I. BACKGROUND

A. The Terms of Reference

1.1 The terms of the Commission’s reference on Criminal Procedure, reproduced at page vii, are wide ranging. They invite us to consider the administration of criminal justice both generally and in particular aspects of its operation. The Commission has divided the broad terms of this 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 agencies.

1.2 The various components into which the Criminal Procedure reference has been divided are nothing more than a convenient means of managing the large volume of work under this reference. We do not imply that they are distinct topics which bear no relation to each other. The nature of the criminal justice system is such that all of its elements are Interdependent. Any change made in one aspect of criminal procedure will have a consequential Impact upon one or more other aspects of procedure.

1.3 The association between the various elements of procedure is well illustrated by the other issues the Commission has dealt with while researching the jury system. During that time we have also been examining that area of the reference dealing with procedure before trial. We have in addition published a Report Unsworn Statements of Accused Persons,¹ In both of these areas we have had to consider important issues relating to the use of juries in criminal trials. In examining procedure before trial, we have looked at ways of reducing the length and complexity of jury trials by implementing procedures which may define the issues before the trial starts. In our work on unsworn statements, we considered the way instructions should be given to juries regarding their assessment of the unsworn evidence of accused people.

B. The Jury in a Criminal Trial

1.4 The Commission has been expressly requested to examine “practices and procedures relating to juries in criminal proceedings”. In November 1984 research was commenced on this area of the reference. In September 1985 a Discussion Paper The Jury in a Criminal Trial² was published for the purpose of inviting community responses to the issues with which the Commission was dealing.

1.5 At the time we began our inquiry into the jury system, there had been considerable publicity surrounding certain jury trials, in particular the Chamberlain case and the Splatt case. The concern expressed about those cases was one of the factors which led this Commission to choose to examine the jury system before other aspects of the criminal justice system. Another was that we had recently completed research on the jury for our Report Conscientious Objection to Jury Service.³ Some of that research provided a useful foundation for our work on juries within the Criminal Procedure reference.

1.6 This Report has been written after considering responses to the Discussion Paper and in the light of the results of various surveys which have been made possible as a result of a generous grant given to the Commission by the Law Foundation of New South Wales. We describe the Commission’s empirical research programme in the next part of this chapter. We refer to Its findings in detail where they are relevant. The full results of our programme of empirical research will be published separately later this year.

1.7 We were requested by the Attorney General to provide this Report by February 18th, 1986. Whilst this allowed the Commission a slightly shorter period of community consultation than is usual, there has been sufficient time to absorb a wide variety of views and opinions on this subject. We have been fortunate to have had the help of many people.⁴

1.8 Since we commenced our inquiry on the use of juries in criminal trials, interest in the jury has reached unprecedented levels following further celebrated trials. This level of interest in the jury system goes far beyond anything that the Commission could have achieved by the means which it usually uses to stimulate public interest in an area which it has under consideration. We have had that task done for us and have benefited enormously from the close public scrutiny to which the jury system has been subjected. It has meant that the Commission has had access to a much wider range of views than is usually the case. This upsurge in interest has been reflected In reports and legislative activity in other States. The approaches taken in those other jurisdictions has been an additional source of assistance to us.

C. The Commission’s Empirical Research Programme

1.9 In the course of preparing our Discussion Paper the lack of empirical information on the nature and functioning of the jury system in New South Wales became apparent.⁵ This inhibited and complicated the assessment of both the current position and of proposals for change. We decided to conduct our own empirical research. A series of surveys was designed with the assistance of the Commission’s consultant statistician, Ms Concetta Rizzo. Funding was obtained from the Law Foundation of New South Wales to conduct the surveys, to analyse the responses and to publish a report on the findings.

1.10 The Commission considered that it would be valuable to obtain information on the following questions, among others.

• Who actually serves on juries?
• What kind of information are jurors given before jury service?
• What do jurors expect their role to be?
• In what way do certain court practices affect the constitution of thejury?
• Is there a need for better communication between the court and the jury?
• What do jurors themselves think of the role which they have played?
• What is the attitude of the judiciary towards various aspects of trial by jury?
• Is there a need for additional measures to protect the jury from outside influences before, during and after trial?

The following paragraphs briefly describe the various aspects of the Commission’s empirical research programme. As we have noted above, a full report of the results of this research will be published separately this year.

