Chapter 2: The Jury in the Criminal Justice System
Recommendation 1: A person who is charged with a serious criminal offence should continue to have the right to trial before a judge and a jury of 12 people randomly selected from the community. (Para 2.1)
Recommendation 2: The Crimes Act 1900 should be amended to provide that where there is a discretion to prosecute a charge either summarily or on indictment, and where the prosecutor elects to proceed summarily and the accused person does not consent to this, the magistrate should order that the charge be tried before a judge and jury if he or she considers it to be a 'serious" case. The determination of seriousness should be made by reference to a specified set of criteria. (Para 2.15)
Chapter 4: Ensuring a Representative Jury
Recommendation 3: Section 9(2) of the Jury Act 1977 should be amended to provide that every electoral subdivision shall be assigned to a particular jury district. (Para 4.10)
Recommendation 4: The Sheriff should increase the size of jury rolls so as to make it likely that a person on the roll will only be summoned once for jury service during the currency of the roll. (Para 4.14)
Recommendation 5: Schedule I to the Jury Act 1977 should be repealed and recast so as to disqualify:
1. a person who at any time within the last ten years in New South Wales or elsewhere has served any part of a sentence of imprisonment or penal servitude;
2. a person who at any time within the last five years in New South Wales or elsewhere has been detained in an institution for juvenile offenders having been found guilty of an offence; and
3. a person who is currently bound by an order of a court made in New South Wales or elsewhere pursuant to a criminal charge or conviction. (Para 4.17)
Recommendation 6: Commonwealth public servants should be available to perform jury duty in New South Wales unless they are otherwise ineligible. (Para 4.23)
Recommendation 7: The spouse of a person who is. by Schedule 2 to the Jury Act 1977, ineligible for jury service by virtue of that person's association with the administration of justice or the enforcement of the law, should continue to be ineligible. (Para 4.24)
Recommendation 8: Where the spouse of a person of a nominated occupation is made ineligible for jury service by Schedule 2 to the Jury Act 1977, a de facto partner of a person of that nominated occupation should also be ineligible. (Para 4.24)
Recommendation 9: Any person who has at any time held the position of judge, magistrate, Crown prosecutor, public defender or police officer should be ineligible for jury service: Schedule 2 to the Jury Act 1977 should be amended accordingly. (Para 4.27)
Recommendation 10: Any person who has actually served on a jury within the previous three years should be ineligible for jury service: Schedule 2 to the Jury Act 1977 should be amended accordingly. (Para 4.29)
Recommendation 11: The ability to read English should continue to be a qualification for jury service. It would be good practice for the judge to direct the jury panel that any person who cannot understand and read English is ineligible and should advise the court. (Para 4.30)
Recommendation 12: The age at which a person is entitled to claim exemption as of right from jury service on the ground of advanced age should be raised from 65 to 70 years: Schedule 3 to the Jury Act 1977 should be amended accordingly. (Para 4.35)
Recommendation 13: People who have a conscientious objection to serving on a jury in a criminal trial should be entitled to claim exemption as of right from jury service: Schedule 3 to the Jury Act 1977 should be amended accordingly. (Para 4.36)
Recommendation 14: The practice of "Jury vetting" as used in the United Kingdom, whereby the prosecuting authorities make special inquiries regarding the background of the prospective jurors, should not be introduced in New South Wales. (Para 4.43)
Recommendation 15: It would be good practice for personal applications to a judge to be excused from jury service to be made where practicable in the presence and hearing of the accused person and counsel for the prosecution. Where an unsuccessful personal application is made in their absence, they should be advised of that fact. (Para 4.46)
Recommendation 16: The Jury Act 1977 should be amended to confirm that the right to challenge a particular juror for cause may be exercised before or after all rights of peremptory challenge have been exhausted. (Para 4.52)
Recommendation 17: The United States procedure of conducting an examination of prospective jurors as a prelude to the exercise of the right of challenge should not be introduced in New South Wales. (Para 4.54)
Recommendation 18: Section 42 of the Jury Act 1977 should be amended to provide that the maximum number of peremptory challenges available to an accused person should be reduced to three irrespective of the offence being tried. This recommendation should be read in conjunction with recommendations 20, 21, 22, 25, 59 and 60. (Para 4.69)
