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

4
Directions to the jury on findings in special hearings
4.132 At the commencement of a special hearing, the judge must explain to the jury:
• that the accused person is unfit to stand trial
• the meaning of being unfit to stand trial
• the purpose of a special hearing
• the findings that are available
• the standard of proof required for those findings. 160
4.133 As discussed earlier, section 17(1) of the CMIA provides that the following findings are
available to the jury at a special hearing: not guilty, not guilty of the offence because of mental
impairment and committed the offence charged. Recently, there has been some confusion
on the extent of the trial judge’s obligation to direct the jury on the findings available in
special hearings, particularly whether the judge must explain all three possible findings.
4.134 In R v Langley (Langley), 161 the trial judge only explained two findings to the jury that
were open on the evidence. The trial judge did not tell the jury that they could find the
defendant not guilty because of mental impairment. The Court of Appeal held that the
trial judge should have explained all three findings to the jury. It said that whether or not
the defendant was suffering from a mental impairment was clearly a question of fact
for the jury to determine. 162 This was despite the fact that at the special hearing there
had been no positive or direct evidence that the defendant had a mental impairment at
the time of the offence. It means that even where there is no evidence in relation to the
finding, or when the defendant wishes that the finding not be left to the jury, all findings
must still be put to the jury. 163
4.135 The approach taken in Langley is potentially inconsistent with the approach taken by the
High Court when considering a very similar issue. In Subramaniam v The Queen, 164 the
High Court considered section 21(4) of the Mental Health (Criminal Procedure) Act 1990
(NSW) that sets out what the trial judge should explain to the jury, including ‘the verdicts
which are available’. The High Court stated that the trial judge must direct the jury on the
verdicts that are ‘relevantly available … in this case not guilty of the offence(s) charged,
or, that on the limited evidence available, the accused committed the offences charged’. 165
The High Court did not say that the trial judge should have directed the jury on the
remaining two findings, (‘not guilty on the ground of mental illness’ or ‘on the limited
evidence available, the accused person committed an offence available as an alternative to
the offence charged’).
4.136 The approach taken in Langley may also be inconsistent with the recent change that has
taken place in relation to jury directions, driven by the introduction of the Jury Directions
Act 2013 (Vic). Among the aims of the Jury Directions Act is to reduce the complexity
of jury directions in criminal trials and to assist the trial judge to give jury directions in a
manner that is as clear, brief, simple and comprehensible as possible. 166 The intention of
the legislation is that in giving directions in criminal trials, trial judges should give directions
on only so much of the law as the jury needs to know to determine the issues in the trial. 167
This could exclude matters not raised in evidence, such as the additional verdict in Langley.
However, the procedure specified by the Jury Directions Act does not apply to directions
given by trial judges under other legislation and would therefore not apply to the provisions
of the CMIA. 168 Further amendment to the Jury Directions Act could affect these provisions.
160 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 16(3).
161 [2008] VSCA 81 (21 May 2008).
162 Ibid [38].
163 Ian Freckelton, ‘Mandatory Procedures and Fairness in Mental Impairment Hearings’ (2009) 16 (2) Psychiatry, Psychology and Law 191, 195.
164 [2004] HCA 51 (10 November 2004).
165 Ibid [37].
166 Jury Directions Act 2013 (Vic) s 1.
167 Ibid s 5(4).
168 Ibid s 9.
81