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

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5 The relevance of mental impairment to the jury’s consideration of the mental element of an offence 5.127 A separate but related consideration to the issue of the order of offence elements is whether the accused person’s mental impairment is relevant to the jury’s consideration of the mental element of an offence. 5.128 This issue has been identified as arising in particular under the Stiles approach to directing the jury on offence elements. 5.129 Under the Stiles approach to directing a jury, the jury would first have to determine if all the elements of the offence have been proved, including the mental element of the offence. It is only after all the elements of the offence have been proved that the jury would consider evidence relevant to the defence of mental impairment. However, if there is evidence that the accused had a mental impairment at the time of the offence, this could be relevant to the accused person’s state of mind at the time of the offence. If there is such evidence, even if it falls short of establishing the mental impairment defence, the prosecution may be unable to prove the mental element of the offence because the accused person was suffering from a mental impairment. 5.130 The issue therefore centres on the uncertainty as to whether evidence of an accused person’s mental impairment is to be used by the jury to either: • find that the impairment prevented the accused from forming the requisite mental element for the offence and therefore the element is not proved at all and completely acquit the person, or • find that the mental element is proved, but that the impairment prevented the accused from having the capacity to know the nature and quality of their actions or to know whether it was right or wrong, and therefore find the accused person not guilty because of mental impairment. 5.131 A number of trial judges have drawn attention to the uncertain state of the law on this issue and the consequent difficulty in properly instructing juries. 113 In the case of Soliman, this issue arose in the context of whether evidence of the accused person’s mental illness could be used to determine whether the fourth element of the offence of rape (awareness that or not giving any thought to whether the complainant is not consenting or might not be consenting), had been proved by the Crown beyond reasonable doubt. The court held that: If an accused is to be presume[d] to be of sound mind for the purposes of a jury’s consideration of all the elements, then evidence which goes to the issue of mental impairment, whether it be evidence supporting the defence or rebutting it, should only be considered if, and when all the elements of rape, are proven. If this were otherwise, then potentially all the same evidence which would be relied upon to establish, or even rebut the defence of mental impairment, may well result in an accused’s outright acquittal and would interfere with the presumption of sound mind. This would potentially undermine the Stiles approach and undermine the province of the defence of mental impairment itself. 114 5.132 The High Court in Hawkins stated that evidence of ‘mental disease’ (under section 16 of the Criminal Code Act 1924 (Tas)) is relevant to specific intent where this is not sufficient to amount to a defence of insanity. 115 Question 44 What approach should be adopted in determining the relevance of mental impairment to the jury’s consideration of the mental element of an offence 113 See, eg, Transcript of Proceedings, R v Sutherland (County Court of Victoria, CR-10-00016, Judge Punshon, 18 October 2012) 118. 114 DPP v Soliman [2012] VCC 658 (1 May 2012) [41]. 115 Hawkins v The Queen (1994) 179 CLR 500, 517. 109
Victorian Law Reform Commission Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997: Consultation Paper Legal consequences of the findings 5.133 Where a jury has been empanelled and there is evidence that raises the defence of mental impairment, the judge must direct the jury to consider this issue. 116 The judge must also explain to the jury the possible findings and the legal consequences of those findings. 117 5.134 It is not the usual practice in a criminal trial to explain the legal consequences of the findings to the jury. This is consistent with the ‘well-established view of the jury role’ in a criminal proceeding. 118 If a judge is required to explain what may happen to the accused person after the trial, this may affect the outcome of the trial. 5.135 The purpose of introducing the requirement to explain the legal consequences of findings to the jury arose out of concerns that juries may be reluctant to make a finding of not guilty because of mental impairment, if they believed ‘it could result in the immediate release of a disturbed and dangerous person when, as a practical proposition in most cases, that would most certainly not be the case’. 119 5.136 In the case of Fitchett, the Court of Appeal considered whether the trial judge had properly instructed the jury in relation to the consequences of the legal findings. Fitchett was accused of the murder of her two sons and raised the defence of mental impairment. The Court of Appeal held that instructions to the jury require something more than a recitation of the possible orders that can be made, as this may ‘not be either informative or serve to allay the perceived fears of jury members’. 120 It was held in this case that the jury directions on the legal consequences were deficient as they constituted a description of procedure rather than consequences and while the jury was told there would be consequences, no further explanation was provided. 5.137 Fitchett also highlighted tensions that judges must manage when directing juries on the legal consequences of findings. Difficulties arise when judges seek to reassure the jury that the accused person will not be released when this is a possible outcome in the legislation. This has created difficulties for judges in determining what is required when directing the jury on the legal consequences of the findings: Perusal of a number of recently delivered charges in the Trial Division of the court has revealed that there is some confusion concerning what should or should not be said in this regard and the difficulty which has been encountered in resolving the tension. Judges generally appear to have been concerned to reassure jury members that the verdict would not result in the release of the person into the community. 121 Question 45 Are changes required to the provision governing the explanation to the jury of the legal consequences of a finding of not guilty because of mental impairment 110 116 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 22(2). 117 Ibid s 22(2)(a). 118 R v Fitchett (2009) 23 VR 91, 100. 119 Ibid 102. 120 Ibid 103. 121 Ibid.
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