REFORMING QUEENSLAND’S JURY SYSTEM: THE JURY BILL 1995 · Reform of the Jury System in Queensland, August 1993, p.4. The Jury Bill 1995 Page 5 The Queensland Litigation Reform Commission

ELECTRONIC VERSION

REFORMING QUEENSLAND’S JURY SYSTEM:THE JURY BILL 1995

LEGISLATION BULLETIN NO 2/95

KAREN SAMPFORD

QUEENSLAND PARLIAMENTARY LIBRARYPublications and Resources Section

BRISBANEOctober 1995

ISSN 1324-860XISBN 0 7242 6579 1

This Legislation Bulletin was prepared to assist Members in their consideration of theBill in the Queensland Legislative Assembly. It should not be considered as a completeguide to the legislation and does not constitute legal advice.

The Bulletin reflects the legislation as introduced. The Queensland LegislationAnnotations, prepared by the Office of the Queensland Parliamentary Counsel, or theBills Update, produced by the Table Office of the Queensland Parliament, should beconsulted to determine whether the Bill has been enacted and if so, whether thelegislation as enacted reflects amendments in Committee. Readers are also directed tothe relevant Alert Digest of the Scrutiny of Legislation Committee of the QueenslandParliament.

© Queensland Parliamentary Library, 1995

Copyright protects this publication. Except for purposes permitted by the CopyrightAct 1968, reproduction by whatever means is prohibited, other than by Members ofthe Queensland Parliament in the course of their official duties, without the priorwritten permission of the Parliamentary Librarian, Queensland Parliamentary Library.

Inquiries should be addressed to: Director, Research Publications & Resources,Queensland Parliamentary Library, Parliament House, George Street, Brisbane.Director: Ms Mary Seefried. (Tel: 3406 7116)

Information about Research Publications can be found on the Internet at:

http://www.parliament.qld.gov.au/library/research/index.html

CONTENTS

1. INTRODUCTION ........................................................................................... 1

2. PURPOSE........................................................................................................ 2

3. BACKGROUND.............................................................................................. 2

4. MAIN PROVISIONS OF THE BILL............................................................. 3

4.1 MORE REPRESENTATIVE JURIES ..................................................................... 3

4.2 PUBLICATION OF THE JURY LIST AND JURY VETTING ....................................... 7

4.3 PEREMPTORY CHALLENGES ......................................................................... 10

4.4 SPECIAL PROCEDURE FOR CHALLENGE FOR CAUSE........................................ 11

4.5 JUDGE'S DISCRETION TO DISCHARGE ENTIRE JURY ........................................ 12

4.6 UNANIMOUS VERDICTS IN CRIMINAL CASES ................................................. 13

4.6.1 Arguments for and against unanimity .................................................... 14

4.7 CONFIDENTIALITY OF JURY DELIBERATIONS ................................................. 17

4.7.1 The Common Law Position .................................................................. 17

4.7.2 Exceptions to the Prohibitions on Disclosure ........................................ 18

4.7.3 A Comparative Survey.......................................................................... 19

4.7.4 Arguments for and against jury secrecy................................................. 21

REFERENCES .................................................................................................. 26

The Jury Bill 1995 Page 1

DATE OF INTRODUCTION: 14 September 1995

PORTFOLIO: Justice and Attorney-General,Industrial Relations and the Arts

COMMENCEMENT: Upon proclamation

1. INTRODUCTION

An earlier version of this Bill (with the same title) was introduced into theQueensland Legislative Assembly on 9 June 1995 by the then Attorney-General, theHonourable Dean Wells MLA. That Bill lapsed when Parliament was dissolved on20 June 1995.

The current Bill is largely identical to the Bill introduced to the 47th Parliament,with an important exception in relation to the provisions concerning theconfidentiality of jury deliberations. The Jury Bill introduced to the 47th Parliamentprohibited the disclosure of confidential information about jury deliberationswhether or not the information was to be made public. Under the current Bill, thishas been changed. The publication to the public, by jurors or other persons, ofinformation about jury deliberations is prohibited. However, jurors or former jurorswill be able to disclose details of jury deliberations provided they do not have

Page 2 The Jury Bill 1995

grounds for believing that the information is likely to be, or will be, published to thepublic.1

2. PURPOSE

Statutory provisions governing juries were first enacted in Queensland in the formof the Jury Act of 1867. This Act was twice amended before being repealed by theexisting Jury Act 1929, which constitutes the major piece of Queensland legislationrelating to juries and their composition in Queensland.

The purpose of the Jury Bill 1995 (Qld) is to simplify and reform Queensland's jurysystem. The Bill repeals and replaces the existing Jury Act 1929 (Qld) in its entirety(Clause 75 and Schedule 1), and amends the District Courts Act 1967 (Qld) byrepealing the provisions about juries which are contained in Part 3 of that Act(Clause 76 and Schedule 2). Queensland's Oaths Act 1867 is also significantlyamended by providing that the oath to be taken by jurors includes a requirement thatthey keep their deliberations secret (Clause 76 and Schedule 2).

Provisions about juries in criminal trials which were contained in Queensland's oldCriminal Code were repealed by the new Criminal Code of 1995, but have not yetbeen proclaimed, and the redrafted provisions have been placed in the Jury Bill.When the Jury Bill introduced to the 47th Parliament reached its Second Readingstage, it was explained that, because the new Criminal Code and the proposed newlegislation relating to juries are complementary, it is intended that the new Jury Actand the Criminal Code 1995 will come into force on the same date.2

3. BACKGROUND

The concept of trial by jury has long been a subject of discussion3, althoughinformed debate has often been hindered by the limited amount of research about

1 Under both the Jury Bill introduced to the 47th Parliament, and the current Jury Bill, thegeneral prohibitions described above are to be read subject to particular exceptions. Forexample, under Clauses 70(9) & (10) of the current Bill, the results of research based oninterviews with jurors may be published where this is authorised by the Supreme Court.Under Clause 70(8), a juror may disclose details about jury deliberations to the Attorney-General or the Director of Public Prosecutions if he suspects another juror of bias.

2 Jury Bill 1995 (Qld), as introduced to the 47th Parliament, Second Reading Speech, Hon.D.M. Wells MLA, Queensland Parliamentary Debates, 9 June 1995, p.12350.

3 For example, the operation of the jury has been examined in reports by law reform bodiesincluding the New South Wales Law Reform Commission's Report, The Jury in a CriminalTrial (NSWLRC 48, March 1986), the Report of the Commonwealth Law Reform


juries which has actually been conducted.4 Various aspects of jury trial which havereceived particular attention from jurists and the wider public include the conventionthat jurors' deliberations remain secret and the common law requirement that theverdict of the jury be unanimous.

In Queensland, these and other aspects of the operation of the Jury Act 1929 havebeen discussed in a number of recent reports, including the Nolan CommitteeReport in January 1992 and the Queensland Litigation Reform Commission's Reporton Reform of the Jury System in Queensland, published in 1993. Specificallegations of jury vetting in the empanelling of jurors in the trials of prominentbusinessman George Herscu and former Queensland Premier Sir Johannes Bjelke-Petersen were investigated by the Criminal Justice Commission. Recommendationsmade by Mr W. J. Carter QC, who prepared the report on the selection of the juryin the Bjelke-Petersen trial, have been incorporated into the Jury Bill 1995 for thepurpose of overcoming abuses associated with the practice of jury vetting.5

This Legislation Bulletin discusses a number of major provisions contained in theQueensland Jury Bill 1995. Arguments for and against various of the provisionscontained in the Bill, such as the proposal that Queensland jurors be required to takean oath not to disclose details of their deliberations (except in prescribedcircumstances), or the proposal that unanimous verdicts in criminal trials beretained, are outlined. Key points are compared with the legislative provisionsenacted in other Australian states and territories, and by overseas jurisdictions,where appropriate.

4. MAIN PROVISIONS OF THE BILL

4.1 MORE REPRESENTATIVE JURIES

The Jury Act 1929 establishes two categories of disqualification and exemptionfrom jury duty.

Commission on Contempt (ALRC 35, June 1987), the Queensland Law Reform Commission'sReport on a Bill to Amend and Reform the Jury Act, the Justices Act and the Criminal CodeInsofar as Those Acts Relate to Committal Proceedings and Trial by Jury in Criminal Courts(QLRC 35, October 1985) and the Queensland Litigation Reform Commission's Report,Reform of the Jury System in Queensland (August 1993).

4 Enid Campbell, 'The Secret Chamber of the Law: Some Comments on Civil Jury Trial',Australian Law Journal, vol.36, 27 September 1962, pp.119-127, p.119.

5 Jury Bill 1995 (Qld), Second Reading Speech, Hon. M. J. Foley MLA, QueenslandParliamentary Debates, 14 September 1995, p.210.


Section 7 contains a number of disqualifications from jury service, including theexpected disqualification relating to previous convictions but also the more arcanedisqualification of anyone "of bad fame or repute" ( s.7(1)(e)).

Section 8 provides for a long list of exemptions from jury service. The list includesMembers of Parliament, officers of parliament, local government members, lawyers,ministers of religion, doctors, nurses, pharmacists, physiotherapists, universitylecturers, school teachers, defence personnel, aircraft pilots and others. As well,under Section 8(3), any woman (irrespective of age) or any man aged between 65and 70 may opt out of jury service by informing the sheriff that they wish to beexempted. (Under Section 6(1), persons aged 70 years or over are not qualified toserve as jurors.)

