People with disability at court
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Attending court can be a stressful experience for people with a disability. A person with a disability may feel more relaxed if they are familiar with the court setting and process, including the different roles of the magistrate, lawyers, and other people present in the courtroom.
Requests for the assistance of an advocate, guardian or friend should be made in advance (if possible) to the court’s registrar. To support this request, a lawyer can raise the right to a fair hearing (Human Rights Charter s 24) and the right to equality before the law (s 8). There are a number of specialist courts and court support services available. A person’s rights in criminal proceedings under section 25 of the Human Rights Charter also include being told about the right, if they are eligible, to have legal aid.
Court Support Programs
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The Court Integrated Services Program (CISP) offers support to parties in Magistrates’ Court proceedings (e.g. applicants, respondents and defendants). CISP assists people to access a variety of services to address their health and social needs. CISP was established to provide support and services aimed at reducing re-offending and making communities safer.
The main aims of CISP are:
to provide short-term assistance before sentencing for accused people with health and social needs;
to work on causes of offending through individual case management support;
to provide priority access to treatment and community support where possible; and
to try to reduce re-offending rates.
CISP is available at the Magistrates’ Courts in Ballarat, Bendigo, Broadmeadows, Dandenong, Frankston, Geelong, Heidelberg, Korumburra, Latrobe Valley, Melbourne, Mildura, Moorabbin, Portland, Ringwood, Shepparton, Sunshine, Warrnambool, Wangaratta, Wodonga and Wonthaggi.
Court Integrated Services Program (CISP) – Magistrates’ Court
www.mcv.vic.gov.au/form-finder/court-integrated-support-services-cisp-referral-form
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In January 2021, a CISP pilot program commenced in the County Court. The aims of CISP at the County Court are similar to the aims of the program in the Magistrates’ Court (see above). Defendants must meet certain eligibility requirements to be accepted into the program, including having a substantive matter committed to the Melbourne County Court.
Court Integrated Services Program (CISP) – County Court
Email: cisp@countycourt.vic.gov.au
www.countycourt.vic.gov.au/going-court/criminal-division/court-integrated-services-program
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This program is no longer in operation.
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Run by Forensicare, the Mental Health Advice and Response Service (MHARS) is a court-based assessment and advice service that identifies and assesses people involved in a matter before the court who may have a mental illness. The service connects these people to an appropriate mental health facility.
MHARS operates at the Magistrates’ Courts in Melbourne, Broadmeadows, Dandenong, Frankston, Heidelberg, Moorabbin, Ringwood and Sunshine.
In November 2020, a MHARS pilot program was launched in the Melbourne County Court.
Mental Health Advice and Response Service (courts) (MHARS)
Tel: 9947 2500
Email (MHARS at the Magistrates’ Courts): info@forensicare.vic.gov.au
Email (MHARS at the County Court): mharscounty@forensicare.vic.gov.au
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The Criminal Justice Diversion Program assists first-time offenders to avoid a criminal record by imposing conditions on the offender. These conditions are beneficial to the offender, the victim and the community. The offender does not need to enter a plea or appear in open court.
Section 59 of the Criminal Procedure Act 2009 (‘CP Act’) sets out the requirements of the diversion program. A matter is eligible for diversion if:
the offence is triable summarily and not subject to a minimum or fixed sentence or penalty (except demerit points);
the accused acknowledges responsibility for the offence; and
the prosecution consents to the matter proceeding by way of diversion.
Prior convictions are taken into account when deciding if diversion is appropriate. Diversion may be an appropriate option if a person with a mental illness or disability has committed a crime. Diversion may be suggested by the informant (i.e. the police officer who charged the person), their lawyer or the court.
The question of whether diversion is suitable to a client with a mental illness or disability, should always be considered along with the question of whether there may be sufficient evidence to enter a defence of mental impairment (see ‘Defence of mental impairment’, below).
In discussing diversion with the prosecution, it is advisable for the defendant to discuss their personal situation and circumstances, including employment status, any prior criminal history, any voluntary work performed within the community, an explanation for the offence, and the likely impact that a criminal conviction would have on the person’s life and future.
The magistrate or judicial registrar can make a range of orders as part of a diversion plan, including:
apologising to the victim;
performing voluntary community work;
receiving counselling or other treatment;
paying compensation;
living at home; and
not associating with certain people.
When a diversion plan is implemented, the charges are adjourned. When the case returns to court, 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 matter is referred back to the mention court or the Magistrates’ Court, as if the matter was being listed for the first time. All information about the diversion program is removed from the person’s file.
