I. INTRODUCTION AND BACKGROUND

4.1 Chapter 1 of our Discussion Paper reviewed the historical development of the role of the jury in the criminal justice system. Since juries were introduced for criminal trials in New South Wales in 1832¹ there has been a clear pattern of gradually extending the range of eligibility to serve as a juror. Property qualifications were abolished in 1947. Women, who were previously eligible only upon volunteering to serve, became qualified and liable to serve in the same way as men in 1977.² The Jury Act 1977 also effected a significant reduction in the number of people previously entitled to claim an exemption from jury service. The primary aim of the Act, as stated by the then Attorney General, the Honourable F J Walker, QC, MP, when introducing it in the Parliament, was that:

. . . jury service, so far as practicable, will be shared equally by all adult members of the community.³

4.2 In consequence of these legislative and administrative developments, the group of people from which a jury Is selected in a modern criminal trial in New South Wales is reasonably representative of the community at large. Our surveys conducted in late 1985 confirmed this, although they revealed that certain sections of the community were under-represented on jury rolls.⁶ In this chapter we consider whether the representative character of the jury can be enhanced.

4.3 At the outset we examine why the principle of sharing the responsibility for jury service is an important value. The representative character of the jury ensures that it performs its essential function of maintaining the values applied in the administration of criminal justice in accordance with the standards of ordinary people. The public clearly has a vital interest in the proper administration of justice. The jury is the most important means by which members of the public can observe the system at work and participate in it. This fosters a greater sense of community responsibility for the overall effectiveness of the system. As we have already observed in outlining the values on which this Report is based, community participation is one means of ensuring that accountability is preserved as a real and practical feature of the system of criminal justice.

4.4 It is proper that a jury should bring to bear the broad community conscience and that it should temper technical or legal considerations with what it regards as more general standards of fairness and justice. The jury’s unique character has been described by Justice William O Douglas, formerly of the Supreme Court of the United States, in this way:

A jury reflects the attitudes and mores of the community from which it is drawn. It lives only for the day and does justice according to its lights. The group of twelve, who are drawn to hear a case, makes the decision and melts away. It is not present the next day to be criticized. It is the one governmental agency that has no ambition. It is as human as the people who make it up. It is sometimes the victim of passion. But it also takes the sharp edges off a law and uses conscience to ameliorate a hardship. Since it is of and from the community, it gives the law an acceptance which verdicts of judges could not do.⁷

. . . among the twelve jurors there should be a cross-section of the community, certainly not usually accustomed to evaluating evidence, but with varied experiences of life and of the behaviour of people.⁸

4.7 As a general rule jury service is a civic duty for which every citizen should be liable. It should be recognised and appreciated as an important source of cohesion within the community. However, because it may impose a burden of inconvenience and disruption, it should be equally shared among the members of the community. Insofar as the jury reflects the conscience of the community, universal representation improves the jury’s ability to express the conscience of the whole community. By serving on a jury, the individual citizen is given the chance to participate in setting the standards which the community should observe, if only in an isolated instance in relation to a single accused person. The accumulation of the decisions of juries will, however, reflect an overall community standard for the determination of guilt in serious criminal cases.

4.8 What follows from these conclusions is that legal and administrative measures should ensure that all members of society who are competent to participate as jurors should have an equal chance of actually serving. There are two clearly identifiable exceptions to the general rule. The first is that those whose presence would be inimical to the aims of achieving and appearing to achieve fairness in the criminal justice system should not be allowed to serve as jurors. The second is that those whose work is of such importance that society expects them to give their complete attention to that work should not be required to perform jury service. In dealing with the latter exception, we shall bear In mind that the jury service requirements are capable of modification, within limits, so that people who would not be available to serve in long trials would still be available to serve in short trials.

4.9 The goal of making the jury as representative as possible needs to be approached at each of the three levels at which selection or exclusion of potential jurors takes place. This commences with the compilation of the jury rolls, continues to the time when a person is summoned to serve and extends as far as the empanelling of the jury at trial.

II. COMPILATION OF JURY ROLLS

A. The Draft Jury Roll

Recommendation 3: Section 9(2) of the Jury Act 1977 should be amended to provide that every electoral subdivision shall be assigned to a particular jury district.

4.11 Section 5 of the Jury Act provides:

Subject to this Act, every person who is enrolled as an elector for the Legislative Assembly of New South Wales pursuant to the Parliamentary Electorates and Elections Act 1912, is qualified and liable to serve as a juror.

4.12 The new allocation omits only five subdivisions, namely Baradine, Coonabarabran, King (Lord Howe Island), Tottenham and Tumbarumba. The reason for each of these omissions is clear. Each is a great distance from the nearest courthouse. We consider, however, that this is an insufficient reason for excluding these subdivisions. A person living more than 56 kilometres from the courthouse at which he or she is required to attend for jury service may claim an exemption as of right. These people should be given the opportunity to determine this matter for themselves. Even if it is the case that all people in the five excluded subdivisions will claim an exemption, this would not greatly Increase the administrative burden for the Sheriff. This would, however, establish the important principle that all adult citizens of New South Wales are equally liable and equally entitled to serve on a jury. The populations of those subdivisions are relatively small and only a small percentage would be likely to be selected for any one draft jury roll.

4.13 The results of our survey of the practice of compiling jury rolls reveal that some groups within the community are under-represented on jury rolls. The particular group which is of concern is young adult males. 28.7% of adult males are under 30. Only 22.5% of the male prospective jurors surveyed were under 30. 23.6% of the male jurors surveyed were under 30. We cannot be certain of the reasons why members of this group are not proportionately represented on juries. it may be because they are not on electoral rolls, or simply that they do not attend courts in answer to a jury summons with the same frequency as other groups. On the other hand, it may be that because they are a more mobile section of the general population they do not always receive the jury summons, or it may be that they are more likely to fall within those classes of people who are disqualified, ineligible or exempt as of right. Whilst the significant under-representation of any group is undesirable, the under-representation of young adult males is of particular concern since the overwhelming majority of accused people come from this group. Since we are not able to cite with any confidence the reason for the under-representation of young adult males, we do not think It appropriate to make any specific recommendation to meet this problem. We note, however, that consideration might be given to using an additional source for the names of potential jurors. Jury rolls could be compiled from lists of licensed drivers as well as the electoral rolls. This system is used in many parts of the United States, apparently with success.

