JURY DUTY – WHAT YOU SHOULD KNOW. Some countries that have formerly but are no longer using the jury system and others that have never had a jury system, have recently moved towards the introduction of a jury system. In Asia a number of countries, including Japan, South Korea and China, seemingly recognise the value of having ordinary citizens participate in the criminal justice system. At the same time, some countries where the jury system is used have recently sought to restrict juries. Russia, for example, at the end of 2008 abolished jury trials in cases of terrorism and treason. Similarly, Britain has sought both to suppress juries in cases of serious fraud and to ban juries from some inquests; in any case, only around 1% of criminal cases end up before juries there . In the United States there are more jury trials than anywhere else in the world and jury trials are frequently held to be a keystone of a civilised society. Nonetheless, the U.S. has a reliance on plea-bargaining (which then results in a case not going to trial) and minor offences before the courts are normally dealt with by a single judge. Against this, it is often held that a jury of laypersons under the guidance of a presiding judge who explains the law to them, is preferable to a judge alone deciding a case. This is because trials ordinarily involve a host of issues about human behaviour and, furthermore, group dynamics can enhance the efficacy of decision-making by moderating the effect of individual biases Jury trials in England: Jury trials have been part of English history since (at least) Magna Carta (The Great Charter of Liberties, 1215); they are at the core of our inherited system of justice. Over centuries the system has evolved with changes in society but has survived. The right to trial by jury has been fiercely defended when its powers have been seen to be threatened. Some commentators suggest that being tried by a jury of one’s peers probably has its origins in an Anglo-Saxon custom, which dictated that an accused man could be acquitted if enough people came forward to swear his innocence. The right to trial by jury was finally established in the British legal system following the trial of William Penn in 1670. When a jury of 12 randomly chosen citizens of London refused to convict this Quaker of leading a dissident form of worship, despite being directed to do so by the judge and despite being subjected to imprisonment and starvation in a bid to influence their decision . Prior to the adoption of the jury system, the English king often sat in his court, heard cases and pronounced judgment; although he may have been assisted by the advice of courtiers, he had full authority. Until such time as there was a “separation of powers,” even appointed judges were the abject servants of the king. In such a context the concept of a trial by jury created a barrier between the fate of the accused and the power of the king. The Juries Act 1825 (UK), a system to standardise the selection of jurors was introduced. Age-limits of between 21 and 60 years of age plus a basic level of property-ownership were introduced as qualifications for jurors. Australia: The framers of the Australian Constitution inserted section 80, from which legal commentators argue that it confers a right to a jury trial. Section 80 of the Constitution provides that the trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State, the trial shall be held at such place or places as the parliament prescribes. Graham Fricke has written: “The guarantee of section 80 of the Constitution was not the mere expression of some casual preference for one form of criminal trial. It reflected a deep-seated conviction of free men and women about the way in which justice should be administered in criminal cases. That conviction finds a solid basis in an understanding of the history and functioning of the common law as a bulwark against the tyranny of arbitrary punishment. In the history of this country, the transition from military panel to civilian jury for the determination of criminal guilt represented the most important step in the progress from military control to civilian self-government....” It is Fricke again who remarked: “Like air and water, trial by jury is best appreciated by those who have had its benefits withdrawn from them. When the British parliament provided, in 1787, for a military tribunal in New South Wales, with a Judge-Advocate presiding over a panel of six military officers, the citizens soon came to appreciate the superiority of the jury system. The military tribunal could be manipulated by Macarthur and others and could not be relied on to be impartial, especially when military interests were involved. William Wentworth and others campaigned vigorously for the British system, and numerous petitions for jury trial were lodged with the authorities. Eventually, in 1847, that system was introduced into New South Wales and made applicable to the Port Phillip district.