Inclusive Juries—Access for People Who Are Deaf, Hard of Hearing, Blind or Have Low Vision: Report (html)

15. Accessibility officers and support persons

The court needs to be able to provide a support person to assist people throughout the process – to show them where the rest rooms are, to help them in mealtimes etc.^[1]—Participant in the Blind Citizens Australia consultation

Overview

• We propose a new role for an accessibility officer to provide logistical support for jurors from the subject groups, including navigation of the court building, but not to assist in jury deliberations.

• We recommend that the Juries Act 2000 (Vic) provide for a support person as an adjustment for people in the subject groups. The role can be further developed over time as the need arises. It is most likely to be helpful for people who are blind or have low vision to assist them to access visual evidence.

• Training and qualification requirements may need to apply to the support person role, and the support person should be subject to standards and a code of conduct. A support person should provide an oath or affirmation to the court and be subject to penalties for breach of duties. We also discuss penalties for breach of duties for Auslan interpreters in this chapter.

A new accessibility officer role

15.1 People in the subject groups told us that it would be helpful if a potential juror could be assigned a person to assist them to navigate the court building during the jury selection process and the trial. We have referred to this person as an accessibility officer (although some of the consultees use the terminology ‘support person’, which we have used for a separate type of adjustment). It is envisaged that the accessibility officer would be arranged by the court or Juries Victoria.

15.2 Vision Australia suggested that a ‘court appointed support person should be assigned at the outset [of the jury selection process]’:^[2]

We envisage that a court-appointed support person would assist a (prospective) blind or low vision juror from the time they arrive at the court precinct (for example, by taxi or public transport) until they leave after the trial or after they have been stood aside. The support person would assist the blind or low vision juror with a variety of tasks and activities, including: navigating around the court environment (for example, getting from one part of the building to another, finding the bathroom, locating meals and refreshments); identifying key people such as the trial judge and the foreman of

the jury; accessing documents and other material during the trial; describing (but not interpreting) information presented visually, such as charts and graphs.^[3]

15.3 Blind Citizens Australia also supported the provision of a ‘support person’ and noted:

The Commission can’t assume that everyone who is blind or with low vision will turn up at Court with a supporter. Some people might turn up on their own. Therefore, the court needs to be able to provide a support person to assist people throughout the process—to show them where the rest rooms are, to help them in mealtimes etc.^[4]

15.4 Her Majesty’s Courts and Tribunal Services (HMCTS) have advised that an usher is assigned in England and Wales to support a juror with disability throughout their service to ‘make the juror feel more at ease’.^[5]

15.5 We agree that an accessibility officer role should be created to complement reforms in Victoria. The officer should be available to jurors from the subject groups where needed.

What would an accessibility officer do?

15.6 An accessibility officer would provide assistance with navigation through the jury selection process and during trial. The role should be limited to practical support in and around the courtroom. The accessibility officer would not enter the jury deliberation room. If a person needed similar assistance in the jury room, they could be paired with a ‘buddy juror’ at the start of deliberations. This is what happens in England and Wales.^[6]

15.7 The work required would depend on the potential juror’s individual needs. Generally, however, the accessibility officer might:

• greet the potential juror at the court building

• assist the potential juror through court security

• direct them to the jury pool room

• direct them from the jury pool room to the courtroom if needed

• help them find the rest rooms

• direct them to meal locations

• organise basic technical support such as headphones or other hardware

• help take a support animal for relief breaks if required

• help them with navigation at a ‘view’ of a crime scene.

Who should be an accessibility officer?

15.8 This role should be performed by a person who is independent of the person from the subject groups. It should not be a person’s carer or family member, although they would be welcome to accompany the person to the courtroom door.

