INTRODUCTION

3.1 The legal profession and other court personnel play a crucial role within the criminal justice system for people with an intellectual disability. For example, lawyers working with people with an intellectual disability are most likely to identify the disability, probably because of the time spent with the client.¹ It falls to the lawyer to ensure that the client’s intellectual disability is properly assessed and presented to the court in a manner which allows the client to receive a fair hearing and, if convicted, an appropriate sentence. Few lawyers, however, will have received any instruction about the special needs of clients with an intellectual disability. This chapter considers intellectual disability issues relevant to lawyers and other legal personnel (including judges and court staff), such as: the attitude of criminal justice personnel towards intellectual disability, legal education, ethical issues arising in the lawyer/client relationship, and the need for guidelines and improved training. The usefulness of specialist intellectual disability units within mainstream legal services will also be examined. Provisional proposals for reform are set out at the end of the chapter.

ATTITUDES OF CRIMINAL JUSTICE SYSTEM PERSONNEL TO PEOPLE WITH DISABILITIES

3.2 A preliminary issue concerns the attitudes of criminal justice personnel (including lawyers) to people with disabilities. Associate Professor Lindsay Gething of the University of Sydney’s Community Disability and Ageing Program (“CDAP”) has stressed the importance of determining community and professional attitudes towards people with disabilities when assessing the needs of people with an intellectual disability in the criminal justice system. She states that evidence collected by CDAP indicates that community attitudes towards people with disabilities are marked by negative stereotypes, which affect the manner and fairness of their treatment by various organisations and institutions. She concludes that unless attitudes are changed by increased awareness of disability issues, institutional and procedural changes to the criminal justice system will achieve little for people with an intellectual disability. Hence, she advocates mandatory disability awareness training for police, lawyers, and correctional services officers, tailored to the needs of the particular group.²

3.3 Associate Professor Gething prepared a report for the Commission in September 1992, which suggested that:

there is a trend towards people anticipating higher levels of discomfort at the prospect of meeting someone with an intellectual disability ... than for most other forms of disabling conditions.

Findings also suggest that members of the judicial system [legislators, judges, lawyers, solicitors, police and legal clerks] experience more discomfort and hence display more negative attitudes than members of the Australian population towards people with disabilities generally.³

The size of the overall sample, and the small percentage of legal personnel (59 of a total of 481), suggests that this finding is significant but not conclusive; and that a larger survey of this group is necessary to gather information about their attitudes to, and the accuracy of their knowledge about, intellectual disability.⁴

3.4 A Western Australian study examined the attitudes and perceptions of service workers (including clinical psychologists, lawyers, social workers, hostel managers, employment supervisors and a community education officer), police and members of the judiciary. The study concluded that:

[a]ll groups interviewed agreed that people with an intellectual disability have several characteristics which would disadvantage them when coming into contact with the criminal justice system. However, while members of the judiciary supported compensatory processes to minimise this disadvantage, the responses from the other groups were not so supportive of such measures. It was concluded that many of the responses reflected negative community stereotypes of people with an intellectual disability, and it was likely that these stereotypes were directly related to their over-representation in the criminal justice system.⁵

3.5 Submissions have also reflected these concerns about the attitudes of some lawyers. For example, the Queensland Department of Family Services and Aboriginal and Islander Affairs stated that:

usually ... difficulty is experienced in locating a lawyer with appropriate attitudes towards people with an intellectual disability. Often the attitudes expressed by lawyers are paternalistic and view the person with an intellectual disability as a child.⁶

Another submission stated that:

[w]e have sometimes found lawyers’ attitude towards victims very disturbing with clear implications from their comment and behaviour that crimes against people with an intellectual disability were somehow not so serious as the same offence against others.⁷

LEGAL EDUCATION

3.6 The perception that lawyers will only rarely have a client with intellectual disability does not seem to be borne out, at least in the criminal area, by the studies referred to in Chapter 1. Also, with increasing de-institutionalisation, higher life expectancy of some people with an intellectual disability, and increasing numbers of people suffering (and surviving) head injuries, contact by lawyers with people with an intellectual disability or a brain injury is more likely. Recent studies suggest a disparity between the extent to which criminal justice personnel encounter intellectual disability in their professional capacity, and the training they receive:

a significantly high proportion of the legal profession ... have had some form of legal contact with mentally retarded offenders while relatively few have had any form of training in their background to prepare them to cope with this challenge.⁸

Lack of training may lead to inadequate representation, misapplication (or non-application) of relevant legislative provisions, and discriminatory treatment of people with an intellectual disability at all stages of the criminal justice process. Intellectual disability is not an area which is well understood by the community and few lawyers are likely to have a familiarity with the issues involved unless received as part of their legal education. As discussed below, it is an area which involves difficult questions of law and ethical dilemmas for lawyers. It is therefore suggested that judicial officers and other lawyers require education on intellectual disability issues.

3.7 The disproportionately high number of people with an intellectual disability involved in the criminal justice system suggests that while lawyers, police and other workers in that system would benefit from education about intellectual disability, correspondingly people with an intellectual disability and their carers would benefit from more information about the law and the legal system.⁹ Accordingly this section considers both:

• solicitors/barristers, the judiciary/magistracy, and court personnel: how education about intellectual disability issues can increase awareness, and the capacity of the legal system to take account, of a person’s intellectual disability; and
• people with an intellectual disability and their carers: how education about criminal justice issues can increase their awareness of offences, legal rights, and legal avenues of complaint/redress, and so improve their access to the criminal justice system.

Lawyers, the judiciary, and court personnel

Solicitors/Barristers

3.8 A large proportion of legal representation in criminal matters is undertaken by lawyers employed by the Legal Aid Commission of NSW, and private law firms whose criminal work is funded by the Legal Aid Commission or done on a pro bono (“for the public good”) basis. Although submissions acknowledged the heavy workload of legal aid lawyers, there remained concern about the quality of legal services provided to people with an intellectual disability.¹⁰ Lawyers’ skills in communicating with people with an intellectual disability have also been questioned. This is relevant both to the manner in which people with an intellectual disability are treated, and to the capacity of the lawyer to obtain enough information to establish a conviction or defence. The capacity of lawyers to deal with the issues surrounding people with an intellectual disability in the criminal justice system could be improved by increasing education and training for lawyers about intellectual disability, both at the qualifying level and in practice.¹¹ The prevalence of intellectual disability suggests that it should form part of practical legal training, such as the College of Law Graduate Diploma in Legal Practice, or the requirements for admission to the Bar.

3.9 In early 1993 the Commission wrote to all Australian university law schools, some other providers of legal and judicial education, and some social science faculties requesting information on the availability and content of courses which deal with intellectual disability issues. The responses received are summarised below:

Institution	Intellectual Disability Issues in Courses as at March 1993
Griffith University, Qld	No subjects offered.
James Cook University, Qld	No subjects offered.
Judicial Commission of New South Wales	Program for judges and magistrates “Attitudes to Minorities” refers to various disabilities.
La Trobe University, Vic	Referred to in various subjects (not specified) and in elective “Discrimination and the Law”.
Monash University, Vic	Referred to in the electives “Law and Discrimination”, “Sentencing”, “Current Problems with Criminal Law” (fitness trial and defences).
Murdoch University, Western Australia	Referred to in “Criminal Law and Procedure” (compulsory) and “Advanced Criminal Law" (elective) in relation to dangerousness and liability/defences.
Solicitors Admission Board/Barristers Admission Board, NSW	Referred to in "Criminal Law and Procedure" in relation to liability/defenecs and fitness.
The College of Law	CLE topics include criminal law topics and “Wills for Persons with an Intellectual Disability".
The Flinders University of South Australia	Referred to in “Criminal Law” in relation to liability/defences and fitness.
The Law Society of New South Wales	Seminars on intellectual disability and criminal law, wills, disability services/ guardianship have been offered. Other seminars anticipated.
The University of Adelaide, SA	Referred to in “Criminal Law” (undergraduate) and “Criminology” (postgraduate) in relation to criminal liability/defences and in “Human Rights Law”.
The University of New England, NSW	Referred to in “Equal Employment Opportunity and Occupational Health and Safety Law and Practice” (elective).
The University of New South Wales	Referred to in “Criminal Law” (compulsory) in relation to criminal liability/defences, and “Crime and Society” (Criminology); discussions on interviewing clients, and the lawyer/client relationship within “Clinical Legal Experience” (elective) conducted at the Kingsford Legal Centre.
The University of Queensland	No subjects offered.
The University of Sydney	Referred to in: various topics dealing with the criminal justice system and criminology. Also referred to in “Legal Studies in Secondary Schools”, offered to Legal Studies teachers.
The University of Western Australia	Referred to in “Criminal Procedure” (compulsory).
The University of Western Sydney	No law faculty until 1995: Business Law subjects only.

