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

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9 9.109 Further, people with intellectual disabilities and cognitive impairments could have fewer resources available to them, in terms of facilities and support in the community. This may make it less likely that they will apply for leave or transition to a non-custodial supervision order or to be released. While there are a number of community-based accommodation options for people with intellectual disabilities and cognitive impairments, 134 it is unclear whether there are enough. Further, the majority of these places would not have the coercive powers available under the CMIA, making it more difficult for the court to transition people out of the system. 9.110 There have been a number of significant developments in the treatment of offenders with intellectual disabilities since the introduction of the CMIA. 135 Studies have shown the effectiveness of treatment programs, including anger management treatment, 136 intervention for fire-setting behaviour, 137 and intervention for sexual offending, 138 for people with intellectual disabilities. However, Ruffles notes the unsuitability of the system could relate to the more permanent nature of an intellectual disability or cognitive impairment. Unlike people with a mental illness, these people do not have as clear a pathway to recovery. For these people, the CMIA system that envisages that a person is able to recover from their mental condition, may be a poor match. Questions 102 Is the current CMIA model of supervision appropriate for people with an intellectual disability or cognitive impairment 103 Are changes needed to the CMIA model of supervision to better meet the needs of people with an intellectual disability or cognitive impairment 104 Are changes needed to the processes and services that support the CMIA model of supervision to ensure that it meets the needs of people with an intellectual disability or cognitive impairment 134 Australian Community Support Organisation (ACSO), for example, provides community-based accommodation for people with disabilities that encourages developmental opportunities and enables maximum integration within the community. Department of Human Services funded short term residential services (Charlton House and Furlong House) house a maximum of five people. These are not exclusively used for people subject to non-custodial supervision orders but also for other people who have come into contact with the justice system, such as people on bail and parole. 135 William R Lindsay ‘Adaptations and Developments in Treatment Programs for Offenders with Developmental Disabilities’ (2009) 16 Psychiatry, Psychology and Law 18, 31. 136 Ibid 26. 137 Ibid 27. 138 Ibid 29. 209
Victorian Law Reform Commission Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997: Consultation Paper Suppression orders and the principle of open justice 9.111 Another potential issue that arises across the CMIA as a whole is the suppression of information under the CMIA. 9.112 The principle of open justice requires that all court proceedings take place in public except in limited circumstances. In Re Percy, Justice Kellam considered the principle of open justice in the context of the CMIA: The principle of open justice is deeply entrenched in our law. It rests upon a legitimate concern that, if the operations of the courts are not on public view as far as possible, the administration of justice may be corrupted. A court is open when at least members of the public have a right of admission. … From this it may be thought ordinarily to follow that the media in their various forms are also entitled to communicate to the whole public what that public has a right to hear and see should they attend in court. 139 9.113 The principle of open justice is reflected in section 24 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Charter’) that provides for a ‘fair and public hearing’ for accused people. 9.114 However, the principle of open justice can be limited, in some circumstances. Section 24(2) of the Charter, for example, provides that a court may exclude the media or the general public from hearings if permitted to do so by other laws. 9.115 One of the main aims of non-publication or suppression orders is to protect the privacy of the people involved in proceedings by preventing their identification. 140 9.116 The term ‘suppression order’ is used in the heading to section 75 of the CMIA. It is not used in the Supreme Court Act 1986 (Vic) or the County Court Act 1958 (Vic). For orders under these Acts, often the term ‘non-publication order’ is used. This accurately reflects the fact that the court is open but proceedings cannot be published. In this paper the term ‘suppression order’ is used as that is the term in the CMIA. 9.117 Generally, a court may make a non-publication order only if it is necessary to do so for the proper administration of justice. 141 However, under the CMIA a court may make a suppression order if it is in the public interest to do so. 9.118 The CMIA provides that in any CMIA proceeding if the court is satisfied that it is in the public interest to do so, it may order that the following information not be published (except in the manner and to the extent the court specifies in the order): • any evidence given in the proceeding • the content of any report or other document put before the court in the proceeding, and • any information that might enable an accused person or any person who has appeared or given evidence in the proceeding to be identified. 142 9.119 A party to the proceeding may apply for a suppression order or the court may do it on its own initiative. 143 9.120 In Re Percy, Justice Kellam accepted that the ‘public interest’ test under the CMIA was wider than the test for granting suppression orders in other proceedings. 144 This is perhaps because people subject to supervision orders have not been found guilty of a crime. 145 210 139 Re Percy [2004] VSC 67 (2 March 2004) [37]. 140 Director of Public Prosecutions Victoria, Director’s Policy: Suppression and Prohibition Orders (2008) 3. 141 See, eg, Supreme Court Act 1986 (Vic) ss 18, 19; County Court Act 1958 (Vic) s 80AA. 142 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 75(1). 143 Ibid s 75(2). 144 Re Percy [2004] VSC 67 (2 March 2004) [34], [35]. 145 Ibid [15].
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