A Jury of Your Peers

A critical analysis of the fulfilment of peer representation in

criminal trials in New Zealand

Chanelle Marie Cattin

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Table of Contents

I Introduction...........................................................................................3

II A Brief Overview of the Jury System………………………………….4

III Who is Your “Peer”?...................................………………………….8

IV General Proposals for a New Jury of Peers………………………...14

V Redressing Māori Peer Representation.……………………………..27

VI The Subsequent Impact of the Peremptory Challenge………………35

VII Concluding Remarks………………………………………………...52

Bibliography…………………………………………………………………52

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I’m no idealist to believe firmly in the integrity of our courts and in the jury system – that is no

ideal to me, it is a living, working reality. Gentlemen, a court is no better than each man of you

sitting before me on this jury. A court is only as sound as its jury, and a jury is only as sound as the

men who make it up.1

Harper Lee

I Introduction

To some, the concept of trial by jury is one that purely derives legitimacy from its

historical roots. It is, to them, an institution of untutored laypersons that temporarily

assemble to hear confusing facts and complex testimony, and who then are instructed to

decide the defendant’s fate. 2 Yet the jury has remained a forum for community

participation in the administration of criminal justice in over 25 common law countries

around the world.3 The reason for survival of the jury system seems to centre on the idea

that the experience provides legitimacy to the legal system.4 The underpinning notions of

symbolic democracy and community participation in the administration of justice are

emphasised repeatedly by the Law Commission in its discussions on jury trials in New

Zealand. Moreover, the central tenet is that the public have an interest in the administration

of justice, particularly in their community, and such systems will be legitimised upon

community involvement.

However, since its most clear recognition in the Magna Carta 1257, the concept of a jury

trial has been founded upon the defendant’s rights and interests, with those of the

community being somewhat ancillary. Similarly today, it is the defendant whose right to a

fair trial is affirmed in the New Zealand Bill of Rights Act 1990; not the community’s right

to serve on a jury. Consequently, it is argued that an improper emphasis pervades jury

selection, particularly in the defining of the source of “peers”. It is not suggested that the

ideas of community participation and legitimisation are misplaced; rather, that in order to

fulfil the defendant’s fair trial rights, a shift in focus needs to occur whereby a more

appropriate balance may be struck. Further, it is argued that, even if the source is

                                                                                                               1 Harper Lee To Kill a Mockingbird (Dramatic Publishing, Illinois, USA, 1970) at 65. 2 Neil Vidmar “The Common Law Jury” (1999) 62:2 LCP 1 at 1. 3 Law Commission Juries in Criminal Trials Part One (NZLC PP32, 1998) at 1; Vidmar above n 3 at 1. 4 Vidmar above n 3 at 2.

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adequately defined, the use of peremptory challenges in jury selection is a threat to

achieving peer representation, to the extent that its legitimacy must be revisited. It is

accepted this will be no easy feat: however, this paper aims to both identify the issue and

propose possible reforms in a manner that will provoke worthwhile debate.

II A Brief Overview of the Jury System  A Origin of Jury Trials

 The notion of a jury - a group of people brought together to resolve disputes between other

people - is as old as civilization itself.5 Ancient mythology is filled with examples of mortal

and immortal juries, determining disputes between gods, mortals, and between gods and

mortals.6 Though not the predominant method of dispute resolution, some form of jury is

evident in ancient Egypt, Mycenae, Druid England, Greece, Rome and the Holy Roman

Empire. 7 However, it appears the function of these ancient juries was limited to

investigation and reporting of suspected criminal activity, with the verdict being

determined by non-jury methods.8

In modern English common law, the Magna Carta 1215 is often cited as the basis for the

right to a trial by jury. Chapter 29 of the Magna Carta states:

No freeman shall be taken or imprisoned, or disseised of his freehold, or liberties, or free

customs, or be outlawed, or exiled, or nay other wise destroyed; nor will we not pass upon

him, nor [condemn him], but by law judgment of his peers, or by the law of the land.

The phrase “a jury of one’s peers,” often used to describe the right to jury trial, is therefore

traceable to the Magna Carta. Historians have shown, however, that the phrase referring to

peers does not refer to the jury, as we know it today.9 Particularly, while “peers” was used

in the general sense of social equals, it was originally a special right of an elite social class,

                                                                                                               5 Morris B. Hoffman “Peremptory Challenges Should Be Abolished: A Trial Judge’s Perspective” (1997) 64:3 U Chi L Rev 809 at 813. 6 Peter Andreas Munch Norse Mythology: Legends of Gods and Heroes (New York, 1954) at 5-6. 7 Hoffman above n 6 at 814. 8 Hoffman above n 6 at 815. 9 W Clark Magna Carta and Trial by Jury (1924) 58 Am L Rev 24 at 25-30.

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not a guarantee of rights to the common people.10 Thus, the original purpose of trial by

peers was to protect the elite from judgments by people of lower social class: a reflection

of defendant interests, rather than of the community as emphasised today. Further, in

traditional English common law, jurors were selected from the neighbourhood where the

alleged offence occurred and were required to have local knowledge of the circumstances

of the alleged offence.11 In this sense, juries were more analogous to a body of witnesses

than to the impartial body of the modern jury, where any juror with particular knowledge

of the offence may be excused, challenged or discharged.12 As such, the Law Commission

emphasises that the Magna Carta, while occupying a significant position in common law

history, does not guarantee the right to trial by jury in the modern sense.13

B Functions of the Modern Jury

The 1998 Law Commission Discussion Paper, Juries in Criminal Trials, examines the

underlying functions of the criminal trial jury, and the quality of fulfilment of those

functions. The Law Commission considers that, at its core, the jury acts as a powerful

symbol of democracy by allowing lay people to participate in the criminal justice system.14

This symbolic democratic function is what gives value to further functions of the jury.15

Particularly, the benefits of community participation and representation brings a diversity

of perspectives and knowledge likely to enhance the ability of the jury to effectively

perform it’s most practical function as the fact-finder. In Peters v Kiff Justice Marshall for

the United States Supreme Court considers that fair representation would encourage a

range of perspectives that may have unexpected importance in any given case.16

                                                                                                               10 Toni Massaro “Peremptories or Peers? – Rethinking Sixth Amendment Doctrine, Images, and Procedures” (1985-1986) 64 NC L Rev 501 at 505; Jacqueline Horan Juries in the 21st Century (Federation Press, 2012) at 12. 11 Horan above n 11 at 13. 12 Law Commission (1998) above n 4 at 63l; the Juries Act 1981 see for example ss 7, 14B – 16AA, 22 – 25. 13 Law Commission (1998) above n 4 at 64. 14 Law Commission (1998) above n 4 at 13. 15 Above n 4 at 13. 16 407 US 493 (1972) at [503]-[504].

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Further, community participation is said to allow jury decisions to be at least partially

based in light of what has been termed “the community conscience”.17 In his study on juries

in New South Wales, Professor Mark Findlay notes that if jury selection procedures

produce fair community representation, jury verdicts are likely to ‘approximate the voice

of the people’ and therefore be what the community considers fair and just’.18 The Law

Commission agrees that this function is typically connected with the fact-finding function,

in that juries determine their decision based on community standards.19 According to the

New Zealand Court of Appeal:20

[T]hat in our experience is the way in which juries have been directed for many years now.

It results in juries applying current standards of what is indecent and thereby reflecting the

attitude of the community.

In correlation, lay participation is seen to strengthen the legitimacy of the jury system and

the criminal justice system as a whole.21 Indeed, Chief Justice Eichelbaum in Solicitor-

General v Radio New Zealand states “[t]he system rests…on the community respect for

their decision reached after a trial conducted in accordance with established procedures and

principles”.22 This reflects similar ideas to those that support democratic government,

namely that the public will have more confidence in a system they can contribute to and

participate in.

It is accepted that a central tenet behind the administration of criminal justice is to protect

society. However, fulfilment of the community-based functions of the jury relies on the

assumption that all groups in the community are in fact represented on the jury; a jury

unrepresentative of the community at large is acting only upon the standards of particular

segments. Moreover, the verdict of an unrepresentative jury says nothing about community

values as a whole and cannot be said to be acting as the community conscience.23 Further,

                                                                                                               17 Law Commission (1998) above n 4 at 15. 18 Mark Findlay and Peter Duff Jury Management in New South Wales (Australian Institute of Judicial Administration, 1994) at 8. 19 Law Commission (1998) above n 4 at 15. 20 R v Nazif [1987] 2 NZLR at [122]. 21 Law Commission (1998) above n 4 at 19. 22 [1994] 1 NZLR 48 at [54]. 23 Author Unknown “Judging the Prosecution: Why Abolishing Peremptory Challenges Limits the Dangers of Prosecutorial Discretion” (2005-2005) 119:7 Harv L Rev 2121 at 2131.

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the emphasis in jury selection on protecting the community’s interests, without adequate

consideration of the defendant’s interests, is failing to strike a satisfactory balance between

the interests of the community and the rights and corresponding interests of the defendant.

C Modern Legislative Context in New Zealand

The Magna Carta has been affirmed as part of New Zealand law by the Imperial Laws

Application Act 1988: however, the jury trial in New Zealand dates back to early

colonisation and initially represents an uninterrupted incorporation of English legal

application.24 Both the Supreme Court and the lower courts were established in 1841

following formal annexation whereby grand, common, special juries and alien juries were

utilised.25

As a general rule, anyone who is charged with an offence that carries a minimum two years

imprisonment is entitled to a fair trial by an impartial jury. Such affirmation is found in s

24(e) of the New Zealand Bill of Rights Act 1990 (“NZBORA”):

Everyone who is charged with an offence –

…

(e) shall have the right, except in the case of an offence under military law tried

before a military tribunal, to the benefit of a trial by jury when the penalty for

the offence is or includes imprisonment for 2 years or more

Section 25 of that Act also sets out minimum standards of criminal procedure for those

charged with an offence. Particularly, s 25(a) echoes article 10 of the Universal

Declaration of Human Rights and provides the right to a “fair and public hearing by an

independent and impartial court”.

The Criminal Procedure Act 2011 sets out the current procedure for the conduct of

criminal proceedings. Section 50 of that Act states that a defendant who is charged with a

category 3 offence, and who pleads not guilty to that offence, may elect to be tried by a

                                                                                                               24 The First Schedule to that Act lists the Magna Carta (1297) 25 Edw 1, ch 29. Section 3(1) of that Act provides that the imperial enactments listed in the First Schedule are declared part of the New Zealand law; Neil Cameron, Susan Potter, and Warren Young “The New Zealand Jury” (1999) 62:2 LCP 103 at 104. 25 Cameron above n 25 at 104.

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jury. Considered more complex than category 1 and 2 offences, a “category 3” offence is

defined in s 6(1) of that Act as an offence:

(a) that is punishable by imprisonment for life or by imprisonment for 2 years or

more; or

(b) that, if committed by a body corporate, is punishable by only a fine, but that

would be punishable by imprisonment for life or by imprisonment for 2 years or

more if committed by an individual

Section 50 excludes offences listed in Schedule 1, which includes murder, infanticide, and

war crimes. Such offences are tried by jury by default due to significant public impact or

symbolic importance. Under s 102 of that Act, the court may, on the application of the

prosecutor, or of its own motion, order a Judge-alone trial if the case is likely to be long

and complex.26

III Who is Your “Peer”?  peer

NOUN : a person who belongs to the same age group or social group as someone else.27  

Today, under New Zealand common law, the term “peers” continues to be equated with the

community where the alleged offending took place. That is, the 12 people on the jury are

randomly drawn from the district of the closest court to where the alleged offending

occurred, and this is considered to provide the defendant with a jury of his or her “peers”.28

The site of the jury court is therefore fundamental to defining the community the jury will

represent and who will ultimately judge the defendant.29 This approach seems to operate on

the principle that people have an interest in the criminal justice of their local area and that

their interests should be represented in the administration of such justice. In its 1998 paper,

the Law Commission expresses the belief that community representation in terms of the

local jury district population is necessary to enable juries to perform their symbolic

                                                                                                               26 This is provided the offence does not carry a maximum sentence of 14 years imprisonment or more. 27 Merriam-Webster <http://www.merriam-webster.com/dictionary/peer>. 28 R v Cornelius [1994] 2 NZLR 74, at 82. These districts are defined somewhat arbitrarily as those places within 30 kilometres by the most practicable route from a courthouse in the town or city in which jury trials may be held: Juries Act 1981, s 5. 29 Law Commission (1998) above n 4 at 65.