Recommendation 19: The maximum number of peremptory challenges available to the Crown should be reduced to three for each accused person irrespective of the offence being tried. (Para 4.59)
Recommendation 20: The Attorney General should, in consultation with the Crown Prosecutors, establish guidelines to govern the Crown's exercise of the right of peremptory challenge. These guidelines should be published. (Para 4.73)
Recommendation 21: The Jury Act 1977 should confirm the power of the judge to discharge a jury where the process of exercising peremptory challenges has created the potential for or the appearance of unfairness. The fact that an unobjectionable selection process has nevertheless left the jury lacking a member of a particular group within the community should not of itself be a ground for exercising the power. (Para 4.76)
Recommendation 22: The Jury Act 1977 should be amended to provide that where each of the parties in a criminal trial believes that a prospective juror should for any reason not be empanelled, the juror may be challenged by consent. Such a challenge would not affect the rights of peremptory challenge of any party. (Para 4.77)
Chapter 5: Protecting the Jury
Recommendation 23: Section 40(1) of the Jury Act 1977 should be amended to provide that It is an offence for any person to inspect a list of the members of the jury or jury panel relating to a particular criminal trial at any time without the permission of the court. (Para 5.8)
Recommendation 24: When a person is called to the jury box after being balloted in the jury selection process, he or she should be referred to by his or her title and family name only, unless two or more people with the same family name answer to the call. We suggest that consideration might be given to issuing a Practice Direction to this effect. (Para 5.9)
Recommendation 25: The current law and practice in criminal cases whereby the occupation and address of jurors and prospective jurors Is not disclosed should be continued except where this information is revealed as part of the procedure proposed in Recommendation 60 for allowing certain categories of prospective jurors to be challenged. (Para 5.11)
Recommendation 26: It would be good practice if the names of jurors were announced in open court only during the process of empanelling the jury and at no later stage during the trial except in the event of a challenge to the identity of a juror. (Para 5. 12)
Recommendation 27: The Jury Act 1977 should make it an offence to disclose, without lawful excuse, during the course of the trial, any information which identifies someone as a juror in a particular trial. (Para 5.13)
Recommendation 28: Section 68 of the Jury Act 1977 should be amended to provide that it is an offence to publish material which identifies a person as a former juror in a particular trial unless the person consents to his or her identification. (Para 5.13)
Recommendation 29: Where it is considered necessary to take special precautions to maintain the security of the court or the personal security of the jurors, the measures intended to be taken should, where possible, be revealed to the court and to the accused person but not to the jury. (Para 5.17)
Chapter 6: Making the Jury's Task Easier
Recommendation 30: The Notification of Inclusion on a Draft Jury Roll should be improved by adding:
(a) a brief explanation of the nature of jury service and the role of the jury in the legal process-,
(b) an explanation that a penalty may be imposed if the recipient fails to advise the Sheriff that he or she is disqualified from or ineligible for jury service; and
(c) an explanation that the Sheriff has a discretion to excuse people from jury service on particular occasions for good cause. (Para 6.4)
Recommendation 31: A notice in the major community languages should accompany the Notification of Inclusion on a Draft Jury Roll. This notice should explain what the Notification is and advise that people who are unable to read or understand English are ineligible for jury service and must inform the Sheriff of that fact. (Para 6.5)
Recommendation 32: To enable people to respond accurately to the Notification of Inclusion on a Draft Jury Roll, the language and setting out of the schedules listing classes of disqualification, ineligibility and exemption as of right should be made clear and unambiguous. (Para 6.6)
Recommendation 33: The Jury Summons should be amended to:
(a) advise recipients that applications to be excused may be made to the Sheriff and encourage applicants to approach the Sheriff at their earliest convenience;
(b) include a map showing the location of the court and the attendance point for prospective jurors;
(c) advise prospective jurors to contact the relevant telephone information service on the night before attendance is required to check attendance details; and
(d) give adequate notice (21 days) of the date of attendance, unless a shorter period has been directed by a judge.
