An individual selected to perform jury service has been ruled ineligible to serve by the Supreme Court. The individual was selected on a jury panel during the current sittings of the District and Supreme Court, and subsequently advised the Sheriff that if selected, she would require an Auslan interpreter.
The Sheriff then referred the matter to the Supreme Court, seeking a determination.
The question before the Court was whether deafness was a disability that would make an individual incapable of performing the function of a juror, pursuant to s 4(3)(1) of the Jury Act. Supplementary to this primary question was whether the use of an interpreter would be sufficient to overcome any incapability, and whether the use of an interpreter for a jury member is appropriate.
It was accepted that, whilst the prospective juror was able to lip read, she admittedly might miss parts of the court proceedings. In addition, the jury room (made up of 12 chairs and a table) was not well suited to lip-reading, as it would be difficult to ensure that the juror could see the juror talking to a sufficient standard that the prospective juror would not miss integral parts of jury room discussions. The prospective juror would also require an interpreter in order to speak to the group. Without an interpreter, the Court ruled that there is a very real risk that the prospective juror would miss integral parts of jury deliberation.
Swearing in a “13th Juror”
The Court had effectively answered the first two questions in the affirmative. The deafness in question was sufficient enough to render an individual incapable of serving the functions of a juror, however the use of an interpreter would overcome the disability and allow the prospective juror to serve.
The Court then turned to whether an interpreter would be allowed to assist the prospective juror.
It was accepted by the Court that the use of an interpreter is unlikely to cause any issue during trial proceedings. The difficulty rested with jury deliberation.
A person is prohibited from communicating with a juror without the trial judge’s leave. It was unclear to the Court whether leave from the trial judge would permit the interpreter to enter the jury room during juror deliberations however, due to overriding concerns in regards to the secrecy of jury deliberations. Whilst other jurisdictions have made specific provisions for such situations, Queensland has not.
A further problem that arose was that even if the interpreter was to be allowed into the jury room during deliberations, the Court lacked an explicit power to require them to make an oath or affirmation to maintain the secrecy of deliberations. The judge would be potentially committing an offence under s 96 of the Criminal Code by administering an oath or affirmation without authority.
The Court was tasked with determining a single question:
- Was the deafness of the prospective juror of a nature that would make her incapable of performing the functions of a juror?
- If yes, could this incapability be overcome by the use of an interpreter?
- If yes, was the use of an interpreter appropriate?
The Court found that the state of the prospective jurors hearing would negatively effect her ability to perform the functions of a juror, and that whilst this negative effect could be overcome with the use of a translator, the lack of specific legislative provisions would place the secrecy of jury room deliberations in jeopardy. The judge also provided that should the decision about the prospective juror be incorrect, that the juror is excused from jury service by virtue of the discretion of the judge.