2011 Law Week hypothetical part 4

Transcript

[Law Week Hypothetical 2011 - You be the judge #5]
[Continues from part 3]

>> Meshel: So what are the legal provisions in Queensland for people with ... disabilities, intellectual disabilities?

>> His Honour Judge Brendan Butler AM SC: Well you heard about some of it already... The first thing that needs to be said is that just because a person has an intellectual disability doesn’t mean that they're necessarily going to be exempt for responsibility for their criminal acts.

There are two bases where ... that might exempt them from responsibility. The first is what we heard about - that they're unfit to stand trial because of their disability. Secondly they might have a defence of unsoundness of mind, and ... the test's there, which is a legal test, is whether they have the capacity to understand what they're doing, the capacity ... or the capacity to control their actions, or probably what would apply here,... whether the person had the capacity to know they ought not take the magazine.

Now those are legal tests and the court must determine them on the basis of material before it... but it depends what charge is brought. If it's an indictable charge ... that is a charge that ordinarily could be dealt with ... by way of trial before a jury, then ... these matters can be referred to the Mental Health Court - a court that specially set up... headed by a Supreme Court judge, assisted by a psychiatrist who can determine whether or not the person has a defence or whether they're fit to stand trial. If it's not an indictable offence, it’s what we call a summary offence ...then, under our law it can’t be referred to the Mental Health Court and it’s dealt with in the magistrate's court and the magistrate has to determine those issues and of course a magistrate generally wouldn’t be able to determine those issues... without a psychiatric or psychological report, and um...psychiatrists and psychologists like everyone else are professionals and they have to get paid for what they do and a report like that would cost two to three thousand dollars. Normally that's paid for by Legal Aid, if legal aid is available. If not somebody would have to pay it and you're talking about stealing a magazine that might be worth ten dollars. So ... that's  ... the situation we get in.

>> Meshel: Yeah, we're back at pleading guilty is faster.

>> Judge Butler: Well, it ... at the end of the day people have to get justice and ...and ... and the law and the courts have to deliver that and it's not just ...

>> Meshel: Yeah but justice can take ages.

>> Judge Butler: Well that's right and that's the other problem.

>> Meshel: [directed at Colleen and John] I tell you I'm so excited, it’s not your go yet, don’t panic, but I'm really, I cannot wait to talk to you two Colleen and John, who have lived through the kind of round and round and round of this situation 'cause so far that's how its feeling to me, so we can go through this whole process again and again and again and again because Andy still doesn't get why it's happening, it feels to me.

Dan. Dan the man, Dan Toombs from Legal Aid. Getting the charges thrown out for Andy would be the ideal scenario ...Is that, what's the reality? What's the reality, you’re representing Andy, what happens now?

>> Mr Dan Toombs: Well look I'd say that that probably isn’t the ideal scenario ... The ideal scenario is for Andy to ...be met by a duty lawyer, who has got time to excavate these live issues,... is able to get a grant of legal aid to conduct the requisite psychiatrist reports and and that largely doesn't happen. So that's a significant issue, because it predisposes or encourages the duty lawyer, or any lawyer for that matter, to enter a plea because they've got no other alternative.... But no, it's not the ideal scenario for Andy to just have the charges thrown out. For Andy, what should happen is the court is used as a... as a place to plug in some appropriate interventions so ...

>> Meshel: Does it ever go on Andy's file somewhere in the universe where he’s done at the newsagency, you rock up to get him, you get his name, you punch it into the computer in the car and it goes 'whoop - that's Andy’ and you know that he's still, you know his parents are his legal guardians, and we can bypass this whole thing again and again and again, does …does that happen anywhere?

>> Mr Toombs: No it doesn't happen ... and uh, and

>> Meshel: Try that! Try that, just try it ... sorry go on.

>> Mr Toombs: Look you know, I think the other issue is ...

>> Meshel: He's not into it is he? He's not writing it down. Yep.

>> Mr Toombs: Ironically, we've found from our experience that ...when a person like Andy enters the criminal justice system you've got so much more leverage to put upon service providers, to step up to the mark, who, you know, historically in most cases don’t ... so you know if you are able to go back to the service provider and say look, this is where we're at,... you need to sort of ... look at these issues that are prompting Andy's offending. That’s the ideal way to go.

>> Meshel: Yeah absolutely.

Geraldine Mackenzie, the Chair of the Queensland Sentencing Advisory Council. Can you explain the role of the council and what approach the council takes with regards to people with intellectual disabilities who have committed crimes? So this is the one for you to be saying to the Honourable: "Listen, are we going to go round and round and round with this Andy guy and people like him?” What do you advise, what do you reckon?

>> Professor Geraldine Mackenzie: Well the Council’s an independent body, we were formed last December by the state government and it's an opportunity to look at issues in more depth and we have really a policy, research type of mandate. The council consists of 12 members with representatives from different community groups representing vulnerable people ... for example victims, Indigenous people, young women, and ... also children, and plus we have people sitting on the ... board, who have positions such as the Public Defender, the Police Commissioner, the Corrective Services Commissioner, Anti-Discrimination Commissioner, which is Kevin Cocks, who’s here today also representing vulnerable people. So we have the opportunity ... to look at these issues in a lot more depth away from particular cases which might be quite controversial. We’re able to look at the big picture and to recommend reform.

