I. INTRODUCTION

7.1 Our goal is to reduce the incidence of and the potential for bias and prejudice in criminal trials. There are positive steps which can be taken to eliminate actual bias. There are also measures which reduce the potential for prejudice. The introduction of the former will have a direct effect upon the substance of justice. The latter should contribute to the appearance of justice. The appearance of justice is itself an important component of the substance of justice.

7.2 The specific recommendations which we make. in order to overcome the existence and influence of bias and prejudice can be divided into three separate areas. in the first place, the issue of pre-trial publicity is considered and recommendations made with a view to reducing the prejudice which may be created by it. Secondly, the conduct of the trial proceedings is examined. Thirdly, there is a recommendation made which concerns procedure after trial. Before dealing with the question of pre-trial publicity we should emphasise that this subject will be dealt with in greater detail in our forthcoming Discussion Paper Procedures Before Trial in Criminal Cases. The matter has been dealt with in our research into the jury system because the rules regarding pre-trial publicity are essentially designed to reduce or eliminate the likelihood of prospective jurors forming views about the case they are to hear before the trial begins. More importantly, those rules should attempt to ensure that any preconceived views cannot be based on material which would not be allowed to be presented in court.

II. PRE-TRIAL PUBLICITY

A. Trial by Judge Alone

Recommendation 56: The Crimes Act 1900 should be amended to provide that, in all criminal cases which are to be tried on indictment, the accused person should have the right to make an application that the trial be conducted by a judge sitting without a jury. Applications of this kind should be determined in the following manner.

(a) The application should not be entertained unless the judge hearing it is satisfied that the accused person has either obtained legal advice on the mafter or understands the nature and consequences of the application.

(b) The onus should be on the accused person to show that there are legitimate grounds for dispensing with the jury.

(c) The decision as to whether the trial should be conducted without a jury should be made by a judge at a pre-trial hearing.

(d) The Crown should be represented at such a hearing and entitled to be heard on the merits of the application.

(e) The accused person should have the right, with the leave of the court, to withdraw the election to be tried by judge alone.

1. The Need for Trial by Judge Alone

7.3 The likely impact of pre-trial publicity on any group of potential jurors is a matter for speculation. Its influence is not always apparent in advance of the trial. In some cases, however, it may be that publicity which is adverse to the accused person is so prolonged and widespread that it is clearly impossible to eliminate its impact upon potential jurors.

7.4 In the absence of a procedure such as the “voir dire” examination of potential jurors used in most parts of the United States, In which jurors can be questioned as to whether they have a preconceived view of the case, there is no really effective way of knowing whether potential jurors have been influenced by pre-trial publicity. For the reasons put forward in paras 4.54-4.56, we consider that this procedure should not be implemented in New South Wales. Since there are cases in which the extent and nature of pre-trial publicity will give rise to concern about the impartiality of jurors, there is a need to examine alternative means of ensuring that the trial is conducted fairly.

7.5 The ability of jurors to put inadmissible and prejudicial material aside when considering the case against an accused person has always been a matter of concern for the administration of criminal justice. Traditionally, elaborate steps have been taken to ensure that juries are not exposed to prejudicial material during the trial. In those cases where these measures have not been effective, the courts have discharged the jury unless satisfied that any prejudice can be overcome by appropriate directions.¹ This is usually done on the basis that the proceedings cannot be continued with any confidence that the jurors will ignore the prejudicial material when considering the case against the accused person. An important factor to be taken into account In deciding whether to discharge the jury in these circumstances Is that justice should not only be done, It should also be seen to be done. The principles which apply when considering prejudicial material during the trial apply equally to prejudicial material published before the trial. The traditional view appears to be that juries are incapable of disregarding seriously prejudicial evidence.

7.6 Judges, on the other hand, have been regarded as capable, by virtue of their qualifications, training and experience, of disregarding prejudicial material to which they are exposed and deciding the case strictly on the admissible evidence. We consider that a judge will normally be better equipped than a jury to disregard prejudicial material so that it does not affect the determination of guilt. There will be cases in which the publicity has been so extensive that the conduct of a fair trial may only be possible if it is by judge alone. For these reasons, we consider that an accused person should have the right, where legitimate grounds are shown, to make an application to be tried by judge alone. In Chapter 10 we recommend that trial by judge alone may be appropriate in other circumstances as well.

7.7 In our Discussion Paper (para 7.23) we suggested that the-problem caused by extensive pre-trial publicity could be overcome by giving accused people the option of trial by judge alone. The response we received on this topic is In our view significant. Among the people who made submissions to its, there was considerable support for this proposal. 46% of those who completed the comment sheet agreed with it. We should note, on the other hand, that we have received a number of other submissions which have questioned the validity of the proposal, chiefly on the ground that they see it as the “thin end of the wedge” which could lead ultimately to the abolition of the use of juries in serious criminal cases. The proposal has been criticised as a measure which contributes to the further erosion of the right to trial by jury in serious criminal cases. It has also been argued that it is unnecessary because the problem which it is designed to solve can be met by more acceptable changes to the current law and practice. In particular, it is argued that strict rules which limit the publication of prejudicial material before trial would eliminate the problem of pre-trial publicity rendering it Impossible to empanel an impartial jury. The existence of such strict rules is of course no guarantee that they will not be broken. Even If offenders were prosecuted, this would not remove the influence on jurors of published prejudicial material.

