Application by a person summoned for jury service for support
[2023] ACTSC 112
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | Application by a person summoned for jury service for support | ||
| Citation: | [2023] ACTSC 112 | ||
| Decision Date: | 12 December 2022 | ||
| Reasons Date: | 16 May 2023 | ||
| Before: | McCallum CJ | ||
| Decision: |
|
be provided with Auslan interpreting services during the
empanelment process and, should they be empanelled,
the duration of the relevant trial.
(2) Note that pursuant to s 16(4)(b), the presence of Auslan interpreters during jury deliberations in any trial in which this person is empanelled as a juror is solely for the purpose of assisting the relevant person to properly discharge their duties as a juror. (3) Note that pursuant to s 16(4)(c), order 1 is subject to the interpreters agreeing to make oaths or affirmations in accordance with schedule 1, part 1.1A of the Act.
| Catchwords: | CRIMINAL PROCEDURE — Trial — Jury – Application for |
| support for person with a hearing impairment summoned for jury | |
| service – Where the Court is required to consider the support to assist in discharging the duties of a juror – whether the support can be reasonably given – where the legislature expressly | |
| contemplated the provision of Auslan interpreters | |
| Legislation Cited: | Courts and Other Justice Legislation Amendment Act 2018 (ACT) s 64 Juries Act 1927 (SA) s 13(a) Juries Act 1957 (WA) s 5(b)(iv) Juries Act 1962 (NT) sch 7 Juries Act 1967 (ACT) ss 9, 16, 45A; sch 1 pt 1.1 Juries Act 2000 (Vic) sch 2 cl 3(a) Juries Act 2003 (Tas) sch 2 cl 9 Juries Legislation Amendment Act 2011 (WA) s 34G(2)(f) Juries Regulation 2018 (ACT) pt 1.4 Jury Act 1977 (NSW) s 14A(b) Jury Act 1995 (Qld) s 4(3)(l) Jury Amendment Act 2010 (NSW) |
| Justice and Licensing Legislation Further Amendment Act 2022 | |
| (NT) | |
| Cases Cited: | Cheatle v The Queen [1993] HCA 44; 177 CLR 541 |
| Re: the Jury Act 1995 and an application by the Sheriff of | |
| Queensland [2014] QSC 113 | |
Texts Cited: | Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws (ALRC Report 124, August 2014) |
| Explanatory Statement, Courts and Other Justice Legislation Amendment Bill 2018 (ACT) | |
| Explanatory Statement, Justice and Licensing Legislation Further Amendment Bill 2022 (NT) Judicial Council on Cultural Diversity, Recommended National | |
| Standards for Working with Interpreters in Courts and Tribunals | |
| (Second Edition, March 2022) Law Reform Commission of Western Australia, Selection, Eligibility and Exemption of Jurors (Final Report, Project No 99, April 2010) New South Wales, Parliamentary Debates, Legislative Council, 3 June 2010 (Michael Veitch) NSW Law Reform Commission, Jury Selection (Report 117, September 2007) Queensland Law Reform Commission, A Review of Jury Selection (Report No 68, February 2011) | |
| McCALLUM CJ: |
1. On 1 September 2022, I received notice from the Australian Capital Territory (ACT)
Sheriff, Ms Simone Peisker, of a request by a person summoned for jury service in pool
19 of 2022 (to whom I will refer as “person X”) for support in the discharge of the duties
of a juror. The person in question has a hearing impairment and sought the support of
Australian Sign Language (Auslan) interpreters.
The Court’s power to direct the provision of such support is found in s 16 of the Juries
Act 1967 (ACT), which provides:
Reasonable support because of insufficient understanding or disability
(1) This section applies if a judge is satisfied that a person summoned or appointed to attend to serve as a juror, and who has not claimed an exemption or otherwise been excused from attendance, may be unable to properly discharge the duties of a juror,
because the person—
(a) has an insufficient understanding of the English language; or (b) is suffering from a mental or physical disability.
(2) The judge—
(a)
must consider if support that would enable the person to properly discharge the duties of a juror can reasonably be given; and
(b)
if satisfied that support that would enable the person to properly discharge the duties of a juror can reasonably be given, must make a direction that the support be given.
