People with disabilities

The Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (2023) (Royal Commission) has recommended that information be made available to judicial officers, legal practitioners and court staff about seeking or making adjustments and supports and services for people with disability, and the circumstances in which they may be required.1 This chapter endeavours to respond to that recommendation.

There are many different types and levels of disabilities, with almost 1 in 6 residents of NSW having some form of disability and 1 in 20 having a disability that requires assistance.

It is useful to be aware that “disability” is a concept which includes a range of conditions. Conceptually, attitudes towards disability may be influenced by different considerations including cultural; one culture may not regard disability in the same way as another and not all cultures regard disability from a deficit-based perspective.

It is always preferable to emphasise the person rather than the disability. This chapter:

  • highlights the numbers, types, levels and discrimination faced by those with a disability. The chapter also provides information on how language can have the effect of stereotyping, depersonalising, humiliating or discriminating against people with disabilities; and

  • provides guidance about how judicial officers may take information about a disability into account in their interactions with all who appear in their court, including litigants, witnesses, legal practitioners and court staff — from the start to the conclusion of court proceedings. This guidance is not intended to be prescriptive.

5.1 Royal Commission into violence, abuse, neglect and exploitation of people with disability

Last reviewed: April 2025

On 29 September 2023, the Royal Commission published its Final Report.2 Established on 5 April 2019, the Royal Commission was directed “to examine and expose violence against, and abuse, neglect and exploitation of, people with disability in all settings and contexts”.3 The Final Report contains 222 recommendations. Of particular relevance to judicial officers is Vol 8 “Criminal justice and people with disability”. Volume 8 sets out key findings which relevantly include:

  • People with disability, particularly those with cognitive disabilities, are significantly over-represented at all stages of the criminal justice system. This over-representation reflects the disadvantages experienced by many people with disability.

  • The over-representation of First Nations people with cognitive disability in custody, particularly in youth detention, has been described as “a largely hidden national crisis”.

  • Australia has international obligations, including under Articles 13 and 14(2) of the Convention on the Rights of Persons with Disabilities (CRPD), to take appropriate legislative, administrative and other systemic measures to promote the human rights of people with disability, including those in the criminal justice system.

  • Children with disability in youth detention have complex needs and are likely to have experienced multiple traumas. They are exposed to an increased risk of violence, abuse, neglect and exploitation while in detention. Placing children with disability in detention, especially children with cognitive disability, increases the chances they will become enmeshed in the criminal justice system. The Royal Commission recommended that the age of criminal responsibility be raised to 14, in line with international accepted standards, to avoid this.

  • The risk of indefinite detention for forensic patients is unacceptable.

  • A recommendation that State and territory governments fund court-based diversion programs for people with cognitive disability charged with offences that can be heard in Local or magistrates’ courts.

  • People with cognitive disability should be supported to participate on an equal basis to others in legal proceedings. A person can be found fit to be tried provided their impairment is recognised and addressed during the course of the trial by the provision of appropriate supports or assistance. For example, a person’s difficulty in understanding and answering questions asked in court may be overcome if other participants in the trial, including counsel and the judicial officer, take into account the person’s cognitive impairment or communication needs.4

  • Recommendation 8.12 in relation to determination of fitness to stand trial to plead is that courts should consider modification of the trial process and ensure the defendant receives assistance to facilitate understanding and effective participation in the legal proceedings.5

  • The importance of having an independent third person present to assist people with a cognitive disability to understand the legal process and questions asked. Having an intermediary to assist communication for accused persons with a cognitive disability would enable better participation.6

5.2 Defining disability and prevalence

5.2.1 Definitions

Last reviewed: April 2025

The Royal Commission noted that data about people with disability is dispersed across many datasets with at least nine different “definitions” of disability used nationally.7 Differences in how disability is conceptualised (see below) and defined is a major impediment to a robust evidence base.8

Statutory definitions of “disability” in NSW are as follows. For the purposes of the Anti-Discrimination Act 1977 (NSW) in s 4 “disability” is defined as:

(a) 

total or partial loss of a person’s bodily or mental functions or of a part of a person’s body, or

(b) 

the presence in a person’s body of organisms causing or capable of causing disease or illness, or

(c) 

the malfunction, malformation or disfigurement of a part of a person’s body, or

(d) 

a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or

(e) 

a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.

“Disability” is defined for the purposes of the Disability Inclusion Act 2014 (NSW) in s 7(1) as:

in relation to a person, includes a long-term physical, psychiatric, intellectual or sensory impairment that, in interaction with various barriers, may hinder the person’s full and effective participation in the community on an equal basis with others.

The objects of the Disability Inclusion Act 2014 are stated in s 3 and include acknowledging that people with disability have the same human rights as other members of the community, promoting the independence and social and economic inclusion of people with disability, enabling people with disability to exercise choice and control in the pursuit of their goals and providing safeguards in relation to the delivery of supports and services for people with disability.

The Australian Bureau of Statistics (ABS) defines the term “disability” for the purposes of population data as any limitation, restriction or impairment which restricts everyday activities and has lasted, or is likely to last, for at least six months.9 The ABS and census surveys are based on the World Health Organization’s (WHO) International Classification for Functioning, Disability and Health which considers that activities can be impacted by body structures and functions and can be hindered or facilitated by personal and environmental characteristics.10

The definition of “disability” under the Disability Discrimination Act 1992 (Cth) (the Act) is wide ranging and includes the presence of disease and illness as being a disability. This encompasses people with chronic diseases which have long-lasting conditions with persistent effects.11

5.2.2 Conceptions and range of disabilities

Last reviewed: April 2025
  • No two people with the same type of disability are alike in relation to their disability or their abilities. Every type of disability affects people in different ways. A disability may range from having a minor impact on how a person conducts their life to having a profound impact. People may have more than one disability.

  • It is important to be aware that disability is a concept. The dominant medical model is deficit based whereas the disability rights model focuses on society’s failure to accommodate a person’s need and does not see impairments as necessarily requiring treatment, but the need for society to change to accommodate the person’s needs.12

  • Following Australia’s ratification of the Convention on the Rights of Persons with Disabilities (CRPD) in 2008,13 the social model of disability has sought to replace the medical model, reframing the construct of disability to recognise that: “attitudes, practices and structures can be disabling and act as barriers preventing people from fulfilling their potential and exercising their rights as equal members of the community”.14

  • Different cultures may understand disability in different ways: the western medicalised concept of disability with “its focus on diagnosis and deficit”15 is but one conceptualisation. Some cultures may be more accepting of disability and may not entertain negative stereotypes that disability is an impairment. For example, for First Nations people whose cultural practices are inclusive, the concept of disability as a deficit is foreign. In these cultures, there is no word for disability. If a label is needed, communities often create unique terms that respect the individual’s identity and avoid categorisation from a deficit-based perspective.16

  • The multi-layered experiences of people with disability is referred to medically as co-morbidity and may be referred to as intersectionality, for example, First Nations people with disability have the intersectional experience of being First Nations as well as having a disability.17 See also Section 2 First Nations people.

  • Some disabilities are permanent, some are temporary, some are episodic.

  • Some disabilities are obvious and some are hidden.

  • Many people with disabilities require some form of equipment, procedural considerations and/or communication adjustment(s) to be made if they are to be able to interact effectively in relation to court proceedings.

It is important to note that, in many cases, the precise name or type of a particular person’s disability or disabilities will not be relevant in court. Much more important will be the need to accurately and appropriately determine whether that person requires any form of adjustment to be made, and if so, what type and level of adjustment.

5.2.3 5.1.1 Prevalence of disabilities in NSW18

Last reviewed: April 2025
  • 1.34 million of NSW residents are estimated to have a disability.

  • In NSW overall by age, 17.2% of women and 16.8% of men have a disability. 5.75% of the population (1 in 20) has a disability that requires assistance.

  • Of the NSW residents with a disability, 33.5% have a profound or severe core activity disability; 48% have a moderate or mild core activity disability and 89% of those with a disability have specific limitations or restrictions.19 People with a profound or severe core activity limitation are those needing assistance in their day-to-day lives in one or more of the three core activity areas of self-care, mobility and communication.

  • The prevalence of disability increases with age. For the age group 75–79 years, 53.5% have a disability and for the age group 80–84, 58.6% have a disability.20

5.2.4 Care, assistance and support

Last reviewed: April 2025
  • For people with disabilities in NSW (1,346,200), there are 273,900 reported primary carers (ie caring for 20.3% of people with disabilities).21 The range of carers included partners of the recipient of care (33.44%), the child of the recipient (26.46%), or the parent of the recipient (26.8%).

  • In NSW in 2018, the average age of carers living in households of someone with a disability was 38.3. The range of carers included partners of the recipient of care (33.44%), the child of the recipient (26.6%), or the parent of the recipient (26.8%).

  • Women do most of the primary caring — numbering 202,600 in NSW (representing 73.97% of primary carers) while men numbered 69,400 (25.33% of primary carers).22

5.2.5 Accommodation

Last reviewed: April 2025
  • 1,285,400 people with disabilities in NSW live in households (95.5%), with 271,000 living alone (20%).23

  • 62,500 people with disabilities live in a non-private dwelling, such as accommodation where care is provided (4.6%).24

5.2.6 Employment and income

Last reviewed: April 2025
  • 16.8% of those unemployed aged between 15 and 64 in NSW have a disability.25

  • The median gross weekly personal income of people of working age with a disability in NSW is slightly under half that of people without a disability (47.8%).26

  • 52% (612,300) of people in NSW with disabilities are reliant on a government pension or benefit as their main source of income.27

  • People with a disability need to increase their adult-equivalent disposable income by 50% (in the short-run) to achieve the same standard of living as those without a disability. This figure varies considerably according to the severity of the disability, ranging from 19% for people without work-related limitations to 102% for people with severe limitations. Further, the average cost of disability in the long-run is higher and it is 63% of the adult-equivalent disposable income.28

5.2.7 Education

Last reviewed: April 2025
  • Of the 28,847 students (3.6%) enrolled in NSW government school support classes or schools for specific purposes, 16% have a mild intellectual disability; 3.7% have a moderate intellectual disability; 13.9% have a moderate or severe intellectual disability; 0.4% have a severe intellectual disability; 13.9% have autism; 8% have emotional disturbance; 0.3% have a physical disability, and 28% are multi-category.29

  • 45.2% of people in NSW with disabilities have no non-school qualification compared to 33.6% of people without disabilities.30

5.2.8 Crime and violence

Last reviewed: April 2025

The Royal Commission found that over half of adults aged 18 to 64 with disability have experienced physical and/or sexual violence; this is particularly the case when the person has a mental disorder, acquired brain injury or intellectual disability.31 The most frequent form of violence against a person with a disability is physical threat, followed by emotional abuse from a domestic partner. Other forms of violence are physical threat, domestic partner violence, stalking and sexual assault.32 The majority of people with disabilities who experience violence know the perpetrator who is often an intimate partner, family, friend, or co-worker.33 The perpetrators are often in positions of authority and trust. Women with disabilities experience higher rates of sexual assault, domestic and family violence, emotional abuse and stalking than men with disabilities or women without disabilities. This is particularly the case when a woman with disabilities has an intellectual impairment, mental disorder, is young or is First Nations.34

The Royal Commission further heard that the disadvantages experienced by people with a disability, such as homelessness, unstable housing, family and intimate partner violence etc, mean they are over-represented in the criminal justice system.35

NSW Bureau of Crime Statistics and Research studies have found a significant proportion of young and adult offenders were identified as people with disability and many of these individuals had also been victims of crime. The first study36 examined the proportion of people with disability in NSW who offend, and the proportion of offenders who have a disability, separately for young and adult offenders. The study found:

  • 27% of adult offenders were identified as having a disability.

  • Almost a quarter of young offenders were identified as people with disability.

  • More than 2 in 5 young people and around 1 in 2 adults with sentenced custodial episodes were identified as people with disability.

  • Of adults with custodial contact, 41% had a psychosocial disorder,

  • 10% had a cognitive impairment, and

  • 14% had a physical impairment.

  • Rates of disability were highest among DV offenders and higher among First Nations offenders than non-First Nations offenders.

  • First Nations offenders were more likely to have been victims of crimes with 90% of First Nations young female offenders being victims of crime compared to 59% of female young offenders.

The study shows the rate of cognitive disability is higher in First Nations adult male offenders (13%) than in the non-Indigenous offending population (5.4%).37 First Nations adult male offenders have higher rates of physical disability (16%) and psychosocial disability (33%) compared to non-Indigenous adult male offenders (9.5% and 17% respectively).

A second study of rates of victimisation based on victims of crime reporting to or detected by NSW Police suggests that intersectionality, ie, being younger, female, and/or Aboriginal, is associated with a greater risk of people with disability being victims of violent and DV-related crimes.38 Persons of interest (POI) were less likely to be proceeded against in relation to violent incidents involving victims who were people with disability than incidents involving victims with no disability identified. In particular, in relation to violent and DV-related incidents, POIs were less likely to be proceeded against when incidents involved victims with both cognitive and physical disabilities, with or without psychosocial disability. People with disability who were victims of violent incidents were more likely to experience repeat victimisation than people with no disability identified.39

People with disability are at higher risk of experiencing physical violence than those without disability and women and girls with disabilities are twice as likely to experience sexual violence compared to able bodied women and girls (33% or 605,081 women with disability compared to 16% of women without disability).40

People with intellectual disabilities, particularly First Nations people with disability, are “significantly overrepresented” in the criminal justice system.41

5.2.9 Discrimination

Last reviewed: April 2025

Types of discrimination may be termed “ableism”/“disableism”.42 Ableism is discrimination that favours able-bodied people without disability. Disableism is defined as the “systemic and interpersonal exclusion and oppression of people with disability”. This discrimination is considered to have hard and soft forms. Hard disableism is a direct, conscious act of discrimination and abuse. Soft disableism can be ingrained into our language and social interactions and may not be identified as discrimination.