15.9 The need for independence was supported by people from the subject groups. Blind Citizens Australia noted in consultations that:

for the formal role of communicating between the Court and the juror it would be better if the supporter was independent and hired by the Court, not a family member. The person should have specialised legal knowledge/knowledge of the court process. An NDIS worker would not always have the required skills for this role and they do not know about technology and the law.^[7]

15.10 Daniel Stubbs commented:

It will be important that the support person is professional and independent—the blind juror can’t just bring their mum.^[8]

15.11 County Court consultees agreed that a ‘support person for a person with a disability should also be independent’, similarly to the way in which intermediaries^[9] ‘are not allowed to have a “treating relationship” with the person they are assisting’.^[10]

15.12 Both the County Court and Supreme Court consultees were of the view that the tipstaff should not perform this role. The County Court consultees commented that ‘a tipstaff is not specifically trained to be an aid for a person with a disability’,^[11] while the Supreme Court consultees noted that ‘Tipstaff has too many other things to manage’.^[12]

15.13 As an alternative to funding a new position for these duties, the role might be performed by Court Network volunteers with appropriate training. This option should be explored further by the courts and Juries Victoria. ^[13]

15.14 Training should be required for accessibility officers. It should include:

• information about their role and responsibilities

• information about the responsibilities of a juror and what happens over the course of an ordinary day

• disability awareness training, including training about how various adjustments work in practice (see Chapter 18)

• their responsibility to the court, including protocols that would normally apply to jurykeepers, such as not discussing the trial with the juror or other jurors or attempting to influence the jurors. If necessary, the accessibility officer should politely inform a juror that all matters about the case must be raised either with fellow jurors (if the matter relates to the jury’s decision-making) or to the trial judge, via the foreperson (if the matter relates to further directions or an irregularity).^[14]

Support persons

15.15 A potential juror who is blind or has low vision may also require some support to access documentary visual material (such as graphs or photographs).^[15] They may also need assistance on a ‘view’ of a crime scene in a criminal trial.

15.16 The list of possible supports that can be provided under section 16(2) of the Juries Act 1967 (ACT) includes a ‘support person’. At the time of writing, no one has served on a jury in the ACT under these new laws. It is not clear to the Commission who would fulfil the role of support person and what duties they would undertake.

15.17 In consultation with the ACT Sheriff’s Office, it was suggested that perhaps the role could be fulfilled by a family member, a support worker or a person approved or supported by Vision Australia. The ACT Sheriff has advised that a judge would have to make the final determination about who could assist and in what capacity. This would need to be assessed on an individual basis.^[16]

Community ideas about the support person role

15.18 We received some limited suggestions of what role a support person might perform. For example, Vision Australia commented that:

There may be (probably rare) situations where a juror who is blind or has low vision will require support from someone who has had professional training in the techniques of audio description, in order to gain access to visual details that are ancillary to, but not an inherent part of, the trial (for example, dress styles, physical attributes). It is important to bear in mind that professional audio-describers are trained in how to provide access to visual information by eliminating subjective interpretation in favour of objective elements about which there would be quasi-universal agreement. We therefore feel that the need for a professional audio-describer as part of the support team would not, in itself, affect the accuracy of the trial record. A support person could be in the deliberations room on a very limited basis, namely, to describe documents etc. In other words, they hold a translation-type role, analogous to an Auslan interpreter.^[17]

15.19 Vision Australia recognised that ‘these alternatives may not be satisfactory in all cases, especially if the documents were complex and if the juror would be required to refer to them frequently’.^[18]

15.20 Blind Citizens Australia commented that:

facial expressions should be audio described. There might be times where a sighted person could see the facial expressions of the person giving evidence and make judgements about those details. These should also be described by the audio describer to the blind/visually impaired juror.^[19]

Readers and audio describers

15.21 In the United States, a ‘qualified reader’ is a support person specified in the Americans with Disabilities Act.^[20] It is defined as ‘someone who is able to read effectively, accurately, and impartially, using any necessary specialized vocabulary’.^[21] The qualifications for a ‘qualified reader’ are outlined in case law.