7.8 The constitutional validity of trial by judge alone is at the heart of a matter which is presently before the High Court. It has been submitted to that Court that, in the case of proceedings for Federal offences, a provision which gives the accused the right to trial by judge alone is in breach of s80 of the Constitution. We deal with this issue in greater detail in Chapter 10 (para 10.40).

7.9 We expect that applications for trial by judge alone will not be frequent. The cases in which pre-trial publicity is widespread are rare. Previous experience of similar provisions has shown that people charged with serious criminal offences which would normally be tried by a jury are reluctant to surrender that right. This is true of the “corporate crime” provisions in New South Wales.² Legislation in South Australia providing for trial by judge alone was enacted in January 1985. No accused person elected this form of trial in the first six months of its operation.³ An apparently different result has been obtained in cases under s476 of the Crimes Act where the choice available to an accused person is either trial by jury or trial before a magistrate sitting alone. By far the majority of accused people elect trial by magistrate. The influence of reduced maximum sentences when the summary mode of trial is chosen, as well as the prospect of having the matter disposed of much more rapidly, are probably significant factors in explaining this result.

2. Procedure on Applications for Trial by Judge Alone

7.10 We have already stated that the right to trial by jury is a fundamental right available to people charged with a serious criminal offence. We do not consider that this important right should be dispensed with without good cause. There should be additional safeguards provided to ensure that an accused person does not, whether through ignorance or under the influence of undue pressure, surrender the rights which he or she is legitimately entitled to exercise. We propose that an application to be tried by judge alone should not be granted unless the judge determining the application is satisfied that the accused person has either obtained legal advice on the matter or understands the nature and practical consequences of the application. There is a similar provision in equivalent South Australian legislation.⁴ The principle which is embodied in this part of our recommendation can be found in the procedures to be followed when an accused person accepts a “paper committal” in place of traditional committal proceedings.⁵ We consider a safeguard of this kind to be essential. It should be borne in mind by those who would regard the very existence of the power to waive such fundamental rights as dangerous that an accused person who pleads guilty is waiving the same right without this safeguard.

Onus on the Accused Person

7.11 Our primary conclusion In this Report is that the trial of serious criminal cases should as a general rule be before a Judge and a jury of twelve citizens selected at random from the general community (para 2.1). In the light of this we propose that trial by judge alone should not be available to an accused person as a matter of right. The concept of jury trial incorporates both the right of the accused person and the right of the community to have serious criminal cases dealt with in a manner which ensures that the standards of the community have been applied in the determination of guilt. Neither of these rights should be removed without good cause. We recognise, however, that other circumstances may render trial by jury unsuitable in particular cases. The normal mode of trial for serious criminal offences should be employed unless it can be shown that it is, in the circumstances of the particular case, unsuitable because of overwhelmingly prejudicial publicity before trial. The onus of establishing that there are legitimate grounds for conducting the trial without a jury should be borne by the accused person.

7.12 In some cases the publicity given to a criminal case may be localised. For example, an offence occurring in a country region may be publicised in that region alone.⁶ The investigation of the crime, the arrest of the accused person and the conduct of preliminary proceedings in court may have all been given publicity. Where the publication of prejudicial material Is localised, the more appropriate means of overcoming the problem would appear to be to change the venue of the trial.⁷ However, the proliferation of the electronic media means that where an offence or investigation has created statewide or even national interest, changing the venue of the trial will not help to reduce the influence of prejudicial publicity.

Pre-Trial Hearings

7.13 The determination of an application to be tried by judge alone must, for the sake of efficient management of the court lists and to avoid unnecessary inconvenience to jurors, precede the commencement of the trial. Since we do not regard it as being of great significance, we do not think it matters whether or not the decision is made by the judge who Is to preside at the trial. There is an argument in favour of the application being heard by another judge on the ground that It is undesirable for the trial judge to be directly exposed to supposedly prejudicial material, if that is the basis for the application.

The Rights of the Crown

7.14 Since the community has an interest in ensuring that the mode of trial is appropriate to the case, the Crown should have the right to be heard on the merits of an application by an accused person to be tried by judge alone. The representation of the Crown’s interest should not, however, amount to a right of veto. The ultimate decision must be made in the exercise of a judicial discretion.