Disability discrimination, as with all discrimination, can either be “direct” or “indirect”. Direct disability discrimination occurs when a person with a disability is treated less favourably than a person without a disability, such as by not making reasonable adjustments. Indirect disability discrimination occurs when an entity or “discriminator” requires a person with a disability to comply with certain requirements, but without making reasonable adjustments which puts the person with a disability at a significant disadvantage.43

Disability discrimination has been the most common type of complaint made to the Anti-Discrimination Board of NSW since 2011. In the 2023–2024 reporting year, the Board received 1,536 complaints under the Act, with 32.1% of all complaints received relating to disability discrimination, the most common form of complaint. The highest complaints about discrimination were in the area of goods and services and employment.44

In 2019–2020, the Australian Human Rights Commission received 1,164 complaints under the Disability Discrimination Act 1992 (Cth) and finalised 1,288 complaints. The highest complaints were in the area of goods, services and facilities (33%), employment (29%) and complaints relating to the Disability Standards (12%).45

5.3 Disability types and intersectionality

5.3.1 Introduction

Last reviewed: April 2025

A judicial officer can ensure that a disabled witness, litigant, defendant, or legal practitioner appearing in court can effectively participate in the justice process by ensuring reasonable adjustments are provided. These adjustments should be made by taking into account the unique needs of the person and not a “one size fits all” approach.

Different terminology has been used to refer to disability. The most current and widely-accepted way is to use person-first (person with disability) or identity-first (disabled person or deaf individual) language. Given the differences in what is preferable, it is best to ask the person what terminology they prefer.

5.3.2 Physical disabilities — excluding deafness, hearing impairments, blindness and visual impairments

Last reviewed: April 2025

A physical disability may have existed since birth or it could have resulted from accident, illness, or injury.

A physical disability may be mild, moderate or severe in terms of the way in which it affects the person’s life.

Physical disabilities can present in diverse ways, including impacts on movement and coordination, physical capabilities, sensory function, bladder and bowel control, blood flow and energy levels. Severe or ongoing pain, such as chronic back pain, may compromise a person’s ability to maintain focus during court proceedings. Court matters that go on for longer than an hour at a time would be difficult, therefore regular breaks would be required.

A person with a physical disability may need to use some sort of equipment for assistance with mobility. A person with a physical disability may have lost a limb or, because of the shape or size of their body, or because of a disease or illness, require slight adaptations to be made to enable them to participate fully in society.

The court process may pose some difficulties such as:

  • difficulty reading and comprehending paperwork, lack of ability to sit or stand for long periods due to reduced mobility and stamina

  • difficulty moving around the courtroom if required to stand and walk to the dock or witness box

  • side effects from medication which may make the person drowsy or lack focus.

In some cases, it may be that the individual or their lawyer has not raised that a disability exists. Questions from the presiding judicial officer such as: “are you comfortable in that chair/dock; can you see and hear everything clearly?” may be necessary.

Some common physical disabilities are:

  • Quadriplegia — complete or partial loss of function (movement or sensation) in the trunk, lower limbs and upper limbs. Generally, this has resulted from damage high in the spinal column — for example, the neck.

  • Paraplegia — Ccomplete or partial loss of function (movement or sensation) in the trunk and lower limbs. Generally, this has resulted from damage lower in the spinal column — for example, below the neck.

  • Cerebral Palsy — a disorder of movement and posture due to a defect or lesion on the immature brain. Cerebral Palsy can cause stiffness of muscles, erratic movement of muscles or tremors, a loss of balance, and possibly speech impairments. A person with Cerebral Palsy may have other disabilities including sensory impairment, epilepsy, and/or intellectual disability. But do not assume that a person with Cerebral Palsy has another disability. There are many people with Cerebral Palsy who do not have an intellectual disability.

  • Epilepsy — a disorder of the brain function that, if untreated, results in seizures. Seizures are disturbances within specific areas of the brain that cause loss of control of one or more aspects of bodily activity. Seizures can be provoked by flashing lights, physical activity, stress, low blood sugar, high caffeine intake and lack of sleep.

  • Arthritis — a generic term for 150 different diseases that affect the joints of the body. The main types of arthritis are osteoarthritis, rheumatoid arthritis and gout. Common symptoms include pain, swelling and stiffness in one or more of the joints. Two out of three people with arthritis are under the age of 65.

  • There are many other physical disabilities — including amputations, scarring, asthma, cystic fibrosis, muscular dystrophy, kidney disease, liver disease, cardiopulmonary disease (heart problems), diabetes, cancer, illnesses and other diseases.

5.3.3 Deafness and hearing impairments

Last reviewed: April 2025
  • Deafness or hearing loss — complete, or almost complete, inability to hear. People who are deaf rely on their vision to assist them to communicate, and use a variety of ways to communicate — including Australian sign language (Auslan), lip reading, closed captions, writing and expressive speech. Some people who are deaf regard deafness as a culture rather than as a disability. Deaf culture includes areas such as art, language, sport and history.

  • Deafblindness — a loss of vision and hearing. Most people with deafblindness have some residual hearing and/or sight. Deafblindness varies with each person — for example, a person may be hard of hearing and totally blind, or profoundly deaf and partially sighted, or have nearly complete or complete loss of both senses.

  • Hearing impairment — a person who has a hearing impairment has a partial hearing loss. The hearing loss may be mild, moderate, severe or profound. A person who has a hearing impairment will usually prefer to rely as much as possible on their available hearing with the assistance of hearing aids or assistive listening devices. They may use a hearing aid, lip reading and speech to communicate. Note that hearing aids do not necessarily restore a person’s hearing to the capacity of a person without a hearing impairment, and for some people hearing aids are not helpful. Many people who have hearing impairments regard their impairment as a disability.

5.3.3.1 Deafness and intersectionality
  • Hearing loss among First Nations People is widespread and much more common than for non-Indigenous Australians.46 It is more prevalent in First Nations children than any other population in the world.47

    • A higher proportion of First Nations People experience hearing problems than non-Indigenous Australians across most age groups and across remote, rural and metropolitan areas.48

    • It is also characterised by earlier onset, higher frequency, greater severity and persistence.

  • Factors potentially contributing to high levels among First Nations children include:

    • crowded housing, particularly where young children have a lot of contact with other young children

    • low socioeconomic status

    • a lack of access to medical practitioners in remote areas

    • poor hygiene, and

    • high carriage rates of bacterial pathogens and the prevalence of multiple bacterial strains.

  • Chronic or reoccurring infections can contribute to multiple negative impacts ranging from delayed auditory, psychosocial and cognitive development, to permanent hearing loss.

    • Education: Disrupt a child’s language development and ability to benefit from education, contributing to poor school performance, absenteeism, dropout rates and subsequent difficulties gaining employment.

    • Criminal justice system: Hinder psychosocial development leading to self-doubt, behaviour problems, social isolation, family dysfunction and increased interaction with correctional facilities. Australian Hearing suggests hearing loss is over-represented in First Nations prisoners in all jurisdictions.49

People from culturally and linguistically diverse backgrounds:

  • Families from culturally and linguistically diverse backgrounds can have “their own cultural beliefs around hearing loss and what this means”, which may include “shame within their community” around hearing loss or a reluctance to wear hearing aids.50

The elderly:

  • Rates of hearing impairment increase with age, with most people over 65 years of age experiencing hearing loss.51

People living in rural and remote communities:

  • People living outside major cities are more likely to have hearing disorders than those who live in cities, attributed to factors including the ageing of Australia’s population outside of cities, and a greater potential for exposure to noise induced hearing loss, particularly in farming and mining.52

Veterans:

  • The Department of Veterans’ Affairs (DVA) advised that hearing loss is very common in the veteran community and is a reflection of the exposures that veterans face as part of their service.

  • Attributed often to prolonged exposure to machinery noise or high intensity impulse munitions in a theatre of conflict.53

5.3.4 Blindness and visual impairments

Last reviewed: April 2025
  • Blindness — a complete, or almost complete, loss of vision. People who are blind vary in their ability to see. Some may be able to perceive light, shadow and/or shapes; others see nothing at all. People who are blind may use a guide dog, a white cane (the international symbol of vision impairment), or a laser sensor or pathfinder. People who are blind may read using Braille, computer assisted technology and/or audio tapes.

  • Colour blindness — an inability to distinguish between colours. Some people with colour blindness only have difficulty distinguishing between the colours red and green, whereas others see the world in black, white and grey.

  • Deafblindness — see 5.3.3.

  • Visual impairment/low vision — a partial loss of vision that is not correctable by wearing glasses and that therefore affects the performance of daily tasks.

5.3.5 Intellectual disabilities

Last reviewed: April 2025

Intellectual disability (ID) is defined in terms of an individual’s level of intellectual (cognitive) functioning as assessed by qualified psychologists using recognised psychometric tests of intelligence, tests of adaptive functioning, and assessment of ability to perform a range of cognitive, social and behavioural tasks required for independent living. In lay terms, ID refers to a slowness to learn and process information.54

In contrast, a learning disability refers to weaknesses in certain academic skills and may be caused by physical conditions such as poor vision or a hearing impairment.55 A cognitive impairment as defined in the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) may arise from an ID: s 5(2)(a). See 5.5.3 Fitness to plead/criminal responsibility for the definition of “cognitive impairment” under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020.

The majority of people with an ID have mild ID.56 Seventeen percent of NDIS participants in NSW have ID as their primary diagnosis (nationally 16%).57

Deficits in adaptive behaviour refer to limitations in such areas as communication, social skills and ability to live independently. An ID is permanent. It is not a sickness, cannot be cured and is not medically treatable. People are born with an ID. It may be detected in childhood or it may not be detected until later in life.

There are various types and degrees of ID. Some of the more common causes of ID are Down syndrome, foetal alcohol spectrum disorder, fragile X syndrome, Prader-Willi Syndrome, Rett Syndrome, genetic conditions, birth defects and infections.58

People with an ID can, and do, learn a wide range of skills throughout their lives. The effects of an ID (for example, difficulties in learning and development) can be minimised through appropriate levels of support, early intervention and educational opportunities.

Importantly, and contrary to some of the extreme misconceptions that may be held about people with IDs, they are not compulsive liars (see also Capacity to give evidence at 5.5.1); are not either asexual or extremely promiscuous (applied particularly to women); and do feel emotion and pain.

Depending on the person, a person with an ID may:

  • take longer to absorb information

  • have difficulty understanding questions, abstract concepts, legalese or instructions

  • have difficulty with reading and writing

  • have difficulty with numbers and other measures such as money, time and dates

  • have a short attention span and be easily distracted

  • have difficulty with short and/or long term memory

  • find it difficult to maintain eye contact

  • find it difficult to adapt to new environments and situations

  • find it difficult to plan ahead or solve problems

  • find communication over the phone difficult

  • may need to take more breaks than others do

  • have difficulty expressing their needs

  • readily acquiesce when they do not understand.

Reasonable adjustments that can be considered include:

  • facilitating a pre-trial/pre-hearing familiarisation visit to the court and practice with live link/AVL equipment

  • if appropriate, not donning wigs

  • appointment of a witness/communication intermediary to facilitate communication and ensure effective participation

  • reminding the person that the court does not know what may have occurred (as the person with a disability may have limited theory of mind ie the lack of ability to understand that others possess different knowledge, beliefs and perspectives). The person may assume that the court already knows what they know, thus they may not provide the relevant information

  • clear explanation of the rules of communication, such as telling the person it is okay to say: “I don’t know”, “I don’t understand” or “I don’t remember”; allowing them to use a visual aid for these rules if relevant

  • asking the person to explain in their own words if there is a sign of misunderstanding. Individuals with intellectual disabilities do not always realise they have not understood something and are prone to acquiescence

  • try to establish rapport by asking one question about their interests. This is especially important for children, adolescents and young adults with intellectual disabilities who may function at an age that is lower than expected.

As it is the judicial officer’s duty to control questioning and ensure effective participation, the following strategies can be used during questioning:

  • ensure the person’s preferred name or first name is used

  • signpost questioning by using topics to ensure there is a logical order

  • use plain and simple English; avoid legalese

  • ask short, simple questions containing a single concept

  • allow the use of appropriate or recommended visual/communication aids

  • provide regular breaks

  • have a ground rules hearing (with or without an intermediary present), to ensure questioning is appropriate for the person’s cognitive and developmental level.

5.3.6 Acquired Brain Injury (ABI)

Last reviewed: April 2025

Acquired brain injury is an injury to the brain that results in changes or deterioration in a person’s cognitive, physical, emotional and/or independent functioning. People may have an ABI as a consequence of a trauma (for example, a car accident), stroke, lack of oxygen, infection, degenerative neurological disease (dementia), tumour, and/or substance abuse.59

A cognitive impairment as defined in the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 may arise from an ABI: s 5(2)(d). Three percent of active participants in the NDIS in NSW have a primary disability of an ABI.60 Significantly, the prevalence of ABI is much higher in the prison population than in the general population.61

Disability resulting from an ABI can be temporary or permanent and can be mild, moderate or severe. It is rarely assisted by medication. Every brain injury is different. Two injuries may appear to be similar but the outcomes can be vastly different. Brain injury may result in a physical disability only, or in a personality or thinking process change only, or in a combination of physical and cognitive disabilities. ABI may result in physical and cognitive problems such as:

  • headaches

  • seizures

  • poor balance

  • visual and hearing disturbances

  • chronic pain and paralysis

  • memory loss

  • lack of concentration

  • lack of motivation

  • tiredness

  • difficulty with an ability to plan and problem solve and inflexible thinking

  • psychosocial/emotional issues such as depression, emotional instability, irritability, aggression and impulsive or inappropriate behaviour.62

See also the Bugmy Bar Book section on ABI.63

5.3.7 Mental disorders

Last reviewed: April 2025

Mental disorders identified in the DSM-5-TR must meet the elements of “mental disorder” as follows:64

A mental disorder is a syndrome characterized by clinically significant disturbances in an individual’s cognition, emotion regulation, or behavior that reflects a dysfunction in the psychological, biological, or developmental processes underlying mental functioning. Mental disorders are usually associated with significant distress or disability in social, occupational, or other important activities.