1. Survey of the Compilation of Jury Rolls

1.11 The jury roll for each jury district is renewed at least once every three years. This is a continuing process for the Sheriff’s Office which is responsible for compiling the rolls.⁶ During 1985 jury rolls were renewed for some 49 districts. From those renewed during the second half of the year the Commission chose to examine the process of finalising the roll in a metropolitan district (Penrith), a large city (Newcastle), and three country districts of varying size (Dubbo, Cessnock and Bathurst). This process involves the Sheriff’s officers considering individual notifications from jurors who acknowledge that they are disqualified or ineligible or who claim exemption. The Commission examined each notification.⁷ By this means we have determined the relative Incidence of the various reasons for deletion from the jury roll. We have used this information to formulate the terms of our recommendations in Chapter 4 on enhancing the representative character of juries.

2. Survey of Grounds for Excusal from Jury Service

1.12 Each person whose name is included on a final jury roll is liable to receive a summons to join a jury panel.⁸ A person who receives a jury summons may apply to the Sheriff to be excused from attending. The Sheriff has the power to excuse for “good cause”.⁹ in order to discover both the reasons put forward by people who applied to be excused and the reasons accepted by the Sheriff, the Commission examined a sample of written applications received by the Sheriff in a period commencing in September 1985. Applications are usually made in the form of a statutory declaration. In this survey applications from people In the Penrith, Newcastle, Dubbo, Cessnock and Bathurst jury districts were examined.¹⁰ We were able to assess the relative significance of unavailability for jury service through disqualification, ineligibility and exemption and the discretionary processes of excusing people from jury service insofar as they affect the representative character of juries.

3. Survey of Prospective Jurors

1.13 All people attending courts in New South Wales to join criminal jury panels in a two week period in October 1985 were invited to complete a short anonymous questionnaire. This questionnaire sought information in a number of categories-.

• information about the attitudes of prospective jurors to jury service;
• information about their understanding of the role of the jury;
• the financial loss or inconvenience, if any, caused by attendance at court; and
• demographic information about each prospective juror’s sex, age, employment status, occupation, education, country of birth, ethnic origin and physical disabilities.

We received 1779 completed questionnaires. This number represents approximately 95% of all prospective jurors attending court in the survey period.¹¹

4. Survey of Jurors

1.14 Of those people who receive a jury summons, only a minority actually serves as jurors. The Commission was interested to know whether the representative character of juries is affected by personal applications to the judge to be excused or by the exercise of peremptory challenges. In addition, we wanted to know what jurors themselves thought about the jury system and their attitudes to the task they had just completed. Subject to the agreement of the judge, jurors serving in criminal trials commencing between 30 September and 13 December 1985 were invited to complete an anonymous questionnaire. By this means we were able to survey the attitudes of 1834 jurors, which represents a substantial proportion of all jurors who served in a criminal trial in this State during the period.¹² To permit direct comparison, the demographic details sought were identical to those in the Survey of Prospective Jurors. Jurors were also asked about some of the practices adopted during the trial on which they served, whether they understood the proceedings, whether they were inconvenienced, their attitudes to juries generally and their suggestions for improvements. This latter category of information has been particularly helpful in formulating our recommendations in Chapter 6.

5. Survey of Court Procedures

1.15 More detailed and precise information about the criminal trials in which juries participated was obtained from a lengthy form completed by the presiding judge’s associate in almost all criminal jury trials commenced between 30 September and 13 December 1985 in New South Wales. 197 trials were covered by the survey. Information was sought in the following categories. They were:

• details of the trial (location, date, duration, number of accused persons, etc);
• the selection of jurors (personal applications to be excused, challenges, composition of the jury)-,
• jury absences from court (time spent out of court, reason for absence);
• assistance to jurors (use of exhibit, visual aids and other material to assist jurors);
• discharge of individual jurors, or the whole jury, during trial:
• other incidents involving the jury (unsuccessful applications for discharge of the jury, “no case to answer” submissions, use made of the transcript);
• questions asked by the jury;
• the jury’s deliberation (time taken, verdict, attempts to qualify the verdict); and
• discharge of the jury following verdict.

The survey provided the Commission with comprehensive information about the criminal trials in which juries participated and gave us additional insight into the operation of the jury system generally.

6. Survey of Judges

1.16 To complement our Survey. of Jurors, the Commission also sought information directly from judges about their practices in criminal jury trials and their attitudes to a range of proposals for reform. Their views regarding the suitability of juries for the trial of complex cases were also sought. This information was gathered by means of an anonymous questionnaire distributed in July 1985 to the sixty New South Wales Supreme Court and District Court judges who either preside at criminal trials or sit in the Court of Criminal Appeal. Forty-one judges completed the survey. A further six judges wrote to the Commission. We are most grateful to the Chief Justice, the Honourable Sir Laurence Whistler Street, KCMG, and the Chief Judge of the District Court, His Honour Judge J H Staunton, CBE, QC, for their permission to conduct the survey and for the enthusiastic support which they gave. The Commission also wishes to thank the judges who responded to our survey for their co-operation and assistance.

