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

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7 7.15 When the court declares a person liable to supervision, the court must then make a supervision order. A supervision order is for an indefinite term. A supervision order can either be a custodial supervision order or a non-custodial supervision order. Before the court imposes a supervision order, it can also make orders in relation to bail, remand in custody and for a medical or psychological examination of the person. 7.16 If a person found unfit to stand trial is then found by a jury in a special hearing not to have committed the offence, this is taken to be a finding of not guilty at a criminal trial. 8 This is an acquittal and the court is required to release the person. 7.17 In the Magistrates’ Court, the only option available to a magistrate if they find a person not guilty because of mental impairment is to discharge the person. In Chapter 6, the Commission considers the issues regarding whether there should be other orders available to magistrates under the CMIA. Process for making orders after a finding under the CMIA 7.18 Once a person has been declared liable to supervision, the court must make a supervision order. The CMIA sets out the process that it is to follow after a person has been declared liable to supervision and for making a supervision order. 7.19 In this section, the Commission examines the current process and seeks to identify whether there are issues with the way it operates. In particular, it examines: • the process for making an order for unconditional release • orders pending the making of a supervision order • section 47 certificates on availability of facilities and services • reports on mental conditions of people declared liable to supervision. Process for making an order for unconditional release 7.20 A court must consider a number of matters prior to making an order for the unconditional release of a person under the CMIA. 7.21 Section 40(2) of the CMIA requires that the court can only order that person be released unconditionally if the court: • has obtained and considered the report of at least one registered medical practitioner or registered psychologist who has examined the person’s mental condition and the possible effect of unconditionally releasing the person on their behaviour • is satisfied that the person’s family members and victims of the charged offence have been given reasonable notice of the hearing at which the court is proposing to order release • has considered any report of the family members or victims, and • has obtained any other reports necessary. 9 7.22 Thus, reports and information must be prepared and provided to the court after the making of findings and prior to a court deciding whether to release the person or declaring them liable to supervision. If this information is not already available, the court may be required to adjourn the matter. This will allow the appropriate expert to examine the person and prepare a report, the Office of Public Prosecutions to inform family members and victims and for family members and victims to prepare a report. The court may not be in a position to decide whether to unconditionally release the person or declare them liable to supervision at the time a finding is made under the CMIA. 8 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 18(1). 9 Ibid s 40(2). 139
Victorian Law Reform Commission Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997: Consultation Paper Orders pending the making of a supervision order 7.23 Once the court declares a person liable to supervision, it may make a number of other orders before it makes a supervision order. The orders primarily relate to the facilities and services for supervision and treatment of a person before and during a supervision order. 7.24 During the court processes for determining the questions of unfitness and mental impairment, a person may be on bail or they may be in custody. In some cases, the person may be in a prison, or the person may be in custody in an approved mental health service (for example, Thomas Embling Hospital) or a residential institution or facility (for example, one operated by the Disability Forensic Assessment and Treatment Service). 7.25 Once the court has declared a person liable to supervision, it can make an order granting the person bail 10 or remanding them in custody. 7.26 Section 24(1) allows a court to make an order, if in the interests of justice, requiring a person to undergo an examination by a registered medical practitioner or registered psychologist and for the results put before the court. 11 Section 47 certificates on availability of facilities and services 7.27 In deciding whether to remand a person declared liable to supervision, the court can remand the person in custody in an ‘appropriate place’. This means an approved mental health service, a residential treatment facility or a residential institution. However, before making this order, the court must first receive a certificate under section 47 of the CMIA confirming the availability or otherwise of the facilities or services necessary for the custody of that person (section 47 certificate). 12 7.28 Alternatively, the court can remand the person in custody in a prison. However, the court cannot remand a person in prison unless there is ‘no practicable alternative in the circumstances’. 13 7.29 The section 47 certificate requirement also applies when a court makes a supervision order. The certificate is required before a court can order a custodial supervision order committing a person to custody in an appropriate place or a non-custodial supervision order providing for a person to receive services in the community. 14 As with remand, the court must not commit a person to prison under custodial supervision order unless it is satisfied that there is no practicable alternative. 15 7.30 The section 47 certificate requirement means that the court’s decisions on bail, remand and choice of supervision order depend heavily on the availability of facilities and services to cater for the needs and risks of the person. 7.31 A recent example of how a lack of facilities or services can affect a grant of bail is a case that was reported in The Age newspaper. In this case, a person who was intellectually disabled and had early stages of dementia had been held in remand for 371 days prior to being found unfit to stand trial and not guilty because of a mental impairment. There had been no application for bail over this period because of a lack of supervised accommodation. Judge Taft, who presided over the unfitness hearing, made the following comments regarding the situation: That a man with a significant intellectual disability and dementia should be imprisoned for such a time is an embarrassment to the administration of the criminal justice system. 16 140 10 Ibid ss 24(1)(a), 19(1)(a). 11 Ibid s 24(1)(d). 12 Ibid ss 24(1)(b), (2). 13 Ibid ss 24(1)(c), (3). 14 Ibid s 26(3). 15 Ibid s 26(4). 16 Jane Lee, ‘Imprisonment of Intellectually Disabled Man “Embarrassing”’, The Age (Melbourne), 23 February 2013, 5.
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Review of the Crimes (Mental Impair
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2 The CMIA: background and principl
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2 2.6 For the vast majority of peop
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2 2.16 Prior to these reviews, the
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2 Previous reviews of provisions in
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2 Victorian Parliament Law Reform C
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2 criminal law, 44 and is also reco
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2 Protection of the community 2.62
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2 Family members of people subject
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2 2.94 The CMIA’s therapeutic aim
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2 Principles governing the treatmen
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2 Victorian law Mental Health Act 1
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4 Unfitness to stand trial 52 Intro
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4 4.5 As stated in [4.11] below, un
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4 4.16 If an accused person is foun
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4 The test in Victoria: the ‘Pres
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4 Decision-making capacity or effec
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4 Question 3 Should the test for un
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4 4.57 However, expressly recognisi
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4 4.65 Some jurisdictions have legi
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4 Difficulty in assessing unfitness
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4 Requirement to ‘plead’ in a c
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4 The role of experts in the proces
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4 4.102 More broadly, some have que
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4 4.113 In DPP v CJC (CJC), 135 Jus
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4 4.121 The Law Reform Committee re
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4 Directions to the jury on finding
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