We have three key roles on the council and that is to inform by way of research and providing information to the community; also to engage with the community, so communication, informed debate on these types of issues; and also to advise the government and that might be in relation to law reform. The council recognises that vulnerable people are a particular group that warrants particular attention and we'll be looking at that in the very near future with some research. In relation to our role with the court, even though we wouldn't advise directly, it is our role to look at these issues in more depth, to say to the government there needs to be some change in relation to sentencing vulnerable people and hopefully that’s the sort of recommendation we'll be able to make after we've done some more research into the issues.

>> Meshel: Wow, so we've got future research, and we’ve got an Act from 1915. That's where we're at.

>> The Hon Dean Wells MP: That was 1914.

>> Meshel: 14, beg your pardon sir.

>> Mr Wells MP: It was a Commonwealth Act and it was amended as recently as the last couple of years.

>> Meshel: Oh I'm sure it's a ripper darl, I'm not questioning the Act, I'm sure it's terrific.

Now finally we get to you two, John and Colleen. Now this is interesting, no offence to anyone else but like I'm very, I'm new to this whole scenario but I'm standing here thinking God how many times is Andy going to be sprung at the newsagent, in your car, in your office, in your court ...just around and around and around. This is how many times it can happen isn't it Colleen and John?... I don't know how much to say, I want, you tell us your story because I don't want to start your story for you.

>> Colleen: Thank you. Our daughter was first apprehended for shoplifting on the third of September, 2001.She gave a false address and no phone contact. A notice to appear was forwarded to her and it was subsequently destroyed and because no one else knew about the matter, the court dealt with it in her absence. She was fined a hundred dollars.

That was the beginning of another 50-plus visits to various courts -magistrates, Mental Health Court, the Court of Appeal -the hearings, mentions, adjournments and judgments. We’ve supported her at almost every one of these. While extensive, her criminal history is extremely petty. She has a penchant for cards and calendars and more recently she has anxiety about insufficient food in her cupboards. So groceries are included amongst the items stolen. We certainly don't condone our daughter's transgressions.

At our first appearance before the magistrate, all three of us were very nervous and anxious. We were novices, we were uninformed, it was a daunting experience. In November 2001, the magistrate humiliated John and me by requiring us to stand in the gallery and in a threatening manner he told us to ensure that our daughter did not offend again. We live in Brisbane. She lives in Toowoomba.

Our daughter has a significant intellectual disability which is organic in nature. It’s life long. It's permanent. It's a fixed deficit. Her IQ places her in the bottom one percent of the population. Her intellectual disability is compounded by very complex, challenging behaviours, including anxiety, lack of impulse control, obsessive-compulsive behaviours and further complicated by diagnosed borderline personality disorder.

Since 2001 we are the appointed guardians by QCAT which reinforces that she has a decision-making incapacity. She was always introduced by the duty lawyer to the magistrate with the remark: "My client is ...she has an intellectual disability, her parents and guardians are present in the court today.” Transcripts from these hearings indicate that the court was acutely aware of her intellectual disability, yet her disability was never given due consideration.

She was encouraged to enter pleas of guilty when she was unfit to do so. Between 2001 and 2005 she was pleaded out on seven occasions because we, like many others, were of the view 'you do the crime, you do the time’. Her punishments have included fines, community service, restitution, probation. She’s twice spent four hours in the watch house, when the police and her service provider contrived, believing that it would teach her a lesson. Twice the magistrate has threatened her with a custodial sentence should she reappear before him again.

None of these consequences are conducive to people with disabilities. No one should be punished because they have a disability. No one should go to jail because they have a disability and nor should their illness be criminalised. It was never suggested that her hearings in the magistrate court should be adjourned so that her disability could be further investigated.

A chance meeting in the magistrate's court in April 2005with a barrister from TASC, that's The Advocacy and Support Centre, was a defining moment which altered our path in the criminal justice system. That barrister was successful in his referral of her matters to the Mental Health Court. Since January 2006 there've been three hearings and we await another date later this year. The outcome each time has been permanently unfit for trial as a consequence of her intellectual disability. Unfortunately the Mental Health Court only sits for 12 weeks each year. So there is quite a delay in cases being heard.

There must be a more cost-effective process in dealing with matters like our daughter’s. There is a real need to deal with a case expeditiously so that there is a relationship and some relevance between the offending behaviour and the court appearance. A time lapse of 12 to 18 months is inappropriate. A special circumstances court like that which sits in Brisbane may facilitate such expediency but we understand that you have to be prepared to plead guilty. Prior to the Mental Health Court referral our daughter's rights were abrogated by a criminal justice system that works at a velocity such that the duty lawyer had to work within the system with constraints on both time and resources and could not properly consider her disability and the magistrate was equally unresourced. The process is flawed.

[Part 4 ends – continues in part 5] 

Last updated 25 November 2015