Trial by jury has been through all stages of New Zealand's history the most favoured procedure for ascertaining guilt consistent with protecting the innocent. It is and is likely to remain automatic for the most serious crimes. In other cases the accused may claim jury trial wherever the maximum imprisonment for the offence exceeds three months. Although this right is often not exercised, it is highly valued and regarded generally as a fundamental safeguard. The jury in civil cases in the Supreme Court is not of fundamental importance, but is also favoured and commonly used.
The first provision for common juries was made in 1841, the qualification for service being, as in England, property ownership. Lack of adequate records of title made a property qualification impracticable, however, and in 1844 every male British subject (other than a Maori) of good fame and character between the ages of 21 and 60, with certain exceptions, mostly occupational, was declared qualified to serve on a jury. Intended as a makeshift, this has remained the test to the present day. The upper age limit was raised to 65 in 1945.
In 1942 women were enabled to volunteer for jury service, the age limits since 1961 being the same as for men. Few women have volunteered and only a handful have served on a jury. The Juries Amendment Act of 1963 makes them liable to be included in the roll in the same way as men, but gives a woman an absolute right to have her name withdrawn on request. Compulsory jury service for women has been urged for many years by a number of women's organisations, but has been rejected on the ground of difficulty in providing for the exemption of women with young children. A petition to Parliament in 1963 resulted in the present compromise.
Maoris have hitherto not been eligible to serve on ordinary juries. An ordinance in 1844 declared that any Maori whose capability was certified qualified and was liable to serve on a mixed jury for the trial of any case in which the property or person of a Maori might be affected. This introduced, in theory at least, a measure of racial equality, which says much for its sponsors. There was a retreat in 1868. A Maori accused of a crime against another Maori could claim trial before an all-Maori jury, but no Maori could serve on a jury if either accused or victim was a non-Maori. In civil cases a Maori jury could be claimed if both parties were Maoris; a mixed jury if one party was a Maori. The law remained in this form for nearly a century. In 1962, legislation, which will come fully into force in 1965, abolished separate Maori juries and placed Maoris and others on an equal footing as far as jury service was concerned.
The grand jury existed in New Zealand from 1844 to 1961. Its function was to consider bills of indictment preferred against persons committed for trial and to decide whether the evidence against them justified their standing trial. At first the grand jury retained the theoretical power to present an indictment of its own motion, a relic of mediaeval times when the grand jury's purpose was to accuse rather than protect from trial. This power, still a real one in the United States, disappeared in 1893.
From about 1880 the existence of the grand jury as part of the machinery of the criminal law was strongly attacked and as strongly defended. The essential dispute was whether it served a useful function. Although it was said to review badly what the committing Magistrates had done well, most committals for trial were (and are) by lay Justices. Undoubtedly it did sometimes save an innocent man from the ordeal of a trial. In doing this, however, the grand jury almost invariably acted on the suggestion of the Judge. To give Judges a direct power to reject an indictment seemed to offer equal protection. This view prevailed.
Juries are selected from a jury roll consisting of qualified persons residing within 15 miles of each Supreme Courthouse. The roll was formerly compiled by police canvass, but following the Juries Amendment Act of 1963 will be prepared every three years from the electoral rolls. Before each criminal sessions a jury is chosen by lot from the names on the roll. The panel is sworn at the beginning of the sessions and from it 12 jurors are drawn for each trial. The Crown and the accused may each challenge six jurors peremptorily. In addition the Crown may stand aside any juror called; he can be recalled only if the whole panel is exhausted. Challenges may also be made for cause, the challenger endeavouring to show that the person called is disqualified or not impartial. This form of challenge is rarely used in New Zealand.
In civil cases actions in the Supreme Court claiming payment of a debt or damages were, before 1924, triable by jury. In 1924 rules made by the Judges took away the right of jury trial except in causes of action arising solely out of tort. These rules were criticised on their merits and on the ground that so substantial a change should have been made by Parliament. The former position was restored by legislation in 1936. The present law is that civil actions, in which the only relief claimed is payment of a debt or damages exceeding £50 or the recovery of chattels exceeding that value, are tried by a jury if either party seeks one, unless the principal issue involves difficult questions of law or the trial will require technical investigations or prolonged examination of documents which cannot conveniently be made with a jury. Any other action may be tried with a jury if the Judge thinks it convenient. If the amount at issue exceeds £500 the jury is of 12; if £500 or less, of four. Unanimity is unnecessary in civil cases. The verdict of a three-quarter majority may be taken if all cannot agree within three hours.
There is little sign that the use of the jury in civil cases is diminishing. In 1950, out of a total of 358 cases of all kinds, 90 cases were heard in the Supreme Court with a jury. In 1960 the figures were 386 and 138. Some, however, would like to see the civil jury eliminated in most cases, as it has been in England and in some of the Australian States.
by Bruce James Cameron, B.A., LL.M., Legal Adviser, Department of Justice, Wellington.