15.22 An audio describer is another role that may assist a person who is blind or has low vision. An audio describer is a professional who can communicate the contents of visual evidence to a person who is blind or has low vision. Audio description has been defined in the United States context as:

a service that provides a succinct and precise account of visual information to people who are blind or have low vision.^[22]

15.23 In the arts, audio description:

informs the listener about facial expressions, body language, physical comedy, dance movements, costumes, changes of scene, and other visual information crucial to fully understanding and experiencing the performance. AD provides the blind or [listener with low vision] a more complete and satisfying access to cultural experiences.^[23]

Increasing professionalisation of audio description in the United States and United Kingdom

15.24 Audio description is becoming professionalised in the United Kingdom and the United States. We were told that this is because new laws require audio description in television programming.^[24] However, we understand that audio describers do not play a role in court proceedings in these countries.

15.25 In the United Kingdom, there are some online training programs for audio describers. For example, Royal Holloway, University of London offers a free online Audio Describer course that is four weeks long and requires three hours of study per week.^[25]

15.26 In the United States:

• The American Council of the Blind offers training and educational resources.^[26]

• The Audio Description Institute offers ‘audio description training retreats’ which run for four days (in person and online) and offers over 20 hours of formal instruction.^[27]

15.27 The United Kingdom has developed guidelines on the practice of audio description, as has the United States. The Commission recommends that similar guidelines be developed in Victoria as audio description becomes more professionalised.

Audio description in Australia

15.28 Advocacy groups for the blind have told us that audio description is becoming more common in Australia and that reforming the jury system to allow such support could be an opportunity to promote wider uptake and change. ^[28]

15.29 Being an audio describer is a skilled disability support role. While they do receive training, audio describers in Australia are not yet as professionalised as Auslan interpreters. At present, audio describers mostly work in the arts in Australia.^[29] They have not been used in a court context.

15.30 Further, unlike Auslan interpreters, audio describers are not subject to a code of ethics, nor do they need to meet rigorous certification requirements. Some training is required, but this is not regulated.^[30]

15.31 If a blind person needs assistance accessing ‘documents, graphs, charts or other written material’, the preferred first step would be for the judge to ask counsel to read out any visual exhibits in court.^[31] It may also be that some simple material could be described by counsel in open court or a fellow juror in deliberations.

15.32 When audio description becomes more professionalised and regulated in Australia, audio describers may take on the support person role with appropriate training. Vision Australia referred to the importance of training for an audio describer:

It is important that the support person is trained in the art of audio description. Their role is to describe the facts on the page, not to provide interpretation. There are skills involved in that process, and they are skills that can be taught and can be learned. This is important to alleviate concerns about the supporter being a 13th juror.^[32]

The Act should allow for the appointment of a support person

15.33 In Chapter 11 we recommended that the Juries Act provide the option for a judge to appoint a support person to enable someone in the subject groups to serve as a juror.

15.34 We note that the new laws in England and Wales to limit the operation of the 13th person rule only apply to British Sign Language (BSL) interpreters. They do not allow support persons more generally to enter the jury room.^[33] Whether to extend the new legislation to other support persons was debated in Parliament but was ultimately decided against.^[34]

15.35 In contrast, Victorian legislation should be kept broad to enable the possibility of a support person being appointed. It will be a matter for a judge to decide whether a support person is needed, what their role should be and who should perform the role. This will be influenced by the needs of the potential juror and nature of the trial. The judge will talk to the potential support person about their experience and skills to undertake a support role and reach a decision about whether that support person could facilitate jury service for the person from the subject groups.

15.36 Judicial practice regarding the exercise of this judicial discretion should be carefully monitored by Juries Victoria to inform future reform.

Training for the specific role of working with jurors

15.37 While the approach in the ACT contemplates a possible role for a family member or carer, the Commission’s view is that a support person should be an independent court appointment. This was supported by Vision Australia, which commented that the support person/audio describer role:

is a specialised role and should be filled by an independent support person (rather than someone bringing their own support person). The supporter would be trained to describe documents, orient the person etc.

