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

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Q The test for establishing the defence of mental impairment 35 How does the test establishing the defence of mental impairment in the CMIA operate in practice Are the current provisions interpreted consistently by the courts 36 If a definition of mental impairment were to be included in the CMIA, should it also include the operational elements of the M’Naghten test for the defence of mental impairment If so, should changes be made to either of the operational elements 37 Are there any issues with interpretation of the requirement that a person be able to reason with a ‘moderate sense of composure’ The role of lawyers in the process for establishing the defence of mental impairment 38 What ethical issues do lawyers face in the process for establishing the defence of mental impairment 39 What is the best way of addressing these ethical issues from a legislative or policy perspective The role of experts in the process for establishing the defence of mental impairment 40 Are there any issues that arise in relation to the role of experts and expert reports in the process for establishing the defence of mental impairment Jury involvement in the process and consent mental impairment hearings 41 Should there be any changes to the current processes for jury involvement in hearings and consent mental impairment hearings Order of considering the elements of an offence 42 What approach should be adopted in directing juries on the order of the elements of an offence in cases where mental impairment is an issue 43 Should the trial judge be required to direct the jury on the elements of an offence in a particular order where mental impairment is an issue The relevance of mental impairment to the jury’s consideration of the mental element of an offence 44 What approach should be adopted in determining the relevance of mental impairment to the jury’s consideration of the mental element of an offence Legal consequences of the findings 45 Are changes required to the provision governing the explanation to the jury of the legal consequences of a finding of not guilty because of mental impairment Principles underpinning appeals 46 Are there any barriers to accused persons pursuing appeals in relation to findings of not guilty because of mental impairment 225
Victorian Law Reform Commission Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997: Consultation Paper Chapter 6—Application of the CMIA in the Magistrates’ Court Issues with the lack of jurisdiction 47 What issues arise in relation to the Magistrates’ Court’s lack of jurisdiction to determine unfitness to stand trial The power to determine unfitness to stand trial 48 Should the Magistrates’ Court have the power to determine unfitness to stand trial If yes, consider: (a) Should the power to determine unfitness to stand trial be limited to indictable offences triable summarily or include certain summary offences (b) When can the question of unfitness to stand trial be raised to bring it within the Magistrates’ Court’s jurisdiction (c) What should trigger the Magistrates’ Court’s investigation into unfitness (d) Should the Magistrates’ Court retain a discretion not to proceed with the investigation into unfitness to stand trial (e) What test for determining unfitness to stand trial should apply in the Magistrates’ Court 49 What are the cost implications of giving the Magistrates’ Court the power to determine unfitness to stand trial 50 Is a broad, discretionary power to make orders in relation to people with a mental illness, intellectual disability or cognitive impairment a better alternative to giving the Magistrates’ Court an express power to determine unfitness 51 If considered, should such a power be framed or limited in any way (for example, limited to indictable offences triable summarily) 52 What are the cost implications of introducing a broad, discretionary power to make orders in relation to people with a mental illness, intellectual disability or cognitive impairment 53 If the Magistrates’ Court is given the power to determine unfitness to stand trial, what process should apply to determine whether the accused person committed the offence charged 54 If the Magistrates’ Court is given the power to determine whether the accused person committed the offence charged, should the process be limited to indictable offences triable summarily or include certain summary offences Defence of mental impairment in the Magistrates’ Court 55 What issues arise because of the Magistrates’ Court’s lack of power to make orders in relation to people found not guilty because of mental impairment The power to make orders following a finding of not guilty because of mental impairment 226 56 Should the Magistrates’ Court have the power to make orders in relation to people found not guilty because of mental impairment
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Review of the Crimes (Mental Impair
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Published by the Victorian Law Refo
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2 The CMIA: background and principl
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2 2.6 For the vast majority of peop
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2 2.16 Prior to these reviews, the
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2 Previous reviews of provisions in
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2 Victorian Parliament Law Reform C
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2 criminal law, 44 and is also reco
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2 Protection of the community 2.62
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2 Family members of people subject
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2 2.94 The CMIA’s therapeutic aim
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2 Principles governing the treatmen
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2 Victorian law Mental Health Act 1
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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 4.16 If an accused person is foun
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4 The test in Victoria: the ‘Pres
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4 Decision-making capacity or effec
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4 Question 3 Should the test for un
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4 4.57 However, expressly recognisi
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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 Requirement to ‘plead’ in a c
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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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4 Directions to the jury on finding
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