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Where am I now? Lawlink > Law Reform Commission > Publications > Discussion Paper 35 (1994) - People with an Intellectual Disability and the Criminal Justice System: Courts and Sentencing Issue
Discussion Paper 35 (1994) - People with an Intellectual Disability and the Criminal Justice System: Courts and Sentencing Issue Table of Contents Terms of reference 1. INTRODUCTION 2. DEFINITIONS OF INTELLECTUAL DISABILITY
Mental Health (Criminal Procedure) Act 1990 (NSW) Is a statutory definition desirable? Should the same definition apply in criminal and social welfare contexts? What should a statutory definition contain?
Distinction between intellectual disability and brain injury 3. LAWYERS AND LEGAL PERSONNEL
The judiciary/magistracy Court personnel
Carers Identification Further assessment Appropriate communication in interviews Continuity of personnel Difficulties in obtaining instructions
Guardianship Support person Existing legal specialist units
Legal Aid Commission of NSW “Other related bodies”
Disadvantages
Independent unit 4. FITNESS TO BE TRIED - SUPREME AND DISTRICT COURTS OVERVIEW - APPEARING IN COURT FITNESS: AN INTRODUCTION What makes a person fit to be tried? PROCEEDINGS IN THE SUPREME AND DISTRICT COURTS
Who can raise fitness and when? If found fit/unfit to be tried by the court? The Mental Health Review Tribunal Determination by the Tribunal that the person will become fit to be tried within 12 months Determination by the Tribunal that the person will not become fit to be tried within 12 months Continuing review by the Tribunal of forensic patients Difficulties with the legislation The distinction between intellectual disability and mental illness Standard of proof Trial by judge alone - the use of standard forms Length of detention, delay and complexity Power to dismiss charge - the s 10(4) procedure If fit to be tried? Directions to the jury Bail Special hearings and limiting terms Acquired brain damage and fitness Release - the discretion of the executive 5. FITNESS TO BE TRIED AND DIVERSION - LOCAL COURTS OVERVIEW FITNESS TO BE TRIED DIVERSION BY THE LOCAL COURTS The s 32/33 procedure
Use of s 32/33 by the courts Table 1: Number of charges dismissed in 1992 under sections 32 and 33 by offence type Definitions: to whom does the procedure apply?
PROPOSED AMENDMENTS TO SECTION 32 AND RELATED PROVISIONS
Fitness (P25B, P25C) Defence of mental impairment (P25D) 6. COMPETENCE TO GIVE EVIDENCE INTRODUCTION THE REQUIREMENTS FOR COMPETENCY Special provisions for children Difficulties faced by the witness with an intellectual disability THE EVIDENCE BILL Unsworn evidence 7. GIVING EVIDENCE IN COURT
Limited cross-examination Existing procedures
Other jurisdictions Screens and other “alternative arrangements”
Advantages and disadvantages of CCTV Extension of CCTV The Commission’s proposal Videorecording before the hearing
Videorecorded witness testimony Provisional views: videorecording
8. RELIABILITY OF EVIDENCE
9. VICTIMS: SEXUAL OFFENCES AND VICTIM COMPENSATION OVERVIEW SEXUAL OFFENCES AGAINST PEOPLE WITH AN INTELLECTUAL DISABILITY General issues
Aggravated sexual offences
New South Wales: s 66F Sexual offences Consent Aggravated sexual offences General sexual assault provisions Specific sexual offences: s 66F 10. CRIMINAL DEFENCES
A judicial power to release? The recommendations of the Monitoring Committee Conclusions: mandatory strict custody Conditions of release The duty to give reasons and appeals 11. SENTENCING DECISIONS AND OPTIONS
Rehabilitation Legislative recognition for intellectual disability as a sentencing factor The decision to give a custodial sentence
New South Wales
Special services SECURE UNITS IN THE COMMUNITY OTHER CUSTODIAL ISSUES Over-representation in prisons
Implications for prisoner management Transfer of information from the courts Short term prisoners Training for correctional officers NON-CUSTODIAL (OR SEMI-CUSTODIAL) OPTIONS Options available in New South Wales
Bonds Dismissal without conviction Periodic detention Home detention Program probation orders
12. RELEASE FROM CUSTODY OVERVIEW “DANGEROUSNESS” Predicting “dangerousness” “Dangerousness” and intellectual disability “Dangerousness” and preventive detention
Preventive detention statutes - Australia Objections to preventive detention Alternatives to additional periods of punishment Parole
A multi-disciplinary approach: the Lancaster Program Negotiated agreements 13. SERVICES AND CO-ORDINATION
Aborigines Mental illness Continuity and support Policy and co-ordination Lack of services
POSSIBLE SOLUTIONS Information Case management Guardianship Provision of assessment, accommodation and other services Training Policy development and specialist units Inter-department initiatives and the transfer of information Criminal justice worker PROVISIONAL PROPOSALS FOR REFORM
Appendix A: STATUTORY DEFINITIONS OF INTELLECTUAL DISABILITY AND RELATED TERMS Appendix B: TABLES FROM THE MENTAL HEALTH ACT 1900 (NSW) |
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