BACKGROUND TO THE REFERENCE
1.1 In March 2002 the Commission received a reference from the Attorney General, the Hon R J Debus MP to inquire into and report on whether people who are deaf or blind or have significant sight or hearing loss should be able to serve as jurors in New South Wales.
1.2 The Attorney General’s Department’s Disability Strategic Plan Internal Steering Committee had explored the issue thoroughly before a reference was given to the New South Wales Law Reform Commission for inquiry and report. The Commission established a reference group to provide assistance to the review.
1.3 In mid-2002 the Commission wrote to relevant organisations and individuals, as well as issuing a media release, calling for preliminary submissions. Fifteen preliminary submissions were received. An introductory meeting of the Division was convened in December, and substantial work on the reference commenced in 2003.
JURY SERVICE, CITIZENSHIP AND EQUALITY
1.4 The participation in juries by representatives of the community is a fundamental element of the administration of justice, and thus serves the interests of the State. Jury service, like voting, is a right and obligation of citizenship.1 The preamble to the Australian Citizenship Act 1948 (Cth) recognises that:
Australian citizenship represents formal membership of the community of the Commonwealth of Australia; and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity…
1.5 “Citizenship” is a legal relationship between the individual and the State, but it is also more than this, as hinted at in the preamble’s reference to “a common bond” and the notion of unity. It has been said to “describe a sense of service to community in everyday life” and to “encompass ideals of civic life that can be seen as the public core values in a society whose people follow many different beliefs and ways of life [and] are of many different national and ethnic origins.”2 These extra-legal descriptions of citizenship all contain the idea of connection between citizens for mutual benefit. Thus the citizen is an individual who not only has a legal status in respect of the State, but also shares in a community of such individuals.
1.6 One American commentator notes that the obligation of jury service, again like voting, “is a significant form of participation in our democratic and judicial systems; it is a badge of self-esteem, a mark of status and full citizenship”.3 Although sometimes thought of as a nuisance by those on whom the duty falls “jury service is most treasured by those citizenswho have to challenge the system in order to sit in the jury box”.4 The US Supreme Court noted “with the exception of voting, for most citizens the honor and privilege of jury duty is their most significant opportunity to participate in the democratic process”.5 It is conceivable that one person’s “liability” for jury service is another’s powerful symbol of acceptance and inclusion.
1.7 In New South Wales non-citizens are ineligible for jury duty. People who are blind or deaf, while not legislatively barred from participating in jury service are, nevertheless, prevented from so doing by policy determinations. This, it appears, is on the ground that they are ineligible under the Jury Act 1977 (NSW) “because of … disability, to discharge the duties of a juror”.6 The view of People With Disabilities (“PWD”), a peak disability rights and advocacy organisation in this State, is that the exclusion of people who are blind or deaf from jury service amounts to a denial of citizenship.7
1.8 The denial of jury service to people who are blind or deaf is also an abuse of their human rights, according to PWD.8 Prohibiting such persons from serving as jurors on the grounds of their disability is discriminatory, and contrary to notions of equality. In 1993 the United Nations adopted the Standard Rules on the Equalisation of Opportunities for Persons with Disabilities.9 Australia took an active role in their development and in promoting their adoption by other member countries.10 They are not legally binding, but urge members to achieve equity in all areas of life for people with disabilities. The purpose of the Rules is to ensure that all persons with disabilities:
as members of their societies, may exercise the same rights and obligations as others. In all societies of the world there are still obstacles preventing persons with disabilities from exercising their rights and freedoms and making it difficult for them to participate fully in the activities of their societies. It is the responsibility of States to take appropriate action to remove such obstacles.11
1.9 The principle of equal rights implies that the needs of each and every individual be made the basis for the planning of society. Moreover, as people with disabilities achieve equal rights:
they should also have equal obligations. As those rights are being achieved, societies should raise their expectations of persons with disabilities. As part of the process of equal opportunities, provision should be made to assist persons with disabilities to assume their full responsibility as members of society.12
REQUIREMENT OF A FAIR TRIAL
1.10 There is an overriding public interest in the due and proper administration of justice. Apart from defamation trials the overwhelming use of juries is in criminal matters. In a criminal trial both the defence and prosecution must have full opportunity to present their respective cases and test the evidence adduced by the other side. Each has the right to expect that a jury will be able adequately to understand and assess that evidence. The crucial question is, therefore, whether significant hearing or sight impairment prevents or considerably hinders an individual juror from doing so. Stating this another way, is the inclusion of a blind or deaf person on a jury likely to affect adversely the jury’s consideration of the issues entrusted to it for determination? If it does, then the accused may have been denied a fair trial.
