7.106 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.
7.107 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.
7.108 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’.
7.109 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’. 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 be brought or prosecuted than if the victim were a person without disability.
Proposal 7–8 The Evidence Act 1995 (Cth) should be amended to provide that, in assessing whether a witness is competent to give evidence under s 13, the court may take the availability of communication and other support into account.
7.110 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.
7.111 The AHRC has observed that people with disabilities frequently experience prejudicial assessments of their competency to give evidence as a witness to criminal proceedings. 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).
7.112 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. 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.
7.113 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. However, 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).
7.114 In this way, the test for competence to give evidence amounts to the capacity to understand the obligation to give truthful evidence. 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.
7.115 The wording of s 13(3) 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 ALRC proposes 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.
7.116 There may be concerns about fairness to parties in legal proceedings if competence is determined by reference to available support—the practical extent and effectiveness of which may be difficult to determine at the point in time that the court must rule on the competence of a potential witness. Another criticism of the ALRC proposal may be that, without some obligation being placed on courts to provide support, reform may have no practical effect.
Assistance in giving evidence
Proposal 7–9 The Crimes Act 1914 (Cth) should be amended to provide that a witness who needs support is entitled to give evidence in any appropriate way that enables them to understand questions and communicate answers; and that the court may give directions with regard to this.
Proposal 7–10 The Crimes Act 1914 (Cth) should be amended to provide that a witness who needs support has the right to have a support person present while giving evidence, who may act as a communication assistant; assist the person with any difficulty in giving evidence; or provide the person with other support. The court should be empowered to give directions with regard to the provision of support.
7.117 Concerns about the extent to which existing laws and legal frameworks facilitate support for witnesses were expressed in submissions. The Office of the Public Advocate (Qld) submitted that the Commonwealth and Queensland state 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’. 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.
7.118 Sections 30 and 31 of the Evidence Act provide examples of the assistance that may currently be provided ‘to enable witnesses to overcome disabilities’. Section 30 provides that a witness may give evidence about a fact through an interpreter and s 31 relates to ‘deaf and mute witnesses’.
7.119 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.
7.120 Deaf Australia expressed concerns about the dated language 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.
7.121 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’.
7.122 At the least, 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.
7.123 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.
7.124 These include provisions allowing vulnerable persons to choose someone to accompany them while giving evidence in a proceeding. In relation to adults, the right applies only to ‘vulnerable adult complainants’ 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’.
7.125 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.
7.126 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’.
7.127 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’. 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’.
7.128 The ALRC proposes that the Crimes Act should 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.
7.129 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 for undue influence on the 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.
7.130 The ALRC acknowledges that the proposal 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.
7.131 In its 2013 report on the justice system and people with intellectual disability, the Parliament of Victoria’s Law Reform Committee highlighted the witness intermediary scheme in the UK, established under the Youth Justice and Criminal Evidence Act 1999 (UK).
7.132 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.
Guidance for judicial officers
Proposal 7–11 Federal courts should develop bench books to provide judicial officers with guidance about how courts may help to assist and support people with disability in giving evidence.
7.133 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.
7.134 The Crimes Act also contains protective provisions that, among other things, may disallow inappropriate or aggressive cross-examination of vulnerable and special witnesses; allow for the use of alternative arrangements for giving evidence, such as closed-circuit television and the exclusion of members of the public from the courtroom; and ensure vulnerable persons are not compelled to give further evidence unless it is necessary in the interests of justice.
7.135 Legislative provisions are, however, only part of the solution to facilitating the participation of people with disability in the justice system. For example, Victoria Legal Aid observed that flexibility should be encouraged in Commonwealth court and tribunal proceedings to adapt procedures. In addition:
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.
7.136 The law may be flexible enough to allow support and assistance 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.
7.137 Greater awareness of the measures that courts and judicial officers may take to assist witnesses who need support giving evidence may be desirable. One model is the Judicial Commission of NSW Equality before the Law Bench Book. The Bench Book 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.
7.138 The 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.
‘Equality before the Law Bench Book’ (Judicial Commission of New South Wales, 2006) 5301.
Disability Rights Now, Civil Society Report to the United Nations on the Rights of Persons with Disabilities, August 2012, 71.
Anti-Discrimination Commissioner (Tasmania), Submission 71. The Commissioner also observed that ‘the best way to ensure prosecution of the charge is to ensure that a person with disability receives adequate support to participate in the process’.
Thomson Reuters, The Laws of Australia [16.4.280].
‘Equal Before the Law: Towards Disability Justice Strategies’, above n 3, 21.
‘Equality before the Law Bench Book’, above n 127, 5301. The Bench Book cites Mark Kebbell, Christopher Hatton and Shane Johnson, ‘Witnesses with Intellectual Disabilities in Court: What Questions Are Asked and What Influence Do They Have?’ (2004) 9 Legal and Criminological Psychology 23.
That is, NSW, Victoria, Tasmania, the ACT and the Northern Territory: Evidence Act 1995 (NSW); Evidence Act 2008 (Vic); Evidence Act 2001 (Tas); Evidence Act 2011 (ACT); Evidence (National Uniform Legislation) Act 2011 (NT).
Evidence Act 1995 (Cth) s 13(3).
Ibid ss 13(4)–(5).
NSW Law Reform Commission, People with an Intellectual Disability and the Criminal Justice System, Report No 80 (1996) ch 7.
Evidence Act 1995 (Cth) s 135.
The OPA (Qld) referred to laws in NSW, Western Australia and the UK as providing suitable models, referring to provisions of the Civil Procedure Act 1986 (NSW); Evidence Act 1906 (WA); and Youth Justice and Criminal Evidence Act 1999 (UK): Office of the Public Advocate (Qld), Submission 05.
Office of the Public Advocate (Vic), Submission 06.
Evidence Act 1995 (Cth) s 13 (note).
The word ‘mute’ refers to inability to speak. The current appropriate term is ‘speech impaired’: Deaf Australia, Submission 37.
Ibid. See also AFDS, Submission 47.
Anti-Discrimination Commissioner (Tasmania), Submission 71.
Crimes Act 1914 (Cth) pt IAD.
Ibid s 15YO.
A vulnerable adult complainant is a person who is a victim of slavery or human trafficking: Ibid s 15YAA.
Ibid s 15YAB(1).
Criminal Procedure Act 1986 (NSW) s 306M. ‘Cognitive impairment’ is defined to include: (a) an intellectual disability; (b) a developmental disorder (including an autistic spectrum disorder); (c) a neurological disorder; (d) dementia; (e) a severe mental illness; (f) a brain injury.
Ibid s 306ZK(2).
Ibid s 306ZK(3).
Government of South Australia Attorney-General’s Department, ‘Draft Disability Justice Plan 2014-2016’ (2014) Priority Actions 2.1–2.2.
Parliament of Victoria Law Reform Committee, ‘Access to and Interaction with the Justice System by People with an Intellectual Disability and Their Families and Carers’, Final Report, (2013).
Ibid 283. Intermediaries may include speech and language therapists, clinical psychologists, mental health professionals and special needs education professionals.
Evidence Act 1995 (Cth) ss 41, 29(2).
Crimes Act 1914 (Cth) s 15YE.
Ibid ss 15YI, 15YL.
Ibid s 15YP.
Ibid s 15YNC.
Legal Aid Victoria, Submission 65.
‘Equal Before the Law: Towards Disability Justice Strategies’, above n 3, 23.
‘Equality before the Law Bench Book’, above n 127.
Ibid s 5.