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

9. Inclusive juries and the right
to a fair trial

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.^[1] —Supreme Court of Victoria

Overview

• Reform must not jeopardise the right to a fair trial. With appropriate safeguards, jury law and practice can be inclusive and uphold the right to a fair trial.

• In some situations, the nature of a particular trial may prevent a person in the subject groups from serving as a juror for fair trial reasons. This should be determined by a judge. In this situation, the person should be returned to the jury pool to potentially serve on another trial. We discuss these reforms in Chapters 11 and 12.

• Reforms aim to address misconceptions about the competency of people in the subject groups to serve as jurors, as well as practical concerns about how change can work in practice.

The right to a fair trial

9.1 The right to a fair trial encompasses:

• the ‘hearing rule’, which is the right to be heard before a competent tribunal, and

• the ‘bias rule’, which is the right to have a matter determined by a decision maker who is free from bias and is seen to be unbiased.^[2]

9.2 The International Covenant on Civil and Political Rights and the Victorian Charter of Human Rights and Responsibilities both provide that everyone is entitled to a fair and public hearing before a competent, independent, and impartial tribunal.^[3]

How do jury laws promote a fair trial?

9.3 Existing mechanisms at common law and in the Juries Act 2000 (Vic) (the Act) aim to protect the right to a fair trial. At common law, trial judges have an overriding duty to ensure a fair trial^[4] and inherent powers to stand aside a juror if required.^[5]

9.4 Trial judges also have general powers under the Act to excuse prospective jurors for good reason,^[6] or to order that they not perform jury service if the court considers it is ‘just and reasonable’ to do so.^[7] Once a jury has been sworn in, there is a statutory power for the court to discharge a juror without discharging the entire jury, including if a judge thinks that a juror is not impartial or becomes incapable of continuing to act as a juror.^[8]

9.5 Impartiality in juries is promoted by a range of jury selection and trial processes and practices:^[9]

• group decision making

• randomised jury selection processes

• the excusal process, which allows jurors who may not be impartial to be excused from a particular trial (for example, where prospective jurors know one of the parties, or may have been involved in an incident similar to the one at trial)^[10]

• challenges, including peremptory challenges and challenges for cause and to the array,^[11] as well as Crown stand asides^[12] (see Chapter 17)

• a juror oath or affirmation to ‘faithfully and impartially try the issues’ and ‘give a true verdict according to the evidence’^[13]

• directions given by the judge to the jury, for example, a direction to only consider evidence presented at trial and to disregard any knowledge they may have.^[14] This direction is supported by the prohibition on jurors accessing information about a case or the parties other than through the evidence presented at trial.^[15]

9.6 Similar mechanisms protect the right to be heard before a competent tribunal including:

• juror eligibility criteria^[16]

• the ability of the Juries Commissioner to excuse a person from a particular trial for ‘good reason’ including illness or poor health and incapacity^[17] and to permanently excuse a person for reasons including continuing poor health, disability or advanced age^[18]

• challenges to the selection of individual jurors.

The right to a fair trial is a paramount consideration

9.7 While supporting reform, many people told us that change must not prejudice the right to a fair trial. The Commission agrees. Many in the legal community emphasised that the right to a fair trial is a paramount consideration.^[19] County Court consultees emphasised that ‘the principle of a fair trial must prevail’.^[20] Similarly, the Supreme Court noted that trial judges have ‘an overriding duty to ensure a fair trial’.^[21] Victoria Legal Aid (VLA) noted that:

While VLA supports facilitating increased access to jury participation, inclusivity measures must also ensure an accused person’s right to a fair trial.^[22]

Concerns about competency and the impact of inclusive juries on fair trials

There needs to be a change in approach—a move from a focus on what people can hear to what people can actually do. It is possible to understand concepts, regardless of hearing levels. There are many ways to know and comprehend something; hearing is just one of them.^[23]—Participant in the Deaf Victoria consultation

9.8 The key fair trial concern for inclusive juries is about competency of people in the subject groups to serve as jurors. In our consultation paper we noted that two concerns can arise in relation to competency. These can be considered as general concerns and specific concerns:

General concerns—Some people believe that jurors who are deaf, hard of hearing, blind or have low vision are not competent to serve as a juror on any trial because of their disability.^[24]

Legal professionals have raised concerns about the accuracy and equivalency of Auslan-interpreted evidence^[25] and the training and qualifications of Auslan interpreters.^[26] Other concerns have been raised about having a 13th person in the jury room.^[27]

Specific concerns—There is concern that, depending on the nature of a particular trial, a person in the subject groups may not be able to evaluate certain types of evidence critical in that trial, even with reasonable adjustments.^[28]

9.9 In many circumstances a person who is deaf, hard of hearing, blind or has low vision can perform the role of a juror when reasonable adjustments are provided. As the the Office of Public Prosecutions (OPP) told us, ‘Just because you have vision or hearing loss doesn’t mean that you don’t have the ability to understand the concepts presented to you’.^[29]

9.10 In Chapter 10 we discuss practice in overseas jurisdictions, where the courts have facilitated jury service for people with ‘reasonable adjustments’ for decades, while upholding and maintaining the right to a fair trial.

Deaf jurors and Auslan interpreters

9.11 Concerns about the competency of a deaf person to serve as a juror are often tied to concerns about the role of an Auslan interpreter. Following the mock trial involving deaf jurors (discussed below) Hale and colleagues identified concerns amongst legal professionals about ‘the cognitive and language skills of prospective deaf jurors, the logistics in engaging and arranging interpreters in court, and quality or standard of interpreters’.^[30] Researchers also identified concerns about having Auslan interpreters in jury rooms and ‘accuracy and equivalency’ concerns ‘about the substantive content of interpreted evidence’.^[31]

9.12 Practical concerns about Auslan interpreting are evident in Australia’s response to the CRPD decisions (discussed in Chapter 6). For example, Australia expressed concern about the use of multiple interpreters to work with a juror and the need to rotate them every 15-40 mins, which it argued may ‘impact the continuity’ of deliberations.^[32]

9.13 In consultation, Alastair McEwin pointed to misconceptions about the role and accuracy of Auslan interpreters. He noted that this ‘plays on lawyers’ minds. They think: “What if the interpreter gets things wrong or misinterprets me?” They make assumptions about the ability of an Auslan interpreter to be effective.’^[33]

9.14 In Chapter 14 we discuss how Auslan interpreting is a highly skilled profession and interpreters are bound by a code of ethics^[34] and must undertake regular professional development training to maintain their certification.^[35] Spencer and colleagues identified among legal professionals ‘widespread ignorance of the requirements of NAATI accreditation and the Code of Ethics imposed on members of the Australian Sign Language Interpreters’ Association (ASLIA), which ensure professional accountability and confidence in the accuracy of translation by members’.^[36]

9.15 The same issues were raised in our consultations. Della Goswell from the Department of Linguistics at Macquarie University told the Commission that:

what interpreters do and how to interact with them (i.e. spoken language interpreters, let alone Auslan) is still not well understood.^[37]

9.16 The Australian Institute of Sign Language Interpreters suggested that ‘the legal profession is the most difficult to work for’.^[38] In 2017, the Judicial Council on Cultural Diversity published Recommended National Standards for Working with Interpreters in Courts and Tribunals (RNS) which extend to Auslan interpreters.^[39] The RNS promote a better working relationship between courts, judges, the legal profession and the interpreting profession. While the RNS are not mandated and are therefore not required to be followed in the courts, they provide valuable guidance and examples of best practice. A second edition was published in 2022.^[40]

9.17 There are concerns that best practice may not be occurring because the RNS may not be well known among lawyers and judicial officers.^[41] A University of New South Wales study is currently considering the uptake of the RNS across Australian courts and tribunals, the possible impact of non-adherence to RNS on interpreted proceedings and ways to improve uptake.^[42]

9.18 Spencer and colleagues identify three further substantive concerns from legal professionals regarding Auslan interpreting:

1) Whether Auslan can convey the non-verbal elements of oral evidence

The researchers did not think that this concern was sufficient to prevent the participation of deaf jurors. Sign language interpreters have a wide variety of ways to convey non-verbal communication. Maintaining sight lines between deaf jurors, witnesses, advocates and interpreters is crucial.^[43]

2) Juror reliance on secondary interpretation evidence rather than primary evidence and concerns that jurors would not all be experiencing the ‘same evidence’

We discuss this further below.

