Crimes Mental Impairment consultation paper.pdf - Victorian Law ...

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4.113 In DPP v CJC (CJC), 135 Justice Osborn rejected a number of the arguments outlined above
and found that a consent mental impairment hearing may be held after a finding of
unfitness to stand trial instead of a special hearing. His Honour provided a number of
reasons for this including:
• A consent mental impairment hearing would achieve the purpose of a special hearing
(that is, to determine whether the accused person is not guilty because of mental
impairment) and the requirement that a special hearing is conducted as close as
possible to a criminal trial. 136
• Part 3 of the CMIA on unfitness to stand trial must be read together with Part 4
of the CMIA on the mental impairment defence. For example, the purpose of a
special hearing to determine whether the accused person is ‘not guilty of the offence
because of mental impairment’ in Part 3 can only be given content by reference to
section 20 of the CMIA in Part 4 that sets out the test for the mental impairment
defence. This implies that the consent mental impairment hearing process would
apply to people found unfit to stand trial. 137
4.114 More recently, in DPP v Watson, 138 Justice Bell found that a consent mental impairment
hearing was not available following a finding of unfitness to stand trial. The reasoning for this
decision against allowing a consent mental impairment hearing was based on the accused
person’s inability to give instructions to counsel to agree to the hearing. 139 His Honour said:
it is a very serious thing to conclude that counsel can exercise decision-making capacity
on behalf of an accused without instructions, especially where the consequence would
be that the accused would thereby lose the opportunity to test the prosecution case and
obtain an acquittal. As I saw it, such an interpretation had to be unmistakably clear by
express words or necessary implication. The terms of [section 21(4) on consent mental
impairment hearings] did not seem to me to be unmistakably clear. 140
4.115 There may be good reasons to allow a ‘consent mental impairment’ hearing following a
finding of unfitness to stand trial. In CJC, for example, the accused person and his mother
were visibly distressed during court hearings, which may have made it more humane not
to force them to take part in a special hearing before a jury. Justice Osborn said, ‘these
proceedings should be no more of a public spectacle of suffering than is necessary’. 141
Further, it can save time and resources to dispense with the process when appropriate
where there is undisputed evidence that the accused person is not guilty because of
mental impairment. However, the counter argument that an accused person who is unfit
to stand trial is unable to give instructions and therefore should not be subject to a ‘consent’
mental impairment procedure is a compelling one, particularly because lawyers owe a duty
to their clients to act in accordance with the client’s instructions. The availability of such
a procedure may also have implications on the right of the accused person to recognition
and equality before the law and their right to a fair hearing of criminal proceedings. 142
4.116 In any case, the different decisions by the court in relation to this issue outlined above
may warrant an amendment to the CMIA to clarify any ambiguity in this area.
Question
21 Should a ‘consent mental impairment’ hearing be available following a finding
of unfitness to stand trial
135 [2008] VSC 585 (18 December 2008).
136 Ibid [6], [12].
137 Ibid [19].
138 [2013] VSC 245 (7 May 2013).
139 Ibid [3].
140 Ibid [9].
141 [2008] VSC 585 (18 December 2008) [35].
142 DPP v Watson [2013] VSC 245 (7 May 2013) [11]; Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 8, 24–5.
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