4. Recommendations

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Updates and background for this project (Digest)

• Eligibility
• Exemption from jury service
• Procedure
• Offences
• Legislative action
• Professional awareness

ELIGIBILITY

4.1 At the heart of this reference is the question whether blind or deaf people can perform the functions of a juror. The Commission finds that, so long as all appropriate and reasonable adjustments are made available, neither blindness nor deafness is inherently inimical to jury service. It may be that, in individual cases, it is inappropriate to empanel a blind or deaf juror. A blanket prohibition however, as currently exists, is excessive and unnecessary. It mandates the exclusion of a class of citizens from participating in one of the rights and responsibilities of citizenship purely on the basis of a disability, and precludes any enquiry as to the actual ability of a member of that class to effectively perform in that role. This, in the Commission’s view, is unacceptable. While the Commission understands that practical difficulties may at times hamper implementation (eg unavailability of interpreters), this is a separate matter that does not have any bearing on the principles at stake.

4.2 Nearly all submissions supported the view that eligibility for jury service should depend on an individual’s ability to carry out the task.¹ The Law Society of NSW² suggested that an appropriate model might be found in New Zealand legislation, which removes automatic disqualification for people with physical disabilities, thereby focusing “on a person’s ability to serve on a jury, rather than on categories of disability”. Indeed, as noted earlier,³ a deaf juror and a blind juror have completed successful service in recent New Zealand trials.

4.3 The Commission’s principal recommendation is, therefore, that a person who is either blind or deaf be eligible and qualified for jury service, and that any exclusion be considered on an individual basis, taking into account the person’s ability to discharge the duties required in the circumstances of the particular trial, and the availability of reasonable adjustments, if required. There should be a presumption favouring the provision of reasonable adjustments, unless doing so would be unduly impractical for court administrators. ⁴

EXEMPTION FROM JURY SERVICE

4.4 In DP 46 we asked whether blind or deaf people, if allowed to serve on juries, should be required to do so, or whether they should be given the option to be excused.⁵ The following views emerged in submissions.

4.5 The Disability Council of NSW opposed giving blind or deaf people the choice whether to serve on juries,⁶ stating:

People who are blind or deaf should not have the option to be excused from jury duty because of their disability. They have an obligation to serve as jurors, and the justice system has a responsibility to facilitate such service.

4.6 Others favoured giving blind or deaf individuals the choice whether to serve on a jury.⁸ The Royal Blind Society (“RBS”)⁹ agreed with the above-mentioned submissions that blindness should not, of itself, be grounds for exemption. However, the RBS cautioned that other circumstances should be taken into account in individual cases:

1. Where the onset of blindness or sight loss is recent enough that the person has not dealt with the loss in an emotional or practical sense. That is, that the person may still be suffering emotionally from the loss and will not be able to focus effectively on all aspects of a trial by jury. Also that the person may not have developed sufficient compensatory skills such as orientation and mobility information access or use of assistive technology.

2. Where a person may feel that they are more vulnerable because of blindness. That is, that a person may feel that their blindness makes them more readily identifiable or that as a consequence of blindness they are less safe in the community….

The disabilities of hearing and/or visual impairment are overwhelmingly disabilities which manifest themselves amongst elderly Australians. … Given that blindness and deafness are aging diseases and that the majority of blind or deaf persons on the electoral rolls are citizens of senior years … blind or deaf persons should have the right to be exempted from jury service. Many older Australians who suffer the onset of blindness or deafness have difficulties in adjusting to these conditions, and having regard to these circumstances, it would be inappropriate not to allow such persons a right of exemption from jury service.

PROCEDURE

4.8 A person who is blind or deaf and whose name has been included on the supplementary jury roll should complete a form accompanying the notice from the Sheriff disclosing his or her disability. The person should either claim exemption or, if prepared to serve, nominate the facilities that would assist him or her in participating as a juror. If summoned, the Sheriff’s Office would be responsible for ensuring, in conjunction with the court of trial, that reasonable adjustments could be made available. Forewarned of potential problems, the trial judge could deal with the capacity of the juror to serve in the particular trial in the presence of counsel and prior to commencing empanelment. Otherwise the usual position would apply unchanged, that is that the juror could be stood aside by consent, or the prospective juror could be challenged either peremptorily or for cause.¹¹

OFFENCES

4.9 The sanctity of the jury room is of the utmost importance and for that reason anyone in the jury room should be subject to the same prohibitions and protections as jurors. Interpreters and stenographers or any other person permitted by the trial judge to assist a deaf or blind juror during deliberations should be prohibited, on the pain of committing an offence, from disclosing information pertaining to those deliberations. Soliciting information from such persons about the deliberations should also be an offence.

