HIGH COURT OF AUSTRALIA
FRENCH CJ,
BELL, GAGELER, KEANE AND NETTLE JJGAYE PRUDENCE LYONS APPELLANT
AND
STATE OF QUEENSLAND RESPONDENT
Lyons v Queensland
[2016] HCA 385 October 2016
B16/2016ORDER
Appeal dismissed.
On appeal from the Supreme Court of Queensland
Representation
K T Nomchong SC with B E Fogarty for the appellant (instructed by Australian Centre for Disability Law)
W Sofronoff QC with K A Mellifont QC and A D Scott for the respondent (instructed by Crown Law (Qld))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Lyons v Queensland
Discrimination law – Disability discrimination – Where deaf person summoned for jury service – Where deaf person required assistance of Auslan interpreters to participate as juror – Where deaf person excluded from jury panel – Whether exclusion was unlawful discrimination.
Juries – Persons constituting jury – Jury deliberations – Whether permissible for interpreter to be present in jury room during deliberations – Whether deaf person who requires assistance of interpreter in jury room eligible for jury service under Jury Act 1995 (Q).
Words and phrases – "deaf person", "direct discrimination", "functions of a juror", "indirect discrimination", "jury deliberations", "jury service", "separation of the jury".
Anti-Discrimination Act 1991 (Q), ss 10, 11, 101.
Jury Act 1995 (Q), ss 4(3), 54, 70.
FRENCH CJ, BELL, KEANE AND NETTLE JJ. It is unlawful for a person performing any function or exercising any power under Queensland law to discriminate against a person on the basis of the person's impairment[1]. The question in this appeal is whether the Deputy Registrar of the Ipswich District Court Registry ("the Deputy Registrar") unlawfully discriminated against the appellant by excluding her from a jury panel because the appellant, a profoundly deaf person, requires the services of an Australian Sign Language ("Auslan") interpreter. For the reasons to be given, a deaf person who requires the services of an interpreter in order to communicate with others is not eligible for jury service in Queensland. The Deputy Registrar's decision not to include the appellant in a jury panel did not constitute unlawful discrimination in the performance of her functions or the exercise of her powers under Queensland law.
[1]Anti-Discrimination Act 1991 (Q), s 7(h).
The Anti-Discrimination Act
The Anti-Discrimination Act 1991 (Q) ("the ADA") prohibits discrimination on the basis of any of the attributes that are specified in s 7. One such attribute is "impairment"[2]. "Impairment" includes the total or partial loss of a person's bodily functions[3]. Discrimination on the basis of an attribute includes direct and indirect discrimination on the basis of a characteristic that a person with the attribute generally possesses or a characteristic that is often imputed to a person with the attribute[4]. The appellant's deafness is an impairment and communication by means of Auslan is a characteristic that persons who are deaf generally possess.
[2]ADA, s 7(h).
[3]ADA, Schedule.
[4]ADA, s 8(a) and (b).
A person directly discriminates against another…
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- AGLC
- Lyons v Queensland [2016] HCA 38
- Case
- [2016] HCA 38
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the High Court were whether the exclusion of Mr. Lyons from jury service amounted to unlawful discrimination based on his disability, and, more fundamentally, whether a deaf person requiring an Auslan interpreter could lawfully perform the functions of a juror, particularly in relation to jury deliberations, under the *Jury Act 1995* (Qld). The State contended that the phrase "perform the functions of a juror" encompassed both listening to evidence and participating in deliberations without the need for a non-juror to be present.
The High Court, in dismissing the appeal, focused on the common law requirement that a jury be kept separate from external influence. The Court held that the presence of a person other than a juror in the jury room during deliberations, even if that person did not participate in the discussions, constituted an incurable irregularity. This prohibition is designed to protect the jury from the suggestion of external influence and to promote the frank exchange of views among jurors, who are bound by their oath and responsible for the verdict. The Court found that absent specific statutory provision, disclosure of jury deliberations to an Auslan interpreter could not be permitted, as it would breach this fundamental principle.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: FRENCH CJ, BELL, KEANE AND NETTLE JJ, GAGELER J
The State adopts Douglas J's analysis in Re Application by Sheriff (Qld). Additionally, by notice of contention, the State seeks to have the Court of Appeal's decision affirmed on the ground that the phrase "perform the functions of a juror" for the purposes of s 4(1)(c) of the Jury Act describes both listening to oral evidence and participating in the deliberations of the jury without the need for a non-juror to be present. The State's argument is that a deaf juror who has the evidence mediated through the services of an Auslan interpreter is not able to give a true verdict based upon his or her assessment of the evidence. Interpretation of the evidence to a juror is said to result in a trial that is no longer wholly under the supervision of the judge. The trial at which the evidence of one or more witnesses is interpreted is distinguished, in the State's argument, on the basis that in such cases each juror gives a true verdict according to the same evidence. Moreover, in such cases a party who is dissatisfied with the accuracy of the interpretation may challenge it. There is no way to challenge the accuracy of the interpretation of communications made in the jury room. Consideration In the event, the State's contention is not reached. Absent specific statutory provision, the contention that disclosure of the jury's deliberations to an Auslan interpreter is "allowed by law" must be rejected. The common law has long required that the jury be kept separate[43]. The possibility that, while the jury is kept together, one or more jurors may have communicated with a person other than a fellow juror (or officer of the court) is an irregularity which has been held to vitiate the verdict[44]. The presence of a person other than a juror in the jury room during the course of deliberations is an incurable irregularity regardless of whether the person takes any part in the jury's deliberations[45]. The prohibition on the presence of a 13th person in the jury room protects the jury from the suggestion of external influence and promotes the frank exchange of views. It is the latter consideration that informs the exclusionary rule which precludes the admission of evidence of the deliberations of the jury[46]. Each member of the jury is free to speak in the knowledge that no one other than fellow jurors, each of whom is bound by the oath taken at the commencement of the trial and each of whom will be responsible for the ultimate verdict, hears what is said. [43]Devlin, Trial by Jury, rev ed (1966) at 41-42; Holdsworth, A History of English Law, (1938), vol 11 at 553-554; Blackstone, Commentaries on the Laws of England, 15th ed (1809), bk 3 at 375.[44]R v Ketteridge [1915] 1 KB 467 at 470 per Lush J (delivering the judgment of the Court); R v Neal [1949] 2 KB 590 at 595-596 per Lord Goddard CJ (delivering the judgment of the Court) and see R v Crippen [1911] 1 KB 149 at 155 per Darling J (delivering the judgment of the Court).[45]Goby v Wetherill [1915] 2 KB 674; R v McNeil [1967] Crim LR 540; In re Osman [1995] 1 WLR 1327.[46]Smith v Western Australia (2014) 250 CLR 473 at 481 [30]-[31]; [2014] HCA 3; R v Pan [2001] 2 SCR 344 at 373 per Arbour J (delivering the judgment of the Court); R v Mirza [2004] 1 AC 1118.