I. INTRODUCTION
4.1 The jury for a trial is chosen from a panel of people summoned to attend. The size of a panel is determined by the Sheriff, taking into account the number of challenges to be available and the possibility that people will ask to be excused. In the presence of the accused in open court, names are drawn at random until twelve jurors are selected. The remainder of the panel is either discharged or returned to the jury pool and kept available in the event of their being required for another trial. Both the Crown and the accused may object to prospective jurors, subject to limitations which are detailed below. A juror who is objected t(m or ‘challenged’ , is excused . By the use of the challenge, therefore, counsel attempt to influence the constitution of the jury. This Chapter describes the rights of challenge and assesses their propriety in the light of the above-stated goals of the jury selection process, most notably impartiality and representativeness. Other aspects of the empanelling procedure are also noted.
II. CHALLENGE TO THE ARRAY
4.2 At common law both the accused and the Crown could object to the jury panel as a whole. The Jury Act, 1977 preserves this challenge.1
Challenge to the array is exception taken to the whole panel of persons returned by the summoning officer by reason of matter personal to the officer himself.2
The position of the summoning officer may be clearly inconsistent with impartiality, such as where he or she is related to one of the parties, or it may be merely suspected. ‘In either case, the array may be challenged.3 The challenge must be in writing. In 1974 an Aboriginal accused in Tamworth challenged the array on the basis that no Aborigines were on the jury panel. The challenge failed when it. was shown that there were some Aborigines on the jury roll for the district and no impropriety could be attributed to the Sheriff.4 Failure on the part of the Sheriff to draw up the jury panel in accordance with the law is also a ground for challenge to the array. In R. v. Grant and Lovett, two labourers, one white and one Aboriginal, challenged the array on the basis that no juror was either a labourer or an Aborigine and that, therefore, the accused were not: provided with a jury of” their peers. The trial judge ruled that the challenge must fail as the Sheriff’ had complied with the provisions governing the selection and summoning of jurors.5
4.3 Because jury pools in New South Wales are now selected at random by computer with no discretionary input by the Sheriff, a challenge to an array is unlikely to succeed. As an added precaution, the Jury Act, 1977 provides that the court may order some other person to summon the jury panel where the Sheriff “is a party, or in any manner interested” in a trial.6 Thus the use of a computer to compile jury rolls and to select and summon people for jury pools and panels is a safeguard against the Sheriff tampering with the randomness and representativeness of juries. In other jurisdictions there is a further safeguard in that the Sheriff can be convicted of an offence under the juries Legislation if he or she fails to comply with the statutory provisions as to selecting and summoning jurors.7
4.4 In New South Wales, the only personal influence the Sheriff could exercise is in the discretion to excuse a person from complying with a summons. As a general rule this discretion is only exercised after the Sheriff has received an application from the individual to be excused. The reasons for such applications, therefore, are beyond the control of the Sheriff. The Commission has been advised, however, that the Sheriff may initiate applications for excusal in limited circumstances, such as where Et physically handicapped person attends for jury service in a court: where accommodation is inadequate. We note, in this context, that the presiding judge has a discretion to excuse any person if he or she is of the opinion that it is necessary for the proper conduct of the trial.8 Therefore, it is perhaps proper for the Sheriff: to draw the presence of’ some otherwise qualified people to the attention of the presiding judge. For example, the Sheriff’ should advise the judge that a prospective juror appears to be deaf or drunk. Such “tampering” with the composition of jury panels is entirely proper, and a challenge to the array based upon it would be unlikely to succeed.