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democratic function and act as the conscience of the community.30 Scholars Davies and

Edwards refer to this approach of peer representation as the “narrow” interpretation. It

reflects the idea that everyone is equal and therefore a person’s peer may be any other

eligible citizen. 31

However, implicit in this approach is the failure to adequately acknowledge the

defendant’s interests, namely the right to a trial by a fair and impartial body affirmed in s

25(a) NZBORA. It is argued that trial by jury should also, if not more so, legitimize the

criminal justice system for the defendant: it is, after all, the defendant’s right to a fair,

impartial trial that is guaranteed, not the community’s right to serve as a juror. As

constitutional law scholar Toni Massaro notes, the defendant is interested in a community-

representative jury only to the extent such a jury might be more likely to include someone

with life experiences similar to those of the defendant, or might be less likely to be from

one sector of society that is biased against the defendant.32 In fact, it is contended that in

order to be impartial, jurors must actually have an understanding of the social and cultural

background of the particular defendant otherwise they will (subconsciously) apply their

own interpretation to the case.33 As such, Davies and Edward’s “broad” interpretation

considers jury representation of persons with a similar background, or of a similar social or

cultural group to the defendant ought to be promoted.34

A Historical Foundation

Historically, same-group membership based on the Davies and Edwards’ broad

interpretation (persons with a similar background, or social or cultural group of the

defendant) was deemed significant for fulfilment of a jury of one’s peers. One example is

the ancient alien jury, the de medietate linguae, which dates back to the thirteenth

century.35 For example, under John’s Charter of 1201, in all actions against Jews, the

defendant was entitled to a judgment by Jews.36 Later statutes guaranteed a foreign

                                                                                                               30 Above n 4 at 66. 31 Colin Davies and Christopher Edwards “A Jury of Peers: A Comparative Analysis” (2004) 68:2 JCL 150 at 152. 32 Massaro above n 11 at 545, note 218. 33 Davies above n 32 at 157. 34 Above n 31 at 152. 35 Massaro above n 11 at 550. 36 Lewis LaRue A Jury of One’s Peers (1976) 33 Wash & Lee L Rev 841 at 849 cited in Massaro above n 11 at 550.

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merchant the right to the de medietate linguae where, for example, a Welshman tried in

England was entitled to a jury of equal numbers of Englishmen and Welshmen.37 In the 18th

century, Lord Mansfield CJ made a point of trying commercial cases with specially

selected juries of merchants, partially to ensure the issues would be fully understood by the

jury.38

In New Zealand, the first Juries Ordinance in 1841 excluded Māori from the common jury

(although those not living as part of a tribal community were classified as non-Māori) until

1962.39 However, from 1844, minor civil disputes in which one or both parties were Māori

and criminal cases between Māori parties were subject to tribal authority structures and

Māori assessors.40 Additionally, the Juries Amendment Ordinance 1844 provided for mixed

race juries in both civil and criminal trials where “the property or person of any Aboriginal

Native of New Zealand may be affected.”41 Further, the Juries Act 1868 provided that all-

Māori juries were available in:42

(a) Civil and criminal cases in the Supreme Court; (b) Civil cases if both parties were Māori and both concurred; and

(c) Criminal cases if both parties were Māori and the accused requested it

In civil cases where one party was Māori and requested it, or both were Māori and one

wanted it, the court could order a mixed jury composed of six jurors drawn from the Māori

roll and six from the common roll.43 However, there is little evidence attesting to the actual

use of all-Māori and mixed juries, the last noted use in 1961, the year prior its abolition.44

Nevertheless, this snapshot of history suggests acknowledgement that understanding and

empathy depend, at least partially, on individual experience and background. As Massaro

points out, the premise that differences produce barriers to understanding was at one stage

understood.45

                                                                                                               37 Clark above n 10 at 30. 38 Anthony Dickey “The Jury and Trial by One’s Peers” (1973-1974) 11 UWAL Rev 205 at 212. 39 Cameron above n 25 at 105; Juries Amendment Act 1962, s 2. 40 Cameron above n 25 at 110; Native Exemption Ordinance 1844. 41 Juries Amendment Ordinance 1844, s 1. 42 Sections 45-54. 43 Juries Act 1868, ss 45-54. 44 Cameron above n 25 at 111. 45 Massaro above n 11 at 551.

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Under the current Juries Act 1981, jurors are randomly drawn from the court district where

the alleged offending took place.46 Thus, New Zealand’s jury system has plainly adopted

the narrow interpretation based on the idea of community representation in satisfaction of a

jury of peers. This, combined with the absence of legislative affirmation of a trial by

“peers”, the argument that a fair trial in fact requires juries defined by the broader

interpretation may seem problematic. However, the defining of “peers” as dependent upon

geographic area implicitly indicates a concern about which citizens serve as jurors.

Moreover, the concept of peers as laypersons with common interests and understandings is

implied in this community-based approach because it operates on the principle that people

have an interest in the criminal justice of their local area. Massaro explains that this

approach largely rests on the premise that people desire justice to be delivered by their own

community: by people like themselves.47

B Modern Theoretical Context

The modern process of random selection, while acknowledging community representation,

should not be considered an end in itself. The basic tenet of a jury trial, including the rights

and interests such a process protects, requires the body of triers is impartial. To be fully

impartial, Davies and Edwards stress that jurors must have an understanding of the

particular social and cultural background of the defendant to employ empathy and avoid

applying their own interpretation to the case.48 The scholars cite an example of the

importance of such understanding:49

For many years, and possibly still now, it was thought the fact that an Afro-Caribbean

youth did not look a questioner in the eyes was an indication of guilt, as it would be in the

case of a white youth. It is now realized that averting gaze is a sign of respect.

It is not difficult to perceive similar “mistakes” being made in the diverse, multi-cultural

New Zealand context. Particularly, it is traditionally considered respectful to lower or avert

eye contact in Māori social interactions with elders or figures of authority.50 The juror’s

                                                                                                               46 R v Cornelius above n 29. 47 Massaro above n 11 at 550 (emphasis added). 48 Davies above n 32 at 157. 49 Editorial “Seeing is Believing” (1999) NLJ 549 cited in Davies above n 32 at 157. 50 Joan Metge and Patricia Kinloch Talking Past Each Other: Problems of Cross-Cultural Communication (Victoria University Press, Wellington, 2001) at 29.

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misunderstanding of something so simple can impact their perception of the defendant and

the issues at trial.

The theory that people of different social status, age, race, gender and so on may not

understand each other and consequently may judge each other differently has been

considered in social psychology over the past few decades.51 Of note, Professor Barry

Collins considered “when a witness in in some way similar to a fact finder, a witness’

credibility may increase. And when the witness is dissimilar, credibility may well

decrease.”52 However, this is not to suggest that the jury should be composed of “friends” of

the defendant. The theoretical aims of the criminal law including protection of society and

enforcement of standards may be threatened if the juries were composed in such a way.53

Broadening our interpretation of “peers” is not to ensure sympathetic jurors who are partial

or align unfairly with the defendant, but to assure empathy in the form of understanding.54

It is this degree of understanding of experiences, motives, and beliefs that enables jurors to

more accurately assess facts, provide the defendant with a fairer trial, and deliver a more

just verdict.55

Linder points out that empathetic reactions are inevitable when humans are confronted

with the persons most affected by their decisions.56 Unless criminal justice is soon to be

administered by computers, the presence in and influence of empathy on jurors ought to be

accepted. First, determinations of the facts of any given case are not objective assessments;

reference to the defendant’s individual experience or personality is inevitable even for the

most impartial juror.57 Further, deciding guilt or innocence involves credibility enquiries,

evaluations of testimony, and estimations of weight of evidence.58 The conclusion of these

factors in terms of the influence on the verdict ultimately rests on the amount of empathy

held by the jury. It is therefore argued that the quality of empathy of the jury as a whole is

important in maximizing the defendant’s rights a fair trial. Moreover, a jury that includes

                                                                                                               51 Massaro above n 11 at 549. 52 Barry Collins and Richard Ashmore Social Psychology: social influence, attitude change, group processes, and prejudice (Addison-Wesley Publishing Co., 1970) at 119-125. 53 Massaro above n 11 at 552. 54 Douglas Linder “Juror Empathy and Race” (1995-1996) 63 Tenn L Rev 887 at 888. 55 Martha Nussbaum “Equity and Mercy” (1993) 22 Phil & Pub Aff 83 at 120 cited in Linder above n 54 at 887; Davies above n 32 at 157. 56 Linder above n 55 at 888. 57 Massaro above n 11 at 552. 58 Above n 11 at 552.

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representation of the defendant’s peers as defined herein may create a fairer body of jurors

than that of a jury entirely of impartial individuals.

Further, as Davies and Edwards recognise, the contrasting interpretations of a person’s

peer draw noteworthy parallels to theories of equality. Indeed, the EC Equality Directives

have provoked several debates on the jury selection process.59 The relevant two key

theories of equality involve procedural equality or equal opportunity at the start, and

substantive equality or equality as an end-result. In the context of jury selection it appears

the principle of random selection (or the narrow interpretation of “peers”) can be likened to

procedural equality as it provides everyone with an equal opportunity to serve on the jury

(with the exception of statutory disqualifications). However, focusing on the citizen’s

“right” to participate detracts from the rights and interests of the defendant. If it is accepted

that having members from one’s own social or cultural group is beneficial to jury’s

understanding and to the defendant, the jury should comprise such persons.60 Substantive

equality in ensuring actual representation of peers would produce a fairer trial for the

defendant, whose rights are affirmed in New Zealand and international law, while not

substantially affecting the citizen’s interest in participation as each citizen will be a

member of one or other social group.61

Finally, while certain procedures that protect the defendant’s right to a fair trial are

designed to eliminate individual bias, a jury composed of individually impartial jurors does

not necessarily create a fair jury.62 In other words, a narrow interpretation of “peers” based

on the local district could actually defeat fair trial rights as the community from which the

jury is drawn could be a totally homogenous group of citizens biased against the

defendant’s group.63 Thus, a “fair” jury is not merely a group of impartial fact finders from

the local district, but one that is in fact drawn from all sectors of the community and must

include those who are the defendant’s peers.64 When the jury fails to adequately represent

                                                                                                               59 See Council Directive 2000/43/EC 29 June 2000, implementing the principle of equal treatment between persons irrespective of racial or ethnic origin. 60 Davies above n 32 at 156. 61 Davies above n 32 at 158. 62 Massaro above n 11 at 545. 63 Massaro above n 11 at 548. 64 Massaro above n 11 at 545.

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the defendant’s group, the defendant may justifiably doubt the extent to which the system

appreciates their interests or welcomes their participation.65

Evidently, we are confronted with a conflict of interests. It is not argued that community

representation is not important to help maintain public faith and confidence in the

administration of justice. Rather, the problem is the imbalance resulting from misplaced

emphasis. In other words, the present system heavily promotes the community’s interests

yet fails to adequately address the defendant’s rights and associated interests of confidence

in the criminal justice system to which they are subjected. Promoting the representation of

the defendant’s peers in this way will enhance defendant’s confidence in the jury and likely

the wider criminal justice system, as well as legitimize the verdict and its acceptance.

Indeed, the Law Commission at one stage noted that increasing confidence in the jury

system may require juries in certain circumstances to be less representative of the general

community and more representative of a particular group.66

It is prudent to emphasise that there is no guarantee that even the closest “peer” will in fact

possess enhanced empathy for and understanding of the defendant’s case, nor that the same

degree of similarity will be achieved in every case. The purpose of pursuing the broader

interpretation is to provide fulfilment of the defendant’s rights is capable of being achieved

to some extent, and to encourage such fulfilment. In other words, it is argued that jury

selection based on the broader interpretation should simply allow for the possibility of

greater impartiality, in a way that is not possible under the narrow approach to jury

selection.

C New Zealand Considerations

In the New Zealand context, special consideration of Māori peer representation is

warranted, given the disproportionate statistics in the criminal justice sphere. The latest

report from the Department of Corrections reveals that, proportionately, Māori are over-

represented at every stage of the criminal justice process.67 In 2007, though comprising just

                                                                                                               65 Kim Forde-Mazrui “Jural Districting: Selecting Impartial Juries Through Community Representation” (1999) 52 Vand L Rev 353 at 364. 66 Law Commission (1998) above n 4 at 20. 67 “Over-Representation of Māori in the Criminal Justice System: An exploratory report” Department of Corrections (2007) at 6.

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12.5% of the general population age 15 and over, 42% of all criminal apprehensions

involved a person identifying as Māori, and 50% of all persons in prison identified as

Māori.68 Attempts to interpret these figures and the factors that may contribute are outside

the parameters of this paper. Rather, this section will focus on the monocultural bias in jury

selection that is proving destructive to the interests and rights of Māori defendants, and

how such bias may be alleviated. Given the dramatic overrepresentation of Māori in the

criminal justice system and their status as New Zealand’s tangata whenua, the need to

enhance Māori defendant fair trial rights is paramount.

