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
Jury involvement in all investigations of unfitness to stand trial
4.97 Currently under the CMIA, a jury determines the question of unfitness to stand trial in an
investigation presided over by a judge. 123
4.98 The Commission’s preliminary research suggests that there is a need to examine the role
of the jury in the unfitness to stand trial process. A key issue is whether it is necessary to
have a jury determine the question of unfitness to stand trial in particular circumstances,
such as where the prosecution and defence are in agreement that an accused person is
unfit to stand trial, or in all cases. In cases where the prosecution and the defence agree
on the unfitness of an accused person (based on expert reports), the question of whether
an accused person is unfit to stand trial is not in issue. A jury is nonetheless empanelled
and must hear the evidence that establishes that the accused person is unfit to stand trial.
The jury is still required to consider and make a formal finding of fitness or unfitness. The
process is said to leave jurors feeling confused about their role in the process, take up the
time of the jurors and the court and deplete the jury pool without justification.
4.99 The Law Reform Committee recommended that the Victorian Government consider
amending the CMIA to allow the trial judge to investigate an accused person’s fitness to
stand trial, without a need for a jury, where the prosecution and defence agree. 124 The
Law Reform Committee observed that the requirement to conduct fitness investigations
before a jury may place an unnecessary burden on the community and could exacerbate
the stress and anxiety that accused people with intellectual disabilities or cognitive
impairments ordinarily experience when in court. It outlined the main arguments for
removing the requirement that the investigation into an accused person’s unfitness to
stand trial be conducted before a jury:
• fitness investigations primarily involve technical matters that are more suitable to be
heard by a judge alone
• a fitness hearing is not designed to be adversarial—no decisions are made about the
person’s criminal responsibility
• a judge hearing evidence alone may be quicker, less formal and less confusing or
stressful for a person with an intellectual disability or cognitive impairment. 125
4.100 The Commission does not currently have data on the findings that juries make in
investigations into unfitness to stand trial in cases where the prosecution and defence
agree that the accused person is unfit.
4.101 In Australia, courts in Tasmania and the Northern Territory have the power to dispense
with an investigation into unfitness to stand trial and record that the accused person is
unfit for trial if both the prosecution and defence agree. 126
74
123 Crimes (Mental Impairment and Unfitness to be Tried) Act (Vic) s 8(2).
124 Law Reform Committee, above n 62, 228.
125 Ibid 227.
126 Criminal Justice (Mental Impairment) Act 1999 (Tas) s 19; Criminal Code Act 1983 (NT) s 43T(1).