15.38 Organisations such as Description Victoria and Vision Australia could work with Juries Victoria and the courts to develop appropriate training requirements.

15.39 When audio description becomes more professionalised in the future, we recommend that the training/accreditation for that role should be incorporated in regulation in the same way recommended in Chapter 14 for Auslan interpreters.

Standards and a code of conduct for support persons

15.40 Anyone who undertakes the role of a supporter should, like Auslan interpreters, be subject to standards and a code of conduct to ensure that they understand the limitations of their role and can undertake it to a professional level. In the ACT, the support person will be required to sign and return the code of conduct and standards prior to attending court to work alongside the potential juror.^[35]

15.41 The ACT standards document for support persons is a good model for Victoria. Like the standards developed for court interpreters, it includes information about punctuality, dress, equipment, breaks and options to obtain feedback about the role. The document suggests that the supporter will receive ‘remuneration for their services including preparation time, travel time and accommodation costs (where appropriate)’. The duties required of a supporter are:

• Diligently and impartially provide support to the juror

• Diligently convey communication between jurors as accurately and completely as possible and not add or include your opinion or beliefs

• Comply with all directions of the Court

• Alert the Judge if you become aware of a conflict of interest

• You must keep confidential all information acquired, in any form whatsoever, in the course of your engagement or appointment unless that information is or comes into the public domain. This is particularly in relation to jury deliberations. Under no circumstances can jury deliberations or the identity of jurors be revealed.

• You are not to take part in discussions between jurors (except in relation to support services)

• You are not to convey your own belief, opinion or have a say in the decision of the jury.^[36]

15.42 Support persons should also be required to commit to a code of conduct. Unlike Auslan interpreters, they are not subject to a professional code of ethics. The ACT Sheriff has developed a code of conduct for support persons which is a good model for Victoria. It covers the following topics:

• general duty to the court.

• duty to comply with directions of the court

• duty of impartiality including duty to avoid a conflict of interest with other parties in the trial

• duty of competence

• duty of confidentiality

15.43 The code of conduct notes that:

• A support person has an overriding duty as an officer of the Court to assist the Court impartially.

• A support person’s paramount duty is to the Court and not to any party to or witness in the proceedings (including the person retaining or paying the Support Person).

• A support person is not an advocate, agent or assistant for the juror.^[37]

Support persons should provide an oath to the court

15.44 To protect the secrecy of jury deliberations, and ensure that support persons do not unduly influence the deliberations, the Commission recommends that support persons should provide an oath or affirmation to the court.

15.45 The ACT model is a good guide for Victoria. A support person in the ACT must take an oath or affirmation to ‘… well and truly support the juror to discharge the juror’s duties, [and not] otherwise participate in the jury’s deliberations or disclose anything about those deliberations, except as allowed or required by law’.^[38]

New offences should exist for Auslan interpreters or support persons who breach their duties to the court

15.46 In upholding the 13th person rule, the High Court in Lyons referred to the absence of provisions to prevent an Auslan interpreter from publishing information about statements made, opinions expressed, arguments advanced or votes cast, in the course of a jury’s deliberations.^[39]

15.47 In England and Wales, the new Act, which permits BSL interpreters into the jury room, extends the offences that apply to jurors to BSL interpreters.^[40] The Act also creates a specific offence for ‘interpreters interfering in or influencing jury deliberations’.^[41] This is an indictable offence, for which an interpreter is liable to imprisonment for a term not exceeding two years, or a fine (or both).

