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

11. Reforming the Juries Act to enable inclusive juries

We strongly believe that amending the Act to include specific obligations to consider providing reasonable supports is the only way that people who are blind or with low vision will ever be given the realistic opportunity to serve on a jury in Victoria.^[1] —Vision Australia

Overview

• The first step to improve inclusivity on Victorian juries is to change the Juries Act 2000 (Vic) (the Act).

• The Act should require the courts to direct that reasonable adjustments be provided where the court considers that they would enable a person who is deaf, hard of hearing, blind or has low vision to serve as a juror.

• The Act should outline what factors the court may consider in deciding whether it is reasonable to provide adjustments.

• The Act should limit the operation of the 13th person rule.

Legislative change is needed

11.1 The Juries Act 2000 (Vic) (the Act) needs to be changed to ensure that reasonable adjustments are provided to people in the subject groups.

11.2 Changing the Act will respond to the recommendations of the United Nations Committee on the Rights of Persons with Disabilities (the Convention Committee), which has called on Australia to make the necessary amendments to laws to remove barriers to jury service. It will improve compliance with the Convention on the Rights of Persons with Disabilities (CRPD) in Victoria.^[2] Vision Australia highlighted the importance of legislative change:

Experience in Australia and overseas has consistently shown that lasting progress in the promotion and protection of the rights of people with a disability is only achieved when it is required or supported by legislation. In Australia this is clear when reviewing the impact of the Disability Discrimination Act 1992 (the DDA), and the three Disability Standards that have developed under the provisions of the DDA. In the US, the accessible public ICT [Information and Communication Technologies] procurement requirements of the Rehabilitation Act have been pivotal in improving the accessibility

of a wide range of technologies and have even been identified as the catalyst for companies such as Netflix to introduce audio description to their content.

There are some areas where voluntary codes or agreements have helped deliver positive change for people with a disability, but in our view, and having regard to the slow-changing nature of the legal system and the legal profession, jury service for people who are blind or have low vision is not one of these areas.^[3]

11.3 Juries Victoria and the courts operate separately in Victoria. Therefore, legislation needs to drive change to ensure a coordinated response. The County Court submission acknowledged that reform will ‘require extensive cooperation between Juries Victoria and the courts’.^[4] Participants in our consultation with Deaf Victoria pointed out that it will also be important for the courts and Juries Victoria to develop ‘a good partnership with service providers’ to deliver reforms.^[5]

11.4 Legislative change will:

• ensure that people in the subject groups have the same opportunity to participate on Victorian juries as others in our community

• elevate the rights of those in the subject groups and articulate the responsibilities of interpreters and support persons

• help to allay the legal profession’s concerns by providing a clear legal framework for change

• provide a trigger for disability awareness and professional development training about adjustments.

The legislative approach in the Australian Capital Territory and England and Wales

Australian Capital Territory

11.5 In Chapter 10 we identified that the Australian Capital Territory (ACT) has a new legislative obligation regarding the provision of reasonable supports. We noted that those changes apply to a broader group of people than those in the subject groups.

11.6 The relevant provision is set out below.

The approach in England and Wales

11.7 The Juries Act 1974 (UK) (only in operation in England and Wales) is silent about the provision of adjustments. However, it gives the judge the power to make decisions on the issue of capacity. The law presumes that a person should serve unless the judge thinks that they cannot act effectively as a juror because of their disability.^[6] The relevant provision is set out below.

11.8 In Chapter 10 we discussed the new legislation which allows British Sign Language (BSL) interpreters to enter jury rooms in England and Wales.^[7] This amends the Juries Act 1974 (UK) so that, for the purposes of section 9B(2) (see above), ‘the judge must consider whether the assistance of a British Sign Language interpreter would enable a deaf person to be capable of acting effectively as a juror’.^[8] If so, the judge may appoint one or more interpreters to provide that assistance and affirm the summons. The interpreter must not interfere in or influence the deliberations of the jury.^[9] This new law means that the 13th person rule does not apply to BSL interpreters, but it continues to apply to other non-jurors.

How should the Juries Act be amended?

A new obligation on the courts to provide reasonable adjustments

11.9 The Act should be amended to require that where a judge considers that reasonable adjustments would enable a person who is deaf, hard of hearing, blind or has low vision to serve as a juror, the judge must direct that those adjustments be provided or that the Juries Commissioner provide them.

11.10 The community responses that we received supported a new legislative obligation.^[10] Juries Victoria ‘supports a default approach by the courts towards the provision of reasonable supports for people in the subject groups’.^[11] The Supreme Court ‘does not see any issues in principle with requiring courts to consider the provision of reasonable supports for people in the subject groups’.^[12]

11.11 There was general support for a legislative obligation modelled on section 16 of the Juries Act 1967 (ACT) (the ACT Act).^[13] Victorian Criminal Bar Association consultees noted:

The ACT legislation appears to work well as it allows a potential juror to serve with supports, obliges the court to provide supports but also provides the judge with the last word about what is appropriate in the particular circumstances of the trial. This approach seems comprehensive and reasonable.^[14]

