People with cognitive impairments are vastly overrepresented in the criminal justice system. Protective measures put in place on initial contact with police ensure that a vulnerable person's rights are protected, the most important being the right to silence. These measures are crucial in ensuring a person with a cognitive impairment doesn't make statements that are adverse to their interest.

The Victoria Police Manual provides that any vulnerable persons should be given appropriate support and police have a duty to use a human rights approach which ensures a fair, accessible and respectful process. At the outset, this support can be provided by telling an accused person with cognitive impairment of their right to have an Independent Third Person (ITP) present during a police interview.

The process of participating in a police interview can be exceptionally daunting. The atmosphere in itself can cause distress. Now throw in the complexity of the allegations and the caution that is read to an accused person. It's difficult for anyone to properly absorb the information, let alone a person with a cognitive impairment. This is where an Independent Third Person comes into play.

What is an Independent Third Person (ITP) and what do they do?

Independent Third Persons are trained volunteers who remain independent of all parties and objective in their interactions. They protect persons with cognitive impairments by ensuring they are not disadvantaged in their communication with police. An ITP can be a volunteer appointed to assist you at the time of the interview or could be a relative or close friend who is 18 years or over.

An ITP cannot give legal advice, rather their presence is designed to help you understand what police are saying during the interview, the most obvious being the explanation of your legal rights. Their attendance also ensures the police do not engage in improper behaviour that violates a person's rights during interview. The ITP can request a break during the interview if they observe a person appearing distressed or unable to understand any questions put to them.

What happens later in my proceedings if I did not have an ITP present during the police interview and I say I'm guilty of the offence?

You're at the court hearing stage in your matter and you did not have an ITP present in your interview. You've made admissions to something you did not do because you didn't understand the questions police asked of you. Can your statement during the police interview be admitted into evidence as an admission?

The short answer is probably not. Your lawyer will look out for this issue if they are aware that you suffer from a cognitive impairment and attended an interview without a legal representative or ITP. Your lawyer would make arguments pursuant to the Evidence Act 2008 (Vic) to say that the admissions should be excluded based on unfairness or impropriety on the part of police.

Case example:

Here's an example of a Western Australian case where the lack of protective measures for accused man Mr Gibson resulted in wrongful conviction:

Gibson v State of WA [2017] WASCA 141

  • Gene Gibson was of Aboriginal descent from the community of Kiwirrkurra (Western Australia) who was wrongfully convicted of manslaughter
  • His first language was Pintupi
  • He spoke very little English and had a mental impairment
  • He was not given an interpreter or support person and was interviewed in 2012
  • He admitted to killing the victim during the interview
  • He was sentenced to seven-and-a-half years imprisonment

Fast forward 5 years:

  • Gene lodged an appeal on the basis that he did not understand the questions put to him by police
  • He withdrew his plea of guilty
  • The appeal was granted, admissions struck out and Gene was acquitted
  • He was immediately released from custody

The tragic aspect to this case was that Gene had never even met the victim. He was coerced by police into admitting guilt for a crime he did not commit. The pressure placed on him by police was extreme and was made worse as a result of his inability to understand the questions and his cognitive impairment. In this way, police officers exploited Gene's vulnerabilities.

If you or someone you know that has a cognitive impairment is about to be interviewed by police, make sure you contact a lawyer as soon as possible so that the person's rights can be comprehensively explained.