(Para 6.8)
Recommendation 34: When a jury panel is summoned for a particular trial which is expected to take 4 weeks or longer, the Jury Summons should include a notice to this effect and should invite recipients to apply to the Sheriff to be excused if jury service for that length of time would cause hardship. (Para 6.12)
Recommendation 35: An explanatory booklet should be prepared and distributed to every person summoned for jury service. This booklet should describe the nature of a juror's rights and responsibilities, the jury's role, the conduct of trials and explain common concepts which are likely to be referred to in the trial. (Para 6.13)
Recommendation 36: It would be good practice for the judge to indicate the estimated length of the trial to the jury panel. If the trial is expected to be lengthy, the judge should invite applications to be excused on the ground that jury service for that length of time would be likely to cause hardship. (Para 6.16)
Recommendation 37: It would be good practice for the judge to address the jury at the beginning of every criminal trial on:
(a) the general course of the trial
(b) the role of the jury; and
(c) such principles of law as the judge considers will assist the jury in their understanding of the case. (Para 6.17)
Recommendation 38: The Jury Act 1977 should be amended to confirm the right of jurors to take notes and to require that:
(a) jurors be provided with the means to take notes;
(b) the Judge advise the jury of their right to take notes;
(c) jurors not remove any notes from the courthouse; and
(d) after the trial, notes made by jurors should be destroyed by order of the court. (Para 6.20)
Recommendation 39: It would be good practice for the judge to advise the jury, in his or her opening remarks, of their rights:
(a) to direct queries to him or her concerning the case;
(b) to request that questions be asked of witnesses; and
(c) to ask for a view. (Para 6.22)
Recommendation 40: It would be good practice for the judge to advise the jury. at the end of the summing-up, of their rights:
Recommendation 41: The person chosen by the jury to communicate with the court and announce the verdict should no longer be referred to as the foreman but should in future be referred to an the jury's representative. The term foreman is likely to mislead jurors about their respective roles in the jury room. (Para 6.23)
Recommendation 42: The juror's oath or affirmation should be simplified and should state clearly the juror's obligation to give a verdict according to the evidence presented in court. (Para 6.25)
Recommendation 43: The Crimes Act 1900 should be amended to permit the accused person or defence counsel, immediately after the Crown's opening address, to announce any matters of fact which are not in issue and outline briefly the issues in the defence case. (Para 6.26)
Recommendation 44: The Crimes Act 1900 should be amended to provide that counsel may introduce a witness to the jury by briefly stating the issues to which the witness' evidence relates. (Para 6.27)
Recommendation 45: Statute should provide that, if the judge considers it would assist the jury and would not cause unfairness, the evidence of an expert witness may be given by:
(a) the witness reading a document;
(b) a party tendering a document, provided that the witness is available to give oral evidence if required; or
(c) the witness presenting the evidence in any other manner or form approved by the judge which is not already permitted by the laws of evidence. (Para 6.28)
Recommendation 46: All courtrooms in which jury trials are heard should be supplied with equipment which can be used by counsel, witnesses or the judge to present the case to the jury in a more effective way. (Para 6.29)
Recommendation 47: Archaic terms and concepts should be eliminated from all communications to the jury. The jury should not be provided with a glossary of legal terms because this would encourage the use of legal jargon injury trials. (Para 6.31)
Recommendation 48: It would be good practice for the jury to be provided with multiple copies of photographs and documents as they are admitted into evidence where the judge considers this would assist the jury. (Para 6.32)
Recommendation 49: The Jury Act 1977 should confirm the discretionary power of the judge to provide a copy of all or part of the transcript of evidence to the jury in the jury room. (Para 6.33)
Recommendation 50: The Jury Act 1977 should confirm the discretionary power of the Judge to give the jury any direction of law in writing. (Para 6.36)
Recommendation 51: It would be good practice for the judge in suitable cases to provide the jury with a statement setting out the available verdicts and the circumstances in which each is appropriate. (Para 6.37)
Recommendation 52: The Jury Act 1977 should be amended to provide that the judge may order that an exhibit should not be available to the jury in the jury room where the safety of the jurors or the integrity of the exhibit could be at risk. (Para 6.38)
Recommendation 53: Section 55 of the Jury Act 1977 should be amended to provide that jurors have a right to be provided with reasonable amenities and refreshment during adjournments of a trial. (Para 6.39)
