Jury Act 1977

The Act’s reach is deliberately broad. Every person enrolled as an elector for the Legislative Assembly is both qualified and liable to serve (s 5), subject to the exclusions in Schedule 1 and exemptions in Schedule 2. This captures the overwhelming majority of adult NSW residents. Schedule 1 permanently or temporarily excludes those with serious criminal histories (cl 1–4), holders of high public office (cl 5), Australian lawyers (cl 5A), certain public-sector legal and law-enforcement staff (cl 6), persons with access to correctional information (cl 7), undischarged bankrupts (cl 8), and those subject to various supervision or detention orders (cl 4). Schedule 2 grants an entitlement to exemption for clergy, vowed religious, practising dentists, pharmacists, medical practitioners, emergency-services workers, recent jurors, and full-time carers (cll 1–9).

The sheriff and deputy sheriffs are the primary administrators (ss 10–17, 23–29, 74). Electoral Commissioner, Commissioner of Police, Transport for NSW and Corrective Services are obliged to supply information (ss 75A–75B). Courts (Supreme, District, Local, Coroners) and individual judges and coroners exercise powers to excuse jurors (s 38), order additional jurors (s 19(2)), discharge jurors (Part 7A), give directions on prejudicial material (s 55D), and decide whether to continue with a reduced jury (s 22). Parties to proceedings hold challenge rights (Part 6) and, in civil jury trials, may be ordered to pay juror fees (s 72(2)). Employers are directly regulated by the anti-victimisation and leave provisions (ss 69–69A). Jurors themselves are both beneficiaries and subjects of the offence regime protecting deliberation secrecy (ss 68–68C) and the payment entitlement (s 72). Former jurors remain affected by the lifelong non-disclosure rules (s 68A) and may be approached for research only with Attorney General authority.

Rights of prospective jurors include the right to claim exclusion under Schedule 1 or exemption as of right under Schedule 2 (s 7), to apply for permanent exemption on health grounds (s 14(2)), deferral within the summons period (s 14B), or exemption for good cause (s 14(3)). Once summoned, a person may request excusal from the trial judge or coroner even if the sheriff refused (s 38(2)). Jurors are entitled to anonymity through identification numbers (s 29), protection from employer prejudice (s 69), and payment for attendance (s 72). They enjoy the statutory shield against disclosure offences when reporting misconduct to the court or sheriff (s 75C).

Duties are onerous. A summoned person must attend until discharged (s 26(1)), complete and return questionnaires truthfully (s 61), and refrain from private inquiries (s 68C). Once empanelled, jurors must not disclose deliberations except to fellow jurors during the trial (s 68B(4)) or to the sheriff or court under authorised investigation (s 73A). Employers must not dismiss, injure or alter the position of an employee because of jury service, nor require use of leave or additional hours to compensate (ss 69, 69A). The sheriff must maintain rolls, conduct random selections, notify persons, determine claims, certify current rolls, and produce them when required (ss 10–17, 25, 28). Courts must conduct ballots in open court (ss 48–50), examine jurors on oath where majority verdicts or discharge are contemplated (ss 55F, 56), and may stay proceedings pending appeal from a discharge decision (s 53C(2)).

Part 9 creates a graduated enforcement regime. Failure to return a questionnaire attracts 10 penalty units (s 61). Supplying false information or causing false representations carries 50 penalty units (s 62). Failure to attend without reasonable excuse is punishable by 20 penalty units (s 63), with an on-the-spot penalty notice option of 15 penalty units (s 66). Personation is 50 penalty units (s 67). Unauthorised disclosure of juror identity carries up to two years’ imprisonment or 50 penalty units (or $250,000 for a corporation) (s 68). Soliciting or harassing jurors for deliberation information is an indictable offence punishable by seven years’ imprisonment (s 68A). Wilful disclosure of deliberations during trial is 20 penalty units (s 68B); offering to disclose for reward is 50 penalty units. Private inquiries by a criminal juror attract 50 penalty units or two years’ imprisonment or both (s 68C). Employer offences reach 200 penalty units for corporations or 50 penalty units plus 12 months’ imprisonment for individuals (s 69), with onus reversal once the prohibited reason is shown (s 69(2)).

