People with an intellectual disability or psychiatric illness benefit from additional support during a criminal trial. Their evidence should be regarded as being as reliable as anyone else. An Independent Third Person must be present during a police interview and access to a legal advocate is a right after a charge is made.

Key considerations

This section deals with police matters that relate specifically to people with a disability. Often people with a disability may be perceived as being unreliable, having a poor memory or poor communication skills. These perceptions can have a negative impact on potential witnesses, complainants or defendants. As a matter of fairness and equality before the law, it should be presumed that people with an intellectual disability or psychiatric illness can generally be regarded as being as reliable in giving evidence as anyone else. This can often be assisted by the provision of additional support.

If a person with a disability is not treated equally and fairly, they should consider making a complaint against the police, and seek legal advice (see Legal services that can help, Understanding disability and the law, and Complaints against Victoria Police).

Apprehension of people with a mental illness

Mental illness contains helpful information regarding the powers of the police to apprehend people with a mental illness.

Interviewing people with a disability

People with a disability have the same rights as other members of the community when being interviewed by police. For a general discussion of rights during police interviews, refer to Arrest, search, interrogation and your rights.

The guiding principal in this process is fairness. As a concept, fairness covers a diverse range of circumstances, from ensuring that people with a disability understand a caution given to them, to police arranging access to a medical practitioner or medication if a person requires it.

If the caution is not understood or access to a doctor or medication is not provided when the request was reasonable, the evidence obtained by police during the interview process may be inadmissible, and police behaviour may amount to a breach of rights under the Charter Act.

Independent Third Person

During the interview of a suspect, victim or witness who has an intellectual disability, mental illness, acquired brain injury or dementia, the police are required to have an Independent Third Person (ITP) present (Victoria Police Manual). ITPs are volunteers who assist people with a cognitive disability or mental illness during interviews, or when giving formal statements to Victoria Police.

The ITP provides support and facilitates communication between the interviewee and the police. They assist in order to ensure that the interviewee understands their rights and the questions asked by police. The ITP will participate in the interview and clarify any misunderstandings that may arise due to the person’s disability or mental illness. An ITP will be independent of the police, the interviewee and the inquiry, and should be objective in performing their role.

ITPs are trained volunteers who are supported by and accountable to the Office of the Public Advocate. A relative or close friend of the interviewee can act as the ITP if a trained ITP is not available. Police are responsible for arranging for an ITP to be present when required. An interviewee may also request that police arrange for an ITP to be present. A list of trained ITPs is available to police at all times.

There is often confusion about the role of the ITP; often, there is an expectation that they will assume an advocate role. An ITP will not act as an advocate; a separate advocate must be requested if it is felt that the person being interviewed requires one.

It is important that people with disabilities are provided with a legal advocate upon request, and that they understand the different roles of the advocate and the ITP. The client should know the limitations of an ITP: an ITP cannot act as an advocate; an ITP is not “on their side”; and anything said to an ITP is not confidential and can be used against the person in court. An ITP cannot advise the person on how to deal with the issues they are facing and cannot provide legal advice.

If an ITP was not made available to a person with a disability at the time of interview, it is important to inform the court of this fact. It may be open to an alleged offender to submit to a Court that as an ITP was not present, they failed to understand the interview process, with the result that evidence may have been improperly obtained (see here section 138 Evidence Act 2008 (Vic)), and that their Charter Act rights have been infringed. (For more information about the ITP program and the Office of the Public Advocate, see Disability: standing up for your rights.)

Access to a lawyer/legal practitioner

All alleged offenders in the indictable arrest context must be informed by police of the right to communicate or attempt to communicate with a legal practitioner. This is not the case for summary offences.

Access to a legal advocate is an important right protected by section 25 of the Charter Act but is a right that only arises once a person has been charged.

In the interview and pre-charge context the issue to consider is whether the person with a disability lacks the capacity to comprehend what is taking place and is therefore unable understand the caution (which must be given for all offences) or in the context of an indictable offence understand the right to communicate with a legal practitioner.

Police should always advise the ITP and the alleged offender of their right to communicate with a legal practitioner, separate from any standard reading of rights, to ensure that the alleged offender fully understands the right and entitlement to communicate with one.

Legal advice can be sought from Victoria Legal Aid or your local community legal centre (see “Contacts and resources” for contact details).