2.1 In the Supreme and District Courts of New South Wales criminal trials for indictable offences1 are normally by jury.2 The accused may elect to be tried by judge alone for a State offence,3 but not for an indictable offence against the Commonwealth, since s 80 of the Constitution requires this be tried by jury.4 The presumption in civil proceedings is that they will be tried without a jury unless the interests of justice otherwise require.5
JURY EMPANELMENT
2.2 The principal statute governing jury procedures is the Jury Act 1977 (NSW) (hereinafter “the Act”). Every person enrolled as an elector for the New South Wales Parliament is, subject to exceptions, qualified and liable to serve as a juror.6 These exceptions are for persons who are disqualified7 or ineligible.8 The latter, which includes “a person who is unable, because of sickness, infirmity or disability, to discharge the duties of a juror”, is of relevance to this inquiry.9 Another category of ineligibility, that of “a person who is unable to read or understand English”,10 may also be relevant.11 The Act does not define “sickness”, “infirmity” or “disability”, nor does it define or list the “duties of a juror”.
2.3 It is the task of the Sheriff to maintain jury rolls.12 First a supplementary jury roll is compiled from names selected at random from current electoral rolls.13 Each person whose name is included on a supplementary roll must be notified.14 This notice includes a questionnaire to be completed if certain conditions apply, for example if the person is ineligible to serve as a juror. The Sheriff deletes from the supplementary jury roll the names of persons disqualified, ineligible or otherwise entitled to exemption from jury service.15 It is left to the Sheriff’s discretion to determine whether a person is ineligible. If a person claims ineligibility, but the Sheriff decides not to delete his or her name from the roll, the person may appeal to the Local Court.16 However, a person whose name the Sheriff deletes for ineligibility, but who wishes to remain on the jury roll, has no right of appeal by which to have his or her name reinstated, though the Sheriff’s decision may, possibly, be amenable to judicial review.17 The remaining names on the supplementary list are then added to the existing jury roll,18 while those names that have been on the roll for 15 months are culled.19
2.4 In addition to the initial selection process involved in compiling a jury roll, at the commencement of the trial the parties themselves have a limited right to challenge, or object to, specific jurors. The underlying rationale and the significance of the challenge will be discussed in the following chapter.20 The trial judge also has the power to stand down a juror who appears unfit to serve.21 Jurors are selected by ballot,22 a procedure that involves drawing from a box a number of cards, each of which bears an identification number corresponding with each person on the jury panel.23 This continues, allowing for challenges, until twelve people have been empanelled and sworn.
2.5 A person with a disability is not automatically ineligible for jury service. The Sheriff’s Office will undertake certain steps to accommodate such persons,24 such as equipping some courts with hearing loops and arranging inspections of the court house prior to jury service so that a prospective juror may become familiar with its layout. However, the advice given by the Sheriff’s Office to the public is that it is not always possible for everyone to participate in jury service,25 and, as already stated, the final decision as to eligibility rests with the Sheriff.26
DUTIES OF A JUROR
2.6 The Act deems a person ineligible for jury service if unable, due to sickness, infirmity or disability, “to discharge the duties of a juror”.27 Provisions to similar effect operate in every State and Territory.28 The jury’s function is to decide questions of fact, and the judge’s to decide questions of law.29 However, neither the Act nor Australian case law further particularises a juror’s function. The English legislation contains a provision that refers to the ability of a person “to act effectively as a juror”. 30 There is scant reference to this provision in the case law. In Osman31 it was noted that there was little authority on the requisites for acting effectively as a juror, and this was perhaps because the concept was readily understood.32 The Court stated that there were two aspects: the duties in court and duties in retirement (when the jury considers its verdict). The former requires that, in fairness to the defendant, “every juror should have a similar opportunity to listen to the evidence and to assess the reliability of a witness.” In retirement all jurors may make a contribution.33
2.7 In the American case People v Guzman34 the Court stated:
At a minimum, a juror must be able to understand all of the evidence presented, evaluate that evidence in a rational manner, communicate effectively with the other jurors during deliberations, and comprehend the applicable legal principles, as instructed by the court.
