McCrimmon, Les A --- "Challenging a Potential Juror for Cause: Resuscitation or Requiem?" [2000] UNSWLawJl 6; (2000) 23(1) UNSW Law Journal 127
[*] BA LLB (Alberta) LLM (Qld); Senior Lecturer, Faculty of Law, The University of Sydney. I thank Associate Professor Mark Findlay for his comments on an earlier draft of this article. I alone remain responsible for its contents.
[1] For example, in New South Wales approximately one per cent of criminal cases are decided by juries. See New South Wales Law Reform Commission (“NSWLRC”) Report 48, The Jury in a Criminal Trial, 1986 at 18 (“NSWLRC Report”). See also D Brown and D Neal, “Show Trials: The Media and the Gang of Twelve” in M Findlay and P Duff (eds), The Jury Under Attack (1988) 126 at 127-8.
[2] NSWLRC Report ibid at 16.
[3] D Brown and D Neal ibid at 128.
[4] Note 1 supra.
[5] NSWLRC Report, note 1 supra at 19. See also Kingswell v The Queen (1985) 159 CLR 264 at 301-2, per Deane J.
[6] For example, until recently Victoria permitted a degree of jury vetting which is proscribed by statute in New South Wales: Jury Act 1977 (NSW), s 67A. Information compiled by the police was provided to the local prosecuting authorities: R v Katsuno (1997) 99 A Crim R 350 at 358-9. This practice has been held by the HCA to be contrary to the Juries Act 1967 (Vic), s 21(3): Katsuno v R (“Katsuno”) [1999] HCA 50; (1999) 166 ALR 159 at 160, per Gleeson CJ; at 166, per Gaudron, Gummow and Callinan JJ; and at 193, per Kirby J. Cf Juries Act 1957 (WA), s 30.
[7] M Findlay, Jury Management in New South Wales, The Australian Institute of Judicial Administration Incorporated (1994) p 45; P Weems, “A Comparison of Jury Selection Procedures for Criminal Trials in New South Wales and California” [1984] SydLawRw 5; (1984) 10 Syd LR 330 at 343. For a discussion of jury empanelment in Victoria, see R v Weston [1999] VSC 185; (1999) 1 VR 887.
[8] NSWLRC Report, note 1 supra at 53.
[9] F Pollock and F Maitland, The History of English Law, vol 1, Cambridge University Press (2nd ed, 1898) p 140; W Holdsworth, A History of English Law, vol 1, Methuen and Co Ltd (7th ed, 1956) p 313; H Potter, An Historical Introduction to English Law and its Institutions, Sweet and Maxwell Ltd (3rd ed, 1948) p 232. See also Katsuno, note 6 supra at 180-2, per Kirby J. Forsyth, in his seminal work on the jury, argues that the English jury “is of indigenous growth, and was not copied or borrowed from any of the tribunals that existed on the continent”: W Forsyth, History of Trial by Jury, Carswell (1876) p 11. This view is not shared by other eminent legal historians.
[10] W Holdsworth ibid, p 313; F Pollock and F Maitland ibid, p 144; H Potter ibid, p 233.
[11] W Holdsworth ibid, p 317.
[12] Ibid.
[13] F Pollock and F Maitland, note 9 supra, pp 621-2.
[14] W Holdsworth, note 9 supra, p 324.
[15] W Forsyth, note 9 supra, p 145.
[16] Ibid, p 147.
[17] Ibid, p 148.
[18] See also, J McEldowney, “Stand By For The Crown: An Historical Analysis” [1979] Crim L Rev 272 at 273-4.
[19] Ibid.
[20] W Forsyth, note 9 supra, pp 148-9.
[2]1 Ibid, p 149.
[2]2 Ibid, p 148.
[2]3 W Holdsworth, note 9 supra, p 336.
[2]4 W Forsyth, note 9 supra, p 148.
[20] Ibid, p 191.
[21] At common law, the Crown could exercise an unlimited number of peremptory challenges. This common law right was, according to Coke, deemed to be “mischievous to the subject, tending to infinite delays and danger”: Co Litt 156, b, quoted in W Forsyth, note 9 supra, p 192. In 1305, the Crown’s right of peremptory challenge was abolished by 33 Edw I, St 4: Ibid. This resulted in the judicially sanctioned practice of the Crown’s right to ask potential jurors to ‘stand aside’ (or stand-by). For a discussion of the Crown’s right to stand potential jurors aside, see J McEldowney, note 18 supra, pp 274-7.
