1. Introduction

Updates and background for this project (Digest)

• Background
• The role of the jury in the justice system
• The composition of the jury

BACKGROUND

Past reviews

1.1 The NSW Jury Task Force conducted the last formal review of the Jury Act 1977 (NSW) in 1993-1994.¹ The last substantial relevant amendments to the Act were made in 1996² and, since that time, the provisions have been monitored by the Jury Task Force.

1.2 This Commission last published a major report that dealt generally with the question of jury service in 1986.³ More specific reports have included one on the question of conscientious objection to jury service, published in 1984,⁴ and one on deaf or blind jurors, completed in 2006.⁵

1.3 Substantial reviews and reforms concerning the composition of juries and the conditions of service have occurred in other Australian jurisdictions, and in England and Wales.⁶

This review

1.4 The Commission produced an issues paper, IP 28, in November 2006,⁷ and has received a broad and representative range of submissions from lawyers, judges, various interest groups, and members of the public who have undertaken jury service. The Commission has consulted with relevant agencies, both here and in Victoria and England, and has also conducted an extensive literature review.

1.5 In conducting our review, a number of broad concerns about the jury system have been brought to our attention, including that:

• juries have become unrepresentative of the community because of the numbers of people who are either disqualified, ineligible to serve, or who exercise their entitlement to be excused as of right or apply to be excused for good reason;
• the conditions of service and financial hardship have operated as an impediment for many people;
• the burden of serving on juries is being shared inequitably or in circumstances where the resource is not used to best economic and efficient advantage; and
• the current categories for disqualification, ineligibility, and exemption are very broad and may not achieve the objectives of the system.

1.7 This Report strongly supports a system of people being tried by juries that are impartial and representative of the community. The system of jury selection, empanelment and management needs to achieve a fair sharing of the burdens of jury service, and to ensure that those who are eligible to serve as jurors are not disenfranchised arbitrarily or because of unnecessary practical impediments. We also bear in mind that jury service entails the responsible performance of a civic duty, which can involve jurors in personal inconvenience, financial hardship and personal stress in deciding whether an accused is guilty of an offence that may result in imprisonment. The more the system is designed to accommodate the concerns and needs of jurors, and positively encourage them to serve, the less likely it is that some will seek exemption on the grounds of inconvenience or hardship, or simply ignore their obligations.⁸

Lack of empirical data

1.8 There is a general absence of empirical data about the selection, empanelment and representative nature of juries. This is because few studies on the issues have been conducted in NSW over the past 20 years,⁹ and it is very difficult to collect any useful data from the jury computer system currently maintained by the Sheriff of NSW.

1.9 In preparing this Report, we have had some regard to data from other Australian and overseas jurisdictions, although we recognise the limitations that arise from the fact that each jurisdiction has different procedures and criteria for selection, exemption and empanelment.

THE ROLE OF THE JURY IN THE JUSTICE SYSTEM

1.10 The jury has long been regarded as an essential part of the criminal justice system,¹⁰ an institution that exists “for the benefit of the community as a whole as well as for the benefit of the particular accused”.¹¹ Historically, the jury has been perceived as the bastion of liberty against the excesses of executive and judicial power.¹² In modern times, its justification is found in the role that it plays in ensuring a fair trial in the case of serious criminal offences and in the resulting public confidence that this creates in the criminal justice system. As Justice Deane explained:

The nature of the jury as a body of ordinary citizens called from the community to try the particular case offers some assurance that the community as a whole will be more likely to accept a jury’s verdict than it would be to accept the judgment of a judge or magistrate who might be, or be portrayed as being, over-responsive to authority or remote from the affairs and concerns of ordinary people.¹³

1.11 It is, therefore, important to promote jury service and ensure that those who serve continue to find it a worthwhile experience, and that some current features of the jury system, such as ineffective communication, poor remuneration and conditions for jurors, or inefficient systems of selection and empanelment, should not act as barriers to service.

Current use of juries in NSW

1.12 Although juries may be used in criminal trials in the Supreme and District Courts,¹⁵ in the Coroner’s Court¹⁶ and in some civil trials,¹⁷ their use has diminished significantly in recent years. The limited use of juries other than in trials for serious criminal offences means that this Report will largely concentrate on juries in the criminal jurisdiction.

Criminal trials

1.13 In 2005, only 0.4% of criminal cases overall proceeded to a defended hearing in the Supreme Court and District Court.¹⁸ Although there has been no refinement of the statistics to identify the percentage of cases tried by a judge and jury, it would appear that juries determine the question of guilt in less than 0.5% of all criminal trials in NSW.

