Discovery

The International Organization for Standardization (ISO) is reported to be setting up an 'e-discovery committee' to develop standards for e-discovery procedures. Establishment of the committee has some support from the United States, UK, Italy, Japan and South Africa.

The expectation appears to be that the standard “would provide guidance on measures, spanning from initial creation ... through its final disposition which an organization can undertake to mitigate risk and expense should electronic discovery become an issue”. The proposed standard would leverage ISO 9001, concerned with quality management practices. ISO 9001 defines minimum requirements for an enterprise’s Quality Management System and is supposedly used by more than 1 million businesses in over 180 countries.

Proponents of the standard - which might go beyond an agreement to disagree - conceptualise e-discovery as an engineering issue susceptible to standardisation. Critics have unsurprisingly indicated that standardisation is misplaced, given jurisdictional differences, technological changes  and different litigation requirements.

A draft report would apparently be submitted in July this year, followed by a comment period beginning in August.

Coroners

The Australian Inquest Alliance (30 coronial advocates, researchers, academics and policy/law-reform workers from across Australia) has released the 83 page report Saving lives by joining up justice: why Australia needs coronial reform and how to achieve it [PDF] under the auspices of the Federation of Community Legal Centres.

The Alliance's Australian Coronial Reform Project  has two main aims: reform of Australia’s coronial system, and establishment of a National Inquest Clearing House.

We need coronial reform across Australia so that all states and territories have independent and effective coronial systems that learn from past deaths in order to prevent future avoidable deaths. System responses must also effectively address social justice issues if they arise from particular deaths. Coronial reform should include consistent best practice support and sensitively facilitated participation of families in investigations, inquests and all other aspects of the required systemic response. We also need to establish a National Inquest Clearing House to facilitate effective coronial systems and enhance the participation of families. 

Part 1 of the report outline a case for national coronial reform-

The coronial system has a distinctive place in Australian legal practice. Coroners investigate certain types of deaths, such as those that are sudden, unexpected or violent. In some cases, the coroner also presides over an inquest, which is a court hearing that is usually public. Coroners are required to discover the truth about a death - generally, who the deceased was, how they died, and the circumstances of their death. This process means investigating not only the immediate but also the underlying causes of death. Coronial investigations and inquests are formally inquisitorial (truth-seeking) rather than adversarial (against someone), and are not bound by the rules of evidence and procedure in other courts. Instead, coroners take a broad public health approach, which means that in a best practice investigation the focus is on drawing any relevant systemic lessons from the death in order to try to prevent, or at least minimise the chances of, similar deaths occurring in the future. Systemic issues can arise from contexts as diverse as those involving faulty products, medically related deaths, industrial accidents, the treatment of persons in custody and care, or the way that governments respond to family violence. Coronial investigations therefore often also have social justice implications. Families seeking some comfort from investigations and inquests, along with advocates working to oppose systemic injustices, expect comprehensive coronial findings and appropriately targeted recommendations as the key to preventing similar deaths in the future.

Each Australian state and territory has its own coronial legislation, court and office support. As a result, the official procedures for inquiring into a death, following up on any systemic issues, and providing information to families and the general public can differ between jurisdictions. When it comes to providing publicly accessible, clear and thorough information about the outcomes of coronial investigations and inquests, there is also considerable variation across states and territories. In some jurisdictions, information is simply not available. Under-resourcing of Coroners Courts and Offices also hampers their ability to provide public information and to cooperate with external researchers and advocates. While the National Coronial Information System is a very valuable tool, it is only automatically accessible to coroners, and other potential users must seek approval to use it and in most cases pay a significant fee.

Nevertheless, in all state and territory jurisdictions, procedures and standards for coronial investigations and inquests are required to adhere to Australia’s international treaty obligations to respect, protect and fulfil the human right to life. Best practice approaches to inquests that have been developed in the last few decades therefore focus on the goals of truth, fairness, accountability, healing and an increased emphasis on prevention. Best practice consequently also requires independent inquiry into system failure and identification of any institutional responsibility and systemic issues to be backed up by appropriately directed practical recommendations to prevent future deaths. In reality, however, many families who have lost loved ones experience the coronial process and its aftermath as traumatic, mystifying, frustrating and disempowering. The human rights standard that coronial investigations be independent is also not usually adhered to when police are potentially implicated in a death. Another common source of anguish for family members concerns the considerable time that can elapse between when a death is first discovered and when coroner’s findings are made. Delays of up to five years are not uncommon, and in 2011–12, no state or territory reached the national standard for acceptable backlog of cases. Many other difficulties experienced by families are due to a general failure across jurisdictions to fully implement into practice the right of families to participate in coronial processes concerning their loved ones.

The content of coronial recommendations and their potential influence on death prevention are of particular concern to family members and advocates. Although there have been recent reforms in several states and territories, the emphasis on prevention and on the role of coronial recommendations varies considerably. Coroners also often have little assistance to help them formulate their findings and recommendations.

Families and advocates also need to know what responses have been made by government departments and other agencies to coronial recommendations addressed to them, together with information about how recommendations are being implemented, and how implementation will be monitored to ensure that avoidable deaths are prevented in the future. However, most states and territories do not legally require responses to all coronial recommendations in their jurisdiction, meaning that particular recommendations may never be followed up, and can even be lost. In most jurisdictions it is also difficult to find public information about whether recommendations are responded to, and in what manner.

Due to a lack of monitoring and little in the way of collection of information about implementation, it is difficult to assess the impact of coronial recommendations upon the prevention of deaths in Australia, either generally or in relation to any particular kind of death. Jurisdictions that mandate responses to recommendations are likely to have a better rate of implementation. However, in general, implementation of recommendations is an ad hoc process. Whether or not particular recommendations are implemented is influenced by the way in which recommendations are framed and targeted by coroners, whether implementation accords with government policies and priorities, and whether a proactive system for review of recommendations exists within the targeted organisation. Other relevant factors include media, family, community and advocacy group pressure.

