Jury Amendment Bill 2007

The Hon. PENNY SHARPE (Parliamentary Secretary) [4.47 p.m.], on behalf of the Hon. John Hatzistergos: I move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

This bill will allow up to three additional jurors to be appointed in lengthy criminal trials to reduce the risk of proceedings being abandoned because jurors die or are discharged.

Long running trials face a greater danger of jurors falling seriously ill or being discharged for other reasons.

The bill amends the Jury Act 1977 to enable the court to allow up to 15 jurors to be sworn in for trials expected to last for longer than three months. This will ensure the proceedings can continue even if several jurors are subsequently discharged.

Under the Jury Act 1977, the court can already allow a criminal trial to continue with 10 or 11 jurors if members of the jury die or are discharged, or with even fewer jurors if both the defendant and the prosecution agree or if the trial has run for at least two months. Nonetheless, it is still possible, particularly in long trials, that a trial will be abandoned if the number of jurors falls too low. This may be even more likely in trials for Commonwealth offences because comments made by the High Court suggest that section 80 of the Constitution may prevent Commonwealth trials proceeding with less than 10 jurors.

If a long trial has to be abandoned because a number of jurors are discharged and a retrial is held then the financial cost to the State, and the financial and emotional costs to the victims, witnesses and defendants will be substantial. The delay may reduce the likelihood of a successful prosecution, especially as witnesses may no longer be available, or their evidence less reliable. The retrial may even not proceed.

While long running trials are still relatively rare in New South Wales, these changes to the jury system will help ensure such cases can continue to be heard even if a number of jurors are discharged from the jury.

While the bill will allow up to three additional jurors to be appointed in lengthy criminal trials, not all of the jurors will be required to deliberate. All of the jurors will have equal standing throughout the trial but once the judge has summed up the case, a random ballot will decide the 11 jurors, who along with the jury foreperson, will retire to consider their verdict. The 12 member jury has a long history and is thought to be large enough to contain a cross-section of the community but small enough to enable the jury to come to a decision. These amendments retain the 12 member jury for the consideration of verdicts while at the same time reducing the possibility of abandoned trials.

Turning to the detail of the bill, section 19 of the Jury Act 1977 is amended to allow the courts to order that up to three additional jurors be selected for a jury in criminal proceedings if the court is satisfied of three things. Firstly, that the trial is of a kind prescribed by the regulations. Section 19(3) provides that initially this will be that the trial is likely to last for more than three months. Secondly, additional jurors will have to be an appropriate means of ensuring that there will be sufficient jurors remaining when the jury retires to consider its verdict. Thirdly, appropriate facilities to accommodate the additional jurors will need to be available.

The number of additional jurors that can be appointed in other Australian jurisdictions varies from two additional jurors in Tasmania, to six additional jurors in Western Australia. Most jurisdictions, however, allow an additional three jurors to be appointed. This avoids the difficulties associated with a larger number of jurors while still providing adequate protection against trials being discharged because the number of jurors falls too low.

The court will need to be satisfied the trial is likely to last for at least three months before it can appoint additional jurors. Appointing additional jurors requires more citizens to perform jury service, involves additional expenses such as juror fees, and requires court rooms that can accommodate the extra jurors. The bill initially limits the circumstances where additional jurors may be appointed to the longest trials where the risk of a trial being abandoned is the greatest. However, the bill also allows the kind of proceedings where additional jurors may be appointed to be prescribed by regulation so that this can be altered later if the experience with the new provisions suggests this is warranted.

There are various courts throughout New South Wales, including courts in the new Parramatta Justice Precinct, which will be able to accommodate up to fifteen jurors.

A peremptory challenge can occur when a jury is being selected. It is where an accused or the Crown can object to a person sitting as a juror without giving any reason for the objection. In New South Wales criminal trials each accused is entitled to three peremptory challenges and the Crown is entitled to three peremptory challenges for each accused.

The bill amends the Jury Act 1977 to confer an additional peremptory challenge on both the Crown and each defendant if the court has ordered that additional jurors be appointed.

Three of the other States and Territories allow additional peremptory challenges where reserve or additional jurors are to be appointed and four States and Territories do not.