III. CHALLENGES FOR CAUSE
4.5 Both the accused and the Crown have an unlimited right to challenge Individual prospective jurors for cause. This challenge must be made after the person has been called to take his or her place on the jury (a process known as ballotting) but before he or she is sworn.9 The grounds for the challenge must fall into one of three categories: that the person is not qualified under the jury Act, 1977 to serve as a juror; that the person is disqualified or ineligible pursuant to Schedule 1 or 2 to the Act; or that the person is suspected of bias.10 In New South Wales the challenge is determined by the presiding judge.11 A prospective juror who is challenged for cause may be questioned on oath by the challenging party, but not before good grounds are established. The challenge must first be made, the cause stated and some evidence tendered by counsel in support of the objection before the person challenged may be examined to prove the cause to the judge.12 In New South Wales the challenge for cause is very rarely used. one reason for this is probably the large number of peremptory challenges available.13
4.6 The challenge for cause is also difficult to initiate because neither the accused nor the Crown officially receives any information about the prospective jurors other than their names. Moreover, the names are not made available until the ballotting of the panel in open court commences . Neither side may inspect the panel prior to this time.14 Thus there is no opportunity for the Crown to run checks on each prospective juror, as occurs in certain sensitive trials in the United Kingdom, to determine whether he or she is disqualified from serving by virtue of a prior criminal conviction or to discover information on the political and other allegiances of each juror.15 Thus, the challenge for cause depends on counsel (or the accused) recognising each juror as ballotted, either by appearance or by name. In country districts a practice seems to have developed whereby counsel acquire additional information about prospective jurors. Counsel may be advised by a local solicitor or, in the case of prosecuting counsel, by a local police officer, as to the reputation, life-style, attitudes and connections of each prospective juror. In this context, we consider that our proposal in paragraph 7.6 that prospective jurors should be asked to advise the judge if they feel. they (could not give objective consideration to the case would adequately meet the concern, felt mainly in country towns, that an impartial jury is difficult to achieve because many residents would knots both the accused and the victim, if any.
4.7 The challenge for cause is made quite differently in many United States jurisdictions. The selection of the jury is a lengthy process involving extensive questioning of prospective jurors by opposing counsel. The aim of this questioning is to discover information about each prospective juror which might suggest specific prejudices, and even to elicit admissions of bias. Such information is then used to submit a challenge for cause.16 If: the challenge for cause does not succeed, counsel may wish to challenge the prospective juror peremptorily. This so called “voir dire” procedure can be criticised on three main grounds. First, it is so time consuming -chat the empanellment of the jury can take longer than the case itself. Second, the procedure gives counsel an opportunity to use persuasive and argumentative rhetoric in an attempt to subtly co-opt the sympathy and support of jurors even before they are empanelled. Third, the questioning can be intrusive and an interference in prospective jurors’ privacy. For all three reasons, the Commission would not wish to see the United States procedure introduced in New South Wales.
IV. PEREMPTORY CHALLENGES
4.8 The peremptory (challenge is a challenge without cause stated. It has its origin in the concern that the accused should “have a good opinion of his jury”.17 It is a mechanism designed to ensure the existence of an impartial jury in the particular trial.
The theoretical basis that justifies the arbitrary elimination of randomly selected jurors is to obtain a jury devoid of predisposition with regard to the particular defendant and issues.18
The effect of a peremptory challenge is automatically to exclude the person who is challenged, and it is made as the jurors are ballotted. In New South Wales each side has the same number of peremptory challenges: twenty where the offence charged is murder and eight in any other case.19
4.9 Until 1977, the Crown had the additional right to ask jurors to “stand by for the Crown”. The stand by is an ancient procedure developed at a time when the Crown did not have the right to make peremptory challenges. The Crown instead was given an unlimited right to request prospective jurors, as they were ballotted, to “stand by for the Crown”. These people would not be sworn but would, in effect, go to the back of the queue. only if those remaining were insufficient to complete a jury were the people stood by ballotted again. In order to eliminate them iA second time, the Crown was required to show cause. In the United Kingdom the Crown still has this right while the peremptory challenges of the accused have been reduced to three.20
4.10 Peremptory challenges are intended to be used to eliminate extremes of partiality and prejudice. In New South Wales, peremptory challenges are usually based on the name of the prospective juror and/or his or her appearance, including sex, age, race and dress. As we have mentioned above (paragraph 11.6), in country towns counsel may have much more information. It is with respect to the peremptory challenge that the ideal of a randomly selected representative jury most clearly conflicts with the need to ensure that the jury is impartial. Critics argue that to permit counsel to challenge peremptorily is to allow the parties to influence the randomness and representativeness of juries.21 Others value the accused’s challenges for the opportunity they offer to veto at number of prospective jurors whom they fear, but could not prove, could be prejudiced against them. The peremptory challenge is the only effective tool with which the accused can eliminate suspected bias from the fact-finding tribunal. and attempt to secure a jury of his or her peers.