LEGISLATIVE ACTION

4.10 The Act should be amended to make it clear that people who are blind or deaf should not be prevented from serving on juries solely because of that disability. They should only be excluded when the nature of the evidence is such that they cannot fulfil the functions of a juror or where they request exemption.

Recommendation 1

The Jury Act 1977 (NSW) should be amended to reflect the following:

(a) that people who are blind or deaf should be qualified to serve on juries, and not be prevented from doing so on the basis of that physical disability alone;

(b) that people who are blind or deaf should have the right to claim exemption from jury service;

(c) that the Court should have power to stand aside a blind or deaf person summoned for jury duty if it appears to the Court that, notwithstanding the provision of reasonable adjustments, the person is unable to discharge the duties of a juror in the circumstances of the trial for which that person is summoned. This power should be exercisable on the Court’s own motion or on application by the Sheriff;

(d) that interpreters and stenographers allowed by the trial judge to assist the deaf or blind juror should swear an oath faithfully to interpret or transcribe the proceedings or jury deliberations;

(e) that interpreters or stenographers allowed by the trial judge to assist the deaf or blind juror should be permitted in the jury room during deliberations without breaching jury secrecy principles, so long as they are subject to and comply with requirements pertaining to the secrecy of jury deliberations;

(f) that offences be created, in similar terms to those arising under s 68A and 68B of the Act, in relation to the soliciting by third parties of interpreters or stenographers for the provision of information about the jury deliberations, and in relation to the disclosure of information by such interpreters or stenographers about the jury deliberations.

Recommendation 2

The Sheriff should develop guidelines for the provision of reasonable adjustments, including sign language interpreters and other aids for use by deaf or blind jurors during the trial and deliberation.

Recommendation 3

A blind or deaf person receiving a notice of inclusion on the jury roll or a jury summons should be required to complete a form either claiming exemption from jury duty or notifying the Sheriff of the reasonable adjustments required by that person to participate as a juror.

PROFESSIONAL AWARENESS

4.11 People with Disability Australia¹² commented:

…there will need to be significant judicial education to ensure that trial judges do not themselves make decisions that unreasonably discriminate against people who are blind or deaf on the basis of disability.

4.12 The issue of education, not only for judicial officers, but also for staff of the courts and Sheriff’s Office is an important one. Past exclusion from jury service has led to limited experience in accommodating blind or deaf individuals. It is unlikely, therefore, that there is much knowledge or expertise within the court system relating to either the disabilities themselves or the reasonable adjustments that can be provided to facilitate the participation of deaf or blind people on juries. While ongoing professional awareness for judicial officers is already provided through such organisations as the Judicial Commission of NSW¹⁴ and the National Judicial College of Australia,¹⁵ and disability awareness training is offered to staff of the Attorney General’s Department, training workshops should be designed specifically to accomplish the goal of these Recommendations.

4.13 These would provide a valuable opportunity for court personnel and judicial officers to be exposed to working with sign language interpreters and adaptive technologies, as well as with blind or deaf people themselves.

4.14 A foreseeable development within this process is the formulation of new procedures and guidelines, together with the publication of in-house manuals, so that all relevant personnel can be equipped with the resources necessary to understand and implement the recommended reform.

Recommendation 4

All relevant personnel, including judicial officers and court staff, should be given the opportunity to participate in professional awareness activities that focus on practical measures to facilitate the inclusion of blind or deaf persons as jurors. The Judicial Commission should develop supporting materials and procedural guidelines as part of this process.

1. Para 1.4.

2. Law Society of NSW, Submission at 3.

3. See para 2.78 and 3.6.

4. This is supported by the NSW Attorney General’s Disability Strategic Plan 2006-2008 (as at 29 August 2006) «www.lawlink.nsw.gov.au/Lawlink/Corporate/ll_corporate.nsf/vwPreviewActivePages/attorney_generals_department_disabilitystrategicplan».

5. DP 46 para 6.2.

6. Disability Council of NSW, Submission at 3.

7. People with Disability Australia Incorporated, Submission at 2.

8. N R Cowdery, Submission at 1; Law Society of NSW, Submission at 3.

9. Royal Blind Society, Submission at 2.

10. R McCallum, Submission 2 at 2.

11. Challenges are discussed in DP 46 at para 3.36.

12. People with Disability Australia Incorporated, Submission at 2.

13. Royal Blind Society, Submission at 3.

14. The Judicial Commission’s website can be viewed at «www.judcom.nsw.gov.au/index.php».

15. http://www.njca.com.au/index.asp