OVERVIEW
9.1 The over-representation and vulnerability of people with an intellectual disability as victims, together with their low crime reporting rate, already have been referred to in Chapter 1. It is recognised that people with an intellectual disability are particularly likely to be the victims of crime.1 For example it has been stated that:
[a] person with an intellectual disability is someone who will, by definition, have difficulty with reading, writing, comprehension, and money skills. He or she will have difficulty with community survival skills and in social situations. The disabled individual is likely to be unaware of many of the subtle, and sometimes even the gross, cues that guide our everyday behaviour and alert us to the possibility of criminal victimisation. Further, when a crime occurs, intellectually disabled individuals are unlikely to be fully cognisant of the variety of criminal justice services at their disposal, or of how they may be accessed. They may have difficulty realising that particular events constitute a crime, in conveying this fact, or in providing proof of the event. They are likely to have only limited knowledge of their rights and responsibilities in the situation ... therefore, individuals with an intellectual disability can be seen as exhibiting greater vulnerability and as engaging in behaviours which may facilitate the criminal in the performance of a crime. This increases their attractiveness as victims, while lack of knowledge of rights and responsibility may affect the impunity of the criminal who victimises these individuals.2
9.2 As discussed in Chapter 1, the particular vulnerability of people with an intellectual disability to sexual assault has been commented upon.3 According to the South Australian Commissioner of Police, David Hunt, they:
are particularly vulnerable to the crimes of others, whether it be loutish harassment, fraud or serious physical or sexual attack.4
Submissions have also referred to the common occurrence of physical assault or “crimes of exploitation”, whether monetary or emotional. Harassment also appears to be common, in particular by neighbours.
9.3 Crimes can have particularly harsh consequences for people with an intellectual disability. The Commission has been informed of a number of cases where both the victim and the offender had intellectual disabilities, and where both used the same services or resided in the same institution or supported accommodation. Often, unfortunately, the outcome has been that the victim, rather than the offender, has been removed from the service. The lack of counselling, particularly in country areas, for sexual assault victims with an intellectual disability has also been raised in submissions.
9.4 Despite this over-representation of victims with intellectual disabilities, submissions have commented upon the scarcity of successful prosecutions where the victim has an intellectual disability, particularly in the area of sexual assault. The difficulties which arise for people with an intellectual disability in the courts will be considered in the Commission’s next Discussion Paper. One disturbing element relating to victims with an intellectual disability is the suggestion that there is a tendency to “blame the victim”:
... if a person of low intellectual ability gets into some sort or trouble the difficulty is more or less automatically attributed to “mental defect” whereas if a person of “normal intelligence” gets into a similar difficulty, it is not regarded as symptomatic of anything in particular.5
9.5 The lack of successful prosecutions, however, appears to be more the result of the perception that victims with intellectual disabilities are unsuccessful witnesses and the belief that convictions will therefore be unlikely. The purpose of this chapter is not to concentrate on why there is such an over-representation of people with an intellectual disability as victims, but to look at police procedures and how they may best take into account the special needs of victims and witnesses with intellectual disabilities. Issues such as training and identification have already been considered in Part II of this Paper and their importance should not be overlooked in relation to victims and witnesses.