4.11 The Commission considers that the rules as to peremptory challenges can be improved to balance more effectively the competing aims of representativeness sand impartiality. There are a number of options for reform of the peremptory challenge. They are:
- retention of the cur-rent rule of equal rights of peremptory challenge for the Crown and the accused;
- abolition of the peremptory challenge;
- abolition of the Crown’s peremptory challenges and retention of the right of the accused; and
- reduction in the available number of peremptory challenges for both the Crown and the accused.
The following paragraphs discuss each of these options and we express a tentative preference for the final option.
A. Retention of the Existing Rights
4.12 The retention of the existing number of peremptory challenges raises two problems. First, the total number of peremptory challenges available to the Crown can be large where there are multiple accused. The New South Wales Court of Criminal Appeal field recently in Dickens that in a trial of a number of co-accused the number of Crown peremptory challenges is equal to the number permitted to one accused (that is, either eight or twenty) multiplied by the number of accused.22 The problem for the jury system is that a very large jury panel must be summoned in a trial of multiple accused to ensure that twelve will remain in the event that all concerned exercise all challenges. For example, if the forty-one people accused of murder in respect of the “Milperra massacre” are committed for trial, at the very least 1,652 prospective jurors would have to be summoned. Because of the anticipated number of applications, to be excused, a much larger number would in fact have to be summoned. The Commission has been informed that the Attorney General’s Department is considering an amendment to the Jury Act, 1977 to permit the Crown to exercise only the peremptory challenges of one party, rather than reflecting the number of accused people.
4.13 The second issue raised by the retention of all existing peremptory challenges is illustrated by a case in Bourke in 1981. The accused was Aboriginal and the Crown prosecutor challenged each Aborigine ballotted for the jury with the result that an all.-white jury was empanelled. The presiding judge then discharged the jury saying that justice must not only be done, but must also be seen to be done.23 In the trial of Georgia Hill, who was accused of murdering her husband, the prosecutor systematically challenged all nineteen women who were called from the panel. The resulting jury was composed predominantly of males.24 In such a use of the peremptory challenge by the Crown appears to be an abuse of the challenge and its purpose.
4.14 In California a restriction has been placed on the use of the peremptory challenge so as to effectively prohibit the challenge affecting the representativeness of juries In Wheeler the Californian Supreme Court held that the United States Constitution guarantees each accused a jury drawn from a cross-section of the community. This guarantee is violated when the peremptory challenge is used to systematically exclude certain groups from the jury. Therefore, the prosecution at least is not now permitted to challenge on the presumption of group bias. Group bias was defined as partiality arising from membership in “an identifiable group distinguished on racial, religious, ethnic or other similar grounds.”25 One commentator has suggested that this prohibition achieves the proper balance between the prosecution’s desire to exclude biased jurors and the requirement of a representative jury.26 However, such a restriction on the prosecution’s peremptory challenges virtually means that the prosecutor must have a cause which would be at least arguable if the challenge was for cause, but need not state the cause unless and until there is an objection to the use of the peremptory challenge.