Recommendation 54: The Regulations to the Jury Act 1977 providing for the amount of jury fees should be amended to provide that the fee should be:
(a) $23 for a person attending but required for less than four hours on one day only;
(b) $46 per day for each of the first five days of jury service; and
(c) the equivalent of one-fifth of New South Wales male average weekly earnings for the sixth and each subsequent day of service subject to a deduction in respect of any wage or salary income the juror is entitled to receive. (Para 6.40)
Recommendation 55: The Jury Act 1977 should be amended to provide that jurors injured at court or on their journey to or from court should be compensated on the same basis as applies to injured employees pursuant to the Workers Compensation Act 1926. (Para 6.45)
Chapter 7: Reducing Bias and Prejudice
Recommendation 56: The Crimes Act 1900 should be amended to provide that, in all criminal cases which are to be tried on indictment, the accused person should have the right to make an application that the trial be conducted by a judge sitting without a jury. Applications of this kind should be determined in the following manner.
(a) The application should not be entertained unless the judge hearing it is satisfied that the accused person has either obtained legal advice on the matter or understands the nature and consequences of the application.
(b) The onus should be on the accused person to show that there are legitimate grounds for dispensing with the jury.
(c) The decision as to whether the trial should be conducted without a jury should be made by a judge at a pre-trial hearing.
(d) The Crown should be represented at such a hearing and entitled to be heard on the merits of the application.
(e) The accused person should have the right, with the leave of the court, to withdraw the election to be tried by judge alone. (Para 7.3)
Recommendation 57: Legislation should expressly prohibit the publication before trial of material which simultaneously identifies a person as being charged with an offence and as having a prior criminal history if the hearing of the offence charged is likely to be before a jury. (Para 7.17)
Recommendation 58: Legislation should expressly prohibit the publication of the criminal history of a person known to be suspected of an offence which is likely, if a charge is laid, to be dealt with by a jury, unless the publication of the information is to assist in the investigation of the suspected offence or is made in the interests of public safety. (Para 7.19)
Recommendation 59: The Jury Act 1977 should be amended to provide that, before empanelling a jury, the Crown prosecutor shall be required, if requested by the judge, to inform the jury panel of the nature of the charge, the identity of the accused person and the principal witnesses who are to be called for the prosecution. After this information has been given, the judge should request members of the jury panel who feel that they would be unable to give impartial consideration to the case to apply to be excused. (Para 7.23)
Recommendation 60: The Jury Act 1977 should be amended to provide that where the judge is, on application by a party, satisfied that the nature of the issues to be tried is such that people of a nominated occupation, or who live in a nominated area, may be unsuitable as jurors, the judge should ask the jury panel whether any of their number is a member of that group. Any potential juror who answers this question in the affirmative should be liable to challenge for cause without further proof being required of the grounds for the challenge. (Para 7.29)
Recommendation 61: The Jury Act 1977 should be amended to confirm that, where it is alleged that prejudicial material has been published during a trial which may have influenced jurors, the judge has a discretion to question the individual jurors to determine in the first place whether they have seen, read or heard the offending material and in the second place whether it has had any effect upon them. Where the judge is satisfied that there is no actual prejudicial influence, the trial should be allowed to continue. (Para 7.31)
Recommendation 62: The Jury Act 1977 should be amended to provide that where a judge is satisfied that the impact of prejudicial information disclosed during a trial is such that the accused person may not have a fair trial, the judge has the power to allow, where the parties consent, the trial to continue after the disclosure of such information on the basis that if the jury returns a verdict of guilty, the trial should be regarded as a nullity, the verdict set aside and a retrial ordered. Unless the court orders otherwise, any reporting of the order declaring that this procedure shall apply should be prohibited. (Para 7.32)
Recommendation 63: The court officers who are to have jurors in their charge whilst they are absent from the court room should, on commencing their employment, be administered an oath of office undertaking not to discuss with jurors any factual or legal issues relevant to the case which they are trying. (Para 7.33).
