Silent Witness: Supporting people with intellectual disabilities in the criminal justice system (Part I)

By Karen Akehurst | 17 Nov 12

By Karen Akehurst


Very few people develop greater insight into the machinations of the Australian criminal justice system than the invisible support worker.

My experience as Co-ordinator for a specialist legal support service for people with intellectual disabilities in the NSW criminal justice system was like watching a real life game of snakes and ladders. Except the players don’t know the rules and the stakes are life changing.

Most of our clients were offenders. Under the Police code of conduct, a person with an intellectual disability is a ‘vulnerable person’ and entitled to a support person during the interview and custody process. Our role during these police ‘supports’ was to assist understanding and fairness. This would usually involve spending an average of six hours locked in the cell beside our client in custody, so that we would be present when they were either released or transferred to corrective services. We needed to be sure that they understood any bail conditions and had somewhere safe to go.

Police, lawyers and magistrates receive virtually no training in intellectual disability and often confuse it with mental illness

The majority of individual support services however, related to court. We would arrange and attend legal advice interviews, provide court preparation and attend court, sitting alongside our clients, interpreting the legal banter into plain English.

Victim referrals were fewer and came mostly from the Department of Public Prosecutions in our region, so they tended to be very serious matters. About a half of our clients would have a dual diagnosis of mental illness or personality disorder. Police, lawyers and magistrates receive virtually no training in intellectual disability and often confuse it with mental illness.

Most offenders with intellectual disabilities are quite high functioning and have developed skills in masking their disability. This “cloak of competence” only makes it even more difficult to argue the need to provide a support person, especially with police following rigid procedure.

The adversarial process doesn’t provide opportunity for special needs to be identified or accommodated. The assumption is that everyone has the capacity to comprehend and comply with the law

Most of our clients carry a deep aversion to the label of “intellectual disability”.  Intellectual disability is broadly defined by a multi-dimensional approach, with the need for difficulties in adaptive behaviour being one of the three main identifying components. This is evidenced by the need for support in day to day activities. The other two being an IQ score of less than 70 and conditions manifesting before the age of eighteen. There is strong argument to include people with IQ of up to 80 (borderline) as this group is most highly represented in the criminal justice system. This definition is constantly being revised.

In this way, it differs from mental illness which is diagnosed by a clinical set of symptoms, many of which are treatable.

The disability label is often rejected by people who have been taunted, institutionalised and discriminated against since birth  The fear of authority is especially manifest in older adults scarred by a childhood spent behind the walls of institutions no longer in existence. We would rarely use the term in the presence of clients. For this reason, we didn’t wear any ID. Anonymity is essential. However, it also didn’t allow us any assistance or deferential treatment from those in authority.


My very first phone referral came from a distressed disability support worker, calling from the client’s home to say that the police had arrived and arrested the client in front of the neighbours. It transpired that his name had emerged on a routine police warrant search. Records indicated that he hadn’t attended court in Dubbo 10 years earlier, in relation to a charge of stealing and was now facing a charge of non- appearance.

The client’s name was Ben and he had enormous difficulty with the concept of money. Ben was a quiet, gentle man in his fifties who received fortnightly financial assistance in his home from the disability service that called me. It was during one of these sessions that police arrived to arrest Ben.

I took Ben to a legal aid appointment and prepared him for court. Neither I nor the solicitor was able to convince Ben that he wasn’t going to be jailed if convicted. He had been institutionalised as a child and so any kind of authoritative intervention, to him, meant being locked up. It was his biggest fear.

When court day finally arrived, it was an ordeal. It was a notoriously tough courthouse – the kind where the sharps bin in the toilets are overflowing by lunchtime and you don’t make eye contact with the other people in the waiting room. I had only provided support at a larger court previously and I stood out as the only person wearing a suit. I was also one of only a few people in the waiting area with the literacy skills to read the court list.

There was only one waiting area and people weren’t permitted to leave. A loud, aggressive, foul-mouthed young woman who looked a lot like the footballer “Blocka” Roach passed time throughout the day by bullying me from across the waiting room. “Hey Babe, come and sit on my face!” The snickering response from the captive audience goaded her on. I felt Ben stiffen every time she said something. This type of targeted bullying had been Bens’ experience his entire life and today he really needed to be anonymous. I felt more of a liability to him at this point.

Throughout the morning, the legal aid duty solicitor called names from her client list and we waited patiently until the final call. Ben’s name had not been called. Evidently, his file hadn’t been forwarded to court and so the duty solicitor declared that I was lying about him being a client and ordered me out of her office.

The tension on list day builds as the day grinds on and the courtroom empties painfully slowly. By afternoon, emotions run high. Missed medication – legal or otherwise – exacerbates the already heightened emotions. We enter the danger zone. This time of day is particularly volatile when both parties in a matter involving violence are present.

I make a call to head office for advice. “Just as the magistrate for an adjournment,” I’m told. Speaking in the absence of a lawyer is one the court support workers greatest fears.