3) The option to exercise peremptory challenges over the inclusion of deaf people on juries^[44]

This may occur because of concerns about deaf jurors receiving secondary evidence or concerns that ‘more things can go wrong’ with a deaf juror on a trial.^[45]

We discuss challenges to juror selection in Chapter 17.

Concerns about juror reliance on secondary interpretation evidence

9.19 VLA and the Supreme Court raised a fair trial issue about the way in which evidence is relayed via an interpreter. Although supportive of reforms to limit the 13th person rule, VLA relayed concerns from practitioners about the way in which a juror using adjustments receives evidence:

The effect of enabling interpreters to assist jurors is that the juror is receiving the evidence via another person rather than directly from the witness or via comment from counsel or the judge; the translation may be an interpreted or filtered version of the evidence. Because jury deliberations are confidential, there is no way of knowing whether the evidence has been correctly interpreted or whether slightly different nuances have been consciously or unconsciously added to the interpretation. … We support better research on these potential risks in the course of the implementation of this reform.^[46]

9.20 Spencer and colleagues identified that concerns such as these revealed ‘anxieties about the need for judicial oversight of interpreting and attentiveness to risks that may raise implications in terms of the court’s obligation to ensure that the defendant receives a fair trial’. ^[47] We discuss fair trial safeguards including judicial oversight later in this chapter.

9.21 In response to the United Nations case of JH v Australia, Australia commented:

all interpretation from one language to another involves some degree of subjective interpretation. In particular, there may be interpretative ambiguities in conveying shade, mannerisms, nuance and tone through an Auslan interpreter. A deaf juror will not be able to make their own direct assessment of such evidence, but would instead need to rely on the interpretation of the translator.^[48]

9.22 The Supreme Court observed that ‘the “same evidence” argument is likely to be raised by counsel if the Court is required to determine whether a person who requires the assistance of an Auslan interpreter or describer is able to serve as a juror’. ^[49] It suggested that this issue may benefit from legislative clarification. The Court identified that it was not necessary for the High Court to address the argument in the Lyons case because there was no statutory provision enabling a 13th person in the jury room.^[50]

9.23 This argument can only be raised in relation to evidence presented in court when the jury is hearing or seeing evidence (interpreted or not). It does not apply to jury room deliberations. The fact that the interpretation that happens in the jury room cannot be verified is an issue which cannot be addressed under the current rules of jury confidentiality. There has never been any procedure for recording, assessing, or checking the actual substance of jury deliberations.

9.24 If concerns arise regarding the interpretation or provision of evidence to a juror from the subject groups, a juror can raise these concerns with a judge during the course of the trial. Section 78 of the Act contains a comprehensive process for the investigation of alleged irregularities. This section is designed to maintain the confidentiality of deliberations (other than for legitimate investigative purposes), and to maintain juror anonymity. The Court of Appeal can commence those procedures where a jury irregularity is alleged on an appeal.

9.25 Where reasonable adjustments are provided, the judge should direct in appropriate circumstances that the transcript record the use of those adjustments, for example for the purposes of a subsequent appeal. The record could indicate that the evidence was presented to the jury in different formats. For example, noting the use of an Auslan interpreter, a support person, a disability aid with speech-to-text programs and screen reading programs. In some circumstances it may be unnecessary to make this direction, for example, if the reasonable adjustment was the use of an assistance animal.

Research conclusions about jury service with Auslan interpreters

9.26 Academic research has examined the feasibility of deaf jurors serving with sign language interpreters in Australia and the impact on jury deliberations.^[51]

9.27 Researchers have concluded that ‘deaf people can comprehend legal discourse in a courtroom setting’ and that deaf people can participate in jury duty via an Auslan interpreter. There is ‘no measurable detriment in having a deaf person and an interpreter as part of court proceedings and in the jury deliberation room’.^[52]

9.28 Research examined how well Auslan translated legal concepts and compared the level of comprehension of deaf and hearing jurors. Key findings included:

• There was 87.5 per cent accuracy in the translation from English into Auslan.

• Legal concepts are translatable from English into Auslan, but interpreters need to be adequately skilled so as not to skew the legal definitions or to bias the text with subtle shifts in interpretation.

• Both deaf and hearing jurors misunderstood some concepts and there was not a big difference between the number of correct responses from deaf and hearing participants (2.8 per cent). Any statistical differences were likely influenced by educational background.^[53]

Australian mock trial

9.29 In 2014, a mock trial involving deaf jurors was undertaken in New South Wales to gauge what happens in deliberation and the impact on a trial.^[54] The mock trial was based on a real case. Case documents were the same as those in the original trial. It involved two deaf jurors, Auslan interpreters, lawyers, barristers and a retired judge. Actors played the part of the defendant and a witness. The mock trial lasted for a day and a half, followed by half a day of jury deliberation involving one deaf juror.^[55]

9.30 The study concluded that a deaf person could serve effectively as a juror when trained professional Auslan interpreters are engaged.^[56] The deaf juror was an active participant in the deliberation process,^[57] the involvement of the interpreter did not undermine or destabilise jury deliberation, and any distractions were only temporary.^[58] The judge reported that the mock trial was not very different to other trials he had been involved in. The judge was of the view that training should be provided on how to run proceedings that involve Auslan interpreters to judges and court staff.^[59]

9.31 To ascertain perceptions about the impact of having a deaf person as a juror, researchers have also made observations in United States courtrooms and surveyed interpreters and legal professionals about the role of the deaf juror in trials across common law countries.^[60]

9.32 The results suggested that the perceptions of legal professionals depended upon whether and to what extent they had experience working with interpreters. The results were ‘overwhelmingly more positive’ in the United States, where use of interpreters has been permitted for over 30 years in various states, as opposed to countries where this occurs less frequently or never.^[61] The researchers concluded that the ‘majority of legal professionals and interpreters agree that deaf people should not be excluded from jury service and that the administration of justice is a shared responsibility’.^[62] Respondents ‘acknowledged that it can be challenging, but no more challenging than court interpreting generally, and that the biggest hurdle was the logistics of organising teams of interpreters to be on stand-by in case a deaf person is empanelled’.^[63]

Jurors who are blind or have low vision

9.33 Vision Australia noted that ‘The community is often unaware of the advanced technology that is available to help blind people to read documents’. Some people also believe that blind people:

are unable to function in a dynamic environment such as a courtroom or a deliberation room. This is based on unfounded assumptions from a lack of contact with blind people. Blind people are often not seen in court environments. This is one reason why there is a need for reform: so that people can see blind people in these environments.^[64]

9.34 Blind jurors can hear oral testimony, discussion, trial instructions and deliberations. As the New South Wales Law Reform Commission (NSWLRC) observes, in the context of blind jurors:

the mere fact that there is evidence in the form of documents, diagrams, photographs and so on need not result in automatic exclusion of a blind juror, as in many cases there will be no issue as to its interpretation, and the content can be conveyed successfully through description or using technology. In the Commission’s view, reasonable adjustments provide scope for facilitating the inclusion of a person who is blind or has low vision on the jury panel.^[65]

9.35 In the United States, courts have held that people who are blind are presumptively capable of assessing physical evidence with appropriate supports, such as a trained describer.^[66] In Commonwealth v Heywood the Supreme Court of Massachusetts considered whether an error in law had been made to allow a blind person to serve on the jury.^[67] It was held that the blind juror could assess evidence critical to the verdict and therefore perform their role. In this case the juror could determine if the victim had suffered serious bodily injury from testimony and an evaluation of medical records:

As the injuries suffered by the victim were not visible at the time of trial, the ability to see the victim’s face during his testimony was not essential to reaching a verdict. Similarly, because of the internal nature of the injuries and subsequent surgery, photographs of the victim’s face taken close in time to the assault would not have assisted.^[68]

Assessing the demeanour of witnesses

9.36 The NSWLRC identified that the ‘main issue’ to be considered regarding the competency of jurors who are blind or have low vision is their inability to observe visual evidence or the demeanour of witnesses and therefore determine credibility.^[69] Similar concerns might also be expressed in relation to deaf jurors who will be unable to hear a witness’s voice to assess demeanour.

