The idea of a right to a jury trial is so ingrained in New Zealand thinking that we often forget juries are unknown in continental Europe. They are part of our English inheritance, and lawyers from countries with different legal traditions regard our reliance on untrained lay people as bizarre. Nevertheless, juries are here to stay.
When the Law Commission made noises about getting rid of juries in sexual violence cases in late 2011, the Government quickly distanced itself, perhaps feeling that the public would not buy the reforms.
Type of cases which juries are likely to observe
In New Zealand juries are generally only used for criminal cases. The only civil cases in which juries are commonly used are defamation. There have been cases in New Zealand in which plaintiffs claiming damages for breach of the New Zealand Bill of Rights Act 1990 have requested jury trials, but the judges typically rule that the legal issues are too complicated for juries to apply.
The same reasoning was applied in the decision declining Susan Couch’s request to have a jury trial for her claim against the Parole Board for allowing William Bell out on parole. Bell attacked Susan Couch and killed Mary Hobson while on parole.
This lack of juries in civil cases distinguishes New Zealand courts from the United States, where the seventh amendment to the constitution provides:
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
This explains why Alan Shore and Denny Crane in Boston Legal get to address juries in cases about gun control and the tobacco industry. Such moments are television gold, but impossible in New Zealand, where the lawyer has only the judge to persuade. It also means that extravagant jury awards of exemplary or punitive damages, a Denny Crane staple, are unknown here.
Our judges have deliberately kept such awards in the tens of thousands, although the Court of Appeal upheld a jury award for defamation of $825,000 in a case in which the Court said ‘We have not had our attention drawn to any worse case of defamation in the British Commonwealth …’. Jury awards of damages are notoriously inconsistent.
In 2013 the New Zealand Law Commission recommended removing juries in defamation cases, which would make juries exclusively for criminal law.
Juries are always used for very serious criminal cases such as murder and manslaughter. For cases where the sentence has a maximum of more than two years, the accused can elect to have a jury trial. For sentences less than two years maximum the hearing is heard by a judge alone.
Inspection of jury panel
At the beginning of a trial the jury panel are brought into the court room and seated at the back. Their names are pulled from a wooden box one by one by the Court Registrar. As the jury member walks across to the jury box the Crown or Defendant’s lawyers may object to that particular juror. Each party is entitled to challenge four jurors without explaining why.
The parties will have limited information about each jury member. The main piece of information available to the defence will be the juror’s job, but the Crown will also have a list of the juror’s previous convictions. Anecdotally, teachers are often challenged because it is perceived that they will try and lead the rest of the jury.
Getting out of jury service
Employees can request the Registrar to defer their jury service to a period no later than one year after the person is summoned to attend jury service. The circumstance which would justify a deferral include: health, family commitments, disability and business or work commitments.
People can be excused from jury service entirely if it would cause undue hardship or serious inconvenience. The circumstances in which jury service can be excused rather than deferred include, as well as the circumstances justifying deferral: religious reasons, that the person is over 65, and that the person has already attended the service as a juror within the last two years.
Jurors can also be excused by the judge from a specific trial if they are personally connected to the facts of the trial, or the persons or witnesses involved. However, in that situation the juror would usually need to go to court on the day of the trial, as the power is exercised by the judge not the Court Registrar.
Contempt for refusing to perform jury service because of work commitments
In the case McAllister v Solicitor-General  NZHC 2217, Justice Lang considered a juror who had refused to sit on a jury and was consequently sentenced for 10 days’ imprisonment for contempt by the District Court Judge. This is a good example of when work commitments may not be sufficient to excuse someone from jury service.
Mr McAllister turned up on a Monday to undertake jury service. He was not required that day but was asked to return on the Tuesday, when he was selected to serve on a jury for a three-week trial. He was excused from serving, however, because of the effect a three-week trial would have on Mr McAllister’s work as an engineer. Before leaving he was asked by the Court Registrar to return the next day, although he was told that there was currently no jury trial scheduled for Wednesday. The Registrar said that a standby panel was required to attend in case the court was required to restart a trial, or another trial was scheduled to begin.
When Mr McAllister turned up on the Wednesday, he was balloted to serve on a new jury pool. He had organized his work commitments on the assumption that he would not need to attend court, and told the Judge that he wished to be excused because he was self-employed and a number of contracts had to be signed off. The Judge told him this was not a reason for being excused. He was told to take a seat in the jury panel.
After all the selected jurors had sat in the jury box, they were asked to take the required oath or affirmation. Mr McAllister refused, claiming he was under duress and that he did not know whether he could be impartial. The Judge sent him to the back of the courtroom. It transpired there were no extra jurors left and the trial was adjourned to the next day to select a new jury panel. At that stage Mr McAllister indicated that he could after all sit on the jury. He discovered that he could be impartial after all. The Judge sent Mr McAllister into custody where he saw a duty solicitor and later his own lawyer, David Jones QC.
The next morning Mr McAllister was convicted of contempt of the court and sentenced to 10 days’ imprisonment. Mr McAllister appealed.
Justice Lang held that Mr McAllister had been in contempt of Court because he did not have a good enough reason for refusing to perform his jury service:
Generally speaking, work-related pressures are rarely likely to provide a lawful excuse for not taking the oath. The performance of jury service necessarily involves a considerable degree of inconvenience, because it requires those selected as jurors to devote the bulk of each day to that role. This means that jurors will inevitably be required to be absent from home and work, and often for extended periods. This can cause particular difficulty for jurors who are self-employed, or who perform an essential role for their employers.
Those summonsed for jury service are assumed, however, to have adequate notice of their impending commitment to enable them to re-organise their work and personal affairs accordingly. If they cannot, they may apply to the Registrar to be excused from jury service, or to have their obligation to perform jury service deferred.
Although the conviction was upheld, the sentence was quashed because it was excessive. Mr McAllister had behaved badly, and had not explained his reasons properly to the Judge when he claimed he was under duress and could not be impartial, but he had done his best to rectify his behavior when he told the Judge that he could after all perform his jury service. Although the Judge at that stage could not have allowed Mr McAllister to sit on the jury after he had claimed he could not be impartial, it should be recognised that he had tried to make the best of bad job.
Justice Lang took into account that Mr McAllister had on other occasions done his best to perform his obligations as a citizen. For example, he was one of the engineers who voluntarily assisted with building assessment and demolition work in the Canterbury region at risk to his personal safety. Justice Lang was also influenced by the fact that Mr McAllister’s refusal to perform his jury service was not the sole reason why the trial had been unable to proceed that day. A number of other jury members had been excused, and several of them could have been called back.
Employers do not need to pay employees their salary while an employee is required to be absent from employment due to jury service. However, employers cannot dismiss or threaten to dismiss an employee for being on jury service.
Jurors are paid some compensation while they are on jury service. However, this is not pegged to their income.
Payment for jury service is exempt income for tax purposes. Jurors may also be paid their expenses incurred in attending jury service, for example, childcare or parking costs.
Until a few years ago, while a jury was deliberating its verdict it was routine to isolate the jurors away from other members of the public. They are now allowed to separate for the evening until they resume their consideration of their verdict. However, jurors may not discuss their verdict while deliberating with anyone other than other jurors.
The requirement that juries return unanimous verdicts has been abolished. In criminal cases the courts may now accept a verdict where one juror disagrees with the rest. In civil cases the jurors only have to reach agreement between three-quarters of them.