7. Survey of Crown Prosecutors

1.17 Additional information was sought from all Crown Prosecutors. They were surveyed anonymously in June 1985. Questions were asked about their use of the Crown’s right to make peremptory challenges, the content of their opening address to the jury, their use of visual aids and their opinions on measures aimed at improving juror orientation and comprehension. We wish to thank the Crown Prosecutors who assisted the Commission by completing the survey.

II. PRINCIPLES UNDERLYING OUR WORK ON THE JURY SYSTEM

1.18 The issues raised in this Report have been examined against a background of certain principles or values which we regard as fundamental. These principles have played an important role in our work on the jury system. We have referred to them when assessing the current law and practice, in deciding whether there is a need for change and in evaluating the merit of various proposals for reform that we have considered. As these values have played a crucial role in our work, we think it important for us to articulate them so that the views and opinions we express in this Report, and the nature of the recommendations for reform that we make, may then be better understood.

A. Seven Principles

1. The Pursuit of Truth

1.19 Obviously each criminal trial involves an attempt to establish the facts on which to base the final decision. Nevertheless, whilst the pursuit of truth is clearly a desirable goal of criminal procedure it is not to be sought at any cost. As the Australian Law Reform Commission has said:

The serious consequences of conviction, fear of error, a concern for individual rights and fear of abuse of governmental power have limited the search for truth in criminal matters.¹³

2. Minimising the Risk of Convicting the Innocent

1.20 The rules of criminal procedure have traditionally been formulated so as to minimise the risk that people who are In fact innocent are wrongly convicted. The balance struck between the desirability of convicting the guilty and the safeguarding of the innocent can be seen to have changed from time to time. Since it is influenced by community standards, “the point of the fulcrum varies over time’’.¹⁴ The traditional court procedures and the rules of evidence recognise that the ideal of discovering the truth Is sometimes impossible to achieve after the event at issue, and for that reason it is necessary to establish safeguards even at the cost of concealing otherwise relevant matters. The rationale behind this approach is found in the often quoted (and often misquoted) words of Blackstone, that “It is better that ten guilty persons escape than that one innocent suffer”.¹⁵

3. Public Confidence: Acceptance and Accountability

1.21 The criminal justice system must be acceptable and accountable to the community it serves. Public confidence in the criminal justice system is a prerequisite to its effectiveness, and ultimately to the authority of the criminal courts to decide disputes between private individuals and the State. The criminal law itself must be capable of absorbing and reflecting community standards. The process of determining guilt should be consistent with contemporary standards within the general community.

1.22 Community participation is one means of encouraging accountability. Community participation also promotes the acceptability of the processes and determinations of the criminal justice system. Participation should involve all members of the community, not just those associated with the administration of the system. If community participation Is seen as a right or privilege, then it should be available to all but those who are legitimately disqualified. If it is seen to impose a burden, then that burden should be evenly distributed by being shared equally among members of the community.

4. Fairness and Justice

1.23 The essential feature of any system of criminal justice is that It be fair. Fairness has a number of aspects. It requires certainty and consistency in the law and procedure, although there must be flexibility in order to cope with the variations between cases and different and changing circumstances. The occasions on which flexibility is warranted are properly determined by reference to contemporary community standards. In achieving the goal of fairness, 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. The objective of fairness must be seen from the perspective of each of the parties in a criminal case. Every litigant should perceive the trial to be a fair one if the decision of the court is to be generally acceptable.

5. Efficiency

1.24 It is trite to observe that the administration of criminal justice should be efficient. The criteria for the assessment of efficiency are more controversial. Efficiency should be measured primarily by reference to the standard and quality of justice and, secondly, by reference to the cost and duration of criminal proceedings. The efficient use of available resources involves those resources being applied to obtain a fair result in an acceptable manner for the least possible cost and in the shortest possible time. Error, duplication, waste, unfairness, delay and uncertainty are all indicators of inefficiency.

