5. Other grounds of ineligibility

Updates and background for this project (Digest)

• Inability to read or understand English
• Sickness, infirmity or disability
• Commonwealth exemptions

5.1 This chapter considers the remaining grounds of ineligibility under the current Act.

INABILITY TO READ OR UNDERSTAND ENGLISH

5.2 In NSW, a person is ineligible if he or she is “unable to read or understand English”,¹ a condition which is to be understood conjunctively, so that a person who can understand but not read English would be excluded.

5.3 In Victoria and Tasmania, ineligibility attaches to those who are “unable to communicate in or understand the English language adequately”;² in Queensland, to those who are “not able to read or write the English language”;³ in WA, to those who do not “understand the English language”;⁴ and in SA, to anyone who has “insufficient command of the English language to enable him or her properly to carry out the duties of a juror”.⁵

5.4 In some jurisdictions, on the other hand, ability in English is a ground of eligibility. For example, in New York, the ability to “understand and communicate in the English language” is listed as a ground of eligibility.⁶

5.5 There is obviously a need for some test to determine whether people have sufficient command of the English language properly to carry out their duties as jurors,⁷ although, as the foregoing summary suggests, there are different views as to the appropriate requirement. It has been suggested that pretending to fail an English reading test could be an easy a way out for people seeking to avoid jury service.⁸ Additionally, a reading requirement could exclude those who are illiterate or whose familiarity with the written word is confined to that of their native tongue, yet are able effectively to communicate in spoken English.

5.6 Five submissions supported a continuing requirement that jurors must be able to read and understand English.⁹ One submission proposed that the test should be framed in terms of an ability to read and understand English “without difficulty”.¹⁰ This raised the related question of whether a person’s ability to read, understand and communicate in English can be overcome by “reasonable accommodation” of the kind identified in our report concerning deaf or blind jurors, for example, by the provision of interpreters.¹¹ We do not intend to pursue the question of providing interpreters in this Report.

5.7 At present, where a person self-identifies as being unable to read or understand English, the Sheriff has little option other than to exclude him or her as ineligible. Otherwise, their exclusion depends upon them being identified by Sheriff’s officers during the empanelling process, and assessed as having insufficient understanding by way of a subjective impression. This may include asking the juror what television programs he or she watches or which newspapers or magazines they read. This was addressed by one submission, which suggested that the ultimate assessment of a juror’s ability in English was best left to the presiding judge.¹² This is recognised in the current English statute which provides:

Where it appears to the appropriate officer, in the case of a person attending in pursuance of a summons under this Act, that on account of insufficient understanding of English there is doubt as to his capacity to act effectively as a juror, the person may be brought before the judge, who shall determine whether or not he should act as a juror and, if not, shall discharge the summons.¹³

5.9 Otherwise, we are of the view that an ability to read English should continue to be a requirement of qualification. This arises from the fact that, in most trials, jurors will be provided with written directions, and given access to portions of the transcript of evidence and, in many cases, required to view and read written documents. However, we believe that the test should be reworded to exclude those who are unable “sufficiently to read and communicate in English to enable them properly to carry out the duties of a juror”. This would provide greater focus than the open-ended test which presently exists and which leaves undetermined the required degree of ability to read or to understand English. Moreover, the criterion of “understanding” English may fall short of an effective ability to communicate which would seem essential for the assessment of witnesses and participation in jury room discussions.

5.10 We consider it preferable for it to be stated as a precondition for qualification as a juror rather than as a ground of ineligibility so as to underline its importance.

RECOMMENDATION 23

To qualify for jury service a person must be sufficiently able to read and communicate in English to enable them properly to carry out the duties of a juror.

The Sheriff and the presiding judge should each have the ability to discharge people who are not sufficiently able to communicate in English.

Guidelines should be developed to facilitate and standardise the process of identifying those who are not sufficiently able to communicate in English.

5.11 In NSW, sickness, infirmity or disability which renders a person unable to discharge the duties of a juror is currently an express ground of ineligibility¹⁵ rather than a ground to be excused for cause. At present, no distinction is made between the case of a person who is unable to perform the role of a juror, even with assistance, and one who could perform the role with some form of assistance or accommodation. Accommodation has been provided in many NSW courthouses for jurors with physical disabilities, including the installation of elevators, the provision of room in the jury box for a wheelchair and the installation of hearing loops in courtrooms. The NSW Law Reform Commission has already considered the issue of assisting jurors with disabilities to serve in the case of jurors who are deaf or blind.¹⁶

5.12 The Victorian Parliamentary Law Reform Committee proposed that people should be ineligible for jury service if “their physical, intellectual or mental disability or disorder makes them incapable of effectively performing the functions of a juror”.¹⁷ Although this formulation has not been adopted in the current version of the Victorian statute, it would seem to encapsulate the essential nature of this reason for jurors to be excused, in that it places the focus on whether they could effectively or perhaps more correctly, “sufficiently” perform the required functions.

