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Where am I now? Lawlink > Law Reform Commission > Publications > Report 80 (1996) - People with an Intellectual Disability and the Criminal Justice System
Report 80 (1996) - People with an Intellectual Disability and the Criminal Justice System Table of Contents Terms of reference 1. INTRODUCTION
Rights and responsibilities Principles guiding the Commission's recommendations CONCLUSIONS 2. CRIME AND PEOPLE WITH AN INTELLECTUAL DISABILITY
Psychological and socio-economic disadvantage OVER-REPRESENTATION AS VICTIMS Victims: Explanations for over-representation CRIMES COMMITTED AGAINST PEOPLE WITH AN INTELLECTUAL DISABILITY WITNESSES THE DILEMMA OF A "DOUBLE DISADVANTAGE" Juveniles Aborigines Mental illness Gender DIVERSION 3. DEFINITIONS OF INTELLECTUAL DISABILITY
Terminology Definitions: The current position in New South Wales Advantages of a statutory definition
Restriction to criminal legislation
Extension to other impairments RECOMMENDATIONS BACKGROUND Police and people with an intellectual disability
Police attitudes Suspects Victims and witnesses
Suspects in police custody Conclusions DISCUSSION OF RECOMMENDATIONS The Commission’s Police Powers Report
Recommendation 3: Time limits for detention after arrest before charging
Recommendation 5: Code of Practice
about intellectual disability
Recommendation 6(b): Officer to follow procedures if intellectual disability suspected Recommendation 6(c): Guidelines for questioning Recommendation 6(d): The caution Recommendation 6(e): Adoption and reading back of record of interview Recommendation 6(f): Electronic recording of police interviews Recommendation 6(g): Identification parades Recommendation 6(h): Bail Recommendation 6(i): Presence of a lawyer and support person
Conclusions Should the support person be a compellable witness? Recommendation 9: Related issues - presence of a support person at other interviews Client legal privilege RECOMMENDATIONS BACKGROUND TO THE COMMISSION’S RECOMMENDATIONS Fitness to be tried Fitness to be tried: General issues
Adversarial nature of the proceedings Background to the recommendations
If found fit/unfit to be tried by the court? The Mental Health Review Tribunal Determination that the person WILL become fit to be tried within 12 months Determination that the person WILL NOT become fit to be tried within 12 months Continuing review by the Tribunal of forensic patients
Victorian review of Governor’s Pleasure legislation Supreme and District Courts
Recommendation 12: Trivial offences, section 10(4) Recommendation 13: The accused’s right to election for judge alone Recommendation 14: Expert reports Recommendation 15: Variation of bail and other orders Recommendation 16: Setting the limiting term Recommendation 17: Orders made by Tribunal, not court Recommendation 18: Bar to further prosecution Recommendation 19: Removal of executive discretion Recommendation 20: The Attorney General’s veto and police notification Recommendation 21: Conditions of release Recommendation 22: The duty to give reasons and appeals Background to the Commission’s recommendations
The section 32 procedure Disadvantages of the current procedures Possible scenarios in Local Courts
Recommendation 24: Diversion RECOMMENDATIONS BACKGROUND TO THE RECOMMENDATIONS Introduction Application of the defence to people with an intellectual disability The position in New South Wales
The defence of mental illness in Supreme and District Courts
Recommendation 26: Indeterminate detention Recommendation 27: Abolition of strict custody requirement
7. GIVING EVIDENCE
When is a person not competent to give evidence? Competence of people with an intellectual disability to give evidence Overcoming lack of understanding of the court process Overcoming communication difficulties
Interpreters Recommendation 29: Special arrangements for giving evidence
Should special arrangements be available to witnesses with an intellectual disability? Should not be restricted to victims Special arrangements should be available on the basis of need What arrangements should be available? Judicial warning
Making a statement that is not subject to cross examination The Commission’s view
Expert evidence to help understand the witness’s demeanour The Commission’s view Warnings about unreliable evidence The Commission’s proposals
The Commission’s view RECOMMENDATIONS INTRODUCTION SEXUAL OFFENCES AGAINST PEOPLE WITH AN INTELLECTUAL DISABILITY Background to the recommendations
Recommendation 33: Specific sexual offences - s 66F Background to the recommendation Victims Compensation Act 1987
Proposals for reform Discussion of the Commission’s recommendation
Background to the Commission’s recommendations Discussion of the Commission’s recommendations
Recommendation 37: Court power to request information RECOMMENDATIONS BACKGROUND Introduction Community legal education for people with an intellectual disability and their carers Education and training for criminal justice system personnel DISCUSSION OF RECOMMENDATIONS Recommendation 38: Community legal education
The need for access to information about the system Funding and provision of community legal information Recommendation 40: Audit of training material on intellectual disability issues
Who should do the audit?
The need for training in intellectual disability issues Involvement of people with an intellectual disability in training programs Content of training programs training programs Recommendation 43: Educating the legal profession
The need for training for lawyers Recommendation 45: Development of materials for judges and magistrates Recommendation 46: Education about guardianship Recommendation 47: Research about intellectual disability issues 10. A CO-ORDINATED APPROACH
Requirements for achieving co-ordination Monitoring Date for implementation Juvenile justice Recommendation 50: Exchange of information Recommendation 51: Screening, assessing and identifying intellectual disability Recommendation 52: Government agencies' policies
Policy contents Operational guidelines
Specialist police liaison officers
The Commission's recommendation: A case manager service RECOMMENDATIONS BACKGROUND DISCUSSION OF RECOMMENDATIONS Recommendations 55 and 56: Special units and programs in prisons
Should special units be retained? The Commission’s recommendations
Qualified support for secure units outside the prison system The Commission’s conclusions
Benefits for people with an intellectual disability Parole Recommendation 58: Access to Community Service Orders Recommendation 59: Special Offenders’ Service Conclusion: Gaps in services Appendix A: Written submissions received Appendix B: Select intellectual disability studies Appendix C: Amendments to the Criminal Procedure Act 1986 (NSW) |
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