11.12 Some submissions argued that the legislation should make it clear that the default position should go beyond mere ‘consideration’ and state that reasonable adjustments are to be provided. For example, Associate Professors Dr Bruce Baer Arnold and Wendy Bonython submitted that ‘the history of discrimination law in Australia and elsewhere regrettably indicates that “consideration” is often merely formalistic’.^[15]

Fair trial considerations

11.13 It will be important for a judge to consider whether adjustments will enable the person to perform the role of juror, because this relates to the accused’s right to a fair trial (see Chapter 9). Depending on the nature of a particular trial, a person in the subject groups may not be able to evaluate certain evidence that is material in that trial, even with reasonable adjustments.^[16]

11.14 The judge should consider the interaction between the particular person and the issues in the trial in order to determine whether reasonable adjustments would allow the juror to perform jury service in that trial. This was the approach recommended by the Convention Committee.^[17]

11.15 The Criminal Procedure Act 2009 (Vic) requires extensive information to be disclosed pre-trial. The Commission’s view is that there should be enough information available in most cases for a judge to make an assessment about adjustments at an early stage.

11.16 If it is clear to the trial judge at the outset 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 be able to serve on that trial. An example would be a case that turns on voice identification evidence which a deaf person would be unable to hear.

11.17 The question of whether a potential juror should serve if they cannot comprehend certain evidence that is not material to the outcome of a trial should be a decision of the trial judge, based on all the circumstances.

11.18 If during the trial it becomes clear that a person cannot comprehend evidence even with the use of reasonable adjustments, the judge should make a determination about whether to allow the juror to continue to serve. That decision may be challenged on appeal to the Court of Appeal. If the judge decides that the juror should not continue to serve, they may discharge the juror pursuant to existing powers under section 43 of the Act. Defence counsel may have an opinion about this but their involvement in this decision-making process is a matter for the trial judge to determine.

11.19 The Commission does not recommend that the Act should include examples of possible scenarios that might prevent a person from serving. There are too many variables: everyone’s disability is different, as is the evidence presented in each trial, and its relevance for that trial. The types of adjustments available are constantly changing and evolving.

The 13th person rule should be limited

11.20 In Chapter 4 we described the operation of the common law rule prohibiting non-jurors in the jury room (the 13th person rule). The aim of this rule is to keep the jury separate to maintain confidentiality of the deliberation process. This rule should be limited in the Act to enable people to serve with reasonable adjustments. The ACT Act provides a simple model for doing this in section 16(4) (above).

11.21 Safeguards are needed to ensure that legislation remains in step with the underlying purpose of the 13th person rule and to address the High Court judgment in Lyons v State of Queensland.^[18] The High Court pointed to the absence of provisions in the Queensland legislation to administer an oath to an interpreter and to maintain confidentiality. ^[19] In Chapters 14 and 15 we make recommendations regarding the roles and responsibilities of interpreters and support persons. Our recommendations for the provision of an oath and penalties for breaches of duties are designed to maintain confidentiality of jury deliberations and uphold the underlying principles of the 13th person rule.

11.22 Community responses supported changing the Act to limit the 13th person rule.

Alastair McEwin referred to a mischaracterisation of the role of an interpreter as a

13th person in the jury room. Auslan interpreters ‘are only there to facilitate communication, not to participate in the conversation/debate’.^[20]

11.23 The County Court stated that it ‘does not view the 13th person rule as an impediment to jury deliberations in relation to an assistance person being present purely to assist a person who requires it’ and suggested changes ‘similar to that undertaken in the

Australian Capital Territory would be needed to enable a non-jury member to be present in the deliberation room’.^[21]

11.24 Vision Australia noted that ‘without a legislated modification of the “13th person” rule, there will be situations where a juror who is blind or has low vision will be needlessly precluded from carrying out their duties as a juror’.^[22]

11.25 Auslan service providers and regulatory bodies supported reform, noting that an interpreter who works in court must already comply with professional standards and a code of ethics, which includes an obligation to maintain confidentiality.^[23]

A judge should make the final decision about the use of reasonable adjustments

11.26 As the Supreme Court noted in submissions, trial judges have an ‘overriding duty to ensure a fair trial’.^[24] It is the role of the trial judge to ensure that every aspect of the trial is conducted fairly and according to law. Section 24(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) provides that a person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a ‘competent, independent and impartial court or tribunal after a fair and public hearing’.^[25]

11.27 The Supreme Court has described section 24(1) as follows:

The right to a fair hearing is concerned with the procedural fairness of a decision. What fairness requires will depend on all the circumstances of the case. Broadly, it ensures a party has a reasonable opportunity to put their case in conditions that do not place them at a substantial disadvantage compared to their opponent. This principle is commonly known as the principle of equality of arms.^[26]

11.28 Most submissions supported the idea that the judge should make the final determination about whether a person can serve on a jury with reasonable adjustments.^[27] This is the approach in the ACT and in England and Wales.

