I. INTRODUCTION

1.1 A discussion of the features and possible reform of the modern jury should be prefaced by a description of its historical development. This is so for a number of reasons . First, an examination of the course of the jury’s development will show clearly that the jury is an institution which can evolve to serve changing conditions without detriment to its essential nature. Second, such an examination reveals that each age has valued the jury not only as a time-honoured tradition but also as an institution which is one of the indicia of our concept of democracy. This is shown most clearly by the demands for the introduction of jury trial pressed by the first British settlers of New South Wales. Thirdly, it is clear that the features of the criminal jury as we know it in New South Wales - the jury of twelve ordinary people chosen at random, deliberating in secret and rendering a unanimous verdict - have evolved over time and are even now by no means universal. In different ways in different jurisdictions the features of the jury have evolved further: sometimes only in the interests of cost-saving and efficiency; at other times to reflect community expectations.

II. ORIGINS OF THE JURY

1.2 Our right to trial by our peers is often said to be a sacred and fundamental right enshrined in the Magna Carta of 1215. However, jury trial did not spring fully-fledged into being on that date. Rather it developed over many centuries. The group of twelve was originally used to provide, rather than Find, the facts. The Normans introduced this method of gathering information for fiscal and administrative purposes: twelve local men would be sworn and would furnish information about rights to land or numbers of livestock. Local men, in groups of twelve, would also be sworn and required to inform the King’s itinerant judges of suspected criminals. Such groups became known as juries of accusation. Suspects were then always tried by one of several ‘ordeals’ in which God was invoked to distinguish the innocent from the guilty.¹

1.3 The body of twelve is also found in the civil procedure known as compurgation. This ancient procedure, used in actions of debt and detinue until about 1600, involved the defendant swearing he or she did not owe the money and producing eleven “oath-helpers” to testify as to his or her credibility.² The criminal jury also has roots in the grand jury. The grand jury, in later times numbering twenty-three members of a community, was a jury of presentment. When people were accused of crime, the grand jury was convened

... to decide whether there was sufficient evidence to put individuals on trial before the justices. If the grand jurors considered that there was a case to answer, they found the bills ‘true’ by writing billa vera on the back; if not, they endorsed the bill ignoramus (we do not know) and proceedings on the bill ended. The finding of a true bill by the grand jury was not a judgment or a finding of guilt, and it required only a majority vote of twelve; it was an accusation upon reasonable suspicion, the effect of which was to initiate proceedings between the king and the accused person to try the issue of guilt.³

1.4 When trial by ordeal of water was virtually abolished by the Pope’s order at the Fourth Lateran Council of 1215 that priests were no longer to participate, English judges had to find a way other than reliance on God and religious conviction of trying the question of guilt. Since the facts were outside their own knowledge, the judges could not decide on guilt. Over time the jury of accusation came to be used to swear to the facts and make a true decision. By the end of the thirteenth century this group became the trial jury, the petty jury of twelve countrymen. The Magna Carta of 1215 provided another model for the jury. Among other things, it guaranteed the nobility, who had long objected to being tried in the King’s courts, trial by their peers.⁴

1.5 Thus, the fundamental form of the jury can be found in a range of legal practices which offered procedures appropriate to criminal trials. over the ensuing centuries, as criminal law evolved, the features of the jury also changed. In great part these changes were brought about by considerable opposition to the use of juries to try criminal matters. There was initially some concern that criminal issues were too important, especially where the death penalty applied, to be left to human fallibility. Trial by ordeal could be preferred because “jurors might err where God would not”.⁵ It ma y be that the requirement that a jury’s verdict be unanimous, established in 1367, was motivated, in part, by a comparison with trial by ordeal. In order to approximate the certainty and reliability of the ordeal, jury trial at least had to offer a unanimous decision. The principle that juries should be impartial also took centuries to develop. It was not until 1352 that an accused person could object that members of the trial jury had also been members of the jury of accusation.⁶ Yet the early jury continued to be formed as it was precisely because, being from the same community as the accused person, it., unlike the judges, could be expected to know the circumstances of the alleged offence. During the fourteenth century jurors were even actively encouraged to inform themselves before trial. Gradually, however, it became an irregularity for a party to communicate privately with jurors, at least once they were sworn. To avoid improper influences, the practice arose of isolating the jury during the trial. By the middle of the sixteenth century it was irregular for jurors even to inform each other of facts within their private knowledge without giving evidence in open court.⁷ Thus, three centuries passed before the jury became a body charged with determining a civil dispute or a criminal accusation on the evidence presented alone.