In their role of fact-finder, the jurors should understand and weigh up the evidence presented, assess the credibility of witnesses and decide on the likelihood of certain events having occurred in the light of the jurors’ personal experiences.35
FEATURES OF TRIAL BY JURY
2.8 The institution of trial by jury, although not without critics, has been regarded for centuries as a fundamental part of the administration of justice. Its features are credited with helping to secure the protection of the community from the tyranny of absolutism and the self-interest of the powerful, while reflecting democratic ideals and representing current social values and attitudes. The jury was probably introduced to England by the Normans, and comprised a group of men of the neighbourhood who could provide answers on oath as to facts within their knowledge.36 It evolved into an increasingly complex legal institution, and has come to be described in such heroic terms as “the bulwark of liberty, the shield of the poor from the oppression of the rich and powerful”.37 While such lavish praise now seems exaggerated, the theory underpinning it is clear:
[T]he jury prevents the state from manipulating the strings of justice to its own ends in cases having direct political significance; the jury prevents judges from imposing the views of the class of society from which they are drawn; the jury prevents liaison between judges and the police; and the jury prevents private citizens from exerting improper influence over judges. 38
The jury is thus a group of “ordinary” people, disinterested in the outcome of the trial, and independent of powerful and influential social forces.
2.9 A number of decisions of the High Court have enumerated the essential, often interconnecting, features of trial by jury.39 These are:
- representativeness;
- unanimous verdict;40
- random selection;41 and
- impartiality.42
2.10 The first of these features – representativeness – is perhaps of most interest to this inquiry. The High Court has referred to the jury’s “representative character and … collective nature”,43 and to its being “assembled as representative of the general community”.44 The Sheriff’s Office in this State describes the jury as “a link between the community and the justice system”, ensuring “that the legal system reflects the general will of the people of New South Wales”.45 The composition of the jury has, over time, become more inclusive and diverse, especially since 1947, when the right to serve on a jury was extended to women, and property qualifications abolished.46 As the above quotations illustrate, juries are idealised as a democratic microcosm of society.
2.11 In Cheatle the High Court said:
The restrictions and qualifications of jurors which either advance or are consistent with [the feature of representativeness] may ... vary with contemporary standards and perceptions. The exclusion of women and unpropertied persons was, presumably, seen as justified in earlier days by a then current perception that the only true representatives of the wider community were men of property. It would, however, be absurd to suggest that a requirement that the jury be truly representative requires a continuation of any such exclusion in the more enlightened climate of 1993. To the contrary, in contemporary Australia, the exclusion of females and unpropertied persons would itself be inconsistent with such a requirement.47 (Emphasis added)
2.12 The truth is that juries are not, and are never likely to be, “truly representative”. Randomness of selection is no guarantee of representativeness.48 In any event most systems of jury selection are not entirely random, beginning with a process of exclusion or exemption, whether due to profession, language or literacy levels, or a prior criminal record. Nor does it end there. The selection of the “ultimate jury” from a panel of potential jurors “is a process which is calculated to impinge upon the randomness, representativeness and impartiality of the wider panel.”49 The representative character of juries is thus qualified. Indeed, can a person seen as representing a particular group in the community be considered impartial in any event? Justice Kirby has considered this question,50 concluding that these notions can be reconciled, adopting the statement of the Supreme Court of Canada that “[t]he surest guarantee of jury impartiality consists in the combination of … representativeness with the requirement of a unanimous verdict”.51
2.13 While complete representativeness may not be attainable, it is argued that representativeness is a goal worth aspiring to. As a court in the United States put it “the notions of a fair trial prohibit systematically excluding any one group of individuals from a specific jury”.52
2.14 Both from a policy point of view and in applying the Jury Act, the starting premise should be that, unless it can be shown that there is a real or significant risk that they are incapable of discharging the duties of jurors, people who are blind or deaf should be able to serve on juries. This position is, arguably, in the interests of the justice system. It is also consistent with the general trend towards eliminating unlawful and unnecessary discrimination against particular groups in society. Several of the preliminary submissions received by the Commission share this view.