9.37 The way a person gives evidence, especially under cross-examination, is one factor in determining credibility. Case law indicates that relevant factors include demeanour, tone of voice, manner of speech, spontaneity in answering the question and ‘whether the plaintiff answered questions in a manner designed to satisfy the questioner or to give honest and truthful answers’.^[70]

9.38 People in the subject groups have not served on juries in Victoria. The appeal courts have therefore not had to consider a scenario where a juror might not have been able to see or hear a witness and relied on other means to assess their credibility.

The decreasing importance of demeanour evidence

9.39 In the consultation paper we noted that the significance of demeanour has reduced in favour of more objective evidence.^[71] Judges will often make a general direction to the jury that reliance on demeanour evidence must be ‘kept in balance with other considerations’.^[72] Research suggests that judges and lay people are routinely inaccurate when assessing the credibility of witnesses based on their demeanour. For example, studies indicate that conventional wisdom about the behaviour of liars, including that ‘liars look away, fidget, speak in a higher pitch or are more likely to be nervous’, is unfounded in evidence.^[73] Other studies have shown that a person’s ability to discern when someone is lying ‘functions only slightly better than random chance’.^[74]

9.40 The Judicial College of Victoria’s Serious Injury Manual emphasises:

Due to the unreliability of assessments based on demeanour, courts will generally focus on the objectively established evidence and compare that to the witness’ accounts. Inconsistencies between the objectively established evidence and a witness’ account will then reflect on the witness’ credibility …^[75]

Using different senses to assess credibility

9.41 While people who are blind may not have access to visual cues, they can still assess credibility on the basis of other senses.^[76] The Law Institute of Victoria (LIV) noted that ‘there is broad acceptance that a person with vision loss would have other heightened senses’.^[77] Similar observations were made by the Victorian Criminal Bar Association consultees.^[78]

9.42 The National Federation of the Blind, United States, cites studies finding that people who are blind are able to assess credibility evidence by focusing on verbal elements:

In evaluating testimony, blind jurors can concentrate on verbal testimony while avoiding distractions like a witness’s facial expressions, dress, appearance, and body movements. Even visual cues indicating deception, like nervous tics, darting glances and uneasy shifting, are nearly always accompanied by a corresponding audible cue such as throat-clearing, swallowing, voice quavering, or inaudibility.

As one blind juror described, ‘I’ve found that I’ve been pretty accurate—probably as, if not more accurate, than people who make eye contact, because people have gotten real good about fooling people on the visual level, but people often don’t think about how they sound when they speak.’ Another blind juror, who served on a murder trial, observed that ‘People can control face muscles … Nobody thinks about the nuances of the human voice’.^[79]

9.43 Deaf Victoria consultation participants referred to the range of tools that deaf people use to make decisions:

Many people might be surprised about how many jury members rely on non-verbal cues—eg blushing, sweating, shaking of hands etc. There are so many ways to understand and analyse a situation. Deaf people rely on these other cues even more. They are skilled at understanding facial expression and body language in a way that one could argue is superior to those who do not rely so heavily on visual cues.^[80]

Assessment of demeanour should not be a barrier to jury service

9.44 The County Court noted that while the assessment of witness demeanour is important:

judges provide a direction to jurors to the effect that witnesses behave and come across in different ways for a variety of reasons not everyone will comprehend—they come from all walks of life and there are too many variables to accurately assess the demeanour of a witness in the witness box. The Court does not see the assessment of demeanour as a potential barrier to participation.^[81]

9.45 Similarly, the OPP did not think that the ability to assess certain types of demeanour evidence should be a precluding factor.^[82] Victorian Criminal Bar Association consultees observed: ‘We have low expectations of people with disabilities. We need to expect that people with disabilities will bring their everyday skills to the task’.^[83]

9.46 On this issue, the NSWLRC concluded that:

The argument that an inability to observe demeanour should disqualify a blind or deaf person from jury service contains at least three assumptions; first, that demeanour always conveys information that aids in the interpretation of what has been consciously communicated; secondly, that the witness to another’s demeanour can interpret it accurately; and thirdly, that blind and deaf jurors are deprived of the opportunity of detecting demeanour …

While it can be important, the value of observable demeanour evidence, according to a substantial body of research, appears to have been overstated and, as such, accorded too much value as a tool for judging credibility … Consequently, it is an inappropriate determinant in the issue of eligibility for jury service.^[84]

9.47 It is the Commission’s view that all jurors use different processes to make decisions in a jury trial. In any given trial some jurors may rely heavily on demeanour evidence but others may put more weight on factual evidence. In this context, the inclusion of jurors from the subject groups is unremarkable. The unanimous verdict of a jury is about their collective conclusion. It is irrelevant how each of the jurors arrived at that verdict.

Addressing misconceptions about competency

9.48 In response to our consultation paper, several community members noted how frustrating it is when people make unfair assumptions about their abilities rather than asking them. For example, a Blind Citizens Australia consultee told us: ‘We need to be assessed if we can do a task—not just subjected to people’s views on what we can and cannot do’.^[85]

9.49 As Alastair McEwin succinctly summarised:

Deaf people confront comments and barriers to access every day, such as: ‘it’s too hard’, ‘it’s too expensive’, ‘it’s never been done before’.^[86]

9.50 Consultation participants from Deaf Victoria commented that:

We are constantly having to educate the wider community about our abilities. It is disappointing to have to do this in the legal sector which should be representative and inclusive of the broader community.

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.^[87]  

9.51 Almost all of the people we spoke to or heard from who were deaf, hard of hearing, blind or have low vision commented that they are routinely underestimated.^[88] They told us that this happens because of misconceptions in the community about the ability of people with sensory disabilities to comprehend information.^[89] Alastair McEwin told the Commission, ‘Just because a person can’t hear sound, doesn’t mean there is a lack of comprehension.’^[90]

9.52 The Commission was told that people in the subject groups are limited by the imaginations of those who do not have a sensory disability. A Blind Citizens Australia consultation participant told the Commission:

Some people try to imagine how they would do a task without sight and cannot, so they can’t imagine how we could do it. We are limited by their imaginations, rather than being asked how we can do things.^[91]

9.53 Another consultee told us about his personal experience:

I was standing around with the other blokes at the bowls club, and everyone was asked if they would like to be on the committee except me. I asked, ‘Why didn’t you ask me?’. They said, ‘Oh we didn’t think you could do it.’ Since then, I’ve been a committee member, a senior member, and the President!^[92]

9.54 We were told that young people within the subject groups are particularly concerned about being ignored and disempowered. Youth Disability Advocacy Service (YDAS) observed:

young people with disabilities face difficulties accessing information. They are often the subject of ‘gatekeeping’. Organisations and service providers target the parent/carer/guardian when providing information rather than the young person. Essentially, young adults with disabilities are underestimated to the point that they are not able to be autonomous.^[93]

9.55 Numerous community members noted the negative impact that these assumptions and low expectations have on their lives. One consultation participant noted: ‘Many of us can have children and raise them in a flourishing environment. Misconceptions can negatively impact our lives and those of our children.’^[94]

Why do misconceptions arise?

