INTRODUCTION
7.1 There is one view that people with an intellectual disability should not be put through the criminal justice system because of their lack of understanding of the consequences of their actions or of the procedures involved in bringing a person to trial, and because of the inappropriateness of the sanctions provided by that system. Concerns have often been expressed, for example, about the vulnerability of people with an intellectual disability in a prison or other custodial setting. It has been suggested that they should be “diverted” into some other system and the response to their “crime” should be counselling or other social services, rather than punishment. For example, in the United States it has been stated that:
Diversion programs are increasingly being considered the most appropriate option for many mentally retarded individuals who are incompetent to stand trial. In fact, by 1980 a survey revealed that 20 out of 36 state court systems had begun to make alternative placement recommendations for such persons ...1
7.2 Diversion from the criminal justice system is difficult to define precisely because many “alternatives” have now been incorporated within the mainstream criminal justice system (for example, the use of mediation or other forms of alternative dispute resolution, or offender rehabilitation programs). Also, a number of measures sometimes described as “diversionary” may be better seen as alternative penalties. The following definition has been offered:
Diversion is commonly defined as any deviation from the ordinary criminal justice process before an actual prosecution which suspends the case without the court actually making a judgment, and which makes the offender participate in some type of non-penal program.2
7.3 Diversion schemes are sometimes used when it is believed that the usual punishments would be inappropriate or ineffective; for example, in relation to juveniles, drug offenders and certain types of sex offenders. The advantages and disadvantages of the different forms of diversion have been discussed extensively elsewhere.3 The Commission was asked, by its terms of reference, to consider:
whether, and to what extent, the intellectually disabled should be diverted from the criminal justice system, including consideration of the custodial and non-custodial alternatives to the sentencing and detention of the intellectually disabled.
Diversion programs have been used throughout the world. This chapter will focus on the role of the police in diverting people with an intellectual disability from the criminal justice system. Other options for diversion, occurring at different stages of the criminal justice process, will be considered further in the Commission’s next Discussion Paper.
DIVERSION BY POLICE
7.4 Diversion from the criminal justice system can occur at the police level, as at some stage during the investigation of an alleged offence the police must make a decision whether or not to charge the suspect.4 The police have considerable discretion in this regard. Warnings and informal cautions may be given in a variety of circumstances. It was suggested in the Issues Paper that police may be unwilling to charge a person with a documented history of intellectual disability, especially if the offence is a minor one, and may return the person to his or her family or residential institution. Police may believe that charging is inappropriate considering the person’s level of understanding or may believe that the case will not proceed and that it will be a waste of their time, for example if the person is a repeat offender and previous charges have been dismissed under s 32 of the Mental Health (Criminal Procedure) Act 1990 (NSW).5 Alternatively, it has been suggested that in England people may be prosecuted “in order to secure help for the offender which cautioning does not provide (such as treatment for mental disorder)”. This position was contrasted with the availability in Scotland of social welfare based diversion programs.6
The decision to charge
7.5 The Commission’s Issues Paper referred to a report of the Victorian Office of the Public Advocate, which argued that a decision by police not to charge because of a perception that people with an intellectual disability are childlike and therefore not “responsible” for their actions, or in need of “treatment” rather than legal sanctions, is contrary to the principle of normalisation and is not in the interests of the person (or the community). The Office of the Public Advocate stated that:
7.6 By contrast, the New South Wales Attorney General’s Committee, which recommended that this area be referred to the Commission, considered that:
[d]iscretion should be used prior to charging an intellectually disabled offender. Such discretion is available to police when administering cautions for example, to children, rather than charging them. This diversionary process is a recognition of the suitability of such a course and the inappropriateness of involving a young person in the criminal justice system. In certain situations it is equally inappropriate to charge an intellectually disabled offender thereby involving him or her in the criminal justice system. It is not proposed, however, that a lenient approach be adopted by the police as this may have the negative impact of reinforcing unacceptable behaviour in an intellectually disabled offender. If it can be firmly impressed on the offender by the police that certain behaviour is inappropriate and unacceptable, then diversion from the criminal justice system at this stage may be most beneficial.8
7.7 Some submissions to the Commission have not fully accepted the Office of the Public Advocate’s approach. For example, the Commonwealth Office of Legal Aid and Family Services stated that:
[i]t is inappropriate to involve people with intellectual disabilities in the criminal justice system, particularly in minor matters, for the sake of applying the principle of normalisation. If we are to take the principle of normalisation to this extreme, then we would also be advocating that people with intellectual disabilities should not be granted any special procedures when being interviewed by police, appearing before courts and so on. In some cases a person’s intellectual disability may be an extenuating factor in the crime, and should be taken into account when police are deciding whether or not to charge. The criminal justice system is already pressured, and this pressure should not be increased with the inclusion of offenders in minor matters who could be warned instead ...
