Factores Determinantes del Proyecto

Summons or arrest

2. Section 352 of the Crimes Act 1900 (NSW) should be amended to provide that a police officer should only arrest a person if that officer has reasonable grounds to believe that proceedings against the person by way of a summons or court attendance notice would not be effective. [See paras 4.27-4.29]

Time limits for detention after arrest before charging

3. Arrested persons should be detained only so long as is reasonably necessary, up to a fixed limit of four hours in the first instance. Additionally, legislation should provide that the criteria for determining what is “reasonably necessary” in the circumstances must take into account the vulnerability of a suspect (as a result of his or her intellectual disability or of other factors which render a suspect especially vulnerable in police custody) and the special protections applicable to such suspects. [See paras 4.30-4.33]

The police caution

4. The police caution should be rewritten to increase comprehension by all suspects. An essential element of the caution should be to test the understanding of the substance of the caution by the suspect, for example, by asking suspects to respond by putting the caution into their own words. [See paras 4.34-4.39]

Code of Practice

Development of Code of Practice

5. A Code of Practice which sets out the police procedures for conducting criminal investigations should be developed by a Working Group consisting of members of the New South Wales Police Service, as well as representatives of interest groups and the general community appointed by the Attorney General. This Code should:

(a) replace the relevant parts of the New South Wales Police Commissioner’s Instructions;

(b) be a statutory instrument, prepared as regulations under an enabling Act; (c) be developed after consultation with the police, other interested groups and

the general community;

(d) be readily available at all police stations for consultation by police officers, detained persons and other interested persons and be made widely available to the public generally; and

(e) contain procedures in relation to police investigations involving people with an intellectual disability, whether as suspects, victims or witnesses. [See paras 4.40-4.48]

6. To provide additional safeguards for people with an intellectual disability, the Code of Practice should contain provisions covering the following matters:

(a) Identification of intellectual disability. Guidelines prepared with expert input

should include the following list of indicators of the possibility of intellectual disability:

(i) difficulty understanding questions and instructions; (ii) responding inappropriately or inconsistently to questions; (iii) short attention span;

(iv) receipt of a disability support pension;

(v) residence at a group home or institution or employment at a sheltered workshop;

(vi) education at a special school or in special education classes at a mainstream school; and

(vii) inability to understand the caution. [See paras 4.49-4.52]

(b) Officer to follow procedures if intellectual disability suspected. If a police

officer has any reason to suspect that the person being questioned has an intellectual disability, the officer must follow the procedures for questioning a person with an intellectual disability. [See para 4.53]

(c) Questioning a person with an intellectual disability. Guidelines prepared with

expert input should include the following list of factors to take into account when questioning a person with an intellectual disability:

(i) the need to attempt to pitch the language and concepts used at a level which will be understood;

(ii) the need to take extra time in interviewing;

(iii) the risk of the person’s special susceptibility to authority figures, including a tendency to give answers that the person believes are expected;

(iv) the dangers of leading or repetitive questions;

(v) the need to allow the person to tell the story in his or her own words; (vi) the person’s likely short attention span, poor memory and difficulties

with details such as times, dates and numbers;

(vii) the need to ask the person to explain back what was said; and (viii) the possibility that the person may be taking medication which may

affect his or her ability to answer questions. [See para 4.54]

(d) The police caution. Guidelines should include the following issues in relation

to administering the police caution to a person with an intellectual disability: (i) the difficulties which such a person may have in comprehending the

(ii) the possible evidentiary implications of a failure to understand the caution; and

(iii) the need for such a person to be reminded periodically of the caution, particularly after any substantial break in the questioning. [See paras 4.55-4.58]

(e) Adoption of record of interview. The standard “adoption” questions used at

the end of an interview should be in language appropriate to the person with an intellectual disability. If the interview is not electronically recorded, the person should have the opportunity to have the record of interview read back slowly, and to be asked frequently whether it is correct. [See paras 4.59-4.61]

(f) Electronic recording of interview. To the extent practicable, all police

interviews with arrested suspects or victims with an intellectual disability should be electronically recorded. [See paras 4.62-4.67]

(g) Identification parades. Identification parades should not be used for people

with an intellectual disability in circumstances where unfairness to the suspect is likely to result, due to the unusual manner or appearance of the particular suspect. [See paras 4.68-4.71]

(h) Bail. An accused’s intellectual disability must be taken into account when

assessing the setting of bail conditions. [See paras 4.72-4.78]

(i) The right to the presence of a lawyer and “support person”. The Code

should outline the right of a person with an intellectual disability to a lawyer and support person. (See Recommendations 7 and 8 below.) [See para 4.79] Presence of a lawyer

7. Questioning of a suspect with an intellectual disability after arrest should take place only if a lawyer representing the person is present, absent exigent circumstances. [See paras 4.80-4.87]

Presence of a “support person” at police interviews

8. Police must ask a person with an intellectual disability (whether suspect, victim or witness) whether they wish to have a third person (a “support person”) present during police questioning. If the person wishes to have a support person, the police must take reasonable steps to arrange one. The procedures relating to that third person are set out in paras 4.93-4.108.

Related issues - presence of a “support person” at other interviews

9. A lawyer should consider and discuss the need for a support person with his or her client. As in police interviews, if the client wishes to have a support person, the lawyer must take reasonable steps to arrange one. Failure to raise the issue should be regarded as poor professional practice. Accordingly, compulsory consideration of this issue should be contained in the Bar Rules and the Legal Practitioners’ Revised Professional Conduct and Practice Rules 1995. [See paras 4.109-4.113]