586. Trial by Jury for Aborigines. From time to time, questions relating to trial by jury of Aboriginal offenders have been controversial, and a number of distinct issues need to be discussed. These are, first, whether trial by jury is appropriate at all for traditionally oriented Aborigines, secondly, whether steps should be taken to ensure greater representativeness of juries hearing cases involving Aboriginal defendants, and, finally, the particular problems that can arise in some cases with customary law elements where members of the jury are disqualified under the relevant customary laws from hearing certain evidence. Earlier commentators, at least, were agreed on the undesirability of jury trial for traditional Aborigines. Elkin gave a number of reasons for this view:
The jurymen … are white, never Aboriginal, and, with the best will in the world, they find it difficult to act impartially in cases in which white and native are involved: white prestige and the maintenance of the white man’s superior position are felt to be at stake, and while it might sometimes be possible to acquit an accused native, it is almost never likely that an accused white will be convicted. A survey-of trials in the marginal regions of Australia during the past forty years bears out this generalization.
… bearing in mind the conditions in the Northern Territory and experience elsewhere … it seems irrefutable that all cases involving Aborigines should be removed from the jurisdiction of justices of the peace and from trial by jury.
Kriewaldt in assessing his experience as a judge of the Northern Territory Supreme Court agreed with Elkin, but for quite different reasons. His concern was that injustice occurred because too many Aborigines were acquitted, rather than because whites were acquitted for offences against Aborigines:
The factor which makes a jury a good tribunal in an ordinary run of cases, the ability to discern whether a witness is speaking truly, vanishes when the jury is confronted with witnesses of whose thought processes they are ignorant. It was the consciousness of my own defects in this respect which made me adopt the view that the average person called on for jury duty, where the accused is an aborigine, is faced with a task which is beyond his powers. In addition many of the older residents of the Territory were conditioned by their past experiences to accept the view that the criminal law should not be applied to aborigines. I would therefore support the abolition of the use of juries in cases where the accused is an aborigine.
His solution was that the jury should be replaced by assessors, an idea also suggested by Elkin. Eggleston’s more recent study of Aborigines involved in the criminal justice systems in Victoria, South Australia and Western Australia also supported abolition of juries in certain cases, for similar reasons to those given by Elkin:
It certainly appears that the jury system operates unjustly, particularly in ‘mixed cases’, that is, those where complainant and defendant are of different races. I agree that there is a strong case for the abolition of juries in cases where whites are charged with offences against Aborigines, unless racially mixed juries are stipulated.
587. Problems of Jury Trial in ‘Mixed’ Cases. Eggleston’s research was done in the 1960s, but there is more recent evidence, at least of an anecdotal kind, of difficulties of juries in ‘mixed’ cases. Support for this view comes from LL Davies, counsel for the accused in R v Jambajimba Yupupu. The case involved 8 Aborigines and two whites (a station owner and his manager). All Aborigines were charged and 6 convicted of various offences: one had the charges dropped and Yupupu was discharged after being found unfit to plead. The station manager, who had shot and seriously injured Yupupu, was charged with doing grievous bodily harm. At the initial committal proceedings a Magistrate in Hall’s Creek (in the north west of Western Australia) found there was no prima facie case, but the Crown later revived the charge by ex officio indictment. The trial took place at Wyndham (also in the north-west of Western Australia) and the station-manager was acquitted. Yupupu, the principal Crown witness, failed to appear at the trial. Davies concluded:
588. Submissions to the Commission. There has been little or no support, in submissions or evidence to the Commission, for the exclusion of jury trial. One reason may be that juries, even if unrepresentative in terms of the number of Aboriginal jurors, have shown in recent times no demonstrable tendency to return unfair verdicts in cases involving Aboriginal defendants. However detailed statistics are not available and the Commission has no evidence from which it can conclude that a problem exists in relation to jury trial of Aborigines requiring legislative change.
589. Retention of Jury Trial. However there are practical concerns about the use of juries in sparsely populated areas, and in particular cases problems can arise with strong local feeling against a particular accused. One solution is the already existing power of the court to order a change of venue of the trial away from a particular locality. Another possibility would be to allow a defendant to elect trial by judge alone. Justice Kearney, the Aboriginal Land Commissioner and a member of the Northern Territory Supreme Court, has suggested that:
Where prejudice is feared, a mere change of venue may not suffice to overcome it. I have always thought there was much to be said for giving an accused person the option to apply for trial by Judge alone. I believe this has been the position in Canada under its Criminal Code for nearly 100 years and I understand that it has worked well particularly in relation to criminal trials in smaller and remote locations where the problem of getting an unbiased jury is particularly acute.
