1. Introduction
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Updates and background for this project (Digest)
HISTORY OF THIS REFERENCE
1.1 In 2002 the Attorney General, the Hon R J Debus MP gave the Commission a reference to inquire into and report on whether people who are profoundly deaf or have a significant hearing or sight impairment should be able to serve as jurors. Work on the reference commenced in 2003, and in February 2004 the Commission released Discussion Paper 461 (“DP 46”), in which a number of questions were raised for comment. In response to an invitation to the public, ten submissions were received from individuals and organisations.
CURRENT PRACTICE
1.2 The Jury Act 1977 (NSW) (“the Act”) does not directly prohibit blind or deaf people from serving as jurors. Section 14 of the Act requires the Sheriff to delete from the supplementary jury roll the names of those persons he or she determines are disqualified or ineligible to serve as jurors. Schedule 1 to the Act lists the categories of those disqualified from serving. They are:
1. A person who has been imprisoned within the last 10 years;
2. A person found guilty of an offence and detained in an institution for juvenile offenders within the last 3 years;
3. A person currently bound by an order pursuant to a criminal charge or conviction (eg parole or recognizance).
Schedule 2 lists those who are ineligible to serve on a jury:2
1. The Governor;
2. A judicial officer;
3. A coroner;
4. A member or officer of the Executive Council;
5. A member of the Legislative Council or Legislative Assembly;
6. Officers and staff of Parliament;
7. An Australian lawyer;
8. A person engaged in law enforcement, criminal investigation, the provision of legal services in criminal cases, and the administration of justice or prisons;
9. The Ombudsman and a Deputy Ombudsman;
10. A person who has been a judicial officer, coroner, police officer, Crown Prosecutor, Public Defender, Director or Deputy Director of Public Prosecutions or Solicitor for Public Prosecutions.
11. A person who is unable to read or understand English.
12. A person who is unable, because of sickness, infirmity or disability, to discharge the duties of a juror.
1.3 It is evident that item 12 of Schedule 2 differs from all other categories appearing in either Schedule (with the possible exception of item 11) in that it requires the making of a subjective judgment as regards fitness to serve. The Sheriff has determined that people who are blind or deaf or have a significant impairment to their sight or hearing are unable to discharge the duties of a juror, and are thus ineligible to serve.3
VIEWS CONTAINED IN SUBMISSIONS
1.4 Ten submissions were received following the release of DP 46. Almost all upheld the right of people who are blind or deaf to be treated in a non-discriminatory manner by being allowed to serve as jurors if they are capable of discharging the requisite duties. These submissions also largely accepted that reasonable adjustments4 would be required and should be provided. The main variant within these submissions was the degree of confidence in the capacity of deaf or blind people to succeed in the task. The Director of Public Prosecutions of NSW,5 expressed cautious acceptance:
Overall, it appears that many jurisdictions are moving away from treating persons with disabilities as being incapable of serving on juries. … Blind or deaf persons should not automatically be excluded from jury service. The criteria for ineligibility for jury service must be found in a lack of ability to discharge the relevant duties and not be focussed on a particular disability.
He called for existing discretions, such as the judge’s ability to discharge unsatisfactory jurors, to remain, and also noted that:
without excellent facilities to assist blind and deaf persons, available immediately to them, I cannot accept that they could discharge their jury functions.
1.5 The Law Society of New South Wales6 appears to be uncomfortable with the prospect of reform in this area, even though it has always been:
a strong advocate in opposing discrimination, and recognises that denying a sector of the community the opportunity to fulfil their obligations as citizens is a denial of the principle of equal rights. …
The only consideration ought to be whether blind or deaf individuals, given the proper services and facilities, are able to properly discharge the important duties with which they are entrusted as jurors in a trial in terms of assessing evidence, whether it be oral, visual, documentary or in some other form.
As to this, the Law Society “continues to have reservations”:7
Assuring that the rights of certain people can be exercised, however, may not always be consistent with achieving the proper and efficient administration of justice, and ensuring that an accused is tried fairly. Even given appropriate supports and accommodations, it is the [Law Society’s] Criminal Law Committee’s view that the nature of evidence in certain trials would make it difficult for a profoundly deaf or severely visually impaired person to properly perform the duties of a juror.