A new section SSG will be inserted in the Jury Act 1977 to provide that if there are more than 12 jurors remaining when the jury is due to retire and consider its verdict then a random ballot will be conducted to choose the 11 jurors that, along with the jury foreperson, will be the verdict jury.

Jurors not selected to consider a verdict will be discharged except in certain limited circumstances. The first of these is where the court directs the jury to deliver a particular verdict in relation to some, but not all, of the accused or some, but not all, of the counts in the indictment. The second is where the jury retires to consider whether to return a verdict without hearing further evidence and decides it does want to hear further evidence. In these circumstances the jurors not selected in the first ballot rejoin the jury for the continuation of the trial and another ballot will be conducted when the jury later retires to consider a verdict.

The provisions of the Jury Act 1977 that allow criminal trials to continue with fewer than 12 jurors will still apply. Allowing additional jurors to be selected in longer trials will simply be a further safeguard against trials being abandoned because a number of jurors are discharged.

The new provisions will apply where the jury is empanelled after the commencement of the bill.

The Commonwealth Director of Public Prosecutions, the New South Wales Senior Public Defender, the Chief Judge of the District Court and the New South Wales Bar Association all suggested amendments to the Jury Act 1977 to allow additional jurors to be appointed. These legal individuals and bodies were consulted in the drafting of this bill, as were the Supreme Court, the New South Wales Director of Public Prosecutions, the Law Society of New South Wales and the Legal Aid Commission. I would like to thank all these individuals and bodies for their suggestions and assistance in the development of this bill. The Government greatly appreciates their contributions.

The resulting bill will reduce the risk of long criminal trials being aborted and so reduce the trauma felt by victims of crime and their families. Delays arising from aborted trials can cause considerable distress to victims and may reduce the likelihood of a successful prosecution, particularly in cases where witnesses become unavailable. The bill improves the criminal justice system and could result in substantial savings of taxpayers' dollars by avoiding aborted trials and the resulting retrials.

I commend the bill to the House.

The Hon. JOHN AJAKA [4.48 p.m.]: The Jury Amendment Bill 2007 seeks to amend the Jury Act 1977 to enable up to three additional jurors-making a total of 15 jurors in lieu of the current 12 jurors-to be selected for certain criminal trials in both the Supreme Court and the District Court and to ensure that only 12 members of a jury that is expanded with additional jurors may retire to consider the jury's verdict. The Opposition does not oppose the bill. Turning to the context of the bill, new section 19 (2) introduces into the principal Act a provision allowing up to three jurors in addition to the usual 12 to be selected for a jury in criminal proceedings before the Supreme Court or the District Court where:

(a) the trial of the proceedings is of a kind prescribed by the regulations for the purposes of this subsection [that is, a trial that is expected to be over three months duration]; and

(b) the selection of the additional jurors is an appropriate means of ensuring that there will be sufficient jurors remaining on the jury when the jury is required to consider its verdict; and

(c) appropriate facilities to accommodate the additional jurors are available.

Item [2] seeks to confer an additional peremptory challenge on both the Crown and each defendant in criminal proceedings where the court has ordered that the jury include additional jurors. Item [8] seeks to insert a new section 55G in the principal Act to ensure that if the jury in criminal proceedings consists of more than 12 persons immediately before the jury is required to retire that only 12 members may retire to consider the verdict. The members are to comprise the foreperson and 11 others selected by ballot or, in the case where a foreperson has not been selected, all 12 by ballot. The bill initially limits the circumstances in which additional jurors may be appointed to long trials where the risk of a trial being abandoned is the greatest. However, the bill also allows for the appointment of additional jurors in such proceedings to be prescribed by regulation, so that this provision can be amended if experience deems it warranted.

Jurors who are not selected to consider a verdict will be discharged except in certain limited circumstances. Those circumstances are, first, where the court directs the jury to deliver a particular verdict in relation to some, but not all, of the accused or some, but not all, of the counts in the indictment; and, second, where the jury retires to consider to return a verdict without hearing further evidence and decides it does want to hear further evidence. In those circumstances the jurors who are not selected in the first ballot rejoin the jury for the continuation of the trial and another ballot will be conducted when the jury later retires to consider its verdict. The provisions of the Jury Act 1977 which allow criminal trials to continue with fewer than 12 jurors still apply. The current requirement in criminal proceedings in the Supreme Court and District Court is that juries consist of 12 jurors. If during the trial any member of the jury dies or is discharged because of illness or other reason, the jury is considered to be properly constituted if there are not fewer than 10 members, there are less than 10 members but all parties consent in writing to continue, or there are less than 10 but at least 8 members and the trial has been in progress for two months.

