INTRODUCTION

6.1 This Part discusses the issues relevant to police contact with suspects with an intellectual disability. The particular problems faced by victims and witnesses with intellectual disabilities are discussed in Part IV. This chapter begins by discussing some of the difficulties faced by people with an intellectual disability, whether suspects, victims or witnesses, in police questioning. Police questioning is an area which has been raised often in submissions, for example the Hunter Region Developmental Disability Service commented that a major difficulty encountered by that service was:

the inability of police to understand the limitations that intellectual hardship can place on the client’s ability to understand and answer questions.¹

6.2 It is generally thought² that people with an intellectual disability are likely to be overly influenced by authority figures and will respond to suggestive questioning. For example, many people with an intellectual disability tend to answer “yes” to any question asked by an authority figure.³ This was the experience of the Commission in its own consultations with people with an intellectual disability.⁴ This obviously would place such people at a disadvantage in police questioning. People with an intellectual disability also may not comprehend the level of language used or common police questions/concepts such as those involving time sequencing or “the right to remain silent”, and may also have difficulty in maintaining concentration for the long periods often involved in police questioning. Police should also be aware of the difficulties people may have providing details such as times, dates and numbers. Other common problems include speech and language disorders, which may be severe enough to require an “interpreter” to enable the person to be properly understood.⁵ Interviews in Victoria with police officers about their experiences interviewing people with an intellectual disability most commonly reported the following difficulties in their interviews: comprehension of the caution; memory difficulties; interviewee anxious to please; comprehension of questions; difficulty with time and place; and limited concentration.⁶

6.3 There is a dual problem encountered in the misconceptions by police and others about the comprehension of people with an intellectual disability. On the one hand, as illustrated by a study in the United Kingdom, police officers can over-estimate the quality of the accounts received from suspects with an intellectual disability.⁷ On the other hand, the ability of people with an intellectual disability to provide information or statements can be underestimated by police and lawyers. Often the problem is one of communication, rather than unreliability.

6.4 In the Commission’s own consultations with people with an intellectual disability, participants called for police to be more sensitive to the needs of a person with an intellectual disability when questioning them, that is, taking care with language by not using inappropriate or suggestive language, not talking too fast and taking more time to question people.⁸ It is generally acknowledged that questioning a person with an intellectual disability may take much more time than questioning another person. Even when police have experience with people with an intellectual disability and are aware of their susceptibility to, for example, leading questions, one study showed that police officers still felt uncertain about their ability to not only identify a disability, but also to choose the appropriate interviewing procedure.⁹

6.5 The Victorian Office of the Public Advocate’s Discussion Paper, The Right to be Heard¹⁰ analysed existing literature in relation to cognition, social learning, memory and questioning techniques in relation to people with an intellectual disability, and some “issues for consideration”, including:

(7) Given that the intellectually disabled appear to rely more on external cues for the retrieval of information than the intellectually non-disabled, and as a consequence seem more vulnerable to suggestion, great care should be taken not to influence their statements by careless interview techniques.

(8) Controlled narrative or general open-ended questions containing only moderate prompting - “what did the man look like?” - would seem advisable for intellectually disabled children because these have been found to give the optimal level of accuracy and completeness. The situation is probably similar for intellectually disabled adults although more direct research may be required. Research directly comparing the performance of the intellectually disabled and non-disabled with different question types and other eyewitness tasks may also be required.

(9) If answers to interrogative or specific questions are required such questions should follow the general questions, however accuracy is likely to decline.

(10) Specific questions or questions that are leading or suggestive in any way whether directly or indirectly, should preferably be avoided. Answers to them may need to be treated with caution.

(11) The content and structure of questions should be kept as concrete, as simple and as non-suggestive as possible. Questions should not require abstract thinking or inferences to be made. Intellectually disabled people may have special difficulties in specifying the frequency and timing of events, and dialogue that is complex in subject matter. More information or research may be needed in these matters. It is important to note that for each individual, what is remembered is also largely determined by the person’s knowledge, interests and mental activities.

(12) Careful attention must be given to non-verbal as well as verbal aspects of communication as these play important roles in capturing and maintaining attention, and in conveying information.

(13) Caution may be required in the use of representative props to re-enact events.

(14) Care should be taken so that preconceived notions of the interviewer do not unduly affect information conveyed and received in an interview. ...

The Commission believes that such information should be included in police guidelines about questioning people with an intellectual disability.

POLICE QUESTIONING OF SUSPECTS WITH AN INTELLECTUAL DISABILITY

The NSW Police Commissioner’s Instructions

6.6 Police are provided with specific procedures to overcome some of the possible difficulties with questioning referred to above. Instruction 37.14 of the NSW Police Commissioner’s Instructions deals with questioning people in the course of an investigation. Following a report by the Deputy Ombudsman, it was amended¹¹ on 10 August 1992 to read as follows:

Questioning of Developmentally Delayed or Drug Affected People

If you suspect the person being questioned is developmentally delayed or drug affected, question the person in the presence of an appropriate adult, unless there is proper and sufficient reason for not doing so.

The term ‘appropriate adult’ means:

• a relative, guardian, friend, or some other person responsible for the care or custody of the suspect concerned
• a person who has professional experience in dealing with such persons but does not include a police officer or a person employed by the Police Service.

If an appropriate adult is unavailable, use a responsible adult who is not a police officer or a person employed by the Police Service.

The term, ‘proper and sufficient reason’:

As a general rule the term proper and sufficient reason does not include mere difficulty in finding an appropriate or responsible adult. However, it is recognised there will be instances when police will have to ask questions without an appropriate or responsible adult being present, eg in cases of urgency or where police are not endeavouring to elicit legally admissible evidence.

General Advice
• before questioning you should be satisfied that the person fully understands the caution and the implication of any [admissions] following the caution: -
• make it clear in simple terms that the person has the right to remain silent
• take care when questioning to ensure that each question is understood
• do not assume that the person understands even simple questions
• phrase questions in a way that avoids a simple ‘yes’ or ‘no’ answer.



This will ensure the person has some understanding of the question.

6.7 It has been commented in relation to an earlier version of the Instruction that these guidelines:

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.¹²

6.8 The Instruction does not, however, provide a definition of “developmentally delayed” or define the role of the “appropriate adult”. The Instruction, therefore, does not overcome the problem of identification of a person’s disability and the role of the “appropriate adult” remains a matter for discussion.

The “appropriate adult” or “independent person” in police questioning

6.9 The Commission seeks comments and submissions about the practical workings of this amended Police Instruction. Comments already provided to the Commission about difficulties with the Instruction have concentrated on the role of the appropriate adult and referred to cases where police failed to follow the requirement to have a third person present during the interview, often as a result of not identifying the suspect as a person with an intellectual disability. In some cases this occurred even when the police were informed the person had an intellectual disability, although it is not clear whether this failure flowed from ignorance of the Instruction or a deliberate choice.¹³ Other examples of difficulties encountered by the Redfern Legal Centre Intellectual Disability Rights Service (“IDRS”) are set out below:

• A person with an intellectual disability was accused of a crime and was interviewed by the police in the presence of an advocate. The person admitted having committed the offence. Later when we questioned the advocate she indicated that she was unsure whether the accused actually understood the caution. However, she believed any person accused of a crime should tell the truth and not refuse to provide information. Thus even the advocate did not fully understand the policy considerations behind the caution nor did she understand that people are not obliged to answer police questions.
• A person with an intellectual disability was accused of committing a serious criminal offence. Because of the serious nature of the offence the person’s advocate wanted to ensure that the person had legal representation before speaking to the police. The advocate had some difficulties obtaining legal assistance and the police became impatient about the delay and threatened to conduct the interview, with or without the advocate being present.¹⁴

6.10 The Division of Intellectual Disability Services in the Queensland Department of Family Services and Aboriginal and Islander Affairs has been involved in training police in the Sexual Offenders Squad. The Division commented, in relation to the presence of a third party in police questioning (which it supports), that:

Discussions with the police, however, have indicated that from a practical viewpoint it is often difficult to locate a third person and that often the offender may be “disconnected” from family and services. Strategies for involving a third person need to take these concerns into account. For example, by formalising a “third person” as a service and providing adequate resources, rather than by relying on existing non-paid resources such as family and service providers to act as a third person.¹⁵

Who should be the “appropriate adult” or “independent person” in police questioning?

6.11 In the Commission’s consultations with people with an intellectual disability there was considerable support for having a third person, such as a social worker or advocate, present in contacts with the police or other actors within the criminal justice system. This was seen as particularly important in relation to the need to fill out forms. It was suggested that police maintain a list of contact numbers for support people.¹⁶ In the Issues Paper the Commission noted the view that a friend or relative of the interviewed person, though likely to be able to communicate with the person, is not necessarily the best choice for this role for a number of reasons:

• they may be just as unfamiliar with and overwhelmed by police procedure, and may therefore not be able to advise the person being questioned or know whether or not the interview is being conducted fairly;
• they may lack the necessary objectivity or be too eager to assist the police, to the possible detriment of the interviewed person;¹⁷
• their presence may suggest to the person being questioned that their friend or relative supports the police’s actions; or, if the relative or friend is being used as a ‘translator’, “the effect on the suspect ... could then become, in his or her eyes, one of answering a question asked by a relative, rather than a police officer for the purposes of evidence.”¹⁸

What should be the role of the “appropriate adult” or “independent person”?

6.13 Submissions have also stressed the need to clarify the role of the “appropriate adult” referred to in the NSW Police Commissioner’s Instructions, as there are many possible interpretations: advocate; interpreter; substitute legal adviser; a provider of “moral support” or a neutral observer role. The different roles expected of the third person may be contradictory; for example, it has been argued that a person cannot fulfil both an interpreter and a support person role.²² The submission of the NSW Council for Intellectual Disability has suggested that the term:

“independent third person” also should not be confused with “advocate”. One is seen very much in the role of a communicator to assist in the interview process. The other is much more clearly identified with supporting, advising and assisting the person and possibly intervening for the person with the police. Council believes that people with intellectual disability should have the right to have an advocate present when being questioned by the police.