1.6 Almost all the remaining submissions were from individuals with a disability, or organisations with links to those with disability, and they expressed confidence in the ability of blind or deaf people to serve successfully as jurors in conducive circumstances. For example, the Royal Blind Society’s view8 is that:
people who are blind or who have vision impairment should not be precluded from jury duty on the grounds of disability. We are of the view that given support, which in most cases will be minimal or not even required, people who are blind will ably carry out the functions and responsibilities of a juror.
The Society said its comments were based on its “knowledge of the abilities of people who are blind and the limitations resulting from blindness”.
1.7 The Disability Council of NSW, the official advisory body to the NSW Government on disability issues and policy,9 expressed the view that:
1.8 The Australian Sign Language Interpreters Association (“ASLIA”)10 in its submission stated:
1.9 Arguments central to many of the submissions concerned equality and human rights.11 People with Disability Australia Incorporated (“PWD”) is a national peak disability rights and advocacy organisation.12 It argued in its submission13 that:
The blanket exclusion of people who are blind or deaf from jury service denies their citizenship, and to the extent that it is based on irrational prejudice, stereotyping, and ignorance, it is also an abuse of their human rights.
1.10 Not all submissions, however, focused on such themes. Justice Hulme of the NSW Supreme Court, having expressed several reservations regarding the ability of people who are blind or deaf to serve successfully as jurors, observed: 14
One may ask what are the perceived advantages of changing the law so as to permit blind or deaf people to participate in the jury process. None present themselves other than perhaps some amelioration of the perception such persons may have as to the consequences of their affliction. I do not for one moment suggest that such amelioration is necessarily inconsequential but, compared with the affliction itself, about which nothing can be done, I would venture to suggest that such amelioration is certainly very small and even if all the matters to which I have referred could be satisfactorily dealt with, would impose a cost on the community vastly out of proportion to any benefit which could be achieved.
A FAIR TRIAL
1.11 While the reasoning in this report applies equally where juries are used in civil cases and coronial inquests, its focus is on criminal trials, the principal context in which juries function. In that context especially, the prohibition on blind or deaf jurors is based on the concern that their disability will compromise their understanding of the evidence, or prevent them in some other way from fulfilling the tasks entrusted to them such as, in the case of deaf jurors, comprehending the addresses of counsel and the summing up. In such an eventuality the accused’s right to a fair hearing – and thus to a fair trial – might be prejudiced.
1.12 The right to a fair trial is widely acknowledged but little defined. The reason for this is explained in Dietrich v The Queen:15
There has been no judicial attempt to list exhaustively the attributes of a fair trial. That is because, in the ordinary course of the criminal appellate process, an appellate court is generally called upon to determine, as here, whether something that was done or said in the course of the trial, or less usually before trial, resulted in the accused being deprived of a fair trial and led to a miscarriage of justice.
1.13 The jury, comprising twelve disinterested members of the community, is one of the features of a criminal trial designed to achieve fairness.16 As Lord Chief Justice Woolf recently stated:
[T]he view of the public generally is that normally, the jury trial is the fairest form of trial available. We have great faith in the ability of 12 persons randomly selected, and properly directed, to provide justice in the generality of cases. 17
The understanding of fairness is not, however, static:
Fairness is a constantly evolving concept…it is important to recognise that standards and perceptions of fairness may change, not only from one century to another but also, sometimes, from one decade to another.18
1.14 It is the judge’s duty to ensure that the accused receives a fair trial.19 To achieve this end the Court has the power to control and supervise proceedings brought in its jurisdiction.20 One way in which the interests of justice are met is by the removal of jurors who are unfit to serve. Some cases have alluded specifically to people who are blind or deaf. In Mansell v The Queen21 the Court stated:
[W]e cannot doubt that there may be cases, as if a juryman were completely deaf, or blind, or afflicted with bodily diseases which rendered it impossible to continue in the jury box without danger to his life, or were insane, or drunk, or with his mind so occupied by the impending death of a near relation that he could not duly attend to the evidence, in which, although from there being no counsel employed on either side, or for some reason, there is no objection made to the juryman being sworn, it would be the duty of the Judge to prevent the scandal and the perversion of justice which would arise from compelling or permitting such a juryman to be sworn, and to join in a verdict on the life or death of a fellow creature.
