Updates and background for this project (Digest)

• Introduction
• Public confidence in sentencing decisions
• Implications for a fair trial
• Natural justice concerns
• Practical and procedural difficulties
• The Commission’s conclusion

INTRODUCTION

4.1 All but one of the 22 submissions received in response to IP 27 opposed the suggestion that juries should have a direct role in determining sentence following the conviction of an offender.¹ Submissions opposed the idea on the grounds that:

• public confidence in sentencing was not faltering, and so the rationale for the proposal was flawed;
• the proposal gives rise to serious natural justice considerations;
• it would be unlikely to produce any positive effects on sentencing or public confidence; and
• the practical and procedural difficulties in implementing the proposal are so significant as to render it unworkable in any event.

PUBLIC CONFIDENCE IN SENTENCING DECISIONS

4.3 One of the major rationales for proposing juror involvement in sentencing is the need to bolster public confidence in the administration of justice. It is undisputed that public confidence in all aspects of the criminal justice system is crucial to its effective functioning. However, as pointed out in IP 27, attempting to articulate the exact nature of public confidence at any point in time is a difficult exercise.² Public confidence in criminal justice, including sentencing decisions, is generated by public opinion, which is in turn influenced significantly by media reporting. It is generally taken for granted that media reports of public opinion on certain subjects are accurate and well-founded. However, research has shown that public opinion is far more diverse than the impression given through the media.³ It is also quite malleable, and can be changed and manipulated depending on the facts presented and the questions asked. Further, there is no single set of views that constitutes public opinion at any given time.

4.4 Views concerning public confidence in sentencing decisions were expressed in submissions. Some disagreed with the premise underlying the proposal for juror involvement in sentencing, namely that public confidence in the justice system is lacking. Rather, they considered that views expressed through the more vocal sections of the media do not necessarily represent true public opinion.⁴ While public confidence in the administration of justice is important, this should not be confused with transitory views expressed through talk back radio and the tabloid press, which may hold no credence in the wider community.⁵

4.5 Some current and former members of the judiciary also disagreed with the suggestion implied in some outlets of the media that judges continually flout community expectations when handing down sentences.⁶ While public confidence is a vital component in the effectiveness of the justice system, judges are not, and should not, be driven in their sentencing decisions by the public sentiment of the day.

4.6 The Commission considers that further work needs to be done to ascertain the true nature of public opinion and confidence in the criminal justice system. Regardless of whether public confidence levels are indeed as low as portrayed in the tabloid media, the fact that there is a perception that justice is not always being delivered in sentencing decisions, is in itself a cause for concern. However, we do not believe that poor public perceptions of sentencing decisions, even if true, should justify a reform as drastic as the one proposed.

4.7 We are of the view that the best way to address public confidence in the criminal justice system is through better public education, and explanations of the facts surrounding sentencing.⁷ This is discussed further in the following chapter.

IMPLICATIONS FOR A FAIR TRIAL

4.8 A major ground of objection to the proposal for allowing greater juror involvement in sentencing is the possibility of prejudicing a fair trial. In particular, jury sentencing could cause unfairness to the accused, and has the potential to cause jurors to compromise when delivering their verdict.

Unfairness to accused

4.9 A number of submissions stated that jury sentencing creates a greater likelihood of bias in sentencing decisions. Concern was expressed that views on appropriate penalties or the severity of offences would be based on the personal views and experiences of jurors, rather than being decided according to law.⁸ This could be a particular problem in cases of violent or sexual offences, where the accused has a criminal history, or where a juror has been a victim of crime.⁹ In these cases, the jury may give excessive weight to factors such as retribution.¹⁰

4.10 Submissions also suggested that juror involvement could fetter the types of matters raised in sentencing. For example, some factors, such as drug dependency, can operate to mitigate the severity of a sentence, but may be viewed harshly by jurors.¹¹ Some submissions suggested that fear of jury severity could lead to an increase in guilty pleas, as defendants may seek to avoid jury involvement in sentencing, as has occurred in the United States.¹² Further, some saw the possibility that the independence of the judiciary could be compromised if judges were required to consult with jury members prior to sentencing.¹³ This reasoning led some submissions to express the view that sentencing should remain in the hands of legally qualified experts to ensure the “emotional insularity” necessary for a fair and just system.¹⁴

