AUTHOR

COMMITTEE ON INTELLECTUAL DISABILITY AND THE CRIMINAL JUSTICE SYSTEM
June 2000

CONTENTS

1. Preface
2. Introduction
3. Disability Related Arrangements for Giving Evidence

3.1 Introduction
3.2 Onus of proof - presumption to access disability related arrangements
3.3 In court witness support
3.4 Screens
3.5 Closed-circuit television

4.1 Existing procedures for limiting cross-examination
4.2 The abolition of dock statements
4.3 Evidence Act 1995 provisions
4.4 Current problems with not recognising the right of a person with an intellectual
disability to make a statement not subject to cross-examination
4.5 Arguments for and against the right of an accused with an intellectual disability to
make a statement not subject to cross-examination
4.6 Form of the proposal
4.6.1 Leave
4.6.2 Control of content
4.6.3 Comment on the choice not to give evidence not subject to cross-examination

5.1 Recommendations of the Law Reform Commission
5.2 Nature of expert evidence

PREFACE

This Report was prepared by a Committee on Intellectual Disability and the Criminal Justice System, coordinated by the Criminal Law Review Division of the NSW Attorney General’s Department. The proposals contained herein are not Government policy, and are issued for discussion only.
Any comments can be directed to:

Criminal Law Review Division
NSW Attorney General’s Department
GPO Box 6
Sydney NSW 2001

DX 1227 Sydney

Ph: (02) 9228 7258
Fax: (02) 9228 7128

This is the first of a series of three Reports providing advice and comment on aspects of the Law Reform Commission Report 80: “People with an Intellectual Disability and the Criminal Justice System.” The second report will examine the Commission’s proposals in respect to procedures for interviewing people with an intellectual disability, and the third report, the Commission’s proposals for development of diversionary programs and sentencing options.

ISBN 07313 95174

In September 1998 the Attorney General established a committee to consider the needs of people with an intellectual disability in the criminal justice system. The Government’s initiative followed the findings of the 1996 NSW Law Reform Commission Report 80 entitled People with an Intellectual Disability and the Criminal Justice System, and the 1998 Illawarra Disability Trust’s Review of the Criminal Justice Project In addition the Committee was advised that the Ageing and Disability Department had coordinated an Inter-departmental Committee for 4 years on intellectual disability in the criminal justice system, and many working papers had been developed. The Attorney General’s Department brought together key government and non-government agencies and other stakeholders, to address some of the findings of these reports. The Committee established terms of reference as follows:

“The purpose of this Committee is to make recommendations to:

(a) minimise unwarranted contact with the justice system by people with an intellectual disability; and
(b) ensure that if a person with an intellectual disability does come into contact with the justice system they receive appropriate and fair treatment before, during, and after, the court proceedings.

In particular the Committee will provide advice and comment upon the following legislative and non-legislative reforms, including:
• the procedures to enhance the giving of evidence in court by people with an intellectual disability;
• the procedures for interviewing people with an intellectual disability;
• the development of diversionary programs and sentencing options for people with an intellectual disability”.

• disability related arrangements for giving evidence (including the assistance of a support person, the use of screens, and closed circuit television);
• the right to make an unsworn statement not subject to cross-examination (‘dock statements’); and
• expert evidence about the characteristics and demeanour of a witness with an intellectual disability.

3.1 Introduction
Whether as a defendant, a victim or a witness to events, people with an intellectual disability can and do give evidence in court. There are two primary policy considerations underpinning the need for people with an intellectual disability to have disability related arrangements in place when giving their evidence.

First of all, disability related arrangements will help protect witnesses who are particularly vulnerable because of intellectual disability from some of the potential trauma associated with giving evidence arising from that disability.

Secondly, it is fundamental to the administration of the justice system that any witness is able to give accurate and undistorted evidence.

The experience of prosecuting authorities in cases involving victims and witnesses with intellectual disabilities is frequently that the witness’s anxiety may make giving evidence difficult, if not impossible. In certain circumstances, this may mean that the prosecution is unable to bring its case.