It is recommended that to reduce the possibility of a person not understanding this right, that the police be made to contact an appropriate advocacy body, if the person is unable to indicate a person they would wish to have in attendance. The advocate would then have the responsibility for explaining the right to have an advocate, and the role of the advocate, to determine the person’s wishes. Police should be made aware of local services and organisations for people with intellectual disability, and generic services who may also be of assistance for people with intellectual disability.²³

6.14 IDRS also believes that the role of the third party present in police questioning should be that of advocate, not merely an interpreter or that fulfilled by the “independent third person” in Victoria. IDRS commented that such a support person “should provide both moral support and, if the person is qualified, advice, and should be able to identify communication problems between the police and the person with the disability.” IDRS also stated that it:

believes that any statements taken from a person with an intellectual disability without an appropriate advocate being present should be inadmissible in court or if admissible should be accompanied by a warning to the jury about its reliability. We also note that any person who acts as an advocate should know the person with the disability, be acceptable to him or her and understand the role that they are to play so that they can identify any communication problems as they arise.²⁴

6.15 Other people, including the police, could easily interpret the role of the “appropriate adult” in a less interventionist way; that is, as merely an observer, without an active role to play in the process or, alternatively, as being there to assist the police rather than the suspect. There is concern that the third person will be seen as a sufficient substitute for a lawyer and that people with an intellectual disability will ultimately receive less, not more, protection through the presence of this person. Whatever role is to be played by a third person, their role and its extent should be clearly spelt out for the benefit of all parties.

The position in other jurisdictions

6.16 Many other jurisdictions have provision for the presence of a third person in police questioning of a person with an intellectual disability, for example: Victoria;²⁵ South Australia;²⁶ Western Australia;²⁷ Queensland;²⁸ Northern Territory²⁹ and England and Wales.³⁰ This list is not exhaustive and each procedure has some differences. The position in England and Wales and in Victoria is discussed below. The “Anunga Rules” are also discussed.

6.17 England and Wales. One advantage of the English provisions is that the role of the “appropriate adult”³¹ extends beyond mere questioning: a person who is “mentally handicapped” must not be interviewed or asked to provide or sign a written statement in the absence of the appropriate adult unless the relevant guidelines for “urgent interviews” are complied with.³² The Code of Practice also states that the appropriate adult:

should be informed that he is not expected to act simply as an observer; and also that the purposes of his presence are, first, to advise the person being questioned and to observe whether or not the interview is being conducted properly and fairly; and, secondly, to facilitate communication with the person being interviewed.³³

It has, however, been commented that:

the above guidance begs an important question: how does the appropriate adult know when or whether the interview is being conducted fairly? (an area over which learned judges, lawyers and even psychologists are regularly in dispute).³⁴

6.18 Any resulting action, such as laying charges, should be taken in the presence of the appropriate adult³⁵ and intimate searches may take place only in the presence of the appropriate adult of the same sex.³⁶ As well, if the appropriate adult considers that legal advice should be taken, the Code applies as if the “mentally handicapped” person had requested access to legal advice.³⁷ The relevant provisions relating to “mentally disordered and mentally handicapped persons” are conveniently summarised in an Annexure to the Code, and cross-referenced to the text of the Code. The use of the term “appropriate adult”, rather than “appropriate person” has been criticised, however. It has been suggested that using the term “adult” only reinforces the perception that people with an intellectual disability have a child-like status.³⁸

6.19 Even though the Codes of Practice have been in operation for a number of years, it has been commented that:

[t]here is evidence that the number of occasions on which the appropriate adults are summoned to the police station is very low by comparison with the numbers of suspects known to be vulnerable by reason of mental disorder. Research study No 12, carried out for the Royal Commission on Criminal Justice, indicates a need for more training of the police in recognising mental disorder, and demonstrates the difficulties faced by custody officers in obtaining suitable persons to act as appropriate adults.³⁹

6.20 The resource implications of the PACE Codes also should not be ignored:

Rights for vulnerable groups have been strengthened or created, and duties to provide and protect those rights have been placed legally on police and informally on other agencies; however, the resources needed to make those rights into reality are inadequate.⁴⁰

6.21 Victoria. It is also worth considering the position in Victoria in more detail due to the extensive development in that State of its Independent Third Person (ITP) procedures. The Victorian Police Standing Orders require that, where a police officer believes a person may have an intellectual disability (whether a suspect, victim or witness) the person should be interviewed in the presence of an independent third person “to facilitate communication”. ITPs can be located, on a 24-hour basis, by contacting the Police’s “D24” (communications) unit. The current procedures include the following:

Presence of Independent Person

3. Any witness or suspect believed to be intellectually or mentally impaired should be interviewed in the presence of an independent person (such as a close relative, friend or an independent third person who is not associated with the inquiry).

4. The independent person should be contacted and allowed a reasonable time to be present before the interview is commenced.

5. In the metropolitan area, if a relative or friend cannot be located or is not suitable, D24 should be contacted to access an independent person. D24 have been provided with a list of independent persons from the Office of the Public Advocate.

6. It is intended to have independent persons available through regional Communication centres in the future. However at this time, country members will need to use relatives, friends or persons appropriate for the role, such as state or local government senior staff or other persons of good repute within the local community.

Role of the Independent Person

7. The role of the independent person is to facilitate communication between police and the impaired person during the interview process. They may provide emotional support and ensure that the person understands his or her rights and the caution. However they are not the person’s legal counsel or advocate and should not make decisions on behalf of the person. It is a neutral role. [emphasis added]⁴¹

6.22 The Memo also includes information about appropriate contact organisations and advice on the form of the interview, the need for the third person to also sign the record of interview and to be present during the taking of fingerprints or blood samples, and the undesirability of referring a person with an intellectual disability to a psychiatric institution unless he or she also has a mental illness. In relation to the form of the interview, the Memo states that:

9. If a member is aware in advance that the person to be interviewed may be intellectually or mentally impaired, the interview should be conducted as soon as practicable.

10. Take particular care to ask questions which are understood by the person being interviewed.

11. Some intellectually or mentally impaired people are open to suggestion. Consider this when assessing the reliability of any answer given.

12. Take care to verify the facts presented and to obtain corroboration of admissions or statements made.

6.23 According to the Victorian Court of Criminal Appeal, in R v Warrell,⁴² these particular instructions:

represent part of a process which has been underway for some time to ensure that the principles that we have earlier mentioned [that is, voluntariness, fairness and public policy] have practical operation with respect to the interrogation of intellectually disabled persons and that the rights which the law states are possessed by every member of the community can, as a matter of practical reality, be exercised by those who are so disadvantaged.⁴³

6.24 In that case it was argued that certain admissions made by the defendant should be excluded for reasons of fairness in the exercise of discretion by the trial judge. The defendant in this case had an intellectual disability and was accused of raping a woman who also had an intellectual disability. It was argued that the procedures in relation to the presence of an independent third person had not been strictly followed in that the ITP did not have an opportunity to speak privately to the accused before the interview was conducted. On appeal, counsel for the defendant/appellant referred to the rationale underlying the Victorian Police Standing Orders in relation to people with an intellectual disability. According to the Court of Criminal Appeal:

He argued that, in part for the very reasons set out in the instructions, unless the third person was afforded a reasonable opportunity to converse with and gain the confidence of the individual being interviewed, the presence of an additional person in the room might not only constitute part of a meaningless ritual but could create a false sense of fairness. Indeed, the argument proceeded, the intrusion of a person whose role was not clearly designated into the process might well increase the sense of pressure that the requirement of the presence of an independent third person was intended to reduce. Consequently, a failure to give full effect to the letter and, more importantly, the spirit of the instructions could, it was submitted, be seen to cast doubt upon the fairness of the interview conducted. There is, in our view, considerable force in these submissions.⁴⁴

6.25 After consideration of the authorities in relation to voluntariness, fairness and illegally obtained evidence, the Court of Criminal Appeal commented:

These concepts of voluntariness, fairness, and public policy are integral to the operation of our criminal justice system. They are designed to ensure that any finding of guilt arrived at, on the basis of confessional evidence, is not only reliable but that the evidence itself has been obtained in a socially acceptable fashion. It is important to keep in mind, in this context, that they are concerned not only with the recognition and protection of the rights of those who may be suspected of the commission of criminal offences, but that any such finding is not surrounded by an aura of possible injustice which compromises both the system and the society which supports it.

It is against this background that, over recent years, there has been increased attention given to the problems encountered by specific groups within our community with respect to our investigative and legal processes. The need for the adoption of special procedures when dealing with children has long been accepted. In certain parts of the country, guidelines have been developed for the interrogation of aboriginal offenders, (see R v Anunga (1976) 11 ALR 412, where the need for additional care to be taken in the interviewing of persons whose ethnic background may place them at a significant disadvantage to other members of the community, was also identified).

More recently, the special position of the intellectually disabled has been receiving increased attention. The particular instructions, to which attention has been directed in the present case, represent part of a process which has been underway for some time to ensure that the principles that we have earlier mentioned have practical operation with respect to the interrogation of intellectually disabled persons and that the rights which the law states are possessed by every member of the community can, as a matter of practical reality, be exercised by those who are so disadvantaged. The instructions create, of course, purely internal standards of conduct for members of the Police Force and cannot be attributed the force of law. Nevertheless, they do indicate the level of care which must, if the integrity of the system is to be maintained, be taken in such situations.⁴⁵

6.26 Without making any finding in relation to voluntariness (which was not argued before the Court) the Court of Criminal Appeal held that:

[b]y reason of his disability the applicant was in a position of disadvantage compared with other members of the community when being interviewed by the police. On the evidence, he was effectively left without the assistance necessary if that disadvantage was to be addressed. The lost opportunity of a private conversation with the independent third person, cannot now be remedied. Understandably, because of the way the voir dire and its attendant submissions were conducted the judge, in our view, did not recognise the significance of this lost opportunity when considering the fairness of admitting the confessional evidence. His Honour accordingly failed to take into account a factor we consider was vital to the proper exercise of his discretion and evidence which was likely to have had a significant bearing on the outcome of the trial was wrongly admitted. This ground is made out and the verdict of the jury must be set aside.⁴⁶

6.27 In Victoria the introduction of these instructions was supplemented by a training program for both police and the ITPs. Police training is discussed in Chapter 4, above. There is presently a part time co-ordinator for the program based at the Office of the Public Advocate in Victoria, responsible for locating, recruiting and training ITPs throughout the State. Originally the package was presented to ITPs in a two hour session, but this was not found to be sufficient. The training now usually consists of two evening sessions of two hours each, or a one-day program on weekends.⁴⁷ There are currently approximately 215 ITPs operating in Victoria, though a new recruitment is due to start in September 1993. They are all volunteers and include Bail Justices, Justices of the Peace or service providers.

