LEGISLATION
The Jury Act 1977 (NSW)
4.1 Section 14 of the Jury Act 1977 (NSW) mandates the removal from the supplementary jury roll of the names of persons who are disqualified or ineligible to serve as jurors. The section also gives the Sheriff discretion to determine eligibility:
4.2 In practice, with the possible exception of item 11 of Schedule 2 (“persons who do not read or understand English”), discretion plays no part with regard to any category of disqualification, ineligibility or exemption contained within the first three schedules to the Act, other than that pertaining to people with sickness or disability. If a doubt arises as to whether a prospective juror will be able to discharge the requisite duties, either because of insufficient English language proficiency or because of some forms of impairment or illness, the Sheriff’s office will attempt to ascertain whether the prospective juror meets the requirements of the position. However, as far as blind or deaf people are concerned, the current policy is automatic exclusion from jury service.
Anti-Discrimination Act 1977 (NSW)
4.3 Deafness and blindness constitute disabilities for the purposes of the Anti-Discrimination Act 1977 (NSW) (“ADA”).1 Disallowing deaf or blind persons from serving as jurors falls within discriminatory behaviour on the basis of disability, as defined in s 49B:
(1) A person (“the perpetrator”) discriminates against another person (“the aggrieved person”) on the ground of disability if, on the ground of the aggrieved person’s disability … , the perpetrator:
(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability …
4.4 This, however, does not make it unlawful. Section 54(1)(a) permits discriminatory behaviour where this is necessary in order to comply with a requirement of another statute.2 As already stated, once the Sheriff has determined, as he or she is entitled to do under s 14 of the Jury Act 1977 (NSW), that a blind or deaf person is ineligible to serve as a juror, the deletion of that person’s name from the roll is mandatory. It would seem, therefore, that by virtue of s 54, the Sheriff’s act in deleting from the supplementary jury roll the names of blind and deaf persons, is not inconsistent with the ADA. This would obviate the need to discuss how a blind or deaf person’s desire to serve as a juror would be affected by Divisions 2 and 3 of Part 4A of the ADA, which specify the areas of the Act’s application such as employment and the provision of goods and services.
4.5 A different interpretation is suggested by Chris Puplick, the former President of the Anti-Discrimination Board of New South Wales. He states that the Jury Act 1977 “does not necessitate exclusion of people who are blind or deaf” (his emphasis). If there are suitable accommodations that can be made “there is no reason to conclude that a person who is blind or deaf is unable to discharge his or her duties as a juror”. He asserts that guidelines developed by the Sheriff’s Office, not having statutory force, do not attract the protection of s 54. 3
Disability Discrimination Act 1992 (Cth)
4.6 Section 5(1) of the Disability Discrimination Act 1992 (Cth) (hereinafter “DDA”) defines disability discrimination in essentially the same terms as s 49B of the ADA. Section 15 of the DDA makes it unlawful to discriminate against a person on the grounds of disability in the area of employment. While it is unlikely that this provision would have any application to the issue of jury service, the terms of s 12 of the Act render any detailed consideration unnecessary by limiting the scope of s 15 to Commonwealth employees.4
4.7 Section 24 of the DDA prohibits discrimination in relation to the provision of goods and services. The Human Rights and Equal Opportunity Commission has held that “service” includes “providing the administration and management to enable eligible persons to serve on a jury”.5 The case concerned wheelchair access to a courtroom for a person summoned for jury service. There was no question as to whether the complainant was eligible to serve as a juror, but rather, whether being eligible, she was treated less favourably than other eligible persons without her disability, by the respondent’s refusal to provide a service. This is distinguishable from the situation of those potential jurors who, due to blindness or deafness, are deemed ineligible by the Sheriff. While it might be argued that the judgment that no blind or deaf person is capable of discharging the duties of a juror is flawed, the fact that the Sheriff has used his or her discretion to arrive at this decision cannot be regarded as having failed to provide a service, thereby treating less favourably a person with a disability.
