Research Report 14 - Deaf jurors' access to court proceedings via sign language interpreting: an investigation (by Jemina Napier, David Spencer and Joseph Sabolcec)

A project funded by the NSW Law Reform Commission and
the Macquarie University External Collaborative Grant Scheme.

5.1 Following on from the identified limitations in the preliminary study, it was decided to develop a more rigorous study focusing on accuracy and comprehension, with a research design that would account for the flaws identified in the preliminary study. This study sought to investigate deaf jurors’ access to court proceedings via sign language interpreting, by analysing the accuracy of an interpretation of a different judge’s summation from English into Auslan. This study, which would be conducted under more rigorous conditions, would test and compare deaf and hearing jurors’ comprehension of a judge’s summation.

5.2 The study was designed to approximate a court experience. It was decided to test 12 ‘jurors’, six deaf and six hearing, in order to compare their level of understanding of a legal text. The jurors were briefed in an attempt to simulate their presence throughout a trial. They were then provided with the two excerpts from a real court case, and asked to respond to questions concerning the information covered in these excerpts. The goal of the study was to evaluate the accuracy of the interpretation of legal concepts from English into Auslan, and to assess the participants’ level of comprehension of the information provided.

5.3 The NSWLRC selected a judge’s summation from a case that had been tried in the Supreme Court of NSW, Criminal Division. The case⁹⁴ was heard between 27 October – 6 November 2003. Rodney Ivan Kerr was charged with the manslaughter of William Christopher Harris at Redfern Station in NSW. He was also charged with affray and endangering the safety of a person on the railway. Representatives of the NSWLRC selected two excerpts on the basis that they incorporated sufficient legal terminology and important facts of the case for the purposes of this study. Excerpt 1⁹⁵ of the summation was delivered on Tuesday 4 November 2003. Excerpt 2⁹⁶ of the summation was delivered on Thursday 6 November 2003. The full source text can be seen in Appendix A.

5.4 Two interpreters were recruited to interpret the selected excerpts from English into Auslan for recording on video. In order to approximate the level of background information interpreters would normally have if present throughout a real trial, both interpreters were provided with background materials, including a brief background to the case, a copy of the indictment (see Appendix B), the 14 pages of the transcribed summation prior to the first excerpt, and the written directions circulated and referred to by the judge in the excerpts to be interpreted (see Appendix C). These materials were provided two days prior to filming.

5.5 Filming took place in a Department of Law room at Macquarie University which has been set up to represent aspects of a courtroom.

5.6 Two deaf participants were also recruited to attend the filming of the interpretation in order to provide a live audience for the interpreters. Both audience members were provided with a copy of the indictment and the written directions prior to filming.

5.7 On arrival, the interpreters were given time to discuss interpreting strategies and suggestions for Auslan signs with each other. They were then given additional time to discuss and agree on the translations to be used for the English terms they anticipated would arise. This would normally be the case in a real court situation. Translations were agreed for the following legal terms that were anticipated from the materials provided: accused, affray, assault, beyond reasonable doubt, Director of Public Prosecutions, guilty, jury, manslaughter, parole, Supreme Court, verdict and victim.

5.8 A member of the research team with legal and court experience acted as the judge and provided a short warm-up reading to give interpreters the opportunity to become familiar with the speaker’s voice and pace of delivery, and the situation in general. Once filming commenced, the ‘judge’ read the selected Excerpt 1 as one interpreter carried out the interpretation simultaneously into Auslan and the second interpreter acted as prompt/support. This again simulates the procedure that would occur normally during a trial. Both the interpreter and the ‘judge’ reading the source text were filmed.

5.9 A five-minute break was provided between the two selected excerpts and the same procedure was then followed for the second excerpt. For the purpose of minimising disruption in such a short exercise, the same interpreter carried out the interpretation of the second excerpt. During a longer interpreting situation, it would be normal for the two interpreters to alternate their roles at regular intervals to reduce fatigue.

5.10 On completion of the filming, the interpreters and deaf people participated in a debriefing separately with researchers. The interpreters were asked to comment on the challenges encountered, strategies used, perceived differences to interpreting for deaf witnesses, defendants or complainants, and any other general observations. The interpreters commented that there were some challenging parts of the text, especially in relation to use of legalese, and that the text felt repetitive. The interpreters were confident that they had met the needs of the deaf audience, but were conscious of the different strategies used to ensure that the jurors could access the terminology, for example, using more English mouthing and fingerspelling (ie, borrowing).

