2. Can people who are deaf serve as jurors?

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Updates and background for this project (Digest)

• Introduction
• Deaf and hard of hearing
• Reasonable adjustments
• Issues
• The US experience
• New Zealand
• Conclusion

INTRODUCTION

2.1 The terms of this inquiry refer, in part, to “persons who are profoundly deaf or have a significant hearing … impairment”. Essentially, the question to be determined in this chapter is whether deaf individuals are able to perform the duties entailed in jury service.

2.2 As stated in the previous chapter, people who are deaf are precluded from jury service as a result of an administrative determination that they are unable to fulfil the requisite duties. The Act itself contains no blanket exclusion. A decision resulting in one sector of society being excluded from rights and responsibilities conferred on the rest should be questioned. The right of an accused person to a fair trial¹ may justify such a decision, so long as the relevant administrative determination is soundly based in policy.

2.3 It is claimed that misunderstandings regarding their assumed inability to communicate continue to influence policies and actions that impact on the deaf.² E C Carney³ refers to “the deplorable tendency on the part of the average citizen to assume that lack of speech connotes feeblemindedness”. Associated for centuries with words like “dumb” and “mute”, it is possible that deaf people are often mistakenly regarded as unable to comprehend and convey information. Among usages of “dumb”, the Macquarie Dictionary lists “without the power of speech,” “stupid” and “dull-witted”. “Mute” is defined as “silent,” “refraining from speech or utterance… incapable of speech,” “dumb.”

2.4 The Commission and Macquarie University (through its External Collaborative Research Grants Program) jointly funded a short pilot study, conducted by a team drawn from the Departments of Linguistics and Law,⁴ to investigate whether people who are deaf can effectively access court proceedings through sign language interpreters. The study used a judge’s summing up in a criminal trial to determine the accuracy of the interpretation and the level of comprehension of potential deaf jurors as compared with a control group of hearing jurors. Excerpts from the judge’s summing up were interpreted into Auslan by an experienced legal interpreter, and filmed. Two versions of a comprehension test were developed in English and Auslan, according to established testing methodologies, to check understanding of the facts of the case and legal concepts. Six deaf and six hearing people acting as jurors watched or listened to the summing up and completed the comprehension test in English or Auslan. The Commission has received an Interim Report of the study, relevant findings of which are noted at paragraph 2.44. The final report of the research will be published after this Report. While more research is needed to investigate the issue in more depth, the preliminary results revealed in the Interim Report do not appear to be at odds with the Commission’s recommendations, which have been arrived at independently of this study.

DEAF AND HARD OF HEARING

2.5 The population of individuals with a hearing loss comprises two main groups: the Deaf community and people who are hard of hearing or hearing-impaired.⁵ Members of these groups use different modes of communication.

Deaf community

2.6 Members of the Deaf community in Australia use Auslan (Australian Sign Language)⁶ as their primary or preferred means of communication. Most were born deaf or lost their hearing in infancy before acquiring a spoken language. They do not regard themselves as disabled but as members of a cultural and linguistic minority with “a shared culture and a strong tradition of social, sporting and political networks at local, state, national and international levels”.⁷ The use of a capital D in “Deaf” reflects this. Many Deaf people whose primary or preferred language is Auslan, can also lip-read, and speak and/or read English with varying levels of competence.

2.7 It is estimated that the Deaf community in Australia numbers approx 6500.⁸ It is likely that this figure will contract, due to the combined effects of cochlear implantation, genetic screening, and control of diseases such as rubella.⁹

Hard of hearing/ hearing impaired

2.8 “Hard of hearing” is the term preferred by the International Federation of Hard of Hearing People for the group traditionally referred to in Australia as “hearing impaired”.¹⁰ The term “hard of hearing” applies to a diverse group, much larger than the Deaf community, with a range of hearing impairments. It is estimated that 22% of the Australian population aged over 15 has a hearing impairment, the prevalence increasing sharply with age.¹¹ Here we are including those individuals who regard themselves as “deaf” (with a small d), that is, people with significant hearing loss but who do not identify as members of the Deaf community. They are considered culturally “hearing”, and they do not associate chiefly with other deaf people. Many of these individuals lost their hearing in adulthood, mostly with advancing age or from work-related causes. While their main mode of communication is speech and lip-reading and/or use of residual hearing, writing may also be used. Auslan would not usually be used by members of this group.

2.9 Depending on the degree and nature of the hearing loss, some hard of hearing people may benefit from using a hearing aid. For those who have a profound hearing loss, hearing aids may provide some assistance but not to a degree where speech can be completely understood. While cochlear implants may assist with communication,¹² for most of these people, no hearing aid or implant will make audible the range of signals available to a person with normal hearing.¹³

2.10 Hereafter we use the expression “deaf” to include both the Deaf and those with a significant hearing loss, unless otherwise stated.

REASONABLE ADJUSTMENTS

2.11 Reasonable adjustments, as explained in DP 46,¹⁴ are changes or modifications that allow an otherwise qualified person with a disability to participate in a process or perform a task. The Office of the Sheriff, a Departmental agency, administers jury service in NSW. The Office “will take all reasonable steps” to accommodate disability, so that a person eligible for jury duty may participate.¹⁵

2.12 The following are accommodations that can be used to assist the deaf in court. Lip-reading has not been included, as research has shown that only 30 to 40 per cent of speech is visible on the lips.¹⁶

Assistive hearing device

2.13 Courts in New South Wales currently offer portable infra-red assistive hearing devices that amplify court proceedings for a person with a hearing impairment.¹⁷ Prior notification must be given to the Sheriff’s Office if this service is required. People who are assisted by the use of such devices are already eligible to serve as jurors.¹⁸ The device does not, however, help people who are deaf.

Interpreting

2.14 The Community Relations Commission (“CRC”) provides courts with interpreting services in a large number of languages, including Auslan. Interpreters are already provided to defendants, witnesses and others.¹⁹ Auslan interpreters are far more likely to be used by those people who lost their hearing at a very young age, than by those who become deaf later in life.

Computer-aided real time transcription (CART)

2.15 CART is an alternative to using interpreters that is used in some US jurisdictions. The standard method of court reporting is by means of machine shorthand using computer-aided transcription (CAT).²⁰ CART²¹ uses the same equipment with the addition of real time software, so that a transcript of proceedings appears almost instantaneously on a computer monitor.²² It has been in use in Australian courts for several years, generally in complex civil and criminal trials.²³ Deaf individuals relying on CART must be able to read English, and also to speak it clearly in order to communicate, as there is no interpreter involved. CART therefore benefits mostly those with later onset deafness. As such, CART is a method having the potential to assist the majority of deaf people. If this method were to be used during jury deliberations, a court stenographer would be required in the jury room to transcribe the words of the other jurors so they can be read by the deaf juror. Otherwise it would provide a suitable means by which a deaf juror could follow the evidence during the trial.

ISSUES

2.16 The majority of submissions supported the general proposition that reasonable adjustments should be provided, and that, consequently, deaf people thereby able to perform the duties of a juror should be allowed to do so. Reservations remain, however, about the ability of deaf people to perform those duties, or the effect on the trial of their empanelment. They focus on the following concerns:

• accuracy of sign interpretation;
• the ability to evaluate evidence;
• comprehension of instructions;
• secrecy of the jury room;
• jury deliberation; and
• effects on length and cost of trial.

Sign language

2.17 For the purpose of this discussion, some explanation of the nature of sign languages and how they are communicated is helpful.²⁴ Some people may think, erroneously, that sign language is simply a matter of spelling words out letter by letter using the sign alphabet, but this is actually finger-spelling.