1.6 It took somewhat longer to develop the concept of the jury as the sole trier of facts, distinct from and independent of the presiding judge. Until 1670, juries were frequently punished, by fines and imprisonment, for bringing in perverse verdicts, especially verdicts contrary to the directions of’ the judge. In that year the independence of juries was authoritatively established.⁸ The democratisation of the jury has been an even more recent development. Property qualifications once ensured that juries were “predominantly male, middle-aged, middle-minded, and middle class”.⁹ The property qualification was not abandoned in New South Wales until 1947, and not until 1967 in the United Kingdom. It was not until 1977 that the privilege of jury service was extended to women on the same basis as men in New South Wales.

III. THE JURY IN NEW SOUTH WALES

A. The Introduction of Civil Juries: 1823

1.7 While juries were used at inquests by coroners,¹⁰ the right to trial by jury did not accrue to the early British settlers in Australia for the probable reason that it was considered inappropriate for a convict settlement controlled by the military.¹¹ The Letters Patent of 1787 constituted a criminal court of a Deputy Judge-Advocate and six naval or military officers. In 1809 Deputy Judge-Advocate Bent criticised this court as having too close an analogy to a court martial. As the free population expanded, the demand for the right to jury trial grew and in 1823 the Imperial Parliament passed the New South Wales Act establishing a Supreme Court and providing for civil jury trial on the application of a party. If there was no such application, the usual mode of civil trial was by a judge sitting with two assessors, who were Magistrates or Justices of the Peace.¹² There is some evidence that a grand jury of indictment was convened in Sydney in the 1820’s, but this institution has never been legislatively introduced in New South Wales.¹³ Civil jurors had to own 50 or more acres of cleared land, or other real property to the value of at least 300 pounds, which property had to be situated in the colony.¹⁴ The Act of 1823 further provided that any person accused of any crime, misdemeanour or offence was still to be tried by a judge and seven commissioned army or navy officers nominated by the Governor.¹⁵ The Australian Courts Act of 1828 continued these provisions. The Act of 1828 also provided for the establishment of Courts of General and Quarter Sessions for the summary trial of convicts on all charges except where the death penalty applied.¹⁶

1.8 In 1832 an Imperial statute was passed setting out more fully the qualifications of civil jurors and the grounds of disqualification and exemption. Every male between the ages of 21 and 60 resident in Cumberland county (an area somewhat larger than the present Sydney metropolitan area) having, within the colony, a clear income from real estate of at least 30 pounds per year or a clear personal estate of at least 300 pounds value was qualified and liable to serve on a civil jury.¹⁷ Men falling within this category who:

• were not natural-born subjects;
• had been convicted of treason, felony or any infamous crime; or
• were of bad fame, of dishonest life or conduct, or of immoral character or repute,

were disqualified.¹⁸ Certain men were exempted from serving: that is to say, they were not liable to serve “except by and with their own consent”. This class included judges, practising lawyers, members of the Legislative and Executive Council, priests and clergymen, medical practitioners, police, officers in the services, and school masters.¹⁹

1.9 The administration of the jury system established in 1832 was substantially continued until 1977. Each district’ s jury list was prepared annually, either by the Superintendent of Police or a Bench of Magistrates. The list was published and objections to any people included were heard and determined by specially convened Courts of Petty Sessions. Once finalised, the list was forwarded to the Sheriff for entry into the Jurors’ Book. When required, jurors were summoned from the list in alphabetical order.²⁰