As the NSW Law Reform Commission has observed,

“The use of special arrangements is intended to overcome the barriers to giving evidence faced by a particular witness and to put him or her in the same position as witnesses generally, not in a more favourable position. Special arrangements must not derogate from the right of the defendant to a fair trial. A fair trial does not, however, demand that the witness must be in the witness box and the defendant in the dock or even that they must both be in the same room.” [1]

“If the court is satisfied that a witness with an intellectual disability may be unable to give his or her evidence without the use of special arrangements because he or she is unduly inhibited in giving evidence in the normal way, the court may order that special arrangements (for example, the assistance of a support person, the use of screens or changed seating arrangements and closed circuit television (“CCTV”)) be made for taking that witness’s evidence.” [2]

• in-court witness support;
• screens; and
• closed-circuit television (CCTV).

3.2 Onus of proof - presumption to access disability related measures
There is a question as to the circumstances in which witnesses and defendants with an intellectual disability should be entitled to access disability related measures. The Committee considered that the recommended disability related arrangements would be highly beneficial for those for whom they are intended, but felt it would be likely that some witnesses would not seek to nominate for their protection. The Committee was also mindful that in a small number of cases there will be an issue as to whether a witness/defendant without an intellectual disability is seeking to use disability related measures for some perceived tactical advantage. The Committee concluded that all witnesses and defendants should generally be able to access disability related measures, but that in contested matters the court should be entitled to examine whether a witness/defendant has an intellectual disability.

2. The Committee recommends: that where a person applies for intellectual disability related arrangements in court that person should be presumed to have an intellectual disability as an entitlement to access those arrangements unless the contrary is shown.

3.3 In-court witness support
Many features of court attendance which may be difficult for people with an intellectual disability include that:

• large courts are busy and can be confusing places;
• complying with attendance requirements necessitates good literacy skills and a degree of problem-solving ability;
• delays in proceedings may lead to considerable ‘down time’, and long periods of waiting may occur;
• consultation with lawyers may be brief and rushed;
• the capacity to understand court proceedings requires a reasonably high level of ‘auditory processing’ ability; and
• adherence to court etiquette is required but might be difficult to achieve. [5]

3.4 Screens
This sub-section will consider another disability related arrangement, namely the use of screens physically to shield a witness (other than a defendant) giving evidence from engaging in eye contact with the defendant. A witness may be particularly intimidated by the presence of the defendant or fear that the defendant might still have the capacity to cause them harm, particularly in cases involving personal or sexual violence. Currently, children under 16 years of age are entitled to give evidence by means of closed-circuit television or alternative means, such as the use of screens (s24(3)(a) Evidence (Children) Act 1997 (NSW). The NSW Law Reform Commission reported that screens are frequently used for children in Local Courts. [9] Section 24(3) Evidence (Children) Act 1997 which provides for special arrangements in this regard is not limited; it includes the use of screens as well as changed seating arrangements, or adjourning the proceedings to other premises.

The South Australian Attorney General’s Department has considered the advantages and disadvantages of using screens. The advantages of using screens include:

• screens reduce the trauma of giving evidence before the accused;
• both the accused and the witnesses remain in the court room and can be seen by the court;
• the accused can communicate with his or her lawyers while the witness is giving evidence; and
• screens are relatively inexpensive and easy to obtain and move.

• a witness who is aware that the accused is behind the screen may in any event remain intimidated;
• screens cause special difficulties where the accused conducts his or her own defence, and where the witness is required to identify the accused; and
• even with judicial warnings, the use of the screen could create a presumption of guilt against the accused person, as the jury might interpret the need to separate the witness from the accused as an indication that the accused had in fact committed the offence. [10]

3.5 Closed-circuit television
This sub-section will consider another special arrangement, namely the reception of court evidence through closed-circuit television (“CCTV”). CCTV allows an audio -visual link between the courtroom and another room, with viewing monitors in both locations. The court can still hear and see the witness, and the witness can still identify the accused if required.

