This section discusses police processes in relation 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 additional 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 a person with a disability understands the caution given to them. Also, access to medical care must be given to the person being questioned if required. If these or other rights are not adhered to by police, such 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 police interviews and also assist them in communicating with police officers and giving formal statements. The Office of the Public Advocate trains and supports these volunteers. Police officers may also request an ITP to be present in an interview (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.
An ITP is not a legal advocate. An ITP does not make decisions for the person about how they should deal with the legal 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. An alleged offender may submit to the court that because they were not given an ITP when they were questioned by police, they were unable to understand the interview process and therefore unable to effectively answer the questions appropriately. In this occurrence, the evidence from the police interview may have been improperly obtained, which constitutes a breach of the person’s rights under the United Nations International Covenant on Civil and Political Rights (1966) (see s 138 Evidence Act 2008 (Vic)) and the relevant Charter rights.
Where an interview occurred without the presence of an ITP, a magistrate can decide whether or not to admit the information obtained from the interview.
(For more information about the ITP program and the Office of the Public Advocate, see Disability: asserting your rights.)
Under section 25 of the Charter Act, suspects charged with an indictable offence have the right to a legal advocate. Suspects 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 in the circumstance of an indictable offence, understands 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 the standard reading of rights. This is to ensure that the alleged offender’s entitlement to consult with a lawyer/legal advocate is fully understood.
Legal advice can be sought from Victoria Legal Aid or a community legal centre (see Legal services that can help).