Seeking Legal Advice
A victim of crime may require access to a professional legal opinion. Legal services are listed below. Victims of crime are considered a ‘witness’ by police and court, and do not have their own lawyer while going through the court process. It’s always important to try and see legal advice if you think you may need it.
In Queensland a person with disability can have an independent third person with them during a police and legal interview and also during court processes (Equal Treatment Bench Book 2005).
A support person should not give legal advice and should not make the decision about whether or not a person should see police, a lawyer or report the crime. Neither should a support worker tell a person what they need to do and say to police or a lawyer. It is best that the person who has been a victim of a crime tells police and legal professionals what has happened in their own words.
The support person may go with the person who has experienced a crime, to help them to find, call and talk to a lawyer or report to police. It is important to not take over or speak for them. Your role is one of support only, rather than authority. The person may also need help write down what the next steps are, to collect all any information or paperwork needed and process or make sense of the information from the lawyer.
Each case is unique, and a support person cannot assume what will happen to a person nor give your opinion as legal advice. It is important the person is given all the relevant information about what the legal opinion or advise is, as knowing the legal implications is vital in good decision making.
The role of a support person is to provide emotional support, stand alongside them during the process and assist in explaining things that they do not understand or asking that something is asked or explained again.
Communication may be a challenge for some people, and you could see your role as that of being a facilitator or an interpreter, as you relay and clarify information each party gives to the other without adding in your view or interpretation of the situation.
This is some basic general information to assist you based on our knowledge, the current research and our experience. For specific advice consult a lawyer.
It’s important to get accurate advice from professionals in the given area – Legal and other Support Services include:
- Legal aid: www.legalaid.qld.gov.au – or call 1300 65 11 88
- Womens Legal Service: https://www.wlsq.org.au/ or call 1800 957 957
- Queensland Police Service: www.police.qld.gov.au or call Police Link – 131 444.
- Community Legal Services – to research community legal services in your area
- Other Queensland-based Legal services
- ADA Law: Call 1800 232 529 or click on https://adalaw.com.au/
ADA Law assists people living with cognitive impairments, or questioned capacity, when a person wants to review, change, or revoke: QCAT appointed decision makers; Enduring Powers of Attorney; Advance Health Directives. ADA Law can also assist with support to work with their existing decision makers, a person is appearing at MHRT hearings for ECT applications; Forensic Order Reviews; (or Treatment Authorities under 18 years of age); are referred by Legal Aid Queensland or are Living in aged care and experiencing elder abuse, either by a family member, service provider, or attorney.
- Court Support Service:
PACT provides court support services to children, young people and adults as they go through their legal journey. PACT educates, empowers and supports children and vulnerable victims and witnesses of any age, helping them understand the legal system and being by their side as they give their best evidence.
Supporting the Person who is a Victim of Crime and Police reporting options:
Please go to this page to see more information. https://wwild.org.au/supporting-the-person who discloses abuse/
Making a Statement and Use of 93A Video Interviews for Special Witnesses
The first time a child or adult with ‘impairment of the mind’ discloses an incident of sexual assault, it will be the most accurate telling of what happened (Hayes, S. 2009). For this reason, the first or second person who hears the disclosure will need to keep a record of the conversation as told in their words, noting time, date, place, and who was there. When they tell you about what has happened, you need may have to give a supporting witness statement to police or possibly be called to court as a witness on their behalf. This record of conversation could become an important piece of evidence.
A person with a disability may also be able to utilise Special Witness Video Interviews during police reporting as part of the Special witness provisions, which means a person may be interviewed using a video camera rather than using a written statement, although that is dependent on certain factors.
Sometimes a person will have already gone to make a statement about the crime to the police. Again, it is important for police to know if a person has an intellectual disability because they can alter the way they take evidence, communicate with the person, and can notify the Office of Department of Public Prosecutions of possible Special witness status if the case ends up going to court.
Reference: Making A Statement: An Exploratory Study of Barriers Facing Women with Intellectual Disabilities when Making a Statement about Sexual Assault to the Police (2000) is a good article about the obstacles to making a statement for people with an intellectual difference.
Queensland has adopted ‘The Charter of Victim’s Rights’ in the Amended ‘Victims of Crime Assistance Act 2009, which set out the following rights for victims of crime.
- Fair and dignified treatment
- Privacy of victim
- Information about services
- Information about investigation of offender
- Information about prosecution of the offender
- Victim to be advised on their role as a witness
- Minimal exposure to and contact with the offender
- Victim Impact Statements
- Information about the convicted offender
- Information about prosecution of the offender
- The return of a victim’s property that is held by the state for an investigation or as evidence as soon as possible.
- Eligible persons will be given the opportunity to write to the parole board under the Corrective Services Act 2006 about granting parole to the offender.
