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The Rights of People with Disabilities: Areas of Need for Increased Protection: Chapter 5: Criminal Justice System

The Rights of People with Disabilities: Areas of Need for Increased Protection

Chapter 5: Criminal Justice System

Issues Addressed

Because of the variability of the information collected by project workers in each State/Territory, this chapter on the criminal justice system takes the form of a general discussion of the situation in , with details of specific State or Territory practices provided where possible. Considerable use has been made of New South Wales examples, due to the detailed contribution received from that State.

The Proceedings of the Seminar on Intellectually Disabled Offenders ('the Proceedings': held between 22-24 April 1987 at the Australian Institute of Criminology) presents a number of viewpoints on how the criminal justice system needs to learn and develop appropriate ways of dealing with people with intellectual disabilities in the event of such people breaking the law, witnessing criminal events or being victims of crime.

In his address at the Seminar entitled 'A Normalised Approach to Supporting Intellectually Disabled Offenders', Mr Paul Gannon presented the following as a lineal description of the criminal justice system:

  • Pre-arrest questioning*
  • decision to arrest/charge
  • Arrest
    • bail
    • legal advice*
    • court appearance*
    • jurisdiction
  • Court hearing
    • plea of guilty*
    • summary trial *
    • committal hearing*
    • jury trial*
  • Sentencing options*
    • discharge without conviction
    • bond
    • probation
    • community service
    • fine
    • fine/option
    • prison/probation
    • prison

(* procedures in which persons with an intellectual disability are most seriously disadvantaged).

This chapter will consider a number of the steps in the above process, drawing on the information collected by project workers and on the Proceedings.

Many of the issues identified in this chapter do not appear to constitute a problem for people with a physical disability. This is perhaps attributable to two factors. Firstly, people with a physical disability seem to be under-represented in the criminal justice system rather than over-represented as is the case for people with intellectual disabilities. People with physical disabilities seem to be less likely to offend, and less likely to receive custodial sentences. It has not been possible to find any data on this.

It may be that the physical disability itself is prohibitive of criminal activity. The lack of data could also of course be indicative of a hidden problem. The second factor is simply that of understanding. Many of the issues arise primarily because of the low level of understanding of people with an intellectual disability. Where the comprehension of a person with a physical disability is unaffected, he or she may not face such difficulties. For these reasons, and the simple lack of information on the subject, this chapter relates almost entirely to people with intellectual disabilities.

Mr Ben Bodna, the Public Advocate for Victoria, pointed out in his address at the Seminar, entitled People with Intellectual Disability and the Criminal Justice System', that it is clear that people with disabilities were in some fundamental sense a 'problem' to the criminal justice system, whether in their contact with police, courts, welfare agencies or within prisons.

Mr Bodna remarked further that:

Police felt that they were unable to access resources to help them resolve crisis situations involving people with intellectual disability, magistrates were disturbed at having no options available to them other than prison sentences for convicted individuals with intellectual disability where a community based order was not appropriate, and prison officials and welfare workers were disturbed by the lack of provision within the prison system for the person with an intellectual disability.


Principle 6 of the UN Declaration on the Rights of Mentally Retarded Persons states that:

The mentally retarded person has a right to protection from exploitation, abuse and degrading treatment. If prosecuted for an offence, he shall have a right to due process of law with frill recognition being given to his degree of mental responsibility.

Principle 11 of the UN Declaration on the Rights of Disabled Persons states that:

Disabled persons shall be able to avail themselves of qualified legal aid when such aid proves indispensable for the protection of their persons and property. If judicial proceedings are instituted against them, the legal procedure applied shall take their physical and mental condition fully into account.

The key elements of these two Principles are that people with disabilities have the right to:

  • due process of law; and
  • recognition of their individual capacities and limitations.

Denial Of Rights And Discrimination


A person with an intellectual disability may become involved with the criminal justice system as a victim of crime, as a person suspected or accused of a crime, or as a witness.

Criminal Activity: as Suspect or Accused

People with a disability accused of committing crimes are particularly vulnerable because their special needs are often not met and because the legal system tends to discriminate against the less articulate, just as it discriminates against the less wealthy.

Police procedures

Many people with an intellectual disability appear to suffer serious breaches of their rights in this initial stage of contact with the criminal justice system. Mr Mark lerace, in his book Intellectual Disability - A Manual for Criminal Lawyers, remarks that:

The problems associated with police interrogation of suspects who have an intellectual disability are so considerable that a lawyer should not lightly advise the client to participate.