POLICY CONSIDERATIONS
4.8 Lord Justice Auld, in the report referred to in the previous chapter,6 supported people with disabilities serving as jurors “not because there is a general right, as distinct from duty, to undertake jury service or under any anti-discrimination legislation, but because such inclusiveness is a mark of a modern, civilised, society”.7 In Australia, the broad policy, if not the actual provisions, of the anti-discrimination legislation referred to above, accords with the aspirations of those blind or deaf persons desiring, but denied, the opportunity to perform jury service. The ADA is “an Act … to promote equality of opportunity between all persons”. The DDA, lists amongst its objects:
- to ensure, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community; and
- to promote recognition and acceptance within the community of the principle that persons with disabilities have the same fundamental rights as the rest of the community. 8
4.9 In introducing the Disability Discrimination Bill to Federal Parliament, Mr Howe, then Minister for Health, Housing and Community Services, stated:
Our vision is a fairer Australia where people with disabilities are regarded as equals, with the same rights as all other citizens, with recourse to systems that redress any infringements of their rights; where people with disabilities can participate in the life of the community in which they live, to the degree that they wish; … where difference is accepted, and where public instrumentalities, communities and individuals act to ensure that society accommodates such difference. Only then will we be able to say that justice has been achieved. 9
4.10 Jury duty is, arguably, an area where there is still some way to go in translating these aspirations into practice. While “reasonable adjustments”10 have been made in cases of persons with some impairment to hearing or sight, it has been assumed that such adjustments are not required in the case of profoundly blind or deaf persons, presumed to be incompetent to act as jurors. The general absence of discussion regarding the possibility for adjustments reflects the current legal practice preventing blind or deaf persons from undertaking jury service.
4.11 The accused’s right to a fair trial has, rightly, been afforded pre-eminence. There is, however, little sign of any consideration of the possibility that this right may not be compromised if blind or deaf people serve as jurors. In the United States there has been a gradual shift of emphasis from the defendant’s rights to those of others in the community. Andrew Weis11 identifies three phases, and while his analysis is within the context of the discriminatory use of the peremptory challenge and constitutional guarantees of equal protection, it does serve to highlight the fact that the US Supreme Court has not been content to sacrifice the rights of jurors totally to the pre-eminent rights of the accused. Initially, according to Weis, the US Supreme Court upheld the accused’s right to a jury from which members of the accused’s race had not been deliberately excluded. In later decisions the Court began to emphasise the excluded jurors’ right to be free from discrimination, as well as the community’s right to a legitimate judicial system. More recently the rights of the excluded jurors have been given more prominence. The Court held in Georgia v McCollum12 that a criminal defendant was prohibited by the Constitution from exercising a peremptory challenge in a racially discriminatory manner.
4.12 The notion of “equality of opportunity” in the present context need not be restricted to the question of whether a deaf or blind person should be eligible for jury duty, but also raises the broader issue of whether such a person has been subjected to the same selection process. Members of the public with a disability who are summoned for jury service are invited by the Sheriff’s Office to make contact in order to discuss the situation, and see if the disability can be reasonably accommodated.13 This approach suggests that people with disabilities who wish to explore the possibility of serving as jurors can have their particular situation assessed. Those with a significant hearing or sight impairment are not treated equally, in the sense that they are subject to a policy of blanket exclusion, and not assessed, as individuals, on a case-by-case basis. In the light of the American experience, it is necessary to reconsider the argument that, solely by reason of their impairment, deaf or blind people are incapable of performing the necessary duties of jury service.
4.13 People With Disabilities (“PWD”), a peak disability rights and advocacy organisation, urges the Commission to proceed from a social model of disability, according to which “the fundamental issue” is not the individual’s limitations “but, rather, a hostile and non-adaptive society”:
From a social model perspective, people who are blind or deaf are not prevented from participation in jury service as a result of their impairments, but as a result of a failure of the legal system to adapt to their participation requirements.14
4.14 Such views challenge automatic exclusion. Few people would disagree with the policy objectives of the ADA and DDA. The aspirations they embody can, nevertheless, be undermined in the jury context by regarding people with disabilities as fortunate in not being required to perform jury service, and as favoured over those citizens who find the obligation a nuisance. This, again, depends on one’s perspective. A civic duty may be a burden to a person obliged to perform it, while treasured by the person who must fight to undertake it.15 One commentator has noted that, in addition to practical barriers to jury service faced by people with disabilities, such as lack of access to courtrooms or sign interpreters, they may also encounter “humanistic” barriers “such as the court officer who ‘takes care’ of the disabled person by relieving her of jury duty”.16 The judgment in an American case concerning a challenge to a deaf juror contained the following statement:
The deaf are not poor creatures to be patronized by us, congratulated on their individual efforts to overcome their handicaps and summarily brushed aside. Like members of any other cognizable group, the deaf are a part of our community and must be considered, evaluated, and finally either accepted or rejected for service as individuals just as any other citizen.17
REASONABLE ADJUSTMENTS
4.15 Reference has been made elsewhere in this paper to “reasonable adjustments”, or “reasonable accommodations” as they are referred to in the United States. These are changes or modifications, for example within an environment or to a job, that make it possible for an otherwise qualified person with a disability to participate in a process or perform required tasks.18 The New South Wales Attorney General’s Department, which is responsible for administering the State’s court system, has developed a Disability Strategic Plan (“DSP”) in order to meet its obligations under State and Federal anti-discrimination legislation. It is arguable that this legislation does not pertain to blind or deaf people who are summoned for jury service.19 Indeed, the DSP’s chief concern is with the non-discriminatory delivery of services to clients, and the enjoyment of a disability-friendly workplace by departmental employees (and jurors fall into neither of these two categories). Nevertheless, more generally the Department states that one of its objectives is to incorporate disability principles into the Department’s policies and practices. 20
4.16 Various accommodations are already made in relation to facilitating jury duty.21 Some courthouses are wheelchair-accessible, or equipped with hearing aid loops. Travel allowances are available for general or wheelchair-accessible taxis, and the Sheriff’s Office undertakes to be flexible regarding such matters as arranging suitable parking facilities and reallocating a prospective juror to a courthouse better equipped to meet that person’s needs. Auslan interpreters are available in certain situations, although not, at present, for use by jurors. Whether it would be unreasonable, as to either expense or inconvenience, to make available a greater range of accommodations in order to open up jury duty to a larger pool of potential jurors with significant sight or hearing loss is a matter which the Commission is exploring in its work on this review.