The Australian Law Reform Commission’s Report 63, Children’s Evidence: Closed Circuit TV is the most comprehensive Australian research paper on the experience of using CCTV for child witnesses. The report considered a 12 month trial period in which CCTV was used for certain proceedings involving child witnesses in Magistrates courts in the Australian Capital Territory, and concluded with a positive assessment of CCTV technology. In favour of CCTV, the report found:

• children who used CCTV benefited directly because they were less anxious and had been given a greater sense of control over their role in the proceedings; [11]
• the ability to facilitate CCTV was more psychologically important than its actual use; [12]
• children were more forthcoming with their evidence. Most professionals involved in the trial were of the opinion that CCTV allowed the court to have better quality evidence, without prejudicing the conduct of the defence case. It was noted that the technology allowed certain cases to proceed that may not have been brought without it; and [13]
• the use of CCTV had an indirect benefit, as it acted as a constant reminder of the status of the witness. The behaviour of both magistrates and lawyers was more supportive of child witnesses when CCTV was used. Magistrates intervened more often, particularly during cross-examination to clarify language. [14]

• the impact of evidence is altered, and possibly reduced, when given by CCTV. It has been noted that the elimination of trauma may remove the distress which is perceived as supporting the veracity of the witness’s evidence. Conversely, it was argued that the witness’s use of the technology may make it easier to lie without detection; [15]
• while a majority of legal professionals concluded that the use of CCTV did not prejudice the accused, a minority claimed that it removed the right of the accused to confront the witness, face-to-face, with the allegations made. In comparison, the majority of respondents believed that the right to confront the witness only extended so far as the right to confront the witness’s evidence; and [16]
• CCTV is relatively expensive to install and use, and often has attendant technological problems; [17]

• most jurors do not perceive CCTV to be an impediment to reaching a verdict;
• jurors do not find CCTV equipment distracting when it is working properly;
• most jurors said it would not make it easier to reach a verdict if they saw the child in the courtroom.

1. NSW LRC Report 80, para 7.15.
2. Recommendation 29 of NSW LRC Report 80.
3. These procedures are found in Evidence (Children) Act 1997 s.17-24 & 27-28 which commenced 1/8/99. They were previously contained in the Crimes Act as ss405C - 405I.
4. New South Wales. Parliamentary Debates (Hansard) Legislative Assembly, 4 April 1990 at 1682, per the Hon J Dowd QC MP, the Attorney General.
5. A Shaddock and A Shaddock, Review of the Illawarra Criminal Justice Project, Illawarra Disability Trust, 1998, p. 25.
6. Evidence Act 1958 (Vic) s.37C(3)(c), Evidence Act 1997 (Qld) s.21A(2)(d), Evidence Act 1929 (SA) s.13(2)(c), Evidence Act 1939 (NT) s.21A(2)(c) Evidence Act 1906 (WA) s.106R(4)(a). Parties to AVO proceedings, including adults, are also entitled to the presence of support persons: Crimes Act 1900 (NSW) s562ND.
7. Cashmore and Bussey, “Judicial Views of Witness Competence” (1996) 20(3) Law and Human Behaviour 313, p. 324.
8. A similar position has been adopted in a report to the Scottish Government in relation to the use of support persons with child witnesses: J Murray, Live Television Link: An Evaluation of its Use by Child Witnesses in Scottish Criminal Trials (The Scottish Office, Central Research Unit, Edinburgh, 1995), p. 151.
9. New South Wales Law Reform Commission, People with an Intellectual Disability and the Criminal Justice System (Discussion Paper 35, 1994) (“NSW LRC DP 35”), para 7.30.
10. South Australian Attorney General’s Department, White Paper on the Courtroom Environment and Vulnerable Witnesses (1992) p. 11.
11. Australian Law Reform Commission, Children’s evidence: Closed Circuit TV ( Report 63, 1992) (“ALRC Report 63”) para 16.
12. J Cashmore, The Use of Closed-Circuit Television for Child Witnesses in the ACT (Children’s Evidence Research Paper 1, Australian Law Reform Commission, 1992) (“ALRC RP1”) at paras 7.15-7.23
13. ALRC Report 63, para 16.
14. ALRC RP1, para 7.24.
15. ALRC RP 1, para 7.49.
16. ALRC RP 1, para 7.49.
17. ALRC RP 1, paras 7.59-7.62.
18. Western Australia Ministry of Justice, Strategic and Specialist Services Division, Results of a Survey of Jurors in Western Australia conducted Between November 1994 and February 1995 (1995), p. 36.
19. Whitney and Cook, The Use of Closed-Circuit Television in New Zealand Courts: The First Six Trials (New Zealand Department of Justice, Wellington, 1990), p. 9.
20. NSW Women’s Co-ordination Unit, Sexual Assault of People with an Intellectual Disability (Final Report, 1990), recommendations 25 and 26.
21. L Morris, “Evidence by TV less effective, inquiry told” The Sydney Morning Herald (25 May 1994) at 7, and M Knox, “Video evidence ‘last resort’ in sex cases”, The Sydney Morning Herald (23 July 1994) at 6.
22. Evidence (Children) Act 1997, s.I8
23. Again on the basis that he potential for prejudice to an accused outweighs the potential benefits to the witness.

