13. Conditions of service

Updates and background for this project (Digest)

• Juror accommodation and jury management
• Jury communication, information and education
• Insurance for injuries received or property damage arising in the course of service

13.1 While NSW has moved a long way from the days when jurors were denied provisions and, in effect, starved into a verdict,¹ a question remains as to what impact the poor management of juries and the inadequate provision of accommodation and facilities has upon the verdict.² Ideally, juries in NSW should be managed and provided with adequate accommodation and facilities in such a way as to allow them to reach a verdict with as little inconvenience as possible in the circumstances.

Physical accommodation and facilities

13.2 Juror accommodation, particularly in the older courthouses, both before empanelling and during deliberations has been generally assessed as sub-standard.³ This appears to be a trend in jury reviews across all jurisdictions.⁴ The problems apply particularly to the assembly or waiting stage, for which the accommodation provided is either cramped or non-existent, or arranged on an ad hoc basis away from the courthouse. This practice has, on occasions, necessitated the shepherding of jurors through public streets, in the company of Sheriff’s officers, back to the courthouse. Additionally, many jury rooms are very small, with only limited privacy for toilet facilities or for open-air exercise within the court perimeter.

13.3 Several reviews have emphasised the desirability of greater sensitivity to the needs of jurors, not only in terms of physical accommodation, but also in terms of the extent of communication with jurors and the general efficiency of the system.⁵ A number of submissions were received expressing the same sentiment,⁶ and one submission suggested that there should be a statutory right conferred which would guarantee jurors reasonable amenities and refreshments.⁷

13.4 Others have also commented unfavourably on the food provided to jurors while serving.⁸ This situation is compounded by the fact that jurors are generally not permitted to leave the court precincts during the luncheon adjournment, a practice which does not apply in other jurisdictions (for example, Victoria) and by the inadequacy of provision for self-catering in most jury rooms in NSW.⁹

13.5 It would be impractical, and unduly expensive, for substantial improvement to be made to the physical facilities reserved for jurors in many of the existing courthouses in NSW, which comprise a mixture of heritage buildings, recently converted buildings originally designed for other uses, and new purpose-built courthouses. However, the provision of comfortable facilities should be built into the planning of future courthouses and of renovations to existing buildings, both in relation to assembly and waiting rooms, and also in relation to the courtrooms and jury deliberation rooms. Such facilities should comply with occupational health and safety standards and provision should be made to accommodate jurors with disabilities.¹⁰

Trial interruptions

13.6 Better case management is required to avoid jurors being kept waiting during trials while legal issues are addressed, a matter which has regularly been noted as a cause for complaint in reviews, jury surveys, and in submissions to this review.¹¹ This can be achieved by judges taking steps to set aside certain periods of the day for submissions, during which jurors can be excused, or receiving those submissions outside normal court hours. This can also be achieved by exercise of the power under the Criminal Procedure Act 1986 (NSW) to make any orders for the purposes of the trial before a jury is empanelled. Additionally, where such interruptions are unavoidable, judges should endeavour to minimise the irritation occasioned, by ensuring that jurors are kept informed of the reasons for any delay to the proceedings.

Access to telecommunication devices

13.7 The provision of business facilities, such as facsimile machines and computer terminals, which could be used during breaks in the sittings, has been suggested as a means of reducing the inconvenience of jury service for those who could usefully employ those breaks for work purposes.¹² There could also be some relaxation of the current practice of discouraging jurors from bringing mobile telephones to court. The provision of facilities that might permit internet access during sitting hours is potentially problematic since it might encourage jurors to conduct research in relation to the trial in which they are involved. On the other hand, any juror could, if so minded, undertake similar research on a private terminal out of hours. Whether effected through the court facility or some other facility, such a search would have been conducted contrary to the standard directions which are given, and would invite prosecution for an offence under the Act¹³ as the result of reporting by another juror.¹⁴

13.8 One submission supported allowing regulated access to land-line telephones, while barring mobile telephones because of their current capacity for photography and internet access.¹⁵

13.9 Another submission supported allowing access to the internet, adding “jurors would use this to stay in touch with work, hobbies, family and friends in preference to using it find out some information about the trial”.¹⁶

13.10 The Commission has decided not to make any recommendation in this regard, although it notes that:

• it should be assumed jurors will generally follow instructions concerning the extent to which they can or cannot use their mobile telephones or any computer terminal which might be provided by a court;
• in trials of more than one day, jurors who elected to ignore these instructions could not be prevented from accessing the internet overnight;¹⁷ and
• jurors will inevitably be required to turn their mobile telephones off during actual proceedings.