The 1992 Nolan Report and the 1993 Report of the Queensland Litigation ReformCommission on Reform of the Jury System in Queensland both recommendedsubstantial reduction in the statutory exemptions from jury service and that thepresent two categories of disqualified and exempt persons be changed so that therebe only one category - persons automatically exempt from jury service. The reasonsput forward for widening the range of people eligible for jury service are that "jurieswill become more representative of the wider community" and "the onus of juryservice [is spread] more fairly across the community".6

In accordance with the thrust of these recommendations:• there is only one provision of the Jury Bill (Clause 4(3)) under which there is a list

of persons who are not eligible to serve as jurors, and

• the number of classes of persons who are not eligible for jury service is far fewerthan the number of classes of persons who are currently either disqualified or exemptunder Sections 7 and 8 of the Jury Act 1929.

However, the classes of persons listed as ineligible for jury service under Clause 4 ofthe Jury Bill are not the same in all respects as those recommended by theQueensland Litigation Reform Commission. For example, the Litigation ReformCommission recommended that members of the legal profession who have beenadmitted to practice and are actually practising should be exempt from jury duty.However, this group is not included in the list of persons ineligible for jury dutyunder Clause 4. Another example relates to persons who are or have beencorrectional officers. Under the current Jury Act (Section 8(1)(k)), and underClause 4(3)(e) of the Jury Bill, correctional officers are ineligible for jury service.However, this group was not included in the list of classes of persons which theLitigation Reform Commission recommended should remain automatically exempt.

6 Queensland. Litigation Reform Commission, Report of the Criminal Procedure Division,Reform of the Jury System in Queensland, August 1993, p.4.


The Queensland Litigation Reform Commission also recommended that personsaged 70 years or over should be automatically exempt from jury service. However,the Jury Bill does not appear to contain any upper age limit on jury service.

There is an additional complication. The Jury Exemptions Act 1965 (Cth) providesfor a large number of Commonwealth employees to be exempt from jury service.


The Litigation Reform Commission recommended in its August 1993 Report that"the Attorney-General should make submissions to the Standing Committee ofAttorneys-General seeking the removal of this anomaly".7

Excusals

In its Report, the Queensland Litigation Reform Commission acknowledged that thesystem of exemption it proposed would mean that certain persons for whom juryservice might cause hardship would nonetheless be eligible for jury service. TheCommission suggested:

Many medical professionals, teachers, pregnant women, carers of children, agedand infirm persons and providers of emergency services, for example, shouldobtain excusal, not because they are members of a particular class, but because intheir individual cases jury service would create undue hardship or inconvenience.8

Accordingly, the Litigation Reform Commission recommended that excusals fromjury service should be available, in accordance with specified guidelines.

The Jury Bill 1995 provides for a sheriff or a judge to excuse persons from juryservice (Clause 5). Clause 19 allows a sheriff to excuse a person on application bythat person, either permanently or for a particular jury service period. Clause 20provides for a judge to excuse a person from jury service either on the judge's owninitiative or at the request of a member of the jury panel. A judge may excuse aperson from jury service either permanently or for a particular period. However,when deciding whether to excuse a person, the sheriff or judge must have regard tocriteria as prescribed.

Clause 21(1) lists the criteria to be considered by the sheriff or judge in decidingwhether to excuse a person or not. The criteria cover circumstances where juryservice could bring about severe personal or financial hardship to the person seekingto be excused, or substantial inconvenience to the public, or where a person's stateof health or their being a carer would affect their ability to serve on a jury. Clause21 basically incorporates the guidelines proposed by the Litigation ReformCommission. However, in addition, by Clause 21(1)(f), an open-ended category iscreated whereby the sheriff or a judge are required to have regard to any othermatter stated in a direction issued by the senior judge administrator under Clause 13of the Bill.

7 Queensland. LRC, August 1993, p.5.



4.2 PUBLICATION OF THE JURY LIST AND JURY VETTING

Section 23(2) of the Jury Act 1929 provides that the panel of jurors to besummoned is to be conspicuously published in the courthouse five days before thecommencement of the sittings of the court. The purpose of this section is to give anaccused person and their legal representatives the opportunity to identify thepersons whom the accused may want to accept or reject for jury service, throughthe exercise of their statutory right of challenge.

However, the availability of the names, addresses and occupations of prospectivejurors some days prior to trial has raised concerns about the pre-trial vetting ofjurors, most notably in the trials of George Herscu and Sir Johannes Bjelke-Petersen.

For example, in November 1990, the Criminal Justice Commission was advised thatmembers of the jury panel in the trial of George Herscu had received telephone callsbetween 10 and 12 November 1990, asking them about their political affiliations andfor which party they would vote if a "snap" election was to be held. The jury panelwas subsequently discharged after jurors reported the phone polling to the trialjudge. An investigation by the Criminal Justice Commission into the allegationsconcluded that the pre-trial polling had taken place and was designed to determineprospective jurors' political inclinations.9 During the course of public hearings heldduring December 1990 and January 1991, the Commission also received evidencethat jurors on a number of panels for District Court criminal trials in Brisbane hadbeen approached.10

In the case of former Premier Sir Johannes Bjelke-Petersen, a special panel wasassembled to service the jury requirements for the trials of two accused persons,Bjelke-Petersen and Yorke. Fixed dates were allotted for the trials. In accordancewith the statutory provisions, details of the panel were published on 11 September1991, five days before the first day of the court sittings on 16 September, the datefor which Yorke's trial was scheduled. Because the date fixed for the Bjelke-Petersen trial was 23 September 1991, Bjelke-Petersen and his counsel had 12 daysto peruse the jury panel list, a situation Carter QC later described as "farcical".11

9 Queensland. Criminal Justice Commission, Report by the Honourable W.J. Carter QC on hisInquiry into the Selection of the Jury for the Trial of Sir Johannes Bjelke-Petersen, August1993, p.478.

10 Queensland. Criminal Justice Commission, The Jury System in Criminal Trials inQueensland: An Issues Paper, March 1991, p.1.

11 Queensland. CJC, August 1993, p.481.


Upon application by counsel for the defence, on the ground that pre-trial polling ofprospective jurors might have prejudiced prospective jurors against his client, theoriginal jury panel for the Bjelke-Petersen trial was discharged. Although theCriminal Justice Commission's report of the inquiry conducted by the HonourableWilliam Carter QC into the selection of the jury for the trial of Sir Johannes Bjelke-Petersen concluded that pre-trial polling had not in fact occurred, counsel'sgenuinely held belief that it had led to the discharge of the panel and disrupted courtproceedings.12

As the example of the Bjelke-Petersen trial shows, the provisions of Section 23(2)of the Jury Act 1929 operate unevenly between accused for whom the same panel isused at different times during a sittings. The availability of jury lists may alsooperate unevenly between those for whom a fixed trial date is given and for whom aspecial panel is assembled, and other accused persons, as Carter QC explained:

Inquiries have been made of several competent and experienced criminal lawpractitioners and they have unanimously stated their experience to be that it isimpossible in the usual course to obtain a copy of the jury list from the Sheriff'sOffice prior to late in the afternoon of the day immediately prior to thecommencement of the trial. The reason for this is that a court official in theSheriff's Office will determine for the first time only late in the afternoon prior tothe trial how many and which of the available panels will be summonsed for thenext morning.

The result in such cases is, therefore, that the apparent purpose of section 23(2)of the Jury Act is rendered nugatory. Lip service is paid to the statutory provisionby sticking up in the registry the various panels called for the sittings five daysprior to the first date of the sittings. But that is a meaningless exercise for thosecharged with the responsibility of defending clients in trials during the course ofthe sittings for the obvious reason that the particular jury for the particular trialis not determined until late in the afternoon of the day immediately preceding thetrial, unless of course a special panel has been formed for a particular trial ortrials, as happened for the trials of Yorke and Sir Johannes Bjelke-Petersen.13

Clauses 29 to 31 of the Jury Bill seek to address the problem areas identified above.

Clause 31 is designed to abolish interference with juries of the kind found to haveoccurred in the lead-up to the Herscu trial. To this end, it provides that questionsmust not be asked of, or about, persons summoned for jury service to ascertain theirreaction to issues in a case. Questioning of this kind is permitted where it is




authorised or required under some other provision of the Bill,14 or where a judgeauthorises it under Clauses 31(1) and (3).

Clauses 29 to 30 are directed towards overcoming the excesses inherent in juryvetting described by Carter QC as "...likely to be more excessive, the longer thetime made available to facilitate the process."15 The thrust of these provisions isoutlined below.

• In accordance with the recommendations made by Carter QC at page 483 ofhis report, the current requirement in the Jury Act 1929 whereby the jurylists must be displayed in a public place is omitted from the Jury Bill 1995.

• As proposed by Carter QC at page 483 of his report, limited access to thejury list is allowed for a limited time only before the trial commences.Clause 29(2) provides that, upon request, the sheriff must:− give the party to a trial or his representative a copy of the list of persons who

have been summoned for jury service, and

− advise them which of the persons have been instructed to attend on the daythe jury for the party's trial is to be chosen.

• The list cannot be obtained earlier than 4 p.m. on the working dayimmediately prior to the day the jury for the trial is to be selected: Clause29(3).

