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Law Reform Commission - Discussion Paper no. 46: Blind or Deaf Jurors

Introduction

The Disability Council of NSW is the official advisory body to the NSW Government on disability issues and policy. The Council, appointed by the Governor and reporting to the Minister for Disability Services, operates under the Community Welfare Act 1987 and is made up of a majority of members who have disabilities. In addition, there are members who have experience in the provision of services for people with disabilities, their families and carers.

The role of the Disability Council is to

• research, evaluate and implement all government policies relating to disability issues and assess their impact on people with disabilities;
• advise government on priorities relating to services provided for people with disabilities;
• promote the integration of people with disabilities into the community through community awareness and education;
• encourage diversity, flexibility and innovation in services through constant consultation with people with disabilities, their families and carers, and
• function in NSW as the State's Disability Advisory Body to the Commonwealth Government, commenting on Commonwealth issues that affect people with disabilities and their families in NSW.

Members of the Disability Council are selected on the basis of their experience of disability and their understanding of issues, knowledge of service delivery and government policy.

Council's Position re: Blind or Deaf Jurors

At an ordinary meeting of the Disability Council of NSW on Thursday April 15, 2004, it was determined that Disability Council would advise the NSW Law Reform Commission that in its view people with disabilities have the right to be included in all aspects of the justice system and, consequently, to be facilitated to participate as members of juries. This advice is consistent with Disability Council's Criminal Justice Position Statement 2004 (see appendix). The criminal justice system places the onus on individuals to assert their rights and demonstrate their capacity to participate in a way that is not experienced by people who do not have disabilities.

With regard to the Commission's discussion paper, Disability Council's submission focuses on the following key points:

• The over-riding public interest in the due and proper administration of justice. That is, an accused person's right to a fair trial precedes the right of a particular person, who may or may not have a disability, to serve as a juror.
• The judicial principle that an accused person is found guilty or otherwise by a jury of his or her peers, which reflects the diversity found within the general community.
• Jury service is a right and obligation of citizenship.

Disability Council recommends that:

1. People who are blind or deaf have a civic duty to participate in jury service. The justice system must acknowledge the rights of people who are blind or deaf to serve on juries by facilitating such participation, generally, and making specific accommodations for individual jurors.
   Note that this recommendation assumes that an accessible built environment, assistive technologies, and the use of interpreters are provided as a matter of course.
2. Schedule 2 item 12 of the Jury Act 1977 should be interpreted such that there is no automatic presumption that disability renders a person unable to discharge the duties of a juror. Where the physical and information environments are made accessible, such that all jurors can receive, understand and assess evidence, and communicate with one another, then fact of a juror's disability is irrelevant.
3. People who are blind or deaf should not have the option to be excused from jury duty because of their disability. They have an obligation to serve as jurors, and the justice system has a responsibility to facilitate such service.
4. The juror who is deaf or blind may be subject to the same challenges as any other juror. The decision as to whether a juror who is blind or deaf is capable of discharging his or her duties should be made by the trial judge, based on the circumstances of the case.

Andrew Buchanan,
Chairman, Disability Council of NSW

Appendix: CRIMINAL JUSTICE POSITION STATEMENT 2004

INTRODUCTION

During 2002, Council underwent a process of planning that saw the development & endorsement of a strategic plan to 2005, including the identification of agreed areas of significance to people with disabilities. One of these priority areas was criminal justice. A working group was convened to consider the significance of the criminal justice system in the lives of people with disabilities - as victims, as perpetrators, as members of juries, etc. The first action of the working group was to develop a position statement on criminal justice and people with disabilities, which would provide impetus for further research and consultation.

DEFINING THE CRIMINAL JUSTICE SYSTEM:

The criminal justice system consists of agencies engaged in dealing with criminal behaviour, such as Police, Supreme and Magistrates Courts, Prisons, Community Corrections, Youth Justice, Forensic Mental Health, and Alcohol and Drug Services. The system also provides advice and assistance to victims, deals with crime prevention and any other crime-related issues.

DEFINING THE ISSUES FOR PEOPLE WITH DISABILITIES:

The Disability Council's 2003 report A Question of Justice: Access and Participation for People with Disabilities in Contact with the Justice System considered barriers to participation in the justice system, based on reports from people with disabilities, their families, and justice system personnel. Recurring themes throughout this report were:

• the need for legislative and procedural amendments, to reflect the rights of people with disabilities for equitable access and participation;
• the absence of policies and procedures in the justice system addressing the support needs of people with disabilities;
• the lack of systematic monitoring and evaluation of services for people with disabilities, when they actually are provided;
• the absence of consistent interagency co-ordination; and, inevitably
• the need for extensive community and professional education about access and participation issues for people with disabilities such that, firstly people's needs are recognised and accommodated by service providers and professionals in the justice system and, secondly, that these accommodations are understood and indeed expected by the community.

The issues pertinent to the criminal justice system (as opposed to the justice system, more broadly) included:

• Difficulty in assessing the proportion of victims of crime who are people with disabilities. This results from the lack of systematic monitoring of disability issues across the criminal justice system, the fact that crimes against people with disabilities may not be reported or recognised, and the fact that people with disabilities may not be seen as credible witnesses. Consequently, people with disabilities have less access to victims' compensation.
• The vulnerability of people with disabilities to violence, fraud and sexual assault - particularly where people are residents of group homes or institutions.
• The vulnerability of the people with disabilities to abuses within the legal system itself - that is, where the legal system may actually be used, to legitimise abuses against people with disabilities. For example, people with disabilities are more often refused bail, serve longer sentences, or may have a prison sentence used in lieu of more appropriate accommodation.
• There is no effective or consistent assessment and early intervention/prevention for people at risk of offending, particularly with respect to people with intellectual or psychiatric disabilities.
• People with disabilities are disproportionately represented as offenders in the criminal justice system. In particular, people with psychiatric disabilities and people with acquired brain injury are over-represented in prison populations.
• People with disabilities are frequently excluded from jury duty because of physical and information inaccessibility.
• The criminal justice system places the onus on individuals to assert their rights and demonstrate their capacity to participate in a way that is not experienced by people who do not have disabilities.

Council's position is that people with disabilities must have the same rights as all other people involved in the criminal justice system. The rights of people with disabilities must be acknowledged by provision of all such supports as are required to guarantee that they are upheld. Examples of support will include (but is not limited to):

• Timely access to advocacy sentencing and accommodation options for alleged offenders.
• Provision of a support person for people with disabilities during police interviews, court proceedings, or jury service.
• Identification and early intervention for people likely to re-offend.
• Increased access to advocacy, legal advice and representation for victims of crime.
• Environmental access and provision of information in accessible formats (including provision interpreters, support staff for people who have intellectual disabilities, etc) in jury service, to ensure that juries accurately reflect the diversity and experience of the communities from which they are drawn.