REPORTING CRIME
9.6 Under-reporting of crime by people with an intellectual disability has often been commented upon. The Victorian Silent Victims Report summarised the main reasons for non-reporting as:
- the nature of the crimes committed against people with an intellectual disability, predominantly sexual assault and physical assault, which are generally under-reported throughout the community;
- the characteristics of the victims, including lack of knowledge about offences and reporting crime;
- the victim’s fear, either of the consequences of reporting, or of police and other people in authority; and
- the past responses from staff or service providers to reports of crime; for example, if no action was taken.6
9.7 A recent South Australian study found that, though offences against persons with an intellectual disability were reported at a comparable rate to those against the general population, the numbers of reports made by the victim were not; that is, the person with an intellectual disability tended to report the crime to a non-disabled caregiver, rather than directly to the police.7
9.8 Difficult issues arise for police and service providers where both the offender and the victim have an intellectual disability. In such cases the crime is not always reported to the police and dealt with in the usual way. There are a number of reasons for this; for example:
there was some evidence that police were unclear about their role when an alleged offence occurred within a training centre or a sheltered workshop. A number of incidents were reported where police, when called, had indicated that they saw the alleged offence as one which should be handled within the organisation.8
9.9 It has been suggested, however, that even if the offence is a minor one the offender may persist unless some police intervention occurs. The rights of the victim also must be considered. One submission commented that workers in residential facilities are concerned about their legal position and the implications of what was previously known as “misprision of a felony”.9 It has been stated that workers “often believe they are obliged to report matters to the police under this section, regardless of the victim’s wishes.”10
Police response to victims and witnesses with an intellectual disability
9.10 According to the Silent Victims Report:
The first contact made with the police by a victim who is intellectually disabled is very important. Unfortunately the evidence presented by people with intellectual disabilities, the police and workers indicated that in some cases such contact was both frustrating and fruitless.11
9.11 The preliminary issue must be the recognition that people with an intellectual disability have the same rights as other members of the community to report crimes and to have their complaint listened to and taken seriously by the police. Submissions to the Commission have suggested that this is not, in fact, the case. For example the Redfern Legal Centre Intellectual Disability Rights Service (“IDRS”) stated that:
[m]any police decline to investigate complaints from people with intellectual disability. The police often decide on very little actual knowledge of the capacity of the person that their evidence would not stand up in court. In one case a young woman told the police she was sexually assaulted and even named her assailant. The police made what appears to be very cursory inquiries, (speaking to the alleged assailant’s mother) and declined to investigate further. The young woman has since received crime victims compensation. If a specialist unit did exist within the Police it could have been contacted by the local police for advice in deciding whether to proceed.12
9.12 There also appears to be a misconception in the community that people with an intellectual disability are more likely to lie or to make up complaints.13 Ironically, discussions about the suggestibility of suspects with an intellectual disability can reinforce ideas that, as victims, they are poor witnesses.14 It has been stated, therefore, that people “discussing court procedures must consider the effects of their arguments and publicity from the perspective of offenders and victims.”15
9.13 IDRS provided the Commission with some examples of the types of crime committed against their clients and their difficulties in pursuing their complaints. Sexual assault and fraud figured prominently:
Sexual assault of people with an intellectual disability continues to be a major area of concern for our Service. Our Service receives many requests for advice and assistance in relation to allegations of sexual assault of people with an intellectual disability. We have noted below the details of three recent cases. In all three cases, the alleged assailant was a person known to the victim. In one case the alleged assailant was a relative, in the other two cases, the alleged assailant was a service provider. In one case the victim lived at home with the family, in one case the victim lived in a group home and in the other the victim lived in a large residential setting. Despite these factual differences, there were some common problems encountered in all three cases. These included:
- the victims were dependent on the alleged assailant for care or support. In one case the victim delayed reporting the incident for over a year because she was afraid of retaliation by the alleged assailant.
- all three matters were reported to the police but difficulties were encountered by the police in investigating the incidents. These difficulties included concerns by the police that the victim would not be able to give evidence in court; concerns about the limited information the victim was able to provide (in two of the cases the victims, as a result of their disability, have difficulty understanding concepts of time and so were unable to give police much information about when the incidents occurred), and difficulties the police had in communicating with the victim. In one case the family reported to us that the victim had been able to give more information to family members about the assault than to police. The family believes this was due to fact that the victim was afraid of the police and that to the victim being questioned by the police meant that the victim was in trouble and had done something wrong.16
Competence
9.14 Police may believe, wrongly in many cases, that a victim with an intellectual disability will be unable to make a statement and follow the complaint through the criminal justice system. The lack of success referred to above in relation to prosecutions involving a victim with an intellectual disability would only strengthen this belief. The mistaken understanding of a person’s ability to make a statement may mean that complaint details are never taken down or pursued. According to a police officer with experience with victims with intellectual disabilities:
[s]ome Police believe people with intellectual disabilities are unable to give evidence due to their lack of understanding. This in my experience is incorrect. The person with an intellectual disability will only explain what has truly happened to them as a victim. They may confuse times, dates and minor details but in our experience they do not confuse the actual occurrence or the offender involved.17
9.15 It is difficult, however, to prevent such misunderstandings through legal reform. The issue largely becomes one of appropriate training in relation to identification and questioning. It has been suggested to the Commission that the review of such decisions, such as by a senior officer, may overcome some of these difficulties. The Commission therefore proposes that an outright refusal to prosecute by the police or to take a statement, on the ground that a person has an intellectual disability and would be unable to give a statement, should be subject to review. A refusal to take a statement should be reviewed automatically, not on the request of the victim, by a senior officer. The refusal to prosecute where a complaint has been laid and a statement taken should be reviewable, either by a senior officer or the Director of Public Prosecutions. The issue of competence at the court level will be discussed in more detail in the Commission’s next Discussion Paper in relation to courts and sentencing.