2.18 There is no universal sign language. As with spoken languages, each community of users has tended to develop its own.²⁵ However, common features include the use of the hands, body, facial expression, space and direction. All of these have a significant effect on meaning.²⁶ Sign languages are real languages with their own syntax, grammar and semantics. They are sophisticated, capable of expressing everything an oral language can. They are neither gesture nor pantomime, and “are not overwhelmingly iconic”.²⁷

2.19 In Australia, Auslan is generally recognised as a community language.²⁸ Unlike the great majority of community languages, however, it is uniquely Australian. A variant of British Sign Language, Auslan is over 200 years old and, in some families, has been handed down for more than five generations.²⁹

2.20 The New Zealand Sign Language Act 2006 officially recognises New Zealand Sign Language (NZSL), in addition to the nation’s other official languages, English and Maori. During parliamentary debate it was stated³⁰ that:

historically, in New Zealand and around the world, the use of sign language was actively prohibited. This was a result of longstanding misconceptions that sign languages were not real languages and were inferior to spoken languages. Today, linguistic research confirms that sign language is a real language. …[It is] a real and living language that is part of a culture and that has as much depth and validity as anyone else’s.

deaf persons are as capable as anyone else of understanding legal jargon or any other technical jargon used by expert witnesses; the deaf are found in many highly technical professions including medicine, engineering, and the law.

2.22 In Australia the National Accreditation Authority for Translators and Interpreters (NAATI) has developed an accreditation system for translators and/or interpreters in a large number of languages including Auslan.³² This system recognises that the diversity of situations in which interpreters work requires varying skills levels, from general conversation to specialised knowledge.

2.23 The minimum standard for professional interpreters is known as Translator or Interpreter level (formerly level 3). NAATI describes interpreters accredited at this level as “capable of interpreting across a wide range of subjects involving dialogues at specialist consultations”,³³ and lists solicitor-client consultations and court interpreting as examples.³⁴

2.24 Court interpretation is, arguably, the most difficult form of interpretation.³⁵ Whether performed for foreign language speakers or for the Deaf and hearing impaired, it is a highly specialised form of interpreting, requiring training and skills. Professional court interpreters must possess mastery of English and a second language, as well as displaying wide general knowledge at a tertiary education level.³⁶ They must also be able to interpret both consecutively and simultaneously.³⁷ Traditionally, interpretation is carried out simultaneously because sign languages are silent so there is no auditory overlap.³⁸ In the context of interpreting court proceedings for a deaf juror, it would be the only feasible method.

Accuracy

2.25 Whether sign language interpretation of court proceedings can be regarded as accurate depends on what is meant by “accuracy”. Literalness, if this is what is meant, has little application here. Metzger refers to the “unending controversy”, begun millennia ago, regarding issues such as accuracy and equivalence in translations.³⁹ Two related issues arise: the goal of interpretation and the role of the interpreter.

2.26 Goal of interpretation. Submissions from those groups or individuals who might be regarded as defending disability rights reacted positively to the suggestion that Auslan interpreters be provided to deaf jurors. Submissions from representatives of the legal profession made little mention of interpreters or interpreting. This may have been due to a lack of knowledge or expertise in this area. The Law Society of NSW stated: ⁴⁰

While an Auslan interpreter could certainly properly convey the meaning of testimony or jury deliberations to a deaf juror, the ability for testimony to be conveyed “word for word” in signed English and understood would, in the view of the [Law Society’s Criminal Law] Committee, be essential.

2.28 According to the Director of the US Federal Court Interpreter Certification Project and her colleagues, the goal of professional court interpreters is to maintain “legal equivalence”.⁴⁵ In order to do this the interpreter must:

interpret the original source material without editing, summarising, deleting, or adding while conserving the language level, style, tone, and intent of the speaker or to render what may be termed the legal equivalence of the source message.

Accuracy and completeness

Interpreters shall render a complete and accurate interpretation or sight translation, without altering, omitting, or adding anything to what is stated or written, and without explanation.

… interpreters are obligated to apply their best skills and judgment to preserve faithfully the meaning of what is said in court, including the style or register of speech. Verbatim, “word for word”, or literal oral interpretations are not appropriate when they distort the meaning of the source language, but every spoken statement, even if it appears non-responsive, obscene, rambling, or incoherent should be interpreted.

To interpret/translate properly means to convey the real meaning of the source [ie original] language communication, preserving all aspects of meaning, with the natural grammar of the target language. To interpret/translate properly, one has no concern for literal meanings or following the word order (or even the number of words) of the source language. The goal is to enable the recipient of the interpretation/translation to hear (or see, in the case of deaf or hard-of-hearing recipients) the source message as if it had been communicated in the recipient’s language in the first place.

interpreters shall render the message faithfully, always conveying the content of the message and the spirit of the speaker, using language most readily understood by the person(s) whom they serve.

2.32 Accuracy of interpretation cannot be measured objectively. Interpretation is not simply a mechanical process that converts a source language word into its precise target language equivalent. However, the goal of interpretation is to provide a target version that is complete, accurate and unedited. A skilful interpreter will transcend the limitations of literalness to produce an interpretation faithful to the original in meaning and intent. In recent times the interpreter has been characterised as a bilingual and bicultural specialist, who regards situational and cultural factors as relevant to the task of interpreting.⁵²

2.33 Role of the interpreter. In the early phase of professionalisation, the interpreter was seen as a conduit, through whom the interpretation flowed as if through a device. The analogy suggests an objective, neutral, impersonal process. The “conduit model” was accepted by the High Court in Gaio v The Queen,⁵³ for the purposes of rejecting the argument that a confession made through an interpreter was inadmissible as hearsay.⁵⁴

2.34 However, as a complete explanation of what the interpreter does, the conduit model is at best simplistic. It gives little hint of the “complex human interaction”⁵⁵ involved, or the choices necessary to turn utterances from one language into another. As Berk-Seligson writes:⁵⁶

[the court interpreter] is an intrusive element, far from being the unobtrusive figure whom judges and attorneys would like her to be. Her intrusiveness is manifested in multiple ways: from the introduction of the interpreter to the jury by the judge, to the common practice resorted to by judges and attorneys of addressing the interpreter rather than the witness when they ask their questions, to the need on the part of interpreters to clarify attorneys’ questions and witnesses’ answers. Included as well are the tangential side-sequence conversations engaged in by interpreters and testifying witnesses, interpreter silencing of witnesses who have begun to verbalise their answers, and interpreter prodding of witnesses when they are not responding appropriately to a question. Together, these intrusions make for judicial proceedings of a different nature.

