INTRODUCTION
5.1 This Chapter raises the procedural and practical problems faced by people with an intellectual disability when they come into contact with the court system, including issues such as adequate legal representation, fitness to be tried, competence, giving evidence, and the impact of certain criminal defences. Many of these problems are common to victims, witnesses to crimes and alleged offenders. The issue of appropriate sentencing, however, is dealt with in Chapter 6.
LEGAL REPRESENTATION
Interviewing clients with an intellectual disability
5.2 Most people tried before the courts are represented by a lawyer. Few lawyers will have received instruction in the special needs of clients with intellectual or other disabilities, either during their training or afterwards. As with the police, it is crucial that solicitors and barristers identify their client’s intellectual disability and understand the difficulties that people with an intellectual disability may face. They also must learn to use appropriate communication and questioning techniques with their clients or witnesses.1 Many lawyers are likely to find communicating with clients with an intellectual disability difficult. Whether the client has capacity to provide adequate instructions to the lawyer is also likely to be an issue. The Legal Aid Commission of New South Wales has raised the possibility of a procedure to appoint a guardian ad litem in such circumstances.2 The Intellectual Disability Rights Service has also stressed the importance of continuity in personnel handling cases involving people with an intellectual disability, whether the person is the accused or a witness.
It takes some time before the parties can establish good communication and trust. People with intellectual disabilities do not adapt well to change, and need to have time to know the person handling the case. Personnel also need to learn the vocabulary and terminology of the person. A young man with an intellectual disability was asked: “Is there anything else you want to tell me?” At the time he answered “No” but later told his mother “There was something else, but I didn’t want to tell him”.3
In the courtroom
5.3 Once a person with an intellectual disability has reached the courtroom, whether as a defendant, a witness, or a victim, the person’s intellectual disability will still require special understanding by lawyers and the court. In relation to the role of lawyers:
... [t]he best protection of an intellectually disabled witness is therefore afforded by ensuring that they have ample opportunity, and encouragement, to absorb the contents of their statement as close as possible to when they enter the witness box; further, if necessary, expert evidence should be called as to the effect of the intellectual disability on the manner in which they deliver their evidence.
Naturally an intellectually disabled client is likely to fear the experience of attending court more so than a non-disabled client; the disparity of knowledge and legal competence is even more pronounced. Lawyers are therefore advised to prepare their clients by explaining in simple language what will happen on the day, ensuring early contact with counsel, and (ideally) familiarising them with the physical surroundings of the court.4
The role of the court
5.4 The role of judges, magistrates and court staff should not be overlooked. A Committee in Western Australia, headed by the Hon Mr Justice R D Nicholson, has prepared two draft guidelines to address the issue of criminal law and people with an intellectual disability:
- Guidelines for Associates, Orderlies and Security Officers; and
- Issues for consideration of Judges and Magistrates.
These papers are in the process of being released for general comment within Western Australia. It may be appropriate for New South Wales to consider the preparation and introduction of similar guidelines.
The Commission seeks comments and submissions about the difficulties faced by lawyers in representing clients with an intellectual disability, the role of the courts and the possible solutions, including appropriate legal education.
FITNESS TO BE TRIED
5.5 Once a matter has been listed to come before a court, the first issue which often has to be confronted by the person with an intellectual disability is a challenge to his or her competence to give evidence or fitness to be tried. Though competence and fitness to be tried are distinct issues, their common thread is a decision by the courts about the appropriateness of that person being involved in the court process. Under the common law an offender must be “fit to be tried” that is, capable of participating fully in the court process, before he or she can be dealt with by a court of law.5 Intellectual disability is one of many factors which may affect a person’s ability to comprehend the court process, to give instructions to lawyers and to give evidence in court. Other such factors include age, mental illness and some physical disabilities. The procedure for dealing with the issue of fitness to be tried, in relation to criminal proceedings in the courts of New South Wales, is now governed by the Mental Health (Criminal Procedure) Act 1990 (NSW) and involves the Mental Health Review Tribunal. Different procedures exist depending on the court involved. The details of these procedures are set out below.
