I. INTRODUCTION

6.1 The jury’s task in a criminal trial is two-fold. Firstly, the jury is required to listen to and observe the evidence and arguments presented in open court and the judge’s directions. Secondly, the jury deliberates in private making findings of fact to which they then apply the law in accordance with the directions given by the judge. The result of this process is a general verdict which, according to the juror’s oath, must be a true verdict according to the evidence. The public and the participants in the trial will usually see nothing of the jury’s workings other than its verdict. Common sense suggests that the jury’s task is an onerous one.

Most jury members have no prior understanding of normal court procedure, legal terms or ethics, and this in itself places them at a disadvantage. Jury experience initially can be quite confusing, a situation not helped by its total isolation within the processes of the court.

Conscientious jurors do have a difficult time trying to remember all the evidence, the dates, times, names, events, and how each fits in with the rest. And how can ordinary people cope with highly technical evidence when the experts cannot agree?¹

It is our view that efforts should be made to simplify the task of juries. We reject the argument that the difficulties identified lead necessarily to the conclusion that juries should be abandoned. In this chapter we recommend ways in which, at various stages, the task of the jury can be made easier, by which we mean more convenient, more comfortable, simpler and fairer. The easier this task is made, the more effective will be the jury’s performance and the more reliable the verdict. We are here concerned with the competence and confidence of juries, their effective participation and their working conditions. In particular, this chapter deals with:

• the provision of information to jurors both before and during the trial;
• the effective presentation of evidence and other aspects of trial presentation-,
• the improvement of the physical working conditions of jurors; and
• the means by which the effects of jury service on the private lives of jurors may be minimised and adverse consequences eliminated.

II. INFORMATION PROVIDED BEFORE THE TRIAL

6.2 As we noted in our Discussion Paper (para 5.2) the performance of a juror’s task is impaired if he or she is confused about the role and obligations of jurors and about procedures in the court and in the jury room. Our surveys of prospective jurors and those who actually served as jurors sought suggestions as to what further information would have been useful. 229 of the prospective jurors we surveyed (the total sample was 1779) stated that they would have liked further information before attending court:

• 38% of those who made suggestions required general information on how the system works, car parking, a contact number for information and overnight stays;
• 21% wanted information on court procedure;
• 20% wanted information on the role, duties and rights of jurors including their right to take notes and their anonymity; and
• 15% wanted information on jury selection procedures, exemption criteria or the length of service.

Serving jurors were also asked about the nature and quality of information provided to them before coming to court. 276 jurors (the total sample was 1834) made at least one suggestion for improving the information given to jurors before coming to court. Of those 276 people:

• 33% suggested that information be provided on the role, rights and duties of jurors;
• 24% wanted information on court procedure; and
• 22% wanted general information about practical matters such as meals and sleeping arrangements.

6.3 The provision of additional and more useful information before the day of the trial would not only reassure prospective jurors and assist jurors to perform their task. It would also enhance administrative efficiency in the Sheriff’s Office. The jury roll for each jury district In New South Wales is compiled in two stages. A list of names is selected at random from the relevant electoral roll and all those listed are notified of their inclusion. If they are disqualified, ineligible or wish to claim an exemption as of right pursuant to the schedules to the Jury Act 1977, they are required to notify the Sheriff so that their names may be deleted. Once these deletions have been made, the jury roll is certified and comes into effect. Deletions from the roll continue to be made, however. One reason for this is that some people do not notify the Sheriff of reasons warranting their deletion until they first receive a Jury Summons. The difficulties caused to the Clerk of the Peace when determining the proper number of jurors to be summoned to a jury panel probably will never be entirely solved. However, clearer information about the categories of people not qualified to be jurors would increase the rate at which such people report this fact to the Sheriff at the proper time, thus improving the reliability of the jury rolls and the Sheriff’s confidence in the availability of people on the rolls. Clear information about the procedures for applying to be excused would increase the proportion of people who make applications before the date of the trial. In this way the Sheriff would have greater certainty in the adequacy of the numbers summoned for a jury panel and, in addition, the half day jury fee payable to the many people who attend court and are then excused by the judge would be saved.

A. Improving the Notification of Inclusion on a Draft Jury Roll

Recommendation 30: The Notification of Inclusion on a Draft Jury Roll should be improved by adding:

(a) a brief explanation of the nature of jury service and the role of the jury in the legal process;

(b) an explanation that a penalty may be imposed if the recipient fails to advise the Sheriff that he or she is disqualified from or ineligible for jury service; and

(c) an explanation that the Sheriff has a discretion to excuse people from jury service on particular occasions for good cause.

6.4 To enable people receiving the Notification to understand what they are being called on to do and to encourage people to stay on the jury roll, the Notification of Inclusion on a Draft Jury Roll should briefly explain the nature of jury service and the ramifications of being on the jury roll. A statement covering the following matters is suggested:

• the importance of jury service;
• the likely frequency of jury service;
• the manner of summoning jurors,
• the law concerning disqualification, ineligibility and exemption as of right; and
• the jury fees and expenses.

To ensure more care in the completion of the forms and in the interests of fairness, the Notification should specify the penalty for failure to respond where appropriate.²

Recommendation 31: A notice In the major community languages should accompany the Notification of Inclusion on a Draft Jury Roll. This notice should explain what the Notification is and advise that people who are unable to read or understand English are ineligible for jury service and must inform the Sheriff of that fact.

6.5 The purpose of a notice in major community languages would be to ensure that people who are unable to read and understand English do not remain on the jury roll by default. It is apparent from our surveys that this does occur at present. Applications to be excused made to the Sheriff or to the judge by people summoned were sometimes based on an inadequate understanding of English. The Sheriff’s certainty in the availability of an adequate proportion of members of panels summoned will be enhanced if those who are ineligible for this reason remove themselves at the proper time. There will also be greater certainty that people with an inadequate command of English do not actually serve on juries. A large majority of respondents to the Commission’s Discussion Paper supported this proposal. Those few who expressed reservations queried the need for a statement of the kind proposed in major non-English languages on the basis that, in their view, the ability to read English should not be any longer an essential qualification for jury service. The majority of respondents, however, were in favour of the retention of this qualification and the Commission considers it to be necessary in the light of our recommendations to increase the amount of written materials provided to juries (Recommendations 48,49.50 and 5 1, para 6.32-6.37).

Recommendation 32: To enable people to respond accurately to the Notification of Inclusion on a Draft Jury Roll, the language and setting out of the schedules listing classes of disqualification, ineligibility and exemption as of right should be made clear and unambiguous.

