The origins of the jury date back to the thirteenth century, when it seems a jury was a collection of local witnesses or local men of good standing. The function of trial by jury today is to decide facts based on evidence presented to the court, under the direction and supervision of the judge.
Juries are used in both criminal and civil cases, although they are much less common in civil cases. In all Australian states and territories, juries in criminal cases for serious offences (called indictable offences) consist of 12 people. In New South Wales, the requirements of a unanimous jury of 12 were amended in 2006 to allow for a majority verdict of 11 jurors in criminal trials in certain circumstances (Jury Act 1977 , section 55F). Some other states also accept a majority verdict (such as 10 or 11 out of 12). Juries are not used in less serious (‘summary’) criminal proceedings, which are heard by a magistrate or judge alone. In New South Wales, a defendant charged with an indictable offence who has a right to trial by jury may elect to be tried by a judge alone (Criminal Procedure Act 1986, section 132).
A jury verdict can only be appealed against if there is a serious error of law or serious misdirection by the trial judge. In criminal cases the jury determines whether the defendant is guilty ‘beyond reasonable doubt’ but does not decide on the sentence to be imposed.
In civil cases, the size of a jury varies between states. In NSW a civil jury consists of four people; in Victoria, 6-8, in Tasmania, 7; and in South Australia juries are only used for criminal trials. The use of juries in civil cases is limited, and in New South Wales usually only occurs in defamation cases. In civil cases the jury decides whether the defendant is liable on the balance of probabilities. Majority verdicts in civil cases are also allowed for now under the Jury Act 1977, section 57. In NSW, a coroner’s jury, if the coroner does not sit alone, is six persons.
Juries in NSW
Members of juries are selected at random by computer from the state electoral roll and are notified in writing. Jury selection is also governed by the Jury Act 1977. Jury service is compulsory, but under the Jury Act, certain people are disqualified from serving on a jury, including those who:
- have served a prison sentence within the last ten years
- have served a sentence as a juvenile offender within the last three years
- are currently bound by a court order such as parole, driver disqualification, community service order, apprehended violence order, good behaviour bond or bail.
Certain people are ineligible to serve on a jury, including:
- judicial officers, including those previously employed in these roles (includes judges, magistrates and coroners, Crown Prosecutors, Director of Public Prosecutions)
- public sector employees in areas of law enforcement, criminal investigation, the provision of legal services in criminal cases, the administration of justice or penal administration
- Australian lawyers (whether practicing or not)
- members of parliament, parliamentary officers and staff
- people who are unable to read English
- people who are unable because of sickness, disability or infirmity to carry out the duties of a juror.
People who are called for jury duty must attend court, where they might be chosen for a particular case by a ballot. Once this occurs, both the prosecution and defence in the case have the right to object to up to three people without giving a reason, and more with reasons which must be assessed by the judge.
Jurors either take an oath on the Bible (although it is not necessary that a religious text be used) or make an affirmation in accordance with their beliefs: see Jury Act 1977, section 72A. During the course of the case, they are forbidden to discuss the case with anyone else, although they are able to go home each night. Jurors are provided with a notebook which must be left with the court when they go home at night. The notebooks are destroyed at the end of the trial.
At the end of the case, the barrister for each side will sum up their arguments. The judge will then give a summary of the evidence presented and may give warnings of dangers in certain types of evidence that may not be obvious to jurors. Instructions, warnings and comments given by the judge to a jury are known as ‘jury directions’. The jury then retires to a private room where they discuss the evidence and try to reach a verdict. If they are unable to agree by the end of the day, they are generally allowed to go home, but cannot discuss the case with anyone else.
Once agreement is reached, the jury returns to the court and the jury leader, selected by the jury, delivers the verdict. If the jury cannot agree on a verdict (known as a ‘hung jury’), the court discharges the jury and may order a new trial. Jury service is administered by the Office of the Sheriff of NSW.