Jury Amendment Act 2008 (NSW)

An Act to amend the Jury Act 1977 with respect to the death and discharge of jurors and to make related amendments to the Criminal Appeal Act 1912; and for other purposes.

1Name of Act

This Act is the Jury Amendment Act 2008.

2Commencement

This Act commences on a day or days to be appointed by proclamation.

3Amendment of Jury Act 1977 No 18

The Jury Act 1977 is amended as set out in Schedule 1.

4Amendment of Criminal Appeal Act 1912 No 16

The Criminal Appeal Act 1912 is amended as set out in Schedule 2.

5Repeal of Act(1)

This Act is repealed on the day following the day on which all of the provisions of this Act have commenced.

(2)

The repeal of this Act does not, because of the operation of section 30 of the Interpretation Act 1987, affect any amendment made by this Act.

Schedule 1Amendment of Jury Act 1977

(Section 3)

[1]Section 19 Number of jurors in criminal proceedings

Omit “In” from section 19 (1).

Insert instead “Except as provided by section 22, in”.

[2]Section 20 Number of jurors in civil proceedings

Omit “Subject” from section 20 (1).

Insert instead “Except as provided by section 22 and subject”.

[3]Section 20 (2)

Insert “, except as provided by section 22,” after “shall”.

[4]Section 21 Number of jurors in coronial inquests

Omit “The”. Insert instead “Except as provided by section 22, the”.

[5]Section 22 Continuation of trial or inquest on death or discharge of juror

Omit “whether as being through illness incapable of continuing to act or for any other reason”.

Insert instead “under Part 7A”.

[6]Section 22

Omit “so orders”.

Insert instead “orders that the trial or coronial inquest continue with a reduced number of jurors under Part 7A”.

[7]Part 7A

Insert after Part 7:

Part 7ADischarge of jurors53AMandatory discharge of individual juror(1)

The court or coroner must discharge a juror if, in the course of any trial or coronial inquest:

• (a)

  it is found that the juror was mistakenly or irregularly empanelled, whether because the juror was disqualified or ineligible to serve as a juror or was otherwise not returned and selected in accordance with this Act, or

• (b)

  the juror becomes disqualified from serving, or ineligible to serve, as a juror, or

• (c)

  the juror has engaged in misconduct in relation to the trial or coronial inquest.

(2)

In this section:

misconduct, in relation to a trial or coronial inquest, means:

• (a)

  conduct that constitutes an offence against this Act, or

  Note—

  For example, under section 68C it is an offence for a juror to make certain inquiries except in the proper exercise of his or her functions as a juror.

• (b)

  any other conduct that, in the opinion of the court or coroner, gives rise to the risk of a substantial miscarriage of justice in the trial or inquest.

53BDiscretionary discharge of individual juror

The court or coroner may, in the course of any trial or coronial inquest, discharge a juror if:

• (a)

  the juror (though able to discharge the duties of a juror) has, in the judge’s or coroner’s opinion, become so ill or infirm as to be likely to become ineligible to serve as a juror before the jury delivers their verdict or has become so ill as to be a health risk to other jurors or persons present at the trial or coronial inquest, or

  Note—

  Under clause 12 of Schedule 2, a juror who because of sickness or infirmity is unable to discharge the duties of a juror is ineligible to serve as a juror.

• (b)

  it appears to the court or coroner (from the juror’s own statements or from evidence before the court or coroner) that the juror may not be able to give impartial consideration to the case because of the juror’s familiarity with the witnesses, parties or legal representatives in the trial or coronial inquest, any reasonable apprehension of bias or conflict of interest on the part of the juror or any similar reason, or

• (c)

  a juror refuses to take part in the jury’s deliberations, or

• (d)

  it appears to the court or coroner that, for any other reason affecting the juror’s ability to perform the functions of a juror, the juror should not continue to act as a juror.

Note—

Section 22 provides for the continuation of a trial or inquest on the death or discharge of a juror.

53CDiscretion to continue trial or coronial inquest or discharge whole jury(1)

If a juror dies, or the court or coroner discharges a juror in the course of a trial or coronial inquest, the court or coroner must:

• (a)

  discharge the jury if the court or coroner is of the opinion that to continue the trial or coronial inquest with the remaining jurors would give rise to the risk of a substantial miscarriage of justice, or

• (b)

  if of the opinion that there is no such risk and subject to section 22, order that the trial or coronial inquest continue with a reduced number of jurors.

(2)

A court or coroner that discharges a jury under subsection (1) (a) may stay the proceedings on such terms as the court or coroner thinks fit if a party gives notice of an intention to lodge an application for leave to appeal for review of the decision under section 5G of the Criminal Appeal Act 1912.