9.56 Alastair McEwin suggested that misconceptions about the abilities of deaf people arise for a range of reasons including the social isolation of deaf people from hearing people. He observed that ‘the vast majority of hearing people don’t have much, if any, contact with deaf people’.^[95]

9.57 Consultees from the Victorian Criminal Bar Association told us that there ‘is a general lack of understanding of the capabilities of deaf/blind jurors and the work and function of Auslan interpreters’.^[96] We have also been told that there are very few lawyers or judges with disability.

9.58 A deaf participant in the consultation with YDAS referred to a personal experience of being a witness in court. The participant noted that ‘I could see that the jury did not understand my lived experience’ and that the jury did not seem to understand anything about Auslan.^[97]

9.59 The Australian Law Reform Commission has found that ‘negative attitudes and a lack of awareness about disability was a significant barrier to people with disability accessing justice’.^[98] The South Australian Law Reform Institute recently noted that barriers to effective participation in legal proceedings for people with complex communication needs (including people with hearing impairments)^[99] include:

knowledge and skills barriers (ie, legal professionals lack knowledge and training about how to work with people with disabilities, police prioritisation of crimes and lack of skill in taking statements from people with disability) and attitude barriers (ie, myths about people with disability …).^[100]

9.60 Della Goswell noted:

The legal profession would benefit from exposure to other deaf people and the broader deaf community—to have a more realistic sense of their experiences and abilities. Deaf jurors could add to this positive exposure.^[101]

9.61 Consultees from the County Court told the Commission that in their view ‘there is no general prejudice or bias against people with disability in the Court. There may of course be unconscious bias. Concern is more likely to arise in relation to the added burden on the trial judge’ and the ‘more that reforms can front load the assessment and provision of supports the more likely reform will be supported in practice’.^[102]

9.62 Researchers who ran the mock trial in New South Wales involving a deaf juror observed that:

One of the comments from the judge in the mock trial was that a criminal trial is a delicate thing, and you’re managing a number of things at once. Once you press the go button you can’t stop. So, he was anxious about adding another difficult thing to the mix.

While that is not a reason to not amend the law to allow deaf jurors to serve, you do need to engage with those anxieties. It is an issue of changing hearts and minds.^[103]

9.63 Training about the operation of new laws and the role of adjustments will assist to allay concerns in the legal profession about reform. Disability awareness training for the profession to address conscious and unconscious bias, with a practical focus and involving people with disabilities, will also be very important. We discuss these reforms in Chapters 14, 15 and 18.

When might jury service not be possible?

9.64 All jurors, including those from the subject groups, must be able to:

• perceive evidence

• comprehend evidence

• follow court proceedings

• deliberate effectively with their fellow jurors.

9.65 There may be situations where a potential juror is unable to perform their role because of the nature of evidence in a particular trial and their inability to adequately comprehend it, even with adjustments. For example, a case might turn upon identifying a voice in a phone call or identifying a person from a photograph or CCTV. A person who cannot hear or see the evidence may not be able to adequately perform the role of juror in that particular case.

Community responses: when jury service is not possible

9.66 Most responses to the Commission agreed that, in some situations, the combination of a particular disability and the nature of evidence that is material to the outcome of a trial may mean that a person from the subject groups is unable to perform their role as juror, even with reasonable adjustments.^[104] Responses were mixed about how often this issue might arise.

9.67 The OPP identified that it will be important for a trial judge to be able to exclude a person where, ‘notwithstanding supports, that person could not perform their duty in the circumstances of the trial’. It suggested that, in those circumstances, the potential juror should return to the jury pool.^[105]

CCTV and voice identification evidence

9.68 The legal community raised concerns about trials where it was critical to establish identity through voice or CCTV footage.^[106] The County Court noted that ‘Matters involving visual or voice identification cannot always be anticipated—they sometimes arise part way through a trial’.^[107]

9.69 Brent Phillips agreed that there may be some situations where it would be difficult for a deaf person to serve:

If there is evidence that a deaf juror cannot hear and hearing it is crucial/critical to a trial then the deaf juror can’t serve as a juror. Some sort of risk assessment should occur. The juror would make a personal decision about that. If this only occurs rarely, then it makes sense that a deaf person is then put back into the pool.

Evidence might also be introduced during the trial that may be difficult for a deaf juror to evaluate, so they may have to be discharged in such circumstances later.^[108]

9.70 Vision Australia acknowledged that it ‘is necessary to evaluate whether the trial is “inherently visual in nature”’. It was acknowledged that ‘if so, … a blind/low vision person would be unable to serve’.^[109] It provided two potential examples, a jury being required to compare two graphic images in a trial about a trademark ownership dispute or CCTV being crucial to the determination of guilt or innocence.^[110]

9.71 Peter Ward told the Commission that, as ‘a person with low vision, there are things I can do and there are things I can’t do. I have to recognise what I can’t do’.^[111] Similar comments were made in the consultation with Blind Citizens Australia. Some participants suggested that they would feel uncomfortable serving in a trial that involved lots of visual evidence. It was suggested it ‘would be easier to serve when the trial involved mostly documentation or oral evidence from witnesses’.^[112]

CCTV and identification evidence is not always material to a trial’s outcome

9.72 Importantly, the legal community noted that voice and identification evidence is not always material to the outcome of a trial.^[113] For example, eyewitness accounts may also be relevant. Victorian Criminal Bar Association consultees noted that:

the Commission should guard against generalisations. Just because there is CCTV evidence, does not necessarily mean that a blind person cannot sit on the jury. The way in which the evidence is going to be used needs to be considered. For example, is it about identifying who a person is? In such a case they might be precluded, but this should be considered on a case by case basis, as not that many cases rely wholly on CCTV footage. Other CCTV evidence might be about what the person did or could they have done something else or nothing at all? This might be less crucial. It was observed that in the County Court many cases have no CCTV evidence.^[114]

9.73 A member of the Victorian Criminal Bar Association referred to the evidence presented in Latorre v The Queen.^[115] A key piece of evidence was a voicemail message, and the jury was required to determine whether it was the applicant’s voice on the line. In such cases, the evidence does not require expert testimony and is ‘considered by the jury in the context of appropriate instructions by the judge.’^[116] This principle applies to both visual and voice identification evidence.^[117] Whether a deaf juror could serve in this type of situation should be determined by a judge. It was noted that these types of cases ‘are not that common and should be viewed as exceptions’.^[118]

9.74 Similar comments were made in community responses.^[119] Vision Australia observed that, ‘Just because a trial has some visual evidence doesn’t mean a blind or low vision juror could not serve. It would need to be critical to the outcome of the trial’.^[120] It identified that:

The key to prima facie exclusion of a prospective juror who is blind or has low vision is whether each juror must arrive at their own interpretation of visual material and whether the jury’s interpretation will affect the outcome of the trial … We feel that such situations would be relatively uncommon.^[121]

The importance of an individual assessment

9.75 Blind Citizens Australia argued that any assessment of a person’s ability to serve as a juror should only take place ‘after support services provided to perform jury service are considered’. Only then ‘can difficulty performing jury service on the basis of blindness or vision impairments be grounds for being excused from jury service on the basis of the blindness or vision impairment’.^[122]

9.76 Supreme Court consultees noted in consultation that:

In most cases there should not be any issues with service if supports can be provided reasonably. However, it is hard to know in the abstract how often it will not be appropriate for a person with an impairment to serve. It is unclear how much of the evidence must be of concern (eg because it is audio only) before the case becomes unsuitable for a person with an impairment to serve as a juror. … These issues would probably need to be determined on a case by case basis.^[123]