2.36 Confidence in the interpretation. One argument opposing the use of deaf jurors is “it will be impossible for any one not themselves very competent in sign language to know whether there has been an accurate translation of evidence given.”⁵⁹ If this is an issue it is not unique to sign language interpretation. Prior to acting as an interpreter (in any language) in a proceeding, the Evidence Act 1995 (NSW) requires a person to take an oath or make an affirmation that he or she “will well and truly interpret the evidence”.⁶⁰ Professional responsibilities are also outlined in detail in the code of ethics of the Australian Institute of Interpreters and Translators (“AUSIT”).⁶¹ In addition the ASLIA Code of Ethics⁶² for professional sign interpreters includes the principle of impartiality, which it defines as not counselling, advising or interjecting personal opinions. Guidelines published and designed to be read in conjunction with the Code state “interpreters shall not omit or add information during an interpreting assignment even when asked to do so by any party.”⁶³ The principle of accuracy,⁶⁴ receives elaboration in the Guidelines, including the statement “interpreters shall accept responsibility for the accurate transfer of message meaning between parties involved in an interpreting assignment.”⁶⁵

2.37 There are a number of other factors to bolster confidence in the use and effectiveness of sign language interpretation. A juror who uses Auslan must also be proficient in reading and understanding English.⁶⁶ The role of an interpreter in these circumstances is to enable a deaf person to “hear” the proceedings. The interpreter does not translate them from a language foreign to the juror. If it were necessary to interpret a particular English word that has no precise Auslan equivalent, the word can be spelt out in English by means of finger-spelling or written down. For example, a single sign denotes judicial officer, judge, magistrate, president or chairman.⁶⁷ If it were necessary to specify which was intended, this can be spelt out, literally. Similarly, if a case were to turn on whether someone had said certain words, finger-spelling and/or English mouthing and signing in English word order could be used to give a more literal representation of the English words spoken at trial.⁶⁸

2.38 A deaf juror is one of twelve. Like any other juror, and as a normal part of the deliberation process, he or she can, through the services of the interpreter, discuss, argue or seek to clarify with fellow jurors any point not understood. There may also be the possibility of checking the transcript, which is in English and should therefore be comprehensible by all jurors.

Evaluating evidence

2.39 We do not propose dealing at length with credibility and demeanour issues here as they are discussed in DP 46⁶⁹ and in the following chapter of this Report.⁷⁰ It is sufficient to note, at this point, that deaf jurors would generally have no difficulty in relation to those aspects of demeanour that involve the visual presentation of the witness.

2.40 Otherwise, it may be accepted that demeanour has a bearing on the meaning of what is being communicated and, by extension, the way in which we relate to each other and make judgments. At the same time it should not be assumed that everyone relies on the same cues in order to do this. In the case of the deaf juror the precise meaning will be relayed by the interpreter, and in any event, uncertainty can be pursued in cross-examination or re-examination. So far as hesitations or verbal mannerisms can sometimes be suggestive of anxiety or dissembling, these too can be conveyed by interpretation and where appropriate explained in cross-examination.

Juror comprehension

2.41 Juror comprehension, or imperfect comprehension, of judges’ instructions is documented in numerous studies conducted during the past 30 years.⁷¹ Darbyshire⁷² comments “if there is one point upon which nearly every commentator agrees it is that juries have a great deal of difficulty understanding and applying judicial instructions.”

2.42 The New Zealand Law Commission, in its research into criminal juries found⁷³ that:

despite the fact that jurors generally found the judge’s instructions on the law clear and helpful, and conscientiously attempted to apply them, there were widespread misunderstandings about aspects of the law which persisted through to, and significantly influenced, jury deliberations. Indeed, there were only 13 of the 48 trials [studied by the Commission] in which fairly fundamental misunderstandings of the law at the deliberation stage did not emerge.

2.44 The pilot study commissioned for this reference found that both hearing and deaf ‘jurors’ misunderstood some legal concepts. In relation to closed/multiple choice questions, approximately 10.5% of the questions were answered incorrectly by all participants. Of open-ended questions, some responses were problematic from both deaf and hearing participants. In post-test interviews, all participants commented that the facts were easy to follow, but that the legalistic language and amount of repetition made the text difficult to comprehend. In sum, the preliminary findings of this study show that both the deaf and hearing ‘jurors’ equally misunderstood some terms and concepts.

2.45 Despite awareness of hearing jurors’ likely lack of comprehension of judicial instructions, most commentators do not call for the abolition of the jury, but cite other factors as correctives, such as the provision of written instructions, encouraging jury questions to iron out individual misunderstandings, and respect for an application of common sense to allow the ultimate decision to “end up at the same place as the law intended it to be”.⁷⁴ The New Zealand Law Commission also reached this conclusion:⁷⁵

Since misunderstandings about the law were fairly widespread, they did affect the way in which individual jurors, and sometimes the jury as a whole, approached the decision-making task; they undoubtedly prolonged deliberations and they sometimes led individual jurors to agree to a verdict on an erroneous basis. However, by and large, errors were addressed by the collective deliberations of the jury and did not influence the verdict of the majority of cases. Our assessment is that legal errors resulted in either hung juries or questionable verdicts in only four of the 48 trials, and in two of these, the questionable verdicts were acquittals in respect of only a proportion of a large number of counts.

The secrecy of the jury room

2.47 Juries deliberate in secret. This is a principle of common law⁷⁹ supported by statute.⁸⁰ It is designed to preserve the integrity of the deliberative process, shielding jury members from the influence of non-jurors, and creating an environment conducive to frank and uninhibited discussion. It also promotes the finality of the fact-finder’s verdict.⁸¹ Following a trial’s conclusion, the court will almost never hear evidence of what took place within the jury room.

2.48 In DP 46 we discussed English and US decisions regarding the presence of strangers in the jury room.⁸² The general rule, enunciated in Goby v Wetherill,⁸³ and followed in R v McNeil,⁸⁴ is:

that the jury are entitled, and bound, to deliberate in private. If a stranger, whether an officer of the Court or not, is present for a substantial time during their deliberations, then the verdict is vitiated.

2.49 In R v A Juror (Jeffrey McWhinney)⁸⁶ Mr McWhinney, who is Deaf and was at the time the Chief Executive of The British Deaf Association, appealed against a decision, based on Osman, to discharge his summons for jury service. Like Mr Osman, he would have required the assistance of an interpreter or stenographer. The appeal was dismissed.

2.50 The appellant had submitted⁸⁷ that the approach taken by the court in Osman to the presence of an interpreter in the jury room was wrong, and that Osman should have been distinguished from the earlier cases of Goby v Wetherill and McNeil. In the latter two cases, court officers mistakenly retired with the jurors. Counsel for Mr McWhinney submitted that these cases should have been distinguished in Osman because they involved unauthorised persons, and persons whose presence may well have inhibited jury deliberation, whereas a sign language interpreter would be authorised by the court to retire and would have facilitated the discussion.⁸⁸

2.51 Justice Anwyl rejected this submission, stating she was bound by the earlier decisions that had not limited themselves to the presence of unauthorised strangers.⁸⁹ She also made the following findings:

I am satisfied that on a practical basis, sensible positioning of the interpreter can minimise the distraction caused by any signing and I do not see that there are practical hurdles to there being a sign interpreter assisting a juror in court. There is nothing in the law to prevent a deaf juror from being assisted in court by a [stenographer] or a Sign Interpreter. …

I … do not find that there would be any difficulty about Mr McWhinney being able to follow, and be allowed to follow, what was going on in the courtroom. … It is quite plain from the experience of the American Courts, where deaf people have been allowed to sit on juries and be aided by a thirteenth person in the jury room, that far from being a hindrance it has been felt in many cases to be of assistance.

There is understandable caution about the prospect of such a 13th person in the jury room. But accredited interpreters work to agreed professional standards that should preclude any attempt to intrude on or breach the confidence of juries’ deliberations.

The thirteenth person in the jury room on the authorities is never permitted and it is this question that requires fresh thinking through to take account of the way that society is evolving towards including the disabled person.

So far this has proved a fatal objection to an interpreter or any other person assisting the disabled person going with the disabled person into the jury room. The cardinal principle is that a jury must be allowed to deliberate in private. It is unlikely that this approach could be altered judicially and it would require legislation.