4.17 In the US, the court in Caldwell22 accommodated a juror with a detached retina in one eye and limited vision in the other. This was done by taking measures such as moving her to a seat in the jury box closer to the witness box, reading documents into the evidence, and providing her with an enlarged print version of the transcript. In Galloway,23 a prospective juror who was blind had been barred from jury service, no reasonable accommodations being offered. The Court, in granting his motion for judgment against the court that had initially excluded him, suggested that accommodations that might have been offered included reading aloud the documentary evidence and describing the physical evidence. The Court noted that the Library of Congress uses a device called the Kurzweil Reading Machine, which translates printed material into audio. “Audio describers” – individuals trained to describe physical movements, dress and physical settings for the blind – could also be employed. In conclusion, the Court stated that it took no position on the reasonableness of any particular accommodation “other than to note that solutions are as limitless as a willing imagination can conceive”.24
4.18 PWD states the view that many jurors struggle to retain comprehension of all the evidence with which they are presented and would benefit from having access to a transcript.25 It is already permissible for jurors to be furnished with transcripts if the judge agrees.26 Real-time captioning, in its versatility, could prove very useful to everyone concerned. In a court situation, where proceedings are already being transcribed by a court reporter, the captions can be displayed on a television or computer screen and read by a juror who is deaf, so long as he or she meets the requirement of being able to read and understand English. Created in an electronic format, this could then be easily converted to Braille for a blind juror to refer to later, if necessary. The service is cost effective because the captions are recorded to become the written transcript, available to the judge, lawyers and any other relevant party. In New York real-time technology was first used to assist a deaf juror in 1990, and its use is widespread in the United States.27
DEAF AND BLIND PEOPLE IN THE LEGAL SYSTEM
4.19 A number of deaf or blind people operate effectively in modern legal systems. For example, there are a small number of judicial officers, appointed to their posts despite a significant sight impairment. In Galloway v Superior Court of the District of Columbia28 the Court stated:
in the United States, there are several active judges who are blind. Indeed, it is highly persuasive that Judge David Norman, a blind person, served as a judge on the Superior Court of the District of Columbia and presided over numerous trials where he was the sole trier of fact and had to assess the credibility of the witnesses before him and evaluate the documentation and physical evidence. Defendants have never claimed that “those trials were invalid because [Judge Norman] was blind.” It is thus illogical to suggest that all blind persons are unqualified to sit on a jury when a blind judge in the same Superior Court successfully fulfilled those very duties a blind juror would have to discharge. No distinction can be drawn between a blind judge’s ability to make factual findings and the abilities of a blind juror.
