Witnesses

7.156   People with disability face a range of barriers that may limit their ability to participate as witnesses. In relation to court processes, the barriers include rules on the competency of witnesses, and difficulties in accessing the necessary support and assistance in giving evidence. Aspects of these issues are discussed below.

7.157   More generally, the Judicial Commission of NSW has observed:

People with intellectual disabilities are vulnerable to prejudicial assessments of their competence, reliability and credibility because judicial officers and juries may have preconceived views regarding a person with an intellectual disability. For example, they may fail to attach adequate weight to the evidence provided because they doubt that the person with intellectual disability fully understands their obligation to tell the truth. In addition, people with an intellectual disability are vulnerable to having their evidence discredited in court because of behavioural and communication issues associated with their disability.^[188]

7.158   In 2012, Disability Rights Now reported to the United Nations that, in Australia, the ‘capacity of people with cognitive impairments to participate as witnesses in court proceedings is not supported and this has led to serious assault, sexual assault and abuse crimes going unprosecuted’.^[189]

7.159   In particular, it was said that people with cognitive disability face barriers to establishing credibility when interacting with the justice system because of the assumptions ‘constantly made by police and court officers, such as prosecutors, judges and magistrates’.^[190] In this Inquiry, the Anti-Discrimination Commissioner (Tasmania) submitted:

The perception that a person with disability lacks credibility as a witness to or victim of crime often leads to the decision not to prosecute alleged perpetrators. This heightens the vulnerability of people with disability to further harm because the perpetrator is aware that charges are less likely to be brought or prosecuted than if the victim were a person without disability.^[191]

7.160   Similarly, NACLC and PWDA reported that, in ‘the experience of our members and members’ clients, allegations made by people with disability are not always investigated, or criminal charges pursued, in part due to perceptions of people with disability not being competent to give evidence as a witness to criminal proceedings, or not being considered to be a credible witness’.^[192]

Competence

7.161   At common law, as a general rule, all witnesses who are able to comply with testimonial formalities—such as the giving of oaths—are competent to give evidence. There is no other common law test of physical or psychological competence, but a judge has discretion, in exceptional cases, to refuse to permit a witness to testify where the evidence is likely to be unreliable. Otherwise, matters of competence are relevant only to the witness’s credibility and the weight that may be placed on the evidence given.^[193]

7.162   The AHRC has observed that people with disabilities frequently experience prejudicial assessments of their competency to give evidence as a witness to criminal proceedings.^[194] This is despite research suggesting that, ‘contrary to public perception, most people with intellectual disabilities are no different from the general population in their ability to give reliable evidence’ (as long as communication techniques are used that are appropriate for the particular person).^[195]

7.163   In Commonwealth law, the Evidence Act 1995 (Cth) deals with the competence of witnesses. Similar or identical provisions apply in the other jurisdictions that have adopted the Uniform Evidence Acts.^[196] Section 13 of the Evidence Act provides:

(1)  A person is not competent to give evidence about a fact if, for any reason (including a mental, intellectual or physical disability):

      (a)        the person does not have the capacity to understand a question about the fact; or

      (b)        the person does not have the capacity to give an answer that can be understood to a question about the fact;

      and that incapacity cannot be overcome.

Note:          See sections 30 and 31 for examples of assistance that may be provided to enable witnesses to overcome disabilities.

7.164   Section 13(1) provides a test of general competence. Section 13(3) provides a test of competence to give sworn evidence. A person who is competent to give evidence about a fact is not competent to give sworn evidence about the fact, if the person does not have the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence.^[197] The test for competence to give sworn evidence amounts to the capacity to understand the obligation to give truthful evidence.^[198]

7.165   Under s 13(4), the person may give unsworn evidence after being informed by the court about the importance of telling the truth (and certain other matters set out in the Act).^[199] The probative value of an unsworn statement will be assessed and the court may refuse to admit evidence that may be unfairly prejudicial to a party, misleading or confusing, or result in undue delays.^[200]

7.166   The wording of s 13(1) implies that a person’s lack of capacity may be overcome by forms of support or assistance being provided to them in giving evidence. The Explanatory Memorandum to the Evidence Amendment Bill 2008 (Cth) states that, when ‘considering whether incapacity can be overcome, the court should consider alternative communication methods or support depending on the needs of the individual witness’, and the note makes a cross-reference to ss 30 and 31 of the Act (discussed below).