4.15 This interpretation of the right of peremptory challenge has also been adopted in New York and three other states,27 but it has been strongly disapproved in the United Kingdom. The English Court of Appeal in bias on held that prosecution counsel have a right to request that a member of the jury panel shall stand by, and that right can be exercised without there being a provable valid objection, until such time as the panel is exhausted.28
...For centuries the law has provided by enactment who are qualified to serve as jurors, and has left the judges and the parties to criminal cases to decide which members of a “jury panel were suitable to serve on a jury to try a particular case. To this extent the random selection of jurors has always been subject to qualification. Defendants have long had rights to peremptory challenges and to challenges for cause; prosecuting counsel for centuries have had the right to ask that a member of the panel should stand by for the Crown and to show cause why someone should not serve on a jury; and trial judges, as an aspect of their duty to see that there is a fair trial, have had a right to intervene to ensure that a competent jury is empanelled. The most common form of judicial intervention is when a judge notices that a member of the panel is infirm or has difficulty in reading or hearing; and nowadays jurors for whom taking part in a long trial would be unusually burdensome are often excluded from the jury by the judge.
In our judgment, the practice of the past is founded on common sense. A juror may be qualified to sit on juries generally but may not be suitable to try a particular case ...29
B. Abolition of the Peremptory Challenge
4.16 It is difficult to make at case for denying altogether the accused’s right to make peremptory challenges. When a jury is summoned it is in accordance with statutory qualifications and procedures by officers of the Crown to try the accused on a serious charge. The denial of any input by the accused to the composition of the jury when the State has, in a broad sense, determined who will be called, would further prejudice the accused’s position, Further, if neither party could make peremptory (challenges, the challenge for cause would come to the fore. The determination of challenges for cause is time-consuming and involves questioning the challenged juror about private matters which could be distressing. For these reasons the peremptory challenge might be retained as a more efficient and fair device than the challenge for cause.
C. Abolition of the Crown’s Peremptory Challenges
4.17 The Crown’ s right to make peremptory challenges has very recently been abolished in South Australia.30 It could be argued that the prosecution should be satisfied with each jury panel as constituted under legislative procedures and, if dissatisfied, should assign at cause for each challenge. The use of the peremptory challenge by the Crown to influence the composition of the jury so that it will be more favourable to the Crown is a tactic which places Crown counsel into the ring of battle when arguably the Crown should be seen to be objective and above the fray. This attitude could well explain the traditional denial of the peremptory challenge to the Crown and resort to the stand by procedure (paragraph 4.9). There are occasions, However, when the availability of the Crown’s right of peremptory challenge would benefit interests other than that of the Crown. If, for example, the Crown was aware of something in the background of a prospective juror making him or her unsuitable to try the particular. case, an could occur, as mentioned above, in country courts, challenging the person peremptorily might be more humane than airing the matter in open court for the purpose of a challenge for cause.
4.18 One possible consequence of the abolition of the Crown’s right to make peremptory challenges is that the Crown could seek to gain more information with which to make challenges for cause more effectively. In the United Kingdom, the practice of supplying to the prosecution the list of jurors summoned has been approved in order to combat possible has against the Crown in very sensitive cases.31 In terrorist cases and cases involving national security where it is likely that part of the evidence will be heard in camera, checks are run on criminal records as well as on Special Branch files which will show up political affiliations.32 This procedure is known as “jury vetting”. The prosecution is concerned to identify people who,
.....either voluntarily or under pressure, may make an improper use of evidence which, because of its sensitivity, has been given in camera [or whose] political beliefs are so biased as to go beyond normally reflecting the broad spectrum of views and interests in the community to reflect the extreme views of sectarian interest or pressure group to a degree which might interfere with [their] fair assessment of the facts of the case or lead [them] to exert improper pressure on [their] fellow jurors.33
Armed with this information, the prosecution in the United Kingdom can stand by jurors whom it considers “undesirable”. Information revealed by vetting which suggests that a prospective juror might be biased against an accused is required to he made available to the defence.34
4.19 Jury vetting in a far wider range of cases apparently takes place in New Zealand,35 and the police have the opportunity to vet jury panels in Victoria and the Australian Capital Territory where the Police Commissioner receives the list of’ names in advance of the trial to check whether anyone has a criminal record.36 In Victoria it has been alleged that the police abuse their role and provide “information about potential jurors trivial brushes with the police’’ to prosecuting counsel who could assume that those people held anti-police views and request them to stand by.37 This measure is unnecessary in New South Wales where the Jury Act, 1977 requires people who are disqualified by virtue of a criminal record to so notify the Sheriff. We consider that vetting of jurors is antithetical to the ideal of random selection. As we have noted above, the Jury Act, 1977 in fact prohibits inspection of the panel.38 The Commission proposes that to further guard against pre-trial disclosure of the panel to the prosecution or the defence, the Jury Act, 1977 should provide that the Sheriff is prohibited from permitting any inspection of the panel before a trial.