Coroners may therefore make potentially life-saving recommendations, only for them never to be responded to or implemented, with no follow-up and no public awareness of what has happened. Within any particular jurisdiction, even where recommendations are implemented, this may not happen in time to prevent other similar deaths. The present patchwork system also means that even though coroners may be sharing information across Australia, government and other agencies in one jurisdiction are unlikely to learn effectively and in a timely way from a death, or even a pattern of deaths, in another jurisdiction. This is evident even in contexts where there are clear national ramifications, such as deaths in custody. For this reason, the Royal Commission into Aboriginal Deaths in Custody recommended reform of the state and territory coronial systems. However, over 20 years later, none of the Royal Commission’s recommendations have been implemented in a systematic, nationwide manner. The piecemeal approach to death prevention means that there are other striking examples where lessons have failed to be learned across and even within jurisdictions, resulting in more avoidable deaths. The systemic failure that led to the death is often perpetuated due to an inability of governments and other entities to respond effectively. One tragic illustration is the example of blind cord deaths, where infants are accidentally strangled or hanged due to becoming entangled in a blind or curtain cord. Despite the risks having been raised by coroners and researchers for many years, infants have continued to die, and even now it is unclear whether all states and territories have implemented ongoing community campaigns and strategies to render safe those blinds and curtains that are already installed. Blind cord deaths therefore starkly demonstrate the lack of clear recommendation and implementation pathways across states and territories, together with, in most jurisdictions, few if any mechanisms to monitor the progress of recommendations, and consequently little in the way of public accountability.

This report makes recommendations aimed at ‘joining up’ independent and effective coronial systems across Australian jurisdictions, in order to enhance death prevention via learning from past deaths.

While there are some limited opportunities to contribute to joining up justice at the state and territory level, State, Territory and Commonwealth Governments are increasingly recognising that in order to more effectively and consistently address many legal and social issues in Australia, a federally coordinated, cross-border approach of some kind is needed. We discuss the examples of national initiatives to better prevent and respond to violence against women and children, the coronial recommendations and Federal Government response concerning the death of Dianne Brimble, and proposals to centrally record coronial recommendations and share information across states and territories concerning family/domestic violence homicides.

Greater emphasis on prevention must be accompanied by best practice support and sensitively facilitated participation of families in investigations, inquests and all other aspects of the required systemic response.

Part 2  discusses how families need legal representation and other support in order to be able to exercise their human rights to fully participate in the inquest.

legal assistance is often not affordable, and appropriate support is not always available. Within the limits of accessible public information, we paint a picture of the legal assistance currently available for families, and describe the role of various public legal service providers. The reality for many families is that they may not even be aware that they have the right to a lawyer, let alone be able to obtain legal help throughout the process. We therefore make recommendations that aim to ensure equity in legal assistance for families in the inquest process and coronial-related matters.

Public interest organisations also play an important role in supporting and advocating on behalf of families, or raising prevention issues as interveners, yet their involvement is often limited by lack of resources. The Paper therefore goes on to outline why a new national non-government organisation - a National Inquest Clearing House (NICH) - is needed to consolidate and share the knowledge and understanding gained by legal assistance providers over many years. In playing this ‘joining up’ role, the NICH will both enhance inquest representation for families and community organisations, and improve the coronial process by consolidating and sharing knowledge in order to focus on prevention of avoidable deaths.

We hope that stakeholders will work with us in developing and advocating for the directions and strategies we should use to support ‘joined up’ independent and effective coronial systems across Australian jurisdictions - systems which facilitate learning from past deaths in order to prevent future avoidable deaths, and which provide enhanced support for families at all stages of the coronial process.

The Alliance makes several recommendations -

1. All State and Territory governments should act to adopt core best practice and guarantee that the preservation of life is central to their coronial systems, by introducing, as appropriate to the jurisdiction, prevention and reporting amendments to their coronial legislation. These amendments should include or have the effect of:  a preamble that expresses the role of the coronial system as involving the independent investigation of deaths, for the purpose of finding the causes of those deaths and to contribute to the prevention of avoidable deaths and the promotion of public health and safety and the administration of justice, across Australia; purpose and objects provisions that include the prevention of avoidable deaths through the findings of the investigation, and the making of findings, comments and recommendations, by coroners; a provision empowering coroners to make comments and recommendations on any matter connected with a death investigated at an inquest, including public health or safety and the administration of justice; and a provision empowering coroners to make recommendations to any Minister, public statutory authority or entity.

2. The Commonwealth Government should work with State and Territory governments to achieve a uniform national coronial public reporting and review scheme for coronial findings and recommendations which:  guarantees that all coronial recommendations will be considered and meaningfully responded to by the government agencies or entities to whom they are directed (updates on progress towards implementation should be provided by the relevant agency or entity where the initial response was only a holding response);  provides ready public access to all coronial findings, recommendations, responses and updates;  records and makes publicly available (including via a Coroners Annual Report to the relevant State or Territory Parliament and on the Internet) whether or not coronial recommendations have been implemented by responsible government agencies or entities;  enables evaluation of the impact of coronial recommendations upon the prevention of deaths;  adheres to timeliness at every step of the recommendations process; and · provides feedback to families (including a copy of recommendations and responses to families, other parties and legal representatives) at every step of the recommendations process.

3. As an important element of Recommendation 2, State and Territory Governments should:  appoint coronial liaison officers to enable public sector agencies to respond to coronial recommendations in a timely and appropriate manner; and  allocate, for each jurisdiction, the responsibility for monitoring the implementation of coronial recommendations to an independent statutory body adequately resourced for the task and with powers to alert government and public about any key implementation issues.

4. The Commonwealth Government should work with State and Territory governments to enable each jurisdiction to effectively recognise the international human rights obligation to respect, protect and fulfil the right to life by introducing, as appropriate, amendments to their coronial legislation so that coronial investigation is independent, appropriately and adequately resourced, and considers systemic issues. In particular, in investigations into deaths in police custody or in the course of police operations, the agency conducting the primary investigation at the direction of the Coroner must have practical, institutional and hierarchical independence from the police.