2.15 In his submission Chris Puplick, former President of the Anti-Discrimination Board of New South Wales, stated:
It is an important principle of our judicial system that an accused person shall be determined guilty or otherwise only by a jury of their peers. If it is truly an objective of the justice system that juries be peer-based and reflective of the community, then the automatic disqualification of people who are deaf or blind would seem to be at odds with this objective.53
People with Disabilities, a peak disability and advocacy organisation, argues that the jury is “intended to apply the values and standards of the community as a whole”, and that excluding people who are blind or deaf, an important population group and part of the community’s diversity, “narrows the base of people who can give effect to these values and standards”.54 The submission from the Equity and Diversity Unit of the University of Technology, Sydney says that “much community faith in the [legal] system is drawn from the fact that all have the chance to be represented”, and that people who are blind or deaf should be given this same opportunity.55 Professor Ron McCallum, Dean of the Faculty of Law at the University of Sydney,56 described “a blanket administrative ruling which excludes all blind and deaf persons from jury service in New South Wales [as] outmoded, unfair, arbitrary and discriminatory”, and called for its abolition.57 He called on the Commission to recommend the establishment of procedures for determining the circumstances in which, having regard to the administration of justice, it would be inappropriate for a blind or deaf person to undertake jury service.
2.16 The right of an accused to a fair trial clearly takes precedence over any entitlement of a deaf or blind person to serve as a juror. As was said in Chapter 1, the issue is whether that entitlement is compatible with the notion of a fair trial or whether there is a point at which they become mutually exclusive. Many of the submissions we received take the view that, despite the desirability on equity or citizenship grounds of having blind or deaf people serving on juries, it is clear that they would experience practical difficulties in so doing.58
JUROR COMPETENCE
2.17 It is not the role of this Reference to consider the virtues or shortcomings of the jury system.59 Nevertheless, to avoid the risk of requiring a higher standard of blind and deaf persons than others, some regard should be had to actual or potential limitations inherent in the jury system that pertain to all jurors, sighted and hearing, which could affect their decision-making. Due to the confidentiality shrouding jury deliberations this is not straightforward. However, in recent years a great deal of jury research has been undertaken worldwide to try to reach a better understanding of how - and how well - juries work, using such methodology as mock shadow juries, interviews with other participants in the trial (such as judges and lawyers), and interviews with actual jurors.60 Not surprisingly, one likely conclusion from all of this research is that, given the demands of the undertaking and the rules governing the procedure, no juror is perfect:
As an individual, we ask each member to listen and accurately remember each piece of evidence, where necessary to draw inferences of fact from that evidence, using their experience of everyday life and at the same time evaluate the credibility of witnesses and the relative importance of evidence. Prior to deliberation, we expect each juror to understand and apply directions individually and, when they retire as a jury, to collectively compare the facts with the contents of the judge’s instruction on the law and arrive at a verdict…In the eyes of the law, the perfect jury member would be an intelligent but passive sponge who waits until the deliberation stage before reaching a verdict, diligently following the judge’s instruction without the burden of prejudice or sympathy and mindless to the consequences of their decision. Unfortunately, there is ample empirical evidence to suggest that such a person would be a rare find.61
2.18 Juries developed when trials were very short, rarely lasting over a day. Today, trials are generally longer and involve complex rules and procedures designed to secure a fair trial. This complexity has the potential to affect adversely any juror, perhaps a sighted and hearing one even more than a juror who is blind or deaf and who may have become habituated to developing compensating strategies such as a keener memory or lessened likelihood of becoming distracted.
