another tier in the same jury district. Although such reluctance is understandable in that it aims to ensure that a trial is not voided post verdict on the grounds of improper empanelment, it is undesirable in that it can result in:

10.65 We note that there is another provision in the Jury Act which permits supplementation of the panel for an individual trial.⁹⁰ That provision applies to people who were summoned to attend at a court, “who constituted the jury for a trial” in that court and who ceased to be required for that trial, yet were not “discharged from attending at the court in pursuance of the summons” (that is, released from the summons). It permits “juries for subsequent trials in that court” to be selected from among those persons.

10.66 It would seem that this provision would only apply to jurors who were empanelled for a trial in the District Court or Supreme Court, as the case may be, and released from that trial although not released from their summons, so as to allow them to be used for another trial in the same court. In other words, it would not seem to permit jurors who were summoned to attend the District Court, and empanelled for a trial in that Court, to be selected for a trial in the Supreme Court, or vice versa.

10.67 The section does not make any mention of the courts being in the same jury district, nor does it address the spirit of the exemption as of right which would normally arise by reason of the relevant jurors having attended court in response to a summons and having served as jurors.⁹¹

10.68 We do not make any recommendation but query whether the provision serves any good purpose in practice, particularly since it is usual for jurors to be discharged from their summons once they have completed the trial for which they were empanelled. Alternatively, if it is intended to supplement s 51(1)(c) in relation to jurors who have attended at a particular court (that is, the Supreme Court or District Court) so as to allow those people to be selected as jurors for another trial in the same court, we question whether it should be confined to those jurors who have been empanelled and not discharged or released from their summons. If so, the section could be suitably amended so as to apply additionally to people summoned to attend at that court but not released, whether or not they have been previously empanelled as a juror in a trial in that court.

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7. An exception can be the case of a trial in a regional centre where only one case may be listed and recorded in a published list.

13. The right of challenge to the array is preserved: Jury Act 1977 (NSW) s 47A.

15. Prior to the introduction of the Jury (Amendment) Act 1987 (NSW) Sch 1[5].

24. Katsuno v The Queen (1999) 199 CLR 40, [51] (Gaudron, Gummow and Callinan JJ), [83] (Kirby J).

27. By the prosecutor: Juries Act 1825 (Eng) s 29; and by the defence: Juries Act 1974 (Eng) s 12(1).

28. NSW Law Reform Commission, Criminal Procedure: The Jury in a Criminal Trial, Report 48 (1986), [4.57]-[4.73].

29. NSW Office of the Director of Public Prosecutions, Submission; NSW Jury Taskforce, Submission, 4. Views critical of the system of peremptory challenged were expressed by Aboriginal Legal Service, Submission, 9; A Abadee, Consultation; see also V French, “Juries – A central pillar or an obstacle to a fair and timely criminal justice system?” (2007) 90 Reform 40, 41.

31. One submission noted the potential of the peremptory challenge process to render some people’s experience of jury service “less than satisfactory”: Legal Aid Commission of NSW, Submission, 2.

33. See Katsuno v The Queen (1999) 199 CLR 40, 65 (Gaudron, Gummow and Callinan JJ).

34. 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, 70.

35. See M Findlay, Jury Management in New South Wales, (Australian Institute of Judicial Administration Inc, 1994), 50-52; and R Broderick, “Why the peremptory challenge should be abolished” (1992) 65 Temple Law Review 369, 370-371.

36. NSW Law Reform Commission, Criminal Procedure: The Jury in a Criminal Trial, Report 48 (1986), [4.59]-[4.68]

37. That is, where they have attended for the requisite period attracting an allowance: Jury Regulation 2004 (NSW) Sch 1 scale A.

38. NSW Law Reform Commission, Criminal Procedure: The Jury in a Criminal Trial, Report 48 (1986), [4.73]-[4.75].

39. Aboriginal Legal Service, Submission, 9. See also “News: White Jury Discharged” (1981) 2 Aboriginal Law Bulletin 5 relating to the discharge of an all-white jury in a case before the District Court at Bourke.

40. See Note, “Judging the prosecution: why abolishing peremptory challenges limits the dangers of prosecutorial discretion” (2006) 119 Harvard Law Review 2121, 2131 and 2141; C J Nemeth and J A Goncola, “Influence and Persuasion in Small Groups” in S Shavitt and T C Brock (eds), Persuasion: Psychological Insights and Perspectives (Allyn and Bacon, 2003); C J Nemeth, “Minority dissent and its ‘hidden’ benefits” (2002) 2 New Review of Social Psychology 21; C J Nemeth, “The differential contributions of majority and minority influence” (1986) 93 Psychological Review 23.

41. The development of guidelines to govern the Crown’s exercise of the right of peremptory challenge was recommended in our 1986 report: NSW Law Reform Commission, Criminal Procedure: The Jury in a Criminal Trial, Report 48 (1986), [4.78].

42. See the discussion in NSW Law Reform Commission, Blind or Deaf Jurors, Discussion Paper 46 (2004), [3.46]-[3.53].

45. NSW Criminal Justice Agencies Consultation. See also W R Cornish, The Jury (Allen Lane, The Penguin Press, 1968), 47.

47. W Holdsworth, A History of English Law (7th edition, Methuen & Co, 1956) Vol 1, 325-326.

48. L McCrimmon, “Challenging A Potential Juror For Cause: Resuscitation or Requiem?” (2000) 23 University of New South Wales Law Journal 127, 132; R v Sherratt [1991] 1 SCR 509, 532-533; Katsuno v The Queen (1999) 199 CLR 40, [83].