Proceedings in the Supreme and District Courts
5.6 Briefly, in relation to criminal proceedings in the Supreme and District Courts, the Act allows the Attorney General to direct that an inquiry take place into a person’s fitness to be tried, or, if the question of a person’s unfitness to be tried is raised after the person is arraigned, for the court to hear submissions about whether there should be such an inquiry.6 Before such an inquiry is carried out the court may make any appropriate orders, including either granting the person bail or remanding him or her in custody, or in relation to requesting psychiatric examinations or reports.7 The court also has the power to dismiss the charge and order the person be released if it “is of the opinion that it is inappropriate, having regard to the trivial nature of the charge or offence, the nature of the person’s disability or any other matter which the court thinks proper to consider, to inflict any punishment.”8 It has been suggested that this section should be repealed as it effectively enables the judge, rather than the Director of Public Prosecutions, to “no bill” proceedings. Supporters of this section, however, believe that it allows lengthy fitness proceedings to be avoided in appropriate cases, and it should be extended to cases where no punishment is likely.9
5.7 The fitness inquiry is carried out by the court either with a judge sitting alone or with a jury constituted for that purpose.10 If the defendant is found fit to be tried, criminal proceedings may re-commence or continue.11 If found unfit to be tried, the person is referred to the Mental Health Review Tribunal.12 The Tribunal must then determine whether the person will, during the period of 12 months after the finding of unfitness, become fit to be tried for the offence.13 If the Tribunal determines that the person will become fit to be tried, the court is notified and may make a number of orders in relation to that person, including release on bail or detention in a hospital or other place.14 If the Tribunal finds that the person will not be fit to be tried within 12 months, the Attorney General can either direct that a “special hearing” be held or decide not to proceed against that person. In the latter case the person must be released.15
5.8 If a "special hearing" is held and a finding of guilt made, the matter is referred back to the court for sentencing. The court must indicate the sentence it would have imposed if the special hearing had been a normal trial of criminal proceedings with a finding of guilt. Such a sentence, if any, is referred to as a “limiting term”.16 The Mental Health Review Tribunal then has to make a determination as to whether the person has a mental illness or not and notify the court of its determination,17 following which the court can order that the person be detained in a hospital or “in a place other than a hospital.”18 In practice, the only other alternative in New South Wales is prison, even though this generally will be inappropriate for such a person. It has been suggested that many health professionals are reluctant to make a finding of unfitness owing to their uncertainty about the implications of such a finding and concern about the length of time an “unfit” person may be detained in custody. A possible solution would be the issuing of policy guidelines by the Mental Health Review Tribunal in relation to the criteria by which it makes its recommendations as to the detention of such a person.
5.9 The Mental Health Review Tribunal also has the power to recommend to the Minister that a person found unfit to be tried who will become fit within 12 months, or a person subject to a limiting term, be released:
if the Tribunal is of the opinion that a person has not become fit to be tried for an offence and is satisfied, on the evidence available to it, that the safety of the person or any member of the public will not be seriously endangered by the person’s release.19
5.10 The Mental Health Review Tribunal is able to create its own procedure for the conduct of its business.20 It need not follow the rules of evidence. It is not adversarial in nature although the person whose case is being reviewed is usually represented by a lawyer. The Tribunal’s recommendations must be accepted by the Minister before they can be adopted. The Tribunal may, at any time, review the case of persons detained who were considered unfit to be tried and make a recommendation for release to the Minister. Such a review, however, must take place at least every six months.21 The Tribunal shall not make a recommendation for release:
unless it is satisfied, on the evidence available to it, that the safety of the patient or any other member of the public will not be seriously endangered by the person’s release.22
Upon the making of the original detention order by the court or as part of the regular six monthly review, the Mental Health Review Tribunal must notify the Attorney General if a detained person has become fit to be tried.23 If the person remains unfit to be tried release will be automatic at the end of the 12 months or limiting term, whichever is relevant. There is no power to detain beyond the term unless the person detained is mentally ill.
