Crimes (Mental Impairment and Unfitness to be Tried) Act 1997: Report (html)

Accused

Person or people charged with a criminal offence.

Adult Parole Board

An independent statutory body that makes decisions regarding the granting and cancelling of parole and monitoring offenders on parole.

Assessment and Referral Court (ARC) List

A specialist court list, located in the Melbourne Magistrates’ Court, developed by the Department of Justice and the Magistrates’ Court of Victoria to meet the needs of accused who have a mental illness and/or a cognitive impairment.

Balance of probabilities

The standard of proof in civil proceedings. Often described as ‘more likely than not’ or ‘more probable than not’. Refers to a standard of proof or degree of certainty required to prove something. This is a lesser standard of proof than ‘beyond reasonable doubt’.

Basic intent

A fault element for an offence that relates to the intention of an accused while engaging in particular conduct. For example, for the offence of sexual penetration of a child under 16 years, an accused must have intended to take part in the sexual penetration.

Beyond reasonable doubt

The standard of proof in criminal proceedings.

Child

A person under the age of 18 years. In this report, the term ‘young person’ is used generally to describe a person who qualifies to be dealt with in the Children’s Court or under special provisions that apply to ‘children’ (aged under 18 years) or ‘young offenders’ (aged 19–20 years) in the Children, Youth and Families Act 2005 (Vic).

Child Protection

A program area in the Department of Human Services that provides child-centred, family-focussed services to protect children and young people from significant harm caused by abuse or neglect within the family.

Children’s Court Clinic

The Children’s Court Clinic conducts independent psychological and psychiatric assessments of children and families for the Children’s Court of Victoria.

CMIA

Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).

Cognitive impairment

A term used in this report to refer to the impact of any of a range of disabilities that may limit a person’s ability to think. These include intellectual disability, acquired brain injury, some mental illnesses, autism spectrum disorder and dementia.

Committal

A preliminary examination by the Magistrates’ Court to determine whether the case against the accused is sufficient to warrant the person being directed to stand trial before the Supreme Court or the County Court.

Common law

Law that derives its authority from decisions of the courts rather than from legislation.

Court Integrated Services Program (CISP)

A multi-disciplinary rehabilitation program established by the Department of Justice and the Magistrates’ Court that provides accused with access to services and support to reduce rates of re-offending and promote safer communities. The program currently operates at the Latrobe Valley, Melbourne and Sunshine Magistrates’ Courts.

Custodial supervision order

A supervision order that requires the detention of a person in a mental health service, residential institution or residential treatment facility.

Defence of mental impairment

A defence in Victoria defined under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), replacing the common law defence of insanity. It requires proof that the accused was suffering from a mental impairment at the time of the commission of the alleged offence, and that the mental impairment affected the accused so that they either did not understand the nature and quality of their conduct, or did not know their conduct was wrong. The meaning of mental impairment under current law in Victoria is a ‘disease of the mind’.

Director of Public Prosecutions

The Director of Public Prosecutions makes decisions about whether to prosecute, and prosecutes, serious criminal matters in the Supreme Court and County Court. The Director of Public Prosecutions is independent of government.

Disability Forensic Assessment and Treatment Service (DFATS)

A disability forensic service that delivers treatment, support and residential services for people with a disability who display high-risk anti-social behaviour and are involved, or at risk of being involved, in the criminal justice system.

Disability Services

A program area in the Department of Human Services that provides voluntary disability services and support to people with a disability eligible under the Disability Act 2006 (Vic).

Discharge

To release an accused, usually because of an acquittal. A court can discharge a person with or without conditions.

Fault element

The state of mind necessary to establish a particular crime commonly referred to as ‘mens rea’. The fault element varies depending on the nature of the crime, but may include intention (for example, in the case of murder the intention to kill or cause really serious injury), recklessness, negligence, dishonesty or malice.

Fitness to plead

Refers to the doctrine that existed before the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) which exempted an accused from the usual criminal process because at the time of the trial they were unable to enter a plea or understand the nature of the proceedings.

Forensic

Relating to or used in courts of law.

Forensicare

See definition under ‘Victorian Institute of Forensic Mental Health’.

Forensic Clinical Specialist Program

A program established by the Victorian Institute of Forensic Mental Health (Forensicare) that aims to enhance the capacity and expertise of the mental health workforce to manage people with mental illness who engage in criminal offending.

Forensic Leave Panel

An independent statutory body with jurisdiction to consider applications for certain types of leave for forensic patients and forensic residents.

Forensic patients

People subject to a supervision order or on remand pending a determination under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), who are in detention at a mental health service.

Forensic residents

People subject to a supervision order or on remand pending a determination under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), who are in a residential institution or residential treatment facility.

Governor in Council

A body that comprises the Governor as Chair and members of the Executive Council (usually the Premier and ministers). It implements aspects of government business, including appointing statutory officers and judges and proclaiming legislation.

Indictable offences

Serious crimes which attract higher maximum penalties. Usually triable before a judge and a jury.

Indictable offences triable summarily

Indictable offences which can be heard before a magistrate.

Intellectual disability

An intellectual disability is a type of cognitive impairment. The Disability Act 2006 (Vic) defines a person with an intellectual disability as a person with both significant sub-average general intellectual functioning and significant deficits in adaptive behaviours, which become apparent before the age of 18 years.

Leave

Leave allows a forensic patient or forensic resident to be absent from a mental health service, residential institution or residential treatment facility for a duration of time, subject to any conditions.

Major review

A review of a person’s supervision order at least three months before the end of the order’s nominal term, or at least every five years after that for the duration of the order. Its purpose is to determine whether the court can release the person subject to the supervision order.

Mental condition

In this report, a mental condition means any condition that results in a person’s mental processes becoming disordered or impaired.

