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
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.