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

Every person who is enrolled as an elector for the NSW Legislative Assembly should be qualified and liable to serve as a juror.

The heading of “exclusion from jury service” should be adopted in preference to the separate headings of ineligibility and disqualification for listing those who may not undertake jury service.

People who are currently serving a sentence of imprisonment should be excluded from jury service. Imprisonment for the purposes of this exclusion should include sentences served by way of periodic detention and home detention and suspended sentences.

A person should be excluded from jury service for life if they have been sentenced to imprisonment for:

(b) any offence constituting a “terrorist act” punishable under State or Federal law; and

A person should be excluded from jury service for 10 years from the date of expiry of any sentence or sentences of imprisonment aggregating three years or longer.

A person should be excluded from jury service for five years from the date of expiry of any sentence or sentences of imprisonment aggregating less than three years, but exceeding six months, imposed in respect of an indictable offence.

A person should be excluded from jury service for two years from the date of expiry of any sentence or sentences of imprisonment aggregating less than three years in respect of a summary offence, and aggregating less than six months in respect of any indictable offence.

A “sentence of imprisonment” should include: home detention, periodic detention, a sentence of imprisonment that has been suspended, and a sentence of imprisonment by way of compulsory drug treatment detention; and should not include a sentence of imprisonment that has subsequently been quashed on appeal, either wholly, or converted to a non-custodial sentence, or become the subject of a pardon.

A person on parole or released on probation after serving part of a sentence of imprisonment should be taken to be serving the sentence until expiry of the overall term.

People who are subject to limiting terms under the Mental Health (Criminal Procedure) Act 1990 (NSW), or detention orders under Crimes Act 1914 (Cth) Part 1B, Division 6, should be excluded from jury service only during the currency of the limited term or detention order.

A person should be excluded from jury service for three years from the date of expiry of any sentence or control order served in a detention centre or other institution for juvenile offenders.

The exclusion should not apply where the sentence or control order is later quashed on appeal or converted to a non-custodial sentence, or becomes the subject of a pardon.

A person on parole or released on probation after serving part of a sentence or control order should be taken to be serving the sentence until expiry of the overall term.

“Detention centre or other institution for juvenile offenders” should include Juvenile Justice Centres.

A person should be excluded from jury service when he or she is currently bound by an order made in NSW or elsewhere pursuant to or consequent upon a criminal charge or conviction not including an order for compensation.

All currently available orders that meet this description in NSW should be identified in a non-exhaustive statutory list.

The Sheriff should have access to criminal records databases in order to determine whether potential jurors should be excluded from jury service.

The Governor and anyone acting as Governor should be excluded from jury service.

Judicial officers, including acting judicial officers, should be excluded from jury service during the currency of their commission and for three years from the date of the termination of their last commission.

Members or officers of the Executive Council should be excluded from jury service.

Parliament should give consideration to the question of the extent and preservation of the statutory exclusion and common law immunity of its members in relation to jury service.

Officers and other staff of either or both of the Houses of Parliament should be eligible for jury service.

As a class, Australian lawyers should be eligible for jury service, subject to the exceptions noted below.

Ineligibility should continue to apply to lawyers who currently hold office as a:

Australian lawyers and paralegals employed or engaged in the public sector in the provision of legal services in criminal cases should continue to be excluded from serving as jurors while so engaged or employed.

People who are currently employed or engaged (except on a casual or voluntary basis) in the NSW Police Force, the Australian Federal Police, the Australian Crime Commission, the NSW Crime Commission, the Police Integrity Commission and the Independent Commission Against Corruption in law enforcement or criminal investigation, other than clerical, administrative or support staff, should be excluded from jury service. The exclusion should extend for three years after the termination of the relevant position or office.

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

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

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

The Ombudsman and Deputy Ombudsman should continue to be excluded from jury service. The exclusion should be extended to those holding divisional offices as Deputy or Assistant Ombudsmen, and to officers of the Ombudsman, other than clerical, administrative or support staff.

Spouses and partners of those who are excluded from jury service should not be excluded from jury service.

