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
Transparency and accountability
2.100 Transparency and accountability is a key principle that runs through the CMIA, both for
members of the community and the person subject to its processes. The introduction of
the CMIA in place of the Governor’s pleasure regime addressed the
legitimate concern of the community for open process … [The CMIA] is a signal advance
in that it removes the determination of these matters from executive discretion in private
to judicial decision in public … It is of the essence of the judicial process that it is public.
The courts, rightly, have always resisted pressure to function in private. 99
2.101 To ensure transparency and accountability in proceedings where the accused person
is unfit to stand trial and/or not guilty because of mental impairment, publicly
acknowledging that an offence was committed is important. Even where the accused
person is not criminally responsible for their actions, those actions have consequences and
it should be remembered that it is likely that members of the community will have been
significantly affected. The CMIA ensures that there is a fair hearing of the alleged offence
and public record of the outcome.
2.102 Transparent decision-making processes regarding the leave provisions and accessibility of
leave provisions to people subject to supervision orders are provided for under the CMIA
in a number of ways, including:
• leave decisions are made by the Forensic Leave Panel, a judicial panel, specially
constituted to hear leave applications 100
• the Forensic Leave Panel must give reasons for any decision and if the reasons are
given orally, a person applying for leave may ask to have them put into writing 101
• the right of a person applying for leave to appear and be represented by a legal
practitioner or any other person authorised by the person, 102 and
• the requirement that grants of leave for longer periods (extended leave for less
than 12 months) are only granted by the court to ensure decisions are made by an
independent judiciary and subject to appeal rights. 103
2.103 The Forensic Leave Panel ‘may inform itself in relation to any matter in such manner as
it thinks fit’. 104 It is not bound by the rules or practice of evidence that generally apply in
proceedings, such as criminal trials. However, it is required to ‘act according to equity and
good conscience’ and is ‘bound by the rules of natural justice’. 105
2.104 The right to a fair trial and other procedural rights, such as the right to appeal against a
decision made by a court, also support the principle of transparency and accountability.
2.105 The appeal rights throughout the CMIA also reflect principles of transparency and
accountability. The review of decisions strengthens the transparency and accountability of
the process by protecting against miscarriages of justice, maintaining consistency between
trial courts and providing legitimacy to the criminal justice system. 106
2.106 People subject to supervision orders, the Director of Public Prosecutions, the Attorney-
General, the Department of Health and the Department of Human Services all have
appeal rights. The appropriateness of the roles of these different parties and the interests
that each party represents are discussed in Chapter 9 at [9.71]–[9.104].
26
99 Ibid [16], [18].
100 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) ss 59–60.
101 Ibid s 66.
102 Ibid s 70(1).
103 Ibid s 57.
104 Ibid s 65(1).
105 Ibid s 64(1).
106 See further Chapter 4 of this paper at [4.138].