The Court went on to note:
The well-proven capabilities of blind lawyers, although not precisely parallel to those of every blind juror, are nonetheless persuasive. Blind lawyers have tried both civil and criminal cases before this Court and in doing so, they have utilised the same skills that a blind juror would need – they evaluate the credibility of witnesses and the content of physical and documentary evidence. 29
4.20 In Jones v New York City Transit Authority the Court held that, due to the facts of the particular case, a blind person was not competent to serve as a juror. However, the Court also stated that blindness did not disable a person to be a lawyer or judge, and it would be “contradictory to use the defect as the sole basis for rejecting a juror, especially since the juror does not act alone but in conjunction with the other persons on the jury to reach a joint determination”.30
4.21 In the United Kingdom, in the eighteenth century, Sir John Fielding, brother of the novelist Henry, was appointed to the magistracy despite his blindness. It was said he knew more than three thousand London thieves by their voices.31 More recent appointments to judicial office of blind persons in the United Kingdom have included a deputy master of the High Court,32 an assistant recorder of a criminal court (“seen as the first rung on the judicial ladder”),33 and an immigration adjudicator.34 In addition to several blind people serving as members of various tribunals, nine blind magistrates were appointed in 2001, following a three year pilot scheme initiated by the Lord Chancellor.35
4.22 Of course a judge is in an easier position than a juror since he or she has control of the court and is thus able to deal, so far as is possible, with any needs arising from his or her blindness. Likewise, a lawyer has greater control of his or her environment than a juror.
Footnotes
1. Anti-Discrimination Act 1977 (NSW) s 4.
2. The Commission has noted that s 54 was intended as a temporary measure, and has recommended its repeal: New South Wales Law Reform Commission, Review of the Anti-Discrimination Act 1977 (NSW) (Report 92, 1999) at para 6.9, 6.34 and Recommendation 43.
3. Puplick, Submission at 4.
4. Disability Discrimination Act 1992 (Cth) s 12(1), (4), (5).
5. Druett v New South Wales (HR&EOC, No H99/6, Street SC, 17 April 2000, unreported).
6. See ch 3 note 53.
7. R E Auld, Review of the Criminal Courts of England and Wales: Report (The Chancellor’s Department, London, 2001) at 153.
8. Disability Discrimination Act 1992 (Cth) s 3(b), (c).
9. Australia, Parliamentary Debates (Hansard) House of Representatives, 26 May 1992 at 2755.
10. See para 4.15-4.18 below.
11. A Weis, “Peremptory Challenges: the Last Barrier to Jury Service for People With Disabilities” (1997) 33 Willamette Law Review 1 at 8-9.
12. Georgia v McCollum 505 US 42 (1992).
13. New South Wales, Office of the Sheriff, “People with Disabilities and Jury Duty” «www.agd.nsw.gov.au/ots.nsf/pages/jury16» (as at 15 September 2003).
14. People With Disabilities, Submission at 2.
15. 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 297.
16. Lynch at 299.
17. People v Guzman 125 Misc 2d 457 (1984) at 474 (NY Sup Ct).
18. See, eg, US Department of Justice, “Americans With Disabilities Act Questions and Answers” «www.usdoj.gov/crt/ada/employmt.htm» (as at 5 November 2003).
19. See para 4.3-4.7.
20. New South Wales, Attorney General’s Department, “Disability Strategic Plan 2003-2005” «www.lawlink.nsw.gov.au/agd.nsf/pages/dap» (as at 5 November 2003).
21. New South Wales, Attorney General’s Department, Office of the Sheriff, “People with Disabilities and Jury Duty” «www.lawlink.nsw.gov.au/ots.nsf/pages/jury16» (as at 5 November 2003).
22. People v Caldwell 603 NYS 2d 713 (1993) at 714.
23. Galloway v Superior Court of the District of Columbia 816 F Supp 12 (1993).
24. Galloway v Superior Court of the District of Columbia 816 F Supp 12 (1993) at 18 n 11.
25. People With Disabilities, Submission at 2.
26. Advice from Sheriff’s Office by email dated 24 June 2003.
27. D Wise, “Courtroom Open For Real-Time Transcription” New York Law Journal (27 June 1996) at 1.
28. Galloway v Superior Court of the District of Columbia 816 F Supp 12 (1993) at 17.
29. Galloway v Superior Court of the District of Columbia 816 F Supp 12 (1993) at 17 n 8.
30. Jones v New York City Transit Authority 126 Misc 2d 585 (1984) at 589.
31. National Portrait Gallery, Search the Collection, “Sir John Fielding” «www.npg.org.uk/live/search/portrait.asp?LinkID=mp01570&rNo=1&role=sit» (as at 30 October 2002).
32. In the News section, “Blind Justice” (1991) 141 (February 8) New Law Journal at 155.
33. F Gibb, “Crime Court Debut For Blind Judge” Times (21 March 2000) in Features Section.
34. F Gibb, “Crime Court Debut For Blind Judge” Times (21 March 2000) in Features Section.
35. K Foster, “Blind Justice Sets Moral Precedent” The Scotsman (27 June 2001) at 7; United Kingdom, Lord Chancellor’s Department, “Seven Advisory Committees Seeking Blind Magistrates” «www.newsrelease-archive.net/coi/depts/GLC/ coi4342d.ok» (as at 27 October 2003).