5. Primary and secondary coronial legislation in the various jurisdictions should be amended or introduced in recognition of the principle that participation of families in the inquest process is a fundamental component of Australia's international human rights obligations. Specifically, reforms must enable families and friends of the deceased to experience the coronial process in as sensitive, timely and fully informed a manner as possible, regardless of the circumstances of the death. These reforms must include:  provision of proper and timely notification of family members and proactive provision of accessible, timely and explanatory information, at every stage of investigation and inquest processes. This should include as comprehensive as possible access to police and coronial documents, and accessible material on families’ legal rights;  no unreasonable delays in investigations and inquests; resolution of any cultural or spiritual conflicts raised by the coronial process;  recognition of the need to have Aboriginal and Torres Strait Islander legal and health services and communities involved in the coronial process; and provision of quality, accessible, and culturally and spiritually appropriate support and counselling services for families.

6. All States and Territories should establish or continue funding for their own Coroners Prevention Unit similar to the current Victorian model, including funding to facilitate an effective role for the Unit in the reforms in Recommendations 1-5.

7. State and Territory Governments should adequately fund their Coroners Courts with the aim of reducing delays in inquests, investigations and the delivery of findings, in order to at least conform to current national standards.

8. The remaining recommendations of the National Report of the Royal Commission into Aboriginal Deaths in Custody (1991) must be implemented.

9. As a fundamental component of Australia's international human rights obligations under the right to life, funding and availability of legal assistance providers must be sufficient to enable all families to obtain, without financial hardship, effective legal advice and representation for investigations and inquests, at a level that is consistent with the level of legal representation accorded to government and other institutional parties in the inquest. A specific pool of funds should be made available to enable community legal centres to provide legal representation for families at inquests.

10. Legal assistance services must be sufficient to enable all advocacy organisations with a sufficient interest to intervene in inquests, as a fundamental component of Australia's international human rights obligations under the right to life.

11. An independent National Inquest Clearing House, along the lines of INQUEST (UK), should be established and adequately funded.

Guignol

More than a dash of the gothicks in The Queen v Nelson [2013] VSC 72 -

Having so armed yourself with the Luger pistol and ammunition, you attempted to ascertain the whereabouts of Gregory Nelson. You first called one of your sisters, then spoke to one of your brothers-in-law, then searched on-line, then combed the White Pages telephone directory and, ultimately, made a number of telephone calls in an endeavour to find him. But those efforts were to no avail. 

Not to be denied a target, however, you then set out to ascertain the whereabouts of the deceased and, having located his address in the White Pages telephone directory, you drove immediately to his home. Along the way, you stopped and purchased a Melways street directory to guide you to the property. 

You arrived at the deceased’s home at 8.15pm and he answered the front door to you. Although surprised to see you, he bid you inside and introduced you to his wife. You engaged in pleasantries and inconsequential conversation for a while and then made to leave. As you stood up to go, you induced him to step outside with you by asking him to inspect some minor panel damage to your car. Then, as he stood in the road in front of the car with his wife nearby, you reached in through the driver’s door, took out the Luger pistol and emptied three rounds into him at very close range. As you did so, you said: ‘This will teach you, you bastard, for everything you’ve done’. 

The deceased collapsed on the road, as his wife stood by screaming, and you drove off in your car. The deceased’s neighbours came to help and emergency services were called but the deceased could not be revived. Upon later post-mortem examination, it was found that the three bullets which you fired had penetrated his heart, lung, stomach, bowel and kidney, causing acute blood loss and internal organ trauma secondary to multiple gunshot injuries to the chest region from which he had died.

Nettle JA states that

Your murder of the deceased is a grave offence. It was calculated and premeditated and it was committed with a fearsome weapon on an unknowing and unarmed man outside his own home, in a public street in plain sight of his wife. It is an outrage that any man should presume to take it upon himself to act as judge, jury and executioner of another, and still more offensive that such an execution should be carried out in the manner which you effected. It is worse still that a man of your age, experience and maturity, who should know the inestimable value of human life better than most, has offended in that fashion. Whether or not the deceased was a paedophile, and there is no proof that he was, you had absolutely no right or justification for doing what you did. 

The law is jealous to show tolerance to vigilantes and assiduous to deter them. As Winneke P said in Director of Public Prosecutions v Whiteside and Dieber, those who take the law into their own hands and inflict punishment on others whom they suspect of committing offences must expect condign punishment.

The Court concluded

Finally, it is to be noted that, if you had not had a cache firearms in your home, the deceased might still be alive. One may wonder, therefore, why the law allows people like you to keep firearms, especially a semi-automatic pistol, anywhere near at hand. Although you bear ultimate responsibility for the death of Graeme Benney, I regard the present state of firearms control regulation as anything but blameless.

Disability and the Victorian Justice System

The 418 page report [PDF] of the Victorian Parliamentary Inquiry into Access to and interaction with the justice system by people with an intellectual disability, their families and carers recognises that "people with an intellectual disability or cognitive impairment experience a number of significant disadvantages that may increase the likelihood that they will come into contact with the justice system".

The report highlights

• the importance of accurate data to quantify the level of involvement that people with an intellectual disability or cognitive impairment have with the justice system; 
• the link between social and economic disadvantages and potential contact with the justice system; 
• the limited awareness by the community and justice system personnel of common indicators of intellectual disability or cognitive impairment; and 
• the importance of adequate, accessible and effective services and supports for people with an intellectual disability or cognitive impairment, both while in the community and during their transitions through the justice system. 

It concludes that

Common life experiences of people with an intellectual disability or cognitive impairment include: increased dependence on others to complete daily activities; limited education, training and employment opportunities leading to financial constraints or dependence on social welfare; and increased social isolation. The degree to which these disadvantages affect a person varies from person to person and may be ameliorated through the provision of appropriate support.

Data quantifying the involvement of people with an intellectual disability or cognitive impairment in the justice system is not collected in a systematic way. Data from correctional settings suggest that between 1.3 and 2.5% of the prison population may have an intellectual disability, while cognitive impairments such as acquired brain injuries (ABI) may be present in up to 42% of male prisoners and 33% of female prisoners respectively.

