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

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3 Legal representation and advice 3.77 An accused person is likely to seek legal advice from a private practitioner or a legal service when they are arrested or charged with an offence. The Legal services available include Victoria Legal Aid, the Mental Health Legal Centre, Villamanta Disability Legal Rights Service, Disability Discrimination Legal Service or Youthlaw. If the person does not seek out legal advice of their own volition, they may be referred from forensic mental health or disability services. The majority of people who enter the CMIA pathway obtain legal advice and representation from Victoria Legal Aid or from a community legal centre. 79 3.78 Legal practitioners play an important role in identifying the presence of a mental condition. Identification of mental illness, cognitive impairment or intellectual disability is crucial in making sure that appropriate supports are provided for all people interacting with the justice system. This was highlighted in the recent Law Reform Committee report which stated: It is essential for lawyers to identify the possibility that a client may have an intellectual disability or cognitive impairment, to ensure that they obtain instructions in an appropriate manner, and to ensure that appropriate matters are presented as evidence in court should it proceed further. 80 3.79 Ethical issues may arise for legal practitioners where the client with a mental condition is unable to provide instructions. For example, where a lawyer is unable to obtain instructions from their client, they may be required to make decisions about whether to rely upon the defence of mental impairment on behalf of the accused. This can create significant ethical issues for the lawyer, particularly given the potentially onerous nature of the CMIA regime. When this occurs, a lawyer may be in ‘a position of conflict when determining how to act in the client’s best interests’. 81 Who decides whether a person is unfit to stand trial or has a defence of mental impairment Appearing in court 3.80 Once an accused person is charged with an offence, they will be required to appear in court for a hearing. The categorisation of the offence will determine where it is heard. 3.81 Criminal offences are categorised as indictable offences (more serious offences) and summary offences (less serious offences). 3.82 Summary offences are heard in the Magistrates’ Court and a magistrate, rather than a judge and jury, conducts hearings. Prosecutors at Victoria Police generally prosecute matters in the Magistrates’ Court. Indictable offences are generally heard in the Supreme Court or County Court after a committal hearing in the Magistrates’ Court. Prosecutors at the Office of Public Prosecutions are responsible for prosecuting offences on behalf of the Director of Public Prosecutions in the higher courts. Some indictable offences can be tried summarily in the Magistrates’ Court with the consent of the person charged with the offence. A magistrate decides at a committal hearing whether this will occur. 79 For criminal cases (investigations of unfitness and the determination of the accused person’s criminal responsibility for an offence), the vast majority of legal assistance available comes from Victoria Legal Aid’s staff practice or private practitioner on grants of legal aid. A small minority are conducted by community legal centres. For cases involving review, variation, revocation and leave under supervision orders, community legal centres are much more prominent in providing legal assistance and representation to people subject to supervision orders under the CMIA. However, Victoria Legal Aid’s staff practice also provides the majority of legal representation for people subject to supervision orders. 80 Law Reform Committee, above n 23, 204. 81 Ibid 209. 45
Victorian Law Reform Commission Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997: Consultation Paper 3.83 In some cases, a person may not have organised legal representation and may not have a lawyer on the day of their hearing. This may be particularly common for people with a mental condition due to the particular disadvantages that they may face. Victoria Legal Aid may provide the person with a duty lawyer, a service provided in Magistrates’ Courts across Victoria. Victoria Legal Aid gives priority to people charged with more serious offences in the Magistrates’ Court and those who have complex needs including those with intellectual disability, acquired brain injury or mental illness. 82 Unfitness to stand trial 3.84 The unfitness to stand trial process (outlined in Chapter 4) only applies in the Supreme Court or County Court. 3.85 A person is presumed fit to stand trial. 83 3.86 If the issue of unfitness is raised throughout the course of a trial, the accused person will be assessed. Depending on the nature of the person’s mental condition, this assessment will be conducted by a forensic psychiatrist and psychologist, or in some cases, a neuropsychologist. 3.87 Forensic psychiatrists and psychologists have a role in providing assessments and reports to both defence lawyers and the Office of Public Prosecutions on whether a person is unfit. 84 If the person has a mental illness, a psychiatrist will generally assess them. Psychologists generally assess people with an intellectual disability or cognitive impairment. Forensic psychiatrists and psychologists also provide evidence to the court during hearings to determine an accused person’s unfitness and to determine whether the accused person may qualify for a defence of mental impairment. 3.88 The issue of unfitness to stand trial is about the accused person’s mental processes at the time of the trial. A jury must decide whether it is more likely than not (on the balance of probabilities) that a person is fit or unfit to stand trial (the legal test is set out in Chapter 4 at [4.24]). 3.89 If a person is found unfit to stand trial, there is a second ‘special hearing’ to consider whether the person committed the offence as charged. A special hearing takes into account the fact that a person who is not fit to stand trial cannot fully participate in the trial process. Criminal procedure is therefore modified in a special hearing to make the trial process fair for a person who is not fit to stand trial. The defence of mental impairment 3.90 The defence of mental impairment (outlined in detail in Chapter 5) may be raised at any time during a trial. 3.91 The issue of mental impairment is about the accused person’s mental processes at the time of the alleged offending. It is essentially focused on whether the person had the capacity to commit the offence as charged. This focuses on whether they had a mental impairment (formerly referred to as a ‘disease of the mind’) and whether it had affected their ability to control or understand their thoughts and actions. A person is presumed not to be mentally impaired at the time of committing the alleged offence. 46 82 Victoria Legal Aid, Changes to duty lawyer services for adult criminal offences (12 July 2012) . 83 Crimes (Mental Impairment and Unfitness to be Tried Act) 1997 (Vic) s 7(1). 84 These include professionals employed at Forensicare as well as private practitioners who act on a consultancy basis.
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