5.13 Many submissions supported its adoption as a matter establishing a good cause to be excused determined on a case by case basis, and not as a ground of ineligibility, or exemption as of right.¹⁸ We consider this to be a superior approach to the present somewhat indeterminate test of ineligibility related to inability, “because of sickness, infirmity or disability, to discharge the duties of a juror”. This is particularly so since any such criterion can involve a value judgment, for example, where the condition is transient or fluctuating, in circumstances where ineligibility which is not detected or accepted at the beginning of a trial could, at least under current law, require a jury to be discharged by reason of an irregularity in empanelment.

5.14 If adopted as a ground to be excused for cause and framed in similar terms to those suggested by the Victorian Committee, it could accommodate allowing people with a disability to serve where the provision of reasonable accommodation or assistance would permit them to perform their functions “effectively” or “sufficiently”. One submission to the Victorian Committee suggested that the idea of providing reasonable assistance should be included in the criterion for freeing people in this category from service, and this was supported by one submission.¹⁹

5.15 One submission, however, raised concerns about the difficulty, stress and embarrassment sometimes caused to people with intellectual disabilities who seek to raise this as a ground of ineligibility or as a basis to be excused where the problem is a temporary one.²⁰ Particular attention was drawn to the experiences of those who make the application to be excused on the day of the trial when it may become necessary for them to be dealt with in open court.²¹ We do not think that this presents any difficulty in the way of dealing with such cases on the basis of an excuse for good cause. In most instances, such an application can be dealt with on paper, supported by an appropriate medical certificate, either before the trial, or by the judge in chambers. Additionally, the Commission’s recommendation that unsuccessful applicants should be able to seek a redetermination from a duty judge before the trial²² may go some way towards alleviating this problem, as may adopting the practice of allowing applicants to hand up a short written statement to the judge, rather than having to speak about their illness or disability in open court.²³ Further, as later mentioned,²⁴ we see no reason why those with chronic illnesses, or permanent infirmity or disability, which can be objectively established on proper evidence, should not have the option of seeking to be excused permanently, and of being granted such an excuse.

5.16 Accordingly, we consider that this ground does not sit well as one which should attract ineligibility. The preferable course is to treat it, on a case by case basis, as a potential ground for excuse for good cause, reserving to the authority that administers the Act the capacity to grant either a permanent excusal, or an excusal for a particular trial. Excuse for cause on the grounds of sickness, infirmity or disability is dealt with in Chapter 7.²⁵

RECOMMENDATION 24

Sickness, infirmity or disability which renders a person unable to discharge the duties of a juror should no longer be a ground of exclusion, but should be considered as a ground of excusal for good cause.

5.17 The Jury Exemption Act 1965 (Cth) has a very broad reach and exempts the following people from jury service: the Governor General, Justices of the High Court and other Courts established by the Commonwealth, members of the Parliament and Federal Executive Council, members of the Australian Industrial Relations Commission and Fair Pay Commission, members of the Australian Federal Police, and Defence Force members and Reserves who are rendering continuous full-time service.²⁶ Regulations also exempt Commonwealth employees above a certain salary level and there are other exemptions relating to the “administration of justice”, “public need” (quarantine) and “public administration” (including ministerial staff and advisers and parliamentary officers).²⁷ A more complete list of these exemptions is set out in Appendix C to this report.

5.18 The Navigation Act 1912 (Cth) also exempts Masters and seamen of all ships,²⁸ and a further exemption is given to operating crew under the Air Navigation Regulations 1947 (Cth), although this is confined to people summoned to serve as jurors under the laws of a Territory of the Commonwealth.²⁹

5.19 It has been pointed out that where, under the military justice system, people are charged on indictment in the civilian courts, they would currently be deprived of the opportunity of having Defence personnel on the jury.

5.20 It is not easy to identify any particular reason why a special category of exemption should apply to many of the people currently given statutory exemption under Commonwealth legislation, where no such exemption or ineligibility applies to those who hold comparable positions within the States and Territories. We identified the lack of any justification for the ineligibility of these people in 1986,³⁰ when we also drew attention to the dubious constitutionality of the Commonwealth legislation.

5.21 Other reviews have commented on the broadness of the Commonwealth exemptions and have recommended that an approach be made to the Commonwealth government with a view to the repeal of many of them.³¹ This has a relevance in that Commonwealth agencies look to the State and Territory courts to litigate both criminal and civil cases in which they have an interest, both in relation to the prosecution of offences under Commonwealth law and civil cases when the Commonwealth, or one of its instrumentalities, is a party.

5.22 Many submissions supported the repeal of most of the Commonwealth exemptions,³² many of which appear to have a greater commitment to ensuring the continued availability of Commonwealth employees in their workplace than with ensuring the integrity of the justice system. We recognise that obvious exceptions from service would include the Governor General,³³ Federal Police,³⁴ Federal Court and Family Court Judges, Federal Magistrates and High Court Judges,³⁵ at least during the term of their relevant offices and an appropriate period after retirement. We note that one submission supported an amendment that would remove from the list of exemptions only those Commonwealth public servants who are not involved in the administration of justice, law enforcement or defence.³⁶

5.23 Since the amendment of the Commonwealth legislation is a matter for the Commonwealth government, we do not consider it appropriate to make any specific recommendation beyond suggesting that the Commonwealth be encouraged to review the categories of exemption contained in its legislation, with a view to achieving greater uniformity with State and Territory legislation. The justification for it doing so lies in ensuring that the jury system operates in the best interests of the community at large, and in promoting the objective of securing a representative jury for those who become subject to the criminal justice system. That objective is not purely academic, since the Commonwealth agencies prosecute many significant criminal jury cases, particularly in the areas of drug law enforcement, terrorist activity and white collar crime. Moreover, there is a compelling case for Commonwealth Public Servants sharing, with their State and Territory counterparts, the civic responsibilities of jury service.

