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

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6 Application of the CMIA in the Magistrates’ Court 114 Introduction 114 The Magistrates’ Court of Victoria 116 The law prior to the CMIA 116 Current law under the CMIA in the Magistrates’ Court 117 Extending the application of the CMIA in the Magistrates’ Court: systemic issues 118 Unfitness to stand trial in the Magistrates’ Court 125 Defence of mental impairment in the Magistrates’ Court
Victorian Law Reform Commission Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997: Consultation Paper 6. Application of the CMIA in the Magistrates’ Court Introduction 6.1 The terms of reference ask the Commission to consider whether the application of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (CMIA) should be further extended to the Magistrates’ Court, for example: • whether the process for determining fitness to stand trial should be adapted for use in the Magistrates’ Court • whether the CMIA should permit the Magistrates’ Court to make supervision orders or other orders appropriate to the jurisdiction, rather than being required to discharge the accused person if they are found not guilty because of a mental impairment, and • if the Magistrates’ Court is permitted to make additional orders, whether this should be limited to indictable offences that are triable summarily or extended to also include certain summary offences. 6.2 In this chapter, the Commission asks a number of questions about whether the CMIA should be extended to apply in the Magistrates’ Court and the appropriate extent of any expansion. In doing so, the Commission considers the current jurisdiction of the Magistrates’ Court under the CMIA, including relevant processes and orders already available in the Magistrates’ Court in relation to people with a mental illness, intellectual disability or cognitive impairment and the extent to which these could be utilised. The Commission also considers the equivalent approach taken in other summary jurisdictions. The Magistrates’ Court of Victoria 6.3 The Magistrates’ Court Act 1989 (Vic) establishes the Magistrates’ Court of Victoria. 1 The Magistrates’ Court sits in 54 different locations around Victoria and is comprised of 114 magistrates, 14 acting magistrates and seven judicial registrars. 2 It is Victoria’s principal court of summary jurisdiction 3 with the jurisdiction to hear a broad range of matters, including criminal matters, traffic offences, money claims and civil disputes, family law and family violence matters and infringements. It also has a number of specialist court jurisdictions including the Drug Court and Koori Court. Unlike the higher courts, proceedings are less formal in the Magistrates’ Court—for example, magistrates and lawyers do not wear wigs or robes. 4 Juries do not form a part of Magistrates’ Court proceedings. 114 1 Magistrates’ Court Act 1989 (Vic) s 4. 2 These numbers are correct as at 30 June 2012. 3 Richard Fox, Victorian Criminal Procedure: State and Federal Law (Monash Law Book Co-operative Ltd, 13th ed, 2010) 94. 4 Magistrates’ Court Act 1989 (Vic) s 125(2).
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2 The CMIA: background and principl
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2 2.6 For the vast majority of peop
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2 2.16 Prior to these reviews, the
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2 Previous reviews of provisions in
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2 Victorian Parliament Law Reform C
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2 criminal law, 44 and is also reco
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2 Protection of the community 2.62
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2 Family members of people subject
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2 2.94 The CMIA’s therapeutic aim
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2 Principles governing the treatmen
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2 Victorian law Mental Health Act 1
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4 Unfitness to stand trial 52 Intro
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4 4.16 If an accused person is foun
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4 The test in Victoria: the ‘Pres
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4 Decision-making capacity or effec
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