The first Juries Ordinance established juries limited membership to property owners, which

by definition excludes Māori and all women until 1962.69 Today there is, of course, no

explicit exclusion of Māori from juries. The Juries Act 1981 simply provides that potential

jurors must be over 18 years of age, registered on the electoral roll, live within 30

kilometres of the Court, and have no disqualifying criminal convictions.70 However,

throughout New Zealand history the traditional ideal of jury trials has reflected more of the

interests of the majority rather than the original notion of trial by someone with a similar

background.71 Specifically, New Zealand’s “one law for all” monolegalism rejects any

suggestion that Māori may be more appropriately tried by Māori jurors. Instead, it seems to

accept the often-espoused view that trial by one’s cultural or racial peers carries the

potential for bias toward the defendant.72 The validity of such a view is at best contentious

given the acceptance of all-Pakeha juries in the trial of a Pakeha defendant. Consequently,

Moana Jackson’s 1988 report highlights the concern that monocultural bias in the jury

system is negatively influencing Māori peer representation and suppressing Māori fair trial

rights.73

Jackson’s report spurred the research of Dunstan et al. who consider that Māori

underrepresentation on contemporary juries can be attributed to several key factors. First,

Māori are more likely to live in rural areas (39%) than non-Māori (30%) and therefore be

                                                                                                               68 Department of Corrections (2007) above n 68 at 6. 69 Juries Amendment Act 1962, s 2. 70 Juries Act 1981, ss 6-8. 71 Moana Jackson He Whaipaanga Hou: Māori and the Criminal Justice System: A New Perspective (Part 2) (Ministry of Justice, 1988) at 139. 72 Jackson (1988) above n 72 at 139. 73 Above n 72 at 139.

  16

outside the court district.74 The 2013 census reveals that the percentage of Māori living in

rural areas has slightly decreased to 34.5% compared with 31% of non-Māori;

consequently, the significance of this factor seems to be limited.75 Quince, however, also

emphasises that Māori are more likely to have disqualifying criminal convictions than

other groups of society.76

Regardless of reasons, Māori juror underrepresentation is a fact that necessarily means

juries in Māori defendant trials are less likely to possess the desired empathy to satisfy peer

representation. As an example, in 1993, District Court Judge Rushton of Whangarei

realises that the summoned jury pool appeared to include very few Māori, an unlikely

coincidence in an area where approximately 16.5% of the population was Māori.77 The

Judge discovers that instead of calling jurors from the 30 km area around the courthouse,

the summonses were mistakenly only issued to Whangarei. 78 This had important

consequences for the ethnic composition of the jury panel as it meant that the Northern

Māori electorate was excluded. Judge Rushton discovered the mistake after the verdict and

before the sentencing of the defendant whose mother was Māori and who voted on the

Māori special electoral roll. The Judge believes that she should order a new trial because:79

[T]he jury list was improperly compiled so that those resident in three electorates and two

sectors of the community were excluded: those registered on the same ethnically based roll

as the accused and those having a community of interest with locus of the crime.

The Court of Appeal concludes that the mistake may have led to fewer Māori jurors:

however, there had been no departure from the principle of random selection thus the

verdict remained in place.80

Although not in breach of any express legislative requirement, the District Court Judge has

picked up on the importance of peer representation as defined herein. As aforementioned,

                                                                                                               74 Stephen Dunstan Trial by Peers?: The Composition of New Zealand Juries (Department of Justice, Wellington, 1995) at 25, based on the 1991 census. 75 “2013 Census ethnic group profiles” (2013) Statistics New Zealand < http://www.stats.govt.nz/Census/2013-census/profile-and-summary-reports/ethnic-profiles.aspx?request_value=24652&tabname=Populationandgeography>. 76 Khylee Quince “Māori and the criminal justice system in New Zealand” in Julia Tolmie and Warren Brookbanks (eds) Criminal Justice in New Zealand (LexisNexis, New Zealand, 2007) at 16. 77 Mark Israel “Ethnic Bias in Jury Selection in Australia and New Zealand” (1998) 26 Int J Soc L 35 at 46. 78 Israel above n 78 at 46. 79 Israel above n 78 at 46. 80 R v Cornelius above n 29.

  17

when the jury fails to represent the defendant’s group, their confidence and faith in the

system may be justifiably limited. As the Court of Appeal points out, the jury may be an

accurate application of the principle of random selection. However, a jury with no cultural,

value or social connection with the defendant is going to struggle to bear the empathy

advocated to enhance fair trial rights and, consequently, to legitimise the verdict.

More broadly, Māori scholars such as Moana Jackson contend that access to and

participation in a healthy Māori cultural identity is central to addressing poverty cycles.81

Quince points out that a “healthy cultural identity” is one with free access to knowledge of

language and cultural norms and practices, which are then promoted and enforced in our

larger society, including the justice system.82 However, since colonization, Māori have

suffered the negative effects of explicit (e.g. legislative) and implicit (e.g. lack of tikanga

and te reo) bias and such bias is reiterated in the criminal justice system.

The Ministry of Justice has acknowledged that the criminal justice system is not responsive

to Māori due to the lack of knowledge of and sensitivity to Māori values, culture, history

and beliefs.83 Similarly, in 1998, the President of the Law Commission attended a hui to

discuss Māori underrepresentation on juries:84

It was emphasised…that many Māori feel very strongly that juries are not representative of

Māori society, and this contributes to a general feeling of alienation from the criminal

justice system.

If a key goal of the jury system is to enhance public confidence in the criminal justice

system, yet that very system is tailored to avoid Māori values and cultural norms and is

perpetuating underrepresentation, there will be a lack of confidence among those who

arguably need it the most.

Further, the evidence of abuse of the peremptory challenge (discussed in Part VI) reiterates

perceptions of systematic prejudice and promotes monocultural bias in the jury system. All

                                                                                                               81 Moana Jackson He Whaipaanga Hou: Māori and the Criminal Justice System: A New Perspective (Ministry of Justice, 1987). 82 Quince above n 77 at 3. 83 Peter Doone “Closing the Gaps” (25 September 2000) Ministry of Justice <http://www.justice.govt.nz/publications/publications-archived/2000/report-on-combating-preventing-Māori-crime-hei-whakarurutanga-mo-te-ao/closing-the-gaps-relevant-data>. 84 Law Commission (1998) above n 4 at 68.

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of these experiences shape Māori views of the present jury system. It is seen not to

represent trial by one’s peers and ensure guarantee of a fair hearing, but to reflect

institutional prejudice.85

Ultimately, that Māori defendants are not being tried by a jury of their “peers” means the

jury is not representative of their culture, nor their values. Furthermore, as Māori are

failing to be represented, there is a perpetuation of a lack of confidence in and value for the

criminal justice system. Against a backdrop of the highly disproportionate Māori

imprisonment rate, and the indications that Māori lack confidence in the criminal justice

system, Māori peer underrepresentation is proving to be a serious flaw in the defendant’s

fair trial rights, and the broader criminal justice system. That the Law Commission and the

Ministry of Justice have expressly acknowledged Māori underrepresentation as a pressing

issue is implicit recognition that jury representation is not entirely defined by geography.

IV General Proposals for a New Jury of Peers

It is accepted that requiring at least some jurors to be members of the defendant’s peer

group will demand greater resource intensity and administration. However, determining

exactly how to ensure such representation is far from insurmountable. Rather,

accommodation of this broader interpretation and the defendant’s key interests will simply

require a process of trial and error.

A Who is Whose Peer?

The consideration of “who is whose peer?” may introduce some difficulty into practical

application of the advocated theory. Precisely what kind of background or which personal

characteristics a person must have to be considered the defendant’s peer will ultimately

depend on subjective matters.86 For example, assume the defendant is a young, white

woman, married with a young family, heavily involved in charity and her local church. If

                                                                                                               85 Jackson (1988) above n 72 at 141. 86 Dickey above n 39 at 211.

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she is accused of theft from her employer to pay for medical expenses for her ill child, who

are her peers? All women? All people with young families? All people with financial

issues and motivations to steal? If we accept that a juror’s ability to understand the case

depends on the juror’s own life experiences, a jury of all employers would be problematic,

as might a jury of upper class citizens with no experience with financial issues. Likewise, a

jury of peers does not require a jury of women who have committed similar acts.87 Thus, a

jury of the defendant’s peers in this example would not require a jury of thieves.

Implicit in observations about what might be a troublesome jury is that agreement can

probably be reached on the relevant traits in a particular case, and thus what might be a

fairer jury.88 For example, most people probably accept that gender defines personal

experiences in ways relevant to cases with gender-associated issues such as domestic

violence.89 Similar immutable characteristics such as ethnicity are typically identifiable as

well as important to the acceptance and legitimacy of the jury from the defendant’s point

of view.90

B Affirmative Peremptory Challenge

As discussed in Part VI of this paper, the peremptory challenge currently operates as a

means for both parties to exclude particular jurors without explanation or review.91 The

rationale is to allow the parties some control over jury composition, and also to allow

removal of potentially biased jurors who may lack overt manifestation of such bias. The

affirmative peremptory challenge would simply operate in the reverse: the defendant only

may select a limited number of jurors to be included on the final jury. Random selection of

the jury pool may then operate to fill the remainder of the jury.

The key advantage of the affirmative peremptory is that it allows the determination of

“peer” to be made by the individual defendant in each case. This removes administrative

difficulty in defining “peer” in any given situation, and promotes the rights of the

                                                                                                               87 Massaro above n 11 at 555. 88 Massaro above n 11 at 555. 89 Massaro above n 11 at 555. 90 Donna Meyer “A New Peremptory Inclusion to Increase Representativeness and Impartiality in Jury Selection” (1994-1995) 45 Case W L Rev 251 at 262. 91 Juries Act 1981, s 24.

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defendant.92 For example, if we continue with the scenario above, it may be unclear

whether a young, white, married woman may satisfy representational requirements for the

young, or for women, or for white people. If we accept Massaro’s proposition that an

impartial “peer” is someone whom the defendant values as an empathiser to his or her case,

it must be a subjective assessment. The defendant must be afforded the opportunity to

decide who may be able to understand his or her individual position. In addition to possibly

enhancing the impartiality of the jury and the verdict, the affirmative peremptory avoids

discrimination accusations because it is an inclusionary practice, rather than an

exclusionary practice as utilised in the current peremptory challenge.93

A possible objection may come from the prosecution who will not be afforded the same

opportunity. This objection may be rebutted on the grounds that fairness in criminal justice

allows for asymmetrical treatment based on the different roles in the adversary setting.94 As

with concepts of substantive equality, fairness recognises that different circumstances

require differing treatment.95 The tactical advantage given to the defendant is in fact

inherent in the type of criminal trial required by NZBORA, and necessary to compensate

for the resource and power imbalance that favours the prosecution.96

The key issue with the affirmative peremptory proposal is that it does not ensure adequate

representation in the jury pool at the outset – it is only administered after the initial ballot.

It is probably not viable to implement administrative mechanisms to ensure peer

representation in the jury pool, mainly because this would mean that the court registrar is

defining who are the defendant’s peers: a subjective opportunity that should lie with the

defendant.

Extending the geographical boundary of the jury district may improve diversity and

increase the possibility for peer representation in the jury pool. The Law Commission

recommended the boundary be extended from 30 to 45 kilometres in 2001 to help increase                                                                                                                92 Meyer above n 91 at 284. 93 The use of discriminatory exclusion from the jury on the basis of race, age, gender and so on is a concern outside the parameters of this paper. 94 Meyer above n 91 at 287. 95 Meyer above n 91 at 287. 96 Katherine Goldwasser “Limiting A Criminal Defendant’s Use of Peremptory Challenges: On Symmetry and the Jury in a Criminal Trial” (1989) 102 Harv L Rev 808 at 826. Goldwasser is citing the defendant’s advantages in the US context of the Constitution: however, the concept applies equally given the comparable fair trial rights and indications of resource imbalance between the defence and the prosecution discussed below.

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representation, although this has not yet been legislatively amended.97 This is a necessarily

arbitrary extension, and it is suggested a process of trial and error will determine whether

the boundary is adequately effective to meet the requirements while decreasing the chances

of repeated summons. It is emphasized that such selection will not substantially affect the

citizens’ interest in participation, as each citizen will be a member of one or other social

group.98 Moreover, the benefits of allowing for greater impartiality and ensuring at least the

appearance of a fairer trial for the defendant ought to outweigh the interference with

random selection.

1 The Jury List

Presently, the parties to any case are only entitled to know the information provided on the

jury list pursuant to s 4 of the Jury Rules 1990:

(1) Every jury list provided by the Electoral Commission under section 10 of the Act

must include the following information about each person named on the list:

(a) full name:

(b) address:

(c) occupation:

(d) date of birth.

Assuming the defendant has no personal knowledge of a potential juror, the defendant is

unlikely to have adequate social and cultural background information to indicate the

quality of the juror’s empathy and understanding. Enforcement of the broader

interpretation of peers as defined herein may therefore require substantial revamping of the

present legislative processes governing jury selection. Ideally, the information available on

the jury list would be broadened. Particular background characteristics could include

religion, socio-economic status, identified ethnicity, particular skills and education.99  

                                                                                                               97 Law Commission Juries in Criminal Trials (NZLC R69, 2001) at 61. 98 Davies above n 32 at 158. 99 In the United States, a supplemental juror questionnaire is occasionally implemented off-site or on-site pre-trial to a greater extent but similar effect. The questions are typically more intrusive than would be proposed in New Zealand, and the large number of questions means follow-up clarification is often needed for accurate assessments. For an example questionnaire see: Dr Jeff Frederick “Juror Questionnaires” (2012) American Bar Association 2:3 <http://www.americanbar.org/publications/gpsolo_ereport/2012/october_2012/juror_questionnaires.html>.