1.14 Juries are not available for criminal matters in the Local Courts. In the Supreme Court or District Court, an accused person who elects to go to trial will normally be tried by a judge and jury. Such a person may, however, before the date fixed for trial, elect to be tried by judge alone so long as a number of conditions are met, including that the judge is satisfied that he or she has sought and received advice about the election from a legal practitioner; the Director of Public Prosecutions consents to the election; and any co-accused make similar elections.¹⁹

1.15 An accused person who is tried for a Commonwealth offence following presentation of an indictment in the Supreme Court or the District Court cannot elect to be tried by a judge alone. This is because s 80 of the Commonwealth Constitution guarantees trial by jury for any “trial on indictment of any offence against any law of the Commonwealth”.²⁰ However, the incidence of jury trials has been reduced by the substantial body of offences against both State and Commonwealth laws that can be tried summarily, either with the consent of the accused²¹ or without such consent.²² The incidence of jury trials for breaches of Commonwealth laws has been further reduced by the increasing resort to civil penalties rather than criminal sanctions in areas of Commonwealth regulation.²³

1.16 Unfitness to stand trial. Formerly, under NSW law, the question of unfitness to be tried, for an offence under State law, was determined by a jury, subject to the right of the accused to elect to have that issue tried by a judge alone. As a result of recent amendments, the question of unfitness is now determined by a judge alone.²⁴ Where the accused is found unfit for trial, and a special hearing is held, that hearing is also determined by the judge alone, unless an election to have that hearing determined by a jury is made by:

• the accused, and the court is satisfied that the person sought and received advice in relation to the election from an Australian legal practitioner and understood the advice; or
• an Australian legal practitioner representing the accused; or
• the prosecutor.²⁵

Coroner’s inquests and inquiries

1.17 Coroners are empowered to conduct inquests into deaths or suspected deaths²⁷ and inquire into fires and explosions.²⁸ Such inquests or inquiries are usually held before a coroner without a jury.²⁹ However, they must be held before a coroner with a jury where directed by the Minister or State Coroner,³⁰ or where requested by a relative of the person who has died or is suspected of having died, or by the secretary of any organisation of which the person was a member immediately before the death or suspected death.³¹

1.18 It is understood that juries are rarely used in Coroner’s inquests or inquiries. Recent cases of the use of six-person coronial juries include: in 2000, an inquest into the death of a man at the Star City Casino;³² in 2002, an inquest into the shooting death of a man during a police siege,³³ and an inquest into the death of a camper from a falling tree;³⁴ and in 2005, an inquest into the death of an employee in a mining accident at Broken Hill.³⁵

Civil trials

1.19 Juries are not available for civil matters in the Local Courts and are now used very infrequently in the Supreme Court and District Court.

1.20 Until 1965, all actions for personal injuries could be tried by a judge and jury. During that year, legislation was passed removing that right in proceedings where the plaintiff claimed damages for personal injuries arising out of the use of a motor vehicle.³⁶ Subsequent changes to the law further reduced the use of juries in civil matters.³⁷ Finally, in 2001, amendments introduced a presumption in both the Supreme and District Courts of trial without a jury unless “the Court is satisfied that the interests of justice require a trial by jury in the proceedings”.³⁸ This amendment, and subsequent interpretation,³⁹ has all but stopped the use of civil juries in the Supreme Court and District Court, save for proceedings for defamation.⁴⁰ The introduction of uniform defamation law in 2005⁴¹ means that juries will now be required to determine all factual issues other than those relating to damages.

THE COMPOSITION OF THE JURY

1.21 In order to ensure a fair trial in serious criminal cases, it is important that a jury is composed in a way that avoids bias or apprehension of bias. People are more likely to accept jury verdicts if they are seen as being representative. In this way, the jury has a role in legitimising the system of which it is part.⁴² For example, the High Court observed, in 1986, that the:

essential conception of trial by jury helps to ensure that, in the interests of the community generally, the administration of criminal justice is, and has the appearance of being, unbiased and detached.⁴³

The representative jury

1.23 It has long been accepted that a representative jury is expected. Representation in this context refers to a representative sample of the population at large. The High Court, in 1993, stated that “the relevant essential feature or requirement of the institution was, and is, that the jury be a body of persons representative of the wider community”.⁴⁵

1.24 Perfect or proportional representation is obviously not possible since the process of jury selection is one involving random selection from a relatively small pool. Representation is not about achieving representation by particular groups on particular juries. The representative nature of juries depends upon everyone who is qualified to serve, whatever their background, age, race or ethnic origins, having an opportunity to serve.⁴⁶ The corollary of this must be that people who are qualified to serve should not be able to compromise the representative nature of juries by seeking to avoid jury service on other than acceptable grounds.