(9) By the time of federation, the citizens of all Australian colonies were quite familiar with the benefits of trial by jury in serious criminal cases.” Nonetheless, the jury system is not without criticism. Jury trials can be expensive and, as some have suggested, inappropriate in more complex cases. In Australia many offences are dealt with summarily, that is, heard by a magistrate (or sometimes by a judge) without a jury. In 2011 the New South Wales government changed the law so that defendants could apply to the court for a judge-alone trial, thereby removing the requirement for the prosecutor to consent. Now the court will decide if it is in the interests of justice for a defendant to be tried by a judge alone in cases where the prosecutor wants a jury. Figures from the NSW Bureau of Crime Statistics and Research show that between 1993 and 2011, defendants were acquitted of all charges in 55.4 per cent of judge-alone trials compared with only 29 per cent of jury trials. Mark Findlay, a professor of criminal justice, argues that judges are less likely to be guided by emotion: Many, if not most, cases which go to judge alone rest on facts which would be disturbing to the person in the street, or they involve an accused who may have had some previous form or some current celebrity and so a jury would not approach the case or the accused objectively or without emotion. On the other hand, it would be fair to assume that judges would be less impressed by disturbing facts, and would be more able to put out of their minds extraneous issues about the case or the offender.” Also noteworthy is the statistic that more than nine times as many cases were heard by a jury than a judge alone . By contrast, studies of the outcome of judge-alone trials in Russia reveal a different trend. Introduced in 1993, juries were intended to shift power away from the state structure and hand it into the hands of citizens Russia. According to statistical evidence, juries in Russia are responsible for granting acquittals in 15 to 20 percent of cases, compared with less than 1 percent in cases decided by judges. . Throughout the 19th and 20th centuries, eligibility for jury service in New South Wales, as elsewhere, had broadened with the abolition of property and gender requirements. Today, jury duty and the selection of jurors is governed by the Jury Act 1977 (NSW). Anyone who is on the electoral of the Legislative Assembly is qualified to serve as a juror. Jurors are selected through a ballot-process, a pool of potential jurors for a particular trial are lead into the court by the Sherriff. The trial judge then directs the prosecutor to inform the members of the jury panel of the nature of the charge, the identity of the accused and the principal witnesses that will be called. The potential jurors can then apply to be excused if they cannot bring an impartial consideration to the case. Usually a trial is conducted by a judge and 12 jurors; in some cases a judge may decide that additional jurors (normally no more than three) are required when a lengthy trial is anticipated. Pursuant to s 6 (b) Juries Act 1977 (NSW), certain persons are ineligible to serve as jurors: Those who hold high public office, such as Governor-General or Members of the Executive Committee; or are employed in certain public sector roles, including; Governor of New South Wales; judicial officers as defined under the Judicial Officers Act, 1986; Coroners; members or officers of the Executive Council; members of the Legislative Council or Legislative Assembly; public-sector employees involved in law-enforcement, in criminal investigation, in providing legal services in criminal cases, and in justice or penal administration (except on a casual or voluntary basis); the NSW Ombudsman and Deputy Ombudsman; Crown prosecutors; public defenders; directors or deputy-directors of public prosecutions or solicitors for public prosecutions; solicitors general; crown advocates or crown solicitors; Australian lawyers (whether or not an Australian legal practitioner); members of the NSW Police Force, of the NSW Crime Commission, of the Australian Crime Commission, of the Police Integrity Commission, or of the Independent Commission Against Corruption. Similarly, under the Federal Jury Exemption Act 1965, people holding the following positions are not liable to serve as jurors: Governor General; members of the Federal Executive Council; justices of the High Court and of the courts created by the Parliament; senators; members of the House of Representatives; members of Fair Work Australia; members and special members of the Australian Federal Police; members of the Defence Force (other than members of the Reserves); members of the Reserves who are in continuous full-time service. Pursuant to s 6 (a) of the Juries Act 1977 (NSW), certain persons disqualified from serving as jurors: those having a criminal conviction; those