I. INTRODUCTION

2.1 In the Jury Act, 1977, New South Wales has a code regulating the selection of jurors in both civil and criminal cases. Jury legislation has a long history which we describe in paragraphs 2.2-2.7. In relation to the composition of juries, this historical development has been directed towards widening the classes of people liable to serve on juries with the object of making juries more representative of the whole community. However, the 1977 Act still recognises that some members of the community should either be excluded or excused from such service. We describe the grounds of exclusion in paragraphs 2.11-2.14. We also examine the current position of a conscientious objector to jury service under the Jury Act (paragraphs 2.18-2.19).

II. A BRIEF HISTORY OF JURIES AND THEIR SELECTION IN NEW SOUTH WALES

2.2 The jury, as an important institution in the administration of justice, has developed over a long period. Even before the Norman Conquest of England in 1066, the genesis of the present jury may be identified in the practice of the Carolingian kings of the French empire to gather together the people of a locality to affirm the ancient royal rights in that locality.¹ This practice was adapted by the Normans in England.² From 1166 juries were used to present suspected wrongdoers for trial but took no part in the trial process.³ Trial by one’s peers was first introduced by the Magna Carta in 1215,⁴ but benefited only direct tenants of the King, such as barons, who were entitled to be tried by their feudal peers rather than by the Kings Justices.⁵ The procedure was expanded after Pope Innocent III forbade trial by ordeal, also in 1215.⁶ English judges began to rely instead on informed neighbours of an accused person; people who would be expected to know the facts.⁷ Gradually, However, the jury developed into a body of free and propertied men who were required to find the facts by weighing only the evidence presented to them. Knowledge of the facts or of a party became a ground for excluding a person from a particular jury.

2.3 There is some doubt whether the right to trial by jury was imported into Australia by the first British settlers.⁸ It has been suggested that the right was not relevant to a convict settlement.⁹ The free settlers persistently petitioned the Governor and the United Kingdom administration for the granting of this right but, apart from the use of juries by coroners, it was not until the 1820’s that anything similar to jury trial was available in the Colony. In 1828 the Constitution Act provided that civil trials would be heard by a judge with two assessors unless, on the application of a party, the court ordered the trial to be held before a jury.¹⁰ The jury in a criminal trial was to be constituted by seven commissioned army or navy officers.¹¹

2.4 In 1832 legislation first provided for the qualification of jurors, for exemption and for disqualification It was provided that civil juries were to be constituted by 12 people. Males aged between 21 and 60 having real estate producing income of at least £30 per annum, or personal property worth at least £300, were competent jurors. Jurors were liable to a penalty for non-attendance.¹² The Act further provided for criminal trials by 12 civilians in a limited range of cases.¹³ Military juries were finally abolished altogether in 1839 and it was provided that all criminal issues of fact would be tried by a jury of 12.¹⁴ Civil juries of four (special juries) were introduced in 1844, the parties still retaining an option to apply for juries of 12, called common juries. Trial by assessors was then abolished.¹⁵ The law on juries and jurors was consolidated in 1847, incorporating the liability of all men over 21 with property of prescribed value to serve on common juries, and retaining the special jury lists of justices of the peace, bank directors, city councillors and people of the degree of esquire or higher.¹⁶

2.5 The Jury Act, 1901 adopted the adult propertied male qualification for jury service,¹⁷ disqualifying unnaturalised men resident in New South Wales for less than seven years and those convicted of named serious crimes.¹⁸ The Act listed those qualified and liable who could claim an exemption.¹⁹ People entitled to the exemption included practising barristers and solicitors, stipendiary magistrates, gaolers, military and naval officers on full pay, certain employees of “banking establishments”, people aged over 60, people incapacitated by disease or infirmity from discharging the duty of a juror, and certain clergymen, priests and ministers of religion. The Act provided that all crimes and misdemeanours prosecuted in the Supreme Court the Circuit Courts and the Courts of Quarter Sessions were to be tried by juries of 12.²⁰ Civil issues of fact and assessments of damages were still to be tried by special juries of four,²¹ unless either party applied for a jury of 12.²² A unanimous verdict was required in criminal trials,²³ while the verdict of three quarters of the panel was acceptable in a civil case after six hours deliberation²⁴ The police were responsible for compiling jury rolls at the direction of the Sheriff.

