Douglas J states that
An individual has been selected on a jury panel to perform jury service in the current criminal sittings of the Supreme Court and the District Court. She has advised the sheriff that she required an Auslan interpreter in the event that she was empanelled as a juror and the sheriff has referred to the Court the question of her eligibility for jury service.
By s 4(3)(l) of the Jury Act 1995 (Qld) a person who has a physical disability that makes the person incapable of effectively performing the functions of a juror is not eligible for jury service. The senior judge administrator authorised the sheriff, pursuant to s 14 and s 31(4) of the Act, to ask questions of the individual as a person who has been summoned for jury service, that related to whether her hearing impairment was such that she may be ineligible for jury service. Section 68 also authorises the sheriff, or a person authorised by the sheriff, to ask a person reasonable questions to find out whether the person is qualified for jury service. The individual has, among other things, told the sheriff that she is able to lip read well, but that, as her hearing is not good, she may miss parts of some conversations.
In other jurisdictions, deafness as a disability has been sought to be overcome by the use of Auslan interpreters, or equivalently qualified interpreters, to assist jurors. Such a solution may be adequate to deal with the individual’s disability in respect of the hearing of evidence during any trial, but further potential difficulties arise in respect of deliberations by the jury in the jury room during and after the hearing of the evidence. Communication or discussion between jurors has been emphasised as an integral part of the jury system because of their collective duty to pool their experience and wisdom in coming to a verdict, see Watson and Ors (1988) 87 Cr App R 1, 8. In the absence of legislative provision, it is clear that the jury is bound to deliberate in private, see Goby v Wetherill [1915] 2KB 674, 675.
While s 54 of the Jury Act prohibits a person from communicating with any of the jurors without the judge’s leave, it is not at all clear that the judge’s ability to give leave would permit the presence of an interpreter in the jury room during the jurors’ deliberations. That section appears to be directed at maintaining the secrecy of jury deliberations and preventing jurors from discussing those deliberations, particularly with the media. The discretion, there, is not well adapted to permitting an interpreter to sit in a jury room to assist a deaf juror to take part in the deliberations; see, also, the discussion by Member Roney QC in Lyons v State of Queensland (No 2) [2013] QCAT 731 at [146]-[171]. Other jurisdictions have made particular legislative provision for such an eventuality, but that has not happened in Queensland.
A further complicating feature of the failure to make such legislative provision is that there is no explicit power, for example, to require such an interpreter to swear an oath or to make an affirmation to maintain the secrecy of the jury’s deliberations. It is an offence under s 95 of the Criminal Code for a person to administer an oath or take an affirmation where the person lacks authority to do so.
So while it may be possible to assist this individual to participate in the trial itself, by the use of an Auslan interpreter, and, for example, written jury directions, it would not be appropriate to permit such an interpreter to perform a similar role in the jury room as a “13th juror” in the absence of specific legislative provision, including the power to require the interpreter to swear or affirm to keep the jury’s deliberations secret.
The issue that then arises is whether the individual’s ability to lip read will be sufficient to allow her to perform, effectively, the functions of a juror, to use the language of s 4(3)(l) of the Act. As I have said, those functions include the need to communicate effectively with other jurors. As I also said earlier, she has told the sheriff that she is able to lip read well, but that, as her hearing is not good, she may miss parts of some conversations. She has also told me that she needs an Auslan interpreter to “speak” most effectively to other jurors because, in effect, Auslan is her first language, although she can say words as well. Nevertheless she said that sometimes people do not understand what she says so that if she has an interpreter, things go a lot more smoothly.
Jury deliberations take place in a room equipped with a large table, around which chairs are available to allow jurors to sit and discuss the issues arising in a case. It is reasonable to assume that those deliberations will not always occur in a structured or orderly fashion, such that one person spoke at one time in circumstances where it was visibly obvious who the speaker was and what he or she was saying. There seem to me to be considerable risks for the fairness of any trial if one relies simply on the individual’s ability to lip read to qualify her as a juror, given her concession that she may miss parts of some conversations and the likelihood that she may not be aware that conversations are occurring which she cannot observe. There is a very real risk, absent the use of an interpreter, that she will not be able to participate properly in communication among the jurors.
In those circumstances, and in the absence of legislative provision to facilitate the use of an interpreter to assist her to engage in the jury room discussions, my ruling is that the individual is incapable of effectively performing the functions of a juror and therefore ineligible for jury service.
