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

6
Extending the application of the CMIA in the Magistrates’ Court:
systemic issues
6.17 The question of whether the CMIA should be further extended to the Magistrates’ Court
raises a number of systemic issues that apply broadly to the matters that the Commission
will consider in this section and in other sections in this paper.
6.18 Extending the application of the CMIA to the Magistrates’ Court to enable it to determine
unfitness to stand trial and make orders in relation to people found not guilty because
of mental impairment could have potential advantages. The Magistrates’ Court could
provide a forum to determine these issues in a way that is less costly, more efficient and
perhaps less intimidating than having the issue determined in a higher court. A process
in the Magistrates’ Court could better address the level of offending involved in summary
offences and indictable offences triable summarily than a higher court. The Magistrates’
Court may also be able to take a more flexible approach to accused people who come
under the CMIA because of its less formal processes, the availability of options such as
diversion programs and the lower level of offending in its jurisdiction. More flexibility in
the regime in the Magistrates’ Court could enable a focus on treatment and recovery,
balanced with the need to protect the community as encapsulated in the underlying
principles of the CMIA.
6.19 There could be, however, potential disadvantages and setbacks as well. Investigations into
unfitness to stand trial may warrant jury involvement to provide an extra level of scrutiny.
The heavy caseload and high throughput in the Magistrates’ Court may be inappropriate
for the articulated procedures and evidence under the CMIA. It may also be important
not to create an overly elaborate process for people who have not committed a serious
offence or a rigorous supervision regime for these people, contrary to the principle of
least restriction underpinning the CMIA.
6.20 In the Commission’s Report on People with Intellectual Disabilities at Risk: A Legal
Framework for Compulsory Care, the Commission did not recommend that the CMIA be
extended to the Magistrates’ Court. At the time, the Commission was of the view that
this approach could result in supervision orders being made in relation to people who
have been charged with minor offences. The Commission was concerned that this could
result in the human services system having to manage people simply because they had
committed such offences, rather than to people who had a higher level of needs. 21 Since
then, the Magistrates’ Court has started to deal with progressively more serious offences
that may warrant a reconsideration of this recommendation.
6.21 It is also important to consider the cost implications of any expansion of the CMIA to
the Magistrates’ Court. There is a lack of data available on how many people could
potentially be drawn into the CMIA cohort if unfitness to stand trial was extended to the
Magistrates’ Court or if there was an expansion of the orders available. Such changes
could have significant resource implications for the Magistrates’ Court. The Commission
is interested in receiving data that can inform consideration of the possible effects and
implications of expanding the jurisdiction of the CMIA to the Magistrates’ Court.
6.22 An increase in the Magistrates’ Court’s jurisdiction would involve a higher caseload in
the court and demand for services, including for the provision of expert reports and the
supervision of orders. Therefore, it would be important to ensure that additional funding
is available to enable the court and support services to implement the change. On the
other hand, there could be significant resources saved by removing unfitness to stand trial
and mental impairment matters that are currently required to be determined in the higher
courts due to the restrictions on the application of the CMIA.
21 Victorian Law Reform Commission, People with Intellectual Disabilities at Risk: A Legal Framework for Compulsory Care, Report (2003)
123–4.
117