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

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6 Issues with the lack of jurisdiction 6.26 Through its preliminary research, the Commission is aware that the Magistrates’ Court’s lack of jurisdiction to determine unfitness to stand trial may give rise to a number of potential problems. Thus far, the following potential issues have been identified: • Inefficiency of the process—the Law Reform Committee was of the view that the current requirement that investigations into unfitness to stand trial be referred from the court in which the issue was raised to another court caused considerable inefficiencies and lengthened the process. As discussed in Chapter 4, the current process in relation to unfitness to stand trial requires the empanelling of two juries: one to determine whether the accused person is unfit to stand trial, and a second to determine whether the accused person committed the offence if they are found unfit to stand trial. The length of the process could be difficult for both victims and accused people, an issue that is also discussed in Chapter 4. The current process also utilises resources in the higher courts even though the offence is one that comes within the jurisdiction of the Magistrates’ Court. • Encourages ‘artificial decision making’—the current system may place pressure on magistrates, prosecutors, defence lawyers and the police to make decisions that they may not otherwise make. For example, in a number of cases, the only reason a magistrate would commit an accused person to trial is because the County Court has the power to empanel a jury to determine the issue of unfitness to stand trial, even though the type of offence would allow it to be heard and determined in the Magistrates’ Court. • Risk to community safety—if a person is unfit to stand trial, proceedings involving that person charged with a summary offence (as opposed to an indictable offence triable summarily) must be discontinued in the Magistrates’ Court. This is the case even when the accused person is charged with a large number of summary offences and may pose a risk of re-offending, and could raise issues of community safety. 32 The Magistrates’ Court lacks the power to make an order to address the offending or protect the community. 33 6.27 The terms of reference ask the Commission to consider whether changes are needed to ensure that the CMIA operates justly, effectively and consistently with the principles that underlie it. There is a potential inconsistency between the principles that underlie the CMIA and the Magistrates’ Court’s lack of jurisdiction to determine unfitness to stand trial. 6.28 First, the current system could be characterised as not operating ‘justly’, and may even be discriminatory, towards accused people with a mental illness, intellectual disability or cognitive impairment who may be unfit to stand trial. These accused people, by virtue of their mental illness, intellectual disability or cognitive impairment, do not have the same right as other accused people to have their matter heard in a lower jurisdiction. 32 Office of Public Prosecutions, Submission No 20 to 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, 9 September 2011, 4. 33 Ibid. 119
Victorian Law Reform Commission Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997: Consultation Paper 6.29 Second, the unfitness to stand trial doctrine is important for a number of reasons outlined in Chapter 4. These include the importance of avoiding inaccurate verdicts and ensuring the fairness of the criminal trial process. Based on these principles, a trial cannot continue if an accused person is unfit to stand trial. 34 There is, however, a danger that an accused person could be encouraged to plead guilty even when they cannot legitimately plead to avoid having the matter uplifted to a higher court and possibly dealt with by a more onerous supervision regime. Accused people in general may plead guilty for a number of reasons including a ‘preference for an informal, speedy resolution over a formal, intimidating, complex and lengthy proceeding …’, to ‘reduce costs’, ‘to get the matter over with, especially if in custody’, and ‘to get a lesser sentence’. 35 The factors affecting the decision to plead guilty are more pronounced in the situation of vulnerable offenders. 36 6.30 The tendency for accused people to plead guilty even when they are unfit to stand trial existed under the Governor’s pleasure regime 37 and exists in other jurisdictions. 38 It is unclear whether this practice occurs and is prevalent under the CMIA in Victoria. In any case, having inappropriate incentives to plead guilty may compromise the fairness of the process and the accuracy of the pleas entered in the Magistrates’ Court. 6.31 Further, an accused person who pleads guilty even when they are unfit to stand trial could receive a recorded criminal conviction and an unsuitable punishment. 39 If an accused person’s unfitness to stand trial continues to go undetected in the system, and the person continues to have multiple encounters with the criminal justice system, their criminal history is more likely to result in a prison sentence. 40 This could also be inconsistent with the principles that underlie the CMIA, particularly the principle that people who have not been tried for their actions because of a mental condition should not be punished. Question 47 What issues arise in relation to the Magistrates’ Court’s lack of jurisdiction to determine unfitness to stand trial 120 34 Eastman v R (2000) 203 CLR 1. 35 Kathy Mack and Sharyn Roach Anleu, Pleading Guilty: Issues and Practices (Australian Institute of Judicial Administration, 1995) 109. 36 Ibid. 37 Pioch v Lauder (1976) 13 ALR 266, 271. 38 See, eg, R v AAM; Ex parte Attorney-General (Qld) [2010] QCA 305 (5 November 2010) where a woman with an intellectual disability pleaded guilty to a number of summary offences in the Toowoomba Magistrates’ Court. Following a petition, the matter was eventually referred to the Court of Appeal, resulting in all the convictions being set aside. The court held that the pleas were not made by free choice because the woman was unfit to plead when she entered them, and it would be a miscarriage of justice to uphold the conviction. 39 Betheli O’Carroll, ‘Intellectual Disabilities and the Determination of Fitness to Plead in the Magistrates’ Courts’ (2013) 37(1) Criminal Law Journal 51, 52. 40 L Edmistone, ‘Law Change brings Justice for Mentally Ill Defendants in Courts’ The Courier-Mail 11 November 2010 as cited in Betheli O’Carroll, ‘Intellectual Disabilities and the Determination of Fitness to Plead in the Magistrates’ Courts’ (2013) 37(1) Criminal Law Journal 51, 52.
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2 The CMIA: background and principl
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2 criminal law, 44 and is also reco
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2 2.94 The CMIA’s therapeutic aim
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