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OVERVIEW OF OBJECTIVES
Queensland Social Justice Centre, providing information as a link for lawyers & advocates.
An enhanced professional awareness of the legal and social impacts of particular disabilities on offending behaviour decreases the prospect that, in some cases, persons with a disability might not be afforded a just outcome – an outcome that is every person’s right according to law.
Although the public and a variety of professionals can use this resource for educative purposes, The Advocacy and Support Centre expects that lawyers will utilise it to enhance their awareness of procedures where an issue of disability arises in relation to the application of the criminal law.
Lawyers must be capable of acting as a zealous advocate for defendants who appear to be, either mentally ill or intellectually disabled at the time of taking instructions, or where the defendant is intellectually impaired, or mentally ill at the time of the alleged offence.
In all cases, the fundamental consideration should be a defendant’s level of culpability, and their subsequent fitness to answer charges against them. Therefore, this resource focuses on the issues of ‘fitness to plead’; ‘unsoundness of mind’; ‘disability as a mitigating factor’; and the salient provisions and processes stipulated under the Mental Health Act 2000 (Qld).
Lawyers must note that the mere presence of a disability does not, in and of itself, establish that there is a sufficient connection between the disability and the alleged offence to avail a defendant of a disability defence per se. However, a Court may nevertheless accept the disability and its social connotations as a mitigating factor in sentencing. Therefore, lawyers must not discount the potential significance of the existence of any clinically diagnosed mental illness, or intellectual disability and/or acquired brain injury, particularly in relation to submissions in support of mitigation of sentence where criminal responsibility has already been established.
Because time is so often ‘of the essence’, particularly for duty lawyers, practitioners may like to utilise the quick find flowcharts included in this website in order to access information quickly. In addition, we have included case studies that portray typical circumstances that a practitioner may encounter when representing clients with a relevant disability. These case studies provide contextual guidelines for what may be an acceptable course of action in those circumstances. Nevertheless, in any case, where information on this website suggests ways in which a case might proceed, it cannot be taken that this particular course of action is the most appropriate in all, or, any cases. The most appropriate course will invariably depend on all of the circumstances in each case.