SA Chief Justice says
The Chief Justice of South Australia has responded to mounting concerns about the way people with an intellectual disability are treated by the justice system. Support groups have called for translators to be introduced in courts to enable disabled victims to give evidence. But Chief Justice John Doyle says that would require major changes to the Evidence Act.
Source: PM | Duration: 4min 30sec
EMILY BOURKE: The Chief Justice of South Australia has responded to mounting concerns about the way people with an intellectual disability are treated by the judicial system.
A number of cases of alleged sexual assault against people with an intellectual disability have been dropped because the victim had trouble communicating what happened to them.
Support groups say this effectively makes disabled people a target for sexual predators, and they've called for translators to be introduced to the court system to enable disabled victims to give evidence.
But Chief Justice John Doyle says that concept is problematic and would require major changes to the Evidence Act.
South Australia's Attorney-General John Rau is looking at the issue as part of a review of the Act, and will present his recommendations to Cabinet soon.
The Chief Justice John Doyle spoke to Nance Haxton.
JOHN DOYLE: I think the only solution is really a major change in the law because under the law as it stands, as I understand it, if the victim simply cannot give evidence at all, then in that setting there wouldn't be a case to go to trial at the moment. But that's the one that is difficult to solve, I think it would take legislation by Parliament to enable a case to proceed and Parliament would have to establish a regime for that.
NANCE HAXTON: It has been raised by some of the community groups that if a person was blind they've have assistance in court, if they were deaf they've have an interpreter; why is it different in this case for persons with an intellectual disability?
JOHN DOYLE: Well, the blind person, the only assistance that person would ordinarily need would be guidance I suppose into the witness box and then the blind person can speak, which is the basic thing you need from the victim for the victim to say what has happened.
With a deaf person all you need is someone to either sign or in some other way tell the deaf person what he is being asked and then perhaps, like a language translator to translate that person's answer.
When we get to people with profound disability what you're postulating I think is someone who steps into the witness box and says I'm going to tell you what the victim would say if the victim could speak. And when we bear in mind that there we're saying if the victim could communicate, we're really allowing that person to become, I suppose the source of the allegations, because how does one check whether that person understood what the victim would say if the victim could speak. It's a fundamentally different problem.
NANCE HAXTON: Is there room for consideration of something such as an expert witness; someone with expertise in that disability who perhaps could even stand with that person on the box to explain what they're saying maybe through a board or through their limited sign language?
JOHN DOYLE: But if we're talking of someone who is seriously impaired who cannot communicate at all and I don't mean just physically, I mean someone who's got an intellectual problem, we're back to the expert you postulate saying if that person could communicate, this is what I believe that person would be saying.
So, we are in effect allowing the witness now to be not just an intermediary for the handicapped person to tell his or her story but to tell the story. And I'm not saying... well obviously that could be achieved by legislation but it would be a very significant change in the law and would require very careful working out. And that assumes that there are people there with the expertise and I don't know whether such people exist or not.
NANCE HAXTON: Is there a danger, I suppose, if this issue isn't dealt with though that there is essentially a trickle down effect where the police know that there's very little prospect of prosecution and perhaps don't investigate these cases as fully as they could or should?
JOHN DOYLE: Oh, more than a danger; I mean it's almost certain. I mean, if you had an allegation let's say by a carer or a parent, that their severely handicapped child had been dealt with in an inappropriate fashion, I assume in that case the police would say well there is no point in us conducting a full investigation because we know that without any evidence at all from the victim the case cannot proceed.
NANCE HAXTON: But does that even make this more important to look at because if it's not dealt with it makes disabled people more vulnerable to abuse?
JOHN DOYLE: I agree. I think it does make them more vulnerable because they cannot speak for themselves, so it certainly warrants consideration and I'm sure that's the reason why the Attorney-General has set up a review of the law on this topic.
EMILY BOURKE: That's South Australia's Chief Justice John Doyle speaking there to Nance Haxton.