Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1697643524388.pdf (Australia)
Submission re.
‘Violence, abuse and neglect against people with disability in institutional and residential settings, including the gender and age related dimensions, and the particular situation of Aboriginal and Torres Strait Islander people with disability, and culturally and linguistically diverse people with disability’ by Mary Woodward Senior Speech Pathologist (Concord Centre for Mental Health, Sydney, and Speak Your Mind Services) and former Registered Intermediary in England and Wales Date: 24/04/2015 h I wish to address in particular the term of reference (what should be done to eliminate barriers for responding to violence, abuse and neglect perpetrated against people with disability in institutional and residential settings, including addressing failures in, and barriers to, reporting, investigating and responding to allegations and incidents of violence and abuse) although my comments will also e touch on other terms of reference, such as (the different legal, regulatory, policy, governance and data collection frameworks and practices across the Commonwealth, states and territories to address and prevent violence, abuse f and neglect against people with disability) and (Australia’s compliance with its international obligations as they apply to the rights of people with disability).
It is now widely known that people with disabilities (whether they be intellectual or physical, or specific communication difficulties) are over- represented at all levels of the justice system, see, for example, Vanny et al (2009), Baldry et al (2011), Snow and Powell (2011).
As myself and my colleagues noted in Hepner, Woodward and Stewart (2014), Wilson and Brewer (1992) found that the crime rate for offences such as physical assault, sexual assault and robbery against persons with intellectual disability was nearly 3 times that of their non-disabled counterparts.

Alarmingly, Carmody (1991) reported that 50-90% of people with intellectual disability will be subjected to sexual assault during their lifetime.
While many such cases go unreported by Violence, abuse and neglect against people with disability in institutional and residential settings, including thegender and age related dimensions, and the particular situation of Aboriginal and Torres Strait Islander people withdisability, and culturally and linguistically diverse people with disabilitySubmission 36 both victims and their carers (Johnson et al.
1998), only a small minority of reported cases result in prosecution, with a total of 21 matters involving offences against persons with ID recorded by the Office of the Department of Public Prosecutions (ODPP) between 2000 and 2005 (Criminal Law Review Division, NSW Attorney General’s Department, 2007).
Australia was shocked by a high profile case in South Australia in 2011, in which four young children with special needs were allegedly abused by their school bus driver, but the case was dropped because they were deemed to be unreliable witnesses as they did “not communicate through conventional means”.
In my experience as a Speech Pathologist working in adolescent and adult psychiatry, I have worked with numerous young people who have disclosed childhood abuse, but who have been deemed “unable to be interviewed” because of their mental state or limited communication skills.
Unfortunately, the vulnerability of children and those with disabilities is one of the reasons why they are targeted, as noted by someone who had committed sexual offences himself in research by Conte et al (1989): “That’s why most of my victims were 7 and below.

Some were even 3 years old, and I don’t think they knew what was going on.

I went after the victims that had a low potential for telling anyone”.
Similarly, colleagues regularly giving expert neuropsychology evidence have told me of their frustration at having to find some individuals with disabilities unfit to plead, or unfit to stand trial, due to their associated communication difficulties, purely because as current Australian legislation and practice stands there are not suitable modifications available to facilitate their evidence-giving.
As discussed by myself and my colleagues in Stewart, Woodward and Hepner (in press), “ similar obstacles are faced by Indigenous Australians, but for reasons more specific to their cultural identity rather than cognitive issues.
For example, they may have difficulty conceptualising legal concepts that fall outside their specific cultural laws, and there have been cases of Indigenous Australians who were disadvantaged in understanding various legal rights, for example, their right to remain silent.” Violence, abuse and neglect against people with disability in institutional and residential settings, including thegender and age related dimensions, and the particular situation of Aboriginal and Torres Strait Islander people withdisability, and culturally and linguistically diverse people with disabilitySubmission 36 One of the main factors that prevents cases from proceeding is the presumption that people with disability, who may have difficulty understanding information and expressing themselves effectively, will be unable to be credible, reliable witnesses and will struggle in interviews and cross-examination.
There is certainly evidence to suggest that that is the case (see, for example, Cossins, 1999; Gudjonssen and Clare, 1995; and Kebbell et al, 2004), however there is also substantial research showing that if questions are formulated and presented in the right way, for example using simple, non-leading, open questions, and avoiding double negatives, or rapid, repeated questions, people with communication disabilities can provide reliable, accurate evidence (e.g.
Perlman et al, 1994; Kebbell et al, 2001; Temes and Yuille, 2008).

