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
The length of the process
4.117 The unfitness to stand trial process is potentially lengthy for a number of reasons:
• it involves empanelling two juries—one to determine whether the accused person is
unfit to stand trial and a second to determine whether the accused person committed
the offence if they are found unfit to stand trial, and
• it can involve a 12 month adjournment, following a finding of unfitness to stand trial
by the jury, if the judge determines that the accused person is likely to become fit
within 12 months.
4.118 If the question of the accused person’s unfitness to stand trial arises again on the day of
the trial it may extend the process further. The question of the accused person’s unfitness
to stand trial could also be raised for the first time on the day of the trial. It is not entirely
clear whether there is a consistent way in which judges address situations where this
happens. However, the CMIA provides that if there is a real and substantial question as
to the fitness of the accused person to stand trial at any time during a trial, the judge
must adjourn or discontinue the trial and proceed with an investigation into the accused
person’s fitness to stand trial by a jury. 143
4.119 The length of the process can be difficult for both victims and accused people who
may be unfit to stand trial. For victims, it involves waiting for a lengthy period before
reaching some resolution. For accused people who may be unfit to stand trial, delays may
affect their ability to participate in proceedings. People with a mental illness, cognitive
impairment or intellectual disability often have difficulty with memory, especially with
storing information in their memory and recalling the details or information. 144 It is
therefore preferable that any process is as expeditious as it can be, where appropriate.
Question
22 In your experience as either a person subject to the CMIA, a family member of
a person subject to the CMIA or a victim in a CMIA matter, how has the length
of the unfitness process affected you
4.120 If judges and magistrates are given the jurisdiction to determine unfitness to stand trial,
the reduction in time spent to empanel two juries could have an effect on the length of
the unfitness to stand trial process. It is also worth considering whether there are other
ways of expediting the unfitness to stand trial process.
Question
23 Would removing the jury’s involvement in investigations of unfitness to stand
trial be likely to expedite the process
78
143 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 9(2).
144 R Milne and R Bull, ‘Interviewing Witnesses with Learning Disability for Legal Purposes: A Review’ (2001) 29 British Journal of Learning Disabilities,
93–7.