Withdrawing the Election

7.15 The accused person should generally be able to withdraw the election to be tried by judge alone. Whilst this might be seen to create an opportunity to delay the proceedings, we do not consider that this will be a problem in reality. Applications of this kind can be expected, as we have noted, to be infrequent. In any event, we do not consider that the prospect of causing some delay outweighs the importance of retaining the right to trial by jury for those accused people who change their minds about the desirability of being tried by judge alone.⁸

7.16 The question has been raised whether the accused person should be entitled to know the identity of the trial judge before making an election. It is argued by some that this is a crucial factor in deciding whether to make such an election. On the other hand, “forum shopping” would be encouraged by providing the name of the trial judge in advance. The apparent problem is met by our proposal that the accused person should be able to change his or her election to be tried by judge alone with the leave of the court. An accused person who changes his or her mind about giving up the right to trial by jury should not be compelled to abide by his election unless the judge considers the change to be prompted by an improper motive. There are many circumstances when such a change may be legitimate, for example where an accused person changes his or her legal representation.

B. Additional Remedies

Recommendation 57: Legislation should expressly prohibit the publication before trial of material which simultaneously identifies a person as being charged with an offence and as having a prior criminal history if the hearing of the offence charged is likely to be before a jury.

7.17 There have been strong objections expressed to the proposal that an accused person should have the right to trial by judge alone. It has been submitted to us that the strict enforcement of rules prohibiting the publication of prejudicial material is a more suitable means of controlling the influence of such material. We recognise the force of those submissions but, as explained at para 7.7, we do not consider that such an approach is by itself sufficient to solve the problem. We do agree, however, that there should be rules to discourage the publication of information which is likely to prejudice the fair trial of an accused person. There have been some scandalous examples of publications of this kind.⁹ The right of the public to be informed of the criminal history of an accused person should be suspended until there is a reasonable probability that the charges will not ultimately be determined by a jury. This principle has often been acknowledged by the courts in words such as those set out below.

Another matter referred to by the applicant was the publication in a Sydney newspaper of an article dealing with a case in which he was involved only shortly before this trial and in which references were made to him of a character which was calculated to prejudice him . . . Newspaper reports of police court proceedings should not contain such comment as might be prejudicial to an accused person. That is a vital principle of the law and of justice which should always be strictly observed.¹⁰

In the case of some criminal offences, it is uncertain whether or not a particular matter is likely to be heard by a jury. The most serious criminal charges, and it will usually be these with which the media are concerned, are, however, dealt with exclusively on indictment. Only where there has been an indication of a plea of guilty can it be said that there Is little prospect of these cases being heard by a jury. We consider that the recommendation above should be implemented in order to make sure that prospective jurors are not given information which would generally be inadmissible in a criminal trial.¹¹

7.18 There may be exceptional circumstances in which the publication of an accused person’s record is justifiable. The publication of such information should never be made, however, in a context which identifies that person as being charged with an offence if that offence is likely to be dealt with by a jury. Take, for example, the case of a man with a long criminal record of sexual offences who is seeking to establish an institution for the care of homeless children. The fact that he was also charged with an offence which was awaiting trial by a jury should not prevent the publication of material which is designed to show he is unsuitable for a position of that kind. Any such publication should not, however, make reference to the fact that he is awaiting trial because that would clearly jeopardise his prospects of being tried by an impartial jury.

Recommendation 58: Legislation should expressly prohibit the publication of the criminal history of a person known to be suspected of an offence which is likely, if a charge is laid, to be dealt with by a jury, unless the publication of the information is to assist in the investigation of the suspected offence or is made in the interests of public safety.

7.19 There have been instances where the media have published the criminal history of a person who is suspected of offences but not yet charged. In cases such as this there is obviously a risk that the publication of that information will jeopardise the prospect of a fair trial. It must, nevertheless, be recognised that the effective investigation of the case may require publications of this kind to be made. Where, for example, the suspected person has escaped from custody and is considered to be so dangerous that the public should be warned not to approach him or her, there is justification for publishing the information. We do not consider, however, that a person’s criminal history should be published indiscriminately and without regard to the likely impact on subsequent proceedings.

7.20 In James v Robinson The High Court of Australia held that a prosecution for contempt of court is incompetent In a case where, at the time of the publication of the prejudicial material, there are no proceedings commenced in any court.¹² Mr Justice Windeyer qualified this by saying that once a person had been arrested a court has become seised of the case because the arrested man must be taken before a magistrate.¹³ The English courts have given a more liberal interpretation to the law of contempt, holding that a contempt might be committed “when proceedings are imminent but have not yet been launched”.¹⁴

7.21 The impact of the prejudicial material is unlikely to be any different depending upon whether the suspected person is being pursued or has been charged. Where criminal proceedings are virtually certain to be instituted, the distinction between the case where an arrest is imminent and the case where an arrest has actually been made is artificial. We do not consider that the law should be based on such an artificial distinction.¹⁵ There are cases where the prejudicial information has been published before the commencement of the formal criminal process. As an English court has said, “it Is possible very effectually to poison the fountain of justice before it begins to, flow”.¹⁶ The terms of our recommendation do not offend the spirit of the judgment in James v Robinson since the Court was unanimous in holding that whilst publication before arrest was not contempt of court, it could be prosecuted as a common law misdemeanour.¹⁷

