OVERVIEW

1.1 This Discussion Paper is concerned with people who have an intellectual disability in their contact with the criminal courts. This Paper deals with the position of an accused person, a victim or a witness in the courts. It is the fifth paper released as part of the Commission’s inquiry into the treatment of people with an intellectual disability in the criminal justice system.

1.2 In brief, people with an intellectual disability have a permanent condition of significantly lower than average intellectual ability. This disability does not simply mean that a person will perform poorly in academic pursuits; it also results in what are known as “adaptive deficits”, that is, the disability usually affects such areas as the person’s level of communication, social skills, and ability to live independently. Though the severity and consequences of an intellectual disability will vary, a person with an intellectual disability may have difficulty in grasping complicated questions or abstract concepts and in absorbing and assessing information at a “normal” rate.¹ These difficulties lead to obvious disadvantages in the criminal justice system, whether the person is a victim, a witness or an accused person. The characteristics of an intellectual disability are discussed further in Chapter 2.

1.3 The implications of an intellectual disability provide the context for the proposed reforms outlined in this Discussion Paper. This chapter provides an introduction to the background and conduct to date of the reference. It also sets out the areas to be covered within this Paper and outlines the proposed future conduct of the reference.

BACKGROUND TO THE COMMISSION’S REFERENCE

Over-representation and unfair treatment in the criminal justice system

1.4 This reference arose from concern that people with an intellectual disability were over-represented as offenders and victims in, and/or were being treated inappropriately by, the criminal justice system. It has been estimated that approximately 2-3% of the population have an intellectual disability. The New South Wales Council for Intellectual Disability, for example, estimated in 1992 that in New South Wales (with a population of 5.6 million) there were about 27,500 persons with a substantial disability and 140,000 persons with a mild to moderate intellectual disability. Until recently, many people with an intellectual disability lived in institutions or were otherwise separated from society. Now, with changing community attitudes and a policy of “independent living” programs, people with an intellectual disability are more likely to live in the community and use mainstream community services. Similarly, there is greater community contact with, and input into, institutions and other forms of supported accommodation. It has been stated that: “[i]t is likely that as more people with an intellectual disability come from an institutional setting to live in the broader community, the numbers having contact with the criminal justice system, either as suspects or as victims of crime, will increase.”²

1.5 In relation to offenders, most research has occurred in prisons. A study of inmates in New South Wales prisons estimated that people with an intellectual disability comprise 12-13% of the New South Wales prison population. This study used a definition of intellectual disability which included both the results of intelligence tests and social and adaptive skills.³ It has also been suggested that offenders with an intellectual disability are over-represented in other parts of the criminal justice system. The Commission’s own research in this area,⁴ undertaken by Associate Professor Susan Hayes, suggested that nearly one in four of the persons appearing before Local Courts on criminal charges may have a significant intellectual deficit (see para 1.10 below). Other studies, both in Australia and overseas, consistently point to the over-representation of people with an intellectual disability as offenders.⁵

1.6 The over-representation and particular vulnerability of people with an intellectual disability as victims of crime, particularly sexual assault, has also been commented upon. Recent studies in New South Wales,⁶ and South Australia,⁷ for example, have found a higher than average incidence of sexual assault of such persons and, in the South Australian study, of other crimes. The actual level of victimisation may be even higher, as a Victorian study suggested that victims with an intellectual disability did not report crimes for a variety of reasons, including their lack of understanding that a crime had been committed, and ignorance of where to go to seek help. The study also commented on the small number of cases which actually reach the courts, and the difficulty that these victims have in understanding court formalities and processes.⁸

1.7 The significance of this level of over-representation is that the treatment of people with an intellectual disability is not a marginal issue in the criminal justice system - the numbers are high enough to suggest that every police officer, every criminal lawyer, every prison officer, and every magistrate or judge dealing with criminal matters is likely to encounter people with an intellectual disability in his or her daily work.

