The Charter of Human Rights and Responsibilities Act 2006 (Vic) ("the Charter") enables the courts to interpret and apply legislation in accordance with the Charter from 1 January 2008, so the affect of the Charter in the criminal jurisdiction is not yet known.

Section 25 "Rights in criminal proceedings" asserts the rights for people with disabilities. These rights may have particular impact upon proceedings:

Section 21(5)–(8) "Detention on criminal charges" and section 24 "Fair hearing" are exclusively and explicitly addressed to courts and tribunal.

Crimes against or by people with an intellectual or psychiatric disability may often go unreported. This is due to a number of factors, not the least being that the criminal justice system is not geared to dealing with people with disabilities. Within some organisations providing specialist services only to people who have a disability, there may also be an "institutional culture", which views problems occurring within that organisation as requiring resolution internally rather than by the justice system.

In relation to crimes against the person, section 8 of the Charter may apply. It is possible that if a person with a disability becomes the victim of a crime, then any person who knew of the crime or became aware of the crime (whether that person is a friend, relative, judicial officer, police officer, case worker etc.,) that fails to take further steps to ensure that the matter is properly investigated by the appropriate authorities, may be said to have restricted the victim's right to recognition and equality before the law.

If a person with a mental illness or intellectual disability has been charged with a crime, specific laws and procedures may be available from the time of the police interview to sentencing. Police are required to have an Independent Third Person (ITP) present when interviewing a suspect who has a psychiatric or intellectual disability (see: "Police", below).

If there is a connection between the incident for which the person is charged and a mental impairment then they may be eligible for a defence of mental impairment; this is a complete defence and so ought always be explored. See: "Fitness to stand trial and the defence of mental impairment", below. However, there are considerable risks involved in raising this defence in the higher courts (see: "Procedures" and "Orders", below).

In addition to the standard sentencing options (see: Chapter 3*5 Sentencing in the Magistrates' Court), a further range of options is available for people with disabilities who have been found to have committed a crime. (See: "Criminal Justice Diversion Program" and "Sentencing", below.)

When working with clients with disabilities involving mental impairment, a conscious effort needs to be made to ensure they are given adequate support and opportunity to make informed decisions. For a detailed range of suggestions on how to assist a client to give a service provider accurate instructions, see: "Taking instructions from clients with cognitive impairment", in Chapter 16*1 Disability Overview.

See also: "Fitness to stand trial", below, for situations where a person is unable to instruct on a plea.