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Victorian law reform: Call for clarity

Every Issue

Cite as: October 2014 88 (10) LIJ, p.74

A VLRC report recommends revising the current criteria for determining unfitness to stand trial. 

The Victorian Law Reform Commission (VLRC) has released a report on its review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (CMIA). The report was tabled in Victorian Parliament on 21 August 2014.

The report (http://tinyurl.com/pmgcd8a) considers legal and procedural issues in the operation of the CMIA for adults and children across all levels of criminal courts in Victoria.

Introduced in 1997, the CMIA abolished the “Governor’s pleasure” regime and established a fairer, more transparent and balanced approach to determining:

  • whether at the time a person appears in court, their mental processes are so disordered or impaired, that the person is unfit to stand trial;
  • whether at the time of the offence charged, a person was suffering from a “mental impairment” to the necessary standard for them to be not guilty because of mental impairment.
  • what should happen to people who have been found unfit to stand trial or not criminally responsible because of mental impairment.

The CMIA largely operates in the Supreme and County Courts. Over a 12-year period, there were 159 cases dealt with under the CMIA in these courts – 93.7 per cent resulted in the imposition of an indefinite supervision order.

In June 2013, there were 154 people with a mental illness supervised by the Victorian Institute of Forensic Mental Health (Forensicare) and 30 people with an intellectual disability supervised by the Department of Human Services. The regime for supervision and management is provided by the CMIA, the Mental Health Act 2014 (Vic) and the Disability Act 2006 (Vic).

The VLRC received 34 submissions (see www.lawreform.vic.gov.au) and held 55 consultation meetings across Victoria.

The VLRC made 107 recommendations.

It found that the CMIA is a substantial improvement on the previous regime and has achieved many of its objectives. It identifies areas for system-wide change, including statutory principles for decision makers to avoid unreasonable delay and training for professionals who work under the CMIA.

The VLRC recommends revising the current criteria for determining unfitness to stand trial to ensure that the accused is only subject to the trial processes where they are able to make the crucial decisions relevant to their trial.

It recommends that a definition of mental impairment be introduced into the CMIA to clarify the uncertainty surrounding the common law definition “disease of the mind”. It recommends that the CMIA define a mental impairment as a condition that “includes, but is not limited to, mental illness, intellectual disability and cognitive impairment”.

The report identifies that the lack of power of the Magistrates’ and Children’s Courts is a gap in the operation of the CMIA. This forces committal of matters to a higher court, and can result in artificial decision making, delay, unfairness to the accused and a lack of outcome. The VLRC recommends the jurisdiction of these courts be extended under the CMIA. The VLRC makes a package of recommendations to establish a legislative framework for its operation, including support services.

The VLRC recommends that a youth forensic facility be established to address the lack of secure services for remand, treatment and supervision of children and young people with mental conditions.

The report proposes changes to the involvement of juries in determining unfitness to stand trial and the defence of mental impairment.

The VLRC recommends that the current provision allowing a judge to determine the defence of mental impairment be abolished and that a jury determine criminal responsibility in all cases, to reflect the substantial value in public examination of these issues by a jury. On the other hand, the VLRC considers that unfitness to stand trial is a pre-trial issue and recommends that a judge or magistrate determine all investigations of unfitness to stand trial.

The VLRC makes recommendations to simplify jury directions, including a legislated approach to directing the jury when the defence of mental impairment is raised.

The report considers whether the supervision framework operates consistently with the key principles of community protection and least restriction.

The current nominal term framework is confusing and raises inaccurate expectations in the community. The VLRC’s view is that the nominal term system is an inappropriate way of setting review periods with respect to the seriousness of the offence. It rarely reflects the actual period of supervision which varies vastly. The VLRC recommends the retention of indefinite supervision orders in the higher courts and the replacement of the current nominal term system with five-year progress reviews.


Contributed by the VICTORIAN LAW REFORM COMMISSION. For further information ph 8608 7800 or see www.lawreform.vic.gov.au.

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