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
Scope of the review
1.11 The CMIA governs a specific area of the law where a person with a mental condition
comes into contact with the criminal justice system and the condition is such that it
warrants a deviation from the criminal law and procedure that normally applies. This can
occur when:
• at the time the accused person appears in court on a charge for a criminal offence
they are mentally unfit to be tried for the offence, and/or
• at the time the offence was alleged to have been committed the accused person was
suffering from a mental impairment which negated criminal responsibility for their
actions.
1.12 The CMIA focuses on a specific intersection between criminal law, psychology and
psychiatry. However, the CMIA’s operation touches on a number of broader areas within
the criminal justice system including:
• policing
• diversion processes
• usual criminal and sentencing law and procedure
• mental health and disability systems, including the laws that govern services
and treatment for people with a mental illness, intellectual disability or cognitive
impairment.
1.13 The Commission’s terms of reference are concerned with the operation of the CMIA.
However, where relevant, the review may also include consideration of areas that operate
alongside or as alternatives to the CMIA.
1.14 The Commission will refer to diversion and sentencing dispositions available in Victoria
and where relevant, other jurisdictions, for people in the criminal justice system who have
a mental illness, intellectual disability or cognitive impairment.
1.15 The Commission does not intend to examine the law on the relevance of mental illness,
intellectual disability or cognitive impairment in sentencing. The issues involved in relation
to sentencing are quite separate from the operation of the CMIA, are complex, and
cannot properly be considered in the scope of a reference on the operation of the CMIA.
1.16 In examining the criminal responsibility of people with a mental illness, intellectual
disability or cognitive impairment in the context of the CMIA, the Commission will not
review other defences or exceptions to criminal responsibility available under the criminal
law. A general examination of defences or exceptions to criminal responsibility is beyond
the scope of the operation of the CMIA, as many defences are applicable to people who
do not have a mental illness, intellectual disability or cognitive impairment. As such, it
would not be appropriate to consider these matters within the context of this reference.
In 2004, the Commission published a substantial report which addressed the matter of
defences to homicide. However, the Commission may give consideration to other mental
state related defences available in Victoria as part of the context of the defence of mental
impairment.
1.17 While the Commission will consider whether the CMIA should be extended to the
Magistrates’ Court, the Commission will not consider whether the CMIA should be
extended to the Children’s Court. The Department of Justice is examining this issue
separately.
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