The NSWCCL recognises the importance of increasing the efficiency of jury empanelment, the provision of enhanced support for jurors to perform their role and reducing the expenditure of resources on trials that are ultimately aborted or result in hung juries. The NSWCCL also recognises the validity of majority verdict legislation in criminal and coronial trials. However, the NSWCCL is concerned that the proposed amendment to Section 55F of the Jury Act 1977 (The Act) may compromise a jury’s ability to properly consider the guilt to innocence of an accused person, and that such a compromise is made in exchange for a speculative and nominal reduction in the expenditure of resources on trials and reduction in hung juries. The NSWCCL is further concerned that the proposed amendment to Section 73A(1) of the Act unnecessarily broadens the investigative power of the NSW Sherriff’s Office (Sherriff). The broadening of the investigative power is significant and not safeguarded or constrained by current legislation.

Section 55F the Jury Act 1977

Prior to the ‘majority verdict’ amendments, all members of a jury had to unanimously agree with the decision either to convict or acquit the accused individual. Where the jury was unable to achieve a unanimous decision (‘hung jury’), the jury was discharged with no verdict. On the 26 May 2006, the ‘majority verdict’ amendment introduced Section 55F of the Act which expressed the decision of 11 out of 12 jurors or 10 out of 11 jurors to be returned as a ‘majority verdict’. In undergoing a statutory review, the policy objectives of the Act would only be valid if ‘the terms of the amendments are largely appropriate for securing the policy objectives, except for the eight-hour rule’. In this, Section 55F of the Act was amended to ensure that the minimum deliberation period was to be reduced from eight to four hours. Hon. Daniel Mookhey, MLC, Treasurer expressed that this recommendation of the eight-hour rule is “too long a minimum period of deliberation in many circumstances; is inefficient, creates additional costs and contributes to trial backlogs; and can cause issues related to juror safety and wellbeing stemming from disagreements and undue pressure being placed on jurors who do not agree”. To counteract this, NSWCCL state that this proposed recommendation, there has been an insufficient explanation as to how the amended will reduce the expenditure of resources trials or reduce the number of hung juries.

NSWCCL has articulated that in respect of trial processes, the proposed amendment would not achieve its stated objectives specifically in respect of reducing the number of hung juries, we consider that for the proposed amendment to reduce the number of hung juries, it must be accepted that a particular jury’s verdict will change from 4 hours of deliberations to after 8 hours of deliberations.

In the Report, our statistics were reiterated which presented that from ‘2007 onwards an average of 1.9% of trials dealt within the District Court of NSW resulted in a hung jury’ considering it ‘extremely small and unlikely to make a substantive impact on the trial backlog or expenditure of resources’. Similarly, the report published other stakeholders who questioned the positive impact reducing the eight-hour rule and its impact on hung juries. The Aboriginal Legal Service (NSW/ACT) presented that the ‘proposed 4-hour rule could, contrary to its objectives, increase the incidence of hung juries where, given more item, they may have found consensus’. Additionally, Mr John Stratton SC, Member, Criminal Law Committee, NSW Bar Association emphasised ‘that the rate of hung juries is only about 2% and claimed that any savings of cost and time by making a reduction in that very extremely low figure was illusory’.

Section 73A(1) the Jury Act 1977

In the NSWCCL submission, we state that the proposed amendment provides for the Supreme and District Court of NSW to implicitly direct (by request or consent) the Sheriff to investigate ordinary persons of the community even where those persons may be unrelated to the trial proper, such as family members of jurors, associates of an accused person, or journalists. Thus, there is potential for the proposed amendment to erode civil liberties, where innocent persons, perhaps wrongly accused by disgruntled stakeholders, may be the target of misguided investigations by the Sheriff.

Contrastingly, the Report states that inquiry participants such as Justice Price AO, who supported the amendment and commented that the Sheriff is the most appropriate body to deal with matters relating to juries. Price argues that ‘it is not fitting for the NSW Police Force to investigate such matters in the first instance as very often the matter before the court relates to a police officer’. He continued by commenting that the ‘extension of the Sheriff’s powers to investigate matters outside the verdicts is important before a verdict is delivered due to the type of interferences with juries, particularly artificial intelligence’.

Despite this, NSWCCL find that the powers of the Sheriff are derived from the Court Security Act 2005 (NSW), Civil Procedure Act 2005 (NSW), Sheriff Act 2005 (NSW) and the Jury Act 1977 (NSW), and do not include safeguard provisions in respect of investigations by the Sheriff acting outside court premises. NSWCCL note that the Sheriff is not subject to or constrained by the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) or overseen by the Law Enforcement Conduct Commission. Thus, the developed common law safeguards relating ss 7A and 7B of the Sheriff Act 2005 (NSW), and Sheriffs as ‘peace officers’, do not sufficiently protect civil liberties from the new proposed investigative functions of the Sheriff particularly where an individual may be exposed to criminal liability. Thus, NSWCCL does not support the proposed amendment to section 73A(1) of the Act.

Recommendations

The NSWCCL suggests that research should be undertaken in respect to the impact of the proposed amendments on the reduction of expenditure of resources on trials and hung juries. We recommend there should be:

1. a review into the type and nature of criminal offences that result in hung juries. If there were to be a large proportion of hung juries resulting from sexual assault trials or specific sexual assault offences, for example, then specific reform into sexual assault trials or offences may have a greater impact on the reduction of hung juries
2. a review into the duration of a criminal trial that results in hung juries. If there were a large proportion of hung juries that had resulted from trials with a duration of over 3 weeks, then specific reform into the case management of trials with a view to reducing their length may have a greater impact on the reduction of hung juries
3. a review into the average time of a jury to return a verdict in NSW. If there were a majority of juries having returned a unanimous verdict after 4 hours, then it would provide evidence that 4 hours or less is unlikely to be sufficient time for a jury to properly consider the evidence and directions

Read our submission here.

Read the Committee report here.