Extending witness intermediary schemes to vulnerable adult defendants

ABSTRACT

Australian States and Territories continue to reform criminal procedure to provide assistance to vulnerable witnesses in an attempt to ensure they provide the best possible evidence. In response to the 2017 recommendations by the Royal Commission into the Institutional Responses to Child Sexual Abuse’s Criminal Justice Report, there has been a consistent move towards provision of witness intermediaries. Provision exists for such assistance in every State and Territory except the Northern Territory. Tasmania and Queensland have introduced such assistance most recently (in March and July 2021, respectively). So far only two jurisdictions – the Australian Capital Territory and South Australia – make any provision for intermediary assistance for vulnerable defendants. This article argues that because of the over-representation of mental health disorder and cognitive disability in the criminal justice system, and the impact this may have on the ability for defendants to be tried in a human-rights consistent manner (including the risk of wrongful conviction), intermediary assistance should also be available to defendants nationally. The experience of selected countries that already provide intermediary assistance to defendants (United Kingdom, Northern Ireland and New Zealand) will be outlined to assist with such reform.

KEYWORDS:

• Intermediaries
• vulnerability
• mental illness
• fair trial
• communication assistance

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 For the purpose of this article, the terms defendant and accused are used interchangeably as is the case in the jurisdictions considered by the article.

2 For a discussion of cross-cultural communication barriers in the criminal justice system more generally see MacFarlane & Stratton, 2016, pp. 310–313.

3 For a discussion of intermediary schemes in Australia that apply to children see, for example, Cashmore & Shackel, 2018.

4 It has been argued elsewhere that consistency would best be achieved by including intermediary schemes in the Uniform Evidence scheme (Mackay & Giuffrida, 2020, pp. 150–153).

5 The specific phrase people with a ‘mental health or cognitive disability’ has been taken from a University of New South Wales project that tracked a cohort of individuals with MHCD through the criminal justice system in the state of New South Wales and concluded in 2012. This project then shifted to focus specifically on Indigenous Australians with MHCD using the same data set because a quarter of the cohort were Indigenous (Baldry et al., 2016, p. 10. For more detail see Baldry et al., 2015).

6 For a more detailed discussion see Mackay, 2015.

7 Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008). Australia ratified the CRPD on 17 July 2008.

8 International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976). Australia ratified the ICCPR on 23 November 1980.

9 There is no equivalent study interviewing communication assistants who have assisted with adult trials (Howard et al., 2020b, p. 13).