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The affirmative peremptory may operate to allow the defendant to examine the jury list

pre-trial and indicate their selection. The Hansard debates on the Juries (Jury Service and

Protection of Particulars of Jury List Information) Amendment Bill 2012 acknowledge the

privacy and safety concerns around disclosure of juror information to defendants.100 It may

be that only eligible persons, such as counsel, may view particular information such as the

name and address of the potential jurors. The defendant may then subjectively assess peer

representation on the remaining jury list information.

 

2 Discernable Characteristics

 

Gaining sufficient insight into the cultural and social background and experiences of

potential jurors may not be realistic given the depth of information provided will vary, and

it may be impossible for every eligible juror to note down the details of what may be

asked. A simpler proposal suggests that the affirmative peremptories may be based on

discernable characteristics of the potential jurors. This will reduce the possibility of

gaining more “in depth” knowledge of potential jurors that may further enhance empathy.

However, it will still allow the defendant to positively contribute to the representativeness

of the jury based on characteristics such as age, ethnicity, or gender that are all relevant to

satisfy the broader interpretation of peers. It is important to remember the goal is

realistically not to actually provide empathetic jurors, but to ideally increase the likelihood

of such representation.

The clear advantage of the affirmative peremptory proposal is that it allows the defendant

to define their “peers” based upon their own notions and self-conceptions.101 Inevitably,

and as is recognised by present juror selection methods, when the defendant participates in

the process, that process is deemed to be more legitimate. Evidence indicates that when

participants contribute to the process, they tend to be more satisfied with it and

consequently more accepting of an adverse outcome.102 Consequently, this proposal is

likely to enhance the trial system’s appearance of fairness and therefore its legitimacy.103

                                                                                                               100 (22 May 2012) 680 NZPD 2293. 101 Deborah Ramirez “The Mixed Jury and the Ancient Custom of Trial by Jury De Medietate Linguae: A History and a Proposal for Change” (1994) 74 BUL Rev 777 at 808. 102 For example see Allan Lind and Tom Tyler The Social Psychology of Procedural Justice (Springer Science and Business Media, 1988) at 92. 103 Ramirez above n 102 at 813.

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C Judicial Power to Determine Jury Composition

Alternatively, a 1993 United Kingdom Report of the Royal Commission on Criminal

Justice recommends that on application of either party, a judge should have the power in

exceptional cases to order that a jury include up to three representatives of racial minority

communities.104 Further, counsel should be able to ask the court to ensure one of the three

be the same racial background as the defendant or the victim. The recommendations have

not yet been implemented most likely due to the clear defects. First, these

recommendations fail to adequately address the lack of representation of jurors of the same

ethnic background of the accused.105 Three jurors from different racial minority groups

does not mean the jury is more representative of the community, nor is it a greater

fulfilment of a jury of the defendant’s peers. Further, the need to show “exceptional”

circumstances, defined as those with “unusual and special” features,106 places a severe

restriction on the availability of such a procedure.

In both the 1998 and 2001 papers on Juries regarding the inadequacies of jury

representation, the Law Commission firmly opposes any judicial power to determine the

composition of juries with a particular ethnic origin in mind. The Commission believes that

requiring a certain ethnic jury composition was indefensible for several key reasons:107

(a) it assumes bias on the part of the excluded jurors;

(b) views of appointed jurors would likely be given unfair weight;

(c) it assumes people of the same ethnic group share common values, beliefs and

experiences

[…]

It is accepted that peer representation should not be solely determined by ethnicity.

However, if the scope of the power were broadened to include members of similar social

                                                                                                               104 Royal Commission on Criminal Justice (1993) Cm 2263, particularly recommendations 222 and 223. 105 Cameron above n 25 at 126. 106 Royal Commission on Criminal Justice above n 105 at 133. 107 Law Commission (2001) above n 98 at 65.

  24

and cultural backgrounds and experiences, not just ethnicity, the third concern would likely

be alleviated. Additionally, the exclusion of jurors does not indicate on assumption of bias

on the part of the excluded. The purpose is to increase the possibility of greater

understanding and impartiality of the jury as a body. If we accept that similar background

and experience may enhance the fulfilment of a fair trial for the defendant, the focus of the

inquiry must be shifted away from who is being excluded, to who is being included.

Further, that the views of appointed jurors may be given unfair weight is a curious concern.

Jurors are entitled to deliberate and to try to convince other jurors of their perspective. If

one juror feels another may have a better understanding of the circumstances for whatever

reason and holds their opinion in high esteem; that is not necessarily a negative

consequence.

The Law Commission further considers that the process of random selection adequately

ensures a diverse range of views and perspectives is present on the jury, and any

inadequacy is best addressed by the removal of practical barriers to jury service.108

Acceptance of this conclusion depends on the preferred approach to equality in jury

representation. Removing practical barriers by, for example, increasing transportation aid

and child care support, may indeed increase formal equality of representation by enhancing

opportunity for jury service. Indeed, the Law Commission has stated that equal opportunity

is all that is required and thus what is pursued by their recommendations.109 However, to

achieve greater fulfilment of the defendant’s interests and a fairer trial, substantive equality

should be the ultimate goal.

Nonetheless, judicial determination of jury composition as recommended by the United

Kingdom Royal Commission is likely to compromise the integrity of the judiciary and the

jury system. It is too far removed from the symbolic democratic functions and values of the

jury system for the judiciary to decide when the defendant’s circumstances allow for

representation of their peers, and how many of their peers may participate.

D Semi-Professional Jurors

                                                                                                               108 Law Commission (2001) above n 98 at 65. 109 Law Commission (2001) above n 98 at 56.

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Despite the traditional desirability for community participation in the criminal justice

system, it is not the law that such involvement by layperson jury is required in every

case.110 Namely, under sections 6 and 50 of the Criminal Procedure Act 2011, the threshold

for election of trial by jury increased from offences with a maximum penalty of more than

3 months imprisonment to offences with a maximum penalty of 2 years imprisonment or

more, no doubt to enhance efficiency of the court system. Further, s 102 of that Act

provides that the court may, on the application of the prosecutor, or of its own motion,

order a Judge-alone trial if the case is likely to be long and complex.111 This provision

reflects the concern that lay jurors may fail to comprehend complex or technical evidence,

or evidence that is presented over a long period of time.112

Although noting the importance of the jury system for maintaining public confidence, and

legitimising the criminal justice system, in 2012 the Law Commission expressed

reservations about retaining the current system in particular types of cases, namely, sexual

offence cases.113 Particularly, the Commission cited the unattractiveness of the non-

transparent and non-appealable process of jury deliberation, and the absence of training of

jurors (as opposed to judges) to change prejudicial attitudes.114 Consequently, the Law

Commission proposed the alteration of the jury format in specified cases from the current

12-member jury of laypersons and judge, to a judge and two semi-professional jurors who

would deliberate as a joint panel.

One advantage of having semi-professional jurors would be the potential for some training

or education on fact-finding and decision-making. This would require juror selection well

in advance to allow for such training. As McDonald and Tinsley suggest, it may then make

sense for these jurors to have a fixed-term to assess a number of cases, which would reduce

resource intensity.115 Thus, the concept of semi-professional juries may go some way to

assert the defendant’s interest to be judged by a jury of peers in the sense of at least having

                                                                                                               110 Elisabeth McDonald and Yvette Tinsley From “Real Rape” Real Justice: Prosecuting Rape in New Zealand (Victoria University Press, Wellington, 2011) at 248. 111 This is provided the offence does not carry a maximum sentence of 14 years imprisonment or more. 112 McDonald above n 111 at 40-44. 113 Sexual offence cases have been identified as particularly problematic for lay juries largely because of the impact of rape myths and prejudices, and the current inability to effectively educate jurors: McDonald above n 110 at 248. Also see Law Commission (1998) above n 4 at [194]. 114 Law Commission Alternative Trial Processes (NZLC IP30, 2012) at 24. 115 McDonald above n 111 at 257.

  26

representatives with a distinct degree of understanding of the case.116 Proponents of such

juries not only assert application of the broader interpretation of peers but also advocate its

necessity to ensure fairness, as the general public may not be able to fully understand the

issues.117

However, the Law Society and the Criminal Bar Association are firmly against the

proposal for several reasons, namely that jurors may tend to defer to the judge given the

inherent power balance, and there would be dangers of improper influence by the state in

the training of jurors.118 Further, there is the obvious issue that the democratic values and

functions of the jury system would be severely limited if the jury were reduced from 12 to

2 members to represent the community.

It is this last concern that is considered insurmountable. There would be a dramatic

reduction in participation of citizens in the administration of justice such that the system

may come to be seen as detached from the public and the defendant alike. Perhaps most

importantly, there would be a severe restriction on the diversity of perspectives and

plurality of views. Such diversity is considered necessary to both ensure the competency of

the jury, and enhance the defendant’s confidence in the jury to fulfil their obligations. This

reduction in community participation would therefore threaten impartiality as well as

undermine key democratic values and principles of community representation.

Ultimately, the concept of being judged by one’s peers does not necessarily mean someone

who has been educated on the particular area or circumstances of the case. Though this

may be of assistance, the standard is far more broad and diverse, including those with

similar actual experiences. Further, a “semi-professional” juror has the potential to be

considered out of touch with ordinary citizens and closer to performing a role of the state,

which may impact public confidence in the criminal justice system.

1 Other jurisdictions

                                                                                                               116 Davies above n 32 at 154. 117 Davies above n 32 at 154. 118 Submission of the Criminal Law Committee of the NZ Law Society cited by the Law Commission Summary of Submission to Consultation (December 2012) at 40.

  27

Other European jurisdictions implement a range of levels of lay participation particularly

in sexual offence cases. In Denmark, for example, cases of sexual offending are tried in the

District Court with three judges and a “jury” of six members.119 The jury is not the same as

that operating under New Zealand’s current system. Rather, the members of the panel of

lay assessors who sit in less serious cases, lay assessors being those who either self-

nominate or are nominated by social organisations.120 Members are appointed for a fixed

term, receive some training, and are expected to sit on a minimum number of cases per

year; hence “semi-professional” jurors.121

E Conclusion

It is clear that to fully feel the effects of the preferred interpretation of “peers” there needs

to be the greatest possible insight into each individual juror, as well as input from the

defendant. Ideally, the jury selection process needs to undergo considerable administrative

revamping. As criminal jury trials are only used in a small percentage of cases, the

increased resource and administrative demands should not validate a rejection of this

broader interpretation.122 It is accepted that being tried by a jury of peers is not a right or

interest explicitly guaranteed in New Zealand: however, it clearly underpins the

defendant’s right to a fair trial and that is sufficient basis to pursue the greatest possible

fulfilment. Moreover, it is important to remember that it is not the community’s liberty at

stake, but the defendant’s. Thus, the defendant’s right to a fair trial and interests including

confidence in the criminal justice system should be adequately accommodated in balance

with the community interest in participation.

V Redressing Māori Peer Representation

What then is to be done about the potential for racial prejudice in all-white juries

in our system?123

                                                                                                               119 McDonald above n 111 at 255. 120 McDonald above n 111 at 255. 121 Law Commission (2012) above n 119 at 25. 122 For example from 1 January 2013 – 31 December 2013, the number of active District Court jury trials decreased 24% from the previous year to a total of 1,906 cases. “Annual statistics for the District Courts 2013” Courts of New Zealand <https://www.courtsofnz.govt.nz/from/statistics/annual-statistics/december-2013/district-courts>. 123 Quoted in Fernne Brennan “Ethnic Minority Representation on Juries – A Missed Opportunity” (2007) Internet Journal of Criminology <

  28

Lord Justice Auld

A Improving Māori Juror Proportionality

The Law Commission considers that the proportion of Māori attending court as potential

jurors is as expected, taking into account age, geographic location and electoral enrolment,

although disproportionate to the actual population.124 Consequently, most proposals to

improve Māori representation have focused on administrative mechanisms to increase

Māori availability for jury service.125

The electoral rolls are the source for the compilation of jury lists. Section 6(b) of the Juries

Act 1981 provides that all people registered as electors in accordance with the Electoral

Act 1993 are “qualified and liable” to serve as jurors within their jury district.126 The Māori

roll is generated on the basis of electoral enrolment. When people enrol to vote, they are

asked if they have any Māori ancestry, and if that person chooses to respond affirmatively,

they can choose to enrol on the general roll or the Māori roll. The term “Māori ancestry”

is used because the definition of “Māori” for electoral purposes is whether or not a person

is of Māori descent, rather than whether that person identifies as Māori.127

A computer randomly selects names from both the general and the Māori electoral rolls for

each jury district. In Trial by Peers? it was estimated that 17.9% of eligible voters with

Māori ancestry were not enrolled to vote.128 Given the evidence that Māori feel little

connection to the present legal system and the indications of a lack of confidence in it, this

is hardly surprising. Nonetheless, the first key issue with underrepresentation is a matter of

administrative practice to ensure all those eligible for jury service do in fact enrol.

