Regarding more serious crimes, the Zachary Rolfe case in 2021 has hammered home the fact that all-white juries are a problem in the Northern Territory. In this case, police constable Rolfe shot the disabled nineteen-year-old Aboriginal man, Kumanyaji Walker, in Yuendumu
during Walker’s arrest and was charged with murder but was found not guilty. The case raised the question of why all jury members were white and why there were no Aboriginal people on the jury. The family of Walker voiced this concern in the media immediately after the trial. This concern is not new. Russel Goldflam raised the issue in his paper The
white elephant in the room: where he describes how the problem arose in the cases of R v
Woods in 2009.88 This case revolved around the fatal stabbing of Ed Hargrave in Alice Springs and the two Aboriginal men, Graham Woods and Julian Williams, who were arrested and charged with his murder. Some weeks later, five non-Aboriginal young men were charged
with the murder of an Aboriginal man. Because the second case was widely publicised in the national media, Woods and Williams doubted that they could get a fair trial by a local jury who they thought, correctly, would be all-white. They argued, also correctly, that because 21 per
cent of the Alice Springs population and 83 per cent of the Northern Territory prison population are Aboriginal, a disproportionate number of Aboriginal people were excluded from jury duty. This raised the question of whether the Juries Act was inconsistent with section 10 of the Racial Discrimination Act, which states the right of persons of a particular race to enjoy a right to the same extent as persons of another race, notwithstanding a provision of a Northern Territory law. The court rejected their reasoning as follows:
“To impose some overriding requirement to the effect that a jury, once randomly selected in this way, has to be racially balanced or proportionate would be the antibook of an
impartially selected jury, not to mention the enormous practical difficulties that would be associated with attempting to meet such a requirement, particularly as it is not an easy matter
to identify who is, or is not, a member of a particular racial group.”
The Northern Territory Law Reform Committee released reports on the issue in 2013, 2020 and 2021. Several reports have recommended more Aboriginal representation on juries and relaxing the requirement for jurors to be able to read, write and speak the English language; relaxing the rules that disqualify people from being on juries if they have committed crimes that have resulted in imprisonment; and using text messages and social media to summons jurors instead of sending letters. Justice Graham Hiley, in his conference paper Trial by Peers? suggested that courts should be assisted by one or more witnesses with appropriate expertise in relation to a particular cultural issue involved. “This may well involve other Aboriginal witnesses who might have appropriate seniority, knowledge, and experience to be called as experts in relation to a particular matter. Alternatively, a party might seek to call a linguist or anthropologist with relevant expertise.” “Aboriginal people, particularly those who live in remote communities, should be consulted and their opinions and suggestions sought as to how their particular cultural and other issues could be better accommodated
within the criminal justice system.”
Anthony and Longman in Blinded by the white: A comparative analysis of jury challenges on racial grounds, found that Aboriginal people rarely face a jury that comes from the community in which they belong.’
There should be ongoing efforts to encourage Aboriginal people to get onto the Electoral Roll. Practical and regulatory barriers to participation on juries by Aboriginal people should be removed. This is an enormous task as it seems impracticable to extend the jury districts to the
remote areas where most Aboriginal Territorians live. The tyranny of distance is real in this respect. Another barrier includes the ineffective service of juror summons.
Despite their complex nature, these obstacles must be addressed sooner rather than later. In this way, the hurdle of all-white juries raises yet more hurdles.
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