5.11 The two deaf people acting as an audience for the interpretation were also asked to comment on anything they found difficult to understand, any perceived challenges in accessing courtroom proceedings through an interpreter, and any other general observations. Both commented that they felt that they had understood the interpretation clearly and, if serving as jurors, would have felt able to make an informed decision about the guilt of the defendant. They both expressed interest to serve as jurors if it were made possible.

5.12 Given the feedback of both the interpreters and the deaf people, it was deemed that the source text and resulting interpretation were valid and appropriate to use for the comprehension testing stage of the research.

5.13 The filmed Auslan interpretation of the selected excerpts from the judge’s summation was then back translated into written English by a third Auslan interpreter who was not present during filming. This interpreter was provided with the same background material and instructions provided to the other participants for the filmed translation task. The process of back translation was used in order to ensure reliability and content validity of the English to Auslan interpretation, and to identify any mistranslations. Back translation is a method commonly used for verification of translated tests between spoken languages,⁹⁷ and between spoken and signed languages.⁹⁸ The full back translation conducted can be seen in Appendix D.

5.14 Key concepts in the original summation and an analysis of the interpretation were then identified, and a content analysis of the back translation was conducted to identify the extent to which these concepts were accurately conveyed.

5.15 A flyer was distributed on the university campus by the research team calling for expressions of interest from hearing people interested in participating in the study (see Appendix E). Hearing people with a background in law, sign language or deafness were excluded from the study. A similar flyer was also sent around to members of the deaf community in Sydney. Six deaf and six hearing people were recruited to watch/listen to the judge’s summation and participate in a comprehension test.

5.16 Noting the need to minimise differences in testing procedure for deaf and hearing participants, two videos were produced for the comprehension stage of the project to ensure that participants would be tested in the same language throughout the comprehension test, whether that be English or Auslan. The first video, for deaf participants, was signed in Auslan by a researcher and consisted of the following sections:

5.18 The Auslan interpretation of the warm-up text and the two excerpts was presented as ‘picture in picture’, so that people would see the interpreter on screen, and the researcher reading the summation in a smaller box on screen, to provide a visual link to the reading of the original text. The test was then piloted with one of the deaf people who had been present at the original filming. This person was asked to comment on the clarity of the instructions and questions in Auslan, and any problems with watching the interpreter and judge on the screen at the same time. Once confirmed that the test was comprehensible, the actual data collection was arranged.

5.19 The video for the six hearing participants consisted of the same sections as the video for deaf participants. However, the video of the warm-up text and the two excerpts from the summation shown to participants consisted only of the ‘judge’ reading the original text. The video of the interpreter was not shown to hearing jurors as it was felt this would be distracting. Instructions and questions for the comprehension component of the video were spoken to the camera by a researcher.

5.20 Two days prior to the test, deaf and hearing comprehension test participants were sent a brief background to the case and the written instructions provided to interpreters. Participants then attended the test venue individually and watched the relevant video and instructions. All participants were also provided with a written version of questions after they had watched the summation. All participants were filmed giving their responses (whether spoken or signed) to the camera. A researcher was present during this activity in order to pause the video for answers as required.

5.21 At the end of the comprehension test, all participants were also asked to comment on their experience and the challenges encountered. Deaf participants, and hearing participants with no jury experience, were asked about their willingness to be involved in a jury in the future. Hearing participants with jury experience were asked to comment on how this activity compared to their past experience. All answers provided were then transcribed from videotape.

5.22 The interpreter who carried out the simultaneous interpretation of the source text into Auslan was a professionally accredited interpreter (since 1990). Although not a native signer, she has worked since 1986 as an interpreter in a variety of settings, and her legal interpreting experience included criminal and civil matters. The interpreter also held tertiary qualifications, including a PhD.

5.23 The interpreter acting as prompt to the simultaneous interpretation of the source text into Auslan was also a professionally accredited interpreter (since 1992). Although also not a native signer, she has worked since 1988 as an interpreter in a variety of contexts. In terms of legal settings, these include mentions and short trials within Local, District and Supreme Courts for both criminal and civil matters. The interpreter also possessed both undergraduate and postgraduate university qualifications.