4.11 There is also the possibility that jury involvement could lead to increased inconsistency between sentences, since jurors would be dealing with each sentence on a one-off basis, without the benefit of training and experience.¹⁵ This would be a particular problem where there are co-accused who have pleaded differently. Those pleading guilty would be sentenced by a judge only, whereas those entering a not guilty plea, but subsequently found guilty following a trial, would be sentenced by a judge after consultation with the jury. There would also be problems with joint Commonwealth/State trials where co-offenders had been tried separately and found guilty by different juries.¹⁶

4.12 In the Commission’s view, the benefits of enabling a greater public voice to be heard by judges during the sentencing process are offset by the problems raised in submissions. To a large extent, many of the concerns regarding the dangers of juror bias may be overstated, given that the proposal under consideration is not that the jury should be the ultimate arbiters of sentencing decisions: jurors would only express opinions to the judge, who would make the final decision after considering all relevant factors.¹⁷ However, we are of the view that justice suffers whenever there is even the suggestion of bias or unfairness.

Jury could compromise on the verdict

4.13 The issue of jury compromise leading to an unsound verdict was raised in IP 27, and was echoed in a number of submissions.¹⁸ If jurors know that they are to play a role in sentencing a defendant following a guilty verdict, there is the danger that a jury could compromise on a verdict because they believe they will be able to influence a lenient sentence. This may result in more convictions in cases where there would otherwise have been an acquittal. At the very least, knowing that they will have to play a role in sentencing could distract jurors from their central fact finding role.¹⁹

NATURAL JUSTICE CONCERNS

In camera consultations

4.14 Perhaps the most contentious aspect of the proposal for jurors to be involved in sentencing is the secrecy of the discussions that would need to take place between the judge and the jurors. This was widely viewed in submissions as having the potential to compromise procedural fairness by cutting across the principle of open and transparent justice.²⁰

4.15 Transparency of sentencing proceedings is consistent with the purpose and intention of the fair trial provisions contained in Article 14(1) and (3) of the International Covenant on Civil and Political Rights.²¹ This transparency is respected in our current system, and the courts have repeatedly stressed its importance as part of the right of the accused not to be tried unfairly.²²

4.16 The accused, and the community, are entitled to know the basis on which sentencing decisions are made, and involving the jury in secret consultations on sentencing matters deprives them of that entitlement.²³ In camera consultations with jurors on sentencing matters would also be at odds with procedures conducted during the trial phase.²⁴ Some were of the view that in camera consultations between judge and jury would only create a new ground for appeal.²⁵

4.17 In addition to objections in principle, there are also practical problems associated with in camera consultations. Counsel need to be sure that no extra material is provided to the jury and that appropriate directions are given.²⁶ Any input by jurors should be transparent so that parties can make submissions on it, and judges may refer to it in their reasons for sentence.²⁷ Accountability and transparency in sentencing is crucial so that any errors of fact or law can be corrected on appeal.²⁸ Without full disclosure of the basis on which sentence determinations are made, the appeal court would have to guess the nature and relevance of the jury’s comments and the impact they may have had on the final sentence.²⁹

4.18 In camera discussions between the judge and the jury could also create an ethical dilemma for the judge should those discussions cast doubt on the verdict.³⁰ The judge would be duty bound to expose an unsound verdict, yet would be constrained by the need to protect the confidentiality of jury deliberations.³¹

4.19 Submissions also noted the unlikelihood of the secrecy lasting. Individual jurors would be tempted to disclose their version of the discussions, particularly if they were unhappy with the sentence imposed.³² This may be exacerbated in situations where there has been a majority verdict, and the dissentient juror feels excluded from the consultation process.³³ This could lead to disputes, and would place judges in an “invidious” position should they have to resolve disputes between jurors.³⁴ Public confidence would only be undermined as a result.³⁵

