I. INTRODUCTION
5.1 It is self-evident that the members of a jury must be protected from personal harassment, intimidation or physical violence before, during and after the time when they perform their vital and often difficult role. Their deliberations are to be based solely upon the evidence observed by them and the arguments and legal directions presented in court.
5.2 We are not aware of any proven direct intentional interference with jurors prior to verdict in New South Wales, although one case of an unsuccessful attempt improperly to influence a juror was noted in our Discussion Paper (para 9.9).1 Nevertheless we consider that the goal of making jurors personally secure from interference of any nature is an important one which, for various reasons, calls for legislative and administrative changes as well as changes in courtroom practice. The main thrust of these changes is to endeavour to guarantee, as far as possible, the anonymity of individual jurors.
5.3 The first and major reason for proposing these changes is the fact that there is evidence from which one can conclude that some jurors believe that they should be secured from the risk of any interference by steps taken to give them anonymity. The Sheriff of New South Wales has informed us that jurors do from time to time express concern for their personal safety.2 In the longest criminal trial ever conducted in New South Wales, which lasted for approximately 10 months in the Supreme Court, a specific request by the members of the jury was made to the judge that their names not be read out at the beginning of each day’s proceedings. The jurors did this because they were concerned for their safety.3
5.4 The second reason is that experience overseas illustrates that jurors In other common law jurisdictions have been subjected to various forms of Interference. These forms of interference vary dramatically in the threat which they pose to the personal security of jurors. The future course of criminal justice in New South Wales can not necessarily be predicted by the past. It may be that we have been fortunate to avoid so far the uglier examples of intimidation of people In the administration of justice that have occurred in some jurisdictions overseas. It may also be that there have been undetected incidents in New South Wales. Having discovered the existence of this problem elsewhere, we consider that It is sensible to examine it. If there are steps that can be taken to prevent this kind of activity occurring here, then they should be implemented provided that no other Important values are put at risk.
5.5 The third reason for proposing change in this area is that there have been incidents in recent times in Australia where jurors have been sought out by parties or their representatives after the trial.4 In an incident which occurred in Western Australia in December 1985 a prisoner who had, been convicted of murder sent Christmas cards to the jurors who had found him guilty.5 The cards read:
Here is hoping you have a very pleasant, family Christmas. Think of me while you are having your Christmas dinner.
They were signed by the prisoner.6 This incident was made possible by the fact that the documents in the case which were given to the prisoner to assist him in the preparation of an appeal, included a list of the jurors at his trial. This incident was widely publicised, a fact which would hardly assist jurors in other trials to feel secure in their anonymity. We should emphasise that, in New South Wales, convicted people are not given access to the jury list.
5.6 In the United States jurors have been paid for radio and television appearances as commentators, written books about their experiences as jurors and have been hired as consultants to advise on the conduct of related litigation. On occasions approaches have been made to former jurors in an endeavour to obtain information relevant to a challenge to a conviction or to give guidance on the appropriate manner in which to conduct the defence case in a re-trial.7 Whether or not any such approaches can ever be justified is not the concern of this chapter8 but they illustrate that jurors can be and are contacted by parties or their representatives in circumstances where the contact is not of the former Jurors’ choosing. We consider that jurors should be protected from such contacts and from possible harassment.
5.7 In addressing this issue we recognise that some measures designed to increase the personal security of Jurors may be so intrusive as to create an atmosphere of fear among jurors and prospective jurors. This would naturally make people reluctant to serve on juries and make the task of jury service a less comfortable one. We are concerned that any such measures which might be implemented should not have the counter-effect of making jurors feel insecure. We are also concerned that the introduction of overt security measures may foster a prejudicial atmosphere for the conduct of the trial.
II. SPECIFIC RECOMMENDATIONS
A. The Secrecy of the Jury Panel
Recommendation 23: Section 40(l) of the Jury Act 1977 should be amended to provide that it is an offence for any person to inspect a list of the members of the jury or jury panel relating to a particular criminal trial at any time without the permission of the court.
5.8 Section 40(l) of the Jury Act 1977 currently prohibits the inspection of the jury panel prior to or during a criminal trial. Curiously, however, there is no sanction against those who breach this provision. The purpose of our recommendation is to better ensure that no person can obtain information about the identity of a prospective juror.9 In our view, no party to a criminal case has any legitimate reason for knowing the identity of the prospective jurors before the trial. Nor should either party have access to the panel during or after the trial. Only those people who are authorised to see the jury lists should be given access to them. Obviously the Sheriff’s officers will need to inspect the panel at various times. It may be that others need to do so. In order that the effective administration of the jury system is not interfered with unduly, we recommend that the court should have the power to permit inspection as the need arises.
B. Reference to Individual Jurors in Court
Recommendation 24: When a person is called to the jury box after being balloted in the jury selection process, he or she should be referred to by his or her title and family name only, unless two or more people with the same family name answer to the call. We suggest that consideration might be given to issuing a practice direction to this effect.