[Link to text only version of table]

According to the responses, intellectual disability issues also are canvassed in various compulsory and elective social work subjects, including those concerned with the interaction of social work and law.¹² Also, some social work faculties provide for student fieldwork placement, the nature of which may involve contact with people with an intellectual disability.

3.10 Undergraduate/qualifying training. From the above survey, it is clear that issues relevant to people with an intellectual disability in the criminal justice system are not covered in detail in any course cited. Traditionally, legal education treats mental illness and intellectual disability as relevant to criminal law defences, rather than as practical and ethical issues central to everyday practice. Any wider analysis usually occurs late in legal curricula, as part of discrete elective courses. It has been suggested that:

[i]t appears that for those law students who eventually receive training, the common sequence is [to] complete the requirements of the law school, begin professional practice, realise that training in mental retardation is needed, and then, receive training. The logical solution to this problem is to implement information in the law school curriculum on mental retardation and the mentally retarded offender in order that the potential lawyer will be prepared to defend a mentally retarded person.¹³

One submission has suggested that “ideally a discrete subject covering the law relating to intellectual disability and mental incapacity should be available, at least as an option, in Law Schools in Australia.”¹⁴ Alternatively, issues relating specifically to intellectual disability could be canvassed within relevant areas of legal practice studied (criminal law, discrimination law, succession). It has been argued that information on intellectual disability issues should be presented to law students throughout their legal training, and should deal with identification, communication, and access to legal and non-legal service providers.

3.11 Continuing Legal Education. Many submissions to the Commission supported training for practising lawyers and the allocation of resources to facilitate it, some stating that this should have a higher priority than the establishment of specialist units.¹⁵ Such training in intellectual disability issues should increase knowledge of intellectual disability issues, communication skills, and awareness of available service organisations.¹⁶ Some training is regularly conducted by the Legal Aid Commission of NSW for its solicitors, by way of seminars on mental health, fitness to be tried, and related issues.¹⁷ The Redfern Legal Centre Intellectual Disability Rights Service (“IDRS”) has suggested that the Law Society of New South Wales establish a Committee to: “look at the issue of legal services to people with an intellectual disability and [raise] awareness of intellectual disability issues amongst the profession.”¹⁸ Such a Committee could have an ongoing supervisory and consultative role in the development of various professional guidelines, education, and interaction with various community groups.

The judiciary/magistracy

3.12 In submissions to the Commission, IDRS stated that judges and magistrates also need training in this area:

judges and magistrates also need to develop a greater understanding of the special needs of people with an intellectual disability. ... [M]agistrates on hearing that a person has a driver’s licence are unable to believe that the person may also have an intellectual disability which may be relevant to the matter before the court. Alternatively, it would appear that some magistrates and judges find it difficult to believe that a person with a “low IQ” can give reliable evidence.¹⁹

[Also, m]any jurors, judges and magistrates have difficulty in understanding and correctly applying the various legal provisions which relate to moral culpability, including such concepts as diminished responsibility, insanity, and fitness to be tried. This affects the sentencing options available.²⁰

Mark Ierace, a Public Defender, has expressed concern that many judicial officers have not had the benefit of education about and experience of intellectual disability. Thus, in his view, many judicial officers do not understand the basic implications arising from intellectual disability in the court context and may be reluctant to accept that intellectual disability has significant implications for the person before them.

3.13 The Commission considers that judicial education on intellectual disability issues would be desirable. Judicial education can enhance: knowledge of new laws/procedures, and definitions of intellectual disability; skills, for example, communication techniques; attitudes towards intellectual disability; and the exercise of judicial discretions, for example, to reject evidence on the basis of unfairness.

3.14 There are several bodies concerned with judicial education. In New South Wales, the Judicial Commission provides the following services:²¹

• annual conferences dealing with changes in the law, judicial administration, and specialist technical information, together with programs on judicial orientation, judicial skills development and judicial disposition;
• voluntary workshops for judicial and non-judicial officers, involving the provision of appropriate dispensation from sitting duties by the head of each jurisdiction;
• publication of the Judicial Officers Bulletin, a monthly publication especially for judicial officers, which includes articles, digests of decisions, and information about judicial education, and the Judicial Review, a journal publishing conference papers;
• “Bench Books”, jurisdiction-specific confidential guides (now computerised and on-line) for the use of the judiciary only, which contain model jury directions and other information (it is estimated that 90% of judicial officers use this service on a regular daily, weekly or monthly basis);
• the Sentencing Information System, a computerised database from which sentencing law information (including sentencing principles) and penalty statistics can be retrieved;
• the provision of training in the development of computer skills for both judicial officers and their support staff;
• the research and publication of original monographs on subjects of interest to sentencers; and
• the publication of collated statistical data on particular areas of sentencing.

3.15 The Australian Institute of Judicial Administration (“AIJA”) is an incorporated association affiliated with the University of Melbourne, which conducts skills courses for the judiciary and court attendants, and researches and collects information on judicial administration. Concerns have been expressed to the AIJA over the lack of guidance for judicial officers on intellectual disability and mental illness issues, and the level of unrepresented people with an intellectual disability before the Local Courts. The AIJA presently is devising a training package for judges, magistrates and court personnel.²²

3.16 In 1993, in Western Australia, a Committee convened by Justice R D Nicholson published guidelines for courts on intellectual disability issues.²³ The guidelines deal with: the characteristics of intellectual disability and its distinction from mental illness; the recognition in Western Australia in legislation of intellectual disability; the impact of intellectual disability upon the criminal process (including bail, committal, fitness to plead, defences, confessional statements, sentencing, and psychological evidence); and additional issues to be considered when a person with an intellectual disability is a juvenile and/or a witness. Representation in civil proceedings by a guardian is also canvassed. It has been suggested that similar guidelines should be prepared for distribution in New South Wales.²⁴

3.17 A submission that special judges/magistrates be appointed to deal with legal matters involving a person with an intellectual disability as a victim or an offender was also received.²⁵ The Commission considers that such an approach would raise logistical problems. If such a scheme were to operate only where an accused had an intellectual disability, the involvement of a witness with an intellectual disability would raise the same difficulties before other judges/magistrates. Specialised schemes may further separate and stigmatise people with an intellectual disability. The use of specialist judges/magistrates, however, may reduce the length of trials involving people with an intellectual disability, through a familiarity with issues relevant to the participants. The Commission seeks further comments in this area.

Court personnel

3.18 Awareness of intellectual disability issues by court personnel is also relevant. In New South Wales, court staff are trained by the New South Wales Department of Courts Administration. The Commission considers that training in intellectual disability issues should form part of basic training, and continuing education, for all court personnel. The Western Australia Committee (see para 3.16) has also published guidelines for Associates, Orderlies and Security Officers,²⁶ concerning in-court treatment of people with an intellectual disability. It outlines: the mental illness/intellectual disability distinction; methods of improving communication with people with an intellectual disability generally, and in relation to court processes (such as the swearing in of witnesses); and ways of assisting people before (courtroom familiarity) and after (general directions and assistance) the hearing.

Legal education for people with an intellectual disability and carers

People with an intellectual disability

3.19 Participants in the Commission’s consultations expressed a keen interest in, and need for, educational material on the criminal justice system; and suggested a range of educational tools, such as: classes, videos, posters, cassettes, brochures and books discussing and explaining crime and legal rights, as well as a 24-hour disability information “hotline”. It was suggested further that material should be accessible, and presented in a manner appropriate to the needs of people with an intellectual disability. The idea of increased interaction between participants, lawyers and police, for the interchange of information, was welcomed.²⁷

3.20 The Commission believes that the provision of legal education for people with an intellectual disability is essential, but recognises that providing such legal education is not a simple matter. IDRS offers courses and workshops for people with an intellectual disability, their carers, disability workers/managers, and parents; and has conducted its own research on the effectiveness of various teaching modes. Its research was based primarily on the distribution to people with an intellectual disability of tape-based teaching resources, and subsequent interviews with the recipients and their service providers (a total sample of 33). Findings included:

• awareness and understanding of “rights” among people with an intellectual disability is low, and acquired mainly through their use of services;
• the most effective method of education is personal explanation by peers, at the time when rights are being abused or threatened;
• parents can obstruct education about rights, so they also must be educated, and their opinions and attitudes considered; and
• the presentation, reiteration, and length of the resource material is crucial, and affected by the concentration span of the participants.²⁸

The Commission suggests that the discussion outline prepared, with the assistance of IDRS, for its own consultations²⁹ might be an appropriate starting place for devising further resources for people with an intellectual disability.

3.21 Education of people with an intellectual disability about legal issues could be conducted in institutions, schools, homes, sheltered workshops and other places of employment.³⁰ Wherever conducted, education sessions should focus upon legal rights and obligations, victim services, victims’ compensation, the recognition and reporting of crime, crime prevention, assertiveness, and ways to increase the self-esteem and empowerment of people with an intellectual disability.³¹ Education sessions could be run by police, lawyers, disability groups, service providers, and people with an intellectual disability who have had experience with the criminal justice system.

