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

4. Barriers to inclusive juries

There are so many obstacles that blind and low vision people experience, that even those who have a good level of energy and initiative to change things for the better are giving up.^[1] —Vision Australia

Overview

• Two key barriers prevent people in the subject groups from being jurors.

• The first is silence in the Juries Act 2000 (Vic) about the provision and assessment of reasonable adjustments.

• The second is the common law rule that prevents Auslan interpreters and support people from entering the jury room (the ‘13th person rule’).

• Arguably, a third barrier also arises because of prejudice and misconceptions about the ability of people in the subject groups to serve as jurors with adjustments, and poor understanding about how adjustments work in practice. We explore this in Chapter 9.

• The combination of silence in the Act and the 13th person rule means that many people in the subject groups are left with no option other than to seek to be excused from jury duty or be deemed ineligible to serve. Most people in the subject groups are excused from jury duty at the earliest stage of the jury selection process.

• Peremptory challenges and stand asides exercised late in the selection process may also prevent people in the subject groups from serving as jurors.

How the law and practices exclude people

4.1 A combination of law and practices prevent many people who are deaf, hard of hearing, blind or have low vision from serving as jurors.

Limitations in the Juries Act

4.2 The Juries Act 2000 (Vic) (the Act) states that, if a person has a ‘physical disability that renders the person incapable of performing the duties of jury service’ or is ‘unable to communicate in or understand the English language adequately’, they are ineligible to serve.^[2]

4.3 Reasonable adjustments may enable a person to meet the eligibility requirements of the Act.^[3] But the Act is silent about the provision of ‘reasonable adjustments’. Currently only a few adjustments are provided by the courts that would assist jurors, for example, hearing loops are installed in courtrooms to assist people who use hearing aids. Headphones may also be available for those who are hard of hearing and do not use hearing aids.^[4]

4.4 In the last five years, Juries Victoria has received ‘approximately six enquiries from people with hearing or vision impairments who wished to serve as jurors but for whom adjustments were unable to be provided and who were therefore unable to serve’.^[5]

4.5 Juries Victoria noted about the provision of adjustments that in the future:

Where the common law exclusion remains unchanged, other support options may be offered, including but not limited to adjusting seating arrangements to facilitate lip reading, the provision of talk-to-text or other technological supports, the provision of evidence in Braille or large print, and the assistance of fellow jurors (eg assisting a vision impaired individual with navigation around the deliberation room, making a coffee/tea, etc).^[6]

The ‘13th person rule’

4.6 A further significant barrier for people in the subject groups is the long-standing common law rule that the jury must be kept separate to preserve the confidentiality of the deliberation process and the validity of a verdict.^[7] It means that the jury should be kept to itself. This is known as the ‘13th person rule’. A consequence of the rule is that non-jurors (ie the 13th person), including Auslan interpreters or communication supporters, are prohibited from entering the jury room.

4.7 The term ‘13th person rule’ is misleading because the Act now provides for more than 12 jurors,^[8] but it remains commonly used. In practice it refers to all non-jurors in the jury room.

The High Court upholds the 13th person rule

4.8 In 2016 the High Court upheld the 13th person rule in Lyons v State of Queensland.^[9] That case originated in the District Court in 2012, when Gaye Lyons was summonsed to serve as a juror.^[10] Although she could lip-read, Ms Lyons required the assistance of an Auslan interpreter to serve. This request was denied.