Additionally, it may be effective for the responsible body to ensure jury lists are drawn up

in a manner representative of the Māori jury district population. The Law Commission

suggests that the proportion of Māori summonsed for the jury pool would correspond to the                                                                                                                                                                                                                                                                                                                                                http://www.internetjournalofcriminology.com/Brennan_ETHNIC_MINORITY_REPRESENTATION_ON_JURIES.pdf>. 124 Dunstan above n 75 at 65. 125 Cameron above n 25 at 125. For discussion on the effect of the peremptory challenge on Māori representation, see Part V of this paper. 126 This is subject to certain statutory disqualifications and exclusions, for example see s 7. 127 Electoral Act 1993, s 2. 128 Dunstan above n 75 at 26.

  29

proportion of eligible Māori jurors in the jury district.129 This way, the principle of random

selection that presently underpins jury selection would not be offended and non-enrolment

on the electoral rolls would be circumvented. However, it is essential to emphasise it is the

social and cultural values and experiences that are important, not solely ethnicity. Thus,

any reforms need to explain the purpose of the distinction and allow Māori identification to

be optional.

Critically though, even if these efforts do succeed in increasing Māori presence on the list

and thus pool representation, there is no guarantee Māori jury representation will actually

increase. This is because the principle of random selection also operates in the courtroom

to select the jury panel. Since there is likely to be fewer Māori present at this point, it

follows they will be less likely to be represented on the jury. These administrative

measures may, in the end, be futile if the jury still fails to fulfil the defendant’s interests.

B A Return to Mixed or All-Māori Juries

Cameron and others doubt that these mechanisms for addressing Māori

underrepresentation are adequate. Achieving the desired result requires more than one or

two Māori jurors for Māori defendants, even if the representation is proportionate to the

jury district.130 Rather, the underlying criticism of the present system is based on the

assertion that Māori defendants can be properly and appropriately judged only by a body

that reflects Māori cultural values and attitudes.131 Consequently, proposals for a more

radical approach require due consideration.

1 Mixed juries

In 1844, provision was made for “capable” Māori to sit with Pakeha on mixed-race juries

in civil or criminal Supreme Court cases where “the property or person of any Aboriginal

Native of New Zealand may be affected.”132 Returning to the mixed jury would promote a

significant improvement in Māori peer representation and circumvent the risks of the

peremptory challenge.

                                                                                                               129 Law Commission (1998) above n 4 at 78. 130 Cameron above n 25 at 127. 131 Cameron above n 25 at 127. 132 Juries Amendment Ordinance 1844, s 1.

  30

The modern proposal will allow a Māori defendant to elect a mixed jury whereby the jury

will be composed of six jurors drawn from the Māori roll and six from the general roll.

Guaranteeing the availability of the mixed jury will require the administrative measures of

ensuring Māori enrolment and subsequently that the jury lists are sufficiently large such

that the exercise of challenges will not affect ultimate peer representation. The obvious

difficulty is if there is simply inadequate numbers to guarantee six Māori jurors. This is

probably insurmountable as it depends still on the jury district. The proposal will then need

to qualify fulfilment of the election with “if available”. If it is not fully available, it will

simply be necessary to ensure the most peer representation possible. The practical

difficulties in making such a guarantee may mean this proposal ends up being more of a

courtesy with little true reward.

(a) Other jurisdictions

The argument for deliberate mixed jury representation has been considered particularly in

the United States and the United Kingdom, although on a more qualified basis. Lord

Justice Auld recommends that a scheme should be devised where, if race is likely to be a

relevant issue in the case, the jury should consist of, say, three persons from the minority

group of the defendant.133 A similar proposal is suggested with specific regard to African

American jurors in the US.134 The obvious criticism of this approach is interpretation of the

qualification “when race is an issue” in the case. Removing the qualification would ensure

representation in all instances, not just those defined as appropriate by the judge.

(b) Criticisms

A key criticism of mixed juries is the concept of racial advocacy. If jurors are blatantly

only included because of their identification with Māori ethnicity, they may feel obliged to

become advocates for their race rather than impartial fact-finders. In other words, imposing

                                                                                                               133 Cited in Brennan above n 124 at 14. 134 For example see Note “The Case for Black Juries” (1969-1970) 79 Yale LJ 531 at 549.

  31

jury duty on this basis may create the perception that Māori jurors have a moral obligation

to be partial to the Māori defendant.135

Additionally, implementation of mixed (and all-Māori) juries may be perceived

unjustifiable without similar consideration being paid to other ethnic minorities in New

Zealand. However, these concerns can be usefully placed in the context of the damaging

overrepresentation in offending statistics and simultaneous indications of lack of

confidence in criminal justice. The proposal needs to be understood as a means to repair

historical monoculturalism and monolegalism in New Zealand’s justice system by

providing a mechanism to ensure Māori are able to fully participate. Combined with the

status of Māori as the indigenous race of New Zealand, criticisms of privilege are therefore

not insurmountable.

Particularly, mixed-juries may find legitimacy in the principles of the Treaty of Waitangi.

Such an argument is, albeit unsuccessfully, briefly considered by the High Court in R v

Pairama.136 The accused submits that the jury should consist of six Māori and six Pakeha

on the basis that the Treaty of Waitangi represents equal partnership between Māori and

Pakeha people.137 In his judgment, Penlington J rejects the application citing lack of

jurisdiction, as the concept of equal partnership is not incorporated in the legislation

governing jury selection. 138 Although unsuccessful on this occasion, if the broader

definition of “peers” is to be fulfilled, incorporating the Treaty of Waitangi principles into

jury selection procedures will be a step in the right direction for the rights and interests of a

Māori defendant.

2 All - Māori juries

Much of the criticism of the lack of Māori representation in the present system seems to be

largely based on the assertion that only a body that reflects Māori cultural values and

                                                                                                               135 Ramirez above n 102 at 810. 136 (1995) 13 CRNZ 496. 137 Above n 137. 138 Rights conferred by the Treaty cannot be enforced in the Courts except in so far as granted statutory recognition. See NZ Māori Council v AG [1987] 1 NZLR 641 at 655 per Cooke P and 691 per Somers J.

  32

attitudes can appropriately be considered “peers” of Māori defendants. 139 As such,

consideration of a return to the all-Māori jury is prudent.

From 1862, Māori defendants could claim an all-Māori jury in several circumstances. For

example, the Juries Act 1868 provided that all-Māori juries were available in:140

(a) Civil and criminal cases in the Supreme Court;

(b) Civil cases if both parties were Māori and both concurred; and

(c) Criminal cases if both parties were Māori and the accused requested it

This statute seems to recognise that the notion of trial by one’s peers is not culturally

neutral. Jackson points out that it implies a degree of empathy and cultural understanding

to ensure a fair hearing:141

Being judged by your peers doesn’t mean a Māori being judged by a Pakeha – a Māori

peer is another Māori, someone who brings Māori ideas of right and justice, not Pakeha

prejudices.

However, with the extension to Māori of the right to sit on common juries in 1962 came

the simultaneous abolition of the right to claim an all-Māori or a mixed jury. The Report of

the Royal Commission concluded that except in respect of Māori land and certain related

matters, the Māori people were to be governed almost completely by the English derived

law.142 The abolition of the right to an all-Māori jury was justified on the basis that New

Zealand operates under “one law for all” whereby no section of the population should be

granted special privileges.143

Quince, among others, suggests a return to the pre-1962 regime whereby if the defendant is

Māori, the jury should be comprised entirely of Māori.144 It is argued that the return to an

all-Māori jury would be a greater fulfilment of the “jury of peers” principle implicit in the

                                                                                                               139 Cameron above n 25 at 127. 140 Sections 45-54. 141 Jackson (1988) above n 72 at 139. 142 Royal Commission on the Courts, Part 1 (AJHR Paper H2, 1978) at 2. 143 Jackson (1987) above n 82 at 12. 144 Quince above n 77 at 16.

  33

right to a trial by an impartial body.145 Jackson also advances the argument that the right

reflects the guarantee of Māori rangatiratanga in Article Two of the Treaty of Waitangi

1840.146

The proposed change would be best accommodated by amendment to the Juries Act 1981;

a provision would be included to allow Māori defendants to elect a trial by an all-Māori

jury. It would not be constrained to when racial issues are pertinent, nor available only in

specific jurisdictions. Further, the amendment would not affect counsel ability to challenge

for cause or the peremptory challenge. Challenge for cause under s 25 is not of concern to

fulfilment of peer representation as actual evidence of bias is required, and the potential for

the peremptory to detrimentally affect peer representation would be greatly reduced. The

provision would, however, ensure Māori defendants are in fact tried by people from their

own cultural (not simply geographic) community; achieving greater fulfilment of peer

representation. This amendment would reflect what was at one stage understood: that

cultural and value similarities enhance understanding.

The Law Commission has expressed concern about comprising juries solely on the basis of

ethnicity.147 It is valid to be cautious not to assume that ethnicity correlates with values,

beliefs and experiences such that Māori representation will in fact guarantee greater

empathy and impartiality. However, this is not an insurmountable concern. As a

preliminary response, it would first be necessary to amend the definition of Māori as used

in the Electoral Act 1993. As aforementioned, whether someone may be enrolled as

“Māori” currently depends on descent per s 3 of that Act. However, when considering

these issues of Māori representation, it is perhaps more meaningful to use a definition of

ethnicity based on self-identification.148 This will emphasise that it is not simply the descent

from Māori ancestry that is key, but having that relevant connection and identification with

Māori culture, values, and beliefs.

It may also be necessary to provide more information to eligible jurors on the importance

of their ethnicity indication on the enrolment list. Eligible jurors should be given the policy

behind mixed and all-Māori juries and the significance to a fair trial that peer

                                                                                                               145 Quince above n 77 at 16. 146 Jackson (1988) above n 72 at 259-279. 147 See Law Commission (2001) above n 98 at 65. 148 Dunstan above n 75 at 26.

  34

representation may bring. It will still be optional to select any ethnicity. This will allow for

the incidence of those who do not actually identify with their literal racial or cultural

group. However, the aim is that the Māori community will recognise the value their

representation may have to the defendant’s fair trial interests.

Additionally, although this paper focuses on fairness to defendants, it is important to

acknowledge the value inclusion of Māori in the application of the law could have for the

entire Māori community. Aside from voting, jury service is the most significant

opportunity to participate in the democratic process and enhance confidence in the legal

system.149 Enhancing this level of participation could have a greatly beneficial impact on

Māori perceptions of the criminal justice system.

(a) Resistance to all-Māori juries

 

Similar criticisms will arise as to the justification of all-Māori juries aforementioned

regarding the proposal for mixed juries. As aforementioned, they may be perceived

unjustifiable without similar consideration being paid to other ethnic minorities. The

proposal needs to be understood in the context of Māori status as the tangata whenua and

the guarantees of the Treaty of Waitangi. Combined with the overrepresentation offending

statistics and indicated lack of confidence in the system, such criticisms are not

insurmountable.

At the other end of the spectrum, it has been argued that an all-Māori jury by itself would

be inadequate to fulfil the fair trial rights of a Māori defendant. Notably, Cameron

considers that the provisions for mixed and Māori juries were little more than a perfunctory

gesture to justify a system that extinguished Māori legal structures while denying Māori

the right to participate as full citizens in the administration of the new system of justice to

which they were subjected.150 In any case, the “special” procedures invariably occurred in

the context of a system founded exclusively on values derived from English common

law.151 Indeed, the very concept of a jury was alien to the legal and social structure of the

Māori people.152 Similarly, Jackson recognises that any institutional accommodation of

                                                                                                               149 Ramirez above n 82 at 777. 150 Cameron above n 25 at 111. 151 Cameron above n 25 at 111. 152 Cameron above n 25 at 111.

  35

Māori values has historically been confined by Pakeha concepts of their appropriateness.153

Consequently, Cameron argues that for an all-Māori jury to make sense, it must be within

the context of an alternative Māori justice system based on Māori values.154 The notion of

returning to this concept of an all-Māori jury, operating within an English court system

almost entirely based on European values, may therefore be considered somewhat

pointless.

Establishing an alternative justice system would require profound procedural and structural

change, analysis of which is beyond the parameters of this paper. In any case, the Law

Commission’s typical reluctance to recommend institutional and structural change suggest

an alternative Māori justice system is not in New Zealand’s near future. It is, however,

respectfully argued that Cameron’s dismissal of all-Māori juries unless accompanied by an

alternative Māori justice system is premature. The proposed introduction of a right to elect

a Māori jury will go some way to alleviate Māori underrepresentation. The defendant’s

ability to elect a jury comprised of those who they believe to be their peers will promote

the defendant’s interests in a fair trial. Additionally, a jury comprised of those with a

degree of social and cultural connection with the defendant will enhance empathy and

therefore impartiality in the administration of justice. Further, the value of actively

encouraging peer representation and recognising the importance of Māori participation in

the administration of justice will help to encourage Māori confidence in the broader

system.