1.25 It is obvious that there are defensible reasons for excluding certain people from jury membership, either because they are not suitable to provide that service, or because the nature of their office or duties would be inconsistent with the important principle of preserving the jury as an independent and impartial trier of fact.⁴⁷ These justifiable exclusions from the “representative” jury will, however, vary “with contemporary standards and perceptions” so that exclusions that were justified in past eras, for example, the exclusion of women or the exclusion of men who did not meet the property qualification, may not be justified today.⁴⁸

1.26 From time to time, there have been reductions in the categories of exemption in order to advance the objective of representativeness. For example, amendments were made in 1977 in NSW because the “outmoded selection system and the proliferation of persons who may claim exemption from jury service” meant that jury rolls were then “not truly representative of the ordinary citizen”.⁴⁹ Lack of true representativeness was seen as a problem once again in 1993 when the NSW Jury Task Force declared that “a jury is not really representative of the community as a whole” because of the existing categories of disqualification, ineligibility and exemption as of right.⁵⁰ Reviews in other jurisdictions have expressed similar concerns.⁵¹

1.27 The legitimacy of these concerns has been supported by the submissions received, which generally agreed that the current categories of disqualification, ineligibility and exemption operate to exclude many who could properly and profitably serve as jurors, and that they require revision.⁵² This is an issue which is addressed in successive chapters of this Report.

Benefits

1.28 A properly representative jury will ensure a number of positive outcomes for the criminal justice system.

1.29 Impartiality. It has been observed that broadly representative juries “promote impartiality by reflecting a greater cross-section of community experience (and prejudice) so that no one view dominates”.⁵³ It has also been observed that systems where particular groups appear to be regularly excluded may be open to accusations of bias.⁵⁴

1.30 Legitimacy. The legitimacy of the system has been said to rest on “all groups within the community participating on juries”⁵⁵ and, by broad representation, bringing to bear on the issues at trial “the corporate good sense of that community”.⁵⁶

1.31 In our previous review of juries in criminal trials, in 1986, we observed that:

The representative character of the jury ensures that it performs its essential function of maintaining the values applied in the administration of criminal justice in accordance with the standards of ordinary people. The public clearly has a vital interest in the proper administration of justice. The jury is the most important means by which members of the public can observe the system at work and participate in it. This fosters a greater sense of community responsibility for the overall effectiveness of the system.⁵⁷

Risk of bias in appearing to exclude particular groups

1.33 A risk has been identified that the absence of particular minority groups from juries may render such juries open to a charge of bias in some cases.⁵⁹

1.34 People from culturally and linguistically diverse backgrounds. The Australian Law Reform Commission, in its report on multiculturalism and the law, considered that the exclusion of people who are not registered to vote and who have an inadequate command of English meant that juries were not truly representative of the community. This was seen as affecting the “perceived legitimacy” of the jury system. The Commission noted that some people from culturally diverse backgrounds fear that “jurors’ hostility and suspicion towards people of non-English speaking backgrounds may prejudice the chances of a fair trial where the accused or any witnesses or victims belong to particular ethnic minorities”.⁶⁰

1.35 Inclusion of Indigenous people. Particular attention has been drawn to the apparent under-representation of Indigenous people on juries compared with their over-representation as criminal defendants. The NSW Bureau of Crime Statistics and Research has reported that the rate of Indigenous appearances in court on criminal charges is 13 times that of non-Indigenous Australians, and that their rate of imprisonment is 10 time that of non-Indigenous Australians.⁶¹ A 1994 Australian Institute of Judicial Administration review noted that Indigenous people comprise 7% of the prison population but less than 0.5% of jurors.⁶² More recent figures show that, in 2001, Aboriginal people made up 1.9% of the NSW population⁶³ and that, in 2004, Aboriginal people made up 16.8% of the NSW prison population.⁶⁴ The disparity appears to be even greater when it is considered that a greater proportion of the population is Aboriginal in some country areas of NSW, such as Bourke and Dubbo.⁶⁵