THE COMMISSION’S REFERENCE

1.8 It was within the context of concerns about over-representation and unfair treatment that the then Attorney General, the Hon John Dowd QC MP, convened a Committee to conduct a preliminary review of the operation of the criminal justice system as it affects people with an intellectual disability. The Committee contained representatives from a number of agencies, including the Department of Corrective Services, the Criminal Law Review Division of the Attorney General’s Department, the Mental Health Review Tribunal, the Guardianship Board, the Office of the Director of Public Prosecutions, the Magistracy, the Public Defenders and (what is now known as) the Department of Community Services. (The New South Wales Law Reform Commission did not participate in this stage of the review.) The Committee’s two meetings produced a brief Issues Paper which revealed the need for a more comprehensive review of the area.⁹ Accordingly, the New South Wales Law Reform Commission received a reference¹⁰ to inquire into and review the law and practice relating to the treatment of people with an intellectual disability in the criminal justice system. The full terms of the Commission’s reference are set out on page xi of this Paper.¹¹

THE CONDUCT OF THE REFERENCE TO DATE

The Issues Paper

1.9 Considering the breadth of the terms of reference and the variety of interest groups to be consulted, the Commission decided that it should seek a preliminary response to the terms of reference and release an Issues Paper before formulating specific proposals for reform. The terms of reference were widely distributed and the Commission incorporated the comments made in preliminary meetings, interviews, written submissions and telephone calls in an Issues Paper¹² released in June 1992. The Issues Paper traced the criminal justice process, beginning with the commission of a crime and covering contact with the police, appearing before court, sentencing, custody and release; raising questions for discussion about the treatment of people with an intellectual disability at each stage. It was designed to promote discussion and to seek information and comment about the issues raised, rather than to provide solutions.

The Research Reports

1.10 During the preliminary research for this reference, the Commission noted that, except for the prison statistics referred to above, there was a lack of recent statistics about the number of people with an intellectual disability in the New South Wales criminal justice system. It therefore sought funding to carry out some empirical research. The Commission also decided in the early stages of the reference that it should place a priority on seeking input from people with disabilities. This was not a simple matter, however. The Commission’s usual methods of seeking written or telephone submissions, based on written documents, are inappropriate for people with low literacy levels and expression difficulties. With the assistance of the Redfern Legal Centre Intellectual Disability Rights Service, discussion groups were organised using a specially prepared session outline and appropriate discussion leaders. The Commission received funding assistance from the Law Foundation of New South Wales for these projects, resulting in two Research Reports, released in March 1993:

• Research Report 3, People with an Intellectual Disability and the Criminal Justice System: Consultations. This Research Report contains the comments and recommendations for reform made by people with an intellectual disability, who spoke to the Commission about their experiences in the criminal justice system and their ideas for change; and

• Research Report 4, People with an Intellectual Disability and the Criminal Justice System: Appearances Before Local Courts. This study surveyed people appearing before four selected New South Wales Local Courts on criminal charges. Local Courts were selected because of the high numbers of court appearances, and the range and diversity of offences. Social and adaptive skills were not able to be assessed due to privacy considerations, therefore an operational definition of intellectual disability, based on a test of cognitive reasoning ability, was used. With this test, the study found that 14.2% of the sample of 120 people had an intellectual disability and a further 8.8% were in the borderline category. The Research Report suggests some solutions to the problem of over-representation of people with an intellectual disability in Local Courts and indicates where further research may be useful.

The findings of, and difficulties for people with an intellectual disability highlighted by, these Research Reports will be the subject of recommendations in the Commission’s final Report.

1.11 After the release of such preliminary papers, it is the Commission’s usual practice to prepare a Discussion Paper. A Discussion Paper considers the issues raised in the Issues Paper in greater detail together with comments received in response and sets out specific, but provisional, proposals for reform. Such proposals do not represent the Commission’s final recommendations, but allow further detailed comment and consultation. In the course of preparation, it was decided to produce two Discussion Papers, the first dealing with issues relevant to the police, and the second with courts and sentencing options.