6.6 The Notification of Inclusion on a Draft Jury Roll currently informs recipients of the categories of exclusion simply by setting out the schedules in their legislative form. The language of the schedules is obscure in some respects and needs to be clarified or simplified. Schedule 1, providing for disqualification due to prior convictions, is particularly difficult to comprehend. We recommend (Recommendation 5, para 4.17) that this schedule be repeated and we suggest a substitute. The point to be made in this chapter is that a substitute must be drafted primarily to ensure that people who come within the schedule are so informed upon reading it. Although we are unable to point to any under-reporting of disqualifications, we have noted an amount of inaccurate reporting of them. Some 33 people in the jury districts of Penrith and Newcastle-Cessnock notified the Sheriff that they were disqualified when in fact the period of their disqualification had expired. Almost 6.5% of people reporting that they were disqualified were in fact no longer disqualified. The results of the Commission’s other surveys also raise some doubt as to whether Schedule 3 is fully understood by people who receive a Notification of Inclusion on a Draft Jury Roll. For example, our Survey of Court Procedures revealed that some people who could probably have claimed exemptions as of right had not, but had raised the matter when making personal applications for excusal to the judge.

6.7 Savings which could be made if more people who are disqualified, ineligible or exempt removed themselves at the proper time would be substantial:

• fewer people would need to be summoned;
• court time spent dealing with personal applications would be saved;
• a proportion of the fees paid to people who attend court and are excused (currently $23.00 for a half day attendance) would be saved,
• a proportion of the travelling expenses paid to such people would be saved;
• inconvenience to the individual would be avoided; and
• the jury rolls would be a more accurate record of the people in fact available to attend if summoned.

B. Improving the Jury Summons

Recommendation 33: The Jury Summons should be amended to:

(a) advise recipients that applications to be excused may be made to the Sheriff and encourage applicants to approach the Sheriff at their earliest convenience;

(b) include a map showing the location of the court and the attendance point for prospective jurors;

(c) advise prospective jurors to contact the relevant telephone information service on the night before attendance is required to check attendance details; and

(d) give adequate notice (21 days) of the date of attendance, unless a shorter period has been directed by a judge.

6.8 Respondents to the Commission’s Discussion Paper were overwhelmingly in favour of a proposal along these lines. It is clear that efficiency would be greatly improved if applications to be excused were made, where possible, to the Sheriff. Savings in juror fees and travelling expenses and in court time would again apply and the Sheriff could be more certain of the available panel numbers. The method of making applications to the Sheriff should be explained in the Jury Summons. Some 14.1% of people making personal applications to the judge in our survey period (89 of 633 applications) were then suffering illness or injury. It should be unnecessary for such people to attend court to make their applications. Since a statutory declaration or a medical certificate should suffice, they should be expressly advised of their right to apply in this way. Again, 11.8% of personal applications to be excused were made by sole business operators (75 of 633 applications). This frequently accepted ground for being excused could be dealt with readily by the Sheriff. Some applications to be excused necessarily will continue to be dealt with on the day of the trial by the judge. Two categories are those where the problem has only recently arisen and those, dependent on the estimated length of the trial, which relate to future plans. However, most applications should be dealt with by the Sheriff so as to achieve the advantages listed above (para 6.7).

6.9 Another difficulty prevents the timely disposition of applications to the Sheriff. The Sheriff’s power to excuse has been delegated to only a few officers, all of whom are based in Sydney. Applications received in country centres only two or three days before the trial are not posted on to Sydney for fear that they will be held up in the post. Instead they are held at the relevant court to be dealt with by the judge. This procedure does not require applicants to attend court to make their applications in person but it could cause uncertainty on the part of the applicant as to whether he or she will be excused. The Sheriff is, therefore, urged to consider ways to avoid this situation. The delegation of the excusal power to senior officers located in country districts would appear to be the best means of overcoming this problem.

6.10 The current statutory minimum notice period for a Jury Summons is 7 days.³ This period is insufficient. The Sheriff’s practice is to give at least 21 days notice at all times. Consideration should be given, for example, to professional or self-employed people who must make alternative arrangements with respect to their businesses and practices if they are to be encouraged or required to serve. In determining how long the notice period should be, the administrative demands upon the Sheriff’s Office need to be considered. The Commission recommends that 21 days should be the statutory minimum notice period. This period would give the Sheriff sufficient time to consider and respond to all but the most tardy applications for excusal. We note that a judge may now order a shorter notice period to apply⁴ and consider this to be a useful provision in unusual circumstances. We propose that this power should be retained.

6.11 The Commission recognises that the longer the notice which must be given the more likely is the cancellation of the panel. This is because in the longer pre-trial period there is a greater chance of criminal charges being withdrawn, of changes of plea, or of the jury not being required for other reasons. While panel cancellations are notified on the telephone jury information service, people who attend without having contacted the service are currently paid for their attendance. The Sheriff, Mr D M Lennon, opposes any change to this policy because he considers it to be unfair to refuse to pay people who have attended in response to a Jury Summons. The current form of the Summons merely suggests that a check be made with the telephone information service. Greater emphasis should be placed on the need to telephone the service. The policy of paying prospective jurors attending court for cancelled panels should be reviewed after a period of experience with a more strongly worded advice to make contact on the eve of the trial.

Recommendation 34: When a jury panel is summoned for a particular trial which Is expected to take 4 weeks or longer, the Jury Summons should include a notice to this effect and should invite recipients to apply to the Sheriff to be excused if jury service for that length of time would cause hardship.

6.12 This procedure would be another way of saving jurors’ trips to court, jury fees and expenses and court time, and of giving greater certainty in the numbers available to constitute the panel. There are practical difficulties with this proposal. It is not always easy to predict the length of a trial. It is unfortunate that the situation could develop where the jury in one long trial has notice of the fact as early as the Jury Summons and the jury in another is not warned until the beginning of the trial. The advantages of giving proper notice where it is possible, however, outweigh the disadvantage which arises when jury panels are treated differently. We consider the difference in treatment to be in a minor respect only.

C. Providing An Explanatory Booklet

Recommendation 35: An explanatory booklet should be prepared and distributed to every person summoned for jury service. This booklet should describe the nature of a juror’s rights and responsibilities, the jury’s role, the conduct of trials and explain common concepts which are likely to be referred to in the trial.