The Guardianship Board
9.16 The role of the Guardianship Board can be an area of possible confusion for police where the victim has an intellectual disability. When a victim of sexual assault has an intellectual disability a number of issues may arise. For example:
- whether the victim is able to understand or consent to certain investigatory steps, such as a medical examination and the collection of forensic samples; and
- whether the victim is able to make an informed decision about whether he, or more usually she, wants to proceed with the complaint or seek victim’s compensation.
9.17 The police have their own guidelines in this regard18 but there may be a question about whether a guardian should be appointed to assist the victim in making these decisions, or, if necessary, to make the decisions for him or her. Difficulties may arise where the victim wishes to proceed but this does not seem to be the appropriate course under the police guidelines; or alternatively, where the victim does not want to take the matter any further but the police feel there is an appropriate case for further investigation and/or pressing charges. In these situations, where there are decisions to be made that the victim has a right to participate in, the victim may need a guardian to assist in making these decisions.19 Obviously such matters must be considered by both the police and the Guardianship Board on a case by case basis. The Board has a telephone advisory service which can assist in such cases, but it may be an issue where the police are unsure of the appropriate course to take and need some training. The Commission seeks further submissions in this regard.
POLICE QUESTIONING OF VICTIMS AND WITNESSES
9.18 In Chapter 6 the Commission referred to the particular disadvantages faced by people with an intellectual disability in police questioning, such as being overly influenced by authority figures; responsiveness to suggestive questioning; lack of comprehension of the level of language used in police questioning; and difficulty with certain questions such as those involving time and dates. If a complaint does reach the police and the police take a statement, appropriate questioning techniques will be just as relevant for victims and witnesses as for suspects. The same dangers of suggestibility and inappropriate language arise. One police officer has commented that:
[t]he intellectually handicapped victims that I have interviewed are very prone to agreeing with you by nodding to almost every question. Whether this is their way of dealing with a difficult question, and of disposing of it in the simplest way, I’m not sure. But it is very easy for the investigator to fall into the trap of following through a line of inquiry generated by himself and supported by the victim through their acquiescence.20
9.19 The particular problems faced by the victim, and by analogy the witness, with an intellectual disability in a police interview have been referred to in a number of reports21 and can be summarised as follows:
- lack of knowledge by people with an intellectual disability about crime, reporting crime and police procedures;
- lack of understanding by the police about how the person’s intellectual disability may be relevant to the conduct of the interview, for example the need for questioning which takes into account the danger of suggestion and avoids concentration on details such as time, addresses and numbers which may confuse the person; and
- the low level of literacy of most people with an intellectual disability means there will be difficulties in using police statements, both in verifying details and refreshing the person’s memory when/if the matter eventually comes to trial.
9.20 According to Hayes and Craddock:
[t]he same process which trains police to deal with intellectually disabled suspects will enable them to provide better assistance to the intellectually disabled victims of crime. A reliable statement from the victim, for use in prosecution, is as important as a reliable confession. ... As with confessions, great care should be taken so that a statement truly represents what the witness is able to say about an incident in his or her own words. The degree of sophistication of the account should reflect that of the witness and not the officer taking the statement. In particular, it is vital that the statement be recorded as accurately as possible using the victim’s own words and grammar, because sometimes important evidence and meaning can be lost when it is “translated” into the sense which a police officer thinks it means. Intellectually disabled people may have particular words, for example, for sexual organs, which can be understood by care-givers, but which may be meaningless to [a] stranger.22
9.21 The Final Report of the NSW Women’s Co-ordination Unit on Sexual Assault of People with an Intellectual Disability23 commented, in relation to the role of the police of victims of sexual assault, that:
9.22 The Report made the following recommendations in relation to police procedures:
4.1 Police instructions should be amended to include procedures for conducting police interviews of people with an intellectual disability.