4.9 The High Court held that the 13th person rule prohibited the interpreter from being present during jury deliberations.^[11] The plurality^[12] (Chief Justice French, Justices Bell, Keane and Nettle) stated:

Absent specific statutory provision, the contention that disclosure of the jury’s deliberations to an Auslan interpreter is ‘allowed by law’ must be rejected. The common law has long required that the jury be kept separate … The presence of a person other than a juror in the jury room during the course of deliberations is an incurable irregularity regardless of whether the person takes any part in the jury’s deliberations. The prohibition on the presence of a 13th person in the jury room protects the jury from the suggestion of external influence and promotes the frank exchange of views.^[13]

4.10 The High Court’s decision concerned Queensland’s Jury Act 1995. The plurality considered that the law as it stood ‘did not permit an Auslan interpreter to be present during the jury’s deliberations’.^[14] The plurality identified that its ‘conclusion is reinforced by the absence of provision to administer an oath to an interpreter assisting a juror’.^[15] Such an oath would address the role of an interpreter, including that they understand Auslan, and that they will not participate in or disclose deliberations. The plurality also 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.^[16]

4.11 Nevertheless, the plurality left open the possibility that state legislation could allow for the presence of a 13th person in the jury room, noting:

It may be, as the appellant submits, that the secrecy of the jury’s deliberations would not be compromised by the presence of an accredited Auslan interpreter in the jury room during the jury’s deliberations.

4.12 Following the High Court decision, the President of the Queensland Law Society called for that state’s Jury Act to be changed.^[17]

4.13 The High Court decision is referenced in the Victorian Criminal Proceedings Manual, which confirms the application of the 13th person rule:

In the absence of express statutory provisions, there is no power for a judge to empanel an interpreter for a juror, or allow a non-juror to be present during jury deliberations. At least in Queensland (and likely also in Victoria), this means that a person who is deaf is not eligible for jury service.^[18]

4.14 The Commission believes it would be relatively straightforward to amend the Act to limit the application of the 13th person rule with appropriate safeguards. (See Chapters 9, 11 and 12.)

Application of the 13th person rule

4.15 It is often said that the 13th person rule is the reason why courts do not provide adjustments to enable a person to serve in Victoria. The Act does not say anything about providing reasonable adjustments, which reinforces the position taken by the courts.

4.16 Brent Phillips, a deaf Victorian who received a summons for jury duty in 2014, requested an Auslan interpreter to assist him. But he reported that the Juries Commissioner ‘explained that they would not be able to provide Auslan interpreters, and that essentially deaf people were not able to serve on juries given the fact our presence on the jury would necessitate a “13th person” which is a breach of jury legislation in Victoria’.^[19]

4.17 In a media interview, Mr Phillips argued that the 13th person rule should not apply to Auslan interpreters, because they are qualified and accredited and abide by a strict code of ethics that includes confidentiality and impartiality.^[20] Their presence in the jury room would not, therefore, negatively impact jury deliberations.

There are too many barriers to jury service

4.18 A person in the subject groups who cannot undertake jury duty unless reasonable adjustments are provided currently has limited options. They can either seek to be excused, or the court (or Juries Victoria) deems them ineligible to serve.

4.19 Vision Australia noted that:

When people who are blind or have low vision seek an exemption from jury service, it is most likely because they anticipate that their needs for reasonable adjustments will not be met, and that they will therefore face insurmountable frustrating barriers.^[21]

4.20 Vision Australia concluded that in practice, ‘very few people who are blind or have low vision have served on juries anywhere in Australia during the last 30 years’.^[22]

4.21 People in the subject groups are generally excused from jury service in response to the questionnaire (the jury eligibility form) at the earliest stage of the selection process. A handful of people are excused later, in response to the summons.^[23]

4.22 The current jury selection forms do not ask for information about disability or enquire what adjustments might assist people to serve.^[24] The questionnaire only asks whether a person wishes to be permanently excused due to advanced age or medical reasons, or excused on a particular occasion for medical reasons.^[25] The Commission understands that most people in the subject groups identify that they have a disability in the ‘medical reasons’ section of the form, and generally raise the issue of disability themselves with Juries Victoria.^[26]

4.23 Juries Victoria responds to these requests on a case-by-case basis. It often speaks with the person via an interpreter service or on the phone to discuss the expectation the courts have of jurors and the person’s concerns. Sometimes a medical certificate is required to support a request to be excused because of disability.^[27]

Removing potential jurors through challenges

4.24 The other way that people in the subject groups may be excluded from jury service is through challenges at the end of the jury selection process. A range of challenges are available in jury trials. The two challenges we consider in this inquiry are ‘peremptory challenges’ and ‘stand asides’.^[28] They are available at the final stage of the selection of the jury (see Chapter 17). Parties and the Crown can challenge potential jurors without giving reasons. These challenges prevent a potential juror from serving on the trial. If a person is challenged, they return to the jury pool and may be selected for a panel on a different trial.

4.25 Section 37 of the Act also provides for an unlimited right to ‘challenge for cause’ in a criminal trial. This type of challenge requires a party to provide a reason to the trial judge as to why the potential juror should not be a part of the jury.^[29]

Additional barriers to jury service for Aboriginal people

4.26 In Chapter 3 we noted that Aboriginal people are more likely to be deaf, hard of hearing, blind or have low vision than other Victorians. Aboriginal people from the subject groups may face additional barriers to jury service.

Aboriginal people’s access to disability services

4.27 The Victorian Aboriginal Community Controlled Health Organisation (VACCHO) told us that access to disability services is more difficult for Aboriginal people than non-Aboriginal people:

One of the biggest barriers [for Indigenous health] is the disability service system. It is very difficult to navigate these systems and it is hard for Aboriginal people to gain equitable access to services through the NDIS.^[30]

4.28 This may mean that many Aboriginal people in the subject groups do not have access to the technological supports available to people in the broader community.^[31] This is likely to limit their participation as jurors.

Higher rates of incarceration may mean that fewer Aboriginal people are eligible to be jurors

4.29 A person is disqualified (usually for a limited period) from jury service if they have been convicted of specified serious offences or are on bail/remand or undischarged bankrupts.^[32]

4.30 In 2019, the Australian Law Reform Commission noted in response to the Committee on the Rights of Persons with Disabilities’ periodic review of Australia’s compliance with the Convention on the Rights of Persons with Disabilities that:

People with disability, particularly Aboriginal and Torres Strait Islander peoples with disability, are overrepresented in the criminal justice system in Australia.^[33]

4.31 The Australian Law Reform Commission reported in 2017 that, while Aboriginal and Torres Strait Islander adults make up around two per cent of the national population, they constitute 27 per cent of the national prison population.^[34]

4.32 In Victoria, the imprisonment rate for Aboriginal people is significantly higher than the rate for the total Victorian population. The Sentencing Advisory Council identifies that the ‘Aboriginal and Torres Strait Islander imprisonment rate almost doubled between 2011 and 2021, from 965.2 to 1903.5 per 100,000 adults. Overall, Victoria’s imprisonment rate also grew, albeit to a smaller extent, from 110.2 in 2011 to 138.7 [per 100,000 adults] in 2021.’^[35]

4.33 Disproportionately high rates of incarceration for Aboriginal people mean that there is a greater likelihood of disqualification from service under the Act.

Aboriginal people may be wary about participating in the justice system

4.34 VACCHO explained to the Commission that Aboriginal people with disabilities face two layers of discrimination:

1) institutional discrimination against Aboriginal people due to their race;^[36] and

2) discrimination on the basis of disability.^[37]

4.35 VACCHO observed that:

Aboriginal people often don’t trust the justice system. Many have had negative experiences with the law. There is a long history of systemic and institutional discrimination against Indigenous people. The legal system is often associated with institutionalisation and intervention. As a result, many Aboriginal people try to get out of jury duty.^[38]

4.36 The Commission agrees with the view of VACCHO, which emphasised the importance of Aboriginal people in the subject groups serving as jurors:

As Aboriginal people, we often see ourselves as victims of the court system. But we’re also members of the community and need to be part of the justice system by serving on juries.

Traditionally courts have been places where people go in and don’t go out, but here we’re talking about serving the community. This is a different relationship with the criminal justice system.^[39]

4.37 We also agree with the Queensland Law Reform Commission which concluded that it was ‘critical that steps be taken to increase Indigenous participation in the jury system … not only to increase the representativeness of juries, but also to reduce the sense of exclusion from the criminal justice system that is experienced by many Indigenous people.’ ^[40] We discuss this further in Chapter 18.

1. Comment by a person who was deemed ineligible to serve, referred to by Vision Australia: see Submission 10 (Vision Australia).

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2. Juries Act 2000 (Vic) sch 2 cls 3(a), (f) respectively.

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3. Reasonable accommodations (which we call ‘reasonable adjustments’) are defined in the Convention on the Rights of Persons with Disabilities as ‘necessary and appropriate modifications and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms’. Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008) art 2.

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4. Submission 14 (County Court of Victoria).

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5. Information provided by Juries Victoria to Victorian Law Reform Commission, 6 October 2020.

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6. Submission 13 (Juries Victoria).

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7. Sir William Blackstone, Commentaries on the Laws of England (Sweet, Maxwell & Son, 21st ed, 1844) vol 3, 375; Sir Patrick Devlin, Trial by Jury (Stevens & Sons, 1956) 41–42; Sir William Holdsworth, A History of English Law (Methuen, 1938) vol 11, 553–4.

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8. See provisions for additional jurors to be empanelled and balloted off: Juries Act 2000 (Vic) ss 23, 48.

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9. Lyons v State of Queensland [2016] HCA 38, (2016) 259 CLR 518.

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10. Ms Lyons unsuccessfully appealed to the Queensland Administrative Tribunal and its Appeal Division as well as the Queensland Supreme Court and ultimately the High Court. See Lyons v State of Queensland (No 2) [2013] QCAT 731; Lyons v State of Queensland [2014] QCATA 302; Lyons v State of Queensland [2015] QCA 159, 2 QD R 41.

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11. Lyons v State of Queensland [2016] HCA 38, [33], [38].

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12. A plurality opinion has been defined as ‘an appellate opinion not having enough judges’ votes to constitute a majority but receiving the greatest number of votes in support of the decision. With a plurality decision, the only opinion to be accorded precedential value is that which decides the case on the narrowest grounds’: Bryan A Garner et al, The Law of Judicial Precedent (Thomson Reuters, 2016) 195, cited in David Ash, ‘The Vogue Word “Plurality”’ [2018] (Summer) Bar News: The Journal of the NSW Bar Association.

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13. Lyons v State of Queensland [2016] HCA 38, [33].

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14. Ibid [37].

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15. Ibid [35].

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16. Ibid [36].

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17. Kim Sharnie, ‘Deaf Queensland Woman Gaye Lyons Loses High Court Bid to Become Juror’, ABC News (online, 5 October 2016) <https://www.abc.net.au/news/2016-10-05/deaf-woman-gaye-lyons-loses-high-court-challenge-juror/7904324>. For further commentary on the Lyons case and calls for legal reform see David Spencer et al, ‘Justice Is Blind as Long as It Isn’t Deaf: Excluding Deaf People from Jury Duty—an Australian Human Rights Breach’ (2017) 23(3) Australian Journal of Human Rights 332.

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18. Judicial College of Victoria, ‘11.1 Selecting a Jury’, Victorian Criminal Proceedings Manual (Online Manual, 30 August 2021) [7] <https://www.judicialcollege.vic.edu.au/eManuals/VCPM/index.htm#27318.htm>, citing Lyons v State of Queensland [2016] HCA 38, [1], [33]–[36].

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19. Sylvia Varnham O’Regan, ‘Deaf Victorian Man Denied from Serving on Jury Calls for “Discriminatory” Law to be Changed’, SBS News (online, 24 November 2014) <https://www.sbs.com.au/news/article/deaf-victorian-man-denied-from-serving-on-jury-calls-for-discriminatory-law-to-be-changed/cvjppq9j2>.

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20. Ibid.

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21. Submission 10 (Vision Australia).

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22. Ibid.

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23. Information provided by Juries Victoria to Victorian Law Reform Commission, 6 October 2020. Vision Australia commented in its submission that when people who are blind or have low vision are summonsed for jury service, they either seek an exemption at the earliest stage of the process, or else are excluded or deemed ineligible at a later stage. Vision Australia noted that ‘it may be that people who have low vision are marginally less likely to be prima facie excluded than people who are blind’: Submission 10 (Vision Australia).

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24. Information provided by Juries Victoria to Victorian Law Reform Commission, 6 October 2020.

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25. Ibid. Information about the questionnaire is set out in the Juries Act 2000 (Vic) s 20.

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26. Information provided by Juries Victoria to Victorian Law Reform Commission, 6 October 2020; Juries Act 2000 (Vic) s 20.

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27. Information provided by Juries Victoria to Victorian Law Reform Commission, 9 June 2021.

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28. Juries Act 2000 (Vic) ss 35, 38, 39.

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29. The Judicial College explains that a ‘challenge for cause may be exercised if there is a risk that a potential juror is not impartial as between the accused and the Crown; or a potential juror is not qualified to sit as a juror’: Judicial College of Victoria, ‘11.1 Selecting a Jury’, Victorian Criminal Proceedings Manual (Online Manual, 30 August 2021) [54] <https://www.judicialcollege.vic.edu.au/eManuals/VCPM/index.htm#27318.htm>, citing Bush v The Queen (1993) 43 FCR 549, (Federal Court of Australia, Davies, Miles and Drummond JJ, 2 August 1993); R v Judge of District Courts; Ex-parte Attorney-General (Qld) [1991] 1 Qd R 170, (Supreme Court Queensland, Kelly SPJ, Connolly and Dowsett JJ, 13 June 1990).

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30. Consultation 23 (Victorian Aboriginal Community Controlled Health Organisation (VACCHO)).

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31. Ibid.

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32. Juries Act 2000 (Vic) sch 1.

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33. Australian Human Rights Commission, Submission to United Nations Committee on the Rights of Persons with Disabilities, Information Concerning Australia’s Compliance with the Convention on the Rights of Persons with Disabilities (25 July 2019) 18, [60]. This includes children with disability, who are similarly overrepresented in the juvenile justice system. See also Australian Human Rights Commission, Equal before the Law: Towards Disability Justice Strategies (Report, February 2014); Law Council of Australia, People with Disability (The Justice Project, Final Report Part 1, August 2018); Human Rights Watch, ‘“I Needed Help, Instead I Was Punished”: Abuse and Neglect of Prisoners with Disabilities in Australia’ (Report, 6 February 2018).

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34. Australian Law Reform Commission, Pathways to Justice—An Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples (Report No 133, December 2017) 40 [1.16].

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35. Sentencing Advisory Council (Vic), ‘Victoria’s Indigenous Imprisonment Rates’, Sentencing Statistics (Web Page, 28 April 2022)
    
    <https://www.sentencingcouncil.vic.gov.au/sentencing-statistics/victorias-indigenous-imprisonment-rates>.

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36. See, eg, Thalia Anthony and Craig Longman, ‘Blinded by the White: A Comparative Analysis of Jury Challenges on Racial Grounds’ [2016] 6(3) International Journal for Crime, Justice and Social Democracy 25, 26.

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37. Consultation 23 (Victorian Aboriginal Community Controlled Health Organisation (VACCHO)). The CRPD also notes concerns about ‘the difficult conditions faced by persons with disabilities who are subject to multiple or aggravated forms of discrimination on the basis of race, … indigenous … or other status’. See Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008) Preamble.

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38. Consultation 23 (Victorian Aboriginal Community Controlled Health Organisation (VACCHO)).

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39. Ibid.

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40. Queensland Law Reform Commission, A Review of Jury Selection (Report No 68, 2011) Executive Summary, v [14].

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