People with mental illness, intellectual disabilities and acquired brain injuries are entering criminal justice systems throughout the World at phenomenal rates. Custodial environments have become the surrogate carers for this growing cohort of people. Lawyer, Dan Toombs and his colleagues at TASC and the Queensland Criminal Justice Centre, have represented many of these people and here is the story of one family’s collision with the Queensland criminal justice system.
The TASC Disability Law Project aims to assist persons with impaired capacity who are (or might be) charged with an offence before the Court. Sometimes, a person with an intellectual disability, or a mental illness, or a brain injury is unable to fully understand the nature of the charges against them, and the reason why the charges were brought. At TASC, we listen to the client and then ensure that a TASC Lawyer is able to fully explain the issue of the client’s capacity to the Magistrate. We also arrange for a TASC Advocate, experienced in issues of disability, to assist the client with the issues that might have led to the charges brought, and to help create a positive alternative and personal solution for the client.
Here are some examples of the work done in the Disability Law Project.
Mr H was a juvenile who was possibly being charged with possession of cannabis. A TASC Lawyer attended the police station with him where he agreed to drug diversion and there was no charge made by the Police.
Ms T was charged by police with drug possession under the deeming provisions of the Drugs Misuse Act 1986, even though she was not present when the search occurred and there was no evidence to prove that she was in control of the premises – it was merely the assertions of the other offenders who were present during the search that supported the allegations. Ms T had a psychiatric illness and was unable to represent herself, however she was able to provide instructions. A TASC Lawyer acted on her behalf and proceeded the hearing. The charges were dismissed after one of the crucial prosecution witnesses, the police officer who found the drugs, failed to attend the hearing.
Mr M presented to an initial interview at TASC with his father and he was clearly psychotic. He was on no form of treatment order. He had been charged with ‘Attempted unlawful entry of a motor vehicle for committing an indictable offence’. His father was worried about the offence and about his son’s illness. A TASC Lawyer represented Mr M and a TASC Advocate also gave some general advice to his father about the Mental Health System. Because of this, Mr M was placed on an involuntary treatment order, and the provisions under the Mental Health Act 2016 ensured that the charge against him was discontinued.
Mr S was referred to TASC by the office of the Adult Guardian (AG) after he was charged with Going Armed to cause fear, Enter Premises and steal and Commit public nuisance. Mr S was admitted as an inpatient at the Mental Health Unit at the hospital immediately after the offences and was an inpatient for 2 months. A TASC Lawyer arranged for a psychiatric assessment that ultimately said that Mr S was of sound mind at the time and fit for trial. The TASC Lawyer was successful in having the common assault and enter premises charges dropped – and the facts amended to remove any reference to actual violence. Mr S entered a plea of guilty to Stealing and Going armed to cause fear. He was sentenced to a 12-month good behaviour bond with a recognisance and no conviction was recorded.
Mr S presented with some issues surrounding his fitness for trial, namely that he was hard to follow and had difficulty answering direct questions. A TASC Lawyer was able to obtain Legal Aid funding for a report to examine these issues. The Doctor provided a report that Mr S was fit for trial and that he was intoxicated at the time of the offences. The report also illuminated the extent of his intellectual disability. With the assistance of the report, the TASC Lawyer was able to get a reduced fine for Mr S, and no conviction was recorded.