4.20 We consider the nature of the consultations that would need to occur between judge and jury highly problematic. On the one hand, those discussions would need to be secret in order to protect the identity of individual jurors, and the confidentiality of their deliberations leading up to the verdict. This secrecy, however, runs counter to the tradition of open and transparent justice, and causes practical and procedural problems to which there is no satisfactory solution. Added to all of this, is the very real possibility that secret consultations would do nothing to boost public confidence in the justice system. If the public is not aware of the nature and content of the consultations between judge and jury, they would have no way of knowing the extent of the jury’s input.³⁶ Such secrecy would only undermine public confidence rather than enhance it.³⁷

Unfairness to jurors

4.21 The proposal is also widely seen to be unfair to jurors, in both practical and emotional terms. Jurors would either be compelled to participate in the sentencing phase, or choose to be involved. Many were of the view that jurors would not wish to be involved in sentencing.³⁸ Former jurors and members of the public expressed the view that they were not qualified or interested in participating in sentencing the offender whom they had convicted.³⁹ The fear was also expressed that requiring jurors to participate in sentencing proceedings may discourage jury service, since prospective jurors may be unwilling to sacrifice even more of their time to devote to the sentencing phase, and result in more people relying on exemptions or seeking to be excused.⁴⁰

4.22 As we noted in IP 27, jurors have already experienced inconvenience during the trial phase in terms of time, lost income, and interruption to work and family life.⁴¹ Requiring additional participation during sentencing would be an increased burden, and likely to place far too much stress on jurors at the end of what may have already been a harrowing experience. Many submissions agree.⁴² Indeed, some submission noted the possibility that jury involvement in sentencing might be viewed cynically as an attempt to make jurors scapegoats for unpopular sentencing decisions.⁴³ They observed, and we agree, that the responsibility for sentencing decisions should continue to rest with judges, and should not be shouldered, even in part, by the jury.⁴⁴

4.23 Further, jurors may not feel comfortable discussing the reason for their verdict with the judge.⁴⁵ It is also conceivable that, during the course of those discussions, details of why and how individual jurors reached their decisions would be made known. Compromising the secrecy of jury deliberations, and possibly juror anonymity, would be a serious blow to the criminal justice system.⁴⁶ It could also expose jurors to public recrimination should their views be made known, and could have dangerous repercussions, particularly in rural areas where jurors would be more likely to be identified,⁴⁷ or in cases where there has been a dissentient juror as a result of a majority verdict.⁴⁸

4.24 We are of the view that the additional burden that jurors would face by being involved in the sentencing phase, would only be justified if significant benefit to the justice system would result from that involvement. For the reasons discussed in this chapter, we do not believe that such benefits would follow.

PRACTICAL AND PROCEDURAL DIFFICULTIES

4.25 A number of other practical and procedural difficulties detract from the likely success of jury involvement in sentencing. Particular problems are posed by the timing of the consultations between the judge and the jury, the information that should be put to jurors in order for them to be able to contribute effectively, and the cost and delay involved in implementing the proposal.

Timing of consultations

4.26 If judges were to consult with jurors on sentencing matters following a guilty finding, those discussions would need to occur either immediately before the jury is discharged, or wait until the court reconvenes for the sentencing hearing. That hearing usually takes place at least six weeks after the completion of the trial to allow time for the necessary reports and submissions relevant to sentencing to be prepared.

Immediately following the verdict

4.27 As we noted in IP 27, the advantage of holding the discussions immediately following the verdict is that inconvenience to jurors would be minimised as there would be no need to reconvene the panel at a later date. It would also ensure the availability of all jurors, giving the judge access to the full range of opinion. However, the jury’s input at that stage would be limited to the views and impressions gained during the trial. Much of the information relevant to sentencing is not available until weeks after the verdict. That information includes key psychological profiles, probation and parole reports, Victim Impact Statements, and evidence of treatment programs, etc.⁴⁹ This would mean that the jury’s opinion would be less informed, and therefore, of lesser value, and would also have procedural fairness implications.⁵⁰

4.28 Further, if counsel wished to present submissions on sentencing to the jury, which might have relevance in informing their views, these would have to be prepared prior to the verdict. This would involve extra cost, which would be an unnecessary expense in the event of a verdict of not guilty.⁵¹ In any event, any such submissions would not be assisted by the kind of post conviction enquiries into subjective circumstances that are essential to the sentencing exercise.