9.77 VLA submitted that:

VLA supports giving the judge the power to decide on a case by case basis, with the overriding test being the interests of justice in each case. Given the interrelationship between the potential juror’s individual impairments, the nature of the evidence, and the nature of the key issues at trial, as well as the rapid advancements in both technological supports and forensic evidence, it is not practical to set specific exclusions or exhaustive criteria.^[124]

9.78 In Chapter 11 the Commission recommends that the trial judge make the final decision about jury service with adjustments. If it is clear at the start of the empanelment process that a person is not able to comprehend evidence that is material to the outcome of a trial, that person should not serve on that particular trial. The question of whether certain evidence is material to the outcome of a trial, and the potential juror’s ability to perform their role, should be determined by a trial judge. If this issue arises after the trial has commenced, then the judge may decide to discharge that juror, as they already have the power to do.^[125]

Other evidentiary concerns

9.79 The Supreme Court provided examples of cases:

that do not turn upon voice or visual identification evidence but involve such a significant volume of audio-only or visual-only evidence that allowing someone in the subject groups to serve as a juror would create an unacceptable risk of prejudice to the accused. For example, a trial involving a high volume of recordings from surveillance devices and telephone intercepts where the jury is invited to draw conclusions based on tone or emphasis. Another possible example is a trial heavily reliant on visual observations, where a jury may be taken on a view of a crime scene as a critical part of the evidence.^[126]

9.80 The LIV provided the example of CCTV and driving cases involving maps and reconstructions which might be difficult for a blind person to access.^[127] However, the LIV noted it should be up to the judge to ‘assess their capacity based on the facts, evidence and arguments the trial will involve’.^[128]

9.81 The County Court submission raised concerns about breaks for Auslan interpreters extending the duration of a trial. It was suggested that ‘this will also impact on other jurors and court resources’ including ‘the rights of the accused to a fair trial and the swift administration of justice’.^[129] The Commission has been told that Auslan interpreters generally work in pairs so that they can relieve each other in a seamless manner. They will need occasional breaks because the work is exhausting, but regular disruptions to the trial are not anticipated.

9.82 All of these factors would need to be considered by the trial judge in making an assessment about whether it is reasonable to provide adjustments in a particular trial (see Chapter 11).

Safeguards can protect the right to a fair trial

9.83 It is possible to uphold the right to a fair trial and involve people in the subject groups as jurors. In Chapter 10 we examine practices in overseas jurisdictions where judges have comparable obligations to uphold a fair trial and where people in the subject groups have been serving as jurors for many years.

9.84 As noted earlier in the chapter, there are already extensive mechanisms aimed at ensuring impartiality and a fair trial.^[130] These apply to all potential jurors, including people in the subject groups. The Victorian Criminal Bar Association consultees told the Commission that:

a juror can be discharged at any time during a case (the example was provided of a juror who found sitting to be too emotional and stressful, so they asked to be discharged after one day), so this should not be a big issue. If a juror doesn’t want to be there they shouldn’t be there. Most jurors have no idea what it is like to be in a trial. … There are lots of options available to the parties to address issues with jurors as they come up.^[131]

A cautious approach to additional safeguards

9.85 In recommending additional fair trial safeguards relating to the use of reasonable adjustments, the Commission is conscious of not making it overly difficult for people in the subject groups to participate. As one consultation participant noted:

It will be brilliant to have the opportunity to sit on a jury. However, we should not have to jump through an exhausting range of hoops to do so.^[132]

9.86 It is important that people in the subject groups do not feel that their participation is receiving more scrutiny than others in the community. We do not assess the competency of other jurors unless their impartiality or ability to perform their role comes into question. As Alastair McEwin noted:

If you select a random group of people, you might find one of them falls asleep during the hearing, one is a misogynist, one didn’t finish year 12, etc. There are all types of people in the community, with all types of strengths and weaknesses.^[133]

9.87 One survey respondent noted that:

In the few cases where being able to hear or see is an inherent requirement of doing the ‘job’ of a juror, then fine. But in that case, I hope you’ll be testing the sight and hearing of every potential juror. Not to mention written and spoken English comprehension which surely is a more frequent requirement.^[134]

9.88 Similarly, consultation participants from Deaf Victoria noted that:

deaf people have to justify why they are not only up to the task but ten times better than anyone else so that they can participate in a normal process.^[135]

9.89 The researchers who ran the mock trial for deaf jurors in New South Wales suggested that the ‘spectrum of ability in the community should be highlighted so that judges don’t apply too strict a judgement on whether a deaf juror can serve at the outset’.^[136]

9.90 As the Victorian Criminal Bar Association consultees observed, we do not ask people about their mental state, their IQ, or whether they are biased, ‘we just trust them to raise any issues that will preclude them from sitting on the jury’.^[137]

9.91 Alastair McEwin warned that there is a tendency to focus on the most extreme scenarios or barriers for people with disabilities. Instead, reform should focus on ‘the bigger picture … Let’s not get too caught up in the exceptions. Let’s work towards finding a solution.’^[138]

Empanelling extra jurors

9.92 The Commission was asked to consider if it is necessary to empanel additional jurors as a back-up in case a juror from the subject groups is unable to perform their role during trial. The extra juror ‘could then be cast off prior to the deliberations as with other trials if not needed’.^[139] The Office of Public Prosecutions observed that:

Trial estimates often blow out due to unforeseen circumstances such as witness unavailability. A person who requires supports may decide after a time that it is too difficult for them to continue. Additional jurors would become a backup as occurs in the case of long trials.

Another conceivable scenario would be if evidence is adduced that was not foreseen and that could not be evaluated adequately by the juror with hearing or vision loss. In such circumstances, there might be a role for an additional juror to replace the juror who has vision or hearing loss.^[140]

9.93 The Commission does not support this idea for three reasons:

1) In Chapter 11 we recommend an assessment process to determine if the person from the subject groups is able to serve. The potential juror will also be well briefed about their role (more so than any other member of the community) so it is unlikely that they will be surprised by what is expected of them. While there is a chance that they will not be able to continue to serve as a juror (for example, if evidence is adduced that was not initially anticipated and they have difficulty accessing that evidence), this risk is not any higher than for any other juror.

2) There is already a provision in the Act that allows extra jurors to be empanelled.^[141] If a juror must be discharged,^[142] the court can order that the trial continues with a smaller jury.^[143] Therefore, no amendments to the Act are required to address the concerns raised.

3) The process by which a surplus juror is cast off (known as balloting-off)^[144] can be very upsetting for those who are removed.^[145] In the jury empanelment report the Commission recommended that section 48 should be repealed to end the balloting-off process and that it was preferable to allow the taking of a verdict from an enlarged jury.^[146]

9.94 Ultimately, empanelling an extra juror when a person from the subject groups is serving would undermine the system of assessment recommended in this report in Chapters 11 and 12. It could also be perceived to perpetuate discrimination against the affected juror, by creating a public expectation that they will not be able to perform their role. It will possibly also have an effect on the other jurors, who may perceive that the affected juror is not capable and is likely to be discharged anyway. The Commission’s preferred option is to rely on existing powers for a juror to be discharged if necessary and for the trial to proceed with a reduced jury.

Steps to safeguard the right to a fair trial

9.95 In the Commission’s view, the following steps, outlined in Chapters 11 and 12, can safeguard the right to a fair trial.

• A comprehensive assessment of the provision of reasonable adjustments should be conducted by Juries Victoria, involving the person from the subject groups and subject to clear legislative guidance.

• A judge should make the final decision about the ability of a person in the subject groups to perform jury duty in a particular trial.

