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

Victorian Law Reform Commission
Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997: Consultation Paper
Question
27 What is the most appropriate way of directing the jury on the findings in
special hearings
Appeals against findings of unfitness to stand trial and findings at
special hearings
Current law under the CMIA
4.137 If a jury makes a finding of unfitness, the accused person has a right to appeal the finding
of unfitness to the Court of Appeal. 169 Following a special hearing, a finding that the
accused person committed the offence is subject to appeal in the same manner as if
they had been convicted of an offence. 170 A finding that the accused person is not guilty
because of mental impairment can also be appealed to the Court of Appeal. 171 For a
discussion of appeals in relation to a not guilty because of mental impairment verdict, see
Chapter 5.
Principles underpinning appeals
4.138 Appeals provide the opportunity for a higher court to reconsider a decision of the lower
court. 172 The opportunity to reconsider a decision of the lower court has a number
of functions:
• To protect against miscarriages of justice—by avoiding wrongful convictions and
providing a forum where any concerns on the fairness of the trial can be addressed.
• To maintain consistency between trial courts—this is achieved by correcting
inconsistent applications of the law and providing clarification and guidance on how
the law should be applied.
• To provide legitimacy to the criminal justice system—appeals maintain public
confidence in the criminal justice system by avoiding miscarriages of justice and
holding judges accountable for their decisions. 173
4.139 The opportunity to appeal in this area is particularly important given the vulnerability
of accused people who are found unfit to stand trial and the serious consequences of
being found unfit to stand trial (and a subsequent finding that the person committed
the offence charged). This includes the indefinite duration of supervision orders and the
rigorous conditions to which the person is subject.
4.140 Despite this, appeals in this area seem to be infrequent. Eagle and Adams, when
examining the frequency of appeals in New South Wales, found that there were also very
few appeals in Victoria. 174 Eagle and Adams note that there appears to have only been
one appeal of an unfitness finding since the introduction of the CMIA. 175 They observe
that avenues for appeal appear to be very limited in this area 176 and argue that given the
vulnerability of these people, rights to appeal should be more readily available. 177
82
169 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 14A.
170 Ibid s 18(3).
171 Ibid ss 18(2), 24AA.
172 Peter D Marshall, ‘A Comparative Analysis of the Right to Appeal’ (2011) 22 Duke Journal of Comparative & International Law 1.
173 Ibid 3–4.
174 Kerri Eagle and Jonathon Adams, ‘Appealing a Mental Illness Verdict in New South Wales’ (2013) Psychiatry, Psychology and the Law 1, 10.
175 Ibid 11; The Queen v NCT [2009] VSCA 240 (23 October 2009) [6],[7].
176 Eagle and Adams, above n 174, 1.
177 Ibid 9.