6.13 Prospective jurors currently receive an information sheet with the Jury Summons which covers trial procedures, the difference between civil and criminal cases, the telephone information service, empanelling of jurors, rights of challenge, election of foreman and how to obtain further information. This document should be expanded into a booklet dealing in an interesting, informative and comprehensible way with the following matters:

• the history of the jury system;
• the nature of the jury - its constitution and its place in the trial;
• the distinction between civil and criminal trials and the place of jury trials in thejustice system,
• the jury selection process, including the possibility that panels will be cancelled and that individuals will not be balloted or will be challenged;
• general information for prospective jurors - jury fees and travelling expenses, court hours, isolation during trial and deliberations, the law as to employers of jurors;
• the juror’s role in the trial - taking notes, asking questions, the text and meaning of the oath and a note to the effect that a juror may make an affirmation and how this wish is to be indicated;
• the respective roles of the other participants in the trial;
• the conduct of trials; and
• common legal concepts.

The responsibility for preparing a booklet of this kind rests generally with the Attorney General’s Department which has produced such booklets in the past. One Organisation which should be in a position to offer expertise is the New South Wales Legal Aid Commission which is empowered to:

. . . initiate and carry out educational programmes designed to promote an understanding by the public, or by sections of the public, of their rights, powers, privileges and duties under the laws of New South Wales.⁵

6.14 Information provided before trial in this manner would have several beneficial effects. It would, if properly produced, assist in setting jurors’ minds at ease about what is expected of them and would familiarise them with some of the important aspects of the task ahead of them. This in turn would permit jurors to focus their concentration more fully on the task at hand and would also give them a greater feeling of participation and control, enhancing their confidence and morale. The surveys we conducted revealed a need among prospective jurors for further information before coming to court.

D. Showing a Short Orientation Video Film

6.15 In our Discussion Paper (para 5.11) we raised the issue whether prospective jurors should be shown a video film before jury empanelment proceeds. This method of jury orientation is used in some of the United States. In contrast to the favourable response to our proposal for the provision of an explanatory booklet, fewer than half (15 of 32) of those responding to our Discussion Paper on this point felt a video film would be a good idea. Although there may be difficulties in producing a film which avoids stereotyping the trial participants and prejudicing particular cases, there are positive benefits to be obtained from a suitable film. The most important of these is both the consistency and increased effectiveness of the orientation of jurors which would be achieved if a standard tape were shown to prospective jurors. We understand that the Sheriff is already Investigating the feasibility of such a film.

E. Estimating the Length of the Trial

Recommendation 36: It would be good practice for the Judge to indicate the estimated length of the trial to the jury panel. If the trial is expected to be lengthy, the judge should invite applications to be excused on the ground that jury service for that length of time would be likely to cause hardship.

6.16 Such notice would be desirable if only as a matter of fairness and courtesy to prospective jurors. Even if the trial is expected to be a short one, knowledge of this fact could allay concern among some jurors. There are, moreover, other benefits to be obtained. If such an indication were to be given, the risk that the jury might be reduced over time through unavailability of jurors would be limited. The current difficulty, noted by one judge making a submission to us,⁶ of estimating trial length in advance would be eased with the introduction of pre-trial hearings to discuss this among other matters. The obvious desirability of this procedure is highlighted by the fact that those responding to our Discussion Paper were unanimously in favour of it. At present only one-fifth of the District Court judges who responded to our survey and fewer than one-fifth of the Supreme Court judges always give this notice to the jury panel. We expect that most of the remainder do give such a notice when the trial is expected to be lengthy.

III. INFORMATION PROVIDED AT TRIAL

A. Judge’s Orientation Address to the Jury

Recommendation 37: It would be good practice for the judge to address the jury at the beginning of every criminal trial on:

(a) the general course of the trial;

(b) the role of the jury; and

(c) such principles of law as the Judge considers will assist the jury in their understanding of the case.

6.17 In our Discussion Paper (para 6.2) we recognised the need for preliminary directions as a means of focusing the jury’s attention on the task at hand. One respondent to our Survey of Jurors made the following comment:

It would have helped had we known more in advance. We always felt that everyone else - the crown, the defence and the judge, knew so much more than we did about the trial and yet we the jury were going to have to make the verdict.

Judges responding to our Survey of Judges varied greatly in their views as to which of such preliminary information should be provided, although almost 90% of responding District Court judges (26 of 29 respondents) and 75% of responding Supreme Court judges (9 of 12 respondents) agreed that the jury would be assisted by preliminary instructions on all or some of the matters listed. Current judicial practice varies greatly. For example, almost one-quarter of responding judges always give a preliminary instruction on the burden and standard of proof, but fully one-half never do so. It could be that some of the latter group require the Crown Prosecutor to give this information in the Crown opening. Well over one-half of responding judges always explain the sequence of events to be followed at the trial and the general role and obligations of Jurors, but 40% of them never explain the nature of the case at hand, again possibly leaving this matter to be dealt with in the Crown opening. The Commission believes that it is appropriate for the judge to provide information and instruction on these matters.

To acquaint the juror with his duties and responsibilities in a new environment and to increase his understanding of the processes of a trial can hardly be objectionable . . . ⁷

All but one of the respondents to our Discussion Paper who made submissions on this point agreed generally with this proposal.

6.18 The orientation address would give the jury time to settle into their surroundings and should allow for jurors to ask questions to clarify points made. We envisage that the judge’s address would briefly cover at least the following matters:

• the procedure to be followed, including the order of presenting evidence and the examination of witnesses, the functions of the judge and counsel, and the fact that the jury may need to be excluded while matters of law are determined;
• the role of the jury, including the function of the jury as sole judges of the facts, the restriction of their consideration to the evidence, admonition as to outside conversation and newspaper, radio and television reports during the trial, and an explanation of the verdict and how it is reached; and
• basic matters of law, including the presumption of innocence, the standard and onus of proof, and such other matters as are appropriate to the particular case.

6.19 The practice of instructing the jury on the law at the beginning of a trial may overcome the following existing problems:

• the difficulty for jurors of fitting the evidence and their impressions of witnesses into a legal framework provided only after the presentation of evidence;
• the danger that the jury will not assess the evidence in the light of the relevant legal principles; and
• the difficulty of redirecting a jury at the end of a trial throughout which it has misunderstood the matters at Issue, the Crown’s burden and/or its own role.

We consider that at least elementary instructions should be given to focus the jury’s attention on the matters at issue. Preliminary instructions would provide the appropriate framework to focus jurors’ reception and retention of the evidence and arguments and their discussions before their deliberation. This framework could be amended when it becomes necessary throughout the trial and in the summing-up. Currently, however, more than half of the judges surveyed (26 of 41) never instruct a jury at the beginning of the trial on the elements of the offence charged.

1. Jurors’ Right to Take Notes

Recommendation 38: The Jury Act 1977 should be amended to confirm the right of jurors to take notes and to require that:

(a) jurors be provided with the means to take notes;

(b) the judge advise the jury of their right to take notes;

(c) jurors not remove any notes from the courthouse; and

(d) after the trial, notes made by jurors should be destroyed by order of the court.