RECOMMENDATION 25

The Commonwealth should be encouraged to review the categories of exemption applicable to Commonwealth Public Servants and office-holders in order to confine them to those who have an integral and substantial connection with the administration of justice or who perform special or personal duties to the government.

1. Jury Act 1977 (NSW) Sch 2 Item 11.

2. Juries Act 2003 (Tas) Sch 2 cl 10; Juries Act 2000 (Vic) Sch 2 cl 3(f).

3. Jury Act 1995 (Qld) s 4(3)(k).

4. Juries Act 1957 (WA) s 5(b)(iii).

5. Juries Act 1927 (SA) s 13(b).

6. New York, Judiciary Law (Consol 2007) § 510. See The Jury Project, Report to the Chief Judge of the State of New York (1994), 26-27.

7. It should be noted that one of the requirements for jury service, namely citizenship, requires only that a person should possess “a basic knowledge of the English language”: see Australian Citizenship Act 1948 (Cth) s 13(1)(g); Australian Citizenship Act 2007 (Cth) s 21(2)(e).

8. Criminal Justice Agencies Consultation.

9. Office of the DPP (NSW), Submission; J Goldring, Submission, 1; Jury Task Force, Submission, 1; NSW Young Lawyers, Submission, 3; G J Samuels, Submission. But see M J Stocker, Submission, 5; and Legal Aid Commission of NSW, Submission, 5; Aboriginal Legal Service, Submission, 6.

10. NSW Public Defender’s Office, Submission, 3; NSW Young Lawyers, Submission, 3.

11. See Redfern Legal Centre, Submission, 5; J Goldring, Submission, 1; Legal Aid Commission of NSW, Submission, 5.

12. Redfern Legal Centre, Submission, 9.

13. Juries Act 1974 (Eng) s 10.

14. See NSW Jury Task Force, Submission, 1.

15. Jury Act 1977 (NSW) Sch 2 item 12.

16. NSW Law Reform Commission, Blind or Deaf Jurors, Report 114 (2006).

17. Parliament of Victoria, Law Reform Committee, Jury Service in Victoria, Final Report (1996), [3.140]. This was adopted in Tasmania: Juries Act 2003 (Tas) Sch 2 cl 9. This Commission has given consideration to this question: NSW Law Reform Commission, Blind or Deaf Jurors, Report 114 (2006).

18. NSW Jury Task Force, Submission, 2; NSW Young Lawyers, Submission, 14; Redfern Legal Centre, Submission, 10; NSW Bar Association, Submission, 7-8; NSW Public Defender’s Office, Submission, 8. But see Office of the DPP (NSW), Submission; J Goldring, Submission, 4.

19. NSW Public Defender’s Office, Submission, 8.

20. Legal Aid Commission of NSW, Submission, 6, 14.

21. Legal Aid Commission of NSW, Submission, 6, 14.

22. See para 7.43-7.45.

23. See para 10.7.

24. See para 7.40-7.42.

25. See para 7.14-7.15 and Recommendation 33.

26. Jury Exemption Act 1965 (Cth) s 4 and Schedule.

27. Jury Exemption Regulations 1987 (Cth).

28. Navigation Act 1912 (Cth) s 147.

29. Air Navigation Regulations 1947 (Cth) reg 150.

30. New South Wales Law Reform Commission, Criminal Procedure: The Jury in a Criminal Trial, Report 48 (1986), [4.23].

31. See Parliament of Victoria, Law Reform Committee, Jury Service in Victoria, Final Report (1996), [3.205]; Supreme Court of Queensland, Litigation Reform Commission, Reform of the Jury System in Queensland, Report of the Criminal Procedure Division (1993), 5-6.

32. NSW Bar Association, Submission, [22]; NSW Public Defender’s Office, Submission, 6; J Goldring, Submission, 3; NSW Jury Task Force, Submission, 2; NSW Young Lawyers, Submission, 11; M J Stocker, Submission, 7; Criminal Justice Agencies Consultation; A Abadee, Consultation. See also Commonwealth Director of Public Prosecutions, Submission, 3.

33. NSW Bar Association, Submission, [22]; NSW Young Lawyers, Submission, 11.

34. NSW Public Defender’s Office, Submission, 6; NSW Young Lawyers, Submission, 11.

35. NSW Bar Association, Submission, [22]; NSW Young Lawyers, Submission, 11.

36. Redfern Legal Centre, Submission, 9.