13.11 Two matters arise for consideration. The first concerns the general public perception of what is involved in jury service. The lack of promotion of the virtues of such service, and its importance to the justice system, has led to an incorrect and unfavourable understanding of what is involved. The second concerns the provision of more precise information to those who receive a jury summons, to enable them to have a better understanding of their rights and of what might be expected of them.

13.12 In our view, there is substantial room for improvement in each of these areas, although it would be dependent upon the existence of a discrete section of the Sheriff’s office, or of an agency similar to the Office of the Juries Commissioner in Victoria having the expertise and administrative support necessary to manage juries in NSW.

Challenging popular perceptions

13.13 Some submissions drew attention to the need to counter popular, unfavourable, perceptions concerning the nature of jury service.¹⁸ One in particular considered that some people will seek to be excused from service because of exaggerated and unnecessary fears of lengthy trials and of being “locked up”, which have been generated by media coverage of notorious cases, while others are likely to have been influenced by reports detailing complaints by former jurors of their “inconvenient, uncomfortable, boring and demeaning experiences”.¹⁹ One submission also highlighted the need to educate employers as to their responsibilities,²⁰ a matter of some importance since any reluctance on their part to allow employees to serve is only likely to foster a jaundiced view among those employees concerning jury service.

13.14 Those who have made a study of the jury system have routinely reported on the general ignorance and limited understanding of the public of its operation and significance,²¹ or of the benefits of ensuring that the community is broadly represented in the criminal justice system.

13.15 One submission, in fact, drew attention to the benefits of encouraging greater civic education on the responsibilities of jurors and on the importance of the jury system.²²

13.16 We consider that material should be provided that will promote a better-informed general awareness of the operation of the jury system, and of the rights and obligations of those who might become involved, including information that might assist in dispelling some of the concerns or myths that exist. The provision of suitable information on a web site, and the inclusion of a specific segment dealing with the role of juries, and of the obligations attaching thereto, in school legal studies courses would assist, as might the inclusion of this topic in public seminars during occasions such as Law Week.

Pre-trial information

Written information

13.17 Written information is provided to potential jurors at three stages before a trial commences; first, when they receive the notice of inclusion stage, secondly, when they receive a summons, and, finally, when they attend court in answer to the summons.

13.18 Potential jurors first receive a notice of inclusion that advises them that they will be included on a jury roll. This notice currently provides no explanation of jury service and does not highlight its importance for the functioning of the legal system in NSW, but rather details the ways in which potential jurors can apply to be removed from the jury roll or to be excused from attendance. In 1986, this Commission recommended that the jury inclusion notice contain “a brief explanation of the nature of jury service and the role of the jury in the legal process”.²³

13.19 When a potential juror receives a summons to attend court on a particular day, a “Jury Summons Brochure” is included, which answers some of the concerns commonly expressed by potential jurors. The information is, however, poorly arranged and contains an amount of unnecessary information, for example, an explanation of the difference between criminal and civil matters. Like the notice of inclusion, it does not highlight the importance of jury service to the functioning of the legal system in NSW.

13.20 Neither the brochure nor the jury summons itself refer to the Jury Duty website,²⁴ which includes a useful and well-arranged “frequent questions” section. This section, among other things, provides helpful explanations of notices of inclusion and summonses. The website also contains information in relation to the allowances that are payable, along with some brief advice as to the role and responsibilities of jurors. The difficulty with reliance upon it, as a source of information, is that, absent some mention of its existence in the notice of inclusion, the jury pamphlet or summons, it is unlikely that potential jurors will access it. Additionally, there is a concern that many of those summoned for service may not have access to a computer or the skills needed to find this website.