1.11 The right of an accused to a fair trial is fundamental to our criminal justice system, although, strictly speaking it should be characterised as a right not to be tried unfairly.13 The right is manifested in rules of law and practice governing trial process,14 and in the Court’s power to regulate proceedings.15 With respect to jury selection:
[e]very court of justice has an inherent power – a duty as well as a power – to take care that the machinery of justice is not abused in such a manner as to prevent justice being done, or allow a scandal to take place; and it would be a great scandal if a juryman, who was incapable of performing any of the duties of a juryman or understanding the nature of the evidence, were allowed to enter the jury-box and confer with the other jurymen in the consideration of issues they were all bound to try.16
1.12 Present policy is based on the assumption that people who are blind or deaf are incapable of properly performing the duties of a juror. This leads to the practical conclusion that, in order to prevent an unjust trial, they must be barred from the jury-box. Several of the preliminary submissions received agreed, sometimes regretfully, with this general proposition.17 Is it correct? The authors of much of the recent literature do not believe so. It is, therefore, necessary to consider the tasks incumbent on a jury,18 as well as the nature of visual and hearing impairment, including the technological and other means available to assist with such tasks.
DEAF AND HEARING IMPAIRED
1.13 It is important to understand that the terms “deaf” and “hearing impaired” are not interchangeable. “Deafness” is an inability to hear, whereas “hearing impairment” refers to a partial loss of hearing. The distinction is important for our purposes, as the terms of reference mention people who are “profoundly deaf” or who have a significant hearing impairment. Milder hearing loss is already accommodated in some courthouses through the provision of infra-red assistive hearing devices (sometimes referred to as a “hearing loop”).19
1.14 In 1993 the Australian Bureau of Statistics reported that approximately 36,000 people nationwide had total hearing loss.20 The NSW Association of the Deaf is the State peak body representing those people who identify as belonging to the Deaf community. The Association, together with the Deaf Society of NSW, provided the Commission with a preliminary submission pointing out that the Deaf community regards itself as just that, a community, and one that “identifies itself through the use of a common language, Australian Sign Language (Auslan), a shared culture and a strong tradition of social, sporting and political networks”.21 Furthermore, while the general community’s perception of deaf people is associated with disability, “the Deaf community views itself as a language group”.22 It should be noted that not all people with hearing loss use sign language. For example, the organisation Self Help for Hard of Hearing People (“SHHH”), who also furnished us with a preliminary submission, serves hearing-impaired people whose preferred mode of communication is the spoken word.23
1.15 In its review the Commission is, therefore, concerned with those people whose impairment is of such a degree that they are unable to use their hearing or a hearing aid to communicate, and instead rely on their vision. Examples of the latter are sign language, lip reading and writing.
BLIND AND VISION IMPAIRED
1.16 The terms of reference also mention blind people and people with significant sight impairment. Blindness is the loss of vision, but even blind people may be able to perceive light or shadow, while others see nothing at all. Vision impairment denotes a partial loss of vision that is not corrected by glasses. Vision impairments may affect individuals in different ways. For example, some people may see light but are unable to recognise an object or a person’s face, or may see during the day but are blind at night. There are also different ways in which documents are seen, depending on the viewer’s particular condition. For the purposes of this review, the Commission is concerned with those people who, due to blindness or significant vision impairment, have no means by which to recognise a face or to read printed or handwritten documents.
1.17 The Australian Bureau of Statistics reported in 1993 that, nationally, 278,700 people reported a sight disability due to visual impairment, comprising an estimated 17,000 persons having total loss of sight, and a further 261,700 reporting partial loss.24
STRUCTURE OF THIS PAPER
1.18 In the following chapter we discuss various aspects of the jury system, including empanelment procedure and the features said to be embodied in the institution known as trial by jury. Chapter 3 explores the impact that the presence of deaf or blind jurors might have on the criminal justice system, for example in comprehending evidence presented at trial, in the use of interpreters, and regarding the rules about challenging prospective jurors. While Chapter 3 concentrates on legal issues, Chapter 4 examines the position of deaf or blind people wishing to serve as jurors in terms of anti-discrimination legislation and policy. Chapter 5 looks at the legislative position in jurisdictions outside New South Wales. In the final chapter we pose questions relating to the possible reform of the law.
