COVID-19 and the NSW District Court: There’s Light at the End of the Tunnel
By Sonia Hickey and Ugur Nedim
All jury trials in New South Wales were suspended in mid-March over concerns about the spread of COVID-19.
By the end of March, all judge-alone trials had also been suspended, along with many local court hearings and a number of other matters.
Over the past several weeks, many case-types cases such as a range of sentencing hearings have been conducted in a ‘virtual’ environment’, with the court relying on the use of email, text and video-link.
But now, as the pandemic begins to show signs of easing and health authorities gain increasing confidence that life can return to some sort of ‘normal’, the New South Wales District Court has announced that juries will also resume on 15 June 2020 at Sydney’s Downing Centre District Court and the Sydney West Trial Courts in Parramatta, as well as Newcastle District Court.
The courts have assured that appropriate measures will be put in place to ensure physical distancing and protect the health of juries and others involved in court proceedings.
Potential jurors will be screened upon entry with a temperature check, before they fill in a required questionnaire. Anyone who is unwell should apply for an exemption from service.
In the courtroom itself, there is a designated jury box where – previously – jury members would sit for the duration of the trial. However, this rule has been relaxed, and jurors will be able to spread out across the courtroom.
The maximum number of people within the courtroom will be strictly limited so that people don’t have to be near one another. Hand sanitisers, wash stations and individualised meals will be provided, and there will be an increase in commercial cleaning.
Selection of jurors and the appearance of other parties in the case will be by audio visual link.
The important role of juries
Juries are a critical part of the criminal justice system.
Trial by jury and the premise of being ‘innocent until proven guilty’ are fundamental rights, and the right to a trial by jury in the higher courts is one of the few rights guaranteed by the Commonwealth Constitution (section 80).
And for juries to function well, members of the community who are called to jury duty must take an active and engaged role in the process.
In New South Wales, about 250,000 people are summoned each year to participate in jury duty, randomly selected from the electoral role.
Typically, a jury is made up of 12 jurors but sometimes juries of 15 are empanelled in cases expected to last more than three months.
Most criminal cases in the District and Supreme Courts are determined by a jury.
In the New South Wales District Court alone, there are about 1000 jury trials a year. Some large civil law cases and coronial inquests may also require a jury, although in these cases the numbers are usually limited.
How are jurors selected?
Once jurors are told about the case, they can leave the selection process if they believe that they cannot be ‘impartial. Each potential juror is given a number and once 12 numbers have been called, the prosecution and each accused person can ‘challenge’ three potential jurors (the prosecution can challenge three potential jurors per accused person).
Under current guidelines – which may change – this selection process will now occur by audio-visual link.
In New South Wales no information about jurors, such as their background, profession or their views about any subject, is provided.
Once the selection is complete, all others who have come for jury duty are dismissed.
The role of the jury
The role of the jury in any trial is to hear the evidence and decide on guilt or innocence. They are called the ‘fact-finders’ in the case.
The judge’s role is the arbiter of the law, which involves summing up the case and directing the jury as to the law.
Jury service in New South Wales is regulated by the Jury Act 1977 (NSW).
That Act sets out the rules regarding qualification as jurors, jury selection and discharge, and also contains the offences that apply to jurors who engage in misconduct and others who seek to influence jurors or disclose their identity.