The criminal jury and law reform 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 (2011)

“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 over- estimating 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 were.” Malcolm Knox, Secrets of the Jury Room (2005) Random House Australia, Image from Random House Australia A juror’s report card

Some proposals for change (Jury Directions Report) Improving communication –Updated orientation information –Statement of agreed facts, elements of offences and (if disclosed) defences –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 directed “Integrated directions” –Focus on the facts –Embed, rather than lecture on, the law Supplemented with written questions

From legal question paths… Queensland Supreme and District Court Benchbook, Ch 146.2, Manslaughter

… to “integrated directions” and factual question paths 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

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 statement 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

Some categories removed or narrowed, making the following people eligible: –Local government mayors and councillors –Lawyers, except those in: DPP 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 orders –JPs appointed to exercise judicial functions Occupational exclusions

Exclusion for three years after leaving the office or profession, instead of lifetime exclusion: –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 Occupational exclusions

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