The criminal jury and law reform

The criminal jury and law
Paula Rogers
Queensland Law Reform Commission
Paper presented at the AIJA Criminal Justice in Australia and
New Zealand: Issues and Challenges for Judicial Administration
Conference, Sydney, 8 September 2011
• A Review of Jury Directions, Report 66
(2009) vols 1 & 2
• A Review of Jury Selection, Report 68
A juror’s report card
“The system’s failures were in omission, not
commission. It had failed to equip us with a working
knowledge of the criminal trial process. It had failed to
give us a basic idea of the rules of evidence… It had
failed everyone by letting certain professions excuse
themselves automatically, by letting some clever dicks
excuse themselves with fancy reasons, … It failed to
encourage us to ask questions of the witnesses… It
failed to set out clearly the fundamental principles of
law in the case, and it failed to give us proper guidance
on how to deliberate. It failed us, generally and
paradoxically, by insulting our intelligence and overestimating our level of prior knowledge. It failed us by
not trusting us as adults. The system failed to provide
us with adequate physical comforts. Yet it never failed
to carry on the lip service about how important we
Malcolm Knox, Secrets of the Jury Room (2005)
Random House Australia, 306-7
Some proposals for change
(Jury Directions Report)
• Improving communication
– Updated orientation information
– Statement of agreed facts, elements of offences and (if disclosed)
– Defence opening statements
– Statutory power for judge to address jury at any time
– Statutory power to provide supplementary materials
• Improving directions
– Integrated summings-up and directions
– Juries trusted to handle prejudicial and unreliable evidence with
simplified directions
– Juries informed earlier of possibility of non-unanimous verdict
– Better explanations of ‘beyond reasonable doubt’
Some proposals for change
(Jury Selection Report)
• Enlarging the jury pool
Limited occupational exclusions
Narrower criminal history exclusions
Fewer exclusions based on personal attributes
Steps to increase Indigenous participation
Reasonable accommodations for people with physical
disability to serve
– Excusal guidelines
• Improving the conditions of jury service
– Deferral
– Advance notice of long trials
– Increased juror remuneration
Jury Directions
Guiding principle
• Right to a fair trial
“The critical role that juries have in the
justice system in Queensland to
ensure a fair trial”
– The Commission’s Terms of Reference
Integrated directions
• Changing the way in which jurors are
• “Integrated directions”
– Focus on the facts
– Embed, rather than lecture on, the law
• Supplemented with written questions
Queensland Supreme and District Court
Benchbook, Ch 146.2, Manslaughter
From legal
QLRC, Report 66, Vol 1, Ch 9
Sample restructure of question path in a
hypothetical homicide case in which provocation
is the only possible defence
… to
and factual
Sample question path continued
Developing a roadmap
for the jury
• Greater pre-trial disclosure and case management
• Jury informed as early as practicable of the real
issues in the trial
• Written statement of burden and standard of proof,
elements of offences, etc at the start of the trial
• Defendant (if represented) invited to give opening
• Greater use of supplementary materials throughout
the trial, including access to transcripts if appropriate
Jury Selection
Guiding principles
• Right to a fair trial
• Competence
• Independence
• Impartiality
• Representativeness
• Non-specialist composition
• Non-discrimination
Occupational exclusions
• Only those categories of people whose presence on
a jury would, or could be seen to, compromise:
– The independence of the jury from the executive, legislative
and judicial arms of government because of their special or
personal duties to the state; or
– The impartiality and non-specialist composition of the jury
because of their employment or engagement in law
enforcement, criminal investigation, the provision of legal
services in criminal cases, or the administration of criminal
justice or penal administration.
• No permanent exclusion
Occupational exclusions
• Some categories removed or
narrowed, making the following people
– Local government mayors and councillors
– Lawyers, except those in:
Legal Aid
Crown Law
criminal practice
Occupational exclusions
• Several possible categories of new
exclusion rejected, with the following
people remaining eligible:
– Spouses of excluded people
– Local government CEOs
– Directors-General and employees of
government departments
– Employees of the parliamentary service
– Household and other staff of the Governor
Occupational exclusions
• Some categories retained, with the
following people being ineligible:
– Governor
– Members of Parliament
– Judges and magistrates
– Police officers
– Detention centre employees
– Corrective services officers
Occupational exclusions
• Some new categories introduced,
making the following people ineligible:
– Acting judges and magistrates
– Members and officers of courts of record
– Commissioners and officers of the CMC
– Members of a Parole Board
– Supervisors of non-custodial youth justice
– JPs appointed to exercise judicial
Occupational exclusions
• Exclusion for three years after leaving the
office or profession, instead of lifetime
Members and officers of courts of record
Excluded lawyers
Police officers
Detention centre employees
Corrective services officers
Supervisors of non-custodial youth justice orders
Commissioners and officers of the CMC
JPs appointed to exercise judicial functions
Enlarging the jury pool
• No automatic exclusion of people 70
years or older
• No automatic exclusion of people with
physical disability
– Reasonable accommodations to enable
people to serve wherever possible
• Provision for deferral of jury service
The Commission’s Reports are
available on its website