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

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Report 117 (2007) - Jury selection Updates and background for this project (Digest) How to buy a copy of this Report PDF version Terms of reference Participants RECOMMENDATIONS 1. Introduction BACKGROUND Past reviews This review Lack of empirical data THE ROLE OF THE JURY IN THE JUSTICE SYSTEM Current use of juries in NSW Criminal trials Coroner’s inquests and inquiries Civil trials THE COMPOSITION OF THE JURY The representative jury Benefits Risk of bias in appearing to exclude particular groups Spreading the burden of service Random selection Peremptory challenge Volunteers Special panels 2. Qualification, disqualification and ineligibility TERMINOLOGY HISTORICAL BACKGROUND Early provisions for juries First NSW provisions for qualification, exemption and disqualification The 1847 consolidation 20th century developments The current Act QUALIFICATION Enrolment as an elector Current law Moving beyond the electoral roll Not disqualified Not ineligible A SINGLE CATEGORY OF EXCLUSION Reducing the categories of exclusion 3. Disqualification arising from criminal history RATIONALE FOR EXCLUSION SERVICE OF A SENTENCE OF IMPRISONMENT People currently serving a sentence People who have completed a custodial sentence Current law Law in other jurisdictions Balancing principles The Commission’s conclusion JUVENILE OFFENDERS IN DETENTION PEOPLE BOUND BY ORDERS OF A CRIMINAL COURT Apprehended violence orders Disqualification from driving a motor vehicle Imprisonment for failure to pay a fine Awaiting trial or sentencing Recognizance to be of good behaviour or to keep the peace Other orders IDENTIFYING CRIMINAL HISTORIES 4. Occupational ineligibility THE GOVERNOR JUDICIAL OFFICERS AND CORONERS MEMBERS OR OFFICERS OF THE EXECUTIVE COUNCIL MEMBERS OF THE LEGISLATIVE COUNCIL OR LEGISLATIVE ASSEMBLY Common law immunity Statutory exemption Submissions The Commission’s conclusion OFFICERS AND OTHER STAFF OF THE PARLIAMENT LAWYERS Australian lawyers Crown Prosecutors, Public Defenders, Director or Deputy Directors of Public Prosecutions and Solicitors for Public Prosecutions People employed or engaged in the public sector in the provision of legal services in criminal cases Lawyers in private practice who are employed or engaged in the provision of legal services in criminal cases The Commission’s conclusion PUBLIC SECTOR EMPLOYEES Law enforcement and criminal investigation, and police officers Current NSW provisions Other Australian provisions Past reviews Submissions The Commission’s conclusion Administration of justice and penal administration Administration of justice Penal administration OMBUDSMAN AND DEPUTY OMBUDSMAN Current NSW provisions Other Australian provisions Submissions The Commission’s conclusion SPOUSES AND PARTNERS OF INELIGIBLE PEOPLE CIVIL JURIES 5. Other grounds of ineligibility INABILITY TO READ OR UNDERSTAND ENGLISH SICKNESS, INFIRMITY OR DISABILITY COMMONWEALTH EXEMPTIONS 6. Exemption as of right OCCUPATIONAL CATEGORIES Clergy and members of religious orders Health professionals Mining managers and under-managers of mines Emergency services OTHER CHARACTERISTICS People who are at least 70 years old Pregnancy Care, custody and control of school children under the age of 18 years Care of a person who is sick, infirm or disabled Geographical criteria EXCUSE AS OF RIGHT FOR PREVIOUS JURY SERVICE 7. Excuse for cause CURRENT LAW DEFINITION OF GOOD CAUSE DEFERRAL OR ALLOCATION TO A SHORT TRIAL GUIDELINES Conscientious objection Small business and sole practitioners Teachers and students EXCUSED FOR A FIXED TIME OR PERMANENTLY REDETERMINATIONS 8. Identifying potential jurors CURRENT PRACTICE Identification of jury districts Use of electoral rolls Creation of supplementary jury rolls Finalising the jury roll PROBLEMS WITH THE CURRENT PRACTICE Use of the electoral roll Jury districts PROPOSALS TO ESTABLISH A