2011 Law Week Hypothetical part 1

Transcript

[Law Week Hypothetical 2011 - You be the judge #5]
[www.legalaid.qld.gov.au] [1300 65 11 88]

>> Meshel Laurie, Moderator: Welcome everybody, welcome legal students and other people, we're going to hear from a lot of interesting people today.

Equality and fairness are two fundamental elements of Australia's legal system, but I don't have to tell you that Mansfield. You are a legal studies student - I'm sure that's lesson number one, equality and fairness. We all have the right to be treated equally before the law but how does our justice system provide for the needs of vulnerable people? In this case we're talking specifically about people with intellectual disabilities. That's our story today.

Intellectual disability affects around one percent of the Australian population. It ranges from mild through to severe or profound levels of disability and studies have shown that people with intellectual disabilities are overrepresented in our criminal justice system. For example, approximately 6000of the 320,000 charges heard in the Magistrate's Court of Queensland each year involve people with intellectual disabilities ...that statistic's amazing. These charges might involve crimes such as theft, assault, property damage and causing of public nuisance.

Today we're going to talk about Andy. Andy's not a real person (hello ladies) ...Andy's not a real person, he's a person we've invented, and he's committed a crime ... I don't know if you've all been to one of these before?... and then we talk about all the way through the process from where the crime happens to when he meets his lawyers, and he meets people in the legal system who most of us never get to meet (luckily!)and [laughs] no offence, but if you meet a lawyer, generally it's an unhappy circumstance ...Isn't it? Generally, generally. I mean I'm not hanging out in the same bars y'all are hanging out at otherwise it'd be a fun time, but I... I don't want to run into you guys, to be honest.

Today, we're talking about Andy, a young man with an intellectual disability who has been charged with stealing and we're going to look at the types of challenges he faces in the criminal justice system because of his intellectual disability, and discuss ways of overcoming these challenges. Here's our panel ...the Honourable Dean Wells, MP ...Where are you? There you are, my friend! How are you?

>> Dean Wells MP: Good.

>> Meshel: Good ... Busy?

>> Dean Wells MP: Oh, just a tad.

>> Meshel: Yes, alright well thank you so much for coming. You're the member for Murrumba in the Queensland Government, you're representing the Deputy Premier and Attorney-General, Paul Lucas MP ...Where are they at? What's their caper? [laughter]

>> Dean Wells MP: ... The Attorney-General plays a role in the legal system as well as being a member of Parliament and a member of the Cabinet. The Attorney-General also plays a role in the legal system and when he's playing a role in the legal system he's supposed to be completely non-political, he's not capable of being governed by Cabinet, he has to act with unfettered discretion, so that's the role of the Attorney-General and ... at the moment that's Paul Lucas; I'm representing him today.

>> Meshel: Where is he? [laughter]What's his caper now?

>> Dean Wells MP: What's his caper now? I think that he's at a ministerial meeting.

>> Meshel: Oh! right, fair enough, fair enough, very good. His Honour, Judge Brendan Butler AM SC ...There you are! You and I did this gig last year. How are you?

>> Judge Butler: That's right ... good.

>> Meshel: Good, good - you look great. Okay. You're the Chief Magistrate of the Brisbane Magistrates Court so this is really all about your story ... I'm sure lots of people give you advice, and we're going to give you more today. You looking forward to that? You haven't got a pen though? That's funny ...Oh no, yes you do! [laughter]Is that where you're going to write down our ideas?

>> Judge Butler: I've got it here [pats jacket pocket]

>> Meshel: Yeah good, good, good, good, write down our ideas.

Professor Susan Hayes AO...There you are! Hello madam! Head of Behavioural Sciences in Medicine and forensic psychologist[gasp] – you're our psychologist. Yes you are. Oh you've got the stick, there you go. Don't be afraid to use the stick, darl! [laughter] Okay ...You're going to talk us through um...I guess the perspective, from the perspective of a person with a disability.

>> Prof Hayes: Yes and I'm going to explain a bit about intellectual disability as well.

>> Meshel: Yes, what is that exactly - we'll get to that, but what is it and where does mental illness fit in and all of that kind of stuff, very good, very good. Mr Kevin Cocks AM, where are you Kev? There you are mate. You are Anti-Discrimination Commissioner for Queensland and a member of the Queensland Sentencing Advisory Council -God, that's hard!

>> Mr Cocks: Oh, it's good fun.

>> Meshel: It's good fun?! You've got a weird idea of fun dude! [laughter]

>> Mr Cocks: You have to know me.

>> Meshel: Oh, I've gotta know ya! Yeah, I think you would be an interesting fellow to know.