6.28 There have been concerns articulated about the operation of this program, however. Namely:

• It has been stated, for example that the term “facilitate communication” is ambiguous and could be interpreted in three ways:

(i) as creating a conducive atmosphere by the mere presence of a supportive person, or (ii) as playing a more direct and intervening role in communication as would an interpreter or communication aide, or (iii) some combination of (i) and (ii). It is understood that the term is designed to include a combination of functions, that is (iii), the new Police Standing Orders having been modelled on procedures adopted in the United Kingdom.

...

It would therefore seem reasonably clear that the role of the third person in the Victoria Police Standing Orders is twofold, (i) to actively interpret communication, and (ii) to provide support. It might be preferable if the Standing Orders indicated more clearly that it is this combination of roles that is required. Whether the combination of roles will be successful, however, remains to be seen. In many respects they represent distinctly different roles and functions that require different responsibilities and skills.⁴⁸

• Unlike the position with respect to lawyer-client communications, discussions between a suspect and the ITP are not privileged. There are a number of recent Victorian cases where the ITP has been called to give evidence, and this may operate to the detriment of the person questioned. ITPs have been, or may in future cases be, questioned about the fairness of the interview conducted or the content of discussions between themselves and the suspect before the commencement of the police interview.⁴⁹ Similarly, in England:



[t]here have been cases where social workers acting as appropriate adults have given information to the police. The British Association of Social Workers (BASW) and the Association of Directors of Social Services (ADSS) both take the view that social workers have a duty to assist in the prevention and detection of crime and are therefore justified in passing such information on to the police and, if asked, should certainly pass it on.⁵⁰

• It has been suggested that the role of the ITP may affect the role of the police discretion. Depending on one’s perspective, reducing police discretionary powers may have both advantages or disadvantages. It may have particular advantages for victims, see Chapter 9, below. In Victoria, in interviews with police officers:



Three members [of the Police Force] noted the creation of the ITP program had a significant impact on their discretionary powers, their presence pushing members into a formal investigation of matters previously dealt with summarily. In one case detailed by a member, a minor altercation occurred in a local institution between two residents. At the insistence of two ITPs (also Community Visitors) two members spent hours investigating only to reach the same conclusion they made on arrival - that charges were unable to be laid and the matter should be dealt with through civil proceedings. The member, although anxious to appear reasonable, was clearly frustrated by his experience.⁵¹

• The other danger of an ITP program is that it will create the appearance of fairness without the actuality. As discussed above, there is concern, for example that the ITP procedure will become a substitute for a right to legal assistance and will ultimately lead to a second rate justice.

6.29 The Anunga Rules. The “Anunga Rules” were introduced in 1976 by the Northern Territory Supreme Court to provide guidelines to police interrogating Aborigines.⁵² Failure to follow these rules can result in any statement being excluded from the evidence presented at the trial. The rules require the presence of a friend of the accused during police questioning and for the careful administration of the caution. In Victorian courts, it has also been suggested that the “Anunga Rules” extend to situations where a suspect is under some serious disadvantage, including “some intellectual or other handicap”.⁵³ The Victorian Court of Criminal Appeal continued, however, that:

[w]hilst the particular guidelines set out in Anunga’s case may not be appropriate in dealing with other disadvantaged persons, directed as they are to the difficulties which may be confronted by members of a particular group, nevertheless, in situations where a police officer becomes aware of the reasonable possibility that a person who he desires to interview may be suffering under some such disadvantage or disability, it is to be expected that particular care will be taken in relation to any such questioning. In circumstances where doubt exists as to the suspect’s knowledge of his rights under the law, or as to his ability to respond adequately to questions asked of him or as to his capacity to choose freely to speak or remain silent, a failure to take reasonable steps to ensure that such knowledge or capacity exists may provide part of the basis for a finding of unfairness and result in the discretionary exclusion of any statement made.⁵⁴

6.30 The Anunga Rules have been interpreted as providing a broader protection than that found in the requirement for an ITP, in making a distinction:

between the two major roles that may be required of third or extra persons in police interviews. With regard to the latter, the Anunga Rules distinguish what can be termed an active, “interpretive” role, from a more passive, “supportive” role. This is achieved by introducing a third and fourth person into the interview, one to interpret, the other to provide support. The Police Standing Orders, on the other hand, essentially propose that a single or third person perform both the “interpretive” and “supportive” roles to “facilitate communication”.⁵⁵

6.31 The question arises whether both these roles are necessary, and, if so, whether they can both be filled by the same person. Both the New South Wales and the Victorian instructions only envisage that there be one extra person at the interview (though not excluding the presence of a lawyer). Obviously the more people required, the greater the logistical difficulties in obtaining such people at every interview. Police are also likely to oppose the presence of a number of people in an interview. The Anunga Rules are not binding in New South Wales.

Conclusions: presence of a third person at police interviews

6.32 The Commission believes that no interrogation of a person with an intellectual disability should take place unless a third person is present. Taking into account all the concerns referred to above, the Commission proposes that the role of that person should be to support the suspect with an intellectual disability, but not to be their lawyer or the guarantor of their rights. It is unrealistic (and dangerous) to expect a person without legal training to fulfil such a role. The person should be clearly attending for the suspect’s benefit, rather than to assist the police, and should not be a neutral or passive observer of the proceedings. The third party should be known as a “Support Person”, reflecting the role envisaged by the Commission for that person. The Commission suggests that the terms “appropriate adult”, with its implications of a child-like role for people with an intellectual disability, and “independent third person”, with its implications of a neutral and passive role, should be avoided, though the Support Person should be at least 18 years of age.

6.33 The Support Person should play a limited “interpretive” role if necessary, for example, assisting to explain the police caution, or suggesting the police rephrase a question if the suspect is having difficulties, or explaining what the suspect means by a particular word. Of course, the police should try to confirm such information provided by the Support Person with the suspect. The Support Person should not be seen as an interpreter in the sense that the word is used for people who do not speak English. In most cases the police should be able to directly address their questions to the suspect.

6.34 The Support Person should preferably be a person chosen by the suspect with an intellectual disability. It is anticipated that such a person will know the suspect well, whether as a family member, guardian, carer or friend (though these categories are not exclusive), and have the trust of the suspect, and be able to communicate easily with that person. The Support Person should not be a police officer or anyone likely to be involved in the alleged offence; for example, as a witness. If the chosen person is unavailable, unwilling to assist, or inappropriate due to their potential involvement in the investigation, or the suspect cannot nominate a person, police should have access to a list of people with experience with the special needs of people with an intellectual disability in their area who would be prepared to fulfil such a role from time to time.

6.35 The development of such a list will take some consideration but the Commission believes that it is crucial that such people be available out of office hours and are easily accessible to the police. For example, ideally police would not have to make numerous telephone calls, but there would be a single telephone number for the police to ring which could either inform the police of the available people or, out of office hours, divert the call to the person on duty. It is meaningless to have such a requirement for police if it is almost impossible to find a person to fulfil it. The Commission seeks further submissions as to the logistics of developing such a list and the organisations which should be involved in its operation. Different procedures may be appropriate for both city and country areas.

6.36 The Commission makes no proposals at this stage about the specific training which may need to be undertaken for such Support Persons. It will be impossible for most Support Persons, as friends or family, to be so trained and it would be inappropriate to create a distinction between “trained” and “untrained” Support Persons. However, a pamphlet or other information, for example a short video, should be prepared setting out clearly the role of the Support Person. The information should be given to the Support Person before the commencement of the interview.

6.37 The Commission also believes that there should be additional protections in relation to the role of the Support Person, for example:

• the presence of a Support Person should not be seen as a substitute for the right of the person being questioned to have a lawyer present;
• the Support Person should have an opportunity to speak to the suspect in private before the commencement of the interview, as is presently the case in Victoria;
• the Support Person should remain present for all aspects of the police interview, including fingerprinting, charging, bail and other procedures. If an intimate search is required the Support Person should be of the same sex as the suspect;
• all matters in relation to the attendance of a Support Person, including the appropriate contact telephone numbers and names of organisations (particularly local services), should be clearly set out in police guidelines, preferably in a Code of Practice; and
• the Support Person should be a competent but not compellable witness in respect of any hearing relating to the content and conduct of the interview, to overcome the possibility of the Support Person being called to give evidence against the suspect.

The Commission seeks further comments and submissions about the further implications of the role of the Support Person and any additional appropriate safeguards.

