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
2. The CMIA: background and principles
Introduction
2.1 In Victoria, when a person is charged with an offence a particular process, governed
by legislation and case law, usually follows under the criminal law. The purpose of the
process is two-fold: to determine whether or not the person is guilty of the offence
charged (or some other alternative offence) and, if the person is guilty, to determine what
consequences should follow by way of a sentence.
2.2 The first stage of this process—the guilt or otherwise of a person—is focused on whether
the person should be held criminally responsible for an offence. This requires proof to a
particular standard that the person did certain acts (the physical elements of an offence)
and that they did those acts with a particular mental state, knowledge or intention (the
mental elements of an offence).
2.3 For example, for a person to be found guilty of the offence of murder, it must be proved
beyond reasonable doubt that the person did an act that caused the death of the victim,
and that the person did that act with the intention of killing the victim or intending to
cause serious bodily harm, or while knowing that it was probable that death or serious
bodily harm would result, and without lawful justification (self-defence).
2.4 If a person pleads not guilty to an offence, a jury in a criminal trial (in the Supreme Court
or County Court) or a magistrate (in the Magistrates’ Court) must decide the question
of whether or not a person committed it. Alternatively, the person may choose to plead
guilty to the offence, which negates the need for a trial. In order for a person to plead
not guilty and stand trial for an offence or to plead guilty to an offence, they must be fit
to stand trial, that is they must be mentally capable of entering a plea and understanding
the trial process.
2.5 Under the usual criminal process, particular consequences flow from a finding of guilt.
These primarily include a conviction and/or a sentence imposed by judges (in the Supreme
Court and County Court) and magistrates (in the Magistrates’ Court). Sentencing is
governed by a statutory and common law framework which requires a court to have
regard to a broad range of factors. A number of other consequences flow from a finding
of guilt for an offence, such as orders for compensation of any victims of the offence,
orders to confiscate certain property or licence suspension, disqualification or cancellation.
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