[22] At common law, an accused was entitled to thirty-five peremptory challenges, “being one less than the number of three juries”: W Forsyth, note 9 supra, p 191. For a discussion of the legislative history of the accused’s right to peremptory challenge in England, see ibid (7 and 8 George IV, c 28); R Broderick, “Why the Peremptory Challenge Should be Abolished” (1992) 65 Temple Law Review 369 at 371-3, (Criminal Justice Act 1988 (UK), s 118, which abolished the accused’s right to peremptory challenge).
[23] J McEldowney, note 18 supra, p 274. Forsyth, quoting from Co Litt 156 b, notes that such challenges were referred to as ‘peremptory’ “because [an accused] may challenge peremptorily upon his own dislike, without showing of any cause”: W Forsyth, note 9 supra, p 191.
[24] J Bennett, “The Establishment of Jury Trial in New South Wales” [1959-61] Syd LR 463 at 463-4. See also, D Neal, “Law and Authority: The Campaign for Trial by Jury in New South Wales” [1987] Journal of Legal History 107 at 109.
[25] 2 Wm IV, No 3 1832.
[26] J Bennett, note 29 supra at 473 (emphasis in text).
[27] 2 Wm IV, No 3, s 40. See also J Bennett ibid at 474.
[28] 4 Wm IV, No 12 (28 August 1833).
[29] J Bennett, note 29 supra at 481. See also M Findlay, note 7 supra, p 235.
[30] 11 Vic No 20.
[31] Ibid, s 24.
[32] Jury Act 1977 (NSW), s 43(2).
[33] Ibid, s 42(1)(b).
[34] Ibid, s 42(1)(a).
[37] P Byrne, “Jury Reform and the Future” in M Findlay and P Duff, note 1 supra at 192; M Isreal, “Ethnic Bias in Jury Selection in Australia and New Zealand” (1998) 26 International Journal of the Sociology of Law 35 at 36-7; Kingswell v The Queen (1986) 60 ALJR 17 at 31, per Deane J.
[38] “The process of jury selection used in the jurisdictions that exist in [Australia and New Zealand] can be divided into two parts: first, the selection of the jury panel from the list of qualified jurors (the out-of-court selection procedures); and, second, the selection of the actual jury from the panel (the in-court selection procedures)”: M Isreal ibid at 38.
[39] The out-of-court jury selection procedure in New South Wales is canvassed in detail in M Findlay, note 7 supra at 5-6 and 35-45. M Isreal, note 42 supra at 41:
It is difficult to suggest that juries in Australia are anything more than ‘moderately representative’… of the whole community. Many jurisdictions have only scrapped the property qualifications (the requirement that jurors own a specified amount of property) relatively recently and the marked variations in selection procedures between states mean that juries in some states are far less representative than others.
[40] Johns v The Queen [1979] HCA 33; (1979) 141 CLR 409 at 429, per Stephen J.
[41] 4 William Blackstone, Commentaries, 353.
[42] In a criminal matter, the right to exercise a peremptory challenge rests with the accused, not the accused’s counsel (Johns, note 45 supra), although this right can be, and usually is, delegated by the accused to defence counsel. See Jury Act 1977 (NSW), s 44.
[43] J Gobert, “The Peremptory Challenge – An Obituary” [1989] Criminal Law Review 528 at 529.
[44] Katsuno, note 6 supra at 181, per Kirby J; D Tanovich, “Rethinking Jury Selection: Challenges for Cause and Peremptory Challenges” (1994) 30 Criminal Reports (4th) 310 at 322.
[45] J Gobert, note 48 supra at 529.
[46] R v Sherratt [1991] 1 SCR 509 at 532-3, per L’Heureux-Dube J.
[47] Katsuno, note 6 supra at 181, per Kirby J; D Tanovich, note 49 supra at 322.
[48] J Gobert, note 48 supra at 530.
[49] D Tanovich, note 49 supra at 322-3. For a discussion of the concept of a case theory, see E Ohlbaum, “Basic Instinct: Case Theory and Courtroom Performance” (1993) 66 Temple Law Review 1; T Mauet and L McCrimmon, Fundamentals of Trial Techniques: Australian Edition, Longman Cheshire Pty Ltd (1993) pp 7-10.
[50] R Broderick, note 27 supra at 370-1.