2.6 These provisions were repeated in the Jury Act, 1912 which was not repealed until 1977 when the present Jury Act was passed. In 1947 the right to serve on juries was extended to women on their application and the property qualification was abolished.²⁵ At the same time the special jury was abolished.²⁶ In 1968 it became obligatory for women to be included on the jury roll, but a woman was entitled to discontinue her liability to serve by notice to the officer responsible for the rolls.²⁷

2.7 In the parliamentary debate on the Jury Act of 1977, the then Attorney General the Hon F.J. Walker, Q.C., M.P., stated that because of an outmoded selection system and the proliferation of persons who may claim exemption from jury service, the stage has been reached where the jury rolls now in use are not truly representative of the ordinary citizen.²⁸ The primary aim of the 1977 Act was to ensure

... that jury service, so far as is practicable, will be shared equally by all adult members of the community.²⁹

In order to achieve this aim, liability to perform jury service was extended to all those enrolled to vote, each jury roll being compiled at random from the current electoral roll. Responsibility for preparing jury rolls was transferred from the police to the Sheriff. In addition some classes of people previously entitled to claim exemption from jury service were eliminated. For example, bank officers and most State public servants are now liable to serve.

III. CURRENT USE OF JURIES IN NEW SOUTH WALES

2.8 Civil juries are still constituted by four people unless, on the application of a party, the court orders that the jury is to consist of 12 people.³⁰ juries are generally used to try claims of defamation, malicious prosecution, civil fraud, false imprisonment and seduction.³¹ In other civil actions, except cases of personal injury caused by motor vehicles, the court may order a jury trial at the request of either party.³² In cases where damages are claimed for personal injury caused by the use of a motor vehicle, it is now rare for a jury trial to be ordered.³³ Criminal juries are always constituted by 12 people, and are used only in serious matters tried at first instance in the Supreme Court or the District Court.³⁴ In 1974 section 476 of the Crimes Act 1900 was repealed and a new section was inserted. The effect of this change was to allow a greater range of criminal cases to be dealt with summarily by a magistrate. This resulted in a reduction in the number of trials in which juries are used since they are not used in Courts of Petty Sessions. Moreover, the superior courts are empowered to try even serious matters without a jury upon the application of the accused person.³⁵ Juries are also used in inquests by coroners where they are constituted by six people.³⁶ A majority verdict can be accepted in a civil trial where the jury are unable to agree after four hours consideration.³⁷ Unanimous verdicts are still necessary in criminal cases and inquests.³⁸

2.9 Although juries are used in a declining range of cases, both civil and criminal, the extent of their use indicates that they are of high significance in the administration of justice in this State. Reflecting this significance, amendments to juries legislation during this century have progressively extended the range of people from whom juries may be chosen. During the parliamentary debate on the 1977 Act it was said:

The Government considers that as a distinct element in the process of law, the concept of juries drawn from the community at large is a most important fundamental; and because of this the net has been spread as widely as possible.³⁹

IV. LIABILITY TO PERFORM JURY SERVICE

2.10 The 1977 Act imposes liability for jury service upon “every person who is enrolled as an elector for the Legislative Assembly of New South Wales.⁴⁰ Electors are said to be both “qualified” and “liable” to perform this civic duty.⁴¹ The special provisions for women have been removed and women and men are now equally qualified and liable, with the exception that pregnant women may claim an exemption from service.⁴²