Recommendation 4: The Sheriff should increase the size of jury rolls so as to make it likely that a person on the roll will only be summoned once for jury service during the currency of the roll.

B. Grounds for Deleting People from the Jury Roll

4.15 Certain people are disqualified from serving as jurors,¹¹ others are ineligible to serve,¹² and others are entitled as of right to be exempted from serving as jurors if they claim exemption.¹³ These three categories involve people whose names are deleted from the draft jury roll. There is another important group to consider in this context, namely those who are on the jury roll but who, after being summoned for jury service, are excused “for good cause” by the Sheriff from attending court or by a judge when they attend.¹⁴ These processes recognise that the principle of representativeness must yield to other values in particular cases, notably the requirement that people who are regarded as incapable of performing jury service adequately or whose presence on a jury might create or give the appearance of bias, or cause undue hardship to themselves or others, should not be required to serve.

4.16 We have examined the sections and schedules of the Jury Act 1977 which require or permit people who are selected for a jury roll or to answer a jury summons to be relieved of their obligations to serve. This has been done in conjunction with our survey of the compilation of the Penrith, Newcastle-Cessnock and Dubbo-Bathurst-Lithgow jury rolls and has led the Commission to recommend a number of specific changes.

1. People Disqualified from Serving as Jurors

Recommendation 5: Schedule 1 to the Jury Act 1977 should be repealed and recast so as to disqualify:

1. a person who at any time within the last ten years in New South Wales or elsewhere has served any part of a sentence of imprisonment or penal servitude;

2. a person who at any time within the last five years in New South Wales or elsewhere has been detained in an institution for juvenile offenders having been found guilty of an offence; and

3. a person who is currently bound by an order of a court made in New South Wales or elsewhere pursuant to a criminal charge or conviction.

1. A person convicted in New South Wales or elsewhere of

(a) treason;

(b) an offence carrying a penalty of imprisonment, or penal servitude, for life; or

(c) any offence and sentenced to imprisonment, or penal servitude, for a term exceeding 2 years.


2. A person who at any time within the last 10 years in New South Wales or elsewhere -

(a) has served any part of a sentence of imprisonment or penal servitude or has been on parole In respect of any such sentence; or

(b) has been found guilty of an offence and detained in an institution for juvenile offenders.


3. A person who at any time within the last 5 years in New South Wales or elsewhere-

(a) has been convicted of any offence which may be punishable by imprisonment or penal servitude;

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

(c) has been the subject of a probation order made by any court; or

(d) has been disqualified by order of a court from holding a licence to drive a motor vehicle or omnibus for a period in excess of 6 months.

4.19 The current law is unsatisfactory in that it disqualifies from jury service people who may have been convicted of relatively minor offences in the preceding five years. In our view this is too long. On the other hand, the current law does not disqualify people who have been charged with criminal offences, but who have not yet had those charges finalised. We consider that this group should, because of the currency of their association with the criminal justice process, be disqualified.

4.20 The concept of being “bound by order of a court pursuant to a criminal charge or conviction” should include people who are currently on probation, subject to community service orders, disqualified from driving, subject to undischarged recognizances, released on bail pending trial or sentence, or remanded in custody pending trial or sentence.

4.21 Several people made submissions to us which criticised the harshness of the current law, insofar as it relates to the rights of people previously sentenced to imprisonment or detention in an institution for juvenile offenders. We are conscious of the fact that modern penological theory has emphasised the importance of rehabilitation, and that many governments are examining the issue of the expungement of criminal convictions.¹⁵ We consider, however, that people convicted of offences which were regarded as sufficiently serious to justify the imposition of a custodial sentence, should not be qualified to serve as jurors until a substantial time has elapsed since the expiry of that sentence.¹⁶ Our recommendation avoids some of the harsh consequences of the current provisions, while at the same time respecting the rationale for disqualification described above. We consider that there should be a distinction between adult and juvenile offenders. A person who has not re-offended within five years of being released from an institution for juvenile offenders should be entitled to serve on a jury.

2. People Ineligible to Serve as Jurors

4.22 A person is ineligible to serve as a juror if he or she is a person referred to in Schedule 2 to the Jury Act.¹⁷ Schedule 2 describes 24 categories of persons ineligible to serve. These categories are designed to exclude, among others, those who would be unable to serve effectively on a jury,¹⁸ those who are directly associated with the administration of justice or the enforcement of the law¹⁹ and those who have an occupation which is of such public importance that they ought not to be at risk of being called away to serve on a jury.²⁰ We have examined the categories listed in Schedule 2 and recommend that there should be several amendments.

Recommendation 6: Commonwealth public servants should be available to perform jury duty in New South Wales unless they are otherwise Ineligible.

Recommendation 7: The spouse of a person who is, by Schedule 2 to the Jury Act 1977, ineligible for jury service by virtue of that person’s association with the administration of justice or the enforcement of the law, should continue to be ineligible.

Recommendation 8: Where the spouse of a person of a nominated occupation is made ineligible for jury service by Schedule 2 to the Jury Act 1977, a de facto partner of a person of that nominated occupation should also be ineligible.

. . . while shared attitudes may exist in some cases the Commission is not aware of any research which shows that this is so to any significant extent, or that the spouses of those concerned are not as capable as anyone else of fulfilling their duty as jurors. If spouses of those in ineligible occupations are to be made ineligible, so probably should their children, parents, relations or even close friends. It would be undesirable in principle to extend ineligibility so far.²⁶

4.26 This does not dispose of the matter at issue. Our conclusion that spouses of those in ineligible occupations should not be eligible for jury service leads us inevitably to the position that de facto spouses should also be excluded. The definition of a de facto relationship is now well understood by the law. It is used in various statutes which courts and tribunals have not found unduly difficult to interpret and apply.²⁸ The term “de facto partner” is defined for the purposes of the De Facto Relationships Act 1984 to mean:

(a) in relation to a man, a woman who is living or has lived with the man as his wife on a bona fide domestic basis although not married to him, and

(b) in relation to a woman, a man who is living or has lived with the woman as her- husband on a bonafide domestic basis although not married to her.

Recommendation 9: Any person who has at any time held the position of judge, magistrate, Crown prosecutor, public defender or police officer should be ineligible for jury service: Schedule 2 to the Jury Act 1977 should be amended accordingly.