4.2 Police instructions should be amended to include procedures for the method of interviewing victims of sexual assault who are intellectually disabled.
4.3 Police instructions should be amended to allow a third party to be present during interviews with victims who are intellectually disabled to assist with the interpretation of language and help overcome communication difficulties.
4.4 Community education for people with an intellectual disability about the role of the police in the community and how to obtain assistance from local police should be carried out by police liaison officers.
4.5 An identified police officer in police districts should be nominated to act as a liaison person with disability organisations, parent groups and people with an intellectual disability.25
The Commission supports these recommendations and provides some further commentary on them in this chapter.
Coaching and contamination
9.23 Police must consider carefully, in their questioning of a person with an intellectual disability, whether a victim or a witness, that their methods may be called into question if the matter proceeds further, perhaps by the accused’s legal representation. These issues will be discussed further in the Commission’s next Discussion Paper. Allegations of “coaching” or the contamination of evidence by improper questioning can be diminished by the use of appropriate questioning techniques. Hayes and Craddock point to the dangers of “coaching” witnesses or victims by stating that:
[t]hose preparing the intellectually disabled victim to give evidence need to avoid scrupulously any “coaching” of the witness. Coaching can occur in a number of ways, and does not necessarily involve an improper intention on the part of the questioner. Inexpert interviewers may believe that the intellectually disabled witness will be unable to give a correct account of events unless they have been over and over the story. In this process, there is the risk that the interviewee will pick up clues, overtly or covertly expressed, about the expectations of the interviewer. Leading questions can indicate the “desired” response, as can the interviewer focussing upon particular areas of the narrative. It is desirable that as few interviewers as possible question the intellectually disabled witness, and that those interviewers have expertise both in the obtaining of narrative evidence from intellectually disabled people, and in the court processes.26
These comments will be equally applicable for prosecution lawyers involved in interviewing victims and witnesses with intellectual disabilities, as for the police.
The Police Commissioner’s Instructions
9.24 Police have recognised the need for guidelines for interviewing victims with an intellectual disability for sexual assault cases. Police guidelines for identifying and interviewing victims of sexual assault with an intellectual disability are now found in the NSW Police Commissioner’s Instruction 67.06, which reads as follows:
A person with an intellectual disability has a capacity for intellectual functioning which is lower than the norm.
People with an intellectual disability may or may not have a physical disability.
Intellectual disability is not a psychiatric illness.
The range of intellectual disabilities is diverse and may not be immediately evident.
Indicators of intellectual disability include:
- short attention span
- difficulty understanding questions and instructions
- responding inappropriately or inconsistently to questions.
Details such as a person’s work, school, residence, or social security entitlements may be indicative of intellectual disability
The effect of a sexual assault on a person with an intellectual disability may be extremely traumatic and the interview process considerably more difficult.
Initial interview
- if you suspect the victim has an intellectual disability have a relative, guardian, carer, or parent present - local Department of Community Services can assist
- the victim has a right to have a support person present - the person must be acceptable to the victim
- if communication is difficult, have a specialist ‘interpreter’ attend to facilitate communication
- where the victim lives in a residential facility, the licensed manager may be able to help, otherwise contact the local Department of Community Services
- it is preferable if the support not act as an interpreter
- brief the interpreter before commencing the interview and remind him/her not to substitute or paraphrase anything the victim says, nor show any emotion during the interview. Also, clarify with the interpreter any terminology used by the victim in the statement.
When interviewing, consider the following:
- make sure the victim knows the reason for being there
- establish rapport and make the victim feel comfortable and reassured
- use simple language and ask short questions - the statement may be in the form of questions and answers ...
- frequent short breaks may help the victim’s concentration
- endeavour to ensure the victim knows that you have understood his/her account of the sexual assault
- if the sexual assault is recent (within 72 Hours) and the victim agrees to attend a Sexual Assault Centre (SAC), then follow the procedures set out herein.
