Civil juries

[3-0000] Introduction

Historical background

Traditionally nearly all trials in the Common Law Division of the Supreme Court and many trials in the District Court were heard and determined by juries. Commencing in 1965 with the Law Reform (Miscellaneous Provisions) Act 1965, which generally abolished trial by jury in personal injury actions arising out of the use of motor vehicles (running down cases), the role of the civil jury has gradually been diminished almost to the point of extinction save in defamation cases. Prior to 18 January 2002, s 88 of the Supreme Court Act 1970 (now repealed) provided that proceedings on a common law claim in which there were issues of fact:

  • on a charge of fraud against a party,

  • on a claim in respect of defamation, malicious prosecution, false imprisonment, seduction or breach of promise of marriage,

were to be tried by a jury, but the court had power to dispense with a jury in such cases where any prolonged examination of documents or scientific or local investigation was required and could not conveniently be made with a jury, or the parties consented: SCA s 89(2) (repealed).

In other cases, apart from running down cases, either party could requisition a jury although the court had power to dispense with such mode of trial: SCA ss 85, 86, 87 (repealed). The right to jury trials in the District Court was regulated by the DCA ss 78, 79, 79A (repealed).

Actions of breach of promise of marriage were abolished by s 111A of the Marriage Act 1961 and, prior to the Defamation Act 2005, trial by jury in defamation cases was governed by the former Defamation Act 1974 s 7A, which still applies where the matter complained of was published prior to 1 January 2006: Habib v Nationwide News Pty Ltd (2006) 65 NSWLR 264.

For some historical background, see Pambula District Hospital v Herriman (1988) 14 NSWLR 387 at 394–7.

Current position

Section 85 of the SCA now provides that all proceedings are to be tried without a jury unless the court otherwise orders, but the court may make an order for trial by jury if a party files a requisition and pays the prescribed fee and the court is satisfied that “the interests of justice require a trial by jury in the proceedings”. Section 76A of the DCA is in similar terms. There is no provision for jury trials in the Local Court or the Dust Diseases Tribunal.

As to defamation cases, s 21 of the Defamation Act 2005 provides for trial by jury in such cases if either party elects unless the court otherwise orders. A future chapter on Defamation will deal with relevant directions and issues as to defamation proceedings.

As to the procedure for applications and requisitions for a jury, in proceedings other than defamation proceedings, see r 29.2 of the UCPR; concerning elections for juries in defamation proceedings, see r 29.2A.

The SCA and DCA do not set out any criteria as to which type of cases may be such that “the interests of justice require a trial by jury”. The Court of Appeal decision in Maroubra Rugby League Football Club v Malo (2007) 69 NSWLR 496 construes the “interests of justice” test (s 85(2)(b) of the Supreme Court Act 1970) and holds (at [17]–[18] per Mason P; Ipp and Tobias JJA agreeing) that the interests of justice refer to “considerations going beyond the private interests of the parties” and that the court “must be positively satisfied that the disinterested interests of justice require departure from the general rule of trial by judge alone”. Mason P considered at [32], “that the presence of fraud allegations or major credibility issues” would not suffice to meet the statutory test in s 85(2)(b) of the interests of justice.

Section 127A(1) of the DCA provides that following jury proceedings in the District Court an application for the setting aside of a verdict or judgment, a new trial or the alteration of quantum shall be by appeal to the Supreme Court. Such appeal lies as of right: DCA s 127A(2).

A civil jury is comprised of four jurors, but in the Supreme Court, the court may order a jury of 12 jurors: Jury Act 1977, s 20. Such an order has not been made for many years.

[3-0010] Selection and swearing of jury

  • associate calls the case

  • appearances announced

  • judge deals with any preliminary issues

  • judge says:

  • court officer brings the jury panel into court

  • the judge requires counsel for each party to inform the jury panel of the nature of the action and the identity of the parties and the principal witnesses to be called; and then calls on members of the panel to be excused if they consider that they may not be able to give impartial consideration to the case: Jury Act 1977, s 38(8)

  • the judge should also tell members of the panel that they may take an oath or make an affirmation if selected, although, unlike s 23(2) of the Evidence Act 1995, there is no obligation to do so. (The choice of oath or affirmation is provided by s 72A of the Jury Act which also provides that an oath is not invalidated if the person taking it does not have a religious belief.)

  • judge says:

  • associate stands — acknowledges to court officer that he or she is ready

  • court officer says:

  • associate shuffles the jury cards well, places them in the jury box and shakes well

  • associate calls four numbers out slowly (allowing the juror to get to his or her seat before calling out the next number)

  • court officer says:

  • associate calls four numbers out one at a time and allows for challenges

    Note:

    Section 42A of the Jury Act provides that each party has the number of peremptory challenges equal to half the number of jurors required to constitute the jury for the trial. In effect this means that in the case of a four person jury, each party, that is, the plaintiff(s) and each defendant or cross-defendant separately represented is entitled to two challenges. Challenges can only be made after the juror has been called to be sworn, but before he or she is sworn (or makes an affirmation): s 45(1). The associate then calls additional jurors as necessary. When challenges are complete the remaining four (or 12) jurors constitute the jury.