4.28 We are conscious that none of the other categories of ineligible people include people who are former members of that group. Former prisoners are disqualified for ten years, but no other exclusions are made by reference to what a person once was. The reason for our recommendation relating to police officers is not that we consider them likely to have an attitude of mind making them unsuitable jurors, but because of the very nature of their association with the criminal law. Their exclusion from juries would contribute to the cause of justice being seen to be done. For similar reasons, we consider that former judges, magistrates, Crown prosecutors and public defenders should be ineligible for jury service.

Recommendation 10: Any person who has actually served on a jury within the previous three years should be ineligible for jury service: Schedule 2 to the Jury Act 1977 should be amended accordingly.

Recommendation 11: The ability to read English should continue to be a qualification for jury service. It would be good practice for the judge to direct the jury panel that any person who cannot understand and read English is ineligible and should advise the court.

3. People who may Claim Exemption as of Right from Jury Service

4.31 Certain people are entitled to be exempted from serving as a juror if they claim exemption in the appropriate manner. Schedule 3 to the Jury Act contains the following categories of people who may claim exemption:

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(l) 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,


central rescue station under the Mines Rescue Act, 1925.

A General Category of Hardship?

4.33 In our Discussion Paper we raised the issue whether the categories in Schedule 3 should be deleted and replaced by a single category which would provide that the only ground for exemption as of right should be hardship to the applicant or to others. Approximately 50% of people whose names are deleted from draft jury rolls claim exemption under one or other of the categories listed in Schedule 3.³⁷ The Commission was at one stage minded to recommend that a single ground of “public necessity and personal hardship” should replace the multiplicity of specific categories nominated in providing for exclusion from jury rolls. We decided against this for two reasons. The existing arrangement promotes administrative efficiency and is a public statement, which has been endorsed by the Parliament, of the classes of people who should be entitled to exemption. This is preferable to having this important decision left in the hands of a public official whose unpublished criteria for excluding certain classes might be perceived as unduly favouring particular groups within the community. If these criteria were to be published, we are sure that they would closely resemble the current law in any event.

4.34 If there were a single general category of hardship we would expect the Sheriff to formulate guidelines which would include sub-categories of exemption and that, in practice, people would secure exemption virtually automatically by showing that they fell within those sub-categories. It would be unduly burdensome to require every applicant for exemption to have to write a letter explaining the grounds on which he or she claims hardship, particularly where it is patently obvious that such hardship exists as to make jury service out of the question. It is, we conclude, simpler to retain various fixed categories of exemption, leaving it to the Sheriff to determine whether people who claim exemption fall within those categories. Should a person who is entitled to exemption either neglect or fail to obtain it there remains the Sheriff’s and the court’s power to excuse a person actually summoned to serve as a juror as the appropriate means of providing for those where hardship escapes the protective net of Schedule 3. We have also considered the possibility of including in Schedule 3, as a supplement to the existing categories, a general category of personal hardship. We have decided against this primarily on the ground that it would probably encourage a large number of applications putting forward grounds which may be sufficient for excusal on a particular occasion but insufficient to justify deletion from the jury roll.

Recommendation 12: The age at which a person is entitled to claim exemption as of right from jury service on the ground of advanced age should be raised from 65 to 70 years: Schedule 3 to the Jury Act 1977 should be amended accordingly.

Recommendation 13: People who have a conscientious objection to serving on a jury in a criminal trial should be entitled to claim exemption as of right from jury service: Schedule 3 to the Jury Act 1977 should be amended accordingly.

4.37 Other proposals for changes to Schedules 2 and 3 were raised in our Discussion Paper (paras 3.25, 3.26 and 3.28), or were proposed in the consultation phase of this Report. For various reasons, the Commission decided not to include them as recommendations in this Report. The following proposed changes were considered but ultimately rejected.

• People aged 70 or over should be ineligible for jury service.
• People who have the responsibility of caring for young children should no longer be exempt as of right. At the same time child care facilities should be made available near the courts at which people are required to attend for jury service.
• People who have legal qualifications or who are law students at a recognised institution should be ineligible for jury service.
• People who are physically handicapped should be encouraged to perform jury service by the provision of facilities in courthouses which improve access to, and accommodation in, those buildings.
• People who are employed by barristers and solicitors should be ineligible for jury service on the ground that they are indirectly associated with the administration of justice.
• For the same reason, the spouses and de facto partners of barristers and solicitors should be ineligible for jury service.
• People who are employed in sole enterprises or who work in a one person business which would be crippled by the requirement to serve on a jury should be entitled to claim exemption as of right.

4.39 We consider that people who are self-employed represent too vague a category to be included in the class of people who may claim exemption as of right. People in this group may be liable for jury service on some occasions, particularly where the trial is a very short one, but it is clearly unsuitable to require them to serve where the trial is expected to be lengthy or where the demand for their services is such that jury service would impose undue hardship on the person in question or on others who may be dependent on them. People on the land, for example, experience times when they are indispensable, others when their presence is not required daily. The decision in situations of this kind is best left to be made in the light of the circumstances at the time the person is called for jury service. Whilst we do not consider that self-employed people should be exempt from inclusion on the jury roll, we acknowledge that they may have compelling grounds for excusal on a particular occasion.

4.40 This completes our consideration of the categories of people who, because of disqualification, ineligibility or exemption as of right, should not be included on the rolls from which prospective jurors are selected. We reaffirm the general principle that the responsibility for jury service should be shared among the whole community. The main reason for this principle is that juries should be broadly representative of the community. We also consider that jury service will be more acceptable to the individual called upon to serve if he or she is aware that it is the common duty of almost all members of the community. When people receive a Notification of Inclusion on a Draft Jury Roll making them liable to be called up for jury service at some time during the next three years, their reaction will not be “Why me?” but rather “Now it is my turn”.

III. SUMMONING A JURY

A. Excusing People from Jury Service on a Particular Occasion

4.41 Once a person is on the jury roll, he or she is liable to be called for jury service. This is done by sending a summons to attend a courthouse on a nominated day. Upon receipt of a summons, the person has the right to apply to the Sheriff to be excused. The Sheriff has a discretion to grant an application to be excused “for good cause’’.⁴² The Commission conducted a survey over a three-month period to determine the grounds on which the Sheriff grants these applications. The grounds which we found to be prominent were:

travel plans for holiday or business (70 of 159 applications)	44.0%;
self-employed (22 of 159)	13.8%
temporary care of children or sick relatives (17 of 159)	10.7%; and
temporary illness (13 of 159)	8.2%.