The rest of the Instruction contains further guidelines in relation to: the decision whether or not to proceed; guardianship; non-recent (that is, not within 72 hours) sexual assaults; procedures if the victim is unable to sign the statement; and procedures for commencing criminal proceedings under the relevant sections of the Crimes Act 1900 (NSW). These special guidelines have not been repeated elsewhere in the Police Instructions in the sections dealing with investigations and arrest generally, although they are equally applicable to the suspect with an intellectual disability. Nor is sexual assault the only crime likely to be committed against people with an intellectual disability.
Role of the third or “support” person
9.25 Unlike the position in relation to suspects, the victim with an intellectual disability is less likely to require the assistance of a lawyer, but is likely to require emotional and practical support, such as assistance in completing forms. This has been recognised in the Instruction which specifically refers to the need for a “support person” as well as, if communication is difficult, an “interpreter”. The Instruction states that it is preferable that the support person does not also fill the interpreter’s role. The provisions of this Instruction do not, however, apply to all victims with an intellectual disability, but only to victims of sexual assault.
9.26 In Victoria, where an “Independent Third Person” attends all interviews where a person with an intellectual disability is involved, it has been suggested that the presence of a third person may formalise the investigation process, which provides an additional benefit to the victim, and ensures that their complaint is taken seriously.27
9.27 In South Australia the Police Department has released a policy statement for its prosecution services in relation to intellectual disability,28 providing police prosecutors with guidelines for dealing with people with an intellectual disability, including guidelines about: what is meant by intellectual disability, the need for an independent person, refreshing memory where the person has low literacy, assisting the person to give evidence through explaining court procedure, use of court companions, use of expert evidence as to the person’s competence and capacity and related matters.
9.28 The Commission believes that a support person for a victim with an intellectual disability is particularly important in police interviews and refers to the discussion and proposals set out in relation to suspects in Chapter 6, above. The Commission believes that, generally speaking, the proposals relating to the name, identity and role of the suspect’s “Support Person” should be repeated for victims. Similarly, the Support Person should be present (with the consent of the victim) for all aspects of the police interview, and all matters relating to the Support Person should be clearly set out in police guidelines, preferably in a Code of Practice.
Electronic recording
9.29 As discussed in Chapter 6 in relation to suspects, electronic recording of victims with an intellectual disability has obvious benefits in terms of accurately recording the victim’s statement, including the non-verbal communication, which may be particularly revealing. It is also likely to shorten interviews and make the police officer’s task easier. A person with low literacy skills may be able to use their video statement to refresh their memory prior to the court appearance. The Commission therefore proposes that electronic recording facilities be used for all victims with an intellectual disability, and for witnesses where a detailed interview is necessary. Legislation would, however, be required to admit the recording into evidence and to overcome the need for the person to give evidence again. There also remains the difficulty of the treatment of cross-examination. These issues are considered further in the Commission’s next Discussion Paper. At this stage the Commission seeks submissions about whether there is any possible detriment to the victim or witness with an intellectual disability through the widespread use of electronic recording of interviews.
Alternative investigatory procedures
9.30 In relation to interviewing child victims, where similar concerns about vulnerability and difficulties in understanding arise, some innovative investigatory techniques have been attempted to obtain the best possible evidence and to reduce the trauma for the child. Some of these alternatives for child victims of sexual assault include the use, in Israel, of “youth examiners” (usually social workers, psychologists or child care workers) instead of police to interview children under 14. The child’s statement to the youth examiner is admissible as evidence in the trial and children rarely have to testify in person. In the United States, “joint interviews” of child victims are conducted by a detective, prosecutor and social worker (although only one conducts the interview) in a specially designed interview room with child-sized furniture and a one-way mirror, so the interview can be observed by parents and others without distracting the child. Another alternative suggested is that an appropriately trained “child advocate” either conduct the initial interviews and then provide a report to the police and prosecutors, or represent the child’s interest throughout the investigation by, for example, taking objections to inappropriate questioning.29
9.31 Although the Commission is not suggesting that people with an intellectual disability can be equated with children, similar concerns may arise for both, and perhaps more innovative ways of conducting interviews with people with an intellectual disability should be considered. The Commission seeks submissions in this regard.
