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
4. Unfitness to stand trial
Introduction
4.1 ‘Unfitness to stand trial’ refers to the doctrine which exempts an accused person from a
usual trial, sometimes temporarily, because at the time of the trial they cannot understand
the trial or participate in it, or are, in other words, ‘unfit to stand trial’. 1 Unlike the defence
of mental impairment, discussed in Chapter 5, which concerns the accused person’s
mental condition at the time of the offence, unfitness to stand trial relates to the accused
person’s mental condition at the time they are involved in court proceedings.
4.2 There are a number of justifications for the requirement that an accused person is fit to
stand trial:
• To avoid inaccurate verdicts—Forcing an accused person to be answerable for their
actions where they are incapable of doing so could lead to an inaccurate verdict. 2
• To maintain the ‘moral dignity’ of the trial process—Requiring that an accused person
is fit to stand trial recognises the importance of maintaining the moral dignity of the
trial process. It ensures that the person is able to form a link between their alleged
crime and their trial or punishment and be accountable for their actions. 3
• To avoid unfairness—The final justification often cited for the requirement that an
accused person is fit to stand trial is that it would be unfair or inhumane to subject
someone who is unfit to the trial process. 4
4.3 This chapter examines the determination of unfitness to stand trial under the Crimes
(Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (CMIA). It briefly explores
the historical foundations of the law on unfitness to stand trial and the current law
governing the process. The chapter discusses a number of specific aspects of the law on
unfitness to stand trial, such as the unfitness to stand trial test and the conduct of special
hearings, and seeks to identify whether there are any issues in relation to the way the
law operates. The terms of reference specifically ask the Commission to consider whether
the process of determining unfitness to stand trial can be improved. This chapter also
considers issues relating to the process of determining unfitness to stand trial, including
procedural requirements, the role of lawyers and experts, jury involvement, special
hearings and the length of the process.
4.4 Throughout the chapter, the Commission asks a number of questions about possible
changes to the law and what form any changes should take.
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1 Arlie Loughnan, Manifest Madness: Mental Incapacity in Criminal Law (Oxford University Press, 1st ed, 2012) 67.
2 R A Duff, Trials and Punishments (Cambridge University Press, 1986) 119.
3 Richard J Bonnie, ‘The Competence of Criminal Defendants: A Theoretical Reformulation’ (1992) 10(3) Behavioural Sciences and the Law
291, 295.
4 R v Cumming [2006] 2 NZLR 597, 608.