Attendance of a lawyer

6.38 Despite the benefits of a Support Person, the Commission believes, for the reasons discussed above, that such a person is inappropriate and insufficient to protect the legal rights of a person with an intellectual disability. As well, due to the difficulties faced by police when interviewing a person with an intellectual disability, it may be in the interests of the police to ensure, to the extent that they are able, that any evidence obtained is not excluded by a court for reason of involuntariness or unfairness to the accused. It has been suggested to the Commission that a lawyer, preferably with experience with people with disabilities, must also be present at police interviews. Realistically, there may be few experienced lawyers available in this area. The American Bar Association’s “Model Adult Act”, for example, does not refer to the need for a third person but rather states that a suspect “shall not be interrogated in the absence of counsel when there is reason to believe that he or she has a developmental disability.” This provision appears to be based on the perception that the usual police warning will be insufficient to ensure a valid waiver of the right to remain silent during police questioning.⁵⁶

6.39 In the Police Powers Report, the Commission discussed the importance of a true “right” (that is, an enforceable right rather than an ideal or a discretionary safeguard) to legal assistance during police questioning and made recommendations designed to increase the accessibility of such advice.⁵⁷ According to that Report:

The purpose of the right to legal advice whilst in custody is to ensure that the arrested person is treated fairly by the criminal process. The recognition of such a right not only helps to ensure that the right to silence and the privilege against self incrimination receive due attention, but also means that if a statement is made by the arrested person it cannot be later objected to on the ground that it was involuntarily made or unfairly obtained.⁵⁸

6.40 The Commission, therefore, recommended that a person must not only be informed of the right to communicate or attempt to communicate with a lawyer but must also “be given the opportunity to meaningfully exercise that right”.⁵⁹ The Commission also recommended that a 24-hour duty solicitor scheme be established.⁶⁰ For a person with an intellectual disability, more may be required. Not only are such persons less likely to understand the right to (or the importance of) a lawyer, assuming they are informed of the right, but they are less likely to be able to exercise that right in a meaningful way. The Commission suggests that this protection needs to be ensured for a person with an intellectual disability by requiring that a lawyer be present for police questioning. The Commission suspects that the police are likely to oppose such a proposal, due to a fear that the requirement of the presence of a lawyer will hinder or unduly delay the investigation. It is worth noting that a survey of police officers in England found that the majority (72%) of police officers “reported that a legal adviser’s presence did not affect - at all or very much - the way they conducted police interviews”.⁶¹ The Commission seeks further information about the advantages and disadvantages of this proposal.

BREACH OF GUIDELINES IN RELATION TO POLICE QUESTIONING

6.41 As raised in Chapter 2, there remains the issue of a sanction if the police guidelines (whether the Police Commissioner’s Instructions or the proposed Code of Practice) are not followed. In relation to people with an intellectual disability police may be tempted to breach the guidelines to obtain a confession. According to Associate Professor Susan Hayes:

As the situation stands if police breach the guidelines and obtain a confessional statement, there is extensive legal argument about the admissibility of the confession and as likely as not, the confession will be admitted as evidence. Therefore the police are willing to take the risk that the confession will be admitted as evidence, no matter how it is obtained.⁶²

6.42 Hayes and Craddock have commented that perhaps the exclusion of evidence is the only solution:

Whatever the makeup of the [New South Wales Law Reform Commission’s] reform package, it will not be likely to effect real change unless it grapples with the issue of the consequences of breach of the law by police. Such has been the level of subverting of the existing rules that it must be accepted that forms of discipline other than the exclusion of illegally obtained evidence do not work. Whilst the courts may not be the most appropriate body for regulating police actions, the reality is that police are more likely to refrain from overstepping the mark when it is apparent that doing so will result in the exclusion of evidence.⁶³

6.43 The Legal Aid Commission has commented:

To some degree the court can act as a safeguard to unfair questioning by police, but the wide discretion which magistrates and judges have to exclude unfairly obtained evidence means that much relies on the understanding of intellectual disability that the judicial officer has and the information provided to the court in that regard.⁶⁴

The New South Wales Council for Intellectual Disability argued that the consequences of non-compliance with the Police Commissioner’s Instructions should be more serious; for example, the automatic exclusion of evidence so obtained and disciplinary action by superiors.⁶⁵ The Commission refers to proposal 4 and the discussion in Chapter 2, above, on this issue.

THE POLICE CAUTION AND THE RIGHT TO SILENCE

6.44 The police caution refers to one of the most important safeguards for people being questioned by the police, namely the right to silence. The merits or otherwise of this right have been canvassed extensively elsewhere and the Commission has stated its strong support for the retention of the right.⁶⁶ This right may be of more than usual importance for the person with an intellectual disability, due to the added disadvantages they face in police questioning. One commentator has suggested that, in his opinion:

the problems associated with police interrogation of suspects who have an intellectual disability are so considerable that a solicitor should not lightly advise the client to participate.⁶⁷

[a]n intellectually disabled suspect may need more than others to be able to rely upon the right to silence. Such a person may be unable to cope with questioning which is designed to obtain a confession or incriminating material rather than to search for the answers which will exculpate the suspect. The intellectually disabled accused may be simply too inarticulate or too overwrought to ensure that the innocent explanation is made clear in order to balance or outweigh the incriminating circumstances. Having time to think, take advice and give a coherent account should not be equated necessarily with a desire to fabricate a false story.⁶⁸

6.46 The purpose of the caution is to remind suspects of their legal rights in this regard. The caution in New South Wales does not refer, as is commonly believed, to the right to a lawyer or to make a telephone call (as is the case in some American states). It was suggested in the Issues Paper that the mere reading of the police caution to a person with an intellectual disability may be an empty exercise and there should be a real attempt to ensure genuine understanding. In the Police Powers Report the Commission recommended that the requirement of a caution be formalised in legislation and stated that:

the caution must be given to the person in custody in a language which he or she understands before any statement is taken or questioning is commenced. (This applies in respect of deaf and hearing impaired persons and others with profound communication difficulties as well as those with limited comprehension of English.) [Recommendation 2.5.2 - emphasis added]

By analogy there must be an attempt to administer the caution to a person with an intellectual disability in terms which he or she will understand. However, as the Australian Law Reform Commission has commented:

... Any system which pays lip-service to the existence of rights yet does nothing to ensure that they are known and understood - and indeed which may depend on their not being understood - is a system that discriminates against the weak, the unintelligent and the uncomprehending in favour of the strong-willed, the smart and the linguistically competent.⁶⁹

6.47 According to the Police Commissioner’s Instructions, the caution to be used before questioning a person suspected of committing a crime is as follows:

I am going to ask you certain questions. You are not obliged to answer unless you wish to do so, but whatever you say may be used in evidence. Do you understand that?⁷⁰

The caution ends with a question inviting a “yes” or “no” response, which could invite a person with an intellectual disability to answer “yes” without actually comprehending its meaning.⁷¹ In the Commission’s own consultations some people with an intellectual disability, when read the police caution, nodded or immediately answered “yes” even though they had been told just to listen and not to respond at this stage.⁷²

6.48 A person with even a mild level of intellectual disability may have difficulty in fully understanding this caution.⁷³ Words such as “obliged” may not be understood and other phrases, such as “may be used in evidence”, may be understood literally, but not their intended meaning and the consequences.⁷⁴ At the Commission’s consultations, when asked to explain what they understood by the caution, and the meaning of the word “evidence”, the participants gave answers which showed clearly some of the possible misunderstandings.⁷⁵ The answers given to the question “Do you think some people would answer “yes” to this question even if they did not understand it? Why?” were particularly revealing:

A number of participants thought that some people, including themselves (“yes, I would say yes”) would sometimes answer “yes” but usually said that they should not do this ... Others thought people would be too scared to say “no”: “the police might not believe you ... you are scared to tell the truth”, or be influenced by the situation, for example:

• “The police might keep repeating the question until the person gets the idea to say ‘yes’ “;
• “They might be afraid to say ‘no’ in case they think that they are silly”;
• “They might be in a hurry to get away ... out of the police station”; and
• “If they are not sure, the volume of the policeman’s voice may convince them to say ‘yes’ ... without really understanding.”⁷⁶

6.49 It also has been noted that:

In Anunga, Forster J added that some Aboriginal people find the standard caution quite bewildering even if they understand that they do not have to answer questions. After all, if they do not have to answer questions, then why would someone in a position of authority be asking them. This may also be a difficult concept to explain to intellectually disabled people and highlights the need for a communication aide or specially trained interviewer or communication aide and/or supportive person to facilitate understanding of this concept.⁷⁷

6.50 The participants in the Commission’s consultations made a number of suggestions about how the police could check that the person has understood the caution, for example checking with the third person present or asking the person being interviewed “would you like me to explain it again” or “explaining it in different or simpler words and then asking them if they really understand it and taking time to do this.”⁷⁸

6.51 One police officer with considerable experience in dealing with people with an intellectual disability, Senior Constable Pedro Fernandez, commented that in his experience no suspect with an intellectual disability has been able to understand the standard caution. He did not believe that a standard caution or record of interview could be created that would be appropriate for all people with an intellectual disability, due to their varying communication abilities.⁷⁹ He continued:

The only way to achieve a proper balance of justice, yet record an admission by an offender is to simplify the caution to suit each individual to the point where it satisfies the court or jury.⁸⁰

6.52 It is also important to recognise that a person with an intellectual disability may not only need to have the right to silence explained to him or her but also may need to be reminded regularly during the course of the interview of that right. This may lead to some conflict between the police and the lawyer involved.⁸¹ One person who has acted as an “Independent Third Person” in Victoria commented in this regard that:

I am quite sure that five minutes later there wouldn’t be five of the people that I have sat with that could fully explain it [the caution] back to me because they simply don’t have the retention. At the point you explain it to them ... I am one hundred per cent sure that all of them understood ... But none of them had the power to recall five minutes later ...⁸²

The Commission, therefore, believes that guidelines will need to be developed for the repetition of the caution at appropriate times for the person with an intellectual disability.

Admissibility

6.53 As discussed in paras 6.41-6.43, guidelines in relation to the administering of the caution will be futile if there is no sanction if the guidelines are not followed. Similarly, guidelines naturally will be ineffective if the suspect did not have the mental capacity to understand the concept of the right to silence. Associate Professor Susan Hayes has contrasted the New South Wales situation with that in the United States where one court has held that:

[w]hen expert testimony indicates that a defendant could have intelligently understood the waiver of his constitutional rights only if it were simply and clearly explained, the record must expressly and specifically establish that such an explanation was given.⁸³

Professor Hayes commented that the recording or documenting in relation to the giving of the police caution of “the elaborated explanation and the client’s responses as part of the record of interview gets around the vague explanation often proffered by police that they ‘explained it to him in simpler terms, and he understood’.”⁸⁴

6.54 The caution is likely to have more significance than before if cl 190 of the Evidence Bill 1993 (NSW) is enacted into legislation. It reads as follows:

(1) An investigating official must not in the course of official questioning ask a person who the investigating official has reasonable grounds to suspect has committed an offence (the “suspect”) a question unless the investigating official has cautioned the suspect.