11.29 However, Brent Philips, Vision Australia, Expression Australia and Madison noted their concerns that judges may have negative views of people in the subject groups.^[28] Expression Australia stated:

While it is good optics to mandate in legislation that deaf people should be allowed to participate in juries, in the end it comes down to a judge’s understanding/evaluation of whether the person can take part or not. It will be important that judges have a good understanding of what supports are available to allow a deaf person to serve, before the judge decides whether or not to exclude them from jury service.^[29]

11.30 The submission from Madison noted that a ‘judge could be old fashioned or traditional and may be biased which could negatively affect how they see the prospective juror’. She suggested that the sheriff would ‘act more impartially’ and would listen to the views of the prospective juror in a way that was less intimidating than a judge so that they felt that they were being taken seriously.^[30]

11.31 Vision Australia stressed the importance of professional disability awareness training to counter ‘poor decisions based on a lack of understanding about the benefits of reasonable supports and prejudicial attitudes’.^[31] In Chapter 18 we make recommendations about disability awareness training for the legal profession that includes information about the range and operation of adjustments, to guard against judges applying ‘too strict a judgement on whether a deaf juror can serve at the outset’.^[32]

11.32 Ultimately, as Vision Australia identified, ‘the trial judge has the responsibility for conducting the trial, and so is best placed to make decisions that take all the circumstances of the case into account’.^[33] The Law Institute of Victoria submitted:

The decision of the Juries Commissioner would be an administrative decision as to the potential juror’s eligibility and requirements to participate, after which the juror’s eligibility, regardless of the Juries Commissioner’s findings, should rest with the Judge who is best positioned to make an assessment and consider the submissions from parties on this matter. The Judge is best positioned to oversee a fair trial occurs, possessing wide powers to control the conduct of proceedings and is best placed to assess the specific circumstance of the trial against whether the individual is unable to discharge the duties of a juror.^[34]

11.33 Victoria Legal Aid (VLA) argued that having a trial judge make the final decision will ‘mitigate the risk that an entire jury would need to be discharged and a new trial commenced, and the risk of a miscarriage of justice where visual or aural evidence cannot be properly scrutinised or assessed provided by a juror’.^[35]

11.34 The reforms discussed in Chapter 12 contemplate that Juries Victoria will coordinate and plan how the adjustments are provided. Juries Victoria will talk to the potential juror about their needs, arrange a pre-empanelment court visit, and consult with the court about providing adjustments. A judge’s decision will be based on information and a recommendation provided by the Juries Commissioner.

The operation of Schedule 2 should be limited

11.35 If a judge makes a direction to provide reasonable adjustments, the Act should provide that the ineligibility criteria in schedule 2(3)(a) of the Act (a person with a physical disability that renders them incapable of performing the duties of jury service) will not apply.

11.36 In Chapter 14 we also recommend a limitation to schedule 2(3)(f) regarding English communication and Auslan interpreting.

We recommend modifications to the ACT approach for Victoria

11.37 The ACT Act provides a helpful model upon which to base the Victorian reforms. We are recommending some modifications to the ACT model based upon our consultations and research.

Improving language

11.38 Vision Australia was critical of the wording in section 16(1)(b) of the ACT Act, which describes a potential juror who ‘is suffering from a mental or physical disability’:

Having examined the ACT approach, we feel that it is appropriate for Victoria, recognising, of course, that there may need to be customisations made to the wording and examples in the ACT legislation. We strongly recommend that if the ACT approach is adopted in Victoria, it is expressed in language that reflects current views of disability (so, for example, words like ‘suffer’ are not appropriate) and that the illustrative material provided in the legislation is more diverse.^[36]

11.39 For the reasons expressed by Vision Australia, the Commission agrees that the Act should not make reference to a person ‘suffering from a physical disability’. A form of alternative wording could be: ‘because the person is deaf, hard of hearing, blind or has low vision’. Disability advocacy organisations should be consulted in determining the wording of the new provisions.^[37]

Including more examples of adjustments

11.40 The ACT Act lists the following as examples of supports, noting that the list is not exhaustive:

1) an interpreter, including an Auslan interpreter

2) an assistance animal, disability aid or support person.^[38]

11.41 The Victorian Act should also provide examples of adjustments. Some community responses suggested that the list of examples of supports in section 16(2) of the ACT Act should be expanded for the Victorian context.

11.42 Vision Australia suggested that ‘where the legal profession has very little experience of blind people, the more examples that can be provided, then the more options they will consider. A non-exhaustive list … would leave the door open to adapt to new technologies’.^[39] Vision Australia also considered ‘it is important to be able to modify and expand the amount of illustrative material to ensure that it is accurate and current’. For this reason, ‘it may be preferable to include it in a Regulation or other complementary material to the legislation itself’.^[40]

11.43 Examples of adjustments are not included in the Juries Act 1974 (UK) for England and Wales. However, a British Sign Language interpreter is specifically included in the new legislative provision.^[41] In New Zealand, examples are not provided in legislation, but people are encouraged to contact the court to discuss their needs. In the United States, the Americans with Disabilities Act (ADA) lists examples of aids that should be provided to ensure effective communication with people with disabilities.^[42] In Chapter 10, we noted the long list of accommodations on the New York State Court website.^[43]

11.44 The Commission agrees that more examples of possible adjustments should be included in the Act that can be added to by regulation. We are persuaded that this will assist the courts and Juries Victoria to turn their minds to possible adjustment options early in the selection process. The list of non-exhaustive examples in the Act should be expanded to include ‘technological aids that facilitate communication, for example, with speech-to-text software or screen reading technology’. It may also be helpful to provide an example of a disability aid such as a magnifier.