Recommendation 64: It would be good practice for the jury to be instructed by the judge at. the commencement of the trial that they are not to discuss any factual or legal issues relevant to the case with the court officers. (Para 7.33)
Recommendation 65: Section 54 of the Jury Act 1977 should be amended to provide that the judge should have the discretion to permit the jury to separate after they have retired to consider their verdict. (Para 7.37)
Recommendation 66: Section 54 of the Jury Act 1977 should be amended to provide that members of the jury should, at the discretion of the judge, be entitled to make personal telephone calls during any period for which they are locked up. (Para 7.41)
Recommendation 67: The Jury Act 1977 should be amended to provide that the jury should be discharged forthwith upon delivering its verdict. It would be good practice for the members of the jury to be informed of the subsequent course of proceedings and advised of their right as individual citizens to remain in court if they wish to do so. (Para 7.42)
Chapter 8: Promoting Satisfactory Verdicts
Recommendation 68: It would be good practice, where there are several counts or several accused people charged in an indictment. if the judge were to consider exercising the discretionary power to require the jury to consider verdicts separately on individual accused people or individual charges or both. The Crimes Act 1900 should be amended to permit separate addresses by counsel where this procedure is followed. (Para 8.3)
Recommendation 69: Section 66 of the Jury Act 1977 should be amended to provide that a jury which is not likely to agree on its verdict may be discharged at any time at the discretion of the judge. (Para 8.4)
Recommendation 70: The maximum time during which a jury may be required to consider its verdict should continue to be at the discretion of the judge. (Para 8.6)
Recommendation 71: The Jury Act 1977 should be amended to provide that the verdict of the jury be verified by each member of the jury signing a document which records the verdict. This document should become part of the official record of the trial. (Para 5.7)
Recommendation 72: The Jury Act 1977 should be amended to provide that the practice of polling the jury to determine the verdict of each Individual juror should not be used unless the trial judge considers it necessary. (Para 8.7)
Recommendation 73: The right of a jury to add a recommendation for mercy to a verdict of guilty should continue to be available. It should continue to be the practice that the jury should not be informed of this right, either by the judge or counsel, unless the jury asks whether it may qualify its verdict in this way. (Para 8.13)
Recommendation 74: Legislation should provide that the judge has the power to acquit the accused person and discharge the jury in those cases where the judge would be entitled to direct the jury to find the accused person not guilty. (Para 8.21)
Recommendation 75: Legislation should provide that the judge should not direct the jury that they must find the accused person guilty. (Para 5.22)
Recommendation 76: Where the facts of the case or the charge being tried make It likely that evidence of a complex, scientific or technical nature might be called, the right to trial by jury should not be affected. (Para 5.24)
Recommendation 77: The qualifications of jurors for jury service should not vary according to the subject matter of the trial. In particular, there should be no requirement that a person should have obtained a certain educational standard to qualify as a juror in the trial of a complex case. (Para 5.34)
Chapter 9: Requiring the Verdict to be Unanimous
Recommendation 78: The verdict of a jury in a criminal trial should continue to be the unanimous decision of the individual members of the jury. (Para 9.1)
Recommendation 79: The Jury Act 1977 should be amended to provide that the judge is required to direct the jury that their verdict must be unanimous. (Para 9.51)
Chapter 10: Saving Time and Money
Recommendation 80: A system of pre-trial hearings should be implemented for the purpose of resolving matters of law before trial and planning the efficient presentation of the case to the jury. (Para 10.6)
Recommendation 81: The Jury Act 1977 should be amended to give the judge the power to empanel up to three additional jurors where the trial is estimated to take in excess of three months. The judge should have regard to the likely wastage of jurors over the expected length of the trial and empanel as many additional jurors as is thought necessary to ensure that there will be 12 jurors ultimately called upon to consider the verdict. (Para 10.16)
