Silent Witness: Supporting people with intellectual disabilities in the criminal justice system (part II)

By Karen Akehurst | 18 Nov 12

By Karen Akehurst.


The basis of criminal law is intent and this is where the law often betrays people with intellectual disability. It was our common experience to find that a person had either been deliberately set up to commit an offence by someone else, or to find that they were indeed guilty but that they had no idea that the action they were taking was illegal. In either case, it was disability that caused the offending behaviour, not criminal intent.

One client, Mario, had a brother with an enterprising skill for identity theft. The brothers looked very much the same. The brother had forged a driver’s licence in Mario’s name which he produced for police on a regular basis. It wasn’t until I became curious about why Mario hadn’t been able to obtain a driver’s licence and obtained a copy of his criminal record that we were able to unravel years of wrongful arrests for offences committed by his brother, including licence disqualification. Mario was unaware of most of the offences on his record.


Another client, Paul, was my most challenging. He came to our attention upon release from prison after serving a 10 year sentence for arson in which a relative died. I worked with him for almost two years before he was again convicted of arson after burning down his Department of Housing flat.

Paul had no concept of time and would often call me at two am in the midst of an anxiety attack. One night he called to say that he was about to cut his wrists. Following protocol, I called the police who attended about an hour later. He had cut himself and was holding the knife when they broke in the front door, so they sprayed him with capsicum spray. The situation immediately escalated and they arrested him for assaulting police and resisting arrest. The duty officer didn’t call me to attend as agreed and it wasn’t until the next shift started that I was informed.

Paul had acquired a small dog he called “Scooby”. Scooby was his whole world. He had no friends or other interests. Paul’s mother had a personality disorder and ran a scrap metal business with her other son that, according to Paul, was secondary income to their less legal businesses. The family was well known to local police. Paul’s mother would use Paul to work for her for about 50 hours a week and paid him in beer – one beer at the end of the day, if he worked hard. He told me that she had said if he didn’t do what he was told, she would have him sent back to jail and she would kill Scooby. She had an inexplicable and unshakable hold over Paul. He alleged that it was she who had paid someone to burn down the house for which he was originally imprisoned 10 years ago, along with a number of other offences. This was impossible to prove but not to believe.

When Paul was taken into custody for arson in the middle of the night, the police brought Scooby to the station. As soon as I arrived, they handed him over to me. Scooby was about 80 per cent fleas and 20 per cent dog and I was not permitted to put him down on the floor of the cells. I spent six hours scratching and nursing a fidgeting, distressed dog and his equally distressed owner. I was finally able to hand him over to a brother at Paul’s request, before scrambling upstairs for the bail appearance the next morning, still wearing pyjamas under my clothes. Two days later Paul’s mother strangled Scooby in front of the family, exactly as she had threatened.

Paul is still serving this latest sentence and has been blacklisted by the Department of housing.


Another client, Tom, was a likeable, softly spoken young man who had just turned 18. He spoke constantly about his job at Coles and took immense pride in his work. He lived with his mother and younger sister.

Tom had been a client of a disability service whose role was to support young people with intellectual disabilities as they transition from school to the workforce. Tom was referred to me in relation to a charge of Centrelink fraud, amounting to around $12,500 accumulated over the first 18 months of his casual employment. It carried a possible jail term of two years. He had already received legal advice and district court proceedings had commenced. His mother spoke English only as a second language and couldn’t read well.

Tom was one of the most neatly presented young men I’ve ever seen. His mother ironed creases in his jeans. But he was in tears of shame when telling me about the fraud charge. Tom swore that he submitted his Centrelink form every fortnight without fail. His mother also checked that all the boxes were ticked every time. They had copies to prove it. I believed Tom.

I asked Tom to bring his Centrelink form, payslips and calculator to an interview with me and walk me through the process he used to complete his forms. He showed me the box where he always enters the amount he was paid. I asked him to show me the figure on his payslip that he copies over. The form says to state the fortnightly gross amount. Tom points to the NET figure on his payslip. I asked if he knew what net and gross figures meant. He didn’t know. I asked him what tax was. He didn’t know. Viola! The whole time Tom had been working, he had been inadvertently and scrupulously reporting his net income instead of his gross and no-one had picked it up. The disability support service said, inexplicably, that showing people how to complete a Centrelink form wasn’t part of their service.

I took Tom to legal aid and asked him to show the lawyer what he showed me. It isn’t comprehended at first and I ask to see old forms. Every one is the same. Despite this I still wasn’t permitted to continue to assist Tom. I asked if the brief of evidence had been prepared and they told me that it had been posted. Tom can’t read and I would need to go over it with him, I argue. But I have the strong impression that I have injured the pride of the lawyer and she doesn’t permit me any further contact, not even court preparation.

I wasn’t permitted to attend court with Tom and it was agony. If he couldn’t speak English or was deaf, he would be required by law to have an interpreter present at court but because the disability is intellectual, that decision is made by individual lawyers, police officers, magistrates and corrective service officers, based upon their personal perception of the need.

I did, however, receive a phone call about six months later from an ecstatic Tom, telling me that the charges had been dismissed and thanking me in the warmest, most sincere way. We both shed a tear. He came so close to jail. Happy endings are rare. I still think of Tom whenever I wander through a Coles veg section.

For thousands of others in Tom’s situation, a guilty verdict is the roll of the dice that lands them on the snake, that “slippery slope of criminality” and a lifetime of entanglement with the justice system. A senior detective once said to me about my clients: “I can’t believe they are allowed to just walk around (in public ) like that.”

The police reaction to Paul when I called them to his attempted suicide was justified to them because his address had been routinely cross checked against their database. The attending officers were notified by radio en route that he was to be regarded as dangerous. And on paper he is. His record is pages long and includes manslaughter. They found him holding a knife and did what they were trained to do, which unfortunately doesn’t include de-escalation techniques with mentally ill and suicidal people.

Until legal processes are amended to address the needs of this vulnerable group of people, the existing overrepresentation of people with intellectual disabilities in prison will never be reduced. A multi-agency approach of support combined with a “multi-focal system of diversion” is required at the first entry point to the legal system.

In the meantime, let’s acknowledge the work of the anonymous court support worker, both paid and unpaid. The impact of their unsung deeds will never truly be known or appreciated, even by their own clients.

(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 I