In our submission the anxieties about an interpreter are met if the interpreter takes an oath when first taking office in the jury box

(i) To act as an interpreter as per the standard oath

(ii) Not to communicate with any other member of the jury except to communicate the deaf juror’s words to them, and their words to the deaf juror

(iii) Not to discuss the case with the deaf juror

(iv) Not to communicate with any other person about what was said by any member of the jury unless ordered to do so by the judge, or unless the deaf person is foreman and he is asked to deliver the jury’s verdict to the Court.

2.55 If a deaf juror were permitted to use real time transcription during deliberations, court stenographers would require access to the jury room in a manner similar to that of interpreters, that is, by swearing an oath. At present while not subject to express confidentiality provisions or oaths court reporters are present when evidence of a sensitive nature is given, for example in closed court. There is similarly no reason why they should not be trusted to comply with a non-disclosure obligation arising following the taking of an oath or arising under a similar statutory obligation to that binding jurors.

Jury deliberations

2.56 Two concerns arise in the present context. The first is that the presence of an interpreter in the jury room will influence jury deliberations directly or indirectly. Interpreters would be required to swear an oath and take care not to participate. Problems have not been reported in those jurisdictions where this is already the practice.⁹⁵

2.57 The other problem that may arise in the jury room if one juror is unable to hear, is several jurors speaking at once making interpretation of all dialogue impossible. This, however, would cause difficulties for any juror and can be mitigated by their agreeing to speak one at a time. The trial judge could make a suggestion to this effect prior to the jury’s retirement. So long as the threshold issue regarding the presence of non-jurors in the jury room can be resolved, the Commission does not consider that the deliberation process in itself need pose any obstacle to the inclusion of deaf jurors.

Length and cost of trial

2.58 If reasonable adjustments were factored into the existing trial system so that people who are blind or deaf could serve on juries, the concern would naturally arise that this might add to the cost and duration of a trial. A delay in proceedings could also add to any financial outlay.

2.59 Submissions from the Law Society of NSW⁹⁶ and Justice Hulme⁹⁷ express concern at the potential expense of making available a range of adjustments to accommodate blind or deaf jurors. It would be a costly exercise “to provide a wide range of supports that may be utilised only rarely” as well as their ongoing maintenance.⁹⁸

2.60 In the case of deaf jurors, as noted above,⁹⁹ the supports in question are Auslan interpreters and CART. Use of the former entails the hire of two interpreters per day, both of whom would be present throughout proceedings. Due to the physical demands of the role, they would take it in turns to interpret for about 40 minutes at a time. No technology is required, and the interpreters are paid only for the days booked. For this reason, and also because of the practical difficulty that might arise in securing two sufficiently qualified Auslan interpreters for the duration of proceedings, it would be likely that Deaf people would only be empanelled as jurors in short trials.

2.61 CART, as mentioned above, is already used in NSW courts, generally in the case of complex trials involving lengthy transcripts and numerous documents.¹⁰⁰ Benefits of using real time technology generally in place of traditional reporting methods¹⁰¹ include:

• allowing anyone with hearing difficulties to understand proceedings, whether judge, counsel, a party or a juror;
• providing speedy access to the transcript;
• enabling efficient viewing, on monitors, of other documents in electronic form (eg evidence);
• allowing indexing and easier location of particular documents or passages of transcript; and
• eliminating the need for note-taking.

2.63 The costs argument must, in any case, be seen in the context of public policy. The Commission agrees with the view advanced by the Law Society of NSW,¹⁰³ which is:

of the firm view that blind or deaf people ought not be excluded from sitting on juries for budgetary reasons alone. 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.

2.64 While the fundamental tasks of juries in both countries are the same, differences exist between Australian and US jury systems, for example in the procedures laid down for juror selection, and rules pertaining to the disclosure of information relating to deliberations.¹⁰⁴

2.65 The general legislative context is also different in the US, because courts must allow people with disabilities to serve as jurors if they meet other eligibility requirements. The Americans with Disabilities Act (“ADA”) of 1990¹⁰⁵ provides that:

No qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.

2.67 With regard to case law, the response of the courts has evolved over time. Judges have had wide discretion to determine the competency of jurors. However, while in earlier cases courts were quite willing to exclude jurors for disability, more recently they have tended to consider cases on an individual basis and with a view to the need for accommodations.¹¹⁰ Peremptory challenges, discussed in DP 46,¹¹¹ can still be used by counsel to exclude deaf jurors.¹¹²

General

2.68 The American courts that we consulted appear to regard the inclusion of deaf people on juries as an infrequent but unremarkable occurrence.¹¹³ Generally, both interpreters and CART are offered as accommodations.¹¹⁴ Apart from a chronic shortage of suitably qualified interpreters, no problems were reported.¹¹⁵ Court policies have developed to deal with disabled jurors, and the guidelines focus on individual assessment rather than blanket exclusion.¹¹⁶

Courtroom adaptations

2.69 Judge John Payne¹¹⁷ of the Massachusetts District Court was defence counsel in a medical malpractice case in which a deaf juror was empanelled, and accommodated by means of both interpreters and CART. This juror was seated in the front of the jury box farthest from the witness stand. Notwithstanding the diligence of that juror, Judge Payne has misgivings about her inclusion:

In my experience one of the most important parts of any trial is the interaction of the witnesses and the jurors. What do the jurors see? How do they react to the appearance, manner and visual presentation of the witness? The deaf juror could not hear the witness and she could not even visually observe the witness for the most part because she needed to be focused on the signer or the computer.

we have found that the deaf juror can be positioned in a way that [he or she] can observe both the witnesses, the trial judge, and the interpreter or the computer screen, and that the other jurors quickly adapt to the novelty of the accommodation. Service by deaf persons has not proven to be a distraction that interferes with the trial. If there is an issue with the layout of a particular courtroom, it is possible to move the trial to another courtroom that does not present an issue.

4. Interpreter’s Positioning in the Jury Assembly Room

A. Sign Language Interpreter

The ideal location for the sign language interpreter is next to the person who addresses the jurors. This is so that the Deaf or hard-of-hearing person can view the speaker peripherally while following the interpretation.

[t]he judge had the interpreter move to a better spot in the courtroom so I could see the interpreter clearly during the trial proceedings. The interpreters had the skills necessary to convey the witnesses’ and attorneys’ statements and demeanours. The interpreters were positioned so that I could see the interpreters and be able to glance at the attorney or witness to actually see their demeanour during the trial.

[a]s I do with all jurors, I instructed that if at any time a juror is not able to see a witness or misses any testimony or remarks to immediately tell me. Frankly, most jurors are not riveted on the witnesses the whole time they testify anyway, as jurors often take notes, review documents, or look at evidence, while witnesses are testifying. I assume that the same as hearing people must rely upon their own methods used in everyday life to evaluate credibility, deaf people have developed the same skill despite their difference.

2.73 Those respondents who addressed the issue of jury deliberations made no adverse report. The absence of problems was attributed to different causes. A jury manager’s perspective¹²² was that this is due to the preparation and instruction of all jurors regarding their responsibilities. However Conlon Mentkowski, as a former Deaf juror,¹²³ saw the presence of an interpreter in the jury room as helpful. In her view “all the jurors appreciated having the interpreter there as that was a constant reminder to speak one at a time and to give the matters pending before the jurors the due weight needed to decide the matters in the trial.” Further, she reports that in all the literature she has read on this subject she has never come across a claim that the interpreter’s presence could be disruptive or influential, nor was it her experience. Rather, “the court proceeding always impresses on the jurors and interpreters the seriousness of the matter so we all observe the protocol and requirements very carefully.” Justice Payne,¹²⁴ who expressed reservations over the empanelling of deaf jurors, observes that in the case in which he was involved, both a stenographer and an interpreter accompanied the jury into the jury room:

The jury was instructed to try not to speak over each other and the signer was able to speak for the [deaf] juror in addressing any comments or questions she had. … [T]he jury deliberated over two days and there was no sense that there were any problems during the deliberations.

the deliberations part is apparently a bit cumbersome at the start, but once the reporter gets used to identifying the speaker, it goes well. I’ve learned this from post-trial interviews of the jurors and the [CART] reporters. At the start of deliberations, we will swear the reporter to faithfully and impartially report and present the jury’s deliberations to the deaf juror, and to maintain the confidentiality of the jury’s deliberations.