5.9 This change is designed to impede any attempt to contact a juror during or after a trial and to make jurors comfortable in the knowledge that they are unlikely to be harassed. At present the judge’s associate, who selects a juror from the panel, does so by randomly drawing cards provided by the Sheriff one at a time and reading aloud the full name of the juror appearing on that card. Judges could direct their associates to restrict the announcement in court to the title and family name only. That is to say, instead of calling, for example, “John William Kennedy”, the associate would call “Mr Kennedy”. This would make it more difficult for anyone to trace that juror. This practice would require modification where there is, on the jury panel, more than one person of the same sex who has the same family name. The likelihood of this occurring is not high but where it does the security of the jurors concerned would not be threatened if they were to be distinguished by the Initials of their first given names.
5.10 Some of those who made submissions in response to our Discussion Paper advocated that jurors should not be referred to by name at all. We did give consideration to a suggestion that total anonymity could or should be achieved by the Sheriff assigning a different number to each prospective juror. Each person would be referred to during empanelling and throughout the trial as “the juror whose assigned number is X”. A similar practice is used in some jurisdictions in the United States. We ultimately rejected this suggestion principally because it might itself create apprehension In jurors but also because it might be seen as demeaning to jurors to be addressed otherwise than by name. Bearing in mind that there has been no recorded instance of successful intimidation of jurors in New South Wales, we think it unnecessary that such an impersonal method of addressing jurors should be introduced.
C. Information about Prospective Jurors
Recommendation 25: The current law and practice in criminal cases whereby the occupation and address of jurors and prospective jurors is not disclosed should be continued except where this information is revealed as part of the procedure proposed in Recommendation 60 for allowing certain categories of prospective jurors to be challenged.
5.11 A number of the people who made submissions to the Commission were of the view that the parties should be entitled to know more about the prospective jurors. It was suggested in particular that the following information be made available:
- the occupation of the prospective juror;
- the suburb in which he or she lives;
- whether the prospective juror has previously served on a jury; and
- his or her age.
The first two items of information are currently available to counsel in civil trials.10 There was considerable debate among the members of the Commission as to whether they should be available in criminal cases (cf para 4.68). We ultimately concluded, principally on the ground of preserving the anonymity of jurors, that none of the above information should be revealed in court or disclosed before challenges are made. The only exception we make is where the information is disclosed as a part of the procedure proposed in Recommendations 59 and 60. We also note that Judge Mathews is of the view that this information should be provided if the number of peremptory challenges available to the parties is to be reduced.11
D. Reading the Jurors’ Names
Recommendation 26: It would be good practice if the names of jurors were announced in open court only during the process of empanelling the jury and at no later stage during the trial except in the event of a challenge to the identity of a juror.
5.12 As we have noted, the current practice in New South Wales is for the full name of a prospective juror to be read at the time a juror is balloted and again when he or she is “called to the book to be sworn”.12 Where a trial continues into a second or subsequent day, it is the practice of some judges to ask counsel for the accused person and the prosecution whether or not they wish the names of the jurors to be read. Counsel rarely require this to be done. However, the names of the individual jurors are usually read before the jury delivers its verdict when each juror is asked to acknowledge his or her presence In court. These practices are presumably designed to ensure that the jury comprises the same people throughout the trial. In our view they are unnecessary and should be discontinued.13 We find it unbelievable that the jurors themselves would not be aware of such an occurrence and consider that there Is no need for a special procedure to be followed. Even if there were such a need, It is scarcely met by the roll call procedure.
E. Identifying the Jurors in a Criminal ‘trial
Recommendation 27: The Jury Act 1977 should make it an offence to disclose, without lawful excuse, during the course of the trial, any information which identifies someone as a juror in a particular trial.
Recommendation 28: Section 68 of the Jury Act 1977 should be amended to provide that it is an offence to publish material which identifies a person as a former juror in a particular trial unless the person consents to his or her identification.
5.13 Section 68 of the Jury Act 1977 provides:
A person shall not, except in accordance with this Act, publish or print any material or broadcast or televise any matter of such a nature that a person may thereby be informed, whether by implication or otherwise, of the identity or address of any juror.
The reason for this prohibition is obvious. The privacy of the individual jurors should be protected throughout a trial. This tends to reassure jurors about their personal security and makes it more difficult for improper approaches to be made to them. A juror may not be identified during the trial regardless of his or her consent as this could lead to an improper attempt to contact him or her.