7.22 Other matters which might be considered in this context of regulating pre-trial publicity include the publication of allegations that the accused has made a confession or admission, details of any such confession or admission and information disclosed at committal proceedings or other pre-trial proceedings. We have considered whether additional rules should be made in respect of the publication of other items of prejudicial material before trial. We have examined the law in Canada which prohibits the publication before trial of a confessional statement alleged to have been made by an accused person.¹⁸ We have also considered the practice in Scotland where there is a blanket prohibition on the publication of information disclosed at proceedings which are preliminary to a trial before a judge and jury.¹⁹ We do not consider it appropriate for us to make any other specific recommendations at this stage. This topic will be examined by the Commission in greater detail in our Discussion Paper Procedures Before Trial in Criminal Cases which will be published later this year. It is also under consideration by the Australian Law Reform Commission as a part of its reference on the law of contempt.²⁰

III. PROCEDURES BEFORE EMPANELLING THE JURY

A. Identification of the Juror’s Association with the Case

Recommendation 59: The Jury Act 1977 should be amended to provide that, before empanelling a jury, the Crown prosecutor shall be required, if requested by the judge, to inform the jury panel of the nature of the charge, the identity of the accused person and the principal witnesses who are to be called for the prosecution. After this information has been given, the judge should request members of the jury panel who feel that they would be unable to give impartial consideration to the case to apply to be excused.

7.23 Jurors are sometimes discharged during a criminal trial because it is discovered that they have an association with the case which renders them unsuitable to be Jurors. In a serious instance the trial judge may consider that the whole jury should be discharged and the trial aborted. Many of the occurrences of this kind are foreseeable and could be avoided by the giving of appropriate directions at the start of the trial.

7.24 The current law and practice does not require the trial judge to give any specific direction, nor make any specific inquiry of the jury panel with a view to excluding jurors who may be biased. It is, however, the practice of some judges to inform the jury of relevant details of the case (having obtained them from the Crown prosecutor) and then to ask any prospective jurors who feel that they are unable to give impartial consideration to the case to apply to be excused. Our Survey of Judges revealed that some Judges vary their practice according to whether they are sitting in the city or in the country on the ground that the likelihood of an association between the parties was greater in the country. It also revealed that several judges who do not follow this procedure nonetheless thought it was a good idea and that it would have an appreciable impact on the incidence of prejudice among jurors. Some of the comments made by the judges who responded to the survey are valuable.

• If the accused is a well-known person with many acquaintances or contacts, this direction is given so as to give a juror the opportunity of disclosing any relationship.
• Four situations can be identified: (1) country towns, (2) well-known accused, (3) significant pre-trial publicity, (4) re-trials.
• This may be particularly helpful where there are multiple counts and multiple accused. It helps to identify the accused for the jury. It is also more likely that there will have been publicity or that an association exists where the case is a massive one.
• The giving of such a direction may assist in communicating to the jury the seriousness of its role. The fact that this is done at an early stage is desirable.
• Giving such a direction on bias is valuable. Even where no juror is so embarrassed as to be unable to serve, an atmosphere of fairness and impartiality, both of which are important, is created right from the outset.

In our Discussion Paper (para 7.6) this procedure was proposed and comments invited. A large majority of those who made submissions approved of the proposal.

7.25 It is not envisaged that this procedure should take very long. The outline of the case would be far shorter than the opening which is normally made by a Crown prosecutor after the jury has been empanelled. All that is required is a brief summary of those features of the case which would alert a prospective juror to the fact that he or she either may have an association with one of the important participants or is in some other way so connected with the case as to be an unsuitable juror.

7.26 Although some people who made submissions to the Commission objected to the procedure proposed there is, in our view, no danger in making it mandatory. One objection was that the procedure is unnecessary and might have the effect of removing people from jury panels who are not In fact biased or prejudiced by their prior knowledge of the case or association with witnesses. The direction given by the judge, however, could emphasise the fact that potential jurors should only apply to be excused where the nature of their previous association with the case or the witnesses is such as to give rise to a real risk of bias or prejudice or a real risk that bias or prejudice may be seen to exist. A second objection was that such a procedure would be ineffective because those jurors who come forward and say that they are concerned about the fact or risk of prejudice are likely to be the jurors who would be most capable of leaving that prejudice aside when considering the case. The procedure recommended cannot be a guarantee that prejudice will be eliminated. Nevertheless, the fact that it would almost certainly reduce the incidence of aborted trials due to belated discovery of jurors being associated with the case is sufficiently valuable to justify its implementation. Since we consider that the procedure should be universal, we recommend that it be the subject of legislation.