Examples—support
1 an interpreter, including an Auslan interpreter
2 an assistance animal, disability aid or support person
Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the
meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
(3) To determine if support can reasonably be given, the judge may consider the following:
(a)
whether the support would impose a disproportionate or undue burden on court resources, facilities and time frames;
(b) 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;
(c) any other issue the judge considers relevant.
(4) If the judge makes a direction allowing an interpreter or support person to assist the
person to properly discharge the duties of a juror—
(a)
the common law rule against having a non-juror in the jury room is not a relevant consideration; and
(b)
a direction to allow a non-juror to be present during jury deliberations is solely for assisting the person to properly discharge the duties of a juror; and
(c)
the direction is subject to the interpreter or support person agreeing to make an oath or affirmation in accordance with schedule 1, part 1.1A or part 1.1B.
(5) If the judge is not satisfied that support that would enable the person to properly discharge the duties of a juror can reasonably be given, the judge may discharge that person from further attendance on the Supreme Court under that summons or appointment.
3. I was satisfied that, with the support of Auslan interpreters from the moment of arrival
in the Court precinct, during the empanelment process and (if selected) throughout the
trial, and provided those interpreters were in turn given appropriate support by the
Court, person X would be able properly to discharge the duties of a juror. I was further
satisfied that this was a level of support that could reasonably be given.
4. I emphasise that this decision was made at the point of determining whether to direct
that the support requested be made available for the empanelment process. I
determined prior to empanelment to invite the parties to identify any further
consideration relevant to the empanelment of person X if that person’s number came
up during the ballot.
5. As I understand this to be the first such determination in the ACT and perhaps in
Australia, it is appropriate to publish my reasons for reaching those conclusions.
6. The common law right to trial by jury is understood to comprehend a number of
essential features. One is “that the jury be a body of persons representative of the
wider community”: Cheatle v The Queen [1993] HCA 44; 177 CLR 541 at [19]. At the
time of federation, legislation in all states reflected a legal assumption that the only true
representatives of the wider community were men of property. In Cheatle, a High Court
whose composition then included only one woman readily accepted that assumption to
be absurd by modern standards, saying at [19], “[t]o the contrary, in contemporary
Australia, the exclusion of females and unpropertied persons would itself be
inconsistent with [the requirement that the jury be truly representative].”
7. This “representative character of a jury” (Cheatle at [4]) is now ensured by the
requirement that persons summoned for jury service be randomly selected from the
electoral roll. There is a neat constitutional symmetry here; all persons on the electoral
role are liable to be summoned and, as with voting, jury service is compulsory. Thus,
in the election of government and the trial of serious criminal offences alike,
comprehensive representation of the community is enshrined as an essential feature
going to the integrity of the process.
8. This precept of the common law provides the context in which the liability of any person
summoned to serve as a juror according to the terms of the relevant statute falls to be
determined. In the ACT, the fact that a person summoned for jury duty has impaired
hearing is not of itself a basis for exclusion from jury service. Section 9 of the Juries
Act provides that each person whose name is on the roll of electors of the ACT is liable to serve as a juror unless they are disqualified or exempt from serving (I note that
persons may also be excused for good reason prior to empanelment).
9. Persons who are disqualified, exempt or permitted to claim an exemption are
prescribed in the Juries Regulation 2018 (ACT). The Regulation includes, not in the
“exempt” category but in the category of persons who “may claim” exemption, persons
with a disability, including a person who is “totally or partially deaf”: pt 1.4. Where, as
here, a person of that description does not seek exemption, that person is prima facie
liable to serve as a juror and the obligation is triggered for the Court to consider the
availability of support in accordance with the provisions of s 16 of the Juries Act.
10. It follows in accordance with the legislative scheme that, having been summoned,
person X was liable to serve as a juror and that, in accordance with s 16 of the Juries
Act, the judge to whom that issue was brought had a statutory obligation to consider
whether support that would enable that person properly to discharge the duties of a
juror could reasonably be given.
11. A consideration of the context in which s 16 was introduced supports the conclusion
that it was intended to make persons in the position of person X equally liable to serve
as a juror provided the necessary support could reasonably be provided. The section
was introduced in 2018 by s 64 of the Courts and Other Justice Legislation Amendment
Act 2018 (ACT). That followed a series of inquiries that had recommended legislative
change to facilitate jury service by persons with disability. Examples of previous
recommendations from other jurisdictions are given in the report of the Australian Law
Reform Commission, Equality, Capacity and Disability in Commonwealth Laws (ALRC
Report 124, August 2014) at [7.209]. That report in turn recommended similar
amendments to federal legislation, while recognising (at [7.216]) that juries remain
“extremely rare” in Federal Court proceedings.