[51] A jury selection voir dire in a United States Court usually involves,
the routine questioning of potential jurors in order to gauge their competence and potential bias. The examination of the prospective jurors may be conducted by either the court or the attorneys involved in the trial. Generally, voir dire questioning includes inquiries about a potential juror’s occupation, family, education, prior convictions, prior encounters with the police or parties to the trial, knowledge of the trial, or prior jury service.
C Whitebread and D Contreras, “Free Press v Fair Trial: Protecting the Criminal Defendant’s Rights in a Highly Publicized Trial by Applying the Sheppard-Mu’Min Remedy” (1996) 69 Southern Californian Law Review 1587 at 1600.
[52] For example, see M Findlay, note 7 supra at 49-52; M Isreal, note 42 supra at 43-5; NSWLRC Report, note 1 supra at 52-3. For a discussion of New Zealand and Canada, see M Isreal, note 42 supra at 45; C Petersen, “Institutionalized Racism: The Need for Reform of the Criminal Jury Selection Process” (1993) 38 McGill Law Journal 147 at 169; D Tanovich, note 49 supra at 323 and 331; K Roach, “Challenges for Cause and Racial Discrimination” (1995) 37 Criminal Law Quarterly 410 at 417-18.
[53] During July and August 1993, the project team observed a selection of juries for ten criminal trials in the Sydney District Court: M Findlay, note 7 supra at 49.
[54] Ibid at 51-2.
[55] Ibid at 50-1. The High Court of Australia has recently commented that,
[t]here are many theories and claims, some apocryphal and all untested in this country, about the susceptibilities of juries and the matters which should guide counsel in deciding whether to make a peremptory challenge. No matter how eccentric or illogical such theories may be, there is nothing in law to prevent prosecutors and defence counsel from giving effect to them in making peremptory challenges.
Katsuno, note 6 supra at 172, per Gaudron, Gummow and Callinan JJ (footnote omitted) (emphasis added).
[56] NSWLRC Report, note 1 supra at 51.
[57] M Isreal, note 42 supra at 45.
[58] M Findlay, note 7 supra at 76-7. The available evidence suggests that the percentage of Aboriginal jurors (0.5 per cent) is equal to their representation in the overall population of New South Wales, and in this respect Aboriginals in New South Wales are not under-represented on juries. It should be noted, however, that 0.5 per cent is far below the percentage of Aboriginal and Torres Strait Islanders in the overall prison population (7 per cent): M Findlay, note 7 supra at 5; NSWLRC Report, note 1 supra at 39. Further, as noted by Kirby J in Katsuno, “[m]odern prosecutorial guidelines of the DPP forbid challenges, including peremptory challenges, on the basis of prejudice, inherent characteristics or generic considerations of potential jurors shared in common with many citizens”: note 6 supra at 187-8, citing, at note 129, the Director of Public Prosecutions (Cth), Director's Policy in Relation to Jury Selection (Policy 4.5.1).
[59] M Findlay, note 7 supra at 51.
[60] Generally see J Gobert, note 48 supra at 528; R Broderick, note 27 supra at 371-3. For a practitioner’s response to the abolition of the peremptory challenge in the United Kingdom, see, P Herbert, “Racism, Impartiality and Juries” (1995) 145 New Law Journal 1138.
[61] For example, the NSWLRC noted that “[a]lthough the availability of any right of peremptory challenge may conflict with the principle of representativeness, it is vital that such right remain… particularly since the right of challenge for cause is of little practical importance”: NSWLRC Report, note 1 supra at 53.
[62] Murphy v The Queen [1989] HCA 28; (1989) 167 CLR 94.
[6]8 Ibid at 98-9 (emphasis added).
[63] For example, see R v Plunkett (1997) 69 SASR 452 at 467; R v Keogh (unreported, SACCA, Matheson, Millhouse and Mullighan JJ, 22 December 1995) at 5; leave to appeal to HCA refused in Keogh v The Queen (HCA, 3 Oct 1997); R v Von Einem (1991) 55 SASR 199 at 211; R v Simpson [1999] SASC 348; (1999) 106 A Crim R 590 at 595; R v Bell (unreported, NSWCCA, Spigelman CJ, Abadee and Ireland JJ, 8 October 1998); R v Richards (unreported, NSWCCA, Spigelman CJ, Greg James J and Smart AJ, 29 April 1999) at 9.
[64] A Frieberg, “Jury Selection in Trials of Commonwealth Offences” in M Findlay and P Duff, note 1 supra at 121; P Weems, note 7 supra at 343; M Findlay, note 7 supra at 45.
