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

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2.6 For the vast majority of people who come before the courts in Victoria charged with
criminal offences, this general process is followed. However, where a person has been
charged with an offence and they have a mental condition that affects their capacity to
a particular degree, there can be a legitimate basis for exempting them from the usual
criminal process and diverting them to a specialised process.
2.7 The bases for these exemptions are founded on long established principles in the criminal
justice system. A person should not be tried for an offence if at the time of trial they
are mentally unfit to stand trial. A person should not be held criminally responsible and
punished for an offence if at the time the offence occurred they did not have the capacity
to commit the offence because of a mental impairment.
2.8 These principles form the basis of different laws and procedures that apply to a person
who falls into one or both of these categories. In Victoria, these laws and procedures
were formerly contained in a system known as the Governor’s pleasure regime. Since
1997, the system has been governed by the Crimes (Mental Impairment and Unfitness to
be Tried) Act 1997 (Vic) (CMIA). The CMIA governs the law and procedure in relation to
people charged with criminal offences (‘accused people’) who are found to be mentally
unfit to stand trial for those offences and/or who are found not guilty of those offences
because of mental impairment.
2.9 The Commission’s review of the CMIA will necessarily take into account the history of the
law and procedure in Victoria in this area.
2.10 This chapter of the consultation paper provides background and context to the
Commission’s reference to review the CMIA. This chapter:
• describes the Governor’s pleasure regime that existed prior to the introduction of the
CMIA
• outlines the issues identified with the Governor’s pleasure regime that led to the
introduction of the CMIA and how the CMIA attempted to address those issues
• summarises the relevant recommendations for change that have been made in
reviews that have been conducted since the CMIA was introduced
• sets out the principles underlying the CMIA that form the principal frame of reference
for the Commission’s review of the operation of the CMIA.
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