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

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Jury involvement in the process and consent mental impairment hearings
5.95 The role of the jury is to determine whether the accused person was suffering from a
mental impairment at the time of committing the offence. For example, if expert evidence
indicates that the accused person was suffering from schizophrenia, the jury must
determine if at the time of committing the offence, the accused person’s symptoms were
consistent with schizophrenia.
5.96 In its defences to homicide reference, the Commission consulted on issues in relation to
‘by consent’ mental impairment hearings and considered that empanelling a jury in these
cases was ‘both unnecessary and inappropriate’. 83 The Commission found that the role of
the jury in these cases was not to make a determination on the evidence but to confirm
the view of the defence and prosecution. The Commission therefore argued that the
process of empanelling a jury where both the prosecution and defence agreed on the
evidence that the defence of mental impairment had been established undermined the
role of the jury and ‘may lead to a loss of faith in the jury system’. 84
5.97 The CMIA was amended to allow for by consent mental impairment hearings. 85 If the
prosecution and defence both agree that the evidence has established the defence
of mental impairment, the trial judge may decide a jury is not required to make a
determination. 86
5.98 Instead, the trial judge alone may hear evidence and:
• direct that a verdict of not guilty because of mental impairment be recorded if the
judge is satisfied on the evidence that the defence of mental impairment has been
established, 87 or
• must direct that the person be tried by a jury if the judge is not satisfied on the
evidence that the defence of mental impairment has been established. 88
5.99 It is unclear whether a consent mental impairment hearing is available after a finding of
unfitness as discussed in Chapter 4 from [4.110].
Question
41 Should there be any changes to the current processes for jury involvement in
hearings and consent mental impairment hearings
83 Victorian Law Reform Commission, above n 1, 229.
84 Ibid 230.
85 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 21(4).
86 Ibid.
87 Ibid s 21(4)(a).
88 Ibid s 21(4)(b).
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