11.45 It will be important for Juries Victoria to be proactive about maintaining engagement with peak disability advocacy organisations to discuss emerging technology and available adjustments. In England and Wales, courts monitor developments in potential new technological supports.^[44] Juries Victoria is best placed to do so in Victoria. Juries Victoria and the courts should advise the Victorian Government when new examples should be added to regulation.

Refining the list of factors to be considered by a judge

11.46 Section 16(3) of the ACT Act lists three factors the judge may consider in determining if support can reasonably be provided:

• the impact on the trial and court resources

• the impact on the jury deliberation process

• any other issue that the judge thinks is relevant.

11.47 The Commission asked in the consultation paper whether the ACT list was satisfactory or needed to be modified in any way. Most responses supported the factors outlined in the ACT provision.^[45] Vision Australia noted that it would like to see as much certainty as possible in the legislation.^[46] The Supreme Court noted that ‘there are broader considerations and that the categories are not closed’.^[47]

11.48 The Supreme Court submission identified three categories of reasons that might prevent a person in the subject groups from serving on a jury:

a) Reasons pertaining to the trial—for example, the evidence likely to be presented

b) Reasons pertaining to availability of adjustments—for example, if adjustments cannot be arranged at short notice

c) Reasons pertaining to the court—for example, whether the courtroom can safely accommodate the juror.^[48]

Considerations—the provision of adjustments

Court resources and costs

11.49 Some concerns were raised about the consideration of court resources and costs. Vision Australia emphasised that the burden should be ‘weighed against the benefits, including broader policy benefits’ and that some cost is inevitable but justified.^[49] Similarly, Daniel Stubbs did not want to see resourcing being used as an excuse for ‘I couldn’t be bothered in my courtroom’.^[50] Instead, he argued that:

In the calculation of ‘reasonableness’, the government and the courts should not give too much weight to the economic cost of providing supports. Given the small number of people involved this reform is not likely to have a big impact on the whole scheme of running a court.^[51]

11.50 The ACT Act states that the judge may consider whether ‘the support would impose a disproportionate or undue burden on court resources, facilities and time-lines’.^[52] The Commission thinks that this wording guards against judges simply opting out without good reason. In Chapter 19 we recommend that the Supreme Court include in its annual report a summary of the number of people for whom adjustments could not be reasonably provided and the reasons given. This will encourage judges to give proper consideration to enabling people in the subject groups to serve. Not many people will need an Auslan interpreter or a CART stenographer to serve. The courts should be funded to provide these adjustments as the need arises.

11.51 An overarching purpose of the Act is to make juries more representative of the community. ^[53] If new laws are introduced, it will be important for the amending Act to set out that the aim of the new provisions is to meet this overarching purpose by enabling people from the subject groups to serve with reasonable adjustments. This will serve to guide the second reading speech and interpretation of the new provisions, including considerations of court resources and costs.

Practical challenges

11.52 Several responses referred to the practical challenges of providing adjustments. The Office of Public Prosecutions (OPP) referred to:

Geographical considerations, including the availability of supports in regional areas, and the smaller pools of Auslan interpreters available in regional areas. Are there enough interpreters to support the regional courts as well as Melbourne?

11.53 The OPP observed that finding supports for one witness for a few hours is very different from finding ongoing supports for a juror for many days, weeks or even months:

If someone requires more than one type of support, can multiple supports be used? How far does ‘reasonable’ extend? Interpreter availability might be an issue if a trial goes beyond 5 days. Thought is needed about the logistics of how supports could be provided in this context.^[54]

11.54 Juries Victoria noted that it is easier to provide adjustments in some jury districts than others:

It is integral to the success of more inclusive juries that all supports that can be reasonably provided are offered to those who need them. However, what can be ‘reasonably’ provided will vary according to circumstances and facilities. There are 12 operational jury districts at the time of writing, with each presenting different circumstances that may affect the provision of various supports. This inconsistency is unfortunate, and as any efforts to resolve it would sit outside JV’s area of responsibility, it is not our place to speculate on how these efforts may be undertaken.^[55]

11.55 The factors outlined in the ACT Act are sufficient to encompass the additional issues raised by the OPP and Juries Victoria. The Commission does not think that it is helpful to be overly prescriptive regarding decision-making factors in the Act. Instead, the legislation should be broad enough to allow the judge to exercise their discretion, keeping in mind the overarching purpose of the Act to improve the representativeness of Victorian juries.

