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4.88 As discussed above at para 4.15, the current New South Wales police practice requires the presence of an additional person at a police interview with a person with an intellectual disability, both for suspects and for victims of sexual assault. Such a person is referred to in the Instructions relating to suspects as an “appropriate adult”, but the Commission prefers the term “support person”. The role that person is to play in the police interview is not defined. Anecdotal evidence, including case studies from submissions, suggests that many people with an intellectual disability do not have a support person present at police interviews.211 English studies also reveal a low usage of support persons compared to the likely numbers of suspects with an intellectual disability.212 In the Commission’s consultations with people with an intellectual disability there was considerable support for the presence of a third person, such as a social worker or advocate, at police interviews.213 Submissions also have generally supported the need for such a person,214 though some did not support the mandatory nature of the proposal.215 Other reservations are discussed below.

4.89 Many other jurisdictions216 have provision for the presence of a support person in police questioning of a person with an intellectual disability, for example: Victoria;217 South Australia;218 Western Australia;219 Queensland;220 the Northern Territory,221 the Australian Capital Territory222 and England and Wales.223 In England, since 1984 a wealth of case law has grown up in relation to the support person, known as the “appropriate adult”.224 The Victorian system of support persons (known as “Independent Third Persons” or “ITPs”) has the advantages that ITPs can be located by police, on a 24 hour basis, by contacting the police communications unit and that police and ITPs have been trained about the system through the co-ordination of the program by the Office of the Public Advocate.225 By contrast, federal legislation limits the protection to persons under 18 and Aboriginal suspects.226 Difficulties raised by the support person requirement

4.90 The success of the requirement relies upon the police officer identifying that the person may have an intellectual disability and being aware of the support person requirement. Even if these two preconditions are satisfied, there are other difficulties which may arise in this area.

It is difficult to determine the most appropriate person to fill this role. A stranger, such as a social worker, may, instead of providing support, actually add to the trauma of the situation for the person with an intellectual disability. A stranger may have difficulty communicating with the person and would not have knowledge of the way the disability may affect that person’s understanding.227 There is also the danger that a stranger may be seen as “another authority figure who wished to hear ‘helpful’ answers to the interviewer’s questions”.228 Professionals who know the suspect with an intellectual disability may have other difficulties acting in this role, for example the possible conflict of interest between a social worker/client and a support person/suspect relationship,229 and the need to maintain good relations with the police.230 Relatives or friends, however, though likely to be able to communicate with the person, are not necessarily the best choice for this role for other reasons:

- they may not be experienced or trained in the care of people with an intellectual disability;231

- they may lack the necessary objectivity or be too eager to assist the police, to the possible detriment of the interviewed person;232 or they may interfere excessively in the interview;233

- their presence may suggest to the person being questioned that their friend or relative supports the police’s actions; or, if they are used as a “translator”, that the person is

“answering a question asked by a relative, rather than by a police officer for the purposes of evidence”;234 or

- the person may be reluctant to discuss the matter in front of a family member or may be affected by other family dynamics.235

Additionally, the person chosen by the person with an intellectual disability may be inappropriate, for example by reason of age or disability - the Legal Aid Commission of New South Wales has suggested there be some onus on the police to ensure the person is an appropriate person to provide the assistance needed.236

Whether the support person is known to the person with an intellectual disability or not, the support person might not understand police procedures, the protections available for an accused or the role of a support person in the police interview.237 Training all support people would be impossible as many would only act in the role on a single occasion. This raises the question whether this role is one that should be left to an ad hoc system. It is arguably also inappropriate to rely on volunteers for such an important role.238 The role is a potentially onerous one. It has been commented in relation to the Victorian system that ITPs:

as volunteers receive no remuneration for their costs yet they are expected to be available at any time of the day or night, and sometimes to travel considerable distances to an interview. They may also be required to go to court when the case comes to trial ...239

There may be difficulties locating a support person240 or delays caused by arranging for their presence. This may result in people with an intellectual disability being detained for longer periods in custody and may lead to additional stress and anxiety.241