Enforcement is primarily summary before the Local Court (s 71), although s 68 corporate offences may proceed summarily in the Supreme Court and s 68A is dealt with under Chapter 5 of the Criminal Procedure Act 1986. Certificates signed by the sheriff are prima facie evidence of non-attendance (s 63(2)). The sheriff may investigate irregularities with court consent (s 73A) and report to the court, including identifying jurors where necessary. Verdicts are not invalidated by technical irregularities unless there has been deliberate manipulation of jury composition (s 73(2)).

The Act is expressly linked to the Interpretation Act 1987 (note to s 4(1)). Jury districts are determined by reference to electoral districts under the Electoral Act 2017 (s 4, s 9). Criminal proceedings include prosecutions on indictment and certain Mental Health Act matters (s 4). Coronial juries are constituted under s 48 of the Coroners Act 2009. Additional-juror orders may be made only for trials prescribed by regulation (s 19(2)(b)). Majority verdicts do not apply to Commonwealth offences (s 55F(4)). Challenges and balloting continue the pre-1977 common law except as modified (s 41). The Witness Protection Act 1995 prevents disclosure of protected witnesses’ identities to the panel (s 38(10)). Employer provisions interact with the Fair Work Act 2009 (Cth) and industrial instruments but operate concurrently. The Evidence Act 1995 applies to examinations under s 55DA and to sheriff investigations (s 73A(4)). The Criminal Appeal Act 1912 s 5G supplies appeal rights from discharge decisions (s 53C(2)). The Oaths Act 1900 governs juror oaths (s 72A) and statutory declarations (s 14C). Schedule 1 cross-references the Terrorism (Police Powers) Act 2002, Crimes (High Risk Offenders) Act 2006, Child Protection (Offenders Registration) Act 2000 and Mental Health and Cognitive Impairment Forensic Provisions Act 2020. The Act does not apply to mine-related inquests in the Broken Hill Jury District (s 4A).

The Jury Amendment Act 2024 made four targeted changes. It expanded “good cause” in s 14A to include any “disability associated with that person” that would render the person unsuitable without reasonable accommodation, and clarified that temporary disabilities may qualify. Section 38 was amended to allow verbal or written requests to be excused and to require the judge to call on the panel to apply for excusal after the charge and witnesses are identified. Section 54 was replaced to permit separation of the criminal jury at any time before or after retirement, subject only to a contrary court order, reflecting modern recognition that sequestration is rarely necessary. Section 73A was amended to allow the sheriff to investigate irregularities on the sheriff’s own initiative where a report under s 75C has been received. These amendments responded to practical difficulties experienced during lengthy or sensitive trials and to recommendations arising from juror feedback and coronial reviews. Earlier significant changes include the 2010 wholesale substitution of Part 2 and Schedules 1 and 2 to modernise exclusion categories and introduce deferral (s 14B), the 2007–2008 additional-juror regime to reduce mistrials in long cases, and the 2004 insertion of ss 68C and 73A following high-profile cases involving internet research and juror misconduct.