These observations were affirmed well over a century later in R v Ford:22
At common law a judge has a residual discretion to discharge a particular juror who ought not to be serving on the jury. This is part of the judge’s duty to ensure that there is a fair trial. It is based on the duty of a judge expressed by Lord Campbell CJ in R v Mansell as a duty “to prevent scandal and the perversion of justice”. A judge must achieve that for example by preventing a juryman from serving who is completely deaf or blind or otherwise incompetent to give a verdict.
In R v Staines23 one of the jurors, a Mr Daniells, informed the court after empanelment that he was hard of hearing. At the trial judge’s suggestion Mr Daniells swapped places with juryman Number 12. The following exchange then took place:
Philp J: Mr Daniells, stand up. Can you hear me?
Juryman Daniells: I could hear what you said then, but I could not get everything you said.
Philp J: I think, in a murder trial, I should not carry on with a jury in which there is one man who seems to me not to understand everything that is said to him.
The jury was discharged. The other eleven jurors were immediately called, along with a new juror, and the trial proceeded.
1.15 A number of observations arise out of these cases. First, representativeness, a feature of the jury, is a notion that has changed over time.24 In Cheatle v The Queen25 the High Court stated:
The restrictions and qualifications of jurors which either advance or are consistent with [the feature of representativeness] may ... vary with contemporary standards and perceptions. The exclusion of women and unpropertied persons was, presumably, seen as justified in earlier days by a then current perception that the only true representatives of the wider community were men of property. It would, however, be absurd to suggest that a requirement that the jury be truly representative requires a continuation of any such exclusion in the more enlightened climate of 1993. To the contrary, in contemporary Australia, the exclusion of females and unpropertied persons would itself be inconsistent with such a requirement.
As Cheatle shows, re-assessing the categories of persons excluded or granted exemption from jury service may reveal some to be inappropriate.26 The Commission will examine these issues generally in the context of a reference on jury service, details of which are available on the Commission’s website.27
1.16 Secondly, the line of cases cited above from Mansell onwards does not appear to contemplate the use of reasonable adjustments. References in those cases to the situation of blind or deaf people and their assumed lack of comprehension cannot be fairly compared with that of today, in which sophisticated assistance is available, and in which there is greater awareness of the nature and effect of disabilities, such as blindness or deafness. It is no longer appropriate to rely on sweeping assertions as to the abilities of people who are blind or deaf to perform particular functions. Rather such judgments should be based on the facts with regard to both the nature of the disabilities and the range of available accommodations.
1.17 Thirdly, these cases clearly show longstanding recognition of the fact that the presiding judge has the power and duty to prevent a person sitting on the jury who is considered incapable, for whatever reason, of performing effectively the functions of a juror. The Act stipulates categories of ineligibility. A dispute arising as to eligibility, in terms similar to those of item 12 of Schedule 2, can be determined by the trial judge taking into account all the circumstances. The Sheriff performs an intermediate function, and it is to this we shall now turn.
ROLE OF THE SHERIFF IN JURY COMPOSITION
1.18 Section 14 of the Act provides that the Sheriff is under a duty to delete from the jury roll28 the names of persons whom the Sheriff determines are ineligible to serve as jurors (or are disqualified or exempt from doing so). In essence, the Sheriff is performing an administrative function, weeding out those persons who are excluded from jury service. In most cases they are readily and objectively identifiable. Even in the case of people who are unable to read or understand English, informal criteria are applied by the Sheriff’s Office to determine eligibility.29 Item 12 is the odd one out, requiring a judgment to be made based on an individual’s condition.