APPREHENDED VIOLENCE ORDERS
9.32 The Commission has been informed by the police, court personnel and service providers of the difficulties for people with an intellectual disability in obtaining an “apprehended violence order” (or “AVO”).30 An AVO is made when a court, usually the Local Court, is satisfied that a person fears, on reasonable grounds, violence or other conduct amounting to harassment or molestation from another person.31 When a person “is, in the opinion of the court, suffering from an appreciably below average general intellectual function”, the court does not have to be satisfied that the person actually fears the violence or other conduct.32 The AVO imposes restrictions or prohibitions on the second person (the defendant), for example, prohibiting the defendant from approaching the other person for a set period of time.33 To obtain an AVO a complaint must be made on oath, either orally or in writing, before a Justice. Such a complaint can only be made by the person seeking protection or by a police officer.34 Some people with an intellectual disability may have insufficient communication skills to bring a complaint to a Justice. They will therefore require the police to do so on their behalf.
9.33 It has been suggested that complaints involving a complainant with an intellectual disability should always be brought by the police, as is presently the case for children under the age of 18 years.35 This may, however, cause difficulties if the police do not believe the person bringing the complaint. As with police questioning in general, police may also find it difficult to obtain a useful statement from some victims with an intellectual disability and may need assistance in this regard to enable them to complain on behalf of a person. Justices may similarly need guidelines about intellectual disability or other assistance. It was also suggested to the Commission that there is a need for “interpreters” to be made available free of charge in such cases, as is currently provided by the Ethnic Affairs Commission for victims in violence cases.36 The Commission seeks further submissions about the particular problems faced by people with an intellectual disability in seeking AVOs, and how these may be overcome, before making any proposals in this regard.
COMPENSATION FOR VICTIMS OF CRIME
9.34 The issue of victims’ compensation, including the role of the Tribunal and the difficulties faced by people with an intellectual disability, will be discussed more fully in the next Discussion Paper. However, some consideration of this issue needs to be made in the context of police procedures. Under the current system, which is being reviewed, the victim must have co-operated with the police and lodged a formal complaint to obtain compensation. Delay in reporting the matter may be taken into account in assessing compensation.37 This can have obvious implications for a person with an intellectual disability. If the police do not accept the complaint the person is unable to obtain compensation.
9.35 The Victims Compensation Act 1987 (NSW) was recently reviewed by the Attorney General’s Department and a report was prepared by Mr C Brahe, Deputy Chief Magistrate and a former Chairperson of the Victims Compensation Tribunal.38 That Report made a number of recommendations relevant to the victim with an intellectual disability. The Brahe Report recommended, for example, that applications for compensation should be lodged within a period of two years from the act of violence but stated that:
[t]he Tribunal should have a discretion to accept claims outside that period in exceptional circumstances which include but are not limited to:
(i) the victim’s age at the time of the act of violence;
(ii) whether the victim has an intellectual or mental disability and when that disability manifested itself;
(iii) the offender is in a position of power in relation to the victim;
(iv) the physical and/or psychological effects of the act of violence;
(v) any policy of the Director of Public Prosecution in sexual assault cases.
Lack of knowledge by the applicant of the time within which applications are to be lodged should not of itself amount to exceptional circumstances.39
9.36 The Brahe Report recognised that the requirement of reporting to the police within a reasonable time may disadvantage sexual assault victims, who may delay reporting for a variety of reasons. It was also recognised that some victims, for example, children and some people with an intellectual disability, must rely on the actions of other people who may not notify the authorities. The Report did not consider the requirement of reporting to the police within a reasonable time to be necessary. Rather it recommended that:
[f]ailure to report or assist the prosecution could be excused on the following grounds - although not exclusive grounds -
(i) the victim’s age at the time of the act of violence;
(ii) whether the victim has an intellectual or mental disability and when that disability manifested itself;
(iii) the offender is in a position of power in relation to the victim;
(iv) the physical and/or psychological effects of the act of violence.40
9.37 The recommendations of the Brahe Report have not yet been implemented. On 31 August 1993, however, the Minister for the Status of Women, the Hon Kerry Chikarovski MP, released a report by the NSW Sexual Assault Committee based on the results of a sexual assault hotline in 1992. She also announced a package of reforms to provide additional assistance to women who are victims of sexual assault, including “making it easier for victims to apply for compensation from the Victim Compensation Tribunal”. No other details were provided as to the form that assistance would take. These issues will be considered further in the next Discussion Paper, however it is worth noting at this stage the crucial role the police can have in relation to further procedures such as victims compensation.
