CHAPTER 3: TENTATIVE PROPOSALS

1. All electoral subdivisions should be allocated to jury districts pursuant to section 9(2) of the Jury Act, 1977: paragraph 3.18.

2. The only ground for exemption as of right should be hardship to the applicant or to others. Schedule 3 to the Jury Act, 1977 should accordingly be repealed: paragraph 3.22.

3. Commonwealth Public Servants, Divisions 3 and 4, should be available to perform jury duty in New South Wales courts. Clause 16 of Schedule 2 to the Jury Act, 1977 should be repealed: paragraph 3.30.

ISSUES RAISED

• Whether spouses of people in ineligible occupations, or some of them, should be liable to perform jury service. Currently the spouses of Judges, Masters, Members and officers of the Parliament, Magistrates, police officers, Crown Prosecutors, Public Defenders and prison officers are ineligible for jury service: paragraph 3.20.
• Whether people given non-custodial sentences should be disqualified from jury service. Currently a person who has been:

  (a) convicted of an offence which may be punishable by imprisonment;

  (b) bound by recognizance to be of good behaviour or to keep the peace;

  (c) the subject of a probation order; or

  (d) disqualified from holding a licence to drive for a period in excess of six months,

  is disqualified for five years: paragraph 3.21.

• Whether people aged between 65 and 70 should be required to perform jury service. Currently people of or above the age of 65 may claim an exemption as of right: paragraph 3.25.
• Whether people of or above the age of 70 should be ineligible for jury service. Currently such people are qualified but may claim an exemption as of' right: paragraph 3.25.
• Whether measures should be taken to encourage people with the responsibility for caring for young children to make themselves available for jury service . Currently people having the care, custody and control of children aged under 18 may claim an exemption as of right: paragraph 3.26.
• Whether mobility-impaired people should be considered to be ineligible for jury service by reason of illness or infirmity . Currently such people are deleted from the jury roll on this ground if they so request: paragraph 3.28.
• Whether the ability to read English should be a necessary qualification for a juror, Currently those unable to read English are ineligible for jury service: paragraph 3.29.

CHAPTER 4: TENTATIVE PROPOSALS

1. It should be an offence for the Sheriff to permit inspection of the jury panel before the first day of the trial: paragraph 4.19.

2. The number of peremptory challenges in all cases, including murder, should be reduced to three or four for each accused and a total of three or four for the Crown irrespective of the number of co-accused: paragraph 4.20.

ISSUES RAISED

• Whether counsel should be provided with further information about prospective jurors to assist the making of challenges, and, if so, on what conditions: paragraph 4.22.
• Whether the full name or the surname only of each prospective juror should be read in court: paragraph 4.22.
• Whether, the juror's oath should be simplified and the text of the oath read aloud by each juror: paragraph 4.23.

CHAPTER 5: TENTATIVE PROPOSALS

1. The Notification of Inclusion on a Draft Jury Roll should:

(a) include an explanation in major languages other than English as to the import of the Notification;

(b) advise that people unable to read or understand English are ineligible for jury service;

(c) include a brief explanation of the nature of jury service;

(d) advise recipients that a penalty can be imposed for failure to respond as and where appropriate; and

(e) advise recipients that the Sheriff has a discretion to excuse people from jury service for good cause: paragraphs 5.7-5.8.

2. The Jury Summons should:

(a) advise recipients that applications to be excused may be made to the Sheriff;

(b) advise recipients that application to be excused may be made in person to the presiding judge on the day on which attendance is required: paragraph 5.9.

3. A n Explanatory , Booklet should be prepared and distributed to every person summoned for jury service. This Booklet should discuss the nature of a juror's responsibilities, the jury's role, the conduct of trials and explain common concepts which will be used: paragraph 5.10.

4. The Jury Act, 1977 should, for the sake of certainty, be amended to provide that jurors have a right to be provided with reasonable refreshment and standard amenities during adjournments of a trial: paragraph 5.14.

