Were you cautioned before making this statement that you were not obliged to make this statement unless you so desired, but any statement you did make may be used in

evidence?139

The use of long and complex sentence structures and the conceptual nature of the language means that such questions are unlikely to be understood by a person with an intellectual disability. Such questions may well elicit a “yes” or “no” answer from the suspect, without indicating his or her lack of

appropriate for a person with an intellectual disability. The New South Wales Police Service stated that it is current practice to ensure adoption questions are understood.141

4.60 The Instructions also provide that the suspect should, if they have not written the statement, be asked to read the record of interview aloud or should have it read aloud to them.142 This presents obvious difficulties for a person with an intellectual disability who may have low literacy or a poor short term memory and therefore “reading it or listening to it read aloud may not ensure that the document is an accurate and complete record of all that was said”.143 The difficulties involved in reading back the record of interview to a suspect will be largely overcome by the electronic recording of interviews, which is discussed below. However, police guidelines need to provide for this possibility for interviews which are not electronically recorded.

4.61 The Commission therefore recommends that the Code of Practice should provide that the standard “adoption” questions used at the end of an interview should be in language appropriate to the person with an intellectual disability, and, if the interview is not electronically recorded, the person should have the opportunity of having their record of interview read back to them slowly, and to be asked frequently whether it is correct. There were no significant concerns raised about this recommendation in submissions.

Recommendation 6(f): Electronic recording of police interviews

4.62 Suspects. Generally, evidence of an admission by a suspect to police is not admissible in court unless a “tape recording” is made or there is a reasonable excuse for the lack of a recording.144 For New South Wales offences, this requirement is limited to admissions which relate to an indictable offence;145 tape recording in practice will therefore be limited to more serious offences. “Tape

recording” includes audio or video electronic recording.146 Electronic recording of police interviews with a person with an intellectual disability may reveal, far more clearly than through a transcript, the nature of the person’s response, including non-verbal responses and level of understanding. The difficulty of “reading back” a statement to a person with low literacy skills is also avoided. Electronic recording appears to be popular with the police, for it is not only an effective prosecution tool but also can resolve disputes about police conduct during the interview.147 By removing the necessity for one officer to record the interview manually, it also allows for shorter interviews. Shorter interviews may also be helpful for people with an intellectual disability, many of whom find concentration for long periods difficult. The practice in Victoria is generally to make a tape recording of an interview with any suspect with an intellectual disability whether the offence is indictable or not.148

4.63 Accordingly, the Commission proposed in DP 29 that police interviews with a suspect with an intellectual disability in respect of all criminal offences, not just the more serious offences, should be videotaped. This proposal extends the current practice. Electronic recording for suspects was generally supported in submissions.149 The New South Wales Police Service, however, was concerned that such a proposal would be too expensive and may require arrest to allow the recording to take place rather than proceeding by summons or infringement notice.150 The Commission believes that the advantages of videorecording in terms of accurate reporting of what was said to the police outweigh the

disadvantages and does not believe that the proposal should be limited to only the most serious offences. Where video equipment is not available, an audio recording should be made. The practice is particularly important in circumstances where there is no support person or lawyer present at the interview (see Recommendations 7 and 8). To overcome the concern that people would be arrested or detained to allow the interview to be recorded, the Commission suggests that its recommendation be limited to interviews after arrest for all offences. It may, however, be in the interests of the police to record electronically certain pre-arrest interviews, to ensure the admissibility of any admissions made. 4.64 Videotaping of interviews should not be seen as the perfect solution to all concerns about the police interview. Its potential abuses or limitations have been well documented.151 In fact, by its appearance of fairness and verisimilitude, it can provide the jury with a confidence in the accuracy of all contained within the interview which may be unjustified.152 It may also work against the suspect with an intellectual disability who has a high level of verbal skills, in that the jury may not believe, on viewing the

video, that the person does, in fact, have an intellectual disability. The Intellectual Disability Rights Service (“IDRS”) supported the use of electronic recording but argued that there should be safeguards to protect the rights of suspects, including that a lawyer be present prior to the making of the recording and that a pre-recorded warning about the suspect’s right to silence be played on tape to the

suspect.153 In the Police Powers Report the Commission commented that there were also: “questions about the propriety and fairness of taping staged re-enactments of the crime, visits to the scene of the crime and other presentational/non-discursive modes of investigation”.154 The Commission

recommended in the Police Powers Report that a detailed Code of Practice be developed to regulate electronic recording, as is the case in England.155

4.65 Victims. Electronic recording of victims (or witnesses) with an intellectual disability also has obvious benefits in terms of accurately recording the victim’s statement, including non-verbal

communication, which may be particularly revealing. It is also likely to shorten interviews and make the police officer’s task easier. A person with low literacy skills may be able to use their video statement to refresh their memory prior to the court appearance. The Commission therefore proposed that electronic recording facilities be used for all victims with an intellectual disability, and for witnesses where a detailed interview is necessary.156 As the Commission accepted that there may be different concerns for non-suspects, the Commission sought submissions about whether there is any possible detriment to the victim or witness with an intellectual disability through the widespread use of electronic recording of interviews.