6.20 Just under one-third of jurors who completed the Commission’s Survey of Jurors had taken notes during the trial. Almost one-half of those respondents (506 of 1050) who did not take notes stated they would have been assisted by notes. Most judges, however, do not encourage jurors to take notes. Only one-quarter of judges surveyed tell jurors that they may take notes at the outset of the trial and one-fifth never give this instruction. One judge commented:

It may be desirable for the jury to note figures (amounts of money etc). Otherwise I think it is a dangerous practice. it could result in a defective record of the evidence being made privately and with no notice of it to anyone. The record should be public and open to everyone, although I would not generally be in favour of the jury having the actual transcript of evidence as opposed to the evidence read to them.

Another judge suggested that note-taking “should be limited to trials containing complex or technical issues”.

6.21 Most of those making submissions on this question favoured our proposal that juries be provided with notebooks and told of their right to take notes. Most of the objections against juror note-taking were listed in our Discussion Paper (para 6.15). They are:

• the danger of a juror with notes exerting greater Influence because of them;
• the danger that notes will not reflect the relevant issues and may be unreliable; and
• that note-taking will be distracting.

These objections can be directed equally against unaided reception of oral evidence. In other words, they are the dangers inherent In jury trials. Note-taking can be seen as one way to mitigate the problems of retention and Organisation of evidence which jurors face. As one eminent Hong Kong practitioner noted in his submission to the Commission:

Judges make notes, counsel make notes, solicitors make notes, policemen use notes so why should not jurors be given the opportunity to make their own notes. If jurors are likely to argue about notes they are equally likely to argue about their recollection and impression of witnesses.⁸

While we consider that jurors should have a right to take notes, we do not propose that this right should be unqualified. Jurors’ notes should be used solely for the purposes of their deliberations. To avoid improper use of notes after the trial and, particularly, in the interests of the confidentiality of the jury’s deliberations, the notes should be left behind when the jury is discharged and should later be destroyed. The majority of the Commission consider that this right should be incorporated in the Jury Act by a provision modelled on the following Illinois rule.

A petit juror in any court of the state of Illinois shall be entitled to take notes in connection with and solely for the purpose of assisting him in the performance of his duties as a juror, and the sheriff of the county in which such juror is serving shall provide writing materials for that purpose. Such notes shall remain confidential, and shall be destroyed by the sheriff after the verdict has been returned or a mistrial declared.⁹

Mr Justice Roden does not support the terms in which this recommendation is expressed. Whilst agreeing in principle with the right of jurors to take notes, he does not consider it should be a statutory right, nor that it should be mandatory for judges to direct juries in the manner recommended by the majority.

2. Jurors’ Rights to Ask Questions

Recommendation 39: It would be good practice for the Judge to advise the jury, in his or her opening remarks, of their rights:

(a) to direct queries to him or her concerning the case;

(b) to request that questions be asked of witnesses; and

(c) to ask for a view.

Recommendation 40: It would be good practice for the Judge to advise the jury, at the end of the summing-up, of their rights:

(a) to request clarification of the summing-up; and

(b) to request that portions of the transcript of the trial be read to them.

6.22 These procedures would enhance the jurors’ ability to participate in the trial and would go some way towards ensuring that jurors understand the evidence. Over one-third of the judges who completed our Survey of Judges never advise jurors at the beginning of the trial of their right to ask questions, while approximately another third always do so. If jurors were advised of their right to ask questions, it is likely that more of them would be inclined to do so. Over one-half (55.8%) of the 197 juries surveyed in our Survey of Court Procedures did not ask any questions during the trial or their deliberations. Those which did asked questions mainly during the jury’s deliberations. These questions were chiefly requests to be reminded of the evidence or of the summing-up. Of a total of 201 questions asked, only 65 (32.3%) were requests made during proceedings for additional evidence or for clarification of the evidence. In all only 16% of juries (31 of 197) sought additional information and clarification in the course of proceedings. While we consider it to be very important that jurors should feel free to participate in the proceedings, it could, naturally, be disruptive to counsel’s presentation of the case if jurors were permitted to interrupt at will. It is counsel’s function to present the evidence to the jury. In order to avoid unwarranted interruption, jurors should be told to submit their questions to the judge. The jury should also be cautioned to wait until the examination of a witness is complete before submitting questions.

3. The Role of the Jury Representative

Recommendation 41: The person chosen by the jury to communicate with the court and announce the verdict should no longer be referred to as the foreman but should in future be referred to as the jury’s representative. The term foreman is likely to mislead jurors about their respective roles in the jury room.

6.23 We have considered the proper role of the jury representative, currently known as the foreman, and have determined that the present description “foreman” does not accurately describe the position of this juror. The representative is not a leader in the jury group but an equal with the 11 other jurors. It is important, we consider, that the name given to the representative should not lead other jurors to believe that that person has more influence than they. We have also been concerned at the continuing use of the masculine form in referring to the representative. We consider that the term “representative” best describes the functions of this position and has the advantage of being suitable whether the person is male or female.

6.24 Currently most judges require the jury to elect a foreman as soon as convenient. The difficulties juries face in this matter were described by one recent juror who made a submission to the Commission.

The present method of nominating a foreman leaves much to be desired. How can one assess the capabilities of a proposed foreman when 12 mostly nervous strangers have only just met? In my view it needs someone experienced in controlling a discussion group and with a knowledge of court affairs to act as liaison between the jurors and the judge. The most competent person isn’t necessarily the most voluble and I fear this latter characteristic is often the criteria used to hastily select a foreman.¹⁰

We recognise that there may be cases in which the jury is reluctant to commit itself as a group to one representative in the very early stages of the trial. We have considered whether the jury should be formally directed as to the timing and manner of the appointment of the representative. We have determined that the procedure to be followed in this regard is best left to the decision of each jury. This is a subject which should be covered in the explanatory booklet suggested in recommendation 35 (para 6.13).

B. The Juror’s Oath or Affirmation

Recommendation 42: The juror’s oath or affirmation should be simplified and should state clearly the juror’s obligation to give a verdict according to the evidence presented in court.

6.25 In the interests of fairness, both to the jurors themselves and to the parties, the effectiveness of the jurors’ performance of their task and the reliability of their verdict, the form of the oath or affirmation should communicate clearly and unambiguously the jurors’ obligations. New South Wales jurors are currently required to acknowledge that they will:

. . . well and truly try and true deliverance make between your Sovereign Lady the Queen and the accused whom you shall have in your charge and a true verdict give according to the evidence.

The juror’s oath has recently been simplified in England¹¹ and Western Australia. An oath or affirmation similar to that used in Western Australian should be adopted in New South Wales.

