Interpreting Justice

By Chloe Potvin

By Chloe Potvin

Each year, people all across Australia receive letters advising them that they have been included on the jury roll or summoned for jury service. For some the prospect of experiencing the court process sparks excitement and curiosity – a welcomed break from routine life. For others the possible time away from family, work, study commitments or medical treatment means that they may wish to be excused from service and must go through the process of applying for exemption.

Gaye Lyons falls into the former category. Having received her letter in January 2012, she was elated with the idea of performing her civic duty. The Queensland resident then emailed the Ipswich District Court to inform them that as she is deaf she would require the assistance of an Australian sign language (Auslan) interpreter in the selection process, court proceedings and jury room. To her dismay, Ms Lyons received a response from the court informing her that they would not provide interpreters and that she would not be permitted to serve on the jury. She was subsequently “excused”.

Ms Lyons alleges that she has been discriminated against on the basis of her disability and has taken her case to the Queensland Civil and Administrative Tribunal under the Anti-Discrimination Act 1991 (QLD).

“It’s the 21st century,” Ms Lyons said, “times have changed, and people with disabilities need to participate in society more. We have to pay equal taxes and yet we are not treated equally and allowed to serve our society.”

The State Government claims that the Jury Act 1995 (QLD) does not allow an Auslan interpreter in the jury room during deliberations as this would constitute a 13th person. But Ms Lyons’ lawyer, Phillip French, disputes this argument. The case was heard over three days in June 2013 and is still continuing.

Unfortunately, Ms Lyons’ case is not unique. In recent years there have been a number of cases taken to courts, both in Australia and around the world, by deaf people who were involuntarily excused from jury service. The Australian Disability Law Centre is currently pursing three different cases whereby people have been rejected for jury service as a result of their deafness.

Michael Lockrey, a prominent deaf activist and disability rights advocate, was summoned for jury service in Lismore, New South Wales in February 2012. He wrote a letter to the court explaining his deafness and asked the court to assist his service by providing live captioning during the trial. After this correspondence he was also involuntarily excused.

In order for juries to perform their role in the administration of justice they must represent a genuine cross-section of society.

Initially Mr Lockrey complained to the Australian Human Rights Commission (AHRC). But in November 2012, despite the AHRC’s attempts to conciliate the issue, the New South Wales Sherriff’s office would not agree to alter their policy and provide captioning in courtrooms.

Mr Lockrey has submitted a petition to the United Nations Committee on the Rights of Deaf People, which monitors the implementation of the Convention on the Rights of Persons with Disabilities, of which Australia is a signatory. If the UN Committee accepts the petition, the Australian Government has six months to respond. If his petition is successful then the Australian Government will be obligated to provide captioning in courtrooms but it would be at their discretion whether this would be required in all states and territories, or just New South Wales.

“I am motivated by what I believe constitutes a blatant breach of my human rights that prevents me from contributing fully to the society I am and want to be part of,” Mr Lockrey said.

In order for juries to perform their role in the administration of justice they must represent a genuine cross-section of society. Like voting, it is considered to be both a right and obligation of citizenship to serve on a jury.

No Jury Act explicitly excludes people who are deaf. However, no deaf person has ever been permitted to serve on a jury in Australia due to administrative determination that deaf people cannot “access the language of the court” and the exclusion of interpreters in the deliberation room.

Potential for future law reform

There is sufficient research on the potential for future law reform in this area in Australia.

In 2002, Attorney General Bob Debus called on the New South Wales Law Reform Commission (NSWLRC) to investigate whether hearing impaired or profoundly deaf people have the capacity to serve as jurors.

Almost four years later, the NSWLRC requested that a group of researchers at Macquarie University carry out a preliminary project to determine whether a judge’s summation could be accurately translated from English into Auslan.

Dr Jemina Napier led the project with Professor David Spencer and Joe Sabolcec. Their initial study focused on the translation of legal discourse into Auslan through the interpretation and analysis of a judge’s summation. They found the interpretation to be 80 per cent accurate, which is regarded to be sufficient.

This was followed up by a pilot study whereby six deaf and six hearing Sydney-based feign “jurors” were given a 12-question test, in Auslan and English respectively, about the judge’s summation to reveal any critical differences in content comprehension and contextual understanding. It found that the deaf “jurors” had an equal understanding of the criminal trial conveyed through the sign language interpretation of the summation as the hearing group that listened to it verbatim. Thus deaf people did not appear to be disadvantaged by relying on interpretation.

From the results, NSWLRC made a recommendation to the NSW Attorney General in 2007 that deaf people should be allowed to serve as jurors. However, the recommendation was refused on the basis that only 12 people are allowed in the jury deliberation room and an interpreter would be considered as a 13th person.

From 2009 to 2011, Dr Napier and her colleagues replicated the pilot study wishing to further validate their original findings. They administered the comprehension text of the judge’s summation to 30 deaf and 30 hearing participants across Australia. Again there was equal misunderstanding of the content with approximately 10 per cent of both participant groups answering questions inaccurately. Subsequently, it was concluded that deaf people grasp the content of courtroom discourse and form verdicts about the guilty status of defendants.

Rather than ceasing their investigation here, the team felt it was necessary to test their deductions and explore perceptions about deaf jurors, the presence of sign language interpreters in criminal trials and the possible impact on the administration of justice. The 2011-2012 project used an online international survey together with face-to-face, email and video-conference interviews to ask legal professionals and qualified sign language interpreters a range of open-ended and closed questions. Topics of consideration included issues of equity and rights, access to information, perceived challenges, natural bias, and understanding of the role of interpreters. The core concern was the notion of the interpreter as the 13th person in the jury room and the feasibility of adequate access to “oral” evidence.

There is still disagreement globally and nationally about the impact the presence of a deaf juror could have on the outcome of a trial.

Respondents from the USA were significantly more supportive of deaf jurors than respondents in Britain and Australia. This is likely because deaf people have been permitted to serve in some American states for around two decades. Both the US-based lawyer that had experience with deaf jurors and the US interpreters interviewed were confident that deaf people can effectively serve on juries. Overall, most of the participants agreed that if there is a strong commitment to clear policy and sufficient training for interpreters and courtroom stakeholders then deaf people, in principal, can capably serve as jurors.

While this signifies a great step towards possible reform, there is still disagreement globally and nationally about the impact the presence of a deaf juror could have on the outcome of a trial.

“We need to know more about what actually happens through a trial and in the jury deliberation process to make clear recommendations based on the evidence,” Dr Napier said.

Commencing in January 2013, a three-year project is now underway to run a mock-trial with a deaf juror and Auslan interpreter to examine what the potential process would be. The Australian Research Council in partnership with Deaf Australia, the Australian Sign Language Interpreters Association and the Australian Federation of Deaf Societies funds the project. It will deliver much needed qualitative data and could help to develop a potential framework for the inclusion of deaf jurors and Auslan interpreters in the Australian court system. If the study can reveal that Auslan interpreters do not impact jury room deliberation, a recommendation will be made that could lead to innovate law reform in Australia and also in other parts of the world.

Chloe Potvin is a Sydney-based multimedia journalist interested in global politics, human rights and activism.