serving a term of imprisonment or detention; those who have lost a drivers licence; those who are undischarged bankrupts. Depending on the offence, such persons they may be excluded for life or a set period of time. For details, see courts.justice.nsw.gov.au/cats/jury_service/exempt_excluded.html?s=1857699799. Certain persons also have a right to claim exemption under s 7 of the Juries Act 1977 (NSW): Clergy; vowed members of any religious order; practicing dentists; practicing pharmacists; practicing doctors; mining managers and under-managers of mines; a person employed or engaged (except on a casual or voluntary basis) in the provision of fire, ambulance, rescue, or other emergency services, whether or not in the public sector; persons who are at least 70 years old; pregnant women; a person who has the care, custody and control of children under the age of 18 years; a person who resides with, and has full-time care of, a person who is sick, infirm or disabled; a person who resides more than 56 kilometers from the place at which the person is required to serve; a person who served as a juror within the last three years; within the last 12 months attended court in accordance with a summons and who was prepared, but did not, serve as a juror; a person who is entitled to be exempted under s 39 on account of previous lengthy jury sentence. The role of the Juror: Jurors are charged with the vital responsibility of deciding whether, on the facts of the case, a person is guilty or not guilty of the offence for which s/he has been charged. In a form of teamwork, the judge and jury work together to decide whether or not an accused in a criminal trial is guilty or not; in civil trial to decide fault and damages. The jury must reach its verdict by considering only the evidence introduced in court and the directions of the judge. It is not the role of the jury to interpret the law. It is their role to follow the directions of the judge as regards legal matters. During all stages of the trial, jurors may take notes of proceedings. Jurors may also pass notes to the foreman or forewoman of the jury to ask the judge to explain certain aspects of the case. The jury then come back to the court with their decision. In a criminal case heard in NSW (whether it is a Federal criminal offence or a NSW criminal offence), the decision must be either: unanimous, that is, every one of the jurors must agree with the decision; or if there are 12 jurors and after at least eight hours they cannot all agree, agreed by 11 of the jurors; or if there are 11 jurors and after at least eight hours they cannot all agree, agreed by 10 of the jurors. In a civil case, the decision must be either be: unanimous, that is, every one of the jurors must agree with the decision; or if there are nine, ten, 11 or 12 jurors and after at least four hours they cannot all agree, agreed by eight of the jurors; or if there are four jurors and after at least four hours they cannot all agree, agreed by three of the jurors. Once the jury has made its decision, it is the judge’s final role to decide what the sentence or penalty (in a criminal trial) or remedy (in a civil case) will be. Potential Concerns about Jury Duty Being summoned to perform jury duty can cause concern to some persons. Whereas some people are excited by the idea of participating in the justice system and being able to serve the community in this way, others may not be so keen and may even contemplate ways of “getting out” of jury duty. It is not always easy to have to have to temporarily remove yourself from important work, or change your childcare arrangements etc. It is also sometimes very difficult to explain to an employer that you are needed for jury duty for days or even weeks. Another major concern can also be concern about loss of income. If your employer is not paying you or you are not employed, you are entitled to be paid a jury fee. Under the Fair Work Act, jury duty is recognised as a type of community service and employees must be paid make-up pay for the first 10 days of jury selection and jury duty for all other than casual employees. Make-up pay is the difference between any jury duty payment the employee receives (excluding any expense-related allowances) from the court and the employees base pay rate for the ordinary hours they would have worked. In NSW jurors who are unemployed are paid $104.75 per day. Payment that you receive for doing jury duty is considered taxable income and must be declared. If you think that performing jury duty will cause you financial burden, you can request to be excused from serving on a jury. Further, it is possible to be excused from jury duty if there are special circumstances which would prevent you serving. Have you served on a jury? We would like to hear what you thought about the experience. ©Rhonda Furner 02/11/2014
Posted on: Sun, 02 Nov 2014 13:01:02 +0000
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