5.24 Two deaf people attended the filming of the interpretation of the source text into Auslan. One deaf person was a native signer who is most comfortable using Auslan and has some English skills. The other deaf person was a non-native signer who uses Auslan as her preferred method of communication, but has high literacy in English and considers herself to be bilingual. These two were chosen to represent two extremes of the deaf community, so that the interpreters would pitch their interpretation to meet the needs of both audience members.

5.25 The interpreter who carried out the back translation of the interpreted text into English was a professionally accredited interpreter (since 1990). Although not a native Auslan user, her experience in legal interpreting spans court, mediation sessions, tribunals and hearings, police interviews, solicitor appointments, pre-trial conferences, and dispute resolution. In addition, she has worked as a paralegal advocate in a previous position as the manager of a community service.

5.26 The ‘jurors’ were 12 people (six deaf, six hearing) selected to provide a broad representation across the following variables: age, gender, highest educational attainment, employment category, and first language.

5.27 The characteristics of the participants selected are summarised in Appendix G, and were chosen to reflect recommendations from the NSW Office of the Director for Public Prosecutions that jury selection should account for a representation of the community in terms of age, sex, ethnic origin, religious belief, marital status or economic, cultural or social background.⁹⁹ In both the deaf and hearing sample, an attempt was made to include non-native users of Auslan and similarly non-native users of English in order to include the additional challenge experienced by such jurors.

5.28 The results of a linguistic analysis of the source text are set out below. This includes a content analysis of the source and back translated texts, the results of the comprehension test, and the post-test interviews.

5.29 A linguistic analysis of the original spoken English source text identified key issues which may have presented challenges to the interpreter. These included:

5.30 An analysis of the English to Auslan interpretation yielded unsurprising results. As per Brennan and Brown’s study of BSL/English interpreters,¹⁰⁴ the interpreter was found to use a literal translation style – using mouthing and/or fingerspelling to borrow terms into English, especially legal concepts. An example can be seen in Figure 1, where the interpreter accompanies the mouthing of the phrase ‘grievous bodily harm’ with fingerspelling.

Figure 1: Example of literal translation

Original spoken English source

5.31 Broadly, to prove murder the Crown must establish two things. The first is that the death of the victim was caused by the acts of the accused, and the second is they must prove that in carrying out these acts the accused person had a particular state of mind, that is, he intended to kill the victim or he intended to cause that victim very serious bodily injury, what is called by the lawyers grievous bodily harm.

Auslan interpretation

For prove murder solicitor must prove two things first that .

FOR PROVE MURDER SOLICITOR MUST PROVE TWO ONE-TWO FIRST PRO-1

person die happen because of that accused person his behaviour second .

PERSON DIE HAPPEN WHY PRO-2 PERSON THEIR BEHAVIOUR// SECOND

Prove what that person behaviour before plan want .

PROVE WHAT? PRO-2 PERSON BEHAVIOUR WILFUL BEFORE PLAN WANT

to kill that person that person plan want kill him .

KILL PRO-1 PRO-1 WELL PRO-2 PERSON THINK PLAN YES WANT KILL PRO-1

or want hurt that person serious bodily harm called .

OR WANT HURT PRO-1 SERIOUS BODY HARM QUOTATION-MARKERS

grievous bodily harm gbh .

G-R-I-E-V-O-U-S BODY H-A-R-M G-B-H WELL

Transcription key

DIE – block word represents use of established Auslan sign

H-A-R-M – represents each fingerspelled letter

him - word above line represents mouthing used to accompany sign or fingerspelled item

PRO-1 - word below line indicates referent sign used to signify pronoun

5.32 The source text was analysed to identify the key legal concepts presented in the summation and the extent these were accurately interpreted. Eight broad legal concepts were identified in the summation and have been summarised as follows:

5.34 In terms of equivalence in content, analysis showed that the interpretation was 87.5% accurate. This was calculated based on the prevalence of 72 key legal concepts in the original source text, of which 63 were found in the back translation text. Figure 2 shows an example of equivalent concepts from the first paragraph of the first excerpt of the summation.