2.11 Of those who are otherwise qualified and liable to serve, certain classes are disqualified or ineligible for service by reason of some additional characteristic. Schedule 1 to the Jury Act, 1977 lists people who are disqualified from serving on juries. A person convicted, in New South Wales or elsewhere, of treason, or of an offence carrying a penalty of life imprisonment or a term of imprisonment exceeding two years, is disqualified for life. A person who has served any shorter prison sentence or been detained for an offence in a juvenile institution is disqualified for ten years from the expiration of the period of detention And a person convicted of an offence punishable by a period of imprisonment less than two years, placed on probation or bound over by recognizance to keep the peace, or disqualified from driving for more than six months, is disqualified from serving on a jury for five years. The Attorney General suggested that the justification for disqualifying these offenders was that “people who have come into conflict with the law, particularly those who have served gaol sentences, could bear some ill will towards the Crown and so increase the probability of disagreement in criminal proceedings.”⁴³ It was considered that the only practical way of gauging the seriousness of an offence was to consider the actual penalty imposed by the Court.⁴⁴

2.12 Schedule 2 to the Act lists people ineligible to serve on a jury.

In the main they... consist of persons whose professional or expert duties are so important to the community and so exacting that they ought not to be permitted to serve. Also to be ineligible will be persons whose presence on juries would, in view of their close association with the administration of law and justice, be inconsistent with the concept of juries as a distinct element in the process of law, drawn from the community at large. Also to be in this category are persons who are unable to read or understand the English language.⁴⁵

Thus judges and their spouses, barristers and solicitors, magistrates and their spouses, members of the police force and their spouses, employees of the Attorney General’s Department and the Corrective Services Department, among others, are ineligible. Emergency personnel in fire brigades, ambulance services and the like are also ineligible. And, as well as people unable to read or understand English, people unable because of illness or infirmity to discharge the duty of a juror are ineligible.

2.13 A person notified by the Sheriff of inclusion on a draft jury roll must advise the Sheriff within 14 days if he or she is disqualified or ineligible to serve.⁴⁶ Failure to do so is an offence carrying a penalty of $500.⁴⁷ An application for an exemption from service (the grounds for which are dealt with in the following paragraph) must similarly be made within 14 days of the Sheriff s notification of inclusion on a draft jury roIl.⁴⁸ The making of a false representation for the purpose of evading jury service is also an offence carrying a penalty of $500.⁴⁹

2.14 Schedule 3 to the Jury Act 1977 lists people who may claim exemption from jury service. Before 1977 some of the classes in this list were prohibited from serving. However, the view was taken that certain people, previously ineligible because of their profession or occupation should be eligible but entitled to claim exemption.⁵⁰ Other reasons for exemption are age, distance from the court house, family responsibility and previous lengthy service. The Act provides that the following are entitled as of right to be exempted from serving as jurors.⁵¹

1. Clergymen in holy orders, ministers of religion having established congregations and vowed members of any religious order.

2. Dentists registered under the Dentists Act, 1934, and actually practising.

3. Legally qualified medical practitioners, actually practising.

4. A person of or above the age of 65 years.

5. Pregnant women.

6. A person having the care, custody and control of children under the age of 18 years other than children who have ceased to attend school) but not including more than one person having the care, custody and control of the same children.

7. A person residing with, and having the full-time care of, a person who is aged or in ill-health.

8. A person notified of his inclusion on the draft jury roll for a jury district who is on the existing jury roll for that jury district or for any other jury district.

9. A person who is entitled to be exempted under section 39 on account of previous lengthy jury service.

10. A person who resides more than the prescribed distance from the place at which he is required to serve.

11. Members and secretaries of all statutory corporations, boards and authorities.

12. Pharmacists registered under the Pharmacy Act, 1964, and actually practising.

13. Mining managers and under-managers of mines.

14. Members of a permanent rescue corps established under section 14(1) of the Mines Rescue Act, 1925.

15. Former members of the Police Force.

16. A person who holds the office of -


(a) Manager, Maintenance;

(b) Assistant Manager, Maintenance; or

(c) Operating Trouble Officer,


in the Mechanical Branch of the State Rail Authority of New South Wales.

17. A person who holds the office of -


(a)superintendent or assistant superintendent of; or

(b) instructor at,


a central rescue station under the Mines Rescue Act, 1925.