11.56 We acknowledge that sometimes, despite best efforts, adjustments may not be able to be arranged in time, for example, because of a shortage of Auslan interpreters. It may be more difficult to source Auslan interpreters in regional areas.^[56] As consultees from the Victorian Criminal Bar Association pointed out, timelines might be less predictable in regional areas, and shorter circuit times might make it more difficult to arrange adjustments quickly. The regional courts are very different in terms of accessibility and case load, so the provision of adjustments should be considered on a case-by-case basis.^[57] These factors should be considered by a judge and balanced with the overarching need for greater representativeness outlined in the purpose of the Act.^[58]

A new ‘own motion’ power for the Juries Commissioner to defer jury service to arrange adjustments

11.57 To assist Juries Victoria to respond to the practical challenges of providing adjustments, the Commission recommends that the Juries Commissioner is given a new ‘own motion’ power to defer a person’s service so that Juries Victoria can arrange reasonable adjustments.^[59] This power should be used sparingly. We understand that Juries Victoria is flexible in relation to deferrals and currently defers service for up to three months but generally only once, for a particular reason.^[60]

11.58 Some responses raised concerns that the use of adjustments could delay the trial and prejudice the administration of justice.^[61] The OPP raised concerns about the effect this would have on other jurors—if extra time is needed to allow a deaf juror to serve, does that mean that someone else will not be able to serve? ^[62]

11.59 The Commission’s view is that this issue is sufficiently captured by the ACT Act section 16(3)(a): ‘whether the support would impose a disproportionate or undue burden on court resources, facilities and time frames’ or by the general discretion to consider ‘any other issue the judge considers relevant’.

11.60 Additional breaks or other changes should not be a significant barrier to participation, except perhaps where trials are scheduled to run for a long time or involve many complex documents. In this situation, it may be reasonable to determine that the person from the subject groups should not serve and for a judge to return them to a pool to potentially serve on another trial.

Considerations—court accessibility

11.61 Many courtroom buildings in Victoria are difficult to access. The courts have told us that they are taking steps to improve accessibility, but this is dependent on funding and often limited by heritage restrictions.

11.62 The Supreme Court in Melbourne was built in 1874 and ‘was not built with a view to the accessibility of people with disabilities or the community generally’.^[63] The Supreme Court submission stated:

The Supreme Court operates in heritage listed buildings which have very limited capacity to be adapted to comply with modern accessibility standards in relation to the spaces occupied by jurors. For example, jurors must negotiate steep stairs in courtrooms used for criminal trials, which could present a significant safety risk for jurors who are blind or have low vision. There is limited space in the Court’s jury rooms, so it may not be possible to accommodate support persons or support animals in some of those rooms. In some circumstances the Court can arrange to hold trials in the courtrooms in the County Court building which does not have these issues to the same degree, however this is generally well in advance of trial so may not be able to be arranged at short notice.^[64]

11.63 Peter Ward, a legal practitioner who has low vision, agreed that the Supreme Court building is very difficult to navigate: ‘I usually go with someone from the office, who can help me find the court etc. It is a nightmare in terms of getting into court’. He suggested that the ‘County Court is infinitely better, mostly because it is laid out in a sensible way!’^[65]

11.64 Dr David Squirrell, a community member, suggested that people with disabilities are often not consulted about accessibility. His comments were made in relation to South Australian courts but are also applicable to Victoria. He observed that:

• court buildings are often inaccessible to wheelchairs and mobility scooters (gophers)

• court toilets often do not have disability-friendly doors

• there is a lack of standardisation of facilities across the courts

• tactile ground surface indicators are needed to assist people who are blind or have low vision to navigate court buildings.^[66]

11.65 Other responses suggested the following improvements to courtrooms should be made:

• better lighting

• adjusting lighting to prevent glare for people who have low vision

• reducing sound reverberations by carpeting floor and walls to reduce echo.^[67]

11.66 Juries Victoria advised that it ‘won’t know until the very last minute which trial, if any, a person in the subject groups will be randomly balloted to’.^[68] This makes it hard to plan, adapt and change arrangements about court accessibility. The Commission also acknowledges that witnesses and parties may also require accessible court facilities, and that these demands will trump the needs of a juror to have a trial heard in an accessible courtroom. The County Court registrars advised the Commission that courtroom allocation ‘is dependent on the length of the trial/number of jurors required, the number of accused and whether the matter will proceed as an e-trial’.^[69]

11.67 Despite these challenges, the Commission does not support including an additional factor in the legislation relating to the accessibility of the courts.

11.68 The County Court suggested that Juries Victoria and the Court would need to work together to identify suitable trials for potential jurors from the subject groups. In terms of allocating trials to accessible courtrooms, the County Court noted that:

it would be a significant challenge to swap trials, courtrooms or jurors on jury panels on the day of trial, particularly during the pandemic. Any arrangements for suitable trials and courtrooms would need to be done in advance of the trial commencement date.^[70]

11.69 Although Juries Victoria will not know until the last minute which trial a person will be balloted to, it will know earlier that there is a potential juror in the jury pool who requires adjustments. Juries Victoria should notify the registry and ascertain if any of the trials linked to a jury pool could be heard in accessible courtrooms or if any adjustments could be made to get around accessibility problems.

A new power for the Juries Commissioner to hold a person out of a jury pool where a trial is in an inaccessible courtroom

11.70 We also recommend that the Juries Commissioner be given the power to hold a person’s card out of a ballot for a panel where the trial will be heard in a courtroom that cannot accommodate reasonable adjustments. The person’s card could then be returned to the pool for the next panel ballot. Section 10 of the Act should be amended to enable an appeal of this decision by the Juries Commissioner to the court. This appeal would be heard urgently on the day and may encourage the court to find accessible facilities.

11.71 It will be important for Juries Victoria to collect data about how often this power is exercised to enable the courts to plan for future improvements (see Chapter 19).