The problems referred to are numerous and people with an intellectual disability may be disadvantaged by several factors:

  • they may be more prone to suggestibility, and thus leading questions by interviewing officers may be a distinct problem;
  • many may be eager to please a person perceived to be an authority figure thus giving the answers he or she believes are the desired ones rather than the correct ones;
  • people with an intellectual disability may be more likely to respond to questions in a manner they believe is expected of them;
  • many may be prone to 'cued' or 'initiative behaviour';
  • there may be poor understanding of questions asked, and the implications of the answers given;
  • many people with intellectual disabilities try to hide their disability and may, for example, answer a question to which they do not know the answer, so as not to appear 'dumb or stupid'.

At present, there is no legally enforceable obligation on police officers to ensure that an accused receives fair treatment during interrogation. This is a major problem and deserves immediate attention.

The right to silence and the caution

All persons have a common law right to silence during questioning by police in relation to any offence. (For a recent restatement of this principle see R vBeljajeve (1984), 12 A Crim. R 430). Suspects are usually informed of this right by means of a caution given to them by police prior to interrogation. The wording varies slightly from time to time, but is generally as follows:

Before you say anything further about this matter, I must warn you that you are not obliged to say anything unless you wish, as anything you do say will be recorded and may later be used in evidence against you. Do you understand that?

Police are required to give this caution to an accused but are under no obligation to take special measures to ensure that it is properly understood. For a person with an intellectual disability, the caution may contain words (such as 'obliged') or concepts ('this matter', 'used in evidence', etc) which he or she does not understand. Similarly a person with a hearing impairment may fail to understand the police (for example, where they speak too quickly to enable the suspect to lip read). The effect of the caution is thereby lost and the accused may not realise that he or she is lawfully entitled to say nothing. This right of silence is doubly crucial to an accused with an intellectual disability, since he or she may also fail to realise the possible ramifications of participating in such a procedure. Generally, when an accused participates in the questioning process after being cautioned, it is taken that he or she has voluntarily surrendered the right to silence.

The obligation on police officers to ensure that an accused understands the proceedings and participates only through informed choice, must be more than a merely moral one. It is patently obvious that the current procedure is insufficient to protect the rights of an accused who has an intellectual disability. There is some judicial weight to the claim that for a record of interview to be admissible, an accused must understand the right to silence and be capable of exercising choice: R v Buchanan (1966) VR 9. There is also authority for the proposition that evidence of an interview is not admissible where an accused has not understood the administered caution: R vLangdren (New South Wales Supreme Court, per Matthews J, unreported 15.2.88). It is submitted that this must go further than a reliance on police goodwill and the judicial discretion to exclude. Urgent amendments to the law of evidence are required to provide that where an accused lacks the capacity to understand the caution administered to him or her and/or where an accused cannot effectively exercise the right to surrender his or her right to silence, any record of interview will be inadmissible.

A similar problem is evident with the standard questions asked by police of the accused at the end of the interview. There is a common law requirement that the record of interview be adopted by the accused to be admissible as evidence: Driscoll v The Queen (1977) 137 CLR 517. This requires the police to establish that the accused has read the statement as recorded and adopted it as his or her words. The questions are usually as follows:

Do you agree that you have read this record of interview/had this record of interview read to you? Do you agree that it represents a faithful record of the interview between yourself and (the interviewing officers)? Will you now sign that record of inteiview?

Again, the language used, and concepts involved, are such that an offender with intellectual disability may not understand them, and be disadvantaged accordingly. Hence, such an accused can be easily prevailed upon to sign a statement even whilst not understanding its contents. An accused with an intellectual disability may not have the adequate literacy skills to be able to read and understand the typed statement at a sufficient level to enable him or her to adopt or refute it. In addition, poor short term memory and listening skills may preclude such an accused from adequately comprehending and adopting or refuting a statement read aloud. The accused with an intellectual disability is substantially disadvantaged by the fact that police are not required to take any special measures to ensure that he or she understands what is being asked, and the significance of signing the record of interview.