13.21 This compares unfavourably with the practice in England and Wales, where a detailed handbook is distributed with the summons and comprehensive, court-specific on line guides to jury service are identified and made available.²⁵ In Victoria, the notice of selection includes a two-page summary explaining jury service and also provides a two-page information sheet for employers of prospective jurors.

13.22 The jury handbook in NSW is handed to jurors on the day of the trial. One submission suggested that the provision of information to people while they wait to be empanelled may be too late to be effective.²⁶ We recognise that this is likely to be so, particularly when a large panel is assembled on the morning of the trial, when there may only be a limited amount of time available for the absorption of meaningful advice, and where many of those present will be nervous about the possibility of being empanelled and, as a consequence, somewhat inattentive or unreceptive to information. Another disadvantage of the late supply of this material is that it denies potential jurors the opportunity of ascertaining whether their concerns about service will or will not be addressed, which in turn might have the effect of increasing the proportion of those who seek to be excused. An earlier supply of information could overcome or minimise this problem.

13.23 We note that the Victorian Juries Commissioner’s Office, in conjunction with the Victoria Law Foundation, has produced a detailed and informative handbook on jury service.²⁷ It is far more comprehensive than the pamphlet provided to jurors in NSW.²⁸ Topics dealt with in this handbook includes the importance of juries to the legal system, issues surrounding being summoned, including time, payment and employment, what will happen to jurors when they arrive at court, who’s who in the courtroom, how jurors must carry out their task, what happens in the trial, and what will happen after the trial.²⁹

13.24 One submission raised the issue of developing appropriate information on jury service that is accessible to people with limited literacy levels. Although this was said in the context of Indigenous people, it applies equally to any groups who have had limited educational opportunities,³⁰ or who have limited knowledge of the justice system. We would support the development and use of a handbook with a general explanation, in plain English, of the duties and rights of jurors and of the nature of jury service. This handbook could provide answers to common questions in line with the website material, although without venturing into the directions which would be expected to be given later by the trial judge.

13.25 Another submission also suggested that additional preliminary information should be given to prepare jurors for the time when they are given preliminary details in the court room by counsel and the judge concerning the case and are asked to identify any reasons why they might not be able to consider the case impartially, noting that:

there are indications that, in the stress of being empanelled some jurors facing potential conflict situations may not fully appreciate the warning required to be given under section 38(7)(b) of the Act.³¹

Video

13.27 To a significant extent, the current disclosure of relevant information depends upon the single showing of a relatively brief video to those who respond to their jury summons, while they are awaiting possible empanelment. It does not seem to be an optimal method of providing information to a group of people who are unfamiliar with the environment in which they find themselves and who may well be stressed and inattentive. Moreover, it appears to us that, while the video currently shown to jurors, which was produced in 2000, goes some of the way to showing what might be expected in court, and in the jury room, it is not particularly informative. It tends to place too much attention on peripheral matters such as the arrival of jurors at court and the apparent desire of one “potential juror” to be excused.

Telephone confirmation

13.28 At present, in NSW, potential jurors who have been summoned are required to call a number after 5 pm on the nearest working day before the day set down for attendance to ensure that their panel is still required on that day, and to receive further instructions, if necessary. The summons, in advising of the requirement to obtain telephone confirmation states: “failure to obtain the necessary information could result in the imposition of a fine”.

13.29 This situation compares unfavourably with that in Victoria where, in addition to the provision of a 1800 number to call on the night before the trial, an on line checking facility is also available. The online checking facility also mitigates the risk of the telephone lines going down. Victoria and SA also provide information to prospective jurors in advance of the day of attendance by way of text messages to their mobile telephones.

