I. INTRODUCTION

10.1 The jury system is expensive. The budget figures for the financial year 1983-1984 reveal that the cost of providing juries in criminal trials was approximately $3.5 million. This is, however, only one side of the equation. It does not take into account the financial and personal costs incurred by individual jurors as a result of their attendance at court in response to a summons for jury service, nor does it include the cost of employing the Sheriffs officers who look after jurors. Our Survey of Jurors revealed the types of financial loss and other inconvenience caused to jurors. Of our sample of 1834 jurors, 411 (22%) suffered financial loss. Nearly two-thirds of these jurors lost between $50 and $500. 6.6% lost more than 8500. The remainder either lost less than $50 or did not quantify their loss. Of those suffering loss, 43% lost wages; 18% mentioned travelling expenses; and 16% mentioned both wages and travelling expenses. Almost 12% sustained losses by virtue of being self-employed. 298 respondents (I 6.2%) said their service as a juror caused other personal problems or inconvenience. Commonly reported problems were difficulties with child care, interference with meetings or work, increased workload, difficulty getting time off and problems with transport.

10.2 We have examined the operation of the jury system in order to discover areas in which these costs can be reduced. The proposals put forward in this chapter will reduce the costs of administering the system and the length of time people are required to serve as jurors. Saving jurors time would generally lead to a reduction in the cost and inconvenience of jury service.

10.3 The threat which long and complex criminal trials poses to the maintenance of the jury system is clear and has been recognised for some time. It is not a threat which is based purely on financial considerations. But, since a large part of the objection to juries in these long cases is their expense, procedures which reduce costs are likely to save the jury system from the threat to which it is currently exposed. The Chief Justice of Australia has acknowledged the problem in the following way:

For my own part, I would prefer that a determined effort should be made to remould the rules of criminal procedure rather than that there should be further encroachments on the right to trial by jury. It seems particularly necessary to find a way to shorten the length of trials by more clearly defining the real issues, and in some way relieving the prosecution of the necessity to present full and detailed proofs of matters which are not really in dispute.¹

10.4 We have approached this aspect of our examination of the jury system with one principle firmly in mind. We do not think it legitimate to diminish the effectiveness or the inherent fairness of the jury system for the purpose of saving money or reducing inconvenience to people who serve as jurors. In our view, the maintenance of high standards in the administration of criminal justice is of paramount importance. This necessarily requires the expenditure of financial and human resources in large measure. Where a proposal has been put forward as a means of saving time or money, the test we have applied in assessing the value of that proposal is to ask first whether its implementation might produce unfairness. If the answer is positive and demonstrably so, we have rejected the proposal.

10.5 We believe that the recommendations which follow would not have an adverse effect upon the standard of criminal justice. They are designed to ensure that the resources which must be spent on the jury system are used In the most effective way. We have identified five major areas in which savings can be made. They are:

• reducing the time during which jurors are required to attend at court;
• avoiding discharge of the jury during a trial;
• avoiding unnecessary attendance at court by prospective jurors;
• streamlining procedures for empanelling jurors; and
• the option of having a case tried by a single judge sitting without a jury.

II. PRE-TRIAL HEARINGS

Recommendation 80: A system of pre-trial hearings should be implemented for the purpose of resolving matters of law before trial and planning the efficient presentation of the case to the jury.

10.6 The Commission’s Survey of Court Procedures revealed that in most trials the jury was absent from the courtroom for substantial periods. This absence was most often required to prevent the jury hearing arguments over the admissibility of evidence. Table 10.1 shows the duration of jury absences in the 197 trials in our survey. Table 10.2 shows the total time the jury was absent as a proportion of trial time. Table 10.3 gives the relative frequency of the various reasons for jury absences. Perhaps the most significant finding is that in eight trials the jury was absent from the court for more than half the total period of the trial prior to the commencement of their deliberations.

Table 10.1: Duration of Jury Absences from Court

Total Duration of Absences	No. Of Trials	%
No absence or no information given	37	18.8
0-30 minutes	54	27.4
30 minutes-1 hour	23	11.7
1-2 hours	40	20.3
2-5 hours	31	15.7
5 hours or more	12	6.0
TOTAL	197

Table 10.2: Proportion of Time Spent Out of Court

Time absent as a proportion of total trial time	No. of Trials	%
No absences or no information given	38	19.3
Less than 5%	45	22.8
5% - 10%	34	17.3
10% - 20%	37	18.8
20% - 50%	35	17.8
50% +	8	4.0
TOTAL	197

Table 10.3: Reasons for Jury Absences^(a)

REASON	No.	%
1. Argument about the Admissibility of Evidence	224	36.0
2. Application by Defence (b)	121	19.4
3. Application by Crown (c)	25	4.0
4. Clarification of Legal Issues (d)	57	9.1
5. Absence for the Benefit of, or Initiated by, the Jury	9	1.4
6. Issues of Prejudice (e)	4	0.6
7. Argument About the Summing-up prior to Deliberations Commencing	25	4.0
8. Judge Dealing with a matter not Related to Trial	41	6.6
9. Other (f)	117	18.8
TOTAL	623

(a) This table records figures in respect of 194 trials of our sample of 197. There were 623 jury absences in 160 trials and no absences in the remaining 34 trials.