7.167   In the Discussion Paper, the ALRC proposed that the Evidence Act—consistently with the National Decision-Making Principles—should expressly provide that competence must be determined in the context of the available support.^[201]

7.168   This proposal received some support from stakeholders.^[202] Others suggested that the proposal did not go far enough in reflecting the National Decision-Making Principles. Advocacy for Inclusion, for example, considered that in assessing competence,

scrutiny should be upon whether the person is being adequately supported to understand the question, including whether the question was delivered in formats most appropriate to the person’s understanding, rather than upon determining the person’s capacity to understand.^[203]

7.169   In contrast, the Attorney-General’s Department submitted that, read as a whole, general competency must already be determined in the context of the available support or assistance. In the Department’s view, s 13 of the Evidence Act, as currently drafted, is ‘sufficiently broad’ to address the ALRC’s concerns.^[204]

7.170   In the ALRC’s view, the test of general competence and competence to give sworn evidence under the Evidence Act should more explicitly incorporate the concept of support. This would be consistent with the ALRC’s recommendations in other access to justice contexts and with the National Decision-Making Principles.

7.171   However, without some obligation being placed on courts to provide support, and the resources to enable this, reform may have little practical effect. Even at present, it is not entirely clear whether the people with disability are being determined to be not competent to give evidence, or sworn evidence, because of legal rules of evidence or because ‘administrative systems are unable to deliver, by reason of lack of knowledge, poor resources or attitudinal barriers, services to people with disabilities’.^[205]

Assistance in giving evidence

7.172   Stakeholders expressed concerns about the extent to which existing laws and legal frameworks facilitate support for witnesses. The Office of the Public Advocate (Qld) submitted that the Australian and Queensland governments should consider implementing new practices to facilitate the giving of evidence by people with disability, ‘by allowing questions to be explained and assistance to be given in communicating the answers’.^[206] The Office of the Public Advocate (Vic) considered that greater ‘witness support’ should be provided to assist people with cognitive impairments and mental illness to navigate the justice system.^[207]

7.173   Sections 30 and 31 of the Evidence Act provide examples of the assistance that may currently be provided ‘to enable witnesses to overcome disabilities’.^[208] Section 30 provides that a witness may give evidence about a fact through an interpreter and s 31 relates to ‘deaf and mute witnesses’. Section 31 states that a witness who cannot hear adequately may be questioned in ‘any appropriate way’; and that a witness who cannot speak adequately may give evidence by ‘any appropriate means’ and the court may give directions concerning this.

7.174   Deaf Australia expressed concerns about the dated language^[209] and drafting of s 31 and observed that the phrase ‘may be questioned in any appropriate way’ is open to interpretation and does not specify that the person’s communication needs must be taken into consideration. It also suggested that use of the term ‘communication support’ should be considered, so as to include modes of support such as live-captioning and hearing loops.^[210]

7.175   The Anti-Discrimination Commissioner (Tas) stated that the Evidence Act 2001 (Tas) does not make adequate ‘provision for regulating or adjusting court processes to accommodate people with disability’. For example, ‘communication by way of gestures is not viewed as a witness statement, despite this being the only way some people can communicate’. The Commissioner observed that the existing provisions, including ss 30–31, ‘highlight that it is not easy for people with disability to have the process modified to increase their participation’.^[211]

7.176   The ALRC considers that there is no reason to limit the application of provisions such as ss 30–31 to particular categories of witnesses needing support. Arguably, there should be express provision for any witness who needs support to give evidence in any appropriate way that enables them to understand questions and communicate answers. Courts should be empowered to give directions with regard to this.

7.177   More broadly, witnesses who need support in order to give evidence should be entitled to the assistance of a supporter. At the Commonwealth level, the Crimes Act does provide an extensive range of provisions protecting ‘vulnerable persons’ in their interactions with the justice system.^[212] These include provisions allowing vulnerable persons to choose someone to accompany them while giving evidence in a proceeding.^[213] In relation to adults, the right applies only to ‘vulnerable adult complainants’^[214] and ‘special witnesses’. A special witness includes a person who is ‘unlikely to be able to satisfactorily give evidence in the ordinary manner’, including ‘because of a disability’.^[215]

7.178   Section 15YO of the Crimes Act states only that the person chosen ‘may accompany the person’ and must not prompt the person or otherwise influence the person’s answers; or disrupt the questioning of the person. Any words spoken by the accompanying person must be able to be heard by the judge and jury (if any) in the proceeding. It is unclear how much the person can support or assist the witness, beyond simply moral or emotional support.

7.179   Some state and territory criminal procedure legislation makes broader provision for supporting witnesses. For example, in New South Wales, under the Criminal Procedure Act 1986 (NSW), vulnerable persons have a right to the presence of another person while giving evidence. A vulnerable person for the purposes of these provisions means ‘a child or a cognitively impaired person’.^[216]

7.180   The Criminal Procedure Act states that, in criminal and certain other proceedings, a vulnerable person ‘is entitled to choose a person whom the vulnerable person would like to have present near him or her when giving evidence’.^[217] The supporter ‘may be with the vulnerable person as an interpreter, for the purpose of assisting the vulnerable person with any difficulty in giving evidence associated with an impairment or a disability, or for the purpose of providing the vulnerable person with other support’.^[218]

7.181   The ALRC recommends that the Crimes Act be amended to include more comprehensive provisions giving witnesses who need support the right to have a support person present while giving evidence. It should be made clear that such a person may act as a communication assistant, assisting the person with any difficulty in giving evidence associated with a disability. Again, courts should be empowered to give directions with regard to the provision of support.

