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

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6 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. 123
Victorian Law Reform Commission Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997: Consultation Paper Determining whether the accused person committed the offence 6.42 If the Magistrates’ Court is given the power to determine unfitness to stand trial, it will be necessary to decide what process should be followed following a finding of unfitness to stand trial in the Magistrates’ Court to determine whether the accused person committed the offence. 6.43 Some jurisdictions have approached this issue by providing for a ‘special hearing’ procedure in the Magistrates’ Court. The Australian Capital Territory, for example, requires the court to conduct a hearing in which the magistrate decides whether the accused person engaged in the conduct required for the offence charged. 61 The conduct of the hearing is similar to a usual criminal proceeding. 62 6.44 In Tasmania, if the accused person has been found unfit to stand trial (and is unlikely to become fit after 12 months or does not become fit within a 12-month adjournment), the court must hold a special hearing to determine, on the limited evidence available, whether the accused person is not guilty of the offence. 63 The court must conduct the hearing as close as possible to a usual criminal proceeding. 6.45 In Western Australia, where there is a finding that an accused person is unfit to stand trial for a summary offence or indictable offence triable summarily, the court must make an order dismissing the charge without deciding the guilt of the accused person and either release that person or make a custody order. 64 The court has power to adjourn the proceedings for up to six months to see whether the accused person will become mentally fit to stand trial. 65 Where the offence is an indictable offence, the matter proceeds to committal and the accused person is presumed to plead not guilty. 66 Questions 53 If the Magistrates’ Court is given the power to determine whether the accused person committed the offence charged, what process should apply to determine whether the accused person committed the offence charged 54 If the Magistrates’ Court is given the power to determine whether the accused person committed the offence charged, should the process be limited to indictable offences triable summarily or include certain summary offences 124 61 Crimes Act 1900 (ACT) s 315C. This section applies to indictable offences that can be heard and determined summarily. 62 Ibid. 63 Criminal Justice (Mental Impairment) Act 1999 (Tas) s 15. 64 Criminal Law (Mentally Impaired Accused) Act 1996 (WA) s 16(6). A custody order must not be made in respect of an accused person unless the statutory penalty for the offence includes imprisonment and the court is satisfied that a custody order is appropriate having regard to a number of factors including the strength of the evidence against the accused person. 65 Ibid ss 2(b), 3. 66 Ibid s 17.
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