In high profile cases or other cases where it is in the interests of justice to take special precautions to identify potential bias, the judge either on his or her own motion or on application from either party may give a written questionnaire to the jury pool before final balloting, containing questions designed to show whether any juror may not be impartial. If there is any doubt about impartiality as a result of the responses given, the judge may ask further oral questions of the juror before deciding whether to excuse that juror.

The possibility of bias resulting from pre-trial publicity or other factors will be reduced.

After the jury is empanelled, the Judge should instruct the jury that they should take a few minutes to get to know each other and to confirm that all members of the jury have sufficient grasp of English to discharge their responsibilities. Under present procedure, this could be done when the foreperson is selected; if the procedure is changed so that the foreperson is selected at a later stage in the trial, it could be done while the jury takes a brief adjournment at the commencement of the trial.

Jurors who are unable fully to comprehend the evidence or participate in jury deliberations will be more likely to be discharged at the commencement of the trial.

When jurors with language difficulties are discovered at this stage, there will need to be a further balloting process to select an alternate juror, so that the remainder of the jury pool (or at least two or three reserve jurors) will need to be kept at the Court for this process.

It might be preferable for more effort to be made by court attendants to ensure that jurors are proficient in English when they first check in. Whether this would resolve the problem is debatable.

Before the remainder of the jury pool leave the courtroom, the empanelled jurors should be told that, if they will be unable to judge the case fairly and impartially or if they will find the trial unduly stressful, they should approach the trial judge with a view to being excused.

After the jury has been empanelled and the accused has been given in charge, there should be an adjournment (where appropriate in lieu of the normal morning adjournment) to enable to jury to get to know each other, to make such work, childcare and other family arrangements as are necessary and adjust psychologically to the fact that they are on a jury.

The jury should be provided with uniform general instructions on such matters as note-taking, communications, question asking, the fact that they are to ignore publicity, the fact that they are not to make any external inquiries etc.

The revised Bench Book provides a checklist covering the judge’s opening comments but provides relatively little detail as to the content.

There should be a process which enables the identification of issues in dispute on a more systematic basis at the commencement of the trial. There are several options for achieving this:

A specific provision authorising an early defence opening before the presentation of the prosecution case is likely to be included in an omnibus Crimes/Criminal Justice Bill to come before Parliament later this year. Beyond that, no statutory change is required to implement this proposal unless formal pleadings are to be required. An identification of issues in dispute may, but need not, amount to a formal admission under section 369 Crimes Act. Where it does not amount to such a formal admission, the judge or the prosecutor (in the light of the advice provided by the defence) can indicate to the jury what the focus of the trial is likely to be, but the prosecution would still carry the onus of proof in respect of all of the elements of the offence. Thus, in the event that the prosecution case did not come up to brief in some respect not envisaged when the issues in dispute were initially identified, it would be open to the accused to argue that he or she should be acquitted on that ground.

At the conclusion of the evidence of each witness, jurors should be invited to put any questions they may have to the Judge in writing. The Judge would then have the discretion whether or not to ask those questions.

Jurors have been given the explicit opportunity to ask questions in a number of North American jurisdictions, and the judicial experience (supported by research evidence) has been that they ask questions sparingly, and that the questions they do ask are generally relevant.

As an alternative to the proposal that the Judge ask the questions at his or her discretion, the Judge could first determine whether the questions are relevant and admissible and hand them to counsel and leave it to them to decide whether to ask those questions.

Where the evidence of witnesses (other than complainants or the accused) is detailed, complex or lengthy, it should with the leave of the Judge be provided to the jury in written rather than oral form, and they should be given an opportunity to read it before cross-examination.

No statutory change would be required. The witness would be appearing in court, confirming the written evidence as his or her own and being available for cross-examination.

There would need to be some mechanism for checking the accuracy of a written transcript. As an alternative, instead of providing a written transcript, it would be possible to videotape oral testimony and provide the jury with a video recorder so that they could replay parts of the evidence when they needed to refresh their memory.

In addition to the greater use of written evidence, counsel should be permitted and where appropriate encouraged to use both written and visual aids in their opening and closing addresses and in evidence-in-chief (eg a summary of the chronology of events on an overhead projector or on PowerPoint, a written list of witnesses and their relationship to the parties etc).

The sequence of witnesses is adjusted so that experts on a particular topic give their evidence consecutively.

Jurors have a better opportunity to understand the differences between experts, and to assess the comparative soundness of their views.

An alternative solution would be to provide written briefs of the evidence of expert witnesses to the jury in advance, with an identification of the issues about which they are disagreed, so that the jury has this evidence available before any expert is cross-examined. This would require the consent and co-operation of counsel.

At least in cases where technical issues can be presented in a neutral way divorced from the facts of the case, jurors can be introduced to the new terminology and concepts, in advance of the evidence being given. This can be done by a court-appointed or approved expert; ie someone other than the expert(s) to be called by one or both of the parties. That expert gives the jury a "tutorial" and introduces them to the terminology and concepts of the relevant discipline in an abstract way, without embarking at all on the actual facts or merits of the case.

The sequencing of expert evidence can be used in conjunction with or independently of jury tutorials.

As part of his or her opening instructions, the judge should provide to the jury a written summary of the following:

This summary should include space for jurors to write additional notes from the judge’s oral expansion of the written summary. The written summary and those notes would then be an aide memoire for each juror throughout the trial.

Some judges are now providing written summaries at the commencement of the trial, of varying degrees of length and completeness. It is suggested in the revised Bench Book that they do so. Where jurors receive such summaries, they invariably find them helpful and many refer to them during the trial. However, it is important that such written material be provided in a format which most effectively enhances comprehension (short, simple sentences; the use of numbering and bulletpoints etc).