1.10 Where a civil jury was granted the Court was required, if an application was made by a party, to order a special jury. Special juries were constituted by people of a higher station than was acceptable for common. juries. Thus a man described in the Jurors’ Book as an Esquire or being of a higher social status, a Justice of the Peace, a merchant or a bank director was qualified to serve on special, as well as on common, juries.²¹

B. The Introduction of Criminal Juries: 1832

1.11 The usual mode of criminal trial continued to be by a judge sitting with a jury of seven army and/or naval officers. However, from 1832 if a free settler charged with any crime, misdemeanour or other offence in the Supreme Court, showed that the Governor, a Member of the Executive Council or any officer of the services had a personal interest in the case, the Court would order the trial , to be held before a jury of twelve civilian residents . The jurors were to be selected from the special jurors’ list.²²

1.12 In 1833 criminal trial by civilian juries of twelve was made available on request to all people, free settlers and convicts alike, charged with crimes misdemeanours or offences in the Supreme Court.²³ Convicts were still tried summarily when charged in Courts of General and Quarter Sessions. These Courts were also opened to the trial of free settlers who, when charged there, were entitled to jury trial.²⁴ The jurors were to be drawn from the Jurors’ Book rather than from the special jurors list unless the Crown or the accused requested a special jury. In that event the Court was required to order a special jury.²⁵

1.13 In 1838 criminal trial by seven commissioned army or navy officers was finally abolished and all trials of free settlers (or freed convicts) in the Supreme Court and the Courts of General and Quarter Sessions were to be by civilian juries of twelve.²⁶ As the populations in certain areas increased sufficiently to make jury trial viable, this right was extended. Thus jury trial became available in Parramatta, Campbelltown, Windsor, Bathurst and Maitland in 1833,²⁷ and in Berrima in 1839.²⁸ By 1840 all major towns had Circuit Courts and juries for these courts were summoned from the local residents.²⁹

C. The Introduction of the Civil Jury of Four: 1844

1.14 In 1844 the use of assessors in civil cases was wholly discontinued. The usual mode of civil trial became the jury of four special jurors.³⁰ If a party applied for a jury of twelve the Court could grant it and could order such jury to be constituted by common or special jurors or both.³¹ For the first time provision was made for less than unanimous verdicts in civil trials. If, after at least six hours deliberation, a civil jury was not unanimous, the verdict of three-quarters of their number (3 of a jury of 4; or 9 of a jury of 12) would be accepted. If a majority verdict could not be agreed upon after twelve hours, the jury would be discharged.³²

D. Consolidation of the Legislation: 1847

1.15 In 1847 the juries legislation was consolidated. The qualifications and disqualifications for common jurors remained unaltered.³³ The list of those automatically exempt (their names would not be inserted in the lists) was expanded by including bank staff, public servants and those incapacitated by disease or infirmity from performing jury duty. The only people who had to claim the exemption in order to be exempted were those over sixty.³⁴ The special juror qualification was extended to include city council members.³⁵ The common jury of 12 was to be the usual mode of criminal trial, although the Court could order a special jury if the prosecutor or accused applied for one (except in cases of treason or felony).³⁶ The special jury of four was to continue to be the usual mode of civil trial, although the Court could order a jury of twelve on tine application of a party.³⁷ The right of both parties to challenge the array alleging impartiality on the part of the Sheriff was expressly preserved as was the right of the prosecutor to ask jurors to stand by for the Crown. Particular jurors could only be challenged by the Crown for cause but the accused in a case of treason or felony had twenty peremptory challenges.³⁸ In civil cases the challenge procedure was not used. Instead the list of prospective jurors - twice the number needed - would be sent to each party in advance of the trial and each would strike a quarter of the number. Those remaining formed the jury.³⁹

