My friend Gaye Lyons wants to serve on a jury. I don’t.
Lots of people are like Gaye and lots are like me. This is true of hearing people too.
Whether or not we actually want to do it, deaf people should have the right and the responsibility to do their civic duty, alongside hearing citizens. This means that when people like me are called for jury duty, we would do it even though we might not want to, because that is our duty as citizens.
But in Australia the law, or the traditional interpretation of the law, prevents deaf people from serving on a jury. It prevents us from doing our civic duty. It does not treat us as citizens equal to others.
This is essentially what the issue of deaf people and jury duty is about: whether deaf people should be treated as equal citizens and allowed to do our civic duty.
When my friend Gaye Lyons received a summons for jury duty in January 2012 she advised the court that she is deaf and requested an Auslan interpreter. Her request was refused and she was excluded from the selection process on the grounds that she is deaf and couldn’t do it. This has happened to many deaf Australians.
The Disability Discrimination Act makes it illegal to discriminate against people on the grounds of disability. But sometimes one law cancels out another. Sometimes one person’s rights override another person’s rights.
Gaye Lyons feels so strongly about her right, and the right of other deaf people, to serve on a jury and do her civic duty that she decided to challenge the court’s decision. So have others in other states, but Gaye’s is the only challenge that has progressed through the courts.
There has been much hype about Drisana Levitzke-Gray being the first deaf person in Australia to serve on a jury, in Western Australia in January 2014.
But this is a misunderstanding. Drisana did not actually serve on a jury.
She did progress further through the jury selection process than any deaf Australian we know of. When she was summoned for jury duty she requested an Auslan interpreter and was provided with one. She and her interpreter went to the court for the next stage of selection, the random ballot. Names were randomly drawn and those drawn progressed to the next stage. Drisana’s name was not drawn, so she did not progress further in the selection process and did not serve on a jury.
The breakthrough in Drisana’s case was that she was not excluded from the jury process because she was deaf. She was excluded by the random ballot. She was not discriminated against because she was deaf. She was treated as an equal citizen who could do her civic duty, at least up to the random ballot stage in the process. She might have been excluded later in the process because she was deaf, but we don’t know if that would have happened.
Gaye Lyons’ case was heard by the Queensland Civil and Administrative Tribunal (QCAT) in June 2013. The Tribunal ruled against her.
She appealed in October 2014. The Tribunal ruled against her appeal.
The Tribunal’s view was that Gaye could not serve on a jury with an interpreter because the interpreter would be a 13th person in the jury room and the jury room must have only 12 people, the jurors.
I’m sure a lot of judges don’t understand the interpreter’s role, how they work and the ethics they abide by. And yet, interpreters already work in the courts when victims, defendants or witnesses are deaf, and even when a lawyer is deaf: Queensland lawyer Kathryn O’Brien has an interpreter when she appears in court. Interpreters worked with Gaye during her QCAT hearings.
Why is the thinking so narrow-minded in relation to the jury?
It seems that researchers have identified that the sticking point is that not enough is known about what happens in the jury deliberation room. Research has shown that with an interpreter, deaf people can access and understand legal evidence and arguments on a par with hearing people, but evidence is needed to show that the interpreter does not interfere with deliberations in the jury room and is not a 13th ‘juror’.1
I’m not going to talk about the legal aspects. I’m not a lawyer. What interests me most is that laws are made by people. Laws are used and interpreted by people. Laws are unmade and changed by people. So although we need to work with the law, it’s the people, and the thinking about these laws that drive it all.
A lot of discussion centres around whose rights should come first, the deaf person’s or the victim’s and defendant’s.
People who maintain that the victim or defendant’s rights should outweigh the deaf person’s tend to brush aside arguments that different people bring different qualities to the jury deliberation.
They also brush aside questions of whether the jury should include deaf people when the victim or defendant is deaf.
Such discussions reveal an underlying assumption that having a deaf person on the jury would not be in the best interests of the victim or defendant, i.e. there is something inferior about deaf people.
Several years ago I was involved in a social media discussion with a couple of hearing people I know who work with the deaf community. One person in particular was adamant that deaf people should not be permitted to serve on a jury because they just cannot do it, even with an interpreter. He said that if he were a victim or defendant he wouldn’t want a deaf person on his jury and his right to a fair trial should override the deaf person’s right to serve on the jury.
I wasn’t particularly surprised by his views. I know that even some people who work with deaf people have low expectations of them. A friend once told me that in a candid moment he asked a hearing colleague why she didn’t like deaf people and she answered: “because they’re not educated.”
It is unusual to see anyone actually say this openly, let alone publicly, but in my Facebook discussion, the hearing person did. At one point he said: “Oh come on, Karen. We both know that so many deaf people don’t get a good education.”
This is true. The education system still does a very poor job of making education accessible and equitable for deaf people. But a poor education isn’t exclusive to deaf people. Many hearing people are not well educated. Yet they are not automatically excluded from jury service.
A jury is supposed to be representative of the community. Deaf people are part of the community. A jury process that automatically excludes people because they are deaf does not provide a true representation of the community on the jury.
Clearly there are people who have an entrenched belief that deaf people are incapable, inferior citizens. No matter how well educated and accomplished many deaf people are, there will always be others who aren’t and it seems that in the minds of many, all of us are tarred with this ‘inferior, uneducated’ brush.
What kind of civil society are we when we treat people like this?
But I take heart from the research that is being done by people like Sandra Hale at the University of NSW and Jemina Napier, previously at Macquarie University and now at Heriot Watt University in Edinburgh. Using mock trials, they are collecting evidence of what actually happens with deaf jurors and interpreters in the jury room.
And there are enlightened lawyers arguing for our right to do our civic duty alongside others. Gaye Lyons has some of the finest on her legal team.
These academics and lawyers are advancing the cause of a more just civil society.
I believe that one day soon our society will change and deaf people will serve on Australian juries. Imagine if this then leads to social justice in education! After all, people who are considered equal citizens should have equitable education shouldn’t they?
In her quest for this change for all of us, Gaye Lyons has now appealed to the Queensland Court of Appeal, on the advice of her barristers. Her appeal will be heard, with Auslan interpreters of course, on Wednesday 20th May 2015 at 415 George Street, Brisbane.2
I will be there to lend moral support to my friend and to the cause. If you believe in a civil society that treats deaf people as equal citizens, please come along and join us.
- See Napier, Jemina and McEwin, Alastair, Do deaf people have the right to serve as jurors in Australia? In Alternative Law Journal Vol 40:1, 2015, 23-27.
- To find out what time, on Tuesday night do a Google search on ‘daily law lists queensland’ then select ‘Supreme and District Courts’, then ‘Brisbane’. The Court of Appeal list, showing names and times, should be at the top of the list.