Waiting until the sentencing hearing

4.29 If the consultation between the judge and the jury was delayed until the sentencing hearing, the jury would have access to all reports and submissions relevant to sentencing that were not presented during the trial phase. This would alleviate to some extent the problems raised above. However, the need to bring the jury panel back after a delay of weeks or months raises significant practical difficulties.⁵² The problem would be particularly acute in rural areas, since the judge would need to return to the trial venue.⁵³ Apart from the inconvenience this would cause to jurors, work or family commitments, ill health, or overseas or interstate travel may make it difficult or impossible for all 12 members of the jury panel to reconvene for the sentencing hearing. If all jurors could not reassemble, and only a “self-selecting” portion of the original 12 returned for the sentence hearing, the representative nature of the jury would be lost.⁵⁴

4.30 From a logistical viewpoint, it is difficult enough scheduling sentencing hearings around the availability of the judge and counsel for both sides. Having also to coordinate the availability of 12 jury members would be exceedingly difficult.⁵⁵ Additional expenses would also be incurred in regional areas with judges and jury having to return to circuit courts.⁵⁶

4.31 It would also be difficult to prevent jurors discussing the matter with friends and family, or being influenced by media reporting, in the intervening period between verdict and sentence.⁵⁷ The time delay could also lead some jurors to forget their reasons for the verdict, which would undercut the effectiveness of their participation. ⁵⁸

Jurors’ information needs

4.32 The issue of jurors’ information needs with regard to sentencing is tied to the timing of the consultations that would occur between the judge and the jury. If the discussions were to occur immediately following the verdict, then only limited information on matters directly affecting sentencing in relation to the offender’s subjective circumstances would be available to the jury. More information of that kind would be available if the consultations with the jury were to coincide with the sentencing hearing. However, the question remains as to how much legal information a jury would need to be exposed to in order to be properly informed and have a relevant context in which to assess the gravity of the particular offence.

4.33 For example, the NSW Young Lawyers submission asks whether a jury should have access to counsel’s written submissions.⁵⁹ If questions are put to the jury, who should formulate them?⁶⁰ If a juror seeks clarification on a question, how should this be dealt with?⁶¹ To what extent should the judge give directions on sentencing principles and trends? There is no straightforward answer to these questions. On the one hand, the consultation would most likely be of little value unless the jury had access to all of the relevant material. However, that material is often complex and may be prejudicial. Without the proper training and experience, jurors would be at a loss as to how to interpret it, and as to the appropriate weight to give to each factor.

4.34 The information put to the jury would need to be detailed enough to enable their contribution to be meaningful, yet accessible enough to be easily understood. This would involve training for judges on how to convey sentencing principles and concepts in plain English to untrained people and to obtain their feedback. The Office of the Director of Public Prosecutions considers that the conduct of the consultations with the jury on sentencing would need to be carefully planned to ensure that the consultation process itself does not become an issue of contention.⁶²

4.35 We are of the view that the difficulty in determining what information should be made available, and in what format, highlights one of the major complexities associated with the proposal. Preparing and providing the information in the right format would also have significant resource implications.

Cost and delay

4.36 The cost and delay involved in implementing the proposal are also significant disadvantages.⁶³ Extra court time would be taken up with the discussions with the jury, resulting in additional legal fees. It is often the practice of the Office of the Director of Public Prosecutions and Legal Aid to use more junior lawyers for sentencing hearings in the District Court in order to free up senior lawyers and Crown Prosecutors for other trials. Should juries be involved at the sentencing stage, however, the senior lawyers would need to be available, incurring extra cost. This would also remove an avenue for younger lawyers to refine their advocacy skills.⁶⁴

4.37 There would also be flow on delays in other cases. The lack of transparency in the discussions between judge and jury could lead to a greater number of appeals on sentence decisions.⁶⁵ Should the discussions uncover flaws in the jury’s verdict, additional cost and delay would occur in rectifying the error.