49. One of the recommendations in our 1986 Report envisaged that additional jurors would participate in the deliberations of the jury after retirement if the law were changed to accommodate majority verdicts: see NSW Law Reform Commission, The Jury in a Criminal Trial Report 48 (1986), [10.21] and Recommendation 83. Majority verdicts are now permissible where the accused is charged with an offence against State law (Jury Act 1977 (NSW) s 55F(2)), but not an offence against Commonwealth law, where unanimity is required: Jury Act 1977 (NSW) s 55F(4); Cheatle v The Queen (1993) 177 CLR 541. The Commission now sees no merit in pursuing the distinction drawn in Recommendations 82 and 83 of our 1986 Report.

50. Jury Act 1977 (NSW) s 22 (discharge for illness where juror incapable of continuing to act or for any other reason), considered at para 11.5-11.7.

52. Wu v The Queen (1999) 199 CLR 99; R v Brownlee (1997) 41 NSWLR 139 (CCA).

54. R v Brownlee (1997) 41 NSWLR 139, 145 (Grove J). See also Wu v The Queen (1999) 199 CLR 99.

56. For an example of an order to continue a trial with a jury of 10 some nine months after the jury had been empanelled, see R v Ronen [2005] NSWSC 320.

57. NSW Law Reform Commission, The Jury in a Criminal Trial Report 48 (1986), [10.21] and Recommendation 81.

58. M Ierace, Submission at 2. A trend towards lengthier trials is also discernible in the District Court where the average length of criminal trials finalised in 1996 was between 4 and 5 days, while, in 2006, it was 7.5 days: see District Court of New South Wales Annual Review 2006, 23.

59. For the background to, and description of, the various legislative regimes in Australia, see Ng v The Queen (2002) 5 VR 257, [17] (Winneke P, Batt and Eames JJA).

60. An example of each model has been held consistent with the requirement of “trial by jury” in s 80 of the Constitution (Cth): Ng v The Queen (2003) 217 CLR 521 (additional juror provisions in Victoria); Fittock v The Queen (2003) 217 CLR 508 (reserve juror provisions in NT).

61. Juries Act 2000 (Vic) s 23, s 48; Juries Act 1967 (ACT) s 31A; Juries Act 1957 (WA) s 18; Juries Act 1927 (SA) s 6A.

62. Jury Act 1995 (Qld) s 34; Juries Act 2003 (Tas) s 26; Juries Act 1963 (NT) s 37A.

63. P McClellan, Submission; P Johnson, Submission; M Ierace, Submission; NSW Bar Association, Submission 2.

64. N R Cowdery, Consultation; D Bugg, Consultation; W Grant, Consultation; Chief Justice Martin, Consultation.

66. Juries Act 1927 (SA) s 6A(1). See also Juries Act 1967 (ACT) s 31A(1); Juries Act 1963 (NT) s 37A(1); Jury Act 1995 (Qld) s 34(1); Juries Act 2003 (Tas) s 26(1); Juries Act 2000 (Vic) s 23; Juries Act 1957 (WA) s 18(2).

67. Australian Institute of Judicial Administration, Questionnaire Responses (May 2007) for Working with Juries Seminar (Melbourne, 15 June 2007), 65 (Victoria, response of Jury Commissioner’s Office).

68. Australian Institute of Judicial Administration, Questionnaire Responses (May 2007) for Working with Juries Seminar (Melbourne, 15 June 2007), 65 (ACT, response of Sheriff).

69. Australian Institute of Judicial Administration, Questionnaire Responses (May 2007) for Working with Juries Seminar (Melbourne, 15 June 2007), 64 (Western Australia, response of Supreme Court).

70. Australian Institute of Judicial Administration, Questionnaire Responses (May 2007) for Working with Juries Seminar (Melbourne, 15 June 2007), 64 (Western Australia, response of District Court judge). Consider also response of Northern Territory Supreme Court (“likely to exceed four days”): at 63.

72. Australian Institute of Judicial Administration, Questionnaire Responses (May 2007) for Working with Juries Seminar (Melbourne, 15 June 2007), 64 (Western Australia, response of District Court judge).

74. Juries Act 1967 (ACT) s 31A(3) (a sliding scale); Jury Act 1995 (Qld) s 42(2); Juries Act 2003 (Tas) s 35(3) (one further challenge plus balance of six unused challenges).

75. Juries Act 1963 (NT) s 44 (12 for capital offences, six for other offences).

76. Juries Act 2000 (Vic) s 39 (between four and six depending on the number of accused).

77. Criminal Procedure Act 2004 (WA) s 104(4) (each accused has five peremptory challenges).

79. As occurred in the Snowtown murder trial (R v Bunting (South Australia, Supreme Court, SCCRM-01–205)) where an additional juror was excluded while a directed verdict was given by the other 12 jurors.

80. This is known as a “Prasad direction”: see Prasad v The Queen (1979) 23 SASR 161.

82. See Juries Act 2000 (Vic) s 48(3); Juries Act 1927 (SA) s 6A(3)(b) and (c).

86. See South Australia, Parliamentary Debates (Hansard), House of Assembly, 27 June 2000, 1414 (“to prevent inconvenience”) (Hon I F Evans). If provision were made for the election of an interim jury foreperson only until the time of formal deliberation, it may not be necessary to exclude that person from the ballot.