Carers

3.22 Education of carers about the rights of people with an intellectual disability also is important, so that they may recognise an infringement against, or by, a person under their care. The IDRS stated that:

some service providers have difficulty understanding that people with an intellectual disability can engage in acts which may be “criminal” or be “victims of crime” even if they are living in a large residential setting.³²

3.23 It may also be useful for other personnel operating within the criminal justice system, such as welfare and disability services personnel, to receive education about the criminal justice system's structure, organisation and procedures; as well as the availability of specialist legal services. Such education occurs at the Kingsford Legal Centre.³³ Also, the CDAP has developed a Disability Awareness Package to provide training and information about disability issues for service providers, particularly those not employed by specialist disability services.

LEGAL REPRESENTATION

3.24 Accompanying the popular misconception that an accused has a right to legal representation³⁴ is the notion that most people appear before courts with legal representation. Statistics indicate that 35.3% of people appearing before New South Wales Local Courts are unrepresented.³⁵ Although studies have arrived at contrasting conclusions about whether the presence/absence of legal representation necessarily affects the outcome of court appearances,³⁶ it is clear that the representation of people with an intellectual disability will be inadequate if the lawyer fails to recognise and deal with issues arising from that disability. One submission to the Commission argued that:

... lawyers may only rarely have a client with an intellectual disability. They cannot be expected to have an appreciation of all the implications of a client’s condition and may have difficulty in
• obtaining instructions;
• if such instructions are given through another person, ensuring that the instructions have been adequately conveyed and that the person instructing has no conflicting interest, or, if he/she has, is not influenced by it;
• explaining legal procedures or the subject of a legal document or a Will; and
• representing such a client effectively in any Court proceedings.37

The ability to recognise and deal with intellectual disability issues is crucial to representation, but, as discussed above, lawyers receive little formal training in this area. The following sections deal with some of the difficulties faced by lawyers representing clients with an intellectual disability, and how they may be resolved by the provision of appropriate education and professional guidelines.

Identification

3.25 The identification of intellectual disability poses particular problems for lawyers, which have been canvassed already in the Commission’s Discussion Paper on Policing Issues,³⁸ and which have been summarised as follows:

[a] person who has an intellectual disability cannot be relied upon to alert the solicitor to it. In fact, people with an intellectual disability frequently seek to disguise its existence ...

Nor can the solicitor expect to perceive it if the client does not disclose it, particularly if the disability is in the mild range. A person’s intellectual disability is generally not identifiable by innate physical characteristics.

There is no certain method for determining whether a client has an intellectual disability. Even if it is evident that the client has a significant mental abnormality, it may not be clear whether it is in fact an intellectual disability.³⁹

Even lawyers experienced in intellectual disability issues may not detect a client’s intellectual disability until well into a case.⁴⁰ Identification of intellectual disability can also be complicated by the effects on the client of drugs or alcohol. Indicators of possible intellectual disability may be found in the person’s communication difficulties, behaviour, or task performance, or from other social information such as receipt of an invalid pension.⁴¹ Having regard to the high incidence of intellectual disability in the criminal justice system, the process of identification should not be passive: “we need to actively anticipate it, rather than assume that it will be apparent to us or just be on the lookout for warning signs”.⁴²

Further assessment

3.26 If the possibility of intellectual disability has been identified, the lawyer needs to obtain all relevant information, including any existing psychological reports, and, subject to instructions, should speak to a family member, friend or support person.⁴³ Obtaining information about the person may be difficult, even if he or she is in regular contact with service providers.⁴⁴ Where information is incomplete, a psychological assessment should be obtained, on instructions, to: identify the relevance (if any) of the disability to the alleged offence; assess legal competency; and ensure that all relevant matters are covered in subsequent interviews.⁴⁵ It has been suggested that the extent of “under-identification” of intellectual disability in the criminal justice system is attributable not only to the failure of lawyers to detect it, but also to their tendency to underestimate its extent when detected, and so refrain from seeking further psychological assessment.⁴⁶

3.27 The collection of information about a client’s intellectual disability raises several difficulties:

• civil liberties concerns arise, especially where competence to instruct is not clear;
• people with an intellectual disability may not wish their disability to be publicised, may believe that its disclosure will impact adversely upon them, or may have been tested repeatedly in the past - and so may refuse or be reluctant to undergo assessment;⁴⁷
• psychological assessments are costly (many people with an intellectual disability receive a disability or other pension), and may cause delays (such as repeated adjournments) which compromise the person’s legal position;⁴⁸ and
• a proper assessment may be difficult or even impossible when the person is in custody.⁴⁹

3.28 Consultation and communication with the client and other people involved, such as the client’s family and the Department of Community Services, who may be providing services to the client, is crucial. One submission expressed concern, through a detailed case study, about the lack of consultation between a solicitor (in that case, the Legal Aid Commission) and a client with an intellectual disability and other involved people. The submission commented:

I have this gut feeling that Y’s future has been decided between the solicitor and the judicial system without reference to the family, and with no attempt to take instructions. Since Y is not competent to give instructions, who would do this for him?⁵⁰

Appropriate communication in interviews

3.29 According to one submission: “[t]he main difficulty presented by clients with intellectual disabilities is eliciting all relevant information which may give rise to a defence or mitigating circumstance.”⁵¹ Similar difficulties apply in relation to establishing a case for prosecution.⁵² Hence, communication and questioning techniques appropriate to people with an intellectual disability may be required whether the client is an offender, victim or witness.⁵³ A number of techniques have been suggested in this respect.⁵⁴

• Language used should be: simple, direct, free of abstract concepts and unnecessary information, paced to allow understanding⁵⁵ (but not so slow as to be patronising), clear (but not loud), and mindful of the tendency of people with an intellectual disability to take words literally.⁵⁶
• Questions should be non-leading, short, and free of multiple-concepts and multiple-negatives.⁵⁷ All questions/information should be directed to the client, not service providers/carers.
• Non-verbal clues (such as facial expressions) should be used carefully.⁵⁸ The use of pictures, role plays and other alternatives may be beneficial, but must be used with caution to avoid misunderstanding.
• Reassurance and encouragement of the client often is necessary to overcome their inexperience and fear of legal decision making.⁵⁹
• The interviewer, and interview procedure/environment should be familiar to the client to reduce fear and enhance recollection,⁶⁰ but this may be difficult where the client is in custody.⁶¹ Extra time should be scheduled for interviews (although they should not be too long), and interruptions minimised⁶² - a series of short conferences may be better.
• Most importantly, the client’s understanding cannot be assumed simply because the client does not ask questions. Rather, the client should be asked periodically to explain matters in his or her own words.

3.30 Many of these points arose in the Commission’s consultations with people with an intellectual disability. Participants indicated little understanding of the role of the lawyer, and had difficulty understanding lawyers. Most believed that lawyers should know that a client has a disability; but felt that lawyers’ knowledge of, and ability to identify, intellectual disability is limited, and that training is necessary.⁶³ The legal profession appears therefore to need guidelines in this area.

Continuity of personnel

3.31 As discussed, many people with an intellectual disability are likely to be represented by legal aid lawyers, owing to their low income;⁶⁴ and may find, depending upon court duty rosters, that they are dealt with by more than one lawyer over the course of their matter, or that they meet the lawyer handling their case only on the day of the hearing.⁶⁵ For example, one person had to instruct three legal aid solicitors for a District Court appeal.⁶⁶ Often legal representation lacks the continuity crucial for people with an intellectual disability. According to the IDRS:

[i]t takes some time before the parties can establish good communication and trust. People with intellectual disability do not adapt well to change, and need to have time to get to know the person handling the case. Personnel also need to learn the vocabulary and terminology of the person.⁶⁷

Even where continuity is possible, a person with an intellectual disability, as with any witness, will be required to tell his or her story to several different people, including the police, a solicitor and a barrister.

3.32 It has been suggested that the police, the Legal Aid Commission of NSW, and the Office of the Director of Public Prosecutions, New South Wales (“DPP”), need to develop and implement policies which ensure continuity of personnel in cases which involve (in any capacity) a person with an intellectual disability. The Commission supports such a proposal. If continuity is not possible, the continuous involvement of a person outside the legal process may be appropriate (for example, a case manager, support person, advocate, or family member). It was clear from submissions and the Commission’s consultations that for many people with an intellectual disability one particular service provider, solicitor or police officer had become their constant contact and source of information, with whom trust and understanding had been built up over a long relationship, and whom they would contact about to any difficulties in the criminal justice system.⁶⁸ The role of a support person and the difficulties which may arise are discussed at paras 3.43-3.48. One submission argued that a case manager with authority to acquire information, such as assessments, is necessary, to assist in preparing report(s), drafting suitable court orders, supervising the person upon release, and facilitating communication.⁶⁹ In the likely absence of continuity the Commission supports the need for a case manager, presumably to be provided by the New South Wales Department of Community Services, and seeks further submissions about his or her likely role and possible overlap with that of a support person.