(b) Including applications to adduce alibi evidence, to recall a witness, to seek instructions, for discharge of the jury, and no case to answer submissions.

(c) Including applications to lead evidence in reply, to recall a witness, to call additional evidence and for the discharge of the jury.

(d) Including whether the transcript was accurate, interpretation of statutory provisions and whether publication should be prohibited, but not including those absences recorded in Category 7.

(e) Excluding issues included in 1, 2 or 3.

(f) Including questionnaires which did not state the reason for the absence of the jury.

10.7 Most disputes regarding the admissibility of evidence and most of the legal issues which arise in a criminal trial before a jury are predictable. A thorough preparation before the trial will usually reveal the items of evidence and the legal issues which are contentious. This is not to suggest that some matters will not arise unexpectedly. The majority of the issues which arise in a trial are, however, capable of being predicted by an examination of the prosecution case presented at the committal proceedings and of what is known of the case for the accused person once the investigation, committal and any informal discussions between the parties have taken place.

10.8 Our suggestion, therefore, is that pre-trial hearings be held to reduce the time taken at trial in the absence of the jury. A primary function of such hearings would be to resolve matters of law which are currently argued and determined in the absence of the jury during the trial. These matters include:

• whether particular items such as confessions, admissions, expert testimony and material which is said to have been illegally or improperly obtained are to be admitted as evidence;
• whether a claim of privilege is to be upheld, and
• the determination of preliminary matters including arguments over jurisdiction, applications for separate trials, whether the accused person is fit to plead and so on.

10.9 The pre-trial hearing would have other benefits for the jury. The following additional matters could be settled at such a hearing.

• The likely length of the trial so that the judge may inform the jury panel as proposed in Recommendation 36 (para 6.16).
• The form and content of any technical or scientific evidence to be presented to the jury In documentary form or presented in any other form as proposed in Recommendation 45 (para 6.28).
• The documents which are to be admitted. This would permit sufficient copies to be made in advance so that each juror could be provided with one as proposed in Recommendation 47 (para 6.32).

It is to be expected that, in trials which have been preceded by pre-trial hearings, there will be fewer interruptions and a freer flow of evidence. The possibility of a mistrial caused by the jury hearing inadmissible evidence or prejudicial information or comments might also be reduced.

10.10 Whilst this procedure clearly has potential benefits for the system of trial by jury, the detailed operation of pre-trial hearings is more appropriately dealt with in our forthcoming Discussion Paper Procedures Before Trial in Criminal Cases. The issues which need to be resolved are set out below.

• Who decides whether a pre-trial hearing should be conducted?
• At what time should it take place? It must naturally precede the trial, but by how far?
• Should the proceedings be formal in their nature?
• Should the parties be invited or compelled to participate in the pre-trial proceedings?
• Should the proceedings be recorded?
• Should statements made at the pre-trial hearing be admissible in evidence at the trial?
• Should the proceedings be presided over by a judge and, if so, should it be the judge who is to conduct the trial?

10.11 It is impossible to give an accurate estimate of how much time and money will be saved by the implementation of a procedure of this kind. There is, however, no doubt whatsoever that a properly designed and implemented system of pre-trial procedure would reduce the cost of administering the system of trial by jury. There are good reasons for believing that the improved level of preparation in cases where pre-trial hearings have been conducted will also result in greater efficiency in the conduct of criminal trials generally.

Ill. AVOIDING THE DIMINUTION OF THE JURY

A. Background

10.12 A jury in a criminal trial must commence with 12 people.² The historical explanation for the jury of 12 is outlined in our Discussion Paper (paras 1.2-1.4). It has become widely, although not universally, accepted as being the desirable number for criminal juries. With 12 members the jury is large enough to include a cross-section of the community but not so large as to be unmanageable as a decision-making unit. The very size of the jury is also an important safeguard against prejudice as a particular bias or prejudice will have less prominence in a large group. An effort should be made to ensure that when a jury retires to consider its verdict, its deliberations will be undertaken by 12 people.

10.13 The Jury Act provides³ that, if a juror dies or is discharged in the course of a criminal trial, the trial may continue so long as the number of jury members is not reduced below 10. The decision as to whether the trial is to continue is a matter for the discretion of the judge. If the number is reduced below 10, all parties must consent in writing before the trial may continue. Even if such consent is forthcoming, it remains a matter for the discretion of the judge to decide whether the trial should continue.

