THE NSW Law Reform Commission has made recommendations which, if taken up, would allow lawyers for the first time to serve as jurors in NSW.
The recommendations form part of the commission’s report on jury selection released earlier this month which recommended a widening of the jury pool by removing some of the categories of professions that are currently excluded.
Under the current system and throughout the state’s legal history, “Australian lawyers” have been excluded from the jury pool. This means that any person who has been admitted to the legal profession in an Australian jurisdiction, even if not practising as a lawyer, is ineligible to serve as a juror in NSW.
According to the report, the traditional justification made for the prohibition on lawyers serving as jurors is that their legal knowledge and experience could result in them exercising an undue influence on other jurors.
The report concluded however, that this justification “is unsupported by experience elsewhere, ignores the obligation of jurors to decide cases in accordance with the directions of the trial judge and fails to take account of the role of the jury which is to find facts”.
Determining the restriction to be unjustifiably wide, the report recommended that lawyers should be eligible to serve as jurors, subject to some exceptions including crown prosecutors, public defenders and public sector lawyers involved in criminal cases.
The president of the Law Society of New South Wales, Hugh Macken, has supported the recommendation.
“Juries are crucial to the administration of justice and it’s important that in order for juries to enjoy the confidence of the public that they be selected from the whole of society without exclusions,” he said. “Solicitors should be treated like all other members of the community and be given the opportunity to show cause as to why they should not be allowed to serve as jurors.”
Among other things, the report also concluded that remuneration currently paid to jurors is insufficient and creates a disincentive to serve for those whose earn over the allowance.
The commission recommended that the base amount paid to all jurors should be moderately increased and an additional “capped amount” should also be available for jurors who suffer loss over and above the base amount. Being eligible for this additional amount would require the juror to produce a certificate of loss of earning or benefit. While the report didn’t specify precisely what this additional capped amount should be, it suggested that the cap be set near average weekly earnings.
In Macken’s view, jurors should be compensated with an average full-time wage. “On average a full-time worker is paid over $200 per day and we don’t believe it is unreasonable for jurors to receive such an amount for their work as a juror,” he said. “People should not be financially disadvantaged for serving on a jury.”