1.36 A number of reasons have been provided for the low proportion of Indigenous jurors in NSW, including:

• the transience of some Indigenous people due to family ties and kinship obligations, higher unemployment, lack of relevant services, and systemic discrimination from service providers,⁶⁶ and the likelihood that they will either not be included in the electoral roll or will be recorded at a previous address;⁶⁷
• the extensive disqualification provisions that currently apply to people with criminal histories;⁶⁸
• the fact that, in some regional districts, Indigenous jurors may be known or related to Indigenous defendants, particularly in light of their extended concept of family relationships;⁶⁹
• the fact that, even if they get to the point of empanelment, some Indigenous people may seek to be excused from jury service in cases involving Indigenous defendants for fear of damaging their standing within certain Indigenous communities if they are seen to have been part of the conviction of another member of that community;⁷⁰ and
• the lower literacy rates within these groupings and the ineffectiveness in some instances of written communication, which may mean that some people do not respond to jury notices and may not meet the requisite ability in the English language.⁷¹

1.37 Some of the results of this under-representation can be said to be:

• the further alienation of Indigenous communities from the criminal justice system, which does not appear to seek their participation in any capacity except as an accused;
• the reduced opportunity for the perspective of Aboriginality to be understood by juries; and
• the knowledge that any accused is unlikely to be tried by a jury with an Indigenous member.⁷³

Spreading the burden of service

1.39 If a large number of people are exempted or excused from jury service, a higher burden is potentially imposed on those who are still eligible.⁷⁵ Reducing categories of exemption from jury service is seen as spreading “the obligation of jury service more equitably among the community”.⁷⁶

1.40 Currently, the burden is unequally shared. There is a risk that some people may be called upon too frequently, although whether this is the case is difficult to ascertain in the absence of statistics, and in circumstances where prior jury service, particularly recent service, can provide a good reason to be exempted or excused. If this does in fact occur, then it is more likely to be the case in regional areas than in metropolitan ones.⁷⁷

1.41 The Auld Review observed that, in England and Wales, avoidance of jury service by many in the community “is unfair to those who do their jury service, not least because, as a result of others’ avoidance of it, they may be required to serve more frequently and for longer than would otherwise be necessary”.⁷⁸

1.42 The extent to which citizens may be called upon to perform jury service will vary according to their place of residence, and the incidence of trials at courts within the prescribed limit of their residence. As we note later (x-ref), there are several geographic districts within the State where there is either no prospect, or a significantly reduced prospect, of people living within these districts ever being required for jury duty.

1.43 One submission agreed that the current categories of disqualification, ineligibility and exemption, by producing an unrepresentative jury, place an unfair burden on those who do not fit the categories.⁷⁹

Random selection

1.44 The High Court, in 1993, considered that one of the “unchanging elements” of the principle of representation is that “the panel of jurors be randomly or impartially selected rather than chosen by the prosecution or the State”.⁸⁰ In an earlier case, the Court had observed that random selection was one of the characteristics of a jury that offered “some assurance that the accused will not be judged by reference to sensational or self-righteous pre-trial publicity or the passions of the mob”.⁸¹

1.45 The principle of random selection is expressly mentioned in the statutes of most Australian jurisdictions, including NSW,⁸² and is sought to be achieved by the random calling up of jurors initially from the jury roll, and then by the balloting procedure followed on the day of empanelment.

1.46 Random selection ensures trial by a jury of peers who are not personally interested in the outcome and, as a consequence, able to adjudge innocence or guilt impartially and with open minds.

Peremptory challenge

1.47 The right of peremptory challenge⁸³ is to an extent inconsistent with the principle of random selection⁸⁴ and, if exercised on racial, or similar discriminatory grounds, can skew the composition of the jury. A certain level of peremptory challenge has generally been considered not to offend the principles of random selection. The alternative is to confine the right of challenge to challenge for cause or to create a system for jury vetting of the kind seen in some States in the US, although the latter does present a greater risk of overstepping the mark.⁸⁵ Later in this Report, we discuss some of the unsatisfactory aspects which attach to the existing practice, which permits both peremptory challenge and challenge for cause, although we do not recommend any immediate change to that practice. Nor do we recommend any form of jury vetting, which would permit exploration of the personal histories or attitudes of potential jurors.⁸⁶

Volunteers

1.48 It is sometimes suggested that interested people could make themselves available to serve as jurors by registering or notifying that willingness to the Sheriff.⁸⁷ It is believed by some that this would reduce any problem arising as the result of those who are unwilling to serve being excused.