Figure 2: Example of equivalent concepts

Source text version

Let me move from that to the first count, that of manslaughter, and in order to explain the elements of the charge, and what the Crown must prove to establish manslaughter, it may assist if I very briefly, and I hope I do not confuse you, say a word about murder and the contrast between murder and manslaughter. You would appreciate, of course, there is no question in this trial of murder. Broadly, to prove murder the Crown must establish two things. The first is that the death of the victim was caused by the acts of the accused, and the second is they must prove that in carrying out these acts the accused person had a particular state of mind, that is, he intended to kill the victim or he intended to cause that victim very serious bodily injury, what is called by the lawyers grievous bodily harm. (nine legal concepts)

Back translation

Now moving on, I would like to talk about the first count on the indictment - manslaughter. I want to explain what this count entails and what the Crown must prove in order for you to be satisfied of the accused’s guilt. Whilst I think it will be useful to provide you with some information, I’ll direct the jury only very briefly as I don’t want to confuse you. I want to clarify that manslaughter and murder are very different under the law. You of course would understand that in this trial we are not discussing a charge of murder. In regard to proving murder, the Crown would have to prove two elements. Firstly, that a person died as a result of the direct actions of an accused person; but also that the accused had formed an intention to kill that person. So there is a deliberate or intentional act that has caused that death or has caused serious harm to the person. Causing serious harm to the person is known as “grievous bodily harm”. (seven legal concepts)

5.35 The results from the comprehension test show that both hearing and deaf ‘jurors’ misunderstood some concepts in the excerpts presented to them. Of the closed/multiple choice questions, approximately 10.5% of these questions were answered incorrectly by all participants. Similarly, some responses from both deaf and hearing participants were problematic for the open-ended questions. Table 1 summarises the correct responses by participants undertaking the comprehension task.

Table 1: Summary of correct responses grouped by the format of the question

		Correct responses
Questions		Deaf participants (n = 6)	Hearing participants (n = 6)	TOTAL (n =12)
True/ false	Q1	6	6	12
	Q2	6	6	12
	Q3	6	6	12
	Q4	3	5	8
Multiple choice	Q5	3	5	8
	Q6	6	6	12
	Q7	6	5	11
	Q8	6	6	12
Open ended	Q9	6	4	10
	Q10	1	0	1
	Q11	5	6	11
	Q12	0	1	1
TOTAL		54/72 75%	56/72 77.8%	110/144 76.4%

5.36 It can be seen that percentage-wise, there appears to be no significant difference between the number of correct responses from deaf and hearing participants (2.8% difference).

5.37 It is also worth noting that of all the errors in responses to true/false and multiple choice questions, almost half (five of nine errors made) related to Question 5, a multiple choice question which was also the longest of all questions asked.

5.38 A number of similarities can be seen in the responses made by deaf and hearing participants and in the errors seen in Questions 4, 5, 10 and 12 in particular, suggesting that these items may have been challenging regardless of language used or whether the information was received directly or mediated through an interpreter. Table 2 provides the different open-ended responses to Question 9 (the majority of which were correct), and Question 10 (the majority of which were incorrect).

5.39 Interestingly, it can be seen in response to Question 9 that all the deaf participants answered correctly, whereas two of the hearing respondents’ answers were inaccurate or incomplete. For Question 10, the only person who answered one question correctly was a deaf participant. It is also interesting to note that, in Question 9, the deaf participants’ responses are more detailed, as compared to Question 10, where the hearing participants provided fuller answers. This pattern was reversed for Questions 11 and 12, where the hearing participants had a higher number of correct responses.

5.40 In the post-test interviews, all participants commented on the facts of the case being easier to follow, while the legalistic language and repetition resulted in the text being more difficult to comprehend. Figure 3 gives examples of deaf and hearing responses to the question “What was harder or easier to understand?”

Figure 3: What was harder or easier to understand

Deaf responses

I didn’t understand what was involved in court proceedings before. I was surprised about the repetition. I understood the interpreter, yes, but the language used . . . that I knew I had to try to remember. I understood everything the interpreter signed, that was very easy and clear. She was clear about who did what, she created the context, so it was easy to understand who did what. That made it easy to understand. The only difficulty was the legal language like ‘beyond reasonable doubt’. I know it’s legal language. Words like ‘affray’. So you have to remember these things. And they get repeated, over and over. A bit boring!

What really helped me was the use of space, the explanation in Auslan. Before I arrived, I didn’t know the signs for manslaughter, for example, so having the interpreter explain the sign for the word helped me. Without that, it would have gone over my head. What was more difficult was the pace. It was fast so you didn’t have time to sit back and take it in. It started easier and then got more complex.

