Preliminary Paper 32 JURIES IN CRIMINAL TRIALS PART ONE A discussion paper The Law Commission welcomes your comments on this paper and seeks your response to the questions raised. These should be forwarded to: Tim Brewer, Commissioner, Law Commission PO Box 2590, DX SP 23534, Wellington by 30 September 1998 July 1998 Wellington, New Zealand The Law Commission is an independent, publicly funded, central advisory body established by statute to undertake the systematic review, reform and development of the law of New Zealand. Its purpose is to help achieve law that is just, principled, and accessible, and that reflects the heritage and aspirations of the peoples of New Zealand. The Commissioners are: The Honourable Justice Baragwanath – President Joanne Morris OBE Judge Margaret Lee DF Dugdale Denese Henare ONZM Timothy Brewer ED The office of the Law Commission is at 89 The Terrace, Wellington Postal address: PO Box 2590, Wellington 6001, New Zealand Document Exchange Number: SP 23534 Telephone: (04) 473–3453, Facsimile: (04) 471–0959 eMail: [email protected] Internet: http://www.lawcom.govt.nz Use of submissions The Law Commission’s processes are essentially public, and it is subject to the Official Information Act 1982. Thus copies of submissions made to the Commission will normally be made available on request, and the Commission may mention submissions in its reports. Any request for the withholding of information on the grounds of confidentiality or for any other reason will be determined in accordance with the Official Information Act 1982. Preliminary Paper/Law Commission, Wellington, 1998 ISSN 0113–2245 ISBN 1–877187–21–6 This preliminary paper may be cited as: NZLC PP32 Summary of contents Page Preface ix Glossary xi Summary of questions xiii 1 Executive summary and proposals for reform 1 2 Functions of the jury in criminal trials 12 3 Trial by jury 22 4 Trial without a jury 36 5 Goals of the jury selection process 55 6 Making juries more representative 62 7 Mäori representation on juries 76 8 Disqualifications and excuses 80 9 Challenging jurors 91 10 Discharging jurors 109 Appendix Empirical studies of juries and jury trials 121 Select bibliography 125 Index 129 Contents Para Page Preface ix Glossary xi Summary of questions Q1 xiii 1 EXECUTIVE SUMMARY AND PROPOSALS FOR REFORM Introduction 1 1 Functions of the jury in criminal trials 6 2 Trial by jury 11 3 Trial without a jury 16 4 Goals of the jury selection process 23 5 Making juries more representative 25 6 Mäori representation on juries 34 7 Disqualifications and excuses 38 8 Challenging jurors 44 9 Discharging jurors 50 10 2 FUNCTIONS OF THE JURY IN CRIMINAL TRIALS Introduction 56 12 The democratic nature of the jury 60 13 The jury as fact-finder 62 13 The jury as conscience of the community 67 15 The jury as safeguard against arbitrary and oppressive government 75 18 The jury’s role in legitimising the criminal justice system 78 19 The jury as an educative institution 81 20 Summary 84 21 3 TRIAL BY JURY Introduction 89 22 Current law 90 22 The right of election 90 22 The summary/indictable divide 92 23 The court in which jury trials will take place 97 24 Offences exempted from the right to elect trial by jury 100 24 Summary 101 24 Mandatory trial by jury 102 25 The justifications 103 25 Community input and public validation 103 25 Murder as a special case 106 26 Finely balanced issues 108 26 The threshold for mandatory trial by jury 109 26 Reform options 113 27 The right to elect trial by jury 116 28 The likelihood of imprisonment 119 29 Discrepancies in the availability of jury trials 127 30 Costs and backlogs in jury trials 132 31 Following other jurisdictions’ lead 134 32 Summary 149 34 iv JURIES IN CRIMINAL TRIALS Para Page 4 TRIAL WITHOUT A JURY Introduction 153 36 Current law 154 36 Legislative history 161 37 Justifications for trial without a jury 167 39 Fraud trials 168 39 Other jurisdictions 170 40 Common assumptions 176 42 Other complex cases 183 43 Assessing the degree of complexity 188 45 Trials attracting publicity 190 45 Sexual offences 194 46 Reform options 199 48 Mandatory judge alone trials for fraud 203 49 Defendant’s application and prosecution’s objection 205 49 A broader right to elect 207 50 Multiple trials 213 51 Co-defendants 214 51 Judicial decision in a case too complex for jury 215 51 Nature of the election 219 52 Legal advice 221 52 Summary 222 53 5 GOALS OF THE JURY SELECTION PROCESS Introduction 228 55 The jury selection process 230 55 The goals of the process 232 56 Competence 234 56 Independence 239 57 Impartiality 242 57 Representation of the community 246 59 Summary 253 61 6 MAKING JURIES MORE REPRESENTATIVE Introduction 257 62 The current law 259 62 The changing meaning of “trial by peers” 261 63 The Magna Carta and “trial by peers” 264 64 The New