• An interpreter or support person should provide an oath to the Court to maintain the confidentiality of deliberations and not get involved in the process and be subject to penalties for breaches of obligations.

• An interpreter or support person should meet certain basic training requirements and comply with standards and a code of conduct (discussed in Chapters 14

and 15).

1. Submission 11 (Supreme Court of Victoria).

   ↑

2. See Victorian Law Reform Commission, Jury Empanelment (Report No 27, May 2014) 39 [3.140].

   ↑

3. International Covenant on Civil and Political Rights, GA Res 2200A (XXI), UN Doc A/6316 (16 December 1966, Adopted 23 March 1976) art 14; Charter of Human Rights and Responsibilities Act 2006 (Vic) s 24(1).

   ↑

4. See, eg, Haddara v The Queen [2014] VSCA 100, (2014) 43 VR 53, [16]; James v The Queen [2014] HCA 6, (2014) 253 CLR 475, [38], cited in Submission 11 (Supreme Court of Victoria).

   ↑

5. Submission 11 (Supreme Court of Victoria), citing R v Searle (1993) 2 VR 367, 374–6, (Marks and McDonald JJ) (Supreme Court of Victoria, Marks, Hampel and McDonald JJ, 24 June 1993); Victorian Law Reform Commission, Jury Empanelment (Report No 27, May 2014); R v Bunting [2003] SASC 257, (2003) 139 A Crim R 562, [13]–[14].

   ↑

6. Juries Act 2000 (Vic) s 11. There is also a general power to excuse a person if they are unable to serve for any other reason under s 32(3)(b).

   ↑

7. Ibid s 12.

   ↑

8. Ibid s 43, or if the juror becomes ill or if the judge thinks that for any other reason the juror should not continue to act as a juror.

   ↑

9. Victorian Law Reform Commission, Jury Empanelment (Report No 27, May 2014) 36–37 [3.120]. See also Glossary.

   ↑

10. Juries Act 2000 (Vic) s 32. See also Judicial College of Victoria, ‘11.1 Selecting a Jury’, Victorian Criminal Proceedings Manual (Online Manual, 30 August 2021) <https://www.judicialcollege.vic.edu.au/eManuals/VCPM/index.htm#27318.htm>.

    ↑

11. As explained in our Jury Empanelment report, a ‘challenge to the array is a common law right to challenge the entire panel. It requires the party to establish that there has been bias on the part of the Juries Commissioner or the pool supervisor or some other default in respect of the constitution of the panel. A challenge for cause requires the party to provide a reason to the trial judge as to why the prospective juror should not be part of the jury. Challenges for cause and to the array are very rare in Victoria’: Victorian Law Reform Commission, Jury Empanelment (Report No 27, May 2014) 23 [3.21]–[3.23]. For further discussion about these challenges and relevant case law: see Judicial College of Victoria, ‘11.1 Selecting a Jury’, Victorian Criminal Proceedings Manual (Online Manual, 30 August 2021) [53]–[89] <https://www.judicialcollege.vic.edu.au/eManuals/VCPM/index.htm#27318.htm>.

    ↑

12. This report only considers peremptory challenges and Crown stand asides.

    ↑

13. Juries Act 2000 (Vic) sch 3.

    ↑

14. Judicial College of Victoria, ‘1.5 Decide Solely on the Evidence’, Victorian Criminal Charge Book (Online Manual, 14 May 2021) [1] <www.judicialcollege.vic.edu.au/eManuals/CCB/index.htm#19193.htm>, citing R v Glennon (1992) 173 CLR 592, (High Court of Australia, Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ, 6 May 1992); Murphy v The Queen (1989) 167 CLR 94, (High Court of Australia, Mason CJ, Brennan, Deane, Dawson and Toohey JJ, 30 May 1989); R v VPH (New South Wales Court of Criminal Appeal, Gleeson CJ, Newman and Sully JJ, 4 March 1994); R v Vjestica [2008] VSCA 47, (2008) 182 A Crim R 350.

    ↑

15. Juries Act 2000 (Vic) s 78A; Victorian Law Reform Commission, Jury Empanelment (Report No 27, May 2014) 37 [3.120].

    ↑

16. Juries Act 2000 (Vic) sch 2.

    ↑

17. Ibid s 8.

    ↑

18. Ibid s 9.

    ↑

19. Submissions 7 (Law Institute of Victoria), 8 (Victoria Legal Aid), 11 (Supreme Court of Victoria), 14 (County Court of Victoria); Consultations 4 (Victorian Criminal Bar Association) 16 (Office of Public Prosecutions Victoria), 25 (Peter Ward, Partner, Galbally and O’Bryan Lawyers).

    ↑

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

    ↑

21. Submission 11 (Supreme Court of Victoria).

    ↑

22. Submission 8 (Victoria Legal Aid).

    ↑

23. Consultation 6 (Deaf Victoria and community participants).

    ↑

24. 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, 341–342; Jemina Napier and Alastair McEwin, ‘Do Deaf People Have the Right to Serve as Jurors in Australia?’ (2015) 40(1) Alternative Law Journal 23, 26.

    ↑

25. 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, 332, 341–343.

    ↑

26. Jemina Napier and Alastair McEwin, ‘Do Deaf People Have the Right to Serve as Jurors in Australia?’ (2015) 40(1) Alternative Law Journal 23, 26.

    ↑

27. Ibid.

    ↑

28. 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, 343–345.

    ↑

29. Consultation 16 (Office of Public Prosecutions Victoria).

    ↑

30. See generally Sandra Hale et al, Participation in the Administration of Justice: Deaf Citizens as Jurors (Australian Research Council Linkage Project No 120200261, 2016) 19.

    ↑

31. 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, 341.

    ↑

32. Australian Government, Response of Australia to the Committee on the Rights of Persons with Disabilities in Communication No 35/2016 (JH v Australia) (Human Rights Communication, 11 February 2020) [12]; Australian Government, Response of Australia to the Committee on the Rights of Persons with Disabilities in Communication No 11/2013 (GB v Australia) and 13/2013 (ML v Australia) (Human Rights Communication, 24 October 2016) [10].

    ↑

33. Consultation 24 (Alastair McEwin AM, Royal Commissioner, Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, in his personal capacity).

    ↑

34. Australian Institute of Interpreters and Translators (AUSIT), Code of Ethics (November 2012); Australian Sign Language Interpreters’ Association (ASLIA), Code of Ethics and Guidelines for Professional Conduct (2007).

    ↑

35. Consultations 13 (National Accreditation Authority for Translators and Interpreters (NAATI)), 18 (Australian Sign Language Interpreters’ Association, Victoria and Tasmania (ASLIA)), 19 (Australian Institute of Interpreters and Translators (AUSIT)).

    ↑

36. 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, 342. These observations were based on post-mock-trial interviews with those involved, as well as a large focus group ‘with members of the NSW Supreme Court bench, senior barristers and solicitors and Department of Justice representatives’.

    ↑

37. Consultation 21 (Della Goswell, Lecturer, Convenor Auslan-English Interpreting Program, Macquarie University, NSW).

    ↑

38. Consultation 19 (Australian Institute of Interpreters and Translators (AUSIT)). For further information about the concerns of lawyers working in a court or tribunal setting: see Erika Gonzalez, Survey on the Implementation of the Recommended National Standards for Working with Interpreters in Courts and Tribunals (Report, November 2020).

    ↑

39. Judicial Council on Cultural Diversity, Recommended National Standards for Working with Interpreters in Courts and Tribunals (Report, 2017).

    ↑

40. Judicial Council on Cultural Diversity, Recommended National Standards for Working with Interpreters in Courts and Tribunals (Report, Second Edition, March 2022).