THE COMMISSION’S CONCLUSION

4.38 In his speech, the Chief Justice articulated a number of benefits that could possibly flow from the introduction of a mechanism whereby judges consult with jurors on the question of appropriate penalties. Those benefits are:

• enhanced jury reasoning and decision-making processes;
• improvements in judicial sentencing brought about through greater exposure to community views; and
• a resulting boost to public confidence in the criminal justice system.

4.40 It is difficult to conceive of any form of jury involvement in sentencing having advantages significant enough to outweigh the serious incursions into the integrity of the criminal justice system that would inevitably result. Even if consultations between judge and jury were restricted to clarifying the factual basis on which the jury’s guilty verdict was founded,⁶⁷ there is the danger that the secrecy of the jury’s deliberation process would be undermined. This may make jurors less inclined to express their views freely while deliberating on the verdict. There would be serious implications for fair trial procedure should jury deliberations be held up to judicial and public scrutiny. At the very least it may confuse or distract jurors from their essential and significant role as finders of fact during the course of the trial.⁶⁸

4.41 Submissions received from current and former members of the judiciary express doubt concerning the efficacy of the proposal. They stress the difficulty of the sentencing process, involving as it does a consideration of complex, and often contradictory, legal principles and evidentiary factors, combined with a need to address the individual circumstances of each case.⁶⁹ It is unfair to expect jurors to offer views on matters that may require specific expertise and training. For example, they would need an understanding of the realities of the rehabilitation prospects and opportunities available to the various classes of offenders who come before the courts. This complexity makes it unlikely that jurors would be able to take into account all relevant matters, which would restrict the level of their involvement to that of a general “chat” with the judge concerning their views on matters such as the gravity of the accused’s conduct.⁷⁰ As such the jury’s advice would be of limited value,⁷¹ with one submission suggesting that the judge “might as well listen to talk back radio”.⁷²

4.42 Even if jurors were able to grasp all of the relevant issues, they would be likely to have different opinions. We query the benefit to a judge when making a determination on sentencing from receiving 12 different reasons for a guilty verdict, or 12 different views on the severity of the crime or the prospects of the offender being rehabilitated.⁷³ Nor should it be taken for granted that the views of any one jury are representative of the community as a whole.

4.43 In IP 27, we discussed the studies on public perceptions of leniency in sentencing decisions.⁷⁴ Those studies indicate that jurors tend to share the same opinions as judges regarding sentencing when they are informed of all relevant facts. We noted that if this result were to be repeated in practice, there would most likely be little change in sentencing decisions, even with juror involvement. Since the discussions between judge and jury would take place in secret, the public would have no way of knowing the extent of the jury’s involvement, and whether their views were taken into consideration.⁷⁵ Consequently, the public perception of leniency would change very little, defeating the purpose of the scheme to involve juries in sentencing.⁷⁶

4.44 In summary, the Commission is of the view that jurors should not be involved in the sentencing process to any greater extent than they are at present. This position is based on the number and strength of the arguments against the proposition, and the lack of any real impetus for change. The practical difficulties of introducing juror participation in sentencing are so overwhelming as to make the suggestion counterproductive. We also believe that in camera consultations between judge and jury on matters of sentencing would inevitably endanger the fairness of criminal proceedings from the perspective of the accused, the jury, the judiciary, and the criminal justice system generally. It is difficult to see how such an outcome could have any positive impact on public confidence.

Recommendation 1

The Commission recommends that jurors should not be involved in the sentencing process to any greater extent than they are at present.

1. See [1.5]-[1.6].

2. See [3.9]-[3.21]. See also the Hon Gordon J Samuels, Submission, 13 August 2006.

3. See discussion in IP 27, [3.11]-[3.21].

4. Judge John Goldring, Submission, 16 August 2006; the Hon Gordon J Samuels, Submission, 13 August 2006; Office of the Director of Public Prosecutions, Submission, 13 September 2006.