10.14 Trials which run for an extended period are becoming more frequent. It is now a real possibility that such a trial will have to be aborted because more than two jurors have died or been discharged due to illness or some other reason, and one or more of the parties is unwilling to continue. In the longest criminal trial held in New South Wales one juror was discharged after several months because of ill health and, towards the end of the trial, another juror was discharged because she became pregnant.⁴ The Commission understands that if one more juror had been unable to complete the trial, the consent of each of the accused people to continue with a jury of fewer than 10 would not have been forthcoming. The proceedings would have been abandoned and a decision would need to have been made whether to start the trial afresh with a new jury. Our Survey of Court Procedures covered 197 trials, the longest of which lasted fourteen days. In seven of these trials one juror was discharged during the course of the trial. The reasons for discharge included:

• that the juror became ill;
• that the juror was seen talking to a prosecution witness, and
• that a witness called by the prosecution was known to the juror.

These figures are by no means startling but they illustrate that, even in relatively short trials, jurors are sometimes unable to fulfil their duty. It should be emphasised, and our survey results bear this out, that there is only a small risk of losing more than two jurors in a trial which is even moderately long. We are not aware of a case where the jury has been reduced to nine during the course of the trial. The cases with which we are concerned here are exceptional.

10.15 If a long trial must be abandoned because the number of jurors falls below the statutory minimum, the cost to the State as well as the financial and emotional strain upon the accused person is enormous. The abandonment of the proceedings because of jury wastage is naturally more likely to occur towards the end rather than the beginning of a long trial and therefore after vast amounts of money have been spent in presenting the case to the jury. Rules and procedures which preserve the traditional size of the jury and provide a safeguard against the discharge of the jury for want of sufficient jurors need, therefore, to be considered.

B. A System of Providing Additional Jurors

1. Additional Jurors in Certain Cases

Recommendation 81: The Jury Act 1977 should be amended to give the judge the power to empanel up to three additional jurors where the trial is estimated to take in excess of three months. The judge should have regard to the likely wastage of jurors over the expected length of the trial and empanel as many additional jurors as is thought necessary to ensure that there will be 12 jurors ultimately called upon to consider the verdict.

10.16 One way to avoid the need to abandon a trial because the number of jurors becomes less than the minimum of 10 would be to introduce a system of reserve jurors. Under such a system the base jury of 12 could be augmented. There are two basic systems in operation in various jurisdictions in the common law world. In both the decision whether the reserve juror system is used is dependent upon the discretion of the judge. Under one system the reserve jurors are nominated as such immediately after the base jury of 12 is selected. They attend the trial but are not jurors in the same sense as members of the base jury. If a member of the base jury is discharged during the course of the trial, the first of the reserve jurors takes his or her place upon the base jury immediately. Queensland, Western Australia and the Northern Territory have adopted this system. It appears to have been used in very few cases.⁵

10.17 Another system of reserve jurors is in use in some jurisdictions in the United States. It is known there as the “additional juror” method, The judge decides how many additional jurors are to be sworn. The jury may number 13, 14 or 15. All jurors selected are sworn and all sit as jurors of equal standing throughout the trial. If there are more than 12 remaining when it is time for the jury to consider its verdict, the 12 jurors who are to constitute the final jury are selected by ballot. Those jurors not selected are then discharged from further attendance.

10.18 In our view the “additional juror” method is the more desirable of the two alternatives. The American Bar Association makes this comment on the advantage of the “additional juror” system.

A preference for the additional juror system has sometimes been stated on the ground that it is undesirable to give a juror who may be involved in deciding the case second class standing during some or all of the trial. That is, one who is labelled an alternate at the outset might not take his job as seriously as the regular jurors as the chances of substitution are not great. On the other hand, where one or two additional jurors are selected each member of the thirteen or fourteen man group knows that even if no juror is excused for cause he nonetheless has a very substantial chance of being involved in the deliberations.6

10.19 Whilst it may be generally desirable for the number of jurors in a criminal trial to remain at the traditional 12, it is already provided that, in specified circumstances, this number may be reduced.⁷ There is nothing different in principle about the notion that in specified circumstances it can be increased. Naturally there will be increased costs involved in paying the expenses of additional jurors. That expenditure, however, can properly be regarded as a form of insurance against the risk of incurring the enormous loss of a trial which has to be abandoned after a considerable time for want of the minimum number of jurors required by statute. The number of trials in which additional jurors might be required would be very small indeed. There would not seem to us to be any need to consider empanelling additional jurors unless the trial is estimated to take more than three months. Past experience shows that it is unlikely that there will be more than a single trial that long in any one year.