    ↑

41. For example, a 2020 study by Australian Institute of Interpreters and Translators noted that nearly 35% of survey participants were not aware of the RNS. Further, 10.62% of survey respondents stated that the RNS are never applied, 76.77% mentioned that they are applied sometimes, and 12.61% mentioned that they are applied always: Erika Gonzalez, Survey on the Implementation of the Recommended National Standards for Working with Interpreters in Courts and Tribunals (Report, November 2020) 5–6.

    ↑

42. Professor Ludmila Stern et al, Access to Justice in Interpreted Proceedings: The Role of Judicial Officers (Australia Research Council Linkage Project, University of New South Wales) <https://research.unsw.edu.au/projects/access-justice-interpreted-proceedings-role-judicial-officers>; Information provided by Professor Ludmila Stern to Victorian Law Reform Commission
    
    (30 November 2021).

    ↑

43. 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, 341-2.

    ↑

44. Ibid 344-5.

    ↑

45. Sandra Hale et al, Participation in the Administration of Justice: Deaf Citizens as Jurors (Australian Research Council Linkage Project No 120200261, 2016) 20.

    ↑

46. Submission 8 (Victoria Legal Aid).

    ↑

47. 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, 342.

    ↑

48. Australian Government, Response of Australia to the Committee on the Rights of Persons with Disabilities in Communication No 35/2016 (JH v Australia) (Human Rights Communication, 11 February 2020) [12]. Similar comments were made in response to Beasley and Lockrey’s cases: Australian Government, Response of Australia to the Committee on the Rights of Persons with Disabilities in Communication No 11/2013 (GB v Australia) and 13/2013 (ML v Australia) (Human Rights Communication, 24 October 2016) [13].

    ↑

49. Submission 11 (Supreme Court of Victoria).

    ↑

50. Ibid.

    ↑

51. For more extensive discussion of this research: see Victorian Law Reform Commission, Inclusive Juries—Access for People Who Are Deaf, Hard of Hearing, Blind or Have Low Vision (Consultation Paper, December 2020) ch 6. We consulted with the following academics for this report: Consultation 3 (Academics: Professor Jemina Napier (Heriot-Watt University), Professor Sandra Hale (University of New South Wales), Associate Professor Mehera San Roque (University of New South Wales)).

    ↑

52. 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, 345.

    ↑

53. The key findings are summarised in Jemina Napier and Alastair McEwin, ‘Do Deaf People Have the Right to Serve as Jurors in Australia?’ (2015) 40(1) Alternative Law Journal 23. Key studies cited include: Jemina Napier and David Spencer, Guilty or Not Guilty? An Investigation of Deaf Jurors’ Access to Court Proceedings via Sign Language Interpreters (New South Wales Law Reform Commission Research Report No 14, 2007); Jemina Napier and David Spencer, ‘Jury Instructions: Comparing Hearing and Deaf Jurors’ Comprehension via Direct or Mediated Communication’ (2017) 24(1) International Journal of Speech Language and the
    Law 1.

    ↑

54. Sandra Hale et al, Participation in the Administration of Justice: Deaf Citizens as Jurors (Australian Research Council Linkage Project No 120200261, 2016).

    ↑

55. Consultation 3 (Academics: Professor Jemina Napier (Heriot-Watt University), Professor Sandra Hale (University of New South Wales), Associate Professor Mehera San Roque (University of New South Wales)).

    ↑

56. Sandra Hale et al, Participation in the Administration of Justice: Deaf Citizens as Jurors (Australian Research Council Linkage Project No 120200261, 2016) 20.

    ↑

57. Ibid 12.

    ↑

58. Ibid 15.

    ↑

59. Ibid.

    ↑

60. 179 sign language interpreters and 97 legal professionals from Australia, Canada, the United States, United Kingdom, Ireland, South Africa and New Zealand responded to an online survey: see Jemina Napier and Alastair McEwin, ‘Do Deaf People Have the Right to Serve as Jurors in Australia?’ (2015) 40(1) Alternative Law Journal 23, 26.

    ↑

61. Ibid.

    ↑

62. Ibid 27.

    ↑

63. Ibid 27.

    ↑

64. Consultation 7 (Vision Australia).

    ↑

65. New South Wales Law Reform Commission, Blind or Deaf Jurors (Report No 114, September 2006) 50 [3.8].

    ↑

66. People v Caldwell, 603 NYS 2d 713, 714 (1993); People v Hayes, 923 P 2d 221, 226–7 (Colo App, 1995). People v Hayes was a case about a blind judge who did not disqualify himself from considering a case that involved video evidence, but had it described to him. The person appealed their conviction, but the Court of Appeals found that the judge was right not to disqualify himself.

    ↑

67. Commonwealth v Heywood, 484 Mass 43 (2020).

    ↑

68. Ibid 1024.

    ↑

69. New South Wales Law Reform Commission, Blind or Deaf Jurors (Report No 114, September 2006) 50 [3.7].

    ↑

70. Judicial College of Victoria, ‘5 Assessing Credit’, Serious Injury Manual (Online Manual, 2015) [15] <https://www.judicialcollege.vic.edu.au/eManuals/SIM/53962.htm>, citing Woolworths Ltd v Warfe [2013] VSCA 22, [114]; Markes v Futuris Automotive Interiors [2014] VCC 1420.

    ↑

71. Victorian Law Reform Commission, Inclusive Juries—Access for People Who Are Deaf, Hard of Hearing, Blind or Have Low Vision (Consultation Paper, December 2020) 48–51 [6.14]–[6.29], citing Fox v Percy [2003] HCA 22, (2003) 214 CLR 118, [31]. See also New South Wales Law Reform Commission, Blind or Deaf Jurors (Report No 114, September 2006) 51; CSR Ltd v Della Maddalena [2006] HCA 1, (2006) 224 ALR 1.

    ↑

72. New South Wales Law Reform Commission, Blind or Deaf Jurors (Report No 114, September 2006) 53 [3.15].

    ↑

73. Judicial College of Victoria, ‘5 Assessing Credit’, Serious Injury Manual (Online Manual, 2015) [18] <https://www.judicialcollege.vic.edu.au/eManuals/SIM/53962.htm>, citing Aldert Vrij, Detecting Lies and Deceit: Pitfalls and Opportunities (John Wiley and Sons, 2008); Paul Ekman and Maureen O’Sullivan, ‘Who Can Catch a Liar?’ (1991) 46(9) American Psychologist 913, 913–920; Michael Green, ‘Credibility Contests: The Elephant in the Room’ (2014) 18(1) International Journal of Evidence and Proof 28, 28–40.

    ↑

74. Judicial College of Victoria, ‘5 Assessing Credit’, Serious Injury Manual (Online Manual, 2015) [19] <https://www.judicialcollege.vic.edu.au/eManuals/SIM/53962.htm>, citing Steven I Friedland, ‘On Common Sense and the Evaluation of Witness Credibility’ (1989) 40(1) Case Western Reserve Law Review 63; Charles F Bond Jr and Bella M DePaulo, ‘Accuracy of Deception Judgments’ (2006) 10(3) Personality and Social Psychology Review 214.

    ↑

75. Judicial College of Victoria, ‘5 Assessing Credit’, Serious Injury Manual (Online Manual, 2015) [24] <https://www.judicialcollege.vic.edu.au/eManuals/SIM/53962.htm>.

    ↑

76. Consultation 1 (Blind Citizens Australia).

    ↑

77. Consultation 2 (Law Institute of Victoria).

    ↑

78. Consultation 4 (Victorian Criminal Bar Association).

    ↑

79. National Federation of the Blind, National Federation of the Blind of Massachusetts, and Disability Law Centre, ‘The Right of Blind People to Serve on Juries Comes to the Court’ (2019) 62(9) Braille Monitor <https://nfb.org/resources/publications-and-media/braille-monitor>, citing D Nolan Kaiser, ‘Juries, Blindness, and the Juror Function’ (1984) 60(2) Chicago Kent Law Review 19, 200; Matthew J Crehan, ‘Seating the Blind Juror’ (1997) 81(3) Judicature 104, 106.