5. The Hon Gordon J Samuels, Submission, 13 August 2006; NSW Bar Association, Submission, 1 September 2006; Public Defenders’ Office, Submission, 18 September 2006.

6. The Hon Gordon J Samuels, Submission, 13 August 2006.

7. A number of submissions agree: see the Hon Gordon J Samuels, Submission, 13 August 2006; NSW Young Lawyers, Criminal Law Committee, Submission, 8 September 2006; and the Office of the Director of Public Prosecutions, Submission, 13 September 2006.

8. NM Aldridge, Submission, 27 July 2006; L Faure, Submission, 30 July 2006.

9. NSW Young Lawyers, Criminal Law Committee, Submission, 8 September 2006.

10. NSW Young Lawyers, Criminal Law Committee, Submission, 8 September 2006.

11. NSW Young Lawyers, Criminal Law Committee, Submission, 8 September 2006.

12. NSW Bar Association, Submission, 1 September 2006; Public Defenders’ Office, Submission, 18 September 2006. See [3.21]-[3.28] of this Report for a discussion of jury sentencing in the United States.

13. Judge John Goldring, Submission, 16 August 2006.

14. L Faure, Submission, 30 July 2006.

15. Office of the Director of Public Prosecutions, Submission, 13 September 2006; Public Defenders’ Office, Submission, 18 September 2006.

16. NSW Bar Association, Submission, 1 September 2006.

17. The value of involving jurors in an advisory capacity only, gives rise to other issues, as discussed at [4.41]-[4.42] of this Report.

18. NSW Bar Association, Submission, 1 September 2006; Judge G D Woods, Submission, 28 July 2006; Judge John Goldring, Submission, 16 August 2006; Office of the Director of Public Prosecutions, Submission, 13 September 2006; Public Defenders’ Office, Submission, 18 September 2006; Law Society of NSW, Submission, 8 September 2006.

19. Office of the Director of Public Prosecutions, Submission, 13 September 2006.

20. Judge John Goldring, Submission, 16 August 2006; Judge Michael Finnane, Submission, 7 August 2006; Judge M Sides, Submission, 28 July 2006; Judge Office of the Director of Public Prosecutions, Submission, 13 September 2006; James R Oxley, Submission, 28 July 2006; NM Aldridge, Submission, 27 July 2006; B Blackburn, Submission, 20 August 2006; L Faure, Submission, 30 July 2006; NSW Bar Association, Submission, 1 September 2006; Public Defenders’ Office, Submission, 18 September 2006; NSW Young Lawyers, Criminal Law Committee, Submission, 8 September 2006; Law Society of NSW, Submission, 8 September 2006; Legal Aid, NSW, Submission, September 2006.

21. See NSW Young Lawyers, Criminal Law Committee, Submission, 8 September 2006.

22. See Dietrich v The Queen (1992) 177 CLR 292; R v Hovan [2005] NSWCCA 179; R v Smith; R v Jones [2001] NSWCCA 279; Cameron v R (2002) 209 CLR 339; and Markarian v The Queen [2005] 215 ALR 213.

23. Judge Michael Finnane, Submission, 7 August 2006; Judge M Sides, Submission, 28 July 2006.

24. Judge Michael Finnane, Submission, 7 August 2006.

25. Law Society of NSW, Submission, 8 September 2006.

26. NSW Young Lawyers, Criminal Law Committee, Submission, 8 September 2006.

27. Judge M Sides, Submission, 28 July 2006; Judge Michael Finnane, Submission, 7 August 2006; Office of the Director of Public Prosecutions, Submission, 13 September 2006.

28. Public Defenders’ Office, Submission, 18 September 2006; NSW Young Lawyers, Criminal Law Committee, Submission, 8 September 2006.