The first Discussion Paper: Policing Issues

1.12 People with an intellectual disability come into contact with the police as suspects, as victims and as witnesses to crimes. In each case, identification by the police of a person’s intellectual disability and the consequent use of appropriate questioning techniques is essential. In the Policing Issues Discussion Paper,¹³ released in October 1993, the Commission considered such issues as:

• the adequacy of the existing police guidelines (the Police Commissioner’s Instructions);
• identification of a person’s disability by the police;
• police questioning of suspects, victims or witnesses with intellectual disabilities;
• the effectiveness of the police caution for people with an intellectual disability;
• the treatment of confessions made by people with an intellectual disability;
• standard police procedures such as bail; and
• education and training programs for police officers in all of these areas.

1.13 The Commission sought comments and submissions about the role of the police when dealing with people who have an intellectual disability and about the efficacy of the safeguards proposed in that Paper to ensure that people with an intellectual disability were treated appropriately. In particular, the Commission sought comments from the police about the practicality, within their normal work constraints, of such safeguards.

The Commission’s approach

1.14 As discussed in previous papers for this reference, the Commission recognises that each person with an intellectual disability has the same rights and responsibilities as all other members of the community. Because of the disadvantages and vulnerability to exploitation experienced by people with an intellectual disability, however, the community (and principles of justice) may require that extra procedures are followed in the criminal justice system to ensure that legal principles in practice apply to them equally and uniformly, and to allow them to exercise fully their rights. Similarly, lawyers, police and other personnel involved in the criminal justice system may need special training and techniques in order to better fulfil their legal, official and ethical responsibilities and to ensure that people with an intellectual disability are treated fairly.

1.15 It must be borne in mind, by contrast, that criminal responsibility, in our system of justice, is usually constructed around the concept of subjective intention or awareness. In relation to criminal responsibility, some people with an intellectual disability may not have the same level of responsibility as other members of the community. This may occur because they fall within the defences of mental illness or diminished responsibility or because they may not have the requisite mens rea (or mental state) to be convicted of an offence. For example, in relation to the offence of larceny (theft) the accused must have intended to deprive (permanently) the owner of the relevant object. A person with an intellectual disability may not have had such an intention. Alternatively, some people with an intellectual disability, because of their low level of understanding, may not be found fit to stand trial for an offence. These issues will be discussed further in this Paper.

Consultation

1.16 Over 1000 copies of each of the four papers to date for this reference have been distributed, both in New South Wales and in other, including overseas, jurisdictions. To date the Commission has received over 140 written or oral submissions and attended at least 65 consultation meetings with groups and individuals in the criminal justice and disability services areas. As part of this consultation process, in March 1994 the Commission conducted a series of consultations designed primarily to allow interest groups to supplement information already provided to the Commission and to indicate issues which they believed should be considered by the Commission in this Paper. The Commission consulted individuals and representatives of New South Wales criminal justice and disability organisations including the: Legal Aid Commission of NSW, Magistracy, Office of the Director of Public Prosecutions, Crown Prosecutors, Police Prosecutors, Aboriginal Legal Service, NSW Bar Association, Department of Courts Administration, Judicial Commission, Department of Corrective Services, NSW Probation Service, Juvenile Justice Advisory Council, Department of Juvenile Justice, Redfern Legal Centre Intellectual Disability Rights Service, New South Wales Council for Intellectual Disability, Disability Council of New South Wales, New South Wales Sexual Assault Committee, Brain Injury Association, Mental Health Review Tribunal, Mental Health Advocacy Service, Department of Community Services, Public Guardian, Guardianship Board, Victims Compensation Tribunal and the Victims’ Advisory Council. The Commission is grateful to all the individuals and organisations who assisted us in this way.

1.17 The Commission was further assisted in the consultations and preparation of this Paper by the five week secondment to the Commission of Mr Mark Ierace. Mr Ierace is a Public Defender and the author of a textbook in the area. He has been a honorary consultant to the Commission since the start of the reference. The Commission also conducted a free public Seminar in Law Week in May 1994, which allowed for public feedback and questions about the reference.