(2) The caution must be to the effect that, except so far as the suspect is required by law to give specified information to the investigating official, the suspect need not say or do anything, or answer any questions, in connection with the investigation, but that anything the suspect does say or do may be used in evidence.

(3) The caution must be given in, or translated into, a language in which the suspect is able to communicate with reasonable fluency, but need not be given in writing.

6.55 In relation to the issue of the suspect’s understanding, a Discussion Paper prepared by the National Council on Intellectual Disability for the Human Rights and Equal Opportunity Commission stated:

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 v Langdren (New South Wales Supreme Court, per Mathews 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.⁸⁵

6.56 In the Issues Paper it was suggested that a similar problem of understanding arises in relation to the standard questions which the police are required to ask at the end of an interview where a statement has been taken to ensure that the suspect “adopts” the document (as required by the common law before the record can be tendered by the prosecution) as an accurate record. The Police Commissioner’s Instructions⁸⁶ use the wording of the Crimes Act 1900 (NSW) s 410, and include such questions as:

Q. Were you cautioned before making this statement that you were not obliged to make this statement unless you so desired, as anything you did say may be taken down in writing and may be used in evidence?

The use of long or complex sentence structures and the conceptual nature of the language used means that such questions are unlikely to be understood by a person with an intellectual disability. Such questions may well elicit a “yes” or “no” answer from the suspect, without indicating his or her lack of comprehension.⁸⁷ The Commission believes that such questions will need to be asked in language appropriate for the person with an intellectual disability.

6.57 The Police Commissioner’s Instructions provide that the suspect have the opportunity to read the record of interview or to have it read aloud.⁸⁸ Mark Ierace has commented that:

[a] suspect with an intellectual disability may have considerable difficulty in verifying the document’s contents. If he or she has a poor short-term memory, reading it or listening to it read aloud may not ensure that the document is an accurate and complete record of all that was said.⁸⁹

Ierace then made the following recommendations in relation to the role of the lawyer present at such an interview:

The lawyer should take particular care that the record is accurate, either by observing the contemporaneous recording on the typewriter, or by making an independent record of all that is said. Further, the lawyer should ensure that the record of interview is read back slowly, and that the suspect is frequently invited to comment on whether or not it is correct. Police officers are often reluctant to depart from standard procedures, so if they insist on asking the ‘adoption’ questions in the usual form rather than simplifying the language, the lawyer should at the first opportunity ask the client the same questions in an appropriate form, and record the answers.⁹⁰

This difficulties involved in reading back the record of interview to a suspect will be largely overcome by the electronic recording of interviews, which is discussed later in this chapter.

Conclusions: the police caution

6.58 The Commission suggests that it may be impossible to draft a standard caution which can be understood by all people with an intellectual disability. Mark Ierace, for example, has suggested an alternative caution for an adult in the mild to moderately disabled range. He commented:

It is a lengthy and cumbersome alternative. ... The objective of the wording is to communicate all the elements of the formal caution and to balance the tendency of the situation to discourage an intellectually disabled person from refusing to answer questions.⁹¹

His suggested procedure for a solicitor explaining the caution to his or her client is as follows:

At each step the client should be asked to explain back in his or her own words what has been said. If necessary, explain what a court is, and what happens at court with people charged with an offence. Describe the alleged offence, so far as the police have divulged.

‘These police officers think you did (the alleged offence).’

‘They want to ask you some questions.’

‘The questions will be about what happened at (place of alleged offence) at (time of alleged offence).’

‘You don’t have to answer their questions.’

‘If you don’t want to answer their questions, that’s all right.’

‘If you do answer their questions, they’re going to write down (or type) [or record] everything that’s said.’

‘Then they’re going to make their minds up about whether you did it.’

‘If they think you did it, you will have to go to the court.’

‘These police officers will go to the court too. They will tell the court everything you said.’

‘The court will have to make up its mind about if you did (the offence).’

‘When the court is making up its mind, it’s going to know what you tell these police officers.’

‘That might help the court make up its mind about whether you did (the alleged offence).’

‘If you don’t want to say anything at all, these police officers won’t mind.’

‘If you do answer their questions, you can still change your mind and stop answering them. Just because they ask you a question, you don’t have to answer it.’⁹²

6.59 A number of alternatives have been suggested to ensure that a person understands the police caution, for example:

(a) The police officer should ask the suspect to explain the caution back in his or her own words; or

(b) A final question should be added where the answer “no” is required to indicate understanding of the caution, for example: “Do you have to answer any of the questions the police ask you?” This is intended to overcome the tendency to answer “yes” to any question asked by an authority figure;⁹³ or

(c) A simplified version of the caution should be used,⁹⁴ for example: “The police want to ask you questions. You do not have to answer them. If you do, the police will write them down. Later on, whatever you said can be read out in court and used to help the court show you broke the law”;⁹⁵ or

(d) an alternative form of the caution is required, breaking it down into a simple question/answer format, as set out above.

6.60 Although the Commission believes that police should take care to ensure that a person understands the caution, there are dangers in the use of the above methods: the fact that a person with an intellectual disability answers “No” to the question “Do you have to answer my questions?” does not mean that the person has understood the concept of the right to silence. The Commission seeks further submissions in this regard but proposes that police officers should be aware that, where they suspect a person has an intellectual disability, the person may be unable to understand the concept of the right to silence which underlies the requirement of the police caution. They should be aware that a confession obtained in such a case may be later held to be inadmissible on the grounds of voluntariness or unfairness. The issue of inability to understand the caution is considered further in relation to confessions, below.

TENTATIVE PROPOSALS FOR REFORM: POLICE QUESTIONING

19. Police must use appropriate methods of dealing with suspects with an intellectual disability. Police should be aware of the special susceptibility of people with an intellectual disability to authority figures and of their tendency to give answers that they believe are expected of them. Police also should be aware of the difficulties people with an intellectual disability may have with details such as times, dates and numbers. Leading or repetitive questions should be avoided and an attempt made to pitch the language and concepts used at a level which will be understood. These matters should be clearly spelled out in police guidelines, preferably in a Code of Practice.

The police caution

20. Where a police officer suspects that a person has an intellectual disability, the officer should be aware that the person may be unable to understand the concept of the right to silence which underlies the requirement of the police caution. The officer should be aware that a confession obtained in such a case may be later held to be inadmissible on the grounds of voluntariness or unfairness.




Presence of a lawyer

21. No interrogation of a suspect with an intellectual disability should take place unless a lawyer representing the person is present.

Presence of a “Support Person”

22. No interrogation of a suspect with an intellectual disability should take place unless a third party is present. (This is exclusive of the legal adviser referred to in the preceding proposal.) The name, role and identity for that person are as follows:

• Name. The third person should be known as a “Support Person”. This name reflects the role envisaged by the Commission for that person. The Commission suggests that the terms “appropriate adult”, with its implications of a child-like role for people with an intellectual disability, and “independent third person”, with its implications of a neutral and passive role, should be avoided.
• Role. The role of the Support Person is, as its name suggests, to be supportive of the suspect with an intellectual disability, but not to be their lawyer or the guarantor of their rights. It is unrealistic (and dangerous) to expect a person without legal training to fulfil such a role. The Support Person clearly should be attending for the suspect’s benefit, rather than to assist the police, and should not be a neutral or passive observer of the proceedings. The Support Person should play a limited “interpretive” role if necessary; for example, assisting to explain the police caution, or suggesting the police rephrase a question if the suspect is having difficulties, or explaining what the suspect means by a particular word or phrase.
• Identity. The Support Person preferably should be a person (above the age of 18 years) requested by the suspect with an intellectual disability. It is anticipated that such a person will know the suspect well, whether as a family member, guardian, carer or friend (though these categories are not exclusive) and have the trust of the suspect. The Support Person should be able to communicate easily with, and be able to assist, that person. The Support Person should not be a police officer or anyone likely to be involved in the alleged offence; for example, as a witness. If the chosen person is unavailable, unwilling to assist, or inappropriate due to their potential involvement in the investigation, or the suspect cannot nominate a person, police should have access to a list of people with experience with the special needs of people with an intellectual disability in their area who would be prepared to fulfil such a role from time to time.



23. The Support Person:


• should have an opportunity to speak privately with the suspect before the interview commences;
• should remain present for all aspects of the police interview, including cautioning, charging, fingerprinting, bail and other procedures; and
• if an intimate search is required, should be of the same sex as the suspect.



The presence (or absence) of the Support Person in relation to each of these procedures should be recorded, by the Custody Officer.




24. All matters in relation to the attendance of a Support Person, including the appropriate contact telephone numbers and names of organisations (particularly local services), should be set out clearly in police guidelines, preferably in a Code of Practice.




25. A pamphlet or other material (such as a video) should be prepared which sets out all relevant information about the role of the Support Person. This material should be provided to the Support Person before the commencement of any interrogation.

26. The Support Person should be a competent but not compellable witness in respect of any hearing relating to the content and conduct of the interview, to overcome the possibility of the Support Person being called to give evidence against the suspect.

Repetition of the caution and the adoption of the statement

27. People with an intellectual disability who are capable of understanding the concepts involved in the police caution should be reminded periodically of the caution, particularly after any substantial break in the questioning.

28. The standard “adoption” questions asked at the end of an interview should be asked in language appropriate to the person with an intellectual disability. If the interview is not electronically recorded, the person also should be given the opportunity of having their record of interview read back to them slowly, and should be asked frequently whether it is correct.

CONFESSIONS / ADMISSIONS

6.61 As discussed above, the explanation of the caution would not, in itself, be sufficient to protect the person with an intellectual disability. The Legal Aid Commission of NSW stated that:

... it is often the case that an offender denies ever having received such a caution or they simply did not understand its importance and therefore forgot the fact of the caution because of the overall stress and anxiety of being arrested.⁹⁶

6.62 It was suggested in the Issues Paper that police should be aware of the prevalence of unreliable confessions from people with an intellectual disability for a number of reasons. These include: being overly impressed by authority figures and anxious to please; failing to understand the questions asked or the consequences of their “confession”; not wishing to appear stupid; or wishing to conclude the matter as quickly as possible.⁹⁷ The High Court has made similar warnings, for example in R v Lee,⁹⁸ that:

[t]he uneducated - perhaps semi-illiterate - man who has a “record” and is suspected of some offence may be practically helpless in the hands of an over-zealous police officer. The latter may be honest and sincere, but his position of superiority is so great and so over-powering that a “statement” may be “taken” which seems very damning but which is really very unreliable.