15.48 The ACT’s reformed Juries Act does not explicitly extend penalties to interpreters or support persons.^[42]

15.49 Introducing new penalties in Victoria for breach of duties was supported in community responses. The Law Institute of Victoria suggested that a new criminal offence for violating the oath or affirmation could be created (similar to perjury), to ensure compliance.^[43] This was reiterated in its submission:

The LIV supports the common law prohibition on supporters/interpreters assisting in the jury room to be modified by legislation. The supporter/interpreter should be required to take an affirmation that they will accurately and objectively interpret/support proceedings, maintain the confidentiality and secrecy of deliberations and not disclose any information learnt in the jury room. The LIV considers that new offences should be introduced to deter supporters/interpreters from violating their affirmation, which should be of a similar nature to the court conduct based criminal offences of contempt of court or perjury.^[44]

15.50 Similar points were made in submissions by Victoria Legal Aid, Juries Victoria, and Vision Australia.^[45] Vision Australia noted:

If existing offences do not cover a breach of confidentiality of jury deliberation by a person providing reasonable supports, then we are in favour of new offences being created. Having appropriate deterrents will help build confidence that people who are blind or have low vision can be supported to serve on juries without sacrificing the sanctity of the jury room.^[46]

15.51 Part 10 of the Juries Act 2000 (Vic) (the Act) contains a list of offences for breach of the obligations and duties that arise in the Act. The Commission recommends extending to Auslan interpreters and supporters the prohibition on jurors against making enquiries about trial matters.^[47] Other existing offences relating to non-publication of the names of jurors and the confidentiality of jury deliberations should also apply to Auslan interpreters and support people.^[48]

15.52 Section 65 of the Act prohibits a person from directly or indirectly communicating any information that would lead to the identification of a person from a jury roll, list or panel except in accordance with their duties under the Act. We note that the section 65 secrecy provision applies to ‘any other person performing a function or exercising a power’ under the Act and would extend to an Auslan interpreter or supporter appointed under the Act.

15.53 Victoria should also adopt the approach in England and Wales and introduce a new penalty to prohibit interpreters and support people from interfering in or influencing jury deliberations.^[49]

15.54 The Commission observes that the new offences may overlap with the common law offence of embracery (attempting to influence the jury).^[50] A new statutory offence is justified as it relates to the newly created statutory positions of interpreter or support person for a juror in the subject groups.

1. Consultation 1 (Blind Citizens Australia).

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2. Consultation 7 (Vision Australia).

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3. Submission 10 (Vision Australia).

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4. Consultation 1 (Blind Citizens Australia).

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5. Information provided by Her Majesty’s Courts and Tribunals Service to Victorian Law Reform Commission, 15 September 2021.

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6. Ibid.

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7. Consultation 1 (Blind Citizens Australia).

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8. Consultation 22 (Daniel Stubbs, Victorian Disability Worker Commissioner, in his personal capacity).

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9. Intermediaries are skilled communication specialists who assist vulnerable witnesses to give their best evidence. Their role is to help communication with the witness and to assist the witness to give evidence to police and in court. Intermediaries are neutral and are officers of the court: see Department of Justice and Community Safety (Vic), ‘Victorian Intermediaries Pilot Program’, Victoria State Government (Web Page, June 2020) <http://www.justice.vic.gov.au/justice-system/courts-and-tribunals/victorian-intermediaries-pilot-program>.

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10. Consultation 9 (Consultation with two Victorian County Court Judges, Court policy staff and two Associates).

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11. Ibid.

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12. Consultation 11 (Consultation with a Judge, a Tipstaff and Court policy staff, Victorian Supreme Court).

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13. Court Network is a front-line community organisation of more than five hundred volunteers, which ‘enables court users to better understand and navigate the court system’: see Court Network, Court Network Annual Report 2019/20: Celebrating 40 Years (Report, 2020) 7.

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14. These are the protocols usually applied to jury keepers. We do not envision that the accessibility officer will take the place of the jury keeper but will be an additional support specifically provided to the juror from the subject groups: see Judicial College of Victoria, ‘11.7 Jury Sequestration and Separation’, Victorian Criminal Proceedings Manual (Online Manual, 25 February 2014) <https://www.judicialcollege.vic.edu.au/eManuals/VCPM/index.htm#27318.htm>.

