2UE Interview about juries

By Legal Eagle

In June this year, SL wrote a post in which she noted:

Month on month, the most popular search string for this blog is a variant on ‘getting out of jury service in nsw’, ‘excuses to get out of jury service’, ‘jury service nsw’, ‘avoiding jury service nsw.’ No other state or jurisdiction gets a look in. No Queensland or Victoria or WA, no England or Scotland, despite the fact that up here we need fifteen jurors in a criminal trial ‘solemn procedure’–what we call trial on indictment–and twelve in many civil trials.

Clearly there is something funny going on in NSW.

The original post which attracted the hits was written in October 2006 and was entitled “Excuses for getting out of jury duty”, and in fact, it was a link to a newspaper article in the Sydney Morning Herald outlining some of the crazy excuses people used to get out of jury duty in New South Wales. Some of the best include:

  • “I’m a clairvoyant and therefore I would know whether a person was guilty or innocent. I would be concerned that I may not be able to convince my fellow jurors.”
  • “My budgie is sick and needs looking after.”
  • “I can’t leave home due to the impending holocaust.”
  • “I am hearing voices that tell me I shouldn’t attend.”

In fact there are genuine legal bases upon which people can get out of jury duty in New South Wales, pursuant to Schedules 1, 2 and 3 of the Jury Act 1977.

Some people are disqualified from serving as jurors under Schedule 1, including people who have been imprisoned within the last 10 years. Some other people are ineligible to serve as jurors under Schedule 2, including the Governor, judges and coroners (past and present), members of parliament, lawyers, law enforcement officers, the Ombudsman, people who cannot read or understand English and people who cannot discharge jury duty because of sickness, infirmity or disability. Finally, under Schedule 3, a variety of people have a right to claim exemption, including religious orders and clergy, dentists, pharmacists and doctors, persons working in emergency services, persons who are over 70 years old, pregnant women, people who care for children under 18 or a person who cares full time for someone who is sick or disabled, people who live more than 56 km from the place of service and persons who have already served or been called up for jury duty.

Courts are also understanding – if you have pre-booked a holiday or if you have exams, you can explain this to the court and they may excuse you. However, if you have not been excused and you do not turn up, you may be fined $1,100.

I think there are a number of reasons why people do not want to serve on juries:

  • It is disruptive to life and work, particularly if it is a long trial which drags on.
  • It is difficult if you are self-employed and do not have someone who will “make up” your wages while you are serving.
  • It is very stressful, and jurors can’t talk about the case with family members, only with other jury members. It is also often emotionally upsetting, particularly where there are violent or unpleasant crimes (as tends to be the case with capital offences). Certainly when I worked in the Court system I found such cases greatly distressing. I should note that counselling is available to jurors who are greatly distressed.
  • When media reports outline criticisms of the jury by the family of victims, the jurors can’t explain why they decided as they did. I would note here that numerous studies have shown that when people are given more information about a crime, their level of punitiveness drops dramatically. Juries are given far more information than a simple media report.
  • Related to this point — not all evidence which is seen by the victim’s family and the press is seen by the jury — eg, if the evidence is ruled inadmissible, the jury does not get to see it until after the case is finished, which can be quite distressing (this actually happened to my husband after he sat on a jury).

As we discussed on the program, there are some downsides of juries. They are often criticised on the basis that you do not get a fair cross-section of society, and only get students, people who do not work and retirees. McClellan CJ has a point about very complex and dry financial fraud trials — having sat through some of these cases myself, I know that it is difficult even for someone who is experienced to follow the evidence. His Honour is also correct that trials are increasingly long, and thus sitting on a jury is a really big ask. Juries are also expensive and unwieldy to manage – the organization, time and effort required to select juries is immense.

However, there are some really good things about juries as well. Trial by jury is a long-standing common law right which dates back to the Magna Carta and keeps the law grounded in what the rest of the non-legal world thinks. Judges are often criticized by the media and by families of victims of crime for being “out-of-touch”. The fact that we have 12 ordinary people deciding a case means that the court is directly informed by community standards. When we are judged by our peers as well as lawyers, I suggest that whether we are a defendant or a victim of crime, we tend to find the result more acceptable. In addition, I also think that people are more capable of understanding complex issues than we give them credit for. When both my father and my husband had to sit on juries at different points, they were initially unhappy and irritated, but ultimately found the experience rewarding and informative. People learn from being part of a jury, and have more respect for the legal system and for the difficult decisions judges have to make on a daily basis as a result of serving on a jury.

The bottom line is that clearly there’s a problem with jury duty if all these people want to get out of sitting in a jury – something about the system doesn’t work, and it appears to be particularly problematic in New South Wales for some reason. However, I would not say that this is a reason for getting rid of juries altogether – it is really important that the law has input from ordinary people. The question is what we can do about this. Perhaps people could be educated about the importance of juries and the legal system generally. They should think about whether they would want a matter to be judged by peers or by a judge alone if they were accused of a crime or if their relative was a victim of crime. Pay is clearly an issue – New South Wales has raised the pay for jurors so that it reflects the minimum wage  (it is $102.50 per day, rising to $230.60 after the 10th day if you are employed) – but if you are self-employed this may not be enough. It seems extraordinary to me, however, that this pay is taxed, as SL and I noted in the previous post. Perhaps the legal system has to acknowledge that jury duty is important, but also recognise that it is a tremendous disruption for people, and we have to do something about that, including by expediting trials.

One Comment

  1. Posted December 24, 2011 at 8:55 am | Permalink

    To paraphrase Winston Churchill:

    The jury system is the worst system of justice we could have, except for all the others.

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