2011 Law Week hypothetical part 5

Transcript

[Law Week Hypothetical 2011 - You be the judge #5]
[Continues from part 4]

>> Colleen: … The process is flawed.

There is an ancient precedent: "To no one will we refuse or delay right or justice." It comes from clause 40 of the Magna Carta, 12:15.

Our daughter has been punished by the criminal justice system without a fair and proper hearing. Her intellectual disability prohibits her from defending herself. She lacks the capacity to understand the circumstances surrounding any charges and she is unable to articulate her instructions.

In October 2010, in a landmark decision, the Court of Appeal agreed that her convictions in the magistrates court were a miscarriage of justice, because she was unfit to plead at the time she pleaded guilty and was sentenced, and all 15 convictions were expunged. Our daughter continues to be required to sign a bail undertaking document which she has no understanding about. This requirement is setting her up to fail, again. The Bail Act 1980 at Section 11a allows for the release of a person with an impairment of mind, but it is not being exercised in our daughter's case. With all of the knowledge that the courts have about our daughter, why is it not automatically invoked?

Finally, there has to be political will for law reform. The government's response to the strong recommendation in the appeal judgment that there is a need for both administrative and legislative reform in Queensland, to ensure that our most vulnerable are protected from significant injustice is much muted. Our appeal identified a gap in the law ...a hiatus was how it was described in the judgment. But law reform alone will not be sufficient.

There needs to be a holistic response in the magistrates court to all of the issues. We need appropriate interventions, we need advocacy, we need support. We need smarter laws, not tougher. We need smarter court processes.

>> Meshel: [applauding] That was brilliant, well done. Well done Colleen. That was wonderful. I know you were so nervous about that, well done ... and John, what about your moral support? Brilliant. [laughing, joking] You were brilliant.

Alena Annabel, I come to you now.... That story is astounding ... in its depth, in the 50 court appearances guys. How many people, do you think, with intellectual disabilities are currently serving sentences in Queensland jails? People getting to jail, with intellectual disabilities ... not really understanding how they got there?

>> Ms Annabel: Well we can't tell you because we don't actually routinely screen for an intellectual disability in the correctional centres, and we haven't historically in Queensland. Currently we do have a trial in three south-east Queensland correctional centres where we are screening ... using Professor Hayes' HASI screening tool ...and then providing some differentiated services and some through-care services upon release, but at this stage the numbers ... of people with intellectual disability in custody, we can’t let you know what they are ...or, we don't have those numbers to identify.

>> Meshel: Feels like a section of the community that’s been left behind doesn't it? I mean here we are in 2011and there are still people incarcerated who don’t know why...genuinely don't know why. Amazing.

A little earlier we talked about what court-based support services are available to people with intellectual disabilities like Andy who've been charged with an offence. Many people with intellectual disabilities living in our communities rely upon support from family, friends, carers, government support services and community groups to live active lives.

Doctor Jeffrey Chan...my friend. What sorts of support services are available to people with intellectual disabilities?

>> Dr Chan: The Department of Communities (Disability Services)... provide a whole range of support services that includes accommodation, respite, community support and community access, for the period of the financial year 2009-2010 ...about 12,409 people with intellectual disability received services. Community support can range from therapy, behaviour support, early childhood intervention, counselling, resourcing information, advocacy, and local area coordination and case management.

Of interest to this hypothetical is the...I'd like to mention the Carter Reform Review,... and the review was commissioned by the government and elect to a six-year investment reform strategy called 'Positive Futures’ which the government has invested $228 million dollars in this very important reform, and the reform is in its fourth year,... basically some of the highlights are that we have a stronger Disability Services Act that's very human-rights focused, we have the Centre of Excellence of Behaviour Support that ...brings in the evidence to provide training, evidence-based of ... learning and development, where they've provided more than350 workshops to date. We’ve also employed 131 clinical professionals... 17 from overseas. We have a mental health outreach service ...and a forensic disability service, and last week the parliament passed the forensic disability legislation. So there's been a lot of activities and services being provided.

I also think it's important to actually take, in Andy's case, take a step back to highlight that what should have occurred with Andy, perhaps, we could do this better, is to actually have a a good clinical support model for Andy, like what's triggering his stealing, or the shoplifting, what support that we can provide to train staff, to support staff, to support Andy. I think that's something that's missing, so what should have occurred is a good, comprehensive assessment and ... develop a good support plan for Andy.

>> Meshel: But those support services you talked about, that's contingent upon people finding them, isn't it? There’s no way to go out in the community and find the people who need them and bring them back. So, maybe, is that maybe where the gap is again in nice neighbourhoods and lower socio-economic neighbourhoods, that we talked about before ...diagnosis earlier, parents having access to more support services as well, so ...the services are there, but the people have to come to them.