2.15 Failure to claim an exemption at the time of receiving a notification of inclusion on a draft jury roll can mean that the person will be required to serve. The Act provides that the Sheriff and the judge should refuse to excuse a person claiming exemption at a later stage (for example, when summoned to attend for service), unless that person had a reasonable excuse for failing to claim the exemption at the proper time.⁵² The provisions of the Act are designed to ensure that the Sheriff knows with reasonable certainty the number of jurors who will be available on any particular day, so that the demands of the courts for jurors will be adequately supplied. The penalties described in paragraph 2.13, and the possibility that those who would otherwise be entitled to an exemption will be required to serve if the exemption is not sought at the proper time, further this aim. However, the provision making Commonwealth public servants ineligible to serve on juries ⁵³ causes significant problems in this regard. These people frequently do not advise the Sheriff of their status and, because they are exempted by a federal Act,⁵⁴ the Sheriff cannot penalise them for this failure. Yet the Sheriff may not know in advance that a proportion of those summoned are Commonwealth public servants.

2.16 As stated in paragraphs 2.13 and 2.14, a person whose name is included on a draft jury roll must advise the Sheriff if he or she is disqualified or ineligible to serve, and may, if within one of the classes set out in Schedule 3, claim to be exempt as of right. The effect of a successful notification or application is that the persons name is omitted from the final jury roll for the district in which he or she resides. This roll will supply jurors for the district for three years. The person may be selected for a later draft jury roll and, if so, will be required to notify the Sheriff again of his or her disqualification ineligibility or claim for exemption if it is still applicable. However, the Sheriff may refuse to accept that a person is disqualified or ineligible, or to grant the exemption claimed.⁵⁵ A determination not to delete a persons name from the jury roll must be communicated to that person ⁵⁶ and he or she may appeal to a Court of Petty Session.⁵⁷ The magistrate’s decision is final and conclusive and must be put into effect by the Sheriff.⁵⁸ During the period a jury roll is in force a person whose name is listed may become disqualified, ineligible or able to claim an exemption as of right in such a case the Sheriff is empowered to delete that person’s name from the existing jury roIl.⁵⁹

V. DISCRETIONARY EXCUSAL

2.17 Any person whose name is included on an existing jury roll may apply to be excused from service. The Sheriff may excuse a person summoned for jury service who applies at any time before the day on which his or her attendance is required if he finds “good cause”.⁶⁰ Generally such an application is made by letter or in person after the person has been summoned to attend for service at a particular court on a particular day. The Jury Act does not define “good cause” but the Sheriff considers that several circumstances are covered by that expression including temporary and unavoidable absence from the jury district temporary illness, or probable serious detriment to a sole business.⁶¹ The Sheriff has power to require an application for excusal to be verified by statutory declaration.⁶² If the Sheriff refuses the application the applicant must attend at the specified court on the specified day and may renew the application to the judge or coroner. The judge also considers whether the applicant has “good cause” to be excused and may require the application to be made on oath.⁶³ Such applications are dealt with before the commencement of the empanelling of jurors for the trial. Frequently the judge is called on to consider applications to be excused which have not previously been considered by the Sheriff. Matters which arise on the day of the trial, such as sudden illness in the family or other business or domestic crisis, may be the subject of these applications in open court. If an application to be excused, made either to the Sheriff or to the judge, is successful, the result is that the applicant need not attend further at the court on that occasion. The applicant’s name, however, remains on the jury roll and he or she may expect a further summons after an interval of about ten months to a year. Jurors in the city of Sydney are required to attend for service on an average of three occasions during the three year life of a jury roll.