Compared to population estimates of the incidence of these impairments, it appears that people with an intellectual disability or cognitive impairment are overrepresented throughout the justice system. The absence of comprehensive data about the involvement of people with an intellectual disability or cognitive impairment in the justice system has consequences for determining what services and supports should be made available. The delivery of services and supports for people with an intellectual disability or cognitive impairment could likely be improved if better data on their interaction with the justice system was available.

Definitions for ‘intellectual disability’ typically emphasise different aspects of intellectual, functional and adaptive abilities that a person exhibits during his or her developmental years. For clinical purposes intelligence quotient testing is frequently used to define intellectual disability, with scores of less than 70 indicating a degree of intellectual disability. In Victoria, the Disability Act 2006 (Vic) adopts similar clinical approaches to defining intellectual disability.

Clinical definitions of intellectual disability are useful for diagnosing the existence of intellectual disability. However, they may be of limited use when considering how the justice system should respond to the needs of a person with an intellectual disability and for determining the capacity of a person to understand and exercise his or her legal rights.

In Victoria a distinction is made between intellectual disability and cognitive impairment when determining what services and supports should be provided under the Disability Act 2006. Cognitive impairment tends to refer to a broader range of impairments than encompassed by definitions of intellectual disability, and typically include impairments that arise during adulthood. It is often the case that people with a cognitive impairment have experienced a more diverse range of lived experiences than people with an intellectual disability.

However, depending on how and when the disability manifested people with an intellectual disability and people with a cognitive impairment may experience similar difficulties when seeking access to and interacting with the justice system. Difficulties with recall, comprehension and expressive language may be experienced by people with either impairment. These difficulties suggest that appropriate measures should be adopted to ensure equitable and effective access to justice both by people with an intellectual disability and by those with a cognitive impairment. The Committee’s recommendations aim to achieve greater parity in services and supports available to people with an intellectual disability and people with a cognitive impairment.

The provision of services and supports to people with an intellectual disability has changed dramatically over time. In the 1970s and 1980s treatment and care was generally moved from custodial settings to community-based support and the provision of specialised services. Now the legislative and policy framework governing the provision of services and supports to people with an intellectual disability encompasses a range of national and Victorian strategic policies, the Disability Act 2006, the Charter of Human Rights and Responsibilities Act 2006 (Vic), and international treaties and conventions. This framework articulates principles and objectives for the delivery of services and supports to all people with a disability.

Disability services are provided by a range of groups and organisations including government departments, community service organisations, advocacy groups, and families and carers. These services can help alleviate the effect of a disability on a person and therefore encourage greater and more effective participation in the community. Access to services provided by the Department of Human Services and community organisations is often inhibited by resource constraints and eligibility criteria. The Committee makes a number of recommendations calling for the Victorian Government to examine the availability of resources for existing services and supports, to ensure that all people with an intellectual disability or cognitive impairment are able to access services as required. The Committee recommends that specialist case management services, drawing upon comparable services available to people with an intellectual disability, be made available to people with a cognitive impairment.

A person with an intellectual disability or cognitive impairment may require the support of a number of different service providers at one time. Consequently, the level of coordination and collaboration between agencies that provide services and supports to clients may be disjointed. The Committee recommends that measures be taken to coordinate the delivery of services to people with an intellectual disability or cognitive impairment. Key measures may include: an outline of available services and supports in the community; clarification of agency roles and responsibilities; and the establishment of guidelines to inform the exchange of information between agencies.

The manner in which people with an intellectual disability or cognitive impairment interact with the police often sets the scene for how a person manoeuvres through the justice system. The Committee heard that improving police officers’ ability to identify people with an intellectual disability or cognitive impairment could substantially improve subsequent interactions of those people with the justice system.

When police do not recognise the presence of an intellectual disability or cognitive impairment, existing service and support mechanisms may not be offered. Currently the Victoria Police Manual defines ‘mental disorder’ widely to encompass mental illness, intellectual disability, ABIs and neurological conditions. Given inherent differences between these conditions, the Committee recommends that the Manual be amended to distinguish between these impairments and provide guidance on common indicators and appropriate responses.

At present police training offers opportunities to enhance disability awareness, but does not differentiate between different disabilities. While acknowledging available training for police officers, the Committee considered there was some need to enhance training in the identification and interaction with people with an intellectual disability or cognitive impairment.

A person identified as having an intellectual disability, ABI, dementia or mental illness is entitled to the support of an independent third person (ITP) during police interviews. The role of the ITP is to ensure that as far as possible the interview proceeds in a way the interviewee understands. The ITP program is funded and delivered by the Office of the Public Advocate. The Committee recommends that the obligation to arrange for an ITP be be reaffirmed in the Victoria Police Manual to ensure that ITPs are present for
interviews where appropriate. Concerns were also expressed about the adequacy and availability of ITPs given the voluntary nature of the ITP role.

Legal language can often be incomprehensible to people with an intellectual disability or cognitive impairment. The Committee heard that more simple and plain English format documents outlining legal rights and processes should be available, to minimise opportunities for a person with an intellectual disability or cognitive impairment to come into inadvertent and adverse contact with the justice system because he or she is unable to access information regarding legal rights and responsibilities. The Committee recommends that the Victorian Government develop a comprehensive community education campaign targeted towards people with an intellectual disability or cognitive impairment, to increase knowledge of legal rights and responsibilities.

A person with an intellectual disability or cognitive impairment may have limited financial means and as such may come to rely on legal services provided through community legal centres and Victoria Legal Aid. The Committee recognises that demand for services provided by community legal centres and Victoria Legal Aid often exceeds their resource capacity and accordingly recommends that the Victorian Government ensure people with an intellectual disability or cognitive impairment are able to access these services when required.

Lawyers interacting with a client with an intellectual disability or cognitive impairment may have difficulty identifying that the client has an impairment. It is important for a lawyer to correctly identify the presence of intellectual disability or cognitive impairment, in order to ensure that instructions are taken in an appropriate manner, and that evidence is presented appropriately in court. The Committee recommends that guidance material outlining indicators of intellectual disability or cognitive impairment, issues prosecuting and defending clients with an intellectual disability or cognitive impairment, appropriate communication techniques, and supports available in the community should be distributed to members of the legal profession. As a further measure to improve lawyer’s interactions with people with an intellectual disability or cognitive impairment, the Committee believes that there is merit in allowing an independent support person, similar to that of an ITP in police interviews, to be present when a lawyer is interacting with a client with an intellectual disability or cognitive impairment.