SMART ELECTORAL ROLL A NEW APPROACH Using the smart electoral roll to establish jury service areas Cross-checking with other records Privacy concerns Vetting by law enforcement and security agencies A combined notification and summons procedure Precedents for eliminating the notice of inclusion Locating jurors for particular courts Abolition of appeals to a Local Court 9. Summoning and attendance WITHDRAWAL OF SUMMONS SUFFICIENT NOTICE OF ATTENDANCE LISTING AND CANCELLATION OF TRIALS ATTENDANCE FOR MORE THAN ONE DAY BEFORE EMPANELMENT COMPLIANCE Penalties 10. Empanelment ESTABLISHING A JURY PANEL Disclosure before empanelment of information concerning the trial Estimating the length of the trial CHALLENGE TO EMPANELMENT Peremptory challenge Arguments against peremptory challenge Arguments in favour of peremptory challenge Alternatives to complete abolition of peremptory challenge The Commission’s view ADDITIONAL JURORS Section 19 of the Jury Act Peremptory challenges Where the verdict does not conclude the trial The position of the foreperson in the ballot SUPPLEMENTING PANELS THAT HAVE INSUFFICIENT NUMBERS Supplementing with people summoned to other courts in the same jury district Supplementing with people no longer required as jurors at another trial in the same court 11. Discharging jurors for cause and irregularities in empanelment IRREGULAR CONDUCT OR EVENTS AFTER EMPANELMENT Discharge of individual jurors and continuance of trial Court’s power to discharge jurors Court’s power to order that the trial continue Empanelled jurors who subsequently come within a category of exclusion Jurors who are excused for individual personal cause after empanelment Inappropriate juror conduct Potential or actual bias of a juror Discharge of the whole jury Adverse publicity Improperly admitted evidence or material wrongly made available to the jury IRREGULARITIES IN EMPANELMENT Attendance of a juror on the wrong day in answer to summons Empanelment of a disqualified or ineligible juror The Commission’s conclusion APPEALS TO THE COURT OF CRIMINAL APPEAL REPORTING IRREGULARITIES 12. Allowances DAILY ALLOWANCE New South Wales Continuation of salary of employed jurors Level of payment Unconditional prescribed rate Mandatory payment by employers Financial loss models The Commission’s conclusions People who attend but are not empanelled Payment for days when jurors are not required to sit TRAVELLING ALLOWANCE REFRESHMENT ALLOWANCE OTHER REIMBURSEMENTS Substitute care and other out-of-pocket expenses Locums or temporary replacements and incidental losses 13. Conditions of service JUROR ACCOMMODATION AND JURY MANAGEMENT Physical accommodation and facilities Trial interruptions Access to telecommunication devices JURY COMMUNICATION, INFORMATION AND EDUCATION Challenging popular perceptions Pre-trial information Written information Video Telephone confirmation The Commission’s conclusion Post-trial information Debriefing Counselling INSURANCE FOR INJURIES RECEIVED OR PROPERTY DAMAGE ARISING IN THE COURSE OF SERVICE 14. Jury service and employment PROTECTION OF EMPLOYMENT TYPES OF EMPLOYMENT PROTECTED Full-time or part-time employees Independent contractors Temporary, casual and seasonal workers Leave Work outside sitting times HINDERING OR HARASSING JURORS PENALTIES INTERACTION WITH COMMONWEALTH LAWS 15. Management of the jury system JUROR SATISFACTION AND COMMUNITY CONFIDENCE THE ROLE OF THE SHERIFF’S OFFICE Current arrangements in NSW Staffing Use of technology Communication Jury Task Force Victorian model Commission’s conclusion 16. Costs and benefits CHANGES TO ENROLMENT AND SUMMONING CHANGES TO EMPANELMENT PROCEDURES CHANGES TO REMUNERATION OF JURORS CHANGES TO INFORMATION DELIVERY AND TECHNOLOGY THE COMMISSION’S CONCLUSION APPENDICES Appendix A: Submissions Appendix B: Consultations Appendix C: Commonwealth exemptions TABLES List of Cases List of Legislation BIBLIOGRAPHY

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