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Precedent (Australian Lawyers Alliance) |
DISCRETIONARY OR DISCRIMINATORY
EVIDENCE OF WITNESSES WITH COMMUNICATION DISABILITIES
By Natalie Wade
The requirement of the judicial officer to assess a witness’s ability to overcome their incapacity if they have a communication disability means that they can appear to be exercising discretion in a discriminatory fashion. To ensure that integrity and public confidence are maintained in the civil justice system, education should be made available to better equip judicial officers to exercise discretion when determining whether a witness with a communication disability is competent and compellable to give evidence under the Evidence Act 1995 (Cth).
The role of the judge in facilitating the participation of witnesses with communication disabilities in civil trials is paramount. One in seven people has a communication disability.[1] Examples include a person with a hearing impairment who uses AUSLAN[2] to communicate, or a person with athetoid cerebral palsy resulting in a significant speech impairment due to involuntary muscle contractions[3] who communicates with an electronic device such as an iPad.
It is imperative that people with communication disabilities are able to give evidence in civil trials. They may be required to give evidence in everyday civil matters such as contract disputes, consumer rights or guardianship and administration cases. This article addresses the procedural complexities involved in finding a witness with a communication disability competent and compellable to give evidence.
The witness’s ability to function as a witness determines their competence.[4] If competent, the witness will be compelled to give evidence. Every person is assumed to be competent and compellable to give evidence in a Federal Court.[5] However, exceptions to that apply under the Evidence Act 1995 (Cth) (EAC) if a witness has reduced capacity.[6] This article concerns witnesses, whose capacity is reduced as a result of their communication disability, thus enlivening those provisions.
The EAC applies to the Commonwealth courts. The central provisions to this article, namely ss13, 14 and 31 of the EAC are replicated in the Evidence Act 1995 (NSW), Evidence Act 2001 (TAS), Evidence Act 2008 (VIC) and Evidence Act 2011 (ACT). This article covers those jurisdictions.[7]
The statutory demands of the EAC on the judicial officer to directly consider the witness’s disability when determining their competence and compellability to give evidence could result in the judicial officer appearing to exercising their discretion in a discriminatory fashion.
Section 13 of the EAC permits a witness with a lack of capacity to be found competent if their incapacity can be overcome. Section 14 excuses the witness from being compelled to give evidence if there would be substantial cost or delay incurred by the court in overcoming the incapacity. Importantly, s31 explicitly provides for ‘deaf and mute’ witnesses, requiring that the judge adopt appropriate ways of questioning or hearing the witness. This provision ensures that a flexible approach to overcoming the incapacity is adopted by the judicial officer when determining whether a witness with a communication disability is competent and compellable.
A judicial officer is not subject to instruments such as the Disability Discrimination Act 1992 (Cth) (DDA).[8] However, there is a professional expectation that judicial officers will not engage in discriminatory practices in order to maintain integrity and public confidence in the judiciary.
The requirement for judicial officers (under ss13, 14 and 31 of the EAC) to consider the witness’s disability and how it can be accommodated in practical terms creates a need for the provision of judicial education. To ensure that such education is provided in accordance with the principles of judicial independence, continuing professional development seminars or conferences on how evidence can be communicated by witnesses with communication disabilities should be provided by the National Judicial College of Australia (NJCA).
In addition, publication of an Equality Before the Law Bench book (Bench Book) by the court (or Attorney-General’s Department) for the Commonwealth jurisdiction or amendment to existing Equality Before the Law Bench Books in NSW to provide guidance on approaches to hearing the evidence of a witness with a communication disability pursuant to ss13, 14 and 31 would assist in providing judicial offers with a practical reference guide on these topics.
These measures are a good start, but what is needed is consistency. A tried and tested method is needed to ensure that judicial officers will be provided with appropriate and up-to-date tools to have a greater understanding of disability; to identify ways of overcoming a witness’s incapacity to give evidence.