Even if an appropriate support person is found, there are many possible interpretations of the person’s role, for example: advocate, interpreter, communication facilitator, substitute legal adviser, a provider of “moral support” or a neutral observer role. The different roles expected of the support person may be contradictory; for example, it may be difficult for the same person to fulfil both an interpreter and a support person role.242 The police are likely to interpret the role in a less interventionist way; that is, as merely an observer, without an active role to play in the process or, alternatively, as being there to assist the police rather than the suspect.243 This ambiguity has raised concerns about the role the third person is to play in the interview and the level of allowable intervention. For example, there have been concerns in Victoria that support persons may not intervene appropriately, even when it is clear that the person with an intellectual disability does not understand the questions, and that support persons are being inappropriately asked to assess the person’s fitness to be interviewed.244 In one Victorian case a judge ruled a confession by a 15 year old boy with a borderline IQ not voluntary and therefore inadmissible, stating that the boy had probably been induced to answer questions by the ITP.245

There are considerable resource implications of the requirements, both for police and disability organisations who often provide the third persons.

Discussions between a suspect and a third person are not privileged and the third person may be required to give evidence against the suspect, or may feel they have a duty to pass on information gained in a private interview to the police.246

For suspects, there is a danger that the presence of a support person may create the appearance of fairness without the actuality247 and that the person may be seen as a sufficient substitute for a lawyer.

4.91 This last concern is particularly important. Support persons are a relatively new requirement in police interrogation and the long term results of their presence are as yet largely unknown. Though a

support person may provide reassurance to the person with an intellectual disability in some cases, this should not occur at the expense of their legal rights. One commentator questioned:

What is the impact of having [a support person] - does his/her presence make it easier for police to obtain a confession or does it ensure that people who are being interviewed are more aware of their rights and less inclined to answer questions if they are suspected of committing an offence?248

There needs to be further research in this area, in particular focusing on any detriment to the suspect.249

4.92 Victims and witnesses. Unlike a suspect, the victim with an intellectual disability would not generally require the assistance of a lawyer, but is likely to require emotional and practical support in police interviews. As discussed, in New South Wales this has been recognised in the Instructions for victims of sexual assault. In Victoria, where an “Independent Third Person” attends all interviews where a person with an intellectual disability is involved, it has been suggested that the presence of a third person may formalise the investigation process, which provides an additional benefit to the victim, and ensures that their complaint is taken seriously.250 The New South Wales Bar Association saw potential detriment to the accused if a victim is always provided with a support person:

[a] “victim” may or may not be so in fact. The presence of another person at the taking of a statement accusing another of crime, whose role is explicitly to “be supportive of the victim”, may justly be the subject of criticism by a person wrongly accused.

The Bar Association concluded that “[t]here is no substitute for proper investigative technique. ... Raising matters of sensible police practice to prescriptions of law may have unintended adverse

consequences.”251 It has also been suggested that a support person should not be mandatory if the person with an intellectual disability objects to their presence.252 The New South Wales Police Service also commented that a mandatory support person is discriminatory for victims with an intellectual disability.253

Conclusions

4.93 Taking into account the concerns raised above, the Commission believes that the presence of a support person in police interviews is not sufficient to protect the legal rights of a suspect with an intellectual disability and that in some cases their presence may act to the detriment of the person, particularly in terms of the legal consequences of the interview. As discussed in Recommendation 7, the Commission believes that the most effective way of ensuring that the rights of the suspect with an intellectual disability are protected is through the presence of a lawyer, and that only the presence of a lawyer should be mandatory. However, the Commission does recognise the benefit to many suspects with an intellectual disability of a support person. The Commission therefore recommends that police, if they suspect the person they are interviewing (after arrest) has an intellectual disability, should ask whether the person requires a support person. People who cannot nominate such a person should not be disadvantaged and police should therefore have access to a list of appropriate persons. The police may have to assist the person with an intellectual disability to contact the chosen person or, if the person cannot name a person, to approach an appropriate person from a list. If this is not complied with, the usual protections under the Evidence Act 1995 (NSW) would apply at a later trial in relation to the admission of evidence obtained at the interview. The Commission also believes that a support person for a victim or witness with an intellectual disability at police interviews is likely to assist both the person and the police and to be in the interests of justice.

4.94 The Commission’s recommendations about the essential features of a support person are set out below. These details and all police responsibilities in relation to a support person must be set out clearly in the Code of Practice, as recommended in Recommendation 6, to avoid varying practices by the police and lengthy legal battles at any later trial. Potential areas of confusion over the role of the support person should be clarified, not left to the courts to resolve, as has occurred in the case of the

independent adult for children. Confusion in this area would be damaging to the interests of people with an intellectual disability.