2. Balloting Additional Jurors

Recommendation 82: If the requirement that the verdict be unanimous is retained, as the majority of the Commission recommends, then whenever there remain more than 12 jurors following the judge’s summing-up, the extra jurors should be balloted out.

Recommendation 83: If the jury’s verdict may be less than unanimous, then, whenever there remain more than 12 jurors following the judge’s summing-up, they should all participate in the deliberations and the verdict of all but one should be capable of being taken as the verdict of the jury.

10.20 In our Discussion Paper (para 10.23) we raised the possibility of introducing an additional juror system under which the final 12 jurors would be determined by ballot immediately prior to the jury retiring to consider its verdict. Some of the submissions we received raised the legitimate concern that it was wasteful to allow an individual to participate throughout the trial as a juror only to be excluded in an arbitrary fashion at the eleventh hour without the opportunity of making a contribution to the jury’s decision. Others thought that an exception should be made in the case of the person who was the foreman or forewoman of the jury. We agree that it seems wasteful, and unfair to the excluded juror, to dispense with a juror simply because the number of jurors is required by tradition to be 12. The excluded juror will probably have given conscientious attention to the case over a long period and may have been chosen as the jury’s representative. The jurors discharged may have a valuable contribution to make. An individual juror could feel justifiably frustrated by his or her chance exclusion without being given the opportunity to make that contribution. An accused person or the Crown who may have come to place some confidence in the care with which that particular juror was performing his or her duties may feel that the exclusion of that juror in an arbitrary manner is unfair.

10.21 Despite these considerations we are concerned that a jury of 13, 14 or 15 would have more difficulty coming to a unanimous verdict than a jury of 12.⁸ All Commissioners are of the view that no more than 12 jurors should deliberate on the verdict if the unanimity rule is retained. If more than 12 jurors remain immediately prior to the jury retiring, the 12 jurors who are to deliberate should be chosen by a random ballot. Whilst this proposal has the disadvantages mentioned above, we see no other workable solution. Cases where a ballot such as this is needed would in any case be rare. We have said that the need for additional jurors will arise in exceptional circumstances. It would be even rarer for the estimated wastage on the jury to be so miscalculated as to require balloting some jurors out. One of the problems mentioned, that of the foreman or representative being excluded from deliberations, is not as serious as has been suggested. The foreman does not enjoy any special privilege or ascendancy to justify him or her being treated differently. Our alternative recommendation (Recommendation 83) is designed to make use of the contributions of all jurors if majority verdicts are introduced.

3. Challenging Additional Jurors

Recommendation 84: Where a judge has indicated that additional jurors are to be appointed, the number of peremptory challenges available to the Crown and each accused person should be increased by one irrespective of the number of additional jurors to be appointed.

10.22 This recommendation is made to ensure that the effectiveness of the right of both the Crown and the accused person to make peremptory challenges of potential jurors is not diminished. In Chapter 4 (para 4.59) we recommend by majority that the number of peremptory challenges available to each of the parties be reduced to three in the case of a normal 12 member jury. The effect of the present recommendation would be that where the jury was to consist of 13, 14 or 15 jurors, an accused person would be entitled to four peremptory challenges and the Crown would be entitled to four challenges for each accused person. Mr James and Judge Mathews do not agree with the terms of this recommendation. They consider that the number of peremptory challenges available should be increased by one for each additional juror to be empanelled.

C. The Minimum Size of the Jury

Recommendation 85: The consent of all parties should continue to be required before the judge is entitled to allow a trial to continue with fewer than 10 jurors. It should be provided by legislation, however, that, in a trial which has lasted more than six months, the judge has a discretion to allow the trial to continue with a minimum of eight jurors irrespective of the consent of the parties.

10.23 A related issue raised in our Discussion Paper (para 10.21) was whether a jury should be able to fall below 10 in number irrespective of the consent of the parties. The current law appears to acknowledge that at least in some circumstances a jury of fewer than 10 is an acceptable tribunal to determine the guilt of an accused person. The question which concerned us at one stage was whether the consent of both parties should be required before this is allowed.

10.24 We have come to the conclusion that, with one exception, there should be no change to the present law. The need for change has not been demonstrated with respect to the vast majority of criminal trials. The recommendations we have made in relation to a system of additional jurors will ensure that, in trials expected to last more than three months, once a jury is empanelled there will be only a minimal risk that its numbers will diminish to the point where the trial cannot be continued without the consent of the parties. However minimal this risk may be, we think it should be guarded against. If a very long trial had to be abandoned because the jury was reduced to nine or eight members it would be little short of catastrophic. The criminal justice system and the participants in the case should not be expected to bear the burden of having to start the proceedings again. Having said that the jury might be reduced below 10 in exceptional circumstances without the consent of the parties, we acknowledge that there must be a level at which a jury has insufficient members to be said to have the essential characteristics of a conventional jury.⁹ Mr James and Judge Mathews do not agree with this part of the recommendation. Mr James thinks that a trial should never continue with fewer than 10 jurors without the consent of all parties. Judge Mathews considers that a minimum of nine jurors might be acceptable, but that allowing a jury to fall to eight members is repugnant to the concept of trial by a jury of 12. She notes that, given our recommendation to allow for additional jurors to be used in trials that are likely to be lengthy there is little likelihood of a jury falling below 10 in number.