Prima facie, a witness is competent to give evidence.[9] Section 13 of the EAC applies if a witness has a lack of capacity for any reason including mental, intellectual or physical disability.[10] It is presumed that unless the contrary is proved, a person is not incompetent because of section 13.[11] That is, a person with a physical disability is not presumed to have a lack of capacity by virtue of having a disability. The contrary must be proven. A person will be found to have a lack of capacity if they cannot understand a question of fact or give an answer that can be understood.[12] The impact of communication disabilities on the capacity for the witness to be able to hear (understand) or speak (give) an answer to a question of fact, makes them more likely to be subject to section 13. To find a witness with a lack of capacity to be competent to give evidence, the judicial officer must determine:
1. whether the witness can understand a question and give an answer that can be understood?;[13] and
2. if the witness has an incapacity, can the incapacity be overcome?[14]
When determining whether a witness’s incapacity can be overcome, s13(8) permits ‘the court to inform itself as it sees fit, including by obtaining information from a person who has relevant specialised knowledge based on the person’s training, study or experience’. Further, the judicial officer may also turn to s31 of the EAC, which applies to deaf and mute witnesses. Section 31 allows a witness who cannot hear adequately to be questioned in an appropriate way[15] or a witness who cannot speak adequately to give evidence by an appropriate means.[16] The judicial officer may then give directions as to the appropriate way or means a witness will be questioned or give their evidence.[17]
Accordingly, mechanisms for overcoming the lack of capacity may include, for example, identifying that a witness with a hearing impairment requires the aid of an AUSLAN interpreter and that with that aid they will be able to understand a question, or a witness who is non-verbal due a physical disability will be able to use an electronic device such as an iPad to give evidence and so will be able to give an answer that can be understood.
If the lack of capacity can be overcome, then the witness will be deemed to be competent.
Having found a witness competent to give evidence, the judicial officer must determine if they are compellable. A witness, who is competent to give evidence about a fact, is compellable to give that evidence.[18] However, a witness with reduced capacity can be excused from giving evidence in accordance with s14 of the EAC:
a) if there is substantial cost or delay incurred to ensure the person has capacity to understand or answer a question; and
b) if adequate evidence on that matter has been given or will be able to be given from other persons or sources.[19]
It is at this point that the judge must consider the practical realities of having a competent witness with a communication disability. The court will need to consider the cost and resource implications involved in compelling the witness. The judge may also consider whether there is similar evidence being given by another witness.[20] If the judicial officer finds that there is substantial cost or delay and there is adequate evidence on the matter, the witness with a communication disability will be excused from giving evidence.
A landmark case in hearing evidence from a witness with a communication disability was heard in 1979 (in the absence of the EAC, but the role of the judge in facilitating the participation of the witness was then, as it is now, imperative). Anne McDonald, a young woman with athetoid cerebral palsy, communicated through an alphabet board to spell words and sentences by pointing to individual letters with the physical support of a trained carer. Ms McDonald successfully won her right to move from a Victorian institution in May 1979.[21] She was then offered a contract by Penguin Books to biograph her experience.[22] At the time, her financial affairs were under the control of the Public Trustee who refused signing the contract on her behalf. She brought an action in the Victorian Supreme Court to take control of her financial affairs.[23] Justice Murphy of the Victorian Supreme Court ordered that a Senior Master conduct an investigation pursuant to the Public Trustee Act because it would otherwise take up significant court time and be highly stressful for Ms McDonald.[24] In proceedings, Master Jacobs asked Ms McDonald questions in the absence of her trained carer. Upon the return of her carer to the courtroom, Ms McDonald provided the answers to the questions.[25] This example demonstrates how a judicial officer may be satisfied that the incapacity can be overcome (and the integrity of the communication) without substantial cost or delay incurred by the court.
In the author’s view, judicial officers exercising discretion under section 14 experience an inherent danger of appearing discriminatory when considering a person’s disability to make a finding of the witness’ compellability. While judicial officers are not subject to the DDA, there is a professional expectation to avoid discriminatory practices.
The role and functions of a judicial officer highlight the importance of judicial education in addressing issues facing witnesses with communication disabilities. However, judicial education on these issues must be provided without interfering with judicial independence.
Judicial oaths commit judicial officers ‘to do right to all manner of people according to the law, without fear or favour, affection or ill-will’.[26] Former Chief Justice Gleeson reflected in his commentary, entitled The State of the Judicature,[27] that ‘the objectives and functions of the judiciary were declared in the Statement of Principles of the Independence of the Judiciary adopted by the Chief Justices of the Asia-Pacific region at Beijing in 1995 as:
1. to ensure that all persons are able to live securely under the rule of law;
2. to promote, within the proper limits of the judicial function, the observance and the attainment of human rights; and
3. to administer the law impartially among persons and between persons and the State.’[28]
These functions are the foundation of the performance of judicial duties.