Other provisions give effect to Carter QC's recommendations at pages 483-484 ofhis report that limitations be placed upon the circulation of lists, that theirreproduction be prohibited, and that provision be made for their return anddestruction. These recommendations were formulated "... to cope with the abuseswhich attend the unlimited and undisciplined reproduction and distribution of jurylists during the currency of any sittings."16 The thrust of the provisions givingeffect to the above recommendations is outlined below. Anyone who has received acopy of the list must return it to the sheriff as soon as practicable after the trial juryhas been selected: Clause 29(4). The sheriff must destroy copies of the list returnedto the sheriff: Clause 29(5). A person who receives a copy of the list of personssummoned for jury service is prohibited from reproducing it, or giving it to anyoneother than a party to the trial or the party's accredited representative: Clause30(1)(a) and (b).

14 For example, in accordance with Clause 47 of the Jury Bill 1995, persons selected as jurorsmay be questioned by the judge in the final stages of the jury selection process to determinewhether they are impartial in cases where the accused has received substantial pre-trialpublicity.




4.3 PEREMPTORY CHALLENGES

A challenge occurs when a party to a case objects to a juror. Where a peremptorychallenge is made, it is not necessary for the party objecting to a juror to givereasons. A challenge for cause is made when the party who objects to a juror isrequired to state their reasons.17

In Queensland, the accused may challenge, and the Crown may stand by, anymember of the jury panel without restriction on the first round of the jury selectionprocess.18

Where a jury is not sworn on the first round, a numerical constraint is imposed onthe number of peremptory challenges that may be made on the second round of theselection process. For example, by virtue of Section 35(3) of the Jury Act 1929, aperson accused of murder is entitled to 14 peremptory challenges. A personaccused of any other crime or misdemeanour is entitled to eight peremptorychallenges: Section 35 (3AA). The Crown may stand by a like number ofprospective jurors: Section 32(1A).

The unlimited right of challenge on the first run through of the jury panel is uniqueto Queensland.19 According to Carter QC, in his report on the use of the practice inthe selection of the jury for the trial of Sir Johannes Bjelke-Petersen:

... the unlimited right to challenge during 'the first round' of the process hasbecome more of a forensic tactic rather than the exercise of a legitimate right inthe accused to exclude someone whom it is thought might act unfairly.

It is difficult, in my view, to support retention of the practice of permitting anunlimited challenge during 'the first round'.20

In its 1993 Report, Reform of the Jury System in Queensland, the QueenslandLitigation Reform Commission stated:

In our view an unlimited first round serves no purpose in furthering the interestsof justice. We are firmly of the view that the 'dummy run' should be abolished.21

17 S.E. Marantelli, The Australian Legal Dictionary, Hargreen, West Melbourne, 1980, p.41.

18 Section 32(1) of the Jury Act 1929 (Qld). See also J.M. Herlihy and R.G. Kenny, AnIntroduction to Criminal Law in Queensland and Western Australia, 3rd edn, Butterworths,Sydney, 1990, p.51. But note that the Queensland Litigation Reform Commission at p.23 ofits 1993 Report on Reform of the Jury System in Queensland expressed doubt as to whetherthe legislative provisions in the Jury Act and the old Criminal Code really necessitated thispractice.

19 Queensland. CJC, March 1991, p.18.



Despite the reservations expressed above, the practice of allowing an unlimitedchallenge during the first round of the jury selection process did not appear to havebeen abolished under the Jury Bill introduced to the 47th Parliament (judging fromthe Second Reading Speech by the then Attorney-General).22 It is not entirely clearwhether the "dummy run" is to be retained under the current Jury Bill, but accordingto the Department of Justice and Attorney-General, an amendment may be moved atthe Committee stage to clarify the status of the "dummy run".

In relation to the number of peremptory challenges that may be made during the"second round", the practice of allowing a different number of challenges dependingupon the type of criminal offence has been abolished. Clause 42(3) provides that, ina criminal trial, the accused and the Crown are each entitled to a maximum of eightperemptory challenges, as recommended by the Queensland Litigation ReformCommission.23

4.4 SPECIAL PROCEDURE FOR CHALLENGE FOR CAUSE

In discussing possible reforms of the jury system in relation to the formation of thejury, the Criminal Justice Commission, in its Issues Paper on The Jury System inCriminal Trials in Queensland, suggested:

Perhaps challenges for cause could be used more extensively in Queensland toensure an indifferent jury in cases where the accused has been subjected to publicnotoriety or ridicule. In the United States, challenges for cause arecommonplace, if not standard, features of criminal trials. The trial of OliverNorth which resulted from the so-called Irangate Scandal featured many suchchallenges. Finally, a jury whose members claimed not to have known of thescandal despite the saturation media coverage of it was assembled and sworn forthat trial.

While it is recognised that the United States system involves a lengthy process ofquestioning of potential jurors, perhaps some sort of modified system could beconsidered for Queensland in exceptional cases. For example, in a case of greatnotoriety such as the Whiskey-Au-Go-Go counsel for the defence may not havespecific evidence of bias on the part of any one juror but the attendant publicitymay make it unlikely that the jury have not heard something about the case. Insuch a case, upon the request of counsel, the judge in his discretion couldquestion jurors in order to ascertain whether any one of them is biased or affected



23 Queensland. LRC, August 1993, pp.26, 30.


by such notoriety or whether there is in fact any basis for a challenge. Thisquestioning would not be as time consuming as the US process, because it is thejudge who is performing the function.24

Under the reforms of the jury system proposed for Queensland, when the courtreaches the final stage of the jury selection process, the trial judge will be able toauthorise the questioning of members of the jury panel selected as jurors, where thejudge is satisfied that there are special reasons for doing so (e.g. prejudicial pre-trialpublicity). When the questioning, and any further cross-examination authorised bythe judge, is complete, a challenge for cause may be made against a person selectedas a juror on the basis that the person is not impartial: Clause 47.

4.5 JUDGE'S DISCRETION TO DISCHARGE ENTIRE JURY

Under Clause 48 of the Jury Bill 1995, before the final stage of the jury selectionprocess is completed, the trial judge may discharge the entire jury if the judgeconsiders that the exercise of the right to make challenges to prospective jurors hasresulted in a jury whose composition might cause the trial to be viewed as unfair.For example, the jury might be composed of all women, or all men, or of all youngpersons, or all old persons.25 Alternatively, the right to use challenges may haveresulted in the exclusion of persons from the same ethnic background as the accusedperson.26 A similar provision to Clause 48 is contained in Section 47A of the NewSouth Wales Jury Act 1977, inserted by the Jury (Amendment) Act 1987. In theSecond Reading Speeches to the Jury (Amendment) Bill 1987, Opposition MemberMr Dowd, supporting the discharge provision, did not anticipate that it would beemployed "except in the rarest of cases".27

24 Queensland. CJC, March 1991, p.17.

25 New South Wales, Legislative Assembly, Hansard, 19 November 1987, Mr Dowd, p.17051.


27 New South Wales, Legislative Assembly, Hansard, 19 November 1987, Mr Dowd, p.17051.


4.6 UNANIMOUS VERDICTS IN CRIMINAL CASES

In Queensland, the common law rule that all jurors in a criminal trial must agreeupon their verdict applies, as it has not been abrogated by statute.28 The rule findsexpression in the question put by the clerk of the court to the jury when the verdictis returned: "Is this the verdict of you all?" The Jury Bill 1995 retains the commonlaw rule by providing in Clause 59 that verdicts in criminal trials must be unanimous.

In New South Wales and the A.C.T. the common law principle has also beenretained.29

By contrast, in Tasmania, South Australia, Western Australia, the NorthernTerritory, and Victoria, legislation has been enacted to allow majority verdicts inprescribed circumstances.30 Majority verdicts may also be entered in English andScots law.31 The legislative provisions differ between the various jurisdictions inrelation to factors such as the length of time for which the jury must havedeliberated before it may bring in a majority verdict,32 the size of the majorityrequired,33 and the offences and verdicts in respect of which a majority verdict willbe accepted.34

28 By contrast, in civil trials, Section 42 of the Jury Act 1929 (Qld) provides that, where a juryhas deliberated for six hours without reaching a unanimous verdict, the majority verdict ofthree-quarters of the jury may be taken, if the parties consent.

29 Jury Act 1977 (N.S.W.) s.56; Juries Act 1967 (A.C.T.) s.38.

30 Jury Act 1899 (Tas.) s.48; Juries Act 1927 (S.A.) s.57; Juries Act 1957 (W.A.) s.41; CriminalCode (N.T.) s.368; Juries Act 1967 (Vic.) s.47.

31 Gerry Maher, 'The Verdict of the Jury', in Mark Findlay and Peter Duff (eds.), The Jury UnderAttack, Butterworths, Sydney, 1988, pp.40-55.

32 For example, in South Australia, a jury may bring in a majority verdict where it has failed toreach a unanimous verdict after deliberating for at least four hours. In Western Australia, theminimum period for which juries must deliberate before they may deliver a majority verdict isshorter (three hours) and in the Northern Territory and Victoria it is longer (six hours).

33 For example, in South Australia, where there are 12 jurors, at least 10 must concur. Bycontrast, under Scots law, where the jury is composed of 15 persons, majority verdicts of eightto seven are allowed.

34 For example, in Tasmania, South Australia and Victoria, a person accused of murder ortreason may not be found guilty by majority verdict.


