I. THE GOALS TO BE ACHIEVED

3.1 Once we had reached the conclusion that the jury system should be retained in serious criminal cases, the fundamental issue had been answered. This does not go far, however, towards completing our task. Whilst we have concluded that there is no present need for substantial change, we do consider that the operation of the jury system is in need of improvement. The remaining chapters of this Report deal with different ways in which the system might be improved. The titles of the chapters express the goals which reform of the jury system should achieve.

A. Ensuring a Representative Jury: Chapter Four

3.2. The goal is to make juries more representative of the general community and thereby ensure that juries possess the broadest possible range of views, opinions and experience. From another point of view, this may be seen as distributing the burden of jury service across a wider range of the community so as to lessen the extent of that burden on each individual citizen. Alternatively, it may be seen as extending one of the privileges of citizenship to a greater number of people.

B. Protecting the Jury: Chapter Five

3.3 The goal is to protect the jury from improper interference, which may take the form of harassment, intimidation or even physical violence. Whilst we have not found interference with juries to be a practical problem in New South Wales, we recognise, in the light of overseas experience, the need to prevent it. We consider that the enhancement of security will increase the efficiency of the jury system by reducing the level of apprehension and by eliminating an influence which may discourage people from serving as jurors.

C. Making the Jury’s Task Easier: Chapter Six

3.4 The goal is to make the task of the jury in a criminal trial easier. After examining the way juries operate in practice, we have identified a number of areas where the jury can be given assistance in understanding both the role it plays In general and the law and evidence in the case presented to it. Whilst many of these are relatively minor improvements, their cumulative effect should be significant in ensuring that the jury is better informed and better equipped to perform its function in a criminal trial.

D. Reducing Bias and Prejudice: Chapter Seven

3.5 The goal is to reduce the incidence and appearance of bias and prejudice in criminal trials. We make certain recommendations designed to eliminate actual bias. We consider that in many instances the existence of bias is more imagined than real. There is nevertheless much to be said for reducing the potential for prejudice so that justice is not only done but is seen to be done. Accordingly, we have suggested that some positive measures be implemented to achieve this end. The procedures we have recommended should result in fewer trials being interrupted or abandoned because of prejudicial influences.

E. Promoting Satisfactory Verdicts: Chapter Eight

3.6 The goal is to make jury verdicts clearer, more certain and more reliable. To some observers the current practice leaves room for debate about the meaning of the verdict and for disquiet about its accuracy. The recommendations we have made in this regard are designed to make jury verdicts more acceptable to the participants in the trial and to the community at large.

F. Requiring the Verdict to be Unanimous: Chapter Nine

3.7 In this chapter we discuss whether majority verdicts should be introduced. Arguments for and against the rule which requires that jury verdicts be unanimous are considered. Our conclusion is that the present requirement of unanimity should be retained.

G. Saving Time and Money: Chapter Ten

3.8 The goal is to introduce procedures which contribute to the efficiency of the jury system by saving time or reducing costs. Whilst we expressly identify this as one of our goals, we emphasise that fairness is a more important feature of jury trials than mere efficiency measured either in financial terms or by reference to the level of inconvenience which jury trials cause. Whilst efficiency is desirable, fairness is essential.

H. Disclosing Jury Deliberations: Chapter Eleven

3.9 In this chapter we consider the extent and nature of disclosure which may legitimately be made by jurors after their deliberations have been completed. The publication of such disclosures and their admissibility as evidence in subsequent legal proceedings are related topics for consideration.

II. INTERDEPENDENCE OF OUR RECOMMENDATIONS

3.10 In formulating our recommendations for improving the way in which the jury system operates in the criminal courts, It has been necessary to bear in mind the way in which various parts of the system are interdependent. Changes In one area may have an impact on another area, sometimes in a way that is not readily apparent. We have made our recommendations after considering these links. For the same reason, these recommendations should be regarded as a group of proposals which, taken together, will improve the way in which the jury system operates. Some of these proposals may be isolated from others without affecting the remainder. We would caution, however, against selective implementation without serious consideration being given to the way in which the proposal in question relates to the other recommendations we have made. For example, the recommendation we make in Chapter 4 regarding the rights of peremptory challenge are closely linked to other recommendations for procedures to eliminate bias and for the protection of jurors.

III. IMPLEMENTATION OF OUR RECOMMENDATIONS

3.11 The recommendations we have put forward could be implemented by one, or in some cases by a combination, of the following:

• legislation giving effect to procedures of universal application;
• administrative arrangements to be made by the Attorney General’s Department and in particular by the Office of the Sheriff; and
• procedural changes effected by participants in the criminal justice system simply changing the way in which certain things are done.

3.12 Because there are different means of implementing the recommendations we make, we will, in the case of each recommendation, identify the way in which we consider it should be implemented. Those procedures which we consider should be adopted universally will often be best achieved if they were to be made binding upon the courts by legislation. Other procedures may be suitable in some cases, unsuitable in others. In that case, it may be appropriate for the matter to be left to the discretion of the judge to determine whether or not the suggested procedure is suitable in a particular case. Some of the other changes we propose are not the concern of the courts, at least in the first instance.

3.13 We have also considered whether it is desirable for a Code to be enacted to declare and regulate the procedure related to the administration of the jury system.¹ The legislation which currently operates in this field is the Jury Act 1977. This legislation represents a comprehensive review of the law relating to juries which does not require major changes. The implementation of those recommendations which we consider should be the subject of legislation can be effected by amending the current legislation.

IV. AREAS FOR FUTURE CONSIDERATION

3.14 From time to time we will raise issues which are not finally dealt with in this Report. This is a practical illustration of the interdependent nature of the various components of the criminal justice system we have referred to above., For example, when we discuss the possibility of changing the manner in which cases are presented to the jury, we come into the field of evidence law reform. Some of the proposals which we might like to make to assist jurors amount to fundamental changes in the law of evidence. Where such a position is reached, we take the approach of sign posting the possibility that further research in another field might benefit the jury system. It would be impractical and far beyond the boundaries of our immediate inquiry for us to attempt to proceed any further into that other field. Apart from the laws of evidence, there are three major topics which need to be examined thoroughly as a possible source of effective improvements for the jury system, but which cannot, for reasons of practicality and utility, be dealt with here. They are:

• the general law of contempt so far as it relates to the publicity of criminal proceedings and the right to comment upon the decisions of courts. This topic is discussed in Chapters 7 and 11;
• the development of standard form directions on matters of law, requiring a thorough examination of the current position and experiments to see whether suggested changes are likely to be effective. This is referred to in Chapter 6; and
• the classification of substantive criminal offences, a task which may result in the simplification of the criminal law and a consequent increase in the level of juror comprehension. This topic is raised in Chapter 8.

We should add that each of these matters falls squarely within the terms of the Commission’s reference on Criminal Procedure. They will be further examined in a context which we consider is more appropriate than a Report which is exclusively concerned with the operation of the jury system in criminal trials.

3.15 Many of the matters upon which we make specific recommendations, and others to which we merely make reference, will be kept under review as we proceed through the broad terms of the Criminal Procedure Reference. This is, again, an illustration of the interdependent nature of the rules of criminal procedure. Some of the conclusions we have reached in the course of preparing this Report will be re-examined. It may be that in some cases we will need to reassess those conclusions in the light of further research and greater experience. At this stage, however, we put forward our recommendations with the firm conviction that they will improve the operation of the jury system in criminal trials.

1. For an example of this approach see the Report of the Canadian Law Reform Commission The Jury (Report 16, 1982).