VI. CONSCIENTIOUS OBJECTORS

2.18 People with a conscientious objection based on religious or other grounds, to performing jury service, are neither disqualified nor ineligible under the legislation for that service. Neither can they, on that ground alone, claim an exemption as of right because they do not appear as a class in Schedule 3 of the Jury Act 1977. (A possible exception to this statement is mentioned in paragraphs 2.20-2.2l.) The Sheriff has advised that people with a conscientious objection to jury service may apply to be excused from service upon receiving a summons to attend. However, he does not consider that his discretion to excuse for “good cause” authorises him to excuse people claiming to have a conscientious objection.⁶⁴

2.19 Currently, therefore, everyone applying to the Sheriff to be excused from jury service on the basis of a conscientious objection is refused.⁶⁵ If a person chooses to pursue the application it may be repeated to the judge on the day of the trial for which he or she has been summoned. It would seem that the practice of judges in hearing and determining such applications may not be uniform. In the letter raising this issue as a topic for law reform, the writer complained that the judge in her case had excused her without hearing her application either informally or on oath. He did, however, hear other applications to be excused made on oath. She felt that the particular judge’s attitude denigrated her beliefs. Other judges require applicants to be examined on oath and ask questions designed to test their sincerity. One submission stated that some judges have excused conscientious objectors from jury service but required them to remain in court for the duration of the trial.⁶⁶ We understand that the practice of judges is to excuse conscientious objectors if only for the reason that they are unlikely, because unwilling, to prove satisfactory as jurors and might even refuse to join in a verdict. No case has been brought to our attention in the course of this reference of a judge refusing to excuse a conscientious objector. It is likely that a conscientious objector, not excused by a judge, would in any event be challenged by one of the parties. At present, however, conscientious objectors cannot predict the attitude which will be shown to them in the courtroom, whatever their beliefs.

VII. CHRISTADELPHIANS

2.20 Members of the Christadelphian sect are opposed on religious grounds to performing certain civic duties including voting, serving in the military forces, performing jury duty and joining industrial unions. In 1978 a Christadelphian successfully appealed to a magistrate against the Sheriff's refusal to grant him an exemption as of right. The magistrate held that the applicant was a vowed member of a religious order and thus entitled to have his name removed from the draft jury roll.⁶⁷ This decision was not followed in a case in 1980 decided by a Stipendiary Magistrate in Wagga Wagga. The magistrate stated:

I believe that the words “vowed members of any religious order” must be construed ejusdem generis with “Clergymen in Holy Orders, Ministers of religion”, in other words that the exemption would apply to those persons who are concerned with the religious life or closely associated thereto.⁶⁸

I believe that the paragraph is inserted with deliberateness and is really aimed at closed religious orders.⁶⁹

VIII. SUMMARY

2.22 The current procedure in New South Wales for people having a conscientious objection to jury service is as follows.

• They may not claim an exemption as of right unless they also come within clause 1 of Schedule 3 of the Jury Act 1977. Their names will be included on the relevant jury roll in spite of their objections. While they have a right of appeal to a magistrate if the Sheriff refuses the exemption application an appeal is unlikely to succeed because of the judicial interpretation of clause 1 of Schedule 3 described above.
• Conscientious objectors may, alternatively, seek to be excused from service on each occasion they are called for service while on the roll. The Sheriff is empowered to exercise his discretion to excuse a prospective juror for "good cause”. The present Sheriff, however, has determined that this power does not authorise him to determine an application for excusal on the ground of conscientious objection. Thus the objector must apply to the presiding judge. The judge also may excuse a conscientious objector for “good cause", and we believe that most judges would do so. However, whether or not a particular applicant will be excused cannot be predicted with certainty.

FOOTNOTES

1. Department of Justice of Queensland, Consider Your Verdict (1973), p.4.

2. Id., p.5.

3. Id., p.6.

4. W. Blackstone, Commentaries on the Laws of England, Book IV (15th edition, 1809), p.348.

5. A Dickey, “The Jury and Trial by One’s Peers" (1973-74) 11 University of Western Australia Law Review 205, at p.207.

6. P. DevIin, Trial by Jury (1956), p.9.

7. Id., pp.9-10.

8. J.M. Bennett, “The Establishment of Jury Trial in New South Wales” (1959-61) 3 Sydney Law Review 463; P. v. Valentine (1871) 10 S.C.R 133; Myerson v. Smith’s Weekly Publishing Co. Ltd. (1924) 41 W.N. (N.S.W.) 58; and Miller and Co. v. Wilson (1932) 32 S.R. (N.S.W.) 466, at p.475, per Harvey J.