1.49 The Commission considers that the system should not allow for volunteers, because it tends to undermine the general principle of representativeness of the jury system being achieved by random selection;⁸⁸ may entrench people in the system who consistently misunderstand or misapply directions;⁸⁹ and may invite the participation of jurors with particular personal agendas, or those with a vigilante attitude.⁹⁰

1.50 A significant number of submissions supported this position.⁹¹ One submission suggested that allowing volunteers to serve as jurors was “antithetical to the democratic ambition of jury duty”.⁹²

Special panels

1.51 The possibility has been raised from time to time of introducing special panels for the trial of Indigenous offenders or of those from particular racial groups⁹³ or of those who are charged, for example, with complex forms of economic crime.⁹⁴

1.52 In England and Wales, there has been ongoing debate on the question of the use of juries in fraud and other complex trials, arising initially from the deliberations of the Fraud Trials Committee, which reported in 1986. The majority of the Committee recommended the replacement of juries for trials of serious and complex fraud by a “Fraud Trials Tribunal,” consisting of a judge and a small number of suitably qualified lay members.⁹⁵ The recommendation was not implemented, in the hope that other procedural and evidential reforms that were implemented in 1987 would alleviate much of the problem.⁹⁶ The Royal Commission on Criminal Justice, in 1993, declined to make recommendations in the absence of empirical evidence.⁹⁷ More recently, Lord Justice Auld’s Review of the Criminal Courts in England and Wales considered that the arguments in favour of replacing trial by judge and jury in serious and complex fraud trials were persuasive.⁹⁸ He recommended a system whereby the trial judge could direct a trial by judge and lay members, unless the defendant opted for trial by judge alone.⁹⁹ In doing so, he rejected the idea of special juries, on the same grounds as the earlier Fraud Trials Committee, namely:

It would be difficult to empanel a jury, even from such a restricted category, who would collegiately have the degree of specialist knowledge or expertise which, by definition, they would be required to have for the particular subject matter in each case. And, even if suitably qualified juries, maybe smaller than 12, could be found, it would be unreasonable to expect them to serve the length of time that many such fraud trials now take.¹⁰⁰

1.53 The Commission does not favour the adoption of special panels as a way of addressing any imbalance in representation or in background knowledge and capacity to understand the issues. Reasons for this position include: the general lack of support for such an approach in other jurisdictions; the practical difficulties involved in establishing special panels; the lack of relevant empirical evidence on the issue in NSW; and the potential conflict with s 80 of the Constitution with regards to Commonwealth offences.

1. NSW, Report of the NSW Jury Task Force (1993); and M Findlay, Jury Management in New South Wales (Australian Institute of Judicial Administration Inc, 1994).

2. Jury Amendment Act 1996 (NSW).

3. NSW Law Reform Commission, Criminal Procedure: The Jury in a Criminal Trial, Report 48 (1986).

4. NSW Law Reform Commission, Conscientious Objection to Jury Service, Report 42 (1984).

5. NSW Law Reform Commission, Blind or Deaf Jurors, Report 114 (2006).

6. In, eg, Victoria: Juries Act 2000 (Vic), and Parliament of Victoria, Law Reform Committee, Jury Service in Victoria, Final Report (1996); Tasmania: Juries Act 2003 (Tas), and Tasmania, Department of Justice and Industrial Relations, Review of the Jury Act 1899, Issues Paper (Legislation, Strategic Policy and Information Resources Division, 1999); England and Wales: Criminal Justice Act 2003 (Eng), R E Auld, Review of the Criminal Courts of England and Wales (HMSO, 2001); New York: The Jury Project, Report to the Chief Judge of the State of New York (1994).

7. NSW Law Reform Commission, Jury Service, Issues Paper 28 (2006).

8. Redfern Legal Centre, Submission, 12; NSW Young Lawyers, Submission, 1; Legal Aid Commission of NSW, Submission, 2-3.

9. See NSW Law Reform Commission, The Jury in a Criminal Trial: Empirical Studies, Research Report 1 (1986); M Findlay, Jury Management in New South Wales (Australian Institute of Judicial Administration, 1994); T McGrath and S Ryan, “Social and psychological issues : do particular conditions of jury service place jurors under special risk of stress and contribute to the need of attention for debriefing?” (Paper delivered at the Criminology Research Council Sub-Group on Juror Stress and Debriefing Conference, 29 June 2004) reporting the findings from a 2001 evaluation of the NSW Juror Support Program; J Goodman-Delahunty, N Brewer, J Clough, J Horan, J Ogloff, and D Tait, Practices, Policies and Procedures that Influence Juror Satisfaction in Australia, (Draft) Report to the Criminology Research Council (2007) not yet published.