One excuse which the Sheriff usually does not accept is that the prospective juror is needed at his or her place of work.

4.42 If the Sheriff refuses an application to be excused the person summoned must attend at court. At that stage, a personal application may subsequently be made to the presiding judge for excusal from service at the particular trial. Prospective jurors who have not asked the Sheriff for excusal may also make an application of this kind. The fate of these is a matter for the discretion of the judge. We have examined the practice of judges presiding at criminal trials over a three-month period. Our survey covered 197 trials at which a total of 633 personal applications for excusal were made. Of these, 549 (86.7%) were successful. Some of the more frequently used grounds on which excusal was granted were:

employment difficulties		29.1%;
ill health		14.1%;
self employed		11.8%;
trip planned		10.7%; and
care of the young or the sick		9.0%.

The power of both the Sheriff and the presiding judge to grant applications to be excused on a particular occasion is an important power which should be retained. This power acts as a safeguard against possibly harsh results flowing from the limitation of the number of grounds for exemption. It also provides discretionary powers which are wide enough to enable the judge to excuse prospective jurors for any reason which serves the legitimate interests of the parties.

B. Jury Vetting

Recommendation 14: The practice of “Jury vetting” as used in the United Kingdom, whereby the prosecuting authorities make special inquiries regarding the background of the prospective jurors, should not be introduced in New South Wales.

. . . political beliefs are so biased as to go beyond normally reflecting the broad spectrum of views and interests in the community to reflect the extreme views of a sectarian interest or pressure group to a degree which might interfere with [their] fair assessment of the facts of the case or lead [them] to exert improper pressure on [their] fellow jurors.⁴⁶

4.44 The expression ‘Jury vetting” is also used to describe the more general practice whereby police check the criminal records of prospective jurors. In England the practice of merely checking police records has developed so that the police have been able to pass on to prosecution counsel any information revealed by the checks, even if that information does not statutorily disqualify a prospective juror.⁴⁸ This practice is said to occur in a number of other jurisdictions as weII⁴⁹ but in New South Wales the Jury Act 1977 prohibits inspection of the panel by anyone before the trial.⁵⁰

4.45 We consider the practice of jury vetting in either of its forms to be inherently improper, primarily on the ground that it offends against the principle of random selections⁵¹ An editorial in The Times described the practice as “a significant dent in the principle of random selection of juries’’.⁵² There are, however, other reasons for our recommendation that the practice of jury vetting should not be used in New South Wales. In the first place, it is by definition a secret exercise. The prospective jurors concerned have no means of knowing whether the facts upon which the challenge is based are true. The secrecy of the practice also allows the possibility for vetting beyond that which is authorised.⁵³ Secondly, the law relating to Crown privilege is by itself sufficient to ensure that sensitive information need not be disclosed to the wrong people. There is, putting it simply, no demonstrated need for jury vetting in New South Wales. Thirdly, the practice is exclusively in the hands of the prosecuting authorities. By permitting the Crown to manipulate the composition of the jury panel it is given an unconscionable advantage in the process of jury selection.

C. Personal Applications to the Judge

Recommendation 15: It would be good practice for personal applications to a judge to be excused from jury service to be made where practicable in the presence and hearing of the accused person and counsel for the prosecution. Where an unsuccessful personal application is made in their absence, they should be advised of that fact.

4.47 The fact that a person is a reluctant juror should be known to both the accused person and the prosecution. Indeed, it would be desirable for the parties to know the grounds on which the juror asked to be excused. Both the Crown and the accused person may have good reason to think that a reluctant juror may not be a suitable juror. The grounds on which exemption is claimed may be an important factor in exercising the right of peremptory challenge. In extreme cases those same grounds may legitimately be the foundation on which a challenge for cause is based. Notwithstanding the fact that the presiding judge does not consider that the application to be excused is justified, either or both of the parties might regard the fact of unwillingness to serve or the grounds for it as being important. Accordingly, where an unsuccessful application of this kind is heard in the absence of the accused person and counsel for the prosecution, it should either be repeated in their presence or they should be informed of that fact.

D. Procedures to Exclude Bias in a Particular Trial

4.48 Elsewhere in this Report⁵⁴ we have made recommendations which would, if implemented, affect the selection of jurors at trial. In particular, we recommend⁵⁵ the adoption of procedures designed to reduce the prospect of people who may be biased acting as jurors in a particular trial. One aspect of the proposed procedure is dependent upon an application being made by counsel to the judge.⁵⁶ It is suggested that the other should be used as a matter of course. Each of them should have the effect of excluding jurors who would otherwise be excluded by relying on the traditional forms of challenge.

IV. THE RIGHTS OF CHALLENGE

4.49 The rights of challenge were dealt with in our Discussion Paper (paras 4.8-4.22). This was one of three topics that provoked the greatest discussion within the Commission and among those who made submissions to the Commission. There are three traditional forms of challenge which must be considered: the challenge to the array, the challenge for cause and the peremptory challenge. We also consider an additional type of challenge which we refer to as “consent challenges”.

A. Challenge to the Array

4.50 A challenge to the array is a challenge to the constitution of the entire jury panel. It may be made either by the accused person ‘ or the Crown and is essentially based on the unrepresentative or unsuitable nature of the panel from which the jury is to be chosen. It is a common law right which has been preserved in the current Jury Act.⁵⁷ In order to challenge the array successfully, the applicant must show that the Sheriff has failed to comply with the provisions governing the selection and summoning of jurors.⁵⁸ The question of relevance to the issue of representativeness which was raised in our Discussion Paper (para 7.12) is whether judges should be empowered to order that members of the social or peer group of the accused person should be included on the jury. The notion of “trial by a jury of one’s peers”,⁵⁹ in the very strict sense of a trial by a jury of people who are of similar ethnic background, sex, age or economic status as the accused person, is not valid. The jury should be drawn randomly from a wide cross-section of the community. In New South Wales this is achieved by making the entire adult population, subject to certain nominated exceptions based on public necessity or personal hardship, eligible for jury service. As a matter of principle, the jury should be representative of the whole of the population of the State, not that segment of the population which shares certain characteristics with the accused person. Quite apart from the question of principle involved, a provision requiring the selection of a jury of the direct peers of an accused person would create immense practical difficulties. On what basis would the peer group of the accused person be determined? Would it be similarity of age, occupation, race, religion, some other significant characteristic or perhaps a combination of all of these?

