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Publication date: Tuesday, 25 February 2016
The Department of Justice has been very active in addressing disability issues through the work of our Diversity Services Unit. In NSW, an individual with a hearing impairment who is summonsed to jury duty can participate in the jury process through the use of infrared hearing systems.
This system is available in all courts across the state, with the system permanently located in all metropolitan courts and portable kits available for use in smaller regional locations.
The infrared hearing systems provide clear, enhanced audio for individuals who have hearing receivers. Where a person does not have a receiver or cannot use their own receiver, on contacting the relevant court or the Office of the Sheriff with sufficient notice, arrangements can be made for a receiver to be made available. Real-time captioning can also be made available for the presentation of evidence within the courtroom, however the Jury Act 1977 does not make provision for real-time captioning to be used during jury room deliberations by members of the jury. Real-time captioning would introduce a non-jury person, who is not summoned and selected through the random ballot process or sworn in by the court, into the jury deliberation room. The jury deliberation process is confidential and jurors are required to maintain this confidentiality. Supporting a non-sworn person in the jury deliberation room creates a risk that this additional person could influence a juror or the jury and their decision-making process.
Whilst reasonable adjustment is operationally available, the NSW Government has not approved reasonable adjustment for profoundly Deaf jurors due to the issue of introducing additional unsworn individuals into the Jury Deliberation Room.
The government also held concerns regarding the accuracy and interpretation of evidence provided. Evidence in court can be presented in many forms including ERISP (electronically recorded interviews with suspected persons) and phone taps and, as a large component of this evidence is related to tone and pace and nuances of speech, these elements can be lost in transcripts alone.
In The Government Response to Law Commission Report 114 (June 2010), the recommendation to support profoundly deaf jurors was not supported by the NSW Government. In subsequent years, the Sheriff has managed any applications by persons who are profoundly deaf by excusing them using the provisions of the Jury Act. On one occasion two profoundly deaf people, only one of whom was a summoned juror, commenced proceedings in the Australian Human Rights Commission. These proceedings were mediated without a resolution. These matters and one other have been raised at the UN hearings in The Hague. NSW provided information to the Commonwealth via Department of Premier and Cabinet. The participation of deaf persons in jury service also requires the careful balancing of the rights of the accused person to a fair trial and the rights of a person with disability to participate in the justice system. The defendant's right to a fair trial must be weighed against the rights of a person with hearing loss.
The inclusivity issue being considered in respect of deaf people should be also considered in respect of blind people and those who do not speak English, the latter being a significant demographic across NSW. The reasonable adjustments required would be similar for these groups.
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