We therefore support the Attorney-General’s Committee view that people with intellectual disabilities, when involved in minor offences, should be diverted from the criminal justice system wherever possible.9
7.8 It is unwise to make a blanket rule in relation to this issue. The Legal Aid Commission stated that the option of not charging is appropriate for people with an intellectual disability in some cases, in the same way that police may exercise this option for non-disabled people. The Legal Aid Commission commented that:
[b]eing arrested, charged and taken before the court is usually a very stressful experience for anyone. A person with an intellectual disability may well face extra trauma and distress depending on the nature and extent of the disability.10
7.9 An example of such trauma was provided in a submission to the Commission, which related the case of a person with an intellectual disability (“X”) who was brought before a court, while still a juvenile, on a minor assault charge involving a family friend. A member of his family commented that:
[t]he psychological trauma that this conviction caused will never be overcome by X. The long term effect has left him fearing “authority”, especially members of the police force. As he was not “believed” by the police he now will not report any incidences for fear of being reprimanded should someone blame him, even when he has had no part in them. Furthermore, the stress upon the family was enormous. X felt he had failed in his parents’ eyes and his family felt helpless to assist him to understand his “wrong-doing”.
7.10 The family member made a number of suggestions for more appropriate ways of dealing with the situation; for example X should have been reprimanded by the police rather than taken to court, being both a first and a minor offence; or using counselling for the parents and an out of court settlement between the families involved. This presently occurs in NSW in some disputes brought before Community Justice Centres for mediation (see below).
7.11 A number of years later X was charged with assault again, this time upon a person with an intellectual disability while X was living at a residential service for people with an intellectual disability. According to his family X had been provoked, but all the witnesses had intellectual disabilities and were not considered “reliable”. A family member commented that “his treatment in both cases was a mixture of ‘normal’ and ‘disabled’ procedures”:
Firstly, his family was not notified until he was charged. So the support of the family to tell the truth was denied. The instruction “providing for the presence of an appropriate adult” disadvantaged X as his behaviour towards authority, either a residential supervisor or a member of the police force, were the same. The distinction between the level of authority is not made by X. Therefore, he will agree to anything in order to please, which is common behaviour for people with intellectual disabilities.
Secondly, as his parents were not notified; the severity of the situation was not realised by X. ...
And thirdly ... X was charged as a “normal” person. Yet he was not given the right of receiving independent legal aid like a “normal” person. Had [X] been represented by our family lawyer and [his] private psychiatrist these cases would have had a fairer hearing. Therefore, in X’s case his family should have been notified where a family lawyer could attend so that he felt some sense of familiarity and protection should the truth differ from what “authorities” wanted to hear.