10.25 The combination of proposals we make is designed in the first place to guarantee that long criminal trials will not need to be abandoned for want of jury numbers. If the trial is estimated to last more than three months the judge would have a discretion to empanel additional jurors. If the trial lasts longer than six months, the judge would have a discretion to allow the trial to continue so long as there were at least eight people remaining on the jury. Where three additional jurors are empanelled and the trial lasts more than six months, then up to seven people could be discharged from the jury without requiring the proceedings to be abandoned. The current law allows for only two such discharges. We have noted that the occasions when additional jurors are needed would be extremely rare. The diminution of the jury to as few as eight members would be even more exceptional.

10.26 Although the Law Reform Commission of Canada did not recommend any change to the law regarding jury size in long trials,¹⁰ the Bill based on its report contained a provision which would enable the size of the jury to be reduced to eight where the trial had continued for more than thirty days.¹¹ This provision has been criticised as one which “seems to elevate expediency over justice”¹² and also on the ground that the additional or alternate juror procedure would be far preferable.¹³ This Bill was introduced in February 1984 but has not yet been enacted.¹⁴ Unlike the Canadian Bill, our proposal is that the additional juror procedure should be used as the first safeguard against diminution of the jury. Reduction of the jury below 10 without the consent of the parties should only be allowed in exceptionally long cases.

10.27 Our recommendations would also have certain consequential advantages. In the first place the likelihood of the verdict in a trial being that of 12 members of the community would be substantially increased. Moreover, it is likely that juries in long trials would be more representative than at present because judges could more easily afford to disallow applications to be excused as there would be little prospect of the number of jurors falling below the statutory minimum. In addition, where an individual juror suffers personal hardship during the course of a long trial, the judge would be more likely to grant a discharge on such grounds simply because he or she will have greater latitude to do so before the risk of discharging the whole jury becomes real.

10.28 The decision whether a trial which has taken more than six months should continue with fewer than 10 jurors would be a matter for the discretion of the judge. The exercise of that discretion would naturally depend upon the circumstances of the case. At the beginning of a trial which is expected to take longer than three months, the judge should resort in the first instance to the procedure for empanelling additional jurors. The reduced minimum size of the jury should not be relied on by itself to avoid the consequences of a reduction in the size of the jury. These two proposals should be seen as a combination, not as alternative means of overcoming the problem of jury size in long trials.

IV. EFFICIENCY IN EMPANELMENT

10.29 The rate of applications for excusal when a trial is expected to be particularly long has been increasing. This is to be expected since many people who can afford to give up a small amount of time to serve on juries are unwilling or unable to serve for an extended period. In Chapter 6 (para 6.16) we recommend that, where it is known that a particular trial will be long, potential jurors should be notified in advance. The potential juror would be given an opportunity to make a written application to be excused directly to the Sheriff on the ground of the hardship that would be caused to him or her if required to serve in a lengthy trial. This measure would reduce the inconvenience caused to the individual citizen. In addition, the large amounts of money spent on payments to people who attend court to make personal applications to be excused which, if made in respect of a very long trial, will almost certainly be successful, could be saved. Lastly there would be savings in the court time which would have been taken up dealing with these applications.

A. Streamlining Procedures for Empanelling Juries

Recommendation 86: Where the panel from which the jury is to be selected is exhausted before the required number of jurors is chosen, the judge should have the power to retain those jurors who have already been empanelled as the core of the jury and order that a fresh panel be called, after a suitable adjournment, so that the balance of the jury can be selected.

10.30 Section 51 (I) of the Jury Act 1977 provides:

If there are an insufficient number of jurors summoned pursuant to a general jury precept in attendance at a court or coronial inquest for the purposes of a ballot under section 48, 49 or 50-

(a) the trial or inquest may be adjourned and a further general jury precept issued in respect of the trial or inquest; or

(b) the further number of jurors required to complete the ballot may be required by the sheriff to attend at the court or inquest forthwith for that purpose but only where those persons have been summoned to attend at another court or inquest in the same jury district and are not required at that other court or inquest.

