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

More documents

Recommendations

Info

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
Victorian Law Reform Commission Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997: Consultation Paper Special hearings to determine criminal responsibility 4.126 A special hearing is a means of determining the criminal responsibility of a person who has been found unfit to stand trial. Its purpose is to determine whether on the evidence available the person who has been found unfit to stand trial is not guilty, not guilty because of mental impairment or committed the offence. 150 4.127 A special hearing is conducted as closely as possible to a criminal trial. 151 The accused person found unfit to stand trial is taken to have pleaded not guilty to the offence. 152 Unlike a criminal trial, the accused person is not expected to participate in the hearing. 153 Instead their interests are represented by their legal representative as far as this is possible. 154 4.128 The Commission has identified a number of possible issues in relation to special hearings that are primarily based on the findings available in special hearings. These include: • the suitability of findings in special hearings, and • the directions to the jury on the findings in special hearings. Suitability of findings in special hearings 4.129 Following a special hearing, the jury can find that the accused person ‘committed the offence charged or an offence available as an alternative’, that is characterised as a ‘qualified finding of guilt’. 155 4.130 The New South Wales Law Reform Commission observed that the qualified finding of guilt may cause the perception that the accused person has been found guilty of an offence, even though there has not been a usual trial of the evidence, that would enable a full investigation of the facts. 156 Further, that same perception could lead to a misunderstanding that the accused person has been found guilty and yet ‘escapes’ criminal sanctions. A finding that more accurately labels the outcome of a special hearing may be preferable to clarify the outcome of a special hearing. 4.131 The qualified finding of guilt in Victoria contrasts with the equivalent finding available in Tasmania. Tasmania provides for a finding that ‘a finding cannot be made that the defendant is not guilty of the offence charged’. 157 It also contrasts with the equivalent finding recommended by the Community Development Committee, whose report formed the basis of the CMIA, that ‘on the limited evidence available, a finding cannot be made that the person is not guilty of the offence or any offence available as an alternative’. 158 Recently, the New South Wales Law Reform Commission suggested a finding that ‘the accused person was unfit to be tried and was not acquitted’ of the offence charged. 159 Question 26 Should changes be made to the findings available in special hearings 80 150 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 15. 151 Ibid s 16(1). 152 Ibid s 16(2)(a). 153 Law Commission, above n 42, 23. 154 Ibid. 155 Crimes (Mental Impairment and Unfitness to be Tried) Act (Vic) ss 17(1)(c), 18(3). 156 New South Wales Law Reform Commission, above n 61, 42. 157 Criminal Justice (Mental Impairment) Act 1999 (Tas) s 17. 158 Community Development Committee, above n 131, 183. 159 New South Wales Law Reform Commission, above n 61, 42.
Page 1 and 2:
Review of the Crimes (Mental Impair
Page 3 and 4:
Published by the Victorian Law Refo
Page 5 and 6:
Victorian Law Reform Commission Rev
Page 7 and 8:
Page 9 and 10:
Page 11 and 12:
Page 13 and 14:
Page 15 and 16:
Page 17 and 18:
Page 19 and 20:
Page 21 and 22:
xviii
Page 23 and 24:
Page 25 and 26:
Page 27 and 28:
Page 30 and 31:
2 The CMIA: background and principl
Page 32 and 33:
2 2.6 For the vast majority of peop
Page 34 and 35:
2 2.16 Prior to these reviews, the
Page 36 and 37:
2 Previous reviews of provisions in
Page 38 and 39:
2 Victorian Parliament Law Reform C
Page 40 and 41:
2 criminal law, 44 and is also reco
Page 42 and 43:
2 Protection of the community 2.62
Page 44 and 45:
2 Family members of people subject
Page 46 and 47:
2 2.94 The CMIA’s therapeutic aim
Page 48 and 49:
2 Principles governing the treatmen
Page 50: 2 Victorian law Mental Health Act 1
Page 53 and 54: Victorian Law Reform Commission Rev
Page 72 and 73: 4 Unfitness to stand trial 52 Intro
Page 74 and 75: 4 4.5 As stated in [4.11] below, un
Page 76 and 77: 4 4.16 If an accused person is foun
Page 78 and 79: 4 The test in Victoria: the ‘Pres
Page 80 and 81: 4 Decision-making capacity or effec
Page 82 and 83: 4 Question 3 Should the test for un
Page 84 and 85: 4 or rational appreciation of the p
Page 86 and 87: 4 4.57 However, expressly recognisi
Page 88 and 89: 4 4.65 Some jurisdictions have legi
Page 90 and 91: 4 Difficulty in assessing unfitness
Page 92 and 93: 4 Requirement to ‘plead’ in a c
Page 94 and 95: 4 The role of experts in the proces
Page 96 and 97: 4 4.102 More broadly, some have que
Page 98 and 99: 4 4.113 In DPP v CJC (CJC), 135 Jus
Page 102 and 103: 4 Directions to the jury on finding
Page 104: 4 4.141 It is unclear why appeals a
Page 133 and 134: 112
Page 151 and 152:
Page 153 and 154:
Page 155 and 156:
134
Page 157 and 158:
Page 159 and 160:
Page 161 and 162:
Page 163 and 164:
Page 165 and 166:
Page 167 and 168:
Page 169 and 170:
Page 171 and 172:
Page 173 and 174:
Page 175 and 176:
Page 177 and 178:
Page 179 and 180:
158
Page 181 and 182:
Page 183 and 184:
Page 185 and 186:
Page 187 and 188:
Page 189 and 190:
Page 191 and 192:
Page 193 and 194:
Page 195 and 196:
Page 197 and 198:
Page 199 and 200:
Page 201 and 202:
Page 203 and 204:
Page 205 and 206:
184
Page 207 and 208:
Page 209 and 210:
Page 211 and 212:
Page 213 and 214:
Page 215 and 216:
Page 217 and 218:
Page 219 and 220:
Page 221 and 222:
Page 223 and 224:
Page 225 and 226:
Page 227 and 228:
Page 229 and 230:
Page 231 and 232:
Page 233 and 234:
Page 235 and 236:
Page 237 and 238:
Page 239 and 240:
Page 241 and 242:
220
Page 243 and 244:
Page 245 and 246:
Page 247 and 248:
Page 249 and 250:
Page 251:
show all

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

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?