10. R v Lisoff [1999] NSWCCA 364, [49].

11. Brown v The Queen (1986) 160 CLR 171, 201 (Deane J). See also Kingswell v The Queen (1985) 159 CLR 264, 301 (Deane J).

12. Brown v The Queen (1986) 160 CLR 171, 197 (Brennan J); Ford v Blurton (1922) 38 TLR 801 at 805 (Atkin LJ); P Devlin, Trial by Jury (Stevens and Sons, 1956), 164.

13. Kingswell v The Queen (1985) 159 CLR 264, 301 (dissenting).

14. See para 15.3.

15. Criminal Procedure Act 1986 (NSW) s 121.

16. See Coroners Act 1980 (NSW) s 18.

17. Civil actions are generally to be tried without a jury unless a jury is required in the interests of justice: Supreme Court Act 1970 (NSW) s 85; District Court Act 1973 (NSW) s 76A. See also Defamation Act 2005 (NSW) s 21.

18. NSW, Bureau of Crime Statistics and Research, NSW Criminal Court Statistics 2005, Tables 1.3 and 3.2. See also NSW Law Reform Commission, Majority Verdicts, Report 111 (2005), [1.6]-[1.7].

19. Criminal Procedure Act 1986 (NSW) s 132.

20. Constitution (Cth) s 80; Brown v The Queen (1986) 160 CLR 171.

21. Crimes Act 1900 (NSW) s 476; and Crimes Act 1914 (Cth) s 4J.

22. Crimes Act 1900 (NSW) s 495-496A; and Crimes Act 1914 (Cth) s 4JA.

23. See Australian Law Reform Commission, Principled Regulation: Federal Civil and Administrative Penalties in Australia, Report 95 (2002).

24. Mental Health (Criminal Procedure) Act 1990 (NSW) s 11.

25. Mental Health (Criminal Procedure) Act 1990 (NSW) s 21(1).

26. See Crimes Act 1914 (Cth) Part 1B Div 6, in particular s 20B. The question whether Constitution (Cth) s 80 prevents the picking up of Mental Health (Criminal Procedure) Act 1990 (NSW) s 11 has not been considered. Compare Kesavarajah v The Queen (1994) 181 CLR 230.

27. Coroners Act 1980 (NSW) s 13.

28. Coroners Act 1980 (NSW) s 15.

29. Coroners Act 1980 (NSW) s 18(1).

30. Coroners Act 1980 (NSW) s 18(3).

31. Coroners Act 1980 (NSW) s 18(2).

32. S Gibbs, “Jury shown Star City death video” Sydney Morning Herald (9 May 2000) at 8.

33. “Jury clears marksman” Daily Telegraph (11 May 2002) at 7.

34. J Bartlett, “Jury to decide camper inquest” Herald (Newcastle) (30 May 2002) at 1.

35. “Inquest prompts mine safety recommendations” ABC Premium News (11 February 2005).

36. These were referred to as “running down cases”. See Motor Vehicles Third Party Insurance Amendment Act 1965 (NSW) and Law Reform (Miscellaneous Provisions) Act 1965 (NSW).

37. Chiefly the introduction of Supreme Court Act 1970 (NSW) s 85 and a decision of the Court of Appeal that the onus was on the applicant, who sought an order dispensing with a jury, to show that the party who requisitioned the jury, should be deprived of that mode of trial: Pambula District Hospital v Herriman (1988) 14 NSWLR 387.

38. Courts Legislation Amendment (Civil Juries) Act 2001 (NSW) amending Supreme Court Act 1970 (NSW) s 85 and repealing s 86-89; inserting District Court Act 1973 (NSW) s 76A and repealing s 78-79A.

39. Note in particular the decision in Maroubra Rugby League Club v Malo [2007] NSWCA 39.

40. See Defamation Act 2005 (NSW) s 21. Under this Act, a party may elect for trial by jury, unless the Court otherwise orders (s 21(1)). The Court may, however, order that such proceedings are not to be tried by jury if they involve a prolonged examination of records, or any technical, scientific or other issue that cannot be conveniently considered and resolved by a jury (s 21(2)).

41. Defamation Act 2005 (NSW).

42. See M Findlay, Jury Management in New South Wales (Australian Institute of Judicial Administration Inc, 1994), 17. See also R E Auld, Review of the Criminal Courts of England and Wales (HMSO, 2001), 135, 139; J Horan and D Tait, “Do juries adequately represent the community? A Case study of civil juries in Victoria” (2007) 16 Juournal of Judicial Administration 179, 185. But see also I M Vodanovich, “Public attitudes about the jury” in D Challinger (ed), The Jury, Australian Institute of Criminology Seminar: Proceedings No 11 (1986), 75; M Findlay, “Reforming the jury: the common ground” in D Challinger (ed), The Jury, Australian Institute of Criminology Seminar: Proceedings No 11 (1986), 155.

