2011 Law Week hypothetical part 2

Transcript

[Law Week Hypothetical 2011 - You be the judge #5]
[Continues from part 1]

>> Meshel: So the guy calls the police, and the police arrive and they charge Andy with stealing. Andy is told he will have to go to court for his latest charge.

If someone has committed an offence, their first point of law ... their first point of contact with the criminal justice system is with the police ...the pol' pol' ...the fuzz. That’s you sir. [audience laughter] Now you respond to a wide variety of criminal activities in the community; a typical day obviously could include ... any number of incredible things,... big things, small things, crazy things ...y'know ... up to murder. But in this case, you've been called down to the local newsagency because a kid who likes aeroplanes has bagged a magazine about 'em. Are you trained to identify whether a person has an intellectual disability, Acting Inspector Michael Mitchell? Now we've just established, to look at him, you don't know. So, what do you do?

>> Inspector Mitchell: About five years ago the Queensland Police Service undertook a very large program to train our police officers about mental illness, and it was very quickly established that we are not clinicians, and we decided we were not going to try and train our staff to make any medical assessments. So what happened from that, is that we started to train our police on awareness programs for mental illness, for disabilities, and another range of options, so our role really is, in this situation, is to attend the shop, talk to the complainant - the shopkeeper, and to start to look at the legal aspects, at the same time making sure that everybody’s interest in these particular matters is taken into consideration. So no, we're not medically trained but we do certainly do a lot of other training in this area.

>> Meshel: But would it be fair to say that you kick it on down the line to the next bloke?

>> Inspector Mitchell: Yes.

>> Meshel: Yep. Okay... um... so ...Therefore Andy arrives at the Brisbane Magistrates Court, by himself -this is a guy don't forget whose parents are still his legal guardians -so he gets to the magistrates court by himself to face the charge of stealing a magazine. A duty lawyer ...a duty lawyer is sent in to see Andy to discuss the alleged crime, and to seek instructions from him. Andy doesn't seem to understand why he has to go to court and has trouble answering some of the questions. Andy tells the duty lawyer that he took the magazine "because he likes aeroplanes"(and it's just that simple).

Now Peter, if client like Andy turns up at court, would a duty lawyer know in advance that Andy might have an intellectual disability?

>> Mr Peter Delibaltas: Meshel, Legal Aid Queensland provides duty lawyer services across the state, and the lawyer who's rostered to appear as a duty lawyer on a particular day would usually have no notice of the clients who are referred to them on a particular day. Clients are usually seen for advice and assistance before court commences. Duty lawyers would generally receive the police file just before they see the clients and therefore, are providing advice and assistance, and representation at pretty short notice.

Lawyers will apply common sense and general human observations during the client interview process to make judgments about ... clients and their ability to provide instructions. So whilst lawyers may receive general training through continuing professional development to assist in the task of dealing with particular issues such as intellectual disabilities or mental illnesses the fact remains that we are not professionals in these areas.

So in the end the question for any lawyer acting on behalf of a client is whether there is a particular issue which impacts upon the right of that person to deal with their legal matters as they instruct, and an intellectual disability or mental illness which may arise as a question in a lawyer's mind will impact upon whether they can properly act for the person, or act upon the instructions.

>> Meshel: So what do you do if you, your observation suggests to you that the person is not able to represent themselves in that situation?

>> Mr Delibaltas: It's important to consider when dealing with people who are coming before the courts that they are already pretty anxious ... and stressed because they’re dealing with a court matter.

For that reason when I deal with people coming before the duty lawyer to get advice, I usually introduce myself as a duty lawyer and that I can assist them, on...their appearance on that day, to try and reassure them, and then the first question I ask is simply, “Do you understand why you're here today?" or “Do you know why you're here today?" and that simple question can help you get some feedback about the capacity of that person to provide instructions, and in summary the interview process should focus on six important questions and that is: Does the person or the client understand the charge?; Do they understand that they are able to accept, or challenge, or reject the charge?; Do they understand the court process? -and that is an inquiry into, determining whether they are innocent or guilty; Is the client able to follow the proceedings and the roles of each of the participants in the court?; and: Does the client understand the effect of the prosecution evidence?; and: Is the client able to make answer to the charge? And if there's some doubt... about any of those questions then that's going to raise ... that's going to raise an issue in the mind of the lawyer, about progressing a professional assessment from a psychiatrist or a psychologist to assist in providing an expert opinion on the question of fitness.

>> Meshel: So you don't have training either. So the police don't have training, you don't have training to identify a person with a disability, this gets kicked along to you now, Susan.

So, how then, if Andy doesn't say at some stage, "By the way, uh... my parents are actually still my legal guardians at 27,so I'm not able to, I don't have any of the rights of an adult, but I'm going through the court system as an adult here..." when do you figure out, when do you realise? Can he get to court without his parents knowing?

>> Professor Susan Hayes: Oh certainly, yes  ... and he can get to jail without his parents knowing. Sometimes I see people in maximum security jails who’ve been there for two or three years and no-one has picked up the fact that they do have an intellectual disability. They just go through the system, and ...they get processed, so that's what happens.