29. NSW Young Lawyers, Criminal Law Committee, Submission, 8 September 2006; Judge Michael Finnane, Submission, 7 August 2006

30. NSW Young Lawyers, Criminal Law Committee, Submission, 8 September 2006; Judge G D Woods, Submission, 28 July 2006.

31. Judge G D Woods, Submission, 28 July 2006; Judge Michael Finnane, Submission, 7 August 2006.

32. Judge G D Woods, Submission, 28 July 2006; Office of the Director of Public Prosecutions, Submission, 13 September 2006.

33. Office of the Director of Public Prosecutions, Submission, 13 September 2006.

34. Judge G D Woods, Submission, 28 July 2006.

35. Office of the Director of Public Prosecutions, Submission, 13 September 2006.

36. NSW Bar Association, Submission, 1 September 2006.

37. Office of the Director of Public Prosecutions, Submission, 13 September 2006.

38. Justice R O Blanch, Submission, 31 July 2006; Judge John Goldring, Submission, 16 August 2006; NSW Young Lawyers, Criminal Law Committee, Submission, 8 September 2006.

39. See James R Oxley, Submission, 28 July 2006; NM Aldridge, Submission, 27 July 2006; B Blackburn, Submission, 20 August 2006; M Cooper, Submission, received 31 July 2006.

40. Judge G D Woods, Submission, 28 July 2006; Office of the Director of Public Prosecutions, Submission, 13 September 2006; Public Defenders’ Office, Submission, 18 September 2006.

41. Office of the Director of Public Prosecutions, Submission, 13 September 2006; Public Defenders’ Office, Submission, 18 September 2006.

42. Public Defenders’ Office, Submission, 18 September 2006; Office of the Director of Public Prosecutions, Submission, 13 September 2006; Judge John Goldring, Submission, 16 August 2006; and Judge Michael Finnane, Submission, 7 August 2006. The NSW Young Lawyers, Criminal Law Committee noted that the stress for jurors would be particularly acute if offender’s family were present in court during the sentencing proceedings.

43. Judge G D Woods, Submission, 28 July 2006; Public Defenders’ Office, Submission, 18 September 2006. This view was also expressed by a member of the Homicide Victims Support Group in the 26 July 2006 broadcast of the ABC’s 7.30 Report: see “NSW mulls giving sentencing powers to jurors”, transcript accessed at «www.abc.net.au/7.30/content/2006/s1697930.htm».

44. Office of the Director of Public Prosecutions, Submission, 13 September 2006; Judge Michael Finnane, Submission, 7 August 2006; Judge John Goldring, Submission, 16 August 2006.

45. NSW Young Lawyers, Criminal Law Committee, Submission, 8 September 2006.

46. The Hon Gordon J Samuels, Submission, 13 August 2006; Law Society of NSW, Submission, 8 September 2006.

47. NSW Bar Association, Submission, 1 September 2006.

48. Office of the Director of Public Prosecutions, Submission, 13 September 2006.

49. The NSW Young Lawyers, Criminal Law Committee noted that obtaining the jury’s views immediately following the verdict deprives the accused of the opportunity to participate in treatment programs between verdict and sentence, which may affect his or her prospects of rehabilitation.

50. NSW Young Lawyers, Criminal Law Committee, Submission, 8 September 2006; Judge John Goldring, Submission, 16 August 2006; Judge Michael Finnane, Submission, 7 August 2006.

51. Office of the Director of Public Prosecutions, Submission, 13 September 2006; NSW Young Lawyers, Criminal Law Committee, Submission, 8 September 2006.

52. NSW Bar Association, Submission, 1 September 2006; Justice R O Blanch, Submission, 31 July 2006; Judge John Goldring, Submission, 16 August 2006; Public Defenders’ Office, Submission, 18 September 2006

53. The Law Society of NSW and Legal Aid NSW, noted that the practice followed by some District Court circuit judges of adjourning the sentencing proceedings to Sydney following a regional trial would need to be discontinued in the event of a jury trial with a guilty verdict. Alternatively, the judge would need to return to the regional area for sentencing, involving greater cost and delay: see Law Society of NSW, Submission, 8 September 2006; and Legal Aid, NSW, September 2006.