7.27 When advising the judge of the names of witnesses it would be necessary for the Crown to draw a distinction between those whose evidence is in dispute and those whose evidence is of a formal nature or uncontested. This distinction can be made in the course of preparing the case for trial. For example, a doctor who gives evidence of the cause of death, and whose evidence is not disputed by the accused person, may have a number of patients who are potential jurors. This is obviously not a sufficient ground on which to excuse those jurors for potential bias or prejudice. It should only be in those cases where the juror will be called upon to make some assessment of the credibility of the person with whom he or she has a prior association that a real -risk of prejudice or apparent prejudice will exist.

7.28 In principle the same procedure should apply to the accused person’s witnesses. However, to require advance disclosure of defence witnesses would be an unfair imposition on the accused person’s freedom to conduct the case as he or she thinks fit.

B. The Identification of Specific Sources of Bias

Recommendation 60: The Jury Act 1977 should be amended to provide that where the judge is, on application by a party, satisfied that the nature of the issues to be tried is such that people of a nominated occupation, or who live in a nominated area, may be unsuitable as jurors, the judge should ask the jury panel whether any of their number is a member of that group. Any potential juror who answers this question in the affirmative, should be liable to challenge for cause without further proof being required of the grounds for the challenge.

7.29 We have suggested (Recommendations 18 and 19, para 4.59) that the right of both the Crown and the accused person to make peremptory challenges should be reduced. We make this recommendation on the basis that there are alternative means of eliminating sources of bias and prejudice which are more appropriate than the use of peremptory challenges. The procedure we have in mind can be explained most effectively by way of an example. A man accused of the armed robbery of a bank might have some justification for believing that a person who is a bank teller by occupation may be biased against him. If our recommendation was adopted he would be able to make an application to the judge in the absence of the jury requesting that the jury panel be asked if any of them are bank tellers. If the judge is satisfied that members of the particular class of people nominated would be unsuitable as jurors, the question may be asked of the jury panel.²¹ It would then be left to the parties whether those people should be challenged. If the decision is made to challenge them, they could be challenged for cause or by the form of “consent challenge” recommended In Chapter 4 (Recommendation 22, para 476).

IV. PREJUDICE DURING THE TRIAL

7.30 The courts have been quick to remove the influence of prejudice which occurs during the trial. The means by which they have done this have varied from discharging a jury and ordering that a new trial be commenced before another jury, to directing juries that they should disregard prejudicial material for the purpose of their deliberations. In our view, the procedures which have been adopted by courts have not always been adequate. In particular, we are concerned that the judge’s instruction to the jury that they should disregard prejudicial information is an insufficient guarantee that the jury will not be influenced. The reality will never be known whilst the secrecy of jurors’ deliberations is generally respected. We acknowledge, however, that there must be a distinction drawn between degrees of prejudicial material. Whilst some information, such as wrongful disclosure of a prior criminal record, is so overwhelmingly prejudicial that it must almost inevitably lead to the discharge of a jury who have been exposed to it, there are less obvious examples of prejudicial material being Introduced which do not require such a drastic course to be taken. There are several additional measures which could be implemented to reduce the likelihood of prejudice actually affecting a jury’s deliberation and, at the same time, to ensure that the criminal justice process is run more efficiently. In formulating these recommendations we are conscious of the fact that, in the past, juries have often been discharged because of the influence which prejudicial material may be suspected to have had, rather than the impact which it has actually had.

A. Determining the Real Influence of Prejudicial Publicity

Recommendation 61: The Jury Act 1977 should be amended to confirm that, where it is alleged that prejudicial material has been published during a trial which may have influenced jurors, the judge has a discretion to question the individual jurors to determine in the first place whether they have seen. read or heard the offending material and in the second place whether It has had any effect upon them. Where the trial judge is satisfied that there is no actual prejudicial influence, the trial should be allowed to continue.

7.31 Frequently jurors are discharged because newspapers publish offensive material during the course of a trial. It is rare in the experience of members of the Commission for trial judges to seek to discover whether the jury has in fact read the information published or seen an offending television broadcast. This was done in one trial where the criminal record of an accused person who was a notorious escapee was published during the course of a trial. In that case the judge requested a Sheriff’s officer to inquire of the jury whether they had seen the offending broadcast. Since none of the jury had, the judge allowed the trial to continue. We consider that this is a sensible approach but we are concerned that it should be conducted in open court and that the inquiry should be made of the jurors on oath in the presence of the accused and his or her legal representatives. The amount of time saved by avoiding the discharge of a jury who have not in fact been influenced by prejudicial material may be considerable. It is also in the interests of the community and of the accused person that the delay caused by having to commence the trial at a later date, possibly after waiting until such time as the prejudicial impact of the offending material has subsided, should be avoided where possible.