WITNESSES
9.38 The particular role of the police in relation to a witness with an intellectual disability should not be overlooked. It is likely, for example, that when an alleged crime occurs in an institutional setting or in a group home, that at least some of the witnesses will have an intellectual disability. It will be in the interests of police investigators to be able to effectively interview people with an intellectual disability. The communication issues discussed above apply equally here. In relation to witnesses, the South Australian Commissioner of Police has commented as follows:
[a]s for any witness, the weight to be placed on the evidence of an intellectually disabled person is a matter of consideration for a Court. Police are therefore encouraged to accept their evidence as they would any other. Well knowing the trauma that giving evidence before a Court can cause, police are in a unique position to be of assistance and support to the intellectually disabled witness.
Police are encouraged to show a witness through a Courtroom before giving evidence, and to explain to them the workings of the Court and what they may expect when giving their evidence. This practice has proved extremely beneficial, particularly for witnesses who are anxious about their pending Court experience. Police are also encouraged to use the Court Companion service offered by the Victims of Crime Service, to help victims and witnesses alike through the traumatic experience of Court.41
The experience of people with an intellectual disability at court will be discussed in the next Discussion Paper; however, it is worth noting that the police can have a valuable role at this stage of the criminal justice system as well.
AN EDUCATIVE ROLE FOR THE POLICE?
9.39 The police may also be able to play an important educative role in overcoming the reluctance of people with an intellectual disability to report crime, particularly if some of the administrative and policy reforms referred to in Chapter 5 are carried out. This has been one of the concerns of the Police Service’s Special Needs Unit in Wagga Wagga which, in conjunction with other government departments, local solicitors, and disability and other services, has organised seminars for people with an intellectual disability and for their parents/carers. Those for parents and carers cover such areas as the role of the Sexual Assault Service, and legal, police, consumer affairs and social security information. The seminars for people with an intellectual disability are run by various services, including the police, in groups of about six to eight people, and cover such areas as what that service does, how people can use it and what are their rights under that service.
9.40 The Commission believes that police officers (among others) should be involved in education programs for people with an intellectual disability and carers about legal rights, services available for victims of crimes, and guidelines for recognising and reporting crime. Such involvement could include visiting institutions, schools, homes, recreational services, sheltered workshops and other places of employment. This will also assist police in their understanding of how crime affects people with an intellectual disability and people with an intellectual disability to understand the role of the police. The Commission seeks comments and examples about the role the police can play in this regard.
TENTATIVE PROPOSALS FOR REFORM: VICTIMS AND WITNESSES
Police questioning
41. Police must use appropriate ways of questioning victims and witnesses 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 at a level which will be understood. These matters should be clearly spelled out in police guidelines, preferably in a Code of Practice.
Presence of a “Support Person”
42. No questioning of a victim with an intellectual disability should take place if a Support Person is not present, unless the victim objects to the presence of any other person at the police interview. 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 victim with an intellectual disability. The Support Person should be clearly attending for the victim’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, suggesting the police rephrase a question if the victim is having difficulties, or explaining what the victim means by a particular word.
- Identity. The Support Person preferably should be a person (above the age of 18 years) chosen by the victim with an intellectual disability. It is anticipated that such a person will know the victim well, whether as a family member, guardian, carer or friend (though these categories are not exclusive), have the trust of the victim, 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 victim 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.
43. The Support Person:
- should have an opportunity to speak privately with the victim before the interview commences;
- should remain present for all aspects of the police interview, subject to the wishes of the victim; and
- if a medical examination is required, should be of the same sex as the victim.
The presence (or absence) of the Support Person in relation to each of these procedures should be recorded.
44. 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.
Review of the police decisions
45. Refusal to prosecute by the police or to take a statement, on the ground that a person has an intellectual disability and would be unable to give a statement, should be subject to review. A refusal to take a statement should be reviewed automatically, not on the request of the victim, by a senior officer. The refusal to prosecute where a complaint has been laid and a statement taken should be reviewable, either by a senior officer or the Director of Public Prosecutions.
Electronic recording of interviews
46. Videotaping of interviews with victims with an intellectual disability should be carried out, to the greatest extent practicable, as this will be useful, not only to the victim with low literacy levels when refreshing his or her memory, but to the court.