The Committee heard a number of concerns regarding the operation of the Crimes (Mental Impairment and Unfitness to Stand Trial) Act 1997 (Vic), particularly around the procedures adopted by the courts when examining an accused’s fitness to stand trial. The Committee urges the Victorian Government to consider:

• amending the Act to allow a trial judge, as opposed to a specially appointed jury, to determine an accused’s fitness to stand trial; 

• whether additional considerations should be taken into account by the courts when investigating an accused’s fitness to stand trial, for example, whether an accused can rationally respond to the charges against them or exercise their procedural rights; 

• whether the jurisdictions of the Magistrates’ or Children’s Courts should be expanded to allow these courts to investigate an accused’s fitness to stand trial; and 

• whether deferring fitness investigations could minimise the complexity of and time involved in conducting both an investigation into an accused’s fitness to stand trial and into their criminal responsibility.

The Committee also considered the defence of mental impairment under the Act. Under the Act ‘mental impairment’ is not defined and instead the courts have relied on the common law insanity defence to interpret the statutory defence. It is the Committee’s view, in order to avoid doubt as to the meaning of ‘mental impairment’, that the Act should be amended to include a definition of the term to encompass impairments commonly associated with the insanity defence.

Therapeutic and problem-solving models of justice have been developed to provide a more positive way of addressing offending behaviour and to encourage active participation in the process. While beneficial, access to specialist courts, lists and programs is often limited to particular courts, locations and to particular categories of defendants. The Committee recommends that the Victorian Government examine the feasibility of expanding specialist courts, lists and programs that are currently available in the Magistrates’ Court of Victoria.

When seeking to give evidence in court a person with an intellectual disability or cognitive impairment may feel alienated and isolated from court proceedings due to difficulties understanding the complex court environment. This can result in assumptions being made about the credibility, reliability and competency of a person with an intellectual disability or cognitive impairment to give evidence in court. With appropriate modifications and supports both prior to and during court appearances, a person with an intellectual disability or cognitive impairment may be able to provide better evidence to the court. Further measures to facilitate effective participation in court proceedings may be warranted, given barriers that may be experienced by all people with an intellectual disability or cognitive impairment when interacting with the court. In other jurisdictions, the provision of witness support during court hearings has been beneficial in terms of providing moral support and assistance with understanding questions to and responses from a person with an intellectual disability. The Committee believes the Department of Justice should explore the possibility of establishing a witness intermediary scheme to assist communications with a person with an intellectual disability or cognitive impairment involved in court proceedings.

The Committee recommends that the courts should be more flexible in the management of cases involving a person with an intellectual disability or cognitive impairment. This could include allowing more breaks during hearings, or creating priority listings in cases involving people with these impairments.

When sentencing an offender the courts are guided by sentencing purposes which include the punishment, deterrence, rehabilitation and denunciation of the offender, and the protection of the community. When sentencing an offender with an intellectual disability or cognitive impairment sentencing purposes of deterrence and punishment may be of less relevance given the impact of the disability on moral culpability, and on the offender’s appreciation of the wrongfulness of the offence. The courts have recognised that traditional custodial sentences such as imprisonment may be particularly inappropriate for offenders with an intellectual disability or cognitive impairment. The burden of imprisonment may weigh more heavily upon such an offender given that he or she may lose access to his or her support networks, and may be more vulnerable to victimisation when in custody. A number of alternative custodial and non-custodial sentencing options are available when an offender with an intellectual disability is being sentenced.

Before determining the type of order to be imposed the courts are able to ask either the Department of Human Services or the Department of Justice to produce a pre-sentence report. The report establishes an offender’s suitability for a particular order and whether necessary facilities exist for their management. Evidence expressed concern about delays in the production of pre-sentence reports, and the consequences of this for treatment and management of offenders with an intellectual disability or cognitive impairment. The Committee recommends that Departments ensure pre-sentence reports are not delayed for people with an intellectual disability or cognitive impairment compared to other offenders.

When sentencing an offender with an intellectual disability to a community corrections order, the courts may impose a justice plan condition. The justice plan outlines, among other things, available services that are designed to reduce the likelihood of reoffending. The option to impose a justice plan condition is not available to the courts when sentencing an offender with another kind of cognitive impairment. Given the similarities in disadvantages, challenges and support needs experienced by people with these impairments, benefits may arise if the courts had discretion to impose a justice plan condition for all offenders with a disability.

The report features the following recommendations -

1: That the Department of Justice, with representatives from Victoria Police, the Office of Public Prosecutions, the courts and the Department of Human Services, establish a centralised database for the collection of statistics on people with an intellectual disability or cognitive impairment who have come into contact with the justice system. The database could include information on: the number of offences in Victoria involving people with an intellectual disability or cognitive impairment, either as victims or offenders;  police reports and prosecution rates for such offences; and  prosecution outcomes.

2: That the Victorian Government commission research to measure the incidence of interactions with the justice system and human services by people with an intellectual disability or cognitive impairment, and to identify opportunities to improve service delivery.

3: That the Victorian Government review available accommodation options to ensure that people with an intellectual disability or cognitive impairment are not denied parole solely due to the unavailability of suitable accommodation.

4: That the Victorian Government consider establishing case management services for people with a cognitive impairment who seek access to or are interacting with the justice system. The development of case management services should draw upon services that are currently provided to people with an intellectual disability, but also be reflective of the different support needs of a person with a cognitive impairment. The role of the case manager could include:  providing continuing contact, support and information for the person;acting as a point of liaison for police, lawyers, courts and corrections; and being involved in the development of a support plan encompassing areas of supervision, accommodation and behaviour skills.

5: That the Victorian Government ensure that clients with a disability who seek assistance from disability advocacy services have adequate access to those services.