The Commission seeks submissions about the effectiveness of the current procedures in operation under the Mental Health (Criminal Procedure) Act 1990 (NSW) in relation to fitness to be tried at the District and Supreme Court level and the role of the Mental Health Review Tribunal.
Proceedings in the Local Courts
5.11 If, in relation to summary or indictable offences being tried summarily, it appears to the Magistrate that the defendant is “developmentally disabled”, then the Magistrate may do any one or more of the following:
(a) adjourn the proceedings;
(b) grant the defendant bail in accordance with the Bail Act 1978 (NSW);
(c) make any other order that the Magistrate considers appropriate.24
The Magistrate may also dismiss the charge and discharge the defendant either unconditionally, or with some condition as to assessment, treatment or supervision.25 This provision assumes, of course, that appropriate treatment or supervisory services are available. Furthermore, no sanction is provided if the conditions imposed are breached. It has been suggested that the section be amended to impose a penalty if conditions are breached.26
The Commission seeks comments as to the effectiveness and appropriateness of the existing Local Court procedures under the Mental Health (Criminal Procedure) Act 1990 (NSW).
GIVING EVIDENCE
5.12 Most witnesses and defendants are intimidated by the court process. Many of the issues raised below will be relevant to all people involved in criminal proceedings, not just people with an intellectual disability, but the particular vulnerability of such people must be dealt with in appropriate ways.
Competence
5.13 Competence is a crucial issue for victims with an intellectual disability, as police officers and lawyers may assume that prosecuting a suspect is pointless if the alleged victim will be found to be an incompetent witness and thus unable to give evidence. In cases such as sexual assault, where it is unlikely that there will be any other witness other than the complainant, it becomes even more difficult for justice to be done. All witnesses are competent to give evidence provided they possess sufficient understanding, according to common law principles, to partake in the proceedings. In practice, that means that:
- the witness is capable of swearing on oath or making a solemn affirmation of truth;27 and
- the witness is of sufficient intellect, that is, the court is satisfied the witness has “sufficient memory, and sufficient capacity to express his or her memory”.28
The fact that a witness has a mental disorder does not in itself render the witness incompetent. In the 1851 English case of R v Hill it was argued that a witness was of too weak an intellect to give evidence.29 The court held that it is a matter for the judge to decide whether the witness understands the nature of the oath and, if the judge so concludes, for the jury to decide what degree of credit is to be given to his testimony.
5.14 It has been argued, however, that the existing test is inappropriate and excludes people, including some with an intellectual disability, who may be able to give useful evidence. The Australian Law Reform Commission in its Report on Evidence30 recommended that only a person who is incapable of understanding the obligation to give a truthful answer, or of understanding and responding rationally to questions, should be prevented from giving evidence. This test was reflected in the Evidence Bill attached to that Report, cl 19. The New South Wales Law Reform Commission in its following Report31 essentially reproduces cl 19.
5.15 In New South Wales, the Evidence Bill 1991, cl 16, largely adopted the proposed Australian Law Reform Commission test and stated in cl 16(1) that “a person who is incapable of understanding that, in giving evidence in a proceeding, he or she is under an obligation to give truthful evidence is not competent to give sworn evidence.” The clause also provided that:
However, the new clause also provides for a person who fails the test in cl 16(1) to give unsworn evidence, as follows:
This Bill was introduced as an “exposure draft” into State Parliament to repeal and replace the current Evidence Act 1898 (NSW). The Bill was circulated to seek submissions. At the time of writing this Bill has not been passed into legislation.
