Jury Selection for Criminal Proceedings in NSW

Juries are an important element in criminal procedures within countries that operate under the adversarial system, such as Australia. The essence of its fairness stems from the nature of its random selection. However, it can be problematic to attain a well-balanced representation of society within the twelve jurors as required, particularly if there is bias within the selection.

Background to Jury Selection

As outlined in a previous TimeBase Article, juries are generally called upon in indictable criminal offences to decide the facts of the case based on presented evidence.  Juries are randomly selected as governed in the Jury Act 1977 (NSW) s 12 (Jury Act) and other corresponding interstate Acts. Notable exceptions include:

• minors;
• employees in public office;
• convicted criminals (particularly involving terrorism, sexual offences, awaiting trial or bound by a criminal order interstate);
• members of the clergy;
• medical practitioners;
• and disabled or infirm potential jurors. 

The potential jurors are chosen from the jury roll, which includes the register of people who are eligible to be jurors. Those who attend form part of the jury panel, in which the actual jury is selected by the court. Potential jurors are also subject to peremptory challenges (rejection) by the prosecutor and defence without giving reason. This shows that the procedure is not as simple as random selection, particularly when the court and counsels have the power to decide who will constitute the jury. 

Ethnic Bias in Jury Selection

One of the main questions to the legitimacy of the jury is the issue of impartiality and true representativeness. Profession Mark Israel, in his journal paper, highlights the issue of ethnic bias in jury selection – for instance, the overrepresentation of Indigenous people as defendants as opposed to their minor involvement as jurors would have a “particularly acute impact” on decision-making.

Since ethnic minorities have no legal right to be tried by juries consisting entirely or even a part of their ethnic group, despite the presumption that a defendant will be tried by a jury of their peers, this issue is often overlooked by the courts. This is a considerable issue where the prosecution can challenge potential ethnic jurors if the defendant is of the same ethnicity. In a 2007 review, the New South Wales Law Reform Commission (NSWLRC) criticised the peremptory challenges as an:

Widening the Jury Selection Process

There has been some progress in widening the jury selection process in different States. In 2014, a deaf woman from Western Australia became the first deaf person in Australia to form part of the jury, with the support of an Auslan interpreter. Although disabled jurors are an exception from the selection process, deaf people are not explicitly excluded as mentally incapable of taking part in criminal proceedings.

The NSWLRC has previously issued a report in 2006 about reforming the Jury Act to allow deaf people to serve as jurors with the aid of interpreters. Albeit not addressing all the issues in jury bias, this is a step towards a better representation of society in juries which will consequently increase confidence in the criminal justice system. 

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products.

"Ethnic Bias in Jury Selection in Australia and New Zealand" (Professor Mark Israel)

NSW Law Reform Commission, "Jury Selection" Report No 117

NSW Law Reform Commission, "Blind or Deaf Jurors" Report No 114

"First Deaf Person to Take Part in Jury Process", Deaf Australia Inc.