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Jury Selection

This page explains how jury members are identified and then selected and what part the police and the defence solicitor have in the jury selection process (empanelling). This page also contains information that may be of interest to jury members who want to understand the process and whether they may be excused from serving as a jury member.

In New South Wales, most criminal trials proceed before a judge and jury although it is possible to be tried before a judge alone. Jurors for a trial are selected randomly through a ballot process.

How many jurors will be on the jury panel?

A trial usually is usually tried by a judge and 12 jurors. In some cases a judge may decide that additional jurors should be selected to ensure there will be sufficient jurors remaining when the jury is required to consider its verdict. The judge may order up to 3 additional jurors be selected.

How are jury members selected to serve on a jury?

Jurors are selected randomly by the sheriff. The sheriff selects a number of people at random from the entries in the latest copies of the election rolls in that court’s district.

The sheriff will issue a summons to each person selected.

What happens after the person is summoned?

The person must appear at the time and place specified in the summons.

During the first attendance the sheriff will ask the person to provide their name and identification. The sheriff will then give them an identification number.

What Happens at Court?

The Ballot Process

Selection by ballot is the way the jury for the trial of any criminal proceedings is selected. At the trial the presiding judge or an officer of the court will place in a box all the cards with the jurors’ identification numbers. The cards will be drawn out, one after another and the numbers will be called out. This process will continue until the number of people required for the jury is fulfilled. Each person drawn out will then be called to be sworn.

For every person that your defence lawyer or the Crown challenges (see below for process), another person will be drawn from the box and sworn. This process will continue until all challenges have been allowed and the number of persons required for the jury has been sworn.

Empanelling The Jury

Your defence lawyer gets a limited chance to select a jury panel that may be sympathetic to you and your circumstances. The crown also has the opportunity to select a jury that they want to hear your case. Let us explain…

Your defence lawyer and the crown may each challenge 3 jurors without restriction. If the jury in your criminal proceedings is to consist of more than 12 jurors, then your solicitor and the crown will each have 1 additional peremptory challenge without restriction.

Any number of challenges may be made if the crown and your defence lawyer agree to the challenges. These challenges can be made regardless of whether the challenges without restrictions have been exhausted. This may occur where a jury member appears to be under the influence of a drug and both the crown and your defence lawyer believe that they would not assist in the trial process.

The judge may also decide independently that a person unfit to serve on a jury to stand down even though the juror is willing to serve. This decision is usually based on physical or mental illness.

What is a Challenge?

A challenge is an objection to persons summoned to be jurors. Where a juror is challenged the juror will not sit on the jury panel. The reasons that a particular person may be challenged by your defence lawyer or the crown are wide and varied. A crown may challenge a juror because they look like they may associate with the criminal element or they may want more male or female jurors on the jury panel. Your defence counsel may challenge a juror because of their attitude or apparent bias towards you.

What is a challenge without restrictions?

A challenge without restriction is when a party objects to a person serving as a juror without needing to show cause. This means, in exercising a challenge, the crown or your defence lawyer do not need to have a sound reason for exercising the challenge.

What is a Challenge for Cause?

A challenge for cause is where the party making the challenge needs to show grounds for making the challenge. The reason may be based on grounds that the person is not qualified and liable to serve, is disqualified or ineligible or is not impartial.

To successfully make a challenge for cause you must be able to show some factual foundation for the challenge. Usually this will require you (if you are the one making the challenge) to submit an affidavit relating to the challenge of the juror.

At what time can I make a Challenge to a Juror?

A challenge to a juror in criminal proceedings can be made only after the juror has been called to be sworn, and before the juror is sworn. This is during the process where the jurors are selected by ballot in open court.

You can make a challenge for cause to a juror in criminal proceedings before or after all rights of challenge have been exhausted.

Who can serve as juror?

Every person who is on the electoral role of the Legislative Assembly of NSW is qualified and liable to serve as a juror.

Who cannot serve as a juror?

The following people do not qualify to serve as a juror:

  • a person who at any time within the last 10 years in NSW or elsewhere has served any part of a sentence of imprisonment (not being imprisonment merely for failure to pay a fine),
  • a person who at any time within the last 3 years in NSW or elsewhere has been found guilty of an offence and detained in a detention centre or other institution for juvenile offenders (not being detention merely for failure to pay a fine),
  • a person who is currently bound by an order made in NSW or elsewhere for a criminal charge or conviction, not including an order for compensation, but including the following:
    • a parole order, a community service order, an apprehended violence order or an order disqualifying the person from driving a motor vehicle,
    • an order committing the person to prison for failure to pay a fine,
    • a good behavior bond, a remand in custody pending trial or sentence and a release on bail pending trial or sentence.
  • the Governor,
  • a judicial officer,
  • a coroner,
  • a member or officer of the Executive Council,
  • a member of the Legislative Council or Legislative Assembly,
  • Officers and other staff of either or both of the Houses of Parliament,
  • an Australian lawyer (whether or not an Australian legal practitioner),
  • a person employed or engaged (except on a casual or voluntary basis) in the public sector in law enforcement, criminal investigation, the provision of legal services in criminal cases, the administration of justice or penal administration,
  • the Ombudsman and a Deputy Ombudsman,
  • a person who at any time has been a judicial officer,
  • a person who is unable to read or understand English, and
  • a person who is unable, because of sickness, infirmity or disability, to discharge the duties of juror.

Can persons who are qualified to serve apply for exemption?

Yes. Pursuant to section 7 of the Jury Act 1977 the following persons, as listed in Schedule 3, can claim exemption:

  • clergy,
  • vowed members of any religious order,
  • practicing dentists,
  • practicing pharmacists
  • practicing doctors
  • mining managers and under-managers of mines,
  • a person employed or engaged (except on a casual or voluntary basis) in the provision of fire, ambulance, rescue, or other emergency services, whether or not in the public sector,
  • persons who are at least 70 years old,
  • pregnant women,
  • a person who has the care, custody and control of children under the age of 18 years,
  • a person who resides with, and has full-time care of, a person who is sick, infirm or disabled,
  • a person who resides more than 56 kilometers from the place at which the person is required to serve,
  • a person who:
    • served as a juror within the last three years
    • within the last 12 months attended court in accordance with a summons and who was prepared, but did not, serve as a juror.
  • a person who is entitled to be exempted under s 39 on account of previous lengthy jury sentence.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

Michelle Makela

This article was written by Michelle Makela

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

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