See 5.5.3 Fitness to plead/criminal responsibility for the definition of “mental health impairment” under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) as applies to criminal proceedings in NSW.

A mental disorder may be long-term, but is often temporary and/or episodic. Long-term mental disorder, and the drugs used to control it, do affect cognitive ability, especially in schizophrenia spectrum disorders and schizo-affective disorder, where there is often marked cognitive impairment, particularly in executive function.

Categories of mental disorders in DSM-5-TR:

DSM-5 is structured to reflect the interrelationship of various conditions and the occurrence of mental disorders across the life span.65 It begins with neurodevelopmental disorders, it is then based on groups of internalising disorders such as anxiety, depression; externalising disorders such as impulsive, disruptive conduct and substance-use symptoms, neurocognitive disorders, and other disorders.66

  • Neuro developmental disorders — neurodevelopmental disorders are behavioural and cognitive disorders, that arise during the developmental period, and involve significant difficulties with intellectual, motor, language, or social functions. They include disorders of intellectual development, communication disorders, autism spectrum condition (autism) (see 5.3.10), attention deficit hyperactivity disorder (ADHD) (see 5.3.11), specific learning disorder and motor disorders.67

  • Schizophrenia spectrum and other psychotic disorders — a confusion or disturbance of a person’s thinking processes — including delusions, hallucinations and/or hearing voices, disorganised thinking and speech, grossly disorganised or abnormal motor behaviour including catatonic behaviour and negative symptoms such as lethargy, anhedonia (an inability to feel pleasure) and diminished emotional expression (ie reduction in the expression of emotions in the face, eye contact, intonation and movements giving emotional emphasis to speech) and decrease in motivated self-initiated purposeful activities.68 Schizophrenia is not a “split personality”, or “multiple personality disorder”. Multiple personality disorder is a very rare condition. Importantly, and contrary to popular opinion, people with schizophrenia are not generally dangerous or violent when receiving appropriate treatment.

  • Bipolar and related disorders — bipolar disorder used to be called “manic depressive illness”. There are two sub-classifications of this disorder — Bipolar I Disorder and Bipolar II Disorder. Bipolar I Disorder involves the experience of both manic episodes (feelings of elation, grandiosity, decreased need for sleep and a flight of ideas) and major depressive episodes. Bipolar II is diagnosed when there is hypomania (mood and energy elevation, with mild impairment of judgement and insight) and major depression.69

  • Depressive disorders — is a group of mood disorders that includes disruptive mood dysregulation disorder, major depressive disorder, persistent depressive disorder, premenstrual dysphoric disorder, substance/medication-induced depressive disorder, and other specified and unspecified depressive disorders — all characterised by sad, empty and irritable moods, together with cognitive and somatic changes that affect a person’s ability to cope with daily life.70 During a depressive episode, the person experiences depressed mood (feeling sad, irritable, empty) or a loss of pleasure or interest in activities, for most of the day, nearly every day, for at least two weeks. Several other symptoms are also present, which may include poor concentration, feelings of excessive guilt or low self-worth, hopelessness about the future, thoughts about dying or suicide, disrupted sleep, changes in appetite or weight, and feeling especially tired or low in energy. People with depression are at an increased risk of suicide.71

  • Anxiety disorders — is a group of mood disorders that have features of excessive fear and anxiety and related behavioural disturbances.72 There are several different kinds of anxiety disorders, such as: generalised anxiety disorder (characterised by excessive worry), panic disorder (characterised by panic attacks), social anxiety disorder (characterised by excessive fear and worry in social situations), separation anxiety disorder (characterised by excessive fear or anxiety about separation from those individuals to whom the person has a deep emotional bond), and others.73 Panic attacks may occur in the full range of anxiety disorders but are not a separate mental disorder.

  • Obsessive-compulsive and related disorders (OCD) — an anxiety disorder that is characterised by the presence of obsessions (recurrent thoughts, urges or images experienced as intrusive and unwanted), compulsions (repetitive behaviours or mental acts that an individual feels driven to perform in response to an obsession) and other body-focused repetitive behaviours, and includes body dysmorphic disorder (a body image disorder), hair-pulling disorder (trichotillomania) and compulsive skin-picking disorder, hoarding disorder, substance/medication-induced obsessive-compulsive and related disorder amongst many others.74

  • Trauma and stressor-related disorders

    Disorders which may develop following exposure to an extremely threatening or horrific event or series of events. It includes reactive attachment disorder, disinhibited social engagement disorder, post-traumatic stress disorder, acute stress disorder, adjustment disorders and acute grief disorder.75

  • Dissociative disorders

    Characterised by the disruption of and discontinuity in the normal integration of consciousness, memory, identity, emotion, perception, body representation, motor control and behaviour. The disorder includes dissociative identity disorder, dissociative amnesia, depersonalisation/derealisation disorder and other specified and unspecified dissociative disorders. Dissociative disorders arise from traumatic experiences such as neglect and sexual, physical and emotional abuse, cumulative early trauma and repeated and sustained trauma or torture associated with captivity, eg prisoners of war or trafficking victims.76

  • Somatic symptom and related disorders

    Somatic symptom disorder is the tendency to experience, conceptualise and communicate mental states and distress as physical symptoms and altered body states.77 The types of somatic symptom and related disorders classified in DSM-5-TR are:

    (a) 

    somatic symptom disorder

    (b) 

    illness anxiety disorder

    (c) 

    functional neurological symptom disorder

    (d) 

    psychological factors affecting other medical conditions

    (e) 

    factitious disorder

    (f) 

    related disorders.

  • Feeding and eating disorders

    There are predominantly three categories:78

    • Binge eating disorder is defined as recurring episodes of eating significantly more food in a short period of time than most people would eat under similar circumstances, with episodes marked by feelings of lack of control and subsequent feelings of guilt, embarrassment, or disgust and attempts to hide the behaviou,

    • Anorexia nervosa is characterised by distorted body image and excessive dieting that leads to severe weight loss with a pathological fear of becoming fat

    • Bulimia nervosa is characterised by frequent episodes (at least once per week) of binge eating followed by self-induced vomiting to avoid weight gain.

  • Sleep-wake disorders

    There are 10 disorder groups:79

    • insomnia disorder

    • hypersomnolence disorder

    • narcolepsy

    • breathing-related sleep disorder

    • circadian rhythm sleep-wake disorder

    • non-rapid eye movement sleep arousal disorder

    • nightmare disorder

    • rapid eye movement sleep behaviour disorder

    • restless legs syndrome

    • substance/medication induced sleep disorder.

  • Gender dysphoria

    Gender dysphoria is defined in adolescents and adults as a marked incongruence between one’s experienced/expressed gender and their assigned gender, lasting at least 6 months, as manifested by at least two of the following:80

    • marked incongruence between one’s experienced/expressed gender and primary and/or secondary sex characteristics (or in young adolescents, the anticipated secondary sex characteristics)

    • strong desire to be rid of primary and/or secondary sex characteristics

    • strong desire for the primary and/or secondary sex characteristics of the other gender

    • strong desire to be of the other gender

    • strong desire to be treated as the other gender, or

    • strong conviction that one has the typical feelings and reactions of the other gender.

    Gender dysphoria in children is defined as a marked incongruence between experienced/expressed gender and assigned gender, lasting at least 6 months, as manifested by at least six of the following:

    • strong desire to be of the other gender or an insistence that one is the other gender

    • in boys (assigned gender), a strong preference for cross-dressing or simulating female attire; or in girls (assigned gender), a strong preference for wearing only typical masculine clothing and a strong resistance to the wearing of typical feminine clothing

    • strong preference for cross-gender roles in make-believe play or fantasy play

    • strong preference for the toys, games or activities stereotypically used or engaged in by the other gender

    • strong preference for playmates of the other gender

    • in boys (assigned gender), a strong rejection of typically masculine toys, games, and activities and a strong avoidance of rough-and-tumble play; or in girls (assigned gender), a strong rejection of typically feminine toys, games, and activities

    • strong dislike of one’s sexual anatomy, or

    • strong desire for the physical sex characteristics that match one’s experienced gender.

    The condition must also be associated with clinically significant distress or impairment in social, occupational, or other important areas of functioning.

    For further information, see Transgender and gender diverse people at 9.2.1.

  • Disruptive, impulse-control, and conduct disorders

    Disruptive, impulse-control and conduct disorders are linked by varying difficulties in controlling aggressive behaviours, self-control and impulses. They can be categorised as:81

    • oppositional defiant disorder

    • intermittent explosive disorder

    • conduct disorder

    • pyromania

    • kleptomania

    • related conditions such as attention deficit/hyperactivity disorder, autism spectrum condition, disruptive mood dysregulation behaviour.

  • Substance-related and addictive disorders

    Substance-related disorders cover addiction caused by 10 different classes of drugs: alcohol, cannabis, hallucinogens, inhalants, opioids, sedatives, hypnotics, anxiolytics, stimulants, tobacco, and other (or unknown) substances.82 All drugs have the ability to alter the brain reward systems which reinforce behaviours. The underlying change in the brain circuits may persist beyond detoxification and cause repeated relapses and intense drug cravings. The disorder is based on diagnostic items:

    • impaired control where the substance may be taken in larger amounts and the individual may be unable to discontinue or decrease the substance

    • social impairment in work, home, school functions caused or exacerbated by substance use

    • risky use of substances knowing the persistent or recurrent physical or psychological problems that result

    • pharmacological criteria:

      • tolerance (requiring increased dose to achieve desired effect or reduced effect when usual dose is consumed)

      • withdrawal (decline of concentration of substance in blood and tissue cause an individual to consume the substance to relieve the symptoms.

  • Neurocognitive disorders
    (see 5.3.8 Cognitive impairment)

  • Personality disorders

    Personality disorders are considered a deviation from a normal personality, noting that the distinction between normal and abnormal personality is “inherently relative, relying on arbitrary cut off points on the continuum between two extremes (very low and very high) of any behavior.” A number of models have been proposed to describe, understand or define personality disorders, with debate as to whether there should be a dimensional or categorical approach. The NSW Law Reform Commission (NSWLRC) recommended that personality disorders be excluded from the definition of mental health impairment in the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (MHCIFPA).83 Despite this recommendation, the MHCIFPA is silent on the question of personality disorders. This silence leaves open the possibility that clinical evidence may establish that a personality disorder meets the criteria in s 4(1) MHCIFPA.84

  • Paraphilic disorder requires personal distress about atypical behaviour or the behaviour involves another person’s psychological distress, injury or death or involves unwilling persons or persons not able to consent.85

    Examples include:

    • exhibitionistic disorder

    • fetishistic disorder

    • frotteuristic (touching or rubbing genitals against a non-consenting person) disorder

    • paedophilic disorder

    • sexual masochism disorder

    • sexual sadism disorder

    • transvestic disorder, and

    • voyeuristic disorder.

  • Medication-induced movement disorders and other adverse effects of medication — are divided into two categories:86

    • hypokinetic, characterised by diminished movements and a paucity of movements, such as Parkinsonism which is a syndrome characterised by slowness, rigidity, tremor and postural instability

    • hyperkinetic, unwanted or excessive movements, such as tics, tremor, myoclonus (sudden, brief, involuntary muscle twitches) and akathisia (restlessness and fidgeting).

5.3.8 Cognitive impairment

Last reviewed: April 2025

The Disability Royal Commission, in its final report, discusses “cognitive disability”, which arises from the interaction between a person with cognitive impairment and attitudinal and environmental barriers that hinder their full and effective participation in society on an equal basis.87

Cognitive impairment is used in the Royal Commission Report as an umbrella term encompassing actual or perceived differences in cognition, including concentration, processing, remembering, or communicating information, learning, awareness, and/or decision-making.

For the purposes of criminal proceedings in NSW, “cognitive impairment” is set out in s 5(1) Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (MHCIFP Act), followed in s 5(2) by a non-exhaustive list of conditions which might meet that definition. These include:

  • intellectual disability, (see 5.3.5)

  • borderline intellectual functioning

  • dementia, (see 5.3.12)

  • an ABI, (see 5.3.6)

  • drug- or alcohol-related brain damage, including FASD, (see 5.3.9)

  • autism spectrum condition (autism) (see 5.3.10).88

“‘Borderline intellectual functioning’, while specifically included in the definitions to the MHCIFP Act, has not been viewed as a formal disability, nor as necessarily indicating deficits in intellectual and adaptive domains. It is a term used to describe persons who function in the well-below average range.”89 A lower than average cognitive function may arise from a FASD or ASD or a mild traumatic brain injury, or learning or other difficulties impacting on a person’s cognitive function. It can also include those who may have no identifiable reason or disorder but have a level of cognitive function that falls within the lower end of the average intelligence spectrum.

The Act explicitly excludes an impairment caused solely by the temporary effect of ingesting a substance or a substance use disorder: s 4(3).