OUTLINE OF THIS PAPER

1.18 This Discussion Paper covers the following areas:

• Chapter 2: statutory definitions of intellectual disability;
• Chapter 3: lawyers and other legal personnel and their dealings with people with an intellectual disability, including issues of legal education and problems associated with obtaining instructions;
• Chapters 4-10: the trial: issues arising from the appearance in court of people with an intellectual disability, including fitness to be tried, competence, giving evidence and criminal defences;
• Chapters 11-12: the sentence: sentencing, custody and release, including consideration of the custodial and non-custodial alternatives available for the offender with an intellectual disability and their release from custody; and
• Chapter 13: issues relevant to the whole criminal justice system such as the particular needs of juveniles with an intellectual disability, and the necessity for co-ordination and provision of services.

The Commission invites submissions from the public on all these areas. For details about making a submission see the introductory pages of this Paper.

FUTURE CONDUCT OF THE REFERENCE

1.19 After the release of this Discussion Paper there will be several months of final consultations and submissions. The Commission will then prepare its Report to the Attorney General, annexing, if appropriate, draft legislation. This Report will then be tabled in Parliament and made public.

1. M Ierace Intellectual Disability: A Manual for Criminal Lawyers (Redfern Legal Centre Publishing, Sydney, 1989) at 1.

2. Ierace at 2.

3. S C Hayes and D McIlwain The Prevalence of Intellectual Disability in the New South Wales Prison Population: An Empirical Study (November 1988) at 47. This study assessed the prevalence of intellectual disability in five New South Wales prisons: Mulawa Training and Detention Centre for Women, Central Industrial Prison, Parramatta Gaol, Metropolitan Remand Centre and Broken Hill Gaol. The five gaols held a total population of 1,318 prisoners of whom 675 were screened: at 22.

4. New South Wales. Law Reform Commission People with an Intellectual Disability and the Criminal Justice System: Appearances Before Local Courts (Research Report 4, 1993).

5. This issue will be considered in more detail in the final Report. A summary of research in relation to offenders is found in S C Hayes and G Craddock Simply Criminal (2nd ed, Federation Press, Sydney, 1992), ch 2.

6. NSW Women’s Co-ordination Unit Sexual Assault of People with an Intellectual Disability (Final Report, 1990). This Report found, at 11, that people with an intellectual disability report a higher than average proportion of sexual assault cases. In this study the Department of Health noted disability as a specific data collection item. In the first six months of collection, 55 out of 855 (6.4%) adults referred to the Sexual Assault Service had an intellectual disability. The Report also refers, at 11, to overseas research which revealed a high prevalence of sexual assault against people with an intellectual disability.

7. C Wilson The Incidence of Crime Victimization among Intellectually Disabled Adults (Final Report, National Police Research Unit, 1990). This South Australian study found that people with an intellectual disability were twice as likely as people without this disability to be the victim of a personal crime (eg assault). They were also one and a half times more likely to be the victim of a property offence (eg theft).

8. K Johnson, R Andrew and V Topp Silent Victims: A Study of People with Intellectual Disabilities as Victims of Crime (Office of the Public Advocate, Victoria, 1988). In Victoria, 19 agencies agreed to monitor (during the last quarter of 1987) their cases of alleged crime against people with an intellectual disability. The agencies included government and non-government organisations. Though the study stated that the data should be treated as tentative for a number of reasons, the survey revealed that the overwhelming majority of alleged crimes reported to agencies during the study period involved sexual offences: see Appendix 4.

9. New South Wales. Attorney General’s Department The Intellectually Disabled in the Criminal Justice System (Criminal Law Review Division, Issues Paper, 1991).

10. The reference was received on 30 September 1991 from the then Attorney General, the Hon P E J Collins QC MP, pursuant to s 10 of the Law Reform Commission Act 1967 (NSW). By a separate letter, dated 19 November 1991, the Attorney General also asked the Commission to examine the recent amendments to the Crimes Act 1900 (NSW) in relation to alternate arrangements for the taking of assault victim’s evidence, which currently only apply to children under the age of 16 years.

11. Many submissions have commented on the language used in the terms of reference, and expressed a preference for “people with an intellectual disability” rather than “the intellectually disabled”. The Commission acknowledges this comment and has used the phrase “people with an intellectual disability” wherever possible throughout this reference.

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

13. New South Wales. Law Reform Commission People with an Intellectual Disability and the Criminal Justice System: Policing Issues (Discussion Paper 29, 1993).