4.66 Submissions presented a mixed response: the New South Wales Police Service did not support the proposal, seeing it as discriminatory to victims with an intellectual disability and possibly giving unfair cross examination advantages to the defence. They also argued that undue criticism would flow to the prosecution if the victim’s interview was not recorded, even if the police thought there were good reasons not to do so.157 Nor did the New South Wales Sexual Assault Committee support the

proposal.158 Other submissions supported the proposal without detailed comment.159 The DPP did not perceive any detriment to the victim, other than possible embarrassment, and rather thought that “the use of the videotape in court would serve to bolster the victim’s credibility and defuse suggestions of coaching, fabrication and other improper activities”.160 The DPP and IDRS also thought the decision about electronic recording should be the victim’s.161 However it is likely to be difficult to obtain a properly informed consent from many victims with an intellectual disability.

4.67 Despite these concerns, the Commission recommends that, to the extent practicable, all police interviews with arrested suspects or victims with an intellectual disability should be videotaped. The Commission believes that leaving the decision to the discretion of either the police or the victim is inappropriate and could place both groups in a difficult situation. In response to the argument that such a practice is discriminatory to victims with an intellectual disability, the Commission argues that different measures are appropriate for this group of victims due to the disadvantages outlined in Chapter 2. A video is a legitimate aid to the administration of justice and cannot be seen as intrinsically different to, for example, photographs taken of a victim’s injuries. The strongest argument against the use of electronically recorded interviews is the potential advantage to the defence or disadvantage to the prosecution, through the use made by the defence of such a tape. However, like many such dilemmas in the criminal justice system which involve the balancing of the rights of both sides, this is a risk which should be taken in the interests of the administration of justice, because of the likely greater accuracy of recording obtained. There are specific evidentiary and other protections which could be raised on a case by case basis to limit the use of the recording by the defence. Police may also choose to use the procedure for witnesses, but the Commission does not believe that it should make a recommendation in this area.

Recommendation 6(g): Identification parades

4.68 It has been suggested that identification parades should not be used where the suspect has an intellectual disability, as some people with an intellectual disability may be particularly obvious in such parades.162 It is not within the scope of this reference to consider the general advantages and

disadvantages of identification parades. The Instructions require that identification be carried out “fairly” and the other members of the line-up be “persons who are of similar age, height, appearance, and class

of life, to the suspect”.163 For federal offences, guidelines for identification parades are set out in legislation.164 The Crimes Act 1914 (Cth) provides that an identification parade must be conducted in a way that will not disadvantage the suspect. The parades are designed so that the suspect should not stand out in any way, for example, each of the persons in the parade must “resemble the suspect in age, height and general appearance”.165 The Act also provides that an identification parade “must not be held for a suspect who is incapable of managing his or her affairs unless a magistrate orders that it be held”.166

4.69 The Evidence Act 1995 (NSW)167 provides that “visual identification evidence” adduced by the prosecution is not admissible unless an identification parade including the defendant was first held. The parade is not required if “it would not have been reasonable to have held such a parade”. The Act then contains a non-exclusive list of matters which can be taken into account by the court in determining whether it was reasonable to hold the parade. There is no mention of intellectual disability or the appearance of the defendant. However, the Act also provides that “[i]t is presumed that it would not have been reasonable to have held an identification parade if it would have been unfair to the defendant for such a parade to have been held”.168 This appears to provide sufficient scope for the police to decide not to hold an identification parade if there is the likelihood of unfairness to the suspect. 4.70 Submissions on this issue were varied. Victoria Police, for example, commented: “[i]f there is doubt in relation to identification evidence as a result of the parade it is considered that it should be a matter for the court to direct of the danger of such identification evidence rather than remove such an investigatory process”.169 The New South Wales Police Service agreed that no identification parade should proceed if there was the likelihood of unfairness to the suspect, and noted the protections provided by evidence legislation.170 The DPP thought that this issue was sufficiently covered by the Instructions, and added that if there was no identification parade, for reasons of unfairness, police should not be criticised in court.171 IDRS supported the proposal, adding that identification parades are often particularly distressing for people with an intellectual disability.172 Other submissions supported the proposal without detailed comment.173

4.71 Despite the provisions in the Evidence Act 1995 (NSW) and the Instructions, the Commission believes the police should be warned in a Code of Practice about the possible unfairness of

identification parades for a person with an intellectual disability. The Commission therefore recommends that the Code of Practice should include a recommendation that identification parades should not be used for people with an intellectual disability in circumstances where unfairness to the suspect is likely to result, owing to the unusual manner or appearance of the particular suspect. This is consistent with the provisions of the Evidence Act 1995 (NSW) and the Instructions.