43. Brown v The Queen (1986) 160 CLR 171, 202.

44. Cheatle v The Queen (1993) 177 CLR 541, 549, 560-561.

45. Cheatle v The Queen (1993) 177 CLR 541, 560.

46. New Zealand, Law Commission, Juries in Criminal Trials, Report 69 (2001), [135].

47. See chapters 3 and 4.

48. Cheatle v The Queen (1993) 177 CLR 541, 560-561.

49. NSW, Parliamentary Debates (Hansard) Legislative Assembly, 24 February 1977, at 4475.

50. NSW, Report of the NSW Jury Task Force (1993), 23. This point was also raised in M Findlay, Jury Management in New South Wales (Australian Institute of Judicial Administration Inc, 1994), 173.

51. Tasmania, Department of Justice and Industrial Relations, Review of the Jury Act 1899, Issues Paper (Legislation, Strategic Policy and Information Resources Division, 1999), ch 2; Supreme Court of Queensland, Litigation Reform Commission, Reform of the Jury System in Queensland, Report of the Criminal Procedure Division (1993), 3-4.

52. NSW Bar Association, Submission, [6], [7]; A Allan, Submission, 1; J Kane, Submission; NSW Young Lawyers, Submission, 12.

53. Parliament of Victoria, Law Reform Committee, Jury Service in Victoria, Final Report (1996), 24.

54. NSW Law Reform Commission, Criminal Procedure: The Jury in a Criminal Trial, Report 48 (1986), [4.6]. This view is recognised in some jurisdictions, such as NSW, where the presiding judge has the power to discharge the jury if “the exercise of the rights to make peremptory challenges has resulted in a jury whose composition is such that the trial might be or might appear to be unfair”: Jury Act 1977 (NSW) s 47A. In other jurisdictions, however, it is considered that the principle of random selection is generally sufficient to ensure fairness and that any power to discharge should only be exercised where the competence of the jurors is in question: See R v Ford [1989] QB 868, 871; New Zealand, Law Commission, Juries in Criminal Trials, Report 69 (2001), [158]-[160].

55. New Zealand, Law Commission, Juries in Criminal Trials, Report 69 (2001), 55.

56. United Kingdom, Home Office, Report of the Departmental Committee on Jury Service, Cmnd 2627 (1965), [53].

57. NSW Law Reform Commission, Criminal Procedure: The Jury in a Criminal Trial, Report 48 (1986), [4.3].

58. New Zealand, Law Commission, Juries in Criminal Trials, Report 69 (2001), 55.

59. See England and Wales, Royal Commission on Criminal Justice, Report (1993), 133.

60. Australian Law Reform Commission, Multiculturalism and the Law, Report 57 (1992), [10.44].

61. D Weatherburn, L Snowball, B Hunter, The Economic and Social Factors Underpinning Indigenous Contact with the Justice System: Results from the NATSISS Survey, Crime and Justice Bulletin, No 104 (NSW Bureau of Crime Statistics and Research, 2006), 1.

62. See M Findlay, Jury Management in New South Wales (Australian Institute of Judicial Administration Inc, 1994), 5. In 1986, a study conducted by the NSW Law Reform Commission reported that 0.4% of jurors were of Aboriginal origin, compared with 0.6% of people of Aboriginal origin in the general population: NSW Law Reform Commission, The Jury in a Criminal Trial: Empirical Studies, Research Report 1 (1986), [3.29].

63. The People of New South Wales: Statistics from the 2001 Census (Community Relations Commission for a Multicultural New South Wales, 2003), Table 2.2.

64. S Corben, NSW Inmate Census 2004: Summary of Characteristics, Statistical Publication No 26 (NSW, Department of Corrective Services, 2004), 3.

65. Australian Bureau of Statistics, Population Distribution, Aboriginal and Torres Strait Islander Australians (2006).

66. Aboriginal Legal Service, Submission, 6.

67. M Findlay, Jury Management in New South Wales (Australian Institute of Judicial Administration Inc, 1994), 5.

68. M Findlay, Jury Management in New South Wales (Australian Institute of Judicial Administration Inc, 1994), 5. See para 3.1.

