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

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5 Process for establishing the defence of mental impairment 5.85 The process for establishing the defence of mental impairment is set out above from [5.24]. As discussed, the mental impairment defence can be raised in the Supreme Court, the County Court or the Magistrates’ Court. In this section, the Commission will look at issues regarding the process for establishing the defence of mental impairment. 5.86 As part of this review, the Commission has also been asked to consider whether the Magistrates’ Court should be permitted to make supervision and other orders in relation to a person found not guilty because of mental impairment and this will be discussed in Chapter 6. Issues in relation to the process for establishing the defence of mental impairment 5.87 In its preliminary research, the Commission has identified some possible issues regarding the process for establishing the defence of mental impairment. These primarily relate to the process for establishing the defence of mental impairment in the higher courts (the Supreme Court and County Court). The Commission would like input on the issues identified and any other issues that may exist regarding the operation of the process in any court level, including: • the role of lawyers in the process for establishing the defence of mental impairment • the role of experts in the process for establishing the defence of mental impairment • jury involvement in the process and consent mental impairment hearings. The role of lawyers in the process for establishing the defence of mental impairment 5.88 As discussed above, the defence of mental impairment can be raised at any time throughout the trial by lawyers. 5.89 Lawyers representing the accused person may face ethical issues in deciding whether to raise the defence of mental impairment. If the defence of mental impairment is successful, the accused person may be made subject to an onerous supervision regime for an indefinite period of time under the CMIA. Lawyers need to have a thorough understanding of the CMIA regime when providing advice to clients who may be eligible for the defence, to ensure the accused person appreciates the legal consequences. 5.90 Ethical issues may arise in cases where unfitness of the accused person is also in question and the accused person is unable to give instructions to their lawyer. Ethical issues arising over whether to raise the issue of unfitness are discussed in Chapter 4. 5.91 The outcome in terms of sentence is a key factor in the advice to and decision of an accused person in facing a charge (that is, whether to plead or raise the defence). Some accused persons may base their decision on whether to raise the mental impairment defence on advice about the consequences of the finding. If a lawyer advises an accused person that they are likely to receive a definite sentence within a particular range if they plead guilty, they may choose to do this over facing an indefinite supervision order. 101
Victorian Law Reform Commission Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997: Consultation Paper 5.92 On the other hand, an accused person may choose to raise the defence where there is a legitimate basis for avoiding criminal responsibility and sentence and be subject to a supervision order and receive treatment. As a person is highly reliant on their lawyer in these situations, it is essential that lawyers have a good working knowledge of the CMIA. For example, lawyers should understand that a supervision order is indefinite, what ‘nominal term’ means, and the restrictions that will be placed on a person’s liberty if they become subject to the regime. Lawyers must also understand how the CMIA provisions operate in practice. Questions 38 What ethical issues do lawyers face in the process for establishing the defence of mental impairment 39 What is the best way of addressing these ethical issues from a legislative or policy perspective The role of experts in the process for establishing the defence of mental impairment 5.93 As with the process of determining unfitness to stand trial, expert reports play an essential role in establishing the defence of mental impairment. However, while the court has the power to order a report to assist in determining unfitness to stand trial, they do not have similar powers in relation to the defence of mental impairment. 5.94 Similar issues to those outlined in Chapter 4 may arise in relation to the provision of expert reports to the court and the role of experts in establishing the defence of mental impairment. Possible issues include the qualifications of the experts, the quality and utility of expert reports and the number of reports relied on. The Commission is interested in gathering information about these potential issues and other issues in this area. Question 40 Are there any issues that arise in relation to the role of experts and expert reports in the process for establishing the defence of mental impairment 102
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