The Law Handbook 2024

803 NOTE The law in this chapter is current as at 1 September 2023. Introduction Overview The criminal justice system is confusing for many people who are unfamiliar with criminal law and can be especially so for individuals with disability. In order to help people understand this complicated subject of law, especially those who have an intellectual disability or impairment, a range of support services have been created. These extra services ensure that people with disability receive fair access to the law. Taking instructions from clients with disabilities Most clients are able to make informed decisions on their own and are generally in the best position to decide what is appropriate for them and in their own best interests. However, some clients, particularly those who have a cognitive impairment or other disability, may benefit from further support when giving their instructions. Ideas and advice about how lawyers can assist clients to give accurate instructions are provided in ‘Taking instructions from clients who have cognitive impairment’ in Chapter 8.1: Understanding disability and the law. See also ‘Fitness to stand trial and the defence of mental impairment’, below, for what to do when a client is unable to instruct in relation to a criminal charge. Criminal charges A suspect with a psychiatric or intellectual disability is entitled to have an independent third person present while being interviewed by police. This entitlement applies throughout the criminal justice process: from the initial police interview through to sentencing. Where a correlation can be drawn between the action for which the person is charged and the person’s disability, it may be to their benefit to raise the defence of ‘mental impairment’. ‘Mental impairment’ is defined in the Crimes Act 1958 (Vic) (‘ Crimes Act (Vic) ’) as including mental illness, intellectual disability, dementia or brain injury. Mental impairment is a complete defence in the Magistrates’ Court and so should always be considered if it is relevant (see ‘Fitness to stand trial and the defence of mental impairment’, below). However, there are significant potential consequences to raising this defence in the higher courts (see ‘Procedures’, below). In the circumstances where a person with disability has been found to have committed a criminal offence, the court has additional options available to it when deciding on an appropriate order (see ‘Criminal Justice Diversion Program’, ‘Assessment and Referral Court’ and ‘Sentencing’, below). Charter of Human Rights and Responsibilities Act Under the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘ Human Rights Charter ’), public authorities (e.g. Victoria Police) are required to consider and act consistently with human rights. Victorian courts are required to interpret and apply legislation in accordance with the rights established in the Human Rights Charter. A person with disability who becomes involved in a criminal matter has Human Rights Charter rights. The rights are: • Section 8: the right to equality before the law; • Section 21: the right to liberty and security of the person; • Section 22: the right to humane treatment when deprived of liberty; Disability and criminal justice 8.3 Contributor: Liam McAuliffe, Barrister