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

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Victorian Parliament Law Reform Committee report
2.36 Most recently, the Victorian Parliament Law Reform Committee (Law Reform Committee)
published a report resulting from its Inquiry into Access to and Interaction with the Justice
System by People with an Intellectual Disability and their Families and Carers. The terms
of reference for the current CMIA review request that the Commission have regard to the
Law Reform Committee’s recommendations.
2.37 The Law Reform Committee’s report, released in March 2013, contained a range of
recommendations. The following recommendations are directly relevant to this review:
• the Victorian Government consider allowing the trial judge to investigate an accused
person’s fitness to stand trial, which currently must be determined by a jury 33
• the Victorian Government investigate procedures adopted in the United Kingdom that
may expedite the process for determining fitness to stand trial 34
• the Victorian Government consider whether the ability of the accused person to
understand or respond rationally to the charge or the ability of the accused person to
exercise or to give rational instructions about the exercise of procedural rights, should
be taken into account in determining fitness to stand trial 35
• the CMIA define ‘mental impairment’ to encompass mental illness, intellectual
disability, acquired brain injuries and severe personality disorders 36
• the Victorian Government consider amending the CMIA to allow investigations into
an accused person’s fitness to stand trial in the Magistrates’ Court and that uniform
procedures be adopted in committal proceedings in the Magistrates’ Court when
fitness to stand trial is in issue 37
• the CMIA clarify departmental responsibility for supervision and monitoring custodial
supervision orders and non-custodial supervision orders. 38
2.38 At the time of writing this paper, these recommendations have not been implemented.
2.39 The Law Reform Committee also made a number of findings relevant to the Commission’s
review of the CMIA. In particular, the Law Reform Committee found that lawyers
can enhance their client’s ability to understand and participate in the legal process
by modifying their approaches to communication. 39 The Law Reform Committee also
recognised the important role judicial officers play in ensuring that people with an
intellectual disability or cognitive impairment receive fair and equal treatment when they
come before the courts. 40
2.40 The Commission discusses these recommendations and findings in detail in subsequent
chapters of this paper.
33 Law Reform Committee, Parliament of Victoria, Inquiry into Access to and Interaction with the Justice System by People with an Intellectual
Disability and their Families and Carers (2013) 228.
34 Ibid 240.
35 Ibid 231.
36 Ibid 243.
37 Ibid 235–6.
38 Ibid 309.
39 Ibid 206.
40 Ibid 218.
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