Crimes Mental Impairment consultation paper.pdf - Victorian Law ...

4
4.121 The Law Reform Committee recently recommended that the Victorian Government
investigate procedures adopted in the United Kingdom for determining unfitness to stand
trial, with a view to examining whether these procedures could provide for opportunities
to resolve determinations of unfitness to stand trial in Victoria more expeditiously. 145
The Law Reform Committee cited, as an example, a procedure in England and Wales
where courts may defer the question of fitness to stand trial and proceed to examine
an accused person’s criminal responsibility first, up to the opening case for the defence.
The examination of fitness to stand trial in this alternative procedure is only necessary if
after the examination of criminal responsibility the accused person is not acquitted. The
court may adopt this procedure if it is ‘of opinion that it is expedient to do so and in the
interests of the accused’ having regard to the nature of the supposed disability. 146
4.122 The opportunity to dispense with one stage of the process may provide for a less lengthy
procedure and the possibility of an early acquittal. 147 However, the New South Wales Law
Reform Commission has noted two weaknesses with the process in England and Wales:
• When determining criminal responsibility, the consideration of the mental elements of
the offence are excluded and the question for the jury is limited to whether or not the
accused person did the act or omission charged.
• The examination of criminal responsibility can only proceed up to the opening case for
the defence, even though there is evidence that may not be called by the prosecution
that may be capable of exonerating the accused. 148
4.123 These two issues could be addressed by:
• allowing the mental element to be considered when criminal responsibility is
determined
• providing for an opportunity for the defence case to be taken into account when
criminal responsibility is determined.
4.124 The New South Wales Law Reform Commission noted that in Canada the court has
a discretion to direct that the defence case be taken into account when criminal
responsibility is determined. Determination of the issue of fitness to stand trial may be
deferred ‘until a time not later than the opening of the case for the defence or, on motion
of the accused person, any later time that the court may direct’. 149
4.125 Deferring the unfitness to stand trial investigation to follow an examination of the accused
person’s criminal responsibility may be more efficient and ultimately lead to the same
outcome for that person. However, the benefits of this approach may come at the cost of
subjecting an accused person to a trial where they may be unfit to stand trial.
Questions
24 How frequent is it for an accused person to be acquitted at a special hearing,
following a finding of unfitness
25 What procedures could be implemented to expedite the unfitness to stand trial
process
145 Law Reform Committee, above n 62, 240.
146 Criminal Procedure (Insanity) Act 1964 (UK) s 4(2).
147 New South Wales Law Reform Commission, above n 61, 38.
148 Ibid 38–9.
149 Criminal Code, RSC 1985 s 672.25(2)(b).
79