PROVISIONAL PROPOSALS FOR REFORM

This Discussion Paper contains 13 chapters and 48 proposals for reform. The proposals, summarised below, do not represent the final views of the Commission. The Commission seeks comments and responses in order to better formulate recommendations for reform to the Attorney General.

1. That a new statutory definition of intellectual disability be introduced as set out below.

(a) That the Crimes Act 1900 (NSW), the Mental Health Act 1990 (NSW), the Mental Health (Criminal Procedure) Act 1990 (NSW) and the Evidence Bill 1993 (NSW) (the “listed Acts”) be amended to include the following definition:

“Intellectual disability” in relation to a person means a significantly below average general intellectual functioning existing concurrently with two or more deficits in adaptive behaviour, and which has manifested before the age of 18 years.

It is important that this definition remain uniform in criminal legislation.

(b) That the listed Acts replace “developmental disability of mind”, or variations of this term such as “developmentally disabled”, wherever they occur in the listed Acts, with “intellectual disability”.

(c) That an umbrella term, “impaired intellectual functioning”, be introduced into the listed Acts to cover all conditions which impair a person’s intellectual functioning (but not including mental illness) and that such a term be used wherever a policy decision is made that a provision in one of the listed Acts should apply to all people with such an impairment, however

that condition arises, including intellectual disability, brain injury or dementia:

“impaired intellectual functioning” includes impaired intellectual functioning because of intellectual disability, brain injury or dementia.

Chapter 2 - Lawyers and legal personnel

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.

Chapter 4 - Fitness to be tried: Supreme and District Courts

10. That certain sections of the Mental Health (Criminal Procedure) Act 1990 (NSW) should be amended to include reference to the person with an intellectual disability. (See para 4.22 for the full text of this proposal.)

11. That references to “forensic patient” in the Mental Health (Criminal Procedure) Act 1990 (NSW) or the Mental Health Act 1990 (NSW) be replaced by “forensic person”.

12. That the provisions of the Mental Health (Criminal Procedure) Act 1990 (NSW) be relocated in the Crimes Act 1900 (NSW).

13. That, wherever practicable, the membership of the Mental Health Review Tribunal include, as one member of its three person panel, a member with appropriate expertise in the area of intellectual disability in circumstances where the Tribunal knows or suspects that the person appearing before it has an intellectual disability.

14. That the right to election for a hearing by judge alone in fitness and special hearings be removed and that:

(a) fitness hearings be always heard by judge alone; and

(b) special hearings be always heard by judge and jury.

15. That s 27 of the Mental Health (Criminal Procedure) Act 1990 (NSW) be amended to the effect that orders are made by the Tribunal, not the Court.

16. That s 10(4) of the Mental Health (Criminal Procedure) Act 1990 (NSW) be amended as follows:

10(4) If, in respect of a person charged with an offence, the Court is of the opinion that it is inappropriate to inflict any punishment, or to inflict any punishment other than a nominal punishment, having regard to the trivial nature of the charge or the offence, the nature of the person’s disability or any other matter including time already spent in custody which the Court thinks proper to consider, the Court may determine not to conduct an inquiry and may dismiss the charge and order that the person be released.

17. Any expert report prepared for the purpose of assessing the fitness of the accused to stand trial should not be able to be used in evidence at the subsequent trial.

18. That the Judicial Commission of New South Wales review the adequacy of the material in the Bench Books in relation to intellectual disability.

19. That s 14 of the Mental Health (Criminal Procedure) Act 1990 (NSW) be amended to provide that, in the period between a finding of unfitness and the special hearing, the Court may, on an application by either side, have the matter brought back before it to consider any possible variation in the orders made under s 14(b).

20. Where a person appearing before any court in a fitness or special hearing does not have a guardian and it appears to the Court that a guardian may be necessary, the Court should be empowered to adjourn the proceedings and direct that an appropriate person (presumably the Public Guardian) be notified of the person’s position, and consider bringing an application to the Guardianship Board.

21. For the purpose of setting the limiting term, the judge should be required to give the person the benefit of assuming that the person would have pleaded guilty. The legislation should also be amended so that the limiting term is divided into minimum and additional terms.

22. A limited finding of guilt at a special hearing should be a bar to further prosecution in respect of the same circumstances, and should no longer be subject to s 28 of the Mental Health (Criminal Procedure) Act 1990 (NSW).