People with intellectual disabilities are constantly reminded that they are not as bright as “normal” people. Therefore, if they are put in a non-threatening, that is familiar, environment, recollection of an event has less chance of being biased due to emotional instability or pressure.11
Concerns in relation to police diversion
7.12 Concerns have been raised in recent years in relation to the use by police of certain “diversionary” programmes; for example, the use, in Victoria, of a police “caution”, in the sense of giving a formal warning rather than proceeding to a prosecution. Such cautioning programs are used for juvenile offenders and for shoplifting offenders, subject to police guidelines. One commentator, Desmond Lane, has argued that the use of such a caution may be open to legal challenge as:
[a] whole class of apparently criminal conduct, which Parliament has decided should be punishable ... will not be brought before the courts even in cases in which there is ... sufficient evidence to warrant prosecution. One may therefore ask whether it is lawful for the police to make policies such as this.12
Diversion, according to Lane, also raises a number of other important questions, such as: “What are its aims? Does it provide sufficient deterrence? Is it fair? Does it widen the net of social control?”13
7.13 Some commentators argue that diversionary schemes may affect the deterrent value of criminal sanctions.14 Deterrence, whether general or particular, may be less relevant for persons with an intellectual disability than for other members of society, as the New South Wales Court of Criminal Appeal acknowledged in Leterri.15 Fairness is also relevant - it has been argued that in many cases the diversionary scheme, though seen as a “soft” option, may in fact impact unfairly or more harshly on the participant:
Any short cut in ... [the criminal justice] system inevitably, therefore, attracts scrutiny on the grounds of fairness. Diversionary programmes particularly deserve attention because they involve significant trade-offs between procedural and substantive rights on the one hand and leniency and expediency on the other, often with much at stake and in a context of unequal power.16
7.14 Some diversionary procedures, such as using police guidelines to administer a caution, mean that the police are acting in effect as investigator, prosecutor and judge, with no independent scrutiny of the process:
The reduction or removal of due process safeguards carries an increased risk that an innocent person will be sanctioned. ... The cautioning can be seen as a deal in which suspects, supposedly voluntarily, waive due process rights in exchange for speedy, lenient and private treatment. Like plea bargains and other such deals in the criminal justice system, the “conscionability” of this transaction, in the context of a marked imbalance of power, must invite careful scrutiny. In particular, one must ask whether the transaction is truly characterised by the voluntariness and leniency of treatment upon which it is predicated.17
These arguments are particularly relevant for people with an intellectual disability, who may abrogate their rights without legal advice and without fully understanding the consequences or their rights.
7.15 It also has been suggested that such procedures place an undue burden on the police:
The idea of pre-charge diversion seems to be bristling with difficulties. To combine the difficult discretions of the constable, the prosecutor, the judge, and the difficult factual decisions of the jury into the hands of one person at the front line of law enforcement seems fraught with difficulty and it is difficult to seriously entertain the argument.18
7.16 Another common argument is that diversionary programs:
sweep into the criminal justice system cases which would otherwise have by-passed it or that they result in a higher level of intrusion by the State than would otherwise have occurred.19
This concern about “net-widening” is also raised for other forms of custodial sentences such as periodic detention, which, rather than providing an alternative to imprisonment, may actually lead to the increased use of custodial options at the expense of wholly non-custodial options.
7.17 Concerns also have been expressed about the interests of victims, when some diversion options are offered to an accused.20 Many alternatives to the criminal justice system, however, such as mediation, are designed to meet the needs of both victims and the accused. Advocating diversion as a means of protecting victims has also been criticised in the context of juvenile justice:
Marketing new approaches to juvenile justice as representing an advance for victims is thus emerging as a disguise for cutting costs and disregarding procedural protections. The police are central players in this scenario.21
Options for police
7.18 The remainder of this chapter considers some of the proposed and existing alternatives to the standard procedures of the criminal justice system for people with an intellectual disability.