D. Reduction of Peremptory Challenges
4.20 It could well be argued that the existing number of peremptory challenges available to both sides is too high, allowing counsel too much influence over the representativeness of juries.39 With eight peremptory challenges for each side (twenty where the charge is murder), New South Wales has the highest number of any common law jurisdiction. In Tasmania and the Northern Territory the accused has six peremptory challenges, and in the Territory an accused charged with a capital offence has twelve. In South Australia and the United Kingdom the peremptory challenges of the accused have been reduced to three.40 This reduction caused a public outcry in the United Kingdom.
Though he will not personally know his jurors nowadays, his right of peremptory challenge must still be regarded as important. Those jurors will make a decision which could result in his being imprisoned for many years. Because of that it would seem fair to allow him to take a subjective view and say ‘I do not want to be tried by that person; he looks hostile’.41
It should be remembered, however, that this comment was made in the context of a reduction of the accused’s peremptory challenges from seven to three while the Crown retained an unlimited right to stand jurors by. In the representativeness, of jury panels is enhanced by the adoption of our proposals in Chapter 3, we consider that three or four peremptory challenges represent at more appropriate balance between the interests of the parties in eliminating those who may be hostile and the interests of the community in juries being representative and randomly selected.
4.21 Real bias on the jury panel is best eliminated, we consider, not by the use of challenges based essentially on stereotypes and guesswork, but by a clear direction from the presiding judge that people unable to give an impartial judgment should not serve on the jury. We propose, in Chapter 7, that before selection of the jury commences, the panel should be advised about the nature of the case and the identity of the accused and likely witnesses. The judge should invite prospective jurors who feel they could not be objective to notify him or her with a view to being excused. This procedure could relieve counsel of the need to challenge at least some of the panel who appear to be hostile.
4.22 Responsible use of the peremptory challenge could be enhanced by increasing counsel’s knowledge about prospective jurors. For example, as each person is ballotted his or her address and occupation could be read out in addition to his or her name.42 A major difficulty. with this suggestion is that if more information about jurors is made public, the risk that they will be traced and intimidated or bribed is increased. Former jurors in Victoria have suggested that in future addresses and occupations should not be read in court, stating that they were made to feel insecure as a result of this practice.43 Counsel may be satisfied if surnames only and suburbs only were to be available, together with occupation. The risk that jurors could be traced would be minimised if, as at present, only the names are called in court, and counsel provided, on the day of the trial, with the other information in written form. A duty could be imposed on counsel not to use this information for purposes other than making challenges. As the defence challenge is the right of the accused, questions also arise as to the circumstances, if any, in which an accused could properly be denied access to such a list. One possibility is that counsel should have a right to inspect the list. An unrepresented accused could be offered representation only for the empanelling procedure. If this offer were refused, the denial of access to the list may not be seen as a denial of a right of the accused.
