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The origins of the jury date back to the thirteenth century, when it seems a jury was a collection of local witnesses or local men of good standing. The function of trial by jury today is to decide facts based on evidence presented to the court, under the direction and supervision of the judge. Juries are used in both criminal and civil cases, although they are much less common in civil cases. In all Australian states and territories, juries in criminal cases for serious offences (called indictable offences) consist of 12 people. In New South Wales, the requirements of a unanimous jury of 12 were amended in 2006 to allow for a majority verdict of 11 jurors in criminal trials in certain circumstances (Jury Act 1977 , section 55F). Some other states also accept a majority verdict (such as 10 or 11 out of 12). Juries are not used in less serious (‘summary’) criminal proceedings, which are heard by a magistrate or judge alone. In New South Wales, a defendant charged with an indictable offence who has a right to trial by jury may elect to be tried by a judge alone (Criminal Procedure Act 1986, section 132). A jury verdict can only be appealed against if there is a serious error of law or serious misdirection by the trial judge. In criminal cases the jury determines whether the defendant is guilty ‘beyond reasonable doubt’ but does not decide on the sentence to be imposed. In civil cases, the size of a jury varies between states. In NSW a civil jury consists of four people; in Victoria, 6-8, in Tasmania, 7; and in South Australia juries are only used for criminal trials. The use of juries in civil cases is limited, and in New South Wales usually only occurs in defamation cases. In civil cases the jury decides whether the defendant is liable on the balance of probabilities. Majority verdicts in civil cases are also allowed for now under the Jury Act 1977, section 57. In NSW, a coroner’s jury, if the coroner does not sit alone, is six persons. Criminal Procedure Act 1986 (NSW) Jury Act 1977 (NSW) Members of juries are selected at random by computer from the state electoral roll and are notified in writing. Jury selection is also governed by the Jury Act 1977. Jury service is compulsory, but under the Jury Act, certain people are disqualified from serving on a jury, including those who: Certain people are ineligible to serve on a jury, including: People who are called for jury duty must attend court, where they might be chosen for a particular case by a ballot. Once this occurs, both the prosecution and defence in the case have the right to object to up to three people without giving a reason, and more with reasons which must be assessed by the judge. Jurors either take an oath on the Bible (although it is not necessary that a religious text be used) or make an affirmation in accordance with their beliefs: see Jury Act 1977, section 72A. During the course of the case, they are forbidden to discuss the case with anyone else, although they are able to go home each night. Jurors are provided with a notebook which must be left with the court when they go home at night. The notebooks are destroyed at the end of the trial. At the end of the case, the barrister for each side will sum up their arguments. The judge will then give a summary of the evidence presented and may give warnings of dangers in certain types of evidence that may not be obvious to jurors. Instructions, warnings and comments given by the judge to a jury are known as ‘jury directions’. The jury then retires to a private room where they discuss the evidence and try to reach a verdict. If they are unable to agree by the end of the day, they are generally allowed to go home, but cannot discuss the case with anyone else. Once agreement is reached, the jury returns to the court and the jury leader, selected by the jury, delivers the verdict. If the jury cannot agree on a verdict (known as a ‘hung jury’), the court discharges the jury and may order a new trial. Jury service is administered by the Office of the Sheriff of NSW. The jury system in NSW is administered by the Jury Services Branch of the Office of the Sheriff of New South Wales. Check their website for information including the role of a jury, how a jury is selected, applying to be excused and payment. You can also contact them on the Juror Information Line on 1300 722 574 or by email.
Do you need a lawyer, or are you representing yourself in court? Find information about court procedures and forms. Find out about our legal system. Disclaimer What are fair trial and fair hearing rights?The right to a fair and public criminal trial or a fair and public hearing in civil proceedings is one of the guarantees in relation to legal proceedings. Fair trial and fair hearing rights include:
The other guarantees are the presumption of innocence, and minimum guarantees in criminal proceedings, such as the right to counsel and not to be compelled to self-incriminate. For more information on the other guarantees in article 14 of the ICCPR, see the Guidance Sheets on the Presumption of innocence and Minimum guarantees in criminal proceedings. Where do fair trial and fair hearing rights come from?Australia is a party to seven core international human rights treaties. Fair trial and fair hearing rights are contained in article 14 of the International Covenant on Civil and Political Rights (ICCPR). See also article 40 of the Convention on the Rights of the Child (CRC) and article 13 of the Convention on the Rights of Persons with Disabilities (CRPD). When do I need to consider the right to a fair trial and fair hearing?You will need to consider the right to a fair trial and/or fair hearing when you are working on legislation, a policy or a program that:
This list should not be regarded as exhaustive. What is the scope of the right to a fair trial and a fair hearing?The right to a fair trial and a fair hearing applies to both criminal and civil proceedings, and in cases before both courts and tribunals. It also applies to military disciplinary hearings. The right is concerned with procedural fairness, rather than with the substantive decision of the court or tribunal. EqualityWhat constitutes a fair hearing will require recognition of the interests of the accused, the victim and the community (in a criminal trial) and of all parties (in a civil proceeding). In any event, the procedures followed in a hearing should respect the principle of 'equality of arms', which requires that all parties to a proceeding must have a reasonable opportunity of presenting their case under conditions that do not disadvantage them as against other parties to the proceedings. The UN Human Rights Committee has found a violation of article 14(1) in a case in which a right of appeal was open to the prosecution but not to the accused. The right to a public hearingThe right to a public hearing incorporates the principle that justice should not only be done, but be seen to be done, by subjecting legal proceedings to public scrutiny. However, pre-trial decisions made by prosecuting authorities are not required to be made in public. In some cases, appellate decisions may be made 'on the papers', rather than on the basis of a public hearing. This will not breach the right to a public hearing if the material on which the court bases its decision is publicly available, as is the decision itself. The requirement in article 14(1) that decisions be made public is based on the principle that legal proceedings be subject to public scrutiny. Some methods whereby witnesses give evidence, for example by video link, or where the witness is shielded from the accused, may raise issues regarding the right to a public hearing. Proceedings may also be closed to the public in the interests of national security. However, while each case should be considered on its merits, such measures are likely to be permitted, given their legitimate objectives. Independent and impartialIn Australia, the requirement of an independent and impartial court is underpinned by the doctrine of the separation of judicial power from executive and legislative power under the Constitution. The principle of judicial independence ensures that disputes between people, and between people and governments, are resolved by courts and judges who are impartial and are not subject to improper control or pressure, whether governmental or private. The requirement of impartiality also means that proceedings must be free from bias and the objective perception of bias. A number of federal tribunals and other bodies have been established to deal with review of administrative decisions and actions taken by government officials. Tribunals are independent bodies which provide 'merits review'. Merits review is the process by which a person or body, other than the primary decision maker, reconsiders the facts, law and policy aspects of the original decision and determines the 'correct or preferable decision'. In a merits review, the whole decision is made again on the facts. Top of page Can the right to a fair trial and fair hearing be limited?DerogationUnder article 4 of the ICCPR, countries may take measures derogating from certain of their obligations under the Covenant, including the right to a fair trial and fair hearing'in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed'. Such measures may only be taken 'to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin'. The UN Human Rights Committee has indicated that strict limitations would apply to any derogation under article 14. LimitationArticle 14(1) provides that the press and the public may be excluded from all or part of a trial for reasons of morals, public order, national security, the privacy of the parties, or when in the opinion of the court publicity would prejudice the interests of justice. Suppression orders or closed hearings may be justified in order to protect particularly vulnerable witnesses (for example, child victims of sexual assault). Article 14 provides that the requirement that decisions be made public does not apply where the interests of children require otherwise, for example, in family law matters. Which domestic laws relate to fair trial and fair hearing rights?Chapter III of the Constitution establishes the High Court of Australia, defines its jurisdiction and sets parameters for its composition. The Constitution also sets parameters for the vesting of jurisdiction and appointment, tenure, remuneration and removal of judicial officers for each of the federal courts (including the High Court). The Judiciary Act 1903 makes provision for numerous matters regarding the exercise of the jurisdiction and judicial power of the Commonwealth. The Federal Court of Australia Act 1976 establishes the Federal Court of Australia and makes provision for the composition, management, jurisdiction and other operations of the Federal Court. The Family Law Act 1975 contains provisions governing these matters for the Family Court and the Federal Magistrates Act 1999 provides for these functions for the Federal Magistrates Court. The High Court has held that the right to a fair trial may be called into question if certain minimum guarantees in criminal proceedings such as the absence of legal representation where the accused faces a serious criminal charge are not met. See further detail in the Guidance Sheet on Minimum guarantees in criminal proceedings. The Administrative Decisions (Judicial Review) Act 1977 enables the review of certain administrative decisions on grounds including that a decision was not procedurally fair. There are also common law procedural fairness protections which may apply. The Evidence Act 1995 sets out the rules of evidence that apply in proceedings in federal courts. The Crimes Act 1914 also makes provision regarding the admissibility of evidence in particular types of cases. Part 1AD of the Crimes Act contains special provisions for the giving of evidence by child witnesses in some legal proceedings. It also restricts the publication of the identity of child witnesses. Part 1AE of the Crimes Act provides for the giving of evidence by video link in terrorism cases. Section 121 of the Family Law Act creates an offence punishable by imprisonment for up to one year for publishing or otherwise disseminating to the public information that identifies a party to family law proceedings. The National Security Information (Criminal and Civil Proceedings) Act 2004 prevents the disclosure of information in criminal and civil proceedings that would be likely to prejudice national security. Among the matters that a court is required to consider in exercising powers under the Act is the defendant's right to receive a fair hearing. What other rights and freedoms relate to fair trial and fair hearing rights?Circumstances giving rise to consideration of the right to a fair trial and fair hearing may also raise the other rights in relation to legal proceedings contained in article 14 of the ICCPR, namely the presumption of innocence, and minimum guarantees in criminal proceedings, such as the right to counsel (if necessary to secure a fair trial) and not to be compelled to self-incriminate. These circumstances may also be relevant to:
Articles from relevant ConventionsInternational Covenant on Civil and Political Rights Article 14(1)
See also: CRC article 40; CRPD article 13. Where can I read more about fair trial and fair hearing rights?Top of page |
What are the limits to the right to a trial by jury?
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