54. Judge John Goldring, Submission, 16 August 2006; Justice R O Blanch, Submission, 31 July 2006; Judge Michael Finnane, Submission, 7 August 2006; NSW Bar Association, Submission, 1 September 2006; Public Defenders’ Office, Submission, 18 September 2006

55. Judge Michael Finnane, Submission, 7 August 2006; Public Defenders’ Office, Submission, 18 September 2006.

56. Office of the Director of Public Prosecutions, Submission, 13 September 2006.

57. NSW Young Lawyers, Criminal Law Committee, Submission, 8 September 2006; NSW Bar Association, Submission, 1 September 2006; Office of the Director of Public Prosecutions, Submission, 13 September 2006; Public Defenders’ Office, Submission, 18 September 2006.

58. NSW Young Lawyers, Criminal Law Committee, Submission, 8 September 2006.

59. NSW Young Lawyers, Criminal Law Committee, Submission, 8 September 2006.

60. NSW Young Lawyers, Criminal Law Committee, Submission, 8 September 2006.

61. NSW Young Lawyers, Criminal Law Committee, Submission, 8 September 2006.

62. Office of the Director of Public Prosecutions, Submission, 13 September 2006.

63. NSW Young Lawyers, Criminal Law Committee, Submission, 8 September 2006; Judge G D Woods, Submission, 28 July 2006; Judge John Goldring, Submission, 16 August 2006; Judge Michael Finnane, Submission, 7 August 2006; Office of the Director of Public Prosecutions, Submission, 13 September 2006; Public Defenders’ Office, Submission, 18 September 2006

64. NSW Young Lawyers, Criminal Law Committee, Submission, 8 September 2006.

65. Law Society of NSW, Submission, 8 September 2006; Legal Aid, NSW, Submission, September 2006.

66. We discuss those ways in Chapter 5.

67. This was suggested by the Chief Justice in his speech as being advantageous in proceedings such as manslaughter, where there are a number of different and alternative bases for the verdict, each carrying different levels of culpability: see also NSW Bar Association, Submission, 1 September 2006 and Justice RO Blanch, Submission, 31 July 2006.

68. The dangers inherent in the practice of asking questions of a jury concerning their verdicts are discussed at length in Isaacs v The Queen (1997) 41 NSWLR 374, 379-380.

69. The Hon Gordon J Samuels, Submission, 13 August 2006; Judge John Goldring, Submission, 16 August 2006. See also, Law Society of NSW, Submission, 8 September 2006; and Legal Aid, NSW, Submission, September 2006.

70. Judge G D Woods, Submission, 28 July 2006.

71. NSW Bar Association, Submission, 1 September 2006; The Hon Gordon J Samuels, Submission, 13 August 2006; Judge Michael Finnane, Submission, 7 August 2006; Office of the Director of Public Prosecutions, Submission, 13 September 2006.

72. Judge G D Woods, Submission, 28 July 2006. Another submission referred to such discussions on sentencing matters as a “clayton’s consultation”: Office of the Director of Public Prosecutions, Submission, 13 September 2006.

73. NSW Bar Association, Submission, 1 September 2006; NSW Young Lawyers, Criminal Law Committee, Submission, 8 September 2006; Judge Michael Finnane, Submission, 7 August 2006; Public Defenders’ Office, Submission, 18 September 2006

74. IP 27, [3.13]-[3.21].

75. NSW Young Lawyers, Criminal Law Committee, Submission, 8 September 2006.

76. See also NSW Council for Civil Liberties, Submission, 1 September 2006; NSW Young Lawyers, Criminal Law Committee, Submission, 8 September 2006; Public Defenders’ Office, Submission, 18 September 2006; Judge John Goldring, Submission, 16 August 2006; Office of the Director of Public Prosecutions, Submission, 13 September 2006; NSW Young Lawyers, Criminal Law Committee, Submission, 8 September 2006; Law Society of NSW, Submission, 8 September 2006; and Legal Aid, NSW, September 2006.