7.182   Proposals to provide more support for witnesses with disability met with approval.^[219] The Illawarra Forum, for example, submitted that such changes would allow people with disability to fully participate in giving evidence ‘in a manner that best suits the individual’, allow a support person to assist and ‘acknowledge the ability of a person with disability in being able to provide accurate and valuable evidence’.^[220]

7.183   There may be concerns about the effect of supporters on the fairness of proceedings—including perceptions that evidence is essentially being communicated to the court by the support person, rather than the witness, and about the opportunities to influence evidence. However, as with other rules of procedure and evidence, the permissible role of a supporter in the giving of evidence should be subject to judicial discretion and the overriding duty of the judicial officer to ensure that court proceedings are fair.

7.184   The ALRC acknowledges that the recommendation does nothing to ensure that support is actually available. In South Australia, the Attorney-General has proposed that the Evidence Act 1929 (SA) be amended to ‘give people with complex communication needs a general entitlement to have a Communication Assistant present for any contact with the criminal justice system’; and to ‘increase access to appropriate support persons for vulnerable witnesses’. For these purposes, a service, available throughout the criminal justice process, is proposed to be established in the non-government sector.^[221]

7.185   In its 2013 report on the justice system and people with intellectual disability, the Parliament of Victoria’s Law Reform Committee^[222] highlighted the witness intermediary scheme in the United Kingdom, established under the Youth Justice and Criminal Evidence Act 1999 (UK). Under this scheme, the function of an intermediary is to assist intellectually disabled and other vulnerable witnesses by effectively acting as a ‘go-between’ to facilitate communication between the witness and the court. An Intermediary Registration Board oversees registration and standards for intermediaries.^[223]

Guidance for judicial officers

7.186   The Evidence Act and Crimes Act contain a range of other provisions that may be used to assist people who need support in giving evidence. In addition to those discussed above, the Evidence Act includes provisions protecting witnesses from improper questioning, and allowing the giving of evidence in narrative form.^[224]

7.187   The Crimes Act also contains protective provisions that, among other things, may disallow inappropriate or aggressive cross-examination of vulnerable and special witnesses;^[225] allow for the use of alternative arrangements for giving evidence, such as closed-circuit television^[226] and the exclusion of members of the public from the courtroom;^[227] and ensure vulnerable persons are not compelled to give further evidence unless it is necessary in the interests of justice.^[228]

7.188   Legislative provisions are, however, only part of the solution to facilitating the participation of persons with disability in the justice system. Flexibility should be encouraged in Commonwealth court and tribunal proceedings to adapt procedures:

It is important for courts and tribunals to recognise and be sensitive to the challenges that people with disabilities face when interacting with the justice system. Procedural breaches by a person with an intellectual disability should be met with inquiry into the circumstances behind that breach. Registry staff, judicial officers and tribunal members should be educated about the difficulties facing those with a disability and encouraged to exercise discretion in excusing trivial breaches and dispensing with standard protocols where appropriate.^[229]

7.189   The law may be flexible enough to allow support to be provided but, in practice, the willingness or ability of courts to respond is likely to be circumscribed by limited resources and lack of awareness in the court and community about available options.^[230]

7.190   Greater awareness of the measures that courts and judicial officers may take to support witnesses who need support giving evidence may be desirable. One model is the Equality before the Law Bench Book developed by the Judicial Commission of NSW.^[231] This publication contains a section on people with disability and, among other things, discusses the implications of different types of disability for people involved in court proceedings, examples of the barriers for people with disabilities in relation to court proceedings, and making adjustments for people with disability.^[232]

7.191   The Equality before the Law Bench Book is intended primarily to provide guidance for NSW judicial officers in performing their duties. Bench books may, however, serve a broader educative function within the justice system, as lawyers and parties may also refer to them as a guide to the available options.

7.192   The ALRC recommends that federal courts develop bench books to provide judicial officers with guidance about how courts may support people with disability in giving evidence. This will mainly apply to civil matters because, as discussed earlier in relation to eligibility to stand trial, most federal offenders are tried in state and territory courts.

7.193   The Federal Court acknowledged that bench books can assist to ensure that the judiciary, lawyers and all other relevant agencies and organisations are aware of existing communication facilities and techniques.^[233] NACLC and PWDA strongly supported the further development of guidance for judicial officers about how courts may support people with disability in giving evidence, in consultation with people with disability and their representatives.^[234]