12. The ALRC Report at [7.206] noted a Queensland decision in which it had been held
that a person with a hearing impairment who required an Auslan interpreter was
“incapable of effectively performing the functions of a juror and therefore ineligible for
jury service”: Re: the Jury Act 1995 and an application by the Sheriff of Queensland
[2014] QSC 113 at [9]. The judgment reveals that the principal basis for that conclusion
was that, while an Auslan interpreter could be provided to assist the juror in Court
during the trial, there was no power to permit that person to assist the juror in the jury
room during the jury deliberations, nor any explicit power to require such an interpreter
to make an oath or affirmation to maintain the secrecy of the jury’s deliberations.
13. Each of those concerns is addressed in the ACT statute. Prior to the amendment of
s 16 in 2018, the Juries Act conferred a discretion on the trial judge to discharge
persons “suffering such mental or physical disability as to be incapacitated for the
proper discharge of the duties of a juror” without requiring consideration of support that
may allow them to fulfill those duties. However, this was recognised by the Legislative
Assembly as inimical to the right of people with disabilities to be protected from
discrimination. Section 16 was therefore amended to its present form, the Explanatory
Statement for which stated:
Section 8 of the Human Rights Act 2004 provides that ‘everyone has the right to equal and effective protection against discrimination on any ground’. The Bill supports this right,
including through its amendment to the Juries Act 1967 to provide for reasonable support to be provided to jurors with a disability or with an insufficient understanding of the English language, if such support can reasonably be given (see section 16). Requiring the consideration of providing such support is consistent with the decisions by the UN Committee on the Rights of Persons with Disabilities, which found that Australia had breached its obligations under the Convention on the Rights of Persons with Disabilities for failing to provide reasonable adjustments for hearing impaired individuals to participate in jury service (Gemma Beasley v. Australia, Communication No. 11/2013, Views of 25 April 2016; and Michael Lockrey v. Australia, Communication No. 13/2013, Views of 25 April 2016).
(Explanatory Statement, Courts and Other Justice Legislation Amendment Bill 2018 (ACT))
14. It is evident from this text that, while the amendments sought to address the right of
people with any form of disability to be protected from discrimination on that basis,
particular focus was placed on ensuring the Juries Act facilitated persons whose
hearing is impaired to serve as jurors if they wished to do so. However, the speech
also noted that this was curtailed by the requirement for support to be that which can
“reasonably be given” for the following reason:
This recognises the reality that it may not always be possible or reasonable to provide support to a person to serve as a juror. For example, a person with a hearing impairment may not be able to effectively perform the functions of a juror during a trial at which voice identification is expected to be an issue.
15. Other jurisdictions have introduced legislation to facilitate participation in jury service
by persons with disability, although none appears to mandate the consideration of the
support that could reasonably be provided, as the ACT legislation does.
16. In New South Wales, s 14A(b) of the Jury Act 1977 (NSW) provides that a person with
a disability has good cause for excusal if, “without reasonable accommodation”, they
are incapable of effectively serving as a juror. The second reading speech concerning
the legislation that introduced that provision, the Jury Amendment Act 2010 (NSW),
explained that this position was adopted following the NSW Law Reform Commission,
Jury Selection (Report 117, September 2007) which recommended that disability
should be a ground of excusal for good cause rather than a ground of exclusion (New
South Wales, Parliamentary Debates, Legislative Council, 3 June 2010 (Michael Veitch)). The New South Wales statute does not go so far as to authorise the making
of a direction that such support be given.
17. In Western Australia, s 5(b)(iv) of the Juries Act 1957 (WA) previously made ineligible
for jury service any person “incapacitated by any disease or infirmity of mind or body,
including defective hearing, that affects him or her in discharging the duty of a juror”. A
2010 report of the Law Reform Commission of Western Australia, Selection, Eligibility
and Exemption of Jurors (Final Report, Project No 99, April 2010) recommended the
removal of that criterion. That amendment was effected by the Juries Legislation
Amendment Act 2011 (WA), which instead provides that a judge or summoning officer
must excuse a person from service if they are satisfied the person is “not capable of
serving effectively as a juror because he or she has a physical disability”: s 34G(2)(f).