I swear by Almighty God to (or, I solemnly and sincerely declare that I will) give a true verdict according to the evidence on the issues to be tried by me.

The Sheriff should instruct his officers to inform jurors that they may either make an affirmation or take an oath.

IV. PRESENTING THE EVIDENCE, ARGUMENTS AND SUMMING-UP TO THE JURY

A. The Defence Opening

Recommendation 43: The Crimes Act 1900 should be amended to permit the accused person or defence counsel, immediately after the Crown’s opening address, to announce any matters of fact which are not in issue and outline briefly the issues in the defence case.

6.26 It is the practice in the United States for the defence to open immediately after the Crown opening. We do not suggest that the defence be entitled to open at this stage, rather they could make a short announcement briefly outlining the issues to be contested but not referring to evidence proposed to be called. The purpose of such an announcement, where defence counsel chooses to make it, would be to alert the jury at an early stage of the trial as to the nature of the accused person’s defence. In this way the issues in the case could be narrowed and defined. To avoid the disadvantage to the Crown which could arise if the Crown opening were to be substantially separated from the Crown case, the defence outline (or outlines in the case of multiple accused) should not be lengthy or argumentative. Rather this opening should simply outline the issues and identify those matters not in contention. Time could be saved in some cases where this option was exercised because the number of disputed matters could be reduced. It is likely that the jury’s understanding of the case would be increased. Their efforts can be concentrated on the issues rather than on assessing evidence that is not in dispute. We emphasise that this procedure should naturally be an optional one as there is no obligation on the accused person to put forward a defence to a criminal charge.

B. Introduction of Witnesses

Recommendation 44: The Crimes Act 1900 should be amended to provide that counsel may introduce a witness to the jury by briefly stating the issues to which the witness’ evidence relates.

6.27 This procedure should also be optional. Its adoption would assist the jury to focus attention on the relevance of the witness’ evidence and place It in perspective. There should be no danger that the jury could confuse what the witness actually said with the introduction because the latter would be limited to a very brief factual statement along the lines. for example, of “this witness will give evidence as to the cause of death”. Judges surveyed by the Commission did not generally favour this proposal with 75% of responding Supreme Court judges (9 of 12) and 65% of responding District Court judges (19 of 29) opposed. Some judges were concerned that the introduction could be abused, giving unfair weight to the witness’ evidence and not much assistance to the jury. On the other hand, some judges were favourably disposed to the idea recognising that such an introduction would assist the jury to focus on the important parts of the evidence. It was suggested that the procedure would be particularly useful in complicated trials where there may be a long gap between the Crown opening and the calling of a particular witness, or where there may be a large body of formal evidence which is not in dispute.

C. Technical and Scientific Evidence

Recommendation 45: Statute should provide that, if the judge considers it would assist the jury and would not cause unfairness, the evidence of an expert witness may be given by:

(a) the witness reading a document;

(b) a party tendering the document, provided that the witness is available to give oral evidence if required; or

(c) the witness presenting the evidence in any other manner or form approved by the judge which is not already permitted by the laws of evidence.

6.28 Judges responding to our survey tended to agree that scientific and technical evidence is a major cause of jury trial complexity. Over one-half (24 of 41) of judges surveyed considered that some trials are too complex to be suitable for a jury and about three-quarters of that group cited scientific and technical evidence as one of the causes of that complexity. For the reasons set out in para 2.4, we strongly support the retention of the jury as the arbiter of guilt In serious criminal cases. It is vital that the system be made suitable for juries and we regard the alternative solution of reducing or abolishing the use of juries as inferior and unacceptable. The procedures proposed as possible alternatives to the presentation of expert evidence in oral examination would potentially improve the jury’s understanding of it. Expert witnesses and those calling them have a special obligation to present their evidence in a manner which is unambiguous and precise, and which is comprehensible to the jury. The availability of the alternatives proposed should encourage counsel and witnesses to give careful thought to the best means of presenting complex technical or scientific evidence in a jury trial. We are impressed, for example, by the way in which some science documentaries broadcast on television are able to convey difficult concepts in a manner which can be understood by the public.

D. Other Evidence

Recommendation 46: All courtrooms in which jury trials are heard should be supplied with equipment which could be used by counsel, witnesses or the judge to assist in presenting the case to the jury in a more effective way.

6.29 The presentation of evidence to the jury in a criminal trial is almost exclusively by way of the spoken word. Witnesses give their evidence orally, the addresses of counsel are in the form of speeches and the judge’s summing-up is supplemented by written material only in exceptional cases. The experience of teachers and others whose task it is to communicate sometimes complex information to an audience unfamiliar with the subject clearly demonstrates that effective communication cannot always be achieved by exclusive reliance upon the spoken word. it is obvious that, from time to time, the task faced by counsel or the judge in presenting factual or legal issues may be simplified by other forms of presentation. Some experienced practitioners who have assisted the Commission have stressed the need for basic equipment in courtrooms. For example, at the close of a long trial, it would greatly assist the jury for photographs of the witnesses to be projected onto a screen as their evidence is referred to by counsel in closing addresses. This would assist the jury to remember the evidence of each witness and the impression they formed of him or her. Effective communication could also be assisted by the use of less sophisticated equipment such as blackboards or whiteboards for presenting the case in a more graphic manner. There should not be any objection to the jury itself having access to these materials where they feel that it would be of use to them.

E. Judge’s Instructions to the Jury

6.30 Studies have revealed a large number of difficulties in the comprehensibility of common judicial language.¹² These difficulties raise serious doubts as to whether juries fully understand some of the instructions of law they are given. In our Survey of Judges we asked whether standard jury instructions would ease this problem. Some two-thirds (27 of 41) of responding judges considered standard form instructions would assist jurors. A higher proportion, about three-quarters of respondents, considered standard forms would assist judges themselves. Draft standard instructions have been developed by a committee of Supreme Court and District Court judges in New South Wales partly with a view to improving the level of comprehension among jurors. In our Discussion Paper (para 6.29) we described the further development needed and foreshadowed that the Commission would be involved in this research. The empirical testing and expert development of standard instructions is a lengthy process and involves other considerations which are not relevant to juries. For these reasons we have deferred discussion of standard jury instructions until a later stage of our reference.

F. Communicating with Juries

Recommendation 47: Archaic terms and concepts should be eliminated from all communications to the jury. The jury should not be provided with a glossary of legal terms because this would encourage the use of legal jargon in jury trials.

6.31 In our Discussion Paper (para 6.8) we raised the issue whether juries should be provided with a glossary of legal terms. Only 13 of the 34 people making submissions on this issue felt that such a glossary should be provided. We consider that the availability of a glossary to the jury would further entrench the use of legal jargon injury trials.¹³ We would not wish to encourage this. Counsel and judge should try to use plain English, especially when communicating with the jury.