A general jury precept is a document issued by an authorised officer directed to the Sheriff requiring him to summon jurors for a particular trial.¹⁵ The precept specifies the number of people required to be summoned.¹⁶ In the case of criminal trials this number shall not exceed the number of people which, in the estimate of the authorised officer issuing the precept, will ensure the attendance of sufficient prospective jurors to allow full right of challenge to all parties.¹⁷ In addition to allowing for depletion of a panel through rights of challenge, the issuing officer is to have regard to any factors likely to lead to an unusually large number of applications for excusal.

10.31 It is not an easy task to estimate an appropriate number of people to be summoned. The combination of a number of factors will mean that it will often be prudent to summon a very large number of people to form the panel.¹⁸ At the same time, because of the inconvenience to prospective jurors and the cost involved,¹⁹ the authorised officer may reasonably be expected to wish to keep to a minimum the number of people who are summoned. However, it is here that the current form of s51(1) raises a difficulty.

10.32 Section 51(1) deals with what is to happen in the event that an insufficient number of jurors “attend for the purposes of a ballot” to form the jury. The words quoted seem clearly to extend to the situation where a panel which is apparently large enough is summoned but, because an unexpectedly large number of those summoned fail to attend or make successful excusal applications in combination with the exercise of peremptory challenges by the parties, the panel is exhausted before the full jury of 12 is formed. The subsection (for present purposes) provides two solutions:

• adjournment of the trial pending the issue of a further general jury precept; or
• supplementing the (incomplete) jury by requiring additional people to attend forthwith, provided that they have already been summoned to attend at a court in the same jury district and are not required at that other court.

10.33 The second solution is unlikely to be available very often. The deficiency of the first is that it seems to contemplate that the process of summoning jurors will start again from the beginning with at least the implication that the jurors already empanelled are to be discharged. Section 51(1) is not clear on this point and, for that reason alone, it should be amended to confirm that the judge may, in his or her discretion, direct that those jurors who have been empanelled pursuant to the first general jury precept should form the core of the jury at the adjourned hearing. Since they are not excused or challenged their participation in the trial would obviously be satisfactory to themselves and the parties. By retaining them as the core of the trial jury the further general jury precept need only summon so many people as the authorised officer estimates will ensure the attendance of sufficient prospective jurors to allow for successful excusals and the remaining rights of challenge of the parties. This reduction in the necessary number will in turn mean that the adjournment can be shorter because of the savings in administrative effort.

V. TRIAL BY JUDGE ALONE

10.34 In Chapter 7 (para 7.3) we suggest that an accused person should be able to make an application to the court that his or her trial be presided over by a judge sitting without a jury where prejudicial pre-trial publicity has made it unlikely that an impartial jury could be empanelled. We discuss the reasons why, and circumstances in which, such an application should be permitted. There are other types of cases in which trial by judge alone can be justified. These matters are included in this chapter because they are essentially grounds based on avoiding costs and delay in the conduct of criminal trials.

A. Issues of Law Only

Recommendation 87: An accused person should be entitled to apply for trial by a judge sitting without a jury where the court is satisfied that the only issue in the case is a matter of law. The conditions outlined In Recommendation 56 should apply.

10.35 It is not uncommon for criminal trials to be contested on legal issues alone. For example, the prosecution evidence against an accused person may be a confession which he or she is alleged to have made. The case for the accused person may be that the confession was made and indeed that It is a true confession but that it was not made voluntarily. An involuntary confession is inadmissible as evidence.²⁰ The question of voluntariness and the admissibility of the confessional statement is purely a matter of law for the judge to decide. The accused person’s plea of not guilty may be based on his or her contention that the confession is inadmissible as evidence and that there is, therefore, no evidence upon which a conviction could be based. If the alleged confession is indeed the only evidence, and the judge’s decision is to reject the evidence, the judge would then be obliged to direct the jury to find the accused person not guilty. If the judge’s decision is to admit the evidence, it may well be that the accused person would want to change his or her plea from not guilty to guilty.

10.36 One way of avoiding the unnecessary empanelment of a jury in a case such as this would be to require that all foreseeable issues of law should be determined at a pre-trial hearing. Issues such as those raised in the two cases referred to would be dealt with prior to the trial, thereby avoiding the need for a trial before a jury. The use of pre-trial procedures in the United Kingdom has reduced the number of criminal trials by something in the order of 25%. This reduction is made up of pleas of guilty entered once the strength of the prosecution case is known and of prosecutions being abandoned in the light of weaknesses revealed at pre-trial hearings. We have recommended the introduction of pre-trial hearings (para 10.6) and will deal with them more fully in our forthcoming Discussion Paper Procedures Before Trial In Criminal Cases.

10.37 A less attractive means to achieve the same result would be to introduce trial by judge alone. In our view, It is reasonable, because of the absence of any factual issue for the jury to decide, to allow the accused person to apply for trial by judge alone in circumstances such as these.