6: That the Victorian Government consider establishing a steering committee for the purpose of coordinating Government agencies involved in the care and support of people with an intellectual disability or cognitive impairment who are involved in the justice system. The steering committee should be comprised of senior departmental staff, and report regularly to the responsible Minister or Ministers. The steering committee could:   identify services, needs and support required by people with an intellectual disability when involved in the justice system;   identify the roles of agencies responsible for meeting those needs;  develop interagency guidelines for determining the responsibilities of agencies where there is an overlap in service delivery; and  establish guidelines to ensure that departments and agencies involved in the justice system exchange information where appropriate. These guidelines should take into account relevant privacy and confidentiality considerations and be developed in consultation with the Privacy Commissioner.

7: That Victoria Police develop separate sections in the Victoria Police Manual for guidance on mental illness, intellectual disability, and cognitive impairment respectively, and define appropriate responses for each impairment.

8: That the Victoria Police Manual be amended, with the assistance of the Department of Human Services and the Office of the Public Advocate, to provide guidance on how to identify a person with an intellectual disability or cognitive impairment.

9: That Victoria Police identify and make available a simple indicative screening test for use by police officers when they suspect that they have come into contact with a person with an intellectual disability or cognitive impairment.

10: That Victoria Police record all instances when an Independent Third Person provides assistance to a person during a police interview on the Law Enforcement Assistance Program.

11: That the Victorian Government evaluate the performance of the Geelong Community Support Register, and if benefits from the Register are demonstrated, consider introducing similar registers across Victoria.

12: That Victoria Police make available to police officers regular revision training on issues surrounding interaction with people with an intellectual disability or cognitive impairment. Training could encompass:  techniques to improve identification of people with an intellectual disability or cognitive impairment;  techniques to encourage effective communication with people with an intellectual disability or cognitive impairment;  a component to raise awareness of challenges experienced by people with an intellectual disability or cognitive impairment when they become involved in the justice system;   a component outlining the services available to people who have an intellectual disability or cognitive impairment; and  a component outlining existing operational procedures that aim to provide support to people with an intellectual disability or cognitive impairment during police interviews, such as the Independent Third Persons program.

13: That Victoria Police consider establishing a Disability Liaison Officer position across major metropolitan and major regional police service areas to provide expertise in identifying and appropriately interacting with people with an intellectual disability or cognitive impairment.

14: That the Victoria Police Manual be amended, with the assistance of the Department of Human Services and the Office of the Public Advocate, to provide enhanced guidance on how to improve communications with people with an intellectual disability or cognitive impairment. Guidance could cover:  the need to pitch language and concepts at a level that can be understood;   the need to take extra time in interviewing;  the risks of the person’s susceptibility to authority figures, including a tendency to give answers that the person believes are expected;   the dangers of leading or repetitive questions; the need to allow the person to tell his or her story in their own words;  the person’s likely short attention span, poor memory and difficulties with details such as times, dates and numbers; and  the need to ask the person to explain back what was said.

15: That the Victoria Police Manual be amended to provide enhanced guidance on how to administer a caution to a person with an intellectual disability or cognitive impairment. Guidance could describe:  the comprehension difficulties that a person with an intellectual disability or cognitive impairment may experience in comprehending the right to silence and police cautions;   the possible evidentiary consequences of failing to understand the caution; and   the need for the person to be reminded of the caution during the interview process.

16: That guidance contained in the Victoria Police Manual be enhanced to clarify an officer’s obligation to obtain an Independent Third Person during an interview with a person suspected of having an intellectual disability.

17: That the Victorian Government promote the Independent Third Person program, and review incentives for participation in the program to ensure that enough suitably qualified people are able to perform the duties of an Independent Third Person.

18: That the  Government develop a comprehensive community education campaign to increase awareness of legal rights, court processes, and legal assistance and support by people with an intellectual disability or cognitive impairment, their families and carers. The education campaign should be delivered in disability, community and education settings, and online.

19: That the  Government ensure that specialist community legal centres and other agencies that provide services directly to people with a disability are able to adequately meet demand.

20: That the  Government examine whether financially disadvantaged sectors of the intellectually disabled and cognitively impaired community are able to access sufficient legal aid

21: That the  Government ensure that psychological or psychiatric reports are available to determine whether individuals that come into contact with the justice system have an intellectual disability or cognitive impairment in all appropriate cases.

22: That the  Government support the Law Institute of Victoria and the Victorian Bar to develop and distribute information to their members containing information on how to better interact with, and appropriately respond to, clients with an intellectual disability or cognitive impairment. This information could include:   how to identify intellectual disability or cognitive impairment;   issues involved in prosecuting and representing clients who have an intellectual disability or cognitive impairment;  disadvantages experienced by people with an intellectual disability or cognitive impairment; and organisations that can provide information to assist both practitioners and clients.

23: That the  Government assist the Law Institute of Victoria and the Victorian Bar to develop and distribute information to members on appropriate communication techniques when interviewing a person with an intellectual disability or cognitive impairment. Communication techniques could include that:  the interview be conducted where it is quiet and there are few distractions;  extra time be scheduled for the interview; advice be given in clear, brief sentences and spoken clearly and slowly;  plain English, short words and sentences be used;  the client be encouraged to use their own terminology;  communication by alternative means, for example, using picture boards, be encouraged;  one piece of information and advice be provided at a time; and questions be open ended.

24: That the  Government consider establishing a mechanism to allow appropriately qualified independent support people to attend interviews between lawyers and clients with an intellectual disability or cognitive impairment.

25: That the  Government liaise with the Law Institute of Victoria and the Victorian Bar to consider amending the Professional Conduct and Practice Rules 2005 and the Victorian Bar Incorporated Practice Rules 2009 to require lawyers to discuss with a client with an intellectual disability or cognitive impairment whether the client wishes to have a support person present. If the client does wish to have a support person present, the lawyer should make enquiries as to whether a nominated or independent support person could provide appropriate support for the person.

26: That the  Government support the Judicial College of Victoria to provide more training opportunities for members of the judiciary about best practice management in proceedings involving a person with an intellectual disability or cognitive impairment.