4.6.1 Arguments for and against unanimity

The arguments for and against unanimous verdicts have been extensively canvassedin the legal literature. For example, in 1986, the New South Wales Law ReformCommission in its Report on The Jury in a Criminal Trial recommended, by amajority of four to two, that the unanimity requirement be retained. In the view ofthe majority, unanimous verdicts were the only appropriate basis for thedetermination of guilt. Nor was there compelling evidence to show that the ruleneeded to be changed.35

By contrast, in Queensland, in 1985, the Queensland Law Reform Commissionrecommended the introduction of majority verdicts based upon the agreement of atleast ten jurors, where the jury in a criminal trial had deliberated for at least twohours.36 According to the Commission, the occurrence of several long, and complexor highly publicised, trials such as the Russell Island trial and the Gallagher case hadtipped the scale in favour of majority verdicts.37

In 1993, however, when the Queensland Litigation Reform Commission in turnconsidered the issue, it recommended the retention of unanimous verdicts in criminalcases.38

The main arguments for and against unanimous verdicts are outlined below.

According to opponents of unanimous verdicts:

• The requirement for unanimous verdicts allows one irrational or eccentricjuror to prevent a conviction. The advantage of majority verdicts, it isargued, is that they can render ineffectual the opinions of jurors who aresomehow "unreasonable".39

• The requirement that a verdict must have the concurrence of all members ofthe jury leaves open the possibility that attempts may be made to bribe orintimidate a juror. According to Cornish, the major reason for theintroduction of majority verdicts in England in 1967 was to stop jurors being"nobbled".40

35 NSWLRC 48, p.139.

36 QLRC 35, p.123.

37 QLRC 35, p.121.


39 W.R. Cornish, The Jury, Allen Lane The Penguin Press, London, 1968, p.258.

40 Cornish, p.258.


• The requirement for unanimity forces juries to reach verdicts which arecompromises.

• Holding a re-trial where there has been a jury disagreement imposes asubstantial burden on the justice system and the accused. The longer theoriginal trial has taken, the greater will be the cost if it must be held again.41

If, on the other hand, the cost of a re-trial is so prohibitive that it isabandoned, "... the community sees crime go unpunished by default".42

Majority verdicts, it is argued, substantially reduce the likelihood of jurydisagreements.43 According to American empirical evidence, majorityverdicts are likely to lessen the incidence of jury disagreements by around45%.44

By contrast, the arguments of those who oppose majority verdicts and favour theretention of unanimous verdicts can be broadly summarised as follows:

• A major argument is that majority verdicts must logically reduce theprotection given to an accused person by the requirement that his guilt beproven beyond reasonable doubt.45

• Related to the above argument is the concern that convictions secured bymajority verdicts are likely to diminish public confidence in theadministration of justice.46 For example, in introducing the Jury Bill to theQueensland Legislative Assembly, the Attorney-General, the HonourableMatt Foley MLA, argued that:

The Government believes that unanimous verdicts are more likely to bepublicly accepted than majority verdicts. Public confidence in the jury systemcould be eroded where an accused person was convicted by a majority ofjurors only as it might be said that the verdict could not have been one beyond

41 QLRC 35, p.122 and Paul Byrne, 'Jury Reform and the Future', in Mark Findlay and PeterDuff (eds.), The Jury Under Attack, Butterworths, Sydney, 1988, pp.190-208, p.191.

42 QLRC 35, p.123.

43 QLRC 35, p.123.

44 Harry Kalven Jr. and Hans Zeisel, The American Jury, Little, Brown and Company, Boston,1966, p.461.

45 See, for example, Sir James Fitzjames Stephen, A History of the Criminal Law of England,vol.1, Macmillan, London, 1883, pp.304-305. For a modern re-formulation of the argument,see Byrne, p.191.

46 Cornish, p.259; 'Majority Verdict in Criminal Cases', Australian Law Journal, vol.10, 15September 1936, p.167.


all reasonable doubt since the minority of jurors obviously entertained areasonable doubt.47

• The introduction of majority verdicts does not necessarily mean jurors willnot reach verdicts which are compromises. According to the majority viewof the New South Wales Law Reform Commission:

The most telling response to the 'compromise' argument is that theintroduction of a rule allowing the verdict of 11 or 10 jurors to be taken asthe jury's verdict would not eliminate the possibility of the jury's verdict beinga compromise. If the requirement that 12 jurors must agree on a verdictencourages compromise, there is nothing to say that a requirement that 11jurors agree would not also result in compromise.48

• The incidence of hung juries is not sufficiently high to warrant theintroduction of majority verdicts. For example, Mr Justice Sackville of theNew South Wales Law Reform Commission, while not objecting to theintroduction of majority verdicts in principle, took the view that they werenot necessary in New South Wales because of the low proportion of caseswhere juries disagreed.49 In introducing the Jury Bill 1995 to theQueensland Parliament, the Attorney-General, the Honourable Matt FoleyMLA, stated: "Hung juries are not perceived to be a major problem in thisState".

According to the empirical evidence cited by Mr Foley, in Queensland, for the five-year period 1986-1991, only 1.83% of Supreme Court trials, and 2.77% of DistrictCourt trials, ended in jury disagreements.50 Cornish, after examining the limitedevidence available in England on the incidence of hung juries, concluded that it wasnot high enough to "... seriously prejudice the proper administration of justice", butcautioned that "... it should be remembered that the length and seriousness of thecases in question should also be taken into account".51

47 Jury Bill 1995 (Qld), Second Reading Speech, Hon. M.J. Foley MLA, QueenslandParliamentary Debates, 14 September 1995, p.210.

48 NSWLRC 48, p.148.

49 NSWLRC 48, pp.139 and 155.

50 Jury Bill 1995 (Qld), Second Reading Speech, Hon. M.J. Foley MLA, QueenslandParliamentary Debates, 14 September 1995, p.210.

51 Cornish, p.259.


4.7 CONFIDENTIALITY OF JURY DELIBERATIONS

4.7.1 The Common Law Position

Although the obligation to maintain the secrecy of jury deliberations out of court isregarded as a well-recognised rule of conduct,52 the general consensus of opinion oflegal commentators is that, at common law, a juror who speaks out about what hastranspired in the jury room after the verdict has been delivered does not per secommit contempt of court.53

Nor does the publication by the media of accounts of jury deliberations necessarilyconstitute contempt of court, though it may do so in circumstances where thedisclosure is likely to impede the finality of jury verdicts, or to affect adversely theattitude of future jurors and the quality of their deliberations: Attorney-General v.New Statesman and Nation Publishing Co Ltd. [1981] 1 Q.B. 1.

However, the disclosure by jurors out of court of information about theirdeliberations, and the publication or broadcast of such information, has long beenviewed with judicial disapproval. Following the publication of accounts of jurydeliberations in a number of celebrated trials in recent years, including the Gallaghertrial in Victoria and the Murphy and Jackson trials in New South Wales, statutoryprovisions were enacted in Victoria (1985) and New South Wales (1987) to protectthe secrecy of jury deliberations.

In Queensland, disclosures by jurors in the wake of trials such as those of Dr PeterBayliss and Brian Maher have prompted increased debate about the need forlegislative deterrents. For example, after the Bayliss abortion trial in January 1986,a report of an interview with a juror in that trial was published in which the jurorstated that she had reluctantly agreed with the other jurors to bring in a verdict ofacquittal, although the verdict went against her religious convictions. Mr JusticeMcGuire, who presided at the trial, later commented that

... these publications could have aroused suspicion in the reader's mind that theverdict was not truly unanimously reached. There is, I think, a public mischief insuch publications.54

52 Ellis v Deheer [1922] 2 K.B. 113 per Bankes L.J. at p.118.

53 Sir Patrick Devlin, Trial by Jury, Stevens and Sons, London, 1956, p.46; Campbell, p.124.However, according to Halsbury's Laws of England, 4th edn, vol.9, para. 44, where a jurortalks about the trial which he is hearing with a member of the public during the course of thetrial or before the verdict is delivered, this does constitute contempt.

54 Judge McGuire, 'Jury Secrecy', Proctor, vol.8, no.4, June 1988, p.9.


Under the reforms proposed in the Jury Bill, the exposure of jury deliberations willbe outlawed by statute, subject to certain exceptions.

Clause 70(2) of the Jury Bill 1995 prohibits the publication to the public ofconfidential information about jury deliberations (i.e statements made, opinionsexpressed, arguments advanced or votes cast in the jury room).

Clause 70(3) makes it an offence to solicit confidential information about jurydeliberations from jurors or former jurors.

Clause 70(4) prohibits a juror or former juror from disclosing confidentialinformation about jury deliberations, where the juror believes any of the informationis likely to be, or will be, published to the public.

In all of the above cases, the penalty for committing the offences above isimprisonment. A maximum penalty of two years' imprisonment may be imposed.

The Oaths Act 1867 (Qld) is also amended by the Jury Bill 1995. Under theproposed amendments, the oath taken by jurors in both civil and criminal trials willinclude an undertaking that they will not disclose anything about the jury'sdeliberations except in certain circumstances: Clause 76 and Schedule 2.

4.7.2 Exceptions to the Prohibitions on Disclosure

The proposed amendments to the Oaths Act require jurors to swear an oath not todisclose their deliberations, other than as allowed or required by law.


There are a number of circumstances in which disclosure will not constitute an offence:-

• As discussed above, a juror may disclose confidential information about jurydeliberations if the juror does not have reason to believe the information is likely tobe, or will be, published to the public: Clause 70(4).