4.1 Existing procedures for limiting cross-examination
During a hearing the court has a power to control the conduct of the questioning of a victim, a witness or accused, including those with an intellectual disability. The Evidence Act 1995 (NSW) gives the trial judge substantial control over “the way in which witnesses are to be questioned.” [1]-[2] or a question deemed to be “improper” may be disallowed. Sections 41(2) and 42(2) provide that the witness’s intellectual ability is one matter which the court must take into account when considering these issues. Under s. 29(2) the court has the discretion to allow a witness to “give evidence wholly or partly in narrative form”, and s. 29(3) allows the court to make directions about the way evidence is to be given in that form.

Notwithstanding the provisions of the Evidence Act 1995 (NSW), the Law Reform Commission Report noted that while the provisions “will help overcome some of the problems faced by a witness with an intellectual disability, they will not avoid them all.” [3]

4.2 The abolition of dock statements
This sub-section will consider the use of ‘dock statements’ to overcome some of the problems faced by people with an intellectual disability. Until recently, an accused had the right to give a statement to the court during a trial by way of a dock statement. The statement was not made under oath and its reliability could not be tested by cross-examination. The purpose of the dock statement was to give accused persons the opportunity to tell their story in their defence. However it was observed that dock statements were open to exploitation by a clever accused, or might contain long and complicated statements. The right to make a dock statement was abolished for all accused in the Crimes Amendment (Unsworn Evidence) Act 1994, which repealed s. 409C of the Crimes Act 1900. [4]

In the second reading speech of the amending Act, the then Attorney General and Minister for Justice, the Hon J. Hannaford MLC explained:

“The truth of assertions made by an accused to the jury cannot be tested by cross-examination. In abolishing the right to make dock statements, it is aimed to remove the existing unchecked process whereby an accused can make unchallenged allegations and attacks on the character of witnesses and victims. The accused will be prevented from ambushing the prosecution’s case by introducing material which is not subject to cross-examination.” [5]

“If the court is satisfied that the defendant has an intellectual disability, the defendant should have the right to make a statement not subject to cross- examination, to the court, subject to the court’s discretion about the length, subject matter and scope of the statement.” [6]

4.3 Evidence Act 1995 (NSW) provisions
Generally, evidence in court is given on oath by swearing on the Bible or Koran or by affirmation - a solemn declaration to tell the truth. However, provision needs to be made for those who by virtue of their age, incapacity or disability are simply unable or competent to swear an oath.

