Jury Trials in Australia and a Defendant's Rights

Tuesday 15 July 2014 @ 12.42 p.m. | Legal Research

At the beginning of June 2014, in the USA, the lawyers for two defendants mounted the argument that their clients were entitled to a new trial due to courthouse security officers turning away a number of prospective jurors for failing to meet the dress code.

Which raises the question - Does this violate a defendant's rights? And what is the law regarding juries in Australia?

The Jury System in Australia

The Australian Constitution provides that:

"80. 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."

The first trials by civilian juries of 12 in the colony of New South Wales were held in 1824, following a decision of the NSW Supreme Court on 14 October 1824. The NSW Constitution Act of 1828 effectively terminated trial by jury for criminal matters. Jury trials for criminal matters revived with the passing of the Jury Trials Amending Act of 1833 (NSW) (2 William IV No 12).

The Function of a Jury

The function of the jury is to weigh up the evidence and to decide what the true facts of the case are or what actually happened. The judge gives the direction to the jury on the relevant law, which the jury has to apply to the facts of the case in order to reach a verdict. If it is a criminal case and the jury has given a verdict of guilty, then the judge will decide on appropriate sentence. In civil cases, the jury's function is to decide on how much money should be awarded in damages.

Selecting a Jury in NSW

Jurors are randomly selected from the electoral role in accordance with the provisions of Part 2 of the Jury Act 1977 (NSW). The process of selecting a jury is known as empanelling. 

There are three types of people who are prevented from being empanelled:

  1. Excluded people - which includes those people who are excluded due to a public office or occupation (in accordance with Schedule 1 of the Jury Act 1977 (NSW));
  2. Excluded people due to current or past criminal offences especially involving terrorism, sexual offences, awaiting trial or bound by another criminal order in NSW; and
  3. People who are exempt from jury service under Schedule 2 of the Jury Act 1977 (NSW) including clergy, medical practitioners and disabled or infirm potential jurors.

Challenging a Juror in NSW

In NSW, two types of challenges may be made to a juror in both criminal and civil proceedings:

  • Each side is entitled to peremptory challenges (or challenges without reasons) - 3 in a criminal trial (s 42 - Jury Act 1977 (NSW)) and half the number of jurors required to constitute the jury for trial for civil proceedings (s42A - Jury Act 1977 (NSW)); and
  •  Unlimited Challenges for Cause (ss 43 and 44 of the Jury Act 1977 (NSW)) however these must have factual foundation for making the challenge including but not limited to grounds that the person is not qualified and liable to serve, is disqualified or ineligible or is not impartial.

Defendant's Rights in a Jury Trial

Whether the defendant's right to a fair trial may be violated in Australia by a dress code is highly unlikely, however the main objection to the challenges in a jury trial is that it negates the defendant's right to an impartial, fair trial with correct procedure and natural justice.

However, this has been partially combated with the equal number of challenges given to each side which are peremptory and the right to challenge based on cause where jurors may be biased towards the defendant for a factual reason.

The ultimate power in an Australian trial also resides with the judge, who may dismiss an entire jury if the composition of that jury, after exercise of the peremptory challenges, according to the opinion of the judge, has resulted in a jury whose composition is such that the trial might be or might appear to be unfair (s47A of the Jury Act 1977 ( NSW)).

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