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
The law prior to the CMIA
6.12 Under the Governor’s pleasure regime, magistrates did not have the authority to deal with
issues of unfitness to stand trial and the defence of mental impairment. In Pioch v Lauder,
Justice Forster observed:
In the case of [a] simple offence [in the Magistrates’ Court] … there appears to be neither
authority nor statutory provision to deal with the matter of a defendant who is insane,
whether properly so called as being a person suffering from a sufficient defect of reason,
or disease of the mind, or a person like the defendant here [who is found to be unfit
to plead]. 16
6.13 The CMIA granted magistrates limited powers, enabling them to find a person not
guilty because of mental impairment. However, the legislation stopped short of giving
magistrates the power to make orders following such findings.
Current law under the CMIA in the Magistrates’ Court
6.14 The CMIA does not give the Magistrates’ Court the power to determine unfitness to
stand trial. When the issue of unfitness to stand trial is raised, all matters involving
indictable offences (including indictable offences triable summarily) must be committed
to a higher court for an investigation of unfitness to stand trial by a jury. If the issue of
unfitness to stand trial is raised in relation to a summary offence, the matter must be
discontinued. 17 CL (a minor) v Lee & Ors (CL) 18 (discussed below at [6.23]) confirms that
the Magistrates’ Court lacks jurisdiction to determine unfitness to stand trial.
6.15 Section 528 of the Children, Youth and Families Act 2005 (Vic) gives the Children’s Court
all the ‘powers and authorities’ that the Magistrates’ Court has in relation to all matters
over which it has jurisdiction. This means that the CMIA applies to the Children’s Court
in the same way that it does in the Magistrates’ Court. In CL, Justice Lasry found that
the Children’s Court did not have the jurisdiction to determine whether a child is unfit
to stand trial partly because the Magistrates’ Court had no such jurisdiction. Where a
question of a child’s unfitness to stand trial is raised, the matter must be referred to the
County Court for an investigation into the child’s unfitness. Following the investigation, a
special hearing or trial must be held. 19
6.16 In relation to the defence of mental impairment, section 5(1) of the CMIA provides
that the defence of mental impairment applies to summary offences and to indictable
offences heard and determined summarily, which allows the defence to be relied on
in the Magistrates’ Court. The CMIA provides, however, that if the Magistrates’ Court
finds a person not guilty because of mental impairment of a summary offence or an
indictable offence heard and determined summarily, the Magistrates’ Court must
discharge the person. 20 The Magistrates’ Court therefore has no power to make orders
in relation to people found not guilty because of mental impairment. Due to section 528
of the Children, Youth and Families Act, the mental impairment defence also applies in
the Children’s Court. The Commission is not considering whether the CMIA should be
extended to the Children’s Court as part of this review. The Department of Justice is
examining this issue separately.
116
16 (1976) 13 ALR 266, 271.
17 Law Reform Committee, Parliament of Victoria, Inquiry into Access to and Interaction with the Justice System by People with an Intellectual
Disability and their Families and Carers (2013) 231.
18 [2010] 29 VR 570.
19 Ibid 588.
20 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 5(2).