Section 13(2) allows a person who is not competent to give unsworn evidence, if:

(a) the court is satisfied that the person understands the difference between the truth and a lie, and
(b) the court tells the person that it is important to tell the truth, and
(c) the person indicates, by responding appropriately when asked, that he or she will not tell lies in the proceeding.

• appear evasive when they cannot remember something (defective short-term memory is a common feature of intellectual disability);
• because of suggestibility or lack some forms of understanding, agree to something which is not true; or
• because of limited vocabulary and intellect, misunderstand questions and words.

• the jury draws adverse inferences of guilt, despite directions by the trial judge; and/or
• the co-accused or the trial judge make adverse comments on the accused’s failure to give evidence [9]

4.5 Arguments for and against the right of an accused with an intellectual disability to make a statement not subject to cross-examination
The primary argument in support of introduction of legislation to provide an accused with an intellectual disability with the right to make a statement not subject to cross-examination is that it is one practical way to address the severe disadvantages such an accused faces compared to other accused persons in the criminal justice system. It is a disability-related measure to ensure that an accused person with an intellectual disability receives a fair trial. A statement not subject to cross-examination:

• gives accused persons the opportunity to tell their story in their own words; and
• gives less articulate accused persons an opportunity to respond to the evidence against them that they might otherwise not have because of their incapacity to cope with cross-examination.

“It is a fundamental principle of the law of evidence that a court should be asked to act only on the most reliable material. It is axiomatic that evidence which has been tested by cross-examination is more reliable than evidence which has not. This is not only - or even primarily - a matter of demeanour. Cross-examination provides the opportunity for the opposing party to test the probability of the witness’s evidence being correct. Additional facts may be elicited which will demonstrate that the evidence is not, or unlikely to be, correct. At the very least the evidence given by the witness will be placed in a fuller context; thus assisting the jury to assess its reliability.” [12]

“[G]enerally such measures should not be available simply because of a person’s membership of a particular group, for example the fact that the person has an intellectual disability or comes from a non-English speaking background, but should be needs-based, that is, that a person would be disadvantaged as a witness without such procedures. The Commission believes that such an approach is more appropriate than a membership or category-based approach.” [14]

“To base inclusion on “vulnerability” alone would allow many accused persons to assert that they fall within the exception. The resulting strain on the criminal justice process may be unacceptable.” [15]

4.6 Form of the Proposal

4.6.1 Leave
In broad terms, the Committee recommends that dock statements be reintroduced in a modified form for people with an intellectual disability. The NSW Law Reform Commission has suggested that for the accused to exercise the right to make a statement not subject to cross-examination, “the court would have to be satisfied, on the balance of probabilities, that the defendant has an intellectual disability as defined. This would be established in a particular case on the basis of expert evidence.” [16] The application of this suggestion would by no means be uncomplicated.

The Victorian Law Reform Commission was critical of an approach which involved the seeking of leave, and noted that such discretion would place an:

“onerous, and often invidious, burden upon the trial judge to choose among those defendants who applied for what would be seen as a privilege. Such applications might take up a substantial amount of time. The exercise of discretion would, inevitably, give rise to appeals about its exercise. Even with clear criteria for exercise of the discretion these consequences would follow.” [17]

“extends to the judiciary. Whether an accused is allowed to make an unsworn statement will depend in many cases on the judge allocated to the trial.” [18]

4.6.2 Control of content
Various reports have suggested that the court should have a discretion to control the content of dock statements. These recommendations are motivated by legitimate concerns that during dock statements, accused persons may introduce irrelevant material and/or lie and attack prosecution witnesses with impunity.