E Conclusion

To conclude, Māori underrepresentation on juries is an issue that plainly requires special

attention. If it is accepted that peer representation ought to be defined broadly as advocated

throughout this paper, Māori defendants are repeatedly denied the guarantee of a fair trial

affirmed in NZBORA. Particularly given the severe overrepresentation of Māori in our

crime statistics, and Māori status as our tangata whenua, it is my hope that this paper will

spur action to enhance fulfilment of the Māori defendant’s fair trial rights.

VI The Subsequent Impact of the Peremptory Challenge

                                                                                                               153 Jackson (1988) above n 72 at 205. 154 Cameron above n 25 at 128.

  36

Once the source of “peers” is defined, and even if the jury pool is representative of the

defendant’s peers as a whole, in-court jury selection procedures can subsequently impact

the representative nature of juries.155 Particularly, the peremptory challenge has been

considered a valuable tool for both prosecution and defence counsel to interfere with jury

composition in the pursuit of an impartial jury. However, in its current form, the

peremptory challenge is a significant impediment to the accommodation of the defendant’s

interests in peer representation. Its removal, or at least dramatic modification, is advocated,

as a final proposal in accommodating the defendant’s relevant fair trial rights and interests.

A The Peremptory Challenge

The peremptory challenge is also known as “challenge without cause”. As the term

suggests, the challenge is exercised without provision of reason or evidence, and each

challenge is final in the sense that the judge has no power to review or monitor its exercise.

In New Zealand, the peremptory challenge is governed by s 24 of the Juries Act 1981

which states:

(1) In every case to be tried before a jury, each of the parties is entitled to challenge

without cause 4 jurors only.

(2) However, if 2 or more defendants in a criminal case are charged together, the Crown

or other prosecutor is entitled to challenge without cause 8 jurors only.

(3) If a juror is discharged and is to be replaced with another under section 22A(1)(b),

each party is entitled in the selection of the new juror to exercise the number of

challenges without cause that the party has not already exercised.

This can be contrasted with the “challenge for cause” under s 25 of the Juries Act. That

section provides that each party to the proceedings is entitled to unlimited challenges for

cause on the grounds that a juror is either not indifferent between the parties; or disabled

such that they are incapable of acting effectively as a juror. In this instance, the judge has

the power to determine every challenge for cause on any necessary evidence.156

                                                                                                               155 Juror selection procedures are set out by the Juries Act 1981 and the Jury Rules 1990. As the phrase suggests, jury selection is the process by which the jurors are selected from the pool of potential jurors. 156 Juries Act 1981, s 25(3).

  37

The processes of pre-trial jury vetting largely guide exercise of the peremptory challenge

whereby counsel check the list of potential jurors for any unsuitability or bias. Under s 4 of

the Jury Rules 1990, this list must include the name, address, occupation and date of birth

of potential jurors.

B Rationales for the Peremptory Challenge

There are two common rationales for the peremptory challenge. The first reflects concerns

about maintaining fair representation, by allowing parties to remove jurors they think may

be biased. 157 The second emphasises the need for parties to have some control in

composition of the jury enabling greater acceptance of a jury’s verdict.158

1 Removing biased jurors

The peremptory challenge allows counsel to remove from the jury those perceived as

biased where there may be insufficient overt manifestation to justify challenge for cause.159

Supporters of the peremptory challenge regard this ability as key to safeguarding an

impartial jury.160 Though not constitutionally guaranteed in New Zealand, the need to

maintain an impartial jury is axiomatic, particularly bearing in mind what necessarily

constitutes a “fair” trial in terms of s 25 NZBORA and international human rights law.

Gobert points out that with the evolution of the jury from a body of fact knowers to one of

fact finders came a corresponding concern that the jury be impartial.161 That is, jurors were

previously selected because of their knowledge of the accused or the alleged crime. A

certain bias was expected. Today, it is expected that jurors base their decisions solely on

the evidence before the court.

                                                                                                               157 Ian Kawaley “Abolishing the peremptory challenge” (1988) 85:2 LSG at 22. 158 Law Reform Commission of Canada The Jury in Criminal Trials (Working Paper 27, 1980) at 54. 159 James Gobert “The Peremptory Challenge – An Obituary” (1989) Crim LR 528 at 529. 160 For example see Gobert above n 160. 161 Gobert above n 160 at 528.

  38

With the increased access to information as a result of the media and the internet, absolute

impartiality is probably impossible. The Court of Appeal in R v Tinker stated that a juror is

considered biased if, for example, they have obtained prejudicial knowledge about the

defendant prior to trial.162 Gobert offers a broader interpretation whereby bias refers to a

predisposition to find in favour of one party, irrespective of the evidence, and contrary to

the presumption of innocence.163

2 Allowing the parties some control over jury composition

The Canadian Law Reform Commission stated that the importance of the peremptory

challenge lies in the fact that justice must be seen to be done:164

The peremptory challenge is one tool by which the accused can feel that he or she has

some minimal control over the make up of the jury and can eliminate persons, for whatever

reason, no matter how illogical or irrational, he or she does not wish to try the case.

The peremptory challenge is therefore perceived to increase the confidence of the parties in

the jury and the criminal justice system as a whole. It is considered that if the parties have

some control over the composition of the jury, they will be more accepting of its verdict.

Gobert suggests that this acceptance allows convicted persons to focus on rehabilitation,

rather than on any perceived injustice leading to the jury’s verdict.165

C Impact on the Accommodation of Peer Representation

Several scholars argue that the easiest way to accommodate the defendant’s interests in

peer representation is to abolish the peremptory challenge of the prosecution.166 As will be

seen, the ability of the defence to use the peremptory challenge does give the defendant a

degree of choice in the juror selection process, which may enhance accommodation of peer

representation. Conversely, Cameron and others consider the potential for abuse of the

                                                                                                               162 [1985] 1 NZLR 330. 163 Gobert above n 160 at 529. 164 Law Reform Commission of Canada above n 157 at 54. 165 Gobert above n 160 at 529. 166 See Massaro above n 11 at 560; Davies above n 32 at 156.

  39

peremptory challenge and inability of review necessitates its abolition, particularly having

regard to the impact it may have on representation.167

1 Creating a biased jury

It is axiomatic that removing prejudicial jurors promotes impartiality of the jury. The

peremptory challenge was initially used to ensure the jury was not biased in favour of

either party. 168 Ideally, what should ultimately emerge is a jury composed of some

defendant-empathizers, and some victim-empathizers, with neither extremes being

represented.169 Recall that the aim of broadening the definition of “peers” is not to ensure

the jury is partial or unfairly biased toward the defendant, but to increase impartiality

through the perspectives of empathetic jurors. However, as Gurney argues, the peremptory

challenge has allowed counsel to actively search for and attempt to construct a favourable,

biased jury, rather than an impartial one.170

In Trial by Peers? Dunstan suggests that the address of the potential juror was often

considered important as an indicator of attitudes held by the individual. For example, there

was an assumption that those living in middle-upper class suburbs would be more biased

against certain types of offending particularly burglary, because they felt more vulnerable

to this type of offence.171 As a result, counsel prosecuting a home-burglary may skew the

jury to be composed of one particular segment of the community that may harbour

negative bias towards he defendant. This is akin to the situation contemplated by Massaro

whereby the jury is a totally homogenous group of citizens biased against the defendant’s

group. 172 Since counsel need not articulate reasons for the challenge and there is no

mechanism for review or monitoring and potential for abuse by creation of a biased jury is

wide. Further, there is the potential for a challenge to in fact be based on a discriminatory

ground such as race or gender in breach of freedom from discrimination contained in s 19

NZBORA.

                                                                                                               167 Cameron above n 25 at 124. 168 Dunstan above n 75 at 30. 169 Massaro above n 11 at 518. 170 Brent Gurney “The Case for Abolishing Peremptory Challenges in Criminal Trials” (1986) 21 Harv CR – CLL Rev 227 at 230. 171 Dunstan above n 75 at 115-116. 172 Massaro above n 11 at 548.

  40

Such a jury must fail to fulfil any of the community-based functions, as it cannot be

considered an accurate representation of the community or to be acting as the community

conscience. Rather, it is the representation of a particular segment defined for the purpose

of achieving partiality. Further, when a prosecutor deliberately exercises the peremptory

challenge to exclude the defendant’s peers, the inevitable result is a distorted jury and an

increased likelihood of a partial verdict. Moreover, when the jury possesses none of the

defendant’s peers (and in fact represents the opposite), the defendant’s hope of an

empathetic, impartial hearing vanishes.173 Thus, tailoring of the jury in this way makes a

mockery of both the symbolic democratic values associated with community

representation, and the defendant’s fair trial rights.

It may be argued that opposing counsel exercising challenges may approximate a balance

such that the defence has equal opportunity to increase peer representation, as the Crown

does to decrease it. However, there is a concern that the information and resources

available to each counsel may not be equal. For example, the Trial by Peers? study

indicated that the prosecution often received police-annotated jury lists and other

information about potential jurors from the police whereas defence counsel had far more

limited resources.174 The increase of personal information available on the internet since the

study was published in 1995 may go some way to reduce this concern as each party can

make use of resources such as Facebook and Google. However, as Hoffmeister

highlighted, the state would still have an inherent advantage, as it is able to access further

information not readily available to the wider public.175

For example, in 2009, the majority of the New Zealand Supreme Court held that the police

may research the criminal history of prospective jurors on behalf of the Crown and were

not required to disclose any findings to the defence.176 The majority considered that the

Crown has a legitimate interest in such information to exercise an efficient peremptory

                                                                                                               173 Massaro above n 11 at 519. 174 Dunstan above n 75 at 107-113. 175 Thaddeus Hoffmeister “Investigating Jurors in the Digital Age: One Click at a Time” (2012) 60 U Kan City L Rev 611 at 615. 176 Gordon-Smith v R [2009] NZSC 20. Under s 111 of the Privacy Act 1993, police power to access criminal history extends to assisting the Crown in the prosecution of indictable crimes, including obtaining information that may be of use to the Crown in the exercise of jury challenges.

  41

challenge. However, the majority then, in contradiction, went on to that any disparity in

information would, at most, deprive the defence of an opportunity to challenge the juror:177

The defence may say that, had it known the juror’s previous conviction, the juror would

undoubtedly have been challenged. But no one will ever know whether the juror was

improperly influenced against the accused in joining the verdict of guilty. The point would

be entirely speculative.

With respect, the defendant arguably has a greater interest in the information as they are

the one on trial. Further, the opportunity to challenge a juror on “speculation” is precisely

the purpose of the peremptory challenge. If it were not speculative, that is, if there were

actual bias, challenge for cause would be the appropriate procedure. In his dissent,

McGrath J points out that both parties need to be fully informed if the peremptory

challenge is to be meaningful and effective.178 Thus, the unequal distribution of power

between the defence and prosecution may undermine the integrity of present jury selection

mechanisms as well as decrease fairness to the defendant.

It is clear that the peremptory challenge has the potential to affect peer representation, jury

impartiality, and, consequently, the defendant’s confidence in both the verdict and the

criminal justice system as a whole. In the absence of overt manifestation of bias, counsel

should not be able to impact peer representation particularly where the consequences are

contrary to the fundamental values of the trial by jury. The pursuit must be in favour of an

appropriate balance between the community’s interests and those of the defendant. A jury

deliberately constructed to be biased against the defendant surely fails to fulfil either side

of this balance.

2 Anti - minority juror selection

It has been argued that the peremptory challenge allows counsel to try to improve minority

representation.179 Particularly in the United Kingdom, defence counsel used the peremptory

                                                                                                               177 At [18]. 178 At [83]. 179 Law Commission (1998) above n 4 at 100. The Supreme Court considered an exception applies where there is a previous conviction indicating a real risk that the juror might be prejudiced against the accused / in

  42

challenge to increase the representation of ethnic minorities.180 In New Zealand, however,

the Law Commission considers that the peremptory challenge may be more prominently

used as a means of excluding minorities.181 As Gurney argues, such use may ultimately

produce a jury that represents a select portion of the community, not likely to be the

defendant’s peers, and a verdict that will undermine confidence in the criminal justice

system.182

Similarly, Moana Jackson argues that New Zealand jury composition is inherently flawed

due to the bias against Māori in juror selection processes.183 Indeed, the findings of Trial by

Peers? indicates that Māori are significantly underrepresented on juries, that is, there were

fewer Māori than expected given their proportion in the pool of potential jurors.184 This

suggests that despite any geographical or other practical barriers to jury service, the juror

selection processes are contributing to Māori under-representation. Consider the small

percentage of Māori in some jury districts whereby it would be reasonably easy for counsel

to eliminate such minority representation from the jury. Conversely, it would be difficult

for Māori defendants to positively affect Māori representation in order to enjoy a jury of

his or her peers.185

Specifically, Trial by Peers? indicates that prosecution counsel are twice as likely to

challenge Māori jurors compared with non-Māori in the High Court, and three times as

likely in the District Court. 186 Additionally, prosecution counsel are more likely to

challenge Māori men than any other group.187 The findings seem to reflect the view that

trial by one’s cultural or racial peers has the potential to be biased in favour of the

defendant. On the other hand, defence counsel are approximately twice as likely to

challenge non-Māori than Māori jurors, and were least likely to challenge Māori men.188

                                                                                                                                                                                                                                                                                                                                               favour of the Crown. McGrath J provided a lengthy dissent to conclude at [89] that the Crown should provide all information relevant to the juror’s suitability. 180 See generally chapter 6 of the Law Commission (1998) above n 4. 181 Law Comission (1998) above n 4 at 100. 182 Gurney above n 117 at 232. 183 Jackson (1987) above n 82. 184 Dunstan above n 75 at 68. 185 Law Commission (1998) above n 4 at 100. 186 Dunstan above n 75 at 66. 187 Dunstan above n 75 at 66. 188 Dunstan above n 75 at 66.