The jibes from Blocka become increasingly threatening. “Oooooh look at me I’ve got a mobile phone. Fucking up yourself or what?” she yells.

“Get it,” says her mate.

Courtrooms and magistrates are designed to intimidate. The adversarial process doesn’t provide opportunity for special needs to be identified or accommodated. The assumption is that everyone has the capacity to comprehend and comply with the law.

We move into the courtroom which is a cattle call of minor offences, heard at lightning speed. Assaults, theft, damage, affray, driving, Apprehended Violence Orders (AVOs) and drug offences, just like every other local court in every other town.

The back pain from an old injury is making it impossible for Ben to sit any longer. His face is shiny with sweat. He asks me for the tenth time if he’ll go to jail. He wants to leave. This is when court support workers do some of their best work. Some days just getting someone to court is an achievement in itself. We step out and I ask him to show me the computer game he’s been playing with. “I made it,” he says proudly. Apparently Ben creates computer games. He’s an IT genius. I’m hopeless at it.

We go back in. Blocka and her glassy eyed sidekick follow us in and sit behind me. She’s tearing up pieces of paper, chewing them and spitting them at the back of my head. A three year old is in raptures of laughter every time she does it. I am grateful that Ben doesn’t notice.

The later matters are the more serious and take longer. Blocka is called and does her best Pollyanna impression. She smiles and politely promises to stay away from trouble. The magistrate hands down a $90 fine. She leaves the courtroom and shouts from outside the door “FUCK YOU!”

When all matters are finally heard, we draw attention from the magistrate as the only people left in the courtroom and are called down to the bench. Whilst everyone is searching for Ben’s file I request a two week adjournment to allow me time to find – I turn and look squarely at the legal aid lawyer – competent legal representation.

The magistrate spends an eternity reading the file and then his convivial, end of day mood changes. His lips tighten and he says to me “So, do I have this right? He was arrested at home and taken in for questioning. In relation to the theft of a 30 cent chocolate bar?

“Yes,” I say. “In Condoblin. Ten years ago.”

The Prosecutor groans loudly. The magistrate barks at him “What the hell is this about?”

“Must have been a routine warrant search,” he says.

“He states that he already attended court in Dubbo,” I say “And the fact sheet states that the chocolate bar was replaced, unopened before he left the store.” I am on a roll now. The magistrates hand shoots up to stop me speaking “Don’t speak,” he says. Oops.

After what seemed like an eternity the magistrate asks: “What is his disability?”

“Intellectual,” I say.

The entire bar table throws up their hands at this. The Prosecutor’s face is in his hands and the legal aid lawyer has turned to stone. She is avoiding my eye contact. This is more like it.

After more legal banter the magistrate raises his voice. “This is the biggest waste of police and court resources I have seen in a very long time. How can this happen?” He orders legal aid to briefly consult with us and the lawyer quickly scuttles for the consultation room. She is deeply apologetic.

When we return to the courtroom, the magistrate is still fuming. The charge is overturned and the matter dismissed. It takes just few seconds. The magistrate looks kindly at Ben and says “I am sorry about all this.”

Ben looks at me wide eyed as if to say “What?”

“It was a mistake Ben. The charge is dropped. It’s all over. We can go home,” I say. But he doesn’t look convinced. He doesn’t move.

I turn to the magistrate and take a deep breath “Your honour. May I ask a question?”

“Yes, of course.”

Could you please tell Ben that he is not going to jail. He won’t accept it from anyone else but you.”

The magistrate leans forward to Ben. I step back, my hand on his back.

“Ben,” he says. “You are not going to jail. You never were going to jail. I promise you, you have my word. You are not going to jail.”

To my surprise Ben’s reaction is like a floodgate bursting. He is crying like a child. The relief is visible. He hunches forward and sobs loudly. I look at the magistrate and mouth “Thank you”. He is visibly moved and nods back. I later learn that the magistrate has a brother about the same age who suffers from mental illness. After a few minutes, I lead Ben out of the courtroom and take him home.

Ben tells me on the way home that when he was living in Condoblin, he was homeless. He was going to steal the chocolate bar because he hadn’t eaten in days but couldn’t bring himself to do it. He said that he put it back on the shelf but someone saw him and called the police.

Ben’s thirty cent chocolate bar offence held the record as the smallest charge we came across in the service and probably still stands. Mostly, the charges were assaults and associated AVOs, theft and some driving offences with the occasional more serious offence. The Sydney service dealt with the most serious court matters once they were set down in the higher courts. And there were many, including murder charges. In almost all matters, the disability was the key factor.

At monthly team meetings we would decide who had the most bizarre charge for the month, like the client who stole a boat and hid it on the front lawn of his house on a major arterial road, or a bestiality charge involving a horse. A sense of humour is the first essential criteria in our job description.

(All names have been changed)

Karen Morrow Akehurst has a Graduate Diploma in Social Sciences. She is a former Co-ordinator of a specialist support service for people with intellectual disabilities engaged in the criminal justice system, which trains and supports volunteer court support workers.

Click here to read PART II