The NSW Law Reform Commission proposed that:

“the court would also have the power to give directions about the length, subject matter and scope of the statement. It could vet the statement and, by direction, exclude material which, in its opinion, was irrelevant or vexatious, would make the statement too long, or would constitute an unjustified attack on the character or credit of the witness. It follows that the statement would have to be reduced to writing before its delivery.” [19]

“Where the accused is legally represented, he or she should be allowed legal advice in preparing unsworn evidence and assistance in giving it. If the accused is unable to read, the lawyer representing the accused should be able, with leave of the court, to read the statement. With leave of the court, the lawyer representing the accused should be able to question the accused after the conclusion of the unsworn evidence.” [21]

4.6.3 Comment on the decision not to give evidence not subject to cross- examination
Counsel should not be allowed to comment on the failure of the accused to give evidence under cross-examination. To allow this would shift attention to the significance of the choice made by the accused, and away from the actual focus of the case. The trial judge should be able to comment on the failure of the accused to give evidence under cross-examination, but not so as to suggest that the giving of such evidence is due to an awareness of guilt or that such evidence is necessarily inferior to cross-examined evidence. The Committee recommends that only the presiding judge be permitted to comment on an accused’s election to give evidence via a dock statement.

8. The Committee recommends that the presiding judge only, be allowed where deemed appropriate to comment on the accused’s election to give evidence via a dock statement, but not to suggest that the making of a dock statement was due to an awareness of guilt or was necessarily inferior to cross-examined evidence.

It is noted that while the majority of the Committee supported the reintroduction of a dock statement for an accused with an intellectual disability, this position was opposed by the NSW Police Service and the Director of Public Prosecutions, who rejected the arguments for its introduction noted above. It is also noted that a submission from the Public Defenders opposed the recommendation that an accused must establish that he or she has an intellectual disability before a court can allow an accused with an intellectual disability to give evidence via a dock statement. The Public Defenders took the view that as with the other recommended arrangements for the intellectually disabled, there should be a presumption in favour of entitlement.

Footnotes

1. Evidence Act 1995 (NSW) s. 26.
2. A leading question is one that suggests the answer to a witness eg “You were driving a red car weren’t you?”
3. NSW LRC Report 80, para 7.23.
4. The repeal applies to charges for offences on or after 10 June 1994.
5. New South Wales. Parliamentary Debates (Hansard) Legislative Assembly, 13 April 1994 at 1082, per the Hon J Hannaford QC, MLC Attorney General, Minister for Justice.
6. NSW LRC Report 80, para 7.24.
7. M Brennan, School of Education, Charles Sturt University Submission to NSW LRC Report 80 (10 August 1992).
8. Australian Law Reform Commission, Evidence (Report 38, 1987)(“ALRC Report 38”), para. 92.
9. Evidence Act 1995 (NSW) s. 20.
10. New South Wales Law Reform Commission, People with an Intellectual Disability and the Criminal Justice System (Discussion Paper 35, 1994) at para. 7.60. Compare R v Hunt (Supreme Court, NSW, Hidden, J, 9 February 1996, Crim D 70017/95, unreported, at 14-15), where Justice Hidden admitted the accused’s version of events under s.60 of the Evidence Act 1995.
11. Evidence Act 1995 (NSW) s.60. See also R v Welsh (1996) 90 A CRIM. R 364.
12. ALRC Report 38, para 103.
13. New South Wales Law Reform Commission, Criminal Procedure: Unsworn Statements of Accused Persons (Report 45, 1985)(“NSW LRC Report 45”) para. 1.21.
14. NSW LRC DP 35, para 7.66.
15. NSW LRC, DP 35, para. 7.62.
16. NSW LRC Report 80, para 7.29
17. Victorian Law Reform Commission, Unsworn Statements in Criminal Trials, (Report 2, 1985), para 3.24.
18. ALRC Report 38, para 97.
19. NSW LRC Report 80, para 7.29.
20. ALRC Report 38, para 96.
21. ALRC Report 38, para 87.
22. ALRC Report 38, para 95.