Note, there are special provisions in Pt 6 of the Criminal Procedure Act 1986 (NSW) for the giving of evidence by a cognitively impaired person. Section 306M(1) provides that a “vulnerable person” for the purposes of Pt 6 is “a child or a cognitively impaired person”. There is, however, no one definition of “vulnerability”. Individuals can be deemed vulnerable because of: age, cultural or linguistic background, disability, mental health issues, etc.

Vulnerable people may have undiagnosed communication-based disabilities which can be difficult to recognise. Section 5.6 provides details on adjustments that may be reasonably made for people with communication-based disabilities.

For a vulnerable person, there may be an issue as to competence to give evidence. See below 5.5.1 Capacity to give evidence. See also Criminal Trial Courts Bench Book at [1-105]–[1-118] for a discussion of the relevant case law concerning competence and sworn and unsworn evidence.

5.3.9 Foetal Alcohol Spectrum Disorders (FASD)

Last reviewed: April 2025

Foetal Alcohol Spectrum Disorder (FASD) is a neurodevelopmental disorder caused by prenatal alcohol exposure and has lifelong impacts.90 Children and adolescents (10–18 years) with FASD experience cognitive and behavioural problems, mental illness and substance use that can increase contact with, and be exacerbated by, the justice system.91

FASD is experienced by individuals who have been exposed prenatally to alcohol.92 This is an umbrella term that captures those individuals who have a unique range of physical, intellectual and behavioural disabilities. Individuals with this type of disorder may display specific facial anomalies, growth retardation, organ damage, hearing difficulties and vision problems, as well as the following behaviours:

  • difficulty remembering. Children with FASD are 87 times more likely to have problems with memory than those without FASD.93

  • difficulty controlling their impulses

  • difficulty planning and organising their actions

  • difficulty showing empathy

  • difficulty taking responsibility for their actions

  • difficulty controlling their frustration and anger

  • difficulty identifying the consequences of their actions

  • find it hard to withstand social pressure.94

There is growing awareness of the prevalence and impacts of FASD in Australia. Neuro-developmental impairments due to FASD can predispose young people to interactions with the law. Individuals with FASD are disproportionately represented in youth justice systems,95 with a prevalence rate 30.3 times greater than the general population.96 A Western Australian prevalence study of 99 young people in youth detention (93% male and 74% First Nations) found that 88 young people (89%) had at least one domain of severe neuro-developmental impairment, and 36 were diagnosed with FASD, a prevalence of 36%. The study highlights the vulnerability of young people, particularly First Nations youth, within the justice system and their significant need for improved diagnosis to identify their strengths and difficulties, and to guide and improve their rehabilitation.97

In LCM v State of WA,98 the West Australian Court of Appeal considered the medical condition of FASD and how it is relevant in sentencing proceedings. The court recognised that FASD is a mental impairment and as such engaged sentencing principles relating to an individual offender’s mental condition.99 See Sentencing Bench Book at [10-450]. Churnside v The State of WA,100 a decision of the WA Court of Appeal that focused on providing appropriate support for an offender with FASD, has been proposed by Ian Freckelton AO KC as a model for sentencing judges and magistrates.101

See also the Bugmy Bar Book section on FASD102 and for judicial officers, see the FASD page on JIRS with a range of further information.103

5.3.10 Autism spectrum condition

Last reviewed: April 2025

Autism spectrum condition (autism) is a lifelong neurodevelopmental disorder affecting how people behave and interact with the world around them.104 It is estimated that 1 in 150 people in Australia have autism or 0.67% of the population. Autism is genetic.

Autism is not a mental health condition or an intellectual disability although there is a high level of comorbidity with these and other conditions, such as Attention Deficit Hyperactivity Disorder. Autism is a spectrum condition meaning autistic person will be unique in their presentation and skills. The main characteristics fall into two broad areas:

  • difficulty with social interactions and communication

  • restricted and repetitive behaviours and interests.

There are three levels of autism:105

  • Level 1 — (sometimes referred to as Asperger’s or high-level functioning) This is the least severe diagnosis where the individual may have very good language and communication skills, but has difficulty with social skills, inflexibility in behaviour and require help with organisation and higher-level problem solving.

  • Level 2 — These individuals require more substantial support; they have communication and language difficulties, do not cope well with change, and struggle in social situations.

  • Level 3 — This is the most severe diagnosis. These individuals have significant communication impairments and may be non-verbal. They have limited ability to interact with others, are very inflexible and can become distressed easily.

  • A person should always be asked which terminology they prefer, if relevant to refer to their disability in proceedings.

  • It is preferable to refer to “autism spectrum condition” than “autism spectrum disorder” if relevant.

  • The Office for Autism (a South Australian government agency) recommends using identity-first language, for example terms such as Autistic people or Autistic person rather than “a person with autism”.

  • An autistic person may consider themselves as “neurodivergent”, an umbrella term which includes autistic people, people with dyslexia, and Attention Deficit Hyperactivity Disorder.

Acceptable terminology

Autism traits in adults may include the following:

  • struggling with time management

  • feeling sensitive to the environment and possible sensory overload from the lights, room temperature, etc.

  • difficulty with chronology of events

  • feeling a sense of isolation

  • literal thinking

  • difficulty paying attention

  • struggling to pay attention to detail, or having too strong an attention to detail

  • feeling anxious in social situations

  • having difficulty maintaining relationships

  • becoming overwhelmed easily; heightened anxiety which may lead to stimming (flapping, fidgeting, tapping, humming, etc.) and will affect communication

  • hypersensitivity to sounds, lights and touch. They may not like the feel of a chair or the buzzing of a light or microphone

  • difficulty with unexpected change in routine or order of events.

Reasonable adjustments for autistic people106

  • Appointment of a witness/communication intermediary where required to facilitate communication and the giving of clear evidence.

  • Provide explicit instructions on case management directions.

  • Give explicit and clear explanation of the hearing procedure, including length and timing of breaks. Specify that they can ask for a break any time when required.

  • Provide regular breaks during the hearing.

  • If requested, switch off devices such as fans or heaters with any humming sound.

  • Establish the hearing rules at the outset, such as no guessing, tell the truth, and say “I don’t know”, “I don’t’ understand” or “I can’t remember”.

  • Eye contact: explain “I don’t expect eye contact. Look wherever you need to look to make you feel comfortable and concentrate”.

  • Watch for signs of heightened anxiety from the person. Allow the use of a visual break card.

  • Use topic cards or timelines to assist the person to follow the line of questioning.

  • Avoid repetitive questioning as this will be confusing and may lead to ambiguous responses or acquiescence.

  • Avoid the use of complex question such as tag questions (“you aren’t telling the truth, are you?”), multi-faceted questions, idiomatic phrases (“jog your memory”) and legal vocabulary.

See also 5.6 Practical considerations for judicial officers.

5.3.11 Attention Deficit Hyperactivity Disorder (ADHD)

Last reviewed: April 2025

ADHD is a neurodevelopmental condition with an onset typically before 12 years of age.107 It is estimated that 2% to 6% of the Australian population has ADHD. Both the DSM-5 and ICD-11108 classifications include three presentations (or subtypes) of ADHD with different combinations of symptoms:

  • inattentive presentation, allocated when the symptom threshold for inattention is met

  • hyperactive-impulsive presentation, allocated when the symptom threshold for hyperactivity-impulsivity is met

  • combined presentation, allocated when the symptom thresholds for both the inattentive and hyperactive-impulsive presentation are met.

ADHD traits in adults can include:

  • carelessness and lack of attention to detail

  • continually starting new tasks before completing old ones

  • poor organisational skills

  • inability to focus or prioritise; the person may be thinking about something else rather than what the judge is saying or the cross-examination questions.

  • forgetfulness

  • continually misplacing things

  • restlessness and edginess

  • difficulty keeping quiet and speaking out of turn

  • blurting out responses and often interrupting others

  • mood swings, irritability and quick temper

  • extreme impatience

  • inability to deal with stress.

Acceptable terminology

A person should always be asked which terminology they prefer, if relevant to refer to their disability in proceedings. Avoid language that reinforces stereotypes: eg avoid “This person has ADHD”. Instead, use “This person has lived experience of ADHD”. The correct terminology is ADHD, not ADD.

Reasonable adjustments for people with lived experience of ADHD109

  • Appointment of a witness/communication intermediary where required to facilitate communication and the giving of clear evidence.

  • Give one case management instruction at a time.

  • Ask one simple question at time that contains a single point.

  • Say the person’s name before asking a question, especially when there is a change in topic or line of questioning.

  • Use topics cards or timelines to enable the person to focus on the questioning. Haphazard question will lead to ambiguous responses.

  • During the hearing, speak in short sentences; allow pauses for the person to process information; be prepared to calmly repeat instructions and questions.

  • If the person is self-represented, be prepared to regularly sum up the current stage of proceedings and what is expected.

  • Allow short breaks for the person to refocus.

  • Be prepared for the person to become distressed or angry during cross-examination. Allow the use of a break card.

  • Choose a room with limited distractions and noise.

  • Repeat questions as required if it appears the person has lost focus, especially when changing topics of questioning or types of questions, eg from yes/no questions to propositions.

  • Avoid the use of tag questions (you aren’t telling the truth, are you?) as these are linguistically complex and the person may agree without meaning to.

5.3.12 Neurocognitive/neurological disorder

Last reviewed: April 2025

Neurocognitive disorder describes decreased mental function due to an acquired medical disease other than a mental disorder/developmental disorder. Some of the symptoms can be agitation, confusion, long-term loss of brain function (dementia), severe, short-term loss of brain function. There are three subcategories:110

  • delirium

  • mild neurocognitive disorder where mental function has decreased but the person is able to stay independent

  • major neurocognitive disorder where mental function has decreased and there is a loss of ability to do daily tasks, also known as dementia. Section 5(2)(c) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) provides that a cognitive impairment may arise from dementia (for the purposes of criminal proceedings in NSW).

The DSM-5 provides six cognitive domains which may be affected by mild or major neurocognitive disorders:

1. 

attention/distraction/selective attention/divided attention/processing speed

2. 

executive function such as planning, decision-making, working memory, responding to feedback/error correction, overriding habits and mental flexibility

3. 

learning and memory (immediate/recent/long-term memory)

4. 

language such as expressive language such as naming, fluency, grammar and syntax and receptive language

5. 

perceptual-motor-visual perception

6. 

social cognition such as recognition of emotions, behavioural regulation, social appropriateness.111

The causes of neurocognitive disorders can be:

  • brain injury caused by trauma such as bleeding into the brain or a blood clot causing pressure on the brain

  • breathing conditions such as low oxygen or high carbon dioxide

  • cardiovascular disorders such as stroke or heart infections

  • degenerative disorders such as Alzheimer’s disease, Creutzfeldt-Jakob disease, Huntington disease, multiple sclerosis, hydrocephalus, Parkinson disease and Pick disease

  • dementia due to metabolic causes such as kidney/liver/thyroid disease or vitamin deficiency

  • drug- and alcohol-related conditions

  • infections such as meningitis, septicemia, encephalitis

  • complications of cancer and chemotherapy, and

  • Neonatal Abstinence Syndrome — see Children’s Court of NSW Resource Handbook at [7-6000].

5.4 Legal protections for people with a disability

5.4.1 International law

Last reviewed: April 2025

Australia has ratified the United Nations Convention on the Rights of Persons with Disabilities (CRPD).112 The 2023 Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability explicitly recognised that Australia has obligations to promote the human rights of people with disability, including the protection of people with disability from all forms of exploitation, violence and abuse and ensure people with disabilities are recognised as persons before the law and have access to justice on an equal basis with others as stated in Arts 12 and 13 of the CRPD.113

Implementation of CRPD Art 12 and Art 13 is designed to ensure that the day-to-day interactions of citizens and the justice system are mediated by human rights principles and underpinned by a contemporary conceptualisation of disability to promote a more substantive vision of equality for people with disability.114

Australia also has obligations under Art 12 of the United Nations Convention on the Rights of the Child;115 Art 14, Pt 3 of the International Covenant on Civil and Political Rights116 and The United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power,117 to ensure that vulnerable people are equal participants before the law and that proper measures are in place to ensure their access to justice.

Equal access to justice is a broad term “encompassing peoples’ effective access to the systems, procedures, information, and locations used in the administration of justice”.118 It includes the ability to provide accurate and complete information,119 to be treated with respect and to be communicated with in a manner which promotes equal and fair participation.120

5.4.2 NSW legislation

Last reviewed: April 2025
5.4.2.1 Anti-Discrimination Act 1977 (NSW)

Part 4A Anti-Discrimination Act 1977 proscribes direct and indirect discrimination on the ground of disability:

  • in workplaces: Pt 4A, Div 2

  • in the provision of State education: s 49L

  • in the provision of goods and services: s 49M

  • the provision of accommodation: s 49N, and

  • in registered clubs: s 49O.

Exceptions are contained in Pt 4B.

Direct discrimination occurs when a person treats someone with a disability (or their relative or associate with a disability) less favourably: s 49B(1)(a). Indirect discrimination occurs when a rule or requirement is the same for everyone but unfairly affects people with disability, and is not reasonable in the circumstance: s 49B(1)(b). Complaints of and enquiries about less favourable treatment on the ground of disability may be made to the Anti-Discrimination Board of NSW.

5.4.2.2 Disability Inclusion Act 2014 (NSW)

The objects of the Disability Inclusion Act 2014 are stated in s 3, and include acknowledging that people with disability have the same human rights as other members of the community, promoting the independence and social and economic inclusion of people with disability, enabling people with disability to exercise choice and control in the pursuit of their goals and providing safeguards in relation to the delivery of supports and services for people with disability. Section 10 provides that each government department and local council must have a disability action plan that sets out the measures the department or council intends to put in place so that people with disability can access general supports and services.

