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
Unfitness to stand trial under the CMIA
Law
4.11 The CMIA introduced a new process to determine an accused person’s unfitness to stand
trial and provides for the system in Victoria today. Under the CMIA, an accused person
is presumed to be fit to stand trial. 8 This is the case even where an accused person has
previously been found unfit to stand trial. The presumption is rebutted if it is established,
following an investigation by a jury, that the accused person is unfit to stand trial. 9 Under
the CMIA, an accused person is unfit to stand trial for an offence if, because their mental
processes are disordered or impaired, they are or, at some time during the trial, will be:
• unable to understand the nature of the charge
• unable to enter a plea to the charge and to exercise the right to challenge jurors or
the jury
• unable to understand the nature of the trial
• unable to follow the course of the trial
• unable to understand the substantial effect of any evidence given against them
• unable to give instructions to their legal practitioner. 10
4.12 Each of these criteria stands alone. An accused person need only satisfy one of the above
criteria to be found unfit to stand trial.
Process
4.13 Figure 1 shows the key stages of the unfitness to stand trial process under the CMIA.
A question of an accused person’s unfitness may be raised at any stage in a court
proceeding. If raised, the question of whether a person is unfit to stand trial is a question
of fact for determination by a jury on the balance of probabilities in an unfitness
investigation in either the Supreme Court or County Court. The jury must make a finding
that the accused person is fit or unfit to stand trial for the offence charged.
4.14 If a jury finds the accused person unfit to stand trial, the judge must determine whether
that person is likely to become fit to stand trial within 12 months. 11 If the judge
determines that the accused person is likely to become fit and they do become fit after
a period of adjournment, the trial will proceed. 12 If a jury finds that the accused person is
unfit, the person has a right to appeal the finding of unfitness to the Court of Appeal. 13
If the judge determines that the accused person is not likely to become fit within
12 months, or remains unfit after the period of adjournment, 14 a special hearing must be
conducted before a jury to determine whether the person:
• is not guilty of the offence (a complete acquittal)
• is not guilty of the offence because of mental impairment, or
• committed the offence. 15
4.15 A special hearing is conducted as closely as possible to a criminal trial. 16 The accused
person found unfit to stand trial is assumed to have pleaded not guilty to the offence. 17
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8 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 7(1).
9 Ibid ss 7(2), (3).
10 Ibid s 6.
11 Ibid s 11(4).
12 Ibid s 14(4).
13 Ibid s 14A.
14 Ibid ss 12(5), 14(2).
15 Ibid s 17(1).
16 Ibid s 16(1).
17 Ibid s 16(2)(a).