The police have considerable discretion, and may be hesitant to charge a person on the basis of evidence provided by someone with an intellectual or psychiatric disability, because of that person's perceived unreliability, poor memory or poor communication skills. These views, which can also be held by the general community, are often unfounded. People with an intellectual or psychiatric disability, while they may need some extra support, are generally as reliable in giving evidence as anyone else.

All alleged offences must be treated equally and fairly by the police, including those from people with a disability. If a person with a disability is not treated equally and fairly it is potentially open to them to invoke the Charter and argue that their rights to recognition and equality before the law under section 8 have been infringed.

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 ITP present (Victoria Police Operating Procedures 4.6.3.2).

The ITP will facilitate communication and 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. An ITP will be independent of the police, the interviewee and the inquiry, and will be objective in performing their role.

ITPs are trained volunteers who are supported by and accountable to the Office of the Public Advocate. The police may also use a relative or close friend of the interviewee 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 some confusion about the role of the ITP and 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 advocate and ITP. The client should know the limitations of an ITP; that the ITP cannot act as an advocate, is not "on their side", and that anything said to the ITP can be used against the person in court.

People with disabilities must be provided with a legal advocate upon request. However, it may be that a person with a disability lacks the capacity to comprehend what is taking place, and they are therefore unable to make such a "request". In order to ensure that the interview complies with section 8 of the Charter, the police should always advise the ITP and the alleged offender of their right to a legal advocate, separate from any standard reading of rights, to ensure that the alleged offender fully understands the role of an advocate and that one is available to them. In addition, there must be compliance with section 25(b) of the Charter, that the person has adequate time and facilities to prepare their defence and to communicate with a lawyer or advisor of their choosing .

If an ITP was not made available to a person with a disability at the time of interview it is important to tell the court. If police fail to assess that the person has a disability and so do not request the presence of an ITP during an interview, then the alleged offender may later submit that as an ITP was not present, they failed to understand the interview process and that their rights are infringed under section 8 of the Charter. If an ITP was not made available to a person with a disability at the time of interview it is important to tell the court. For more information about the ITP program and the Office of the Public Advocate, see: Chapter 16*2 Advocacy.