4.51 The elimination of bias and the overriding principle that justice should be seen to be done are positive attributes which should be actively pursued. In Recommendation 21 (para 4.74) we propose that the power of a judge to discharge the jury where the selection process has been unfair should be affirmed.

B. Challenges for Cause

Recommendation 16: The Jury Act 1977 should be amended to confirm that the right to challenge a particular juror for cause may be exercised before or after all rights of peremptory challenge have been exhausted.

4.53 One of the submissions made to us⁶⁶ revealed that the practice of at least one judge is not to allow a challenge for cause to be made until the rights of peremptory challenge have been exhausted. In our view this approach Is at best undesirable. The right of challenge for cause is different in nature from the right of peremptory challenge. The exercise of that right should not be dependent upon an arbitrary factor, namely whether all available peremptory challenges have been made. Our recommendation will clarify the present practice. In every other respect there should be no change to the current law relating to challenges for cause.

Recommendation 17: The United States procedure of conducting an examination of prospective jurors as a prelude to the exercise of the right of challenge should not be introduced in New South Wales.

4.55 One of the submissions we received proposed that a restricted version of the “voir dire” examination of jurors should be introduced in New South Wales. It was suggested that counsel for the Crown and the accused could advise the judge of specific questions they wanted to put to the members of the jury panel to determine the existence of potential bias and prejudice. Such questions as were approved would then be asked by the judge, thereby avoiding the risk of improper questioning of the prospective jurors. The exercise of challenges, both for cause and peremptorily, would follow. This procedure would considerably lengthen criminal trials, both by the time taken to settle the issue of whether the questions were necessary and then by the questioning process itself. It must be remembered that in the “voir dire” examination the members of the jury panel are asked questions. At the trial of an individual accused person, the jury panel usually numbers in excess of forty people.

4.56 The procedures we suggest below in Recommendations 57 and 58 (paras 7.19-7.25) are designed to reveal sources of potential bias before the empanelling process begins and are a more efficient means of eliminating bias and prejudice⁷³ which is the ultimate purpose for which the “voir dire” examination is conducted in the United States. They are more efficient in the sense that they would take less time and would not be as intrusive for the prospective jurors. At the same time they would serve to ensure that the jury selected for the trial is impartial.

C. Peremptory Challenges

4.57 After the accused person pleads not guilty to the charge read from the indictment, the members of the jury are chosen by drawing cards at random from a box of cards. This procedure is known as balloting. The names of the jurors are read aloud and they are requested to come to the jury box to be sworn in as jurors. Before the juror is sworn, he or she may be challenged peremptorily, that is without the need to state a reason, by any party. A person challenged in this way is excluded from serving in that trial. Whilst this is the law, the conventional practice in New South Wales is to require peremptory challenges to be made before the Bible is placed in the hands of the prospective juror. Despite this practice, the right, at least in theory, remains available between the time the juror takes the Bible and the time that the juror is sworn.

4.58 In New South Wales twenty peremptory challenges are allowed where the offence is murder and eight are allowed in any other case.⁷⁴ Each side has the same number of peremptory challenges except that. where there are multiple accused, the number of Crown peremptory challenges is equal to the sum of the challenges available to the individual accused.⁷⁵ In order to place this issue in its historical perspective, it should be noted that at common law an accused person was entitled to 35 peremptory challenges.⁷⁶ The Crown had no such right but was empowered to “stand aside” jurors without restriction. This involved the Crown prosecutor requesting that a prospective juror should not be empanelled unless and a until the remainder of the panel was exhausted. Traditionally the Crown only exercised this right for good reason and it was used only rarely. The power to “stand aside” jurors was abolished In New South Wales in 1977 and replaced by the Crown’s right to challenge peremptorily.⁷⁷ The use made of this right can be seen from the results of our Survey of Court Procedures. The Crown exercised its right of peremptory challenge in 125 of the 197 trials surveyed. In all, 363 challenges were made. This information, coupled with that obtained by means of our Survey of Crown Prosecutors, indicates that the Crown’s use of its right to challenge is reasonably extensive but varies considerably among prosecutors.

1. The Rationale for Peremptory Challenges

Recommendation 18: Section 42 of the Jury Act 1977 should be amended to provide that the maximum number of peremptory challenges available to an accused person should be reduced to three irrespective of the offence being tried. This recommendation should be read in conjunction with recommendations 20, 21, 22, 25, 59 and 60.

Recommendation 19: The maximum number of peremptory challenges available to the Crown should be reduced to three for each accused person irrespective of the offence being tried.

4.60 There will be some occasions, particularly where the trial is conducted in a small country centre, when a party knows something specific about a prospective juror. Usually however, challenges are based upon information derived from the name of the prospective juror or on factors which are believed to be discernible from the juror’s appearance, such as sex, age, race and dress. These factors are of dubious utility. We strongly believe that there is much unhelpful mythology abroad as to the accuracy of these factors in excluding a juror with a perceived unsuitability or bias. The majority of those contacted by the Commission who frequently represent accused people acknowledged that exercising challenges involves a large degree of guesswork. They nevertheless were strongly opposed to the suggestion put forward in our Discussion Paper (para 4.20) that the number of peremptory challenges should be reduced. The main argument advanced in favour of the existing rules insofar as they relate to the accused person is that they serve the important function of ensuring the acceptability of the ultimate verdict through the participation of the accused person in the selection of the jury. An accused person who has some input into the composition of the jury will be more inclined to accept that the trial has been a fair one.

4.61 The use of the right of peremptory challenge may serve to cut across the principles of representativeness which we have outlined at the beginning of this chapter and the important functions which they serve. It is desirable that the jury express the conscience of the entire community, not just the conscience of those “least obnoxious to the parties to the litigation”.⁸⁰ The object of the process of jury selection should be to pick 12 people who can be fair. It should not be a tactical manoeuvre by which each side tries to secure the 12 most sympathetic jurors from their particular point of view. The number of challenges available to the parties determines the extent to which they can mould the jury and either exclude important classes of the population⁸¹ or cause them to be disproportionately represented.