1.16 The law as to juries, their selection and administration, remained essentially the same from 1847 until 1947. In 1876 it was provided that jurors were no longer to be summoned in alphabetical order but by lot. The same Act enlarged the qualifications for special jurors.⁴⁰ The qualifications of common jurors were also extended to include men who had been naturalized or who, although aliens, had been resident in the Colony for at least seven years.⁴¹

E. Reduction in the Use of Juries

1.17 As the colony grew, the need to deal more expeditiously with minor offences become apparent. In 1833, Police Magistrates were appointed in Sydney to deal summarily with breaches of the peace and similar offences.⁴² An Act of 1883 provided for the summary trial of certain assaults, larcenies, frauds and malicious damage at the discretion of the magistrate.⁴³ Section 501 of the Crimes Act, 1900 now provides for the summary trial of certain indictable offences without the accused’s consent. In 1900, these offences were common and aggravated assaults, except where accompanied by an attempt to commit a felony; minor larcenies; receiving stolen property; and malicious damage.⁴⁴ Section 501 was amended in 1924 and a property value limit was imposed on indictable offences triable summarily without the accused’s consent. The limit at that time was ten pounds.⁴⁵ This amount was increased in 1955 to fifty pounds,⁴⁶ in 1974 to $500,⁴⁷in 1983 to $2,000 48 At the same time, the range of offences subject to section 501 was also increased.⁴⁹

1.18 Another way of reducing the use of juries was to offer people charged with certain more serious indictable offences the choice of summary or jury trial. The inducement to choose trial before a magistrate was, and continues to be, that the penalties available to a magistrate are less severe than in the higher courts , Not every accused person has this option. The most serious offences are still triable only by a jury. In 1900, the Crimes Act permitted a range of indictable offences to be dealt with summarily if the accused consented and the magistrate was of the view that the offence was suitable, so long as the subject matter of the charge was less than twenty pounds. The offences included simple larceny, conversion as a bailee, stealing, dog-stealing (second offence), damage with intent to steal, stealing or destroying plants, stealing from a boat, stealing as a servant, false pretences, and attempts to commit any of the above. Upon summary conviction the maximum penalty was six months imprisonment or a fine of 20 pounds, substantially less than the maximum penalties available upon conviction by a jury.⁵⁰ In 1924 the maximum value of the subject matter of an indictable offence triable summarily with the consent of the accused had been increased from 20 pounds to 100 pounds. The list of offences was also increased, but continued to be confined to property offences, with the exception of attempting suicide.⁵¹

1.19 Offences against the person were first made triable summarily with the consent of the accused in 1955 with the introduction of this procedure in cases of indecency between males.⁵² This recognised the fact that many offenders wished to plead guilty to this offence before a magistrate in order to avoid publicity.⁵³ In 1974 carnal knowledge, common assault and assault occasioning actual bodily harm were made triable summarily with the consent of the accused.⁵⁴ In 1983, the offences of malicious wounding, culpable driving occasioning grievous bodily harm and larceny of a motor vehicle of any value were added.⁵⁵ Over the years the maximum monetary value of property the subject of property offences triable summarily with the accused’s consent has been increased, most recently, in 1983, from $1,000 to $10,000.⁵⁶ This last increase represented a tenfold increase in less than a decade, yet it was introduced with virtually no publicity and no comment.

1.20 The civil jury has also declined significantly. Civil juries are generally only used to try claims of defamation, malicious prosecution, civil fraud, false imprisonment and seduction. In other civil actions the court may order a jury trial at the request of either party, but this is very rare.⁵⁷

F. Democratisation of the Jury

1.21 It is ironic that the reduction in the use of juries has gone hand in hand with their increasing democratisation. The “anachronistic”⁵⁸ properly qualification for jury service was finally abolished in 1947,⁵⁹ This “democratic advance”⁶⁰ was one of three made in that year. Women became qualified for jury service on their application and Special juries were abolished.⁶¹ The Attorney General of the day stated:

It is desirable that as many as possible should participate in that service and become aware of the way in which the law operates, and how trials are conducted.⁶²