[65] Note 67 supra at 102. See also A Frieberg ibid at 120; P Weems ibid at 341.
[66] Jury Act 1977 (NSW), s 41; Juries Act 1967 (Vic), s 39; Juries Act 1927 (SA), s 67; Jury Act 1995 (Qld), s 43(1); Juries Act 1957 (WA), s 38(1); Juries Act 1899 (Tas), s 52; Juries Act 1967 (ACT), s 34(2)(c); Juries Act 1962 (NT), ss 42 and 46.
[67] Although such challenges are rare, they do occur. For example, in the Survey of Court Procedures conducted by the NSWLRC as part of its report into the jury in a criminal trial, a challenge for cause based on the inability of a potential juror to speak English, which renders a person ineligible to serve as a juror under the Jury Act 1977 (NSW) sch 2, was reported: NSWLRC Report, note 1 supra at 49.
[68] Again, while rare, such challenges do occur. In the NSWLRC study ibid, a prospective juror who was known to a witness was successfully challenged for cause.
[69] Jury Act 1977 (NSW), s 45(1); Juries Act 1967 (Vic), s 34(2); Juries Act 1927 (SA), s 64; Jury Act 1995 (Qld), s 44(2); Juries Act 1957 (WA), s 38(3); Juries Act 1899 (Tas), s 52; Juries Act 1967 (ACT), s 35; Juries Act 1962 (NT), s 45. For a discussion of the procedural aspects of jury selection, see, M Findlay, note 7 supra at 45-6; P Weems, note 7 supra at 342.
[70] Jury Act 1977 (NSW), s 46; Juries Act 1967 (Vic), s 38; Juries Act 1927 (SA), s 68; Jury Act 1995 (Qld), s 43(6); Juries Act 1967 (ACT), s 36A.
[71] R v Hubbert (1975) 11 OR (2nd) 464 at 480.
[72] P Weems, note 7 supra at 342.
[73] Note 67 supra at 103-4, per Mason CJ and Toohey J.
[74] Ibid at 104.
[75] Murdoch, Murphy, Murphy and Murphy v The Queen (1987) 37 A Crim R 118 at 124.
[76] Ibid at 122.
[77] Ibid at 125-6.
[78] Note 79 supra.
[79] The Court of Criminal Appeal noted that,
[i]n its entirety [the pretrial publicity] undoubtedly created a state of public awareness of the circumstances of the five accused men - an awareness which could well have the potential to influence the mind of the jury, who might ultimately be called upon to try them.
Note 81 supra at 122.
[80] Ibid at 126 (emphasis added).
[81] Note 79 supra.
[82] Note 51 supra at 536.
[83] Ibid at 535.
[84] D Tanovich, D Paciocco and S Skurka, Jury Selection in Criminal Trials: Skills, Science, and the Law, Irwin Law (1997) p 96.
[85] Note 51 supra.
[86] Ibid at 536.
[87] Ibid (original emphasis).
[88] Bell, note 69 supra at 4 (emphasis added). See also Yuill (1993) 69 A Crim R 450 at 453-4, per Kirby ACJ; R v Von Einem (1991) 55 SASR 199 at 218; R v Schumacher (unreported, NSWCCA, Handley JA, Abadee and Hulme JJ, 2 April 1996) at 2; R v VPH (unreported, NSWCCA, Gleeson CJ, Newman J, Sully J, 4 March 1994); R v Glennon [1992] HCA 16; (1992) 173 CLR 592 at 605-6.
[89] A Tanford, “The Law and Psychology of Jury Instructions” (1990) 69 Nebraska Law Review 71 at 106. See also, NSWLRC Report, note 1 supra at 109.
[90] Weems notes that,
[v]oir dire rarely occurs in the courts of New South Wales because the judge usually postpones hearing the reasons for the challenge for cause until all peremptory challenges are exhausted. Unless the person challenging for cause uses up all of his peremptory challenges, there is no need to determine if cause in fact exists.
P Weems, note 7 supra at 342. Given the relatively infrequent use of the challenge for cause in New South Wales, it is difficult to ascertain whether the reduction of peremptory challenges to 3 in 1987 has had an impact on this practice. (It is worth noting that the practice elicited the express disapproval of the NSWLRC: see NSWLRC Report, note 1 supra at 49).
[91] M Findlay, note 7 supra, p 176.
[92] Ibid.