V. THE JUROR’S OATH
4.23 A person ballotted as a juror who is not then sworn. He or she promises to:
...well and truly try and true deliverance make between our Sovereign Lady the Queen and the accused whom you shall have in charge, and a true verdict give according to the evidence.44
In New South Wales the juror does not say these words but responds when they are read by saying either “So help me God” or “I do”, according to whether he or she is making an oath or an affirmation. Nevertheless, it may be time to modernise the text as has recently been done elsewhere. Jurors in the United Kingdom now say:
I swear by Almighty God that I will faithfully try the defendant and give a true verdict according to the evidence.45
A similar simplified oath is now used in Western Australia.46 The Commission invites submissions as to whether the New South Wales oath needs reform and whether jurors should be required to repeat the text of the oath or affirmation to ensure that its import is properly understood.
VI. TENTATIVE PROPOSALS
4.24 The Commission is of the view that the existing rules with respect to challenges to the array and for cause should be retained without alteration but that the current rules as to peremptory (challenges permit counsel too much influence over the composition of juries, thus adversely affecting their representativeness. The availability of a large number of peremptory challenges also conflicts with the aim of random selection of juries. The Commission proposes that the number of peremptory challenges in all cases, including murder, should be reduced to three or four. Each accused should be entitled to this number of peremptory challenges while the Crown should have a total of three or four challenges only irrespective of the number of co-accused (paragraph 4.20). The Commission also considers that pre-trial vetting of the jury panel, by either party or by both, would be antithetical to random selection of juries representing a cross-section of the community. We propose that the Jury Act, 1977 should provide that the Sheriff is prohibited from permitting any inspection of the jury panel before a trial (paragraph 4.19). We would also welcome submissions on the questions whether counsel should be provided with further information about prospective jurors to assist the making of challenges and, if so, on what conditions, and whether the full name or the surname only of each prospective juror should be read In court (paragraph 4.22). Finally, we have raised the question whether the juror’s oath should be simplified (paragraph 4.23).
FOOTNOTES.
1. Jury Act, 1977, s.41.
2. Halsbury’s Laws of England (4th ed., 1979) Vol.26, para.621; McMahon v. Sydney City Council [1963] S.R. (N.S.W.) 507; R. v. Thomas [1958] V.R. 97.
3. Halsbury’s Laws of England (4th ed., 1979), Vol.26, para.621.
4. Private communication, Mr. G.F. Hanson, the then Sheriff of NSW, 12 March 1985.
5. [1972] V.R. 423, at p.425.
6. Jury Act, 1977, s.25.
7. Cf. Jury Act 1929 (Qld) s.48 (iii) Juries Act 1921 (S.A.), s.80(j); Juries Act 1957 (W.A), ss.53, S4(e.); Jury Act 1899 (Tas) s.66; Juries Act c.226 (Ontario), s.42(1)(c).
8. R. v. Cullen [1951] V.L.R. 335; Duffus v . Collins (1966) 83 W.N. (Pt. 1) (N.S.W.) 399, at p.402, per McClemens J.
9. Jury Act, 1977, ss.45,46.
10. Halsbury’s Laws of England, (4th ed., 1979), Vol.26, para.627.
11 Jury Act, 1977, s.46. Of the Australian jurisdictions, only Queensland retains the traditional method of determining a challenge for cause: trial by the jurors already empanelled or by two indifferent people chosen by the court from the panel: Jury Act 1929 (Qld.), s.38 and Criminal Code Act 1899 (Qld.), s.612.
12. R. v. Chandler [1964] 2 Q.B. 322; McMahon v Sydney City Council [1963] S.R. (N.S,W.) 507.
13. P. R. Weems , “A Comparison of Jury Selection Procedures for- Criminal Trials in New South Wales and California”, (1984) 10(2) Sydney Law Review 330, at p.341.
14. Jury Act, 1977, ss.40(1), 48(2)(b). Cf the situation in Victoria where it is provided that a copy -of each panel from which a criminal jury is to be struck is to be forwarded to the Chief Commissioner of Police not later than twelve days before the trial. The police are responsible for making inquiries as to whether any person named is disqualified from serving by virtue of a prior conviction: Juries Act 1967 (Vic.), s.21(3).