2.75 The crucial question to consider is whether an accused person can receive a fair trial if one of the jurors is deaf. Can such a juror properly comprehend the proceedings in their entirety? Is a deaf juror even experiencing the same proceedings as the other eleven, when he or she must receive it through the medium of an interpreter? The responses of Justices Josephson and Lauriat indicate their satisfaction with the inclusion of deaf jurors in the Massachusetts trial system.

2.76 Justice Lauriat states:¹²⁶

I have always been impressed by the commitment of the deaf jurors to being fair and impartial. Indeed, they appear to be paying even more careful attention to the evidence and the judge’s instructions on the law. Whenever possible, although certainly not always, we encourage the trial judge to give a written copy of his final jury instructions to the jury for reference in their deliberations. This has obviously been of great assistance to the deaf juror – but all jurors have greatly appreciated their availability.

I do not believe that justice has been compromised by use of aids for deaf jurors, even the use of an interpreter. First and foremost, the deaf juror is one of six or twelve deliberating jurors, and we take pains to tell all jurors that they have an equal voice and an equal vote in their deliberations. Second, I have learned that the other jurors have always been willing to assist and accommodate the deaf juror – by writing down comments or thoughts, and by sharing with the deaf juror their notes taken during the trial. … Third, we emphasise that jurors must assess the credibility of each witness, and that this requires close observation of the witness’s demeanour and behaviour while testifying. I am told by other jurors that hearing impaired jurors are often better and more careful observers of the witnesses, and can provide their own insights to the deliberating jurors. … I think that deaf jurors, with or without interpreters, can understand the rhetoric and techniques of persuasion employed by counsel, and can often filter out the hyperbole from the meat of an argument or examination better than other jurors because they are not distracted by that verbal hyperbole.

It is not uncommon for jurors not to receive communication directly from the witnesses. We have many witnesses who do not speak English and must rely upon a translator. We also have many criminal defendants – and who could have a greater interest in the integrity of the communication during a trial? – who must rely upon a translator to interpret every aspect of the trial, including his or her own communications with his or her lawyer. …

I…think, frankly, that some of the concerns [regarding the inclusion of deaf jurors] stem from a hearing person’s projection of what it must be like to be deaf. I trust that we all come into the process with strengths and weaknesses that may be less obvious. I also trust the deaf juror to honestly tell me his or her limitations, as most prospective jurors do. In summary, I think if we flawed humans are to best approximate justice, it is by having a broad cross-section of human experience represented in the jury room. I felt having the deaf juror moved us closer to that.

2.78 In 2005 a deaf person assisted by sign language interpreters served as a juror during a two day hearing in a tax matter at Wellington District Court. His fellow jurors also selected him foreman. It is believed to be the first and only such case in New Zealand.¹²⁸ The Juries Act 1981 (NZ) does not include physical disability as a category of ineligibility for jury service.¹²⁹ A registrar¹³⁰ or judge¹³¹ may excuse a person with a physical disability from jury service on the grounds that hardship or serious inconvenience would otherwise result. A judge may also, on his or her own motion, discharge the summons of a person if the judge is satisfied that, because of a physical disability, the person is not capable of acting effectively as a juror.¹³²

2.79 Judge Bridget Mackintosh, who presided, advised the Commission that the trial proceeded smoothly.¹³³ It was a relatively straightforward tax fraud case involving many documents, and in which demeanour was a negligible factor. Counsel did not seek to use their right of peremptory challenge to exclude the deaf juror. The deaf juror used the service of sign language interpreters who swore an oath. Jurors received a transcript of the proceedings.

2.80 At the outset the Judge gave directions that the other members of the jury should not allow themselves to be distracted by the presence of the interpreters. The initial novelty of the situation wore off, and the jury appeared to be comfortable and not to be experiencing problems with the presence of a deaf juror.

CONCLUSION

2.81 In this Report and the earlier Discussion Paper the Commission has given detailed consideration to the concerns raised at the prospect of deaf people being allowed to serve as jurors. It has also looked at the experience in the US and New Zealand, and notes that what are sometimes claimed to be insurmountable obstacles here, seem to have caused little impediment to reform there, and with no evident ill effect.

2.82 The Commission is concerned, foremost, with maintaining confidence in the administration of justice in NSW. However, it does not regard the removal of the general prohibition on deaf people serving on juries as undermining the fairness of the trial. The Commission’s inquiry leads it to conclude that the practice of not allowing deaf people to serve is most likely based on unfounded assumptions about the nature of deafness and the ability of deaf people to comprehend and communicate. There is no reasonable basis for the conclusion that a person, by virtue of deafness alone, is incapable of discharging the duties of a juror. They should not therefore be subject to blanket ineligibility. Whether such a person should be ineligible for service for a particular trial should depend upon the particular circumstances of the trial, including its length and the nature of the evidence and issues involved, and the extent to which suitable adjustments can be made. For example, it would be inappropriate to have a deaf juror where the issue before the jury is voice or word identification from an intercepted communication whose sound quality is poor.

1. Para 1.11; see also DP 46 at para 1.10-1.12.

2. J Branson and D Miller, Damned for Their Difference: the Cultural Construction of Deaf People as Disabled (Gallaudet University Press, Washington DC, 2002) at 59.

3. Quoted in M J O’Callaghan, “Some Social Penalties of Impairment: the Extended Ramifications of Conflicting Role Obligations for People Born Profoundly Deaf” (1977) 3 Unicorn 36 at 42.

4. Jemina Napier, David Spencer and Joe Sabolcec.

5. The following discussion of terminology and communication is compiled from the following sources: D Fried, Deaf Society of NSW, information supplied 4 July 2005; A Simon, “The Use of Interpreters for the Deaf and the Legal Community’s Obligation to Comply with the ADA” (1993/1994) 8 Journal of Law and Health 155 at 159; Northern Melbourne Institute of TAFE (NMIT) Centre of Excellence for Students who are Deaf and Hard of Hearing, “FAQ: the Survival Guide to Sign Language and Deafness” (as at 10 May 2005) «online.nmit.vic.edu.au/deaf/pdf_file/survival_guide.pdf»; Australian Association of the Deaf Inc, N Sandon, “Making Libraries Accessible for the Deaf Community” (as at 10 May 2005) «www.aad.org.au/download/library.pdf».

6. For further information see para 2.17 below.

7. Australian Sign Language Interpreters Association (“ASLIA”), Submission at 1.

8. T Johnston, “W(h)ither the Deaf Community? Population, Genetics, and the Future of Australian Sign Language” (2004) 148 American Annals of the Deaf 358 at 366.

9. Johnston (2004) at 369-370.

10. The Deafness Forum, the peak body for deafness in Australia, is a member organisation of the IFHOH: see «www.ifhoh.org/members.htm» (as at 22 August 2005).

11. This figure, obtained in a SA study conducted in 1998, is regarded as “a marker of the Australian situation”: SA Department of Human Services, “Hearing Impairment in an Australian Population” (as at 18 May 2005) «www.dh.sa.gov.au/pehs/PROS/hearing-impair-austpop98.pdf».

