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
4.108 Other jurisdictions have built safeguards into the process that could protect it from the
potential of abuse. The Criminal Procedure (Insanity) Act 1964 (UK), for example, requires
the agreement of two registered medical practitioners to establish a finding of unfitness.
4.109 Another safeguard could involve a process where the judge may independently assess
whether the evidence establishes unfitness to stand trial, if the prosecution and defence
agree that the accused person is unfit. Under the CMIA, there is a similar process in
establishing the defence of mental impairment by consent. 132
Question
20 Should the CMIA provide for a procedure where unfitness to stand trial is
determined by a judge instead of a jury If yes:
(a) should the process apply only where the prosecution and the defence
agree that the accused person is unfit to stand trial or should a jury not be
required in other circumstances
(b) what safeguards, if any, should be included in the process
A ‘consent mental impairment’ hearing following a finding of unfitness to
stand trial
4.110 In relation to the defence of mental impairment, if the prosecution and defence agree
that the evidence establishes the defence, the trial judge may hear the evidence and, if
satisfied that the evidence establishes the defence, may direct the recording of a verdict of
not guilty because of mental impairment. 133 This is often referred to as a ‘consent mental
impairment’ hearing, a procedure introduced several years after the introduction of the
CMIA by the Crimes (Homicide) Bill 2005 (Vic) after the Commission’s recommendation as
part of its Defences to Homicide reference.
4.111 Although the finding of not guilty because of mental impairment is available at special
hearings to people found unfit to stand trial, there is ambiguity on whether a court can
hold a consent mental impairment hearing after a finding of unfitness to stand trial.
4.112 There are a number of provisions in the CMIA which suggest that a court cannot proceed
with a consent mental impairment hearing following a finding of unfitness to stand trial.
Section 12(5) of the CMIA, for example, continues to provide that if the jury finds the
accused person unfit to stand trial and the judge determines that the accused person
is unlikely to become fit within 12 months, the court must proceed to hold a special
hearing. 134 Section 21(4) in Part 4 of the CMIA provides that a ‘trial judge’ conducts the
consent mental impairment hearing—the rest of Part 4 of the CMIA that deals with the
defence of mental impairment also uses the term ‘trial judge’ throughout. However,
the term is not used at all in Part 3 of the CMIA that deals with special hearings. The
second reading speech of the Crimes (Homicide) Bill 2005 that introduced consent
mental impairment hearings also makes no mention of special hearings and seems to
contemplate that the consent mental impairment hearing applies in place of a trial. Finally,
another justification for not allowing for a consent mental impairment hearing in place of
a special hearing is to recognise that the accused person has been found unfit to stand
trial and may not be capable of instructing their lawyer to consent to the matter being
determined by a judge rather than a jury.
76
132 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 21(4).
133 Ibid.
134 Ibid s 12(5).