Difficulties in obtaining instructions

3.33 A lawyer may face a situation where the client’s communication skills are so inadequate that the client’s capacity to provide proper instructions is questionable. This issue assumes great importance when obtaining the client’s history and version of the facts, receiving instructions on how the matter is to be conducted/pleaded, and determining the appropriateness of conditions in relation to bail and sentence. For example, Legal Aid Commission solicitors have suggested that obtaining instructions to raise the diversionary procedure available for people with an intellectual disability in the Local Courts (see Chapter 5) is often difficult.⁷⁰ This section examines some of the often difficult ethical issues which arise in this area. An example of difficulties in obtaining instructions was provided by the Kingsford Legal Centre in relation to one client, who could:

identify and articulate his needs, [but was] less able to receive information or to understand the implications of information being given to him. Although capable of giving instructions, he is unable to understand the full import of legal advice. While seemingly able to understand general concepts of law he has difficulty coming to grips with the processes. A further difficulty is that when he does understand a proposition, or believes he understands it, that understanding becomes fixed. It is difficult then to explain to him different legal considerations that arise in what appear to be similar circumstances on later occasions.⁷¹

Lawyer/client relationship

3.34 A basic tenet of legal ethics is that a lawyer must act in pursuit of a client’s best interests as defined by a client’s instructions. Simultaneously, as an officer of the court a lawyer is obliged not to mislead it. Problems can arise for a lawyer when a client’s capacity to give instructions is marginal, or instructions appear to be irrational and inconsistent with what the lawyer perceives to be in the client’s best interests:

[d]eciding upon the strategies to be used in the trial of an intellectually disabled accused is complex, and becomes more so if the client is essentially incapable of giving sensible or consistent instructions to counsel. Important ethical issues are raised by the question of the extent to which counsel may have to impose difficult and complex decisions upon the accused.

...

It is ironic that the complexity of the decisions to [be] made about the conduct of the defence case are increased in the very cases where the accused is least able to participate fully in such decision-making.⁷²

3.35 A lawyer whose client has an intellectual disability may face a situation in which the incapacity of the client is such as to suggest that some decisions should be made by the lawyer in the client’s best interests: “[s]hould the defendant’s irrational choices be respected, or may counsel make choices based on her assessment of the client’s best interest? ... Is there a point at which the defendant’s mental disability ought to change the lawyer’s role from that of advocate to that of guardian or friend of the court?”⁷³ This concern is particularly apposite in receiving instructions in fitness proceedings, in that one of the criteria of fitness is the capacity to instruct counsel.⁷⁴ Some commentators see the true nature of the lawyer/client relationship as containing less client autonomy than that generally assumed: “[a]lthough the lawyer is expected to make a ‘reasoned choice’ among alternatives, based on his or her specialised knowledge, and the client is entitled to exercise an independent prerogative, client deference to the attorney’s judgment is the expected norm.”⁷⁵

3.36 Tremblay has suggested that a lawyer faced with a client whose competence is questioned may: withdraw, seek a guardianship order, seek instructions from the client’s family, persuade the client to make “better” choices, proceed without instructions, or follow instructions regardless of consequence.⁷⁶ Many of these options involve a breach of one or more professional duties. Unlike professional codes in other jurisdictions⁷⁷ the various codes of professional practice in New South Wales offer no assistance to lawyers on these issues. The issue of guardianship warrants further consideration.

Guardianship

3.37 Generally. At common law, only a person who suffers a violation of a right may enforce that right by court proceedings.⁷⁸ The capacity of infants and “incompetent” persons to participate in proceedings has been limited by statutory rules and regulations of courts in civil,⁷⁹ Family Court⁸⁰ and Children’s Court⁸¹ jurisdictions. The various rules provide that an “incompetent” or “infirm” person⁸² can participate as a party to proceedings only through a “tutor”. “Tutor” is a term which encompasses the roles of “next friend” and “guardian ad litem”. A “guardian ad litem” is not a full guardian (that is, the guardian of the person’s body and estate), but is admitted by the court to assist the person for the purpose of the particular suit. Historically, the criminal jurisdiction has stood apart from these developments, as the decisions made by a person, such as whether or not to plead guilty are fundamentally different. In criminal matters an infant (and presumably any other person fit to be tried) is capable of instructing a lawyer or conducting a matter on their own behalf.⁸³

3.38 Guardianship in New South Wales. In New South Wales a guardian may be appointed either by: a court, in accordance with statutory rules; or the Guardianship Board (the “Board”) for a person over 16 years of age.⁸⁴ In making its decision, the Board takes into consideration: the views of the person and any individual responsible for the person; the preservation of the person’s existing family relationships, and cultural/linguistic environments; and whether services can be provided without such an order.⁸⁵ The order must appoint a guardian and specify whether the order is continuing or temporary, limited or unlimited, and, if limited, the relevant conditions.⁸⁶ A limited guardianship order may in its scope be equivalent to the appointment of a guardian ad litem. Where there is no appropriate relative or friend who consents to being appointed as the person’s guardian, the court or Board may appoint the Public Guardian.⁸⁷ The Guardianship Act 1987 (NSW) prescribes certain principles which guardians have a duty to observe, including: promoting the person’s welfare, interests, self-reliance and protection; limiting restrictions on the person’s freedom; and ensuring the person’s views are always considered.⁸⁸

3.39 The limitations of guardianship in criminal matters. The role of a guardian, even under an unlimited guardianship order, within the criminal process is limited. If a person’s intellectual disability is such as to render them incapable of pleading, understanding the trial process or of assisting in their own defence, they would be found unfit to be tried. Such a finding would activate the special fitness process provided under the Mental Health (Criminal Procedure) Act 1990 (NSW), see Chapter 4. The guardian can assist the person by organising the provision of services, during and after the criminal process; but this role is limited as “[i]n general, the real problem is a lack of appropriate services, not the lack of a person’s ability to consent to the services which are available.”⁸⁹ A guardian appears to be able to provide information to the court on matters such as sentencing and to provide instructions for appeal hearings, applications for a life sentence re-determination,⁹⁰ and victim compensation (whether as applicant or respondent). The guardian’s role in other matters is less clear. According to the Legal Aid Commission of NSW:

[a] procedure to appoint a guardian ad litem would be desirable to allow instructions to be given, reports obtained etc especially in hearings other than the actual trial or special hearing. Whilst the special hearing procedure is designed to operate with a subject unable to instruct, the same cannot always be said for subsequent hearings. In particular, when plans are being formulated for an application for transfer, conditional release etc to a board such as the Mental Health Review Tribunal the inability of the intellectually disabled person to provide proper instructions about these matters can and does present a very real problem.⁹¹

3.40 In its submission to the Commission, the Office of the Public Guardian stated its involvement in a criminal justice matter may occur at various stages in relation to its clients with an intellectual disability:

[i]n some cases the matters have been placed urgently before the Guardianship Board with the intention of the applicant having a guardian appointed to advocate for the client to ensure access to appropriate services including support during the police interview process, Legal Aid representation, appropriate assessment and where necessary treatment and accommodation.

In other cases the client has become involved in the criminal justice system while under the guardianship of the Public Guardian. In these matters the guardian’s role has been to ensure that all appropriate procedures are in place and services are available.⁹²

many clients will find this to be an invasion of their rights and therefore it should not be done unless more informal methods have been tried first. Many people with intellectual disabilities want to have control over their own lives and are willing to accept that this will mean that they may make mistakes. ...⁹⁴

It has been argued that:

it is preferable to cope with the ethical tension [between the duty to act on instructions and the client’s questionable capacity to give them] rather than to adopt measures that may deprive people with an intellectual disability of any greater degree of personal autonomy.⁹⁵

3.42 There is also a danger that the guardianship option will be adopted too readily as a substitute for the giving of the time and support necessary to ensure that a client with an intellectual disability understands the relevant issues and options: “the appointment of a guardian ad litem might be used any time a client has difficulty understanding the process”⁹⁶ and “may come to be used as a convenient mechanism for the smooth operation of the legal system rather than give due recognition to the individual’s rights and independence.”⁹⁷ Such concerns are addressed to some extent by the existing safeguards in guardianship legislation.

Support person

3.43 In the absence of a guardian, there may be concern that the person with an intellectual disability is overly influenced by their lawyer, and/or that their instructions are not being followed. Parents, friends or carers cannot always attend lawyer/client interviews, particularly if the person is in custody. One submission, for instance, expressed concern that there is no independent monitoring of legal services allotted to people with an intellectual disability and queried what could be done about this, for example whether a parent or advocate should always attend interviews.⁹⁸ Additionally, a person, whether the accused or a witness, may not require a guardian but may require assistance in understanding a lawyer.