Mr Peter Delibaltas, where are you Pete? Oh you're my old mate. Okay. Peter you are Criminal Law Services Director, Legal Aid Queensland. You're a duty lawyer. I just met Peter the other day ... it's so interesting if you, like, find yourself um... at the police station this bloke comes in, you've never seen him before and he's never seen you before and he's your lawyer! Isn't that amazing?! God, good luck! [laughter]... to both of us, Pete, to be honest! Okay ... [laughs]

Professor Geraldine Mackenzie ... there you are my darling. How are you? Dean of Law and Pro Vice Chancellor of Research at Bond Uni. You're the academic amongst us.

>> Prof Mackenzie: I am, but I'm here in my capacity of Chair of the Queensland Sentencing Advisory Council where I sit with Kevin.

>> Meshel: You and Kev! Great, okay.... and you're always up His Honour here to change sentencing – more sentencing, less sentencing, longer, shorter...

>> Prof Mackenzie: We don't like to tell them what to do.

>> Meshel: No! Of course not. No!

Ahh... Mr Dan Toombs, Director of Queensland Criminal Justice Centre and member for Legal Aid ... member of Legal Aid Queensland's Board. Geez, you're a youngie! Or are you a baby face?

>> Mr Toombs: I think I'm a baby face.

>> Meshel: You're a baby face. Well it's all good either way darl, and uh... and how long have you been at Legal Aid?

>> Mr Toombs: I've been on the board now for about four years, I think.

>> Meshel: Do you reckon you'll stay?

>> Mr Toombs: I'd love to stay.

>> Meshel: It's a hard job!

>> Mr Toombs: No but it's a tremendous organisation.

>> Meshel: Yeah but aren't lawyers supposed to be out there just making heaps of money and not caring about anyone? You're doing it wrong!

>> Mr Toombs: Well, the lawyers at Legal Aid aren't, they've got justice in their hearts and that's what I like.

>> Meshel: Good on you! You are doing it wrong. But good on you.[laughter]

Doctor Jeffrey Chan, there you are my friend. Chief Practitioner Disability, Department of Communities. What does that mean?

>> Dr Chan: uh... basically my job is to... I report to the Director-General, to provide clinical advice in all matters relating to disability services -planning, performance, strategy...

>> Meshel: So you're the latest information.

>> Dr Chan: I'm the latest information from the clinical perspective, and I also hold the role of the Director of Forensic Disability, the legislation that has recently passed in Parliament. I'm kind of like your very very caring end of the business.

>> Meshel: The very very what?

>> Dr Chan: Caring end of the business.

>> Meshel: Did he say Kerri-Anne? [laughter]

>> Dr Chan: No ... Caring! [emphasis]Caring end of the business.

>> Meshel: Oh! Caring end! I thought you said you were the Kerri-Anne of the business.

>> Dr Chan: No, not Kerri-Anne Kennerley [laughs] no no.

>> Meshel [continues]: And I was so into that!

>> Dr Chan: What, the Kerri-Anne Kennerley thing?

>> Meshel: Caring end. Okay, but you can be the Kerri-Anne too if ever you want. Just let me know.

>> Dr Chan: Maybe not today.

>> Meshel: [laughs] No, maybe not today. I would like to see that moving forward though, sir.

Okay, before we begin... the toilets are out in the foyer, but you'll be so riveted there's no way in the world you'll find time for a toilet break. There are two emergency exits at the right-hand side of the room, over there-ish. Please switch off your phones, because they are recording this for their website and all that. And all of you have got mobile phones...have you got... you've probably got two! You haven't brought your phone with you? Good boy. Alright...and, yes as I say, we are filming.

Now today please I need to welcome someone who's going to welcome all of us, are you ready for that? Big, rousing round of legal applause, ladies and gentlemen, for Chief Justice (he probably doesn't get a lot of these, in the courtroom)... big round of applause ladies and gentlemen for Chief Justice Paul de Jersey [applause] ... PDJ!

>> Chief Justice: Thank you. Thank you Meshel, ladies and gentlemen. It is my pleasure to welcome you all to the Banco Court this afternoon, and in doing that I congratulate Legal Aid Queensland for again showing the lead with this excellent initiative during Law Week. In doing so, I acknowledge the traditional Indigenous custodians of these lands the Yuggera and Turrbal peoples and their elders and descendants.