Recommendation 6(h): Bail

4.72 Refusal of bail and being remanded in custody may lead to particular difficulties for people with an intellectual disability. For example, it has been argued that, given that such a person’s social ties and supports “may be especially fragile” and that their disability can be a disadvantage in finding

employment and accommodation, the negative effects of a period in remand may be substantial and long-term.174 In custody the accused with an intellectual disability is especially vulnerable to

discrimination and assault.175 Further, the special difficulties for lawyers in obtaining instructions from persons with an intellectual disability are exacerbated under custodial conditions by security measures, a lack of privacy, and the difficulty of a trusted friend or relative attending any conference.176 Therefore, it is important to consider the effect of the current provisions for the determination of bail for people with an intellectual disability.

4.73 In practice, the majority of bail determinations are made by police.177 There is a right to bail (with or without conditions) for certain minor offences defined by the Act.178 This right is negated where, amongst other reasons, there has been a previous failure to comply with a bail undertaking or condition imposed in respect of the offence; or the person is, in the opinion of the authorised officer or court, incapacitated by intoxication, injury or use of a drug, or is otherwise in danger of physical injury or in need of physical protection.179 There is a presumption in favour of bail for all other offences, apart

from certain listed offences, including murder and certain drug and domestic violence offences.180 Bail is granted or refused according to criteria set out in s 32 of the Bail Act 1978 (NSW). People with an intellectual disability may lose their right to bail under s 8, or fail to satisfy the criteria of s 32, by:

being unable to understand the requirements for bail;181

having a history of failing to comply with bail undertakings, for example, owing to lack of understanding or poor organisational skills;

being mistaken for a person who is under the influence of alcohol or a drug owing to the person’s behaviour;182 or

having unstable living conditions or no family or community support.183

4.74 Bail conditions, such as reporting weekly to a police station or limitations on movement, may be more difficult to comprehend and comply with for the accused with an intellectual disability. Additionally, the person’s likely low income or reliance on social security benefits may disadvantage him or her, as few of the possible conditions under which bail can be granted are non-monetary.184 Of the non- monetary conditions which may be imposed, one provides for an “acceptable person”,185 acquainted with the accused, satisfying the police that he or she considers the accused to be responsible and likely to comply with any imposed conditions.186 A lack of community ties and an unwillingness to disclose intellectual disability may restrict the number of persons that an accused with an intellectual disability would be willing to nominate as an acceptable person. Additionally, it has been suggested that the person with an intellectual disability may not wish to produce a case manager or a workshop manager as an acceptable person because of fear that they will lose their accommodation or position if the existence of a criminal charge is known. Even if a welfare worker or “citizen advocate” is available, their role often is limited to giving support.187 Indeed, it has been stated that some government departments specifically prohibit their welfare worker employees from acting as surety or as an “acceptable person” for their clients.188

4.75 Submissions to the Commission have called for more effort to be taken to ensure that a person with an intellectual disability understands and can comply with bail conditions: “[f]or example if the person is required to report to the police, does the person understand the reporting requirements and does the person have access to the resources required to comply with the requirements such as access to transport and money?”189 Apart from requirements relating to the provision of written information before the bail determination,190 and the requirement for an acceptable person to be warned of penalties for giving a false acknowledgement,191 there is no requirement in the Act, Regulations or Instructions that any conditions imposed on an accused be clearly explained before an undertaking is entered or acknowledgement sought. The continued presence of the support person is therefore likely to be important in explaining the conditions.

4.76 The Commission therefore proposed that police should be required to take an accused’s intellectual disability into account in determining bail and bail conditions. The New South Wales Police Service argued that this proposal is unnecessary as the issue is adequately covered by s 32 of the Bail Act 1978 (NSW), which requires police to take into account the accused’s understanding, residential and employment status. The Service did not present any other objections to the proposal, apart from its usual lack of support for a Code of Practice.192 Generally, the proposal was supported.193 IDRS, however, was concerned that police could use this proposal to defer bail for people with an intellectual disability owing to their lack of understanding.194 The Commission does not believe that it should change its proposal and therefore recommends that the Code of Practice set out a duty for police to take an accused’s intellectual disability into account when setting bail conditions - for example, assessing the likelihood of the accused understanding and complying with bail conditions; the importance of the accused’s residential and employment status in that assessment; and the relative burden upon the