  • The court officer then hands a bible to those wishing to take the oath and says:

  • associate says:

Note:

If some jurors wish to take the oath and some make an affirmation, it is desirable that the oath and affirmation be administered separately.

  • judge sends balance of panel back to jury assembly area

  • order for witnesses to leave court until called upon to give their evidence

  • short introductory remarks by judge (see below).

[3-0020] Introductory remarks to jury

[3-0030] Sample civil summing-up

[Then deal with the law relating to the issues in the case and damages and summarise the evidence in the case, relating it so far as possible to the issues in the case and the major submissions of counsel.]

[3-0040] Disagreement

Where the jury has been retired for more than four hours, and is unable to agree on a verdict or on an answer to any specific questions put to the jury by the court, the verdict or answers of three jurors (or in the case of a jury of 12, of not less than eight jurors) shall be taken to be the verdict or answers of them all: Jury Act, s 57. In such case, the court may decide any issue of fact, but only if all the parties to the proceedings agree that it should do so: s 57A.

[3-0045] Discharge

If a juror dies or it becomes appropriate to discharge a juror during the course of the trial, the trial may be continued with a jury of three, or in the case of a jury of 12, of not less than eight: Jury Act, s 22.

The decision to discharge a juror and continue the trial with less than the specified number is a two-stage process and reasons must be given. The principles set out in Wu v The Queen (1999) 199 CLR 99, where applicable to a civil trial, should be followed.

Mandatory discharge of individual juror

The court must discharge a juror if it is found that the juror was mistakenly or irregularly empanelled (Jury Act, s 53A(1)(a)), has become excluded from jury service (s 53A(1)(b)) or has engaged in misconduct in relation to the trial: s 53A(1)(c). As to the meaning of misconduct, see s 53A(2).

Discretionary discharge of individual juror

The court may discharge a juror if:

  • The juror (though able to discharge the duties of a juror) has, in the judge’s opinion, become so ill, infirm or incapacitated as to be likely to become unable 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: s 53B(a)

  • it appears to the court that the juror may not be able to give impartial consideration to the case because of familiarity with the witnesses, parties or legal representatives, reasonable apprehension of bias or conflict of interest or similar reason: s 53B(b)

  • a juror refuses to take part in the jury’s deliberations (s 53B(c)), or

  • it appears to the court 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: s 53B(d).

Discretion to continue trial or discharge whole jury

If a juror dies or is discharged, the court must discharge the jury if it is of the opinion that to continue the trial with the remaining jurors would give rise to the risk of a substantial miscarriage of justice. If the court is not of that opinion, it must order that the trial continue provided there remain three jurors from a jury of four, or at least eight jurors from a jury of 12: s 53C(1) and s 22(b).

Where the jury is discharged, no new process is required for the matter to be set down as the court may order: s 53C(3).

Other matters

Section 73 provides that the verdict of a jury shall not be invalidated by certain irregularities. In particular, amendment to the section has overcome the invalidity established in R v Brown (2004) 148 A Crim R 268.

Section 75C provides that jurors and former jurors may report irregularities as defined in s 75C(4).

In Smith v Western Australia (2014) 250 CLR 473, a criminal case, the High Court considered what material should be taken into account in determining whether a real suspicion that a juror had been improperly influenced could be excluded. In Smith v The Queen (2015) 322 ALR 464, a criminal case, the High Court considered appropriate disclosure to the parties of the contents of notes from a jury.

In Lyons v Queensland (2016) 90 ALJR 1107; [2016] HCA 38 the High Court held that a deaf person who requires the assistance of an interpreter in the jury room is not eligible for jury service under the Jury Act 1995 (Qld).

[3-0050] Taking verdict

Return of jury

  • court officer says:

  • associate

  • foreman or forewoman

  • associate

Where jury asked for verdict

  • foreman or forewoman replies

  • if for plaintiff, associate continues:

  • foreman or forewoman replies

  • associate

  • foreman or forewoman sits down

Where jury asked to answer questions

  • associate

  • foreman or forewoman answers

  • reads question 1 and

  • foreman or forewoman replies (and so on through each question).

  • After last answer, associate says

  • judge then thanks the jury for their attendance and attention to the case, and discharges them and they leave with the court officer. Judge then deals with any outstanding issues such as costs, interest, etc, and makes orders for entry of judgment or otherwise.

Legislation

  • Defamation Act 2005, s 21

  • DCA ss 76A, 78, 79, 79A (repealed), 127A

  • Evidence Act 1995, ss 23(2), 165

  • Jury Act 1977, ss 20, 22, 38, 42A, 53A, 53B, 53C, 57, 57A, 72A, 73, 75C

  • Marriage Act 1961, s 111A

  • SCA 1970, ss 85–89

Rules

  • UCPR, rr 29.2, 29.2A