5.1 Recommendations of the Law Reform Commission
This section will consider the admissibility of expert evidence about the nature of a witness’s intellectual disability. The Commission has recommended:

“On application by a party, the trial judge should have the power to allow expert evidence to be led to explain the characteristics and demeanour of a witness with an intellectual disability if his or her characteristics and demeanour are outside normal experience.” [1]

“(a) where expert evidence is needed to clarify that witness’s manner of giving of evidence; and
(b) where expert evidence is needed to understand how the witness’s degree of disability is important to the circumstances of the offence or, if the witness is not the accused, to explain/provide evidence about the way the person behaved.” [2]

“We strongly support the use of evidence as to a disability in Court, or at any earlier time if it would then be useful. … It is naïve and inappropriate for judges and magistrates to consider that their life experience properly equips them to assess accurately the extent, effects, and implications of an intellectual disability.” [3]

• “have limited communication skills, reduced attention span and memory recall; and/or
• be intimidated by the courtroom environment and by cross-examination, and so appear evasive, nervous, hesitant, or frustrated and angry.” [5]

1. NSW LRC REPORT 80 recommendation 31.
2. NSW LRC DP 35, para 8.8.
3. Kingsford Legal Centre Submission to NSW LRC Report 80, (29 October 1992) at 4-5.
4. S Hayes and G Craddock Simply Criminal (2nd ed., Federation Press, Sydney, 1992) at 183.
5. NSW LRC DP 35, para 8.2.
6. NSW LRC Report 80, recommendation 14.
7. NSW LRC Report 80, recommendations 44 and 45.

• the benefits of using alternative arrangements for giving evidence would be lost if the vulnerable witness is confronted by the accused, regardless of whether CCTV is used or not.
• where witnesses are victims of an offence of personal violence and indicate that they are frightened or feel intimidated by the accused or the defendant or have been threatened by them, there is a significant chance that they will be inhibited in their efforts to give cogent evidence.
• where an accused/defendant is cross examining a vulnerable witness, there is a significant chance that a witness could suffer further traumatisation, particularly where the offence was one of personal violence and results in a rigorous dire cross-examination on the facts by the accused or defendant.
• where a witness knows that the accused/defendant is going to cross-examine him/her directly, this can act as an impediment to the witness proceeding with the matter, which may result in the failure of a prosecution. If that witness does proceed, then the quality of the evidence is not generally of such quality as would normally be expected if the cross-examination had been conducted by counsel.
• where counsel or an approved person cross-examines a vulnerable witness, consideration is usually given to the cognitive function of the witness and his or her language ability, in the style of questioning. It cannot be assumed that an accused person would have the knowledge and skills to cross-examine in this way. This would put the witness at a severe disadvantage in being able to both understand the question and being able to give an accurate response (see also discussion at 4.4).

• the dynamics of cross-examination are impeded by having a third person relay the questions;
• it is inappropriate for questions to be directed through judges or magistrates;
• it is inappropriate when legal aid has been refused for a defendant or accused, that a legal aid or other lawyer be asked to act as the third person;
• there may be communication problems between the accused and the third person;
• the accused or defendant may have an intellectual disability and may need assistance with communication, further impeding communication difficulties with a third person; and
• accessing the appropriateness of a third person may cause delays or adjournments in hearings.

7.1
The Committee recommends the introduction of legislation containing a warning similar to that provided in section 25 of the Evidence (Children) Act 1997 (NSW) where disability related arrangements for people with an intellectual disability are made.

7.2
The Committee recommends that there be a presumption that a person applying for intellectual disability related arrangements is a person with an intellectual disability and is therefore entitled to access those arrangements.

7.3
The Committee recommends that legislation in similar terms to section 27 of the Evidence (Children) Act 1997 (NSW) be introduced, permitting the use of a support person in court for a witness or a defendant with an intellectual disability. The exact role of the support person should be flexible, with the court giving directions regulating the conduct of a person providing support to a witness. Regulations can specify, without limiting, the role of the support person. The Committee preferred the establishment of a system which used trained support persons, rather than untrained support persons.

