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

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5 Figure 2: Defence of mental impairment under the CMIA in the Supreme Court and County Court Alleged offence tried in Supreme Court or County Court Did not know nature or quality of conduct or that it was wrong at time of offence s 20(1) Mental impairment defence agreed by prosecution and defence Mental impairment defence not agreed by prosecution and defence Hearing by judge alone Decided on balance of probabilities no mental impairment Trial by jury in Supreme Court or County Court Not guilty because of mental impairment (balance of probabilities) Guilty Not guilty Custodial supervision order Non-custodial supervision order Unconditional release 91
Victorian Law Reform Commission Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997: Consultation Paper Other mental state defences 5.32 The Commission’s reference is on the defence of mental impairment under the CMIA. However, an important context to the defence is the other mental state defences available in Victoria. 5.33 A person accused of committing an offence may claim a defence to either justify their actions or to excuse them, partially or wholly, from criminal responsibility. The difference between a justification or an excuse can be distinguished as follows: defences ‘justifying’ a crime focus on the accused’s act whereas those ‘excusing’ a person from criminal responsibility are generally viewed as concentrating on the accused’s personal characteristics. 25 5.34 A defence may be a complete defence or a partial defence. A complete defence (for example automatism) operates to provide the accused person with an acquittal whereas a partial defence (such as infanticide) operates to reduce murder to manslaughter. 26 Victorian law includes a number of other defences categorised as mental state defences. Included in this category are mental impairment, automatism, intoxication and infanticide. These are outlined in Table 2 below. 5.35 The Commission’s Defences to Homicide: Final Report reviewed mental state defences available in Victoria and recommended that the defences of automatism and infanticide remain unchanged. 27 Changes were recommended to the defence of intoxication that are reflected in the current legislation. 28 5.36 Other jurisdictions in Australia have largely the same mental state defences. A number of jurisdictions (Australian Capital Territory, New South Wales, Northern Territory and Queensland) also have the defence of diminished responsibility. In these jurisdictions, diminished responsibility, like infanticide, is a partial defence to homicide. 5.37 There are three common elements across Australian jurisdictions that must be proven on the balance of probabilities to establish the partial defence of diminished responsibility: • the accused person must have been suffering from an abnormality of mind • the abnormality of mind must have arisen from a specified cause, and • the abnormality of mind must have substantially impaired the accused person’s mental responsibility for the killing. 29 5.38 Diminished responsibility is not a defence in Victorian law. The Commission’s Defences to Homicide: Final Report recommended that diminished responsibility should not be introduced in Victoria and that a mental disorder should instead continue to have a mitigating effect that is taken into account in sentencing. 30 92 25 Bernadette McSherry and Bronwyn Naylor, Australian Criminal Laws: Critical Perspectives (Oxford University Press, 2004) 53 (citations omitted). 26 Ibid 53. 27 Victorian Law Reform Commission, above n 1, 252, 262. 28 Ibid 126–7. 29 Ibid 233. 30 Ibid 243.
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2 The CMIA: background and principl
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