Improving accessibility in Victorian courts

11.72 The courts should take steps to improve the accessibility of courtrooms for people in the subject groups to enable them to participate as jurors. These improvements will benefit many members of the community in addition to those in the subject groups.

11.73 Court Services Victoria (CSV) is currently undertaking Disability Discrimination Act compliance works at selected court buildings, including updating stairs and ramps, lighting, and entry way improvements to ensure safe and secure access and amenities.^[71] CSV has advised that ‘by 2023 CSV will have delivered DDA compliance upgrades to ten regional law courts (Colac, Hamilton, Robinvale, Benalla, Cobram,

St Arnaud, Castlemaine, Wangaratta, Bacchus Marsh and Sale). Some compliance work is under way in respect to the William Cooper Justice Centre and the Supreme Court of Victoria, both located in the Melbourne CBD’.^[72] This work should be built upon to improve accessibility in Victorian courts to enable jury service for people in the subject groups.

11.74 The CRPD requires States Parties to progressively achieve ‘universal design’, which is defined under article 2 as ‘the design of products, environments, programmes, devices and services to be usable by all people, to the greatest extent possible, without the need for adaptation or specialized design’^[73]. Victoria’s State Disability Plan 2022–2026 commits to implementing ‘universal design principles’ across infrastructure to ‘support people with disability to take part in their local community’.^[74]

11.75 The Government of the United Kingdom has recently invested £1 billion to modernise courts and tribunals, ‘seeking to boost the use of technology, upgrade systems, and ensure it better responds to the needs of the public’.^[75] While recognising the different size and scale of the court and tribunal system across England and Wales, the Commission recommends that the Victorian Government similarly invests in court updates to ensure that the courts are accessible for people who are deaf, hard of hearing, blind or have low vision.

Considerations—the presence of a non-juror and delay

11.76 The ACT Act includes a decision-making factor relating to the juror’s impact on jury deliberations. Section 16(3)(b) states that the judge may consider:

if the support would require a non-juror being present during jury deliberations, whether the non-juror’s presence would inhibit or restrict discussion, or unduly pressure or influence any juror^[76]

11.77 The County Court supported the inclusion of this factor in Victorian legislation.^[77] In contrast, the Supreme Court noted:

if the policy position is reached that support persons should be an exception to the common law prohibition then it would be preferable to have clear legislative amendment to that effect. Further consideration would be needed about whether the court making an individual determination about inhibition of discussion or undue pressure is an appropriate course. Consideration would also need to be given to developing a standard direction before the jury commences deliberation, regarding the presence of non-jurors in the jury room.^[78]

11.78 The aim of the Commission’s recommended reforms is to limit the operation of the 13th person rule. The safeguards we have recommended aim to ensure that jury deliberations will not be inhibited or restricted by the presence of an Auslan interpreter

or a support person in the jury room. For that reason, the Commission does not support including a section 16(3)(b) factor in the Act.

11.79 The County Court also argued that ‘further emphasis’ needs to be placed on the ‘accused’s right to a fair trial and on the fairness of any delay or inconvenience to other jurors’.^[79] The Commission does not agree that concerns about inconvenience or delay are of sufficient importance to warrant specific inclusion as a decision-making factor in the Act. It is difficult to see how a judge could make an assessment about delay and inconvenience at the commencement of a trial, assuming that all of the other requirements in Chapters 14 and 15 regarding training, qualification and oaths as to non-interference are complied with.

What evidence should the judge consider?

11.80 The Commission does not hold the view that the Act needs to define the material or evidence that a judge may take into account in reaching a decision about the use of reasonable adjustments. However, it would be helpful to include a sub-provision stating that a judge may consider any evidence they deem relevant.

What should happen if a judge decides that adjustments cannot be provided?

11.81 The Commission recommends that legislation provide two options if a decision is made not to provide reasonable adjustments:

1) Firstly, that courts and Juries Victoria have the power to return the person to the jury pool to potentially serve on a different trial.

2) Alternatively, in a situation where it may not be possible for a person from the subject groups to serve with reasonable adjustments on any jury, a judge should excuse the person from their summons. We note that a judge also has existing powers under section 12 to order that the person not perform jury duty for the whole or part of their jury service, or for a period determined by the court, or permanently.

11.82 The option to return a prospective juror to the jury pool was widely supported in responses.^[80] Juries Victoria referred to a similar power in section 29(4B) of the Act, which gives the Juries Commissioner the power to exclude a person from a pool if they are satisfied that the person is unavailable to sit on a trial due to its likely length.^[81]

11.83 The County Court proposed that the decision to return a person to the pool should be assessed on a case-by-case basis.^[82] Vision Australia noted:

On balance, we believe that such a power is necessary: we can envisage a (small) number of situations in which a person who is blind or has low vision would be unable to discharge their duties as a juror, for example, because of inherently visual components of key evidence. However, such a power must be accompanied by a clear expectation that it is to be used sparingly, as a last resort after all other options have been explored.^[83]

11.84 One survey respondent proposed that a juror should only be returned to the pool with their agreement, to avoid a situation where ‘they are continually/indefinitely put in a jury pool and never get to serve’.^[84]

11.85 Under the proposed reforms, the prospective juror will be able to express their wishes to Juries Victoria and the court. If the person does not wish to be returned to the jury pool, then the judge would be able to consider excusing them from their summons or exercising powers under section 12.