The value of judicial education to judicial functions is paramount. However, the role and importance of judicial education has not been unanimously supported throughout history.[29] Nevertheless, the establishment of the National Judicial College of Australia (NJCA) in 2002[30] and ongoing programs being offered to the judiciary show support for the value of judicial education in Australia.
Given the demands of ss13, 14 and 31 of the EAC, it is imperative that judicial officers have access to education and resources to aid them in understanding best practices in communication methods used by witnesses with communication disabilities.
It is understandable that these issues could fall outside judicial officers’ background and knowledge. Judicial officers are often appointed from the Bar[31] which develops a specific skill set of a professional advocate. [3] However, with the increasing complexity and demand of judicial work, the skills required go beyond that experienced by an advocate.[32] There is a need for all judicial officers from the superior to lower courts to be offered with specific training on areas they may not have encountered before and which are not matters of substantive law.[33] These matters which may require continuing judicial education have been described as matters of ‘human interaction’ rather than the technical aspects of judicial work.[34]
Judicial education offered on topics such as how a witness communicates, or what accommodations could be made by the court, must be provided in accordance with the principles of judicial independence. These include the principle that the participation of judicial officers is voluntary.[35]
Currently, there are a number of ways in which judicial officers can access continuing judicial education at all levels in the federal and state jurisdictions. The NJCA ‘assists judicial officers to administer the law in a just, competent and speedy way by offering them [educational] opportunities’.[36] Routinely, the NJCA provides conferences and seminars on current issues to update judicial officers on issues that may arise in their courts.
In addition to regular seminars or conferences, an Equality Before the Law Bench Book could be published for the Commonwealth, Victorian and ACT jurisdictions and the existing NSW Equality Before the Law Bench Book to provide a reference for judicial officers exercising discretion in accordance with ss13, 14 and 31. Currently, WA, NSW and Queensland have made these Books publicly available and include chapters on best practice to ensure that people with disabilities can access justice. Published by either the Supreme Court library,[37] Judicial Commission[38] or Attorney-General’s Department,[39] these Bench Books provide a reference guide to help judicial officers more readily ‘identify and appreciate the many and varied causes of disadvantage and inequality...prompt[ing] renewed consideration of the practical ways in which judicial officers – and others – might go about doing “right to all manner of people, according to law”’.[40] Bench Books that have specific inclusion of considerations that need to be made to find a witness with a communication disability competent and compellable under the EAC would better equip judicial officers to efficiently and effectively resolve those issues with accepted and consistent information.
The exercise of discretion under ss13, 14 and 31 creates two issues:
1. The judicial officer could be seen to be engaging in discriminatory practices by finding a witness not competent or compellable because of the requisite consideration of how the person’s disability can (or cannot be) accommodated to enable the witness to perform their functions; and
2. There is uncertainty for witnesses with communication disabilities and their counsel to be assured that they will not be denied access to justice on the basis of their disability.
In response to these two issues, this article recommends that judicial education be conducted by the NCJA on a regular basis to provide judicial officers with up-to-date information on how to manage these witnesses. In September 2014, the NCJA held a seminar on the reliability and credibility of witnesses.[41] The incorporation of witnesses with communication disabilities into these topics would provide a valuable resource to judicial officers.
In addition, revised versions of Equality Bench Books (or the publication of such books in states that do not have them) should include specific provision for witnesses with communication disabilities. The number of people affected and the cogent demand of ss13, 14 and 31 warrants such specific inclusion. By having on-hand reference material at the Bench, judicial officers may be able to resolve the incapacity of some witnesses without the assistance of experts or additional submissions which may delay proceedings.
Overall, to ensure that public confidence is maintained in the judiciary, a consistent approach must as far as possible be adopted. That is not to remove the flexibility of judicial discretion and the application of ss13, 14 and 31 of the EAC, but to ensure that all judicial officers have the same resources available.
