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 relating to the representation of community interests
9.100 Aside from the person subject to the supervision order, the Attorney-General, Director of
Public Prosecutions, Secretary to the Department of Human Services and Secretary to the
Department of Health may also be involved in hearings or appeals concerning supervision
orders. The Commission’s preliminary research indicates that the involvement of these
parties may be problematic for a number of reasons:
• The interests of the executive or prosecution may be overrepresented—the current
arrangement results in potentially the prosecution and three government bodies
acting in opposition to the person subject to the supervision order (although the
prosecution and government bodies do not always take an opposing stance). This
raises the question of whether these provisions create an imbalance in representation,
where the public interest is being represented in multiple guises, and whether the
involvement of all four parties is necessary to effectively represent the community’s
interest. Further, one of the purposes of the CMIA was to reduce executive
involvement.
• Involvement of multiple parties can have resource implications and increase the length
of the process—the involvement of multiple parties could result in delays to hearings
because of the number of people that need to be coordinated. If each party must put
a view forward, this also results in longer hearings.
• Lack of clarity in the CMIA on the reason for involvement—the parties involved may
see their role as tokenistic or merely a formality. The CMIA does not make clear
why these parties are involved at different stages, other than to represent the public
interest.
9.101 Much of the Director of Public Prosecution’s role seems to be based on its knowledge of
the case and perhaps because of its involvement in appeals in usual criminal matters. This
is the case even though the role of the Director of Public Prosecution usually ends once an
accused person is not convicted of an offence, which is the case where a person is found
not guilty because of mental impairment. In practice, the Director of Public Prosecutions
seeks to be excused and takes no active part in hearings after informing the court that
the obligation to notify victims and family members has been fulfilled. 126
9.102 In NOM v DPP & Ors (NOM), 127 the Court of Appeal considered the responsibilities of
the government bodies involved in CMIA proceedings. The Court of Appeal held that
in addition to the function the Attorney-General and Secretary to the Department of
Health usually perform in adducing evidence and cross-examining witnesses to explore
the evidence, the Attorney-General and the Secretary to the Department of Health should
also take a position, or make a submission, on whether the court should vary the existing
regime of supervision. 128 The Court of Appeal observed that a failure to take up any
position could be motivated by a desire to avoid any public criticism if the person were to
re-offend. 129
206
126 [2012] VSCA 198 (24 August 2012) [14].
127 Ibid.
128 Ibid [38].
129 Ibid [37].