11.86 Two survey responses did not support returning a prospective juror from the subject groups to the pool because they thought it could lead to ‘jury shopping’.^[85] The Commission notes that the random nature of jury selection and the judicial supervision of the process should prevent this from occurring.^[86]

1. Submission 10 (Vision Australia).

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2. Committee on the Rights of Persons with Disabilities, Views: Communication No 35/2016, 20th sess, UN Doc CRPD/C/20/D/35/2016 (31 August 2018) [8] (‘JH v Australia’). Identical recommendations were made in: Committee on the Rights of Persons with Disabilities, Views: Communication No 13/2013, 15th sess, UN Doc CRPD/C/15/D/13/2013 (30 May 2016) (‘Lockrey v Australia’); 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) (‘Beasley v Australia’). See detailed discussion in Chapter 6.

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3. Submission 10 (Vision Australia).

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4. Submission 14 (County Court of Victoria).

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

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6. Juries Act 1974 (UK) s 9B. See also Judicial College UK, Equal Treatment Bench Book (Manual, February 2021) <https://www.judiciary.uk/wp-content/uploads/2021/02/Equal-Treatment-Bench-Book-February-2021-1.pdf>.

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7. Police, Crime, Sentencing and Courts Act 2022 (UK) s 196. This section of the amending legislation will come into force on 28 June 2022, pursuant to s 208(5)(x).

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8. Ibid s 196(2).

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9. Ibid s 196(2) and (3).

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10. Position Statement 1 (Blind Citizens Australia); Submissions 4 (Associate Professors Bruce Baer Arnold (University of Canberra) and Wendy Bonython (Bond University)), 7 (Law Institute of Victoria), 9 (Madison), 10 (Vision Australia); Consultations 4 (Victorian Criminal Bar Association), 8 (Brent Phillips).

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11. Submission 13 (Juries Victoria).

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12. Submission 11 (Supreme Court of Victoria).

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13. Consultations 2 (Law Institute of Victoria), 8 (Brent Phillips), 6 (Deaf Victoria and community participants, 18 (Australian Sign Language Interpreters’ Association, Victoria and Tasmania (ASLIA)), 19 (Australian Institute of Interpreters and Translators (AUSIT)), 23 (Victorian Aboriginal Community Controlled Health Organisation (VACCHO)), 24 (Alastair McEwin AM, Royal Commissioner, Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, in his personal capacity); Submission 4 (Baer Arnold & Bonython).

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14. Consultation 4 (Victorian Criminal Bar Association).

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15. Submission 4 (Baer Arnold & Bonython).

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16. New South Wales Law Reform Commission, Blind or Deaf Jurors (Report No 114, September 2006) 5 [3.8].

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17. JH v Australia [7,8]. See also Beasley v Australia [9]; Lockrey v Australia [9].

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18. Lyons v State of Queensland [2016] HCA 38, (2016) 259 CLR 518, [33]–[38].

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19. Ibid [35], [36].

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

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21. Submission 14 (County Court of Victoria).

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22. Submission 10 (Vision Australia).

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23. Consultations 18 (Australian Sign Language Interpreters’ Association, Victoria and Tasmania (ASLIA)), 19 (Australian Institute of Interpreters and Translators (AUSIT)).

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24. Submission 11 (Supreme Court of Victoria), citing Haddara v The Queen [2014] VSCA 100, (2014) 43 VR 53 [16]; James v The Queen [2014] HCA 6, (2014) 253 CLR 475, [38]. See also Judicial College of Victoria, ‘6 Role of the Judge’, Victorian Criminal Proceedings Manual (Online Manual, 1 March 2017) <https://www.judicialcollege.vic.edu.au/eManuals/VCPM/index.htm#27318.htm>.

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25. Charter of Human Rights and Responsibilities Act 2006 (Vic) s 24(1).

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26. Knight v Wise [2014] VSC 76 [36]. For further discussion of the scope of this right and relevant case law: see Judicial College of Victoria, ‘6.18.2 Scope of the Right’, Charter of Human Rights Bench Book (Online Manual, 1 September 2017) <https://www.judicialcollege.vic.edu.au/eManuals/VCPM/index.htm#27318.htm>.

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27. Submissions 4 (Baer Arnold & Bonython), 7 (Law Institute of Victoria), 10 (Vision Australia), 11 (Supreme Court of Victoria); Consultation 16 (Office of Public Prosecutions Victoria).

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28. Consultations 5 (Expression Australia), 8 (Brent Phillips); Submissions 9 (Madison), 10 (Vision Australia).

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29. Consultation 5 (Expression Australia).

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30. Submission 9 (Madison). This submission proposed that this assessment should not be made by a judge alone but by a ‘colloquium consisting of the Sheriff, jury commissioner and the trial judge’.

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31. Vision Australia and Brent Philips also stressed the importance of judicial training: Submission 10 (Vision Australia); Consultation 8 (Brent Phillips).

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32. 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)).

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33. Submission 10 (Vision Australia).

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34. Submission 7 (Law Institute of Victoria).