5. The presiding judge should advise the jury panel. as to the estimated length of the trial and should excuse those who apply to be excused because they would be likely to be adversely affected if required for that period: paragraph 5.16.

6. Jury fees should be raised to the level of male average weekly earnings. Jurors who continue to receive a wage or salary while performing jury duty should not be entitled to claim the jury fee: paragraph 5.22.

7. Jurors should be entitled to claim compensation for personal injury sustained during a period of jury service in the same way and on the same basis as claims can be made under the Workers' Compensation Act, 1926: paragraph 5.25.

ISSUES RAISED

• Whether a videotaped film explaining the jury's role, court procedures and common concepts used in criminal trials should be shown to prospective jurors before any jury is empanelled: paragraph 5.11.
• Whether the jury should be permitted to separate after it has been charged to consider its verdict: paragraph 5.17.
• Whether travelling expenses should be paid to jurors and, if so, what form they should take: paragraph 5.25.
• Whether publication of jurors 1 identities should be permitted and, if so, in what circumstances: paragraph 5.29.

CHAPTER 6: TENTATIVE PROPOSALS

1. Procedures should be formulated to ensure that the trial judge addresses jurors at the commencement of the trial on the following topics:

• the course the trial will take;
• the role of the jury; and
• the law on matters such as the standard and burden of proof and the presumption of innocence: paragraph 6.3.

2. Each juror, at the discretion of the trial judge, should be provided with a file containing the following documents:

• a copy of the indictment: paragraph 6.4;
• a copy of the documentary exhibits: paragraph 6.11; and
• a document setting out the alternative verdicts available to the jury: paragraph 6.31.

ISSUES RAISED

• Whether the jury, at the commencement of the trial, should be provided with a written statement of the facts to be proved by the Crown or of the elements of the offence(s) charged: paragraph 6.5.
• Whether defence counsel should be permitted to open to the jury at the end of the. Crown opening: paragraph 6.7.
• Whether the jury should be provided with a glossary of legal terms: paragraph 6.8.
• Whether counsel should be permitted briefly to introduce each witness by referring to t h. e-element(s) of the offence to which his or her evidence relates: paragraph 6.9.
• Whether jurors should, as a matter of course, be provided with notebooks and pens and told of their right to take notes: paragraph 6.16.
• Whether detailed instructions on the relevant law should be given at the commencement of the trial: paragraph 6.20.
• Whether judges should be required to use standard forms to instruct juries on relevant law where such forms are available: paragraph 6.30.
• Whether directions of law should be provided to the jury in writing: paragraph 6.30.

CHAPTER 7: TENTATIVE PROPOSALS

1. Judges should request Crown counsel to outline for the jury panel the nature of the case and the identity of the accused and likely witnesses. The judge should then request people who feel they would be unable to give impartial consideration to the case to come forward: paragraph 7.6.

2. The court officer responsible for the jury should be required to take an oath when being put in charge of the jury, undertaking to shield the jury from outside influences: paragraph 7.9.

3. Pre-trial hearings should be used, where possible, to resolve disputes as to the admissibility of evidence, both to avoid interrupting the trial with voir dires for this purpose and to reduce the risk that the jury will hear inadmissible evidence: paragraph 7.15.

4. Where there has been substantial pre-trial publicity, the judge should invite people who feel they have been prejudiced by this to apply to be excused: paragraph 7.16.

ISSUES RAISED

• Whether additional measures should be taken to ensure that corrupted jurors do not serve on juries: paragraph 7.8.
• Whether trial judges should, at their discretion, allow a trial which has been affected by the publication of prejudicial material to continue to its conclusion (instead of discharging the jury) on the understanding that a verdict of guilty would be quashed because of the irregularity: paragraph 7.9.
• Whether judges should be empowered to order that members of the social or peer groups of the accused should be included on the jury: paragraph 7.12.
• Whether the judge's instruction limiting the use to which prejudicial information can be put is a sufficient guarantee that the jury will not be prejudiced: paragraph 7.15.
• Whether the contempt laws in relation to the publication of material likely to prejudice a jury are adequate and appropriate: paragraphs 7.21-7.22.
• Whether,, in cases where pre-trial publicity has been extremely prejudicial, the accused should be entitled to apply for trial by a judge sitting without a jury: paragraph 7.23.