This proposal deserves further consideration. However any such change to jury trials should apply generally and could not properly be limited to Aborigines. The Commission has received no evidence to justify the conclusion that jury trials involving Aborigines are, in any regular or recurring way, biased or otherwise unsatisfactory. Unless a real need can be demonstrated no special measures excluding jury trial are justified.
590. Composition of Juries. The strength of the concerns outlined in the previous paragraphs depends to some extent on the composition of juries. These concerns might perhaps be reduced if there was some assurance of Aboriginal representation on juries where the defendant was an Aborigine. But the representation of Aborigines on juries has changed little in recent years. In those parts of Australia where Aborigines represent a sizable proportion of the population, it is still rare for an Aborigine to sit on a jury. Aborigines may be excluded due to their inability to understand English, or because, not being on State or Territory electoral rolls, their names are not on jury lists. Other factors (such as challenges by prosecution or defence counsel) also play a part. It is a matter for concern that Aborigines are so disproportionately represented in the criminal justice system, but so seldom appear on juries.
591. The Present Law. In Australia a jury generally consists of 12 persons, with the usual requirement for eligibility as a juror being that a person is enrolled as an elector in the State or Territory. Certain persons are ineligible for jury service or may claim exemption. The composition of a jury in any case is primarily, and deliberately, one of chance. Potential jurors are chosen at random from the jury roll. The parties in criminal proceedings may challenge the jury in one of two ways. The first is by a ‘challenge to the array’, which questions the whole panel of persons from whom the jury is chosen, alleging, for example, that some bias is evident on the part of the person with responsibility for selection or that statutory procedures have not been complied with. The second involves a challenge directed at a particular prospective juror before being sworn. Both the defence and the Crown are permitted a specified number of peremptory challenges, for which no reason need be given. In addition any number of challenges ‘for cause’ may be made (eg, if a juror is related to or knows personally the defendant or one of the witnesses). These forms of challenge provide only a limited means of influencing the composition of a jury.
592. Representativeness of Juries in Cases involving Aboriginal Defendants. It has long been claimed that one of the fundamental concepts of trial by jury is that the accused is tried by a ‘jury of his peers’. Whether a group actually constitutes ‘the peers’ of the accused will usually be far from clear, but the idea that the jury should be reasonably representative of the ‘country’ or community by which the defendant is being judged is relevant in considering what rights exist to affect the composition of juries. Except for the right of peremptory challenge, a defendant’s power to ensure a ‘representative’ jury is very restricted. In R v Grant and Lovett a challenge was made to the composition of the jury on the ground that no one of the occupation of each accused (who were labourers) was represented on the jury, nor were there any Aborigines on the jury (Lovett was an Aborigine). Justice McInerney considered that the challenge was in effect a ‘challenge to the array’. Since the Sheriff had not failed in any way to carry out his responsibilities under the Juries Act 1967 (Vic) the challenge failed. A similar unsuccessful challenge to the array was made in South Australia in 1973 by Harry Gibson, a Pitjantjatjara man charged with murder. Evidence was received from several Aborigines that, although eligible, they had never been called for jury service, nor had they heard of any person of Aboriginal descent being called. This evidence was countered by the Sheriff who gave evidence that Aborigines had in fact been summoned. Justice Bright concluded that the Sheriff in calling a jury for Gibson had made no attempt to exclude Aborigines who were qualified to serve. Accordingly the challenge to the array failed.