• Confidential information may be sought by, and disclosed to, a trial court where it isnecessary to enable the jury to properly perform its functions. Clause 70(6)

• Where there is reason to suspect that a juror may have been guilty of bias or fraud orof an offence in connection with the performance of his or her functions as a juror,the trial court may authorise the seeking and disclosure of confidential informationabout the jury's deliberations for the purpose of an investigation : Clause 70(7).

• A juror may disclose confidential information about discussions in the jury room tothe Attorney-General or the Director of Public Prosecutions where the jurorsuspects another juror of bias or fraud, or of committing an offence whileperforming his or her functions as a member of the jury: Clause 70(8).

• Information about jury deliberations may be disclosed for the purpose of researchinto the jury system, where the Supreme Court authorises it: Clauses 70(9) and70(10).

4.7.3 A Comparative Survey

Statutory provisions to protect the secrecy of jury deliberations already exist in anumber of jurisdictions such as Tasmania, New South Wales, Victoria and England.The general thrust of these provisions is outlined below. In Section 4.7.4, furthercomparisons are drawn between the proposed Queensland amendments and theprovisions in other jurisdictions. Those comparisons relate to exceptions to theprohibitions on disclosure and publication where genuine research is involved, orwhere some serious impropriety is thought to have occurred in the jury room.

Tasmania

In Tasmania, jurors in a criminal trial are required to take an oath that they will notat any time disclose to any person anything touching or concerning theirdeliberations upon their verdict.55 The similarities with the proposed Queenslandprovisions are clear, though there are also some differences.

55 Criminal Code Act 1924 (Tas.) s.365 and Appendix D, Form 1.


• The prohibition contained in the Tasmanian oath of secrecy is stated in absoluteterms. By contrast, under the Queensland proposals, disclosure is permissible inspecified circumstances.

• In Tasmania, the oath of secrecy is only taken by jurors in criminal trials.56 Underthe proposed Queensland provisions, an oath of secrecy will be taken by jurors inboth civil and criminal trials.

New South Wales57

In New South Wales, Section 68A(1) of the Jury Act 1977 prohibits the soliciting ofinformation from jurors about their deliberations for inclusion in material to bebroadcast or published. Under the changes made to the current Queensland JuryBill, the prohibition on jurors disclosing their deliberations now only applies if theinformation will be, or is liable to be, published. However, the provision whichprohibits the soliciting from jurors of information about their deliberations stillapplies whether or not this is done for the purpose of publication.

Section 68B(1) of the New South Wales Jury Act prohibits jurors from disclosinginformation about their deliberations during a trial. As such, the provision basicallyappears to reinforce what Halsbury's states to be the common law position (seeSection 4.7.1). Section 68B(2) prohibits a juror or any other person from disclosinginformation about a jury's deliberations, where this is done for a fee, gain orreward.58 By contrast, the prohibition upon disclosure in the Queensland Jury Billapplies whether or not a fee or reward is obtained.

Victoria

In R v. Gallagher [1986] V.R. 219, a juror anonymously disclosed to the mediainformation about the jury's deliberations which cast doubt on the guilty verdict.Section 69A of the Juries Act 1967 (Vic.), subsequently inserted by the Juries(Amendment) Act 1985 in the wake of the Gallagher case, prohibits the soliciting orpublishing of information about a jury's deliberations. Jurors are prohibited fromdisclosing information about their deliberations if they believe the information isliable to be published. The prohibitions on publication or disclosure under theVictorian legislation do not apply where the juror or the legal proceedings is not

56 The form of oath taken by jurors in civil cases in Tasmania is given in Section 33 of the JuryAct 1899 (Tas.) and Forms VI & VII of Schedule 2 to the Act.

57 In New South Wales, the provisions governing jury secrecy were inserted by the Jury(Amendment) Act 1987.

58 The operation of this section is not restricted only to the duration of a trial.


identified: S69A(4). By contrast, under the proposed Queensland provisions, theprohibitions on disclosure and publication will apply, whether or not the juror andthe case remain anonymous.

England

In England, Section 8(1) of the Contempt of Court Act 1981 makes it a contempt ofcourt to disclose or solicit statements made, opinions expressed, argumentsadvanced or votes cast by jurors during their deliberations.

Penalties

By comparison with the Queensland proposals which provide for personscommitting offences under Clause 70 to be imprisoned, the offences created bySections 68A and 68B of the New South Wales Jury Act are punishable by fineonly. An individual who solicits information from a juror about the jury'sdeliberations for the purpose of publication is liable to a fine of $2000.59 A jurorwho discloses such information for the purpose of gain is liable to a fine of $5000.60

Offences created by Section 69A of the Victorian legislation are punishable by a fine($10,000), or imprisonment for three months, or both.61

4.7.4 Arguments for and against jury secrecy

Proponents of jury secrecy emphasise factors such as the need to ensure free andfrank discussion in the jury room, and to protect the finality and inscrutability of thejury's verdict. The major arguments are:

• The convention that jury deliberations should remain secret promotesfreedom of debate among jurors. For example Mr Justice McGuire has said:

Courts and commentators have long recognised that freedom of thedeliberative process is central to the institution of trial by jury. That freedomis imperilled if jurors fear that their deliberations may be made public. Thedanger inherent in jurors' apprehension of post trial revelations is that it maywell trammel the free interplay of ideas in the jury room and distort verdicts.Juries, it should be remembered, are sometimes called upon to make

59 Jury Act 1977 (N.S.W.) s.68A(1) and Interpretation Act 1987 (N.S.W.) s.56.

60 Jury Act 1977 (N.S.W.) s.68B(2) and Interpretation Act 1987 (N.S.W.) s.56.

61 Juries Act 1967 (Vic.) s.69A and Sentencing Act 1991 (Vic.) s.110.


unpopular decisions. Conscientious jury service will always call forcourage.62

According to Des Sturgess Q.C.:

I can imagine nothing more destructive of trial by jury than if a juror were toproceed with one part of his mind on the evidence and the other on how histreatment of it will be received in the media, even to the extent of thinkingabout what money might be in it for him by the telling of it all.63

• The secrecy convention safeguards the finality of the jury's verdict: Ellis vDeheer [1922] 2 K.B. 113 per Atkin L.J. at p.121. As Sir Patrick Devlinexplained:

The court will not listen to any juryman who has second thoughts or allow anyof them to assert thereafter that he was not a consenting party to the verdict.How otherwise could there be finality?64

• Another reason advanced by the courts as to why evidence of what hastaken place in the jury room is not received by the courts is to avoid jurors"...being exposed to pressure to explain the reasons which actuated them inarriving at their verdict": Ellis v Deheer [1922] 2 K.B. 113 per Atkin L.J. atp.121.

• The secrecy convention serves to protect the privacy of jurors and toprevent them from recriminations or harassment. For example, inMcMahon v Council of the City of Sydney (1963) 80 W.N. (N.S.W.) 736 at737, Else-Mitchell J. said that jurors

...must be protected against any possibility of unlawful approach or impropercommunication whilst a trial is in progress and against any prospect ofrecriminatory treatment by a disgruntled party after they have returned theirverdict.

In Prothonotary v Jackson [1976] 2 N.S.W.L.R. 457 at p.462, the courtsaid:

We consider that the privacy of those who have served as jurors must berespected, and that, once their public service in the court is at an end, theymust be protected from attempts to involve them further in the affairs of thelitigants whose disputes they were called to try. And they should serve in theexpectation that this immunity will be preserved.

62 F.M. McGuire, 'Jury Secrecy', Queensland Lawyer, vol.9(3), 1988, pp.55-64, p.57.

63 D. G. Sturgess, 'The Trials of Trial by Jury', Queensland Law Society Journal, vol.14, no.6,December 1984, p.225.

64 Sir Patrick Devlin, Trial By Jury, Stevens & Sons, London, 1956, p.48.


• Finally, it is argued that disclosure of jury deliberations might destroy publicconfidence in the jury system. For example, Lord Hewart C.J. in R vArmstrong [1922] 2 K.B. 555 at p.568 expressed concern that:

If one juryman might communicate with the public upon the evidence and theverdict so might his colleagues also and if they all took this dangerous coursedifferences of individual opinion might be made manifest, which at the least,could not fail to diminish the confidence that the public rightly has in thegeneral propriety of criminal verdicts.

By contrast, arguments in favour of disclosure of jury deliberations focus on factorssuch as the right to freedom of speech, the public interest in ensuring that theformalities of a fair trial are observed, and the assistance in improving the jurysystem which can be obtained by scrutinising its workings e.g.:

• According to writers such as Borrie and Lowe, as the cornerstone of thelegal system, the operations of the jury should be open to "reasonablescrutiny and accountability".65

• According to Mr Justice McHugh, another argument advanced in favour ofdisclosure is that:

... the right of freedom of expression which each juror has, or ought to have,entitles him to disclose what has occurred in the jury room, whatever effect itmay have on others or the system.66

This argument was further considered by the New South Wales Law ReformCommission in its 1986 Report on The Jury in a Criminal Trial. There the NewSouth Wales Law Reform Commission stated:

... a juror who speaks out about his or her experiences [whether to report ona favourable personal experience or to bring to light a perceived injustice] issimply exercising his or her right to freedom of speech. The existence of sucha right of itself requires no justification, although it may be liable to eclipsein the face of other values or principles if they are of sufficient weight andcogency to prevail.67

Further on, the New South Wales Law Reform Commission acknowledged thatarguments for and against the disclosure of jury deliberations must be "weighed inthe balance". For example, in the case of the right to free speech:

65 Borrie and Lowe's Law of Contempt, 2nd edn, 1983, p.249, quoted in QLRC 35, p.139.

66 Hon. Mr Justice McHugh, 'Jurors' Deliberations, Jury Secrecy, Public Policy and the Law ofContempt', in Mark Findlay and Peter Duff (eds.), The Jury Under Attack, Butterworths,Sydney, 1988, p.67.