CHAPTER 8: TENTATIVE PROPOSALS

1. It should be a universal practice for the jury to be advised of its right both to ask questions of the judge and to have any part of the evidence read from the transcript: paragraph 8.5.

2. The minimum deliberation period before a jury can be discharged without verdict should be reduced from six hours: paragraph 8.17.

ISSUES RAISED

• Whether juries should ever be denied access to certain exhibits and, if so, on what grounds: paragraph 8.3.
• Whether multiple copies of documentary exhibits should be provided to the jury: paragraph 8.3.
• Whether the jury should be provided with a transcript of all or part of the evidence either as a matter of course, at its request, or at the discretion of the presiding judge: paragraph 8.4.
• Whether jurors should be prohibited by statute from disclosing their deliberations: paragraph 8.12.
• Whether the publication of disclosures by jurors about their deliberations should be an offence: paragraph 8.13.
• Whether the evidence of jurors about the jury's deliberations should be admisible in subsequent legal proceedings and, if so, in what circumstances: paragraph 8.14.
• Whether any change to the current practice whereby the jury is advised to elect a foreman as early as possible is necessary: paragraph 8.15.

CHAPTER 9: TENTATIVE PROPOSALS

1. Each member of a jury in a criminal trial should be polled to ensure that the verdict is unanimous: paragraph 9.4.

2. Where alternative factual bases for a conviction are left to the jury, the judge should direct the jury to consider on which ground its verdict is based. When the verdict is rendered in such a way that the ground accepted is not clear, the judge should first ask the foreman whether the jury reached a unanimous view as to which ground it accepted. only if the jury's view is unanimous should the judge ask which ground was accepted. The jury's answer should be binding on the judge when sentencing: paragraph 9.17.

3. Where both the first jury and the second jury have failed to reach agreement after being asked to deliberate upon a verdict, statute should provide that there will not be a third trial: paragraph 9.22.

ISSUES RAISED

• Whether the jury should continue to have the prerogative to recommend mercy and, if so, whether it should be told of this in the summing-up: paragraph 9.5.
• Whether the rule requiring a jury's verdict to be unanimous should be retained: paragraph 9.10.
• Whether the judge in a criminal trial should have a discretion to request the jury to return a special verdict and, if so, in what circumstances: paragraph 9.14.
• Whether juries should be discharged immediately they have delivered their verdicts or whether the matter should remain at the discretion of the presiding judge: paragraph 9.23.

CHAPTER 10: TENTATIVE PROPOSALS

1. Trial by a jury of twelve citizens randomly selected from the general community should be retained for all. serious criminal cases: paragraph 10.15.

2. The evidence of technical and scientific witnesses should, if the presiding judge considers it would assist the jury, be capable of being given by:

(a) reading a document; and/or

(b) tendering the document, provided that the witness is available to give oral evidence if required.

The question whether either procedure should be adopted should be settled at a pre-trial hearing: paragraph 10.17.

3. The power of the presiding judge, in his or her discretion, to instruct the jury as to individual charges and individual accused and to require the jury to deliberate separately on each should be affirmed: paragraph 10.18.

4. The power of the presiding judge, in his or her discretion, to provide to the jury a written statement setting out the alternative verdicts available should be affirmed: paragraph 10.18.

5. When a trial is expected to be lengthy, the summons to the jury panel should include a notice to this effect inviting potential jurors to apply to the Sheriff for excusal where necessary: paragraph 10.19.

6. The additional juror procedure should be introduced in New South Wales by an amendment to the Jury Act, 1977. At the end of the evidence, if the remaining jurors exceed twelve, twelve only should be ballotted to form the deliberating jury: paragraph 10.23.

ISSUE RAISED

• Whether the minimum allowable size of a jury should be less than ten at the judge's discretion and irrespective of the consent of the Crown and the accused: paragraph 10.21.