However, despite training of legal professionals, and the existence of witness support services such as the Intellectual Disability Rights Service in NSW, modifications of language used in the investigation and trial processes in Australian jurisdictions are insufficient, rendering individuals with disabilities still hugely disadvantaged in the justice system.
The UN Convention on the Rights of People with Disabilities, which was ratified by Australia and came into force here in August 2008, imposes legal obligation on states to “take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity” (article 12), and to provide “procedural and age- appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages” (article 13).
It is my assertion that this has not yet been actioned sufficiently within Australian jurisdictions.

Before moving to Australia in 2011, as well as being a Speech Pathologist working with offenders with mental health and intellectual disabilities, I worked as a Registered Intermediary in England and Wales.
The use of an intermediary is one of a range of special measures available to vulnerable witnesses (including children, or adults with disabilities) in section 29 of the Youth Justice and Criminal Evidence Act (YJCEA, 1999).
While the Youth Justice and Criminal Violence, abuse and neglect against people with disability in institutional and residential settings, including thegender and age related dimensions, and the particular situation of Aboriginal and Torres Strait Islander people withdisability, and culturally and linguistically diverse people with disabilitySubmission 36 Evidence Act does not provide for defendants, there is provision for the use of an intermediary with vulnerable defendants (or defence witnesses) under section 104 of the Coroners and Justice Act (2004).
For budgetary reasons, this section has not yet been implemented, however judges are increasingly appointing intermediaries under their inherent powers to act in these cases in order for them to have as fair a trial as possible.
The role of an intermediary is impartial (they are not an expert witness, an advocate, or a support person), and is to • communicate: • To the witness, any questions put to the witness; and To any persons asking such questions, the answers given by the witness • in reply to them; and To explain such questions or answers so far as necessary to enable them to be understood by the witness or the questioner.
I have described the role of an intermediary in articles such as Woodward, Hepner and Stewart (2014), but to summarise, intermediaries are specially recruited and rigorously trained professionals with expertise in communication, who are called in (by either the police, Crown Prosecution Service, lawyers or judges) to facilitate more effective communication with a witness during the investigation and trial process.
The intermediary is (in the case of prosecution witnesses, as the defence follows a slightly different process) allocated to a case by a centralised matching service on behalf of the Ministry of Justice, according to their, expertise, availability and geographical area.
The nominated intermediary completes an assessment of the witness’ communication skills and on the basis of their findings makes recommendations to the police/court about what modifications, including the use of an intermediary, would enhance the individual’s ability to give complete, coherent and accurate evidence.

The intermediary then writes a comprehensive report of their findings and recommendations, which is submitted to the court for consideration.
If the application for an intermediary is agreed, the intermediary takes an active role in the investigative interview, trial preparation (court visits, meetings etc.)
and trial, for example liaising with interviewing officers, lawyers and the trial judge about how communication with the witness may be best facilitated, and then Violence, abuse and neglect against people with disability in institutional and residential settings, including thegender and age related dimensions, and the particular situation of Aboriginal and Torres Strait Islander people withdisability, and culturally and linguistically diverse people with disabilitySubmission 36 sitting next to the witness during the interview and trial in order to monitor communication and intervenes, for example, if questions are phrased in a way in which the individual would not understand.
The majority of referrals have been made for witnesses with intellectual disabilities (including autism), with the second highest witness vulnerability being children, followed by mental health disorders, then physical disability.

Many cases have come to court which, without involvement of an intermediary, would have proved challenging, if not impossible.
Both formal evaluations, and anecdotal reports, of the intermediary in England and Wales have been overwhelmingly positive, with a number of reported emerging benefits, including the potential to assist in bringing offenders to justice; increase access to justice; contribute to cost savings; assist in identifying witness needs; and inform appropriate interviewing and questioning techniques (Plotnikoff and Woolfson, 2007).
To my knowledge, I am the only person currently living in Australia to have worked as a Registered Intermediary in England and Wales.
Since moving to Australia in 2011, I have been working with government agencies in several Australian jurisdictions to raise awareness of the need to facilitate the communication of vulnerable witnesses and defendants throughout the justice process, and while interest and momentum for the possibility of intermediary models is gathering in some areas, it is a long way from full implementation.
I welcome this Inquiry, and hope that the information gathered, and the subsequent recommendations and actions, will go some way in enabling individuals with disabilities to have equal access to justice.
Violence, abuse and neglect against people with disability in institutional and residential settings, including thegender and age related dimensions, and the particular situation of Aboriginal and Torres Strait Islander people withdisability, and culturally and linguistically diverse people with disabilitySubmission 36 Baldry, E., Dowse, L. and Clarence, M. (2011) References Background Paper for the National People with mental and Legal Aid Conference.

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