The regime for the exclusion of people from jury service for civil trials should be the same as that for criminal trials.

To qualify for jury service a person must be sufficiently able to read and communicate in English to enable them properly to carry out the duties of a juror.

The Sheriff and the presiding judge should each have the ability to discharge people who are not sufficiently able to communicate in English.

Guidelines should be developed to facilitate and standardise the process of identifying those who are not sufficiently able to communicate in English.

Sickness, infirmity or disability which renders a person unable to discharge the duties of a juror should no longer be a ground of exclusion, but should be considered as a ground of excusal for good cause.

The Commonwealth should be encouraged to review the categories of exemption applicable to Commonwealth Public Servants and office-holders in order to confine them to those who have an integral and substantial connection with the administration of justice or who perform special or personal duties to the government.

No person should be entitled to be excused from jury service as of right solely because of his or her occupation, profession or calling. He or she should be able to apply, on a case by case basis, to be excused for good cause.

No person should be entitled to be exempted from jury service as of right because of personal characteristics or situations. They should, however, have the capacity to apply, on a case by case basis, to be excused for good cause.

Jury Act 1977 (NSW) s 39, which relates to the exemption as of right of certain people who have previously performed jury duty, should be retained.

The exemption should be extended to anyone employed by a small business (fewer than 25 employees) which has had another employee serve as a juror in NSW within the preceding 12 months.

The Sheriff and the court should be able to excuse people from jury service for “good cause” either permanently or for a set period.

The practice should be encouraged of allowing jurors who seek to be excused, in court, on grounds which might cause them embarrassment or which might relate to their personal health or circumstances, to reduce those grounds to a document to be handed up to the judge.

(a) service would cause undue hardship or serious inconvenience to an individual, to his or her family, or to the public;

(b) some disability associated with that individual would render him or her, without reasonable accommodation, unsuitable for or incapable of effectively serving as a juror; or

(c) a conflict of interest or some other knowledge, acquaintance or friendship exists that may result in the perception of a lack of impartiality in the juror.

Potential jurors, if otherwise eligible to be excused, should be allowed an opportunity to defer and to nominate dates within the coming 12 months when they will be available.

Multiple deferrals should be discouraged by an appropriate exercise of discretion.

Guidelines should be prepared and published to assist the Sheriff’s exercise of discretion in excusing jurors for good cause or in deferring the time at which those who seek to be excused might still be required to serve.

The guidelines, which should also be made available to all judges, should take into account the following matters:

(a) the demonstration of illness, poor health or disability, which would make jury duty unreasonably uncomfortable or incompatible with the good health of the juror, although only on production of a medical certificate;

(b) the pregnancy of the juror where, in the particular circumstance, service has been shown on production of a medical certificate to be unreasonably uncomfortable, or incompatible with the good health of the juror;

(c) the existence of substantial or undue personal hardship (including financial) or undue inconvenience to an ongoing business or professional practice resulting from attendance for jury service;

(d) the fact that excessive time or excessive inconvenience would be involved in travelling to and from court;

(e) the occasioning of substantial inconvenience to the public (or a section of the public) or the functioning of government resulting from the person’s attendance for jury service;

(f) the existence of caregiving obligations for young children or people with a disability where:

(h) the holding of objectively demonstrated religious or conscientious beliefs that would be incompatible with jury service;

(i) the existence of a particular pastoral or ongoing counselling relationship between a member of the clergy or health professional and the accused or a victim or their families, such that the juror might be unable to bring (or appear to be unable to bring) an unbiased mind to the case;

(j) the existence of a previous or current professional contact between the accused, a victim or a witness in a particular case, such that the juror might be unable to bring (or appear to be unable to bring) an unbiased mind to the case;

(k) the age of the person in circumstances where, on that account, jury service would be unduly onerous;

(l) the fact that the juror has a high public profile to the extent that his or her anonymity might be lost if required to serve, resulting in a possible risk to his or her personal safety;

(m) pre-existing conflicting commitments such as pre-booked travel or holidays, special events, such as weddings, funerals or graduations, or examinations, compulsory study courses, or practical exercises required of students;

(n) the fact that the person is a teacher or lecturer who is scheduled to supervise or assess students approaching examinations, or to supervise or process an assessment task, or if the service is to take place in the first two weeks of a term or semester;

(o) the fact that the person is a member of the staff of the NSW Ombudsman attached to the Corrections team or the Police and child protection team; and

any other matter or circumstance of special or sufficient weight, importance or urgency.