4.62 Since we have identified representativeness as a desirable characteristic in a jury, the extent of the right of peremptory challenge currently enjoyed in New South Wales is called Into question. In order to argue for the retention of this right, it is necessary to show that it achieves a valuable and legitimate goal such as might offset the damaging effect it may have on the representative character of the jury. We have referred to one such goal above.⁸² Another legitimate purpose for giving the parties the right of peremptory challenge is the removal of actual or perceived potential sources of bias without the need to give reasons. In a situation where the disclosure of the reasons may cause prejudice or embarrassment to the parties or to the juror challenged, or to both. An additional reason put forward to us for preserving the right of peremptory challenge is that in some cases the jury panel itself is so lacking in its representative quality that the right of peremptory challenge may need to be exercised in order to obtain a representative jury. The principles of random selection make it highly unlikely that a jury of 12 people will in fact be unrepresentative of the community. In any case in which the selection process has been demonstrably unfair, the judge would have the power to exercise his or her discretion to discharge the jury in accordance with the recommendation we make below (Recommendation 21, para 4.75).

2. Options for Reform

4.63 The various options available were discussed in paras 4.12-4.22 of our Discussion Paper. They are:

• retention of the status quo;
• abolition of the peremptory challenge;
• abolition of the Crown’s peremptory challenges only; and
• reduction in the number of peremptory challenges.

4.64 The number of peremptory challenges currently available to the accused person and to the Crown can be used to ensure that a particular group within the community is not represented on the jury or to obtain an over-representation. This can be so particularly where there are several accused people tried together, where the various accused people acting in concert or the Crown asserting its numerical superiority may affect the representative character of the jury. Whilst we are firmly committed to the principle that each of the parties in a criminal trial has the right to be tried by a jury which is impartial both in fact and in appearance, we do not consider that there should be any right in any party to be tried by a jury of its choice. The purpose of jury selection is to obtain an impartial jury on which a cross-section of the community is represented, not a jury which is slanted in favour of one of the parties. Since the current rules relating to the right of peremptory challenge run counter to the principle of a representative jury, we consider that they should be changed in accordance with the recommendation set out above and subject to the qualifications regarding the Crown’s right of challenge which we discuss below.

4.65 For many years the law in New South Wales allowed twenty challenges to a person charged with a capital offences. The provision of twenty peremptory challenges in murder trials was retained because the penalty for murder, unlike other capital offences, was fixed at mandatory penal servitude for life when capital punishment was generally abolished in 1955. This law was repealed in 1981.⁸³ While penal servitude for life remains the sentence most frequently imposed upon people convicted of murder, the judge now has a discretion to impose a lesser penalty where certain specified conditions are satisfied. This change in the law has made it necessary to re-examine the rule relating to peremptory challenges in murder trials. The offence of murder may still occupy a special position within the calendar of crimes, but we do not consider that this means that the rules of criminal procedure should differ depending on whether the charge is murder or some other serious offence. There are many other offences which carry a maximum penalty of life imprisonment on convictions.⁸⁴ Indeed, conviction on a charge of causing injury by discharging a weapon in the course of a hijacking offence carries a penalty of mandatory life imprisonment on conviction, yet only eight peremptory challenges are available to a person accused of this offence.⁸⁵

4.66 Although the availability of any right of peremptory challenge may conflict with the principle of representativeness, it is vital that such right remain for the reasons summarised in para 4.57, particularly since the right of challenge for cause is of little practical importance in New South Wales. We commenced this chapter by stating the reasons why it is desirable for juries to be representative of the general community. Some of the recommendations we make are designed to enhance the representative character of the jury.⁸⁶ We are satisfied that the exercise of a large number of peremptory challenges could adversely affect the representative character of the jury, and thereby make those recommendations less effective. We also believe that there are other ways of achieving some of the legitimate functions of the right of peremptory challenge. In order to maintain the representative character of the jury, and bearing in mind that other recommendations we make should obviate at least some of the need for peremptory challenges, we consider that there should be a reduction in the number of challenges currently available.

4.67 The availability of Crown challenges if exercised to ensure that the jury is representative may lessen, but will not remove, the potential for skewing the randomly selected jury drawn from a representative panel. With twenty peremptory challenges for each side where the charge is murder, New South Wales has the highest number of any Australian jurisdiction. In Victoria, Queensland and Western Australia the accused person has eight challenges for all offences. In Tasmania, the Northern Territory and New Zealand the accused person has six peremptory challenges. In South Australia and the United Kingdom the accused person has three.⁸⁷ We note that in England there has been a move to review the right of the accused person to make peremptory challenges.⁸⁸ The Committee established in the United Kingdom to examine the conduct of fraud trials has recommended the abolition of peremptory challenges.⁸⁹

4.68 We also consider it appropriate to have some regard to the “cost” factor. By this we do not mean the financial cost alone but also the personal inconvenience caused to the large numbers of jurors required to be summoned to provide a panel large enough to accommodate the available number of peremptory challenges. More significant, however, is our belief that the real benefit of the right of challenge lies in its participatory aspect rather than in its capacity to exclude biased jurors. This is not unduly affected by a reduction in the number of peremptory challenges. The right of the accused person to play an active role in the selection of the jury is retained in a real but limited sense.

3. Our Recommendation

4.69 Realising that views will legitimately differ on what is the appropriate ultimate balancing of these factors, the Commission has, by majority, reached the conclusion that a reduction to three peremptory challenges for both the accused person and the Crown represents a fair result. This would allow both parties to take steps to remove bias, without going so far as to enable them to select the jury of their choice. Two members of the Commission do not support this conclusion. Mr James’ view is that if the number of peremptory challenges is to be reduced at all, it should not be reduced below six. Judge Mathews’ view is that four peremptory challenges would be sufficient, but only if each party were to be advised of the occupation and place of residence of each prospective juror so that each challenge could be used in a more informed way. In the majority’s view this information should only be revealed if it can be shown to be relevant to the particular trial. In Recommendation 60 the Commission proposes a procedure which would satisfy this requirement.

4.70 The ability of the parties to introduce a bias in the jury by the exercise of the right of peremptory challenge has been challenged by some of those who made submissions to us. It has been put to the Commission that the parties cannot by this means eliminate from the jury particular groups who may be seen as unsympathetic to the case for either party. In the United States and in the United Kingdom, practices have developed in the last two decades which do imply that favourable juries can be selected by exercising the right of peremptory challenge. In some celebrated criminal trials, the accused person has arranged for the conduct of public opinion polls to determine which groups within the community have a favourable or unfavourable bias towards either the facts of a particular case or the accused person who is on trial. These practices might be used where the preliminary proceedings have received widespread publicity or where particular types of accused people are on trial. The information obtained can be used to slant the jury in the desired direction. In the United States opinion polls were used in some of the trials which followed the Watergate scandal and in the trial of John De Lorean on drug charges. These polls determine the attitudes held by particular groups in the community to the issues in the trial. The use of police enquiries and jury vetting in the United Kingdom have been seen to have a similar effect. Jury vetting has been used at the trial of members and sympathisers of the Irish Republican Army. Because of the expense involved in polling, it is naturally only available to accused people who have substantial means. The prosecution have unique opportunities to vet the prospective jurors. Such practices take the exercise of the right of peremptory challenge out of the “hunch and guesswork” category and make it a carefully orchestrated process designed to increase the prospect of a jury being favourably disposed towards the case for one of the parties.