Admissions Centres
7.19 It was suggested in the Issues Paper that police should have available to them alternatives to arrest, including the ability to take suspects with an intellectual disability to an Admissions Centre (separate and distinct from psychiatric Admissions Centres). The Commission received a mixed response to the issue of Admissions Centres. For example, the NSW Council for Intellectual Disability wrote that the Council:
is very cautious of the establishment of an “Admissions Centre” for people with intellectual disability. It is unclear what benefits would flow from such a centre, especially where it is to be used as an alternative to arrest. It appears that people with intellectual disability may once more be detained without the safeguards provided by the law. It appears to be creating a further institution which is contrary to current approaches and research. If the intent is a way to guarantee entitlement to services, this should be done in a way which least restricts the rights and freedom of the individual.22
7.20 The Division of Intellectual Services in the Queensland Department of Family Services and Aboriginal and Islander Affairs also had a number of concerns in relation to Admissions Centres as an alternative to arrest:
Such Centres often serve to deny the offender with an intellectual disability the right to due process and create net-widening effects ie police will intervene in situations where they normally would not because an Admissions Centre is available and the person can be placed “out of the way”. Such centres in practice often do not protect the rights of offenders with an intellectual disability.23
Victoria Police, however, supported the use of Admissions Centre.24
Admission to a hospital
7.21 The police have limited powers to take a person with an intellectual disability, or any other person, to a hospital if that person is found in a public place and appears to be “mentally disturbed”. A police officer can only apprehend a “mentally disturbed” person and take them to a hospital if that police officer has reasonable grounds for believing either:
7.22 Once a person has been taken to a hospital he or she must be examined by a medical superintendent as soon as practicable, but in any event within four hours.26 If the person is not certified as either mentally ill or mentally disordered, following the procedures laid down in the Act, the person is to be released into the custody of the police. In some circumstances the person may instead be admitted as an informal patient or released into the custody of a relative or friend.27 If the person is certified to be “mentally disordered”,28 he or she cannot be detained in hospital for that reason for more than three (working) days on three occasions per month.29 Thus this procedure will have limited application for a person with an intellectual disability, although it may be of assistance in relation to a person with an intellectual disability who is extremely distressed or also has a mental illness.
Programs for juvenile offenders
7.23 In New Zealand, the Children, Young Persons and Their Families Act 1989 (NZ) specifies the factors police may take into account to issue a warning rather than arresting a juvenile offender, including the seriousness of the offence, whether there is a victim and the likelihood of rehabilitation through the family. When an arrest is not effected the outcomes can be categorised as follows:
- cases where the police simply issue a warning and take the matter no further;
- cases where, after investigation by the Police’s Youth Aid Section, a written formal warning is issued;
- cases diverted by the police after, for example, an apology, reparation, or other actions that expiate the offence;
- cases where there is a referral to the Youth Justice Coordinator in the Department ... to arrange a formal Family Group Conference.30
7.24 Family Group Conferences can be held in a number of contexts, but in this context they involve the young offender and his or her family meeting with other involved persons31 to determine an appropriate method for dealing with the young person and/or reparation to the victim, who is also entitled to attend the conference. It has been commented that:
[p]articipation in the conference depends on the young person “choosing” not to have the matter brought before a court. In doing so, the conference attracts criticisms that have been made of other informal methods of dealing with young offenders.32
7.25 Similar systems have been used in Australia. For example, a recent program in Western Australia attempts to bring juvenile offenders “face to face” with their victims, in appropriate cases, to ensure that the offender appreciates the consequences of his or her actions. Special juvenile justice teams also assist offenders and their families in relation to problems which may lead to crime; for example, putting the offender in contact with relevant services such as job and training programs. The scheme is designed to have a deterrent effect on minor and first offenders, and relies on both police and court referrals.33 In Wagga Wagga, the New Zealand scheme for juvenile offenders has been adapted and trialed, bringing victims and offenders together for mediation. In South Australia the Young Offenders Act 1993 (SA) provides for a conference system similar to New Zealand, but, unlike the juvenile system in Wagga Wagga, provides for the additional scrutiny of the Youth Court. It may be appropriate to consider the advantages and disadvantages of such a scheme for offenders with special needs.
7.26 It has been argued, however, that such schemes should not be controlled by the police.34 For example, the resource implications for other juvenile justice issues of such schemes:
endorsement cannot be divorced from the question of whether limited resources should be directed towards police conducting these conferences. Once the conduct of such conferences becomes a police responsibility it will not readily be relinquished.35
Use of a contract-based diversionary system
7.27 In Wagga Wagga a form of diversion has been developed by police and disability service providers, providing education for the offenders with intellectual disabilities together with a role for the victims. This model, known as “cooperative contracting”,36 was developed in response to the perception that, for a particular offender, the process of arrest and charging would be ineffective, as he did not appear to understand the seriousness or consequences of his actions. The usual process of arrest and charging would not ensure that the person received the services that he appeared to need. The developers of this model commented that:
[i]t was agreed that this man’s primary needs were education and support. He needed to learn about how the victim felt being robbed, he needed to appreciate the “wrongness” of his actions, and he needed on-going assistance and support to avoid actions that might result in his eventual imprisonment.