5.14 It is not clear whether s68 applies to disclosure of the identity of a juror made otherwise than by way of a public statement. In some circumstances the non-public disclosure of information may lead to Interference with the jury. Accordingly, we recommend that the prohibition should be extended to cover such disclosures made without lawful excuse. The term “lawful excuse” is used in this context to mean something broader than “legal excuse” or legal right.14 In so framing the terms of our recommendation we intend to guard against the risk that harmless incidents of honest disclosure may be prosecuted as offences.15 It is also unclear whether s68 applies once a trial has been completed. Whilst we are not aware of instances where there has been post-trial public identification of a former juror without his or her consent, we suggest that the section should be clarified by extending it in express terms to cover that situation. However, we do not propose that it should be an offence for this identification to take place after the trial if it is done with the individual juror’s prior consent.16 The question of whether the identification of jurors should be prohibited on wider grounds is discussed in Chapter 11 of this Report.
5.15 Some specific examples of the kind of material we are referring to should be noted. Where a particular trial is well-publicised, television cameras are commonly used to film the precincts of the court in order to show the participants in the trial entering or leaving the courtroom. On some occasions, this film is broadcast “live”. The coverage of these events should never extend to filming or photographing the jurors. We should note by way of contrast the practice In the United States, where the members of the jury are not only photographed, but frequently interviewed by reporters at the end of the trial.
5.16 Similarly, criminal trials and other court proceedings are often reported in newspapers and on television with accompanying sketches of courtroom scenes. These sketches are done by professional illustrators and may be quite accurate in their representation of the participants in the trial. They are used because it is not permissible to take photographs of proceedings in court. Again, this should be contrasted with the position in the United States, where some criminal proceedings are broadcast “live” on television. In our view, courtroom sketches which are likely to be made public should not include the members of the jury.
Recommendation 29: Where it is considered necessary to take special precautions to maintain the security of the court or the personal security of the jurors, the measures intended to be taken should, where possible, be revealed to the court and to the accused person but not to the jury.
5.17 There are no standard criteria for making a decision to increase security in a particular trial.17 Similarly there is no one person responsible for making this decision. The judge may personally direct that extra security be provided or the initiative may come from the Sheriff’s Office, the police or the Court’s security department. In cases where the police obtain advance notice that there is likely to be trouble at a particular trial, or where a number of people accused of a violent crime are to be tried together, there will usually be extra security measures taken at the trial. It has been held by the Court of Criminal Appeal in New South Wales that the judge has absolute authority for security within the courtroom itself and that this extends to matters of security affecting jurors.18
5.18 The Commission is concerned at the risk that unfair prejudice may be created in those cases where special measures are taken. For example, the use of police sharpshooters to man the rooftops of courtrooms where criminal trials are to take place is obviously prejudicial to the conduct of a fair trial if the jury is made aware of their presence. The High Court of Australia has recently observed that the decision to use extraordinary security measures should be made in the light of the prejudicial impact which they may have upon prospective jurors. Having observed that special care should be taken to ensure that security precautions are no more obvious than is necessary, the Court suggested that consideration should be given to advising the accused person of the action proposed. By giving the accused person the opportunity to express his or her views about the planned security arrangements, unfairness might be avoided.19
FOOTNOTES
1. See also R v Boland [1974] VR 849; R v Stretton (1982) VR 25 1; R v Zampaglione (1982) 6 A Crim R 287.
2. Mr D M Lennon, Sheriff of New South Wales, personal communication.
3. Mr Justice A V Maxwell, Supreme Court of New South Wales, personal communication.
4. See. for example, Prothonotary v Jackson [1976] 2 NSWLR 457; Ex Parte Hartstein; in re a Solicitor (unreported) ACT Supreme Court, 4 June 1971, noted in (1972) 46 Australian Law Journal 369,
5. The Daily News (Perth) 9 January 1986.
6. Sydney Morning Herald 4 January 1986.
7. “Jurors Find Fame and Fortune In US” The Weekend Australian 4-5 January 1986 p13.
8. We deal with the issue of disclosure of jurors’ deliberations in Chapter 11 of this Report.
9. Compare the practice in Queensland and Western Australia where the names of the jury panel must be displayed in a prominent place in the precincts of the court for some days before the trial.
10. Jury Act 1977 s40(2).
11. See para 4.68. A similar recommendation is made in the Fraud Trials Committee Report (Chairman: Lord Roskill) (HMSO, 1986).
12. Jury Act 1977 s48(2).
13. See text accompanying note 3.
14. Roffey v Wennerbom ex parte Wennerbom [1965] Qd R 42 p57;R v Marche de Quebec [1969] 1 Ex CR 3.
15. Cf Crimes Act 1900 s417; Justices Act 1902 s145(2).
16. See Law Reform Commission of Canada The Jury (Report 16, 1982) pp52-53.
17. The Office of the Sheriff, personal communication.
18. R v E J Smith [1982] 2 NSWLR 608 at 616,617; See also R v Stretton and Storey (1982) VR 25 1: R v Dodd (1982) 74 Cr App R 50.
19. Edward James Smith v The Queen Application for Special Leave to Appeal, High Court of Australia, 26 September 1985, noted at [1985] 19 Leg Rep SL 1. We acknowledge the assistance of Mr P A Johnson, Barrister.