Recommendation 82: If the requirement that the verdict be unanimous is retained, as the majority of the Commission recommends, then whenever there remain more than 12 Jurors following the judge's summing-up, the extra jurors should be balloted out. (Para 10. 20)
Recommendation 83: If the jury's verdict may be less than unanimous, then, whenever there remain more than 12 jurors following the judge's summing-up, they should all participate in the deliberations and the verdict of all but one should be capable of being taken as the verdict of the jury. (Para 10.20)
Recommendation 84: Where a judge has indicated that additional jurors are to be appointed, the number of peremptory challenges available to the Crown and each accused person should be increased by one irrespective of the number of additional jurors to be appointed. (Para 10.22)
Recommendation 85: The consent of all parties should continue to be required before the judge Is entitled to allow a trial to continue with fewer than 10 jurors. It should be provided by legislation however, that, in a trial which has lasted more than six months, the judge has a discretion to allow the trial to continue with a minimum of eight jurors irrespective of the consent of the parties. (Para 10.23)
Recommendation 86: Where the panel from which the jury is to be selected is exhausted before the required number of jurors is chosen, the judge should have the power to retain those jurors who have already been empanelled as the core of the jury and order that a fresh panel be called, after a suitable adjournment, so that the balance of the jury can be selected. (Para 10.30)
Recommendation 87: An accused person should be entitled to apply for trial by a judge sitting without a jury where the court is satisfied that the only issue in the case is a matter of law. The conditions outlined in Recommendation 56 should apply. (Para 10.35)
Recommendation 88: An accused person should be entitled to apply for trial by a judge sitting without a jury on the ground that, having regard to the Interests of the accused person and of the community, it would not be in the interest of justice to conduct the trial with a jury. The conditions outlined in Recommendation 56 should apply. (Para 10.38)
Recommendation 89: The District Court of New South Wales should be invested with the jurisdiction to try indictable cases summarily in order to allow trial by judge alone in that Court where an accused person's application for that mode of trial is successful. (Para 10.42)
Recommendation 90: The right of the Crown to maintain a prosecution after the jury has failed to reach agreement at two previous trials should continue to be a matter within the discretion of the Crown. (Para 10.43)
Chapter 11: Disclosing the Deliberations of the Jury
Recommendation 91: The Jury Act 1977 should be amended to provide that it is an offence to solicit or harass a juror or former juror for the purpose of obtaining for publication information regarding statements made, opinions expressed, arguments advanced or votes cast in the course of the deliberations of a jury. (Para 11.24)
Recommendation 92: Any amendments to the Jury Act 1977 which have the effect of placing any restriction upon former jurors disclosing information should expressly reserve to the Attorney General the power to authorise the conduct of research projects involving the questioning of former jurors about their jury room experiences. (Para 11.25)
Recommendation 93: The Jury Act 1977 should be amended to provide that it is an offence for a person who is serving or has served on a jury to seek or obtain a financial advantage by disclosing information regarding the jury's deliberations in a manner which identifies the particular trial. (Para 11.27)
Recommendation 94: The Jury Act 1977 should be amended to provide that it is an offence for a person who is a member of a jury in a criminal trial to disclose during the trial any information regarding the deliberations of the jury unless that disclosure is made for the purpose of reporting to the judge an irregularity affecting that particular jury or in answer to a question asked by the judge. (para 11.30)
Recommendation 95: Apart from the changes to the law proposed in Recommendations 91, 92. 93 and 94, there should be no immediate action taken relating to the disclosure by jurors of information about their deliberations. (Para 11.31)
