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

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Leave MACNI Major review Mental condition Leave allows a forensic patient or forensic resident to be absent from the mental health service, residential institution or residential treatment facility for a duration of time, subject to conditions. Multiple and Complex Needs Initiative. A review of a person’s supervision order at least three months before the end of the order’s nominal term, or at least every five years after that for the duration of the order. Its purpose is to determine whether the court can release the person subject to the supervision order. In this paper, a mental condition means any condition that results in a person’s mental processes becoming disordered or impaired. Mental illness Mental illness is defined in the Mental Health Act 1986 (Vic) as ‘a medical condition that is characterised by a significant disturbance of thought, mood, perception or memory’. It can include conditions such as depression, schizophrenic disorders, bipolar affective disorder, obsessive-compulsive disorder and post traumatic stress disorder. Mental element MHCLS Nominal term Non-custodial supervision order Office of the Public Advocate Office of Public Prosecutions Order Plea Physical element The state of mind necessary to establish a particular crime, also referred to as mens rea. The mental element varies depending on the nature of the crime, but may include intention (for example, in the case of murder the intention to kill or cause serious bodily harm), recklessness, negligence, dishonesty or malice. Mental Health Court Liaison Service. A period of time specified in the CMIA which triggers a major review. In the case of homicide, for example, the nominal term is 25 years. A supervision order that does not require the detention of the person in a mental health service, residential institution or residential treatment facility, but requires the person to comply with certain conditions and be subject to supervision in the community. An independent statutory body that works to protect and promote the interests, rights and dignity of people with a disability. The Office of Public Prosecutions is the independent statutory authority that institutes, prepares and conducts criminal prosecutions on behalf of the Director of Public Prosecutions. A direction by a court or tribunal that is final and binding unless overturned on appeal. An accused person’s answer to a charge of an offence, which usually takes the form of ‘guilty’ or ‘not guilty’. The physical act necessary to establish a particular crime, also referred to as actus reus. The physical element varies depending on the nature of the crime, but may include the conduct (for example, rape requires the sexual penetration of a person), circumstance (for example, rape requires the absence of consent) or cause (for example, murder causes the death of a person) to establish the crime. xv
Victorian Law Reform Commission Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997: Consultation Paper Police prosecutor Residential institution Residential treatment facility Second reading speech Section 47 certificate Special hearing Summary jurisdiction Summary offences Supervision order Test Thomas Embling Hospital Unconditional release Unfitness to stand trial A member of Victoria Police who prosecutes state summary offences in the Magistrates’ Court. A place where a person with an intellectual disability may be admitted. A place where a person with an intellectual disability receives compulsory treatment. The speech given by a member of parliament when a bill is introduced in parliament and considered for debate. A second reading speech outlines the reasons for the bill’s introduction. A certificate under section 47 of the CMIA confirming the availability of the facilities or services necessary for the custody of or provision of services to a person. A hearing before a jury, after the accused person has been found unfit to stand trial, to determine whether they are not guilty of the offence, not guilty because of mental impairment or committed the offence charged. The power or right a court has to hear and determine summary offences. The Magistrates’ Court is a court of summary jurisdiction. Minor offences heard by a magistrate without a jury. Police prosecutors generally conduct the prosecution of state summary offences. An order a court can make under the CMIA if a court finds an accused person is one of the following: • unfit to stand trial but has committed the offence charged • unfit to stand trial and not guilty because of mental impairment • not guilty because of mental impairment. The order requires the person to be subject to supervision. It can be custodial or non-custodial. In this paper, the legal requirements to establish unfitness to stand trial or the defence of mental impairment. Thomas Embling Hospital is a 116-bed secure forensic mental health hospital managed by the Victorian Institute of Forensic Mental Health. The hospital provides advanced clinical treatment and programs to patients from the criminal justice system (either transferred from the prison system or ordered by the courts to be detained for psychiatric assessment, care or treatment). Release of a person without conditions. Refers to the doctrine under the CMIA which exempts an accused person from the usual criminal process because at the time of the trial they are unable to enter a plea, understand the nature of the proceedings or participate in the trial process. xvi
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Page 30 and 31: 2 The CMIA: background and principl
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Page 46 and 47: 2 2.94 The CMIA’s therapeutic aim
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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 The test in Victoria: the ‘Pres
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4 Question 3 Should the test for un
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4 or rational appreciation of the p
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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 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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