Such warnings will have even greater force for a person with an intellectual disability.

6.63 In Instruction 37, headed “Doubtful Confessions”, the Police Commissioner’s Instructions also state that:

[m]any people, from psychopathic or other causes, confess to crimes they did not commit, therefore, closely examine confessions before accepting them as statements of fact.

Before charging a person with a criminal offence on the basis of a confession, carefully investigate further to adduce independent corroborative evidence of the complicity of that person in the crime.

If you cannot find such corroboration, refer the matter to a senior officer for review, preferably one with detective experience, before preferring a charge.

6.64 In response to this Instruction, Hayes and Craddock have commented that:

[e]xperience shows, however, that charges are quite frequently laid against persons who are mentally abnormal or intellectually disabled, entirely on the basis of their own admissions. The breach of the instruction is easily explained by an assertion that the confession did not seem doubtful. The instruction lacks any guidance as to the circumstances which might suggest that the confession is “doubtful”, and as indicated before, there is no sanction for breach.⁹⁹

Other submissions to the Commission have expressed concern that people with an intellectual disability may be seen as an easy target for police “clear-up rates” and that there are examples of alleged confessional statements containing language levels well beyond that person’s expertise.

Consideration of confessions by the courts

6.65 There remains the question of how (alleged) confessions by people with an intellectual disability should be treated by the courts. This issue has already been referred to in Chapter 2, above, in relation to questioning which is not carried out in accordance with the NSW Police Commissioner’s Instructions. Australian courts have tended to be unwilling to use the rules of criminal procedure and their discretion to exclude probative evidence to ensure police compliance with the law governing investigations or to enforce police discipline.¹⁰⁰

6.66 Even where the police have scrupulously complied with all relevant protections, there remains the question of whether the confession should be excluded on other grounds. As discussed, the court must exclude involuntary confessions, and has the discretion to exclude unfair or overly prejudicial evidence. These discretions have been exercised in relation to statements or confessions by persons with mental disabilities which the trial judge believes are fabricated or unreliable,¹⁰¹ and are now contained in the Evidence Bill 1993 (NSW). The principles in relation to the consideration of confessions by people with an intellectual disability are set out by the NSW Court of Criminal Appeal in R v Parker,¹⁰² which were summarised in the headnote as follows:

The fact that an accused person suffered some unsoundness of mind or psychiatric disorder at the time that a confession was allegedly obtained from the person:

(a) does not necessarily make evidence of the admission inadmissible;

(b) may be relevant to whether evidence of the confession is inadmissible on the ground that the confession was not made in exercise of free choice or was made under duress;

(c) may be relevant to whether the trial judge should in his discretion exclude the evidence;

(d) may be relevant to the weight to be given to the confession and to whether a verdict founded on it is unsafe and unsatisfactory;

(e) should lead a trial judge in his summing-up to draw to the attention of the jury the possible danger of basing a conviction on such evidence unless it is confirmed by other evidence.

6.67 It is also worth noting that it has been held in New South Wales that the defendant’s lack of awareness of his right to silence did not justify, on its own, the rejection of a confession on the ground that it was not voluntary.¹⁰³ However, recently in the District Court of New South Wales a statement which has relied on as a confession was excluded on the ground that it was “not made voluntarily within the meaning of the law as now laid down, that is that they were made in the exercise of a free choice to speak or remain silent.” Judge Dent made this finding on the basis of expert evidence that the accused did not have sufficient verbal intelligence to understand the right to remain silent.¹⁰⁴ This issue also arose in the Queensland Court of Appeal case of R v W,¹⁰⁵ which is discussed in Chapter 2, above. In that case, in relation to voluntariness, Dowsett J commented that:

once it is shown that the accused have defective understandings of verbal communications, it becomes difficult to assess to what extent any so called admissions can be said to be voluntary in the sense that the various warnings must be of doubtful value. Further, one is left in serious doubt as to what reliance can be placed upon such confessions if they are admitted.¹⁰⁶

6.68 In this case, most of the accused were children and all of the accused were of Aboriginal descent. The children did not have an intellectual disability but their level of comprehension of spoken English was lower than their chronological ages.¹⁰⁷ The confessions were excluded on the grounds that they were not voluntary, having regard to the circumstances in which they were said to be made, and the mental capacities and ages of the accused. The fact that a proper warning was not given was held to affect the voluntariness of a confession, “particularly in the case of children and other people not experienced in our social and legal system.”¹⁰⁸ Similar comments may be applicable by analogy for the accused person with an intellectual disability.

Alternative protections

6.69 The National Council on Intellectual Disability has questioned whether the existing protections go far enough:

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.¹⁰⁹

6.70 The American Bar Association’s standards provide for the admission of expert evidence in relation to the effect of a person’s intellectual disability on the reliability and voluntariness of their statement and the validity of any waiver by that person of their rights before giving the statement.¹¹⁰ There is also support for the admissibility of expert evidence in relation to the reliability of such a confession in Australia.¹¹¹

6.71 In England the weight given to a confession is affected by the absence or presence of an “appropriate adult” in police questioning. According to s 77 of the Police and Criminal Evidence Act 1984 (UK):

(1) Without prejudice to the general duty of the court at a trial on indictment to direct the jury on any matter on which it appears to the court appropriate to do so, where at such a trial-

(a) the case against the accused depends wholly or substantially on a confession by him; and

(b) the court is satisfied-


(i) that he is mentally handicapped; and

(ii) that the confession was not made in the presence of an independent person,

the court shall warn the jury that there is special need for caution before convicting the accused in reliance on the confession, and shall explain that the need arises because of the circumstances mentioned in paragraphs (a) and (b) above.

The Evidence Bill 1993 (NSW) also provides, at cl 164, that a judge may warn a jury about the unreliability of certain evidence, including “evidence the reliability of which may be affected by age, ill-health (whether physical or mental), injury or the like”, though it does not specifically refer to intellectual disability.

6.72 The Commission believes that the courts should use particular care in relation to confessions made by a person with an intellectual disability, particularly where that confession is not corroborated. Where a confession is admitted into evidence the court should issue a warning to the jury of the danger of convicting on the basis of the confession alone where the person has an intellectual disability. The Commission seeks further submissions about what further protections may be appropriate.

TENTATIVE PROPOSAL FOR REFORM: CONFESSIONS

29. In light of the recognised vulnerability of people with an intellectual disability, the court should take extra care to determine whether the statement was truly “voluntary”, and to determine whether a voluntary admission should nevertheless be excluded in the exercise of the court’s discretion on the basis of unfairness or prejudice to the accused. Expert evidence is likely to be relevant on this point. Where a confession is admitted into evidence, a statutory provision should require the court to issue a warning to the jury of the danger of convicting on the basis of the confession alone where the person has an intellectual disability, because of doubts about the reliability of such material.

ELECTRONIC RECORDING OF POLICE INTERVIEWS

Advantages

6.73 The new system of electronic recording of police interviews may be particularly useful in relation to people with an intellectual disability and may reveal, far more clearly than through a transcript, the nature of the person’s response, including non-verbal responses and level of understanding. The difficulty of “reading back” a statement to a person with low or no literacy skills is also avoided. It has been stated that:

[t]he need for tape or similar recording of interviews would seem essential so that a permanent and exact account of the interview could be accessed when required. Such recording in combination with later analysis might help to eliminate some of the problems associated with interpreting interviews where communication may be a problem. As recommended for interviews with children, the interpretation of responses by the police as a record of interview would also not be advisable for interviews with the intellectually disabled given the special expertise that may be required in interpretation of them.¹¹²

6.74 The Legal Aid Commission of NSW strongly supported the use of electronically-recorded or videotaped interviews for people with an intellectual disability.¹¹³ The New South Wales Council for Intellectual Disability also recommended that entire interviews be taped, but did not see this as a complete solution as there was still the possibility of misinterpretation of the actions or reactions of the person with an intellectual disability being interviewed by later viewers of the tape.¹¹⁴

6.75 All interviews of people suspected of committing a Commonwealth crime must be tape recorded.¹¹⁵ In New South Wales the changes in relation to electronic recording of police interviews, which were foreshadowed in the Police Powers Report,¹¹⁶ have largely been implemented. The system currently in use is known as the ERISP (Electronic Recording of Interviews with Suspected Persons) system. Over the last two to three years the purpose-built recording machines have been installed at over 300 locations throughout New South Wales. These machines simultaneously record one videotape and three audio tapes. The interviewing officer merely has to switch the machine on and off; the camera does not require manual operation. Date and time coding on the tapes and sealing procedures minimise the risk of tampering with the tapes. The suspect also receives one copy of the audio tape for his or her own record. Portable machines (which record three audio tapes) are also available. In addition, a “field” video team can be requested to record “walk through” interviews outside the police station; for example, at the scene of the crime. All interviews of suspects in relation to indictable New South Wales offences (which includes all serious offences) should now be recorded. Electronic recording also has been used to take statements from victims, for example, in relation to child and sexual assault victims. The use of electronic recording of victims and witnesses is discussed further in Chapter 9, below.

6.76 Electronic recording appears to be popular with the police, for it is not only a very effective prosecution tool but also, by removing the necessity for one officer to manually record the interview, allows for shorter interviews. Shorter interviews may also be helpful for the person with an intellectual disability, many of whom find concentration for long periods difficult. It also protects police from some allegations of inappropriate behaviour.

