Foundations Of Law

Issues

Whether the deputy registrar was unlawful for not including the appellant in the panel of the jury on the grounds of deafness.

Law

  • Anti-Discrimination Act 1991, ss 10, 11, 101.
  • Jury Act 1995 (Q), ss 4(3), 54, 70

Application

Facts of the case state that the deputy registrar was given the power under the Jury Act 1995, to prepare a list of people who can be the prospective jurors which were provided by the Ipswich jury district. However, the registrar was required to send a written notice to those who were excluded from taking part in the jury service based on the questionnaire filled by them. The Appellant got the notice stated that she is deaf and if she is allowed in the jury, there will be a requirement of two Auslan interpreters and on this ground, her application has been excluded[1].

The appeal in the present case brought attention to section 4(3) of the Jury Act, which states that a person is not eligible for the jury service only on the ground that he or she is mentally or physically disable which makes the person unable to execute the duties of a juror[2]. However, in the present case, the appellant was of sound mind and health and her filled questionnaire does not reflect that she is incapable to execute the functions of the juror. Deafness does not make a person incapable to perform duties. The appellant had complained under the Anti-discrimination Act against the State of Queensland and appealed to refer the case to the tribunal as the same can be resolved through conciliation. The appellant contended that under the Jury At, the state must have facilitated her for the selection of jury but the registrar had refused her to provide the Auslan interpretation. The tribunal here accepted that there is no difference in the capability of a deaf person to understand the legal proceedings[3].

The court opined that the decision of the registrar was not of the basis of appellant’s impairment but was rather under section 4(3)(1) Jury Act which says that there is no provision to administer the oath to a person who is by any means interpreting for the juror[4]. Moreover, the Act does not allow the presence of a 13th person in the jury, which cannot be avoided if the appellant is allowed in the panel. Though the tribunal agreed on the fact that the registrar was at fault in understanding the scope of 4(3)(1) but still the appellant was not subjected to any discrimination based on her deafness[5]. The appellant contended that the registrar had indirectly discriminated against her saying that to convey in with the other jurors, she will require conventional speech which other jurors might not understand.

Appellants appealed were dismissed in the tribunal. Later she filed submissions in the appeal tribunal. The submissions from the defendant say that it is a necessity to maintain secrecy in the panel and this does not allow the interpreter in the room. The appellant then submits her case saying that deafness was the true ground on which she was not allowed to be a part of jury and tribunal failed to give effect to section 10(5) of the ADA Act. The parties believed that with this act of the tribunal, there was no harmony between the Jury Act and the ADA Act as this fails to provide equality for every individual under the Queensland law. Therefore the interpreter must be allowed and must be understood as “allowed by law” as wide powers have been enshrined to the jury under Section 54(1) of the Jury Act[6]. The main contention of the appellant says that the registrar on the first hand itself excluded her for the process of selection in the jury. There must be some functional test to decide whether a person is capable to understand the proceeding or not and the persons having impairment must not be disqualified solely on the grounds of impairment. To this, the state argued that the interpretation made is not wholly under the supervision of a judge and the true verdict may not be made on such evidence[7].

The court opined that the disclosure of the deliberations to the interpreter cannot be allowed and this argument of the appellant was rejected as stated by the Common law that the jury must be kept separate[8]. The presence of the interpreter is an incurable irregularity of the courtroom and the exclusion of this presence will save the deliberations from any external influence. The court also rejected the contention of section 54 of the Jury Act for grant of leave for the Auslan interpreter. It must be noted no other person can communicate with the jurors and this exception is only granted to an officer who already has the charge of the jury[9]. The power of the Act cannot be applied generally and there is no provision whatsoever to administer an oath to an interpreter. The Oath Act 1867 states that if the interpreter is administering an oath, he must pledge to truly interpret the deliberations of the juror and that he will not participate in any deliberations.

The law of Queensland does not allow an interpreter at the time of the jury’s deliberations as there is no specific legislative provision for the same[10]. Hence, the court rejected the appeal stating that the appellant is incapable to effectively participate in the functions of the jury and she shall be excluded from the panel on the same ground and the registrar had not contravened the Jury Act or the ADA Act[11]. As per Jury Act, the verdict must be given in isolation and the person who requires any assistance will deem to be unfit to perform the functions of the juror effectively under section 4(3)(1) of the Jury Act. This exclusion does not amount to discrimination in any way. In the present case, there are substantial grounds and reasons why the appellant was treated in a particular way[12]. The exclusion was not made on the ground of performance of any function or power but rather this is done to administer the genuine attempt to give effect to section 4(3)(1) of the Jury Act. Hence, the appeal was dismissed.

Bibliography for Foundations Of Law

A. Cases

Lyons v Queensland (2015) 328 ALR 550 at 563 [47].

[2016] HCATrans 060 per Kiefel and Nettle JJ.

Catholic Education Office v Clarke [2004] FCAFC 197; (2004) 138 FCR 121

Smith v Western Australia [2014] HCA 3; (2014) 250 CLR 473 at 481 [30]- [31]; [2014] HCA 3; R v Pan [2001] 2 SCR 344)

R v Mirza [2004] UKHL 2; [2004] 1 AC 1118

Saraswati v The Queen [1991] HCA 21; (1991) 172 CLR 1 at 17; [1991] HCA 21.

Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130 at 134 [4], 138 [18], 163 [109]; [2006] HCA 5.

Lyons v State of Queensland (No 2) [2013] QCAT 731 at [57]- [58], [169].

B. Legislations

Queensland, Legislative Assembly, Jury Bill 1995, Explanatory Notes at 1.

Oaths Act 1867 (Q), s 26

C. Journals

Devlin, Trial by Jury, rev ed (1966) at 41-42; Holdsworth, A History of English Law, (1938), vol 11 at 553-554; Blackstone, Commentaries on the Laws of England, 15th ed (1809), bk 3 at 375.

[1] Lyons v Queensland (2015) 328 ALR 550 at 563 [47].

[2] [2016] HCATrans 060 per Kiefel and Nettle JJ.

[3] Catholic Education Office v Clarke [2004] FCAFC 197; (2004) 138 FCR 121

[4] Queensland, Legislative Assembly, Jury Bill 1995, Explanatory Notes at 1.

[5] Smith v Western Australia [2014] HCA 3; (2014) 250 CLR 473 at 481 [30]- [31]; [2014] HCA 3; R v Pan [2001] 2 SCR 344)

[6] R v Mirza [2004] UKHL 2; [2004] 1 AC 1118

[7] Oaths Act 1867 (Q), s 26

[8] Catholic Education Office v Clarke [2004] FCAFC 197; (2004) 138 FCR 121.

[9] Devlin, Trial by Jury, rev ed (1966) at 41-42; Holdsworth, A History of English Law, (1938), vol 11 at 553-554; Blackstone, Commentaries on the Laws of England, 15th ed (1809), bk 3 at 375.

[10] Saraswati v The Queen [1991] HCA 21; (1991) 172 CLR 1 at 17; [1991] HCA 21.

[11] Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130 at 134 [4], 138 [18], 163 [109]; [2006] HCA 5.

[12] Lyons v State of Queensland (No 2) [2013] QCAT 731 at [57]- [58], [169].

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