Zealand Bill of Rights Act 1990 and representation of the community 266 64 Defining “community” 266 64 The meaning of “representation” of the community 270 65 Random selection of jurors 276 67 The composition of New Zealand juries 277 67 Options for reform 282 69 Improving representation on the electoral rolls 284 70 Extending jury district boundaries 288 71 Considering representation of the community as a factor in change of venue applications 290 72 Guidelines for excusing jurors 292 72 A judicial power to determine the composition of the jury 293 73 Summary 297 74 v Para Page 7 MÄORI REPRESENTATION ON JURIES Introduction 305 76 Improving representation generally 308 77 Changes to administration and practice 309 77 Improving source lists for Mäori potential jurors 310 77 Mäori jury lists and Mäori jury pools 312 78 Summary 314 79 8 DISQUALIFICATIONS AND EXCUSES Introduction 315 80 The current law 316 80 Disqualifications and exclusions 317 80 Excusing jurors 324 82 Options for reform 328 83 The minimum age limitation 329 83 The upper age limit 334 84 Disqualifying jurors who have been imprisoned 338 84 Lawyers on juries 344 86 Disabled jurors 347 87 Jurors’ language ability 351 87 Summary 359 89 9 CHALLENGING JURORS Introduction 364 91 The current law 367 91 Challenge for want of qualification 368 92 Challenge for cause 369 92 Peremptory challenge 373 93 Direction to stand by 375 93 The peremptory challenge in practice 380 94 Jury vetting 380 94 The exercise of peremptory challenges by prosecution and defence counsel 382 95 Peremptory challenges against Mäori potential jurors 385 96 The effect on representation 390 97 Rationales for the peremptory challenge 391 98 Removing biased jurors 392 98 Allowing parties some control over jury selection 393 99 Influencing the representation of minorities 395 100 Summary 397 100 The Bill of Rights and peremptory challenges 398 100 Options for reform 400 101 Abolishing the peremptory challenge 401 101 Modifying the challenge for cause 406 102 Better information for the exercise of challenges 413 103 Reducing the number of peremptory challenges 418 104 Guidelines for the exercise of peremptory challenges 419 104 Reforming the law and practice of jury vetting 423 106 Summary 430 108 vi JURIES IN CRIMINAL TRIALS Para Page 10 DISCHARGING JURORS Introduction 435 109 The current law 437 109 Section 22(1) of the Juries Act 440 110 Section 374(1) of the Crimes Act 442 111 Section 374(3) and (4) of the Crimes Act 445 111 Inherent jurisdiction and the relationship with s 22(1) of the Juries Act and s 374 of the Crimes Act 454 114 Summary 457 115 Options for reform 458 115 A single power to discharge jurors 458 115 Discharging the entire jury 466 117 Questioning jurors 468 117 The use of reserve jurors 469 118 Summary 477 120 Appendix Empirical studies of juries and jury trials A1 121 Select bibliography 125 Index 129 vii viii JURIES IN CRIMINAL TRIALS Preface N 1989 THE LAW COMMISSION was asked by the Minister of Justice to review Iprocedure in criminal cases. This project is a continuing one. Its purposes are: • To ensure that the law relating to criminal investigations and procedures conforms to the obligations of New Zealand under the International Covenant on Civil and Political Rights and to the principles of the Treaty of Waitangi. • To devise a system of criminal procedure for New Zealand that will ensure the fair trial of persons accused of offences, protect the rights and freedoms of all persons suspected or accused of offences, and provide effective and efficient procedures for the investigation and prosecution of offences and the hearing of criminal cases. With these purposes in mind the Law Commission was asked to examine the law, structures and practices governing the procedure in criminal cases from the time an offence is suspected to have been committed until the offender is convicted, including but not limited to: • powers of entry, search and arrest • diversion – principles and procedures • decisions to prosecute and by whom they should be made • the rights of suspects and police powers in relation to suspects • the division of offences into summary and indictable offences • preliminary hearings and criminal discovery • onus of proof • evidence in sexual and child abuse and other special cases • payment of costs to acquitted persons and to make recommendations accordingly. To deal comprehensively with the criminal procedure reference in a single report would mean considerable delay. The Commission therefore decided to proceed with the reference by stages. A report on Disclosure and Committal (NZLC R14) was published in June 1990. An issues paper on the prosecution of offences was published in November of that year (NZLC PP12) followed by the Criminal Prosecution discussion paper (NZLC PP28) in 1997.