It was decided that an enhanced form of the contracting process might meet these needs. In consultation with all the involved parties a written agreement was developed, and presented to the offender as a behavioural contract. The main goals of the process were:
a. appropriate diversion from the court system;
b. the promotion of empathy regarding the feelings of the victim;
c. the provision of clear, concrete, unambiguous information about the nature and possible or probable consequences of his actions;
d. the provision of clear and prescriptive guidelines for future behaviour; and,
e. the prevention of further offences.37
7.28 The model consists of three elements:
1. A written agreement, setting out the offender’s future behaviour. The agreement is created through discussion with all parties involved, including the victim (though the victim can choose whether or not to come into contact with the offender during these negotiations). An independent person with experience in the disability field is also involved as “a protection against misuse of the model and inadvertent abuse such as ‘exercising undue influence’ or acting on ‘false confessions’.” The independent person also provides protection for the rights of the victim.38
2. A process for imparting remorse through negotiation and counselling to allow the offender “to gain an understanding and appreciation of how it feels to be a victim.” The authors of the process stated that:
Police involvement is seen as an important and essential component of the remorse inducing process. Apart from the authority their presence lends to the process, the experience of a visit to the police station, a demonstration of what happens after arrest, and a tour of the police cells, all serve to provide the offender with a convincing and meaningful appreciation of the terms arrest, charge and detention. This step also serves to clearly link the crime with its potential consequences.39
3. The establishment of a monitoring and support system for the offender, through the continued involvement of a counsellor and a specially trained police officer.
7.29 Diversion is only considered in cases where the offender admits his or her guilt and the authors note that:
there are many circumstances where use of the model may be inappropriate: for example, the more serious offences, those where there is reason to believe that the offender is highly resistant to change, and where the continued safety of the victim or the public is in question. In these situations the usual due processes of law are followed.40
7.30 The developers of the model recognise its limitations and welcome further input and research in this area. Despite the obvious advantages in increasing the understanding of, and ensuring services for, an offender, there are difficulties in principle and in practice with such a system.41 The model involves police in the education of offenders and effectively requires the police officer to decide whether a person is guilty or not guilty. It also has been suggested that it places too much responsibility on the victim and that it would be fairer if the decision to use a contract was left up to a magistrate. Concerns also have been expressed about limiting the use of the contract system to people with an intellectual disability, as other “different treatment” approaches have been criticised for encouraging the idea that the usual rights and responsibilities do not apply for people with an intellectual disability.
7.31 Other problematic aspects of the system, which are recognised by its developers, include deciding which offences should be covered, and defining the role of the “arbitrator”. The arbitrator’s role is to make sure that both the offender and victim are dealt with fairly, to negotiate with appropriate services, and to formulate, monitor and review the contract which is signed by the offender. It has been suggested that the arbitrator needs to be attached to some legal body such as the Attorney General’s Department or the Redfern Legal Centre Intellectual Disability Rights Service, to ensure that all parties are treated fairly.
7.32 Such a procedure may also actually disadvantage offenders with an intellectual disability, that is, as with police cautioning of juveniles, there is concern that offenders will admit to guilt, even if they are not actually guilty, in order to get what they perceive to be a better deal. The Commission suggests that this pilot diversion program at Wagga Wagga for offenders with an intellectual disability should be the subject of an independent evaluation to determine its effectiveness and general appropriateness as a model.