A consistent approach to updating judicial officers on how people with communication disabilities communicate would greatly assist not only judicial officers but counsel and witnesses alike. Educational mechanisms such as professional development seminars or the publication of Bench Books ensure that flexibility is maintained in exercising discretion while providing judicial officers with accurate and practical information on alternative means of communication. Consistency would assist to inform expectations and enable counsel to advise a witness as to what can be expected. Publication of Equality Before the Law Bench Books for the Commonwealth, Victoria and ACT and amendment to the NSW Equality Before the Law Bench Book to incorporate this topic should be developed in consultation with the disability sector to ensure that approaches are practical and relevant for people with communication disabilities. For example, knowing that the judicial officer has a Bench Book which explains that people who are non-verbal may use an iPad to communicate would allow counsel to prepare brief submissions rather than considering calling an expert to explain that.
Sections 13, 14 and 31 of the EAC create specific provision for witnesses with communication disabilities to give evidence in ways that accommodate their disability. However, the requirement to directly consider a person’s disability with their ability to give evidence may create the appearance of discrimination. To avoid this and to ensure that best practices are adopted on these issues, continuing professional development needs to be provided to the judiciary. Professional development seminars and the publication of Equality Before the Law Bench Books will make a positive progression toward best practice methods of hearing evidence from people with communication disabilities. This creates a real opportunity to advance the ability for people with communication disabilities to access justice in Australian courts.
Natalie Wade is an in-house solicitor for the Department for Communities and Social Inclusion, South Australian Government. PHONE: 0413 174 195 EMAIL: natalie_wade2000@hotmail.com
[1] Speech Pathology Australia, What is a Communication Disability? (2012) <http://www.speechpathologyaustralia.org.au/library/1.3_What_is_a_Communication_Disability.pdf> at 27 October 2012.
[2] Australian Sign Language.
[3] Cerebral Palsy Source, Athetoid Cerebral Palsy (2005) <http://www.cerebralpalsysource.com/Types_of_CP/athetoid_cp/index.html> at 24 October 2012.
[4] ALRC Report 102, ‘competence’.
[5] Evidence Act 1995 (Cth), s12.
[7] The remaining states and territory provide different provisions that may capture evidence given by witnesses with communication disabilities; these are not examined in this article.
[8] Judicial Commission of NSW, Equality Before the Law Bench Book, (Update 05, 2009), 1103.
[9] Evidence Act 1995 (Cth), s12.
[13] Ibid, s13(1)(a).
[14] Ibid, s13(1)(b).
[15] Evidence Act 1995 (Cth), s31(1).
[20] Evidence Act 1995 (Cth) s14(b).
[21] R v The Health Commission of Victoria, George Lipton and Dennis Maginn (ex parte Anne McDonald) (unreported, Victorian Supreme Court, Justice Jenkison, 17 May 1979).
[22] Rosemary Crossley and Anne McDonald, Annie’s Coming Out (3rd ed, 2010) 179.
[23] Ibid.
[24] Ibid, 180.
[25] Ibid, 181-3.
[26] Michael King, ‘Realising the Potential of Judging’ [2011] MonashULawRw 10; (2001) 37 Monash University Law Review 171, 173-4.
[27] Murray Gleeson, ‘The State of the Judicature’ [1999] LawIJV 458; (1999) 73(12) The Law Institute Journal 67.
[28] Ibid, pi.
[29] Livingston Armytage, ‘The need for continuing judicial education’ [1993] UNSWLawJl 21; (1993) 16(2) UNSW Law Journal 536, 537.
[30] National Judicial College of Australia, About NCJA (2013) National Judicial College of Australia <http://njca.com.au/about/> at 14 September 2014.
[31] Murray Gleeson, ‘Judicial Selection and Training: Two Sides of the One Coin’ (2003) 77 Australian Law Journal 591, 591.
[32] Ibid, 69-70.
[33] The Hon Mr Justice GA Kennedy, ‘Training for judges’ [1987] UNSWLawJl 5; (1987) 10 UNSW Law Journal 47, 56.
[34] Michael King, see note 26 above.
[35] Ibid, 546.
[36] National Judicial College of Australia, Constitution, clause 3, p2.
[37] Supreme Court of Queensland Library, Equality Treatment Bench Book (1st edition, 2005).
[38] Judicial Commission of New South Wales, Equality Before the Law Bench Book (8th edition, 2014).
[39] Department of the Attorney-General, Equality Before the Law Bench Book (1st edition, 2009).
[40] Ibid, ppv-vi.
[41] National Judicial College of Australia, ‘Witness reliability and credibility, what judicial officers need to know’ (seminar held in Brisbane, Queensland on 18-19 September 2014).
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