The interview

There is no legislation relating to the interrogation of an accused with a disability in New South Wales. The New South Wales Police Commissioner has issued instructions to his officers regarding the conduct of interviews which can be taken to apply to people with an intellectual disability. In particular, some of the provisions of Instruction 31.2 are as follows:

6. The following instructions are designed as a guide to members of the Force conducting investigations...In addition to complying with these instructions interrogating officers should always be fair to the person who is being questioned, and scrupulously avoid any method which could be regarded as unfair or oppressive...

6(3). In the case of persons with apparent infirmity, feeble understanding or special disability and of persons unfamiliar with the English language, such special measures as are practicable and appropriate shall be taken to ensure fair interrogation.

Questions prior to arrest

7(2). If the person being questioned requests that any other person then in his company or in the immediate vicinity (other than a suspected accomplice) remain within hearing during the questioning, the member of the Force shall not unless the exigencies of the occasion require, prevent this, provided such other person does not hinder or obstruct the questioning.

7(3). If the person being questioned is suspected of being of feeble understanding, such a person shall, if reasonably practicable, be interrogated in the presence of a parent guardian, relative, friend or other responsible person not associated with the inquiry.

7(4). If a person being questioned expresses a desire to consult a legal adviser, he should be given every opportunity to do so. If he so desires, fwther questioning should except in special circumstances, be deferre4 but only for such short period as is reasonable necessary to enable the person to obtain legal advice by telephone or otherwise.

These instructions could prove sufficient to protect the rights of an offender with a disability were they scrupulously adhered to. However, the true situation appears to be that they are more often breached than they are followed. In fact, it seems that many police are unaware of the existence of the instructions. For example, one Sydney legal centre held discussions on the subject of the police instructions with an officer of the rank of Superintendent only to fmd that he was unaware of their existence.

Nor do the instructions have any legal significance. The fact that they have been breached does not entitle the accused to have a record of interview rejected by a court as a matter of right: R vLee (1980) 82 CLR 133. There is some judicial authority for the proposition that it is within a judicial officer's discretion to consider a record of interview inadmissible where there has been a breach of the Commissioner's instructions. This is insufficient for the adequate protection of people with disabilities.

The courts have a general discretion to exclude a confession or record of interview where its admission would occasion unfairness to the accused. Thus, evidence which is unreliable by reason of the accused's mental state or understanding at the time of making a confession could be excluded. If the accused's mental state is such that he or she could not exercise the right to refuse to answer questions, then the "voluntariness test" would have been failed and the evidence ought to be excluded. However, the decision to exclude is entirely at the discretion of the judicial officer involved:

it is for the presiding judge to determine, in the light of all the circumstances, whether the statements or admissions of the accused have been extracted from him under conditions which render it unjust to allow his own words to be given in evidence against him (R v Lee (1980) 82 CLR 133).

To protect the offender with intellectual disability it appears that judicial discretion may be insufficient. Whilst education of judicial officers about intellectual disability may strengthen the protection provided by the discretion to exclude, provisions may need to be inserted into the law in each jurisdiction to ensure that a record of interview adopted by a person who lacked sufficient understanding to knowingly do so should be prima facie inadmissible.

Giving evidence

Many people with an intellectual disability are often precluded from giving evidence in a court due to their perceived lack of capacity. This may also apply to people who cannot effectively communicate due to a physical disability. This situation may mean that people with a disability have their rights breached. For example, a worker in a residential service for people with an intellectual disability in the Sydney metropolitan area reported that a female client reported having been sexually assaulted by an assailant known to her. Police were called but refused to report the complaint, explaining that it would be a waste of their time since no court would ever believe such a person, and she wouldn't be able to give evidence anyway.

A person will be competent to give evidence in a court or judicial tribunal where they are able to swear an oath or make an affirmation (thus a person who could not speak, or could not speak in a recognisable manner, i.e. in an objectively verifiable language, would be immediately precluded from giving evidence) and where they understand the general nature and significance of the proceedings. A witness would need to have sufficient understanding to know what it meant to tell the truth, and that not to tell the truth was against the law. It was said in R v Hayes (1977) 64 Cr. App. R. 194 that:

The important consideration whether the child has a sufficient appreciation of the solemnity of the occasion, and the added responsibility to tell the truth, over and above the duty to tell the truth which is an ordinary duty of normal social conduct.

