‘The Law Report’ transcript

Transcript of part of The Law Report episode broadcast on ABC Radio National on 30 May 2023.

Damien Carrick: The Victorian Law Reform Commission is recommending changes to the law that would enable people who are deaf or blind to serve on juries. The Commission’s report has been tabled in the Victorian Parliament, coincidentally on the same day a decision of the ACT Supreme Court confirmed the territory is the one jurisdiction in Australia that does welcome deaf jurors. Lawyer Emma Cashen was the team leader on the Victorian Law Reform Commission report. Emma Cashen around Australia what are the laws which restrict deaf and blind people from serving as jurors?

Emma Cashen: In Victoria, and the legislation is broadly similar around the country, there are two key barriers that prevent deaf, hard of hearing, blind or people with low vision from serving on Victorian juries. The first one is that there’s no obligation in the Juries Act, on the courts or on the Juries Commissioner to provide adjustments that would enable people to serve. And without that obligation, they’re generally not provided.

Damien: And when you talk about adjustments, you mean Auslan interpreters or stenographers, that kind of thing?

Emma: Auslan interpreters, stenographers, it might be taking a guide dog into the court room, it might be printing out court documents in larger font, hearing loops which send sound from the court room directly into a person’s hearing aid, it might be using an electronic magnifier or any technology that would convert written text to speech on an iPad in the jury’s box, or even just little things like assistance in getting in and out of the court room.

Damien: Ok so one legal impediment is the lack of an obligation on the courts to provide those forms of assistance – what is the other big legal impediment?

Emma: The other big legal impediment is an old common law rule that says you can’t have a non-juror in the jury room. And it’s known as the ‘thirteenth person rule’ because a criminal trial usually has 12 jurors. So, if you are deaf and need an Auslan interpreter to interpret for you in the jury deliberation room, common law at the moment says that that’s not possible. It’s an old rule that was designed to protect the confidentiality of that deliberation process and to encourage frank discussion. It’s also recently been upheld in a High Court decision in 2016. So, at the moment what happens is if you’re deaf, hard of hearing, blind or with low vision and you need reasonable adjustments to serve, you end up applying to be excused quite early in the jury selection process or the Juries Commissioner or the court will deem you ineligible to serve.

Damien: And your report is calling for changes to these two legal impediments – one, you’re calling for a change to the law that would require courts to make reasonable adjustments, not adjustments everywhere always, but reasonable adjustments where possible; and also kind of a revisiting or a lifting of the blanket ban on the thirteenth person in the jury room.

Emma: Yeah, they’re the legal changes we’re asking for. In relation to limiting that ban on having a thirteenth person in the jury room, we’re suggesting that there are various safeguards that should accompany that. So, the interpreter should provide an oath to the court not to get involved in jury deliberations to maintain the confidentiality of that process, and also be subject to the same penalties that a juror is if they breach those obligations. And we’re also suggesting that the Auslan interpreter or the support person should be subject to training for that particular role – it’s a different role to what an Auslan interpreter would do in a court room, it’s behind closed doors so we are suggesting that the Auslan interpreter sign up to standards of conduct and undergo special training for that particular role.

Damien: The only jurisdiction in Australia which has adopted these changes so far is the ACT, and there’s just been a decision from the Supreme Court in that jurisdiction about how these changes will be implemented. Tell me about the decision of Chief Justice McCallum.

Emma: Yeah, that was an amazing display of synchronicity to have it on the same day that we tabled our report. So, the Chief Justice has decided that a deaf juror should be provided with two Auslan interpreters for jury service, and this particular person went through the empanelment process with those two Auslan interpreters but wasn’t ultimately selected for the jury trial. But all of the practice is underway in the court for this to happen, so it’s an important step and we have been keeping our eyes on the ACT to see if someone had served, so it’s a great thing.

Damien: So, it’s kind of a great step forward but didn’t actually lead to somebody serving on a jury because I understand the juror couldn’t sit on the trial for a reason totally unrelated to their status as a deaf person.

Emma: Yes absolutely. And we can’t speculate why that is, jurors get rejected from jury duty for a whole number of reasons, so yeah in this particular case, but they did go through the empanelment, the jury selection process with their two Auslan interpreters, so that’s great.

Damien: And what’s really great, what’s really interesting from this decision is that the Chief Justice confirms that this is going to cost our court about $10,000, but that won’t be disproportionate or an undue burden on the court’s resources, we’re taking it on. And also the Chief Justice confirms that the presence of an Auslan interpreter in the court and in the jury room will not cause problems.

Emma: Yes, absolutely. Yep.

Damien: So, okay, we have the ACT way out there, separate from other Australian jurisdictions. What’s the situation in other countries where they have juries? Talk me through what’s been happening in the USA.

Emma: Yeah, so people who are deaf and blind have been serving on juries in the USA for over 30 years. They’ve been doing it uncontroversially, the right to a fair trial has been maintained, the efficiency of the jury selection process has been working well, and it’s a regular occurrence. There are stories from deaf advocacy and blind advocacy organisations online, which tell people’s stories of their service, and both blind and deaf people have served in America. We spoke, during the course of our project, to the Juries Commissioner who works in Rochester, in Monroe County, New York State. Monroe County has a really high proportion of deaf people living in that county because it has a technical institute for the deaf, and it’s quite a regular occurrence for a person to be called up for jury duty and to indeed serve with two American sign language interpreters in that county. So, it happens quite often.

Damien: And the sky has not fallen in.

Emma: The sky has not fallen in, things are just rolling along as they always do.

Damien: From your report I read about a lady called Dana Ard who was a blind juror in Idaho in 2021, there was also Tracy Straub in 2015 who served as a juror in an armed robbery case in Detroit. Interpreters took turns, 10-15 minutes each, and they stood down in front of the court and the jurors’ eyes shifted back and forth between the Auslan interpreter and what else was going on in the court, and there seemed to be no problem in terms of the juror understanding what was going on.

Emma: No, and there’s been a lot of academic research done in Australia on this issue. They’ve even run a mock trial so the translatability of legal concepts into Auslan is possible, and the legal academic research has demonstrated that. The mock trial, the judge at the end said: “Well this ran no differently to any other trial that I’ve run”, with or without deaf jurors and Auslan interpreters. And we know that it’s working in America – there’s no concerns in America – and it’s also been happening in Ireland and the UK, and also in New Zealand.

Damien: Really interesting you mention Ireland. I think that was a case from 2020 – Patricia Heffernan, a deaf person. The judge in that case actually told the parties, “Okay, to make this go smoothly, everybody don’t talk over each other, when you’re in court don’t talk over each other”, he said that to the legal teams. And then, I think the judge made the point that that was actually beneficial for everybody, it wasn’t just beneficial for the deaf juror – it was an improvement on the way the trial was conducted.

Emma: We’ve certainly heard from people with disabilities over this reference that changes that assist people with disabilities often have the benefit of assisting all court users and the justice system generally. And there has been research done overseas that has showed that a more diverse and representative jury, the better the decision making that is made. People think more critically, they take time, they listen to each other, and the process runs more smoothly. So, there’s some clear benefits of including more people on juries and having more diverse juries.

Damien: In the same way that we would want more diversity on a jury, gender, race, etc., we also want ability.

Emma: Absolutely, and you know the sky hasn’t fallen in from allowing women on juries. It was very slow in Victoria, women got the right to vote in 1908 but didn’t get to sit on a jury in an equal position with men until 1977. And you know, juries have benefitted from having women on them. So yes, I think the judge in that case said “Well we’ll look back and find it silly one day as we find with women, that people with disabilities weren’t included on juries.”

Damien: I’d like to talk about two other countries very quickly. In the UK, I think there was a 2022 legislation that allows British Sign Language interpreters into the jury room. Now that system is up and running, have there been jurors who have been on juries?

Emma: Yes, those new laws came into operation in 2022, the middle of last year, and there has already been two people who have served with British Sign Language interpreters on juries in the county courts in England. Those two people have actually been appointed forepersons of the jury, so that’s a juror charged with the responsibility to communicate with the judge and deliver the verdict at the end of the trial. Those jurors report that the process worked really smoothly, they really enjoyed their opportunity to exercise their civic responsibility and they hope that their example provides a good example for others to also put their hand up for jury duty and serve with British Sign Language interpreters.

Damien: Closer to home, New Zealand, deaf and blind jurors have been accommodated for many years now.

Emma: Yeah, they have.

Damien: So, of course inclusiveness is extremely important but so is the right to a fair trial. What are the concerns of defence lawyers, especially about the ability of somebody who has visual or hearing impairment to follow what’s going on in court? Presumably, court’s a very dynamic place and you need to be able to follow very quickly what’s happening in different places in a court room.

Emma: I think the concern in relation to a fair trial is that, you know in the context of jury duty, a juror must be able to comprehend the evidence, to follow along with what’s happening in court, to deliberate effectively with their fellow jurors. And we certainly think, in the majority of cases, that’s not going to be an issue. But there may be some situations where a person who is deaf or blind may not be able to serve, even with reasonable adjustments. So, an example might be, if you had a case that turned upon identifying a voice on a voice recording or identifying a person from photographs or CCTV image. Now, in that situation, a person who is deaf or blind might not be able to serve on a jury trial, even with reasonable adjustments. Now, that won’t arise in all cases, it will only be where the evidence is material to the outcome of the trial. There may be some cases where there’s other evidence that goes to identity, so it won’t be in all cases, but we think that it is an important consideration, and it should be something that the trial judge makes a determination about before that juror is able to serve on that particular trial.

Damien: What about assessing the demeanour of any of the witnesses in a trial? Assessing their voice, assessing their physical demeanour, is that an important thing?

Emma: Yeah, some people have raised concerns about blind people for example not being able to see demeanour, to work out whether a witness is credible from the evidence they’re giving. We do touch on that in our report. Demeanour evidence is becoming less important in court decisions, even the court in their submission to this review said that demeanour evidence shouldn’t be a barrier in this situation. We know that it’s working overseas so we know that it can be done, and I think people who are deaf and blind have a whole range of senses that they use on a daily basis to work out the credibility of someone. They have a whole range of human interactions on a daily basis, and they can work out whether someone they’re interacting with is credible. So, I think the issue of demeanour evidence is not a barrier that we need to concern ourselves with, in relation to jury duty.

Damien: Lawyer Emma Cashen, team leader on the Victorian Law Reform Commission report, thank you for speaking to the Law Report.

Emma: Pleasure, thank you Damien.

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