3.44 One alternative, similar to that suggested for police questioning in the Commission’s Discussion Paper on Policing Issues,⁹⁹ is the attendance of a third person at lawyer/client interviews to monitor the interview and, if necessary, act as an interpreter and support person. In a submission to the Commission, a lawyer working within the DPP stated:

I ... believe that it is extremely important to have a support person available to assist the person with the disability. It would be of great benefit if legal personnel were able to access this ‘list of experts’ when interviewing victims.¹⁰⁰

The role could be filled by the support persons suggested in the Commission’s Discussion Paper on Policing Issues as appropriate for police interviews.

3.45 Difficulties involved in the use of a support person include:

• a friend or family member may be biased or unable to remain neutral and dispassionate, and so may inhibit or distort communication;
• some people with an intellectual disability lack suitable or interested family representatives, but the use of a government worker may be inappropriate owing to a possible conflict of interest;
• as for police interviews, there needs to be some provision for people without an appropriate support person. The use of a judicially appointed person may be more appropriate,¹⁰¹ but this raises issues of resource and training levels;
• unlike the police interview, the lawyer/client interview is not interrogatory, and may present difficulties such as conflict between the client and support person as to the client’s best interests, and influence by the support person; and
• the possibility that the support person may also be called by the other party at trial.

3.46 One area of concern in relation to the use of a support person is whether the client can rely on legal professional privilege to resist disclosure by the support person of the content of the lawyer/client interview. The rationale behind the protection from disclosure offered by legal professional privilege is that confidentiality encourages clients to seek the advice of the lawyer and to give a full and frank disclosure of the circumstances of their case, thereby enhancing the administration of justice and hence the public interest generally.¹⁰² The two areas where concerns about privilege may arise are the lawyer/client interview itself, and conversations between the client and the support person outside of the lawyer/client interview.

3.47 In relation to the lawyer/client interview, the support person could be viewed as an interpreter; as an integral part of the interview process itself. The High Court has referred to an interpreter as a “translating machine”, the accuracy of which could be verified; and hence the interpreters words are admissible as if they were the words of the accused.¹⁰³ Difficulties arise where matters relevant to an offence or trial are communicated by the person with an intellectual disability to the support person outside of the lawyer/client interview. The client may make an admission, or clarify what had been said earlier to the lawyer. In a Federal Court case Pincus J considered that material gathered by a solicitor or a client in preparation for litigation is privileged in the same way as if it was a communication between solicitor and client:

the existence of the relevant privilege does not depend upon there being any relevant communication in fact between the solicitor and client or persons acting on their behalf. ... [T]he relevant rules may, in the end, be held to be more soundly based on a separate and narrower principle [than that enunciated in Grant v Downs and other Australian authorities], namely that a party is not in general bound to reveal to the court statements taken from witnesses and the like for the purposes of litigation.¹⁰⁴

It could be argued that this principle may extend to conversations between the accused and the support person, outside of the interview context, on matters relevant to the pending litigation. However, it may be difficult to identify at what point exactly the role of the support person ends for the purposes of privilege.

3.48 In the Discussion Paper on Policing Issues,¹⁰⁵ the Commission proposed that the support person in police interviews should be a competent but not compellable witness in respect of any hearing relating to the conduct and content of the interview. However, the nature of lawyer/client communications is fundamentally different to that of the police/suspect interview, and it would be inappropriate to give to the support person the discretion of testifying in relation to the content of a lawyer/client interview. Consequently, the Commission considers that a person with an intellectual disability should be able to rely on legal professional privilege to bar disclosure, by a support person present at a client/lawyer interview, of the content of that interview. It may also be appropriate to extend that privilege to cover any communication by a person with an intellectual disability to the support person, where that communication has a direct relevance to the offence or the litigation arising from it. Given that it is unclear whether the law on legal professional privilege would provide the protection envisaged, a statutory privilege may be appropriate. The role of the support person at the trial is considered in Chapter 7.

SPECIALIST LEGAL SERVICES

3.49 One of the Commission’s terms of reference was to consider whether “specialist units should be established within the Office of the Director of Public Prosecutions, the Legal Aid Commission ... and other related bodies” to consider intellectual disability issues. The Commission sought submissions on what special procedures presently operate, and whether specialist units should be established.¹⁰⁶ This section examines specialist legal services.

Existing legal specialist units

Office of the Director of Public Prosecutions

3.50 As stated in the Issues Paper,¹⁰⁷ the DPP does not have a specialist unit, but has internal practice directions on the management of matters involving people with an intellectual disability, whether as a witness or an accused. All matters in which, before arraignment, the accused’s fitness to be tried becomes an issue are forwarded to the Director with appropriate documentation. Also, the Deputy Solicitor (Legal) must be notified within two days of any matter in which fitness is an issue, and is thereafter kept informed of further developments. The DPP has provided its solicitors and Crown Prosecutors with internal training programs on these procedures and intellectual disability. In its submission, the DPP stated that under existing procedures “matters involving the intellectually disabled are given special emphasis and are closely monitored at a senior management level.” It further commented:

... given the relatively small number of special hearings and fitness to plead cases (8 special hearings and 21 fitness to plead matters since November 1990) compared with the number of trials disposed of annually by my Office (3552 for the 1990-91 financial year) ... the creation of a specialist unit is not warranted. Rather ... these matters can be adequately dealt with by good management practice to ensure that they are treated with the due sensitivity and priority they require. To date, the practices developed in this Office have ensured that these matters have been appropriately dealt with.¹⁰⁸

Also, it was argued that the establishment of a specialist unit would require extra staff, and so have funding implications.

3.51 The role of a specialist unit within the DPP could extend beyond monitoring cases involving a person with an intellectual disability. For example, the unit may serve as a source of advice and assistance to DPP solicitors, police prosecutors and police, on issues relevant to particular cases. Also, it may formulate policy and training initiatives. A submission to the Commission outlined a case which illustrated how prosecutors may lack an appreciation of intellectual disability issues, and how this may impact negatively on victims and witnesses. In that case it was submitted that the Crown Prosecutor:

lacked sensitivity, compassion and understanding of the victim’s position. Additionally his knowledge of the case (just one week prior to the scheduled trial date) was extremely limited and required continual prompting from the detective present. ... I feel it is vital that the [DPP] develop a network of staff who have an interest in and ability to relate to people with an intellectual disability and the area of sexual assault.¹⁰⁹

The Commission would be interested in any comments or experiences relating to the treatment of intellectual disability issues by the DPP.

Legal Aid Commission of NSW

3.52 The Legal Aid Commission of NSW does not have a specialist intellectual disability unit. The Legal Aid Commission’s Mental Health Advocacy Service (“MHAS”) provides assistance in mental health matters, including assistance to “forensic patients”¹¹⁰ of which approximately 3-5% have been identified as having an intellectual disability.¹¹¹ It has been suggested that the numbers of clients of the MHAS with an intellectual disability is increasing.¹¹² MHAS solicitors represent forensic patients at Mental Health Review Tribunal hearings. The majority of “fitness to be tried” cases are not dealt with by the MHAS, but by solicitors at the Legal Aid Commission. In relation to fitness matters it has been stated that:

[t]his is a particularly complicated area of law. It requires specialist knowledge and expertise in resolving the issues and ensuring that an accused person who is intellectually disabled, or a witness testifying in a matter who is intellectually disabled, is properly advised of his or her rights and is properly represented. Solicitors should be given specialist training so that they are better able to understand the special needs of the intellectually disabled. To that end, the establishment of specialist units may be appropriate.¹¹³

3.53 Like the DPP, the Legal Aid Commission considers that “the number of people with an intellectual disability moving through the justice system probably does not justify the establishment of a further specialist section.”¹¹⁴ Rather, as discussed before, it includes intellectual disability issues in its continuing legal education programs, believing that continuing legal education is better able than a specialist unit to “enhance the skills of a greater number of legal practitioners within the criminal and other areas of the law.”¹¹⁵ The Commission would be interested in any comments or experiences relating to the treatment of intellectual disability issues by the Legal Aid Commission.

“Other related bodies”

3.54 Specialist units within “other related bodies”, such as the Public Defenders, the Law Society and the Bar Association do not exist but their usefulness should be considered further. Some possible functions they could perform include: developing and promoting professional guidelines; formulating educative material on legal and intellectual disability issues; providing information to lawyers; and providing information about lawyers specialising in the area of intellectual disability.