12. Sydney Cochlear Implant Centre, “Possible Benefits From a Cochlear Implant” (as at 18 May 2005) «www.scic.nsw.gov.au/showarticle.asp?faq=2&fldAuto=20&header=header2».

13. W Noble, “Are you Deaf?! What it Means to Have Impaired Hearing”, The 2000 Lecture Series (University of New England, Armidale, 2001) at 8.

14. Para 4.15.

15. NSW Office of the Sheriff, “People With Disabilities and Jury Duty” (as at 18 May 2005) «www.lawlink.nsw.gov.au/ots.nsf/pages/jury16».

16. In the context of an actual trial, a deaf juror might “supplement” the interpreter’s signing by means of lip reading the speaker. Positioning the interpreter close to the speaker allows the deaf person to flick his/her vision between the two to better aid understanding; Northern Melbourne Institute of TAFE (NMIT) Centre of Excellence for Students who are Deaf and Hard of Hearing, “FAQ: the Survival Guide to Sign Language and Deafness” (as at 10 May 2005) «online.nmit.vic.edu.au/deaf/pdf_file/survival_guide.pdf»; Victorian Deaf Society, Information Resources Fact Sheet HT4.1999 “Lipreading/Speechreading” (as at 12 July 2005) «www.vicdeaf.com.au/informationResources/document/Fact-Lipreading@.doc».

17. There are other systems available, namely induction loop systems and radio systems, but signals from these can “leak” outside the courtroom and so do not provide as secure a communication system.

18. NSW Office of the Sheriff, “People With Disabilities and Jury Duty” (as at 18 May 2005) «www.lawlink.nsw.gov.au/ots.nsf/pages/jury16».

19. NSW Local Courts and the CRC have arranged to provide interpreters on a fee-exempt basis to the following categories of clients from non-English speaking backgrounds: criminal defendants, all defence witnesses, parents/guardians of young people in both criminal and care matters, all applicants for apprehended violence orders, and all Chamber Magistrate interviews (except civil matters): L Schetzer and J Henderson, Access to Justice and Legal Needs: a Project to Identify Legal Needs, Pathways and Barriers for Disadvantaged People in NSW Stage 1 Public Consultations (Law and Justice Foundation of NSW, Sydney, 2003) at para 3.119.

20. Shorthand Reporters Association of Australia (SRAA), “Reporting methods” (as at 23 December 2005) «www.sraa.org/technique.php».

21. Sometimes known as Communication Access Realtime Translation or Communication Assisted Realtime Translation.

22. Shorthand Reporters Association of Australia (SRAA), “Court reporting” (as at 23 December 2005) «www.sraa.org/court.php»; Caption It, “CART” (as at 23 December 2005) «www.captioning.com.au/pages/03_cart.html»; ComputerReporters “Realtime transcript” (as at 23 December 2005) «www.computerreporters.com.au/realtime.htm».

23. Queensland, Department of Justice and Attorney-General, “Technology in Supreme Court Trials” (as at 23 December 2005) «www.justice.qld.gov.au/lawyers/publications/law_fact3.htm».

24. See also DP 46 at para 3.29.

25. T Johnston (ed), Signs of Australia (2nd ed, North Rocks Press, Sydney, 1998) at 559.

26. Johnston (1998) at 558.

27. That is, being picture-like and resembling the word represented; La Trobe University, “National Institute of Deaf Studies and Sign Langauge” (as at 1 June 2005) «www.Latrobe.edu.au/hcs/nids».

28. J Lo Bianco, National Policy on Languages (AGPS, Canberra, 1987) at 14, 76.

29. Johnston (2004) at 373

30. New Zealand, Parliamentary Debates (Hansard) House of Representatives, 22 June 2004 at 13775, 13780.

31 (1984) 478 NYS 2d 455 at 460.

32. See generally NAATI’s website (as at 18 July 2005) «www.naati.com.au/index.htm».

33. NAATI, “Accreditation” (as at 18 July 2005) «www.naati.com.au/accreditation.htm#standards».

34. An advanced professional level of accreditation for interpreters exists, known as Conference Interpreter (formerly level 4). It is not yet available in Auslan, but is expected to be offered in the next few years: information supplied by J Napier (5 July 2005).

35. W E Hewitt, Court Interpretation: Model Guides for Policy and Practice in the State Courts (National Centre for State Courts, Williamsburg, 1995) at 16 (online at «www.ncsconline.org/WC/Publications/Res_CtInte_ModelGuidesPub.pdf»).

36. Hewitt at 37-38; see also NAATI, “Eligibility Criteria” (as at 18 July 2005) «www.naati.com.au/eligibility_criteria.htm».

37. Consecutive interpreting is the interpretation of the speaker or signer’s language into the receiver’s language intermittently, as the speaker pauses after completing a statement. Simultaneous interpretation is interpreting continuously, while the person speaks or signs.

38. M Metzger, Sign Language Interpreting: Deconstructing the Myth of Neutrality (Gallaudet University Press, Washington DC, 1999) at 20.

39. Metzger at 2, 4.

40. Law Society of NSW, Submission at 5.

41. See further Australian Law Reform Commission, Evidence (ALRC 26 Interim Report, 1985) at para 284 and following: “The reluctance [to allow a witness the use of an interpreter] also stems, however, from a lack of appreciation of the process of interpretation. It is assumed that the interpreter should give only a literal translation; this is all that is said to be involved.”

42. Eg, “the compendious Oxford English Dictionary lists about 500,000 [English] words; and a further half million technical and scientific terms remain uncatalogued. According to traditional estimates, neighbouring German has a vocabulary of about 185,000 words and French fewer than 100,000…”: R McCrum, W Cran and R MacNeil, The Story of English (Faber, London, 1987) at 19. In DP 46 we noted that Signed English was not a feasible alternative to Auslan for use in court, for a number of reasons including its small vocabulary (about 2500 words): at para 3.33.

43. Defined by the Oxford English Dictionary as “malicious enjoyment of the misfortunes of others”.

44. K Laster and V Taylor, Interpreters and the Legal System (Federation Press, Sydney, 1994) at 115.

45. R D Gonzalez, V C Vasquez and H Mikkelson, Fundamentals of Court Interpretation: Theory, Policy and Practice (Carolina Academic Press, Durham, North Carolina, 1991) at 16.

46. Model Code of Professional Responsibility for Interpreters in the Judiciary: see Hewitt at 197.

47. Eg Alaska («www.state.ak.us/courts/intcode.pdf»), Arkansas («courts.state.ar.us/pdf/0223ci_code.pdf»); Colorado («www.courts.state.co.us/chs/hr/interpreters/interpret_code.pdf»); Iowa («www.judicial.state.ia.us/district/court_interpreters/Code_of_Conduct/»); Nebraska («court.nol.org/rules/Interpreter.10.pdf»); Oregon («www.ojd.state.or.us/osca/cpsd/interpreter/documents/ethicscode.pdf»; Utah («www.utcourts.gov/resources/rules/ucja/append/h_intprt/apph.htm»); Virginia («www.courts.state.va.us/interpreters/code.html»); Wisconsin («www.wicourts.gov/services/interpreter/ethics.htm»).

48. Hewitt at 200.

49. Minnesota Supreme Court, “Best Practices Manual on Interpreters in the Minnesota State Court System” (as at 17 August 2005) «www.courts.state.mn.us/documents/courtInterpreters/forJudgesAttnysCourtStaff/BPM_Complete(chp_6_amended_2-13-03).pdf».