2.19 The New Zealand Law Commission undertook a detailed consideration of juries as part of a recent review of criminal procedure. It noted that there were problems in identifying apparent juror incompetence in empirical research, as for example in determining whether apparent difficulty in comprehension is due to the jurors’ inability or counsel’s failure to present matters clearly.62 Nevertheless, its research indicated that in the 48 jury trials sampled:
- there were five in which one or more jurors were reported by others to have suffered from intellectual or other limitations which impeded their grasp of the evidence;
- in seven different trials, eight jurors whose first language was not English were said either by themselves or others to have failed to understand fully the evidence due to language; and
- five trials involved technical evidence which jurors lacked the knowledge or experience to assess, these limitations contributing to perverse or compromise verdicts in two cases and a hung jury in a third.63
2.20 Any juror may perform below the standard expected, due to such factors as his or her individual attention span, boredom threshold, lack of interest in the matter being tried, the trial’s length and unpredictable external events.64 Any juror may bring his or her prejudices, such as racism or distrust of police or authority,65 to the jury room. In addition, according to the authors of a comprehensive review of jury research, although using the same evidence, different jurors will reach different conclusions,66 despite having the use of the same senses. Nearly all commentators agree that juries have great difficulty understanding and applying judicial instructions,67 although this conclusion is necessarily somewhat speculative. Finally, as the New Zealand Law Commission’s research indicates, while the blindness or deafness of a person summoned for jury duty might be obvious to staff of the Sheriff’s Office, other disabilities or limitations on the level of comprehension or competence of other potential jurors may not be,68 making it difficult to predict how well any juror will discharge the duties of the office.
2.21 All these diverse influencing factors affect the entity known as the jury. The question we must attempt to answer is whether people who are blind or deaf are at such a disadvantage in performing the task required that they should be excluded from serving as jurors.
Footnotes
1. Criminal Procedure Act 1986 (NSW) s 7.
2. Criminal Procedure Act 1986 (NSW) s 15.
3. Criminal Procedure Act 1986 (NSW) s 16.
4. Brown v The Queen (1986) 160 CLR 171.
5. Supreme Court Act 1970 (NSW) s 85; District Court Act 1973 (NSW) s 76A.
6. Jury Act 1977 (NSW) s 5; see also Parliamentary Electorates and Elections Act 1912 (NSW) s 20(1).
7. Jury Act 1977 (NSW) s 6(a), Sch 1.
8. Jury Act 1977 (NSW) s 6(a), Sch 2.
9. Jury Act 1977 (NSW) s 6(b), Sch 2 item 12.
10. Jury Act 1977 (NSW) s 6(b), Sch 2 item 11.
11. See para 3.29-3.35.
12. Jury Act 1977 (NSW) s 10.
13. Jury Act 1977 (NSW) s 12.
14. Jury Act 1977 (NSW) s 13.
15. Jury Act 1977 (NSW) s 14(1).
16. Jury Act 1977 (NSW) s 14(2), 15(1).
17. Consider Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 585-586 (scope of judicial review of statutory powers and functions). Consider further Subritzky v Circosta (1996) 127 ACTR 1 (Sheriff’s decision possibly amendable to judicial review under ADJR Act).
18. Jury Act 1977 (NSW) s 15A(1).
19. Jury Act 1977 (NSW) s 15A(2).
20. See para 3.36-3.53.
21. Eg R v Rawcliffe [1977] 1 NSWLR 219 at 246.
22. Jury Act 1977 (NSW) s 48.
23. Jury Act 1977 (NSW) s 28(3), 29.
24. New South Wales, Office of the Sheriff, “People with Disabilities and Jury Duty” «www.lawlink.nsw.gov.au/ots.nsf/pages/jury16» (as at 6 December 2003).
25. New South Wales, Office of the Sheriff, “People with Disabilities and Jury Duty” «www.lawlink.nsw.gov.au/ots.nsf/pages/jury16» (as at 6 December 2003).
26. Jury Act 1977 (NSW) s 14(1) gives the Sheriff discretion to determine whether a person is disqualified from or ineligible for jury service.
27. Jury Act 1977 (NSW) s 6(b), Sch 2 item 12.
28. Juries Act 1967 (ACT) s 10; Juries Act 1962 (NT) s 10, 11, Sch 7; Jury Act 1995 (Qld) s 4; Juries Act 1927 (SA) s 13; Jury Act 1899 (Tas) s 7 (Juries Act 2003 (Tas) s 6, Sch 2, not yet proclaimed); Juries Act 2000 (Vic) s 5, Sch 2; Juries Act 1957 (WA) s 5.
29. Australian Iron & Steel Pty Ltd v Luna (1969) 123 CLR 305 at 319. See also District Court Act 1973 (NSW) s 77(2), (5). Other functions may include acting as “the conscience of the community, a safeguard against arbitrary or oppressive government, an institution which legitimises the criminal justice system, and an educative institution”: New Zealand, Law Commission, Juries in Criminal Trials Part 1: A Discussion Paper (PP No 32, 1998) at para 57.