Hearing responses

The easier parts were the facts because it was quite a simple scenario, other than when the women appeared, because there was not mention of them getting off the train with Mr Kerr so that was really odd. The harder part was the language used in law. And the guy was just reading off and there seemed to be a lot of repeating so you almost get lost in it. It’s almost more understandable if you just say this is this, this is this. Which is probably why the fact part of it is easier for me. When you start to repeat things, it becomes a little muddled.

Coming from a different [non-English speaking] cultural and language background I had to concentrate on it all the time, but I found the judge tried to explain everything very clearly, but the wordy explanations sometimes caused, not confusion, but made it even harder for me to follow what he was trying to say. Because it was all written in legal expressions, if it was written in common newspaper language or more everyday language it might be more clearly understandable, but it is a legal document and, as the judge said, without adding or deleting any information, delivering the message accurately was not very easy for all parties… I could follow especially with the written documents, but without this I would have to focus more to follow what he said.

Participant	Question 9: Explain what witnesses said the two women with Mr Kerr did.	Question 10: Explain the legal rule of ‘causation’
	Correct answer: One or both women physically restrained Mr Kerr. When Mr Kerr broke free they again grabbed him and held him back.	Correct answer: Did the accused’s conduct cause the victim to die? It doesn't have to be the sole or effective cause but did the act or acts of the accused significantly or substantially contribute to the death of the victim.
	Participant responses (correct shown by √ and incorrect shown by X)
Deaf 1	Both women tried to restrain the man, to stop him from fighting with the other man. The man resisted and broke free, going for the other man. Both women again tried to hold the man but he went for the other man. What happened after that I don’t know. (√)	Sorry, I can’t give an answer. (X)
Deaf 2	Witnesses saw the two women get off the train with Mr Kerr. When Mr Kerr became aggressive and approached the other man, the women pulled him back to stop him approaching him. Also, when Mr Harris escaped by jumping onto the tracks, one women yelled ‘look train coming’. That’s what happened. (√)	Causation. Two things, A and B happen. If A happens, then eventually B will happen. If A doesn’t happen, maybe B would never happen. But if A happens B will definitely happen. (X)
Deaf 3	The two women tried to hold Mr Kerr, then he broke free and ran up to the other man. The two women again grabbed him and held onto him. (√)	What the accused made the victim do. (X)
Deaf 4	Witnesses said that the two women tried to restrain the man but he broke free so they grabbed him a second time to stop him approaching the victim. (√)	Sorry, I don’t know.(X)
Deaf 5	When the man got off the train the man started to yell at him. The two women tried to stop him but he continued so the women held him but he was determined and resisted. (√)	Causation. The cause. The man was yelling and that made the other man fearful and run away. This was caused by his yelling at the victim. (X)
Deaf 6	The two women tried to help and keep the men separated, to hold onto the accused. (√)	That means that the death happened because of the behaviour of the accused, causing the victim to die. There was a link. (X)
Hearing 1	They went over to the victim and pinned him down. Held him down for a little while. (√)	It goes back to the cause and effect. Was what the accused did, it’s hard to put into words, was what the accused, did it cause the victim’s action . . . what the accused did is the cause to the victim’s action. And it has to be proved beyond reasonable doubt that one affected the other. (X)
Hearing 2	The two women got off the train with Mr Kerr and as Mr Kerr shouted at Mr Harris they attempted to restrain him and hold him back. (√)	Causation is cause and effect. If there is a consequence of an action and it can be proven that it is a reasonable response to the action of the accused, and the accused is said to have caused that response in the victim. If that victim is of firm mind and sound judgment then that is reasonable cause to say that the action of the accused caused that response in the victim. And it must be continuous. (X)
Hearing 3	They tried to stop Mr Kerr. (X)	It’s like cause and affect. A causes B there is causation there if A’s act or saying causes B, there is a rule of causation in that incident. (X)
Hearing 4	The two women held Mr Kerr back. (√)	I was listening but causation and everything else… Cause of something that has happened but being able to prove that you intended something to happen and you were the reason for why it happened. (X)
Hearing 5	Mmmm nothing. They didn’t do anything. Failed! (Laughs) Looking at my notes but . . . got off the train . . . yelled . . sorry. (X)	Hmm. It’s the actual cause of it? I didn’t write it all down but I understood there the question of cause in a common sense non-technical way. Determining criminal responsibility for serious criminal offences. That’s what I would take it as. (X)
Hearing 6	When Mr Kerr started yelling and saying ‘what the fk are you doing’ or ‘what the fk are you looking at’, witnesses said the two women restrained Mr Kerr. He escaped from their restraint, obviously it didn’t appear it was a very strong restraint, they then went to restrain him again and he allowed himself to remain under constraint by the two women. (√)	From my understanding as described here causation is an unbroken chain of cause and affect. If there is any break in that link between a particular cause and a particular effect, that is not legal causation. There can be several links in that chain but they have to be unbroken and they have to be related to one another. (√)