5.4.3 Commonwealth legislation

Last reviewed: April 2025
5.4.3.1 Disability Discrimination Act 1992 (Cth)

The objects of the Disability Discrimination Act 1992 are, amongst others, to ensure, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community: s 3(b).

Under the Act, discrimination may occur at work: Pt 2, in education: s 22; in accessing premises: s 23; in providing goods, services and facilities: s 24; in providing accommodation: s 25, in dealing with land: s 26; in participating in clubs and incorporated associations: s 27; in participating in sport: s 28; or in the administration of Commonwealth laws and programs: s 29. Section 29A provides an exemption on the ground of unjustifiable hardship.

Complaints of and enquiries about less favourable treatment on the ground of disability under the Disability Discrimination Act 1992 may be made to the Australian Human Rights Commission at first instance.

5.4.3.2 Disability Services Act 1986 (Cth)

The Disability Services Act 1986 is intended to assist people with disability to receive services necessary to enable them to work towards full participation as members of the community, to promote services provided to people with disability that assist them to integrate in the community and to assist people with disability to achieve positive outcomes, such as increased independence and employment opportunities.121

5.4.3.3 Criminal Code Act 1995 (Cth)

A person with a disability, or a carer or assistant of a person with a disability, are protected groups for the purposes of “hate crimes” offences in the Criminal Code Act 1995, Ch 5, Div 80.122 For the purposes of these offences, “disability” and “carer or assistant” have the same meaning as in the Disability Discrimination Act 1992 (Cth): s  80.1A.

Offences in Ch 5, Div 80, Subdiv C proscribe certain offences against a targeted group and members of targeted groups. A member of a targeted group is distinguished by sex, sexual orientation, gender identity, intersex status and disability. Offences include:

  • advocating force or violence against a targeted group: s 80.2A

  • advocating force or violence against members of targeted groups or close associates: s 80.2B

  • threatening force or violence against targeted groups s 80.2BA

  • threatening force or violence against members of targeted groups or close associates: s 80.2BB

  • advocating damage to or destruction of real property or motor vehicle owned or occupied by a member or close associate of a targeted group: s 80.2BC, or

  • threatening damage to or destruction of real property or motor vehicle owned or occupied by a member of a targeted group or close associate: s 80.2BD.

The fault element for each offence is whether the person who advocates the use of force or violence does so reckless as to whether force or violence will occur.

5.4.4 Ageing and Disability Commissioner

Last reviewed: April 2025

The Ageing and Disability Commissioner Act 2019 (NSW) established the dedicated role of the Ageing and Disability Commissioner. The Commissioner’s purpose is to protect and promote the rights of adults with disability and the elderly from abuse, neglect and exploitation and to promote their rights.123

It is an offence for an employer to take detrimental action against an employee or contractor who assists the Ageing and Disability Commissioner with a report about abuse, neglect or exploitation of an adult with disability or an older adult.124

5.4.5 NDIS Quality and Safeguards Commission

Last reviewed: April 2025

Since March 2021, the NSW Ombudsman no longer monitors disability reportable incidents. The NDIS Quality and Safeguards Commission is an independent agency established to improve the quality and safety of NDIS supports and services. NDIS providers are required to take all reasonable steps to prevent all forms of harm to people with disability.125 The NDIS Quality and Safeguards Commission must be notified of “reportable incidents” to a person with disability, such as:

  • death

  • serious injury

  • abuse or neglect

  • unlawful sexual or physical contact with, or assault,

  • restrictive practice.

5.5 Capacity

5.5.1 Capacity to give evidence

Last reviewed: April 2025

In most cases, people with disabilities will have the legal capacity to give sworn evidence in the same way as anyone else126 — as long as, where required, appropriate adjustments are made so that evidence can be successfully communicated.127 In all cases, the fundamental issue is whether the person is able to understand the nature and effect of a particular decision or action, and can communicate an intention to consent (or refuse consent) to the decision or action.128 For the types of adjustments that may need to be made see 5.6.1.

People with mental disorders or intellectual disabilities may be vulnerable to prejudicial assessments of their competence, reliability and credibility if judicial officers and juries have preconceived views regarding such people. For example, they may fail to attach adequate weight to the evidence provided because they doubt the person with a mental disorder/ID fully understands their obligation to tell the truth. In addition, such people are vulnerable to having their evidence discredited in court because of behavioural and communication issues associated with their disability. Testimonial injustice arises when a hearer does not take the statements of a speaker as seriously as they deserve to be taken. People with mental disorders are particularly vulnerable to having their credibility deflated due to negative stereotypes.129

It may be necessary for some people with disabilities (in particular those with severe intellectual disabilities) to give unsworn evidence. A person with disabilities is presumed competent to give unsworn evidence if the court has told the person the matters mentioned in s 13(5) of the Evidence Act 1995 (NSW) including that it is important to tell the truth.

Research suggests that, contrary to public perception, most people with intellectual disabilities are no different from the general population in their ability to give reliable evidence — as long as communication techniques are used that are appropriate for the particular person130 — see 5.6.5. In some cases, however, a psychologist’s assessment may be required in order to adequately assess a particular person’s ability to give evidence, help the court to understand the person’s characteristics and demeanour and/or how best to communicate with them in court.131

In Bromley v The King,132 where the reliability of a witness with schizo-affective disorder was sought to be impugned on the basis of “fresh and compelling” psychiatric evidence, the High Court refused leave to appeal against a decision of the South Australian Court of Criminal Appeal which had held the expert opinion was not highly probative of the witness’s reliability, as considerable evidence supporting the witness’s evidence was not considered by those experts. The majority noted that each of the expert psychiatrists accepted that a person with schizo-affective disorder could be found to be reliable if other evidence supported that person’s evidence.133

5.5.2 Consent

Last reviewed: April 2025

Informed consent refers to the permission given by a person to agree to a health care treatment, procedure or other intervention that is made. Consent may be made by the person or a legally appointed guardian concerning services, finances, relationships, medical and dental treatment, behaviour support and forensic procedures. For consent to be valid it must be voluntary, informed, specific and current. Consent by legally appointed decision makers can only be given on matters for which they have been authorised to give consent.134

On the issue of informed consent to medical procedures, the decision of Bell J in PBU & NRE v Mental Health Tribunal135 has provided a “carefully reasoned analysis of how the imposition of treatment engages human rights and has the potential to be discriminatory against those with a mental illness”. The decision established that “not everyone with a mental illness is deprived by their condition of their capacity to give informed consent to a treatment recommended by their clinicians. … The law provides in most jurisdictions in Australia that capacity to treatments such as ECT is presumed until the contrary is established”.136

5.5.3 Fitness to plead/criminal responsibility

Last reviewed: April 2025

For the purposes of criminal proceedings in NSW, The Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (MHCIFPA) introduces separate definitions of “mental health impairment” and “cognitive impairment” following recommendations of the NSW Law Reform Commission.137 These definitions are relevant to the assessment of fitness to stand trial, the partial defence to murder of substantial impairment, the defence of mental health or cognitive impairment, which leads to a verdict of “act proven but not criminally responsible” (Pt 3); and the diversionary provisions in Pt 2, Div 2 and Div 3 of the MHCIFPA.138

The MHCIFPA defines a “mental health impairment” in s 4 as follows:

[A] person has a mental health impairment if:

(a) 

the person has a temporary or ongoing disturbance of thought, mood, volition, perception or memory, and

(b) 

the disturbance would be regarded as significant for clinical diagnostic purposes, and

(c) 

the disturbance impairs the emotional wellbeing, judgment or behaviour of the person.

Section 4(2) provides a mental health impairment may arise from any of the following disorders but may also arise for other reasons:

(a) 

an anxiety disorder,

(b) 

an affective disorder, including clinical depression and bipolar disorder,

(c) 

a psychotic disorder,

(d) 

a substance induced mental disorder that is not temporary.

Excluded for the purposes of the MHCIFPA are if the impairment is caused solely by:

(a) 

the temporary effect of ingesting a substance, or

(b) 

a substance use disorder.

A person may (because of the level and nature of their mental health impairment or cognitive impairment or mental illness) be unfit to plead and/or be unfit to be tried,139 or be found not criminally responsible for an offence further to s 28 of the MHCIFPA.

For the procedures for indictable matters for fitness to be tried including the orders that can be made and how to refer such matters to the Mental Health Review Tribunal, see the Criminal Trial Courts Bench Book under “Trial instructions R–Z — Procedure for fitness to be tried (including special hearings)” at [4-​300]ff and “Forms of orders for referrals to the Mental Health Review Tribunal under State law” at [4-​325].

For summary proceedings, a magistrate may need to hold an inquiry further to s 12 of the MHCIFPA to determine whether the person has a mental health impairment or cognitive impairment, and if determined as such, make an appropriate order for assessment, treatment, or discharge. For the procedures to be used in such cases see the Local Court Bench Book at [30-060]. If the defendant is a mentally ill person or a mentally disordered person, s 18 of the MHCIFPA provides a mechanism for making orders as set out in s 19 of the MHCIFPA including an order for the person to be taken to and detained in a mental health facility or an order for the person to be discharged into the care of a responsible person. See further Local Court Bench Book at [30-120].

See also Vol 8 of the Royal Commission at [4] and [8] which canvasses fitness and diversionary processes in Australian jurisdictions respectively.

For indictable proceedings, the defence of mental health impairment or cognitive impairment is set out in s 28 of the MHCIFPA. This incorporates the two limbs of the common law M’Naghten rules and provides that if, at the time of carrying out the act constituting the offence, the person had a mental health impairment or a cognitive impairment, or both, that had the effect that the person … did not know the nature and quality of the act, or did not know that the act was wrong, the person is not criminally responsible for the offence. Under s 30 of the MHCIFPA, if the jury is satisfied that the defence of mental health impairment or cognitive impairment has been established, the jury must return a special verdict of “act proven but not criminally responsible”.

See further “Trial instructions H–Q — Intention” at [3-​200]ff,140 and “Defence of mental health impairment or cognitive impairment” at [6-​200]ff.141

Section 23A of the Crimes Act 1900 provides a partial defence to murder of “substantial impairment because of mental health impairment or cognitive impairment”, enabling a murder charge to be reduced to a manslaughter charge.142

Given the number of people in prison with intellectual and psychiatric disabilities, it is important that these provisions are used, where appropriate, because in some cases the stigma of raising the existence of a mental illness, mental or cognitive impairment may mean that, unless the court intervenes at an earlier stage, a person may end up unjustly convicted and/or sentenced. On the other hand, it is also important to ensure that they are not used when they should not be.

5.6 Practical considerations for judicial officers

5.6.1 Adjustments before the proceedings start

Last reviewed: April 2025

Many people with disabilities need adjustments to be made in order for them to participate in court or for them to be able to give evidence effectively. Some of these may take some discussion to work out exactly what is required, and then some time to organise. A ground rules hearing or pre-trial hearing will enable the judge and parties to discuss the needs of the person and the relevant adjustments that need to be made so the vulnerable person can give their best evidence.143

The Royal Commission has provided a helpful list of possible information and communication requirements for people with a disability in Vol 6, [1.2] “Accessible communication and information”. Recommendation 6.1 is directed to developing a national plan to promote accessible information and communications.

Preferably, the court will have advance notice of any such possible needs from the person themselves, their support person or carer, their legal representative, or a witness/communication intermediary. At other times, the court may not find out a person’s needs until they appear.

If the legal representative has a disability, relevant adjustments and supports will need to be considered. Ideally, the court will provide an opportunity for legal representatives to specify their accessibility needs when filing initiating processes or notices of appearances.144

5.6.2 Witness/communication intermediaries

Last reviewed: April 2025

Witness/communication intermediaries advise legal professionals on the best method of communication with vulnerable people to enable effective participation in the legal proceedings and the giving of clear, complete and coherent evidence.145

The special measure of witness intermediaries was implemented in NSW in 2016 as a pilot program. The pilot initially ran for three years and became the Child Sexual Offence Evidence Program in 2019. The Criminal Procedure Act 1986 (NSW) as amended by the Criminal Procedure Amendment (Child Sexual Offence Evidence) Act 2023 (NSW) sets out the legislative basis for the program. The current legislation in NSW provides for the use of intermediaries only for children under 16 years and those over 16 years if they have a cognitive impairment or communication disability. No parallel legislation exists for vulnerable adult complainants, witnesses and defendants. Intermediaries do, however, provide their service to this vulnerable population through out of program referrals, which are made by the Office of the Director of Public Prosecutions, the court or Legal Aid NSW. The presiding judge determines how the intermediary can facilitate communication for vulnerable adults in out of program matters.146 See further at 5.6.6.

Consider appointing a witness/communication intermediary to assess the communication skills of the person with disability and provide the court recommendations on communication strategies and reasonable adjustments to ensure the provision of clear evidence and a fair process.

The presence of an intermediary can reduce the stress of giving evidence, enhance the quality of evidence that vulnerable people provide and enable access to justice for a vulnerable group of the population who would otherwise be deemed unable to participate in the legal process.147

5.6.3 Adjustments during proceedings

Last reviewed: April 2025

 

5.6.3.1 Reasonable adjustments

Many of the barriers listed in 5.6.4 can be substantially mitigated (and in some cases, completely mitigated) if the court makes or provides for appropriate adjustments.

Failure to make reasonable adjustments for the person with a disability may amount to discrimination pursuant to the Disability Discrimination Act 1992 (Cth). An adjustment is “reasonable” if it does not cause unjustifiable hardship to the person making it.155 If the legal representative has a disability, they are morally and ethically entitled to a workplace which has made reasonable adjustments and provided supports for them.