6.77 In Victoria all confessions and admissions in relation to indictable offences must be tape recorded, unless there are exceptional circumstances.¹¹⁷ The Victoria Police has considered this issue as follows:

It is standard practice in Victoria to tape record in all instances of indictable offences and for certain serious indictable offences to video tape interviews. Since the High Court decision in McKinney and Judge v R (1991) 65 ALJR 241 provision of tape recordings in respect of all confessions and admissions in cases where there may be doubt has led to stricter scrutiny of police practices in relation to all offences in Victoria. It is considered that the decision in McKinney could have profound consequences in cases of confessions made by intellectually disabled persons. Although there is no legislative requirement to tape record non-indictable matters in Victoria it would be considered standard policy that wherever possible in cases where a person was intellectually disabled, an independent third party or tape recording would be employed whether the offence in question was indictable or not. There are however, certain minor summary offences which may be dealt with expeditiously at the scene and provide fewer problems for the person involved and police - the trauma of bringing a person into a police station can be avoided for instance. Exercise of police discretion in such circumstances and better training of police in identifying and dealing with intellectually disabled persons will be of benefit in such cases.¹¹⁸

Disadvantages

6.78 Videotaping of interviews should not be seen as the perfect solution to all concerns about the police interview. Its potential abuses have been well documented.¹¹⁹ In fact, by its appearance of fairness and verisimilitude, it can provide the jury with a confidence which may be unjustified in the accuracy of all contained within the interview. It may also work against the suspect with an intellectual disability who has a high level of verbal skills, in that the jury may not believe, on viewing the video, that the person does, in fact, have an intellectual disability. It has been stated by a New Zealand commentator that:

[t]he advantages to the prosecution of a videotaped interview and disadvantages to the suspect are so manifest that the key issue to be faced by the practitioner called to advise a suspect before a videotaped interview is whether or not to allow it to take place at all. ... Suspects need to be told plainly that the jury will treat the video as the defendant’s evidence whatever warnings or directions are given by a trial Judge. There is no comparison whatever between the impact on a jury of a video of an interview and the recital by a detective of his or her record of an interview from a notebook.¹²⁰

6.79 There is also a growing number of cases on the vexed issue of the treatment of statements which are not so recorded:

The very weight and importance to be given to the videotaped interviews and the central importance that they will have at trials will mask and detract from any exchanges between a member of the police and suspect that have gone on before the videotaped interview. If there has been any prior exchange that has involved improper pressure on a suspect ... then that is unlikely to be manifested on the taped interview. Further if the interview appears normal as to content and manner, and follows the procedural guidelines, it can only reinforce evidence of proper behaviour in favour of the police member. Its own content will be held against the suspect.¹²¹ [emphasis in the original]

6.80 In the Police Powers Report the Commission commented that there were also:

questions about the propriety and fairness of taping staged re-enactments of the crime, visits to the scene of the crime and other presentational/non-discursive modes of investigation.¹²²

“you are not obliged to say or do anything unless you wish to do so, but whatever you say or do will be recorded and may be used in evidence. Do you understand that?” [emphasis in the original]

TENTATIVE PROPOSAL FOR REFORM: ELECTRONIC RECORDING

30. Police interviews with a suspect with an intellectual disability in respect of all criminal offences, should be videotaped as the words, gestures, phrasing and the intonation used may be of special significance.

IDENTIFICATION PARADES

6.81 It was suggested in the Issues Paper that identification parades should not be used where the suspect has an intellectual disability, as some people with an intellectual disability may be particularly obvious in such parades. There were varied responses to this issue in submissions. Victoria Police, for example, disagreed with the suggestion:

Identity is the first of all points to prove in a prosecution case. Whilst it is true that a person with an intellectual disability may be obvious in a parade, it is also a point of [the Commission’s Issues Paper] that such a person should be treated as responsible for an action (though with some special consideration). As such it is considered that an intellectually disabled person should not be excluded from identification parades (perhaps with the proviso that the suspect intellectually disabled person was not the only intellectually disabled person on the parade - logistics though may be difficult). If there is doubt in relation to identification evidence as a result of the parade it is considered that it should be a matter for the court to direct of the danger of such identification evidence rather than remove such an investigatory process.¹²⁵

6.82 It is not within the scope of this reference to consider the general advantages and disadvantages of identification parades. Police procedures for identification parades are found in Instruction 37.19 of the NSW Police Commissioner’s Instructions. The Instruction requires that identification be carried out “fairly” and the other members of the line-up be “persons of similar age, height, appearance, and class of life, to the suspect.” In order to overcome the concern that a person with an intellectual disability may be particularly obvious in such a parade, special care must be taken by police to ensure the fairness of the procedure in the particular circumstances. This consideration should take place in terms of the factors set out in the Instructions.

TENTATIVE PROPOSAL FOR REFORM: IDENTIFICATION PARADES

31. Identification parades should not be used for people with an intellectual disability in circumstances where unfairness to the suspect is likely to result, due to the unusual manner or appearance of the particular suspect.

1. Hunter Region Developmental Disability Service Submission (2 July 1992). This service, therefore, has decided to produce its own policy statement about procedures to be followed when their clients come into contact with the police.

2. New South Wales. Law Reform Commission People with an Intellectual Disability and the Criminal Justice System (Issues Paper 8, 1992) at para 4.9.

3. J Bright “Intellectual disability and the criminal justice system: new developments” (1989) 63 Law Institute Journal 933.

4. New South Wales. Law Reform Commission People with an Intellectual Disability and the Criminal Justice System: Consultations (Research Report 3, 1993) at paras 3.57, 3.60, 4.5, 4.26.

5. D Feben The Right to be Heard: Obtaining Evidence from Intellectually Disabled People (Office of the Public Advocate, Victoria, Discussion Paper, 1988) at 24-25. Feben concluded, at 26-27, that “there may be a need for a person to perform an active, interpretive role in police interviews” with people with an intellectual disability.

6. K Deane Sitting on a See-Saw: An Evaluation of the Independent Third Persons Program (Unpublished Thesis, University of Melbourne, 1992) at 44. Note that the total number of interviews was very small, only nine police officers, though all had at least seven years’ experience in the Force. Only those difficulties reported by four or more of the police officers are recorded here.

7. B Tully and D Cahill Police Interviewing of the Mentally Handicapped. An Experimental Study (The Police Foundation, London, 1984), cited in S C Hayes and G Craddock Simply Criminal (2nd ed, Federation Press, Sydney, 1992) at 55.

8. NSWLRC RR 3 at para 4.12.

9. D Indermaur, J Cockram and R Underwood “Police and the intellectually disabled” at 9, cited in Deane at 14.

10. Feben at 65-66.

11. By Circular 92/27.

12. National Council on Intellectual Disability The Rights of People with Disabilities: Areas of Need for Increased Protection (Discussion Paper, Human Rights and Equal Opportunity Commission, 1988) at 59.

13. For example Mr P Hutten Submission (14 July 1992) at 3.

14. Redfern Legal Centre Intellectual Disability Rights Service Submission (16 October 1992) at 7.

15. The Division of Intellectual Disability Services, Department of Family Services and Aboriginal and Islander Affairs, Queensland Submission (18 August 1992) at 3.

16. NSWLRC RR 3 at para 4.11.

17. L M Osman Finding New Ways: A Review of Services to the Person with Intellectual Disability in the Victorian Criminal Justice System (Office of the Public Advocate, Victoria, 1988) at 17.

18. M Ierace Intellectual Disability: A Manual for Criminal Lawyers (Redfern Legal Centre Publishing, Sydney, 1989) at 17.

19. New South Wales Council for Intellectual Disability Submission (September 1992) at 7.

20. Deane at 49.

21. Mr W Everson, ACT Council on Intellectual Disability Submission (20 July 1993) at 2.

22. Feben at 30-31.

23. New South Wales Council for Intellectual Disability Submission (September 1992) at 7.

24. Redfern Legal Centre Intellectual Disability Rights Service Submission (16 October 1992) at 7 (emphasis in original).

25. FCM 92.2.26. Note that a Force Circular Memo is issued pursuant to the powers of the Chief Commissioner under the Police Regulation Act 1958 (Vic) and in the exercise of his Office under the Public Service Act 1958 (Vic). They remain in force generally until a specific date unless they are earlier revoked or incorporated in Standing Orders or the Police Manual.

26. South Australia Police General Orders: General Order 3580 at para 9.1-9.3, which is as follows:

9.1 Prior to commencing an interview on a specific issue with a person who appears to be suffering some mental illness, disorder of the mind, psychological impairment or intellectual retardation, members must satisfy themselves that the person is able to comprehend sufficiently to enable the interview to be conducted. When there is any doubt about the level of comprehension, members should arrange for a relative, guardian or other suitable third party to be present before the interview proceeds.

9.2 Whenever a person suspected of being mentally ill or intellectually retarded is interviewed in relation to an offence, the member conducting the interview must, whenever practical, ensure that a relative or guardian is present.

9.3 Whenever a person suspected of being mentally ill or intellectually retarded is reported or arrested the members concerned must take steps to inform a relative or guardian of the person as soon as practical.

27. Western Australia Police Manual at paras 3-3.44 - 3-3.46, which is as follows:

3-3.44 Where the accused is a child, or someone under a disability, more persuasive evidence is needed than ordinarily is required to prove that a confession is voluntary. It is always advisable in such cases to conduct the interview or obtain subsequent verification of the voluntariness of the confession or other statement of admission in the presence of a third person such as the accused’s parents, other relative, friend, welfare officer, justice of the peace, etc or a senior police officer, not involved in the investigation.

3-3.45 The presence of such an individual should be recorded, as should any exchange between that person and the accused. Such exchanges or the giving of advice should not be prevented unless it amounts to disruption of the interview.

1-3.46 Where the accused will not have a person other than the investigating officers present during or after interview, he may not be forced to do so but his refusal should be recorded. Any request for an independent observer which was found to be reasonably impracticable to comply with, and the reason why the request could not be satisfied, also should be recorded.

28. Commissioner of Police’s Memorandum of Conduct: 4.54A.

29. Northern Territory Police, General Order “Questioning and Investigations”, Q1 at para 14.

30. Police and Criminal Evidence Act 1984 (UK) (s 66): Codes of Practice (revised ed, HMSO, London, 1991) (the “PACE Codes”). Code C: “Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers”, at para 3.9. The advantages of a Codes of Practice approach are discussed in Chapter 2 above.

