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Report 48 (1986) - Criminal Procedure: the Jury in a Criminal Trial

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Report 48 (1986) - Criminal Procedure: the Jury in a Criminal Trial NSW Law Reform Commission REPORT 48 (1986) - CRIMINAL PROCEDURE: THE JURY IN A CRIMINAL TRIAL Table of Contents Table of Contents....................................................................................................... 1 Terms of Reference and Participants......................................................................... 2 Summary of Recommendations ................................................................................. 5 Preface..................................................................................................................... 15 1. Introduction .......................................................................................................... 16 2. The Jury in the Criminal Justice System .............................................................. 24 3. The Form of Our Recommendations.................................................................... 32 4. Ensuring a Representative Jury ........................................................................... 35 5. Protecting the Jury ............................................................................................... 58 6. Making the Jury's Task Easier.............................................................................. 63 7. Reducing Bias and Prejudice ............................................................................... 81 8. Promoting Satisfactory Verdicts ........................................................................... 93 9. Requiring the Verdict to be Unanimous.............................................................. 106 10. Saving Time and Money................................................................................... 121 11. Disclosing the Deliberations of the Jury ........................................................... 134 Appendix A - People who have Assisted the Commission ..................................... 146 Appendix B - Costing of Proposal to Increase Jury Fees After First Week of Service ............................................................................................................................... 150 REPORT 48 (1986) - CRIMINAL PROCEDURE: THE JURY IN A CRIMINAL TRIAL Terms of Reference and Participants New South Wales Law Reform Commission To The Honourable T W Sheahan, BA, LLB, MP, Attorney General for New South Wales CRIMINAL PROCEDURE REPORT: THE JURY IN A CRIMINAL TRIAL We make this Report under our reference from your predecessor, the Honourable F i Walker, QC, MP, to inquire Into and review the law and practice relating to criminal procedure and, in particular, the practices and procedures relating to juries In criminal proceedings. Keith Mason QC (Chairman of the Commission) Paul Byrne (Commissioner in Charge) Greg James QC (Part-time Commissioner) Her Honour Judge Jane Mathews (Part-time Commissioner) The Honourable Mr Justice Adrian Roden (Part-time Commissioner) Ronald Sackville (Part-time Commissioner) March 1986 Terms of Reference To inquire into and review the law and practice relating to criminal procedure, the conduct of criminal proceedings and matters incidental thereto; and in particular, without affecting the generality of the foregoing, to consider- (a) the means of instituting criminal proceedings; (b) the role and conduct of committal proceedings; (c) pre-trial procedures in criminal proceedings; (d) trial procedures in matters dealt with summarily or on indictment; (e) practices and procedures relating to juries in criminal proceedings; (f) procedures followed in the sentencing of convicted persons; (g) appeals in criminal proceedings, (h) the classification of criminal offences; (i) the desirability and feasibility of codifying the law relating to criminal procedure. F J Walker QC Attorney General 17 January 1982 Participants For the purpose of this Report in the Criminal Procedure Reference the following members of the Commission have acted as a Division constituted by the Chairman in accordance with s12A of the Law Reform Commission Act 1967. Commissioners: Paul Byrne (Commissioner in charge of reference) Greg James QC (from 7 August 1985) Keith Mason QC (Chairman of the Commission) Her Honour Judge Jane Mathews The Honourable Mr Justice Adrian Roden Ronald Sackville (Miss Deirdre O'Connor was for a period a member of the Division but did not participate in the final Report) Research Director: Mark Richardson (to 21 June 1985) Ms Fiona Tito (Acting, 24 June 1985 to 19 September 1985) William J Tearle (from 18 November 1985) Senior Legal Officer: Ms Meredith Wilkie Additional Research Assistance: Ms Janice Edmond Mr Gordon Renouf Ms Clare Sneddon Secretary: Mr John McMillan Typing and Word Processing: Ms Lorna Clarke Mrs Margaret Edenborough Ms Nozveen Harris Miss Meg Orr Librarian: Mrs Beverley Caska Administrative Assistance: Miss Zoya Howes Ms Dianne Wood REPORT 48 (1986) - CRIMINAL PROCEDURE: THE JURY IN A CRIMINAL TRIAL Summary of Recommendations 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 vefting" 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
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