Community Justice Centres
7.33 The Wagga Wagga model has similarities to elements of the programs discussed above used for juveniles and other “alternative dispute resolution” methods. In New South Wales, Community Justice Centres (“CJCs”) established under the Community Justice Centres Act 1983 (NSW) have been created to mediate in minor civil and criminal disputes, primarily neighbourhood disputes. Police can refer people to CJCs rather than resorting to criminal charges.42 The CJC mediator assists the parties to negotiate and resolve the dispute, but does not impose a solution on them. Mediation has been described as:
a non-authoritarian, voluntary process which uses a neutral third party, the mediator, to facilitate the disputants finding their own solution to their dispute. The mediator encourages the disputants to take responsibility for their dispute and its solution. The mediator does not impose a solution upon the disputants who must attend mediation sessions voluntarily and must voluntarily reach their agreement.43
7.34 Benefits of mediation where a criminal act is involved include less delay, low cost, an informal setting, the possibility of an appropriate form of restitution or reparation for the victim without the need for further proceedings and the ability to deal with the underlying basis of the dispute rather than the one particular act which may have brought the dispute to a head.44
7.35 This approach is particularly appropriate for disputes between people with some ongoing relationship, such as family members, neighbours and work-mates. In a submission to the Commission, the Director of the New South Wales Community Justice Centres commented that they:
have found that mediation is very appropriate for people with an intellectual disability, provided the mediators are sensitive to the special needs of the people. The suggestions [made by the Commission in its Issues Paper in relation to the Police] - support persons, short sessions, specialist interpreter if necessary - are usually taken into account in these mediation sessions. Our mediators are also trained to use language appropriate to the parties; in this case it means simple language, short questions, frequent checking for understanding, and endless patience.
We would recommend early diversion from court for suitable matters, where the question of reparation can be considered at a mediation session. Although this may seem to be dealing with only less serious offences, it is possible that mediation and reparation can prevent establishment of a pattern of more serious criminal behaviour which might lead to custodial sentences.45
7.36 The types of disputes mediated so far by the CJCs which have involved people with an intellectual disability include: harassment, malicious damage, assault and apprehended violence applications. The mediator will, if appropriate, try to ensure that the person with an intellectual disability has their advocate present and allows the advocate time to talk to their client. The CJCs’ submission suggested that a specialist program for people with an intellectual disability was not desirable, but rather urged the referral of appropriate matters by the police and the courts in the usual way. Similar concerns arise in relation to mediation as with other “diversionary” schemes in relation to people with an intellectual disability, such as lack of understanding of the consequences of the mediation. One particular issue is the possible use of disclosures made during the mediation. Though these cannot be used in court, they may be used against the person with a disability in other ways. If a mediator is concerned by a serious imbalance of power in the mediation, however, he or she can stop the mediation and, if necessary, refer the matter back to court.
CONCLUSIONS
7.37 The National Council on Intellectual Disability in its submission to the Commission stated that a system needed to be established which indicates to the person that they have committed a wrong and provides some consequences for that wrong, arguing that:
[m]ainstream guidelines will never be effective in rehabilitation terms because of the vulnerability of people with an intellectual disability. A prisoner with an intellectual disability will almost invariably become the dupe of other prisoners due to higher needs for acceptance: lower understanding of consequences: and trained subjection to authority figures.46
7.38 There is an extensive literature relating to the advantages and disadvantages of diversion at all levels of the criminal justice system, which is not possible to discuss in great detail in this Paper. However, it is clear from that literature that at least the following list of issues should be considered in any proposal to divert people from the criminal justice system:
- What is the principal goal of the proposed diversion; for example, is the goal more appropriate and humane treatment for the suspect, or is it reparation for the victim?
- Which type of suspects and which types of crimes should be involved in the program? For example, is there any reason why the program should be limited to one group of people such as people with an intellectual disability?
- What special protections are offered for the suspects or victims? For example, should there be a right of legal advice for the suspect before her or she makes the decision to accept the diversion option?
- At what stage in the criminal justice system should the program operate (before charge, before trial or after trial) and why?
- Who should make the relevant decisions about diversion: should it be the police, the Director of Public Prosecutions, a court or some other assessment agency, tribunal or panel?
- Should the program be formalised in guidelines? If so, who should issue (and update) these?
- Where should the suspect be diverted to (if anywhere)? The usual options are:
(a) to programs outside the criminal justice system, for example education or training;
(b) to some other form of control, for example compulsory counselling; or
(c) to nowhere in particular.