    ↑

80. Consultation 6 (Deaf Victoria and community participants).

    ↑

81. Submission 14 (County Court of Victoria).

    ↑

82. Consultation 16 (Office of Public Prosecutions Victoria).

    ↑

83. Consultation 4 (Victorian Criminal Bar Association).

    ↑

84. New South Wales Law Reform Commission, Blind or Deaf Jurors (Report No 114, September 2006) 53 [3.14]–[3.15].

    ↑

85. Consultation 1 (Blind Citizens Australia).

    ↑

86. Consultation 24 (Alastair McEwin AM, Royal Commissioner, Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, in his personal capacity).

    ↑

87. Consultation 6 (Deaf Victoria and community participants).

    ↑

88. Consultations 1 (Blind Citizens Australia), 6 (Deaf Victoria and community participants), 7 (Vision Australia), 8 (Brent Phillips), 24 (Alastair McEwin AM, Royal Commissioner, Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, in his personal capacity).

    ↑

89. For example, Consultations 6 (Deaf Victoria and community participants), 7 (Vision Australia), 13 (National Accreditation Authority for Translators and Interpreters (NAATI)).

    ↑

90. Consultation 24 (Alastair McEwin AM, Royal Commissioner, Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, in his personal capacity). Similarly, a member of Deaf Victoria noted that: ‘There is an underlying attitude that deafness equates to “can’t”. However, the ability to hear is different from the ability to understand and comprehend’: Consultation 6 (Deaf Victoria and community participants).

    ↑

91. Consultation 1 (Blind Citizens Australia).

    ↑

92. Ibid.

    ↑

93. Consultation 17 (Youth Disability Advocacy Service (YDAS)).

    ↑

94. Consultation 6 (Deaf Victoria and community participants).

    ↑

95. Consultations 24 (Alastair McEwin AM, Royal Commissioner, Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, in his personal capacity), 21 (Della Goswell, Lecturer, Convenor Auslan-English Interpreting Program, Macquarie University, NSW).

    ↑

96. Consultation 4 (Victorian Criminal Bar Association).

    ↑

97. Consultation 17 (Youth Disability Advocacy Service (YDAS)).

    ↑

98. 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) [61], citing Australian Human Rights Commission, Equal before the Law: Towards Disability Justice Strategies (Report, February 2014) 12.

    ↑

99. South Australian Law Reform Institute, Providing a Voice to the Vulnerable: A Study of Communication Assistance in South Australia (Report No 16, 2021) [2.3.50]–[2.3.56].

    ↑

100. Ibid [2.3.2].

     ↑

101. Consultation 21 (Della Goswell, Lecturer, Convenor Auslan-English Interpreting Program, Macquarie University, NSW).

     ↑

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

     ↑

103. Consultation 3 (Academics: Professor Jemina Napier (Heriot-Watt University), Professor Sandra Hale (University of New South Wales), Associate Professor Mehera San Roque (University of New South Wales)).

     ↑

104. For example, Submission 7 (Law Institute of Victoria); Consultation 5 (Expression Australia).

     ↑

105. Consultation 16 (Office of Public Prosecutions Victoria).

     ↑

106. Ibid.

     ↑

107. Submission 14 (County Court of Victoria).

     ↑

108. Consultation 8 (Brent Phillips).

     ↑

109. Consultation 7 (Vision Australia). Similar comments were made about a scenario where all the evidence was audio based and the prospective juror was deaf: see Submission 9 (Madison).

     ↑

110. Submission 10 (Vision Australia).

     ↑

111. Consultation 25 (Peter Ward, Partner, Galbally and O’Bryan Lawyers).

     ↑

112. Consultation 1 (Blind Citizens Australia).

     ↑

113. For example, Consultation 16 (Office of Public Prosecutions Victoria).

     ↑

114. Consultation 4 (Victorian Criminal Bar Association).

     ↑

115. Latorre v The Queen [2012] VSCA 280, (2012) 226 A Crim R 319. The original case concerned allegations of blackmail and extortion. The appeal considered the use of voice identification evidence and warnings given to juries about the use of that appeal evidence. Relevant for this report was the key issue of whether a message left on the phone from a telephone box was made by the accused.

     ↑

116. Ibid [70].

     ↑

117. Ibid [144].

     ↑

118. Consultation 4 (Victorian Criminal Bar Association).

     ↑

119. For example, Consultation 25 (Peter Ward, Partner, Galbally and O’Bryan Lawyers).

     ↑

120. Consultation 7 (Vision Australia).

     ↑

121. Submission 10 (Vision Australia).

     ↑

122. Position Statement 1 (Blind Citizens Australia).

     ↑

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

     ↑

124. Submission 8 (Victoria Legal Aid).

     ↑

125. Juries Act 2000 (Vic) s 43(d).

     ↑

126. Submission 11 (Supreme Court of Victoria).

     ↑

127. Consultation 2 (Law Institute of Victoria).

     ↑

128. Submission 7 (Law Institute of Victoria).

     ↑

129. Submission 14 (County Court of Victoria). The OPP also raised concerns that if trials run for longer because of reasonable adjustments this may impact the ability of other people to serve. Consultation 16 (Office of Public Prosecutions Victoria).

     ↑

130. Ibid.

     ↑

131. Consultation 4 (Victorian Criminal Bar Association).

     ↑

132. Consultation 6 (Deaf Victoria and community participants).

     ↑

133. Consultation 24 (Alastair McEwin AM, Royal Commissioner, Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, in his personal capacity).

     ↑

134. Online Survey (Response 4).

     ↑

135. Consultation 6 (Deaf Victoria and community participants).

     ↑

136. Consultation 3 (Academics: Professor Jemina Napier (Heriot-Watt University), Professor Sandra Hale (University of New South Wales), Associate Professor Mehera San Roque (University of New South Wales)).

     ↑

137. Consultation 4 (Victorian Criminal Bar Association).

     ↑

138. Consultation 24 (Alastair McEwin AM, Royal Commissioner, Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, in his personal capacity).

     ↑

139. Consultation 16 (Office of Public Prosecutions Victoria).

     ↑

140. Ibid 9.

     ↑

141. Before the jury is empanelled the court may empanel up to three additional jurors in a criminal trial, in a civil trial. The court may consider the trial’s length, nature and any other factor that may result in discharge during a trial: see Juries Act 2000 (Vic)
     
     s 23(1), (2).

     ↑

142. Judges have powers to discharge a juror when a trial has commenced if it appears to the judge that the juror is not impartial, the juror becomes incapable of continuing to act as a juror, the juror becomes ill or for any other reason that the judge thinks the juror should not continue to perform the role: ibid s 43; Consultation 4 (Victorian Criminal Bar Association).

     ↑

143. A trial can continue with a reduced jury under the direction of the judge pursuant to Juries Act 2000 (Vic) s 44(1). A civil trial cannot continue with fewer than five jurors and a criminal trial cannot continue with fewer than ten, sections 44(2) and 44(3) respectively.

     ↑

144. If additional jurors are empanelled and remain by the time a jury is required to consider its verdict, a ballot must be conducted by selecting the number of jurors necessary to reduce the jury to 12 or 6 (as required) before the jury retires to consider the verdict. See Juries Act 2000 (Vic) 48(1): see also Victorian Law Reform Commission, Jury Empanelment (Report No 27, May 2014) 78–99.

     ↑

145. Victorian Law Reform Commission, Jury Empanelment (Report No 27, May 2014) 84–5 [5.43]–[5.58]

     ↑

146. Ibid 95–97.

     ↑