Advantages and disadvantages of specialist units

3.55 Before assessing the relative advantages and disadvantages of a specialist legal unit, the scope of its activities needs to be identified, for instance should such a unit be a policy unit, or rather a group of specialist practitioners? The Law Society of New South Wales, while suggesting that the extent of the problem does not justify the creation of specialist units, saw merit in the establishment of intellectual disability policy units in the relevant organisations.¹¹⁶ Apart from a policy role, some other possible functions of specialist intellectual disability units were suggested in submissions to the Commission, namely to: provide legal advice/advocacy; monitor the efficiency and responsiveness of available services, as well as assisting people to access them; provide community and professional education and training; and act as a point of contact for, and interaction between, various professional organisations and service providers.¹¹⁷

Advantages

3.56 Many submissions to the Commission referred to the need for specialist units.¹¹⁸ The advantages of creating specialist legal units include:

• formalised access to, and increased interaction with, psychologists, advocacy services and counselling services;¹¹⁹
• improved access to services by people with an intellectual disability who come into contact with the criminal justice system;¹²⁰
• greater continuity of personnel in matters involving a person with an intellectual disability (as suspect, witness or victim); and
• greater accuracy in the identification of intellectual disability, liaison with carers and service providers, and advice and training for other people within the respective services.¹²¹

Disadvantages

3.57 Other submissions have not supported units,¹²² or have recognised their disadvantages, including:

• resources would be more appropriately spent on training general personnel,¹²³ as the person has to be recognised as having an intellectual disability before he or she is referred to such units;¹²⁴
• specialist units may result in an increase in bureaucratic complexity to the detriment of services generally, which could more easily and economically be improved through increased co-operation between service providers and the criminal justice system;¹²⁵
• specialist units may lead to a reduction in the availability and diversity of legal services for people with an intellectual disability throughout the State,¹²⁶ and may, if people with an intellectual disability were exclusively dealt with by such units, further stigmatise such people and alienate them from mainstream services;¹²⁷ or
• specialist units may suggest to criminal justice personnel generally that they no longer have a responsibility in matters involving intellectual disability.¹²⁸

Additionally, matters involving people with an intellectual disability fall across various jurisdictions and legal areas, and so do not lend themselves practicably to specialisation.¹²⁹

Alternatives to special units

Intellectual disability liaison officers

3.58 An alternative to establishing specialist units is for criminal justice agencies to allocate current legal staff, presumably with a particular interest in this area, to perform the administrative, advocacy, educative, and advisory roles outlined above as part of their general duties. Advantages of such an approach include providing established contact points, developing expertise and encouraging continuity of legal representation, without restricting personnel to an area of possibly fluctuating demand. In other words, resources would be employed only as necessary. Further, limited specialisation would not be seen as a substitute for general staff education on intellectual disability issues. Such specialist staff could be located, if necessary, in different areas of the organisation. By also performing general duties, they would remain responsive to the needs of the organisation. The workload, placement and numbers of such officers would be a matter for the relevant organisation, considering the level of demand.

3.59 There are also disadvantages in such an individual-based approach, rather than a unit-based approach. For example: the difficulty of finding appropriate staff to undertake specialisation in a demanding area; the loss, or imbalance, of expertise when the specialist staff leave; and the need for specialists to acquire proficiency in diverse areas, such as advocacy, policy, and staff training while meeting other competing demands from their general duties. Despite these disadvantages, however, the Commission considers that this idea has merit, as it represents a compromise between, on the one hand, an absence of specialist services, and, on the other, concerns over funding and over-specialisation. The Commission therefore proposes that specialist intellectual disability liaison officers be established within the DPP and the Legal Aid Commission of NSW, rather than specialist units.

Independent unit

3.60 The other option which must be considered (in addition to the need for specialist personnel within the different criminal justice agencies) is the establishment of a single independent body for access by all agencies. This option is considered further in Chapter 13, see paras 13.48-13.49.

PROVISIONAL PROPOSALS FOR REFORM

2. That the Law Society of New South Wales and the NSW Bar Association:

(a) develop and distribute to all solicitors/barristers in New South Wales a short summary of intellectual disability issues with appropriate contact numbers; and

(b) ensure that their respective practice notes, manuals, and Codes/Rules refer to intellectual disability issues, and provide guidelines for lawyers with a client with an intellectual disability. The issues covered should include:


(i) identifying intellectual disability, acquiring further psychological or psychiatric assessments, interviewing the client with an intellectual disability, and the importance of continuity of personnel in legal representation;

(ii) ascertaining and pursuing the interests of the client with an intellectual disability in a way which maximises client autonomy. Guidelines should provide lawyers with a set of options (graded according to the circumstances of the individual case) and information on obtaining assistance; and

(iii) information about guardianship and people with an intellectual disability, with emphasis on what matters should be considered, and measures taken, before the making of an application for guardianship is appropriate.


3. That intellectual disability issues be considered in: law school curricula; the educational requirements for admission to practice (especially the College of Law, and reading for the Bar); courses satisfying the requirements of Mandatory Continuing Legal Education; and in-house training for law firms and relevant government agencies (such as the Office of the Director of Public Prosecutions, New South Wales and the Legal Aid Commission of NSW).



4. That the Judicial Commission of New South Wales:

(a) commission research into intellectual disability issues including the incidence of intellectual disability, the judiciary’s knowledge of and attitudes towards intellectual disability, trends in the sentencing and diversion of offenders with an intellectual disability, and the effect upon case dispositions of the availability of intellectual disability services; and

(b) develop, with appropriate expert assistance, manuals, written/video/computerised educative materials dealing with intellectual disability issues (both generally and in the context of the criminal justice system in particular), and seminars/programs involving first hand contact by judges and magistrates with people with an intellectual disability.



5. That the New South Wales Department of Courts Administration develop courses/information on intellectual disability issues for court personnel, and that such issues be included in training courses and on-going employee education.

6. That the New South Wales Department of Community Services, with the co-operation of police, lawyers, criminal justice system agencies, the New South Wales Department of Education, and any other interested organisation (such as the Redfern Legal Centre Intellectual Disability Rights Service), fund and develop programs of legal education for people with an intellectual disability and their carers.

7. That a support person be able to attend the lawyer/client interview, but only at the request, or with the consent, of the client with an intellectual disability. The person’s role is to be supportive of the person with an intellectual disability, to interpret if necessary, and to ensure that the client’s wishes are being recognised and implemented by the lawyer. A support person should be familiar with, and trusted by, the person with an intellectual disability, for example a family member, advocate or carer. Care should be taken that the person is not favourably or unfavourably biased in relation to the interests of the client. Where such a person is unavailable or unwilling to participate, the support person should be a crisis advocate provided by either the New South Wales Department of Community Services or a non-governmental organisation. If possible, the support person should not otherwise be connected with the trial, for example, a potential witness. The support person should be precluded by law from giving evidence in respect of any matter relating to the content of the lawyer/client interview, unless the client otherwise consents. As it is not clear whether such protection would be offered by legal professional privilege, a statutory privilege may be appropriate.

8. That government legal services develop and implement a policy that, to the extent practicable, the same lawyer have the carriage of a matter involving a person with an intellectual disability as a suspect, witness or victim. As continuity will not always be possible, a case manager from the New South Wales Department of Community Services should be appointed and be available if required to assist the client in the criminal process.


9. That the Office of the Director of Public Prosecutions, New South Wales and the Legal Aid Commission of NSW establish intellectual disability liaison officers. In addition to their general duties, such officers should have responsibility for and or input into:

(a) developing and implementing policy, guidelines, and education for all personnel within the particular institution;

(b) interacting with other specialist bodies and institutions to ensure that people with an intellectual disability are advised about, and exposed to, available services;

(c) maintaining expertise in legal and policy developments involving intellectual disability, so as to provide expert assistance and information on intellectual disability issues to persons within and outside the particular organisation, for example, to private solicitors; and

(d) acting as a contact and referral point for their organisation, the legal profession, government bodies and the public.

1. J McAfee and M Gural “Individuals with mental retardation and the criminal justice system: the view from the State Attorneys-General” (1988) 6 Mental Retardation 5-12, cited in New South Wales. Law Reform Commission People with an Intellectual Disability and the Criminal Justice System: Appearances Before Local Courts (Research Report 4, 1993) at para 4.15.

2. Associate Professor L Gething, Community Disability and Ageing Program, University of Sydney Submission (5 July 1992).

3. L Gething Attitudes Towards People with an Intellectual Disability of Professionals within the Judicial System (Report compiled for the New South Wales Law Reform Commission, Community Disability and Ageing Program, University of Sydney, 14 September 1992) at 2. This preliminary report relied upon information taken from the computerised database for the Interaction with Disabled Persons Scale, which is the only widely validated Australian instrument designed to measure community and professional attitudes towards people with disabilities.

4. Gething (1992) at 10.

5. See R Jackson, J Cockram and R Underwood “Intellectual disability and the law: noticing the negative and ignoring the obvious”, paper presented at the Disability Discrimination and Justice Conference (Griffith University, Queensland, 30 November-2 December 1992). The study was based upon both an interview and subsequent questionnaire, involving 20 service workers, 22 police officers, and 19 members of the judiciary. See also J Cockram, R Jackson, and R Underwood “Perceptions of the judiciary and intellectual disability” (1992) 18 Australian and New Zealand Journal of Developmental Disabilities 189.