A substantial number of arguments have been put in favour of the amendments. First, it is still possible for a trial to be abandoned if the number of jurors falls too low. This may be even more likely in trials of Commonwealth offences because comments made by the High Court suggest that section 80 of the Constitution may prevent Commonwealth trials proceeding with fewer than 10 jurors. Second, the bill will reduce the risk of long criminal trials being aborted and so reduce the trauma felt by victims of crime and their families. Third, avoiding aborted trials will save taxpayer dollars. The individual parties-the victim, the accused and witnesses-also face financial costs. Long-running trials face a higher risk of jurors falling seriously ill or being discharged for other reasons. However, long-running trials are still relatively rare in New South Wales. Fourth, delays arising from aborted trials can reduce the likelihood of a successful prosecution, particularly in cases where witnesses become unavailable. Fifth, the amendments retain a 12-member jury for the consideration of verdicts while at the same time reducing the possibility of abandoned trials.

The Commonwealth Director of Public Prosecutions, the New South Wales Senior Public Defender, the Chief Judge of the District Court and the New South Wales Bar Association have all suggested amendments to the Jury Act 1977 to allow additional jurors to be appointed. Also, the New South Wales Law Reform Commission recommended in its 1986 report entitled "Criminal Procedure: The Jury in a Criminal Trial" that judges be given the power to empanel up to three additional jurors where a trial is expected to run for more than three months. It has also been recommended that in such cases the number of peremptory challenges available to the Crown and each accused person be increased by one. The arguments against the bill include, first, that the appointment of additional jurors requires more citizens to perform jury service, involves additional expenses, such as juror fees, and requires courtrooms that can accommodate the extra jurors. Second, the provisions of the Jury Act 1977 which allow criminal trials to continue with fewer than 12 jurors still apply. The amendments may be seen as providing an unnecessary safeguard at considerable cost, particularly given the rarity of long-running trials in New South Wales.

The Government estimates the additional cost for three jurors at $340.50 per day. When one considers this applies to trials that will run 13 weeks, the additional cost per trial could be in excess of $20,000. That is for each and every trial. I urge the Government to closely monitor the impact of the amendments over a 12-month period and compare the additional costs incurred by the community, both financial and personal, with the number of trials that are no longer aborted as a result of insufficient jurors prior to a jury retiring to consider its verdict. If there is no substantial change in the number of trials aborted and a substantial increase in costs then the Government should revisit this legislation and implement further amendments.

Ms LEE RHIANNON [4.54 p.m.]: I am disappointed that the Attorney General is not present because I would like to congratulate him when he gets it right. The Greens are pleased to support the Jury Amendment Bill 2007. The measures in the bill strengthen the jury system by reducing the risk of aborted trials. Any measures that strengthen the jury system will result in a fairer justice system. I want to comment on the importance of the jury system. Recently I walked in on a conversation about how a person who had been called up for jury duty could get out of that responsibility. I was concerned about what I heard because the jury system is central to fair justice. Jury duty, like paying taxes and voting, is part of a citizen's responsibilities in our twenty-first century society. We must accept that responsibility. I acknowledge that at times serving on a jury may be inconvenient or burdensome. But it is our responsibility.

Our judicial system needs representative, impartial juries. Currently there is a need to further strengthen the jury system. Our judicial system evolved with the need for representative juries at its core. It was considered fair that a jury making a decision on the rights or wrongs of a case should comprise people from various walks of life. There are people in our society who are regularly not represented proportionally on juries. Aboriginal and Torres Strait Islander people are rarely called up for jury duty. A recent inquiry recommended that deaf and blind people should be able to be jurors. I believe those recommendations were made last year but have not been acted on. More needs to be done to ensure that people from diverse backgrounds are represented on juries in order to reflect a fairer justice system. The jury system is a longstanding fundamental safeguard of our judicial rights and we need to be vigilant that the provisions are improved and not watered down.