4.71 As we have stated above, the right of the Crown to exercise peremptory challenges should remain. The Crown has a right to an impartial jury. The Commission has received a number of submissions which express concern about the way in which the Crown’s rights of challenge are exercised. Some point to the fact that before the 1977 legislation was enacted, the Crown only exercised its right to have jurors “stand aside” for exceptional reasons.⁹⁰ It was for this reason rarely used. Others have drawn our attention to cases In which the way the right was exercised had the effect of creating an unrepresentative jury.

4.72 Some of the submissions we received proposed that the Crown’s right of challenge should be abolished. It is argued that the Crown’s legitimate interests are adequately catered for by the schedules which specify those classes of people who are either ineligible, disqualified or exempt from jury service, and that the legislature has spoken on behalf of the community by removing from juries those people whom it regards as unsuitable to be jurors. The legislation aims to ensure that juries are impartial and representative. The legislation is an expression of the community’s view regarding the composition of juries. It is argued that the community, through the Crown Prosecutor, should not be given what amounts to a second chance to determine the composition of the jury. However, the legislation is not by itself sufficient to ensure that in every case a representative and impartial jury will be empanelled. In some case there might need to be a supplementary means of removing perceived prejudice. We consider that the right of the Crown to make peremptory challenges should be preserved but that they should be used more consistently.

4. Guidelines for Crown Challenges

Recommendation 20: The Attorney General should, in consultation with the Crown Prosecutors, establish guidelines to govern the Crown’s exercise of the right of peremptory challenge. These guidelines should be published.

4.74 Another suggested approach was that the Crown should be restricted to making challenges for cause. This could be achieved by making the Crown’s exercise of the right of peremptory challenge subject to objection from the accused person, in which case the Crown would be required to explain the grounds on which the challenge is made. We consider that this procedure could create undue embarrassment for the juror challenged. The grounds for the Crown’s objection might be of a sensitive or personal nature which, in fairness to the prospective juror, should not be disclosed. The right to make challenges without showing cause gives the Crown the power to challenge jurors who are in fact disqualified or ineligible without publicly disclosing the grounds.

4.75 In order to overcome the apparently Inconsistent approaches taken by different counsel appearing for the Crown, it is desirable that guidelines be established which set out the grounds on which the Crown should make peremptory challenges. It is appropriate that the Attorney General should issue such guidelines not only to achieve consistency but to ensure that challenges are made on legitimate grounds. We would expect that the terms of the guidelines provide that prospective jurors should not be challenged solely on the grounds of, for example, race, sex or age. If these guidelines were to be made public, the role of the Crown in prosecuting criminal offences would be better understood by both lawyers and the general community alike. Guidelines of this kind have been issued In Victoria.

D. Judicial Discretion to Discharge a Jury

Recommendation 21: The Jury Act 1977 should confirm the power of the judge to discharge a jury where the process of exercising peremptory challenges has created the potential for or the appearance of unfairness. The fact that an unobjectionable selection process has nevertheless left the jury lacking a member of a particular group within the community should not of itself be a ground for exercising the power.

E. Consent Challenges

Recommendation 22: The Jury Act 1977 should be amended to provide that where each of the parties in a criminal trial believes that a prospective juror should for any reason not be empanelled, the juror may be challenged by consent. Such a challenge would not affect the rights of peremptory challenge of any party.

1. 2 William IV, No 3.

2. The only exception is that pregnant women may claim exemption as of right: Jury Act 1977 s5 and Schedule 3 cl 5.

3. NSW Parliamentary Debates, Legislative Assembly, 22 February 1977 p4254.

4. Jury Act 1977 ss9,12. Compilation is in fact done by computer.

5. Jury Act 1977 s10 and Schedule 3 cl 8.

6. See para 4.13.

7. Almanac of Liberty (1954) p 112.

8. Criminal Law and Penal Methods Reform Committee of South Australia Court Procedure and Evidence (Third Report, 1975) p84.

9. Jury Act 1977 s9(2).

10. Jury Regulations Nos 421 and 519 of 1985.

11. Jury Act 1977 Schedule 1.

12. Jury Act 1977 Schedule 2.

13. Jury Act 1977 Schedule 3.

14. Jury Act 1977 s38 (1)(a).

15. See Australian Law Reform Commission Discussion Paper No.25 Criminal Records (ALRC DP25 1985); Law Reform Division, Department of Justice (NZ) Living Down a Criminal Record: Problems and Proposals (November 1985); Law Reform Commission of Western Australia The Problem of Old Convictions (Discussion Paper, Project No.80, 1984).

16. Compare the English provisions. The Juries (Disqualification) Act 1984 provides that people who have received a suspended sentence or a community service order are disqualified from jury service for ten years. Those who have been sentenced to imprisonment for more than five years are disqualified for life.

17. Jury Act 1977 s6(b).

18. For example, people unable to read or understand the English language and people who are unable because of illness or infirmity to discharge the duties of a juror.

19. For example, members of the police force and their spouses.

20. For example, people employed by the Board of Fire Commissioners of New South Wales.

21. Jury Act 1977 Schedule 2 cl 16.

22. Jury Exemption Regulations No 131 of 1970 (Cth) cl 6 and 7.

23. Jury Exemption Act 1965 (Cth) s4.

24. See para 4.22 above.

25. Juries Act 1967 (Vic) Schedule 3: Jury Act 1929 (Qld) s8; Juries Ordinance 1967 (ACT) s11: Juries Act 1974 (UK) Schedule 1: and Juries Act 1981 (NZ) s8.

26. Law Reform Commission of Western Australia Report on Exemptionfrom Jury Service (Project No 71, 1980) para 3.29.

27. See Discussion Paper para 3.20

28. See generally NSW Law Reform Commission De Facto Relationships (LRC 36, 1983) Chapter 13; Lambe v Director-General of Social Services (1981) 38 ALR 405;L and L [1984] FLC 91-563.