>> Dr Chan: The access to services ...the difficulty with access to services actually really vary. It varies from ... from the geography... it varies from perhaps, access to information and, and resources,... it can perhaps vary from region to region where there might be a lack of ... professional expertise, so we're hearing, for example, in some rural regions, for example, the lack of expertise to psychological services or psychiatric services, so that might be some of the issues.

The department has, for the past year again, provided about $38 million for those who are... you know who at the moment are kind of in a waitlist... and while they might be in a waitlist they are still being provided with some sort of service. But I think we need to reiterate that this is not simply an intellectual disability specific type service that's required. I think we should emphasise that the response people like Andy actually requires a whole of government approach,... have our departments work more closely with Justice, with the Police,... with the advocates and I think what's really required is a more... responsive, compassionate approach in dealing with this matter, as I say it's not, from my perspective, it requires an interdepartmental sort of...approach to this matter.

>> Meshel: Okay. Andy is one of the lucky ones and his charge is dismissed by the judge ...Oh, good on you Andy, I was so worried!

Which you don't think actually, Dan, that does make him a lucky one, is that right? You didn't want his charge thrown out before?

>> Mr Dan Toombs: No I don't think that's a great outcome.

>> Meshel: Okay, well ... he could easily find himself in front of the judge again, obviously, for stealing minor items, because he doesn't, still, understand how any of that happened. All he knows is he's back out on the street again.

... So let's talk about what needs to be done to prevent people with intellectual disabilities like Andy ending up in court and even going to jail. I mean I’m sure if there was an answer to that Colleen and John would be most pleased to hear about it. What can we do?

I'll just throw it open ...well Susan, what can we do? [pause]Psychologist, for those of you playing along at home.

>> Professor Susan Hayes: What you have to do is throw money at the beginning off the process, not at the end of the process. The end of the process is the court system, the prisons and so forth. The very convincing research worldwide that says very often offenders with intellectual disability can be identified because they’ve got challenging behaviour in preschool. Now what is being done between preschool and 16, 17 and 18 and then they get into the adult justice system?

To keep somebody in a high security prison costs about $80,000 a year. That’s an awful lot of community services. [clarifies cost is] Per person. But you don't see ... you see a headline saying 'Dangerous offender locked away for a long time' you don't see one that says 'We prevented this person becoming a dangerous offender' by giving them early intervention services consistently throughout their childhood and adolescence and then helping them in fact to avoid that offending behaviour.

>> Meshel: Geraldine, I think I know the answer to this question... How is the Sentencing Advisory Council tackling the issue? We know you're planning...

>> Professor Geraldine Mackenzie: Well I guess because of our role, which is to inform, engage and advise, we’re able to look at the issues in more depth and the issues concerning intellectual disability in the criminal justice system is one that we’ve identified for a research priority. It’s a matter of smarter court processes, not tougher and this is an opportunity to look at what that could look like and also if a vulnerable person is convicted of an offence, what is the appropriate sentence that should be handed down?

>> Meshel: Sorry, you've got to pass that mic now all the way back now, down to my friend Dan, Dan Toombs from Legal Aid ... What legislative changes would you like to see made to protect people with intellectual disabilities in the criminal justice system? That's a short question but a big one.

>> Mr Toombs: Sure, look I just don't think it’s enough to fix the legislation. At the heart of this issue is a lack of funding resources ... so that ... even in the perfect world, where you know you had... appropriate interventions, getting funding for a psychiatrist’s report or funding for a lawyer to run a hearing in the ... magistrates court,... more than likely won't be forthcoming. So it puts the lawyer in an untenable position where ... they're encouraged to enter the plea, when they don't want to.

The other thing that needs to be considered is that... in Andy's case the charges before the court aren't serious but some summary charges can be quite serious, and that, if they come before the court,... the court has to give, you know, due consideration to how can we protect the community from further charges against it. So one matter that I was involved in was where a young fellow... with an acquired brain injury was charged with dangerous driving. Now, we went to court on a psychologist’s report, and in some respects, thankfully, the report was a little bit flawed.... and the ...the magistrate found that this particular fellow was fit for trial. Now, while I say that thankfully the report was flawed was that there was this growing sense in this young fellow that there was going to be no interventions placed upon him and that he could continue to drive and that he would be given somewhat of green light to continue in his behaviour.

So ... you know, plugging the legislative deficiencies isn't enough. The court also has to give strong consideration to the protection of the community and ensure people like Andy, and others that perhaps will offend more seriously, don't impose a risk to it.

>> Meshel: Gosh ... [to Judge Butler] and that's your responsibility in the court. I mean you're protecting the community from perpetrators, the potential perpetrators from the court ...because they don't know what's going on ... I mean we all know you've got a massive responsibility but ...are you over it? [laughter] Do you get over it?

[Part 5 ends – continues in part 6]

Last updated 25 November 2015