This section discusses police processes in relation to people with a disability. Misconceptions about people with a disability are common and may reflect negatively on potential witnesses, complainants or defendants who have a disability. With additional support (e.g. the independent third person; see below) people with an intellectual disability or psychiatric illness can be as reliable in giving Material presented to a court to prove or disprove a fact. It can include what witnesses say as well as documents and other objects. as anyone else.
If a person with a disability is not treated equally and fairly, they should consider making a complaint against the police (see Chapter 12.6: Complaints against Victoria Police). It is strongly recommended that you seek legal advice before taking any action against the police (see Chapter 2.4: Legal services that can help).
Arresting people with a mental illness
For helpful information about the powers of police officers to apprehend people with a mental illness, see Chapter 8.4: Mental illness.
Interviewing people with a disability
People with a disability must be treated fairly when being interviewed by police. For example, police must ensure that a person with a disability understands the caution given to them. Also, access to medical care must be given to the person being questioned if required. If these or other rights are not adhered to by police, such behaviour may be a breach of the Charter.
For a general discussion about what rights you have during police interviews, see Chapter 3.5: To seize a person suspected of breaking the law and hold them in custody. Police have powers to arrest and charge suspected offenders and bring them before a court., search, The asking of questions. In criminal cases, the questioning of suspects by police. In civil proceedings, a pre-hearing process in which one party asks the other party a series of written questions, called interrogatories, which must be answered on oath. and your rights.
Independent third person
A suspect, victim or A person who can provide direct information based on their own knowledge about a relevant fact, and appears in court to give evidence about it. In some cases a witness may provide an affidavit or deposition setting out their evidence if they are not able to attend court. with a cognitive impairment (including an intellectual disability, acquired brain injury, dementia, autism, Asperger’s syndrome, or mental illness) is entitled to have an independent third person (A person, other than a friend or family member, who provides support to a person with an intellectual disability, brain injury or mental illness when they are being questioned by the police.) present during a police interview. ITPs are volunteers who support people with a cognitive disability or mental illness during police interviews and also assist them in communicating with police officers and giving formal statements. The Office of the Public Advocate trains and supports these volunteers. Police officers may also request an ITP to be present in an interview (the police have access to a list of ITPs at all times). Although it is preferable to have an independent person, it is permissible for a family member or a friend to A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation. as the ITP provided they are 18 years or over.
An ITP assists the person to understand their rights and the questions asked by police. They clarify misunderstandings that may arise due to the person’s disability. An ITP must be independent of all parties and objective in all their actions.
An ITP is not a legal advocate. An ITP does not make decisions for the person about how they should deal with the legal issues they are facing and cannot give any legal advice. Conversations with an ITP are not covered by The principle that private information told to a person must not be revealed to others. Some professionals must keep information confidential, for example doctor–patient and lawyer–client relationships. and can be used against the person in An independent body that hears legal claims brought by parties and decides between them. Serious cases are heard by a judge and jury, or just a judge. Less-serious cases are heard by a magistrate..
If an ITP was not made available to a person with a disability when they were interviewed, the court should be informed. An Claimed but not proved. For example, the police can allege in court that a car was stolen, but they then have to prove it with evidence. If you say a person did something illegal you are making an allegation. Unless you can back it up, you will not be able to win a court case about it. A person who has committed a crime. may submit to the court that because they were not given an ITP when they were questioned by police, they were unable to understand the interview process and therefore unable to effectively answer the questions appropriately. In this occurrence, the evidence from the police interview may have been improperly obtained, which constitutes a breach of the person’s rights under the United Nations International A formal, written agreement that creates a legal obligation, in a deed or on a certificate of title. For example, a property developer might add a covenant to every block of land in a subdivision to stop anyone building a house there unless it is made of brick. on Civil and Political Rights (1966) (see s 138 Evidence Act 2008 (Vic)) and the relevant Charter rights.
Where an interview occurred without the presence of an ITP, a magistrate can decide whether or not to admit the information obtained from the interview.
(For more information about the ITP program and the Office of the Public Advocate, see Chapter 8.2: Disability: Asserting your rights.)
Access to a lawyer
Under section 25 of the Charter, suspects charged with an A serious crime that is generally heard before a judge and jury in the County Court or the Supreme Court a criminal case. Examples of indictable offences include assault and armed robbery. have the right to a legal advocate. Suspects charged with a A minor criminal offence, for example being drunk and disorderly, usually heard in the Magistrates’ Court. Compare indictable offence. do not have this protection. It is important that an ITP ensures that a person with a disability who is being interviewed understands what is taking place, understands the caution (given for all offences) and in the circumstance of an indictable A criminal act prohibited by state or commonwealth criminal law. An offence is either a summary offence (minor) or an indictable offence (serious)., understands their right to speak to or consult a legal advocate.
An alleged offender and an ITP must always be advised of the right to communicate with a lawyer, separate from the standard reading of rights. This is to ensure that the alleged offender’s entitlement to consult with a lawyer/legal advocate is fully understood.
Legal advice can be sought from Victoria Legal Aid or a community legal centre (see Chapter 2.4: Legal services that can help).