6. Effective Communication

1.25 The tribunal called upon to make decisions in a criminal case must make those decisions in an informed way. This necessarily requires access to materials which are relevant and clear definition of the issues which the case raises. The proceedings should be conducted in a manner which allows them to be readily understood by the participants in the trial. As Mr Justice Deane has written:

[a] system of criminal law cannot be attuned to the needs of the people whom it exists to serve unless its administration, proceedings and judgments are comprehensible by both the accused and the general public and have the appearance, as well as the substance, of being impartial and just. In a legal system where the question of criminal guilt is determined by a jury of ordinary citizens, the participating lawyers are constrained to present the evidence and Issues in a manner that can be understood by laymen. The result is that the accused and the public can follow and understand the proceedings.¹⁶

7. Openness and the Publicity of Criminal Proceedings

1.26 There is a traditional distrust of secret trials which associates them with the unjust persecution of the individual. In order to guard against the use of the courts as an instrument of oppression, to prevent the abuse of judicial power, to ensure that the accused person will have a fair trial and generally to secure the impartial administration of justice according to law, the right to public trial of a person accused of crime is generally recognised. The openness of public trials increases information about and awareness of the criminal justice system in the community. It tends to deter or reduce improper practices by leaving proceedings open to scrutiny. By revealing the proceedings In a criminal court to the public, there is also a greater likelihood of injustice being detected and a remedy for that injustice being made available. The public nature of criminal trials Is a feature intended to benefit the individual who has been accused of a crime, but it is also for the protection of the public generally.

1.27 The recognition of the need for the courts to be open to public scrutiny implies that the community has the right of access to, and information about, court proceedings. There are, however, 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 of maintaining the public’s access to the criminal courts. In our view the former is the primary concern of the judicial system. The latter is an interest which must yield where circumstances demand it.

B. The Relationship of these Principles to the Jury System

1.28 By reference to the above ideals, we have considered the operation of the jury system and concluded that no fundamental changes are required to the manner in which it operates. Because it complies with and serves the principles, ideals and values which we have set out above, the jury system is the most appropriate means of determining the guilt of people who are accused of committing serious crimes.

1.29 Particular values and ideals have motivated us to examine specific aspects .of the jury system. For example, the ideal of community participation has led us to consider, in Chapter 4 of this Report, the extent to which the jury currently represents the community and its standards. The ideal of a competent tribunal has led us to consider, in Chapter 6, ways in which juries might be assisted to make better and more informed decisions. This has also raised a more fundamental question as to whether juries are competent decision-makers in extremely complex cases. This question is dealt with in Chapter 8. Issues of fairness and freedom from bias have provoked our consideration in Chapter 7 of the general area of prejudicial pre-trial publicity. This examination involves the application of the competing principles we have referred to above (paras 1.26-1.27)

C. The Reason for Law Reform

1.30 One practical rule which we have applied in considering proposals for reform of the jury system is that we should not recommend change for the sake of change. The current system should not be altered unless there is a clearly demonstrated need for reform. Accordingly, those who propose reforms carry the burden of exposing the failure of the current laws and practices and the utility and desirability of the new laws or practices which they propose. On the other hand, we should recognise that the jury system has changed much over the years. Where change is warranted, we should not be reluctant to adapt the jury system to meet current needs.

1.31 The reason for placing the onus on the proponents of reform is twofold. Firstly, the administration of the system of criminal justice involves a balance being struck between different interests. The system must be sensitive to competing needs and claims within the community. The process of change, which is likely to alter the current balance, must be approached with caution. Secondly, we are conscious of the traditional and symbolic roles of the jury and of the danger of undermining these roles by rapid change which is ill-considered. The jury is an institution which has evolved slowly. In the absence of a demonstrated need for fundamental change, we consider that this process of gradual evolution is a proper course. Our recommendations are for that reason evolutionary in character. They are designed to strengthen the jury system by equipping it to cope with the demands placed upon it by the modern criminal trial.

1. LRC 45, 1985.

2. DP 12, 1985.

3. LRC 42, 1984.

4. A list of those people who made submissions or otherwise assisted the Commission is included as Appendix A to this Report.

5. The only publications of relevance to New South Wales were a report prepared for the Law Foundation by Peter Grabosky and Concetta Rizzo Jurors in New South Wales (June 1983) and a report prepared by the New South Wales Bureau of Crime Statistics and Research Jurors Statistical Report 4, Series 2 (1975).

6. Jury Act 1977 s10.

7. There was a total of 13103 notifications of disqualification, Ineligibility and claims of exemption.

8. Jury Act 1977 s26.

9. Jury Act 1977 s38(1).

10. Approximately 159 applications of this kind were examined.

11. In one country court only prospective Jurors not empanelled were surveyed and in another the forms could not be distributed.

12. In some cases the presiding judge did not agree to the survey being distributed. In others, the Jurors did not complete the survey.

13. Australian Law Reform Commission Evidence (ALRC 26 Interim 1985) para 58.

14. A phrase used in another context by Justice M D Kirby “Pre-trial Publicity - Free Speech vs Fair Trial” paper delivered to International Criminal Law Congress, Adelaide, 9 October 1985.

15. Commentaries (4th ed 1765) Book 4, Ch 27, Vol IV, p358.

16. Kingswell v The Queen (I 986) 60 ALJR 17 at 31.