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

A person whose application to be excused or deferred has been refused by the Sheriff should be able to bring forward a further application to a duty judge of the trial court for redetermination on a day before the date for the return of the summons.

The Sheriff should be able to access and use a smart electoral roll, if it becomes available, for the purpose of establishing jury service areas and summoning jurors.

If no such system is developed, the Sheriff should be given direct real-time electronic access to the existing electoral rolls.

Pending the possible introduction of a smart electoral roll, the Sheriff should have the authority and capacity to cross-check data relating to a potential juror’s residential address with records held by other government agencies.

The Sheriff should have the authority and capacity to cross-check data relating to a potential juror’s criminal and custodial history and status with records held by other government agencies.

Consequential amendments should be made to the provisions of the remaining provisions of the Jury Act 1977 (NSW) that rely on the current definition of “jury district”.

The current system of selection should be altered so that people living within a specified radius of the trial court should be summoned directly from the relevant electoral listings.

It should be possible to summon jurors to serve at any one of the courts within the permitted radius of their place of residence, subject to excusal 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 at any court within the specified time.

There should be provision for the withdrawal of a summons for jury service upon proof that a person is ineligible to serve or that good cause exists to be excused.

The period of notice for attendance at a court for jury service pursuant to a summons should be no less than four weeks, unless a judge of the court otherwise orders.

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.

The ability of trial counsel to agree to an extension of the statutory number of peremptory challenges should be subject to leave being given by the judge, pursuant to application made before the date fixed for trial.

The justification for the continued availability of the right to peremptory challenge should be kept under review.

Provision should be made to empower the court to empanel up to three additional jurors where the judge estimates that the trial will take in excess of three months. If more than 12 jurors remain when the jury is about to retire to consider its verdict, the additional jurors should be balloted out

At the outset of the trial, the judge should fully inform the jury of the rationale, nature and operation of the additional jury system.

The requirement that a jury “consist of 12 persons returned and selected in accordance with [the] Act” should expressly be made subject to the provision allowing for the empanelment of additional jurors.

No provision should be made for further peremptory challenges where it is proposed to empanel additional jurors.

Provision should be made to the effect that: (a) a fresh ballot must be conducted each time the jury is required to retire to consider its verdict; (b) if a criminal trial is not concluded after a verdict is given, the jurors selected in the ballot must rejoin the jury for the continuation of the trial; and (c) where the jury retires for the last time, additional jurors who are balloted out may be discharged from further service as jurors for the trial.

The foreperson or speaker of the jury should be excluded from, or disregarded in, the balloting out of additional jurors.

The Jury Act 1977 (NSW) should be clarified, by way of a note, to ensure that s 51(1)(c) will have the effect of allowing 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 a court of a different tier or an inquest, in the same jury district, including, for example, allowing jurors summoned to the Sydney District Court to serve in the Supreme Court sitting at Darlinghurst or at King Street, and vice versa.

The court should be given an express power to discharge a juror without discharging the whole jury in circumstances where the court is satisfied that:

and to order that the trial continue with the remaining jurors, so long as the number of remaining jurors meet the requirements of Jury Act 1977 (NSW) s 22.

The court should also be given an express power to order that the trial continue in circumstances where one of the jurors has died.

The court should be given an express power to discharge a juror without discharging the whole jury and to order that the trial continue in circumstances where that juror has been improperly empanelled, which would include a discretion to discharge the whole jury where the interests of justice so require.

The requirement that a jury “consist of 12 persons returned and selected in accordance with [the] Act” be made expressly subject to provisions allowing the court to order that a trial continue with fewer jurors in the event of the death or discharge of one or more jurors.

