Courts play an increasingly important role in identifying the underlying factors that may contribute to a person’s likelihood of re-offending, including support needs connected to disability (1).
Understanding the communication preferences of a person with disability is an important first step to ensuring effective court outcomes and procedural fairness.
This page features key information for judicial officers on communicating with people with disability. It covers:
Many cognitive disabilities are hidden. People with acquired brain injuries, autism spectrum disorder and mild intellectual disabilities can cycle through the criminal justice system with their support needs being overlooked.
The Court Mental Health Advice and Response Service (Forensicare) can provide clarity around mental health concerns that you may have about a self-represented litigant.
Alternatively, a referral to the duty lawyer with a reference to Supporting Justice resources may assist.
Recognising the signs of disability is a way of protecting and upholding the rights of individuals in the criminal justice system. It is also the right of that individual not to accept support or assistance.
It is important to consider the language used to communicate with and about a person with disability.
Judicial officers in Victoria have significant freedom to choose how they conduct matters in their courtrooms.
Some creative ways that a judicial officer can conduct hearings include:
Further reading on Court Craft:
Consider the communications needs of the individual and their right to participate meaningfully in matters that affect them.
Some of these problem-solving court techniques can be used in mainstream courts. This has the potential to replicate the success of problem-solving courts for offenders who are not eligible for such courts.
Tools available to judicial officers in mainstream Victorian courts include the ability to defer sentencing and order judicial monitoring of offenders on Community Corrections Orders.
There are also examples from regional courts where listing practices have been changed to accommodate problem-solving approaches for people with complex support needs.
Problem-solving courts broadly operate on the following principles:
In a problem-solving sentencing court, a judicial officer’s role is to implement solution-focused techniques geared towards developing a ‘therapeutic alliance’ with the offender (2).
In mainstream court settings, it is possible to find ways to work with individuals to promote their self-determination by encouraging them to set goals that are connected to their sentence outcomes.
Developing trust and respect with the individual helps to build a therapeutic relationship.
Further reading on techniques for judicial communication and building effective therapeutic relationships:
In mainstream settings, CISP or Youth Justice sentencing deferrals can play a similar role to the service coordination in specialist courts. Additionally, offenders eligible for DHHS Forensic Disability Program can have service plans prepared for the court.
For more information about the NDIS service landscape, refer to the access the NDIS guide for lawyers, judicial officers and court professionals.
The disability service landscape is changing with the roll-out of the NDIS.
Judicial officers can play an important role in promoting the support opportunities offered by the Scheme. The NDIS can provide assistance with:
In addition to promoting the opportunities of the NDIS, judicial officers play a central role in identifying those individuals who the NDIS is failing, and holding service providers to account.
For more information on the types of supports that may be available to people with disability see:
Michael King, Solution-Focused Judging Bench Book (2009)
Pauline Spencer, 'To Dream the Impossible Dream? Therapeutic Jurisprudence in Mainstream Courts';
The Advocate's Gateway - resources for legal practitioners and judicial officers on questioning vulnerable witnesses
1: Stuart Ross and Jedda Graham, ‘Screening offenders for health and mental health problems at court’ (2012) 19(1) Psychiatry, Psychology and Law 75, 85
2: Michael King, Solution-Focused Judging Bench Book (2009), 214.
Supporting Justice © Centre for Innovative Justice, RMIT University, 2019
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