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These statistics seem to reflect a perceived correlation between race and social

background, and the potential of bias or partiality towards the defendant. If such a notion is

accurate, it begs the question of the validity of an entirely Pākehā jury for a Pākehā

defendant. Further, if being tried by a jury of one’s racial and cultural peers has the

potential for bias in favour of the defendant; does this not necessarily imply that a jury

entirely not of one’s racial and cultural peers will be biased against the defendant? As has

been argued, in order to be impartial, jurors must have an understanding of the social and

cultural background of the defendant otherwise they will apply their own interpretation to

the circumstances of the case.189 If this proposition is accepted, a jury of entirely Pākehā

for a Māori defendant has the potential to return a negatively biased verdict, and vice

versa.

Consequently, the peremptory challenge is enabling bias against the Māori community that

is perpetuating Māori under-representation on juries in New Zealand. This is antithetical to

both the key symbolic value of democratic representation, and the Māori defendant’s right

to a fair and impartial trial by their peers. As has been pointedly observed:190

To eliminate potential jurors on the grounds that they will bring the biases of their group

into the jury room is to misunderstand the democratic task of the jury, which is nothing

else than to represent accurately the diversity of views held in a heterogeneous society.

D Redefining the Peremptory Challenge

It is accepted that community representation is a key aspect of jury trials in New Zealand’s

democratic society. The diversity of perspectives implied enhances the ability of jurors to

act as fact-finders, and allows community values to be satisfied. However, the peremptory

challenge poses a threat to this representation as well as to fulfil the defendant’s interests

of impartiality. As such, it is necessary to analyse alternatives to the peremptory challenge

as it currently stands.

1 Abolishing the peremptory challenge

                                                                                                               189 Davies above n 32 at 157. 190 Jeffrey Abramson We, the Jury: the Jury System and the Ideal of Democracy (BasicBooks, United States of America, 1994) at 101.

  44

In 1998 the New Zealand Law Commission considered that it could not be demonstrated

that the peremptory challenge actually fulfilled any of its rationales or objectives.191 The

Commission admitted that while designed to eliminate biased jurors, there was an obvious

intention to secure a favourable jury by retaining jurors with a perceived bias in their

favour.192 Tailoring the jury in this way threatens the diversity of perspectives necessary for

the jury to perform their fundamental fact-finding function, and decreases the possibility of

the defendant receiving an impartial trial. Abolition of the peremptory challenge would

therefore eliminate the unreviewable ability of counsel to attempt to create a biased jury.

Further, removing the peremptory challenge would help to improve minority

representation by eliminating the unmonitored advantage of counsel attempting to exclude

minorities. To date, the majority of efforts to increase Māori representation have focused

on administrative improvements designed to increase Māori electoral enrolment.193 While

these may have a considerable positive impact, there are other (presently) unavoidable

obstacles to Māori jury service, such as previous convictions, such that administrative

efforts will not provide the whole solution. As the statistics indicate in Trial by Peers?

prosecution often exercise the peremptory challenge to exclude Māori representation.194

Therefore, abolition of the challenge would help to improve Māori participation in the trial

process. While ethnicity is not to be considered the sole determinative factor, it is an

important consideration. Enhanced Māori participation would be a greater fulfilment of

“peer” representation for a large number of defendants, which would consequently

improve Māori confidence in the justice system and acceptance of jury verdicts.

Abolition of the peremptory challenge would also reduce the disadvantages faced by

defence due to disparities in available information recognised by Trial by Peers?, the Law

Commission, and Justice McGrath of the Supreme Court. Importantly, the key objectives

of the peremptory challenge, namely to remove biased jurors and to allow the parties some

control over the jury selection, would remain in tact through the use of challenge for cause

under s 25 of the Juries Act 1981. The possibility of abuse of process is, on the other hand,

restricted.

                                                                                                               191 Law Commission (1998) above n 4 at 100. 192 Law Commission (1998) above n 4 at 98. 193 Cameron above n 25 at 125. For example the Law Commission (1998) considered that the Electoral Enrolment Centre might want to ensure the jury lists are drawn up to be proportionally representative of the Māori population, above n 4 at 78. 194 See Dunstan above n 75 at 66.

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Despite these clear benefits of abolition, the Commission proposed instead to reduce the

number of peremptory challenges from six to four, a proposal that resulted in legislative

amendment in December 2008, citing difficulty in determining how to modify the scope of

challenge for cause. Again, in 2001, the Law Commission recommended the peremptory

challenge be retained. This time, the Commission was of the view that the peremptory

challenge was valuable as it allows both parties to eliminate those persons with perceived

(yet unsubstantiated) bias against either party and to eliminate “obvious misfits”.195 The

Commission considered that the peremptory challenge is advantageous to challenge for

cause (s 25 of the Juries Act 1981) as it is less “demeaning” since counsel do not have to

articulate reasons for asserting a juror’s unsuitability.196 It is respectfully argued that the

possibility for potential jurors to be offended should not be given undue weight in the

pursuit of accommodation of the defendant’s rights. Moreover, that the defendant’s liberty

and confidence in the justice system are at stake should surely outweigh the any difficulty

in having to articulate reasons for challenge.

(a) Modifying challenge for cause

In the New Zealand context, it is argued that the rationales of the peremptory challenge

could be equally, if not better, served by the use of a modified challenge for cause. If the

peremptory challenge were to be abolished, such use would be the logical option to

maintain the ability of biased potential jurors to be eliminated.

Section 25 of the Juries Act 1981 provides:

(1) In addition to the right to challenge under sections 23 and 24, each party to

the proceedings is entitled to any number of challenges for cause on the

ground that—

(a) a juror is not indifferent between the parties; or

(b) a juror is not capable of acting effectively as a juror in the

proceedings because of disability.

(2) […]                                                                                                                195 Law Commission (2001) above n 98 at 89. 196 Law Commission (2001) above n 98 at 88.

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(3) The Judge shall determine every challenge for cause, in private, in such

manner and on such evidence as he thinks fit.

To make the challenge for cause easier to use and more effective, it will require

modification particularly regarding the information available to be able to substantiate a

claim. Pursuant to s 4 of the Jury Rules 1990, each party is presently entitled to know only

the name, address, occupation and date of birth of potential jurors as stated on the jury list.

The limited nature of this information makes it difficult for accurate assessments to be

made of potential jurors thus it is not surprising that counsel tend to utilise the peremptory

challenge instead of the procedures of challenge for cause. 197 Ensuring sufficient

information about potential jurors is readily and equally available to both parties is a

necessary prerequisite to an effective reform of s 25. This could be achieved by a pre-trial

questionnaire sent to prospective jurors designed to indicate bias, or some form of

questioning (voir dire or limited) could occur in accordance with established rules and

controlled by the judge. To address inequality of information, it may also be required that

the Crown disclose any information obtained from the police to the defence. While likely

time consuming and costly, the limited and decreasing number of criminal trials by jury

means increased resource intensity should not be a determinative factor.198

Further, it has been pointed out that the s 25 standard that the juror be “not indifferent”

requires the juror be biased in fact.199 This interpretation is bolstered by the need for

evidence in support of the challenge pursuant to s 25(3). If the peremptory challenge were

abolished, this provision would likely need to extend to allow challenge for an appearance

of bias. Consider the situation where a potential juror has some kind of personal

connection to the victim. The potential juror may not actually be indifferent; they may not

be biased in fact. However, they can be excused or discharged by the judge under ss 16 and

22 of the Juries Act 1981. Expansion of s 25 would be logical to allow counsel to challenge

on the grounds of an appearance of bias. As the judge ultimately determines challenge for

cause on any necessary evidence, abuse of this lower threshold would not be a concern.

                                                                                                               197 Law Commission (1998) above n 4 at 102. 198 “Annual statistics for the District Courts 2013” Courts of New Zealand <https://www.courtsofnz.govt.nz/from/statistics/annual-statistics/december-2013/district-courts>.  199 Law Commission (1998) above n 4 at 103.

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It may be noted that the defendant’s peers may still be challenged under s 25. However, it

is important to emphasise the distinction between a sympathetic or biased juror and an

empathic or impartial juror. The broader interpretation of peers does not promote inclusion

of biased jurors thus the advocated use of s 25 to exclude biased jurors does not interfere

with the fulfilment of peer representation.

While abolition of the peremptory challenge would necessitate the development of

challenge for cause, the present ability of lawyers to exclude jurors without rationalisation

or any kind of monitoring process is a threat to the legitimacy of the jury system. Abolition

of the peremptory challenge would allow only substantiated challenges to be made under s

25.

(b) The English approach

In England, the Crown’s right to unlimited use the peremptory challenge appears to have

been barely used throughout its 700-year history.200 In fact, in 1305, Parliament considered

it intolerable that the Crown should be able to handpick prospective jurors; thus, the

Crown’s right to peremptories was abolished.201 It was replaced by a common law

procedure called “standing aside,” whereby prosecutors could “stand aside” an unlimited

number of jurors pending selection for all remaining jurors.202 Eventually known as “stand

by”, what replaced the peremptory challenge was severely restricted by the Attorney

General’s Guidelines.203 The guidelines stipulate that the right to “stand by” may only be

exercised where authorised by the Attorney General in cases of national security or

terrorism, or where both prosecution and defence counsel agree the juror would be

“manifestly unsuitable”.204

                                                                                                               200 Hoffman above n 6 at 821. 201 Hoffman above n 6 at 821. 202 Hoffman above n 6 at 822. 203 Judith Heinz “Peremptory Challenges in Criminal Cases: A Comparison of Regulation in the United States, England, and Canada” (1993-1994) 16 Loy LA Int’l & Comp LJ 201 at 217; the right of “standby” gave the same right to challenge a juror without cause. In contrast to the legislated peremptory challenge, standby was unlimited. 204 Attorney General’s Office “Jury vetting: right of standby guidelines” (30 November 2012) GOV.UK <https://www.gov.uk/jury-vetting-right-of-stand-by-guidelines--2>; Julie Vennard and David Riley “The Use of Peremptory Challenge and Stand By of Jurors and Their Relationship to Trial Outcome” (1988) Crim LR 731 at 732.

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In 1989, the peremptory challenge for defence counsel was also abolished as the result of a

sustained media campaign alleging systematic abuse of the process.205 It was alleged that

defence counsel were “packing” juries with individuals who were likely to find in their

favour, although no evidence was found.206 The abolition of the peremptory challenge and

the implementation of strict guidelines for its replacement “stand by” procedure indicate

the potential for the peremptory to threaten fair trial rights. Lord Justice Phillips wrote of

the current state of the jury selection in England:207

Jury selection is now usually a quick and straightforward process. The peremptory

challenge when used to attempt to tailor a jury having regard to the perception of defence

counsel as to the type of juror who would or would not be favourable to the defence case or

the defendant was inappropriate, unattractive, and, I suspect, usually misguided.

The Law Commission was of the view that the English alternative to the peremptory may

be open to challenge under NZBORA on the grounds that it provides the Crown with an

unfair advantage over the defendant.208 This plainly indicates concern with maintaining

impartiality and fairness for the defendant, which bolsters the argument to abolish the

peremptory because of its effect on such rights.

2 Abolishing the Crown’s peremptory challenge only

Prosecutorial discretion is a significant part of our justice system from investigations, to

decisions to report a “crime”, to plea-bargaining. This discretion permits prosecutors to

consider any number of factors with any amount of weight.209 In many ways, prosecutorial

discretion is essential, particularly when considering how evolving social values affect the

public interest in prosecution. However, Massaro argues that the most controversial aspect

of the peremptory challenge is its use by the prosecution to exclude perceived defendant

sympathisers in a way that threatens the defendant’s trial rights.210 Recognition of the

potential issues with prosecution peremptory is evident in the Law Commission Report of                                                                                                                205 Sean Enright “Reviving the Challenge for Cause” (1989) 139 NLJ 9 at 9 cited in Raymond Broderick “Why the Peremptory Challenge Should Be Abolished” (1992) 65:2 Temp L Rev 369 at 373. 206 Broderick above n 205 at 373. 207 Lord Justice Phillips “Challenge for Cause” (1996) 26 VUWLR 479 at 482-3. The only downside the Lord Justice noted is that it is perhaps “less embarrassing” for defence to exclude the obviously inadequate juror by peremptory challenge, than having to convince the prosecution to exercise their “stand by”. 208 Law Commission (2001) above n 98 at 87. 209 “Judging the Prosecution” above n 24 at 2123. 210 Massaro above n 11 at 525.