Judges will have the burden of producing a written summary for a jury before it retires to consider its verdict, which will add to the judge’s workload during the trial.

The revised Bench Book suggests that judges provide flowcharts or sequential questions in appropriate cases, and gives some examples. It would be necessary for the judge to present any written material to counsel and to give them the opportunity to suggest amendments or additions. This would reduce the prospect that appeals might be brought because of perceived mistakes in the judge’s summary. It would also be desirable for the judge to give jurors the written summary at the end of the summing up (so that jurors don’t read rather than listen) and to present the summary in visual form during the summing up itself.

Juries receive limited information on effective decision-making procedures. Apart from being told that it is preferable for the foreperson to have experience in chairing meetings and in facilitating discussions, the jury (and in particular the foreperson) is given little other guidance, the implication being that the way in which they manage their deliberations is very much up to them. This tends to suggest that one method is pretty much as good as another. However, the research points to the fact that the effectiveness of the deliberation processes of juries varies enormously and depends upon the extent to which the foreperson (or, in the absence of an effective foreperson, some other juror) structures the decision-making in a systematic and ordered fashion.

Although it is by no means certain that additional instructions will in themselves enable forepersons (or juries as a whole) to adopt better decision-making processes, they are arguably likely to do so if combined with more structured written instructions on the law. In that event, both the quality and efficiency of deliberations will be improved.

Instructions of this sort might be perceived as unduly intruding upon jury autonomy.

If a jury reports an impasse, the trial judge extends a non-coercive invitation to the jury to specify, if it can, the issue or issues of fact or law which are leading to problems or disagreements. If a sequential list of questions applying the law to the facts is being provided to the jury as part of the summing up, the jury can be invited to indicate which particular question it is stuck on. If the jury does respond, the judge will consult with counsel and decide what, if any, further proceedings might assist. These might include all or any of the following:

This technique [at least the permitting of "re-closing" or of giving further directions] appears to be gaining ground in the United States, and is standard procedure in a good number of courts. Generally it is conducted under the inherent jurisdiction and has been approved in federal appellate courts. So far as is known, there is only one state which has made specific legislative provision permitting reopening of the trial for further evidence.

Potential jurors having a time-specific reason for being unable to serve should be able to apply to the Registrar to have their obligation deferred to a time when that reason does not exist.

Potential jurors would be required to attend on a specific day of the week. This can be done by way of the summons itself specifying that day, or (probably less preferably) by putting the juror "on call" for the nominated week with a particular day being notified by telephone follow up. If an individual juror is balloted to sit on a trial, that will conclude his or her attendance obligation, whatever the length of the trial. If he or she is not balloted or is challenged on the nominated day, attendance on that day is nevertheless deemed to fulfil the attendance obligation.

This system began in some US courts in the early 1970’s and is now widespread, currently covering about 40% of the US population. At the other extreme, jurors in South Australia are summoned for one month and may sit on several trials during that month. It is reported that as a result juries at the end of the month appear to function very differently from juries at the beginning of the month.

As an alternative, judges could exercise the discretion to excuse jurors from further service more readily, particularly when they have been on a jury which has dealt with a distressing case or has deliberated late into the evening.

Peremptory challenges should be abolished. Judges should have a wide discretion to excuse jurors after a challenge for cause by either Crown or defence.

Peremptory challenges still exist in Australia and North America, but have been abolished elsewhere. In England and Wales, peremptory challenges were finally abolished in 1988, having been reduced from 7 to 3 in number in 1977. There is no empirical research on the effect which this has had in practice. Challenges for cause have assumed a new practical importance, but it is not known how many of such applications are made, or how often they are successful or result in appeals. There appears to be little expression of concern about the way in which the system is operating.

If peremptory challenges were abolished, there should be a review of either s 25 (which sets out the grounds for a challenge for cause) or ss 15-16 (which set out the grounds upon which a judge may excuse a juror). As these provisions currently stand, a judge confronted with a juror who, for example, is intoxicated or manifestly cannot understand English, must stand the juror aside, discharge the juror under s 22 after the jury is empanelled, or excuse the juror by exercising his or her inherent jurisdiction. None of these solutions is entirely satisfactory.

The jury should select the foreperson after the closing addresses of counsel, by which time jurors will have some knowledge of each other and of what the role will involve, and they will be in a better position to select the person most suited for the role. This will mean that there is no foreperson during the trial itself to act as spokesperson. However, the jury can be told at the commencement of the trial that they will not need to select a foreperson until the conclusion of the case, and that in the meantime they should select a juror to act as their spokesperson and to liaise with the judge. This initial selection can be done during the first adjournment.

If deliberations are obviously not going to be concluded at a "reasonable hour", then jurors should be sent home in the usual way, perhaps with an additional caution about not discussing the case with anyone other than jury members.

Individual members of the jury may be tempted to discuss the case with others, especially where the jury is in disagreement with each other.

The 1997 report recommended that the scheme be extended, by extending the discretion to all cases except capital cases, and giving judges authority to separate juries is all trials except for class A felony and class B or C violent felony (whereas previously they had just had a discretion.

Although the precise proportion of hung juries is difficult to determine, there is a widespread belief that hung juries have significantly increased in recent years and that they now occur in approximately 10% of all trials. In the research, there were five fully hung juries out of 48. In two of these cases, the jury was hung primarily because of a single juror who was acting irrationally (a "rogue" juror); in the other three, the jury began their deliberations fairly evenly divided and the minority jurors had genuine and rationally based misgivings.

Majority verdicts of 11:1 in favour of both convictions and acquittals should be permitted after the jury has been deliberating for a minimum of four hours.

Majority verdict provisions exist in the United Kingdom and in four states of Australia. However, the unanimity requirement has been retained in Queensland, New South Wales and most American jurisdictions.