If such adjustments are not made, people with disabilities and/or any carers are likely to:

  • not be able to participate fully, adequately, or at all in court proceedings

  • feel uncomfortable, fearful or overwhelmed

  • feel resentful or offended by what occurs in court

  • not understand what is happening and/or be able to get their point of view across and be adequately understood

  • feel that an injustice has occurred

  • in some cases be treated with less respect, unfairly and/or unjustly when compared with other people.

The NSW Department of Communities & Justice website provides information regarding inclusion in NSW courts for people living with disabilities.156

See also the Justice Advocacy Service (JAS)157 which supports young people and adults with cognitive impairment who are in contact with the NSW criminal justice system to exercise their rights and fully participate in the process. JAS uses an individual advocacy approach by arranging a support person to be with victims, witnesses and suspects/defendants when they are in contact with police, courts and legal representatives.

5.6.3.2 Assistance animals

An assistance animal or service dog is an animal trained to alleviate the effect of the person’s disability and to meet the standards of hygiene and behaviour appropriate to an animal in a public place, or an animal that is accredited as an assistance animal under a state or territory law or by a prescribed animal training organisation.158 These animals are trained to assist people with disabilities by accomplishing multiple tasks, such as retrieving items, activating light switches, opening and closing doors and many other tasks specific to the needs of each individual. These animals increase the independence and self-esteem of the individual and are trained to support their owner in their home and community environments. They are trained to travel on public transport and to support their owner in public settings.

Assistance animals are used not only by people who are blind or vision-impaired, but also by a range of other people with disabilities, including people who are deaf or hearing-impaired, people who experience epileptic seizures, people with mental illness and people with physical disabilities.

Under s 59 of the Companion Animals Act 1998 (NSW) and s 9 of the Disability Discrimination Act 1992 (Cth) there is no distinction between assistance animals, service dogs and guide dogs. A person with a disability is generally entitled to be accompanied by an assistance animal in a public place.159

5.6.4 Specific examples of the barriers for people with disabilities in relation to court proceedings

Last reviewed: April 2025

The barriers for people with disabilities in relation to court proceedings — whether as a juror, legal practitioner, support person, witness or accused — obviously depend on the type and severity of the particular person’s disabilities.

There are numerous barriers to the full participation of people with disabilities — unless some appropriate adjustment or adjustments are made. A few examples follow.

  • For people with physical disabilities:

    • Inaccessible venue or courtroom facilities (for example, stairs not lifts, narrow doors, high buttons/handles/counters, an inaccessible witness box, slippery floors, no nearby parking, steep inclines, heavy doors, round or hard to grip door knobs).

    • Inability to sit or stand in the same position either at all or beyond a particular time and/or fatigue.

    • Communication barriers related to deafness or difficulty hearing, blindness or low vision, or a speech impairment.

  • For people with intellectual/cognitive disabilities:

    • Communication barriers — the language used is too complex, fast or abstract, and/or the proceedings are too lengthy.

    • Fatigue.

    • In Dogan v R,160 a cognitively impaired complainant could give evidence in the form of previous representations made in a recorded interview with a police officer. Chapter 6, Pt 6 of the Criminal Procedure Act 1986 permits evidence from a cognitively impaired person to be given in this manner, provided the court is “satisfied … the facts of the case may be better ascertained”: ss 306P(2), 306S(1)(a). These provisions are “in addition to… and do not, unless the contrary intention is shown, affect the operation” of the Evidence Act 1995: s 306O.

  • For people with an acquired brain injury:

    • Any one or more of the barriers listed in the preceding two points, plus their communication barriers may be exacerbated by, for example, being unable to concentrate and/or process information easily, memory difficulties, and/ or by having disinhibited behaviour.

  • For people with neurocognitive disorders and FASD:

    • Any one or more of the barriers listed in the first two points, plus behavioural disabilities.

    • Difficulty in understanding the court process.

    • Diminished competency and capacity to fully grasp the severity of the situation.

    • A potential to make false confessions without understanding the legal consequences of such an act.

  • For people with mental disorders or who are neuro-diverse:

    • Communication barriers — difficulty comprehending and responding to complex questions, tag or leading questions and questions containing legalese

    • Difficulties with emotional regulation and anxiety — for example, they may be easily distracted, very jumbled, severely distressed/anxious/frightened, manic, delusory and/or aggressive or angry

    • Hypersensitivity to lights, noise, temperature and/or touch.

5.6.5 Oaths, affirmations and declarations

Last reviewed: April 2025

5.6.6 Language and communication

Last reviewed: April 2025
5.6.6.1 Initial considerations

Just the same as anyone else who appears in court, a person with a disability needs to understand what is going on, the meaning of any questions asked of them, and to be sure that their evidence and replies to questions are adequately understood by the court.

It is also critical that people with disabilities are treated with the same respect as anyone else.

As indicated in 5.6.2, some people with disabilities will need an intermediary, interpreter or some form of communication aid to be made available for them to be able to communicate their evidence and understand what is being said by others. They may also need some adjustments to be made in the level or style of language used, and/or the manner in which they are given information about what is going on.

Some people who do not need an intermediary or communication aid may also need adjustments to be made in the level or style of language used and/or the manner in which they are given information about what is going on.

5.6.6.2 Terminology161

Within the disability movement, there have been several changes over time to the terms people with disabilities prefer to be used to describe people with disabilities.

It is always preferable to emphasise the person rather than the disability. People with a disability are people first who happen to have a disability. Terms such as “suffer”, “stricken with”, “victim” or “challenged” are also not generally appreciated. Most people with disabilities prefer to talk about what they can do, not what they may be unable to do, and indeed, to talk about the additional activities many of them might be able to do if we as a community made some (often simple) reasonable adjustments.

The way language is used can have a profound impact on people with disabilities. Language can have the effect of stereotyping, depersonalising, humiliating or discriminating against people with disabilities. Language can result in a person with a disability feeling respected and worthwhile or disregarded and marginalised. People with disabilities, like everyone else, want to be treated as valued members of society. Terms such as “crazy”, “mental”, “retard(ed)”, “slow” or “defective” are not accurate terms for people with disabilities and are no longer used — except in a derogatory way.

The term “disabled” is also not liked because it has negative connotations in that it reflects a sense of being “not able”, “not working” or “broken down”. It is also untrue, in that most people with disabilities are able to do a range of things. Many people with disabilities have full lives, including working, having a family, playing sport and community involvement.

Some examples of appropriate and inappropriate terminology162
Use Do not use
A person with a disability Disabled/handicapped (person), invalid
People with disabilities The disabled, the handicapped, invalids
A person with a mental, or a person with a mental illness Mad, crazy, mental, mentally unstable, nuts, psycho(tic), psychopath(ic)
A person with Down syndrome Mongol, mongoloid, downy
A person with Cerebral Palsy Spastic, sufferer of/someone who suffers from Cerebral Palsy
A person with an ID/cognitive disability Mental retard, mentally retarded, retard, simple, special needs
A person who has epilepsy Epileptic
A person with a brain injury Brain-damaged, brain-impaired
A person with dementia Demented
A person with paraplegia/quadriplegia Paraplegic/quadriplegic (which describes the person as their impairment)
A person with learning disability Slow, slow learners, retarded, special needs
An autistic person, neurodivergent person, person on the autism spectrum Aspy/aspie, high functioning, profoundly autistic
A person of short stature Dwarf, midget
A person who has … (specify the actual deformity) A deformed person
A person in a coma/who is unconscious A vegetable/in a vegetative state
A person who is deaf, or a person who is hard of hearing (HOH) Deaf person, hearing impaired, deaf as a doorpost
A person who is blind, has a vision impairment, a person with low vision The blind, person without sight, blind as a bat
A person who is non-verbal Mute, dumb
A person who uses a wheelchair A person confined to a wheelchair, wheelchair-bound, wheelchair person
Seizure Fit, spell, attack
Accessible Toilet/ Entry/ Parking Disabled Toilet/Entry/Parking (because disabled as an adjective is seen as meaning that it’s not working).
A person who has … (specify the disability) Stricken, suffers from, challenged, victim
5.6.6.3 General communication guidance
5.6.6.4 Level and style of language to suit particular needs
  • People with physical disabilities — you may need to adjust your language in order to communicate effectively with some people with physical disabilities, for example, those with a hearing impairment — see 5.6.6.5.

  • People with intellectual disabilities, autism and ADHD — you will almost always need to adjust both the level and style of your language in order to be able to communicate effectively with a person with an ID. For some techniques, see 5.6.6.6.

  • People with an acquired brain injury — you may need to adjust the style and/or the level of your language in order to be able to communicate effectively with most people with an acquired brain injury. It is important to ascertain whether the brain injury affected receptive or expressive language. For some techniques, see 5.6.6.7.

  • People with mental disorders or cognitive impairment — you may need to adjust the style and/or the level of your language to be able to communicate effectively with some people with mental disorders or cognitive impairment. For some techniques see 5.6.6.8.

  • People with FASD — you may need to adjust the style and/or the level of your language to communicate with some people with FASD. People with FASD may be affected by physical, intellectual and/or behavioural disabilities — see 5.6.6.5, 5.6.6.6 and 5.6.6.8.

5.6.6.5 Communication techniques for people with physical disabilities
5.6.6.6 Communication techniques for people with intellectual disabilities
5.6.6.7 Communication techniques for people with an acquired brain injury
5.6.6.8 Communication techniques for people with mental disorders or cognitive impairment
5.6.6.9 Communication techniques for people with neurodevelopmental disorders

5.6.7 Breaks and adjournments

Last reviewed: April 2025

5.6.8 Possible impact of a person’s disability or disabilities on any behaviour relevant to the matter(s) before the court

Last reviewed: April 2025

5.6.9 Directions to the jury — points to consider

Last reviewed: April 2025

5.6.10 Sentencing, other decisions and judgment or decision writing — points to consider

Last reviewed: April 2025

5.6.11 Dealing with the media

Last reviewed: April 2025

It is important to be aware of the presence of media in the courtroom and the reporting of court decisions in the news. Courts are often a source of news items for media outlets.

In some circumstances, it may be appropriate to seek advice from your media liaison officer, or to control the amount and detail of information in judgments. For instance, where the circumstances disclose facts which may be “sensationalised” by media, a detailed factual description of events might be capable of reinforcing stereotypes of those who have a mental illness.

For further advice and information, see Mindframe resource: guide for judicial officers on mental illness.183 Mindfame’s objective is to destigmatise mental illness and to encourage media reporting about mental illness consistent with best practice guidelines.

5.7 Further information or help

Last reviewed: April 2025

5.8 Further reading

Last reviewed: April 2025

Australian Human Rights Commission, Access to justice in the criminal system for people with disability, Issues Paper, April 2013, accessed 7/4/2025.

Australian Human Rights Commission, Equal before the law: towards disability justice strategies, February 2014, accessed 7/4/2025.

Australian Institute of Health and Welfare, M Bonello et al, Fetal alcohol spectrum disorders: strategies to address information gaps, accessed 7/4/2025.

C Bower et al Fetal alcohol spectrum disorder and youth justice: a prevalence study among young people sentenced to detention in Western Australia, accessed 7/4/2025.

S Brown and G Kelly, Issues and inequities facing people with acquired brain injury in the criminal justice system, report prepared for Victorian Coalition of ABI Service Providers Inc, September 2012, accessed 7/4/2025.

Council for Intellectual Disability, Inclusive communication tips, May 2020, accessed 7/4/2025.

Department of Family and Community Services NSW, Operational Performance Directorate, Ageing, Disability and Home Care, People with intellectual and other cognitive disability in the criminal justice system, Final 1.0, December 2012, accessed 7/4/2025.

Department of Family and Community Services NSW, National Disability Strategy, NSW Disability Inclusion Plan 2021–2025, accessed 7/4/2025.

K Eagle and A Johnson, “Clinical issues with the Mental Health and Cognitive Impairment Forensic Provisions Act 2020” (2021) 33(7) JOB 67.

M Edgely, “Solution-focused court programs for mentally impaired offenders: What works?” (2013) 22 JJA 207.

Foundation for Alcohol Research & Education, The Australian Fetal Alcohol Spectrum Disorders Action Plan 2013–2016, accessed 30/1/24.

M Ierace, “Introducing the new Mental Health and Cognitive Impairment Forensic Provisions Act 2020” 33(2) JOB 15.

Judicial Commission of NSW, Civil Trials Bench Book, “Persons under legal incapacity”, 2007–, at [2-4600] ff.

Judicial Commission of NSW, Criminal Trial Courts Bench Book, “Mental illness — including insane automatism”, 2nd edn, 2002–, at [6-200] ff.

Judicial Commission of NSW, Sentencing Bench Book, “Mental Health and Cognitive Impairment Forensic Provisions Act 2020”, 2006–, at [90-000] ff.

O Moore, “Working with clients with disability: improving experiences in the justice system”, Law Society Journal, Iss 81, September 2021, p 82, accessed 7/4/2025.

F Robards, M Milne and E Elliott, “Addressing the challenges of FASD for adolescents in the justice system” (2024) 2 JQR 11.

Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, 2023, accessed 7/4/2025.

Royal Commission, “Nature and extent of violence, abuse, neglect and exploitation against people with disability in Australia”, Research Report, March 2021, accessed 7/4/2025.

J Sanders, “Diversion under the new Mental Health and Cognitive Impairment Forensic Provisions Act 2020” 33(2) JOB 18, accessed 7/4/2025.

R Stein, “Vulnerability and the right to effective participation in the criminal justice process: the role of the witness intermediary” (2024) 36(9) JOB 91.

