So You Have to Go to Court

“So you have to go to court!”

Notes for trainer or support person

If materials or the video referred to in this document are not available or are required in an alternative format please go to the Diversity Services website - People with disability/Publications page.

Website: www.diversityservices.lawlink.nsw.gov.au

Or call: Department of Justice on (02) 8688 7507 ph or

(02) 8688 7733 TTY (telecommunication device for people who are Deaf or have a speech impairment).

Acknowledgements

The Department of Justice would like to acknowledge the fsd video reference group and the intellectual disability rights service for assistance with this material.

Table of Contents

1.1 Introduction 4

1.2 What does a court support person do? 5

1.3 Why are court support people needed? 6

1.4 Before court 8

1.5 On the day of court 14

1.6 After court 18

Definitions 21

Commonly used acronyms 24

CONTACT LIST 25

1.7 Legal Contacts 25

1.8 Local Police Stations 28

1.9 Disability Advocacy/Legal Organisations 28

1.10 Witness and Victims’ Services 32

1.11 Interpreter Service 33

appendix 35

Notes for a person Going to court 35

1.1 Introduction 36

1.2 What does a court support person do? 36

1.3 Why are court support people needed? 36

1.4 Before court 36

1.5 On the day of court 38

1.6 After court 39

1.1 Introduction

This material has been developed to accompany the DVD “So you have to go to court!” for people with cognitive disabilities. The video focuses on criminal matters in the local court as most criminal cases begin and end there.

Serious criminal charges (e.g. manslaughter or sexual assault) are heard in the District Court. There will be a judge and sometimes a jury for cases in the District Court. There will be a prosecutor from the Office of the Director of Public Prosecutions (DPP) and assistance from the Witness Assistance Program (see contact list). A defendant in the District Court will normally have a solicitor (or perhaps a barrister) to represent them.

The material below is to supplement the information in the video. It includes many useful for preparing to go to court. Please use the following points as a guide. They are not provided as legal advice. It is strongly advised that the person you are supporting obtain legal advice from a solicitor.

1.2 How to use this document:

The notes for the person with a cognitive disability going to court as a defendant, witness or victim are in bold. We have attached a copy of these points at the back of this document.

Additional details and explanations for the support person or trainer follow in plain text. Please note these points are broad, flexible guidelines. The specific requirements of the person going to court will determine the exact role of the court support person in each hearing. It is suggested a trainer or support person familiarise themselves with the material before working with the person with the disability and advise that more than one session be set aside to discuss material.

All of the bullet points are relevant to both defendants and witnesses unless stated otherwise.

1.3 What does a court support person do?

· A court support person is someone who can help you get ready for court and goes with you.

As a court support person you will assist a person with a disability who must appear in court. Your assistance may be required before, during and after the court hearing.

You can do this by:

o assisting the person to understand what is required of them in court;

o helping the person understand what is happening at court;

o assisting the court to understand the person who has the disability; and

o providing emotional and psychological support to the person with the disability.

· The court support person is not your solicitor.

It is very important the person realises that even though they have a support person, it is in their interest to also secure a solicitor.

1.4 Why are court support people needed?

· Court is a very complicated and scary place. You may find it helpful to take a court support person with you. It is very important that if you are asked to go to court you must attend.

People with cognitive disabilities are significantly disadvantaged before, during and after court proceedings. Many people think if they ignore their court hearing it will go away. If they don’t attend they could find themselves in further trouble.

· At court you may not understand the questions you are asked by the solicitors. You have to do what the court tells you. I can help you with this.

The questions asked by solicitors and the directions from the court can be complicated. You may have to explain to the person the purpose of being at court and the consequences of what is being said and decided. The person may also have difficulty in instructing their solicitor.

It is critical that you must not tell or help the person decide what to say. You must not help the person to prepare their evidence, and you must not rehearse what he or she is going to say.

You may need to stress the importance of being present at court and the importance of accessing a solicitor.

A person with a cognitive disability may be more anxious than other witnesses or the defendant. Witnesses with a cognitive disability may also be or feel especially vulnerable in court due to the presence of the defendant.

· Do you want me to be your support person?

The person with a cognitive disability has the right to choose their court support person. It is preferable that the court support person be a trained court support person. Where a trained court support person is not available a community support worker, a relative or a friend may act as a court support person.

To be a court support person, you must:

o be able to communicate clearly with the defendant, witness or victim as well as with the court;

o not be a witness involved or likely to be involved in the hearing;

o not have a financial interest in the outcome of the hearing; and

o not be a solicitor involved in the case.

It is also preferable that you are over 18 years of age.

· You need to understand, you cannot tell me what happened and I cannot help you decide what to say.