Education
47. Police (among others) should be involved in education programs for people with an intellectual disability and carers as to legal rights, services available for victims of crimes, and guidelines as to recognising and reporting crime.
FOOTNOTES
1. A useful discussion of some of the reasons people with an intellectual disability are particularly vulnerable to crime is found in K Johnson, R Andrew and V Topp Silent Victims (Office of the Public Advocate, Victoria, 1988) at 18-24.
2. C Wilson and N Brewer “The incidence of crime victimisation of individuals with an intellectual disability” (1992) 27 (2) Australian Psychologist 114.
3. See, for example, M Carmody “Invisible victims: sexual assault of people with an intellectual disability” (1991) 17 (2) Australian and New Zealand Journal of Developmental Disabilities 229-236.
4. South Australia. Mr D Hunt, Commissioner of Police Submission (14 April 1992) at 2.
5. L A Dexter “A social theory of mental deficiency” (1958) LX (11) American Journal of Mental Deficiency at 923, cited in C Williams Crime Against People with Learning Difficulties: What is Happening? (Norah Fry Research Centre, University of Bristol, 1993) at 31.
6. Johnson, Andrew and Topp at 36-43.
7. C Wilson The Incidence of Crime Victimisation among Intellectually Disabled Adults (Final Report, National Police Research Unit, 1990) at 14-15.
8. Johnson, Andrew and Topp at 48.
9. The common law offence of misprision of a felony has been abolished by s 341 of the Crimes Act 1900 (NSW). See now “Concealing serious offence” Crimes Act 1900 (NSW), s 316.
10. New South Wales Sexual Assault Committee Submission (August 1992) at 2.
11. Johnson, Andrew and Topp at 48.
12. Redfern Legal Centre Intellectual Disability Rights Service Submission (6 January 1992) at 6.
13. Johnson, Andrew and Topp at 49.
14. Williams at 33.
15. Williams at 33 (emphasis in original).
16. Redfern Legal Centre Intellectual Disability Rights Service Submission (16 October 1992) at 4-5.
17. Senior Constable P Fernandez Submission (8 December 1991) at 34.
18. See, for example, Instruction 67.
19. Mr R West, President, Guardianship Board Oral Submission (2 August 1993).
20. Detective Inspector R C Kucera “Criminal Law and People with Intellectual Disabilities: A Police Perspective” in Questions of Balance: Criminal Law and People with Intellectual Disabilities (Conference Proceedings, Perth, July 1990) at 19.
21. See, for example: J Philpott Towards Normalisation: People with Intellectual Disability Involved in the South Australian Criminal Justice System (Court Services Department, Adelaide, 1991); D Feben The Right to be Heard: Obtaining Evidence from Intellectually Disabled People (Discussion Paper, Office of the Public Advocate, Victoria, 1988).
22. S C Hayes and G Craddock Simply Criminal (2nd ed, Federation Press, Sydney, 1992) at 76-77.
23. NSW Women’s Co-ordination Unit Sexual Assault of People with an Intellectual Disability (Final Report, 1990).
24. NSW Women’s Co-ordination Unit at 20-21.
25. NSW Women’s Co-ordination Unit at 2.
26. Hayes and Craddock at 77.
27. K Deane Sitting on a See-Saw: An Evaluation of the Independent Third Persons Program (Unpublished Thesis, University of Melbourne, 1992) at 59.
28. Policy No 51, Policy Statement Prosecution Services, Intellectually Disabled, 1991, cited in Philpott at Appendix E.
29. These alternatives were outlined in B Naylor “Sexual assault: the law and the child victim (Pt 2)” (1985) 10 (2) Legal Service Bulletin 72 at 73.
30. See Part 15A of the Crimes Act 1900 (NSW).
31. Section 562B(1).
32. Section 562B(2).
33. Section 562D.
34. Section 562C.
35. See s 562C(3)(b).
36. Mr K Dover Submission (11 August 1992).
37. Victims Compensation Act 1987 (NSW), s 20.
38. New South Wales. Attorney General’s Department The Review of the Victims Compensation Act (March 1993).
39. Recommendation 1(c).
40. Recommendation 11(a).
41. South Australia. Mr D Hunt, Commissioner of Police Submission (14 April 1992) at 2.
