Making Juries More Representative

The maximum penalty for failing to answer a jury summons will be raised from the current maximum penalty of a $300 fine to a $1,000 fine. The current maximum fine is insufficient to deter some persons from refusing to serve. However Cabinet has rejected the Law Commission proposal of a maximum penalty including 7 days imprisonment.

Jurors will be allowed to defer jury service to a date not more than 12 months in the future, so that excusal from jury service can be provided much more sparingly. This is related to the proposals discussed below in relation to employment, to provide greater flexibility for employers and employees to plan for absences from work to undertake jury service.

At present, jury districts include all places within 30 kilometres by the most practicable route from the courthouse in the town in which jury trials may be held. The applicable distance has been adjusted at regular intervals over the years but has been at its current level since 1976. Those living outside jury districts can never be called for jury service. This reduces the representativeness of juries and imposes an additional burden on those who live within the districts. Jury boundaries will be extended from 30 to 45 kilometres.

Note: the Minister last year also legislated to lift the restriction on persons aged 65 years and over from serving on juries, though citizens over this age can opt out if they choose.

Discharging Jurors

The present provisions governing the discharge of jurors appear in a number of different statutory provisions, which are overlapping but apply rather different legal tests. Sections 22 Juries Act 1981, 374 Crimes Act 1961 and 54B Judicature Act 1908 will be repealed and replaced with a single discharge provision.

The Minister proposes that the single provision should be a new section 22 of the Juries Act 1981, modelled on section 644(1) of the Canadian Criminal Code, which should include the following elements:

• Confirm the defendant's right to be present for all applications to discharge a juror.

• Allow the discharge of one juror or the whole jury.

• Include the power to empanel a replacement juror before the case opens, and to elect a new foreman if the foreman is discharged, and

• Allow the judge, when considering whether to discharge a juror, to conduct a hearing, and consider such evidence, as he or she thinks fit.

Challenges

In New Zealand, prosecution and defence have the right to six peremptory challenges of balloted jurors (that is, challenges without the need to give a reason). These procedures are valuable because they allow the defence to eliminate persons who are perceived, rightly or wrongly, to be potentially prejudiced against the defence, and thus reduces the potential for feelings of injustice upon conviction; they allow the prosecutor to eliminate, speedily and without fuss, people who might have bias or prejudice; and they allow both sides to eliminate obvious "misfits" from the jury.

Challenges for cause are an inefficient and cumbersome means of achieving this. However, research by the Department of Justice (Trial by Peers, 1995) indicated that peremptory challenges are actually used by both prosecution and defence counsel as an attempt to construct a jury, which they believe, will be favourable to their cause. As very little information about potential jurors is available to counsel, such challenges tend to be based on stereotypes on the basis of the person's appearance, age, ethnicity, occupation and residence and the overall effect is to reduce the representativeness of the jury.

Six peremptory challenges for each side is more than is necessary for the stated purpose and allows counsel too great an opportunity to use challenges in an inappropriate way. It is proposed that the number be reduced to four.

Presentation of Evidence

The normal structure of a criminal trial is for the prosecution to present its evidence followed by the defence, as required by section 367 of the Crimes Act 1961. Expert witnesses are called by both parties and the fact that they may give evidence days or even weeks apart can make it difficult for a jury to be clear about the actual points of difference. This section will be amended to make provision for the Court to allow expert witnesses from both the prosecution and defence to be called in sequence to assist the jury's comprehension of the issues in dispute. In fact, some judges have allowed this on occasion under their inherent jurisdiction to manage the conduct of a trial. It is considered more desirable, however, that the statute be amended to make it clear that the Court has this discretion.

Jury deliberation

The current practice is for juries to be "sequestered" once they begin deliberation. This means that where they have not reached a verdict by late evening, jury members are checked into a hotel and are not permitted to make telephone calls or have access to television or newspapers. The intention is to ensure that they are not subject to any outside influence in reaching a verdict. Routine sequestration of juries is no longer provided in most comparable overseas jurisdictions. This practice involves a significant imposition on juries, especially those with family responsibilities, and can create inappropriate pressure on jurors to reach a verdict prematurely.

• The practice of routine sequestration during deliberation will end, but the Court will retain the discretion to sequester during deliberation if in the circumstances of the case it is appropriate. A provision similar to section 13 Juries Act 1974 (UK) will be included in our Juries Act 1981 to effect this.

• Judges will be able to sequester juries prior to deliberation but this should only occur in exceptional circumstances.

Majority Verdicts

1. • Majority verdicts of 11:1 will be introduced and available for both acquittals and convictions in all cases, including murder.

   • Juries will be required to deliberate for at least four hours before being permitted to return a majority verdict.