23. That the executive discretion be removed from all decisions regarding forensic patients (except as limited by Proposal 24) so that all decisions as to their placement, security conditions and release are made by the Mental Health Review Tribunal. (This proposal would require consequential amendments to the Mental Health Act 1990 (NSW) and the Mental Health (Criminal Procedure) Act 1990 (NSW) to enable the Tribunal to make orders rather than recommendations.)

24. That s 84(1)(a) of the Mental Health Act 1990 (NSW) be limited to apply only to forensic patients who have been transferred to hospital while serving a sentence of imprisonment or life sentence.

25. That s 32 and related sections of the Mental Health (Criminal Procedure) Act 1990 (NSW) be re-drafted (in the terms set out at the end of Chapter 5) to overcome the concerns highlighted in the chapter.

26. The Commission does not make a new proposal in relation to competence but rather supports cl 11 and cl 12 of the Evidence Bill 1993 (NSW).

27. The Office of the Director of Public Prosecutions, New South Wales should develop guidelines for preparing witnesses with an intellectual disability for court. A video explaining court procedures to adults with an intellectual disability should be produced.

28. Matters involving an accused or a victim with an intellectual disability should be expedited wherever practicable.

29. That the following provisions in relation to vulnerable witnesses (where “witness” is defined to include the accused) be inserted into the Evidence Bill 1993 (NSW):

(a) If by reason of intellectual disability, age or any other factor the court is satisfied that a witness may be unfairly subjected to embarrassment or distress in giving evidence in the ordinary way or may be so intimidated by the atmosphere of the court room and the nature of the proceedings as to be severely disadvantaged as a witness, it may order that special arrangements be made for the taking of evidence of that witness.

(b) Special arrangements include, but are not limited to:

(i) the use of closed circuit-television;

(ii) screens; or

(iii) the presence of a support person.

(c) Without limiting the judge’s right to give any other warning, in any criminal proceedings in which the evidence of a witness is given by special arrangements, the judge must warn the jury not to draw any inference adverse to the accused person or give the evidence any greater or lesser weight because of the use of special arrangements.

30. Where the court is satisfied, on expert evidence, that the accused has an intellectual disability, the accused shall have the right to make a statement not subject to cross examination.

Chapter 8 - Reliability of evidence

31. A party in a criminal trial should be able, with the leave of the court, to call expert evidence in chief about a witness’s intellectual disability, where there is a risk that in the absence of that evidence the trier of fact (judge or jury) will be unable to give proper consideration to the reliability of the witness’ evidence. This evidence should be admitted to inform the trier of fact of the manner in which the intellectual disability may affect the cognitive, communication, and memory skills of the witness in relation to the giving of evidence, and to explain the behaviour of the person.

32. That cl 164 of the Evidence Bill 1993 (NSW) be amended to provide that the evidence of people with an intellectual disability is a category of evidence which may be unreliable, and which may attract a judicial warning upon the judge being requested by a party to give the warning to the jury.

Chapter 9 - Victims: Sexual offences and victim compensation

In this area, the Commission has decided to ask a number of questions at this stage, rather than to make specific proposals for reform. These questions and requests for further information are set out in paras 9.24 and 9.29.

Chapter 10 - Criminal defences

33. That New South Wales adopt the proposed Commonwealth statutory version of the defence of mental impairment. Accordingly, all references in the Mental Health (Criminal Procedure) Act 1990 (NSW) to the defence/verdict of “not guilty by reason of mental illness” or “not guilty on the ground of mental illness” should be amended to “the verdict of not guilty because of mental impairment”. (Proposals below, however, will continue to refer to the defence of “mental illness” to avoid confusion.)

34. That s 39 of the Mental Health (Criminal Procedure) Act 1990 (NSW) be amended so that, following a verdict of not guilty by reason of mental illness, the judge has the power either to order the detention of the accused, or in appropriate cases to allow for the person’s conditional release until the Mental Health Review Tribunal has made its recommendations and the prescribed authority has responded to them. (Consequential amendments to this proposal will need to be made if the role of the prescribed authority is changed, see Proposal 36 below.)

35. That the provisions in the Mental Health (Criminal Procedure) Act 1990 (NSW) and the Mental Health Act 1990 (NSW) that a person found not guilty by reason of mental illness shall be detained (or released conditionally by the judge, as proposed in Proposal 34) on an indeterminate basis, until the Mental Health Review Tribunal is satisfied that the person is not dangerous, be retained.