Section 73(a) of the Jury Act 1977 (NSW) should be amended to extend its operation to any person who was otherwise empanelled by error where the error was not discovered during the trial and cured by the discharge of that person as a juror.

The saving provisions of s 73 should be amended so as to exclude the case of juror personation.

Consideration should be given to amending s 5F of the Criminal Appeal Act 1912 (NSW) to include an express provision for the review by the Court of Criminal Appeal of any order made by the trial judge following an application for the discharge of a juror and for the continuation of the trial with a reduced number of jurors or for the discharge of the jury as a whole.

During the trial, a juror should be expressly authorised to report to the trial judge any suspicion which he or she has concerning the existence of bias or fraud on the part of any other juror, or the commission by that juror of an offence related to his or her membership of the jury or concerning any other question relating to the capacity or willingness of that juror to perform his or her functions according to law, or, if not reported at that stage, then to the Attorney General, Director of Public Prosecutions or Sheriff.

Jurors should be entitled to a basic daily allowance which can be supplemented by a capped amount to provide a measure of compensation for any loss of earnings or income as a result of jury service. A review should be undertaken with a view to increasing the daily allowance and establishing a capped additional amount which would be available by way of compensation for those who suffer such a financial loss.

The payment of any allowance for loss of earnings or income should depend upon the production of a certificate of loss of earning or income.

People who attend for jury service in response to a summons, but are released in less than four hours, should receive a part allowance.

Jurors should be paid the daily attendance allowance for days during a trial when they are not required to be present in court but only when they have not been paid by their employers for those days.

The Sheriff should have a discretion to pay a supplementary allowance to those jurors who can establish, by production of appropriate records, that their actual and reasonable costs of travel are in excess of the base rates determined by the automated system.

Consideration should be given to allowing jurors to recover reasonable minder and childcare expenses that are incurred by reason of jury duty.

The Sheriff should be granted the discretion to pay additional out-of-pocket expenses incurred by reason of jury duty where such expenses are reasonably incurred.

Better and more comprehensive information should be provided to prospective jurors in advance of the date they have been summoned to attend.

Judges should consider adopting strategies for debriefing jurors at the conclusion of the trial, so as to recognise their contribution and identify any concerns they may have arising from their jury service, although without venturing into the content of their deliberations.

The Juror Support Program should continue to be available to jurors after they are discharged.

Consideration should be given to the establishment of an appropriate scheme whereby compensation is paid for any injuries or loss due to property damage occasioned to a juror in the course of jury service, or while travelling to and from the court for the purpose of such service.

The employment protection provisions for jurors should apply to both full-time and permanent part-time employees.

Where an independent contractor provides services on a continuing basis equivalent to employment, it should be an offence to terminate the contract for services, or to otherwise prejudice that contractor, where that contractor is required to perform jury service.

The Jury Act should be amended to state that requiring employees to use annual or other leave entitlements, in order to serve on a jury, amounts to prejudice under the provisions that protect a juror’s employment during jury service.

Employers should be prohibited from requiring employees to work on days on which they actually attend for jury service; and from requiring jurors to work outside sitting times in order to make up for time lost while serving as jurors.

The penalties applying to offences relating to the termination of employment, prejudicial alteration of position, or threat thereof, to jurors should be increased to 50 penalty units and/or imprisonment for up to 12 months for natural persons, and 200 penalty units for corporations.

The penalties should be applicable both to the employer, and to any person acting on behalf of the employer who is responsible for the breach, as well as to those directors and employees of a corporation who, under the current law, might be similarly liable to prosecution for the relevant conduct.

The NSW government should enter discussion with the Commonwealth to identify and resolve any anomalies or uncertainties relating to jury service provisions arising by reason of Commonwealth employment laws.

A review should be established to examine the formation of a separate division within the Sheriff’s Office dedicated to the management of the jury system in NSW, or to the establishment of a separate jury commissioner’s office, with the responsibility for the provision of jury services throughout NSW.

The review should include a re-examination of all of the information provided to jurors, including the orientation video.

Table of contents