The Commission’s conclusion

13.30 There is a need to improve the timeliness, quality and extent of the information provided specifically to those who receive notices of inclusion and jury summonses, and also the media used to convey the information. This may be achieved by such actions as reviewing the adequacy of the 2000 video which is currently shown to jurors, preparing a more comprehensive handbook along the lines of the Victorian model, making better use of on line services and text messaging services, and ensuring that adequate information is provided about jury service well in advance of attendance by prospective jurors.

RECOMMENDATION 63

Better and more comprehensive information should be provided to prospective jurors in advance of the date they have been summoned to attend.

Debriefing

13.31 In NSW, few, if any, judges attempt to debrief jurors at the conclusion of the trial in a way that is sufficiently designed to express appreciation for their contribution, and to respond to any concerns that they may have arising from their service and future obligations. One Justice of the Supreme Court of Victoria (Justice Teague) has developed a model for such debriefing which has received a favourable response from jurors and would be worth replicating, without delving into the reasons behind the verdict or the content of the jury’s deliberations.

RECOMMENDATION 64

Judges should consider adopting strategies for debriefing jurors at the conclusion of the trial, so as to recognise their contribution and identify any concerns they may have arising from their jury service, although without venturing into the content of their deliberations.

13.32 The Sheriff’s Office established a Jurors’ Support Program in 2001 to provide professional support and/or counselling for jurors needing it after discharge. The program was established as an acknowledgment of the distress or trauma that can be caused to jurors, not only arising from the matters tried, but also arising from such causes as frustration with the legal system or even the dynamics of the jury deliberations.³³

13.33 Jurors are advised of the availability of the service at the end of the trial. First, a statement is read out by a court officer, and then a pamphlet is made available. Approximately 100 people access the program each year.³⁴ A recent juror satisfaction survey shows that the majority of jurors were unaware of the existence of the program.³⁵

RECOMMENDATION 65

The Juror Support Program should continue to be available to jurors after they are discharged.

13.34 In Victoria, provision is made for the payment of compensation for any injuries or loss due to property damage occasioned to a juror in the course of jury service, or while travelling to and from the court as if the juror was a worker subject to the provisions of the Accident Compensation Act 1985 (Vic).³⁶ One submission was received supporting the introduction of a similar scheme in NSW that would confer benefits in line with those provided under the NSW WorkCover legislation.³⁷ We understand that a discretion currently exists to allow payment of small sums to jurors out of the Treasury Managed Fund, although it is not often invoked. In general, we consider it undesirable that jurors should be forced to rely on a common law action of negligence to recover compensation for any injuries or loss suffered as the result of inadequate security or defective premises or other circumstances that might ground such a claim. In 1986, we recommended the amendment of the Jury Act 1977 (NSW) to provide compensation for jurors injured at court, or on their journey to and from court, on the same basis as that applicable to injured employees, and drew attention to the extent of support provided by the submissions we had received.³⁸

13.35 We consider that a scheme should be formally established which could provide for the payment of compensation for injuries received or loss incurred by reason of property damage in the course of attending for jury service. Such a scheme could be based on workers’ compensation legislation, or the compensation schemes applicable to injured bushfire, emergency and rescue service workers.³⁹ At the least, the provision of compensation out of the Treasury Managed Fund should be formalised, its existence made known to jurors, and steps taken to ensure that it provides fair and equitable compensation.

RECOMMENDATION 66

Consideration should be given to the establishment of an appropriate scheme whereby compensation is paid for any injuries or loss due to property damage occasioned to a juror in the course of jury service, or while travelling to and from the court for the purpose of such service.

1. See R v Leard (1870) 9 SCR 131.

2. See, eg, C C Doyle and C C Doyle, “Wretches hang that jury-men may dine” (2007) 28 The Justice System Journal 219.

3. NSW, Report of the NSW Jury Task Force (1993), 26-36; Legal Aid Commission of NSW, Submission, 15; NSW, Public Defender’s Office, Submission, 10; CRS Australia, Workplace Assessment Report (prepared for the NSW Bar Association, 24 May 2007). See also NSW Jury Task Force, Submission, 3-4; Redfern Legal Centre, Submission, 13; 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, 99-104, 130.

