6.1 It is a fundamental principle of Australian mores that no group of its citizens should be excluded from the duties or rights attaching to citizenship except for compelling and acceptable reasons. Exclusion of any citizen from jury service should occur only in circumstances where that person is not capable of fulfilling the task. This consideration militates against the current practice that maintains a blanket exclusion on blind or deaf people serving on juries. The apparently positive experience of some United States jurisdictions in utilising blind or deaf jurors supports this view — even allowing for the differing legal, social and economic conditions that exist in the United States, especially by reason of explicit constitutional norms and the pervasive use of juries in criminal and civil proceedings. On the other hand, there is much to commend the view that jurors need to have available all their faculties of communication for the purpose of evaluating evidence which is often a difficult task. It is reasonable to argue that, although blind or deaf persons may not, in the particular case, have greater difficulty in doing this than other jurors, the risk that the quality of justice might be adversely affected justifies retention of the present exclusion. In the case of deaf persons, the requirement of a signer, not only in court but also in the jury room, supports this conclusion.
QUESTION 1
If reasonable accommodation can be made, should blind or deaf jurors who are able to discharge the duties of a juror in the circumstances of the particular case be liable for jury service?
ELIGIBILITY
6.2 If blind or deaf jurors (as defined in paras 1.15 and 1.16) are not automatically excluded from jury service, the question arises whether item 12 of Schedule 2 of the Jury Act 1977 (NSW)1 would require qualification and, if so, how. A further question is whether there is also a need for the insertion into Schedule 3 (persons who may claim exemption as of right) of a new item giving people with disabilities the option to be excused from jury duty, notwithstanding the fact that they might otherwise be eligible.
QUESTION 2
If blind or deaf people are required to serve on juries, how should Schedule 2 item 12 of the Jury Act 1977 (NSW) be amended?
QUESTION 3
If blind or deaf people are required to serve on juries, should they have the option to be excused from jury duty on account of their blindness or deafness?
6.3 At present determining the eligibility of prospective jurors who are blind or deaf is at the discretion of the Sheriff. The exercise of that discretion does not, and cannot, take account of factors weighing on the suitability of individual blind or deaf persons to serve as jurors, for example the type of evidence to be adduced at trial. It seems preferable, therefore, to leave the question of whether blind or deaf persons are likely to be able to discharge the duties of a juror to the determination of the trial judge. It is at this point that counsel for either party would have the opportunity to state arguments objecting to the potential inclusion of a juror who is believed to lack the ability to accomplish the task. Such applications are unlikely to arise frequently, and should not cause any appreciable delay in either individual proceedings or to the system as a whole.
QUESTION 4
Should the trial judge decide whether or not a blind or deaf person is capable of discharging the duties of a juror in the circumstances of the particular case?
Challenging jurors
6.3 In chapter 3 we discussed the nature of the peremptory challenge, and the obstacle it poses to reform in this area. The consideration of any general abolition of peremptory challenges (which has occurred in the United Kingdom) is beyond the scope of the Commission’s reference. Nor, because of the discrimination that such a recommendation would itself create, would the Commission wish to recommend that peremptory challenges should not be permissible against blind or deaf persons but freely allowable against anyone else. This would allow full effect to be given to all prejudices (for example, racial prejudices) except those associated with blindness or deafness.
QUESTION 5
Ought the availability of peremptory challenges to be the subject of further review?
REASONABLE ADJUSTMENTS
6.5 For blind or deaf people to serve as jurors the range of services and assistive technologies currently available, and their cost implications, would need to be identified. Judicial officers and staff of the courts and the Sheriff’s Office would require information about them and training in their use. Staff would also be required to respond to inquiries from the public and give advice about the range of services available.
QUESTION 6
What technologies would blind or deaf people need effectively to discharge their duties as jurors?
QUESTION 7
What are the cost implications of the provision of the technologies identified in Question 6?
Interpreters
6.6 At paragraphs 3.29-3.35 the problem of using interpreters of a non-English language (Auslan) were discussed. To allow their use appears to contravene the practice of conveying evidence in English, and that may create a precedent for arguing in favour of using translators of non-English spoken languages. The Commission welcomes comment on whether the use of Auslan constitutes a special case.
6.7 If the use of Auslan interpreters were to be permitted, the Jury Act 1977 (NSW) would require amendment to allow for this and to stipulate conditions, such as the necessary qualifications and the requirement to swear an oath. This would be particularly relevant to the role of the jury in retirement.
QUESTION 8
Ought Auslan interpreters to be provided for deaf jurors and, if so, under what conditions?
Footnotes
1. “A person who is unable, because of sickness, infirmity or disability, to discharge the duties of a juror”.