5.16 As to competence, it may also be appropriate to consider the use of expert witnesses such as a clinical psychologist in court to provide evidence of the accused’s or witness’ disability. The Intellectual Disability Rights Service has pointed to the need for expert evidence to explain the particular capacities and limitations of a witness with an intellectual disability:
[t]his can go in some way to counter possible confusion and inadequacies in testimony which may be revealed in the course of the trial. Without such evidence, the witness may be perceived as unreliable or deceitful. At present such expert evidence is inadmissible as bolstering the credibility of the witness.32
Interpreters and questioning
5.17 Victims and witnesses may be competent but need assistance, such as interpreters, communication boards or merely appropriate questioning techniques, to be able to make themselves understood. In such situations they may be unfairly held to be incompetent. The whole issue of the use of interpreters and communication boards to assist people with limited verbal speech needs to be clarified.33 The issues raised in Chapter 4 as to appropriate questioning by the police will also be relevant for lawyers. People with an intellectual disability are likely to find giving evidence mentally exhausting and likely to suffer concentration lapses more quickly than a non-disabled witness, and will therefore require more frequent adjournments. Difficult questions for such people include leading or lengthy questions, those spoken rapidly or containing many concepts or double negatives.34 Such questions are particularly likely to arise in cross examination. It has been suggested the protection of limited cross-examination be available for people with an intellectual disability.35
The Commission seeks further information as to the difficulties faced by people with an intellectual disability in relation to interpreters and questioning and as to how these may be overcome.
Confessions
5.18 Anecdotal evidence suggests that the majority of convictions of people with an intellectual disability are based upon the “confession” of the alleged offender. As discussed in relation to police questioning in Chapter 4, this is a matter of concern due to the inherent unreliability of many such confessions. It has been suggested that there be some additional protection at the court level for people with an intellectual disability and other “vulnerable” groups. The treatment of admissions made by a defendant in criminal proceedings is referred to, for example, in cl 69 of the Evidence Bill 1991 (NSW), which states that “evidence of the admission is not admissible unless the circumstances in which the admission was made was such as to make it unlikely that the truth of the admission was adversely affected”. The court is to take into account such matters as any relevant condition or characteristic of the person who made the admission, including intellectual disability.
Procedures under the Crimes Act
5.19 Recent amendments to the Crimes Act 1900 (NSW) allow courts to adopt alternate arrangements for the taking of evidence. These are restricted to certain offences on “a child under the age of 16 years at the time that the child is giving evidence in the proceedings”. These procedures are found in s 405D-I which include the following:
405F. (1) In any criminal proceedings in which it is alleged that the accused person has committed a personal assault offence on a child, the court may, of its own motion or on the application of the prosecution, direct alternative arrangements to be made for the giving of evidence by the child.
(2) Without limiting the generality of subsection (1), the following alternative arrangements may be directed to be made:
...
The judge is also required, when any of the above arrangements is made, to warn the jury not to draw any inference adverse to the accused person or to give the child’s evidence any greater or lesser weight.36
5.20 People with an intellectual disability may be particularly fearful about having to face the alleged offender in a courtroom, however the procedures outlined above could not be applied if the person is above the age of 15 years. There may be other people in the community, with or without disabilities, in situations where such procedures would be appropriate. The Commission has been asked by the Attorney General to examine whether the Crimes Act should be amended so that alternate arrangements can be made for all witnesses of whatever age. It has been suggested that courts in New South Wales have the inherent power to make such orders in any event,37 but it may be advantageous to give that inherent power statutory force. This raises an issue of importance to the Commission’s reference as a whole. It may be that specific procedures should not be made for particular groups in the community, but rather that there should be legislative provision for a wide range of procedures, applicable at the discretion of the judge.
Other procedures
5.21 Apart from better training and education of police, lawyers, judges and magistrates in questioning people with an intellectual disability, the Silent Victims Report38 recommended that there be: support to assist people with an intellectual disability to understand court processes; a fast-track for court cases involving people with an intellectual disability, including if necessary a support person and someone to assist in communication; a test of psychological competence to replace the oath test; and an ongoing Justice Committee with representatives of the criminal justice system and disability workers to consider the needs of people with an intellectual disability.39 The Intellectual Disability Rights Service also supported priority listings for court cases involving people with an intellectual disability owing to the difficulty many such people have in recalling events in sequential order after the event; “the longer the delay between the event and the trial, the more difficult for the person to give their evidence.”40
The Commission seeks comment as to what other protective measures may be appropriate for people with an intellectual disability in the court system.