2. There are valid arguments both in favour of and against the use of majority verdicts. The arguments in favour of retaining unanimous verdicts are:
   • They underpin the burden and standard of proof in criminal trials because they reflect a central principle of criminal law: that a defendant should be given the benefit of any reasonable doubt. They also increase the likelihood that guilty verdicts will be accurate.

   • They encourage careful discussion and increase the likelihood of each juror participating and being listened to.

   • They ensure that the representative character of the jury is implicit in the verdict, minimising any risk of bias.

   • They increase community confidence in the verdict and in the criminal justice system.

3. The arguments in favour of adopting majority verdicts are:
   • The unanimity requirement provides an incentive to intimidate, corrupt or otherwise improperly persuade jurors. This was the basis for the introduction of majority verdicts (which in England are defined as requiring a 10:2 majority) in England in 1967 although there is not yet evidence that a significant problem of "jury nobbling" or juror intimidation exists in New Zealand.

   • Unanimity is often the result of attrition ? the wearing down of minority jurors by exhaustion. Majority verdicts allow dissenting jurors to maintain their positions rather than being forced into a verdict which is at odds with their conscience.

   • The unanimity rule increases personal and financial costs and emotional strain on defendants, complainants and witnesses alike.

   • Majority verdicts, especially if they are confined to 11:1, are desirable to avoid the occasional hung juries that result from an irrational or "rogue" juror who refuses to participate in the deliberation and bases his or her view on overt prejudice or sympathy.

In the period from June 1999 to October 2000 the rate of hung juries in the High Court has ranged from 10.9% (August 2000) to 13.1% (October 2000) and in the District Court from 6.8% (June 2000) to 8.1 % (June 1999). This figure is approximately double the normal level of hung juries at the start of the decade.

While the Law Commission recommends that the jury should not disclose whether its verdict is unanimous or by a majority, the Minister has reservations about the workability of this approach. In many cases where majority verdicts are reached, the likelihood that this is the case will be evident to participants in and observers of the trial. The fact that it is not made public will simply lead to speculation. The Minister therefore proposes that the nature of the verdict should be communicated to the judge when it is delivered.

Secrecy of Jury Deliberations and the Role of the Media

At present the rules regarding the publication of information about a trial, including material resulting from jurors, are governed by the common law on contempt of court. The recommendation of the Commission, which is supported by the Minister, is that it should be a statutory offence to publish material that may lead to the identification of any juror, punishable by both the High Court and District Court.

Minimizing the Adverse Impact of Being a Juror

The research showed that jurors sometimes confront employment difficulties and fear that their position as an employee will be prejudiced by their absence. Often, too, they are required to keep up with work in their workplace while serving as a juror. It will become an offence for an employer to terminate or threaten to terminate a person's employment or otherwise prejudice an employee's position because the employee is, was or will be absent because of jury service. Prejudicing a person's employment refers to situations such as withholding privileges or benefits. It is not intended to create entitlement to paid leave for jury service; the only obligation on the employer will be to allow the employee to have time off work for this purpose. A similar provision to that proposed came into effect in Victoria at the beginning of this year. The creation of this offence will require an amendment to the Juries Act 1981.

Summary of legislative changes

1. Other than in respect to serious offences such as murder, sexual violation and serious violent offences, allow the court, on application by the Crown, to order trial by judge alone where the accused has elected jury trial, where the court:
   • Is satisfied that, having made all reasonable procedural orders to facilitate the shortening of the trial it is probable that it will exceed 20 sitting days; and

   • Is satisfied that the circumstances of the case mean that the imposition on potential jurors of sitting during the predicted duration of the trial outweighs the entitlement of an accused to a jury trial.

   • In considering the circumstances of the case, has considered the complexity of the legal issues, the number and nature of the charges, the nature of the offence, and the volume of evidence.

2. Increase the maximum penalty for failing to answer a jury summons from $300 to $1000.

3. Provide for jurors to defer jury service for a period of no more than 12 months.

4. Increase the pool of potential jurors by extending jury district boundaries from 30 to 45 kilometres.

5. Consolidate the provisions relating to the discharge of jurors into a single section of the Juries Act 1981.

6. Reduce the number of peremptory challenges available to prosecution and defence counsel in criminal trials from six to four each.

7. Make statutory provision for the court to allow expert witnesses for the prosecution and defence to be heard in sequence to assist the jury's understanding of the issues in dispute.

8. Abolish routine sequestration of juries during deliberations.
9. Introduce 11:1 majority verdicts.

10. Make it an offence to publish material that may lead to the identification of any juror.

11. Make it an offence for an employer to terminate or threaten to terminate the employment of any employee, or otherwise prejudice an employee's position, because of the employee's absence for jury service.