Criminal Justice Diversion Program
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The Intermediaries Pilot Program provides communication specialists to police and people who work in the courts to help them communicate better with victims and witnesses. This helps victims and witnesses to give clear evidence in a police interview or in a court hearing.
The program aims to help vulnerable witnesses to give their best evidence in light of the research and international experience. An intermediary’s role is to assess the communication needs of a vulnerable witness and provide practical strategies and recommendations to help them understand the questions and provide their best evidence.
It is governed by part 8.2A of the CP Act. The program provides support to eligible witnesses including children, young people, and adults with cognitive impairment who are victims in sexual offence matters or witnesses in homicide matters. The term cognitive impairment under the CP Act includes an impairment from a mental illness, intellectual disability, dementia, or brain injury.
In practice, there are three key parts. First, the law now provides that eligible witnesses may give their evidence by a video and audio recorded statement. This recording is made when the police first interview an eligible witness. Secondly, a court may appoint an intermediary and/or hold a ground rules hearing. Finally, any cross-examination of an eligible witness is recorded at a special hearing. The court, legal practitioners and the eligible witness are assisted by the intermediary in managing any communication difficulties.
Intermediaries and ground rules hearings
Intermediaries are trained professionals with specialist skills in communication. They are not expert witnesses called by a party. They are officers of the court who assist a vulnerable witness to give their best evidence during an interview with police and in court.
Generally, an intermediary is appointed by the court after a referral. A ground rules hearing must be held in all cases where an intermediary is appointed by the court. At a ground rules hearing, a discussion is held between the judicial officer, lawyers and the intermediary (if any) about the questioning of the witness, taking into account the witness’s communication needs, and any other arrangements to be made.
Ground rules hearings without an intermediary
Importantly, ground rules hearings can occur where no intermediary has been appointed. This means that a court may make directions about how a child or cognitively-impaired witness is to give evidence. These directions may include how a child or cognitively-impaired witness can be questioned when giving evidence.
Intermediary Program
www.justice.vic.gov.au/justice-system/courts-and-tribunals/victorian-intermediaries-pilot-program
The Intermediary Program currently operates in the:
Supreme Court of Victoria;
County Court at Melbourne, Bendigo, Geelong and Warrnambool;
Magistrates’ Court at Melbourne, Bendigo, Geelong and Warrnambool; and
Children’s Court at Melbourne, Bendigo, Geelong and Warrnambool.
Specialist courts
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The Assessment and Referral Court (ARC) is a pre-sentence court which aims to help people address underlying factors that contribute to their offending behaviours. ARC is a therapeutic court that aims to improve the health and wellbeing of the person. The ARC is available at the Magistrates’ Courts in Ballarat, Bendigo, Dandenong, Frankston, Heidelberg, Latrobe Valley, Melbourne and Moorabbin.
ARC works in collaboration with CISP, which provides case management to participants. Case management includes psychological assessment, and referral to services for welfare, health, mental health, disability, housing or drug and alcohol treatment. ARC aims to link people with appropriate services. This requires the participant’s engagement and compliance. 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.
Eligibility criteria
A case may be heard in ARC if:
the accused is charged with a criminal offence that is not a violent offence, serious violence offence or serious sexual offence (see Sentencing Act 1991 (Vic) (‘Sentencing Act’) sch 1 cls 1–3) – eligible offences include recklessly causing serious injury, making threats to kill, and indecent assault;
the accused has, or is likely to have:
a mental illness,
an intellectual disability,
an acquired brain injury,
autism spectrum disorder, or
a neurological impairment, including but not limited to dementia;
the disorder 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 receiving coordinated services in accordance with an individual support plan (ISP) and/or participating in a problem-solving court process; and
the accused must consent to participate in ARC, including attending court regularly and meeting with ARC staff.
Magistrates who preside over the ARC decide who will be accepted to participate.
Referrals to the Assessment and Referral Court
Referrals are accepted from the accused, their significant others, community service organisations, magistrates, police officers, prosecutors, lawyers and other court-based support services. Referral forms are available from the ARC registry.
Assessment and Referral Court process
Once a referral is made, the process includes:
an initial assessment;
determination of the next available court date;
a comprehensive clinical assessment;
at the next ARC sitting, the magistrate decides whether the participant is accepted into ARC;
if accepted, the ARC clinical advisor (in collaboration with the participant and CISP staff) develops a draft ISP for the magistrate’s approval;
regular appearances before the magistrate to discuss progress;
at the end of their participation in ARC, if the participant pleads guilty, they will be sentenced within ARC;
if the participant pleads not guilty, the case is returned to the ‘mainstream’ court for a contested hearing;
involvement with ARC for three to 12 months, however most are discharged within six months; and
if the referral is refused, the offender’s charges are referred back to the mainstream court lists. Where appropriate, CISP staff continue to provide necessary support to the accused or, where connected with services, refer the accused back to relevant treatment and support services.