- Has an assessment mechanism for the program been considered and established?
The Commission is concerned that a variety of diversion programs may be being developed or suggested without any consistent application of principles. It believes that any such program should not be established without detailed consideration of at least the questions listed above.
7.39 The Commission also seeks further input in relation to the models for diversion from the criminal justice system briefly set out above. It believes that the possible types of diversion which could be undertaken by the police,47 for all types of suspects can be loosely categorised into three types:
(1) the discretion not to proceed;
(2) the ability to issue an informal caution, rather than proceed to charging: and
(3) the diversion, before charging, of the suspect into some process other than the criminal justice system. This last category can be divided into two sub-categories: (a) diversion into a process which does not involve a punitive decision by the police, for example taking the person suffering from alcoholism to a detoxification unit or referral to a Community Justice Centre; or (b) a form of diversion which involves the admission of guilt and some punitive element, for example, compulsory counselling. (The distinction between these categories, however, is often difficult to draw and there may be elements of both in certain procedures).
7.40 The Commission’s preliminary view is that formal regulation is not needed in relation to categories (1), (2), or (3)(a) above. The Commission’s view is that, in the interests of all parties, the procedures categorised under (3)(b) above would be better supervised by a Court or judicial officer, rather than police, because of the “quasi-criminal” nature of the process. The Commission suggests that the most effective way to create a formal diversion program for people with an intellectual disability involving some form of punishment for minor offences would be one connected with the present powers of Magistrates pursuant to s 32 of the Mental Health (Criminal Procedure) Act 1990 (NSW). The Commission notes that these comments are not meant to refer to alternative dispute resolution processes such as Community Justice Centres or to such bodies as the Guardianship Board, who have the ability to make orders in relation to forms of treatment.
TENTATIVE PROPOSALS FOR REFORM: DIVERSION
32. Final decisions about the diversion from the usual course of laying of criminal charges by police to some form of punishment for the suspect (including compulsory attendance at some service or program) should not be made by the police, but by an appropriate board, tribunal or judicial officer. (The role of such bodies will be considered in the Commission’s next Discussion Paper.)
33. The pilot diversion program at Wagga Wagga for offenders with an intellectual disability should be the subject of an independent evaluation to determine its effectiveness and general appropriateness as a model.
FOOTNOTES
1. E C Wertlieb “Individuals with disabilities in the criminal justice system: a review of the literature” (1991) 18 (3) Criminal Justice and Behaviour 332 at 337-338.
2. R Snashall (ed) Pre-Trial Diversion for Adult Offenders (Australian Institute of Criminology, Canberra, Seminar Proceedings 10, 1986) at 2.
3. See, for example, Snashall at 2-3 and the collection of articles edited by him.
4. Where bail is granted or is not an issue, it is usual for police to “charge” a person with a criminal offence rather than bring the person before a court for that purpose. Section 18 of the Bail Act 1978 (NSW) refers to the charging of a person by a police officer and s 353A of the Crimes Act 1900 (NSW) does this by implication. A strict reading of the common law and s 352 of the Crimes Act, however, suggests that the power to formally charge a person with a criminal offence lies only with a court. For further details as to charging procedure see New South Wales. Law Reform Commission Police Powers of Detention and Investigation After Arrest (Report 66, 1990), particularly paras 1.50, 3.7.4, and 4.41.
5. Section 32 of the Mental Health (Criminal Procedure) Act 1990 (NSW) allows a Magistrate, if he or she believes a defendant is “developmentally disabled”, to make any order the Magistrate thinks fit, including adjourning the proceedings, granting the defendant bail or dismissing the charge and discharging the defendant.
6. A Sanders “The limits to diversion from prosecution” (1988) 28 (4) British Journal of Criminology 513 at 520.
7. L M Osman Finding New Ways: A Review of Services to the Person with Intellectual Disability in the Victorian Criminal Justice System (Office of the Public Advocate, Victoria, 1988) at 19. See also D Carson “Prosecuting people with mental handicaps” [1989] Criminal Law Review 87-94.
8. New South Wales. Attorney General’s Department The Intellectually Disabled in the Criminal Justice System (Issues Paper, 1991) at 12.