27: That the  Government support the Judicial College of Victoria to develop, in consultation with members of the judiciary and the disability sector, guidance material on how the needs of people with an intellectual disability or cognitive impairment can be identified and appropriately met, including with modifications to court proceedings.

28: That the  Government consider amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) to allow the trial judge to investigate an accused’s fitness to stand trial.

29: That the  Government consider amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) to require the court to determine, when considering fitness to stand trial: 1) the ability of the accused to understand, or respond rationally to, the charge or allegations on which the charge is based; or 2) the ability of the accused to exercise, or to give rational instructions about the exercise of, procedural rights.

30: That the  Government consider amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) to allow investigations into an accused’s fitness to stand trial to be considered in the Magistrates’ and Children’s Courts.

31: That the  Government consider amending the Criminal Procedure Act 2009 (Vic) to ensure that uniform committal procedures are employed when fitness to stand trial is considered by the courts.

32: That the  Government investigate procedures adopted in the United Kingdom for determining fitness to stand trial, with a view to examining whether these procedures could provide for opportunities to resolve determinations of fitness to stand trial in Victoria more expeditiously.

33: That the  Government consider introducing legislation to provide a definition of ‘mental impairment’ in the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) to encompass mental illness, intellectual disability, acquired brain injuries and severe personality disorders, while maintaining criteria for determining fitness to stand trial described in section 6 of that Act and Recommendation 29 above. .

34: That the  Government extend the use of problem-solving court models currently operating in the Magistrates’ Court of Victoria – particularly the Assessment and Referral Court List, the Court Integrated Services Program and the Neighbourhood Justice Centre – across Victorian Magistrates’ Courts in major metropolitan and major regional centres.

35: That Victoria Police require police officers qualified to conduct audio and audio-visual recordings of evidence to receive training on effective communication with people with an intellectual disability or cognitive impairment, and awareness of the kinds of disadvantages experienced by people with an intellectual disability or cognitive impairment when they become involved in the justice system.

36: That the Victorian Government consider establishing a witness intermediary scheme modelled on the United Kingdom scheme to provide support for people with an intellectual disability or cognitive impairment. The role of the intermediary could include:  communicating questions that have been put to the witness;   communicating answers given by the witness in reply to any questions; and  explaining questions or answers as necessary to allow them to be understood by the witness.

37: That the Government review current arrangements for the appointment of litigation guardians. The review could seek to: ensure consistent processes are employed by the courts to appoint litigation guardians;  ensure that a mechanism exists to enable a person with a disability to locate a suitably qualified litigation guardian; and  ensure that organisations currently acting, or required by the courts to act, as litigation guardians are able to draw upon funds to meet adverse costs orders should such orders be imposed by the courts.

38: That the Government consider establishing specialist advocacy roles within the Magistrates’, Children’s, County and Supreme Courts of Victoria to provide support to Magistrates and Judges to manage cases involving a person with an intellectual disability or cognitive impairment.

39: That the  Government examine whether existing mechanisms for giving evidence by alternative means could be expanded, with a view to exploring whether these measures could enhance the level of participation that all people with an intellectual disability or cognitive impairment have in court proceedings.

40: That the Government consider amending the Sentencing Act 1991 (Vic) to clarify the courts’ ability to impose a residential treatment order for ‘serious offences’ and the status of residential treatment orders within the sentencing hierarchy available to the courts.

41: That the Government consider amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) to clarify Departmental responsibility for supervising and monitoring Custodial Supervision Orders and Non-Custodial Supervision Orders.

42: That the Government ensure the Department of Human Services and Department of Justice prepare pre-sentence reports in a timely and efficient manner for people with an intellectual disability or cognitive impairment. 

43: That the Government continue to support Corrections Victoria in providing education, training, and resource programs for Corrections staff working with people with an intellectual disability or cognitive impairment.

Certification scams

The SMH reports that Mark Anthony Buhagiar has pleaded guilty (in Sutherland Local Court) to fraud and using false documents to obtain a financial advantage. (Buhagiar was also charged with common assault after he spat at a Fairfax photographer taking photographs during a break in the hearings.)

Buhagiar charged thousands of dollars to run fake assessments for migrant tradespeople and then supplied forged documents stating the recipients were qualified to carry out electrical tradework.

Buhagiar was sentenced to 18 months' imprisonment with a minimum non-parole period of 13½ months.

His scam was uncovered through discrepancies in signatures on trade certificates.

The SMH notes that

 It was then discovered that Buhagiar had set up an office and a company, and presented himself as a qualified assessor from VETASSESS - an accredited registered training organisation that covers more than 160 trade qualifications in Australia and administers the recognised prior learning scheme for migrants seeking to have their overseas trade qualifications and experience recognised. 

He had been conducting sham assessments targeting male migrants from non-English-speaking backgrounds and charging up to $6000 for the forged certificates. 

Fair Trading officers said he had been engaged in a calculated, premeditated breach of trust. It was argued that the offences were aggravated by his disregard for public safety and the tradespeople could have been responsible for substandard electrical work exposing the public and themselves to real and potential danger. 

Dozens of people were caught by the racket, which netted Buhagiar almost $80,000.

The Australian reports that

"The Independent Commission Against Corruption (ICAC) and the Department of Education and Communities were notified [after initial detection], with the ICAC returning the matter to Fair Trading for further investigation," Fair Trading Commissioner Rod Stowe said in a statement.

Twenty-two applicants were found to have been using fraudulent documents, Mr Stowe said.

He said Fair Trading had since improved its licensing IT system.

In 2009 Buhagiar was in trouble, with one newspaper reporting -

Fair Trading Minister Virginia Judge has warned people not to do business with Mark Buhagiar and his airconditioning company, Five Star Air Pty Ltd.

Ms Judge said the Windsor-based trader had never been issued with a licence by the Office of Fair Trading to contract or undertake airconditioning or gas fitting work.

Mr Buhagiar and Five Star Air were recently fined $93,119 in Parramatta Court for offences under the Home Building Act 1989, including contracting for and carrying out this specialist work and taking excessive deposits, she said.

Fair Trading has previously prosecuted and fined Mr Buhagiar for home building offences.