67 NSWLRC 48, p.188.


The juror who speaks out will almost certainly disclose information which,accurate or not, may be embarrassing to other jurors who spoke or acted in amanner which excited the criticism of the vocal juror. In this sense theexercise by one juror of the right to speak will involve the infringement of theright to privacy of another juror. One can infer from the silence of themajority of jurors, at least at the public level, that they wish to keep details ofthis experience private. Insofar as the jurors who speak out are likely toreflect criticism of the attitude if not the verdict of the jury as a whole, thelikelihood of this intrusion being hurtful is increased..68

• Making it an offence to solicit or disclose statements or opinions expressedby jurors in the jury room impedes research into how juries work, making itimpossible to objectively evaluate the jury system.69 In several jurisdictionswhere statutory prohibitions on the disclosure of jury deliberations havebeen introduced, this argument in favour of disclosure appears to have beentaken into account in the drafting of legislation. For example, by virtue ofSection 68A(3) of the New South Wales Jury Act, and under Queensland'sJury Bill, accredited research is an exception to the prohibitions on solicitingdetails of jury deliberations. In Victoria, Section 69A(4) allows thedisclosure and publication of information about jury deliberations providedthe relevant case or the juror concerned is not identified. This provisionwould seem to allow researchers to seek information from jury membersabout cases if anonymity was maintained when the findings were published.

By contrast, Section 8 of the English Contempt of Court Act 1981 has beencriticised on the ground that it prevents research about juries.70 Under theU.K. provisions, the only circumstances in which disclosure of jurydeliberations is not a contempt of court are where the disclosure is madeduring the case to enable the jury to arrive at or deliver its verdict, or inevidence where it has been alleged that an offence was committed inconnection with the performance of the jury's functions.71

• Judicial disapproval of the disclosure of jury deliberations has extended to arefusal to investigate allegations of improprieties by juries in reaching theirverdict. For example, in R v Thompson [1962] 1 All E.R. 65, a member ofthe jury allegedly told a member of the public that during the jury'sdeliberations, a majority of the jurors had been in favour of acquittal.

68 NSWLRC 48, p.189.

69 McConville and Baldwin, 'The Effect of the Contempt of Court Act on Research on Juries',145 J.P. 1981, p.575, quoted in QLRC 35, p.139; and Rachel Hawes, 'O.J. trial sparks callsfor greater access to juries', Australian, 7 October 1995, p.2.

70 McConville and Baldwin, quoted in QLRC 35, p.139.

71 Section 8(2) Contempt of Court Act 1981 (U.K.).


However, according to the juror, after the foreman of the jury circulated alist of the accused's previous convictions (information to which the jurorsshould not have had access) the jury had agreed to convict him. Despite thecomplaint that an impropriety may have occurred, it was nonetheless held bythe English Court of Criminal Appeal that it did not have jurisdiction to takeevidence from jurors about what happened in the jury room.

Those who support disclosure of jury deliberations argue that it will enableimproprieties or injustices to be rectified. For instance, the late Mr Justice Jeffrey,in an editorial in the Australian Law Journal, argued that:

It is desirable that verdicts be final, that jurors be under no pressure and thatconfidence in jury verdicts be maintained; but where there is some reallysubstantial reason for believing that something has gone wrong, might it not bebetter that inquiries be made and (if necessary) evidence received of whathappened?72

Examples of legislative provisions which take account of the concerns outlinedabove can be found in Section 8(2)(b) of the Contempt of Court Act (U.K.) andSection 69A(5) of the Juries Act 1967 (Vic.). Queensland's Jury Bill also includessimilar exceptions to the general prohibitions on the disclosure of jury deliberationswhere it is believed an offence may have been committed in relation to the jury'sdeliberations. However, the disclosure must be made to specified persons (i.e. theAttorney-General or the Director of Public Prosecutions) or in specifiedcircumstances (where it is authorised by the trial court for the purpose of aninvestigation of a suspected offence). Disclosure to the media (for example, asoccurred after the Bjelke-Petersen trial, where jurors contacted journalists to voiceconcerns about the jury foreman) is not sanctioned. Commenting on the proposalsin Clause 70(8) of the Queensland Jury Bill, Mr Terry O’Gorman of the QueenslandCouncil of Civil Liberties is reported as saying that the provisions:

...represented the downside of what otherwise was acceptable legislation.

The Courier-Mail article goes on to quote Mr O’Gorman in the following terms:

He said the Director of Public Prosecutions was not independent.

Mr O'Gorman said if the Attorney-General rejected a juror's complaint, therewas nowhere to go if access to the media in the public interest was blocked.73

72 'Speaking to Jurors', Australian Law Journal, vol.46, no.8, August 1972, p.369.

73 'Bill to Ban Jury Talking to Media', Courier Mail, 15 September 1995, p.2.


REFERENCES

BOOKS

• Abraham, Henry J., The Judicial Process: An Introductory Analysis of the Courts ofthe United States, England, and France, Oxford University Press, New York, 1980.

• Australia. Law Reform Commission, Contempt, ALRC 35, June 1987.

• Blake, Nicholas, 'The Case for the Jury', in Mark Findlay and Peter Duff (eds.), TheJury Under Attack, Butterworths, Sydney, 1988, pp.140-160.

• Byrne, Paul, 'Jury Reform and the Future', in Mark Findlay and Peter Duff (eds.),The Jury Under Attack, Butterworths, Sydney, 1988, pp.190-208.

• CCH, The CCH Macquarie Dictionary of Law, 2nd edn, 1993.

• Cornish, W.R., The Jury, Allen Lane The Penguin Press, London, 1968.

• Devlin, Sir Patrick, Trial By Jury, Stevens & Sons, London, 1956.

• Edwards, Eric J., Harding, R.W. and Campbell, Ian G., The Criminal Codes:Commentary and Materials, 4th edn, Law Book Company, Sydney, 1992.

• Herlihy, J.M. and Kenny, R.G. An Introduction to Criminal Law in Queenslandand Western Australia, 3rd edn, Butterworths, Sydney, 1990.

• Kalven, Harry, Jr. and Zeisel, Hans, The American Jury, Little, Brown andCompany, Boston, 1966.

• Maher, Gerry, 'The Verdict of the Jury', in Mark Findlay and Peter Duff (eds.), TheJury Under Attack, Butterworths, Sydney, 1988, pp.40-55.

• Marantelli, S.E., The Australian Legal Dictionary, Hargreen, West Melbourne,1980.

• McHugh, Hugh, 'Jurors' Deliberations, Jury Secrecy, Public Policy and the Law ofContempt', in Mark Findlay and Peter Duff (eds.), The Jury Under Attack,Butterworths, Sydney, 1988, pp.56-73.

• New South Wales. Law Reform Commission, Criminal Procedure Report, The Juryin a Criminal Trial, LRC 48, March 1986.

• Queensland. Criminal Justice Commission, The Jury System in Criminal Trials inQueensland: An Issues Paper, March 1991.

• Queensland. Criminal Justice Commission, Report by the Honourable W.J. CarterQC on his Inquiry into the Selection of the Jury for the Trial of Sir JohannesBjelke-Petersen, August 1993.


• Queensland. Law Reform Commission, A Report on a Bill to Amend and Reformthe Jury Act, the Justices Act and the Criminal Code Insofar as Those Acts Relateto Committal Proceedings and Trial by Jury in Criminal Courts, QLRC 35,October 1985.

• Queensland. Litigation Reform Commission, Report of the Criminal ProcedureDivision, Reform of the Jury System in Queensland, August 1993.

• Stephens, Sir James Fitzjames, A History of the Criminal Law of England, in threevolumes, Macmillan, London, 1883.

• Walker, Sally, The Law of Journalism in Australia, Law Book Company, Sydney,1989.

• Williams, Glanville, The Proof of Guilt: A Study of the English Criminal Trial, 2ndedn, Stevens & Sons, London, 1958.

ARTICLES

• Campbell, Enid, 'The Secret Chamber of the Law: Some Comments on Civil JuryTrial', Australian Law Journal, vol.36, 27 September 1962, pp.119-127.

• Castles, Alex, '"Boot-eaters" and Majority Verdicts in Criminal Trials', AustralianLaw Journal, vol.66, no.5, May 1992, pp.290-293.

• 'Majority Verdict in Criminal Cases', Australian Law Journal, vol.10, 15 September,1936, p.167.

• McGuire, F.M., 'Jury Secrecy', Proctor, vol.8, no.4, June 1988, pp.1, 8-9.

• McGuire, F.M., 'Jury Secrecy', Queensland Lawyer, vol.9, no.3, 1988, pp.55-64.

• 'Speaking to Jurors', Australian Law Journal, vol.46, no.8, August 1972, pp.369-370.

• Sturgess, D.G. 'The Trials of Trial by Jury', Queensland Law Society Journal,vol.14, no.6, December 1984, pp.219-226.