29. Paras 4.3-4.7.

30. Recommendation 4, para 4.14.

31. The Jury in Criminal Trials (WP27, 1980) p65.

32. Jury Act 1977 Schedule 3 cl 8.

33. See Discussion Paper para 3.29.

34. Ms Theresa Guzzo, letter to the Attorney General.

35. For example people of or above the age of 65 years and pregnant women.

36. For example practising dentists, medical practitioners and mining managers.

37. In our Survey of the Compilation of Jury Rolls 7,507 of 13,103 deletions were based on Schedule 3.

38. Australian Bureau of Statistics Estimated Resident Population by Sex and Age, State and Territory of Australia (Cat 3201.0 June 1984).

39. LRC 42, 1984.

40. Sean Flood, Public Defender, 16 December 1985.

41. Jury Act 1977 s15.

42. Jury Act 1977 s38(1).

43. Mr Sam Silkin, Attorney-General, House of Commons Debates, Vol 958, col 28, November 13 1978, quoted in R J East “Jury Packing: A Thing of the Past?” (1985) 48 Modern Law Review 518 p520.

44. See Attorney-General’s guidelines on jury checks [1980] 2 All ER 457, [1980] 3 All ER 785.

45. The guidelines stipulate that jury vetting may only be undertaken with the personal authority of the Director of Public Prosecutions or his Deputy, who have to report to the Attorney-General if authority is given. See East note 43 above, p523.

46. [1980] 3 All ER 785. See also R v Mason [1980] 3 All ER 777.

47. Attorney-General’s guidelines [1980] 2 All ER 457 para 4(a), noted in East, note 43 above, p522. See also F Gibb “Putting Juries on Trial” The Times January 9, 1986.

48. East, note 43 above, p525.

49. See for example Juries Act 1981 (NZ) s14; Juries Act 1967 (Vic) s21(3): Juries Ordinance 1967 (ACT) s24; Discussion Paper para 4.19.

50. Jury Act 1927 s40(1).

51. “Jury Vetting” (1985) 135 New Law Journal p69; see also R v Crown Court at Sheffield, Ex parte Brownlow [1980] 2 All ER 444.

52. “Dangers Remain in Jury Vetting” The Times August 2, 1980.

53. East, note 43 above, pp529-530, 534.

54. See generally Chapter 7.

55. Recommendations 59, 60, paras 7.19-7.25.

56. See Recommendation 60.

57. Jury Act 1977 s41.

58. R v Grant and Lovett [1972] VR 423 at 425.

59. Originally found as “Judicium parium suorum” in Magna Carta 1215, but a concept which has been taken to mean much more than it did in that declaration: See Sir William Holdsworth A History of English Law (1966 Reprint) Vol II pp214-215.

60. The details of the common law right to challenge for cause are set out in Chitty 1 Criminal Law (1836) at 540-44.

61. Jury Act 1977 ss45, 46.

62. Halsbury’s Laws of England (4th ed 1979) Vol 26 para 627.

63. Jury Act 1977 s45. Of the Australian jurisdictions, only Queensland retains the traditional method of determining a challenge for cause: trial by the jurors already empanelled or by two indifferent people chosen by the court from the panel: Jury Act 1929 (Qld) s39 and Criminal Code Act 1899 (Qld) s612.

64. R v Chandler [1964] 2 QB 322; McMahon v Sydney City Council [1963] 63 SR (NSW) 507.

65. In our Survey of Court Procedures only two cases of challenge for cause were recorded.

66. J L Glissan QC, personal communication.

67. Maryann Motza, Director, Professional and Legal Services Division, Colorado Judicial Department.

68. K Beyler “Improving the Jury Selection Process” (1984) 73 Ilinois Bar Journal 150 p154; A Nevins and H S Cominager America (3rd ed 1.966) p144.

69. Van Dyke “Votr dire: How it Should be Conducted to Ensure that Our Juries are Representative and Impartial” (1976) 3 Hastings Constitutional Law Quarterly 65 p69.

70. M v H M Advocate [1975] Crim LR 108.

71. Practice Note [1973] 1 All ER 240.

72. “The Tradition of Jury Vetting” State Research Bulletin Vol 3 No. 15 (Dec 1979-Jan 1980), pp43-44.

73. Professor Brodeur has described the voir dire examination as an “ineffective screening device because of the lack of skill of the lawyers conducting it”: “Voir Dire Examinations: An Empirical Study” (1965) 38 Southern California Law Review 503.

74. Jury Act 1977 s42.

75. R v Dickens [1983] 1 NSWLR 403.

76. Blackstone Commentaries on the Law of England (4th ed 1765) Vol 4 at pp353-355; Chitty 1 Criminal Law (1836) pp534-37.

77. Jury Act 1977 s43.

78. H Broom Commentaries on The Laws of England (1869) Vol IV p442.

79. Paragraph 4.71.

80. K Beyler “Improving the Jury Selection Process” (1984) 73 Illinois Bar Journal 150.

81. Id pl53.

82. Paras 4.59, 4.60.

83. Crimes (Homicide) Amendment Act 1982 s3; see R v Burke [1983] 2 NSWLR 93.

84. For example, manslaughter (Crimes Act 1900 s19); conspiracy to murder (s26); maliciously inflict grievous bodily harm with intent (s33); setting fire to a dwelling knowing a person to be inside (s196).

85. Crimes Act 1900 s32C.

86. See Recommendations 3-10.

87. Jury Act 1899 (Tas) s54; Juries Act 1962 (NT) s44(1); Juries Act 1927 (SA) s61; Criminal Law Act 1977 (UK) s43; Jury Act 1929 (Qld) s35(2)(3); Juries Act 1981 (NZ) s24(1); Juries Act 1957 (WA) s38(1).

88. Editorial comment The Guardian 17 November 1985; The Times 8 November 1985.

89. Report of the Fraud Trials Committee (Chairman; Lord Roskill) (HMSO 1986) para 7.38.

90. For example, Justice Paul Stein, 3 February 1985. Cf para 4.58.

91. R v Dickens [1983] 1 NSWLR 403.

92. See Discussion Paper para 4.13; J Scutt “Trial by a Jury of One’s Peers?” (1982) 56 Australian Law Journal 209.