Going to court can be an intimidating experience for people with an intellectual or psychiatric disability. It is important to assist the person with a disability in understanding the court process, and the role of the Magistrate or Judge and the lawyers, etc. Where possible, it is worthwhile to allow the person to become familiar with the court setting prior to the hearing. The court may also be asked for some lenience to allow an advocate, guardian or friend to assist at the hearing. This request should be made in advance if possible and the right to a fair hearing (s.24 of the Charter) and equality before the law (s.8) may be raised in support of this request.
The Department of Human Services (DHS) offers certain assistance to people who have an intellectual disability facing legal proceedings. For further information about the services offered in criminal proceedings, contact the DHS on 1800 783 783.
The Court Integrated Services Program (CISP) based at the Melbourne Magistrates' Court, but available to assist with referrals from all other Victorian courts, is a program that offers support to alleged offenders and offenders living in the community. In cases where a person with an intellectual or other disability is appearing before the court, contact the Disability Case Manager on 9628 7936 or 9628 7975.
Diversion is on option available to all people charged with relatively minor offences when it is their first set of charges. It is an appropriate option if a person with a mental illness has committed a crime, and may be suggested by the informant. The case may then be diverted from the criminal justice system without the person receiving a criminal record if:
- the offence is trialable summarily (in the Magistrates' Court);
- the facts of the case are admitted;
- there is sufficient evidence to gain a conviction;
- diversion is appropriate in all the circumstances; and
- the informant or the sub-officer authorising the brief consents to diversion.
If diversion is raised by the prosecution for a person with a mental illness, they may have formed the view that the person had a disability that impacted upon their offending behaviour, therefore there may be sufficient evidence to enter a defence of mental impairment (see: "Defence of mental impairment", below).
Anyone can raise the issue of diversion throughout the court process. However, diversion cannot commence without the consent of the prosecution. The Magistrate is able to make a wide range of orders as part of a diversion plan, including:
- making a written or face-to-face apology to the victim;
- performing community work;
- receiving counselling or treatment;
- paying compensation;
- living at home; and
- not associating with certain persons.
If the court orders that an offender "not associate with certain persons", section 12 or section 22 of the Charter may apply.
The charges are adjourned while the diversion plan is undertaken. On the return date, if the person has met all the conditions of the diversion plan the charges are discharged and no finding of guilt or conviction is recorded.
If the conditions of the diversion plan are not met, the Magistrate can:
- extend the diversion plan for a further time period; or
- set the case for hearing as if it was the first listing at the Magistrates' Court.
The diversion program is also available to offenders with an intellectual disability; some may be eligible for a community-based order (CBO) (see: "Intellectual disability" under "Sentencing", below).
The Assessment and Referral Court List (the ARC List) is a specialist court list for people with a mental illness and/or a cognitive impairment that has been operating since May 2010. The ARC List is located at the Melbourne Magistrates' Court and works collaboratively with the CISP (see above), which provides case management to participants. Case management may include psychological assessment, referral to welfare, health, mental health, disability, and/or housing services and/or drug and alcohol treatment.
The following ARC List eligibility criteria apply:
- the accused is charged with a criminal offence that is not a violent, serious violence or serious sexual offence as defined by section 6B(1) of the Sentencing Act 1991 (Vic) ("Sentencing Act");
- the accused has one or more of the following:
- a mental illness;
- an intellectual disability;
- an acquired brain injury;
- an autism spectrum disorder; or
- a neurological impairment, including but not limited to dementia;
- the accused has one or more of the above, which causes a substantially reduced capacity in at least one of the areas of self-care, self-management, social interaction or communication;
- the accused would benefit from a problem-solving court process and an individual support plan; and
- the accused must consent to participate in the ARC List.
Referrals are accepted from the accused, significant others, community service organisations, Magistrates, police, prosecutors, legal representatives and other court based support services. Referral forms are available from the Court Support Services counter at the Melbourne Magistrates’ Court and the Publications and Forms panel on the Magistrates’ Court website (see below for details).
Contact a member of the ARC List team prior to making the referral.
Once a referral is made, the ARC List process will involve the following steps:
- CISP staff will conduct an initial assessment. The CISP staff will also commence addressing support needs at this stage.
- Liaison will occur with the ARC List staff to determine the next available court date.
- An ARC List clinical advisor will undertake a comprehensive clinical assessment.
- At the next available ARC List sitting, the List Magistrate will decide whether to accept the participant.
- If the referral is accepted, the ARC List clinical advisor will develop a draft individual support plan (ISP) in collaboration with the participant and the CISP staff for approval of the Magistrate.
- The participant appears before the ARC List Magistrate on a regular basis to discuss her or his progress.
- If the participant pleads guilty at the end of their participation, they will be sentenced within the List.
- Participants will be involved with the ARC List for between three and twelve months, with most being discharged within six months.
- If the referral is not accepted, the offender's charges will be referred back to the mainstream court lists. Where appropriate, the CISP will continue to provide necessary support to the accused or, where connected with services, referred back to those relevant treatment and support services.
- If the participant pleads not guilty the case will be returned to the "mainstream" court for a contested hearing.
- Participants can choose to refer the matter back to the Magistrates' Court at any point in the process.
Note: The ARC List's focus is on linking people with services, including mental health services, and it requires engagement and compliance from the participant. Therefore it may not be suitable for some people, particularly those who intend to plead not guilty and also people who do not want to engage with treatment and support services.
Victoria Legal Aid also provides a specialist duty lawyer service to the ARC list.
The Melbourne Magistrates' Court has a Special Circumstances List that deals with outstanding fines in certain circumstances, including where a person has a mental illness or a neurological disorder, which has contributed to their offending behaviour. Contact the Enforcement Preview Review Program at Melbourne Magistrates' Court for more information (see contact details, above).
If a person provides sufficient evidence, including medical evidence, they may meet the criteria of special circumstance, in which case their fines may be revoked. An application for revocation can be made by the person, their legal advocate, a case manager or a medical practitioner. For further legal advice contact your local Community Legal Centre, or Victorian Legal Aid.
For more detail on the infringement system and on applying for revocation of fines, see: Chapter 4*4 Infringements and Fines.
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AT COURT :: Last updated: Thu Jul 1st 2010