2011 Law Week hypothetical part 3

Transcript

[Law Week Hypothetical 2011 - You be the judge #5]
[Continues from part 2]

>> The Honourable Dean Wells, MP: Are you asking me the government's position first, or my position?

>> Meshel: Yep, the government's position.

>> Mr Wells, MP: Because I'm happy to give you both.

>> Meshel: Unfortunately only the government can make it happen though maybe, you know? Like what's the government ...

>> Mr Wells, MP: But Members of Parliament can advocate for certain line of policy formulation.

>> Meshel: Where are we at now?

>> Mr Wells, MP: At the moment, the government has taken on board some recommendations that were made in the Court of Appeal. President of the ... Court of Appeal, President McMurdo, dealing with the case called the Queen against AAM -a case which is almost exactly the same facts as the one that you've put to this hypothetical Meshel -the ... President of the Court of Appeal said that there was scope for law reform.

There's a section of the ... Criminal Code, Section 613 of the Criminal Code which says that a court which has reason to believe or has an allegation before it to the effect that somebody suffers from an intellectual disability can conduct an investigation of that. But there's no such equivalent provision in the Justices Act, which is the act which governs the magistrate’s court. Now the magistrate’s court is a different sort of court from the superior courts. Magistrates court ... if you go there any morning you will see hundreds of people milling around. A large number of people whose issues need to be processed. It’s very, very big numbers of people that are being dealt with ... completely different, but it's governed by a different set of legislation and so the Court of Appeal, in this case that I referred to, the Queen against AAM, has recommended that there should be some reform.

Now the government is not ruling out ... not ruling out the possibility of change to the legislation. At the moment at departmental level, consideration is being given to some alternative options. There is the 1914 Federal Crimes Act which has a set of provisions in there that cater for this kind of thing at the lower level in the magistrates court. There is also in the 1990 New South Wales act, the Mental Health Forensic Provisions Act there’s a set of alternative provisions. So departmental officers at the moment are looking at the possibility of recommending such an option ...

>> Meshel: I'd hate to think that we're relying on the1914 legislation when we've talked about the fact that in 1914 people were sent to lunatic asylums as they were officially known ...You know it would be nice to think that we’ve had some kind of upgrade of services and understanding of the needs of intellectually impaired people since 1914.

>> Mr Wells, MP: As amended from time to time.

>> Meshel: Okay ... thank God.

>> Mr Wells, MP: The 1914 act was when it was first passed.

>> Meshel: Yep, okay. Thank you, I understood parts of that [laughs].It's, I understand that you guys talk about this stuff everyday and amendments and, and, you know ...it's hard sometimes for us to understand why it's so hard and why there isn't a safety net ...a really firm safety net.

>> Mr Wells, MP: Meshel, I've seen the problem of mental illness and ... intellectual disability from the point of view of the Bar table, from the point of view of a local member's office and from the point of view of the benches in Parliament House and from none of those points of view is it an easy problem to solve. There's vast numbers of people who come into collision with the law by virtue of the fact that they don’t actually understand what they're doing. Sometimes, their conditions are invisible. Some intellectual disabilities are completely invisible ...and ... they can get through whatever sifting might be done even by the most skilled psychologists. They cannot at a glance tell the difference between somebody's whose got an intellectual disability and a person who hasn't.

>> Meshel: No but the other thing is I can't see anyone springing for a hundred blokes outside the door to get a psychologist’s analysis of their disposition. That’s cost right?

>> Mr Wells, MP: One of the things that I'll be suggesting to my colleagues in the light of the ... in the light of the fact that the Court of Appeal has said what the Court of Appeal has said, and indeed in the light of the fact that you've put on this hypothetical. One of things that I’ll be discussing with my colleagues is that there may be some sort of administrative solution to at least part of this problem.... If you ask the question in the right way, then it might be possible to elicit useful information. Like for example if you were to ask on a form at some stage ‘Are you aware of any reason why you may be unfit to plead?'... That I think would be a rather useful question to ask, but you have to ask it the right way and at the right time.

>> Meshel: Forms. [giggles]

Okay, uh ...It is Andy's turn to appear before the judge in court. Even though Andy has admitted to stealing the magazine, the duty lawyer, that's like Pete for example, doesn’t think Andy has the capacity to be reasonable for his actions ...or responsible, sorry, for his actions. So the duty lawyer has picked it up. The duty lawyer has said I don't know Andy is actually responsible for his actions. The duty lawyer has two options. One, let Andy plead guilty as we discussed because sometimes it's just easier. Or, try to get the charges dismissed due to Andy's intellectual impairment.

Joe Briggs my old friend, hello. Can you talk to us please about ...what happens, or the difference between the two options? You've got two options - plead guilty and just get it out of your life and pay the fine, or go through the process of ...getting it dismissed due to Andy's intellectual impairment.