31. Defined in PACE Code C at para 1.7(b).

32. PACE Code C at para 11.14. Note that the Code provides, at para 1.4, that “[i]f an officer has any suspicion, or is told in good faith, that a person of any age may be mentally disordered or mentally handicapped, or mentally incapable of understanding the significance of questions put to him or his replies, than that person shall be treated as a mentally disordered or mentally handicapped person for the purposes of this code.”

33. PACE Code C at para 11.16.

34. B L Irving and I K McKenzie Police Interrogation: The Effects of the Police and Criminal Evidence Act 1984 (The Police Foundation, London, 1989) at 60.

35. PACE Code C at paras 16.1.

36. PACE Code C, Annexure A, at para 4.

37. PACE Code C at para 3.13.

38. C Williams Crime Against People with Learning Difficulties: What is happening? (Norah Fry Research Centre, University of Bristol, 1993) at 26-27.

39. P Fennell “The Appropriate Adult” [1993] 90 (19) The Law Society’s Gazette 19 at 20.

40. D Dixon, K Bottomley, C Coleman, M Gill and D Wall “Safeguarding the rights of suspects in police custody” (1990) 1 Policing and Society 115 at 120.

41. FCM 92.2.26.

42. R v Warrelll [1993] 1 VR 671.

43. At 681.

44. At 678-679.

45. At 681.

46. At 682.

47. Victoria. Department of Community Services Statewide Victoria Police and Independent Third Person Training Project Report (Department of Community Services, Report 5, April 1993) at 8.

48. Feben at 28-31. Note that Feben, at 31, thought that the ITP could, however, fill the role of both support person and interpreter in most cases.

49. Deane at 42.

50. Fennell at 20.

51. Deane at 59.

52. See (1976) 11 ALR 412. The guidelines are set out in the headnote to the case as follows:

“In rejecting the tender by the Crown of typewritten records of interview between Aboriginal accused persons and investigating police officers in two cases heard by Forster J of the Supreme Court of Northern Territory, his Honour was joined by Muirhead and Ward JJ in laying down the following guidelines as an expression of the view of the court:-

(1) An interpreter should be present to ensure complete and mutual understanding.

(2) Where practicable “a prisoner’s friend” should be present during interrogation. The “prisoner’s friend” should be someone in whom the prisoner will have confidence, by whom he will feel supported.

(3) Care should be taken in administering the caution; and after the interrogating police officer has explained the caution in simple terms, he should ask the prisoner to tell him, phrase by phrase, what is meant by the caution.

(4) Care should be taken in formulating questions so that, so far as possible, the answer which is wanted or expected is not suggested in any way.

(5) Even when an apparently frank and free confession has been obtained, police should continue to investigate the matter in an endeavour to obtain proof of the commission of the offence from other sources.

(6) The prisoner, if being interrogated at meal time should be offered a meal, and, where facilities so permit, should always be offered tea or coffee. If there are no facilities he should always be offered a drink of water. Further, the prisoner should always be asked if he wishes to use the lavatory.

(7) No interrogation should take place while the prisoner is disabled by illness, drunkenness or tiredness. Further, interrogation should not continue for an unreasonably long time.

(8) If sought, reasonable steps should be taken to obtain legal assistance for the prisoners.

(9) If it is necessary to remove the prisoner’s clothing for forensic examination, steps must be taken to supply substitute clothing.

(10) The guidelines are not absolute rules, but the consequence of their non-observance may be the exclusion of statements of persons questioned. They might also provide guidance in interrogating migrants.”

53. R v Narula & ors (1986) 22 A Crim R 409 at 426, per Vincent J.

54. At 426-427.

55. Feben at 19.

56. American Bar Association Model Statute s 4(4) cited B D Sales, D M Powell, R Van Duizend and Assoc Disabled Persons and the Law: State Legislative Issues (Plenum Press, New York, 1982) at 727-728. The American Bar Association model rules and statutes do not have force of law unless they are implemented into federal or state legislation; however they are highly respected and regarded as setting certain standards for the legal system, and there is a good record for implementation over the years.

57. New South Wales. Law Reform Commission Police Powers of Detention and Investigation After Arrest (Report 66, 1990) Report 66 at paras 5.20-5.36 and Recommendation 5.3.

58. NSWLRC Report 66 at para 5.24.

59. Recommendation 5.3.1.

60. Recommendation 5.3.5.

61. Dixon at 124. For a full report of the research see K Bottomley, C Coleman, D Dixon, M Gill and D Wall The Impact of Aspects of the Police and Criminal Evidence Act 1984 on Policing in a Force in the North of England: Final Report (Centre of Criminology and Criminal Justice, University of Hull, 1989).

62. Associate Professor S C Hayes Submission (7 May 1993).

63. Hayes and Craddock at 78.

64. Submission (24 July 1992) at 3.

65. Submission (September 1992) at 7.

66. NSWLRC Report 66 at para 5.1, 5.9-5.14.

67. Ierace at 15.

68. Hayes and Craddock at 69.

69. Australia. Law Reform Commission Criminal Investigation (Report 2, 1975) at para 99, cited in NSWLRC Report 66 at para 3.39.

70. Instruction 37.14. Note that the same Instruction also provides a slightly longer version of the caution to be used when the answers are to be recorded, that is: “I am going to ask you certain questions which will be recorded (on typewriter, in shorthand, on a tape recorder, etc., as the case may be). You are not obliged to answer unless you wish to do so, but whatever you say will be recorded and may be used in evidence. Do you understand that?”

71. Ierace at 17.

72. NSWLRC RR 3 at para 3.57.

73. The Commission has already discussed the police caution and its effectiveness in NSWLRC Report 66 (1990), particularly paras 3.38-3.47, and NSWLRC IP 8 at paras 4.13-4.15.

74. Ierace at 17.

75. NSWLRC RR 3 at paras 3.58-3.59.

76. NSWLRC RR 3 at para 3.60.

77. Feben at 40.

78. NSWLRC RR 3 at para 3.61.

79. Senior Constable P Fernandez, Wagga Wagga, Submission (8 December 1991) at 19.

80. Fernandez at 19.

81. Ierace at 19.

82. Quoted in Deane at 35.

83. Hines v State 384 So 2d 1171, 1181 (Ala Crim App 1980).

84. Submission (7 May 1992) at 1.

85. National Council on Intellectual Disability The Rights of People with Disabilities: Areas of Need for Increased Protection (Discussion Paper, Human Rights and Equal Opportunity Commission, 1988) at 58.

86. Instruction 37.16.

87. Ierace at 21.

88. Instruction 37.16.

89. Ierace at 21 (emphasis in original).

90. Ierace at 21-22.

91. Ierace at 18.

92. Ierace at 18.

93. Bright at 933.

94. This was raised in a number of submissions, for example the New South Wales Council for Intellectual Disability Submission (September 1992) at 7.

95. This was prepared for the Commission’s consultations with people with an intellectual disability.

96. Submission (24 July 1992) at 3.

97. NSWLRC IP 8 at para 4.16.

98. (1950) 82 CLR 133, at 159.

99. Hayes and Craddock at 62.

100. NSWLRC Report 66 at para 6.36.

101. Australia. Law Reform Commission Evidence (Interim Report 2, 1985) Vol 2 at para 143, cited in NSWLRC Report 66 at para 6.32.

102. R v Parker (1990) 19 NSWLR 177.

103. R v Azar (1991) 56 A Crim R 414. Note that the Court of Criminal Appeal did, however, comment, at 419, that “[i]t is unnecessary for present purposes to consider whether there might not be some circumstances in which the personal condition of an accused will alone be such as to render a statement involuntary: cf Ward (1979) 44 CCC (2d) 498”; and later at 420 “[j]ust as the fact that a person is mentally handicapped may be of relevance to an argument that his will has been overborne, so also the fact that a person is unaware of his legal rights may, in combination with other facts and circumstances, be relevant to such an argument. However, mentally handicapped people can make voluntary admissions (Sinclair (1946) 73 CLR 316) and so can people who are unaware of their legal rights.”

104. R v Burke (unreported) District Court of New South Wales, Dent J, 21 September 1992 at 6-7.

105. R v W [1988] 2 Qd R 308.

106. At 318.

107. At 317-318.

108. At 313.

109. National Council on Intellectual Disability The Rights of People with Disabilities: Areas of Need for Increased Protection (Discussion Paper, Human Rights and Equal Opportunity Commission, 1988) at 59.

110. American Bar Association Criminal Justice Standards Committee Task Force Standards on Competence and Confession (American Bar Association, August 1988) cited in Hayes and Craddock at 59.

111. R v Murphy (1989) 167 CLR 94; R v Jackson (1963) 108 CLR 591; R v Stiles (1990) 50 A Crim R 13; and Toohey v Commissioner of Metropolitan Police [1965] AC 595, cited in Hayes and Craddock at 59, (see footnote 31).

112. Feben at 35.

113. Submission (24 July 1992) at 4.

114. Submission (September 1992) at 7.

115. Tape recording can be by way of audio recording, video recording, or both: Crimes (Investigation of Commonwealth Offences) Amendment Act 1991 (Cth), s 23B(1), 23U, 23V.

116. NSWLRC Report 66 at paras 6.14-6.18.

117. See s 464H Crimes Act 1958 (Vic).

118. Victoria Police Corporate Planning and Review Department Submission (31 August 1992) at 3.

119. See, for example, M McConville “Video taping interrogations” (1992) 142 New Law Journal 960-962; New South Wales. Criminal Law Review Division A Proposed System of Electronically Recording Police Interviews with Suspected Persons (Attorney General’s Department, 1986).

120. J Rowan “Electronic recording of police interviews in New Zealand (II)” [1992] New Zealand Law Journal 400 at 402.

121. Rowan at 402.

122. NSWLRC Report 66, at para 6.18.

123. Section 5(e), inserted by Statute Law (Miscellaneous Provisions) Act (No 3) 1989 (NSW) Sch 1.

124. See cl 85.

125. Victoria Police Corporate Planning and Review Department Submission (31 August 1992) at 3-4.