One of the keys to effective communication is to use the language of the person to receive the message, rather than that of the person delivering it.¹⁴

We consider that archaic terms and concepts should be eliminated from all communications to the jury. We have suggested (Recommendation 42, para 6.25) simplification of the jurors’ oath by the dropping of outdated language such as “true deliverance make” and “have in your charge”. Similar changes should be made to all other communications with the jury and to indictments themselves. To avoid misunderstanding, the archaic language and awkward phrasing of indictments should be abandoned and all indictments cast in modern English. Another important example is the form of words often used to place the accused person into the charge of the jury. The jury is told:

Upon this indictment [name of accused person] has been arraigned and upon the arraignment he has pleaded that he is not guilty. Your charge, therefore, is to inquire whether he be guilty or not, to hearken to the evidence and to give your verdict according to the evidence.

All such statements should be phrased in clear and simple language.

V. MATERIALS TO ASSIST THE JURY

A. The Documents in the Case

Recommendation 48: It would be good practice for the jury to be provided with multiple copies of photographs and documents as they are admitted into evidence where the judge considers this would assist the jury.

6.32 The provision of the indictment would ensure that no misunderstanding, at least as to its text, would arise among the jurors. Understanding would also be enhanced if each juror received a copy of each documentary exhibit and photograph as it is admitted into evidence. Each juror would then be in a position to follow the explanation of the exhibit as it is given by the witness. The desirability of this procedure was recognised by Mr Justice Lee of the Supreme Court of New South Wales in an address to the Institute of Criminology in 1982.

If, for instance, a record of interview is to go into evidence, the jury should have a copy of it in their hands when counsel is cross-examining on it. How often have I seen an effective cross-examination of police officers on a record of interview, go right over the heads of a jury because they could not follow the fine but significant nuances which counsel was seeking to reveal.¹⁵

The opportunity to refer to the relevant photograph or document is also invaluable when reference is made to it in closing addresses or summing-up. Over one-half (55.1%) of people who completed Jurors’ Surveys (981 of 1834 jurors) had not been provided with an individual copy of documentary exhibits and photographs. Almost one-half (48.2%) of those people (473 of 981) stated they would have found an individual copy helpful. We are aware of the practical difficulties which could arise in some cases in providing the jury with individual copies of documents and photographs. For this reason we do not propose that the practice should be mandatory. The question whether the practice is to apply in a particular case should be decided by the judge. In some cases it would be convenient for this determination to be made at a pre-trial hearing. There are many cases in which the provision of copies of documentary exhibits would be valuable. The practice would extend to jurors an aid available as a matter of course to judges both at the trial and at the appellate level.

B. The Transcript

Recommendation 49: The Jury Act 1977 should confirm the discretionary power of the judge to provide a copy of all or part of the transcript of evidence to the jury in the jury room.

6.33 The jury should be assisted to deliberate effectively and rationally on the evidence presented in court. We have recommend above (Recommendation 38, para 6.20) that jurors should be provided with notebooks as a matter of course and permitted to make notes during the trial. The provision of the transcript in addition could compensate for any lack of reliability In the notes made and could save time in the jury’s deliberations. The transcript would be particularly useful where complicated technical or scientific evidence has been given. It is our firm view that when a jury requests a transcript which records such complex evidence it should be kept from them only for very sound reasons. We recommend above (Recommendation 45, para 6.28) that complex evidence might be tendered in documentary form. We also recommend (Recommendation 48, para 6.32) that a copy of the document be given to the jury. If this is done, the jury should also have that portion of the transcript recording the cross-examination, if any, on the document. The provision of the transcript is one way of ensuring that the information upon which the jury acts is accurate. Almost 17% of questions asked by juries (34 of 201 questions asked) recorded by our Survey of Court Procedures were requests to have part of the transcript read to them. One juror stated that “The jury was surprised that a transcript was not available”. Nearly one-half (45%) of jurors completing Jurors’ Surveys stated that they would have been assisted by a copy of the transcript.

6.34 Almost 40% (16 of 41) of judges responding to our Survey of Judges, however, considered that juries would never be assisted by access to the transcript. These judges were concerned that jurors would lose the factual picture in their attempts to find relevant sections in unedited and un-indexed transcripts. On the other hand, another 40% of judges surveyed (17 of 41) believed that a transcript might be provided in certain situations. For example, one judge suggested that the jury should have the transcript:

. . . where the case turns upon:

(a) precise words in conversation;

(b) a comparison of details of events given by witnesses;

(c) complex descriptions.

In some cases it will no doubt be appropriate for the jury to be provided with the transcript. When the transcript Is provided the judge should, of course, remind the jury that they should also take into account the Impression they received of the witnesses when giving oral evidence. The major administrative problems In providing a transcript are that:

• it may be impossible to produce a transcript in time and, in some districts, at all;
• the transcript would have to be edited to ensure inadmissible material was omitted; and
• the transcript would still lack indexes and markings to guide jurors to the section required.

None of these difficulties is insurmountable. The impact of the practical problems to which we have adverted can be reduced, although not entirely avoided, by recognising that it would only seldom be appropriate to provide more than part of the transcript. We consider that the transcript may be so useful in some cases that judges should have the option to provide it.

6.35 Another means of recording the evidence presented in a criminal trial should be considered. We are aware of developments overseas, particularly in Canada and the United States, which take advantage of the technological equipment currently available for recording and storing information. This equipment, which we acknowledge is too expensive to be installed in courtrooms in New South Wales at this time, could be adapted for use in criminal trials in the future. The evidence of witnesses could be recorded by electronic equipment linked to a computer. This would permit the immediate recall of the evidence by the press of a button. It could also be used to store the information contained in documentary exhibits. Some insight into the way in which a jury might conduct its deliberations in the future is given in the Report published by the Shorter Trials Committee in Victoria.¹⁶

C. Written Directions of Law

Recommendation 50: The Jury Act 1977 should confirm the discretionary power of the judge to give the jury any direction of law in writing.