B. Other Circumstances

Recommendation 88: An accused person should be entitled to apply for trial by a judge sitting without a jury on the ground that, having regard to the interests of the accused person and of the community, it would not be in the interest of justice to conduct the trial with a jury. The conditions outlined in Recommendation 56 should apply.

10.38 There are additional circumstances in which trial by judge alone may be warranted, such as where the nature of the case is such that it could be presented to a judge in a much shorter time than it would to take to present the same case to a jury. Some cases may involve evidence of a kind which can be quickly assessed by a judge but which Would need to be presented in detail to a jury to ensure that it is understood by them. A judge can speed up the proceedings. The jury does not have the same ability. An accused person who is paying for his or her legal representation may be forced into penury by having to meet the costs of a very long trial. If the trial can be shortened significantly and the accused person wishes to reduce the financial burden of the trial, there does not seem to be any reasonable objection to allowing trial by judge alone on his or her application.

10.39 Legislation in New South Wales already provides for the trial of certain serious offences before a judge sitting without a jury.²¹ These are offences commonly referred to as “white collar” crimes.²² This right to trial by judge alone has been used only rarely in New South Wales. We are aware of only one such trial.²³ In this case, the accused person was not entitled to legal aid. The trial lasted 41 days. It was variously estimated that if it had been heard before a jury it would have been two, three or four times as long.²⁴ The right to be tried by judge alone has existed in Canada for over 30 years.²⁵ It is estimated that some 80% of accused people exercise the right. By way of contrast, in South Australia where the right was introduced over a year ago,²⁶ it was not availed of by any accused person in the first six months.

10.40 The constitutional validity of a general provision allowing an accused person to elect trial by judge alone is in issue. The nature of the right to trial by jury which is guaranteed, in the case of Commonwealth prosecutions on indictment, by s80 of the Constitution was considered by Pannam in 1968.²⁷ He concluded that s80 is a guarantee which is personal to an accused person and may therefore be waived at his or her election.²⁸, The issue has now been taken to the High Court by the Commonwealth Director of Public Prosecutions challenging the validity of the recently enacted South Australian legislation giving an accused person the right to elect trial by judge alone. At the time of writing this Report judgment had been reserved in that case.

C. Procedures for Trial by Judge Alone

10.41 In Chapter 7 we outline the procedures which should be followed in respect of applications for trial by judge alone on the basis that prejudicial publicity has made it difficult to select a fair jury. Those procedures should apply equally to applications for trial by judge alone on any other ground. The interests of the accused person must be carefully preserved. The equivalent legislation In South Australia²⁹ includes a valuable safeguard against the risk that an accused person will be improperly pressured into abandoning the right to trial by jury. It provides that, before the accused person may elect trial by judge alone, a legal practitioner must certify that he or she has advised the accused person about making the election. We consider that the community has an interest in ensuring that criminal trials are conducted in an appropriate forum and that the institution of trial by jury is one which serves the interests of both the accused person and the community. For these reasons the Crown should be heard on an application for trial by judge alone. The decision should be one for the trial judge, rather than the individual parties, to make. This may help to limit the effect of any pressure which may be placed on an accused person to elect this mode of trial.

D. Summary Jurisdiction

Recommendation 89: The District Court of New South Wales should be invested with the jurisdiction to try indictable cases summarily in order to allow trial by judge alone in that Court where an accused persons application for that mode of trial is successful.

10.42 The availability of trial by judge alone as an alternative to trial by jury in certain criminal cases would require the establishment of a summary jurisdiction in the District Court. At present only the Supreme Court amongst the higher courts has a summary jurisdiction. This has led to some rather anomalous results. All criminal offences which carry a monetary penalty higher than the maximum able to be imposed by the Local Courts must be dealt with by the Supreme Court.³⁰ It has often been felt that cases of this kind would be more suitably dealt with by the District Court. There would not appear to be any major procedural difficulty in vesting the District Court with a summary jurisdiction. The model which already exists in the Supreme Court (Summary Jurisdiction) Act 1967 would appear to be appropriate for and adaptable to the District Court.

VI. RETRIALS

Recommendation 90: The right of the Crown to maintain a prosecution after the jury has failed to reach agreement at two previous trials should continue to be a matter within the discretion of the Crown.

10.43 In our Discussion Paper (para 9.22) we raised the issue whether a prosecution should be competent after the juries at each of two previous trials have failed to agree on a verdict. This question will have to be considered in conjunction with the question whether jury verdicts should be unanimous. If unanimous verdicts are retained, the argument in support of this proposition is less compelling. We acknowledge that there may be circumstances in which the prosecuting authorities have legitimate grounds for departing from the usual practice followed in New South Wales. That practice is that, if there have been two consecutive disagreements, then a third trial will not be held. The submissions we received on this issue were more or less evenly divided. For these reasons we have decided that this should continue to be a matter at the discretion of the prosecution.