Amendment of the Victims of Crime Assistance Act 2009
Victim Assist Queensland supports victims of violence to access services and financial assistance.
The amended Victims of Crime Assistance Act 2009 (VOCAA) commenced 1 July 2017.
The purpose of the changes is to ensure that government and non-government agencies provide an increasingly effective response to victims of crime in Queensland. On 22 March 2017, the Queensland Parliament passed the Victims of Crime Assistance and Other Legislation Amendment Act 2017.
To summarise, the Act:
- simplifies how victims apply for financial assistance
- expands the scope of financial assistance to include all victims of domestic and family violence
- removes limiting pools of financial assistance to ensure all applications are considered on their own merit
- introduces of a Charter of Victims’ Rights to guide how government and non-government agencies respond to victims
- introduces a sexual assault counselling privilege
- automatically gives victims of a sexual offence the status of special witness if they are to give evidence in a criminal proceeding against the accused.
You can read more about about the changes, including:
- the Act
- Parliamentary committee report
- Final report of the review of the Victims of Crime Assistance Act 2009
Visiting a lawyer
It is very important that a person is given accurate information, so they can make an informed decision about the course of action to take. Usually, it is a lawyer who will been the most helpful person to talk to when a person is a victim of a crime. When a person with an intellectual disability goes to see a lawyer, they may face significant difficulties that are both individual and systemic.
The law is complex, abstract and difficult for most ordinary Australians to access and understand. When a person goes to get legal advice, they may be given a lengthy opinion delivered in legalistic language and it is unlikely they will fully understand what has been said. If you are going as their support person there are some things, you can request that may help them and these are legislated in the Equal Treatment Benchbook 2005.
The Court Process
Preparing for court to give evidence is important. It is important the person supporting a person with an intellectual disability in court has a trusting and respectful relationship with them. This will be an anxious and stressful time they need to be reassured and supported during this time.
It can take people a long time to fully understand what will happen to them in the court. In preparing for court, it is useful for them to understand who will be in the court room and what their roles are. There is good information about this on the Department of Justice and Attorney General www.justice.qld.gov.au
There is further information about Special Witness Provisions when you attend court as a witness on the LINK
Preparing for court
It may have been a very long time since the crime and the court case. They will be anxious about the day. Reassure them and to the best of your ability explain the court process – this may mean that you liaise with a Court Support person from Victims Assist Queensland or contact with Victims Liaison Officer (VLO) who has this knowledge or a community legal service or victim support organisation. The court support workers will remind the victim of crime about the date of the court case and what time, and which court the person who has been the victim of crime needs. This person may also be able to arrange for any special witness provisions to be allowed in the court case if needed. This can include the use of screens or video conferencing (talking to the court through the TV) to be used when the person is giving their evidence. A person may also be able to wait in an area away from the offender, all of these arrangements can be arranged with the lawyer and the VLO.
- Do not talk to them about the crime or their evidence. Their lawyer will explain that they cannot talk about their evidence to other people.
- Tell them that while waiting at court you can talk about everyday things but not about the evidence in their case.
- If possible, arrange for them to visit the court room before the day of the court case.
- Remind them if they need to take any papers to court with them.
- Talk about how people act in a court room and how people dress.
- Explain that they may have to wait a long time in the court the day they go. Encourage them to take a drink and something to eat and something to do – book game, pack of cards or portable DVD player (if available), with them on the day.
- Arrange how they will get to court and a meeting place for you, them and their lawyer on the day of the case.
- Check they understand what will happen by asking them to tell you what will happen.
On the day of court
Ring them to make sure they are up and ready to get to court.
- Do not talk about the details of the case with them, your role is again one of emotional support and to explain what is happening and has been said.
- Pack a bag to take to court.
- They will need something to drink.
- Something to do – a book or magazine to read, a game to play.
- Stay with them.
When the day is over its best to assist them with being calm, having an understanding of what has happened and support them to get home safely. You may encourage them to do something special when the case is finished – go out for a meal with friends.
Check that they understand the process and what will happen next – they can talk to court staff if they are unsure about this or have any questions.
Further information for professionals and support workers are available in the following publications:
WWILD’s – How to Hear Me Resource Kit
In 2012 the WWILD Disability Training Program – Victims of Crime published How to Hear Me: a resource kit for counsellors and other professionals working with people with intellectual disabilities. This resource kit brings together much of the knowledge WWILD has gathered over the years about the lives of vulnerable people with intellectual disabilities and seeks to educate on issues that affect people’s lives, particularly for a counselling context and provides some tips for legal professionals. How to Hear Me was published with the support of the Queensland Department of Justice and Attorney-General Building Capacity for Victims of Crime Services Funding Program.
This is basic information and there are times when you will need to respond to the diversity of people and meet their individual needs. In these situations, please work with the appropriate professionals and follow their instructions in each particular case.