Australia: Should a deaf person be able to serve on a jury?

Last Updated: 15 February 2017
Article by Jessica Mackay

Gaye Lyons is profoundly deaf. She can lip read, but her usual method of communication is Auslan – Australian sign language.

Deaf woman called up for jury duty in Queensland

When Ms Lyons was called up for jury duty in Queensland, she informed the deputy registrar of the Local Court that she would require an Auslan interpreter. The registrar excluded Ms Lyons as a potential juror on the basis that the Jury Act 1995 (Qld) makes no allowance for interpreters to be administered an oath, or to be present in a jury room during deliberations.

Also, the registrar cited a provision in the Act that excludes from jury service "a person who has a physical or mental disability that makes the person incapable of effectively performing the functions of a juror".

Rejected juror lodges discrimination complaint

Ms Lyons lodged a formal complaint of discrimination, and the case went all the way to the High Court. (See Lyons v Queensland [2016] HCA 38.)

Jury laws are similar in all states and territories, so the outcome of the case was watched with interest across Australia.

Ultimately, the High Court dismissed Ms Lyons' appeal on the basis that the Jury Act prohibits any outsiders – such as an Auslan interpreter – being present during jury deliberations, and that law applies equally to people with, or without, Ms Lyons' particular impairment. In other words, the High Court held that the decision of the deputy registrar to excuse Ms Lyons from jury duty did not amount to unlawful discrimination.

Should the legislation be amended to accommodate the hearing impaired?

The case represented a clash between a citizen's desire to carry out an important civic duty and a foundational principle of our criminal justice system – that jury deliberations must remain confidential, between sworn jurors.

Ms Lyons said the High Court's decision felt like a "slap in the face". She pointed out that interpreters are trusted to assist witnesses in court, so they should be trusted in the jury room.

I personally agree that the NSW Jury Act should accommodate hearing-impaired people who wish to serve as jurors. And if that requires legislative change, then so be it.

Right to serve on a jury vs right to a fair trial

Having said that – how do we strike the right balance? What about other personal characteristics that might impact a person's ability to serve as a juror?

Should vision impaired people still be excluded from serving as jurors? Or should there be an obligation to provide verbal descriptions of all evidence tendered in a trial, to enable their participation?

What if a trial depends on visual identification of evidence presented to the jury? At that point, isn't there a risk that the defendant will not get a fair trial?

High cost of interpreters in court cases borne by taxpayers

There are also significant practical and cost imperatives to consider. If a person is illiterate, should that be accommodated by reading aloud every document tendered during a trial, and providing an audio recording of the entire proceedings, for use in the jury room?

I have served in court rooms all over NSW as both a prosecutor and defence solicitor and have experienced many cases where interpreters were needed to assist witnesses and defendants. For instance, I instructed in a trial where the co-accused persons spoke two different languages, Cantonese and Vietnamese, and then witnesses were called who spoke a different language again – Mandarin. It was a hugely expensive exercise and it was taxpayers' money being used to provide those interpreting services.

What if some jurors have limited English? Should interpreters be provided for those jurors too?

I'm still inclined to think that the courts, and our legislative regime, should accommodate a broad spectrum of personal attributes in jurors. But it is a difficult balance.

And that still doesn't answer the question of whether unsworn individuals such as translators should be allowed to be privy to jury deliberations.

Jessica Mackay
Criminal law
Stacks Law Firm

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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