in Law School. I did not much care for Criminal Law either. Both were required subjects or I may not have done them. At the end of both I was more convinced than ever that the law is not always about justice.
Yesterday our court system dropped a case of alleged sexual misconduct because of issues with obtaining the necessary evidence. The defendant was the driver of a school bus used by children with intellectual disabilities. The alleged victims were some of his passengers. It was said that getting the necessary evidence from children with intellectual disabilities was not going to be possible within the requirements of the Evidence Act. Indeed there was a suggestion that it was not possible to obtain any reliable evidence from them.
I disagree. It would have been very difficult but it would have been possible. It should have been done. It is possible to obtain evidence admissable in a court of law even from people who have quite profound communication impairments.
An inability to speak does not necessarily mean a failure to understand or an inability to impart information. Questions can be framed in such a way that they are not "leading" - suggesting the answer the questioner wants. They can be asked in such a way that the individual being asked can choose between options acceptable to both sides. The most common options will be "yes" or "no" but they can involve other choices - perhaps between persons or objects or places.
Yes, asking questions like this requires training and great skill. It requires an understanding of the difficulties being faced by the person endeavouring to answer the questions. It takes far more time.
I suspect that the real problem with the case which was dropped yesterday is that those involved did not understand how to communicate with each other, let alone how to communicate with the communication impaired. The prosecution saw a distressing scenario for the alleged victims and the defence was only too willing to concur because a guilty verdict would have meant gaol time for the defendant.
We need to change more than the Evidence Act. We need to change the belief that the inability to communicate fluently with words means an inability to communicate. It does not. In this case lack of knowledge and skills has led to justice not being done.