It was not until 1968 that women were automatically included on the jury rolls of those few districts where facilities permitted. But a woman could still cancel her liability to serve by simple notice to the officer responsible for the rolls.⁶³ The process of democratisation was continued by the Jury Act, 1977 which is discussed below (paragraphs 1.24-1.27). In Chapters 3 and 4 of this Working Paper we consider ways in which the representative nature of juries can be further improved. It should be mentioned here that, although juries are now used in a much more limited range of cases than ever before, significant numbers of people still come into the jury system each year. In March 1985, for example, some 184,741 people were on jury rolls in New South Wales. From 1 June 1983 to 31 May 1984, 135,464 were summoned to attend courts to be available for jury service and about 50,670 actually served on juries.

G. The Impact of the Supreme Court’s Summary Jurisdiction

1.22 In 1967, a summary jurisdiction was conferred upon the Supreme Court. A single Supreme Court judge was empowered to try any offences expressed in legislation to be triable summarily by the Supreme Court.⁶⁴ Until this time only Magistrates (and Justices of the Peace) had summary jurisdiction. However, it was felt that certain offences involving severe penalties should be tried by Supreme Court judges.⁶⁵ Among other things, such a mode of trial means that reasons for judgment are given. Certain offences under the Prices Regulation Act. 1948 and the Clean Air Act, 1961, among others, can be proceeded with in the summary jurisdiction of the Supreme Court.

1.23 In 1979, an amendment to the Crimes Act, 1900 was passed which gave the Supreme Court summary jurisdiction to try certain “white collar” crimes including:

• offences under the Companies Act, 1961, including attempting to commit such offences and conspiracy to do so;
• offences under the Securities Industry Acts, 1970 and 1975;
• conspiracy to cheat and defraud;
• company fraud offences under the Crimes Act, 1900⁶⁶

Although the right to a jury was not abolished for these trials, it was anticipated that many accused would in fact elect non-jury trial.⁶⁷ A number of advantages were claimed for the summary procedure.

...first, it allows for a more speedy determination of the issues; second, it does away with the need for committal proceedings which are often lengthy and costly not only to the community but, significantly, also to many accused persons; third, it: allows fir the more efficient and more practical resolution of difficult points of law which might arise in the course of proceedings; fourth, it is most likely to reduce the length of the time that the actual trial will take; fifth, it is probably fairer to the accused in that it will avoid the danger that some accused persons face of being ruined not only in the eyes of the community in respect of their reputation, but also financially - by the time the committal proceeding before the magistrate is completed; and finally, it will avoid the possibility that an accused person may be unfairly disadvantaged at his ultimate trial, as sometimes occurs from unfavourable coverage of committal proceedings by the media.⁶⁸

The change was further designed to ensure that justice would be done “both to an accused person and to the community in cases involving complex questions of corporation and securities law, which so often are beyond the grasp of the ordinary lay juror”.⁶⁹ Summary trial in the Supreme Court under, the Crimes Act, 1900 is dependent on an application by the Attorney General, and, upon the completion of pre-trial procedures, on an election for summary trial by the accused.⁷⁰ A very small number of accused have elected this form of summary trial and to date only one such trial has actually gone ahead.⁷¹

H. The Current Jury Act: 1977

1.24 In 1977 it was realized that the New South Wales juries legislation was not fulfilling the philosophy of the jury system as a means of providing impartial trial by one’s peers. The Act of 1912 was finally repealed and a new Act passed. The “primary aim” of the Jury Act, 1977 is:

...that jury service, so far, as is practicable, will be shared equally by all adult members of the community.⁷²

In furtherance of this aim, women became qualified and liable to serve in the same way as men. The only exception is that pregnant women can claim an exemption as of right.⁷³ Further, the number of people previously entitled to claim an exemption was reduced. In particular, State public servants and bank officers are no longer entitled to an exemption.⁷⁴ The reference to the exclusion of people of “bad fame or of immoral character and repute” was dropped.

