I. INTRODUCTION

A. Terms of Reference

On 17 January 1982, the Attorney General of New South Wales, the Hon. F.J. Walker, Q. C. , M. P. , made the following reference to the Commission:

“To inquire into and review the law and practice relating to criminal procedure, the conduct of criminal proceedings and matters incidental thereto; and in particular, without affecting the generality of the foregoing to consider -

(a) the means of instituting criminal proceedings;

(b) the role and conduct of committal proceedings;

(c) pre-trial procedures in criminal proceedings;

(d) trial procedures in matters dealt with summarily or on indictment;

(e) practices and procedures relating to juries in criminal proceedings;

(f) procedures followed in the sentencing of convicted persons;

(g) appeals in criminal proceedings;

(h) the classification of criminal offences;

(i) the desirability and feasibility of codifying the law relating to criminal procedure.”

B. History of the Reference

In December 1982 the Commission published an Issues Paper which was principally concerned with proceedings in Courts of Petty Sessions (now renamed Local Courts). Work on the reference was then deferred because of staff changes and the concentration of the Commission’s resources on its major reference on Accident Compensation. Work was resumed in the second half of 1984 when Mr. Paul Byrne was appointed as Commissioner in charge of this reference. In October 1984 the Criminal Procedure Division of the Commission decided to commence intensive research on the subject of juries with a view to producing a Discussion Paper for community consultation. Ms. Meredith Wilkie, then a Legal Officer at the Commission and currently Acting Senior legal Officer has been primarily responsible for this research and for writing this Discussion Paper.

B. Program for the Reference

As can be seen the terms of reference are very wide. They cover all criminal proceedings in all State Courts. The Commission has planned a program of research by dividing the reference into the following areas:

• the classification of criminal offences;
• procedure before trial;
• trial procedure;
• the jury in criminal trials;
• penalties and sentencing;
• appeal procedure;
• criminal investigation; and
• the organisation of prosecuting authorities.

For each topic, the Commission intends to publish a working paper describing current law and practice which puts forward, where appropriate, tentative proposals for change. These papers will be distributed widely to interested and groups and individuals for consideration and comment. Following this public consultation, the Commission will report to the Government. In these reports the Commission will make recommendations for reform.

As a background, or perhaps more accurately, as a foundation, to its work on criminal procedure, the Commission has been engaged in an examination and analysis of the fundamental principles of criminal justice. The tangible result of this project will be found in a statement of the principles and standards which have been applied to each phase of the Commission’s work. So far as juries are concerned, this statement can be found at page 7 of this Discussion Paper. Whilst it is desirable that there be consistency among the various branches of criminal procedure, differences in emphasis can be anticipated, depending on the specific area which is under consideration.

C. The Commission’s Objectives

The criminal law and the manner in which it is enforced have a significant impact on the quality of life enjoyed by the individual citizens of any community of people. It has been said that the administration of criminal justice is the most important function of government in a civilised community.

There is no accepted test of civilisation. It is not wealth or the degree of comfort or the average duration of life or the increase of knowledge. All such tests would be disputed. In default of any other measure, may it not be suggested that as good a measure as any is the degree to which, justice is carried out, the degree to which men, are sensitive as to wrong doing and desirous to right it.¹

In order to be effective the criminal justice system must not only reflect community standards of fairness and justice, it must also enjoy the confidence of the public. In order to do that it should be capable of surviving public scrutiny. ‘The Commission regards this project as one of the most important it has undertaken. Every person is a potential participant in the criminal justice system either as an accused person, a victim, a witness or a juror. While the ‘quality of life’ of every citizen in New South Wales is affected by the criminal justice system, it is as important to recognise that the standing of this community within the international community of nations is, at least in the eyes of some observers, directly related to the standard to which it aspires in the administration of justice.

II. THE JURY IN A CRIMINAL TRIAL

A. Introduction

The terms of reference specifically refer to “practices and procedures relating to juries in criminal proceedings”. In recent times attention has been focused on the operation of the jury system in Australia, particularly in Victoria and South Australia, with de bate centering on the relevance of the jury to modern conditions. In June 1984 Victoria’s Chief Police Commissioner, Mr. Mick Miller, called for the abolition of juries. He claimed that jurors were ill-equipped to decide complicated matters of fact.² Victoria’s Attorney-General, Mr. Jim Kennan, countered by describing the jury system as “basic to the notion of democracy”.³ At about the same time a similar debate was conducted in the South Australian media after, a bill to amend the Juries Act, 1927 was introduced into Parliament. That amendment, which was passed in October 1984, abolished civil juries and made jury trial in criminal cases optional at the instance of the accused person.⁴ Again the police argued publicly that criminal juries should be abolished,⁵ while others, including the South Australian Law Society, condemned the amendments.⁶

The well publicised trial of Michael and Lindy Chamberlain and the South Australian Royal Commission of Inquiry into the conviction of Edward Splatt have also focused attention on the competence of criminal juries. In these two cases the primary issue in question was the ability of juries to assess complex forensic evidence. There has also been some interest in the subject in New South Wales. Published letters to the editor of the Sydney Morning Herald have called for an overhaul of the State’s jury system, for inquiry and reform.⁷ The Commission has responded to this interest in the jury system both by producing this Discussion Paper for the purpose of community consultation and by undertaking a comprehensive programme of empirical research which is described in the Appendix. The concluding stage of our preliminary research has coincided with the aftermath of the trial of Mr. Justice Murphy. This has increased the interest of the media (and probably the community) in the jury system to unprecedented levels and given stark prominence to this aspect of the administration of criminal justice.