R Stein and J Goodman-Delahunty, “Bridging the justice gap: inequity in provision of intermediary assistance for vulnerable adults” (2024) 50(1) Alt LJ 1.

R Stein, J Goodman-Delahunty and T Sourdin, “A communication intermediary, an autistic defendant and cross-examination: A novel Australian Case” (2025) Psychiatry, Psychology and Law DOI: 10.1080/13218719.2025.2470627 (Forthcoming).

C Townsend et al, “Fetal Alcohol Disorder, disability and the criminal justice system” (2015) 8(17) Indigenous Law Bulletin 30.

D Weatherburn et al, “Does mental health treatment reduce recidivism among offenders with a psychotic illness?” (2021) 54(9) Journal of Criminology 239, accessed 7/4/2025.

Dealing with the media

Mindframe: for courts, accessed 7/4/2025.

NSW Law Reform Commission, People with an Intellectual Disability and the Criminal Justice System, Report No 80, 1996, accessed 7/4/2025.

NSW Law Reform Commission, Blind or Deaf Jurors, Report No 114, 2006, accessed 7/4/2025.

5.9 Your comments

We welcome your feedback on how we could improve the Bench Book.

We would be particularly interested in receiving relevant practice examples (including any relevant model directions) that you would like to share with other judicial officers.

In addition, you may discover errors, or wish to add further references to legislation, case law, specific sections of other Bench Books, discussion or research material.

Section 15 contains information about how to send us your feedback.



2Royal Commission into Violence, Abuse, Neglect and Exploitation of people with disability, Final Report, 29/9/2023, accessed 7/4/2025.

3Letters Patent (Cth), 4 April 2019, as amended, recitals, (a).

4Royal Commission, above n 2, Vol 8, p 147.

5Royal Commission, above n 2, Vol 8, p 22.

6Royal Commission, above n 2, Vol 8, [9.4], p 306.

7Royal Commission, above n 2, Executive Summary, p 185.

8Royal Commission, “Nature and extent of violence, abuse, neglect and exploitation against people with disability in Australia”, Research Report, March 2021, p 6, accessed 7/4/2025.

9Survey, Disability, Ageing and Carers, Australia: Summary of Findings, 2018, released 24/10/2021, under the heading “Key statistics: Disability”. Problem behaviour is a symptom of a disorder and may also be indicative of a problematic environment.

10Royal Commission, above n 8.

11Australian Institute of Health and Welfare (AIHW), Chronic conditions and multimorbidity, as quoted in AHRC, Disability action plan guide 2021, p 7, accessed 7/4/2025.

12Legal Aid NSW, “Understanding trauma and mental health”.

13UNHR, Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008); Australia ratified the CPRD on 17 July 2008, accessed 7/4/2025.

14Australian Government, Australia’s Disability Strategy 2011–2031, 2024 update, p 9.

15Royal Commission Final Report, Vol 9, Ch 2, “Disability is not a word we use”, p 33.

16S Avery, Culture is inclusion: a narrative of Aboriginal and Torres Strait Islander People with disability, FPDN, 2018, p 191; Royal Commission Final Report, Vol 9, Ch 2, “Disability is not a word we use”, pp 35–48.

17Royal Commission, above n 2, Executive Summary, p xiii.

18Unless otherwise indicated, the statistics in 5.2 are drawn from Australian Bureau of Statistics (ABS) Survey, Disability, ageing and carers, Australia: summary of findings, 2018, released 24/10/2019, accessed 7/4/2025. This includes the data cubes for tables in NSW, released 5/2/2020 and accessed 7/4/2025 and the ABS Survey of disability, ageing and carers (2022), released June 2024, accessed 17/4/2025.

19ABS, ibid, Table 3.1.

20ibid, Table 1.3.

21ibid, Table 29.1.

22ibid.

23ibid, Table 5.1.

24ibid.

25ibid, Table 8.1

26$458/week for all people with reported disability in 2018 compared to $959/week for no reported disability: ibid, Table 7.1.

27ibid, Table 7.1.

28B Vu, et al “The costs of disability in Australia: a hybrid panel-data examination”, Health Economics Review, 2020, accessed 7/4/2025.

29NSW Department of Education, “Schools and students: 2022 statistical bulletin”, December 2023, accessed 7/4/2025.

30ABS Survey, above n 18, Table 6.1.

31Royal Commission, above n 2, Vol 3, p 83.

32ibid at p 88.

33ibid at p 89.

34ibid at p 105.

35Royal Commission, above n 2, Vol 8 at [1.5].

36C Ringland et al, “People with disability and offending in NSW: Results from the National Disability Data Asset pilot”, BOCSAR Bureau Brief no BB164, January 2023, p 1, accessed 7/4/2025. The study is based on data obtained for individuals in contact with the criminal justice system and/or specific disability support services over a 10-year period from 2009–2018.

37ibid at 15, 16.

38C Ringland et al, “The victimisation of people with disability in NSW: Results from the National Disability Data Asset pilot” BOCSAR Crime and Justice Bulletin, No 252, September 2022, accessed 7/4/2025. This study examined data over a 5-year period from 2014–2018.

39ibid.

40Centre of Research Excellence in Disability and Health, Nature and extent of violence, abuse, neglect and exploitation against people with disability in Australia, Research report, March 2021, p 10, accessed 7/4/2025. This is based on 2018 Australian population data.

42People with Disability Australia, “Ableism and the impact of ableist language”, PWDA Language Guide: A guide to language about disability, Update, 2021, accessed 7/4/2025.

43Disability Discrimination Act 1992 (Cth), ss 5 and 6.

44Anti-Discrimination Board of NSW, Anti-Discrimination NSW Annual Report 2023–2024, accessed 7/4/2025.

45AHRC, Annual Report 2023–2024, Complaints Statistics, accessed 7/4/2025.

46J Burns and N Thomson, “Review of ear health and hearing among Indigenous Australians”, Australian Indigenous HealthInfoNet, No 15, 2013; Darwin Otitis Guidelines Group and Office for Aboriginal and Torres Strait Islander Health Technical Advisory Group, Recommendations for clinical care guidelines on the management of Aboriginal and Torres Strait Islander Populations, Menzies SHR, Darwin, 2010, accessed 7/4/2025.

47Parliament of the Commonwealth of Australia, “Still waiting to be heard …”, Report on the inquiry into the hearing health and wellbeing of Australia, House of Representatives Standing Committee on Health, aged care and sport, September 2017, accessed 7/4/2025.

48B Gibson, Assistant Secretary, Health Branch, Indigenous Affairs Group, Department of the Prime Minister and Cabinet, Official Committee Hansard, Canberra, 3 March 2017, p 29

49Australian Hearing, Submission to the Inquiry into the hearing health and wellbeing of Australia, Submission 58 Supplementary Submission 3, 2017, at 18, accessed 7/4/2025.

50Can:Do Hearing, Submission to the Inquiry into the hearing health and wellbeing of Australia, Submission 50, at 6, accessed 7/4/2025.

51Speech Pathology Australia, Submission to the Inquiry into the hearing health and wellbeing of Australia, Submission 51, at 8, accessed 7/4/2025.

52Sounds Scouts Australia (cmee4 Productions), Submission to the Inquiry into the hearing health and wellbeing of Australia, Submission 41, at 8, accessed 7/4/2025.

53Department of Veterans’ Affairs, Submission to the Inquiry into the hearing health and wellbeing of Australia, Submission 90, at 1–2, accessed 7/4/2025.

54D Kenny, “Young offenders with an intellectual disability in the criminal justice system” (2012) 24 JOB 35.

56American Psychiatric Association, “What is intellectual disability”, accessed 7/4/2025.

57NDIS, “Quarterly reports to disability ministers”, National dashboard, 30 September 2023, accessed 7/4/2025.

58Inclusion Australia, “What is intellectual disability?” accessed 7/4/2025.

59AIHW, “Disability in Australia: acquired brain injury” Bulletin 55, December 2007, accessed 7/4/2025.

60For this and further statistics on ABI, see NDIS, “Acquired brain injury summary“, Dashboard, September 2023, accessed 7/4/2025.

61AIHW, “The health of people in Australia’s prisons”, 2022, at 40, accessed 7/4/2025.

62AIHW, above n 59, at 3.

63Bugmy Bar Book, accessed 7/4/2025.

64American Psychiatric Association (APA), Diagnostic and Statistical Manual of Mental Disorders, 5th edn, text revised, (DSM-5-TR), Washington DC, 2022, at p 14. The DSM is designed to be a useful tool for clinicians and practitioners involved with mental health care to communicate the essential characteristics of mental disorders. The above definitions of mental disorders may not meet the needs of the courts and legal practitioners, however the categories may assist the courts understanding of the relevant characteristics of mental disorders.

65APA, “The organization of DSM-5-TR”, accessed 7/4/2025.

66DSM-5-TR, above n 64, p 12.

67ibid, pp 35ff. World Health Organization, “Mental disorders”, 8 June 2022, accessed 7/4/2025. See also, APA, “Autism Spectrum Disorder”, accessed 7/4/2025.

68DSM-5-TR, above n 64, pp 101–103.

69ibid, p 139 ff.

70ibid, p 177ff.

71World Health Organization, above n 67.

72DSM-5-TR, above n 64, p 215 ff.

73ibid.

74ibid, p 263 ff.

75ibid, pp 295 ff.

76ibid, pp 329 ff.

77ibid, pp 349 ff. See also, L Stone, “Somatising disorders: untangling the pathology” (2007) 36 Australian Family Physician, accessed 7/4/2025.

78For more information about eating disorders, see APA, “Feeding and eating disorders”, accessed 7/4/2025.

79For more details about sleep-wake disorders, see APA, “What are sleep disorders”, accessed 7/4/2025; also APA, “Sleep-wake disorders”, accessed 7/4/2025.

80For more information, see APA, “What is gender dysphoria?”, accessed 7/4/2025.

81For more information, see APA, “What are disruptive, impulse control and conduct disorders?”, accessed 7/4/025.

82DSM-5-TR, above n 64, p 543 ff.

84K Eagle and A Johnson, “Clinical issues with the Mental Health and Cognitive Impairment Forensic Provisions Act 2020” (2021) 33 JOB 67. This discusses the Victorian Supreme Court of Appeal case R v Brown [2020] VSCA 212 which overruled an earlier Victorian decision which had held that personality disorders could not be considered when assessing the moral culpability of an offender on sentence.

85APA, “Paraphilic disorders”, accessed 7/4/2025.

86S Alam et al, “Management of drug-induced movement disorders in psychiatry: an update”, Open Journal of Psychiatry & Allied Sciences, 8 February 2016, accessed 7/4/2025; Lumen, “Medication-induced movement disorders”, accessed 7/4/2025.

88See further M Ierace, “Introducing the new Mental Health and Cognitive Impairment Forensic Provisions Act 2020” (2021) 33(2) JOB 15.

89F Ninivaggi, “Borderline intellectual functioning an academic or educational problem”, Ch 28.3 in B Sadock, V Sadock, P Ruiz, Kaplan & Sadock’s comprehensive textbook of Psychiatry, 10th edn, Wolters Kluwer, 2017, as quoted in K Eagle and A Johnson, “Clinical issues with the Mental Health and Cognitive Impairment Forensic Provisions Act 2020” (2021) 33(7) JOB 67.

90EJ Elliott, “Fetal alcohol spectrum disorders in Australia — the future is prevention” (2015) 25(2) Public Health Research & Practice e2521516, accessed 7/4/2025.

91A Dudley et al, Critical review of the literature: Fetal Alcohol Spectrum Disorders, Telethon Kids Institute, 2015, accessed 7/4/2025.

92FASD is referred to as a physical brain-based condition by the National Organisation for Fetal Alcohol Spectrum Disorders (NOFASD) Australia, accessed 7/4/2025. The status of FASD as a disability has been addressed in several reports. The House of Representatives, Standing Committee on Social Policy and Legal Affairs, FASD: The hidden harm — Inquiry into the prevention, diagnosis and management of Fetal Alcohol Spectrum Disorders, November 2012, recommended that the Commonwealth Government include FASD in the List of Recognised Disabilities (recommendation 18), accessed 7/4/2025. Although support and services for FASD-affected children could be provided by including FASD in the List of Recognised Disabilities, and in the Better Start for Children with a Disability initiative (FaHCSIA 2013), it was noted that services are available according to the level of functional impairment and do not depend on a formal diagnosis of FASD: AIHW: M Bonello, L Hilder and E Sullivan, Fetal alcohol spectrum disorders: strategies to address information gaps, Cat no PER 67, 2014, p 1, accessed 7/4/2025. National fetal alcohol spectrum disorder (FASD) Strategic Action Plan 2018-2028 aims to reduce the incidence of FASD across Australia, accessed 7/4/2025.

93J Latimer, The George Institute for Global Health, Australia, March 2015.

94The Senate, Legal and Constitutional Affairs References Committee, Value of a justice reinvestment approach to criminal justice in Australia, June 2013, pp 36–37, accessed 7/4/2025.

95C Bower et al, “Fetal alcohol spectrum disorder and youth justice: a prevalence study among young people sentenced to detention in Western Australia” (2018) 8(2) BMJ Open e019605, accessed 7/4/2025; R Borschmann et al, “The health of adolescents in detention: a global scoping review” (2020) 5(2) The Lancet Public Health e114–e26.

96S Lange et al, "Global prevalence of Fetal Alcohol Spectrum Disorder among children and youth: a systematic review and meta-analysis" (2017) 171(10) JAMA Pediatrics 948–956.

98LCM v State of WA [2016] WASCA 164.

