Crimes Mental Impairment consultation paper.pdf - Victorian Law ...

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4.65 Some jurisdictions have legislative provisions that enable the court to modify its processes
to better suit people with an intellectual disability or cognitive impairment. In Queensland,
for example, the Mental Health Court may appoint assistants to assist the court in
hearings (by providing support to accused people). Assistants may be people who:
• have appropriate communication skills or appropriate cultural or social knowledge or
experience
• have expertise in the aetiology, behaviour and care of people with an intellectual
disability. 82
4.66 In England and Wales, the Youth Justice and Criminal Evidence Act 1999 (UK) provides
that on application of the accused person, the court may direct that any examination
of the accused person be conducted through an ‘intermediary’. 83 The function of an
intermediary is to communicate:
• to the accused person, questions put to the accused person
• to any person asking such questions, the answers given by the accused person in
reply to them, and to explain such questions or answers so far as necessary to enable
them to be understood by the accused person or the person in question. 84
4.67 Intermediaries also have a role under the Youth Justice and Criminal Evidence Act to
assist victims and witnesses with intellectual disabilities or cognitive impairments in
giving evidence. 85 The Law Reform Committee recommended recently that the Victorian
Government consider establishing a witness intermediary scheme modelled on the
scheme in the United Kingdom.
4.68 Modifying court processes by providing a support person to assist the accused person
may address some of the barriers that an accused person with an intellectual disability or
cognitive impairment may experience in court.
4.69 Another way of increasing the level of support provided to accused people who may be
unfit to stand trial could involve assisting the judiciary in managing proceedings involving
accused people with an intellectual disability or cognitive impairment. Research indicates
that people with intellectual disabilities are able to engage more with the court process
with appropriate supports. For example, they are better able to participate where short
sentences are used or a small amount of introductory information is provided when
introducing new concepts. 86
4.70 The Law Reform Committee in its Inquiry into Access to and Interaction with the Justice
System by People with an Intellectual Disability and their Families and Carers recognised
the important role the judiciary plays in ensuring that people with an intellectual disability
or cognitive impairment participate in the court process. 87 The Law Reform Committee
recommended that the Victorian Government support the Judicial College of Victoria to:
• provide more training opportunities for members of the judiciary about best practice
management in proceedings involving a person with an intellectual disability or
cognitive impairment 88
• develop, in consultation with members of the judiciary and the disability sector,
guidance material on how the needs of people with an intellectual disability or
cognitive impairment can be identified and appropriately met, including with
modifications to court proceedings. 89
82 Mental Health Act 2000 (Qld) s 410.
83 Youth Justice and Criminal Evidence Act 1999 (UK) s 33BA(3). This section of the Youth Justice and Criminal Evidence Act is not yet in force.
84 Ibid s 33BA(4).
85 Youth Justice and Criminal Evidence Act 1999 (UK) s 29(2).
86 William R Lindsay ‘Adaptations and Developments in Treatment Programs for Offenders with Developmental Disabilities’ (2009) 16 Psychiatry,
Psychology and Law 18, 23.
87 Law Reform Committee, above n 62, 216.
88 Ibid 222.
89 Ibid.
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