>> Mr Joseph Briggs: Ultimately, in fact fundamentally, the first thing the duty lawyer has to do is to determine whether Andy can meaningfully participate in the legal process, because he has a right to do so, like all of us do, and ... if he has the capacity to plead, as we put it as lawyers, if he has the capacity to meaningfully participate in the process, you have to observe his right to make choices about how he wishes to participate in the process. So that is the essential thing the duty lawyer has to do.

The duty lawyer's, perhaps ... tasks in future might be to determine his level of responsibility for the offence, but first of all the duty lawyer has to make that fundamental assessment very carefully, and very conservatively, which is more than merely trying to ascertain from an untrained perspective his level of impairment ...It's an issue which ... that is, the issue of his ability to participate in the proceedings, is an issue which is rather more complicated. It depends upon, among other things, the level of his impairment, the level of the complexity of the charge, the level of the complexity of the evidence, whether the legal process can be adjusted to accommodate to some extent... his impairment, and ... finally, the fact that he's legally represented. So all of those things can ...... are addressed in the determination of whether or not Andy can meaningfully participate.

If the duty lawyer has a doubt about whether Andy can meaningfully participate in the legal process on his charge, the duty lawyer is ethically bound not... to allow him to simply be placed before the court as, it were, an ordinary person. So the duty lawyer should advise Andy of the duty lawyer's concerns and then the duty lawyer should inform the court of those concerns.

The difficulty arises, sometimes, when Andy may, despite the duty lawyer's assessment that Andy is not... capable of properly participating in the proceedings, Andy insists upon finalising the matter that day. So you have a conflict between the duty lawyer’s perspective and Andy's perspective. It's a very difficult position for a lawyer to be in at any stage and particularly for a duty lawyer who is faced with this, as we've heard earlier, momentum of up to a hundred people per day approaching the court for a resolution in one way or the other of their matter. So you have to resist that momentum and you have to resist Andy’s, perhaps ...judgment, that he wants to deal with the matter that day, if you decide that you have a doubt about his capacity.

If you do,... and he insists on going ahead and pleading, you have to say "Andy, I'm very sorry but I can't ... pursuant to my ethical responsibilities continue to represent you at this point. It would be putting you and I in a conflict.” So you have to very respectfully explain that to him. Hopefully like in this case Andy’s parents will be there and they can assist because the parents, relatives and friends of people in Andy's position are very helpful, if you can ... listen to them. You will have to then, though, after indicating to Andy you're ethically bound not to represent him and there's that conflict, inform the prosecutor and the court in very clear terms, in unequivocal terms, of the basis upon which you have decided carefully and conservatively that he doesn’t have capacity to plead. That is, to participate in the proceedings, and provided that that is done and you put the court and the prosecutor on notice the court is again legally bound to investigate the matter of his fitness. So it becomes a very difficult exercise ...but it's a duty - the duty lawyer has a duty to stand up and face those difficulties and resolve them like the courts do. It's an unenviable task, but duty lawyers do it and sometimes, unsuccessfully but most of the time, successfully.

There is another position that you should note, ethically, that's a great conundrum. Andy may be fit to plead guilty. He may have a manifest capacity to participate in the legal process ... but the duty lawyer may perceive that Andy may have a defence to the charge. It need not be a mental health defence. It could be a defence of some other kind. If the duty lawyer has carefully and conservatively assessed over time that he believes Andy is fit to proceed in the process of the criminal law like everybody else has that fundamental right to, the duty lawyer is obliged, if Andy instructs him, to enter a plea, to act on those instructions, that is a legal obligation. If the duty lawyer didn't, Andy would be denied a fundamental right that everybody in this room I hope is availed of, and that is to proceed through the criminal justice process as they choose. Not as somebody else chooses but as they choose. So to deny him that right, if he is fit -and that is the fundamental determinate -if he is fit to participate meaningfully in the process, to deny him that right would be to entirely disempower that person, and you could do it with the best of intentions but you would disempower him, if he is fit, and that would be in my respectful view discriminatory on the basis of his impairment.

So there is this other side to this issue. We have to make very, very sure that people who have a specific level of incapacity are protected from themselves and from the process, but many people who come before the courts have impairments of one form or of the other, but they still have the fundamental right to dispose of the matter as they choose if they are fit. I keep repeating that but that's the fundamental thing the duty lawyer's got to do. So we have to be aware of those nuances in this area and respectful of the ... the need to observe... those fundamental rights and those disability rights and the intersection of those two rights which can be very complex in any given case. Time is required to do this and ... that is something I think is a little bit of a problem now that we have many important matters being determined before the magistrate. We have to make sure that the momentum of the court, which no one can do a great deal about, is slowed to the extent that these matters won’t be ... improperly resolved and that can happen very easily. So we all have to work together to ensure that... happens ...

>> Meshel: Right. You've made me gladder than I've ever been that I'm not Judge Butler. Wow. So, because you're a man of, you know, you’ve got a very strict set of guidelines about what is the law in Queensland and that's all you are about. So what are the legal provisions in Queensland for people with ... with disabilities?

[ends] 
[continues in part 4]

Last updated 25 November 2015