By Sonia Hickey and Ugur Nedim
Section 80 of the Australian Constitution guarantees the right to a trial by jury for those who are tried on indictment for criminal charges; in other words, who are dealt with in the higher courts such as the District or Supreme Court.
However, there is no express right to serve as a juror and many Australian residents are excluded from jury duty, including permanent residents.
In fact, only those on the electoral roll are allowed to serve on juries.
Deaf woman’s fight to be a juror
Gaye Lyons says her desire to perform her civic duty was what spurned her on to spend the past four years fighting for the right to sit on a jury.
Her battle began in 2012 in Ipswich, Queensland, when the District Court’s deputy registrar blocked her from entering the jury pool on the ground that she is deaf, and while she can lip read, she needs an Auslan interpreter to help her communicate.
Outraged by the decision, Ms Lyons embarked on an unprecedented battle against the Queensland Government that was originally heard by the Queensland Civil and Administrative Tribunal, then by the Supreme and High courts.
The 69-year old believes she had been unfairly discriminated against by the Queensland Government through its refusal to provide her with an interpreter in order to perform one of the most important functions in the criminal justice system, and that decision has implications for deaf people throughout the nation.
But the Counsel for the State Government argued that the workings of court are “fundamentally oral and aural”, and the law was merely applied in a sensible way to ensure justice for those involved in the court proceedings.
Through the process
Lawyers for the Government initially refused Ms Lyons’ application because the accuracy of a translation to a deaf juror cannot be tested.
Undeterred, Ms Lyons kept fighting. After the Supreme Court also ruled against her, she appealed the decision to the highest court in the land/
In a ruling that Ms Lyons has called “frustrating”, a five-judge High Court bench upheld the Supreme Court’s ruling, unanimously dismissing her appeal on the grounds that there is no legislative provision for an Auslan interpreter to be present during jury deliberations.
“The Deputy Registrar rightly concluded that Queensland law did not permit an Auslan interpreter to assist the appellant while the jury was kept together,” the judgement reads.
“It followed that the appellant was incapable of effectively performing the functions of a juror”.
“This conclusion made the appellant ineligible for jury service”.
“A person who is not eligible for jury service is not qualified to serve as a juror.”
Ms Lyons is angry with the High Court’s decision.
“To say that interpreters could not relay information accurately, that was the living end, that was the last straw for me. It wasn’t a nice feeling to know that inherently — interpreters — that their translations were not correct, it was a terrible thing to say. The court stenographers — I have to say — are they always 100 per cent accurate?”, Ms Lyons remarked.
She rightly pointed out that courts already used interpreters in a range of cases, relying upon them to accurately translate the testimony of key witnesses.
“They trust interpreters to work in those settings – what’s the difference with trusting them to relay in a jury room? What’s the difference if they work in court anyway?” she says.
The difference, according to lawyers for the Government, is that interpretations in that context can be tested and challenged, whereas those of an interpreter sitting next to a juror cannot.
Ms Lyons would have set a national precedent if she had succeeded in the High Court.
No deaf person has ever served on an Australian jury. In fact, two deaf people have previously waged unsuccessful fights against their exclusion in NSW.
Ms Gemma Beasley and Mr Michael Lockrey lodged separate appeals to the UN Committee on the Rights of Persons with Disabilities (CRPD).
Each had been summonsed for jury duty at different times. They both informed the Sheriff they would require assistance in order to participate – an Auslan interpreter and real-time steno-captioning. Both were informed that the Sheriff had decided to exclude them under Section 14 of the Jury Act 1977, which says:
“The sheriff may exempt a person from jury service whether or not on the request of the person if the sheriff is of the opinion that there is good cause for the exemption.”
The following are grounds for an ‘exemption’:
- jury service would cause undue hardship or serious inconvenience to the person, the person’s family or the public, or
- some disability associated with that person would render him or her, without reasonable accommodation, unsuitable for or incapable of effectively serving as a juror, or
- a conflict of interest or some other knowledge, acquaintance or friendship exists that may result in the perception of a lack of impartiality in the juror, or
- there is some other reason that would affect the person’s ability to perform the functions of a juror.
Both took their cases to the UN’s CRPD, alleging that New South Wales and, by extension, Australia, was infringing their rights under the Convention on the Rights of Persons with Disabilities.
The CRPD agreed and directed Australia to compensate and reimburse their legal costs, and to permit them to participate and prevent a reoccurrence.
But as with many international law decisions, the judgment and direction fell on deaf ears.
Notably, Western Australia allows deaf people to sit on juries, and there are widespread calls for other jurisdictions to follow – ensuring a class of people mentally sound people is not unfairly excluded.
Other countries including the US and New Zealand also allow deaf people to participate.
Queensland Law Society president Bill Potts believes the Jury Act is outdated in several respects and should be reviewed.