People with disability and the police
This section discusses police processes in relation to people with disability. Misconceptions about people with disability are common and may reflect negatively on potential witnesses, complainants or defendants who have a disability. With additional support (e.g. the ITP; see below) people with an intellectual disability or psychiatric illness can be as reliable in giving evidence as anyone else.
If a person with disability is not treated equally and fairly, they should consider making a complaint against the police (see Chapter 12.4: Complaints against Victoria Police). It is strongly recommended that you seek legal advice before taking any action against the police (see Chapter 2.3: Legal services that can help).
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For helpful information about the powers of police officers to apprehend people with a mental illness, see Chapter 8.4: Mental illness.
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People with disability must be treated fairly when being interviewed by police officers. For example, police officers must ensure that a person with 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 the police, such behaviour may be a breach of the Human Rights Charter (see Chapter 3.5: Arrest, search, interrogation and your rights).
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A suspect, victim or witness with a cognitive impairment (including an intellectual disability, acquired brain injury, dementia, autism spectrum disorder or mental illness) is entitled to have an 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 who is 18 years or over to act as the ITP.
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 and cannot give legal advice. An ITP does not make decisions for the person about how they should deal with any legal issues. Any conversations with an ITP are not confidential and can be used against a suspect in court.
If an ITP was not made available to a person with disability when they were interviewed, the court should be informed. This is because it is open to a magistrate or judge to decide whether or not to admit the information obtained from the interview.
A defendant may submit to the court that without an ITP they were unable to understand the caution and their rights, the interview process or police questions. It might mean that a defendant was also unable to exercise their rights without an ITP, regardless of their understanding. In this case, the evidence from the police interview may have been obtained improperly or in consequence of an impropriety (see Evidence Act 2008 (Vic) s 138).
(For more information about the ITP program and the Office of the Public Advocate, see Chapter 8.1: Understanding disability and the law.)
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Under section 25(2) of the Human Rights Charter, a person charged with a criminal offence has the right to have adequate time and facilities to communicate with a chosen lawyer or advisor. This applies to both indictable and summary offences. It is important that an ITP ensures that a person with disability who is being interviewed understands what is taking place, understands the caution (given for all offences) and understands their right to speak to a friend or relative to inform that person of their whereabouts, and to speak to a legal practitioner.
A defendant and an ITP must always be advised of the right to communicate with a legal practitioner, separate from the standard reading of rights. This is to ensure that the defendant’s entitlement to consult with a lawyer/legal advocate is fully understood. Legal advice can be sought from Victoria Legal Aid (VLA) or a community legal centre (see Chapter 2.3: Legal services that can help).
People with disability and the police
Chapter: 8.3: Disability and criminal justice
Contributor: Liam McAuliffe, Crown Prosecutor
Current as of: 1 September 2024
Law Handbook Page: 720
Next Section: People with disability at court
