Participating on a jury 1788-present
Trial by jury is an essential part of the criminal justice system. The jury system is particularly important to Aboriginal people, given their overrepresentation in the criminal justice system. Historically, Aboriginal people were generally excluded from NSW juries. They continue to be underrepresented today. Calls for Aboriginal representation on juries have also been repeatedly denied.
The jury has long been regarded as an essential part of the criminal justice system (). It is a mechanism that is underpinned by citizen participation to provide a safeguard against oppressive criminal charges.
However, it has not always been that way. Colonists and officials of the NSW colony argued for the right to trial by jury from as early as 1791 (). It was not until 1823 that a form of trial by jury was established in NSW when the New South Wales Act 1823 (UK) () created the Supreme Court of NSW and the Courts of General or Quarter Sessions ().
Criminal trials in the Supreme Court were originally heard before a judge and seven military or naval officers (). Non-criminal cases could be heard by a jury of 12 men who were land or property owners (), however only if a person applied to have their case heard by a jury (). Trial by jury was not used consistently in NSW at this time () ().
In 1832, the Jury Trials Act 1832 (NSW) () made it optional to have a jury of 12 citizens in criminal cases. The citizen jury consisted of men aged between 21 – 60. They also had to earn a yearly income of at least 30 pounds from real estate or own personal estate valued at a minimum of 300 pounds. There is no evidence of an Aboriginal man serving on a jury during this time and it may be expected that the property-related conditions would have excluded many Aboriginal men in these years.
The Jury Trials Act 1839 (NSW) () ended trial by military officers and made a jury of 12 civilians standard for criminal cases. However, this and subsequent laws continued a property or income requirement for jurors (), ().
In 1947, the property requirement to serve on a jury was removed (). From this time, juries were composed of men who were ‘entitled to be enrolled as an elector' in NSW and women who registered themselves on the jury roll. For information on barriers to Aboriginal people enrolling as electors in NSW, see SUB0314 and SUB0317.
From 1977, when the Jury Act 1977 (NSW) () began, women no longer had to register themselves on the jury role. The Jury Act remains in force today and is the principal law for summoning juries.
At the time when the Jury Act was made, the lack of Aboriginal representation on juries was known to Parliament. During the second reading speech, the Hon L.A Solomons said ‘of the 300 to 400 people of Aboriginal extraction in the Tamworth area, only one person who could genuinely claim to have Aboriginal blood was on the [jury] roll.’ ()
Calls for Aboriginal representation on juries have been made since at least the 19th century. For example:
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An 1830 publication by the former Attorney-General of NSW called for the administrators of British law to ‘organise juries of half natives and half colonists, for cases affecting natives’ ().
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An 1840 report endorsed by a committee of the ‘Aborigines Protection Society’ for circulation among members of Parliament called for a ‘mixed jury’ of colonist and Aboriginal members ().
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In 1944, anthropologist AP Elkin argued that the use of a white jury in cases with Aboriginal and European parties could contain, ‘potent seeds of bias and injustice’. He suggested that there should either be no jury or that the jury consist of half white and half Aboriginal members. ().
These proposals were never implemented into law.
An early example of Aboriginal people requesting a trial by an Aboriginal jury in NSW was in 1836, when two Aboriginal men were accused of murdering two other Aboriginal men (). They requested an all-Aboriginal jury but were denied it.
More recent case law has also considered the underrepresentation of Aboriginal people on juries. In R v Smith (1982), three Aboriginal members of the jury panel were challenged by the Crown Prosecutor and did not serve on the jury (). The trial judge dismissed the jury and required the trial to take place on another day. The judge found that a lack of Aboriginal people on the jury could ‘suggest that justice is not being done.’
In 1986, the New South Wales Law Reform Commission considered the Jury Act and endorsed the idea that all Australians should have an equal chance to serve as jurors (). In 2007, the Commission again considered the issue of jury participation and found that Aboriginal people are disproportionately precluded from jury duty (). For example, those who are unable to speak or read Standard English (disqualified by Schedule 2 of the Jury Act 1997) and those with chronic health problems, including hearing loss, may be lawfully disqualified from jury service ().
The law and policy in this subject is accurate as of 1 July 2022.