Again, it is critical that you must not tell or help the person decide what to say. You must not help the person to prepare their evidence, and you must not rehearse what he or she is going to say. You must not talk at all about the evidence with the person before court, during the hearing, during breaks or between hearings.

If you behave in a way that gives the appearance that you are helping or telling the person what to say you may be asked to stop your role as support person and may be removed from the courtroom.

1.5 Before court

· Defendants only: Go to Legal Aid for a free 30-minute legal session.

Legal Aid is a Government legal service that provides free legal advice, as well as court representation and grants of legal aid funds. Their services usually focus on family law and criminal legal matters but they discuss any issues with people with disabilities. For more information about the services Legal Aid can provide visit www.legalaid.nsw.gov.au

· Defendants only: Get a solicitor and ask them to explain anything you don’t understand.

It is strongly recommended the person obtain legal representation and advice, where appropriate. You may need to help the person organise this and attend appointments with them. You cannot provide legal representation or advice.

· Witnesses only: Ask the police officer in charge of the case for information.

If the person is a witness or victim there will be a police officer in charge of the case that can provide advice and information about the hearing.

· Call your local disability service or advocacy organisation for help.

See attached contact list or yellow pages.

· Watch the video “So you have to go to court”

Use the video to reinforce the messages of what to do when they have to go to court. Also point out to the person:

o that courts are a formal environment and appropriate dress should be worn;

o what general behaviour is expected in a court hearing;

o that on the day they may have to wait a while before they are called into the courtroom (suggest appropriate ways to keep busy such as take a magazine, quiet game...); and

o court formalities.

Read the Legal Aid Commission of NSW brochure about going to court for further advice. This is also available on their website: www.legalaid.nsw.gov.au.

· Use your “Checklist” to get ready before the hearing.

Go through and complete the “Checklist” on the back of the person’s notes provided in this Kit. Explain to the person again why they must go to court and then review:

o the location of the court;

o when to leave home to be at the court early;

o how to get to court, what public transport is available;

o transport arrangements as required;

o what papers the person needs to take to court; and

o where to meet you on the day of the hearing. (This should be at the entrance before the security checkpoint.)

· Ask the support person to tell you about the ‘Who’s in Court’ picture

This handout can be useful to remind the person who will be there on the day for them and where people in court will sit. You should explain the courtroom could be laid out differently on the day they attend. Legal representatives may sit on different sides of the bar table depending on the location of the witness box.

· You can go to court a day or two early if you want to see what it is like inside and what people do.

Ring the courthouse ahead of the hearing and ask if you can bring the person with the cognitive disability in advance of the hearing for a tour and orientation. This will provide them with a sense of the courtroom atmosphere and how things are run. Please note this needs to be conducted sensitively as it can scare a person and deter their attendance.

· The support person can help you when you see your solicitor.

Offer to attend any meetings with the lawyer’s involved.

You may be able to:

o help with communication between the person and the lawyer;

o reinforce the legal advice that the person is given;

o help the person to raise questions with the lawyer; and

o be a consistent person as the lawyer often changes.

Make sure the lawyer talks to the person and doesn’t address the issues to you. You are not the client, you are there to assist.

If the lawyer or the person asks you to leave at any stage during an interview it is best to do so as there may be a good reason for this.

· It can really help you if you tell your solicitor the types of things that will help you while in court.

Before the hearing you should discuss with the person what types of assistance and support they may require at the hearing. They may ask for the solicitor to speak in plain English without jargon.

· It can also really help your case if your solicitor can tell the court you have a disability and what kinds of help you might need while in court. The court will do what it can to help you while you are there.

It can make a difference in the outcome of the hearing if the court is notified that the person has a disability and the types of adjustments they may need. Discuss with the person whether they want the court to know about their disability. If they agree, encourage them to notify their solicitor or officer in charge or the court office. Note: If the person wants you to notify the solicitor or court it is critical to obtain the person’s permission before telling the court.

The court will make every effort to provide the reasonable adjustments requested, based on the person’s disability.

Some reasonable adjustments must be requested of the court in advance such as:

o plain English material;

o large print documents;

o witness screens (to shield the victim);

o wheelchair access provisions;

o altered starting times (there can be lengthy delays and you can request an earlier start time); and

o interpreters or the use of an infrared system (a.k.a. Hearing loop).

Other reasonable adjustments may be requested on the day such as breaks for concentration and exhaustion and water.

· If you agree the court support person can help you work with your solicitor and tell them why you have a court support person.

If solicitors are involved, discuss with them your role as a court support person in any meetings as well as during the hearing.

If solicitors are involved, go with the person you are supporting to any meetings with their solicitors and if the person and the solicitors agree, stay at the meeting to support the person.