• 'The Confidentiality and Sanctity of Jury-Room Deliberations', Australian LawJournal, vol.60, no.2, February 1986, pp.56-60.

• 'The Jury and Jury Trial Practices Again Under Scrutiny in Australia', AustralianLaw Journal, vol.62, no.1, January 1988, pp.12-14.


CASES

• Attorney-General v. New Statesman and Nation Publishing Co. Ltd. [1981 1 Q.B. 1.

• Attorney-General v. Associated Newspapers Ltd. and Others [1994] 2 A.C. 238.

• Ellis v. Deheer [1922] 2 K.B. 113.

• Evans v. Davies [1991] 2 Qd.R. 498.

• Prothonotary v. Jackson [1976] 2 N.S.W.L.R. 457.

• R. v. Armstrong [1922] 2 K.B. 555.

• R. v. Challinger [1989] 2 Qd. R. 352.

• R v. Gallagher [1986] V.R. 219.

• R v. Rinaldi; R v. Kessey (1993) 30 N.S.W.L.R. 605.

• R v. Thompson [1962] 1 All E.R. 65.

• Shoukatallie v. The Queen [1962] A.C. 81.

MEDIA COMMENT

• Hawes, Rachel, 'O.J. trial sports calls for greater access to juries', Australian, 7October 1995, p.2.

• Koch, Tony, 'Tell-all jurors may be jailed', Courier Mail, 9 June 1995, p.1.

• Kavanagh, Lawrie, 'Jurors should be free to speak out', Courier Mail, 10 June 1995,p.35.

• Madigan, Michael, 'Top secret', Sunday Mail, 11 June 1995, p.62.

• Shaw, Luke, 'It's time jurors were protected', Courier Mail, 16 June 1995, p.15.

• 'New laws to protect secrets of jury room', Courier Mail, 15 September 1995, p.10.

Note: Copies of these six news items are included in Appendix A. The first newspaper articles reportscomments made in response to the verdict in the O.J. Simpson trial. The last article was published theday after the current Jury Bill was introduced to the 48th Parliament. The other four articles relate to theJury Bill in the form it was introduced to the 47th Parliament.

Title of the Bill 1997 Page 37

APPENDIX A

Page 36 Title of the Bill

Copyright Provision: Copy recorded for Parliamentarians only.

Disclaimer: No responsibility is taken for any transmission errors

Title O.J. trial sparks calls for greater access to juries.

Author HAWES, RACHEL

Source Australian ( 80 )

Date Issue 07/10/95

Pages 2

CONTROVERSY surrounding thejury's verdict in the O.J. Simpson trial thisweek has prompted calls among Australia'slegal profession for greater access to jurymembers to evaluate the performance of ourlegal system.

Experts emphasised the need to avoidthe "open slather" approach of the Simpsoncase, where jurors were harassed by mediacrews to reveal the reasoning behind theirverdict, but some lawyers said more"controlled access" to juries would helpexplore the pitfalls in the Australian system.

A former chief justice of the HighCourt, Sir Anthony Mason, yesterday saidthere was a "closed-shop mentality" toresearch on juries and that governmentsshould encourage more research.

But Sir Anthony said media access tojury members would be a "passport to whatis happening in the US now" and wouldpander "to the market forces ofsensationalism".

"There ought to be more informedscientific research into the way in whichjuries react to the various things that occurduring the course of a criminal trial so wecan better gauge the workings of thesystem," he said.

Sir Anthony said it was remarkablethat the thoughts of jurors about judges'instructions or about lengthy cross-examinations and addresses had not beenexamined widely.

In contrast to the United States -where media crews camped outside

Simpson jurors' homes after theverdict and offered big fees for interviews -legislation in most Australian Statesprevents the public making contact withjurors, identifying them or disclosingjuryroom conduct.

The chairman of the VictorianCriminal Bar Association, Mr BrindWoinarski QC, said there was a "goodargument" for granting academics moreaccess to selected jurors.

"I am absolutely against the jurorsbeing freely able to talk about cases publicly,but a proper academic study may help us tofind out ways we can improve the system,"he said.

Research could reveal juries requiredmore assistance with deliberations and lessin other areas, or vice versa, he said.

The NSW Director of PublicProsecutions, Mr Nicholas Cowdery QC,said access for accredited organisationscould help keep the jury system "relevantand up-to-date".

The president of the AustralianInstitute of Judicial Administration,

Justice Trevor Olsson, said thebenefits of researching juries had beenshown in a "very rare" study in NSW lastyear.

The AIJA-commissioned researchrevealed a high percentage of jurors haddifficulty understanding court proceedingsand complex case facts.

It also revealed that the jury foremanhad undue influence over the deliberations.




Justice Olsson described the study as"very successful" and said it had laidfoundations for improvements to the system.

But the president of the VictorianCouncil for Civil Liberties, Mr

Robert Richter QC, said wideracademic access could put jurors underundue pressure.

"Part of the virtue of the system is theanonymity of jurors and its major strength isit draws on people who come out of thecommunity and disappear back into itwithout being subjected to pressure orinterrogation," he said.




Title New laws to protect secrets of jury room.

Source Courier Mail ( 59 )

Date Issue 15/09/95

Pages 10

JURORS would be prevented fromrevealing their deliberations to the mediaunder a jury Bill introduced in StateParliament yesterday by Attorney -GeneralMatt Foley.

The legislation, which was derivedfrom recommendations following

inquiries into the perjury trial offormer premier Sir Joh Bjelke-Petersen,

is almost identical to that whichlapsed when the July 15 election was

called.

But it has been changed to make itclear that "a person must not

publish to the public confidentialinformation about jury deliberations".

"The whole deliberation processwould be undermined if a juror had to

proceed with the onus of thinkinghalf the time about the evidence and theother half on how what is said may betreated by the media," Mr Foley said.

"This may even extend to thinkingabout what profit may exist in talking to themedia about the case - as I under stand hashappened in America."..

A juror who suspected anothermember of bias, fraud or some other offencein connection with the jury's duties had thesafeguard of being able to take thoseconcerns to the Attorney-General or"independent" Director of PublicProsecutions.

Queensland Council for CivilLiberties spokesman Terry O'Gorman said

the proposal represented the downside ofwhat otherwise was acceptable legislation.

He said the Director of PublicProsecutions was not independent.

Mr O'Gorman said if the Attorney-General rejected a juror's complaint, therewas nowhere to go if access to the media wasblocked.

Mr Foley said the legislationaddressed the public disquiet as a result ofattempts "by certain people before theBjelke-Petersen perjury trial to pervert thecomposition of the jury".




Title It's time jurors were protected.

Author Shaw, Luke

Source Courier Mail

Date Issue 16/06/95

Pages 15

THERE are some proposed changesto the Jury Act before Parliament, includinga ban on jurors talking publicly aboutconfidential jury-room deliberations.

The changes would also restrictaccess to jury lists and allow jurors to voicetheir concerns about the actions of fellowjurors if there were suspicions of dishonestyor deception.

What this means is that jurors cannow perform their crucial role in ensuringjustice and equity for all without having tofear that their actions will become the focusof public attention or ridicule.

As I write this I cast my mind back tothe events of late 1991 when I, as anenthusiastic yet somewhat naive student,received a summons to serve on a jury.

At the time I had no idea that whatwas about to follow would so destructivelyenter my life.

I accepted the summons andsubsequently, via a series of events that tothis day have not been adequately explained,was empanelled on the jury at the trial offormer Queensland premier, Sir Joh Bjelke-Petersen.

After three weeks of hearing evidenceand five tense days of jury deliberations, asomewhat controversial "hung jury" wasdeclared.

~P From that moment, because of acombination of irresponsible journalism andtragic flaws in the Jury Act regarding theprivacy and anonymity of jurors, I and myfamily lived in a state of siege, not only from

scurrilous and bombastic journalists, but alsofrom any feeble-minded redneck who heldme to be the whipping post for any sins ofthe Bjelke-Petersen era. I and my familywere also subject to almost every form ofhumiliation and abuse, from the humble spitand jeer to the more sinister midnight deaththreats, aggression and outright violence.

Ultimately it was one of the majorfactors in the bankruptcy of my father'sbusiness and my parents' divorce.

All this occurred because there wasno legislation to protect the anonymity ofjurors or prevent the public, the media oranyone with a vested interest or a deeplyharboured grudge, from obtaining personalinformation about a juror, either before orafter a trial.

This lack of confidentiality rendersimpotent the justice system, simply becausejurors who fear retaliation or publichumiliation will be less likely to give theirtrue verdict if they believe that there may benegative consequences for them.

Alternatively the system also fails ifjurors are given inducements to ensure that acertain verdict is returned.

A prime example of this is the O.J.Simpson trial, where some ex-jurors havenegotiated publishing contracts and othersclaim they have been threatened.

There is no way that justice will everbe seen to be done in that particular case.

Neither society nor the accused canfeel sure that justice will be done if there isany doubt on the impartiality of the jury.




The moment a single juror iscompromised through either fear or favour,then the entire justice system iscompromised and is nothing more than afour-syllable farce.

In the same way that we respect ourjudges and have made the secret ballot one ofthe basic tenets of democracy, so too must weprotect and uphold the role that jurors playin ensuring fairness end evenhandedness forall who face the courts.

