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
Process
5.24 The mental impairment defence under the CMIA operates at all court levels. Different
processes are followed depending on the court level.
5.25 Figure 2 shows the key stages of the process for determining and establishing the defence
of mental impairment in the Supreme Court and County Court.
5.26 When an accused person appears in any court, they are presumed not to be suffering
from a mental impairment. 17 This is the case for all criminal proceedings, regardless of
whether the defence of mental impairment has previously been raised by an accused
person in another matter.
5.27 The defence of mental impairment may be raised by the prosecution or the defence
at any time during the trial. 18 It is up to the party raising the defence to rebut the
presumption that the accused person is not suffering from a mental impairment. 19
5.28 The question of whether an accused person was suffering from a mental impairment at
the time the offence was committed is a question of fact to be determined by a jury on
the balance of probabilities. 20
5.29 Where the prosecution and defence both agree that the proposed evidence establishes
the defence of mental impairment, the trial judge may determine whether or not the
accused person is not guilty because of mental impairment. If the trial judge is satisfied
that the evidence establishes the defence of mental impairment, the judge may direct that
a verdict of not guilty because of mental impairment be recorded. 21 If the trial judge is not
satisfied that the evidence establishes the defence of mental impairment, the judge must
direct that question be determined by a jury. 22 This process known as ‘consent mental
impairment’ dispenses with the need to empanel a jury to determine whether the accused
person was suffering from a mental impairment.
5.30 If the defence of mental impairment is raised in the course of a trial, there are three
possible outcomes. The accused person may be found guilty, not guilty, or not guilty
because of mental impairment. If the accused person is found not guilty because
of mental impairment, they may be placed on a supervision order (custodial or
non-custodial) or may be unconditionally discharged. 23
5.31 In the Magistrates’ Court, the magistrate must discharge a person who is found not guilty
because of mental impairment. 24 The consent mental impairment process is not available
in the Magistrates’ Court.
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17 Ibid s 21(1).
18 Ibid s 22(1).
19 Ibid s 21(3).
20 Ibid s 21(2).
21 Ibid s 21(4)(a).
22 Ibid s 21(4)(b).
23 Ibid s 23.
24 Ibid s 5(2).