CRIMINAL DEFENCES
5.22 There are a variety of defences under the criminal law which may be relevant to a person with an intellectual disability. These defences are not limited to people with an intellectual disability and may apply to other people, for example people with a mental illness. This overlap and the confusion between mental illness and intellectual disability is discussed further in Chapter 7. The relevant defences are: the defence of mental illness, automatism, reasonable mistake of fact, diminished responsibility and provocation. This Paper will not attempt to discuss these defences in detail. Intellectual disability, like mental illness, may also affect criminal responsibility without involving such defences. It has been argued that where an offence requires proof of a particular state of mind or intention, the jury may find that the accused did not have the required mens rea (state of mind) because of a mental disability. This has raised policy concerns, as it may be interpreted to mean that, in the words of Glanville Williams, “every insane person who killed without knowing the nature and quality of his act would be entitled to be set at large”.41
The Commission seeks submissions about the problems, if any, faced by people with an intellectual disability in relation to the defences available under the substantive criminal law and whether this review should analyse these defences in more detail.
The defence of mental illness
5.23 One area of concern which has already been raised is the defence of mental illness. The common law defence of insanity is available for all crimes, although as a matter of practice it tends to be raised only in respect of serious offences. It states that a person lacks the capacity to be criminally responsible if he or she is “labouring under such a defect of reason, from disease of the mind” that the person is incapable of understanding the “nature and quality” of the unlawful act or, if the nature and quality of the act was understood, of knowing that it was wrong.42 This defence has now been renamed as the defence of mental illness and:
[if] it is given in evidence on the trial of the person for the offence that the person was mentally ill, so as not to be responsible, according to law, for his or her action at the time when the act was done or the omission made, then, if it appears to the jury before which the person is tried that the person did the act or made the omission charged, but was mentally ill at the time ... the jury must return a special verdict that the accused person is not guilty by reason of mental illness.43 (emphasis added)
The common law definition of “mental illness” appears to include people with an intellectual disability.44 If “the jury returns a special verdict that the accused person is not guilty by reason of mental illness, the Court must order that the person be detained in strict custody in such place and in such manner as the Court thinks fit until released by due process of law.”45 In practice this means that the Mental Health Review Tribunal must then, as soon as practicable, make a recommendation as to the person’s detention, care or treatment, or, if appropriate, the Tribunal may recommend the person be released, either conditionally or unconditionally.46 If not released, the person’s case must be reviewed at least every six months by the Tribunal.
The Commission seeks comments as to the effectiveness and appropriateness of the existing regime in regard to the defence of mental illness and its impact on people with an intellectual disability.
QUESTIONS FOR DISCUSSION
5.24 The Commission seeks comments as to the issues which affect people with an intellectual disability within the court process, including the following.
- Legal representation. What difficulties are faced by lawyers in representing clients with an intellectual disability? What possible solutions exist? How can lawyers meet the needs of their clients with an intellectual disability?
- Fitness to be tried. How appropriate and effective are the existing mechanisms, including the Mental Health Review Tribunal, for determining whether an offender is fit to be tried? How could these be improved?
- Giving evidence. How appropriate are the existing rules as to competence, interpreters, admission of confessional material, and cross examination. What amendments should be made? Should the procedures for child witnesses found in s 405 D-I of the Crimes Act 1900 (NSW) be extended to all witnesses, irrespective of age?
- Criminal Defences. Do the existing criminal defences impact unfairly on people with an intellectual disability? Should these be examined in more detail in this review?
FOOTNOTES
1. See M Ierace Intellectual Disability: A Manual for Criminal Lawyers (1989), especially ch 2.
2. Legal Aid Commission of New South Wales Submission (8 January 1992) at 4. A guardian ad litem is a person appointed to defend an action or other proceeding on behalf of a minor or person with a disability.
