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

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2 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. 17
Victorian Law Reform Commission Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997: Consultation Paper Principles of the CMIA 2.41 The Commission has been asked to examine whether the CMIA is operating justly, effectively and consistently with a number of principles that underlie it. 2.42 The CMIA governs an area of the law that requires an understanding from both a criminal and health perspective and raises both legal and treatment issues. A number of specific criminal law and human rights principles underpin the CMIA, as well as principles derived from forensic mental health and disability. 41 2.43 Some of these principles are outlined specifically in the legislation. Other principles, while not referred to explicitly in the legislation, are implied through the aims and objectives of the CMIA, its processes and relevant case law on the interpretation of its provisions. Overarching aims and objectives of the CMIA 2.44 The CMIA was introduced in response to the various problems that had been identified by a number of reviews of the Governor’s pleasure regime (discussed above at [2.17]). It sought to address these problems by: • providing a coherent framework for people found unfit to stand trial or not guilty because of mental impairment • creating a specialised pathway that did not overlap with the normal criminal justice system • providing a fair hearing process for testing the evidence against an accused person who is found unfit to stand trial • removing the involvement of the executive in decisions regarding release and vesting it in an independent judiciary • establishing a system of review and gradual reintegration to prevent inappropriate or indefinite detention • ensuring transparency and procedural fairness in decision making regarding release and leave. 2.45 The Governor’s pleasure regime was also criticised by the Victorian Parliamentary Community Development Committee. It was concerned that the regime unduly favoured the community’s expectations of safety over the rights of people found unfit to stand trial or not guilty because of mental impairment. 42 The CMIA seeks to strike an appropriate balance between protection of the community and the rights and clinical needs of people found unfit to stand trial or not guilty because of mental impairment. Fairness to an accused person and the right to a fair trial 2.46 A key principle underpinning the CMIA founded in the historical origins of the law on unfitness to stand trial, is that the court should not require a person to enter a plea to a charge or be tried on a charge unless they are mentally competent, or ‘fit’, to do so. 2.47 This principle is based on the ‘central precept of our criminal law … that no person shall be convicted of a crime otherwise than after a fair trial according to law.’ 43 2.48 An accused person has a fundamental right to a fair trial. This accompanies various other rights relating to fairness in criminal proceedings. For example, accused people in criminal proceedings have the right to be given reasons for decisions made by a court and the right to appeal a decision made by a court to a higher court. The right to a fair trial is founded in 18 41 See, eg, Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 8, 21, 22, 24, 25. 42 Community Development Committee, above n 9, 98–101. 43 Anthony Mason, ‘Fair Trial’ (1995) 19 Criminal Law Journal 7, 7.
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