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
Issues with the requirement to discharge
6.51 Through its preliminary research, the Commission is aware that the lack of orders available
to magistrates in relation to people found not guilty because of mental impairment
raises a number of potential problems. Thus far, the following potential issues have been
identified in preliminary research:
• Lack of ‘outcome’ encourages artificial decision making and fails to address the
offending behaviour or mental illness, intellectual disability or cognitive impairment—as
with the Magistrates’ Court’s lack of jurisdiction to determine unfitness to stand trial,
the current system may put pressure on magistrates, prosecutors, defence lawyers
and the police to make decisions that they may not otherwise make. For example,
a magistrate may consider committing a person for trial in the County Court, even
though the type of offence would allow it to be heard and determined summarily, to
avoid a discharge in the Magistrates’ Court. Lawyers may decide not to rely on the
defence of mental impairment in the Magistrates’ Court, in the hope of having the
mental impairment considered in sentencing. In the absence of any measures in place
to provide these accused people with services or options for diversion, a discharge
usually follows a verdict of not guilty because of mental impairment in the Magistrates’
Court. The Magistrates’ Court has no power to make an order to address the offending
behaviour or mental illness, intellectual disability or cognitive impairment.
• Risk to community safety—the discharge of a person found not guilty because of
mental impairment may also compromise community safety. As the Commission
observed in its Review of People with Intellectual Disabilities at Risk: A Legal
Framework for Compulsory Care, it may be inappropriate for a Magistrates’ Court
to discharge an accused ‘… if the person is in need of care and is acting violently
or dangerously, and may do so again in the future if he or she does not receive
appropriate care …’. 72 Without treatment or supervision, the offending behaviour of
some accused people may escalate and ultimately lead to more serious consequences
for the accused person and the community. 73
Question
55 What issues arise because of the Magistrates’ Court’s lack of power to make
orders in relation to people found not guilty because of mental impairment
The power to make orders following a finding of not guilty because of
mental impairment
6.52 The Australian Capital Territory, South Australia, Tasmania and Western Australia provide
magistrates with the power to make orders in relation to people found not guilty because
of mental impairment. In New South Wales, the Magistrates’ Court deals with accused
people with a mental impairment using its diversionary powers under sections 32 and
33 of the Mental Health (Forensic Provisions) Act 1990 (NSW). Courts of summary
jurisdiction in the Northern Territory, Queensland and the Commonwealth do not have
jurisdiction to decide whether the defence of mental impairment is established. 74
126
72 Victorian Law Reform Commission, above n 21, 123.
73 Ibid 232–3.
74 Section 20BQ(1) of the Crimes Act 1914 (Cth) provides that if a person with a mental illness or intellectual disability appears in a summary
court in respect of a federal offence and the court is of the opinion that it is appropriate, the court has the power to dismiss the charge,
adjourn the proceedings, grant bail or make any other appropriate order. In the Northern Territory, the Criminal Code Act (NT) defines court
to mean Supreme Court for the defence of mental impairment in section 43A. Section 43G provides for a process for a jury to determine
whether the defence has been established. In Queensland, the Mental Health Court does not have jurisdiction to determine the defence
of mental impairment in relation to summary offences, unless the person is also charged with an indictable offence. There is no equivalent
procedure available for summary offences. It is unclear what happens when these issues are raised in the Magistrates’ Court, but there does
not appear to be a standard practice.