9. Office of Legal Aid and Family Services Submission (28 August 1992) at 2-3.
10. Submission (24 July 1992) at 3.
11. Confidential Submission (24 July 1992).
12. D Lane “The Victoria Police Shopstealing Warning Programme as alternative dispute resolution” (August 1992) 3 (3) Australian Dispute Resolution Journal 151 at 153.
13. Lane at 153. See also D O’Connor “Legal aspects of pre-trial schemes” in Snashall at 35-40 in relation to legal questions which must be addressed before diversion schemes can be implemented.
14. Lane at 154.
15. R v Letteri (unreported) Supreme Court, NSW, Court of Criminal Appeal, 18 March 1992, CCA 60407/91.
16. Lane at 155.
17. Lane at 157.
18. B Greenwood “Diversion and the Director of Public Prosecutions” in Snashall at 44.
19. Lane at 158. See also J Tombs and S Moody “Alternatives to prosecution: the public interest redefined” [1993] Criminal Law Review 357 at 364.
20. Tombs and Moody at 364; B Mason “Reparation and mediation programmes; the perspective of the victim of crime” (1992) 16 (2) Criminal Law Journal 402-414, which discusses the recent Queensland victim/offender reparation and mediation scheme: the Beenleigh Court Crime Reparation Project.
21. D Sandor “Juvenile justice: the thickening blue wedge” (1993) 18 (3) Alternative Law Journal 104.
22. New South Wales Council for Intellectual Disability Submission (September 1992) at 8.
23. The Division of Intellectual Disability Services, Department of Family Services and Aboriginal and Islander Affairs, Queensland Submission (18 August 1992) at 2.
24. Victoria Police Corporate Planning and Review Department Submission (31 August 1992) at 2.
25. Mental Health Act 1990 (NSW), s 24 (1).
26. Section 29.
27. Section 37.
28. Mentally disordered person is defined in s 10: “[a] person (whether or not the person is suffering from mental illness) is a mentally disordered person if the person’s behaviour for the time being is so irrational as to justify a conclusion on reasonable grounds that temporary care, treatment or control of the person is necessary: (a) for the person’s own protection from serious physical harm or (b) for the protection of others from serious physical harm.”
29. Section 35(1); see also the NSW Police Service’s Police Commissioner’s Instruction 38.02 and 38.03.
30. G Maxwell and A Morris A Statistical Overview of Juvenile Offending Before and Since the Children, Young Persons and Their Families Act, 1989 (1990) at 17, cited in Standing Committee Juvenile Justice Report at para 3.6.1.
31. Children, Young Persons and Their Families Act 1989 (NZ), s 251.
32. Sandor at 106.
33. “Youths face up to crimes” The West Australian (12 July 1993) at 8.
34. See Sandor at 106-107. See also Sanders at 526.
35. Sandor at 107.
36. A more detailed description of this program is provided in P Fernandez and D Ross “Cooperative contracting: empowering victims and educating offenders” (1992/1993) 6 (2) National Council on Intellectual Disability: Interaction 4-11.
37. Fernandez and Ross at 6.
38. Fernandez and Ross at 7-8.
39. Fernandez and Ross at 8.
40. Fernandez and Ross at 7.
41. The Commission was greatly assisted in this section of the paper by two forums organised by the Redfern Legal Centre Intellectual Disability Rights Service to discuss the issues affecting people with an intellectual disability and the police. (December 1991 and May 1993) The Commission wishes to thank all those who took part in those forums for their valuable ideas and discussion.
42. See the Community Justice Centres Act 1983 (NSW), s 27(2).
43. J David “Mediation: a viable alternative” (1985) 9 Criminal Law Journal 86 at 88.
44. David at 88-89.
45. W Faulkes, Director, Community Justice Centres Submission (9 July 1992).
46. Submission (18 December 1991) at 1.
47. Courts have discretion to “divert” at a later stage, as well. For example, to suspend a sentence subject to the person entering into some sort of therapeutic program. These issues will be considered further in the Commission’s next Discussion Paper.
