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
criminally responsible by reason of mental disorder or unfit to stand trial. 79 The court has
the discretion to make the original disposition if it chooses to. 80 A study published in 1997
found the absence of a relationship in British Columbia between the seriousness of the
offence and the type of order the review board initially makes. 81
9.66 Aside from potentially ameliorating over-cautiousness in decision making, mental health
courts or tribunals have other benefits. Freckelton observes:
Inquisitorial review bodies constituted by lawyers experienced in mental health,
psychiatrists and community members with lengthy experience in mental health generally
enjoy a significant advantage over the courts in exploring the dangerousness of persons
with mental illness and assimilating the presentation of such patients. Adversarial courts
are ill-suited to such a process and risk being insensitive to psychiatric illness realities and
also to being counter-therapeutic in their outcome. 82
9.67 The informality and inquisitorial (as opposed to adversarial) nature of the proceedings
could make it more accessible for people subject to the supervision order, victims and
family members. 83 Further, from a resource perspective, a mental health court or tribunal
would have greater capacity to schedule matters, and perhaps more capacity to monitor a
person’s progress, and would free up resources in other courts. 84
9.68 There are, however, a number of benefits in maintaining the judicial model of decision
making under the CMIA. Courts have an established procedural framework and safeguards,
including mechanisms for appeal. 85 Since the introduction of the CMIA, Victorian courts have
produced what has been described as ‘Australia’s richest and most complex jurisprudence in
relation to mental health law’. 86 The value of the jurisprudence and the expertise that has
developed within the current judicial model should not be underestimated.
9.69 Courts also provide continuity in approach—in many cases, the judge who made the
supervision order is also responsible for the review and revocation of that order. 87 Further,
courts provide a forum that is more open to public scrutiny, which may be desirable in
CMIA matters. In his Honour’s submission to the Community Development Committee,
Justice Vincent said:
The individual concerned has been detained following the conduct of a public court
hearing and is subject to a public order. The problem should go back to that kind of body
and be dealt with in the same way. 88
9.70 Finally, courts confer a certain ‘degree of authority’, 89 which may be more effective at
reassuring victims that their interests are important and being meaningfully represented. 90
The Community Development Committee ultimately recommended that given the
sensitive nature of proceedings in this area, the community would have the most
confidence in the decisions of a court. 91
Question
95 Should there be a change in the judicial model of decision making under the
CMIA
200
79 Criminal Code, RSC 1985 s 672.38(1).
80 Criminal Code, RSC 1985 s 672.45.
81 Grant, above n 31, 441.
82 Freckelton, ‘Applications for Release by Australians in Victoria Found Not Guilty of Offences of Violence by Reason of Mental Impairment’,
above n 14, 399.
83 New Zealand Law Commission, Mental Impairment Decision-Making and the Insanity Defence, Report No 120 (2010) 84.
84 Ibid.
85 Ibid.
86 Freckelton, ‘Applications for Release by Australians in Victoria Found Not Guilty of Offences of Violence by Reason of Mental Impairment’,
above n 14, 399.
87 Community Development Committee, Parliament of Victoria, Inquiry into Persons Detained at the Governor’s Pleasure (1995) 141.
88 Ibid.
89 Ibid.
90 New Zealand Law Commission, above n 83, 81.
91 Community Development Committee, above n 87, 142–3.