6.36 Whilst it is clear that judges currently have this power,¹⁷ some are wary of exercising the discretion over the objections of counsel. A statutory provision would clarify the position and confirm that judges have this discretion. Over one-half (24 of 41) of judges surveyed by the Commission considered that juries could be assisted to understand complex or difficult oral directions of law if the directions were also provided to them in writing. Some judges, however, suggested that lucid oral exposition and repetition accompanied by jury note-taking are preferable to providing written directions. There are, of course, practical problems in producing written directions in advance of the summing-up. However, there are many cases in which written directions could be of great assistance to the jury. One outstanding example is the direction on self-defence which judges are required to give.¹⁸ Another example is the case in which complex issues arise together. The jury would often find useful a document setting out the elements of the offence being tried. If provided to them at the commencement of the trial, such a document would be particularly useful when linked to counsel’s introduction of witnesses by reference to the issues to which their evidence relates (Recommendation 44, para 6.27). Over one-half (52.8%) of the jurors completing Jurors’ Surveys (969 of 1834) stated they would have been assisted by having a written copy of the whole or a part of the judge’s summing-up.

D. Written Statement of Alternative Verdicts

Recommendation 5 1: It would be good practice for the judge in suitable cases to provide the jury with a statement setting out the available verdicts and the circumstances in which each is appropriate.

6.37 Everyone making submissions to the Commission on this point agreed generally with this proposal in our Discussion Paper (para 10. 18). This procedure would ensure a more formally correct verdict and could be used to give order to the jury’s deliberations. The procedure was approved by the New South Wales Court of Criminal Appeal in Petroff.¹⁹ Nearly one-half (48%) of jurors surveyed by the Commission (880 of 1834) stated they would have been assisted by a written statement setting out the available verdicts. There are obviously some relatively straightforward cases where this procedure would not be necessary. Where, for example, the accused person is tried alone on a single count which does not admit of any alternative verdict, it would hardly seem necessary to give the jury a written statement of the alternative verdicts. If, however, there is more than one accused or more than one charge, then a list of the relevant questions the jury is to be asked, in the order they are to be asked, would be of value in ensuring a correct verdict is announced.

E. Material Exhibits

Recommendation 52: The Jury Act 1977 should be amended to provide that the judge may order that an exhibit should not be available to the jury in the jury room where the safety of the jurors or the integrity of the exhibit could be at risk.

6.38 In general all exhibits accompany the jury into the jury room when they retire to consider their verdict, although there may be a discretion to exclude “exhibits of a highly inflammatory and prejudicial character”.²⁰ Apart from this latter category of exhibits, there may be exhibits which should be kept from the jury for other reasons. Such exhibits are of two kinds.²¹ Firstly, there will be some exhibits which require expert supervision because of their dangerous character and which could put the jurors at risk if left with them unsupervised. Secondly, there are exhibits of a sensitive kind whose own integrity would be at risk if subjected to the jurors’ scrutiny. In both cases, the value of access to the exhibits to assist the jury in their deliberations must be balanced against the risks involved. The discretion of the judge to exclude exhibits on these grounds should be confirmed.

VI. JURORS’ CONDITIONS OF SERVICE

A. Refreshment and Amenities

Recommendation 53: Section 55 of the Jury Act 1977 should be amended to provide that jurors have a right to be provided with reasonable amenities and refreshment during adjournments of a trial.

6.39 This proposal, advanced in our Discussion Paper (para 5.14), won the overwhelming support of people making submissions to the Commission. It is proposed for the sake of certainty and fairness. The jury system has evolved considerably since the days when jurors were not permitted to eat or drink while deliberating. Section 55 of the Jury Act currently empowers the judge to permit the jurors to be supplied with such refreshments as he or she thinks fit. Just as jurors have a statutory right to a fee, their right to daily sustenance at the court’s expense should be recognised and stated. Since it is inappropriate to define in the Jury Act what are “reasonable amenities and refreshments”, we do not make detailed recommendations on this question. We note, however, that substantial improvements to the existing conditions are clearly necessary, although we are aware of the practical difficulties in dealing satisfactorily with all suggestions. Of greatest concern is the complaint of many jurors responding to our Survey of Jurors that they had been unable to hear some or all of the witnesses, counsel and judge. Microphones are clearly called for in some, if not all, court rooms. In addition, a large number of responding jurors complained about the uncomfortable seating In the jury box. We consider that early attention should be given to this matter.

B. Jury Fees

Recommendation 54: The Regulations to the Jury Act 1977 providing for the amount of jury fees should be amended to provide that the fee should be:

(a) $23 for a person attending but required for less than four hours on one day only;

(b) $46 per day for each of the first five days of jury service; and

(c) the equivalent of one-fifth of New South Wales male average weekly earnings for the sixth and each subsequent day of service subject to a deduction in respect of any wage or salary income the juror is entitled to receive.

6.40 Since 1978 annual increases injury fees have ensured that they maintain rough parity with the New South Wales male average weekly minimum wage. A Review of the Allocation, Utilisation and Funding of Juries prepared within the New South Wales Attorney General’s Department in August 1985 recommended that costs could be saved if increases in the jury fee were made only once every two years. The Commission considers that jurors should not suffer in the interests of cost-cutting. If jurors themselves and the community at large are to believe that Juries are a very important component in the criminal justice system, then jurors should be given fair payment for the work they do. The Commission considers that the current fee of $46.00 per day is appropriate In short trials (ie one week or less) but that in longer trials the fee should be increased so as to reflect the greater demands placed on the jurors and the likelihood that their personal lives will be more severely disrupted by a longer trial. The jury fee is currently recognised as payment for the work of jurors and not in any sense as compensation for loss of earnings. As such a payment, however, the current fee under-values the difficulty and the importance of jury service. A juror serving in a trial lasting eight sitting days, for example, currently receives fees totalling $379.00.²² Under our proposal such a juror would receive a little over $488.00. Because this would make jury service on long criminal trials less of a burden to income earners, it would mean that a wider range of people would be available to serve on such long trials, thereby enhancing the representative character of the jury in a long criminal trial. A detailed costing of our proposal is set out in Appendix B.

6.41 The Jury Act 1977 does not require an employer to continue paying a salary to an employee who serves on a jury. There are, however, a number of employers who do not stop an employee’s wage or salary when the employee is performing jury service. This is so especially when the period of service is short. In the Commission’s view a juror whose employer continues to pay him or her during his or her period of service should not receive an advantage over a juror whose employer does not. No juror should receive a dual income for the period of jury service. In our Discussion Paper (para 5.22) we sought to meet this problem by suggesting that where a juror continues to receive a wage or salary he or she should only be entitled to an amount over and above his or her income for the period of service so that the total equals the full amount of the jury fee. One difficulty with this proposal is that people may be tempted not to declare income received from other sources and so gain an unfair advantage over more honest jurors. Furthermore the Sheriff’s Office has indicated that the proposal put forward in our Discussion Paper would create serious administrative difficulties.

6.42 We have reconsidered our earlier proposal in the light of these problems. Our recommendation is that an amount in respect of salary and wages received should only be deducted from the jury fee payable for the sixth and subsequent days, that is when it is paid at the higher rate. Only about 8% of jurors serve for six days or more (see Appendix B) and thus the problem of administering this aspect of the payment system would be less significant.