B. Continuation of the Trial in Appropriate Cases

Recommendation 62: The Jury Act 1977 should be amended to provide that where a judge is satisfied that the impact of prejudicial information disclosed during a trial is such that the accused person may not have a fair trial, the judge has the power to allow, where the parties consent, the trial to continue after the disclosure of such information on the basis that if the jury returns a verdict of guilty the trial should be regarded as a nullity, the verdict set aside and a retrial ordered. Unless the court orders otherwise, any reporting of the order declaring that this procedure shall apply should be prohibited.

7.32 Where prejudicial and inadmissible material emerges during a trial, the accused person is sometimes placed in a dilemma. Where the trial has been a long one, or where the trial is apparently proceeding satisfactorily from the point of view of the accused person, there is no means available to remedy the impact of the prejudicial disclosure made during the trial apart from seeking the discharge of the jury. This remedy may not be sought with any enthusiasm. There have been cases where the judge has taken the approach of acknowledging the validity of the application for the jury to be discharged but continued with the trial on the basis that if it were to result in a conviction, the judge would report to the Court of Criminal Appeal²² that, in his or her view, the conviction was a miscarriage of justice because of the influence of the prejudicial publicity. This is an uncertain procedure since the opinion of the judge, though very persuasive, Is not binding upon a higher court. It is also a costly procedure since it requires an appeal to be conducted. It also requires the judge to go through the difficult process of sentencing a convicted person he or she believes has not had a fair trial. If the judge is satisfied that the prejudice has been of such a nature as to warrant the discharge of the jury a retrial will usually follow. The costs of a retrial are equally burdensome to the Crown and the accused person. The trial judge should be given the power which we suggest in order to avoid unnecessary expenditure. It may be suggested that this represents a significant departure from the current procedure in criminal trials. It is not, however, completely foreign to procedure in civil cases. In defamation cases the trial judge can hear the matter to finality in the sense that the jury delivers its verdict and assesses the quantum of damages. The Judge is naturally bound by that verdict but he or she is in a position to determine later an application that a defence of qualified privilege is available and, if so, order that the verdict of the jury be set aside.²³

C. The Role of the Sheriffs Officers

Recommendation 63: The court officers who are to have jurors in their charge whilst they are absent from the court room should. on commencing their employment, be administered an oath of office undertaking not to discuss with jurors any factual or legal issues relevant to the case which they are trying.

Recommendation 64: It would be good practice for the jury to be instructed by the Judge at the commencement of the trial that they are not to discuss any factual or legal Issues relevant to the case with the court officers.

7.33 The need for this procedure has been underlined by a recent case in New South Wales where one of the Sheriff’s officers explained to the jury, in an accurate but nevertheless improper way, the rights of an accused person to give evidence in a criminal trial. This resulted in a jury being discharged when a trial which had taken six weeks was nearing its completion.²⁴

7.34 In England the Sheriff’s officer in charge of the jury is required to take an oath at the time the jury retires to consider its verdict. The oath is taken by the Sheriff’s officer in the presence of the jury and he or she undertakes to prevent the jurors communicating with other people and to refrain from communicating personally with the jurors other than to ask them whether they are agreed upon their verdict.²⁵ During the retirement of the jury, no officer of the court may discuss the case with any member of the jury or answer any question asked by a juror.²⁶ A similar procedure is used in New South Wales when a jury Is taken on a view. The current procedure is to swear the Sheriff’s officer to prevent jurors engaging in improper communication with non-jurors. The need for such an undertaking when jurors are taken on a view does not seem to be much greater than the need for it when jurors are taken to lunch by the Sheriff’s officer or simply escorted from the court room to the jury room.

7.35 One of the jurors who responded to our Survey of Jurors complained that the Sheriff’s officers were rude to the jury on which she served and were unwilling to answer their questions. Criticism of this kind, unfair though it may be, illustrates the difficulties which are caused when the jury misunderstands the nature of the Sheriff’s officers’ role. There should be a procedure which informs the jury of its obligations and those of the Sheriff’s officers in this regard. We consider that it is likely that most of the improper conversations which occur are probably commenced by jurors who, no doubt acting quite innocently, do not realise that their conversation may be seen in some way to jeopardise the fairness of the proceedings.

7.36 This problem can be met by the trial judge directing the jury before the case commences that they should not attempt to discuss matters relevant to the trial with the Sheriff’s officers. They could be told that any questions which they want to have answered should be reduced to writing and handed to the Sheriff’s officer who should then be required to pass the questions on to the judge. Indeed a number of judges give such a direction already. However, we do not see it as a substitute for the oath being administered to the Sheriff’s officers. The prospect of improper influence upon jurors is such a serious matter that both of these procedures should be adopted.

D. Allowing the Jury to Separate

Recommendation 65: Section 54 of the Jury Act 1977 should be amended to provide that the judge should have the discretion to permit the jury to separate after they have retired to consider their verdict.