>> Meshel: But hopefully you get called in at some stage to give your ... Finally a trained person can give a professional assessment on Andy.

>> Prof Hayes: That's right, and what I do is an IQ test, which many of you'd be familiar with, and also a test of adaptive behaviour, so the things that I mentioned before, like communication, daily living skills, interpersonal skills. So I do all that, and then I interview them about their fitness, which is just the things that Peter's just outlined... whether they understand what the Dickens is going on.

But there are enormous numbers of people who aren't being caught by any of those nets and in the local courts in New South Wales we did a study in 14 local courts; we found on average, ten percent of people appearing before the courts have an intellectual disability. The really interesting thing was the enormous variation between the courts. So we found that some courts in wealthy, affluent areas: (had as average) two percent. The courts in very, very deprived areas, and often rural and remote areas: 18 percent of people had an intellectual disability.

>> Meshel: Do you think that's because the intellectual disability is picked up earlier in the more affluent neighbourhoods

>> Prof Hayes: I think so and often parents who have the means can get special coaching and also perhaps their children will not engage in antisocial behaviour. Whereas in the less affluent areas first of all there might be a greater rate of intellectual disability owing to prenatal, antenatal factors, foetal alcohol syndrome, all those sorts of things which contribute to high rates, but also there’s the lack of family involvement and wherewithal to provide an intervention to prevent the offending behaviour.

>> Meshel: Now Kevin, you are the Anti-Discrimination Commissioner. So this is clearly a case of discrimination if a person with a disability, as I say, who has no legal rights as an adult in Australia and yet is tried as an adult and then finds themselves in prison is that a case for you?

>> Mr Kevin Cocks: In the commission within our limitations of our act, it's probably difficult but when we address the issue 'Is he being treated equally before the law?’ which is a human rights ...... under civil and political rights and more recently under the Convention on the Rights of Persons with Disability ...the answer is 'no'.

There is clearly many things that ...the structural discrimination that lies before a person with an intellectual disability that is deeply embedded in our society, in our culture and this structural discrimination clearly was evident from the early days of canonicalization. When a person with an intellectual disability would have come to the attention of authorities, they were locked in the hulls of unseaworthy ships, until we built jails or asylums.

So there's been a pathway of apartheid in our system, the way we treat people with intellectual disabilities, where they've been taken away from the mainstreams and they've learnt a lot of antisocial behaviours, because they've been congregated in institutional settings - from large asylums to modern day group homes that are currently funded and promoted within disability services today as a solution to supporting people. They experienced person to person violence. Nine out of ten women with intellectual disability will be either raped or have some unwanted sexual assault upon her and nearly seven out of ten men with intellectual disability will be raped or have some unwanted sexual assault. They’re firstly victims of crime and then the growing evidence that they then will be arrested and convicted of crime as Susan has highlighted is really quite evident and so we have a pathway of apartheid that is setting people with intellectual disabilities on a pathway to the criminal justice system because of the failure of government and society to address the structural and cultural barriers to people with disability.

>> Meshel: This is one of those subjects, isn't it, that a lot of us don't ...we're very, very lucky and a lot of us don't think about this on a daily basis. You all think about this. Judge Butler you are charged with a massive responsibility of judging people from all walks of life and now you’re the next stop I guess. I mean how often do you think someone comes before you who has a mental ... or who has an intellectual disability, and they get all way to you? How often do you think that happens ... undetected?

>> His Honour Judge Brendan Butler: Well, it's hard to tell and as we heard from the earlier speakers, it depends very much on the information that's provided to the court ...whether you're able to know that a person might have a difficulty in that regard. Part of the problem is that there's really no coordinated statewide support service available to people coming before the court who have intellectual disabilities. There are ... in Queensland the magistrates courts sits in 118 different locations. So it depends a bit where you are whether there might be a service around, and in Brisbane for example we have what’s called a special circumstances court that does focus on people with intellectual disabilities ...but ...it only applies to people indicating they’re prepared to plead guilty and it might not be fair to some people, who have a good ...defence to a criminal charge because of an intellectual disability, to plead guilty.

>> Meshel: But they have an incentive to plead guilty?

>> Judge Butler: Well ... there are incentives to plead guilty because very often the offences they come before the court on are quite minor and they're only likely to get a small fine. So the question is whether you want to go ...for them and their lawyers, is about ...whether they're going to go through a rather complex process to determine their defence to the charge, or whether they just accept the fine.

>> Meshel: Because the other thing is I'll come to you Dean Wells and just tell us ... Where's the state at with all of this? There's a lot of talk about, frankly sort of, lack of resources from the state perspective in helping to determine... you know, who should be assisted, and how we're going to ascertain ...I mean how many blokes have you got waiting out for you of a day that you have to get through before you can go home? How many cases do you go through a day?

>> Judge Butler: In some courts it could be 100 people.

>> Meshel: So you've got 100 blokes coming in front of you and you've got to try and figure out whom, if any of those people, should not actually be in front of you because they have an intellectual disability and should be somewhere else. Whose job is it to figure that out? Is there a coordinated system? Well apparently there's not ...Do you reckon there should be?

[ends] 
[continues in part 3] 

Last updated 25 November 2015