“There is a serious concern that he and Five Star Air Pty Ltd may continue to act outside the law and fail to provide consumers with the goods or services for which they have paid,” the minister said.

Fair Trading's February 2010 Think Smart newsletter stated that

Acting Minister for Fair Trading, Graham West unveiled a ‘rogues gallery’ of ten unscrupulous traders brought to justice by NSW Fair Trading in 2009.

Mr West said the Government was proud of the results achieved over the last year, and issued a warning that inspections, investigations and prosecutions would continue unabated in 2010.

“Let this ‘rogues gallery’ serve as a warning to anyone who thinks they can treat NSW consumers with contempt,” Mr West said.

Among the individuals and companies successfully prosecuted by NSW Fair Trading in 2009 were:

• Armond Shoostovian – finance broker – convicted under the Consumer Credit Administration Act on 28 July 2009. He was fined $183,600 and sentenced to a 2-year good behaviour bond. 

• Mark Anthony Buhagiar – unlicensed and unqualified gas, refrigeration and air-conditioning fitter – convicted under the Home Building Act on 19 August 2009, fined $18,500. In addition, on 13 November 2009 he was convicted under s.307A for making a false or misleading application and fined $2,000 and placed on a good behaviour bond for 12 months. ...

Questions about vetting by Fair Trading NSW?

Cannadine

From Mark Mazower's FT review of David Cannadine's Undivided Past: History Beyond Our Differences (Allen Lane, 2013) -

 I cannot think of another scholar who has so sweepingly dismissed the whole idea of history as identity politics. 

Let us give him the benefit of the doubt. After all, there is no use denying that however much on the side of the angels historians may be now, in the past they have done their fair share of rabble-rousing. The real issues raised by this book lie at a rather deeper level. Appalled by the Manichean rhetoric that emanated from the Bush administration after 9/11, Cannadine wants us to abandon Us and Them, and to eschew such polarised modes of thought, what he calls “the impulse ... to sunder all the peoples of the world into belligerent collectivities” that has been around as long as mankind itself. 

Yet this Age of Terror emphasis on binaries, on polarisation – between faiths, civilisations or nations – is more than a little misleading. For theorists of nation or class, for instance, those categories were often neither exclusive nor, indeed, terminal. Marxists believed that class struggle was necessary only so long as humanity’s basic goals remained unrealised. Heck, even Proudhon felt that way. The greatest 19th-century theorist of nationalism, the Italian Giuseppe Mazzini, told his many followers that to be a nationalist was to be an internationalist. This was precisely the reasoning that inspired the creators of great global institutions such as the League of Nations to give them the form of clubs of member nation-states and that allowed President Woodrow Wilson, one of Mazzini’s most ardent admirers, to be both a proud American patriot and a confirmed internationalist. 

Overcoming our differences sounds great. It is about as hard to denounce as Christmas. But might there not be losers as well as winners in this game? Try telling the unemployed they should focus on what they have in common with billionaires and reflect on who has gained or lost out from the collapse of the language of class. Categories that Cannadine finds wanting have underpinned many of the decisive struggles in our time. In one case, he accepts this – noting that in the second wave of feminism, women’s groups achieved lasting civil rights gains. Nothing so positive emerges from his chapters on race, nation or class. Yet it is often the relatively powerless who have chosen to name things the powerful would have rather ignored, and who in naming them have helped improve their lot. 

Class may have turned out to be a fairly useless category for some generations of historians. But it was a pretty indispensable part of the toolkit of organised labour and not irrelevant to the struggle to raise workers’ living standards. Race may have been invoked to justify slavery; but it was later asserted to win rights for slaves’ descendants as well. Nationalism was emancipatory before it turned into its own form of tyranny. And, for many centuries, solidarity itself was regarded as a virtue; in 1981, when martial law was declared in Poland, every good western liberal was in support of it. Now, The Undivided Past suggests, the only solidarity that is acceptable is solidarity with humankind: nothing less will do because anything more partial risks dividing us, and division means fisticuffs or worse. Yet is there not something ultimately quietist about writing off many of the conceptual vehicles that have previously allowed people to mobilise? Not all conflict, after all, is bad and justice sometimes may even require it. 

Behind Cannadine’s story of identities that need to be shrugged off is the interesting intellectual question of when we all got so hung up on this business of identity and started seeing it as something limiting rather than liberating. Nazism and fascism took the shine off nationalism for many European liberals. “Identity” began to be used in the contemporary sense sometime in the 1950s but it acquired a harder and more negative edge during the culture wars on British and American campuses. In an earlier book, Ornamentalism (2001), Cannadine criticised Edward Saïd’s influential account of Orientalism by claiming that in the British empire divisions of class trumped race. In The Undivided Past he seeks to do away with such categories completely, trumping them by an appeal to our common humanity. 

Yet terms such as “the human condition” are no less problematic than the six [religion, nation, class, gender, race and civilisation] he highlights and simply shift the identity problem to a new level. The cause of humanity has often lent itself to ideological misuse but these days, in particular, we face a bewildering proliferation of “the human” in global affairs – from human rights and humanitarianism to human security and human development. One therefore looks for Cannadine to provide more information than he does on the new kind of history that he has in mind to improve our lot.

Gummibiometrics

A nice incident of old-fashioned fraud involving the 'gummi bear exploit' in biometrics, reported in today's SMH

Five doctors at a Brazilian hospital have been suspended for allegedly covering for absentee colleagues by using fake silicone fingers to fool biometric machines. 

Thaune Nunes Ferreira was arrested on Sunday for signing in six co-workers to the biometric employee attendance device at a hospital in Ferraz de Vasconcelos, Sao Paulo. 

There might be as many as 300 hospital employees who do not exist, except for fake fingers with their prints, but who get paid anyway. 

Ferreira had six silicone fingers on her person when she was arrested, three of which have already been matched to the fingerprints of fellow employees, police say. Globo television showed footage of a doctor touching her finger to the device, then using two fake digits to do the same for colleagues, and taking delivery of slips of paper indicating they had in fact clocked in to work. 

That way it looked like there were multiple doctors on duty when there was in fact just one.