7.37 In recent times there have been a number of cases in which juries have deliberated upon their verdict for a period well in excess of 24 hours. Before their deliberations begin, the members of the jury will not usually know how long the process will take. During the trial they will have been allowed home each night at the conclusion of proceedings with a firm warning that they should not discuss the trial with people who are not members of the jury. in many cases the detention of the jury overnight may cause hardship. Where, for example, a parent of young children is prevented from going home, there may be disruption to that person’s domestic life which may be unnecessary. Preventing jurors from going home does not contribute in any way to quicker or more effective deliberation because the jury does not normally consider their verdict during this period nor continue their deliberations as a group. They are simply isolated in hotel accommodation, at least in theory. It is naturally of concern to the courts that criminal trials are not aborted at this crucial stage because of some improper influence to which a juror may be subjected. We do not consider, however, that the likelihood of improper influence is greatly increased at this stage of the trial. There would naturally be a need for an even firmer judicial warning than is usually given to avoid communication with “outsiders” but we think that, in many cases, this would be sufficient to bring home to the jury that they should not communicate with non-jurors about the case.

7.38 There should be a balance between the needs of the jurors and the need to ensure a fair process of deliberation. The strict necessity for holding the jurors together overnight during prolonged deliberations is inconsistent with the practice which is frequently adopted by trial judges, namely to complete a summing-up at the end of one day and to allow the jurors to go home on the understanding that they will return the next morning to be given very brief formal directions and then consider their verdict. If this practice is acceptable, then it seems to us that jurors should, in such cases as the judge sees fit, be permitted to go home whilst their deliberations are continuing. If necessary, stricter security arrangements may be made for the jurors during this period. We consider that the disruption which this aspect of jury service causes to the small number of people affected would be greatly decreased if the current practice were altered so that, as a matter of discretion, juries could be permitted to separate during their deliberations.

7.39 It should be stressed that the occasions on which it may become necessary for a judge to exercise this discretion will be rare. Most juries In criminal trials reach agreement within a period of six hours from the time they are asked to retire and consider their verdict. In only 11 trials of the 197 surveyed in our Survey of Court Procedures did the jury deliberation take more than six hours. The separation of the jury should not be permitted as a matter of course. Two of the members of the Commission²⁷ consider that while this discretion should be available to the judge, it should only be used in exceptional or unusual circumstances.

7.40 It has been suggested that, as the trial draws towards its conclusion, people who wish to influence the jury’s verdict become more desperate and are likely to be bolder in attempting to influence the jury. Whilst this is probably true in theory, there is no evidence to suggest that it is a significant problem in New South Wales. Any potential difficulty can be overcome by firmer directions and additional precautions being taken where they are believed necessary. It should be remembered that the accused person is usually held in custody while the jury is deliberating.

Recommendation 66: Section 54 of the Jury Act 1977 should be amended to provide that members of the jury should, at the discretion of the judge, be entitled to make personal telephone calls during any period for which they are locked up.

7.41 We consider that the current practice of preventing jurors from communicating with the outside world should be relaxed so that jurors can telephone their relatives or friends and advise them personally of the reason for their absence from home. At present this task is performed by Sheriff’s officers. We regard this as unsatisfactory and as an unnecessary Interference with the jurors’ personal obligations. The jurors should be able to convey their messages in person.

V. PROCEDURES AFTER TRIAL

Recommendation 67: The Jury Act 1977 should be amended to provide that the jury should be discharged forthwith upon delivering its verdict. It would be good practice for the members of the jury to be informed of the subsequent course of proceedings and advised of their right as individual citizens to remain in court if they wish to do so.

7.42 Judges vary In their practice after a jury has found an accused person guilty. In some cases the jury is discharged. In other cases the judge takes no steps to discharge the jury whilst the details of the prisoner’s background and prior criminal record, if any, are given. In other cases still, the judge informs the jury that they are free to leave but advises them that they are equally free to remain in court if they wish to hear the evidence relevant to sentence.

7.43 This is an issue which has caused considerable debate both among the members of the Commission and in the submissions we have received. Having considered the matter, we believe that the reading of the prisoner’s criminal record in the presence of the jury is, for a number of reasons, unnecessary and unfortunate. Firstly, the function of the jury is complete when they return a verdict. Secondly, the practice suggests to the jury that, in the case of a person with a criminal record, there is for that reason alone some justification for their verdict. Thirdly, the practice may lead to dangerously prejudicial and unwarranted speculation about the character of the accused person if the jurors are summoned for jury service again. The Commission received several submissions on this topic including one from the New South Wales Bar Association²⁸ objecting strongly to the current practice. Whilst the sheer weight of numbers is clearly in favour of discharging the jury after verdict, there are very strongly held opinions in favour of the opposite view.