99LCM v State of WA [2016] WASCA 164 at [121].

100Churnside v The State of WA [2016] WASCA 146.

101I Freckelton, “Sentencing offenders with foetal alcohol spectrum disorder (FASD): the challenge of effective management” (2016) 23(6) Psychiatry, Psychology and Law 815.

102Bugmy Bar Book, “Fetal alcohol spectrum disorders”, accessed 7/4/2025.

103Judicial Commission of NSW, JIRS, Foetal Alcohol Spectrum Disorder (FASD) legal resources, accessed 7/4/2025.

104Healthdirect, “Autism spectrum disorder”, accessed 7/4/2025.

105CS Allely. “What is autism spectrum disorder (ASD)?” in Autism spectrum disorder in the criminal justice system 1st ed, Routledge, 2022, pp 1–18.

106Derived from Judicial College (UK), Equal Treatment Bench Book, 2024 edn, p 257, accessed 7/4/2025.

107ADHD Guideline, Background About ADHD, accessed 7/4/2025.

108World Health Organization, International Classification of Diseases, 11th edn, accessed 7/4/2025.

109Derived from Judicial College (UK), Equal Treatment Bench Book, July 2024 edn, p 251, accessed 7/4/2025.

110APA, above n 65 at p 667 ff. See also Dementia Australia, “Diagnostic criteria for dementia”, accessed 7/4/2025.

111DSM-5-TR, above n 64, at pp 669ff.

112UNHR, Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008); Australia ratified the CPRD on 17 July 2008, accessed 7/4/2025.

113Royal Commission, Final Report, Executive Summary, p X, accessed 7/4/2025.

114R Kayess, Disability Discrimination Commissioner, “Viewing disability through a human rights lens” (2024) 36(9) JOB 87 at 88.

115Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990), Art 12, accessed 7/4/2025.

116International Covenant on Civil and Political Rights, entry into force: 23 March 1976, in accordance with Art 49, accessed 7/4/2025.

117United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, GA Res 40/34, UN GAOR, 96th plenary meeting, UN Doc A/RES/40/34 (29 November 1985), Art 4, accessed 7/4/2025.

118S Ortoleva, “Inaccessible justice: human rights, persons with disabilities and the legal system” (2011) 17 ILSA Journal of International and Comparative Law 281 at 284, accessed 7/4/2025.

119B O’Mahony, R Marchant and L Fadden, “Vulnerable individuals, intermediaries and justice” in G Oxburgh et al (eds), Communication in investigative and legal contexts: integrated approaches from forensic psychology, linguistics and law enforcement, John Wiley and Sons, 2015, p 287.

120S Ortoleva, above n 118 at 284.

121Attorney-General’s Department, “Rights of people with a disability”, accessed 7/4/2025.

122Inserted by the Criminal Code Amendment (Hate Crimes) Act 2025 (Cth), commenced 8 February 2025.

123Ageing and Disability Commissioner Act 2019, s 4.

124ibid, s 15A.

125NDIS Quality and Safeguards Commission, “Incident management”, accessed 7/4/2025.

126Evidence Act 1995 (NSW), s 13.

127See for example, Evidence Act 1995 (NSW), s 31, in relation to deaf and mute witnesses and Criminal Procedure Act 1986 (NSW), Pt 6 in relation to the giving of evidence by vulnerable persons. A vulnerable person is defined to mean a child or a cognitively impaired person.

128CJ v AKJ [2015] NSWSC 498 at [32].

129J Reynolds, “Disability and social epistemology”, The Oxford Handbook of Social Epistemology, Oxford University Press, 2023, accessed 7/4/2025. The term “testimonial injustice” was first devised by M Fricker, “Testimonial injustice”, Contemporary Epistemology, J Fantl, M McGrath and E Sosa (eds), 2019, accessed 7/4/2025.

130M Kebbell et al, “Witnesses with intellectual disabilities in court: What questions are asked and what influence do they have?” (2004) 9 Legal and Criminological Psychology 23 at 24.

131H Fisher et al, “Reliability and comparability of psychosis patients’ retrospective reports of childhood abuse” (2011) 37 Schizophrenia Bulletin 546 concluded that retrospective self-reports of childhood adversity by psychosis patients can be considered to be reasonably reliable: at 550, accessed 7/4/2025.

132Bromley v The King [2023] HCA 42.

133Bromley v The King [2023] HCA 42 at [70].

134For more information on this topic see NSW Department of Communities and Justice, Capacity Toolkit, at “Section 3 — Who might assess capacity”, p 54, accessed 7/4/2025; and The Law Society of NSW, “When a client’s mental capacity is in doubt: a practical guide for solicitors”, 2016, accessed 7/4/2025.

135PBU & NRE v Mental Health Tribunal [2018] VSC 111.

136I Freckleton, “Mental health treatment and human rights” (2019) 44(2) Alt LJ 91. In PBU & NRE v Mental Health Tribunal [2018] VSC 111, Bell J said equality before the law protects “the inherent and universal dignity of human persons. This right is particularly important for persons with mental disability because they are especially vulnerable to discriminatory ill-treatment, stigmatisation and personal disempowerment” (at [113]), and “For anybody, mentally disabled or not, non-belief or non-acceptance of a diagnosis and lack of insight into the need for treatment would not be a sufficient basis for rebutting the presumption of capacity at common law”: at [231].

137NSWLRC, Report 135, People with cognitive and mental health impairments in the criminal justice system: diversion, 2012, pp 134–135, accessed 7/4/2025. See also Judicial Commission, Criminal Trial Courts Bench Book, 2006—, at [4-304].

138See further J Sanders, “Diversion under the new Mental Health and Cognitive Impairment Forensic Provisions Act 2020” (2021) 33 JOB 18; M Ierace, “Introducing the new Mental Health and Cognitive Impairment Forensic Provisions Act 2020” (2021) 33 JOB 15, accessed 7/4/2025.

139Judicial Commission of NSW, Criminal Trial Courts Bench Book, 2002–, [4–300] and [4-​325]; Local Court Bench Book at [30-000] and ff; J Sanders, above n 138.

140Criminal Trial Courts Bench Book, above n 139.

141ibid.

142Crimes Act 1900 (NSW), s 23A (as amended by Mental Health and Cognitive Impairment Forensic Provisions Act 2020). See also Criminal Trial Courts Bench Book, above n 139 at [6-550].

143The Advocate’s Gateway,Toolkit 1: Ground Rules Hearings, accessed 10/3/2025.

144A Dalton, E Alexander, N Wade, “No more hiding in plain sight: the need for a more inclusive legal profession” (2022) 171 Precedent 4 at 7, accessed 7/4/2025.

145B O’Mahony, R Marchant and L Fadden, “Vulnerable individuals, intermediaries and justice” in G Oxburgh et al (eds), Communication in investigative and legal contexts: integrated approaches from forensic psychology, linguistics and law enforcement, John Wiley and Sons, 2015, p 288.

146R Stein, “Vulnerability and the right to effective participation in the criminal justice process: the role of the witness intermediary” (2024) 36(9) JOB 91 at 92.

147J Cashmore and R Shackel, Evaluation of the Child Sexual Offence Evidence Pilot — Final Outcome Evaluation Report, UNSW, 2018, p 3, accessed 7/4/2025; E Henderson, “‘A very valuable tool’: judges, advocates and intermediaries discuss the intermediary system in England and Wales” (2015) 19 The International Journal of Evidence and Proof 154–171 at 168; R Stein, “Vulnerability and the right to effective participation in the criminal justice process: the role of the witness intermediary” (2024) 36(9) JOB 91 at 92.

148For some examples of adjustments see Royal Commission into Violence, Abuse, Neglect and Exploitation of People with a Disability, Vol 6, [1.2] “Accessible communication and information”; NSW Law Reform Commission, Blind or deaf jurors, Report No 114, 2006, accessed 7/4/2025; and, ss 30 and 31 of the Evidence Act 1995 (NSW) which provide for interpreters and for appropriate allowance to be made for deaf and mute witnesses.

149See the Department of Justice website page “Services for people with disability”, accessed 4/7/2025, which provides information about how to get a hearing loop.

150Auslan interpreters can be booked via the Deaf Society of NSW or Multicultural NSW — see 5.7 for contact details. For criminal matters, courts have a contract with the CRC to provide Auslan interpreters free of charge. The JCDI Resource, “Recommended national standards for working with interpreters in courts and tribunals”, 2nd edn, accessed 7/4/2025, provides helpful advice for working with interpreters including Auslan interpreters.

151Criminal Procedure Act 1986 (NSW), s 306ZK provides that vulnerable persons have a right to choose a support person of their own choice, and that that person may act as an interpreter by assisting them to give their evidence. A vulnerable person is defined in s 306M as a child or a cognitively impaired person.

152See the Companion Animals Act 1998 (NSW), ss 59–60 and Disability Discrimination Act 1992 (Cth), s 54A — see n 159.

153For information provided by the Department of Communities and Justice to support vulnerable persons (including people with disabilities) about going to court and the role of a support person, see Services for people with disability, accessed 7/4/2025. Note that the Criminal Justice Support Network (CJSN) of the Intellectual Disability Rights Service (IDRS) provides and advises support people for people with an intellectual disability who are witnesses or defendants in a criminal matter — see 5.3.5 and resources at IDRS, accessed 7/4/2025.

154See Department for Communities and Justice, “Support for witnesses”, accessed 7/4/2025.

155See Disability Discrimination Act 1992 (Cth), ss 4, 5 and 6. Section 14 provides that the Act binds the Crown in right of each of the States.

156NSW Department of Communities and Justice, Disability and inclusion, 2020, accessed 7/4/2025.

157Intellectual Disability Rights Service Inc, Justice Advocacy Service (JAS), accessed 7/4/2025.

158Disability Discrimination Act 1992 (Cth), s 9. No training organisations have yet been prescribed.

159See Companion Animals Act 1998 (NSW), ss 59–60. The Disability Discrimination Act 1992 (Cth) also makes it unlawful to discriminate against a person because they are accompanied by an assistance animal (s 9(2) and (4)), but s 54A provides that it is not unlawful for the discriminator to discriminate against the person with the disability on the ground of the disability if the discriminator reasonably suspects that the assistance animal has an infectious disease and the discrimination is reasonably necessary to protect public health or the health of other animals. Court Security Act 2005, s 7A provides that a security officer may refuse a person entry to court premises or may require a person to leave the court premises if that person is in possession of an animal. However, s 7A does not apply to an assistance animal that is being used by a person with a disability.

160Dogan v R [2020] NSWCCA 151.

161People with disability Australia, PWDA language guide: a guide to language about disability, August 2021, accessed 7/4/2025.

162ibid.

163In relation to witnesses who are deaf or mute see also Evidence Act 1995 (NSW), s 31.

164For information provided by the Department of Communities and Justice for people with cognitive disabilities who have to go to court, see n 153.

165Note that pursuant to Evidence Act 1995 (NSW), s 41, improper questions must be disallowed (for example, misleading or confusing, or unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive questions). Section 41(2)(b) specifically refers to the need to take account of the witness’s “mental, intellectual or physical disability”. Sections 26 and 29(1) of the Evidence Act 1995 provides for the court’s control over the manner and form of questioning of witnesses, Evidence Act 1995, s 135(b), allows for the exclusion of any evidence that is misleading or confusing.

166Note Evidence Act 1995 (NSW), ss 26, 29(1), 41 and 135(b), see n 165.

167For information provided by the Department of Communities and Justice for people with cognitive disabilities who have to go to court: see n 153.

168See Evidence Act 1995 (NSW), s 29 and NSW Law Reform Commission, People with an intellectual disability and the criminal justice system, Report No 80, 1996, accessed 7/4/2025.

169Note ss 26, 29(1), 41 and 135(b) of the Evidence Act 1995 (NSW), see n 165.

170ibid.

172See n 165.

173ibid.

174A court may make orders under its inherent jurisdiction: Court Suppression and Non-publications Orders Act 2010, s 8; Civil and Administrative Tribunal Act 2013, s 64. See Judicial Commission of NSW, Criminal Trial Courts Bench Book, above n 139, “Closed court, suppression and non-publication orders” at [1-349] and Judicial Commission of NSW, Civil Trials Bench Book, 2007–, “Closed court, suppression and non-publication orders” at [1-0400].

175See also Judicial Commission of NSW, Sentencing Bench Book, Sydney, 2006–, particularly the commentary on the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) at [90-000]ff. Further, in relation to people with psychiatric and/or intellectual disabilities, see S Traynor, “Sentencing mentally disordered offenders: the causal link” (2002) 23 Sentencing Trends and Issues, Judicial Commission of NSW, Sydney; T Gotsis and H Donnelly “Diverting mentally disordered offenders in the NSW Local Court”, Research Monograph 31, Judicial Commission of NSW, Sydney, 2008; Veen (No 2) v The Queen (1988) 164 CLR 465; R v Engert (1995) 84 A Crim R 67 at 69; R v Israil [2002] NSWCCA 255 at [18]–[27].

176Bugmy Bar Book, accessed 7/4/2025.

177See Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3, Div 2, and the Charter of Victims Rights (at Victims Rights and Support Act 2013, Pt 2, Div 2), which allows the victim access to information and assistance for the preparation of any such statement.

178Judicial Commission of NSW, Sentencing Bench Book, 2006–, “Health”, at [10-450]. R v Smith (1987) 44 SASR 587; R v Penalosa-Munoz [2004] NSWCCA 33 at [14].

179James v R [2021] NSWCCA 23.

180James v R [2021] NSWCCA 23 at [66].

181James v R [2021] NSWCCA 23 at [65].

182James v R [2021] NSWCCA 23 at [63].