6. Queensland. Department of Family Services and Aboriginal and Islander Affairs Submission (18 August 1992) at 3.

7. Community Living Programme Inc Submission (7 February 1994).

8. T Russell and C A Bryant “The effects of a lecture training program and independent study on the knowledge and attitudes of law students toward the mentally retarded offender” (1987) 11 Journal of Offender Counselling, Services and Rehabilitation 53 at 55-56 citing:

• Atlanta Association for Retarded Citizens A Study of Georgia’s Criminal Justice System as it Relates to the Mentally Retarded (Atlanta, GA, 1975): 28% of lawyers and 23% of judges surveyed had received some type of training, while 80% and 90% respectively had contact with people with an intellectual disability; and
• J Schilit Analysis of the Criminal Justice Personnel’s (Police, Lawyers, Judges) Understanding of Mental Retardation and of the Mentally Retarded Offender (ERIC Document Reproduction No ED 155 855): of 100 police officers, 75 lawyers and 35 judges, 90.8% had no formal training in the area of offenders with an intellectual disability.

10. Meeting with the Illawarra Criminal Justice Sub-Committee (2 March 1992); and Redfern Legal Centre Intellectual Disability Rights Service Submission (16 October 1992) at 8. See also Redfern Legal Centre Intellectual Disability Rights Service Submission (28 January 1994) at 16; and ACT Council on Intellectual Disability Submission (20 July 1992) at 4-5.

11. See, for example: Queensland. Department of Family Services and Aboriginal and Islander Affairs Submission (18 August 1992) at 3; Legal Aid Commission of NSW Submission (24 July 1992) at 4; and Kingsford Legal Centre Submission (29 October 1992) at 6.

12. Responses in this area were received from The Flinders University of South Australia, Northern Territory University, Royal Melbourne Institute of Technology, The University of New South Wales, The University of Queensland, and The University of Sydney.

13. Russell and Bryant at 65.

14. ACT Council on Intellectual Disability Submission (20 July 1992) at 4.

15. Australia. Attorney-General’s Department, Office of Legal Aid and Family Services Submission (28 August 1992) at 4; Legal Aid Commission of NSW Submission (24 July 1992) at 8; Legal Aid Commission of NSW Submission (8 January 1992) at 3; The New South Wales Council for Intellectual Disability Submission (16 September 1992) at 8; South Australia. Court Services Department Submission (11 August 1992) at 1-2; Illawarra Disabled Persons’ Trust Submission (10 August 1992) at 4; ACT Council on Intellectual Disability Submission (20 July 1992) at 4; and Redfern Legal Centre Intellectual Disability Rights Service Submission (28 January 1994) at 16.

16. The New South Wales Council for Intellectual Disability Submission (16 September 1992) at 8.

17. Legal Aid Commission of NSW Submission (24 July 1992) at 8.

18. Redfern Legal Centre Intellectual Disability Rights Service Submission (28 January 1994) at 16.

19. Redfern Legal Centre Intellectual Disability Rights Service Submission (16 October 1992) at 9; also Redfern Legal Centre Intellectual Disability Rights Service Submission (28 January 1994) at 19.

20. Redfern Legal Centre Intellectual Disability Rights Service Submission (6 January 1992) at 3.

21. Judicial Commission of New South Wales Annual Report 1992-1993 (Judicial Commission of NSW, Sydney, 1993).

22. Australian Institute of Judicial Administration Personal Communication (7 February 1994).

23. Western Australia. Committee (Justice R D Nicholson, Convenor) Persons with an Intellectual Disability: Issues for Consideration of the Courts (1 June 1993).

24. Kingsford Legal Centre Submission (29 October 1992) at 6.

25. Senior Constable P Fernandez Submission (8 December 1991) at 36.

26. Western Australia. Committee (Justice R D Nicholson, Convenor) Persons with an Intellectual Disability: Guidelines for Associates, Orderlies and Security Officers (1 June 1993).

27. Provisional proposals for reform. New South Wales. Law Reform Commission People with an Intellectual Disability and the Criminal Justice System: Consultations (Research Report 3, 1993) at para 4.16.

28. J London “Effective communication research report” (unpublished paper, Redfern Legal Centre Intellectual Disability Rights Service, Sydney, May 1992) at 12-15.

29. See NSWLRC RR 3 at Appendix A.

30. The Law Society of New South Wales Submission (24 August 1992) at 2. However, it has been suggested that it may be more appropriate that education occur in community-based centres rather than, for instance, places of employment, to ensure that there is no misapprehension about the voluntary nature of attendance: Queensland. Department of Family and Aboriginal and Islander Affairs Submission (18 August 1992) at 2.

31. The Law Society of New South Wales Submission (24 August 1992) at 2; New South Wales Sexual Assault Committee Submission (August 1992) at 1-2; and Australia. Attorney-General’s Department, Office of Legal Aid and Family Services Submission (28 August 1992) at 5.

32. Redfern Legal Centre Intellectual Disability Rights Service Submission (16 October 1992) at 5.

33. Kingsford Legal Centre Submission (29 October 1992) at 6.

34. In Dietrich v R (1992) 109 ALR 385 the High Court stated (per Mason CJ, Deane, Toohey, Gaudron and McHugh JJ; Brennan and Dawson JJ dissenting) that an indigent [poor] accused charged with a serious criminal offence has no right to legal representation at public expense, but does have the right to a fair trial; and so, except in exceptional circumstances, where a person is charged with a serious criminal offence but is without legal representation, and the subsequent trial is for that reason unfair, any conviction represents a miscarriage of justice and must be quashed by an appellate court.

35. New South Wales Bureau of Crime Statistics and Research New South Wales Criminal Courts Statistics 1993 (Attorney General’s Department, 1994) Table 1.4.

36. Compare T Vinson and R Homel “Legal representation and outcome: a progress report on the relation between legal representation and the findings of courts of petty sessions throughout New South Wales” (1973) 47 Australian Law Journal 132 at 133; and P Cashman “Representation in criminal cases” in J Basten, M Richardson and G Zdenkowski The Criminal Injustice System (Australian Legal Workers Group (NSW), Sydney, 1982) 195 at 208.

37. ACT Council on Intellectual Disability Submission (20 July 1992) at 4.

38. New South Wales. Law Reform Commission People with an Intellectual Disability and the Criminal Justice System: Policing Issues (Discussion Paper 29, 1993) at ch 3.

39. M Ierace Intellectual Disability: A Manual for Criminal Lawyers (Redfern Legal Centre Publishing, Sydney, 1989) at 7 [footnote references omitted]; also consultation with solicitors from the Legal Aid Commission of NSW (17 March 1994).

40. NSWLRC DP 29 at para 3.2.

41. A list of these indicators is set out in Ierace (1989) at 8-9.

42. M Ierace “Intellectually Disabled People and the Law”, paper presented at Criminal Law Seminar (New South Wales Attorney-General’s Department, Sydney, 7 July 1993) at 2-3 [footnote references omitted].

43. Ierace (1989) at 8.

44. Legal Aid Commission of NSW Submission (24 July 1992) at 2.

45. Ierace (1989) at 8-9. R J Bonnie “The competency of defendants with mental retardation to assist in their own defense” in R W Conley, R Luckasson and G N Bouthilet (eds) The Criminal Justice System and Mental Retardation: Defendants and Victims (Paul H Brookes Publishing Co, Baltimore, 1992) at 100.

46. Bonnie at 98-99.

47. Redfern Legal Centre Intellectual Disability Rights Service Submission (16 October 1992) at 4; consultation with solicitors from the Legal Aid Commission of NSW on 17 March 1994.

48. Consultation with solicitors from the Legal Aid Commission of NSW on 17 March 1994.

49. Legal Aid Commission of NSW Submission (24 July 1992) at 2.

50. Mr P Hutten Submission (17 June 1994) at 28-29.

51. Australia. Attorney-General’s Department, Office of Legal and Family Services Submission (28 August 1992) at 5.

52. Ms J Lannen, Solicitor, Office of the Director of Public Prosecutions, New South Wales Submission (23 December 1993) at 2.

53. See Ierace (1989) especially ch 2.

54. Ierace (1989) at 9-10; M Scannell “Acting for a client with an intellectual disability: how to provide the best service” paper presented at 1992 National Community Legal Centres Conference (Canberra, 1992) at 5-7; D Feben The Right to be Heard: Obtaining Evidence from Intellectually Disabled People (Office of the Public Advocate, Melbourne, 1988) at 18-66 ; NSWLRC DP 29 at para 6.5.