7.44 The point has been made that many jurors are anxious to leave as soon as their function in the trial is complete. They have a right to leave and they should be informed of that right. It is not difficult to understand why some jurors would not want to hear the sentencing proceedings. The determination of guilt may have been in itself a distressing experience. That distress may be compounded by the procedure which follows. Some jurors may, understandably, not wish to know that the person they have convicted has been sentenced to a term of imprisonment. Others may find some satisfaction In that knowledge or relief at the fact that a custodial sentence is not imposed. Similarly, whilst the prior record of a convicted person may give a sense of relief to some, it may cause distress to others. People should not be subjected to this unless it serves some other legitimate purpose.

7.45 Some members of the Commission consider that a jury which has devoted its time and attention to a case and has brought in a verdict of guilty has the right to know what happens thereafter. In their experience, the jury invariably wants to do so. If the accused person does have a criminal record it could be explained to the jury that it was not revealed during the trial for fear of prejudicing the accused person. They could be told in addition that the fact that the person they have convicted has a criminal record does not mean that in all, or even most cases, an accused person will have a prior record.

7.46 The majority of the Commission²⁹ considers that individual jurors should be discharged upon giving their verdict and left free to remain in the court if they wish to do so. There should be no suggestion that they are either compelled to stay or compelled to go. A direction should be given to them which clearly conveys the fact that it is a matter for their own personal decision. The fact that the practice of judges in this regard is not uniform is a matter of some concern when there is such a strong body of opinion which deplores the detention of jurors to hear argument about sentence. There should be some uniformity in the way in which juries are discharged. In our view, the appropriate course is to discharge the jury and leave it to the individual juror to choose whether or not to remain in court.

1. In R v Munday (1984) 14 A Crim R 456 the New South Wales Court of Criminal Appeal held that trial judges should not be encouraged to discharge juries merely upon the ground of some prejudicial material having been published if appropriate directions can cover the situation.

2. Since s475A Crimes Act 1900 was introduced, only one trial has been conducted before a single judge: Attorney General of New South Wales v Chambers (unreported) Supreme Court of New South Wales, Roden J, 24 June 1983.

3. Law Society Bulletin (SA) July 1985 p139.

4. Juries Act 1927 (SA) s7(1)(b).

5. Justices Act 1901 s48D; Justices Act (Use of Written Statements) Regulation 1984.

6. R v Holden (1956) 73 WN (NSW) 444.

7. Crimes Act 1900 s577.

8. A Ferber “Beating Bad Press: Protecting the California Criminal Defendant from Adverse Publicity” (1976) 10 University of San Francisco Law Review 392 p408.

9. For example, a newspaper article published on the occasion of the arrest of E J Smith “The Form of Jockey Smith” Sydney Morning Herald 15 September 1977 pp1, 3.

10. R v McKeon (1961) 78 WN (NSW) 798 at 799; See also Ross v The King (1922) VLR 329 at p337; R v Scriva (No 2) (1951) VLR 298 at p303.

11. J A Gobbo, D Byrne and J D Heydon Cross on Evidence (2nd Aust ed 1974) para 14.44.

12. James v Robinson (1963) 109 CLR 593.

13. James v Robinson (1963) 109 CLR 593 at 615-616; Packer v Peacock (1912) 13 CLR 577.

14. R v Parke [1903] 2 KB 432 at 437; R v Daily Mirror [1927]1 KB 845 at 851.

15. See the submission of counsel in James v Robinson (1963) 109 CLR 593 at 597.

16. R v Parke [1903] 2 KB 432 p438.

17. (1963) 109 CLR 593 at 607. See especially Windeyer J at 618 referring to R v Sharpe and Stringer (1938) 26 Cr App R 122.

18. Criminal Code RSC 1970 (Can) Chapter C34 s470(2).

19. J R Harper, Chairman Criminal Law Section, International Bar Association speaking at The International Criminal Law Congress, Adelaide, 9 October 1985.

20. Australian Law Reform Commission Reform of Contempt Law (ALRC IP4, 1984).

21. Some people in this category may have already been excused from jury service after the procedure described in Recommendation 57 above.

22. Criminal Appeal Act 1912 s11.

23. Defamation Act.1974 s23; Austin v Mirror Newspapers [1982] 2 NSWLR 383.

24. R v Fuller (Unreported) District Court of New South Wales, Sinclair J, 18 September 1985.

25. Archbold Pleading, Evidence and Practice in Criminal Cases (41st ed 1982) para 4-441.

26. Ibid. See also R v Brandon (1969) 53 Cr App R 466; R v Lamb (1974) 59 Cr App R 196 at 198; R v Brewster (1980) 71 Cr App R 302; and Submission to the Commission by M A McL MacGregor, QC.

27. Mr James and Mr Justice Roden.

28. 13 February 1986; see also submission from W D Hosking, QC, 6 February 1986; Bar News, Summer 1985.

29. Her Honour Judge Mathews does not agree with the terms of this recommendation.