FACT SHEET 10: FLEXIBILITY TO CONTINUE A JURY TRIAL WHEN JURY NUMBERS FALL

What is the general proposal?

The proposal is that jury trials should still proceed if jury numbers fall to 10, subject to a Judge’s existing powers to dismiss the jury if there is good reason. The ability to proceed with fewer than 10 jurors where the parties consent will be retained. It is also proposed that the provisions that currently allow majority verdicts will apply to juries of 10 persons.

Why change the law?

Currently, when two jurors are dismissed from a jury, “exceptional circumstances” must exist for the case to continue (section 22A (2) (b) of the Juries Act 1981), and the Supreme Court has said this creates a high threshold. This means that in circumstances where jury numbers fall to 10, trials usually need to be abandoned and a retrial ordered. This is costly and stressful for all parties.

Compared to similar jurisdictions, such as Australia, Canada and the United Kingdom (see the final section below), New Zealand has the most restricted approach when allowing trials to continue with reduced jury numbers. The proposed change will bring New Zealand into line with these jurisdictions.

In the New Zealand Law Commission’s discussion paper Juries in Criminal Trials, the commission said the judicial decision to proceed with as few as 10 jurors does not threaten the representative nature of the jury or any of the other goals of the jury selection process.

How?

The legislation will provide that where two jurors are discharged for any reason after a trial begins, the judge has the discretion to continue the trial with a reduced jury of 10. The legislation will also allow for trials to continue with fewer than 10 jurors if the parties consent.

Benefits of proposal

These changes are expected to result in a reduction in the number of mistrials declared because of falling jury numbers. There is an increasing number of long trials (more than four weeks) in the District Court in particular. On the assumption that the longer the trial, the greater the risk that jurors will need to be discharged, falling jury numbers may become a more significant issue. Giving judges greater flexibility to continue trials when jurors are discharged will save money and avoid unnecessary stress on all parties in a jury trial.

International comparisons

All Australian states have legislation that gives the discretion to a judge to continue the trial with a reduced jury of 10 members.

In Canada, the federal legislation provides that a trial continue with a jury of 10, unless the judge orders otherwise.

In the United Kingdom, legislation provides that, as long as the jury is not less than nine, the trial must continue.

ends

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