(3)

Where a jury in civil proceedings is discharged under this section, the proceedings may, without any new process for that purpose, be set down for trial either at the same or any subsequent sittings, as the court may order.

[8]Section 73 Verdict not invalidated in certain cases

Omit section 73 (a). Insert instead:

(a)

that any juror was, after being required by summons to attend for jury service, mistakenly or irregularly empanelled, whether because the juror was disqualified from serving, or was ineligible to serve, as a juror or was otherwise not returned and selected in accordance with this Act, or

Note—

For example, this paragraph prevents the verdict of a jury from being invalid if, as in R v Brown & Tran[2004] NSWCCA 324, a juror who received a jury summons reported for service a day early and was mistakenly empanelled.

(a1)

that any juror became disqualified from serving or ineligible to serve as a juror in the course of the trial or coronial inquest, or

[9]Section 73 (b)

Insert “or” after “Act,”.

[10]Section 73 (2)

Insert at the end of section 73:

(2)

Subsection (1) does not apply:

• (a)

  in respect of a juror if the juror impersonated, or is suspected of impersonating, another person, or

• (b)

  if there is evidence of any other attempt to deliberately manipulate the composition of the jury.

[11]Section 73A Investigation by sheriff of jury irregularities

Insert “(including a report under section 75C)” after “reason” in section 73A (1).

[12]Section 75C

Insert after section 75B:

75CJuror may report misconduct and other irregularities(1)

A juror who in the course of the trial or coronial inquest has reasonable grounds to suspect any irregularity in relation to another juror’s membership of the jury, or in relation to the performance of the other juror’s functions as a juror, may disclose the suspicion and the grounds on which it is held to the court or coroner.

(2)

A former juror who has reasonable grounds to suspect any irregularity in relation to another former juror’s membership of the jury on which they served or in relation to the performance of the other former juror’s functions as a juror on that jury, may disclose the suspicion and the grounds on which it is held to the sheriff.

(3)

Section 68B (1) does not prohibit a juror from making a disclosure under this section.

(4)

In this section:

irregularity, in relation to a juror’s membership of a jury, or the performance of the juror’s functions as a juror, means the following:

• (a)

  the commission by the juror of an offence under this Act or any other misconduct,

• (b)

  a juror becoming disqualified from serving, or ineligible to serve, as a juror,

• (c)

  the refusal of the juror to take part in the jury’s deliberations,

• (d)

  the juror’s lack of capacity to take part in the trial or coronial inquest (including an inability to speak or comprehend English),

• (e)

  the juror’s inability to be impartial because of the juror’s familiarity with the witnesses, parties or legal representatives in the trial or coronial inquest, any reasonable apprehension of bias or conflict of interest on the part of the juror, or any similar reason.

[13]Schedule 8 Transitional and savings provisions

Insert at the end of clause 1A (1):

Jury Amendment Act 2008

[14]Schedule 8, Part 11

Insert after Part 10:

Part 11Transitional and savings provisions consequent on enactment of Jury Amendment Act 200820Pending trials and inquests

An amendment made by the Jury Amendment Act 2008 applies to and in respect of any jury empanelled in a trial or coronial inquest after the commencement of the amendment.

Schedule 2Amendment of Criminal Appeal Act 1912

(Section 4)

[1]Section 5G

Insert after section 5F:

5GAppeal against discharge of whole jury(1)

The Attorney General, Director of Public Prosecutions or any other party to a trial of criminal proceedings before a jury may appeal to the Court of Criminal Appeal for review of any decision by the court to discharge the jury, but only with the leave of the Court of Criminal Appeal.

(2)

The Court of Criminal Appeal is to deal with an appeal as soon as possible after the application for leave to appeal is lodged.

(3)

The Court of Criminal Appeal:

• (a)

  may affirm or vacate the decision appealed against, and

• (b)

  if it vacates the decision, may make some other decision instead of the decision appealed against.

(4)

If leave to appeal under this section is refused by the Court of Criminal Appeal, the refusal does not preclude any other appeal following a conviction on the matter to which the refused application for leave to appeal related.

(5)

This section does not apply to the discharge of a jury under section 51, 55E, 56 or 58 of the Jury Act 1977.

[2]Schedule 1 Savings and transitional provisions

Insert at the end of the Schedule:

13Jury Amendment Act 2008

Section 5G, as inserted by the Jury Amendment Act 2008, applies to and in respect of a decision of a court concerning a jury empanelled after the commencement of the section.