5.41 Although the interpreters had agreed on the signs to be used with the deaf audience at the time of filming, there were comments from two of the deaf comprehension test participants about the choice of signs, as seen in Figure 4.

Figure 4: Comments about choice of signs

I think I understood things without too much difficulty. The interpreter’s signing was a little unusual, for example signing DOUBT NOTHING. I prefer DOUBT DON’T-HAVE

I think I needed more explanation in Auslan about some of the terms and their meaning. For example, ‘beyond reasonable doubt’. I don’t think the interpretation used was right - DOUBT NOTHING. I think more explanation was needed. The other thing was the sign ‘guilty’. I use this sign GUILTY (small finger tapped on chest) [rather than sign used by interpreter which was repetition of the fingerspelled letter G]. So a few things could have been clearer. But otherwise I followed things easily, especially the description of what happened. But the terms used, that was a bit harder.

5.42 This is typical of the lexical sociolinguistic variation in Auslan, where different signs are used according to regional, dialectical and age differences.¹⁰⁵ This is one of the limitations of using a pre-recorded video test. If the interpreter had been in a courtroom with the two deaf people who made these comments, obviously she would have discussed and agreed to use the signs that they use. Nonetheless, the preference for alternative signs from two deaf participants did not seem to impair their comprehension of the content.

5.43 Those hearing participants who had previously served as jury members were asked to compare their participation in the comprehension test with their prior experience. This question was asked in order to ascertain the realism of the test, thus validating the credibility of the results.¹⁰⁶ Figure 5 outlines some of their responses.

Figure 5: Comparisons with prior juror experience (hearing participants)

It was similar and those points the judge was explaining did happen in the real case I was in. I guess it was harder here just coming into it in the middle and not having time to go and reflect. I did actually take notes in the real case which I didn’t here today and that does help me to work things out in my mind a bit better. I think if I was deciding the fate of someone for the next 10 years I would take notes. Just being on your own, I know you are meant to make up your own mind, but in the jury room I did find there was that talk amongst yourselves and people who had more divergent views did come to see things more from the same point of view. And going back over statements and photographs and exhibits.

Yes definitely [it was an easier experience]. I suppose when you’ve been through the whole three or four days I was a bit over it, whereas I really listened to this. It was just so much clearer.

5.44 Alternatively, hearing participants with no previous jury service were asked to comment on how confident they felt about being a juror after their brief experience in this study. Their responses can be seen in Figure 6.

Figure 6: Thoughts about being a juror (hearing)

Can’t say I’m looking forward to it, but if I do it, it won’t be a problem. It needs to be done and I’m happy to do it… It’s part of modern day society. This is how we’ve structured our law reforms and this is what you have to do, so it’s fine. It’s not something I would choose to avoid doing.

Don’t think I would ever feel confident about being a member of a jury because I feel like it is a lot of responsibility trying to work out what is what if someone is guilty of certain acts. I guess being able to take in all the information, and trying to remember it. I guess you would have it documented as well and I guess you would probably find it a bit disturbing knowing certain things but (not pleasant things) yes, I would do it and I would probably feel all right doing it, but it is a big responsibility trying to work out someone’s fate.

This would have only taken a week say, but that would still have been a week of intense concentration, keeping facts straight, your notes together would have helped, if you’re a juror without access to notes, access to written material, you are just sitting there sucking it all in, getting the feel of the case and, when it came time to deliberate, it would be easy for anybody without notes to forget significant points or to misinterpret those points… I could participate and hopefully come up with the verdict. These types of explanations are very helpful [referring to the written directions]. We might know the word but not know how to elaborate on the complete definition in law, and an understanding of terms and phrases.