  49

2001. The Commission recommends that guidelines should be issued to the prosecution to

explain appropriate bases for the use of the peremptory right.211 An alternative procedure

for accommodating the defendant’s interests in peer representation and jury impartiality

would therefore be to entirely abolish the prosecution’s privileges of peremptory challenge.

It needs to be emphasised that the defendant’s regard for the jury should be considered

more important than that of the Crown. Predominantly, it is the defendant’s right to a fair

trial that is affirmed in NZBORA and should therefore be the primary concern. Further, the

Crown has repeated opportunities to protect society’s interests; the defendant has only their

trial to protect their own, making the fairness of that trial paramount. If the prosecution

loses, it does not lose its liberty. While abolishing the Crown’s peremptory would not

guarantee peer representation, it would go some way to restrict the Crown’s attempts to

construct a jury biased against the defendant, and promote a jury of the defendant’s peers.

For example, with regard to Māori peer representation, evidence suggests the prosecution

are more likely to challenge Māori compared with non-Māori.212 Limiting the Crown’s

ability to do so would consequently increase Māori jury representation.

Further, if the peremptory challenge is not being abused, its only real advantage is simply

to make the parties feel more confident that the jury is not biased against them.213 It has

already been recognised that it cannot be demonstrated that the challenge actually meets its

rationale of truly removing bias jurors, so the potential disadvantages of the prosecution’s

peremptory outweigh its unproven advantages. As Massaro recognises, it is better to

preserve fairness to the defendant and possibly compromise empathy with the prosecution,

than to promote a non-exist Crown right to challenge over the defendant’s interest in a trial

by his or her peers.214 In any case, abolition would not compromise the community interest

in an impartial jury as the prosecution would still be able to exercise challenges for cause

under the guidelines of s 25 of the Juries Act.

(a) The Bill of Rights and Crown peremptory challenges

                                                                                                               211 Law Commission (2001) above n 98 at 90. 212 Dunstan above n 75 at 66: prosecution were twice as likely to challenge Māori compared with non-Māori in the High Court, and three times as likely to challenge Māori in the District Court. 213 Massaro above n 11 at 561. 214 Above n 11 at 561.

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The peremptory challenge, when operated as intended, can be supportive of fair trial rights

by removing biased jurors. However, in 1998 the Law Commission recognised that the

peremptory challenge may be contrary to the defendant’s right to an impartial jury as

affirmed in NZBORA.215 Similarly, McGrath J in Gordon-Smith v R provides a lengthy

dissent on the influence of the peremptory challenge on fair trial rights. McGrath J

considers that the defendant’s right to a fair trial will be breached if jury selection

procedures give rise to “reasonable grounds for apprehension by a well-informed observer”

that the jury is not impartial.216 From the perspective of the reasonable observer, McGrath J

argues, that the problem is that the peremptory challenges by the Crown operate in a way

that partisan purposes are almost impossible to detect:217

[A] reasonable observer of this process would…conclude that, in the absence of some

regulation of its peremptory challenge decisions, the Crown must enjoy a significant

advantage in the composition of juries in criminal trials.

Consequently, the system of peremptory challenge presently fails the test of fairness and

therefore operates in breach of the defendant’s right to be tried by an impartial jury per s

25(a) NZBORA.

(b) The New South Wales approach

A defendant in New South Wales is entitled to six peremptory challenges while the Crown

is entitled to “stand aside” six potential jurors.218 The stand aside does not permanently

exclude the juror from the panel, and if selected again, the Crown must challenge the juror

for cause if they wish them to be excluded.219 Originally 15 peremptory challenges were

available, however, reductions were justified on the grounds that challenges can lead to

distortions in the representative nature of the jury.220 The purpose of the Crown stand aside

is expressly distinguished from the peremptory challenge privileges of the defence.

Through the peremptory challenge, the defence may justifiably seek a jury receptive of the

                                                                                                               215 Above n 4 at 100. 216 Above n 177 at [73]. 217 Above n 177 at [77]. 218 Juries Act 2000 (Vic), s 38(1)(a). 219 Juries Act 2000 (Vic), ss 38(3)-(4). 220 (20 October 1993) 414 APD 1157 per Sidney Plowman.

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defence case: however, the Crown must not select a favourable jury.221 Instead, the

prosecution ability to exclude jurors is subject to detailed guidelines and is limited to

where it is “in the interests of justice” to do so.222 Generic factors such as age, race,

physical appearance and gender must not be the basis for the stand aside.223 Thus, the

regime emphasises that the prosecution does not have the same right or privilege as the

defendant to have persons excluded from the jury. This distinction recognises the

importance of fair jury representation to the defendant, while balancing the prosecution

role in maintaining the integrity of the jury.

3 Peremptory challenge guidelines

Alternatively, guidelines or principles could be drawn up to govern the exercise of the

peremptory challenge. As the definition of peremptory challenge is “challenge without

cause”, it may seem contradictory to apply guidelines to its use. The guidelines would

include emphasis on the parties’ obligations to encourage an impartial jury, as opposed to

constructing a favourable jury, and otherwise not to influence peer representation.

Guidelines for the peremptory challenge may also be used to restore noted resource power

imbalance between the Crown and the defence.224 To the extent that the information

disparity disadvantages the defence, it must be deemed inconsistent with the defendant’s

right to an impartial trial. While there are various privacy interests that need to be protected

in the jury selection process, the right to a fair trial is fundamental to criminal justice. Any

regime to protect privacy interests should therefore be extended to cover the sharing of

information by Crown counsel to the defence.225 McGrath J recognised that the guidelines

should emphasise that the Crown must disclose relevant information within a reasonable

                                                                                                               221 Juries Act 2000 (Vic), s 38(3). 222 (16 December 1999) APD Legislative Assembly 1246 per Rob Hulls. 223 Director of Public Prosecutions Director’s Policy No 6: Juries (21 February 2014). 224 Dunstan above n 76 at 107-113; Law Commission (1998) above n 4 at 95. 225 Gordon-Smith v R above n 177 at [84] per McGrath J.

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time before the trial.226 However, it may be a futile exercise unless there is a mechanism for

review or monitoring the use of the challenge, as well as redress for any abuse.

E Conclusion

The peremptory challenge puts the power of determining jury representation into the hands

of lawyers. Even if the jury pool allows for representation of the defendant’s peers, the

ability to alter that representation to the detriment of the defendant’s fair trial exists. To

promote the defendant’s interests in a trial by his or her peers, the peremptory challenge

ought to be at least abolished for the prosecution. The greater ability of the prosecution to

tailor the jury and defeat the defendant’s peer representation is antithetical to fair trial

rights and the broader legitimacy of the jury system. It is surely more beneficial to preserve

the defendant’s faith and confidence and possibly compromise empathy with the

prosecution, than to promote the Crown’s contentious interest in peremptories over the

defendant’s interest in a judgment by peers.227

VII Concluding Remarks

The concept of trial by a jury of peers has been recognised in legal systems worldwide

since it was officially legislated by the Magna Carta in 1215. Once representative of social

equals, the New Zealand jury has come to adopt a narrow approach of peer representation

based on geographical location. As this paper has shown, this narrow approach, while

providing procedural equality, offends the defendant’s right to a fair trial. Instead, it is

argued that such rights affirmed in s 24 of the NZBORA, will be better fulfilled by virtue

of the broad, subjective interpretation of “peer”. This broad interpretation allows for a jury

with greater understanding and empathy derived from similar perspectives and experiences

to the defendant. As is evident, such empathy is crucial for the jury to fulfil its tasks

impartially.

While accepting there may be a need for representation accommodating of the broader

interpretation of “peers”, the Law Commission persistently places the community’s interest

in participation ahead of the interests of the defendant. In fact, as Massaro points out, a

strict interpretation of “peers” based on the local district could actually defeat fair trial

                                                                                                               226 Gordon-Smith v R above n 177 at [87]. 227 Massaro above n 11 at 561.

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rights as the community from which the jury is drawn could be a totally homogenous

group of citizens biased against the defendant’s group.228 Thus, it is concluded that while

the community have a democratic interest in the administration of justice, promotion of

this should not be at the expense of the defendant and of fair trial rights. Further, this paper

argues that in-court jury selection procedures need to be modified to the extent that they

are a detriment to enhancing peer representation.

It is accepted that it is impossible to formally guarantee the desired level of empathy and

consequent impartiality in any given trial, but this does not mean promoting such

possibility is futile. It is hoped that this exploration of current failures and mechanisms to

allow for greater fulfilment of the defendant’s interests will, at the very least, spark

considerable review of the present determination of peer representation in criminal jury

trials in New Zealand.

                                                                                                               228 Massaro above n 11 at 548.

  54

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  58

Donna Meyer “A New Peremptory Inclusion to Increase Representativeness and

Impartiality in Jury Selection” (1994-1995) 45 Case W L Rev 251.

Note “The Case for Black Juries” (1969-1970) 79 Yale LJ 531.

Martha Nussbaum “Equity and Mercy” (1993) 22 Phil & Pub Aff 83.

Lord Justice Phillips “Challenge for Cause” (1996) 26 VUWLR 479.

Deborah Ramirez “The Mixed Jury and the Ancient Custom of Trial by Jury De Medietate

Linguae: A History and a Proposal for Change” (1994) 74 BUL Rev 777.

Julie Vennard and David Riley “The Use of Peremptory Challenge and Stand By of Jurors

and Their Relationship to Trial Outcome” (1988) Crim LR.

Neil Vidmar “The Common Law Jury” (1999) 62:2 LCP 1.

Author Unknown “Judging the Prosecution: Why Abolishing Peremptory Challenges

Limits the Dangers of Prosecutorial Discretion” (2005-2005) 119:7 Harv L Rev 2121.

E Parliamentary and Government Materials

1 New Zealand

Stephen Dunstan Trial by Peers?: The Composition of New Zealand Juries (Department of

Justice, Wellington, 1995).

Moana Jackson He Whaipaanga Hou: Māori and the Criminal Justice System: A New

Perspective (Ministry of Justice, 1988).

Moana Jackson He Whaipaanga Hou: Māori and the Criminal Justice System: A New

Perspective (Part 2) (Ministry of Justice, 1988).

  59

“Over-Representation of Māori in the Criminal Justice System: An exploratory report”

(Department of Corrections, 2007).

“2013 Census ethnic group profiles” (2013) Statistics New Zealand <

http://www.stats.govt.nz/Census/2013-census/profile-and-summary-reports/ethnic-

profiles.aspx?request_value=24652&tabname=Populationandgeography>.

2 United Kingdom

“Jury vetting: right of standby guidelines” (30 November 2012) GOV.UK

<https://www.gov.uk/jury-vetting-right-of-stand-by-guidelines--2>.

3 Australia

Director of Public Prosecutions Director’s Policy No 6: Juries (21 February 2014).

(20 October 1993) 414 APD 1157 per Sidney Plowman.

(16 December 1999) APD Legislative Assembly 1246 per Rob Hulls.

F Reports and Papers

1 New Zealand

Law Commission Alternative Trial Processes (NZLC IP30, 2012).

Law Commission Juries in Criminal Trials Part One (NZLC PP32, 1998).

Law Commission Juries in Criminal Trials (NZLC R69, 2001).

Law Commission Summary of Submission to Consultation (December 2012).

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Peter Doone “Closing the Gaps” (25 September 2000) Ministry of Justice

<http://www.justice.govt.nz/publications/publications-archived/2000/report-on-combating-

preventing-Māori-crime-hei-whakarurutanga-mo-te-ao/closing-the-gaps-relevant-data>.

Royal Commission on the Courts, Part 1 (AJHR Paper H2, 1978).

2 United Kingdom

Royal Commission on Criminal Justice Report (1993) Cm 2263.

3 Canada

Law Reform Commission of Canada The Jury in Criminal Trials (Working Paper 27,

1980).

G Internet Resources

“Annual statistics for the District Courts 2013” Courts of New Zealand

<https://www.courtsofnz.govt.nz/from/statistics/annual-statistics/december-2013/district-

courts>.

Fernne Brennan “Ethnic Minority Representation on Juries – A Missed Opportunity”

(2007) Internet Journal of Criminology <

http://www.internetjournalofcriminology.com/Brennan_ETHNIC_MINORITY_REPRESE

NTATION_ON_JURIES.pdf>.

Dr Jeff Frederick “Juror Questionnaires” (2012) American Bar Association 2:3

<http://www.americanbar.org/publications/gpsolo_ereport/2012/october_2012/juror_questi

onnaires.html>.

H Other Resources

Council Directive 2000/43/EC 29 June 2000.