[93] A Alschuler, “The Supreme Court and the Jury: Voir Dire, Peremptory Challenges, and the Review of Jury Verdicts” (1989) 56 University of Chicago Law Review 153 at 157.
[94] Ibid at 160-1.
[95] Ibid at 232.
[96] M Findlay, note 7 supra at 243.
[97] Note 51 supra at 520.
[98] Criminal Code, RSC 1985, C-46.
[99] Ibid, s 629.
[100] Ibid, s 634.
[101] Ibid, s 638.
[102] For a discussion of challenges to the array and peremptory challenges in Canada, see note 90 supra, pp 59-65 (challenging the array), ch 9-11 (peremptory challenge).
[103] Note 104 supra, s 638(1)(b).
[104] Note 104 supra.
[105] Note 77 supra at 479; note 90 supra, p 89.
[106] Note 51 supra at 533-5; Hubbert ibid at 476.
[107] Note 90 supra, p 89.
[108] This has been codified in the Criminal Code, RSC 1985, C-46, s 640(2). Where the ground of the challenge is that the name of a juror does not appear on the panel, the issue is tried by the presiding judge on the voir dire: s 640(1). In Australia, all challenges for cause are tried by the presiding judge at the trial, note 76 supra.
[109] While, in practice, this is what occurs, it is not a statutory requirement that the persons appointed be prospective jurors. The section provides, inter alia, that, “if no jurors have then been sworn, two persons present whom the court may appoint for the purpose, shall be sworn to determine whether the ground of the challenge is true”: s 640(2).
[110] Note 51 supra at 521-2.
[111] Note 77 supra at 480.
[112] Ibid. See also, Sherratt [1991] 1 SCR 509 at 528.
[113] The principles, and the case law from which the principles are taken, are summarised in note 90 supra, pp 88-9.
[114] Note 77 supra at 475.
[115] Note 90 supra, p 88.
[116] Note 51 supra at 528.
[117] Note 77 supra at 475.
[118] Ibid.
[119] Note 51 supra at 533.
[120] For a discussion of the procedure used in the trial courts of Ontario, see, A Cooper, “The ABCs of Challenge for Cause in Jury Trials: To Challenge or Not to Challenge and What to Ask if You Get It” (1994) 37 Criminal Law Quarterly 62; N Vidmar and J Melnitzer, “Juror Prejudice: An Empirical Study of a Challenge for Cause” (1984) 22 Osgoode Hall Law Journal 487.
[121] Note 67 supra.
[122] Note 81 supra at 119-20.
[123] Generally, see A Cooper, note 126 supra at 66-7.
[124] J Gobert, “In Search of the Impartial Jury” (1989) 79 Journal of Criminal Law and Criminology 269 at 319.
[125] R v Parks (1993) 15 OR (3rd) 324 at 336.
[126] The word ‘bias’ means, “a predisposition or prejudice”: The Concise Oxford Dictionary, Clarendon Press (9th ed, 1995) p 123.
[127] Note 67 supra at 99, per Mason CJ and Toohey J; Bell, note 69 supra at 3-5. See also J Gobert, note 130 supra at 311; C Whitebread and D Contreras, note 56 supra at 1611.
[128] J Gobert, note 130 supra at 310.
[129] Note 131 supra (emphasis added). In Webb and Hay v The Queen [1994] HCA 30; (1994) 181 CLR 41 at 74, Deane J outlined the circumstances that might give rise to disqualification of a potential juror by reason of apprehended bias:
The area covered by the doctrine of disqualification by reason of the appearance of bias encompasses at least four distinct, though sometimes overlapping, main categories of case. The first is disqualification by interest, that is to say, cases where some direct or indirect interest in the proceedings, whether pecuniary or otherwise, gives rise to a reasonable apprehension of prejudice, partiality or prejudgment. The second is disqualification by conduct, including published statements. That category consists of cases in which conduct, either in the course of, or outside, the proceedings, gives rise to such an apprehension of bias. The third category is disqualification by association. It will often overlap the first and consists of cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings. The fourth is disqualification by extraneous information. It will commonly overlap the third and consists of cases where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias. (footnotes omitted).
See also R v Hill [1999] SASC 359; (1999) 74 SASR 262 at 267.
[130] Note 130 supra at 326-7.
[131] Note 131 supra.
[132] Gobert maintains that “[r]ealistically, except in the most blatant cases, it is naive to expect to determine impartiality from voir dire”: note 130 supra at 317. Brennan J expressed a similar opinion in Murphy, note 67 supra at 123. His Honour was of the view that the efficacy of the challenge for cause procedure in detecting bias is “doubtful”.
