In this unusual matter the Sheriff of Queensland referred a question to the Court concerning the eligibility of a juror. The potential juror advised the Sheriff that she required an Auslan interpreter in the event that she was empanelled as a juror in any matter. The potential juror indicated that she was able to lip read well but as her hearing was not good she may miss parts of some conversations. Section 4(3)(l) of the Jury Act 1995 provides that 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.
In other jurisdictions Courts have provided Auslan interpreters to assist jurors with hearing impediments in the course of trials. Douglas J noted that the provision of such an interpreter may be sufficient in the course of the trial but further difficulties may be experienced in respect of the deliberations in the jury room. In this respect his Honour noted that “[c]ommunications 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” and that in “the absence of legislative provision, it is clear that the jury is bound to deliberate in private”. It was considered that the power of the Court or a Judge to give a person leave to communicate with a juror was not an apt power to allow an interpreter to be present in a jury room in the course of deliberations. A further problem identified was that there was no power to require an interpreter to take an oath or to make an affirmation to maintain the secrecy of the jury’s deliberations.
In determining that the prospective juror was incapable of effectively performing the functions of a juror and therefore ineligible for jury service, his honour said:
“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.”