9. See J.M. Bennett, note 8, p.463.

10. 9 Geo. IV, C83, s.8.

11. Id., s.5.

12. 2 Wil. IV, No.3.

13. Id., s.40.

14. 3 Vic. No.11. s.2.

15. 8 Vic. No.4, s. I.

16. 11 Vic. No.20.

17. Jury Act 1901. s. 3.

18. Id., s.4.

19. Id., s.5.

20. Id., s.28(1).

21. Id., s.30.

22. Id., s.3 1.

23. Id., s.67.

24. Id., s.68.

25. Jury (Amendment) Act, 1947, ss.2, 3.

26. Id., s.4.

27. Administration of Justice Act, 1968, s.10.

28. New South Wales Parliamentary Debates, Legislative Assembly, 24 February 1977, p.4475, per Mr. F.J Walker.

29. Id., 22 February 1977, p.4254, per Mr. F.J. Walker.

30. Jury Act, 1977, s.20.

31. Supreme Court Act, 1970, s.88.

32. Id., s.87.

33. See Law Reform (Miscellaneous Provisions) Act 1965: Administration of Justice Act 1968.

34. Jury Act 1977, s.19.

35. Crimes Act 1900, ss.475A-475B.

36. Jury Act 1977, s.50.

37. Id., s.57.

38. Id., ss.56, 59.

39. New South Wales Parliamentary Debates, Legislative Council, 8 March 1977, p.4818, per Mr. D.P. Landa.

40. Jury Act 1977, s.5.

41. Ibid.

42. Id., schedule 3, cl.5.

43. New South Wales Parliamentary Debates, Legislative Assembly, 24 February 1977, pp.4478-79, per Mr. F.J. Walker.

44. Id., p.4477.

45. Id., p.4478.

46. Jury Act, 1977, s.13(1).

47. Id., s.61.

48. Id., s.13(1).

49. Id., s.62.

50. Among those whose status changed were clergymen, priests and other ministers of religion medical practitioners, pharmacists, dentists and mining managers.

51. Jury Act 1977, s.7 and schedule 3.

52. Id., s.38(2).

53. Id., schedule 2, cl.16.

54. Jury Exemption Act 1965 (Cth.), s4; Jury Exemption Regulations 1970 (Cth.), c114-6.

55. Jury Act, 1977, s. 14.

56. Id., s.14(2).

57. Id., s.15(1).

58. Id., s. 15 (3).

59. Id., s.18(1),(3).

60. Id., s.38(1)(a).

61. P.R. Weems, “A Comparison of Jury Selection Procedures for Criminal Trials in New South Wales and California” (1984) 10 Sydney Law Review 330, at p.335.

62. Jury Act 1977, s.38(4).

63. Id., s. 3 8 (1) (b), (5).

64. Letter from Mr. G.F. Hanson, Sheriff, New South Wales, to Mr. T.W. Haines, Under Secretary of Justice, New South Wales, dated 7 February 1984.

65. Ibid.

66. Submission 9.

67. Letter from Mr. F.J. Walker, then Attorney General, New South Wales, to Mr. S.L Dando, Secretary, New South Wales Christadelphian Committee, undated, attached to Submission 6; and see New South Wales Anti-Discrimination Board, Discrimination and Religious Conviction (1984), para.4.37.

68. Appeal of John Roderick Lindquist, 1 February 1980, Wagga Wagga Court of Petty Sessions, (1980-1982) The Review 2105, at p.2106, per B. Eland, S.M.

69. Id., at p.2107.

70. Letter from Mr. F.J. Walker, then Attorney General, New South Wales, to Mr. S.L Dando, Secretary, New South Wales Christadelphian Committee, undated, attached to Submission 6.

71. Submission 9.