4.95 Role. The Commission recommends that the third person should be known as a “support person”, as this name reflects the role envisaged by the Commission for that person. The Commission believes that the terms “appropriate adult”, with its implications of a child-like role for people with an intellectual disability,254 and “independent third person”, with its implications of a neutral and passive role, should be avoided. It is unrealistic to expect such a person, who is most likely to be a family member, friend or carer to be “independent” and not to be primarily concerned about the interests of the person interviewed. The Commission believes the role of the support person should be clear and should not contain contradictory elements. The Commission believes that the role of the support person should be to support the person with an intellectual disability, but not, in the case of a suspect, to attempt to take the place of a lawyer and to advise the person of their rights. It is unrealistic (and dangerous) to expect a person without legal training to fulfil such a role.

4.96 The support person should be clearly attending for the benefit of the person with an intellectual disability, rather than to assist the police, and should not be a neutral or passive observer of the proceedings. The support person should play a limited “interpretative” role if necessary, for example, suggesting the police rephrase a question if the suspect is having difficulties. A carer may be able to explain what a person with an intellectual disability means by a particular word. Of course, the police should try to confirm such information provided by the support person with the person interviewed. The support person should not detract from the suspect’s right to silence or be seen as an interpreter in the sense that the word is used for people who do not speak English. In most cases the police should be able to address their questions directly to the person being interviewed. The New South Wales Bar Association, however, commented on the dangers of an interpretative role as, not only is there

considerable potential for error in doing so, but this may link the support person to the questioner in the eyes of the suspect.255 The Commission suggests that the potential dangers in this area should be noted but believes it would detract from the usefulness of the support person if that person were not able to assist communication. It is impossible to set limits on this role to cover every possible situation. 4.97 Identity and gender. The support person should be at least 18 years of age. The person being questioned should have the right to choose the support person, unless that person is disqualified in some way, for example, being under the age of 18, being an important witness in the case, or having an intellectual disability themselves. Ideally such a person will know the suspect well, for example as a family member, guardian, carer, case manager or friend, and be able to communicate easily with that person. If an intimate search or medical examination is required, the support person should preferably be of the same gender as the person with an intellectual disability. However, this is a matter where the wishes of the person with an intellectual disability should be paramount. The support person should not be a police officer or anyone likely to be involved in the alleged offence; for example, as a witness. 4.98 List of support people. If the chosen person is unavailable, unwilling to assist, or inappropriate owing to their potential involvement in the investigation, or the suspect cannot nominate a person, police should have access to a list of people with experience with the special needs of people with an

intellectual disability in their geographical area who would be prepared to fulfil such a role from time to time. It is meaningless to have such a requirement for police if it is almost impossible to find a person to fulfil it. The Commission suggests that the system set out in the Crimes Act 1914 (Cth) for development of a list of “interview friends” for Aboriginal people be used as a model.256 The Minister for Disability Services, with the assistance of the Ageing and Disability Department should establish and update regional lists of the names and contact numbers of persons who are suitable to assist people with an intellectual disability and willing to give such help. Such people should receive a “callout” fee and travelling expenses if utilised. The development of such a list will take some time and consideration but the Commission believes that it is crucial that support people are available out of office hours and are easily accessible to the police. Ideally, such a list would also be available to lawyers to enable them to obtain the assistance of a support person in legal interviews, where no other suitable person was available. (See Recommendation 9 below.) The New South Wales Police Service did not support a centralised system, stating that: it “should be a local Patrol responsibility ... A centralised registry ... is not practicable nor efficient for local needs.”257 For example, preparing a list of independent adults for

child suspects is a patrol responsibility.258 The Commission suggests that the logistics of preparing and updating such a list, taking into account the efficient use of resources, should be a matter for further consultation between the agencies involved.

4.99 Private access. The support person should have an opportunity to speak to the suspect in private before the commencement of the interview. Such an opportunity was considered essential by the Victorian Court of Criminal Appeal to ensure that the presence of the support person was not “part of a meaningless ritual” for the suspect.259 This opportunity would be even more important if the support person was not well known to the suspect. There are similar provisions for Commonwealth offences involving Aboriginal people and children.260 The New South Wales Police Service stated that it had no objection to this course as long as the conversation took place within the view of the police officer at all times and that the officer in charge of the case had the discretion to allow the conversation to take place, taking into account the suspect’s wishes.261

4.100 Continuing presence and recording procedures. The support person should remain present for