50. Australian Sign Language Interpreters Association, “Code of Ethics” (as at 29 March 2004) «www.aslia.com.au/national/ethics.htm»

51. S Karas, “The Interpreter’s View: Training, Accreditation and Registration,” paper presented at the conference Interpreting and the Law (Sydney, 28 July 1988) at 59.

52. Metzger at 22.

53. (1960) 104 CLR 419.

54. The then newly retired Chief Justice of the High Court, Sir Harry Gibbs expressed the opinion that the Court “was endeavouring to martial (sic) intellectual arguments to counter the argument that the evidence of the interpreter should be excluded altogether”: see P M Martin (ed), Interpreting and the Law (conference held in Sydney, 28 July 1988) at 54.

55. K Laster and V Taylor, “The Compromised ‘Conduit’: Conflicting Perceptions of Legal Interpreters” (1995) 6(4) Criminology Australia 9 at 10.

56. S Berk-Seligson, The Bilingual Courtroom: Court Interpreters in the Judicial Process (University of Chicago Press, Chicago, 1990) at 96.

57. S Mather and R Mather, “Court Interpreting for Signing Jurors: Just Transmitting or Interpreting?” in C Lucas (ed), Language and the Law in Deaf Communities (Gallaudet University Press, Washington DC, 2003) at 69.

58. See para 2.73.

59. R S Hulme, Submission at 2.

60. Evidence Act 1995 (NSW) s 22, Sch 1. See also Gradidge v Grace Bros Pty Ltd (1988) 93 FLR 414 at 418.

61. AUSIT Code of Ethics (as at 31 August 2005) «www.ausit.org/eng/showpage.php3?id=650».

62. See para 2.31.

63. Principle 4, Guideline 4(b)(iii).

64. See para 2.31.

65. Guideline 5(a)(i).

66. Jury Act 1977 (NSW) s 6, Sch 2.

67. Laster and Taylor (1994) at 117.

68. R Lee, “Equal Protection and a Deaf Person’s Right to Serve as a Juror” (1989/1990) 17 New York University Review of Law and Social Change 81 at 100.

69. Para 3.2-3.22

70. Para 3.9.

71. Eg V P Hans and N Vidmar, Judging the Jury (Plenum, NY, 1986) at 121; P M Tiersma, “Reforming the Language of Jury Instructions” (1993) 22 Hofstra Law Review 37 at 41-42, 52; W W Steele and E G Thornburg, “Jury Instructions: a Persistent Failure to Communicate” (1988) 67 North Carolina Law Review 77 at 78.

72. P Darbyshire, A Maughan and A Stewart, “What can the English Legal System Learn from Jury Research Published up to 2001?” (research paper commissioned for the Criminal Courts Review, “the Auld Report”) «www.kingston.ac.uk/~ku00596/elsres01.pdf» at 25.

73. New Zealand, Law Commission, Juries in Criminal Trials Part 2; a Summary of the Research Findings (PP37 1999) vol 2 at para 7.12. Steele and Thornburg (at 92) carried out an exercise to gauge the accuracy of comprehension on the part of (hearing) jurors. They were requested to paraphrase accurately each instruction after it has been read out just once. The results obtained were “proof once again that comprehension by jurors of the instructions given them is dysfunctionally low.”

74. Hans and Vidmar at 121.

75. New Zealand, Law Commission at para 7.25.

76. Section 55B of the Jury Act 1977 (NSW) provides that any direction of law to a jury by a judge or coroner may be given in writing if he/she considers it appropriate to do so. The NSW Criminal Trial Courts Bench Book states at [7-010] “It is now accepted practice for the trial judge to give to the jury a document which sets out the relevant directions of law: R v Savvas (1989) 45 A Crim R 38 at 38. The principle benefit from doing so is that there can then be no doubt in the minds of the jury as to what those directions are.” To serve as a juror, a person must be able to read and understand English: Jury Act 1977 (NSW) sch 2.

77. New Zealand, Law Commission at para 7.60.

78. Darbyshire et al at 61 (Rec 21).

79. Vaise v Delaval (1785) 99 ER 944; Ellis v Deheer [1922] 2KB 113 at 121; R v Minarowska (1995) 83 A Crim R 78 at 86-87; R v Laws (2000) 50 NSWLR 96 at 102.

80. Jury Act 1977 (NSW) s 68A, 68B.

81. An earlier report of the Commission contains a summary of arguments advanced by McHugh JA (as he then was) both for and against jury secrecy: see NSW Law Reform Commission, Criminal Procedure: the Jury in a Criminal Trial (Report 48, 1986) at para 11.17-11.23.

82. Para 3.23-3.28.

83. [1915] 2 KB 674 at 675. Compare R v Lamb (1974) 59 Cr App R 196, in which the jury communicated to the court clerk via the jury bailiff that it was unable to reach a unanimous verdict. The clerk obtained the judge’s authority to enter the jury room and instruct the jury that they had to continue to try and reach a unanimous verdict. The appeal court found that the clerk delivered this direction in the secrecy of the jury room, when it was for the judge to do this in open court. This was a material irregularity. However, no miscarriage of justice resulted and this ground of appeal failed.

84. [1967] Crim L R 540.

85. [1995] 1 WLR 1327.

86. Woolwich Crown Court, U19990078, Anwyl J, 9 November 1999, unreported.

87. Woolwich Crown Court, U19990078, Anwyl J, 9 November 1999, unreported (transcript).

88. “The rule which excludes persons other than jurors from the jury room during deliberations in reality pertains to officers of the court such as bailiffs, Judges, or counsel. The presence of the signer is a different matter entirely”: People v Guzman 478 N Y S 2d 455 (1984) at 466.

89. For a critique of this judgment see A Majid, “Jury Still Out on Deaf Jurors” (2004) 154 New Law Journal 278. See also DP 46 para 3.24 n 53.

90. Para 3.24.

91. R E Auld, Review of the Criminal Courts of England and Wales: Report (The Chancellor’s Department, London, 2001) at 153.

92. Bar Council of England and Wales, “Disability Committee Submissions to Auld Review” (as at 6 December 2005) «www.barcouncil.org.uk/document.asp?documentid=611&languageid=1&highlight=deaf%20juror».

93. For the US position see US v Dempsey 830 F 2d 1084 (1987); De Long v Brumbaugh 703 F Supp 399 (1989) at 405; Saunders v Texas 49 S W 3d 536 (2001); Wisconsin v McCann 384 NW 2d 368 (1986); Office of the Attorney General, “Opinion No DM-392 Re: Whether an interpreter for a deaf juror may accompany the juror into the jury room during deliberations” (as at 11 January 2005) «www.oag.state.tx.us/opinions/op48morales/dm-392.htm»)

94. Section 68B.

95. Para 2.73.

96. Law Society of NSW, Submission at 4.

97. R S Hulme, Submission at 1, 3.

98. Law Society of NSW, Submission at 4.

99. Para 2.14 – 2.15.

100. In R v Schlittler (NSW, Gosford District Court, No 0479/03, Williams J, 7 May 2004, unreported) CART was used successfully to assist a deaf defendant. In Australia the first real time transcript was taken in Melbourne in 1990, in proceedings between the National Australia Bank and Bond Brewing Holdings Limited: V Harris, “Overview of Computerised Transcript”, paper presented at the conference Technology for Justice (Melbourne 23-25 March 1998) «www.aija.org.au/conference98/papers/vharris/VHARRIS.html». Recent major cases have been held in technologically enhanced courtrooms using CART facilities eg Australian Securities and Investments Commission’s civil proceedings against former directors of One.Tel Ltd, the Seven Network’s action in the Federal Court against some of the country’s biggest companies, the Snowtown murder trial in South Australia in 2003: G Dyer, “Lachlan Murdoch’s Selective Memory” Crikey (23 November 2005) at «www.crikey.com.au/articles/2005/11/23-1513-8611.html»; E Sexton, “Stokes Finds Himself in the Crosshairs” Sydney Morning Herald (29 October 2005) at 39, 42; S Moran, “E-Court Goes on Trial in Seven Case” Australian Financial Review (7 September 2005) at 7; SolutionCity Adelaide, EDS (as at 10 January 2006) «www.solutioncity.com.au/SolutionCity/Members/Foundation/EDS.htm». The Royal Commission inquiring into the failure of the HIH Insurance Group used real time technology to record proceedings: Australia, The HIH Royal Commission, Final Report (National Capital Printing, Canberra, 2003) vol 1 at 28.