593. Exercise of the Court’s Inherent Powers. It is clear that the rule applied in these cases represents the present Australian law, and is a major inhibition on seeking particular representation on juries. On the other hand, the court has an inherent power to ensure that a fair trial is achieved, and direct or indirect attempts at ‘jury vetting’ may bring this power into play. For example, in R v Smith, involving an Aboriginal accused, Judge Martin sitting in the Bourke District Court discharged an all-white jury and adjourned the case for a later hearing, after the Crown had challenged all Aborigines on the jury panel. Similarly, several English judges have indicated a willingness to ensure that coloured persons were included as jurors. In R v Broderick and in the Mangrove Restaurant Case, claims made for an all-black jury were disallowed, but some attempt was made to ensure that there were some coloured jurors. In R v Binns in the Bristol Crown Court, 11 defendants of West Indian descent were tried for riotous assembly. A claim was made that the jury should include members of the black communities in the area, who would have a better understanding of black youth and their relationships with the predominantly white police force. Justice Stocker accepted that this was desirable, and suggested that the Crown use its power of ‘standing by’ jurors to ensure that some non-whites were selected. Counsel for the Crown was not prepared to do this unless all defence counsel agreed, but one did not. In the event the jury included a young man and two middle-aged women of West Indian descent and a young Asian man, a result achieved by the use of peremptory challenges. Obviously this was only possible because the array from which the jury was chosen included a number of West Indians. On the other hand, in R v Danvers in the Nottingham Crown Court, the West Indian defendant sought some representation of black people on the jury, and a challenge to the array was made on the basis that it did not reflect the ethnic composition of the community. It was also argued that an ‘all-white jury could not comprehend the mental and emotional atmosphere in which black families live and that a black accused could not have unreserved confidence in an all white jury’. The Court rejected the claim, confirming that in law there exists no requirement that there should be a black member of a jury or jury panel.
594. Broader Issues of Representation on Juries. There may be considerable resentment among ethnic minorities if juries do not truly reflect the whole community. There have been claims that minority group members, including Aborigines, should be entitled to a jury of members of their own race or group. This issue is plainly much wider than the recognition of Aboriginal customary laws, or indeed of Aboriginality in general. At least, better selection procedures need to be adopted to ensure that a multi-racial society is better reflected in the composition of juries. In addition, the courts do have some powers to ensure a fair trial (and the appearance of one), by the use of their inherent powers, as evidenced in cases such as Smith. The broader issue of special requirements of group representation on juries raises issues going beyond the present Terms of Reference.
595. Selection of Juries in Cases involving Aboriginal Customary Laws. Accordingly, the Commission expresses no view on whether or not any special legal remedy to the problem of representativeness of juries is desirable and practicable. However the Commission’s Terms of Reference do include consideration of the particular question of the composition of juries in cases involving Aboriginal customary laws. In several cases in recent years, juries composed of persons of a particular sex have been empanelled because it was submitted that evidence to be called in the trial about Aboriginal customary laws relevant to the offence could not be disclosed to persons of the other sex. In those cases this could only be done by the use of peremptory or other challenges, and in each case it was in fact done by agreement between prosecution and defence with the court’s consent. The question is whether there should be a specific provision allowing single-sex juries to be empanelled in such cases.
Desirability of a Special Provision. Some knowledge about Aboriginal traditions, rituals and customary laws is regarded as falling within the domain of a particular sex (male or female). It may be that a witness will be unwilling to give evidence, or will be reticent or evasive in the evidence given, where giving the evidence to persons of the opposite sex would infringe the witness’s customary laws. The court would need to be satisfied that this was indeed the case, and that some lesser restriction (eg prohibiting publication of the evidence in question) would not suffice. It would also be necessary to ensure that no similar restrictions applied (with respect to persons of the other sex) to evidence of other witnesses, including especially the victim of the offence. But these matters go to the exercise of a discretion to make an order, not to its existence. On balance, and although the problem may not arise often, it is desirable that the court have power to make appropriate orders so that a jury of a particular sex is empanelled in such cases. This should be done on application by a party before the jury is empanelled, and only in cases where it is necessary to enable all the relevant evidence to be given. It could be argued that a power of this kind should extend to cover cases of jurors disqualified under relevant customary laws from hearing certain evidence on grounds other than their sex. However that broader problem does not seem to have arisen in practice, and it might be difficult to distinguish such claims from claims to ‘representativeness’ of juries generally. Accordingly the Commission’s recommendation is limited to the specific situation of jurors of a specified sex.
Consistency with Sex Discrimination Act 1984 (Cth). The general scheme of the Sex Discrimination Act 1984, with its prohibition on formal discrimination on grounds of sex in specified fields combined with a series of statutory exemptions or provisions for exemption, was outlined in para 182. The provision proposed in this paragraph for single sex juries would not violate the Convention on the Elimination of all Forms of Discrimination against Women of 1980, on which the 1984 Act is partly based. The position with the 1984 Act is more complicated. An order made under the proposed power would appear to constitute, or more probably authorise, an act amounting to sex discrimination as defined in s 5(1). However the 1984 Act appears to contain no provision prohibiting sex discrimination in this situation. Even if it did, s 40(1)(d) creates a specific exemption for acts done by a person in direct compliance with an order of a court. Accordingly there is no question of inconsistency between the proposed provision and the 1984 Act.