1.19 The Sheriff’s determination must be based on information provided. Section 13(1) requires the Sheriff to send a notice to each person whose name is included on the supplementary jury roll. The notice must contain a questionnaire to be completed by a respondent claiming exemption from jury service.30 Section 13(2) provides:
The sheriff may require the answers given to a questionnaire or any other information provided to the sheriff, for the purpose of determining whether or not a person is disqualified or ineligible to serve as a juror, or is to be exempted from serving as a juror, to be verified by statutory declaration. (emphasis added)
The respondent’s answers (or other information provided) are, therefore, “for the purpose of determining whether or not a person” is, amongst other things, ineligible to serve. The current practice, is that information provided by the respondent that he or she is blind or deaf is sufficient basis to ground a determination of ineligibility. This blanket exclusion precludes any opportunity for an individual determination of the ability of an individual affected to discharge the duties of a juror. No consideration is thus given, for example, to the role that reasonable adjustments might play, or the nature of the trial for which the juror might be seated, or the evidence to be adduced.
1.20 The Commission takes it as fundamental that fairness of the trial takes precedence over the potential rights of a prospective juror. However, prospective jurors should not be lightly excluded from an important civic duty. It is important to ask whether the administration of justice is adversely affected by denying the contribution that some in the community would be willing and able to make, and whether thereby the representativeness of the jury is compromised.
FOOTNOTES
1. NSW Law Reform Commission, Blind or Deaf Jurors (Discussion Paper 46, 2004).
2. See also the Jury Exemption Act 1965 (Cth).
3. NSW Office of the Sheriff, information supplied 24 March and 10 May 2006.
4. See DP 46 at para 4.15-4.18, and below at para 2.11– 2.15, 3.3-3.6.
5. Cowdery, Submission at 1.
6. Law Society of NSW, Submission at 1, 4.
7. Law Society of NSW, Submission at 1.
8. Royal Blind Society, Submission at 1. Note that in 2004 Royal Blind Society merged with two other organisations to form Vision Australia, a national blindness agency: Vision Australia, “About Us: Our History” (as at 9 May 2006) «www.visionaustralia.org.au/info.aspx?page=645».
9. Disability Council of NSW, Submission at 1, 2.
10. ASLIA, Submission at 3, 4.
11. See also DP 46 at para 1.4 – 1.9.
12. PWD, “About PWD” (as at 4 April 2006) «www.pwd.org.au/aboutpwd.html».
13. PWD, Submission at 1.
14. R S Hulme, Submission at 2-3.
15. (1992) 177 CLR 292 at 300 (Mason CJ and McHugh J).
16. See also DP 46 at para 2.8 – 2.9.
17. R v Abdroikov [2005] 4 All ER 869 at 878 (CACA).
18. R v H [2004] 1 All ER 1269 at 1275 (HL).
19. Crofts v The Queen (1996) 186 CLR 427 at 451; Pemble v The Queen (1971) 124 CLR 107 at 117; Fingleton v The Queen (2005) 216 ALR 474 at 503.
20. Jago v District Court of NSW (1989) 168 CLR 23 at 25.
21. (1857) 8 E & B 54 at 80-81; 120 ER 20 at 30; see also R v Mason [1981] QB 881 at 887; R v Burns (1883) 9 VLR (L) 191 at 193-194; R v Greening [1957] NZLR 906 at 915.
22. [1989] QB 868 at 871.
23. [1942] QWN 49.
24. DP 46 at para 2.10 - 2.15.
25. (1993) 177 CLR 541 at 560-561.
26. In the United Kingdom, for example, acting on recommendations contained in the Auld Report (see ch 2 note 92), most categories of ineligibility were abolished, such that lawyers and others involved in the administration of justice can now serve on juries: see Criminal Justice Act 2003 (Eng) s 321, sch 33; see also England and Wales, Home Office, Justice for All (The Stationery Office, London, CM 5563, 2002)
27. See «www.lawlink.nsw.gov.au/lawlink/lrc/ll_lrc.nsf/pages/LRC_cref115».
28. Technically this is a “supplementary” jury roll, which serves as a draft roll for a jury district pending the Sheriff’s determination of disqualification, ineligibility or exemption (Jury Act 1977 (NSW) s 12(4), 14), and which includes a roll used for the periodic updating of the jury roll: Jury Act 1977 (NSW) s 15A.
29. Potential jurors are asked such questions as whether they can read an English language newspaper and understand television, how long they have been in Australia and the nature of their occupation: NSW Office of the Sheriff, information supplied 11 February 2003.
30. Section 13(1)(c).
