Little is remembered of the grand jury of New Zealand nowadays, but it existed within living memory – after 118 years of operation starting in 1844, the last grand jury sat in Gisborne on 28 November 1961. As late as July 1961 a grand jury in Hamilton refused to permit a prosecution against an electricity worker for failing to provide the necessary safety equipment and thereby causing the death of a worker.
Lawyers put up some considerable opposition to its abolition: Hardie Boys J (Senior) made his opposition publicly known, Auckland lawyers voted by a considerable majority for its retention and those in Dunedin were also opposed, although abolition was favoured in Wellington and Christchurch. Unfortunately, the reasons for this regional difference are not apparent, and there is no record of who voted for and against, although it would be reasonable to speculate that it was mostly defence counsel who favoured its retention.
What then was the grand jury? We are used to hearing the term only from across the Pacific, but in fact the grand jury existed at common law and was abolished in England only in 1948 – making New Zealand the last major hold-out except the United States, where its existence is, to a certain extent, constitutionally guaranteed.
A grand jury consisted of between 12 and 23 members and was required to vet any serious prosecution in what was then the Supreme Court of New Zealand (now the High Court) to ensure that there was a prima facie case against the accused before it could be taken to the jury of 12 (called the “petty” jury to distinguish it from the grand jury).
Twelve members of the grand jury had to agree on its decision, regardless of how many members it actually had. It sat at the start of criminal sessions and heard evidence only from the prosecution, and that behind closed doors and without any legal assistance. In early New Zealand there was often difficulty in simply finding a room in the courts big enough for so many people, and grand jurors often complained about their cramped accommodation – the room was sometimes so inadequate that, as Aristophanes has it in The Knights, βδέοντες ἀλλήλους ἀποκτείνειαν οἱ δικασταί (the jurors [almost] killed one another farting). In theory, until 1893 grand jurors could also initiate their own prosecutions, although that happened only once as far as I know.
Grand juries varied considerably in the effort that they put into their task: some contented themselves with police evidence and the judge’s frequent suggestions in the address to the grand jury about which cases might need their special attention and which would not – mostly the emphasis was on the “not” – while others sat for days and conducted a most thorough inquiry.
The idea was that a citizens’ jury should vet cases before a person was subjected to the shame and expense of public trial, and that magistrates might not have sufficient distance from the authorities to do that job. Nevertheless, much effort and expense still had to be put into preparing for trial, for one never knew whether a grand jury would – as the phrase went – find no bill of indictment against one’s client until the first day of the criminal sessions. And, estimating the numbers very roughly, only about 10% of accused found themselves liberated by the grand jury without the need for a full trial. However, sometimes grand juries could bring a measure of common sense and mercy to the strict law; some dismissed charges of attempted suicide, for example, which a magistrate, bound by the law, could not do.
But the grand jury played a further role besides this. When it was introduced into the law of New Zealand in 1844, on the insistence of the Colonial Office which saw early moves to dispense with the grand jury as implying that the petty jury could be dispensed with as well, there were no democratic institutions in New Zealand.
Platform for complaints and suggestions
For its first 10 years the grand jury, as an assembly of local notables – membership was usually restricted to people such as gentlemen, bank managers and small businessmen – regularly used the platform of presentments (public statements by the grand jury which were published in the newspapers) to make all manner of complaints and suggestions about public affairs in New Zealand. These were mostly about topics related to criminal law such as the state of the jails or the sufficiency of punishments, and even about private affairs such as people not branding their cattle or taking insufficient precautions against accepting valueless cheques. Up to the 1870s it was customary for the grand jury to visit the local jail to check on its standards, and often they made enlightened criticisms of it.
Judges, also in accordance with English tradition, used their addresses to the grand jury to remark upon the state of the world in general as well as to give directions of law. The state of the jails was a popular topic, but also legislative developments, and the topics raised over 118 years were almost innumerable. From time to time a serious public controversy was caused by judicial comments, if, for example, judges attacked the provincial system or expressed the view that a religious element was essential in state education.
Grand juries never quite got out of the habit of trying to right the ills of the world, and judges used the platform of directions in the same way as a judge today might give a major speech at a conference to influence public debate. In 1866, for example, Gresson J commissioned a report from a medical practitioner detailing the deficiencies of the jail in Hokitika. His Honour read it to the grand jury, ensuring that it was published in full in the newspapers. Mount Eden Gaol was completed in 1865 after public pressure that included the request by the grand jury to the judge to investigate the previous jail, the presentation by the judge to the next grand jury of a report and the endorsement of it by the grand jury after long discussion – all these steps were reported in the newspapers.
While the volume of presentments made by the grand jurors decreased gradually after the creation of democratic institutions in the mid-1850s, they never wholly ceased, and even in the 20th Century grand juries would make public statements on the need to combat child sexual abuse, safety measures on the railways, amendments to the gaming laws and the need to increase the penalty for car theft. Regularly, presentments were forwarded to the responsible government department for action, sometimes a change in policy or even in legislation resulted from the grand jury’s expostulations, and judges usually reported back to the next session’s grand jury on what action had resulted from the previous grand jury’s ruminations.
Juries as a ‘fifth wheel’
There was always a considerable diversity of opinion in New Zealand about the utility of grand juries. The modern system of committals by magistrates was introduced, or at least received a legislative basis – for early practice is not always consistent or clear – in 1858, and from then on the grand jury was easily susceptible of attack as a fifth wheel, duplicating the functions of magistrates. But doubts about some magistrates, and the fact that they lacked judicial tenure until the late 1940s, blunted such attacks. Some magistrates committed too readily, making a further check valuable. Private prosecutions were occasionally brought without a regular committal. Many people, particularly in the 19th Century, also valued the presentment and the judge’s address to the grand jury as a means of ventilating concerns which no other method could exactly replace. And there were those who supported the independent review of prosecutions by citizens before trials commenced as a valuable safeguard which came relatively cheaply. Grand jurors themselves were sometimes annoyed at being taken from their usual occupations, but others valued the confirmation of their elite status, and – until 1878 when this perk was abolished – the freedom from the much more time-consuming and less prestigious service on the petty jury.
There was never a consensus in New Zealand on what grand juries were actually for – what problem they were meant to solve – and they could easily be painted as a holdover from more class-based and tradition-bound English society; but inertia and the realisation that they were occasionally useful and caused little delay or expense saved them for decades. In the 20th Century, various judges and Attorneys-General objected to the abolition of the grand jury and held the line until 1961; in that year, there was cross-party agreement on abolition, the Attorney-General, Ralph Hanan, was a convert and public attention was devoted to more serious reforms such as, and above all, the abolition of the death penalty.
Greg Taylor greg.taylor@rmit.edu.au is Professor of Law at the University of Adelaide; Honorary Professor of Law, Marburg University, Germany; and Honorary Associate Professor, RMIT University, Melbourne. He gratefully acknowledges that the research for this article was made possible thanks to a generous grant from the New Zealand Law Foundation. Other acknowledgements may be found in the full version of this article in (2018) 58 Am Jo Leg Hist 227, which also contains numerous references.