[133] For example, see the cases referred to in A Cooper, note 126 supra at 64-5. See also N Vidmar and J Melnitzer, note 126 supra.
[134] The subjective nature of a finding for cause is illustrated by the case of R v Williams (1996) 106 CCC (3d) 215 at 233, where MacFarlene JA, on behalf of the British Columbia Court of Appeal, reviewed the answers of nine potential jurors disqualified by the mini-jury for cause in a prior mistrial. He concluded that he was “unable to ascertain any proper basis for the finding that they could not be impartial”. While a strong argument can be made that this decision merely reflects judicial conservatism, it does highlight the subjective nature of the ultimate decision of the trier. For a critical analysis of Williams, see note 90 supra, pp 113-15.
[135] C Petersen, note 57 supra at 179.
[136] Bell, note 69 supra at 4; Yuill (1993) 69 A Crim R 450 at 453-4, per Kirby ACJ; R v Glennon [1992] HCA 16; (1992) 173 CLR 592 at 605-6. See also Williams (1996) 106 CCC (3d) 215 at 231. Cf Parks, note 131 supra at 343; note 90 supra, pp 102-3.
[137] Williams, note 140 supra at 231.
[138] Ibid.
[139] Note 94 supra.
[140] Ibid.
[141] Kirby J recently described the jury as “enigmatic as the Sphynx”: Katsuno, note 6 supra at 197 (footnote omitted).
[142] The following observation of Duggan J in R v Von Einem (1991) 55 SASR 199 at 218, is typical:
In my view, the court is justified in placing considerable confidence in the modern juror’s ability to assess evidence critically and to comprehend and act upon directions to reach conclusions upon the evidence alone. (See comments of Toohey J in Hinch v Attorney-General (No 2) [1987] HCA 56; (1987) 164 CLR 15 at p 74). (emphasis added)
See also note 94 supra; note 81 supra at 124.
[143] A Tanford, “The Law and Psychology of Jury Instructions” (1990) 69 Nebraska Law Review 71 at 106. See also, NSWLRC Report, note 1 supra at 109.
[144] J Pfeifer, “Reviewing the Empirical Evidence on Jury Racism: Findings of Discrimination or Discriminatory Findings?” (1990) 69 Nebraska Law Review 230 at 248-9. Cf K Roach, note 57 supra at 424.
[145] N Vidmar and J Melnitzer, note 126 supra at 509-10.
[146] Note 94 supra.
[147] Ibid at 1-2.
[148] Note 135 supra.
[149] Ibid at 269, per Duggan J; at 273, per Lander J.
[150] R v Gibson (unreported, NSWCCA, Spigelman CJ, Studdert and Adams JJ, 26 November 1999).
[151] Ibid at 4.
[152] Note 126 supra at 509-10.
[153] Note 90 supra, p 104.
[154] The NSWLRC, in rejecting proposals to allow any form of voir dire questioning of potential jurors, encapsulated the concern when they noted,
This procedure [questioning by the presiding judge based on questions agreed upon by counsel] would considerably lengthen criminal trials, both by the time taken to settle the issue of whether the questions were necessary and then by the question process itself. It must be remembered that in the voir dire examination the members of the jury panel are asked questions. At the trial of an individual accused person, the jury panel usually numbers in excess of forty people.
NSWLRC Report, note 1 supra at 50.
[155] Note 51 supra.
[156] Ibid at 533 (emphasis added). See also note 131 at 351, wherein Doherty JA remarked, “[f]airness cannot ultimately be measured on a balance sheet”. Generally, see note 90 supra, pp 104-6.
[157] Note 99 supra at 158, n 16.
[158] N Vidmar and J Melnitzer, note 126 supra at 511. Generally, see note 90 supra, pp 104-6.
[159] Note 46 supra, p 350; quoted in Sherratt note 51 supra at 525. Admittedly this quote is taken out of context, but it is submitted that the proposition applies equally to the cost versus benefit analysis of allowing a restricted voir dire of potential jurors in appropriate cases.
[160] Generally, see A Cooper, note 126 supra at 65; C Petersen, note 57 supra at 178.
[161] These benefits were identified in Parks, note 131 supra at 351-2, per Doherty JA.
[162] Note 126 supra at 511 (emphasis added).
[163] For example, it is unlikely that we will see a return to the English practice of appointing a mini-jury to try challenges for cause.