Assessment and Referral Court (ARC)
www.mcv.vic.gov.au/about-us/assessment-and-referral-court-arc -
The Drug Court of Victoria is located at the Ballarat, Dandenong, Melbourne and Shepparton Magistrates’ Courts. The Drug Court undertakes the sentencing and supervision of the treatment of offenders with a drug and/or alcohol dependency. The goal of the court is to establish a unique program to reintegrate offenders into the community.
The Drug Court imposes a supervised two-year drug treatment order on participants, comprising two parts: a custodial part, and a treatment and supervision part.
The custodial component is held in abeyance (i.e. it is suspended), pending treatment and supervision of the offender.
The treatment and supervision involves a system of rewards and sanctions, designed to encourage positive, pro-social behaviour and the rehabilitation of the participant.
Drug Court – Ballarat Magistrates’ Court
100 Grenville Street South, Ballarat Central Vic 3350
Tel: 7003 4113
Email: drugcourtballarat@courts.vic.gov.auDrug Court – Dandenong Magistrates’ Court
35 Pultney Street, Dandenong Vic 3175
Tel: 9767 1344
Email: drugcourtdandenong@courts.vic.gov.au
www.mcv.vic.gov.au/about_us/drug-courtDrug Court – Melbourne Magistrates’ Court
233 William Street, Melbourne Vic 3000
Tel: 9628 7983
Email: drugcourtmelbourne@courts.vic.gov.auDrug Court – Shepparton Magistrates’ Court
18 High Street, Shepparton Vic 3630
Tel: 9087 5723
Email: drugcourtshepparton@courts.vic.gov.au -
The Drug and Alcohol Treatment Court (DATC) is a new division of the County Court that allows for a drug and alcohol treatment order. It currently sits only in Melbourne. The purpose of the DATC is to provide alternative sentencing options for accused persons with drug and/or alcohol dependency who have committed offence(s) with an established link to their dependency. There are specific entry pathways into the DATC which are set out in the County Court’s Practice Note PNDATC 1-2021.
Drug and Alcohol Treatment Court – Melbourne County Court
Tel: 8636 6303
Email: countydatc@courts.vic.gov.au
www.countycourt.vic.gov.au/going-court/criminal-division/drug-and-alcohol-treatment-court -
The Koori Court, Children’s Koori Court and County Koori Court seek to empower Aboriginal and Torres Strait Islander peoples by offering greater, positive participation of members of the Koori community in the court process and the administration of the law. This participation aims to reduce perceptions of cultural alienation and to ensure sentencing orders are appropriate to the cultural needs of Koori offenders.
Koori Courts are located at the Magistrates’ Courts in Bairnsdale, Bendigo, Broadmeadows, Dandenong, Echuca, Geelong, Hamilton, Heidelberg, Latrobe Valley, Melbourne, Mildura, Portland, Shepparton, Swan Hill, Wangaratta, Warrnambool and Wodonga. The Magistrates’ Court Practice Direction No. 11 of 2022 sets out the process for referring matters to the Koori Court.
The Children’s Koori Court is currently sitting in Melbourne, Heidelberg, Dandenong, Mildura, Latrobe Valley, Bairnsdale, Warrnambool, Portland, Hamilton, Geelong, Swan Hill and Shepparton.
The County Koori Court is the first sentencing court for Aboriginal and Torres Strait Islander offenders in the higher jurisdiction in Australia. It follows the successful Koori Court model introduced at the Magistrates’ and Children’s Courts. The County Court’s Practice Note PNCR 1-2021 sets out the process for referral and entry criteria.
Koori Court
Magistrates’ Court: www.mcv.vic.gov.au/about/koori-court
Children’s Court: www.childrenscourt.vic.gov.au/jurisdictions/koori-court
County Court: www.countycourt.vic.gov.au/learn-about-court/court-divisions/county-koori-court
People with disability at court
Chapter: 8.3: Disability and criminal justice
Contributor: Liam McAuliffe, Crown Prosecutor
Current as of: 1 September 2024
Law Handbook Page: 721
Next Section: Fitness to stand trial and the defence of mental impairment