I also particularly acknowledge the presence and participation of a number of people in addition to our valued panellists this afternoon, and they are Ms Rachel Hunter, the Chair of Legal Aid Queensland; Mr Anthony Reilly, the CEO of Legal Aid; Mr Paul Davey, the Deputy CEO; Mr John Allen, the Public Defender; Magistrate Christine Roni; and Ms Dianne Pendergast, who completed her term as Adult Guardian but four days ago; and Mr Paul Marshke, the Executive Director of the Magistrates Court within the... Magistrates Court branch within the department.

I also warmly welcome students and teachers from Pine Rivers High School, Brisbane Bayside State College, Coorparoo Secondary College, Ipswich State High School, Mansfield State High School, Brisbane North Institute of Tafe, Prince of Peace Lutheran College, Bell State School (I knew where Bell was, by the way).and... and (shame on you) [laughter]and Griffith University.

Representing such a vast proportion of the defendants and accused persons who come before magistrates and judges in the criminal courts in this state, Legal Aid Queensland is particularly well equipped to host an instructive and entertaining hypothetical of this ilk. I'm confident this year's will warrant that description.

There are two additional points I'd like briefly to make. The first is that the work of the criminal courts remains the conspicuous focus of public interest in the legal process. Unfortunately many members of the public lack any real appreciation of the detail of that process, hence the value of an exercise like this today. The second point I wish to make is our realisation as a community that the time-hallowed approaches of the criminal courts must flexibly accommodate new phenomena. For example, drug crime, addressed in last year’s hypothetical, where very often it is the addiction which should be the determinant of the court's response.

Another challenge is the one to be addressed today. How does the system come to grips with the effective intellectual disability on moral and legal culpability?

I warmly welcome you all to the event; we judges greatly value your presence and we trust you will find the exercise, as I forecast, both instructing and entertaining, and that's a reliable forecast when we take account of two features in particular - the identity of our panellists and the moderating effect of our compere. Back to Meshel. Thank you.[applause]

>> Meshel: Thank you, Chief Justice PDJ...Paul de Jersey. PDJ is his DJ-ing name, if you ever want to see him around town.

Okay. Andy is a 27-year-old guy who lives with his parents in Stafford Heights in Brisbane. Andy has an intellectual disability which can impact on his ability to make good judgments in different situations. His parents are his legal guardians ... so he's 27,but his parents are still his legal guardians, ok ... For most of us that finishes when we're 18.So Andy's parents are his legal guardians. They encourage Andy to be independent and undertake independent activities, such as go to the movies or go to the shops by himself.

On a recent shopping trip Andy went into a newsagency to look at the magazines. He saw a magazine he liked on aeroplanes. He put the magazine in his bag and he walked out of the newsagency without paying for it. The newsagent saw Andy steal the magazine and called the police.

This isn't the first time Andy has been caught stealing. His criminal record shows three prior convictions for stealing small items such as books and magazines.

Susan - my friend. Can you explain to the audience what an intellectual disability is and how Andy's intellectual disability might have contributed to his poor judgment and to the stealing of the magazine, please?

>> Prof Hayes: Okay. If we think of intelligence in a spectrum of society, there are the Albert Einsteins up one end of the spectrum, average IQ is a hundred - why is it a hundred? It's just a nice, neat number to work around - and people with intellectual disabilities are at the lower end of the spectrum, and the actual definition of intellectual disability is significantly sub average functioning in two important areas of life. First of all cognitive reasoning, that is, memory, ability to learn, ability to work out verbal and non-verbal problems, and secondly, deficits in adaptive behaviour, and that involves such things as independence, getting on a bus, taking care of yourself, remembering to have a shower, being able to do some simple cooking, and so forth, and the other important area of the definition is that it arises prior to the age of 18.So unlike people who might get a...a blow to the head or a vehicle accident later on, people with intellectual disabilities have be in that state of intellectual deficit from the time that they were younger than 18They might have got it as a result of genetic abnormalities or perhaps as a result of being hit on the head or a severe childhood illness.

So the important thing is that there’s these two areas in which they are having difficulty - reasoning, and getting along in day-to-day life, and getting along in day-to-day life sometimes involves acting impulsively and not being able to see the results of your actions, and this is the kind of thing that is probably happening here, but we also have to say, very clearly, intellectual disability is different from mental illness.

>> Meshel: So from the perspective of the owner of the newsagency though, this is just a young guy who’s walked in and stolen a magazine.

>> Prof Hayes: That's right.

>> Meshel: He doesn't know any of that stuff and he certainly, visually, there are no visual clues for him to know any of that background about Andy.

>> Prof Hayes: Yes and most people with intellectual disabilities... you can't eyeball them and say that person's got an intellectual disability.

[ends]
[continues in part 2]

Last updated 25 November 2015