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

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Discretionary power to make orders
6.38 Rather than the Magistrates’ Court gaining the power to determine unfitness to stand
trial, it could instead have a broad discretionary power to make orders in relation to
people with a mental illness, intellectual disability or cognitive impairment.
6.39 While New South Wales and the Commonwealth do not have express provisions enabling
summary courts to determine unfitness to stand trial, 54 both jurisdictions give magistrates
limited discretionary powers to make orders in relation to people with a mental illness or
an intellectual or developmental disability. 55 Both jurisdictions permit summary courts to
adjourn proceedings, grant bail, dismiss proceedings or make any other appropriate order
in relation to accused people who have a mental illness or intellectual or developmental
disability. 56 The court may dismiss the charge and discharge the accused person into the
care of a responsible person, on the condition that the accused person be assessed or
receive treatment, or without conditions. 57
6.40 The New South Wales and Commonwealth approach removes the need for a decision
on whether an accused person is unfit to stand trial and a process to determine whether
the accused person committed the offence charged. By being less procedure driven, it is
potentially more efficient and less resource intensive. However, this approach has raised
some concerns. For example, a person could potentially be made subject to an order
without being found unfit to stand trial or to have committed the offence. O’Carroll argues:
One concern with s 20BQ of the [Crimes Act 1914 (Cth)] and s 32 of the [Mental Health
(Forensic Provisions) Act 1990 (NSW)] is that they do not give defendants a chance to defend
the charge. This could result in unfair outcomes where a person with an intellectual disability
has a valid defence but the magistrate dismisses the charge under one of these sections and
orders that the person be placed in somebody’s care or attend for treatment or assessment. 58
6.41 Further, the power is discretionary and magistrates are not required to apply it. Finally,
leaving the terms ‘mental illness’ and ‘intellectual disability’ or ‘developmentally disabled’
undefined may lead to confusion and result in the inconsistent application of the
provision. 59 An accused person may be unfit but not clearly fall into those categories. 60
Questions
50 Is a broad, discretionary power to make orders in relation to people with
a mental illness, intellectual disability or cognitive impairment a better
alternative to giving the Magistrates’ Court an express power to determine
unfitness
51 If considered, should such a power be framed or limited in any way (for
example, limited to indictable offences triable summarily)
52 What are the cost implications of introducing a broad, discretionary power to
make orders in relation to people with a mental illness, intellectual disability or
cognitive impairment
54 Section 4 of the Mental Health (Forensic Provisions) Act 1990 (NSW) provides that Part 2 of the Act, that provides a process for determining
fitness to stand trial, only applies to criminal proceedings in the Supreme Court (including criminal proceedings within the summary jurisdiction
of the Supreme Court) and the District Court. Section 20B of the Crimes Act 1914 (Cth) provides that if the issue of fitness to stand trial
is raised in a committal, the magistrate must refer the proceedings to the court to which the proceedings would have been referred had the
person been committed for trial.
55 O’Carroll, above n 39, 60.
56 Mental Health (Forensic Provisions) Act 1990 (NSW) s 32; Crimes Act 1914 (Cth) s 20BQ(1).
57 Ibid.
58 O’Carroll, above n 39, 62–3.
59 Ibid 66.
60 Ibid.
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