B. Scope of this Discussion Paper

This Discussion Paper is concerned both with the administration of the jury system outside the court room and with the use of the jury in criminal trials. The topics covered are:

• the selection of jurors;
• shielding jurors from prejudice;
• presenting evidence to jurors;
• communication with jurors;
• jury deliberation;
• the jury’s verdict; and
• the special problems of long and complex trials.

An attempt has been made to describe the law and procedure relevant to the jury system as well as to identify problem areas. Where possible, the Commission has made tentative proposals for reform. Elsewhere a variety of issues are canvassed. Any tentative conclusions reached do not, by any means, preclude discussion. On the contrary, where the Commission does express a preference for specific reforms, we do so with the intention of provoking debate and encouraging submissions.

Fundamental Principles Related to the Jury System

In the course of examining the law and practice relevant to the questions which the Commission is addressing in this aspect of the Criminal Procedure reference, and in considering the various proposals for change that have been suggested in the course of this inquiry, we have recognised certain principles which we as fundamental. They are at once the foundation upon which our work on this subject is based and the signposts which guide the direction of any movement for change. These principles have played an important role in our assessment of the current law and practice and in the formulation of our tentative proposals for reform. We intend to state them in detail. They are not in any particular order of priority.

1. The Desirability of Community Participation

The public interest in the orderly administration of justice is clear. Community participation is one means of ensuring that accountability is preserved as a real and practical feature of the system of criminal justice. if community participation is desirable, then it should be encouraged. Where it is seen to impose a burden, then that burden should be evenly distributed by being shared equally among the members of the community.

2. Fairness and Justice

The overriding feature of any system of criminal justice should be that it is fair. In achieving this goal, the principle that justice should not only be done but be seen to be done is important. The appearance of justice is part of the substance of justice. In particular, it is necessary that there be an emphasis on the protection of the disadvantaged. People whose knowledge of the criminal justice system is limited and those whose ability to participate is restricted should not be prevented from receiving the benefits of a system which is supposed to distribute its benefits equally and consistently.

3. Efficiency

The need for efficiency in the administration of criminal justice may be measured primarily by reference to the standard and quality of justice and secondly by reference to the cost and the duration of criminal proceedings. The efficient use of available resources involves those resources being applied to achieving a fair result in acceptable manner for the least possible cost and in the shortest possible time. Duplication and waste of resources, incorrect decisions and unsatisfactory methods of procedure are indicators of inefficiency.

4. Consistency with Flexibility

Since the objective of certainty in the definition of the criminal law, which we regard as important, implies that like cases will be treated alike, there is a consequent need For consistency in the approach to and the disposition of cases of a similar kind. While this objective should be pursued to obtain uniform results, at the same time the need for flexibility to cope with the variations between cases should be recognised.

5. The Right to Trial by a Competent Court

This right cannot be effectively achieved without ensuring that the tribunal called upon to make decisions in a criminal case makes those decisions in an informed way. This necessarily requires an understanding of all. the issues which the case raises. In particular, the competence of the tribunal of fact should be pursued as a desirable practical goal.

6. The Elimination of Misleading Practices

The rules of criminal evidence and procedure should be designed primarily to facilitate a fair trial. They should embody practices which are open and realistic and take account of current standards of knowledge within the community.

7. Minimising the Risk of Convicting the Innocent

The rules of criminal procedure should be formulated so as to minimise the risk that people who are in fact innocent are wrongly convicted. We recognise that the pursuit of this objective may result in the development of rules which enable people who are actually guilty to avoid conviction. We consider the ancient homily that it is better to let several guilty persons go free than to convict one innocent person to be an undoubtedly proper statement of principle.

8. The Grounds on which the Law should be Changed

The law and practice of the conduct of criminal proceedings should not be altered unless there is a clearly demonstrated need for reform. Accordingly those who propose reforms carry the burden of showing the need for them and the utility and desirability of the new laws or practices which they propose. We should not recommend change merely for the sake of change.

9. The Publicity of Criminal Justice

The recognition of the need for the courts to be open to public scrutiny implies that the community has a right to access to, and information about, court proceedings. There are circumstances in which otherwise legitimate publicity will prejudice the conduct of a fair trial. Where this occurs there is a conflict between the objectives of conducting a fair trial and maintaining the public’s access to the criminal courts . There is, accordingly, in those circumstances a need to balance these interests.

FOOTNOTES

1 Sir John MacDonnel, Historical Trials (Oxford University Press, London, 1927), at p.148.

2., The Age 2 June 1984.

3. Ibid.

4. Juries (Amendment) Act 1984 (SA).

5. Sunday Mail 6 May 1984.

6. Ibid.

7. Sydney Morning Herald 6 October 1984, at p.14 (P. Stevens); 19 October 1984 (F.L. Poulier, W.R. Carney); 19 November 1984, at p.10 (H. Edwards).