30. Juries Act 1974 (Eng) s 9B.
31. In re Osman [1995] 1 WLR 1327.
32. In re Osman [1995] 1 WLR 1327 at 1328.
33. In re Osman [1995] 1 WLR 1327 at 1328; see also R v Guildford Crown Court, Ex parte Siderfin [1990] 2 QB 683.
34. People v Guzman 76 NY 2d 1 (1990) at 5.
35. M Findlay, Jury Management in New South Wales (Australian Institute of Judicial Administration, Melbourne, 1994) at 1; New Zealand, Law Commission, PP No 32 at para 62.
36. D M Walker, The Oxford Companion to Law (Clarendon, Oxford, 1980) at 686.
37. Ford v Blurton (1922) 38 TLR 801 at 805 (Atkin LJ); see also Blackstone quoted in W R Cornish, The Jury (Penguin, Harmondsworth, 1970) at 138.
38. Cornish at 138.
39. Cheatle v The Queen (1993) 177 CLR 541 at 552, 560-561; Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 at 375; Kingswell v The Queen (1985) 159 CLR 264 at 301; Brownlee v The Queen (2001) 207 CLR 278 at 289; Ng v The Queen (2003) 77 ALJR 967 at 974-975.
40. See also Jury Act 1977 (NSW) s 56.
41. Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 at 375.
42. Brownlee v The Queen (2001) 207 CLR 278 at 327; Brown v The Queen (1986) 160 CLR 171 at 202.
43. Cheatle v The Queen (1993) 177 CLR 541 at 552.
44. Brown v The Queen (1986) 160 CLR 171 at 202.
45. New South Wales, Office of the Sheriff, “Jury Duty in New South Wales” «www.lawlink.nsw.gov.au/ots.nsf/pages/juryindex» (as at 29 May 2003).
46. Jury (Amendment) Act 1947 (NSW) s 2(3)(a), amending Jury Act 1912 (NSW) s 3.
47. Cheatle v The Queen (1993) 177 CLR 541 at 560-1.
48. See M Findlay, Jury Management in New South Wales (Australian Institute of Judicial Administration, Melbourne, 1994) at 3.
49. R v Ng (2002) 5 VR 257 at 271.
50. Brownlee v The Queen (2001) 207 CLR 278 at 327.
51. R v Biddle [1995] 1 SCR 761 at 788.
52. Jones v New York City Transit Authority 126 Misc 2d 585 (1984) at 586.
53. Puplick, Submission at 5.
54. People with Disabilities, Submission at 3.
55. University of Technology Sydney, Equity and Diversity Unit, Submission at 1.
56. Professor McCallum is himself blind.
57. McCallum, Submission at 2.
58. Cowdery, Submission at 1; Far West Law Society, Submission at 1; Legal Aid Commission of NSW, Submission at 1; New South Wales Police Service, Submission at 1-2; Scott, Submission at 1; Wood, Submission at 1.
59. The Commission has previously considered the jury in detail: see New South Wales Law Reform Commission, The Jury in a Criminal Trial (Discussion Paper 12, 1985).
60. P Darbyshire, A Maughan and A Stewart, “What Can the English Legal System Learn from Jury Research Published up to 2001?”at 10 «www.kingston.ac.uk/ ~ku00596/elsres01.pdf» (as at 19 June 2003).
61. Darbyshire, Maughan and Stewart at 21.
62. New Zealand, Law Commission, Juries in Criminal Trials Part 2: Discussion Paper (PP No 37, 1999) vol 1 at para 220.
63. New Zealand, Law Commission, Juries in Criminal Trials Part 2: Summary of the Research Findings (PP No 37, 1999) vol 2 at para 1.4, 3.18.
64. Darbyshire, Maughan and Stewart at 12, 45.
65. Darbyshire, Maughan and Stewart at 53-54.
66. Darbyshire, Maughan and Stewart at 12.
67. Darbyshire, Maughan and Stewart at 25.
68. Ras Behari Lal v King-Emperor (1933) 50 TLR 1; cf R v Thomas [1933] 2 KB 489.