VII. COST SAVINGS FROM OTHER PROPOSALS

10.44 In this chapter we have outlined proposals which have the reduction of costs as their primary goal. The following recommendations have been proposed elsewhere in our Report for reasons other than their likely cost savings. They may nevertheless result in substantial savings in time and money for jurors, the State or both.

• The reduction in the number of peremptory challenges available to each party (Recommendations 18,19, para 4.59) has been put forward in order to ensure a more representative jury. It would also reduce the number of prospective jurors required to be summoned for any given trial. This would result in a reduced workload for those responsible for providing juries and reduced expenditure on payments to people who do not actually serve.
• Supplying prospective jurors with more complete information about, for example, the jurys task, the categories of people who are disqualified, ineligible or may claim exemption as of right and the estimated length of the trial (Recommendations 30-34, paras 6.4-6.12) should lead to a reduction in the inconvenience caused to prospective jurors who attend at court unnecessarily, a reduction in the time spent in determining whether or not people should be excused from jury service and a reduction in the fees and expenses paid to people who do not actually serve on juries.
• Increasing the amount of written materials provided to the jury (Recommendations 48-51, paras 6.32-6.37) may result in the jury understanding the issues in the case more quickly, and perhaps lead to consequent reductions in the time taken for the presentation and explanation of evidence.
• The measures designed to avoid mistrials occurring as a result of prejudicial publicity (Recommendations 61, 62, paras 7.31, 7.32) should result in substantial savings of court time in any case where the abandonment of a trial is avoided. Bearing in mind that the cost of a criminal trial to the State is estimated to be $10,000 per day, the financial rewards for preventing mistrials assume significant proportions.

1. Rt Hon Sir Harry Gibbs, Chief Justice of Australia, keynote address at the opening ceremony of the Third International Conference of Appellate Judges in New Delhi, 5 March 1984.

2. Jury Act 1977 s19.

3. Section 22.

4. R v Bebic and Others (unreported) Supreme Court of New South Wales, Maxwell J, 17 February 1981. In Queensland one trial, the Russell Island case, took 15 months. The jury was discharged without verdict after 13 days deliberation when one juror was unable to continue due to the strain the proceedings had caused.

5. F Gaffy QC, Commissioner, Law Reform Commission of Queensland, personal communication. See Jury Act 1929 (Qld) s17; Juries Act 1957 (WA) sl8; Juries Act 1962 (NT) s37A.

6. American Bar Association Projects on Minimum Standards for Criminal Justice: Standards Relating to Trial by Jury (1968) p80.

7. Jury Act 1977 s22.

8. See the research reported by R Hastie et al “What Goes on in a Jury Deliberation” (1983) 69 American Bar Association Journal 1848 p1852.

9. Pannam, amongst others, is of the view that only 12 member Juries have the essential characteristics of a jury: See C L Pannam “Trial by Jury and Section 80 of the Australian Constitution” (I 968) 6 Sydney Law Review 1.

10. Law Reform Commission of Canada The Jury (Report 16, 1982) pp56-57.

11. A D Gold “Juries” (1984) 16 Ottawa Law Review 352 p357.

12. Id p358.

13. Ibid.

14. D R Heather Snow’s Annotated Criminal Code Release 20 December 1985 p17-39.

15. Jury Act 1977 s24.

16. Id s24(1)(c).

17. Id s24(3)(a). As to the rights of challenge, see para 4.57 and following.

18. For example the bare minimum required for a trial of three people jointly accused of murder would be 132. This would allow no leeway for excusals, the rate of which would rise steeply if the trial is estimated to be lengthy. If an estimate of an 8 week trial were given for such a matter. the Sheriff would usually be directed to summon about 50 people.

19. Even if a person is not balloted and is sent home on the morning of the first day of the trial, that person is entitled to $23.00.

20. Crimes Act 1900 s409.

21. Crimes Act 1900 475A

22. Department of the Attorney General, Criminal Law Review Division Summary Prosecution in the Supreme Court of Corporate and “White Collar” Offences of an Economic Nature (1978).

23. Attorney General of New South Wales v Chambers, (unreported) Supreme Court of New South Wales, Roden J, 24 June 1983.

24. Shorter Trials Committee of the Victorian Bar Report on Criminal Trials (September 1985) P199.

25. Martins Criminal Code (1984) pp398, 467, 484 ff.

26. Juries Act 1927 (SA) s7.

27. Note 9.

28. Id pp22-23.

29. Juries Act (SA) 1927 s7, Juries Rules 19874 rr 1 4-24. See also Powell “The State of the Jury” (1985) Law Society Bulletin 139.

30. For example some offences under the Clean Air Act 1961, the Clean Waters Act 1970 and the Noise Control Act 1975.