Although this test was formulated for children, it was held applicable to adults in R v Bellamy (1986) 82Cr. App R. It would seem that a court has to be satisfied that the witness has sufficient memory, and capacity to express that memory: Ranieri v Ranien (1973) 7 SASR 418.

Thus a person with an intellectual disability is not automatically precluded from giving evidence (although a person with a physical disability who is unable to sign, to swear the oath or make an affirmation is). There is an added requirement, however, for adults with intellectually disability, which does not usually apply to other adults. Where a child witness is involved in a matter, a direction is given to the jury that it will generally be unsafe to convict on the child's evidence alone. Corroboration is required. In R v Spencer (1987) AC 128, it was held that where a person's evidence is suspect due to their mental condition, their evidence will require corroboration. This House of Lords decision may well be followed in Australian jurisdictions. To preclude a person's uncorroborated evidence merely because of their mental state may be discriminatory - many people with an intellectual disability are able to give reliable evidence. They should not be precluded by reason of their disability alone.

The problem of giving evidence in a court will be of particular importance to victims of crime and to those who have witnessed a crime. For a victim of sexual assault, his or her testimony may be the only evidence against the assailant and yet the evidentiary rules in New South Wales may prevent this evidence being offered. A working party comprising representatives from the NSW Council for Intellectual Disability, the Intellectual Disability Rights Service, and the Australian Society for the Study of Intellectual Disability examined these issues, and made several recommendations on possible changes to the law in order to provide better protection to people with disabilities. One recommendation was as follows:

Where in a criminal trial a person lacks the requisite understanding to give evidence but it reasonably appears to the judge that substantial injustice may occur if the person's version of the facts is not put before the jury, the judge shall allow the person to give evidence, but shall warn the jury that it may be dangerous to convict unless there is corroboration of the unsworn evidence.

To assist a person who may have limited communication skills, the working party further recommended:

The unsworn evidence may be given through a special translator being a person who by reason of close personal knowledge and familiarity with the witness is able to communicate effectively with the witness either gen erally or in a limited way through signs or noises or other means. The special translator shall be subject to cross-examination as to the reliability of the translation and the witness shall be subject to cross-examination through the special translator.This provision would apply to a person with a physical disability whose disability prevented him or her from communicating and to a person with an intellectual disability who is nonverbal.

Currently many people are being denied the opportunity to testify in a court due to the restrictive evidentiary rules. If these recommendations were implemented people with disabilities who are now excluded from giving evidence (and thereby denied access to one forum in which to protect their rights) would be enabled to do so.


Hayes and Hayes in their book Simply Criminal have pointed out that offenders with an intellectual disability are more likely to receive custodial sentences than non-disabled offenders, and these sentences are likely to be of a longer duration. In New South Wales, the Missing Services report released by a joint working party of the Departments of Youth (now Family) and Community Services, and Corrective Services in 1985 makes the same point. This may be largely due to the lack of alternatives available to a sentencing judge or magistrate.

Victims of Criminal Activity: Case Studies

According to the law, a person with a disability who is a victim of a crime has the same rights to the protection and assistance of the law as any other person, but often it does not work this way. In May 1988 the Office of the Public Advocate in Victoria released Silent Victims - A Study of People with Intellectual Disabilities as Victims of Crime. This report indicated that the problem of non-reporting of crimes by people with intellectual disabilities is widespread.

The following case study has been extracted from Silent Victims:

M was 18 when she left an institution. She was a young woman with a mild intellectual disability, attractive in appearance and manner and socially very at ease. She was less stiginatised than many of her peers. The institution, though providing her with some basic schooling had not taught her many community living skills. The boys and girls at the institution had separate dormitories and apart from weekly social evenings had little to do with each other away from school.

M was discharged and then spent time living in a number of unsatisfactory circumstances with her family where relationships were strained, with peers who themselves were barely getting by with few skills and little support. Over this period of almost two years M and her family maintained contact with the Office of Intellectual Disability Services. When one of the first Community Residential Units opened M moved in. The facility was designedfor such young people to allow them to team to live independently and then move on. M had difficulty with the staffed setting and bucked the relatively unstructured system. Her two years of 'independence' had given her a sense of autonomy and freedom that she wanted to experience fully. She decided to leave almost one year after moving there and returned to her family where relationships were now less strained.

M lost contact with most places that had offered her support. She had been a regular member of a social club, funded by OIDS, which closed. She was involved for a short time with a self-help organisation but for the social support rather than political commitment. She moved on.

