INTRODUCTION

In the course of preparing this Working Paper, the lack of empirical information on the functioning of the jury system in New South Wales became apparent. In consequence, the Commission was hampered in a number of areas in assessing the current situation and investigating options for improvement. The need for a comprehensive survey of the jury system was clear. The Commission approached the Law Foundation of New South Wales to obtain funds to conduct the major aspects of the research project. The Commission is fortunate that the jury system continues to be a major topic of interest for the Law Foundation. Our application was approved and the generous grant which the Commission has been given will enable us to conduct the comprehensive research projects that are required to discover the way in which the jury system works in practice. it is proposed that the range of the survey should cover the following broad issues:

• the way in which the jury represents the community;
• communication with juries;
• the role of the jury in criminal trials; and
• perceptions of the jury's role.

The Commission, with its consultant statistician, Ms. Concetta Rizzo, has designed a series of projects to obtain the thorough and detailed profile of the jury system which is required.

Project I: Collection of Statistics on Jury Selection

Initial inquiries have revealed that an average or 50 per cent of people advised of their inclusion on draft jury rolls are ultimately deleted from certified (final) jury rolls. The first stage of this project will determine the specific reasons for these deletions. As explained in Chapter 3 of this Working Paper, the draft jury roll for each jury district is compiled at random from the relevant electoral rolls and all people chosen are notified of their inclusion. Certain categories of people, however, are disqualified or ineligible for jury service or may claim an exemption as of right. Such people, on being notified of their inclusion on a draft jury roll, must apply to the Sheriff to be deleted from the final jury roll. The Commission is concerned to know which categories of disqualification, ineligibility and exemption account for significant numbers and proportions of deletions from jury rolls. This part of Project I will enable the Commission to assess the desirability of the categories of deletion and to propose viable alternatives.

Method: Three jury rolls which are due to be renewed during 1985 have been chosen because of the diversity of their, geographical and demographical makeup: Penrith, Newcastle and Dubbo. As the applications for deletion are received, they will be categorised. The Commission expects to examine some 20,000 forms distributed as follows:

Penrith: 8,500

Newcastle: 8,500

Dubbo: 2,000-3,000

The second stage of this project will ascertain the proportions of people Included on a certified jury roll and subsequently summoned for jury service who apply to be excused by the Sheriff from . answering the summons . Applications to be excused are generally accompanied by a statutory declaration and the reasons given and accepted will be analysed. Categories of excusal are not listed in the Jury Act, 1977. The Sheriff has a discretion to excuse people "for good cause". This part of Project I will enable the Commission to assess the exercise of that discretion and the suitability of the broad expression in the Jury Act, 1977.

Method: The same three jury districts will be used. The new jury rolls for Penrith and Newcastle will be in use by October 1985. All people summoned to attend courts in those districts during October, November and December 1985 and who apply to be excused will be the subjects of this survey. Their applications will be examined and categorised. The new jury roll. for Dubbo will be operational early in 1986 and a three month period will then be chosen during which to examine applications for excusal by the Sheriff.

Project II: Survey of Jury Pools and Panels

This project will complement the collection of statistics on the selection of jurors, and the deletion of people both from the jury roll and by excusals, by collecting information as to the socio-demographic composition of jury pools and panels. As described in Chapter AL of this Working Paper, people are summoned to constitute pools and panels from which juries are then selected. This project will also assess the information available to people before they respond to a summons and the adequacy of that information as perceived by them. Pre-service attitudes to jury service and to the concept of juries will also be examined.

Method: A sample of: people attending courts to constitute jury pools and panels throughout the State in October, November and December 1985, will be invited to complete an anonymous questionnaire before any jury is empanelled.

Project III: Survey of Jurors

The first two projects will also be complemented by a survey of people who have just been discharged from jury service Again socio-demographic information will be collected and jurors will be questioned about their to jury service and about their experiences as jurors. Jurors will be invited to suggest how the administration of the jury might be improved. This project will assist the Commission to assess the efficiency of juror usage by New South Wales courts as well as to gauge the representativeness of juries.

Method: Jurors who have been discharged at the close of a trial will be invited to complete a short anonymous questionnaire before leaving the court. All jurors serving in criminal trials commencing In October, November and December 1985 will be surveyed subject to the permission of the presiding judge. The Commission expects that about 2,400 questionnaires will be completed.

Project IV: Survey of Criminal Trials

This project will complement the survey of jurors by providing a different view of the very same criminal trials in which the jurors surveyed will have served. In addition, much useful information will be obtained about the ways in which juries are used in courts, the efficiency of their use, and the effects their, presence has on trials The results of this project will assist the Commission in making recommendations to improve trial procedures where a jury is present.

Method: Judges' associates will be asked to complete detailed information sheets on each criminal jury trial commenced during October, November and December 1985. The Commission estimates that there will be about 200 criminal jury trials in New South Wales in this period. Information recorded will include:

• excusal of jurors by the judge;
• the use of challenges by counsel;
• discharge of jurors in the course of the trial;
• time spent out of court by the jury and the reasons;
• the length of each trial;
• reasons for mis-trial, if any;
• length of the jury's deliberation;
• questions asked by the jury during the trial. and the deliberations;
• whether a view was requested or conducted; and
• the outcome of the case.

Project V: Survey of Judges

Judges in New South Wales were surveyed during July 1985 to discover their practices in relation to juries, their attitudes to some proposed reforms and their views of jury trial generally.

Method: Some 60 judges who preside at criminal trials were invited to complete an anonymous questionnaire. The response has been very encouraging with an overwhelming majority of judges returning detailed replies containing useful material, The information and ideas we have obtained are an invaluable aid to our work in this area.

Project VI: Jury Instructions

As explained in Chapter 6 of this Working Paper, the validity and acceptability of the jury system depends to a large extent upon the jury's ability to comprehend and apply the law as interpreted for it by the judge to the facts it finds to have been proved in the case before it. Judges in New South Wales decided some time ago to draw up a set of standard jury instructions to assist judges when summing-up on the law. These instructions would be accurate statements of the law which should also be comprehensible to jurors. The judges sought the assistance of the Australian Institute of Criminology in testing the ease with which the instructions which had been drafted could be understood by lay people. Preliminary testing by the Institute's researchers found that the Instructions were poorly understood. They recommended a further graduate process of empirical testing of progressively refined instructions. The Commission has determined to undertake this project with the Institute. In doing so we have the full support of the Chief Justice of New South Wales, Sir Laurence Street, K.C.M.G. The project will involve

• analysing the language used in the draft instructions and substituting common words and less complicated phrases where possible;
• referring re-written instructions to judges to check that accuracy is maintained; and
• empirical testing of re-written instructions to determine whether one form is easier to understand than another.

Related studies will test for memory, in order to determine how much information delivered orally can reasonably be retained, and for differences between oral instructions alone and oral instructions supported by written instructions.

Project VII: Survey of Crown Prosecutors

The Attorney General authorised the Commission to make inquiries of the prosecuting authorities. Crown prosecutors were surveyed during June 1985 to discover, among other things, their practices with respect to juries and their attitudes to some proposed reforms.

Method: Some 40 Crown prosecutors were invited to complete an anonymous questionnaire. Jury-related questions concerned:

• the use of the Crown's right to make peremptory challenges;
• the content of the Crown's opening address to the jury;
• the prosecutor's opinion on orientation of the jury by the presiding judge;
• the use of visual aids; and
• enhancing jurors' comprehension in complex cases.

Whilst the response was far from overwhelming, more than half the Crown Prosecutors responded to the survey. The information we obtained will prove to be of assistance in relation to certain important issues.