1.25 An improved method of compiling jury rolls ensures that the same core of people do not form the greater proportion of each roll. This occurred in the past as a function of the old method of compiling the rolls:

...according to the existing Act: the police are required to compile this list each year. In theory a new list of persons would be compiled each year. In this way the burden ... is supposedly spread evenly throughout the community. Unfortunately, this does not happen in practice. It cannot because of the sheer size of the task involved, unless a substantial number of police...are allocated for the sole job of interviewing persons for inclusion on jury rolls. What has happened over the years is that when the Sheriff requires the officer in charge of police at, say, Penrith, to collect 7,000 names for the following year’s jury roll he copies down the names on the previous year’s roll. There may be on it in the order of 6,000 names so he then interviews an additional 1,000 persons in order to get the required number ... Over the years the rolls have included the same nucleus of potential jurors and this fact has given rise to the contention that the only way to get off a jury roll is to die .... Accused people are not being tried by at truly representative section of the community; it is largely the same section over and over again.⁷⁵

The police no longer have any role in the preparation of the jury rolls The Sheriff compiles the jury rolls directly from the appropriate electoral rolls at random, generally using a computer.⁷⁶ The participation of the police was clearly in conflict with their involvement in criminal trials for the prosecution.⁷⁷

1.26 Other administrative improvements include:

• each roll lasts for three years instead of just one;⁷⁸
• jury pools can be used so that a number of courts in the one complex are able to draw from the one pool rather than summon a separate jury panel for each trial;⁷⁹
• a draft roll is drawn up, all people included are advised of their inclusion and required to inform the Sheriff if they are disqualified or ineligible or wish to claim (on exemption as of right. When the final roll is prepared the only further attrition should be by the discretionary grant of excusal on a particular occasion;⁸⁰
• this new power of the Sheriff to excuse people on a particular occasion means that at prospective juror need not wait until included on a panel to seek excusal from the presiding judge.⁸¹ Administrative efficiency can be enhanced.

1.27 Some of the above administrative measures will also improve the conditions of jury service for jurors themselves. The opportunity to seek excusal from the Sheriff means less inconvenience to the individual. In the past,

a person who sought to be excused from jury service had to attend tbefore a judge and inform him of his reasons, and in the majority of cases the fact that his application would be granted was a foregone conclusion. In effect, we were telling these unfortunate people, ‘You must come along and tell the judge that you can’t come along’.⁸²

Now the Sheriff can grant an excusal claimed before the day on which the juror is required to appear for service.⁸³ Another improvement permits Et person whose (claim for exemption as of right has been denied by the Sheriff to appeal to a Local Court (formerly a Court of Petty Sessions). Until the appeal is determined the person will not be summoned for jury service.⁸⁴ Again, a person who has just completed a three-year period of liability to be summoned for jury service (such a person may indeed have been summoned two or three times) will not usually be included on the next succeeding jury roll: such a person may claim an exemption as of right.⁸⁵

IV. CONCLUSION

1.28 Judging from the lack of Parliamentary and media interest in, and, hence, of public knowledge about, the progressive legislative limitations on the range of trials required to be conducted before a jury, it would appear that there is little concern that the jury is in danger of disappearing and that there is little awareness of this danger. For this reason alone the public discussion which, we hope, will be encouraged by this Discussion Paper, is important. Moreover, the time for reform would appear to be ripe if the lack of public concern about the jury is a result of dissatisfaction with or distrust of jury verdicts, disillusionment with the administration of the jury system or a general feeling of alienation from the administration of justice as a whole. In the next (Chapter we consider the arguments advanced both for and against the jury and conclude that it is still ;t vital institution in the criminal justice system. The remainder of the Discussion Paper is devoted to a consideration of ways in which the jury system can be made more effective and accessible, as well as acceptable to for judges , legal practitioners, accused people and the community at large.