7.4 + *
The Committee recommends that, subject to the Court’s discretion, a witness with an intellectual disability should be permitted to have a screen between them and the defendant. The Court should also have sufficient procedural flexibility to change seating arrangements or move premises during a hearing, if necessary

7.5 +
The Committee recommends that legislative provisions allowing people with an intellectual disability to give evidence via CCTV be framed with the presumption that such CCTV facilities will be used, unless the witness does not want it, or if the court is satisfied that it is not in the interests of justice to do so.

7.6 + *
The Committee recommends that where a person establishes on the balance of probabilities that they have an intellectual disability, they should have a right to give evidence by way of a dock statement.

7.7 *
The use of a written dock statement should be encouraged, but not mandatory. Where an accused is legally represented, he or she should be allowed legal advice in preparing and delivering the statement. With the leave of the court, an accused’s legal representative should be permitted to read the statement for the accused or question the accused after the accused has made the statement.
The court may advise an accused making a statement not subject to cross examination that it may interrupt the making of the statement.

7.8 +
The Committee recommends that the presiding judge only be allowed where deemed appropriate to comment on the accused’s election to give evidence via a dock statement, but not to suggest that the making of a dock statement was due to an awareness of guilt or was necessarily inferior to cross-examined evidence.

7.9
The Committee recommends that the court be provided with a discretion to allow expert evidence to be called as to the nature, extent and characteristics of a witness’s intellectual disability (whether the issue is raised by any party or the court). Any statement made by the defendant to an expert relating to the offence should not be received as evidence of the facts against him/her.

7.10
The Committee recommends that the information included with the New South Wales Law Reform Commission’s educative strategies should include the relative strengths of psychologists or any other suitably qualified person, as an expert in the area of intellectual disability.

7.11
The Committee recommends that there be a presumption in favour of a witness with an intellectual disability having alternative arrangements for giving evidence, and that this includes, where the accused is unrepresented, the right to be cross examined via a court appointed third person.

+ These 4 recommendations were not supported by the Public Defenders.
* These 3 recommendations were not supported by the Police and DPP.

• be able to communicate clearly with the defendant, witness or victim as well as with the court;
• not be a witness involved or likely to be involved in the hearing;
• not have a financial interest in the outcome of the hearing; and
• not be a lawyer involved in the case.
  

• why they need to go to court;
• the location of the court and where to meet the support person on the day of the hearing;
• how to get to court, what public transport is available, and assist with transport arrangements as required;
• when to be at the court;
• that courts are a formal environment and appropriate dress should be worn;
• what general behaviour is expected in a court hearing;
• court formalities;
• if the person with an intellectual disability is a witness what expenses may be compensated; or
• if the person is a victim of a violent crime (including sexual assault), refer them to the Victims Compensation Tribunal, and/or the Victims of Crime Bureau.

For example, when the person you are supporting starts to give evidence, the court may grant you permission to speak to ensure their rights are protected. You may for instance:

• ask a lawyer or others to rephrase a question in simpler language
• ask the court for more time for the person to answer the question; and
• request a short break for the person if they are tiring.

• you must not talk about the evidence with the defendant, witness or victim before or during the court hearing or during breaks or between adjournments;
• you must not help the defendant, witness or victim to prepare the evidence, and you must not rehearse what he or she is going to say;
• you must not help the defendant, witness or victim to answer questions or tell them what to say when they are giving evidence;
• you must not give body signals to the defendant, witness or victim about their evidence;
• you must not behave in a way that gives the appearance that you are helping or telling the defendant, witness or victim what to say. If you do so, you may be removed from the courtroom;
• you must not take notes during the court hearing;
• you must not induce or coerce the person to speak, nor speak on behalf of the person; and
• you must not act as a legal representative.

• You must do what the Court Officer tells you to do.
• You must sit behind the witness and next to the Court Officer. If an interpreter is used, the interpreter will sit nearer to the microphone.
• When the equipment is off, is not transmitting or breaks down, you may assist or comfort the witness, but you must not talk about the hearing or the evidence given by the witness.