15. “Attorney General’s Guidelines on Jury Checks” [1980] 3 All E.R. 785.
16. B.M. Mogil, “Voir Dire and Jury Psychology” (1979) New York State Bar Journal 382.
17. H. Broom, Commentaries on the Laws of England (Maxwell, Sweet and Stevens, 1869), Vol.iv., at p.442.
18. P.N. Silverman, ‘’Survey of the Law of Peremptory Challenges: Uncertainty in the Criminal Law” (1983) 44 University of Pittsburgh Law Review 673, at p.675.
19. Jury Act, 1977, ss.42, 43(1).
20. Juries Act 1974 (U.K.), s.12(1)(a). Three States of Australia have retained the stand by for the Crown: in Tasmania it is retained intact compared to the accused’s right to six peremptory challenges: Jury Act 1899 (Tas.), ss.54, 55. In Western Australia the stand by is limited to four in addition to the Crown’s right to eight peremptories: Juries Act 1957 (WA), s,38. The stand by is limited to six in the Northern Territory and is in addition to peremptory challenges: Juries Act 1962 (N.T.), ss.43, 44.
21. C. Kitchen, “Trial Juries Stacked - Liberals”, The Sun 15 February 1985; B. Birnbauer, “Liberals to Review jury Selection”, The Age, 15 February 1985.
22. [1983] 1 NSWLR. 403.
23 J.A. Scutt, “Trial by a jury of one’s peers?” (1982) 56 Australian Law Journal 209.
24. J. Basten, “Jury Vetting - A Privilege of the Prosecution” (1981) 6 Legal Service Bulletin 154, at p.155.
25. People v Wheeler 583 P.2d 748 (1978), at pp.761-762 citing Taylor v. Louisiana 419 U.S. 522 (1975)
26. J. Marks, ‘’Recent Cases’’ (1979) 48 University of Cincinatti Law Review 599, at p.607.
27. Massachusetts, New Mexico and Florida.
28. R. v. Mason [1980] 3 All E.R. 777.
29. Id., per Lawton L.J., at p.781.
30. Juries; (Amendment) Act 1984 (S.A.), s.30 repealing s.62 of the principal Act.
31. R. v. Mason [1980] 3 All E.R. 777.
32 “Attorney General’, Guidelines on Jury Checks” [1980] 3 All E.R. 785, at pp.785-787.
33. Id., at p.785.
34. Id., at p.788.
35. Juries Act 1981 (N.Z.), s.14; D.A. Yallop, Beyond Reasonable Doubt (Hodder and Stoughton, 1978), at p.219.
36. Juries Act 1967 (Vic), s.21(3); Juries Ordinance 1967 (ACT), s.24(3), (4).
37. S. Voumard, “Anti-police jurors precluded: lawyer”, 13 May 1985 The Age.
38. Jury Act, 1977, s.40(1).
39. This argument was advanced in the mid-1970’s by the United States Supreme Court recommending that peremptory challenges should be reduced to five. The proposal was rejected by Congress: P.N. Silverman, “Survey of the Law of Peremptory Challenges: Uncertainty in The Criminal Law” (1983) 44 University of Pittsburgh Law Review 673, at pp.702-703.
40. Jury Act 1899 (Tas.), s.54; Juries Act 1962 (N.T.), s.44(1); Juries Act 1927 (S.A.), s.61; Criminal Law Act 1977 (U.K.), s.43.
41. H. Harman and J. Griffith, Justice Deserted: The Subversion of the Jury (National Council of Civil Liberties Pamphlet, 1979), at pp.19-20.
42. As in Victoria, Juries Act 1967 (Vic.), s.33.
43. Letters to the Victorian Police Commissioner, Mr. Mick Miller, courtesy Mr. Miller and the Law Reform Commission of Victoria.
44. Supreme Court of New South Wales, Manual for the Guidance of Associates, at p.23.
45. Practice Direction (1984) New Law Journal 942.
46. The West Australian, 29 May 1985.
