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
7.130 The Commission examined issues regarding the registration of offenders in its reference
on Sex Offenders Registration. In its final report, released in April 2012, the Commission
made a number of recommendations regarding mandatory and discretionary registration,
and the categorisation of offences for the purposes of mandatory sex offender
registration. 102
7.131 One of the Commission’s recommendations related to the circumstances in which a court
should be permitted to decline to make a registration order in respect of any person
found guilty of any offence at any time. One of the circumstances was that if the court
was satisfied on the balance of probabilities that:
the person would be unable to comply with the reporting obligations due to physical or
cognitive impairment. 103
Licensing and accreditation
7.132 Another example of an administrative consequence that can follow from a finding of
guilt is the prevention of a person from obtaining licences or accreditation required for
particular positions of employment.
Accreditation for public transport
7.133 The Bus Safety Act 2009 (Vic) sets out a number of requirements in order for a person
to be accredited to operate a commercial or local bus service. An application for
accreditation must be refused if the person has been found guilty of particular types of
offences. The findings under the CMIA listed above are included in the definition of a
guilty finding. 104
7.134 Consequences of this nature were also highlighted in a series of decisions following from
the case of XFJ v Director of Public Transport (Occupational Business Regulation). 105
7.135 In 1992, the court found XFJ not guilty of murder because of mental impairment. The
court detained XFJ on a Governor’s pleasure order. Subsequently, the court released him
after six years of detention and treatment and revoked his supervision order in 2003.
7.136 In 2001, XFJ applied to the Victorian Taxi Directorate to be accredited as a taxi driver
under the Transport (Compliance and Miscellaneous) Act 1983 (Vic). After several years of
refusals, he took the case to the Victorian Civil and Administrative Tribunal (VCAT). 106
7.137 The main issue in the case became ‘whether a person who has committed an act of
extreme violence, while experiencing severe mental illness, can rehabilitate and be fully
integrated into the community’. 107
7.138 VCAT heard psychiatric evidence regarding XFJ’s past and current mental condition and
his risk of further violence. The Director of Public Transport argued that accreditation
should be denied on the ‘public care objective’ in the Transport (Compliance and
Miscellaneous) Act as:
there was an objective risk that XFJ would engage in further violence, and there was
a subjective possibility that members of the community would be apprehensive about
having XFJ as their taxi driver. 108
156
102 At the time of writing this paper, the Commission’s recommendations have not been adopted. The Commission’s recommendations were
considered in the Victorian Parliamentary Law Reform Committee’s Inquiry into Sexting which was released in May 2013.
103 Victorian Law Reform Commission, above n 85, xxiv.
104 Bus Safety Act 2009 (Vic) ss 3, 27.
105 [2008] VCAT 2303 (31 October 2008) [3].
106 The Transport (Compliance and Miscellaneous) Act 1983 (Vic) included a finding of not guilty because of mental impairment as a finding of
guilty upon which an application for accreditation could be refused. The provisions did not apply directly to XFJ as his was a finding under
the previous common law defence of insanity.
107 Vanessa Taylor and Janette Nankivell, ‘The Many Cases of XFJ: Suitable to Drive a Taxi or “Killer Cabbie”’ (2012) 20 Journal of Law and
Medicine 204, 205.
108 Ibid 209.