3. Intellectual Disability Rights Service Submission (6 January 1992) at 7.
4. M Ierace “Acting for the intellectually disabled offender: questions of understanding” (1987) 25 Law Society Journal (4) at 45.
5. See R v Presser [1958] VR 45 and Ngatayi v R (1980) 147 CLR 1.
6. Sections 8-9.
7. Section 10(3).
8. Section 10(4).
9. New South Wales. Attorney General’s Department The Intellectually Disabled in the Criminal Justice System (Issues Paper, 1991) at 2-3.
10. Sections 11, 11A and 12.
11. Section 13.
12. Section 14.
13. Section 16.
14. Section 17.
15. Section 18. As to the nature, conduct and available verdicts of a special hearing see s 19, 21-28.
16. Section 23.
17. Section 24.
18. Section 27.
19. Mental Health Act 1990 (NSW), s 80.
20. R Hayes, M Sterry, T Ovadia, B Boerma and W A Greer "Profile of New South Wales Forensic Patients and an Assessment of the Mental Health Review Tribunal’s Role in Effecting Their Release," paper presented at Australian Institute of Criminology conference Serious Violent Offenders: Sentencing, Psychiatry, and Law Reform (Melbourne, 29-31 October 1991).
21. Mental Health Act 1990 (NSW), s 82.
22. Section 82(4).
23. Sections 80(3) and 82(3).
24. Mental Health (Criminal Procedure) Act 1990 (NSW), s 32(2).
25. Section 32(3).
26. New South Wales. Attorney General’s Department The Intellectually Disabled in the Criminal Justice System (Issues Paper, 1991) at 4-5.
27. Note however the statutory exception for children under twelve years of age in the Oaths Act 1900 (NSW), s 33. It has been suggested this section be amended to also apply to people with an intellectual disability.
28. Ranieri v Ranieri (1973) SASR 418 at 421. See also Ierace (1987) at 48.
29. (1851) 2 Den 254; 169 ER 495.
30. Australia. The Law Reform Commission Evidence (Report 38, 1987) paras 64-65.
31. New South Wales. The Law Reform Commission Evidence (Report 56, 1988).
32. Intellectual Disability Rights Service Submission (6 January 1992) at 6.
33. Intellectual Disability Rights Service Submission (6 January 1992) at 6. Note that the Australian Law Reform Commission has just released a report on multiculturalism which deals in detail with the issue of interpreters; Multiculturalism and the Law (Report 57, 1992). The Commission will consider the recommendations made in that Report in more detail in the forthcoming Discussion Paper for this reference.
34. Ierace (1989) at 97.
35. See also M Brennan and R E Brennan Strange Language: Child Victims Under Cross Examination (3rd ed, Charles Sturt University - Riverina, 1988), which points out that language tactics used in cross examination “capitalise well on the vulnerability of young victims and draw on widespread cultural misinformation about children’s tendencies to tell lies and be unreliable”. Though people with an intellectual disability should not be treated as children, similar comments about their vulnerability to traditional cross- examination techniques have been made.
36. Crimes Act 1900 (NSW), s 405H.
37. See, for example, O’Brien v McAuley (1920) 14 QJPR 100.
38. K Johnson, R Andrew and V Topp Silent Victims: A Study of the Difficulties Encountered by Victims of Crime who are Intellectually Disabled (Office of the Public Advocate, Victoria, May 1988).
39. Johnson, Andrew and Topp at 93-94.
40. Intellectual Disability Rights Service Submission (6 January 1992) at 7.
41. Textbook of Criminal Law (2nd ed, 1983) at 646, cited in D Brown, D Neal, D Farrier and D Weisbrot Criminal Laws (The Federation Press, Sydney, 1990) at 665-666.
42. This rule was established in M’Naghten’s Case [1843-1860] All ER Reprints 229, per Tindal C J at 233-234.
43. Mental Health (Criminal Procedure) Act 1990 (NSW), s 38.
44. Ierace (1989) at 127.
45. Section 39.
46. Mental Health Act 1990 (NSW), s 81.