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35. Submission 8 (Victoria Legal Aid).

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36. Submission 10 (Vision Australia).

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37. JH v Australia [8]. Identical recommendations were made in the cases of Beasley v Australia and Lockrey v Australia.

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38. See examples listed in Juries Act 1967 (ACT) s 16(2).

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39. Consultation 7 (Vision Australia).

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40. Submission 10 (Vision Australia).

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

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42. Americans with Disabilities Act, 42 USC (1990). See also Victorian Law Reform Commission, Inclusive Juries—Access for People Who Are Deaf, Hard of Hearing, Blind or Have Low Vision (Consultation Paper, December 2020) 34–5 [4.38]; Department of Justice (US), The Americans with Disabilities Act: Title II Technical Assistance Manual (Manual) <https://www.ada.gov/taman2.html>; Office of Court Administration, New York State Unified Court System, ‘Reasonable Accommodations for Court Users’, NYCOURTS.GOV (Web Page) <http://ww2.nycourts.gov/Accessibility/CourtUsers_Guidelines.shtml>.

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43. Office of Court Administration, New York State Unified Court System, ‘Reasonable Accommodations for Court Users’, NYCOURTS.GOV (Web Page) <http://ww2.nycourts.gov/Accessibility/CourtUsers_Guidelines.shtml>.

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44. Ministry of Justice (UK), ‘Law Change Opens Door to Deaf Jurors’ (Press Release, 9 March 2021) <https://www.gov.uk/government/news/law-change-opens-door-to-deaf-jurors>.

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45. For example, Submissions 4 (Baer Arnold & Bonython), 9 (Madison), 11 (Supreme Court of Victoria), 14 (County Court of Victoria).

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46. Submission 10 (Vision Australia).

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47. Submission 11 (Supreme Court of Victoria).

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48. Ibid.

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49. Submission 10 (Vision Australia).

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

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51. Ibid.

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52. Juries Act 1967 (ACT) s 16(3)(a).

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53. Juries Act 2000 (Vic) s 1(b).

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

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55. Submission 13 (Juries Victoria).

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56. This was suggested in Consultation 11 (Consultation with a Judge, a Tipstaff and Court policy staff, Victorian Supreme Court).

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57. Consultation 4 (Victorian Criminal Bar Association).

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58. Juries Act 2000 (Vic) s 1(b).

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59. In relation to assistance animals, the County Court submission raised concerns about the potential for fellow jurors to have animal allergies or phobias. This issue, if it arises, could also be managed with the new own motion power recommended for the Juries Commissioner to defer jury service (of either juror). Other existing powers allow the court to excuse a person who is unable to serve, to discharge a juror, or determine that a person not perform jury service: Ibid ss 12, 32(3)(b), 43.

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60. Information provided by Juries Victoria to Victorian Law Reform Commission, 17 May 2022.

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61. Submission 14 (County Court of Victoria). Discussed further in Chapter 9.

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

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

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64. Submission 11 (Supreme Court of Victoria).

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

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66. Submission 2 (Dr David Squirrell).

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67. Consultation 5 (Expression Australia).

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68. Submission 13 (Juries Victoria).

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69. Consultation 12 (Consultation with Victorian County Court Registrars and Court policy staff).

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70. Submission 14 (County Court of Victoria).

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71. Court Services Victoria, Delivering Excellence in Court and Tribunal Administration (Annual Report 2020–21, 2021) 32.

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72. Information provided by Court Services Victoria to Victorian Law Reform Commission, 23 June 2022.

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73. Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into Force 3 May 2008) art 2.

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74. Department of Families, Fairness and Housing (Vic), Inclusive Victoria: State Disability Plan 2022–2026 (Report, March 2022) 22.

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75. Ministry of Justice (UK), ‘Law Change Opens Door to Deaf Jurors’ (Press Release, 9 March 2021) <https://www.gov.uk/government/news/law-change-opens-door-to-deaf-jurors>.

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76. Juries Act 1967 (ACT) s 16(3)(b).

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77. Submission 14 (County Court of Victoria).

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78. Submission 11 (Supreme Court of Victoria).

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79. Submission 14 (County Court of Victoria).

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80. Submissions 4 (Baer Arnold & Bonython), 7 (Law Institute of Victoria), 10 (Vision Australia); Consultations 16 (Office of Public Prosecutions Victoria), 18 (Australian Sign Language Interpreters’ Association, Victoria and Tasmania (ASLIA)), 19 (Australian Institute of Interpreters and Translators (AUSIT)), 21 (Della Goswell, Lecturer, Convenor Auslan-English Interpreting Program, Macquarie University, NSW). We also note that 78% of survey responses received by the Commission supported the return of a person to the jury pool if they are unable to serve on a particular trial.

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81. Consultation 10 (Juries Victoria); Juries Act 2000 (Vic) s 29(4B).

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82. Submission 14 (County Court of Victoria).

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83. Submission 10 (Vision Australia).

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84. Online Survey (Response 20).

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85. Jury shopping is the practice of intentionally selecting a favourable jury. It is perhaps more relevant to the United States, where a voir dire questioning process happens for potential jurors. We discuss this in Chapter 10.

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86. Online Survey (Response 2); Online Survey (Response 26).

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