69. L Anamourlis, Preliminary consultation.

70. J Goodman-Delahunty, N Brewer, J Clough, J Horan, J Ogloff, and D Tait, Practices, Policies and Procedures that Influence Juror Satisfaction in Australia, (Draft) Report to the Criminology Research Council (2007) not yet published, 71.

71. See para 5.2.

72. See para 10.30.

73. Aboriginal Legal Service, Submission, 4-5.

74. NSW Bar Association, Submission, [4]; NSW Public Defender’s Office, Submission, 2; Aboriginal Legal Service, Submission.

75. See Supreme Court of Queensland, Litigation Reform Commission, Reform of the Jury System in Queensland, Report of the Criminal Procedure Division (1993), 3.

76. Tasmania, Parliamentary Debates (Hansard) House of Assembly, 19 August 2003, 44. See also Supreme Court of Queensland, Litigation Reform Commission, Reform of the Jury System in Queensland, Report of the Criminal Procedure Division (1993), 4.

77. Law Reform Commission of Western Australia, Exemption from Jury Service, Report, Project No 71 (1980), [3.39].

78. R E Auld, Review of the Criminal Courts of England and Wales (HMSO, 2001), 140. See also Parliament of Victoria, Law Reform Committee, Jury Service in Victoria, Final Report (1996), [3.62].

79. NSW Bar Association, Submission, [7].

80. Cheatle v The Queen (1993) 177 CLR 541, 560.

81. Kingswell v The Queen (1985) 159 CLR 264, 302.

82. Juries Act 2003 (Tas) s 4; Juries Act 2000 (Vic) s 4; Jury Act 1977 (NSW) s 12; Jury Act 1995 (Qld) s 26; Juries Act 1927 (SA) s 29; Juries Act 1957 (WA) s 14(2).

83. See para 10.13-10.42.

84. See discussions in Parliament of Victoria, Law Reform Committee, Jury Service in Victoria, Final Report (1996), [6.32]-[6.41].

85. See Queensland, Criminal Justice Commission, Report by the Honourable W J Carter QC on his Inquiry into the Selection of the Jury for the Trial of Sir Johannes Bjelke-Petersen (1993), 480.

86. See para 8.36-8.38.

87. Tasmania, Parliamentary Debates (Hansard) House of Assembly, 19 August 2003 at 53; F Weston, “Why am I not on jury list?” (letter to the editor) Sun-Herald (8 October 2006) at 30; M J Stocker, Preliminary submission (Ministerial correspondence); M J Stocker, Submission, 2,9; G R Williams, Preliminary submission (Ministerial correspondence).

88. United Kingdom, Home Office, Report of the Departmental Committee on Jury Service, Cmnd 2627 (1965), [54].

89. NSW Young Lawyers, Submission, 20.

90. See J Goldring, Submission, 5.

91. NSW Bar Association, Submission, [35]; Legal Aid Commission of NSW, Submission, 15; NSW Public Defender’s Office, Submission, 10; Redfern Legal Centre, Submission, 11; NSW Jury Task Force, Submission, 3; NSW Young Lawyers, Submission, 20.

92. NSW Bar Association, Submission, [35].

93. Compare the historical juries de medietate linguae: J Stephen, New Commentaries on the Laws of England (Butterworths, 1883) Vol 4, 422-423.

94. M Findlay, Jury Management in New South Wales (Australian Institute of Judicial Administration Inc, 1994), 177, J Horan and D Tait, “Do juries adequately represent the community? A Case study of civil juries in Victoria” (2007) 16 Journal of Judicial Administration 179, 182-183; R E Auld, Review of the Criminal Courts of England and Wales (HMSO, 2001), 156-159, 200-213; England and Wales, Royal Commission on Criminal Justice, Report (1993), [8.42]-[8.44]. But see New Zealand, Law Commission, Juries in Criminal Trials, Report 69 (2001), [157]-[160], [165]-[175].

95. England and Wales, Fraud Trials Committee Report (HMSO, 1986), [8.47]-[8.51].

96. R E Auld, Review of the Criminal Courts of England and Wales (HMSO, 2001), 204.

97. England and Wales, Royal Commission on Criminal Justice, Report (1993), Chapter 8, [76]-[81].

98. R E Auld, Review of the Criminal Courts of England and Wales (HMSO, 2001), 204.

99. R E Auld, Review of the Criminal Courts of England and Wales (HMSO, 2001), 207-209.

100. R E Auld, Review of the Criminal Courts of England and Wales (HMSO, 2001), 205.

101. Fraud (Trials Without a Jury) Bill 2006 (UK).