Civil/Common Law

The common law of Australia was based upon the common law of England. We inherited it
at the time of European settlement.

The word “common” was a reference to the rules that applied to all citizens, the laws all
people had in common, as distinct from special rules and customs that applied to particular
classes, such as members of the clergy, or in particular places.

The rules of the common law are judge-made. They were developed and refined by English,
and later, Australian courts, originally at a time when parliaments were less active in the
area of law-making than they are today.

The source of common law in Australia

The common law has its source in the reasons for decisions of the courts which are reasons
arrived at according to well recognized and long established judicial methods. It is a body of
law created and defined by the courts. Whatever may once have been the case in England
the doctrine of precedent is now central to any understanding of the common law in
Australia. To assert that there is more than one common law in Australia or that there is a
common law of individual States is to ignore the central place which precedent has in both
understanding the common law and explaining its basis

JURY SYSTEM

Jury Trials in Australia

The Australian Constitution provides that:

"80. The trial on indictment of any offence against any law of the Commonwealth shall be by
jury, and every such trial shall be held in the State where the offence was committed, and if
the offence was not committed within any State the trial shall be held at such place or places
as the Parliament prescribes."

Selecting a Jury

Jurors are randomly selected from the electoral role in accordance with the provisions of
each State's respective Act regarding juries. All States have similar provisions in their
respective jury acts. The process of selecting a jury is known as empanelling.
There are usually three types of people who are prevented from being empanelled:

 Excluded people - which includes those people who are excluded due to a public office
or occupation;

 Excluded people due to current or past criminal offences especially involving terrorism,
sexual offences, awaiting trial or bound by another criminal order in the respective
State; and

 People who are exempt from jury service usually including clergy, medical practitioners
and disabled or infirm potential jurors.

Challenging a Juror

Usually, two types of challenges may be made to a juror in both criminal and civil
proceedings:

Each side is entitled to peremptory challenges (or challenges without reasons) - and the
number of these differ in each State; and

Unlimited Challenges for Cause however these must have factual foundation for making the
challenge including but not limited to grounds that the person is not qualified and liable to
serve, is disqualified or ineligible or is not impartial.

A jury can be used in non-criminal cases, including:

 defamation cases;

 cases in the District Court at the request of a party and subject to the Judge agreeing
that it is in the interests of justice to have a jury involved;

 cases in the Supreme Court at the request of a party and subject to the Judge agreeing
that it is in the interests of justice to have a jury involved; and coronial inquests in
limited circumstances.

Once the jury has made its decision, the judge’s final role is to decide what the penalty (in a
criminal trial) or remedy (in a civil case) is to be.
To what extent are juries used?

Civil law

New South Wales District and Supreme Courts provide for jury trials in civil proceedings.

Usually the jury comprises four individuals (section 20, Jury Act 1977 (NSW)).

In certain civil proceedings in the Supreme Court a party may apply for a 12-person jury trial.

In civil trials, if a jury cannot reach a verdict after deliberating for at least four hours, a
majority verdict of three jurors may be permitted by the court. In a 12-person jury civil trial,
a consensus between eight jurors may be accepted.

If a jury is not able to agree on a fact in issue, the parties may jointly agree to the judge
deciding that issue of fact. If a jury is not able to agree to a unanimous or majority verdict,
the jury may be discharged and a retrial ordered.

Criminal law

New South Wales District and Supreme Courts provide for jury trials in certain indictable
serious offence proceedings (Criminal Procedure Act 1986 (NSW)). Usually the jury
comprises 12 individuals (section 19, Jury Act 1977(NSW)).

In criminal trials, if a jury of 12 cannot reach a unanimous verdict after deliberating for at
least eight hours, a majority verdict of 11 jurors may be permitted by the court.

If a jury is not able to agree to a unanimous or majority verdict, the jury may be discharged
and a retrial ordered.

The Jury Act 1977 (NSW) governs the jury trial process. Jurors are selected randomly from
the New South Wales electoral list. Certain classes of person may be exempted due to
religion, profession or disability.

More individuals than the number of jurors required are summoned for jury duty, and each
party may challenge a potential juror. In criminal trials, each party has three pre-emptory
challenges. In civil proceedings, each party may make a number of pre-emptory challenges
equal to half the number of jurors (for example, two challenges for a jury of four).

Employers may not penalise their employees for being away from work on jury duty.
Employees are usually able to claim allowances and payments for jury service.