Reverend the Hon. FRED NILE [4.57 p.m.]: The Christian Democratic Party supports the Jury Amendment Bill 2007, which will allow the appointment of additional jurors for lengthy criminal trials to minimise the possibility of a trial being aborted because jurors become ill or are discharged. Those circumstances can occur with any jury. During a briefing on the bill I was informed that early in 2008 the Commonwealth will conduct a serious and complex trial involving nine alleged terrorists. It is expected that the trial could run for 8 to 12 months. If such trials become common this legislation is necessary to overcome circumstances in which a juror becomes unavailable during the trial because of illness or is discharged. Jurors may be discharged for various reasons, including illness or becoming aware that they know a witness in the trial.

The Jury Act already gives the court the power to allow criminal trials to continue with 10 or 11 jurors if members of the jury die or are discharged, or with fewer than 10 jurors if the defendant and prosecution agree, or if the trial has run for at least two months. However, the Constitution may prevent trials for Commonwealth offences proceeding with fewer than 10 jurors. If a long trial has to be abandoned because a number of jurors are discharged and a retrial is held then the financial cost to the State and the cost to the victims, witnesses and parties will be substantial. The delay of the trial may reduce the likelihood of a successful prosecution, especially as witnesses may no longer be available or their evidence may be less reliable.

Every other State and Territory in Australia provides for reserve or additional jurors in criminal trials. An additional jury system allows additional jurors to be selected and all jurors have equal standing. If there are more than 12 jurors when it is time for the jury to consider its verdict the final jury of 12 is selected by ballot. I have sought clarification that if there are 15 jurors all those members of the jury will be present from the very beginning of the court case to its conclusion. This is a practical piece of legislation and, contrary to some of the criticism by the Greens directed at the Attorney General for not consulting, this bill is a result of requests from the courts, the Bar Association and other groups that have suggested these amendments to the Attorney General.

The Hon. PENNY SHARPE (Parliamentary Secretary) [5.00 p.m.], in reply: I thank honourable members for their contributions to the debate on the Jury Amendment Bill 2007. I am pleased that the bill is receiving broad support. These are commonsense amendments that will reduce the risk of lengthy criminal trials being abandoned by allowing up to three additional jurors to be appointed. This will ensure that the trial can continue, even if several jurors are subsequently discharged.

In relation to the matter raised by the Hon. John Ajaka, the Government will monitor the costs and the operation of the new system. I am advised that the bill contains a regulation power that means we can change the parameters after we see the system in operation. We will keep a close watch on that. Ms Lee Rhiannon referred to deaf and blind jurors. This issue was raised in a report tabled in the first session of this Parliament. The Government has said that the proposal for the participation of deaf and/or blind people in juries is worthy of further investigation. Currently we are engaged in a consultation process on how that could be implemented.

The Government also has referred the representativeness and diversity of those who participate in juries-particularly in relation to the representation of Aborigines and Torres Strait Islanders-to the Law Reform Commission. We expect to receive the commission's conclusions soon. The bill contains commonsense amendments that will make a good change to the way in which juries participate in our justice system. It will create a more efficient and effective justice system. I commend the bill to the House.

Ms Lee Rhiannon: I seek to make an explanation of my contribution to the Jury Amendment Bill under Standing Order 89. "Selected Rulings of the President" states under Standing Order 71, which is now 89:

Members may rise to speak a second time in debate to make an explanation in reply to some material point on which they have been misquoted or misunderstood.

I would like to do that briefly in relation to what was said by Reverend the Hon. Fred Nile about my contribution.

The PRESIDENT: Order! The member may proceed but must not introduce new material.

Ms LEE RHIANNON [5.02 p.m.]: At the beginning of my contribution to the Jury Amendment Bill 2007 I congratulated the Attorney General quite clearly, and I stand by that. Reverend the Hon. Fred Nile criticised me and said that I was critical and opposed to his speech. That is incorrect and I want to correct the record.

Question-That this bill be now read a second time-put and resolved in the affirmative.

Motion agreed to.

Bill read a second time.

Leave granted to proceed to the third reading of the bill forthwith.

Third Reading

Motion by the Hon. Penny Sharpe agreed to:

That this bill be now read a third time.

Bill read a third time and returned to the Legislative Assembly without amendment.