SUBMISSIONS
1.19 It is hoped that the discussion contained in this paper will stimulate informed comment from individuals or groups with an interest in the subject matter of this inquiry. The Commission is very interested in receiving such comment and opinion on the matters herein or any other relevant issue. You are invited to make a submission, details of which appear at page vii. It is envisaged that a Report will be published in the latter half of 2004.
Footnotes
* The Commission wishes to thank Lynn Anamourlis, of the Office of the Sheriff of NSW, for her assistance in this inquiry.
1. Parliamentary Electorates and Elections Act 1912 (NSW) s 20, 34; Jury Act 1977 (NSW) s 5.
2. Australian Citizenship Council, Australian Citizenship for a New Century (The Council, Canberra, 2000) at 6-7.
3. M A Lynch, “The Application of Equal Protection to Prospective Jurors With Disabilities: Will Batson Cover Disability-Based Strikes?” (1993) 57 Albany Law Review 289 at note 53.
4. Lynch at 297.
5. Powers v Ohio 499 US 400 (1991) at 407.
6. Jury Act 1977 (NSW) s 6(b), Sch 2 item 12.
7. People With Disabilities, Submission at 1, 3.
8. People With Disabilities, Submission at 1, 3-5.
9. United Nations General Assembly resolution 48/96 of 20 December 1993 «www.un.org/documents/ga/res/48/a48r096.htm» (as at 15 December 2003).
10. Commonwealth Disability Strategy, “Fair treatment for all Australians – the Basis of Our Laws About Disability Discrimination” «www.facs.gov.au/ disability/cds/fs/fs_01.htm» (as at 15 December 2003).
11. United Nations, General Assembly, resolution 48/96, Annex, Introduction at para 15.
12. United Nations, General Assembly, resolution 48/96, Annex, Introduction at para 25, 27.
13. Dietrich v The Queen (1992) 177 CLR 292 at 299. The Commission has recently discussed the notion of a fair trial in the context of cross-examination of complainants by unrepresented accused in sexual offence proceedings: see New South Wales Law Reform Commission, Questioning of Complainants by Unrepresented Accused in Sexual Offence Trials (Report 101, 2003) at para 3.23-3.35.
14. Dietrich v The Queen (1992) 177 CLR 292 at 299-300.
15. Barton v The Queen (1980) 147 CLR 75 at 96-97; Jago v District Court of New South Wales (1989) 168 CLR 23 at 45-47.
16. R v Burns (1883) 9 VLR 191 at 193; see also Mansell v The Queen (1857) 8 El & Bl 54; 120 ER 20 and R v Searle [1993] 2 VR 367.
17. Cowdery, Submission at 1; Far West Law Society, Submission at 1; Legal Aid Commission of NSW, Submission at 1; New South Wales Police Service, Submission at 1-2; Scott, Submission at 1; Wood, Submission at 1. Some of these did indicate that the views they expressed were preliminary, and that their authors would give further consideration following the release of this Discussion Paper.
18. See ch 2.
19. New South Wales, Attorney General’s Department, “Hearing Loops for People with Hearing Impairments” «www.lawlink.nsw.gov.au/lawlink.nsf/pages/disability _hearloop_index» (as at 8 October 2003).
20. Australian Bureau of Statistics, Disability, Ageing and Carers Australia, 1993: Hearing Impairment (ABS, Canberra, 1993) at 1.
21. Deaf Society of NSW and NSW Association of the Deaf, Submission at 1.
22. Deaf Society of NSW and NSW Association of the Deaf, Submission at 3.
23. University of Sydney, Nursing Research Centre for Adaptation in Health and Illness, “SHHH” «www.usyd.edu.au/rcahi/Links/SHHH.html» (as at 14 October 2003).
24. Australian Bureau of Statistics, Disability, Ageing and Carers Australia, 1993: Visual Impairment (ABS, Canberra, 1993) at 1.