There is no authority under those provisions to empower a person to serve as a juror
by the provision of reasonable support.
18. In Queensland, s 4(3)(l) of the Jury Act 1995 (Qld) makes ineligible for service a person
who has a “physical or mental disability that makes the person incapable of effectively
performing the functions of a juror”. The Queensland Law Reform Commission in its
report, A Review of Jury Selection (Report No 68, February 2011), recommended that
provision be made for prospective jurors with disabilities to inform the Sheriff of their
needs and for the Sheriff to determine if the person is able to discharge the duties of a
juror having regard to facilities that can be made available to accommodate them.
However, that recommendation does not appear to have been implemented.
19. Other jurisdictions are also governed by legislation that prompts consideration only of
whether a person is “incapable” of or “unfit” for jury service due to disability in isolation
from any assessment of the support that could reasonably be made available to enable
them to perform the functions of a juror. In Victoria, sch 2 cl 3(a) of the Juries Act 2000
(Vic) provides that any person who “has a physical disability that renders the person
incapable of performing the duties of jury service” is ineligible for service. In South
Australia, s 13(a) of the Juries Act 1927 (SA) stipulates that a person is ineligible if they
are “mentally or physically unfit to carry out the duties of a juror”. In Tasmania, sch 2
cl 9 of the Juries Act 2003 (Tas) deems a person ineligible for having a “physical,
intellectual or mental disability that renders the person incapable of effectively
performing the duties of a juror”. The Northern Territory legislation, the Juries Act 1962
(NT), provides at sch 7 that “a person with a disability as defined in section 2(1) of the
Disability Services Act 1993 [which includes a permanent physical impairment which
results in substantially reduced capacity and the need for continued support] who, as a
result of that disability, is incapable of discharging the duties of a juror” is exempt from
service. I note that this Act was only amended last year, by the Justice and Licensing
Legislation Further Amendment Act 2022 (NT), to replace previous wording that was
“derogatory in nature concerning persons with various kinds of disabilities”: see
Explanatory Statement, Justice and Licensing Legislation Further Amendment Bill 2022
(NT).
20. By contrast, the ACT legislation makes plain the liability of a person with disability
(unless they seek to be excused) to serve as a juror if selected and the obligation of
the Court to consider what support can reasonably be provided for that purpose.
21. It may readily be accepted that a person whose hearing is impaired to the extent of
requiring Auslan interpretation may be unable, without support, properly to discharge
the duties of a juror. Jury trials are mostly conducted orally. Without support, such a
person would be unable to attend to the evidence, counsel’s addresses and the judge’s
directions. They would also be unable to participate effectively in jury deliberations.
22. It is significant that a note to the Act expressly contemplates the provision of an Auslan
interpreter as a possible means of supporting a juror to discharge their duties. In light
of that note, I do not think it is open to approach this issue on the premise that hearing
is essential to the proper discharge of the duties of a juror in every case, although there
may be particular trials where that would be the case.
23. The central question here was whether such support could “reasonably be given”.
Section 16(3) of the Juries Act identifies the following factors potentially relevant in the
determination of that question:
(a) whether the support would impose a disproportionate or undue burden on court
resources, facilities and time frames;
(b) 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;
24. As contemplated by the Court’s policy on the provision of support for jurors, the Sheriff
prepared a report in respect of the request from person X. The report recommended
the provision of the support requested, which will require that person X have the support
of two Auslan interpreters on rotation for the empanelment process and, if selected as
a juror, for the duration of the trial.
25. I had regard to a schedule of fees for an interpreter service used by the Court which
quotes the price of $132 per hour for an onsite interpreter. However, it was necessary
to hire two interpreters concurrently as they alternate in 15 to 30 minute intervals, owing
to the intensity of the work. As interpreters were not available in the ACT, travel and
accommodation costs were also to be incurred.
26. At a minimum, the interpreters were to be required for the first day of the criminal sittings
to provide support during the empanelment process. If the potential juror was
empanelled, the Court would then require the interpreters for the duration of the trial.
For the sittings in question and allowing for one day of jury deliberations, the
interpreters were to be required for about five days. The total cost was to be in the
order of about $10,000 per interpreter plus travel and accommodation.