1. J.H. Baker, An Introduction to English Legal History (Butterworths, London, 2nd ed., 1979), at p.64.

2. Id., at pp64-65.

3. Id at p.415.

4. A. Dickey, ‘’The Jury and Trial by One’s Peers’’ (1973-1974) 11 University of Western Australia Law Review 205, at p.207.

5. H. Foster, “Trial by Jury: The Thirteenth-Century Crisis in Criminal Procedure” (1979) 13 University of British Columbia Law Review 280, at p.291.

6. Ibid.

7. J.H. Baker, note 1 above, at pp.65-66. 8. Bushell’s Case (1670) 6 State Trials 999.

9. P. Devlin, Trial by Jury (Stevens and Sons Ltd., 1956), at p.20.

10. See for example “Examination , of A.W.H. Humphrey”, Historical Records of Australia, 13 March 1820 and “Examination of T.Archer’’, Historical Records of Australia, 27 April 1820.

11, J.M. Bennett, “The Establishment of Jury Trial in New South Wales” (1959-1961) 3 Sydney Law Review 463.

12. 4 George IV, c.96, s.VI.

13. The grand jury was virtually abolished in the United Kingdom in 1933: Administration of Justice (Miscellaneous Provisions) Act 1933 (U.K.), s 1.

14. 4 George IV, c.96, s.VII.

15. Id, S. IV.

16. 9 George IV, c,83, s.17.

17. 2 William IV., No. 3, s.II.

18. Id., ss.IV, V.

19. Id., s.III.

20. Id., ss.VI-VIII,,XII, XIV.

21. Id., ss.XXIII, XXIV.

22. Id., ss.XV, XVI.

23. 4 Wil. IV, No. 12, s.2.

24. Id., s.12.

25. Id., ss.8,9.

26. 3 Vic., No. 11.

27. 4 Wil. IV, No.12, s.13.

28. 3 Vic., No. 17.

29. 4 Vic., Nos. 22 and 28.

30. 8 Vic., No. 4, s.1.

31. Id., s.2.

32. Id., s.4.

33. 11 Vic., No. 20, ss.1, 3.

34. Id., s.2.

35. Id., s.10.

36. Id., ss.17, 18.

37. Id., ss.20, 21.

38. Id., s.24.

39. Id., s.26.

40. 40 Vic., No.6., ss.2, 3.

41. Id.,. s.10. This followed the English extension of liability to aliens who had been resident in the United Kingdom for ten years: Juries Act 1870 (U.K.), s.8.

42. 4 Wil. IV., No.7.

43. 46 Vic., No.17, ss.63-69,150-176,222-229,289-290.

44. Crimes Act, 1900, ss.493-497,501-526,529,532-542.

45. Crimes (Amendment) Act, 1924, s.24.

46. Crimes (Amendment) Act, 1955, s.4(1)(i).

47. Crimes (Amendment) Act, 1974, s.11(o).

48. Crimes (Amendment) Act, 1983, schedule 1, clause (3).

49. Crimes Act, 1900, ss.179, 247.

50. Crimes Act, 1900, ss.476-478.

51. Crimes (Amendment) Act, 1924, s.23(a).

52. Crimes (Amendment) Act, 1955, ss.3(a), (d), 4(f).

53. NSW. Parliamentary Debates, Legislative Assembly, 23 March 1955, p.3229 per the Hon. W.F. Sheahan, Q.C., M.L.A., Attorney General.

54. Crimes and Other Acts (Amendment) Act, 1974, s.11, inserting new s.476.

55. Crimes (Amendment) Act, 1983, schedule 1, clause (2)(d).

56. Id., clause (2)(b), (f). The previous change was in 1974, see note 54.

57. Supreme Court Act, 1970, ss .87,88. And see Law Reform (Miscellaneous Provisions) Act, 1965 and Administration of Justice Act, 1968.

58. N.S.W. Parliamentary Debates, Legislative Assembly, 15 November 1947, p.1121 per the Hon. C.E. Martin, M.L.A., Attorney General,

59. Jury (Amendment) Act, 1947, ss.2(3)(a), 3(3)(a), The property qualification was not abolished in the United Kingdom until 1972: Criminal Justice Act 1972 (U.K.), s.25(1).

