Lyons v State of Queensland - [2014] QCATA 302

CITATION:

Lyons v State of Queensland [2014] QCATA 302

PARTIES:	Gay Prudence Lyons (Applicant/Appellant)
v
State of Queensland (Respondent)

APPLICATION NUMBER:

APL008-14

MATTER TYPE:

Appeals

HEARING DATE:

26 August 2014

HEARD AT:

Brisbane

DECISION OF:

Hon K Cullinane AM QC, Presiding Judicial Member
Senior Member Oliver

DELIVERED ON:

21 October 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Insofar as leave to appeal is necessary, it is refused.

2. The appeal is dismissed.

CATCHWORDS:

DISCRIMINATION – DIRECT AND INDIRECT DISCRIMINATION- JURY – ELIGIBILITY FOR JURY SERVICE – Where the applicant is a person with an impairment (deafness) – whether the applicant was excluded from jury service because of her impairment – where necessary for the applicant to have an interpreter in the jury room to perform the function of a juror – where presence of a person not a juror in the jury room prohibited as a matter of law – whether a term or condition was imposed on the applicant for her to perform jury service – where tribunal rejected the term contended for by the applicant – whether duty to ascertain alternate term in the circumstances

Anti-Discrimination Act 1991 (Qld) ss 10, 11,

Jury Act 1995 (Qld) ss 4, 50, 54 and 70

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142

Australian Iron and Steel Pty lt6d v Banovic (1989-1990) 168 CLR 165;
The State of New South Wales v Avery & Ors (2006) 1230 CLR 174;
Re: the Jury Act 1995 and an application by the Sherriff of Queensland [2014] QSC 113.
Bone v Commissioner of Stamp Duties (1972) 2 NSWLR 651;
Waters v Public Transport Corporation [1991] 173 CLR 347;
Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92; Dovedeen Pty Ltd & Anor v GK [2013] QCA 116.

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mr O’Gorman SC instructed by Australian Disability Law.

RESPONDENT:

Ms Mellifont QC with her Mr Scott of counsel, instructed by Crown Law

REASONS FOR DECISION

Ms Lyons is profoundly deaf. In February 2012 she was summonsed for jury service at the criminal sittings of the District Court at Ipswich. After she received the summons she informed the District Court Registrar of her hearing impairment and that she would require two translators to assist her if she was selected as a juror for a trial. She could effectively communicate with Auslan translators and this is not contested.
The Deputy Registrar, after considering Ms Lyons circumstances, and after there was consultation with the Sherriff, and also reference to the provisions of the Jury Act 1995 (Qld), told Ms Lyons that because of her hearing impairment and the need to have Auslan translators in the jury room during deliberations, she could not to serve as a juror.
Ms Lyons then made a complaint to the Anti-Discrimination Commission of Queensland. Her complaint was that the respondent had engaged in both direct and indirect discrimination. The complaint of direct discrimination was that being…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] QCATA 302
Decision Date: 21 October 2014

CaseChat Overview and Summary

The case of Lyons v State of Queensland involved the applicant, Ms Lyons, who was a deaf person, challenging her exclusion from jury service in Queensland on the grounds of disability discrimination. Ms Lyons had completed a jury eligibility questionnaire, indicating no issues with her ability to serve as a juror, but later communicated to the court that she would require the services of two Auslan interpreters to participate effectively in the jury deliberations. The State of Queensland, represented by the Deputy Registrar of the District Court at Ipswich, upheld the exclusion of Ms Lyons from jury service due to the legal prohibition on having non-jurors, such as interpreters, in the jury room.

The central legal issue was whether Ms Lyons' exclusion from jury service constituted direct or indirect discrimination under the Anti-Discrimination Act. Direct discrimination was defined under section 10 of the Act as treating someone less favourably due to an attribute they possess, without the need for intent or motive from the discriminator. Indirect discrimination, under section 11, involves imposing a term or condition that disproportionately affects individuals with a particular attribute, unless the term is reasonable considering various factors such as consequences and costs. The court had to determine if the requirement that no non-jurors be present in the jury room constituted an indirect discriminatory term for which a reasonable alternative could not be ascertained.

The court found that Ms Lyons' exclusion from jury service did not constitute indirect discrimination. The legal prohibition on having non-jurors in the jury room was deemed a reasonable condition under the circumstances, necessary to maintain the confidentiality and integrity of the jury deliberations as stipulated in section 70 of the Act. The court held that there was no duty on the State to find an alternate term that would allow Ms Lyons to serve on a jury while being accompanied by interpreters, as such a term would undermine the legislative intent behind the confidentiality of jury deliberations. Consequently, the appeal was dismissed, and leave to appeal was refused.

Orders

Orders of the court

1. Insofar as leave to appeal is necessary, it is refused.

2. The appeal is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Section 70 deals with the confidentiality of jury deliberation and provides:70Confidentiality of jury deliberations(2)A person must not publish to the public jury information.Maximum penalty—2 years imprisonment.(3)A person must not seek from a member or former member of a jury the disclosure of jury information.Maximum penalty—2 years imprisonment.(4) … It is not contentious that the applicant has an attribute within under s 7 of the Anti-Discrimination Act that is, a hearing impairment. The meaning of direct discrimination is set out in s 10 of the Anti-Discrimination Act which is:(1)Direct discrimination on the basis of an attribute happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different.(2)It is not necessary that the person who discriminates considers the treatment is less favourable.(3)The person’s motive for discriminating is irrelevant.[5][5]Examples excluded. Indirect discrimination is provided for in s 11 of the Anti-Discrimination Act and it provides:(1)Indirect discrimination on the basis of an attribute happens if a person imposes, or proposes to impose, a term—(a)with which a person with an attribute does not or is not able to comply; and(b)with which a higher proportion of people without the attribute comply or are able to comply; and(c)that is not reasonable.(2)Whether a term is reasonable depends on all the relevant circumstances of the case, including, for example—(a)the consequences of failure to comply with the term; and(b)the cost of alternative terms; and(c)the financial circumstances of the person who imposes, or proposes to impose, the term.(3)It is not necessary that the person imposing, or proposing to impose, the term is aware of the indirect discrimination.(4)In this section—term includes condition, requirement or practice, whether or not written.[6][6]Examples excluded. The Deputy Registrar of the District Court at Ipswich acts under a delegation from the Sherriff of Queensland. All prospective jurors must fill out a questionnaire to determine if they are eligible for jury service. This is primarily to address the eligibility criteria set out in s 4(3) of the Act. If a juror is incapable of performing jury service, the Deputy Registrar can excuse the juror. If not excused, and once summonsed for jury service, the juror must attend the criminal sittings of the District Court as required. Ms Lyons completed the questionnaire and returned it to the Deputy Registrar but did not tick any box that would indicate that she was not qualified, or incapable, of performing jury service. When she was summonsed to attend the court, Ms Lyons emailed the court to indicate that she was ‘looking forward to sitting on the jury’ but as a deaf person, she would require the services of two Auslan interpreters. She gave details about how this could be arranged. Auslan is an abbreviation for Australian Sign Language, which is commonly used to assist deaf people to communicate.