27. I was satisfied that this would not be a disproportionate or undue burden on the Court’s
resources, facilities or time frames. The express reference to the provision of Auslan
interpreters in s 16 and the remarks made in the Explanatory Statement of the
amending legislation indicate that the Legislative Assembly contemplated that such
support should be provided as part of the cost of jury trials. It is a minimal cost in the
context of the ongoing operational expenses of the Court during a jury trial including
salaries of judicial officers, the Sheriff’s officers, Registry staff, transcribers and
associates; payments to jurors; and the provision of services such as the remote
witness rooms available in this jurisdiction for vulnerable witnesses.
28. The use of Auslan interpreters during a trial may have a minor impact on the flow of the
trial due to the need to allow time for the interpretation of all words said during the trial.
As noted by the Judicial Council on Cultural Diversity’s Recommended National
Standards for Working with Interpreters in Courts and Tribunals (Second Edition, March
2022), this may involve repeating some statements, pausing to allow the interpreter to
correct an error, or explaining a concept or term to the interpreter. However, unlike
interpreters for foreign languages who require the speaker to pause before translating,
Auslan interpreters ordinarily translate almost in real time. I was satisfied that the effect
of providing such support to person X would have a small impact on the estimated time
frame of the trial.
29. The Court also has the facilities to accommodate Auslan interpreters who are required
by the nature of their work to be situated directly opposite the person whose hearing is
impaired. There is ample space in front of the public gallery for an interpreter to face
the jury pool during empanelment, and between the jury box and bar table for an
interpreter to face the juror during the trial. In the jury deliberation room itself there is
a large table which has sufficient space for the interpreter to sit opposite the juror. The
jury deliberation room also has the necessary facilities for interpreters to rest during
their breaks.
30. Furthermore, I do not think the presence of the interpreters during jury deliberations will
inhibit or restrict discussion, or pressure or influence any juror. Section 16(4)(a) of the
Juries Act displaces the common law rule against having a non-juror present in the jury room. As already noted, the proficiency of Auslan interpreters will ensure that the jury
deliberations will not suffer significant delay.
31. There is now also provision for the interpreters to take an appropriate oath. Section
s 45A of the Juries Act requires them to make an oath or affirmation in the following
form:
Interpreter’s oath
I swear (or the person taking the oath may promise) by Almighty God (or the person may
name a god recognised by the person’s religion) that I will well and truly interpret the
proceedings and the jury’s deliberations and that I will not otherwise participate in the jury’s
deliberations or disclose anything about those deliberations, except as allowed or required
by law.
Interpreter’s affirmation
I solemnly and sincerely declare and affirm that I will well and truly interpret the proceedings
and the jury’s deliberations and that I will not otherwise participate in the jury’s deliberations
or disclose anything about those deliberations, except as allowed or required by law.
32. The institution of trial by jury relies on jurors complying with their oath or affirmation
made at the outset of a trial to give “a true verdict according to the evidence”: sch 1 pt
1.1 of the Juries Act. There is no reason not to place the same reliance on interpreters
to adhere to the promise in their oath or affirmation.
33. For those reasons, I was satisfied in the terms of s 16(2)(a) that support in the form of
Auslan interpreters could reasonably be given to person X to enable them to properly
discharge the duties of a juror. I was accordingly required under s 16(2)(b) to direct
that the support be given.
34. I made the following orders on 12 December 2022:
(1) Direct that pool member 602 of the 19th jury pool of 2022 be provided with Auslan interpreting services during the empanelment process and, should they
be empanelled, the duration of the relevant trial.
(2) Note that pursuant to s 16(4)(b), the presence of Auslan interpreters during jury deliberations in any trial in which this person is empanelled as a juror is solely for the purpose of assisting the relevant person to properly discharge their duties as a juror. (3) Note that pursuant to s 16(4)(c), order 1 is subject to the interpreters agreeing to make oaths or affirmations in accordance with schedule 1, part 1.1A of the Act. 35. By way of postscript, I note that person X complied with the summons and attended
Court for jury duty. The Auslan interpreters were present from the time person X
reported for jury duty and assisted both with the induction of jurors in the Sheriff’s office
and with the empanelment process in open court. During that process, it transpired
that person X was unsuitable for jury duty for reasons unrelated to their hearing
impairment and they were excused.
I certify that the preceding thirty-five [35] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum
Associate:
Date: 16 May 2023
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