Earlier this year, the Institute noted the upcoming High Court appeal of a deaf woman from Queensland who had been excluded from jury service by the registrar of Ipswich Courthouse. The High Court has now published its judgment in that matter.
Gaye Lyons took the Queensland Government all the way to the High Court this year, seeking to prove that her exclusion from jury service was unlawful discrimination based on her deafness. Just two months before her High Court hearing, two deaf people from New South Wales – Gemma Beasley and Michael Lockrey – had taken similar cases to the Committee on the Right of Persons with Disabilities and won.
The story so far
Briefly to recap, Ms Lyons was summoned to appear for jury selection at Ipswich Courthouse in 2012. When she turned up, she let the Deputy Registrar know that she would require an Auslan interpreter to be provided. The Deputy Registrar then excluded her from jury service under the Jury Act 1995 (Qld), on the grounds that she was:
Incapable of effectively performing the functions of a juror.
Ms Lyons challenged her exclusion before a single member of the Queensland Civil and Administrative Tribunal, again before the Appeal Tribunal, and finally before the Queensland Court of Appeal. She lost each time. She was granted special leave to appeal to the High Court in March.
Ms Lyons before the High Court
All five judges of the High Court that heard Ms Lyons’ case dismissed her appeal.
The plurality judgment – French CJ, and Bell, Keane, and Nettle JJ – considered that any suggestion that a non-juror can be present during jury deliberations “must be rejected”. Their Honours said:
The common law has long required that the jury be kept separate. 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. 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. 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.
The only recognised exception to that exclusionary rule was:
The officer who has the charge of the jury. That officer is permitted to communicate with the jurors with the judge’s leave. The efficient conduct of the trial would be impeded were there no provision of that kind.
The plurality conceded that:
It may be, as the appellant submits, that the secrecy of the jury’s deliberations would not be compromised by the presence of an accredited Auslan interpreter in the jury room during the jury’s deliberations. Nonetheless… Queensland law does not permit an Auslan interpreter to be present during the jury’s deliberations.
Therefore, the Deputy Registrar at Ipswich was exercising her powers according to law, and her actions did not constitute unlawful discrimination under the Anti-Discrimination Act 1991 (Qld).
Gaegeler J concurred with the plurality’s findings, only writing a separate judgment to further explore the statutory interpretation reasons why acting in accordance with the Jury Act did not constitute unlawful discrimination.
Deaf jurors and the rule of law
Ms Lyons’ case, and others like it, have raised competing rule of law considerations from the beginning.
As our previous blog post noted, there is a clear tension between the benefit of properly representative juries and equality of civic obligations and responsibilities on the one hand, and the proper functioning of and public confidence in the jury system on the other hand.
In the case of the two deaf people from New South Wales – see here and here – the Committee on the Rights of Persons with Disabilities conceded that “the confidentiality principle of jury deliberations must be observed”, but noted that:
The State party… does not provide any data or analysis to demonstrate that it would constitute a disproportionate or undue burden… [And] the State party does not provide any argument justifying that no adjustment could be made to enable the Auslan interpreter to perform his/her functions without affecting the confidentiality of the deliberations of the jury such as a special oath before a court.
Therefore, the Committee found that the exclusion of deaf jurors amounted to disability based discrimination.
This finding is compatible with the High Court’s judgment. As the High Court pointed out, there was no specific statutory provision that allowed the participation of an Auslan interpreter in the jury deliberations. Absent that provision, all that was left was a powerful and convincing common law history of rigidly excluding non-jurors.
However, the Court left open the possibility that the Queensland government – and any other government in Australia – might choose to pass legislation to allow the participation of citizens like Ms Lyons who might otherwise be excluded.
For now, the High Court has spoken. Deaf people in Australia are unlikely to be able to participate in jury trials for the next little while, a fact that will not be well-received by the disabled community. However, the possibility still remains that legislatures could choose to prioritise representative juries and equal participation.
— William Shrubb
Should deaf people be able to serve as jurors in Australia?, Macquarie University study
Deaf people furious over High Court decision, ABC: The World Today report