5.45 As deaf people cannot currently serve as jurors in NSW, we could not ask them to compare their experiences. However, we did ask them how they would feel about being a juror, in light of this research participation experience. Figure 7 illustrates the comments they made.

Figure 7: Thoughts about being a juror (deaf)

I would love to be involved if I had the opportunity. I would be interested to hear about what happened, the victim and other person’s arguments. I think it would be a good experience. I watch television and think that it would be interesting to find out what really happened.

I’ve been asked to be on a jury twice, but I’ve had to say that I couldn’t because I am deaf. I think it would be interesting to be involved. I know it can be boring, heavy work, but I know it is the duty of the community to judge their peers. In this situation, I felt I could participate but there was one thing about the three charges: it was hard for me to see, if we said not guilty to the first charge, how we would then decide on the remaining two charges. That wasn’t really clear to me - the difference between charge 2 and 3. I know that it may be because it was the middle of the case – maybe there was more in depth discussion that had been held about the difference between charges 2 and 3 or if they made a decision about not being guilty on the first charge then we would look more in depth at charges 2 or 3.

Yes, because if I could, I would. I’ve never done it before so I would want to.

Yes, because we need to be equal with the hearing community. Deaf people are excluded from so many things. I got a letter asking me to go for jury duty and I would have loved to, but I knew that because I am deaf I had to sign the form and say that I couldn’t attend because I am deaf. I feel I want to be involved because it is right for society.

At first no, but this experience was interesting. I felt scared before that. I didn’t want to do it, but having watched this I thought I could be involved. But maybe not a murder trial – that would be intimidating, but something more straightforward… One thing is that deaf people vary in their skill and their education. That worries me a bit. We need to be careful about saying if someone is guilty or innocent. They could be sent to jail for something they haven’t done. But then, that’s the same for hearing people.

I think it would be interesting and I would want to be seen as equal. With an interpreter, I would be fine. I don’t see any issues. And if the opportunity arises in the future, I might try to take it.

5.46 Although anecdotally it seems that members of the general public attempt to avoid jury duty, it is worthy of note that the deaf people involved in this study expressed the desire to carry out their civic duty, and participate in the judicial system on an equal footing with hearing people. The final question asked of the deaf participants was: ‘In order to have equal access, what would you need as a deaf juror (other than an interpreter)?’ Their thoughts are revealed in Figure 8.

Figure 8: Access needs for deaf jurors

I think you would need an interpreter like [Interpreter name]. A level 2 [NAATI paraprofessional] interpreter wouldn’t be skilled enough. They would need to be level 3 [NAATI professional], fluent and experienced in court work. Before I came here today, I was thinking that the juror and the interpreter would need to have a good relationship. Without a good relationship, the process wouldn’t work so well.

I don’t know if it is usual for jurors to have access to notes every day, to later consider what was said. That would be worth having. I don’t think I would need a video (of the interpreter). I think that is all. Access to what the [rest of the] jury has.

An interpreter, as you said, and papers that I could read before or through the trial, especially if the interpreter wasn’t clear. That would be useful.

Yes, an interpreter, but also I need to know how the court runs everything. One way would be for notes that I could take home to read – to make sure that I understand before I go in on the first day. Sometimes at the start, on the first day, there is so much to understand, so knowing why we are there, the parties, what happened, that would be good to know in advance.

First, education and an explanation of basic terminology. Second, basic awareness of how the court works and how we need to behave. For example, should we allow our emotions to be involved or be detached? We need to understand how to separate out issues and what to set aside, like emotions. I think it is important and that will build our confidence and help us to make the right decision.

5.47 In sum, results show that both the deaf and hearing ‘jurors’ equally misunderstood some terms and concepts. Nonetheless, all the findings show that legal facts and concepts can be conveyed in Auslan effectively enough for deaf people to access court proceedings and to understand the content of legal texts to the same extent as hearing people. The results also show that deaf people are willing to serve as jurors, and are confident that they can access the necessary information through interpreters (with extra support from written notes) in order to make an informed decision as a juror.

106. One of the hearing participants had prior experience in court, but as a Korean-English interpreter, not a jury member, so this was discounted.

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