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15. Online Survey (Response 19): ‘I would need a support person present and also be able to bring my guide dog with me. I would need audio description of any visual evidence such as photographic charts tabular data etc’.

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16. Information provided by ACT Sheriff to Victorian Law Reform Commission, 4 August 2021; Information provided by ACT Sheriff to Victorian Law Reform Commission, 16 September 2020.

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17. Submission 10 (Vision Australia).

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18. Ibid.

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19. Consultation 1 (Blind Citizens Australia).

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20. Disability Rights Section, Civil Rights Division, United States Department of Justice, ‘Effective Communication’, ADA Requirements (Web Page) <https://www.ada.gov/effective-comm.htm>.

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21. Ibid.

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22. ‘What Is Audio Description?’, Audio Description Training Retreats (Web Page) <http://www.adtrainingretreats.com/aboutad.php>.

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23. ‘What Is Audio Description?’, Audio Description Training Retreats (Web Page) <http://www.adtrainingretreats.com/aboutad.php>.

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24. Consultation 29 (Service Coordinator, Description Victoria).

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25. Royal Holloway, University of London, ‘Creating Audio Description: Equality, Diversity, and Inclusion’, FutureLearn (Web Page) <https://www.futurelearn.com/courses/creating-audio-description-for-equality-diversity-and-inclusion/1>.

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26. ‘The Audio Description Project: Audio Description Training and Education Resources’, American Council for the Blind (Web Page) <https://adp.acb.org/education.html>.

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27. ‘Upcoming Retreats’, Audio Description Training Retreats (Web Page) <http://www.adtrainingretreats.com/upcoming.php>.

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28. Consultation 1 (Blind Citizens Australia). Also Consultation 22 (Daniel Stubbs, Victorian Disability Worker Commissioner, in his personal capacity).

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29. Consultations 28 (National Coordinator of Audio Description, Vision Australia), 29 (Service Coordinator, Description Victoria).

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30. Ibid; Description Victoria, Annual Report 2020 (Report, 2020).

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31. Submission 10 (Vision Australia).

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32. Consultation 7 (Vision Australia).

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33. Police, Crime, Sentencing and Courts Act 2022 (UK) s 196. This Act only applies to England and Wales.

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34. United Kingdom, Parliamentary Debates, House of Commons, 17 June 2021, vol 697 col 622 (Steve McCabe, Chair).

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35. Information provided by ACT Sheriff to Victorian Law Reform Commission, 30 May 2022.

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36. Information provided by ACT Sheriff to Victorian Law Reform Commission, 18 September 2020; Information provided by ACT Sheriff to Victorian Law Reform Commission, 16 September 2020.

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37. Ibid.

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38. Juries Act 1967 (ACT) sch 1 pt 1.1B.

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39. Lyons v State of Queensland [2016] HCA 38; (2016) 259 CLR 518, [36]–[37].

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40. Police, Crime, Sentencing and Courts Act 2022 (UK) s 196.

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41. Ibid; When this section comes into force on 28 June 2022, it will insert a new criminal offence into the Juries Act 1974 (UK): ‘s 20I Offence: interpreters interfering in or influencing jury deliberations’.

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42. Juries Act 1967 (ACT).

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43. Consultation 2 (Law Institute of Victoria).

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44. Submission 7 (Law Institute of Victoria).

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45. See Submissions 8 (Victoria Legal Aid), 10 (Vision Australia), 13 (Juries Victoria).

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46. Submission 10 (Vision Australia).

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47. Juries Act 2000 (Vic) s 78A.

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48. Ibid ss 77 and 78, respectively.

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49. Police, Crime, Sentencing and Courts Act 2022 (UK) s 196.

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50. Crimes Act 1958 (Vic) s 320.

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