M's friendship and relationships at this stage were sometimes with other young people with intellectual disabilities and often with young men who picked her up in pubs and parks. The relationships with young men were generally sexual and short-lived. However, these transient relationships offered her an identity, for she was desperate to appear normal attractive and desired. M was free to come and go from her family as she pleased. They were supportive and liberal minded.

M was brutally sexually assaulted mutilated and murdered at the age of 24. Her assailants were convicted and on appeal from the Crown were sentenced to twenty year's jail.

A further case study is taken from a reported case in The Age, Saturday 21 May 1988:

A man who threatened an intellectually disabled newspaper seller to the point where the victim tried to commit suicide was sentenced yesterday to three year's jail. In the County Court Judge Murdoch said the actions of 20 year old Thomas James Ratcliffe were contemptible. He said Ratcliffe began threatening Noel Martin after Mr Martin saw Ratcliffe stealing a car and identified him to Police.

Ratcliffe, unemployed of Glenroy, pleaded guilty to blackmailing Mr Martin between December1986 and June 1987 and to a count of blackmail on 22 June 1987. Judge Murdoch set his minimum time in jail at 18 months.

The judge said 'You showed no compassion for a mentally retarded youth who had done no more than his duty as a citizen'. He said Ratcliffe found out that Mr Martin had identified him to police and made it his 'business to find out his address He then 'bullied and terrified' him with his threats.

Ratcliffe went to Mr Martin'sc home and told Mr Martin that he blamed him for the $1100 fine he received for stealing the car, demanded money from him and threatened to bash him if he did not pay. Thereafter Ratcliffe went to Mr Martin's home frequently and collected $20 a week from him.

The judge said Mr Martin was terrified of Ratcliffe and tried to sell more magazines and newspapers from his kiosk outside Glenroy railway station. For more than six months he feared to tell police about the threats. Judge Murdoch said that in early June 1987, Mr Martin became so depressed by the threats that he tried to commit suicide by throwing himself under a train at Flinders Street Station, but he was stopped by railway staff

On 22 June when Ratcliffe approached Mr Martin at his kiosk and demanded the day's takings, police arrested him.

Consultations in South Australia

People attending the forums held in South Australia made the following suggestions and observations in order to improve the South Australian criminal justice system:

  • the SA Court Information Service needs to improve its accessibility to people with disabilities;
  • the approach of SA magistrates to not hear a case involving a person with intellectual disability unless that person has had access to legal aid was considered to be a very positive approach;
  • there is a need for a contact service for people with disabilities taken into custody similar to the contact service available to Aboriginal people;
  • the time lapses between apprehension and court appearances and sentencing are excessive and render much of the criminal justice system meaningless for all individuals, including those with disabilities;
  • disability awareness needs to be incorporated into the training of police, court staff and others involved in the criminal justice system; and
  • other authorities which have regulations with criminal penalties for nonobservance should make sure that these are clearly understood by all members of the public (e.g. the SA State Transport Authority has a number of regulations about tickets and behaviour that are not clearly displayed or are only advised by fine-printed signs placed high in buses and trams, and conversely drivers need more management back up in order to enforce reserved seats for the frail, the elderly and younger people with disabilities).

Major Issues and Recommendations

A person with disabilities may become exposed to the criminal justice system as a victim of a crime, as a person suspected or accused of a crime or as a witness. This exposure renders any such person particularly vulnerable, especially when the disability is of an intellectual nature. Accordingly, it is recommended that:

  • police interview procedures be reviewed to provide that accused persons, especially those with limited short-term memory or conceptual skills, understand clearly what is being asked and the significance of actions such as the surrendering of the right to silence and the signature of a record of interview;
  • legal aid systems take particular note of the difficulties experienced by people with disabilities within the criminal justice system and provide support accordingly;
  • court proceedings and evidentiary rules in all jurisdictions be reviewed in light of the particular needs of people with disabilities, notably in the areas of provision of sworn and unsworn evidence;
  • increased support be given to magistrates and judges in understanding the particular difficulties of people with disabilities, and state authorities act to ensure that a greater variety of sentencing options are available; and
  • the right to freedom from physical assault and mistreatment be recognised by authorities responsible for the management of institution systems, and proper investigation and action be taken on any allegation of mistreatment.

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