Because the Act is largely procedural, direct constitutional challenges have been rare. In R v Brown & Tran [2004] NSWCCA 324 the Court of Criminal Appeal held that mistaken early attendance and empanelment of a juror who had received a summons for the following day did not invalidate the verdict; this outcome is now expressly preserved by s 73(1)(a). Challenges to the validity of majority-verdict provisions under s 55F have failed on the basis that they do not interfere with the essential characteristics of trial by jury protected by s 80 of the Commonwealth Constitution (Brown v The Queen (1986) 160 CLR 171 applied in subsequent NSW decisions). The anonymity regime (s 29) and non-publication offences (s 68) have been upheld against free-speech arguments on the ground that they protect the integrity of the jury system. Controversies have centred on practical operation: the 2004 juror-inquiry offence (s 68C) followed cases in which jurors conducted Google searches; the sheriff’s investigative power (s 73A) was inserted after concerns that courts lacked a structured mechanism to inquire into alleged misconduct without prematurely discharging the jury. Employment-protection litigation under s 69 has been sparse but courts have confirmed the reversed onus once a prohibited reason is shown. The expansion of Schedule 1 exclusions has drawn occasional criticism from civil-liberties groups for permanently barring reformed offenders, yet the Act’s quashing and pardon exceptions (cll 1(2), 2(4)) mitigate that concern.

Most practitioners do not realise that a person who attends on the first day and then successfully applies to be excused under s 38 loses the statutory right to payment (s 72(1A)). The identification-number system (s 29) means that once the ballot has occurred the parties and public never learn the actual names of the jurors; any subsequent investigation under s 73A requires a specific court order before names can be released. Section 68C’s prohibition on “making an inquiry” is extraordinarily broad: it expressly includes searching an electronic database, viewing a place or object outside the evidence, or causing another person to inquire. A juror who asks a friend to drive past the crime scene has committed the offence even if no information is ultimately obtained. Employers frequently overlook that s 69A prohibits requiring a juror to work any hours on a day the jury is sitting, even if the court rises early; the prohibition is not limited to normal working hours. The power to order additional jurors (s 19(2)) is available only if the court is also satisfied that appropriate facilities exist—an often-overlooked precondition that can lead to successful appeals if ignored. Finally, the 15-month cull period in s 15A(2) (or up to two years by regulation) means that a person who has been on a jury roll for that period is automatically removed even if they have never been summoned; many lawyers assume liability continues indefinitely.

Sheriffs and court staff must ensure random selection is auditable (s 12(5)), maintain separate supplementary and main rolls (s 15A), and certify rolls immediately after each supplementation or cull (s 16). All notices under s 13 must contain the prescribed questionnaire and advice of exclusion and exemption categories. Claims are determined on the balance of probabilities; statutory declarations may be required (s 14C). When additional jurors are contemplated, written orders recording satisfaction of the statutory criteria (nature, duration, complexity, facilities) should be placed on the court file.

Legal practitioners should advise clients that peremptory challenges are limited and that challenges for cause must be made before the juror is sworn (s 45). In criminal matters the Crown and accused must be ready to identify principal witnesses (subject to witness-protection restrictions) so that the judge can call for excusal applications (s 38(7)). Applications for additional jurors should be made before jury selection and supported by evidence of likely length and risk of discharge. If a juror appears to have made private inquiries, an application for examination under s 55DA should be made promptly.

Employers must maintain policies that treat jury summonses as an authorised absence not requiring annual or personal leave. No request for make-up hours or shift swaps that would penalise the employee is permissible. Records should demonstrate that any adverse action taken during the jury-service period was for unrelated, documented reasons.

Prospective jurors should respond to questionnaires fully and truthfully, retain the summons, and notify the sheriff immediately of any change of address or disqualifying event (s 62A). Applications for exemption or deferral should be supported by evidence (medical certificates, carer affidavits) and lodged before the attendance date. Once empanelled, jurors must avoid all external discussion of the case, refrain from independent research, and report any fellow-juror misconduct to the judge or coroner under s 75C. After discharge, lifelong non-disclosure obligations continue except for authorised research or official investigations.

Compliance is best achieved by treating the Act as an integrated code: early identification of exclusion or exemption grounds, meticulous record-keeping by the sheriff, transparent judicial reasoning on discharge and majority-verdict applications, and clear client advice on the severe consequences of breaching deliberation secrecy. Regular training for court staff on the 2024 amendments to ss 14A, 38, 54 and 73A is now essential.