There is no doubt that these proposedchanges to the Jury Act are necessary, notjust to protect the individuals who serve asjurors, but also to keep intact the wholejustice system.




Title Top secret.

Source SUNDAY MAIL ( 151 )

Date Issue 11/06/95

Pages 62

WELCOME to the Secret World.

It grows bigger every day.

It is all part of the tendency ofgovernments and public servicebureaucracies to keep taxpayers in the dark.

The tendency spreads throughout alllevels, from the Federal sphere through stateand local authority administrations to semi-government quangos.

The practice is the antithesis ofdemocracy.

We wonder if Keating's Republic willemulate the American model.

Ordinary Americans can walkthrough the White House, accompanied byguides, until noon.

They can appear unannounced at theFBI Building between 8.45am and 4.15pmMonday to Friday and be shown through.

In the Keating Republic, will we beable to wander through The Lodge,

go hither and yon at Yarralumla and haveaccess to ASIS?.

The problem is that the Americanmindset is for openness in government andAustralia's is the reverse.

Where the Australian bureaucracyturns away citizens and inquiry, the

American public service welcomesthem, in the strongly-held belief that it existsto serve the people.

The Australian bureaucratic mindsetis to create monopolies of information andkeep it from the people.

Examples abound.

For years rumours have beenwidespread among the Canberra coterie ofalleged misconduct by Foreign Affairsofficers but it was only last week they wereaired under parliamentary privilege.

Everyone knows that Queensland'swhistleblower legislation is designed more toconceal than reveal and that its FOI systemis a farce.

Recently Foreign Affairs MinisterGareth Evans proposed jail for those whorevealed details about our intelligenceagencies.

It was more a ploy to stopinvestigations of incompetence, bungling,mismanagement or misuse of powers by ourintelligence agencies than a plan to protectour spies and their secrets.

Secrecy in contracts betweengovernments and private corporations isoften defended on grounds of commercial-in-confidence but it is frequently used to protectpolitical interests.

And why should senior publicservants who resign have confidentialitycontracts which forbid them speaking abouttheir reasons for leaving?.

Now the Queensland Governmentthreatens to jail jurors who disclose details ofjury-room deliberations.

Journalists and others who try toobtain confidential information from jurorswould face two-year jail terms.

If similar legislation had been inforce in 1991 the jurors who revealedforeman Luke Shaw's role in the perjury trial




of former Premier Sir Joh Bjelke-Petersencould have been jailed.

There is a strong argument that jurorsshould not reveal details of the jury'sdiscussion of the evidence but the blanketban is symptomatic of the culture of secrecyprevalent in government.

Secrecy rules, OK!.




Title Jurors should be free to speak out.

Author KAVANAGH, LAWRIE


Date Issue 10/06/95

Pages 35

I DON'T want to go to jail, but if Ifound myself in the same circumstanceswhich arose in my loungeroom one night in1991 I'd take the chance.

That night one of this newspaper'sswitchboard operators rang me at home tosay a caller wanted to talk to meconfidentially about the just-completed,(incompleted would be a better word) perjurytrial of former

National Party premier, Sir JohannesBjelke-Petersen; would I take the call?.

You bet I would because, like manyother people, I'd heard whispers of flare-upsin the jury room under the direction of the20-year-old jury foreman Luke Shaw, who, ithad been revealed since the trial, was anofficial of the Young National Party and analleged member of the Friends of Johorganisation.

This caller might just be one of thosejurors.

It was, the first of two jurors tocontact me independently wanting to speakout about what they considered a miscarriageof justice in the jury room.

I don't think we will see similarcircumstances to those existing in thatoutrageous trial again, you would hope ourjury system has been tightened up enough toprevent it.

But if those circumstances wererepeated I'd do exactly what I did back then,publish the truth as told to me by themajority of people in that jury room.

There is no question in my mind thatthe jurors did the right thing in exposing ashameful chapter in our legal history, ashameful chapter confirmed much laterduring an inquiry into the Bjelke-Petersenperjury trial by former Supreme Court judgeMr William Carter.

But under amendments to the JuryAct introduced into State Parliamentyesterday I would be a goner.

The result would be another call atmy home, but this time by a couple of copsempowered to cart me off to the local coolerfor writing what I knew to be true about jury-room deliberations.

But I'd be in good company.

The innocent, truthful members of thejury, whose sense of fair play and justicedrove them on the unusual course ofapproaching a journalist, would be there too.

Under the new legislation, jurorsbreaking the silence of the jury room andjournalists publishing those secrets will bejailed.

No doubt the legislation has beenframed to prevent journalists houndingjurors for the inside story on their case and Iwelcome that.

But the circumstances surroundingthe Bjelke-Petersen perjury trial were sounusual that I believe no jury would convicta juror or journalist for revealing facts thatwere of such public interest.

It certainly was of public interest,indeed in the interest of overall




justice, to learn how a jury could becompletely frustrated by just one

single-minded young man with amission.

The two jurors who approached me,and the others who joined them for a formalinterview in our Bowen Hills office, did sonot only for no personal gain but, as I hadwarned them, at great personal cost ofcondemnation from all quarters, includingpoliticians and the legal profession.

They had been very upset with theconduct of the foreman during the trial andfive days of deliberation, how he had beendismissive of their comments and hisunreasonable attitude to discussion.

They put this down to youthfularrogance, ego and personality clashes.

Shaw's attitude was such that theyeven joked among themselves that he mustbe a member of the National Party.

How little they knew.

They were frustrated when they weredeadlocked 10-2 after five days ofdeliberation and the trial judge dischargedthem; but happy that it was all over.

Those jurors had been plucked fromthe suburbs with almost no knowledge orexperience of the foreboding processes of thecourt room.

That was one of the things they feltbitter about.

Had they been better prepared for juryservice, had they had more instructions ontheir rights and responsibilities in the juryroom, things might not have got out ofcontrol, at least Luke Shaw may never havebeen elected foreman.

But when Shaw's political affiliationswere revealed in the press several days afterthe jury was discharged, their frustrationturned to anger and they began to put thepieces together, about Shaw's general

attitude to reasonable discussion and abouthis appointment as foreman.

One of their first jobs after beingempanelled was to consider the best methodof appointing a foreman.

Shaw solved that problemimmediately and to the relief of most, bynominating himself as foreman.

The majority welcomed Shaw'snomination because it let them off the hook;everything about the jury room was sostrange to them they didn't want any moreresponsibility.

But, as they told me during our groupinterview, they soon realised they had madea terrible mistake and that Shaw was thewrong man for the job.

But in their ignorance of the law theydidn't know how to reverse the situation inwhich he could be dismissed and replaced byone of the more mature members of thepanel.

In frustration they appointed a defacto foreman, a chairman to preside overjury-room deliberations while Shawmaintained the position of foreman in thecourt room.

Anyway I was thankful and still amto those honest men and women who madetheir legitimate complaints public throughme.

They did the right thing and so did Iand if a similar situation arose

I'd do it all again and to hell with ajail sentence, because I believe there isn't ajury that would convict men and women forexposing weaknesses in our justice system.




Title Tell-all jurors may be jailed.

Author KOCH, TONY ( 5542 )


Date Issue 09/06/95

Pages 1

JURORS who disclose details of jury-room deliberations would face two years injail under proposed state legislation.

Journalists or other people who try toobtain confidential information from jurorsor former jurors would also face two-year jailterms.

If similar legislation had been inforce four years ago, the jurors who revealedforeman Luke Shaw's role in the 1991perjury trial of former premier

Sir Joh Bjelke-Petersen would havebeen jailed.

Under the proposed legislation, jurorscould only breach the secrecy of jury room ifthey believed another juror had been guiltyof fraud, bias or a breach of secrecy.

In that case, the juror could contactthe Director of Public

Prosecutions or Attorney-General, orthe court could authorise an investigation.

Attorney-General Dean Wells willintroduce amendments to the Jury Act toState Parliament today.

The amendments are intended toprevent intimidation of jurors and thepossibility of deliberations and arguments ina jury room becoming public.

The Government believes jurors couldbe the targets of revenge by a convictedperson or his acquaintances if jurydeliberations are brought into the publicarena.

In what has become known as "theLuke Shaw amendments", the legislationwill also ban the displaying of jury lists inpublic places.

Mr Shaw was the Young NationalParty member who served as jury foreman inSir Joh's perjury trial.

Allegations from Mr Shaw's fellowjurors helped spark a 1993 inquiry by formerjudge Bill Carter, who recommendedchanges to the jury-selection system.

Mr Carter's inquiry heard evidencethat potential jurors were polled by membersof Sir Joh's defence team.

Under Mr Wells's proposedamendments the polling or questioning anyperson on a published list would be strictlyprohibited, except with the consent of thejudge.

Lists of people summoned for juryservice would be available to the prosecutionand defence only after 4pm on the day beforea trial.

If the trial has received extensivepublicity, or if the accused person is wellknown, the judge may question each jurorabout potential bias or conflicts.

Under the revised Act, the number ofexempt categories for jurors would bereduced and women would no longer beentitled to automatic exemption from juryservice.

The notion that verdicts be by amajority has been rejected, and unanimousverdicts would be retained under theamendments.




Minimum panel sizes would beabolished.

REFORMING QUEENSLAND’S JURY SYSTEM: THE JURY BILL 1995 · Reform of the Jury System in Queensland, August 1993, p.4. The Jury Bill 1995 Page 5 The Queensland Litigation Reform Commission

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