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Criminal defence laws review


Cite as: October 2012 86 (10) LIJ, p.10

Laws relating to persons who are not fit to stand trial or found not guilty due to mental impairment may be overhauled following a government-ordered review of laws.

The investigation of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (the Act), ordered by Attorney-General Robert Clark, will be conducted by the Victorian Law Reform Commission (VLRC).

The VLRC has been asked to report back to government no later than 31 March 2014.

Mr Clark said in a statement that the review would seek to ensure that the law that determines a person’s guilt or fitness to be tried, and what happens to persons found not fit or not guilty, “operates justly, effectively, and consistently with the principles that underlie the Act.”

LIV president Michael Holcroft said the LIV welcomed the review on mental impairment and culpability.

“We hope that the law reform commission will also consider whether the Children’s Court should have the powers to rule on mental capacity; this power does not currently vest in the Children’s Court,” he said.

Mr Holcroft said the move would increase efficiencies as practitioners must currently refer children’s cases involving the issue of capacity to the County Court.

Practitioners have also suggested that the inquiry should investigate whether funds allocated to the mental health system as a means of prevention should be bolstered.

The VLRC has already been asked by government to consider the definition of “mental impairment”, the process for deciding fitness to stand trial, the application of the Act in the Magistrates’ Court, how issues should be determined by a jury when a defence of mental impairment is raised, and the operation of the system of supervision and review for persons placed under the Act. The legislation, enacted in 1997, has given rise to criminal defence arguments in many high-profile cases, including that of Arthur Freeman, who was convicted in April 2011 of murder despite claiming mental impairment after throwing his four-year-old daughter from the West Gate Bridge.

The law requires an accused person to prove beyond reasonable doubt that they did not know their conduct was wrong at the time of the offence.

The argument was applied in the case of psychiatric patient Peko Lakovski after he was charged with two counts of murder over the deaths of fellow inmates at the Thomas Embling Hospital, a secure 116-bed mental health hospital in inner-Melbourne. In May 2011, he was found not guilty of the murders due to mental impairment.

Mr Clark said the legislation was important both for the protection of the community and the treatment of those placed under it.

“It also governs the operation of significant aspects of Victoria’s justice and mental health systems,” he said.

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