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
5.56 Prior to the introduction of the CMIA, the Victorian Parliamentary Community
Development Committee in its review of the Governor’s pleasure regime recommended
introducing a statutory definition of mental impairment. 51
5.57 While appreciating the need for flexibility in interpreting the term ‘mental impairment’,
the Community Development Committee acknowledged that ‘both the category of
people likely to plead the insanity defence, their families and their legal counsel should be
provided with some statutory guidance as to what the term means’ and recommended a
statutory definition be developed. 52
5.58 The issue was re-examined in the Commission’s defences to homicide report. In
that report, the Commission recommended retaining the current defence of mental
impairment without including a statutory definition of mental impairment.
5.59 The Commission’s report argued that difficulties in adequately defining the term ‘mental
impairment’ would mean that any definition would be equally problematic and subject to
criticism as having no definition at all. 53
5.60 The complexities in developing a definition of mental impairment were highlighted by
McSherry and Naylor:
One of the initial difficulties with this criterion [for the defence of mental impairment] is
that a clear definition of mental impairment, or even mental illness, has eluded members
of the medical as well as the legal professions. 54
5.61 Consultations undertaken as part of the Commission’s defences to homicide report
indicated that the defence was working well in practice and leaving the term undefined
would ensure flexibility in its application. 55 The review instead recommended that a
provision be added to the CMIA that specifies what the term ‘mental impairment’
includes but is not limited to the common law notion of ‘disease of the mind’. 56
5.62 In March 2013, the Victorian Parliament Law Reform Committee released a report, Inquiry
into Access to and Interaction with the Justice System by People with an Intellectual
Disability and their Families and Carers, that acknowledged there is ambiguity in the
meaning of the term ‘mental impairment’ and recommended that a statutory definition
be developed.
Questions
29 How does the defence of mental impairment work in practice with ‘mental
impairment’ undefined
30 Should ‘mental impairment’ be defined under the CMIA
31 What are the advantages or disadvantages of including a definition of mental
impairment in the CMIA
96
51 Community Development Committee, Parliament of Victoria, Inquiry into Persons Detained at the Governor’s Pleasure (1995) 172.
52 Ibid 151.
53 Ibid 212.
54 McSherry and Naylor, above n 25, 531.
55 Community Development Committee, above n 51, 208–9.
56 Victorian Law Reform Commission, above n 1, 217.