Mental Health Court Liaison Service (MHCLS)

A court-based mental health assessment and advice service. There are seven MHCLS officer positions in metropolitan Magistrates’ Courts provided by the Victorian Institute of Forensic Mental Health (Forensicare) and four regional roles provided by local area mental health services.

Mental illness

Mental illness is defined in the Mental Health Act 2014 (Vic) as ‘a medical condition that is characterised by a significant disturbance of thought, mood, perception or memory’. It can include conditions such as depression, schizophrenic disorders, bipolar affective disorder, obsessive-compulsive disorder and post-traumatic stress disorder.

Multiple and Complex Needs Initiative (MACNI)

A collaborative approach between the Department of Human Services, Department of Justice and Department of Health to provide services for people in the criminal justice system who have combinations of impairments and issues. It is governed by the Human Services (Complex Needs) Act 2009 (Vic).

Nominal term

A period of time specified in the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) which triggers a major review. For the offence of murder, for example, the nominal term is 25 years.

Non-custodial supervision order

A supervision order that does not require the detention of a person in a mental health service, residential institution or residential treatment facility, but requires the person to comply with certain conditions and be subject to supervision in the community.

Office of the Public Advocate

An independent statutory body that works to protect and promote the interests, rights and dignity of people with a disability.

Office of Public Prosecutions

The Office of Public Prosecutions is the independent statutory authority that institutes, prepares and conducts criminal prosecutions on behalf of the Director of Public Prosecutions.

Order

A direction by a court or tribunal that is final and binding unless overturned on appeal.

Physical element

The physical act necessary to establish a particular crime commonly referred to as ‘actus reus’. The physical element varies depending on the nature of the crime, but may include the conduct (for example, rape requires the sexual penetration of a person), circumstance (for example, rape requires the absence of consent) or cause (for example, murder causes the death of a person) to establish the crime.

Plea

An accused’s answer to a charge of an offence which usually takes the form of ‘guilty’ or ‘not guilty’.

Police prosecutor

A member of Victoria Police who prosecutes state summary offences in the Magistrates’ Court or Children’s Court.

Residential institution

A place designated under the Disability Act 2006 (Vic) where a person with an intellectual disability may be admitted and receive compulsory services.

Residential treatment facility

A place designated under the Disability Act 2006 (Vic) where a person with an intellectual disability may be admitted and receive compulsory treatment.

Second reading speech

The speech given by a member of parliament when a Bill has been introduced in parliament and is being considered for debate. A second reading speech outlines the reasons for the Bill’s introduction.

Section 47 certificate

A certificate under section 47 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) confirming the availability of the facilities or services necessary for the custody or provision of services to a person.

Special hearing

A hearing before a jury, after the accused has been found unfit to stand trial, to determine whether they are not guilty of the offence, not guilty because of mental impairment or committed the offence charged.

Specific intent

A fault element for an offence that relates to the intention of an accused to cause particular results or consequences by their conduct. For example, for the offence of murder, an accused must have a specific intent to cause a person’s death or really serious injury.

Summary jurisdiction

The power or right a court has to hear and determine summary offences. The Magistrates’ Court is a court of summary jurisdiction.

Summary offences

Less serious offences heard by a magistrate without a jury. Police prosecutors generally conduct the prosecution of state summary offences.

Supervision order

An order a court can make under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) if a court finds an accused is one of the following:

unfit to stand trial but has committed the offence charged

unfit to stand trial and not guilty because of mental impairment

not guilty because of mental impairment.

The order requires the person to be subject to supervision. It can be custodial or non-custodial.

Test

In this report, the legal requirements to establish unfitness to stand trial or the defence of mental impairment or to assess the risk of a person under supervision.

Thomas Embling Hospital

Thomas Embling Hospital is a 116-bed secure forensic mental health hospital managed by the Victorian Institute of Forensic Mental Health (Forensicare). The hospital provides advanced clinical treatment and programs to patients from the criminal justice system (either transferred from the prison system or ordered by the courts to be detained for psychiatric assessment, care or treatment).

Unconditional release

Release of a person without conditions.

Unfitness to stand trial

Refers to the doctrine under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) which exempts an accused from the usual criminal process because at the time of the trial they are unable to enter a plea, understand the nature of the proceedings or participate in the trial process.

Victoria Legal Aid

An organisation that provides legal advice to and representation for accused who cannot otherwise afford legal assistance.

Victorian Civil and Administrative Tribunal (VCAT)

A decision-making body similar in some respects to a court. VCAT decisions can be appealed with leave to the Supreme Court of Victoria (on a point of law).

Victorian Institute of Forensic Medicine (VIFM)

A statutory authority that provides independent and expert forensic medical and scientific services to the justice system, human tissues for transplantation, teaching in medicine and science and undertakes research in these areas.

Victorian Institute of Forensic Mental Health (Forensicare)

A statutory authority with the responsibility for providing adult forensic mental health services in Victoria.

Victorian Parliament Law Reform Committee

A committee of government and non-government members of the Victorian Parliament, established to consider issues of law reform referred to it by the Victorian Government (now the Law Reform, Drugs and Crime Prevention Committee).

Young person

A person under the age of 21 years. In this report, the term ‘young person’ is used generally to describe a person who qualifies to be dealt with in the Children’s Court or under special provisions that apply to ‘children’ (aged under 18 years) or ‘young offenders’ (aged 19–20 years) in the Children, Youth and Families Act 2005 (Vic).

Youth Justice

A program area in the Department of Human Services responsible for the statutory supervision of young people in the criminal justice system in Victoria and management of the three youth custodial facilities: Parkville Youth Residential Centre, Melbourne Youth Justice Centre and Malmsbury Youth Justice Centre.