101. V Harris, “Overview of Computerised Transcript”, paper presented at the conference Technology for Justice (Melbourne 23-25 March 1998) «www.aija.org.au/conference98/papers/vharris/VHARRIS.html».

102. People with Disability Australia Inc, Submission at 3-4.

103. Law Society of NSW, Submission at 4.

104. Jury Act 1977 (NSW) s 68B.

105. 42 United States Code §12132.

106. Galloway v Superior Court of the District of Columbia 816 F Supp 12 (1993) at 19.

107. People v Caldwell 603 NYS 2d 713 (1993) at 714.

108. K Bleyer, K S McCarty and E Wood, “Access to Jury Service for Persons with Disabilities” (1995) 19 Mental and Physical Disability Law Reporter 249 at 250.

109. For example, a paper published in 2002, outlining the experience in New Jersey, expressed the view that judge and staff training was critical, with the topic for that year’s workshops being service by jurors with disabilities: E J Comer, “Implementation of the Americans with Disabilities Act in the New Jersey Judicial System” (2002) National Centre for State Courts «www.ncsconline.org/WC/Publications/CS_AmeDisActNJPub.pdf». That State also developed guidelines specific to trials involving deaf jurors, in which it addresses such practical matters as positioning of the juror and interpreters within the courtroom: New Jersey, Administrative Office of the Courts, “Guidelines for Trials Involving Deaf Jurors Who Serve With the Assistance of Sign Language Interpreters” (rev 2004) «www.judiciary.state.nj.us/interpreters/wrkgdeafjur.pdf». See also North Carolina, “Guidelines for Accommodating Persons who are Deaf or Hard of Hearing in the Courts (2004) «www.nccourts.org/Citizens/CPrograms/Foreign/Documents/guidelinedeaf_hardhearing2004.pdf»; “Improving Interpretation in Wisconsin’s Courts” (2000) «www.courts.state.wi.us/about/pubs/supreme/docs/interpreterreport.pdf»; “Best Practices Manual on Interpreters in the Minnesota State Court System” (1999) «www.courts.state.mn.us/documents/courtInterpreters/forJudgesAttnysCourtStaff/BPM_Complete(chp_6_amended_2-13-03).pdf»; Arizona Supreme Court, Committee on More Effective Use of Juries “Jurors: the Power of 12” (1994) «www.supreme.state.az.us/jury/Jury/jury.htm»; Supreme Court of Texas, Jury Task Force “Final Report September 8, 1997” «www.courts.state.tx.us/commtask/juryf2.PDF».

110. K Bleyer, K S McCarty and E Wood, Into the Jury Box: a Disability Accommodation Guide for State Courts (ABA, Washington DC, 1994) at 11.

111. At para 3.40-3.55.

112. On this subject the Texas Jury Task Force observed “efforts by Texas legislatures, counties, and courts to accommodate and include persons with disabilities will be wasted if attorneys are allowed free reign to eliminate them at the last moment”. If there were no ban on peremptory strikes based on disability “the vital policies protected by the ADA will be illusory in the context of jury service”: Supreme Court of Texas, Jury Task Force “Final Report September 8, 1997” at 49-50 «www.courts.state.tx.us/commtask/juryf2.PDF».

113. Wisconsin empanels approximately 4 or 5 deaf jurors each year. District of Columbia calls up 3 or 4 disabled (mostly deaf or hard of hearing) prospective jurors per month; until June 1 2005 a total of 4 deaf jurors had completed service on felony trials. The Superior Court of California, County of Sacramento, while not keeping records of the actual numbers of deaf jurors serving, reports receiving approximately 50 requests annually for special assistance including sign language interpreters and CART. Information supplied by S Gervasi, Supreme Court of Wisconsin (23 March 2005), S Bailey-Jones, District of Columbia Superior Court (30 March and 16 June 2005), and P Meraz, Sacramento Jury Commissioner (18 May 2005).

114. Bailey-Jones (30 March 2005); M Garrahan, New Jersey Courts (30 April 2005); Meraz (18 May 2005); Gervasi (23 March 2005); A Paxton, Louisiana Courts (5 April 2005).

115. Michael Garrahan, who co-ordinates jury services for New Jersey, was involved in each case since the first deaf juror served in 1984 and in the years immediately following. He states that such service has become “a fairly routine practice” and although not common, there is no longer any need for him to be directly involved, as the local staff see to the necessary accommodations. He has overseen two decades of service by deaf jurors. He notes that since 1984 “we have had many deaf persons serve as jurors, including the first juror serving a second time a number of years later, and have not had any legal or practical difficulties with such service – other than the normal issues that sometimes affect the scheduling of the sign language interpreters or the advance notice needed if real time transcription or some other service will be provided:” Garrahan (30 April 2005).

116. For example in Louisiana, a document entitled “Court Policies for Accommodating Jurors with Special Needs” commences: “Persons with Disabilities are encouraged to serve as jurors in this Court. The Court shall not offer to excuse a juror on the basis of a disability:” Paxton (5 April 2005); Garrahan notes that “a good deal of information …has been developed in order to guide our efforts – including oaths and judicial instructions that relate to interpreting at trial and during deliberations.” Thomas Munsterman (5 April 2005) US National Centre for State Courts, observes “in general we are seeing a shift from the exclusion from service of any person to a more case specific finding. … This places the decision on the judge rather than based on an administrative and perhaps very subjective basis. … The exclusion is not from jury service but from a particular case.”

117. Chicopee District Court, Massachusetts (6 May 2005).

118. Garrahan (30 April 2005).

119. New Jersey, Administrative Office of the Courts, “Guidelines for Trials Involving Deaf Jurors Who Serve With the Assistance of Sign Language Interpreters” (rev 2004) «www.judiciary.state.nj.us/interpreters/wrkgdeafjur.pdf».

120. S Conlon Mentkowski (5 May 2005).

121. Massachusetts Superior Court (25 June 2005).

122. Garrahan (30 April 2005).

123. Conlon Mentkowski (5 May 2005).

124. Payne J (6 May 2005).

125. Massachusetts Superior Court (5 May 2005).

126. Lauriat J (5 May 2005).

127. Josephson J (25 June 2005).

128. “First Deaf Person to Serve on Jury” Dominion Post (Wellington) (4 November 2005) at 2.

129. Juries Act 1981 (NZ) s 8.

130. Juries Act 1981 (NZ) s 15(1)(aa).

131. Juries Act 1981 (NZ) s 16.

132. Juries Act 1981 (NZ) s 16AA(1).

133. Mackintosh J, information supplied 25 July 2006.