This section deals with police matters that relate specifically 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 extra support (e.g. the independent third person; see below) people with an intellectual disability or psychiatric illness can be as reliable in giving evidence 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 Complaints against Victoria Police). It is strongly recommended that you seek legal advice before taking any action against the police (see Legal services that can help).
For helpful information about the powers of police officers to apprehend people with a mental illness, see Mental illness.
People with a disability must be treated fairly when being interviewed by police. For example, police must ensure that people with a disability understand the caution given to them. Also, people must be given access to medical care if required. If this, or other, rights are not adhered to, police behaviour may be a breach of the Charter Act.
For a general discussion about what rights you have during police interviews, see Arrest, search, interrogation and your rights.
A suspect, victim or witness 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 (ITP) present during a police interview. ITPs are volunteers who support people with a cognitive disability or mental illness during interviews, and who assist the person to deal with and talk to police officers, and give formal statements to the police. The Office of the Public Advocate trains and supports these volunteers. Alternatively, police officers may request an ITP (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 act 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.
However, an ITP is not a legal advocate. An ITP does not make decisions for the person on how to deal with the issues they are facing, and cannot give any legal advice. Conversations with an ITP are not covered by confidentiality and can be used against the person in court.
If an ITP was not made available to a person with a disability when they were interviewed, the court should be informed. The alleged offender may 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, thus breaching the person’s rights under the United Nations International Covenant on Civil and Political Rights (1966) (see s 138 Evidence Act 2008 (Vic)), and breaching their Charter Act rights.
Where an interviewed occurred without the presence of an ITP, a magistrate can decide whether or not to admit the information.
(For more information about the ITP program and the Office of the Public Advocate, see Disability: asserting your rights.)
Only suspects charged with an indictable offence have the right to a legal advocate under section 25 of the Charter Act. Suspects – prior to being charged, or charged with a summary 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, with indictable offences, comprehends 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 any standard reading of rights, to ensure this right and entitlement is fully understood.
Legal advice can be sought from Victoria Legal Aid or a community legal centre (see Legal services that can help).