4. Parliament of Victoria, Law Reform Committee, Jury Service in Victoria, Final Report (1996), [6.26]-[6.30].

5. Supreme Court of Queensland, Litigation Reform Commission, Reform of the Jury System in Queensland, Report of the Criminal Procedure Division (1993), 77-80; NSW, Report of the NSW Jury Task Force (1993), 12-14; R E Auld, Review of the Criminal Courts of England and Wales (HMSO, 2001), 218-219.

6. Legal Aid Commission of NSW, Submission, 15; Redfern Legal Centre, Submission, 13; NSW Young Lawyers, Submission, 22.

7. NSW Bar Association, Submission, [37].

8. Confidential, Consultation; J Mendelssohn, “The Law: The Trials of a Jury” «www.newmatilda.com» (14 March 2007); 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, 91.

9. 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, 103.

10. See R Harper, “Workplace Assessment Report” (24 May 2007) commissioned by the NSW Bar Association.

11. NSW Law Reform Commission, The Jury in a Criminal Trial: Empirical Studies, Research Report 1 (1986), [6.45]; New Zealand, Law Commission, Juries in Criminal Trials Part Two: A summary of the research findings, Preliminary Paper 37 (1999) Vol 2, [4.4]-[4.7]; Confidential consultation; NSW Public Defender’s Office, Submission, 10; 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, 75, 79.

12. See R E Auld, Review of the Criminal Courts of England and Wales (HMSO, 2001), 223.

13. Jury Act 1977 (NSW) s 68C.

14. See para 11.56-11.60.

15. Legal Aid Commission of NSW, Submission, 15.

16. Redfern Legal Centre, Submission, 13.

17. Although it may be technologically possible to examine a juror’s computer post trial to detect any breach of the law, if reasonable cause for suspicion existed.

18. J Goldring, Submission, 7; Redfern Legal Centre, Submission, 11; Legal Aid Commission of NSW, Submission, 18.

19. Redfern Legal Centre, Submission, 11.

20. J Goldring, Submission, 7.

21. See, eg, New Zealand Law Commission, Juries in Criminal Trials Part 2: A Summary of the Research Findings, Preliminary Paper 37 (1999) Volume 2, [2.3]; NSW Law Reform Commission, The Jury in a Criminal Trial: Empirical Studies, Research Report 1 (1986), [6.2]-[6.4].

22. Legal Aid Commission of NSW, Submission, 17-18.

23. NSW Law Reform Commission, Criminal Procedure: The Jury in a Criminal Trial, Report 48 (1986), 73.

24. See, «http://www.lawlink.nsw.gov.au/lawlink/local_courts/lllocalcourts.nsf/pages/jury_index».

25. England and Wales, Criminal Justice System, “Welcome to the Juror Virtual Walkthrough” «http://www.cjsonline.gov.uk/juror/walkthrough/index.html» (as at 2 May 2007).

26. Legal Aid Commission of NSW, Submission, 17.

27. Victoria, Juries Commissioner’s Office, Juror’s Handbook (Victoria Law Foundation, 2005 edition).

28. Attorney General’s Department of NSW, A Guide for Jurors: Welcome to Jury Service (2007).

29. Victoria, Juries Commissioner’s Office, Juror’s Handbook (Victoria Law Foundation, 2005 edition).

30. Aboriginal Legal Service, Submission, 6.

31. Legal Aid Commission of NSW, Submission, 18.

32. Legal Aid Commission of NSW, Submission, 18.

33. See, generally, M Knox, The Secrets of the Jury Room (Random House, 2005), 301-306.

34. L Anamourlis, “The juror support program in NSW” (2007) 90 Reform 38.

35. 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, 139.

36. Juries Act 2000 (Vic) Part 8.

37. See NSW Bar Association, Submission, [37].

38. New South Wales Law Reform Commission, Criminal Procedure: The Jury in a Criminal Trial, Report 48 (1986), [6.45].

39. Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW).