Inclusive Juries—Access for People Who Are Deaf, Hard of Hearing, Blind or Have Low Vision: Report (html)
Executive summary
People tell us constantly: ‘You can’t do this; you can’t possibly do that’.
But we are not offered the opportunity to try because of the current barriers to participation. We could bring a different perspective. No one asks us what we can do.[1]—Participant in the Deaf Victoria consultation
1 This report recommends ways to remove barriers from current law and practice that prevent Victorians who are deaf, hard of hearing, blind or have low vision (whom we refer to in our report as ‘the subject groups’) from serving as jurors.
2 In the first part of the report, we set the scene for reform by explaining the barriers to service that people currently face and the international legal obligations that we should abide by. We consider how things are done overseas, where people who are deaf, hard of hearing, blind or have low vision have served on juries for years. We set out what people told us about wanting to serve as jurors.
3 The second part of the report (from Chapter 11) contains the Commission’s recommendations for reform, and provides examples of the adjustments that could enable people in the subject groups to serve.
What is the problem with current law and practice?
The public will only know what blind/visually impaired people are capable of when we show them what we can do. If the public don’t have any contact with blind/visually impaired people, they don’t know what tools are available to help blind people undertake the same tasks as sighted people. I always say: ‘If you want to know how things work [for a blind person], ask me.’ [2]
—Participant in the Blind Citizens Australia consultation
4 Jury service is currently inaccessible because of a combination of two things. Firstly, there is no obligation in the Juries Act 2000 (Vic) (the Act) to require the courts or the Juries Commissioner, responsible for administering the jury system through Juries Victoria, to provide adjustments. Those adjustments might include an Auslan interpreter, or a device that enables speech-to-text translations, or screen reading. Jury service might be accessible with adjustments, but they are generally not provided.
5 Secondly, a long-standing common law rule known as the ‘13th person rule’ states that only jurors (usually 12 in a criminal case) may be present in the jury room. Therefore, a non-juror or ‘13th person’, for example an Auslan interpreter, is not permitted in the jury room during deliberations.[3] This rule is intended to keep the jury separate to preserve the confidentiality of the deliberation process.
6 This often leaves people who are deaf, hard of hearing, blind or have low vision with no option but to seek to be excused from jury service; or, they are deemed ineligible to serve by the Juries Commissioner. Additional barriers are likely to prevent Aboriginal people who are deaf, hard or hearing, blind or have low vision from serving as jurors.
Why does the law need to change?
The Court considers that supporting people in the subject groups to serve as jurors, where consistent with the accused’s right to a fair trial, would advance the representativeness of juries and the community’s confidence in the jury system.[4]—Supreme Court of Victoria
7 Jury duty is an important civic duty associated with active citizenship. Barriers to jury service in current law and practice are out of touch with community expectations, laws and policies about non-discrimination and the inclusion of people with disabilities in public life.
8 A broad cross-section of our community should be represented on our juries, with members bringing different views and experiences to deliberation. Making juries more representative is a key purpose of the Act.[5]
9 People who are deaf, hard of hearing, blind or have low vision want barriers to jury service removed. They want to be able to discuss with an official what they can and cannot do, and what adjustments they require to serve.
10 Australia has ratified the United Nations Convention on the Rights of Persons with Disabilities. Article 3(c) refers to the principle of ‘[f]ull and effective participation and inclusion in society’ of people with disabilities.[6]
11 The United Nations Committee on the Rights of Persons with Disabilities (the Convention Committee) has found that by failing to comprehensively assess a request for adjustments to facilitate jury service, Australia is breaching its obligations under international law.[7]
12 Victoria is lagging behind other comparable common law jurisdictions, where people have been serving as jurors with adjustments for many years.
13 In the United States, people with disabilities have served as jurors without controversy for over 30 years. In England and Wales, the courts have long had processes in place to provide reasonable adjustments for jurors in court (as long as a non-juror was not needed in the jury room in deliberations). A new law was introduced in April 2022 which limits the operation of the 13th person rule in England and Wales, and allows British Sign Language interpreters to work alongside deaf jurors in the jury room.
14 In 2018 the Australian Capital Territory became the first, and only, Australian jurisdiction to change its laws and practices to enable people in the subject groups (and others) to serve as jurors with reasonable adjustments.
Upholding the right to a fair trial
15 While supporting reform, many people told us that change must not prejudice the right to a fair trial. The Commission agrees.
16 In many circumstances, reasonable adjustments will enable a person who is deaf, hard of hearing, blind or has low vision to perform the role of juror. This has been demonstrated in overseas practice and academic studies.
17 In rare situations, even with reasonable adjustments, a person from the subject groups may not be able to perform jury duty. This might happen because of the intersection between their disability, the adjustments they require, and the nature of evidence that is material to the outcome of a particular trial. We recommend that the trial judge make the final decision about whether a person can serve on the jury.
A new obligation in the Juries Act to provide reasonable adjustments
18 To ensure that reasonable adjustments are provided to people in the subject groups, the Act needs to be changed.
19 The Act should require the courts to direct that reasonable adjustments be provided where the court considers that the provision of those adjustments would enable a person to serve as a juror.
20 The factors the judge may consider in deciding whether reasonable adjustments can be provided should be listed in the Act, along with examples of possible adjustments.
21 The Act should limit the 13th person rule to enable Auslan interpreters and support persons to work alongside a juror in the jury room, subject to safeguards including an oath taken by Auslan interpreters or a support person to maintain confidentiality, not participate in or disclose deliberations and to interpret truthfully.
Changes to the practices and procedures of Juries Victoria and the courts
22 We have accepted the suggestion that the Commission should ‘outline clearly, in a very practical way’ how change can occur.[8] The recommendations in this report aim to provide a practical road map for change from the start of the jury selection process to trial.
23 The finer details of implementation will need to be settled by the courts and Juries Victoria. They will need to work together to put the new provisions of the Act into practice. The aim is to ensure that, as recommended by the Convention Committee:
every time a person with disabilities is summoned to perform jury duty, a thorough, objective and comprehensive assessment of [their] request for adjustment is carried out and all reasonable accommodation is duly provided to enable [their] full participation.[9]
The role of Juries Victoria
24 Juries Victoria should take the lead in arranging the provision of reasonable adjustments.
25 The jury eligibility form should ask people to identify if they require reasonable adjustments in order to serve as a juror. Juries Victoria should have early discussions with the potential juror about these adjustments and what will be expected of them as a juror. Potential jurors should be able to visit the court ahead of the summons date to discuss adjustments and to familiarise themselves with the court layout and accessibility.
26 The Juries Commissioner should make a recommendation to the court as early as practicable about the provision of reasonable adjustments. This recommendation will be guided by legislation, and by information gathered from the potential juror and the court, as well as information from judges’ chambers about evidence that is likely to be material to the outcome of the upcoming trial.
27 The Juries Commissioner should have a new own motion power to defer a person’s jury service, giving Juries Victoria more time to arrange adjustments if needed. We also recommend two new powers for the Juries Commissioner to hold a potential juror’s ballot card out of the pool from which a jury panel is being drawn for a trial, where:
• the trial will be heard in an inaccessible courtroom
• fair trial concerns arise because of the evidence that is material to the outcome of the specific trial.
28 In either of these situations, the person’s ballot card would remain in the pool for panel ballots for other trials. The aim is to remove the barriers that prevent a person in the subject groups from advancing through the early steps of the jury selection process and reduce the likelihood that a judge will need to determine the matter in a hearing on the day of empanelment. These decisions by the Juries Commissioner should be appealable to the court.
29 If there are no concerns, the Juries Commissioner should arrange adjustments for the jury selection process and in readiness for trial.
The role of the trial judge
30 The final decision about jury service with reasonable adjustments should be made by the trial judge, when the potential juror attends court on their summons date, and is balloted to a panel for a specific trial.
31 In some situations, jury selection processes may need to be put on hold while the judge determines the matter in a short hearing with the potential juror. This will occur before the jury panel is brought into the courtroom.
32 If the judge decides that the potential juror will not be able to serve in that trial even with reasonable adjustments, the person should be returned to the jury pool to potentially serve on a different trial. The judge could also excuse a person under their summons if that is more appropriate. If a judge decides that adjustments can be provided, then the arrangements made by the Juries Commissioner will continue.
33 Information about the use of reasonable adjustments should be provided by the judge at different stages of the jury selection process to counsel, the court and the jury.
Accessibility officers, Auslan interpreters and support persons
34 Accessibility officer roles should be created to provide a potential juror with assistance, if they need it, to navigate the court building during the selection process and trial.
35 Auslan interpreters should undergo specialised training to interpret for a juror. Because Auslan interpreters are already highly trained, this additional training should not be onerous.
36 A person who is blind or has low vision may require support to access visual material in a trial. When audio description becomes more professionalised and regulated in Australia, audio describers may take on the support person role, with appropriate training.
37 Auslan interpreters and support persons should sign up to standards and a code of conduct, to be developed by the courts, outlining their role and responsibilities in jury work. They should also provide an oath to the court in relation to their duties and responsibilities and be liable to new penalties for breach of those duties.
38 Change may also be needed to the way that courtrooms are organised and how some trials are run to accommodate the use of reasonable adjustments. We recommend that there should be training for the judiciary and profession and protocols to ensure that this happens smoothly.
Challenges during the juror selection process
39 Parties and the Crown have a right to challenge the selection of a potential juror without giving reasons, by exercising respectively ‘peremptory challenges’ and ‘stand asides’. These challenges aim to ensure that the accused receives a fair trial and to allow the accused to exercise some influence over the composition of the jury. While we hold concerns that these challenges may be used to prevent people from the subject groups from serving, we conclude that the best way to avoid the discriminatory use of these challenges is to educate legal professionals about how people from the subject groups can serve effectively with reasonable adjustments.
Excuse
40 People in the subject groups should continue to be able to be excused from jury duty for reasons connected to their disability. Disability in and of itself should not be a ground for excuse from service, unless the Juries Commissioner is satisfied that permanent excuse is appropriate.
41 The excuse process should not be overly burdensome. Juries Victoria should provide clear and accessible information about the excuse process.
Cultural change and education
42 Research indicates that some legal professionals may be apprehensive about reform and how change will work in practice. For reforms to be effective, these apprehensions will need to be addressed.
43 Legal professionals may have little contact or first-hand experience of working with or interacting with people from the subject groups and a poor understanding of how adjustments work in practice. Academic research examining competency to serve with adjustments and overseas practice may not be well known. Together with clear legislative guidance and a judicial assessment process for reasonable adjustments, we recommend:
• There should be disability awareness training for judges, lawyers, counsel and Juries Victoria. Training developed in partnership with people from the subject groups should have a practical focus and cover the range of reasonable adjustments and how they work in practice.
• There should be professional development about how the new laws work in practice.
• The courts and Juries Victoria should develop internal protocols to guide staff on the implementation of new laws.
44 Clear and practical information should be provided to the community about the operation of the new laws. This will encourage people in the subject groups to serve and reassure them about the process. Targeted information encouraging Aboriginal Victorians from the subject groups to serve is particularly important.
Funding these reforms and monitoring progress
45 There will be costs associated with implementing the recommendations in this report, but these costs are outweighed by the benefits of reform. Only a small number of trials are likely to be impacted, so we are confident that reforms can be implemented reasonably easily, without placing a large ongoing burden on the courts or Juries Victoria.
46 If the law is changed, data should be collected about the participation of people from the subject groups at all stages of the jury selection process, and published in the Supreme Court’s annual report.
47 Subject to juror confidentiality requirements in the Act, information should also be collected about the experiences of people from the subject groups.
48 Information about the new laws and policies should be widely distributed to the Victorian community in accessible formats, including videos, printed information by Government and advocacy organisations, and on the Juries Victoria and court websites.
49 The new laws should be reviewed after five years of operation.
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Consultation 6 (Deaf Victoria and community participants).
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Consultation 1 (Blind Citizens Australia).
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Lyons v State of Queensland [2016] HCA 38, 10-11 [33], (2016) 259 CLR 518, 529-30 [33].
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Submission 11 (Supreme Court of Victoria).
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Juries Act 2000 (Vic) s 1(b).
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Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008) art 3(c). Australia ratified the treaty on 17 July 2008: United Nations, ‘Chapter IV 15 Human Rights: Convention on the Rights of Persons with Disabilities’, United Nations Treaty Collection (Online Collection, 14 June 2022) <https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-15&chapter=4&clang=_en>.
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See discussion in Chapter 6.
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Consultation 9 (Consultation with two Victorian County Court Judges, Court policy staff and two Associates).
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Committee on the Rights of Persons with Disabilities, Views: Communication No 11/2013, 15th sess, UN Doc CRPD/C/15/D/11/2013 (25 May 2016) [9(b)(i)] (‘Beasley v Australia’).
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