36. The Commission repeats Proposal 23 in relation to the abolition of the executive discretion in this area:

That the executive discretion be removed from all decisions regarding forensic patients (except as limited by Proposal 24) so that all decisions as to their placement, security conditions and release are made by the Mental Health Review Tribunal. (This proposal would require consequential amendments to the Mental Health Act 1990 (NSW) and the Mental Health (Criminal Procedure) Act 1990 (NSW) to enable the Tribunal to make orders rather than recommendations.)

37. That the Mental Health Act 1990 (NSW) and/or the Mental Health Regulation 1990 (NSW) be amended to include a non-exhaustive list of release conditions which may be imposed by the Mental Health Review Tribunal.

Chapter 11 - Sentencing

38. Where an offender is unrepresented and has an intellectual disability, or one is suspected, and a custodial sentence is a reasonable possibility, a Pre-sentence Report is mandatory.

39. A pilot study should be undertaken of a court liaison position, for example in the Downing Centre. The liaison officer(s) should provide immediate assessments or advice for the court, the police prosecutors, other prosecution lawyers, or defence counsel, and should have appropriate psychiatric and psychological expertise.

40. On the information obtained to date, the Commission supports the retention of special units in the prison system. The units, however, should be regularly reviewed. The Commission also supports the provision of funding for services for mainstream prisoners with an intellectual disability.

41. The Victorian model of a secure unit (not within the grounds of a prison) for people with an intellectual disability who are either unfit to be tried or not guilty on the grounds of mental illness, or other offenders with an intellectual disability for whom prison is considered inappropriate, should be adapted for use in New South Wales. Appropriate safeguards and services should be provided and the conditions for the transfer of such people from prison set out in legislation. The appropriate government department to run the unit should be a matter for further discussion. The unit should be able to have more flexible leave and rehabilitation programs than are available in prison, and there should be provision for decreasing levels of security to enable re-integration into the community, as currently exists in the prison system.

42. That the assessment and screening procedures in prisons be appropriately resourced and reviewed on a regular basis.

43. That procedures be instituted to ensure that relevant information about an offender’s intellectual disability is transferred from the courts to the New South Wales Department of Corrective Services and the NSW Probation Service.

44. An audit of current New South Wales Department of Corrective Services and NSW Probation Service training in relation to intellectual disability should be undertaken. Training about the special needs and vulnerability of people with an intellectual disability should not be directed merely to the level of the new recruit, but should be included on a continuing basis for all staff who are likely to come into contact with people with an intellectual disability.

45. With the assistance of the New South Wales Department of Community Services, the NSW Probation Service should develop appropriate non-custodial programs for the offender with an intellectual disability, within the existing non-custodial (or semi-custodial) options, such as Community Service Orders. The court should also have the power, as in Victoria, to request information from both agencies about appropriate available programs and order that the person attend such a program as a condition of the sentence.

Chapter 12 - Release from custody

46. That a pilot service co-ordination scheme, based upon the Special Offenders Service, Lancaster County, Pennsylvania, USA, be established jointly by the New South Wales Department of Community Services and the NSW Probation Service, with staff drawn from both organisations, and that appropriate community-based accommodation be established to provide for those participants in the program who do not have adequate accommodation or community ties to facilitate their participation in the program.

47. That the proposed pilot service co-ordination scheme include, in appropriate circumstances, a negotiated agreements option, so that offenders with an intellectual disability may have some input into the structure and sanctions of their individual programs. This option should provide safeguards to ensure that the person’s disability and unequal bargaining position are not exploited.

Chapter 13 - Services and co-ordination

48. The position of Intellectual Disability Commissioner should be established, independent of any Department, to perform the following roles, in consultation with the disability community, government agencies and appropriate experts:

(a) identify the service needs of people with an intellectual disability involved (or at risk of being involved) in the criminal justice system, and review these services on a regular basis;

(b) decide which government departments could best provide such services and be involved in their allocation, considering the necessity of appropriate resources to meet those needs;

(c) once the departmental responsibilities are clearly outlined, assist in the establishment, at both the operational and the policy levels, of formal channels of communication between the relevant criminal justice and service agencies;

(d) provide an information and referral contact point for personnel in the criminal justice system (police, lawyers, probation officers etc), and preparing appropriate information for dissemination to the public;

(e) encourage research into this area, through the commissioning of projects and the supervision of, for example, inter-departmental initiatives;

(f) assist (perhaps on a contract basis) in the training of criminal justice system personnel about intellectual disability; and

(g) develop and provide a list of support persons available for police interviews on a 24 hour basis.