6.43 An employer who does not receive the services of an employee for over a week due to jury service may well be justified in refusing to continue paying the employee’s wage or salary. The burden of the cost of jury service should fall on the State and not employers. Nevertheless, it should remain open for employers to “top-up” an employee’s earnings for the period, and for employees to bargain for awards to require employers to continue paying their wages or salaries, or to “top-up” their earnings, whilst employees serve on juries. Employees earning more than the jury fee are particularly likely to find this course desirable.

6.44 The Commission’s proposal would mean that the expenditure on fees for serving jurors would increase by about eight per cent (see Appendix B). Some of our other proposals would dramatically reduce the number of prospective jurors summoned, attending court and, being not required or excused, only being paid for a half day’s attendance. These recommendations include:

• improvement of the Notification of Inclusion on a Draft Jury Roll;
• improvement of the Jury Summons;
• improved efficiency in the Sheriff’s dealings with applications to be excused; and
• reduction in the number of peremptory challenges.

C. Personal Injury Compensation

Recommendation 55: The Jury Act 1977 should be amended to provide that jurors injured at court or on their journey to or from court should be compensated on the same basis as applies to in ured employees pursuant to the Workers Compensation Act 1926.

6.45 At present a person injured whilst serving on a jury usually receives an ex gratia payment from the Department of the Attorney General, but generally only if the injury takes place in court. In our view injured jurors should have the same rights to compensation as employees. Like employees they should have an enforceable right to compensation and they should be covered for injuries which they receive on the way to and from the court as well as when actually present. All but one of those making submissions in response to our Discussion Paper (para 5.25) agreed with this proposal, and several people expressed surprise that it did not already apply. This basic protection should be extended without delay.

1. B J O’Donnell, Letter, The Age 9 August 1985.

2. Jury Act 1977 s61.

3. Id ss27(2), 31(2).

4. Id s27(2). This power may be used, for example, when a jury is discharged during country sittings and the judge determines to recommence the trial the following day. The Sheriff can contact jurors summoned for a later trial and bring the date forward.

5. Legal Aid Commission Act 1979 s10(2)(m).

6. His Honour Judge B R Thorley, 12 November 1985, pp3-4.

7. People v Izzo 14 Ill (2d) 203 p209; J J DeSanto “Improving the Trial Process” (1984) Illinois Bar Journal 166 p167.

8. J R Sulan, Deputy Crown Prosecutor, Hong Kong, Submission, 5 December 1985, p4.

9. Illinois Revised Statutes ch 78 s36(b) 1983 cited in De Santo see note 7 p167.

10. S Findlay, 12 November 1985, pp1-2.

11. [1984] 3 All ER 528.

12. See for example R P Charrow and V R Charrow “Making Legal Language Understandable: A Psycholinguistic Study of Jury Instructions” (1979) 79 Columbia Law Review 1306; A Elwork, B D Sales and J J Alfini Making Jury Instructions Understandable (Contemporary Litigation Series, Michie Co., Charlottesville Va. 1982) ppl3-14; A N Doob and H Kirshenbaum “Some Empirical Evidence on the Effect of s12 of the Canada Evidence Act upon the Accused” (1973) 15 Criminal Law Quarterly 88; R W Buchanan, B Pryor, K P Taylor and D U Strawn Legal Communication: An Investigation of Juror Comprehension of Pattern Instructions unpublished report cited by L J Severance and E F Loftus “Improving the Ability of Jurors to Comprehend and Apply Criminal Jury Instructions” (1982) 17(1) Law and Society Review 153 p174; R Forston “Sense and Non-Sense: Jury Trial Communication” [1975] Brigham Young University Law Review 601; D U Strawn and R W Buchanan “Jury Confusion: A Threat to Justice” (1976) 59(10) Judicature 478.

13. See Fraud Trials Committee (Chairman: Lord Roskill) Improving the Presentation of Information to Juries in Fraud Trials, Research Study No. 1, A Black “The Effects of Glossaries on Jurors’ Comprehension in Fraud Trials” (HMSO, 1986).

14. The Hon Mr Justice Adrian Roden “The Law and the Gobbledegook” Proceedings of the Institute of Criminology University of Sydney Criminal Evidence Law Reform 1981) pp28-29.

15. Proceedings of the Institute of Criminology, University of Sydney The Criminal Trial on Trial (1982).

16. Report on Criminal Trials (September 1985) pp 1 95-198. See also “Judges and Lawyers with Wigs, Gowns and Floppy Disks” The Age 21 Jan 1986 p41.

17. R v Ruano (unreported) Supreme Court of New South Wales, Court of Criminal Appeal, 15 February 1977; R v Salem (unreported) Supreme Court of New South Wales. Court of Criminal Appeal, 13-14 March 1979; R v Petroff (1980) 2 A Crim R 101.

18. Viro v The Queen (1976-78) 41 CLR 88 p 1 46-147 per Mason J. See also Morgan v Coleman (1981) 27 SASR 334 and R v McManus (unreported) New South Wales Court of Criminal Appeal, 21 June 1985 per Street C J, discussed at (1985) 59 Australian Law Journal 644.

19. (1980) 2 A Crim R 101; See also R v Mills and Others (unreported) Supreme Court of New South Wales, Court of Criminal Appeal, 19 July 1985.

20. Kozul v The Queen (1980-1981) 147 CLR 221 at 234 per Stephen J.

21. Law Reform Commission of Canada The Jury (Report 16 1982) pp73-74.

22. Jury fees in other jurisdictions are as follows:

(1) Victoria: $25 per day for days 1-6; $50 per day thereafter: Statutory Rule No 23 1982 reg 4B.

(2) Queensland: $31.50 per day for days 1-3; $38 per day for days 4-10; $47.50 per day for days 11- 15: S54 per day for days 6-20; $77.80 per day after the 20th day: Rule of Court IS October 1984.

(3) ACT: $55 per day: Juries Fees Regulations No 46 1982.

(4) Western Australia: $15 per day for days 1-3; $20 per day for days 4- 10; at discretion of Attorney General after day 10: Govt Gazette 13 August 1982.

(5) South Australia: $20 per day: personal communication, Sheriff of South Australia.

(6) Tasmania: What is lost in salary up to $60 per day: Jury Amendment Regulations No 2 1974 reg 2(a).

(7) Northern Territory: $60 per day: personal communication, Sheriff of Northern Territory.

In Queensland, Western Australia, South Australia and the Northern Territory there are provisions for jurors to claim, in addition to the jury fee, compensation for actual economic loss.