55. Ierace (1989) at 9.

56. NSWLRC RR 3 at para 4.25. See also Scannell at 5.

57. South Australia. Court Services Department Submission (11 August 1992) at 2.

58. NSWLRC RR 3 at para 4.30-4.31; Ierace (1989) at 9.

59. Scannell at 6.

60. Confidential Submission (24 July 1992) at 3.

61. Kingsford Legal Centre Submission (29 October 1992) at 3.

62. Ierace (1989) at 9.

63. NSWLRC RR 3 at para 3.15-3.16.

64. Queensland. Department of Family Services and Aboriginal and Islander Affairs Submission (18 August 1992) at 3.

65. Redfern Legal Centre Intellectual Disability Rights Service Submission (6 January 1992) at 7; Redfern Legal Centre Intellectual Disability Rights Service Submission (16 October 1992) at 8.

66. Mr P Hutten Submission (6 January 1992) at 2.

67. Redfern Legal Centre Intellectual Disability Rights Service Submission (6 January 1992) at 7.

68. NSWLRC RR 3; Kingsford Legal Centre Submission (29 October 1992) at 4.

69. Mr P Hutten Submission (6 January 1992) at 8 and (14 July 1992) at 6-7.

70. Consultation with solicitors from the Legal Aid Commission on 17 March 1994.

71. Kingsford Legal Centre Submission (29 October 1992) at 2-3.

72. S C Hayes and G Craddock Simply Criminal (2nd ed, Federation Press, Sydney, 1992) at 187-188.

73. R J Uphoff “The role of the criminal defense lawyer in representing the mentally impaired defendant: zealous advocate or officer of the court?” [1988] Wisconsin Law Review 65 at 67. See also N H Mickenberg “The silent clients: legal and ethical considerations in representing severely and profoundly retarded individuals” (1979) 31 Stanford Law Review 625 at 627; and M B Santamour and B West Retardation and Criminal Justice: A Training Manual for Criminal Justice Personnel (President’s Committee on Mental Retardation, Washington DC, 1979) at 41.

74. See also Hayes and Craddock at 96-97, where the authors point out that the requirement in s 12(2) of the Mental Health (Criminal Procedure) Act 1990 (NSW) that fitness proceedings not be conducted in an adversarial manner, raises the prospect that the lawyer may be required to disclose information which is relevant to the accused’s fitness which is likely to lead to the accused’s incarceration - an action in breach of duties under the Bar Rules.

75. Bonnie at 112 [emphasis in original].

76. P R Tremblay “On persuasion and paternalism: lawyer decision-making and the questionably competent client” [1987] Utah Law Review 515 at 519-520.

77. See for example American Bar Association Model Rules of Professional Conduct and Code of Judicial Conduct (August 1984) at Rule 1.14; American Bar Association Model Code of Professional Responsibility and Code of Judicial Conduct (August 1980) at EC 7-11, EC 7-12.

78. Gray v Pearson (1870) LR 5 CP 568.

79. Supreme Court Rules 1970 (NSW) Pt 63; District Court Rules 1973 (NSW) Pt 45; Local Courts (Civil Claims) Rules 1988 (NSW) Pt 34.

80. Family Law Act 1975 (Cth) s 65.

81. Children (Care and Protection) Act 1987 (NSW) s 66.

82. See Supreme Court Rules 1970 (NSW) Pt 1 r 8(1); Family Law Rules 1984 (Cth) Or 23 r 6.

83. Haines v Leves (1987) 8 NSWLR 442 at 449 per Street CJ.

84. Guardianship Act 1987 (NSW). Such an application can be made by a person seeking guardianship, an individual responsible for that person, the Public Guardian, or any other individual who in the opinion of the Board has genuine concern for the person’s welfare: s 9.

85. Guardianship Act 1987 (NSW) s 14.

86. Guardianship Act 1987 (NSW) s 16.

87. Guardianship Act 1987 (NSW) Part 7.

88. Guardianship Act 1987 (NSW) s 4.

89. Redfern Legal Centre Intellectual Disability Rights Service Submission (16 October 1992) at 10.

90. Sentencing Act 1989 (NSW) s 13A.

91. Legal Aid Commission of NSW Submission (8 January 1992) at 4.

92. New South Wales. Office of the Public Guardian Submission (26 August 1992) at 1.

93. Redfern Legal Centre Intellectual Disability Rights Service Submission (16 October 1992) at 8.

94. Scannell at 8.

95. Kingsford Legal Centre Submission (29 October 1992) at 3.

96. Redfern Legal Centre Intellectual Disability Rights Service Submission (16 October 1992) at 8.

97. The New South Wales Council for Intellectual Disability Submission (16 September 1992) at 8.

98. See Mr G Breheny Oral Submission (23 February 1993).

99. NSWLRC DP 29 at para 6.9-6.37.

100. Ms J Lannen, Solicitor, Office of the Director of Public Prosecutions, New South Wales Submission (23 December 1993) at 2.

101. Bonnie at 100.

102. Grant v Downs (1976) 135 CLR 674 at 685 per Stephen, Mason and Murphy JJ.

103. Gaio v R (1960) 104 CLR 419, see Kitto J at 431.

104. Dingle v Commonwealth Development Bank of Australia (1989) 91 ALR 239 at 242.

105. NSWLRC DP 29 para 6.37.

106. New South Wales. Law Reform Commission People with an Intellectual Disability and the Criminal Justice System (Issues Paper 8, 1992) at para 7.13.

107. NSWLRC IP 8 at para 7.3.

108. New South Wales. Office of the Director of Public Prosecutions Submission (March 1992) at 1.

109. Confidential Submission (4 September 1992) at 13-15.

110. Forensic patients include: persons detained in a hospital, prison or other place under the Mental Health (Criminal Procedure) Act 1990 (NSW), persons detained in a hospital pending committal for trial, and persons transferred to a hospital while serving a sentence of imprisonment. The definition is found in Schedule 1 of the Mental Health Act 1990 (NSW).

111. Legal Aid Commission of NSW Submission (8 January 1992) at 1. As at October 1991 there were 86 forensic patients in New South Wales. For further details see R Hayes, M Sterry, T Ovadia, B Boerma and W A Greer “A profile of forensic patients in New South Wales and an assessment of the role of the Mental Health Review Tribunal in effecting their release” in S Gerull and W Lucas (eds) Serious Violent Offenders: Sentencing, Psychiatry, and Law Reform (Australian Institute of Criminology, Conference Proceedings 19, Canberra, 1993).

112. Consultation with the Mental Health Review Tribunal and the Mental Health Advocacy Service on 11 March 1994.

113. New South Wales. Attorney General’s Department The Intellectually Disabled in the Criminal Justice System (Issues Paper, 1991) at 12.

114. Legal Aid Commission of NSW Submission (24 July 1992) at 8.

115. Legal Aid Commission of NSW Submission (8 January 1992) at 3.

116. The Law Society of New South Wales Submission (24 August 1992) at 5.

117. New South Wales. Department of Family and Community Services [now Department of Community Services], Office on Disability Submission (26 November 1991) at 3; Australia. Attorney-General’s Department, Office of Legal Aid and Family Services Submission (28 August 1992) at 4, 7; Redfern Legal Centre Intellectual Disability Rights Service Submission (16 October 1992) at 12; and New South Wales Sexual Assault Committee Submission (August 1992) at 6.

118. New South Wales Sexual Assault Committee Submission (August 1992) at 4, 6; National Council on Intellectual Disability Submission (18 December 1991) at 2; The New South Wales Council for Intellectual Disability Submission (16 September 1992) at 9; New South Wales. Department of Family and Community Services [now Department of Community Services], Office on Disability Submission (26 November 1991) at 3; Australia. Attorney-General’s Department, Office of Legal Aid and Family Services Submission (28 August 1992) at 3, 6; and Confidential Submission (4 September 1992) at 15.

119. The New South Wales Council for Intellectual Disability Submission (16 September 1992) at 9.

120. New South Wales. Department of Family and Community Services [now Department of Community Services], Office on Disability Submission (26 November 1991) at 3.

121. Senior Constable P Fernandez Submission (8 December 1991) at 40.

122. For example, Legal Aid Commission of NSW Submission (24 July 1992) at 7-8.

123. Ms S E Maxwell, Solicitor, Legal Aid Commission Letter (3 December 1991) at 2; Australia. Attorney-General’s Department, Office of Legal Aid and Family Services Submission (28 August 1992) at 4.

124. Associate Professor S C Hayes Submission (6 November 1991).

125. Western Australia. Department of Corrective Services Submission (19 November 1991) at 7.

126. Legal Aid Commission of NSW Submission (8 January 1992) at 3; Queensland. Department of Family Services and Aboriginal and Islander Affairs Submission (18 August 1992) at 6.

127. Redfern Legal Centre Intellectual Disability Rights Service Submission (6 January 1992) at 5.

128. National Council on Intellectual Disability Submission (18 December 1991) at 2.

129. Legal Aid Commission of NSW Submission (24 July 1992) at 7.