60. NSW Parliamentary Debates, Legislative Assembly, 15 November 1947, p.1121 per the Hon. C.E. Martin, M.L.A., Attorney General.

61. Jury (Amendment) Act, 1947, ss.2,3,4. Women satisfying the property qualification became liable in England to jury service in 1919: Sex Disqualification (Removal) Act (U.K.), s.4(2) and Schedule. Special juries were abolished in England two years later, although the special commercial juries in the City of London were retained until 1971: Juries Act 1949 (U.K.), s.18. Special juries are still used in Tasmania: Jury Act 1899 (Tas.), ss.10, 38, 40.

62. NSW Parliamentary Debates, Legislative Assembly, 15 November 1947, p.1121 per the Hon. C.E. Martin, M.L.A., Attorney General.

63. Administration of Justice Act, 1968, s,10.

64. Supreme Court (Summary Jurisdiction) Act, 1967, s.3.

65. NSW Legislative Assembly, 7 November 1967, p.2878 per the Hon. K.M. McCaw, M.L.A., Attorney General.

66. Crimes Act, 1900-1979, s.475A and Tenth Schedule.

67. NSW Parliamentary Debates, Legislative Assembly, 23 April 1979, p.4916 per the Hon. F.J. Walker, Q.C., M,P., Attorney General.

68. NSW Parliamentary Debates, Legislative Assembly, 28 March 1979, p.3321 per the Hon. F.J. Walker, Q.C., M.P., Attorney General.

69. Id., at p.3323.

70. Crimes Act, 1900-1979, ss.475A(1), 475B(1); Supreme Court (Summary Jurisdiction) Act, 1967, s.4(1).

71. Attorney General of New South Wales v. Chambers, Supreme Court of New South Wales, Criminal Division (Roden J.), 24 June 1983 (unreported).

72. NSW Parliamentary Debates, Legislative Assembly, 22 February 1977, p.4254 per the Hon. F.J. Walker, Q.C., M.L.A., Attorney General.

73. Jury Act, 1977, s.5 and schedule 3, clause 5.

74. Public servants employed in the State Attorney-General’s Department, the Department of Corrective Services, the Police Department, the Legal Services Commission, the Corporate Affairs Commission, the Board of Fire Commissioners, the State Emergency Services and the Health Commission (in connection with ambulance services), however, are ineligible to perform jury service . In addition, all departmental permanent heads and all members of the State Public Service Board are ineligible: schedule 2.

75. N.S.W. Parliamentary Debates, Legislative Assembly, 24 February 1977, p.4475 per the Hon. F.J. Walker, Q.C., M.L.A., Attorney General.

76. Jury Act, 1977, ss.9, 12.

77. NSW Parliamentary Debates, Legislative Assembly, 22 February 1977, p.4255 per the Hon. F.J. Walker, Q.C,, M.L.A., Attorney General.

78. Jury Act, 1977, s.10. In Most other Australian jurisdictions the jury rolls are renewed annually: Juries Act 1927 (S.A.), s.20; Juries Act 1957 (W.A.), s.14; Juries Act 1962 (N.T.), s.21. See also Juries Act 1967 (Vic,), s.8. In the Australian Capital Territory a jury list might be in use for up to four years: juries Ordinance 1967 (A.C.T.), s.19.

79. Jury Act, 1977, s.29.

80. Id., ss.13, 14.

81. Id., s.38.

82. NSW Parliamentary Debates, Legislative Assembly, 24 February 1977, p.4483 per the Hon. F.J. Walker, Q. C., M.L.A., Attorney General.

83. Jury Act, 1977, s.38(1)(a). A similar provision had operated in the United Kingdom since 1922: Juries Act 1922 (U.K.), s.3.

84. Jury Act, 1977, s.15.

85. Id., schedule 3, clause 8